What s New in New York s State Superfund Environmental Restoration and BCP Programs

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1 What s New in New York s State Superfund Environmental Restoration and BCP Programs Edward F. McTiernan. Key Environmental Issues in US EPA Region 2 May 29, 2014 Columbia Law School 435 West 116 th Street New York, New York

2 New York s Superfund Class 2 Sites Program $20 to $30 Million Annual Clean-up Budget $750 Million Annual Commitment (under order to DEC) Policy Initiatives Guidance to DEC staff on cleanups for soils contaminated with radioactive materials -4/30/13 Cost Recovery Efforts National Heatset EDNY 4/25/14 Litigation CERCLA Limitations Periods -Millennium Realty -2nd Cir. 10/15/13 Listing -ELG Alloys App. Div. 3 rd Dept 4/10/14

3 ERP Program Grants to municipalities to reimburse up to 90 percent of on-site eligible costs and 100% of off-site eligible costs New Yorkers approved a $200 million Environmental Restoration Fund as part of the $1.75 billion Clean Water/Clean Air Bond Act of 1996 (1996 Bond Act) Enhancements to the program were enacted in 2003

4 Brownfields Numbers Continue to grow Total Applications Approved (since inception)~ 510 Total Brownfield C-o-Cs signed ~150 (51 in DEC Region 2)

5 What s New for the BCP Updated Document Templates -later this year : Site Management Plan (SMP) Periodic Review Report (PRR) DER Issues Beneficial Use Determinations (BUDs) for BCP Sites one stop no longer need to go to the Division of Materials Management for these determinations Typically used for alternative grading (fill) material

6 What s New for the BCP Easement Streamlined No ALTA survey required Short Form Amendment Can be initiated by Applicant Used to: Add/Subtract/Substitute Parties Change Names of Parties Minor Site Boundry Changes Changes to Definition of Existing Sites

7 Pressure To Reform The New York State Tax Reform and Fairness Commission found that eligibility for the BCP Tangible Property Credit needed to be amended to prevent development that would have gone forward without tax credits from taking advantage of the program

8 Issue 1: BCP tax credits will sunset on December 31, 2015 If they sunset, potential economic development will be lost Brownfield sites will remain fallow or be developed without appropriate environmental cleanup and oversight A greater burden will be placed on the Statefunded Superfund cleanup program, instead of being cleaned up by the private sector

9 Issue 2 : All projects get tangible property tax credits for development costs Not focused on sites in blighted or lowincome neighborhoods or otherwise needing tax credits to advance Windfalls can go to projects that do not need state assistance to advance and are in strong real estate markets

10 Issue 3: Site Preparation Credits cover more than remediation cost Currently, any costs associated with preparing a site are eligible for the Site Preparation Credit Limit this credit to cleanup costs Site preparation costs are the basis for calculating the cap on the Tangible Property (redevelopment) Credit, so that cap is higher than it should be

11 Issue 4: Current BCP only path to a liability release from the State For many sites, a liability release is needed to get financing for the redevelopment Stakeholders have signaled that tax credits are less important than the release of liability at some sites

12 Issue 5: Many sites with NO cap on tax credits still have not been cleaned up Approximately 100 sites started in the BCP before 2008 when the caps were imposed and are still in the program but have not completed cleanup Many are likely to go beyond the current Dec sunset date and remain eligible for unlimited tax credits

13 For More Information on the What s New Topics see the COC Meeting Presentations on DEC s Web /remediation_hudson_pdf/cocprocess.pdf

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