New York state’s Department of Environmental Conservation (“DEC”) Brownfield Cleanup Program (the “BCP”) recently announced planned updates for 2019 to increase consistency, incorporate changes and modify soil cleanup objectives.
The BCP was enacted in 2003 to encourage private-sector cleanups and redevelopment of brownfield sites through a mix of tax incentives and the removal of legal barriers that blocked redevelopment.
The updates to DEC’s Part 375 series regulations are expected to be released in the spring of 2019, and will be aimed at increasing consistency across all remedial programs, incorporating needed changes to the BCP, and modifying the Soil Cleanup Objectives (the “SCOs”) that list the allowable soil contamination levels for the protection of groundwater, ecological resources and public health.
Four Potential Changes to the Brownfield Cleanup Program
• A Certificate of Completion (“COC”) specifying that the brownfield site was remediated according to the requirements of the applicable remedial program must be obtained prior to claiming any Brownfield Redevelopment Tax Credits and other benefits.
Under the current regulations, a COC may be transferred to successors and assigns of the remedial party (or parties) named in a COC; but the regulations are unclear over whether other kinds of transfers of the COC of all or a part of the site are permitted. Proposed revisions could clarify that the COC may be transferred to a successor of a real property interest – including legal, equitable or leasehold – in all or a part of the site.
• DEC is considering elimination of the “conditional” Track 1 cleanup where volunteers (parties who are not potentially responsible) could receive permission for the unrestricted use of the site if long-term institutional and engineering controls for asymptomatic groundwater contamination are implemented.
Under the proposed revisions, DEC would remove this conditional Track 1 cleanup and offer volunteers a Track 2 COC where institutional and engineering controls are used to address groundwater concerns. The Track 2 COC contains restrictions on use of the site; but if the groundwater contamination is reduced to asymptomatic levels over five years, then a Track 1 COC would be issued.
• BCP volunteers may be required to conduct an off-site investigation to complete the exposure assessment, including groundwater and soil vapor intrusion sampling. DEC will also clarify that remedial activities are not subject to SEQRA, although redevelopment is.
• Changes to the SCOs are required as part of a statutory five-year review and, according to the DEC, “some [SCOs] may increase; most changes will be lower.” Proposed changes could affect hexavalent chromium levels and could also lower the allowable levels of volatile organic compounds in soil, especially for residential uses. Furthermore, DEC is requiring sampling of 21 emerging contaminant analytes for per and polyfluoroalkyl substances (PFAS) upon a new site being brought into any remedial program, and at all active BCP sites.
DEC may entertain further adjustments to the BCP as 2019 progresses by conducting additional outreach after publishing the proposed rules, including webinars, public meetings and postings on its website.
This alert does not purport to be a substitute for advice of counsel on specific matters.
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