1. Brownfield Cleanup Program (BCP) Regulations: 6 NYCRR Part 375
Program Policy:
BCP Applications and Agreements
January 24, 2018
Air Waste Management Association
Niagara Frontier Section
Annual Enrichment Seminar

2. Part BB of Chapter 56 of the Laws of 2015
Authorizes an additional $1 billion over 10 years for State Superfund, and up to $100 million per year
Up to 10 percent of those funds can be used for the ERP
Continues BCPs tax credits for 10 years with program reforms
Clarifies (redefines) the definition of a brownfield site
Creates new eligibility requirements for tangible property tax credits for BCP sites in a city with a population of a million or more (New York City)
In 2015 the BCP was set to sunset, but instead the legislature modified the law and some great things happened.
Moved from brownfield – redevelopment or reuse pf which may be complicated by the presence or potential presence of a contaminant to exceedance of a standard based on the REASONABLE ANTICIPATED use of the property.

3. Preview of Potential Revisions to 6 NYCRR Part 375
Environmental Remediation Programs
Subpart General Remedial Program Requirements
Subpart Inactive Hazardous Waste Disposal Site Remedial Program (a.k.a. State Superfund Program)
Subpart Brownfield Cleanup Program
Subpart Environmental Restoration Program (ERP)
Subpart Reserved
Subpart Remedial Program Soil Cleanup Objectives
Just to ground everyone – here are the Environmental Remediation parts of Title 6. They are found in Part 375 of the New York Codes, Rules and Regulations,
Subpart 1 is general meaning if there is a regulation that is applicable to all programs you will find it here
Subpart 2 governs Inactive Hazardous waste sites.

4. Part BB of Chapter 56 of the Laws of 2015
Limits eligible costs for the redevelopment TPCs and restructures tax credits
Established a requirement for certain legacy BCP sites to complete the program and obtain certificate of completion by end of 2017
Makes changes to the ERP

5. 2016 Regulatory Changes
As required by the 2015 legislation, DEC completed a first rule making with amendments to Part 375 which
Defined “affordable housing” and “underutilized” as used in the BCP
definitions are used as part of eligibility requirements for TPCs for brownfields in New York City. Sites must be:
upside down/underutilized;
located in designated En-Zone; or
an affordable housing project
Amended “brownfield site” definition.
Final regulations were adopted July 13, 2016 and became effective August 12, 2016
The new law said: this act shall take effect on July 1, 2015 or on the date of publication in the state register of proposed regulations defining “Underutilized” as provided in subdivision 30 of section of the ECL, whichever shall be later and then went on to talk about the logistics of notice and such.
The proposed regulations were proposed on June 10, 2015
Upside down = Properties where the cost of cleanup is 75% or more of the property value as if uncontaminated; ‘upside down’ will be defined under the BCP at
En-Zones (Environmental Zones) = Areas with high poverty and/or unemployment levels
Underutilized = As defined at (l) A new subdivision (l) is adopted to read as follows:
(l) "Underutilized" means, as of the date of application, real property on which no more than fifty percent of the permissible floor area of the building or buildings is certified by the applicant to have been used under the applicable base zoning for at least three years prior to the application, which zoning has been in effect for at least three years; and
(1) the proposed use is at least seventy-five percent for industrial uses; or
(2) at which:
(i) the proposed use is at least seventy-five percent for commercial or commercial and industrial uses; (ii) the proposed development could not take place without substantial government assistance, as certified by the municipality in which the site is located; and (iii) one or more of the following conditions exists, as certified by the applicant: (a) property tax payments have been in arrears for at least five years immediately prior to the application; (b) a building is presently condemned, or presently exhibits documented structural deficiencies, as certified by a professional engineer, which present a public health or safety hazard; or (c) there are no structures.
"Substantial government assistance" shall mean a substantial loan, grant, land purchase subsidy, land purchase cost exemption or waiver, or tax credit, or some combination thereof, from a governmental entity.
Affordable housing project = As defined at (a)
(a) "Affordable housing project" means, for purposes of this part, title fourteen of article twenty seven of the environmental conservation law and section twenty-one of the tax law only, a project that is developed for residential use or mixed residential use that must include affordable residential rental units and/or affordable home ownership units.
(1) Affordable residential rental projects under this subdivision must be subject to a federal, state, or local government housing agency's affordable housing program, or a local government's regulatory agreement or legally binding restriction, which defines (i) a percentage of the residential rental units in the affordable housing project to be dedicated to (ii) tenants at a defined maximum percentage of the area median income based on the occupants' households annual gross income.
(2) Affordable home ownership projects under this subdivision must be subject to a federal, state, or local government housing agency's affordable housing program, or a local government's regulatory agreement or legally binding restriction, which sets affordable units aside for home owners at a defined maximum percentage of the area median income.
(3) "Area median income" means, for purposes of this subdivision, the area median income for the primary metropolitan statistical area, or for the county if located outside a metropolitan statistical area, as determined by the United States department of housing and urban development, or its successor, for a family of four, as adjusted for family size.

6. 2017-2018 Proposed Regulatory Changes
DEC is currently developing* a second rule making to address additional regulatory changes that will amend Part 375 to:
Incorporate provisions as specified in Chapter 56 of the Laws of 2015 as they pertain to the ERP in Part 375
Increase consistency across all remedial programs administered by the Division of Environmental Remediation (DER)
Incorporate needed changes, clarifications, and modifications based on the experience developed during the first decade of implementing the BCP
Incorporate legislative mandates, which modify the tax incentives offered under the BCP
Incorporate soil cleanup objective (SCO) changes resulting from the statutorily required five-year review
The two changes were made right away so that the law would go into effect, but there were other changes that needed to be made.
The new BCP law changed the statute and the regulations needed to be revised to reflect that
2017 proposed changes are still in the process of being drafted. One of the things that department is dedicated to is providing outreach to groups like this to explain the proposed changes. With that said, keep in mind that these are potential revisions to Part 375 and are subject to change and it is an on-going process until they are published and then the Department will receive comments and there may be more changes.
It is projected that the proposed rule making could be released for public comment in Spring or Early Summer 2018.

7. Subpart 375-1: General Remedial Program Requirements
“Change of Use” – Definition will be consolidated and placed in the definitions section ( ). This was previously defined in the different subparts.
Site Classification (All Remedial Programs) – DEC has always had the authority to create administrative classes to classify a site. A new section will be added at to describe the specific categories that DEC may use and add information that is on DEC’s website.
Dispute Resolution (Order/Agreement) – Clarifies that requests for a dispute resolution should be sent to DER Division Director who will then designate the individual to hear the dispute
This definition describes what is a change of use – temporary or permanent add: language
“Change of use” means the transfer of title to all or part of such site, the erection of any structure on such site, the creation of a park or other public or private recreational facility on such site, or any activity that is likely to disrupt or expose contamination or to increase direct human exposure; or any other conduct that will or may tend to significantly interfere with an ongoing or completed remedial program at such site and the continued ability to implement the engineering and institutional controls associated with such site. Change of use does not include work performed under a department approved work plan.
Site classifications – a new section will be added at to describe the specific administrative classes that may be used for all remedial programs.

8. Subpart 375-1: General Remedial Program Requirements
Termination of Agreements – Clarifies that DEC has the authority to terminate agreements/orders. Under current regulations this is not specified.
Certificate of Completion (COC) –
Revisions specify that DEC may revoke a COC if there is a misrepresentation of material fact demonstrating that the applicant was a volunteer or that the site met the criteria for the TPCs.
Expressly states that the COC may not be transferred to a responsible party.

9. Subpart 375-2: Inactive Hazardous Waste Disposal Site Remedial Program
Only one major revision:
Cash Out Authority - Revisions clarify that DEC has the authority to enter into a “cash out” consent order in circumstances where it is implementing a remedy.

10. Subpart 375-3: Brownfield Cleanup Program
Definitions: DEC is defining the following terms to be in line with the intent of 2015 legislation.
“Cover system requirements” or “site cover”- clean soil cover 1-2 feet in thickness based on intended use with a clear demarcation layer to serve as a visual cue defining clean soil from remaining contamination where possible/appropriate.
“PRP Search” - outlines expectations for a PRP search.
Cover system:
(1) For commercial and industrial use, one foot of soil meeting the commercial soil cleanup objectives (SCOs) or industrial SCOs, respectively, found in section (b) of this Part and, as applicable, the protection of groundwater SCOs and protection of ecological resources SCOs, found in section (b) of this Part; or
(2) For restricted residential use, two feet of soil meeting the restricted residential SCOs found in section (b) of this Part and, as applicable, the protection of groundwater SCOs and protection of ecological resources SCOs, found in section (b) of this Part.
Addresses the potential for abuse where (for example) participants and volunteers were calling multi-floor underground parking garages a “cover system” -- DEC is setting parameters to help taxation issue appropriate credits in line with intent of the legislation.
PRP – search this comes into play where regulations now permit a Class 2 site to come into the BCP – but only where there is no PRP. We are looking to the applicant to help the DEC with the leg work on this.
Certificate of Completion (COC) –
Revisions specify that DEC may revoke a COC if there is a misrepresentation of material fact demonstrating that the applicant was a volunteer or that the site met the criteria for the TPCs.

11. Subpart 375-3: Brownfield Cleanup Program
Eligibility
Changing the description of eligible sites to harmonize with the changes to the statute (e.g., removed presence of contamination and replaced it with SCO exceedances). Further defines the information required to demonstrate “contamination” for eligibility purposes.
Class 2 sites may now be eligible if they are owned by a volunteer, unless a PRP search reveals a viable PRP.
Applications
Requirements being revised to make clear that the applicant must provide information relative to the PRP search.
TPC and application approval - For sites seeking a TPC determination, the notification for TPC eligibility would be made at same time as BCP eligibility.
Public Interest Consideration - Includes the factors that DEC may use to evaluate whether an application will serve the public interest (e.g., Consent Order already in place).
Eligible/Ineligible sites - Class 1 sites remain ineligible. Also ineligible are sites subject to an ongoing enforcement action, or required to have a RCRA permit, or a hazardous waste facility that is a treatment, disposal, or storage facility, unless the site is owned by a volunteer and a responsible party cannot be found.
Sites subject to previous cleanups eligible, but not for tangible tax credits.
Public Interest Consideration - Includes the factors that the DEC may use to evaluate whether an application will serve the public interest. For example, whether or not there is a viable party and if the interests of public health require urgent action.

12. Subpart 375-3: Brownfield Cleanup Program
(NEW) Tangible Property Tax Credits
Formalizes the requirements related to TPCs from the statute related to the source of contamination.
Adds the additional requirements for TPCs (for sites in a city with a population of million or more) to demonstrate economic hardship.
(NEW) Institutional Controls/Engineering Controls (IC/ECs)
For sites with required IC/ECs, the EE shall be executed within180 days of the commencement of the remedial design or at least 3 months prior to the anticipated date of the COC, and then subsequently recorded.
Source Contamination TPCs - For example, tangible property credits are not available if the groundwater contamination or soil vapor issues are related solely to off-site source or if the property was previously remediated, under another program, for the property’s then-intended-use.
FYI ERP Subpart Environmental Restoration Program
Definition: Revise the definition of “State Assistance” to clarify that the State (specifically DEC) can:
undertake the cleanup using ERP funds,
complete the remediation, incur the costs on behalf of the municipality, and
be paid by the municipality through the ERP.
Other: Allow DEC the authority to prioritize ERP applications based on need.
During the past several months, DEC has completed preliminary outreach with various organizations, which provided DEC with an opportunity to get valuable feedback on proposed revisions.
DEC will undertake additional outreach after publishing the proposed rules, including:
possible webinars; public meetings for stakeholders; and posting key revisions pertaining to this rule making on DEC’s website.
Public Hearings: DEC is required to hold at least two public hearings for this proposed rule making. The public hearing dates, times and locations will be published in the State Register. DEC will also post this information on its website and in the Environmental Notice Bulletin.
We look forward to future discussions as the proposed rule making package is completed and released for public comment. And with that, I am going to turn to and discuss DER-32. (if anyone has questions on this segment we can take them at the end to ensure we have enough time for the entire panel).

13. DEC Program Policy DER-32 Brownfield Cleanup Program Applications and Agreements

14. Program Policy DER-32: History
June 22, 2010 – Initial Issuance
June 17, 2015 – Rescinded
In April 2015, New York State budget included statutory reforms to the BCP
DER-32 no longer reflected current legislation
On April 19, Proposed revisions were available for 30- day public comment period until May 19, 2017
Latest Revision dated: July 28, 2017

15. Program Policy DER-32 DER-32 was revised to clarify:
Controlling date per statute to determine mandatory dates for achieving COCs at both Generation 1 and 2 sites is dictated by date in which a Brownfield Cleanup Agreement (BCA) was signed by DEC
Site’s En-Zone status is considered locked-in as of the date of the original BCP application acceptance.
For payment of remaining costs due to the State per BCA:
Volunteer remains responsible until July 1, 2015
Participant remains responsible until date of BCA termination

16. Program Policy DER-32 July 28, 2017 – Revised policy issued
September 8, 2017 – Effective date
Issued by the Division of Environmental Remediation
DEC’s guidance on BCP Applications and Agreements
Includes info on the amendment and termination process

17. DER-32: Pre-App meeting Goals Other Benefits Overview
Basis for Acceptance
Eligibility and TPC Eligibility
Discuss Remedial Strategy
Other Benefits
Your clients hear it first-hand
Set Expectations
Strategize
Unofficially Erie County has more BCP sites than any other single county in the state.
Chad for the most part supervises all of those sites and I am legal counsel on the majority of active sites.
Approximately 144 active BCP and Class 2 sites are in R9.

18. DER-32: How to get the most out of your Pre-App Meeting
Provide pre-app worksheet at least 24 hours prior to meeting; further in advance is better
Provide any data that you have in advance.
Need sufficient data to meet eligibility standard:
Exceedances of SCOs
Reasonably anticipated use
Recommend maximizing the benefits of the pre-app meeting
DEC has and will cancel a pre-app meeting if the pre-app worksheet is not submitted. Without the time to review the information in advance, the pre-app meeting is a waste of everyone’s time.
What kind of data should be included in the pre-app meeting packet?
ECL defines a ‘brownfield site’ or ‘site’ to mean any real property were a contaminant is present at level exceeding the soil cleanup objectives or other health-based standards, criteria, or guidance adopted by the department that are applicable based on the reasonably anticipated used of the property, in accordance with applicable regulations. (minus the exceptions – Class 2 site, RCRA sites with responsible parties.
Arguably the best thing that you can do for your project at this point is to provide adequate data and present it in a clear and concise manner.
Take enough samples. When contamination is identified put it on a table or a map compared to the SCOs for the reasonably anticipated use.

19. DER-32: Submitting the Application
Application is submitted to Albany, Site Control Section
Site Control makes the determination when the application is complete
Letter of Completeness is issued, along with Notice, which must be circulated and published
Application materials are distributed
PM completes and circulates an eligibility memo
PA completes an eligibility memo
Eligibility meeting is held and Regional Hazardous Waste Engineer, PM and PA discuss the application
Note:
Clarification: The original application with signatures and one complete electronic copy must be submitted to Albany, Site Control Section AND an electronic copy should also be submitted to the DER Regional Contact .. which is Chad Staniszewski in Region 9
LOC (letter of completeness) and notice is a very detailed letter includes the deadlines and the dates, just need to follow the directions, also note that marketing literature, brochures, etc may not be mailed with the notice.
Next step is preparing the application. As anyone who has ever submitted a BCP application before knows, this is a lot of work and requires a lot of information.
PM’s analyze and synthesizes the data and compare to the SCOs and the proposed use.
As the PA, I also review the proposed land use and zoning, the parcels, the business entities, any past violations at the site, prior related cleanup activities (for both eligibility and TPCs), the applicants prior compliance record, the applicant’s status as a volunteer or participant, If they are a volunteer and there is the potential likelihood of finding a significant threat off-site I start my responsible party analysis right then. Complete and through application and information related to former owner’s is crucial, especially, where there is a potential significant threat and an off-site component. I’m also responsible for determining if access has been secured.
PA’s also analyze party preclusion, based on public interest considerations which requires a review of the applicant’s or the applicant’s high managerial agent’s or director’s prior compliance record.
Here is where your preparation of the R9 folks pay off, because we are basically presenting your project and explaining it to the group of folks that analyze the eligibility.

20. One application per development project
DER-32: Applications
One application per development project
May result in noncontiguous parcels being in one application
DEC may consider more than one application in certain scenarios:
Exceeds 25 acres
Does not negatively impact the remedial program
Approach is not advanced to increase tax credits
May result in noncontiguous parcels being in one application (and that’s okay)
Approach is not advanced to increase tax credits – SPECIFICALLY not to circumvent the tax credit caps.
Also TPCs, which we talked about above, for example if a site in Buffalo as previously remediated for its then intended use, then tangible property credits are not available for remediation under the BCP. So for example if your client has an old SSF site that remediated to industrial SCOs, but now the site is in a trendy neighborhood and the facility is being converted to lofts, not eligible for the TPCs, even if the site is being remediated to RR SCOs.
Also sites in city with a population of a million or more also have additional standards to meet: upside down, en-zones,

21. DER-32: BCA Approval or Disapproval
DEC will use its best efforts to notify the requestor regarding acceptance or denial* within 45 days of receipt of a complete application (60 days if a final Remedial Investigation or Remedial Action Work Plan is submitted with the application)
Issues that may result in disapproval or the request for additional information:
Insufficient information to meet requirement of ECL
Requestor is subject to an enforcement action, see ECL
Insufficient geographical description
Insufficient information to determine if the applicant is a volunteer
Insufficient information to determine whether the site is eligible for TPCs (primarily NYC with one exception)
R9 unofficial policy to let the attorney, consultant or applicant know if there is a denial as soon as possible. Chad and I both generally send an or call the afternoon of the eligibility meeting. This gives the applicant a window to fix or close the gaps on a application and increases efficient, if the Applicant doesn’t want a denial letter they have an opportunity to submit additional information for further evaluation prior to the meeting.
Issues that may result in disapproval or the request for additional information: Here is where good preparation at the pre-application meeting will pay off. We have sat in on years of BCP meetings (which covers the whole state), we have heard the analysis on average for 15 sites a month, which adds up pretty quickly to hundreds of sites. Chad can identify technical issues that will be raised and advise you in advance where your data is lacking. I can identify the issues that will come up on the legal analysis, if the legal description is lacking, relevant enforcement actions, questions about prior remedial work that affect the TPC analysis, subject to another order, etc.

22. DER-32: BCA Volunteer vs. Participant
Generally:
Participants are responsible for off-site contamination and reimbursing DEC for oversight costs
Volunteers not responsible for off-site contamination*
Volunteers do not reimburse DEC for oversight costs
If the BCA is issued to a Participant, any subsequently added party will also a participant
One item that I would like to note here that causes confusion is:
While volunteers under the BCP do not have to chase contamination, under the statute ECL (which governs work plan requirements) volunteers are required submit a work plan which includes measures to perform a qualitative exposure assessment, which must meet the requirements found in ECL This qualitative exposure assessment may require off-site investigation and samples to assist the department, particularly in analyzing the potential for off-site areas to pose
So once the BCA is issued to a participant:
BCA will not be drafted modified or otherwise distinguish between parties responsibilities
BCA will require on-site and off-site work
BCA will include state costs
BCA will be issued ONLY upon completion of both on-site and off-site (only ONE BCA per site)

23. DER-32: COCs One COC per site no early COCs no partial COCs
no contingent COCs
no splitting sites for COCs

24. Amendment Not Necessary
BCA Amendments Chart
Amendment Needed
Amendment Not Necessary
Additional Applicant
Change in Owner Address
Change/Addition of Site Owner
Change in Applicant Address
Change/Addition of Tax Parcel Numbers
Additional Contacts
Change in Site Name
De minimus Change in Acreage
Change in Site Address
Changes in Addresses
Minor Change in Acreage
Significant Addition of Property*
Property will be sold prior to COC issuance
Property description has changed
Substantial discrepancy with BCA is discovered
Owner is not a party to BCA
*See DER-32, Section V.F.4.a
*Significant Addition of Property: See DER-32, Section V.F.4.a
Which would otherwise not be eligible due to contamination levels or anticipated future land use.
Property previously excluded from entering the BCP due to the lack of documented contamination, where DEC formally offered the option for inclusion pending the discovery of eligible contamination during subsequent investigation, may be added to an existing BCP site as a minor amendment.
Following the amendment, the entire site would be subject to the rules governing the original BCA.

25. Major v. Minor Amendments
Three* Generations of BCPs
Make amendment determinations more complex
In addition to usual factors (new parcel added, amount of acreage added, anticipated future land use of new area, etc.) DEC must also determine which Generation of BCP will apply
Major amendments require submission of full BCP application under the “3rd Generation” BCP
* As of January 1, 2018, there are only two generations of BCPs.

26. Effect of 3rd Generation BCP
Major Amendments to a BCA will result in a separate Generation 3 site, or a combined site all subject to Generation 3.
Being a 3rd generation site could have benefits for applicants (reuse of structure, different definition of site prep)
Minor Amendments require amendment form, and sites will continue to be treated as 2nd generation, depending on when they entered the program
DEC will attempt to reduce administrative burdens on two separate sites to the extent possible

27. Failure to meet 2017 COC deadline
Generation 1 BCP sites (2003-June 2008) were required to obtain a COC by 12/31/2017 (per statutory amendments to BCP) - there are no remaining Generation 1 sites
If a site failed to meet this deadline, it became subject to Generation 3 tax credit criteria
DEC still maintains original BCA date for calculating accrual of eligible remedial/site prep costs
Department of Tax & Finance continues to retain final authority and determinations on tax credits
This slide was used for a presentation in April 2017.
Note to Jen (from Angela)
Although the presentation at the Niagara Frontier Section of the Air Waste Management Association is January 24, 2018, this content wasn’t removed since it explains what was done for the 2017 COC deadline which only applies to Generation 1 BCP sites. If you don’t think this should be included, then the slide can be deleted.
Now I would like to turn the floor over to Chad so that he can talk about the BCP process from the Division of Env. Remediation perspective.

28. Considerations/Clarifications and things that can trip you up
BCP schedules and timelines
How contamination unrelated to your site can unexpectedly impact your project (off-site groundwater plumes, soil vapor intrusion)
Interim Remedial Measures (IRMs)
General Questions

29. Not too slow…..but not too fast! Too Slow:
BCP Schedules
Not too slow…..but not too fast!
Too Slow:
The BCP incentivizes cleanup of known contamination …so get to it or get out.
Extended periods with no progress toward a COC will result in what we call ‘An Opportunity to Cure’ letter…you probably do not want one.

30. BCP Schedules (con’t) Too Fast:
You are ready to get to work but do you have an approved work plan?
Almost all work on a BCP site must be completed under an approved work plan.
Completing work ‘at risk’ only means one of two things: 1. you are risking the Department seeking to terminate your BCA!
2. you are risking not receiving tax credits for the work you completed.

31. How Contamination Unrelated To Your Site Can Unexpectedly Impact Your Project
Soil: Soil must be evaluated at every BCP site not just to determine site related impacts but also to complete an off-site
exposure assessment
Groundwater: Groundwater quality must be assessed at every BCP site…and not just to determine site related impacts.
Soil Vapor: Soil vapor will need to be assessed whenever DEC/DOH believes it may be a concern…even from an off site source.
IC/ECs to address impacts from an off-site source can affect cleanup track.
ECL (Qualitative Exposure Assessment)

32. Interim Remedial Measures (IRMs)
Definition (abbreviated) – Remedial action that can be undertaken without extensive investigation and evaluation.
IRMs are limited in scope:
IRMs adversely limiting final remedy options are typically not allowed (most often assuming a track 4 cover remedy will be approved as final remedy).
Must be a relatively defined area of contamination that can be addressed without extensive investigation.

33. IRMs (con’t) IRMs must be completed under an approved work plan:
It is Required!
Our approval of a work plan is the most direct means of proving allowable site preparation costs for tax credit calculations. Therefore the scope of the IRM must be defined in the work plan.
IRMs that are anticipated to be a significant portion of the final remedy require a 45-day comment period.
If all RI work is complete, the Department may require preparation of an alternatives analysis and final remedy.

34. Thank You Jennifer Dougherty, Esq. Assistant Regional Attorney
Office of General Counsel
Phone:
Chad Staniszewski, P.E.
Regional Hazardous Waste Remediation Engineer
Division of Environmental Remediation
Phone:
New York State Department of Environmental Conservation
Region 9
270 Michigan Avenue
Buffalo, NY 14203
Connect with us: Facebook: Twitter: twitter.com/NYSDEC Flickr: