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The Business Council supports this legislation, which addresses one of our most significant objectives – clarifying and maintaining broad eligibility for the state's brownfield program. The bill also allows an alternative approach to brownfield project review and approval, though authorized municipal brownfield programs.
The bill also makes several improvements to the program's administrative processes, by reducing charges for Departmental oversight for some projects, and by adopting the Uniform Environmental, which would bring New York's environmental easement requirements in line with those adopted by more than 20 other states.
The following provisions are of particular importance to Business Council members:
- The bill would maintain current program and tax credit eligibility for “participants” (defined in law as entity with some legal liability for a contaminant, excluding a Class 2 site responsible party or a party already subject to a cleanup order for a site) and for sites with a current RCRA (hazardous waste management) permit. The continuation of this broader eligibility is critical to promote cleanup and redevelopment activity at sites that are not subject to ongoing state-supervised remedial or enforcement efforts.
- The bill would modify the definition of a brownfield to include sites where actual or suspect surface or subsurface presence of contamination – including contamination caused by “historic fill” – complicates its redevelopment or reuse, and where the site is abandoned, significantly underutilized, or functionally obsolescent. The Business Council urges the Senate to also consider acceptance of a federal or state environmental or health based standard as a criteria for determining program eligibility. We believe these changes will create a less subjective determination of eligibility, thereby giving greater certainty to program applicants.
- It would increase the base site preparation and tangible property credit from 12 to 14 percent; allow an additional 2 percent credit for “Track 2” cleanups; and increase the additional credit for unrestricted cleanups from 2 to 3 percent. These changes will provide an incentive for higher categories of site use-based remediation (unrestricted, residential, commercial, industrial).
- It allows for municipalities to adopt and implement a local brownfield program, if approved by the DEC. Applicants receiving locally issued certificates of completion would be eligible for state liability protection, but are not eligible for tax credits. Applicants would have to request another certificate of completion from the state to be eligible for the tax credits. We believe that this provision will provide an alternative brownfield cleanup oversight program for lesser contaminated sites that choose to not seek eligibility for remediation or redevelopment tax credits.
In summary, this bill addresses several key program reform issues for the state's business and development community. It maintains broad program eligibility and avoids imposing a “but for” test that would impose significant uncertainty on the availability of investment tax credits.
On balance, this legislation represents positive program reforms, and The Business Council recommends approval of S.8480A.