Preparing a Brownfield Site Application

A Brownfield site is a property that is typically abandoned or underutilized industrial or commercial land, where redevelopment or reuse is complicated by the actual or perceived presence of hazardous substances, pollutants, or contaminants. Contamination must be present at levels exceeding applicable environmental standards. These sites are typically found in urban environments, and may include former factories, gas stations, warehouses, or other industrial facilities.

If you own or are developing a property that you think may be a Brownfield, you should know that it may be eligible for the New York State Brownfield Cleanup Program (NYSBCP). Through the NYSBCP, redevelopment of these sites is encouraged in exchange for benefits that may include tax credits. It is important to note that some sites may not be eligible for enrollment in the program, including:

• Sites listed as Class 1 or 2 in the Registry of Inactive Hazardous Waste Disposal Sites where a viable responsible party has been identified;
• Sites on the USEPA National Priorities List;
• Hazardous waste treatment, storage, or disposal facilities permitted under the Resource Conservation and Recovery Act that are owned by a viable responsible party (“interim status” facilities are eligible);
• Sites subject to a cleanup order under Article 12 of the Navigation Law (oil spill prevention, control, and compensation) or under Title 10 of ECL Article 17 (control of the bulk storage of petroleum); or
• Sites subject to any ongoing state or federal enforcement actions regarding solid/hazardous waste or petroleum.
• Sites previously remediated under these programs may not be eligible for enrollment in the NYSBCP.

The first step in redeveloping a Brownfield through the NYSBCP is to apply to the program. The application process for the NYSBCP can be quite complex, and involves frequent correspondence with the New York State Department of Environmental Conservation (NYSDEC). The application steps are outlined as follows:

1. Pre-Application Worksheet

The pre-application worksheet is the first document to be submitted. This document provides preliminary, baseline information for the site that is applying to the NYSBCP. This includes the applicant’s name, site name, the tax ID for the property (section, block, and lot), parcel size, current/historic usage, and most importantly, information regarding subsurface contamination at the site.

This form will aid in completing the full BCP application form, as much of the information is repeated. This document is to be submitted to the Chief of Site Control, at the NYSDEC’s central office in Albany.

2. Pre-Application Meeting

Once submitted, a pre-application meeting will be scheduled between the applicant and the appropriate representative of the NYSDEC (dependent on the location of the site to be redeveloped). This meeting will outline what is required for the BCP application process and determine whether it would make sense for the applicant to move forward.

Items that may factor into this decision may include the nature of contamination existing at the site (i.e., soil, groundwater, soil vapor) and how it will be remediated, potential difficulties with the public within the locality where the site is being developed, and potential zoning change requirements, among other issues.

3. NYSBCP Application

If the applicant decides to move forward, the full NYSBCP application is to be completed. This application is an expanded version of the pre-application worksheet, with many additional details required. These include expanded administrative information for the site and expanded environmental data for contamination at the site, including any subsurface investigation reports or other environmental records available, among other information. For applicants seeking tax credits for properties within NYC, additional information is required.

Once the application is completed and submitted, NYSDEC reviews it. If the NYSDEC determines the application is complete, this begins a 30-day public comment period, which aims to garner public opinion regarding the proposed site redevelopment and future usage. It should be noted that if the application is denied, developers may be able to gather additional site information such as soil, groundwater, or soil vapor data to strengthen their site’s case for the BCP. This may take several iterations if the site’s data is not complete or fails to indicate an on-site source of contamination.

If the applicant is accepted into the NYSBCP, the Brownfield Cleanup Agreement (BCA) is sent to the applicant by the NYSDEC for signature. It is important for potential applicants to note that at this stage, a non-refundable $50,000 fee is required upon acceptance into the program. At this point, the site will be enrolled in the BCP and remediation/redevelopment of the site may commence.

How Walden Can Help

If you are a property owner, developer, or another party interested in applying for the NYSBCP, Walden’s team of experts in Brownfield development, environmental permitting, and regulatory program compliance can help you with the application process and requirements. Contact us today at 516-744-5863 to speak with a consultant.