Governor Cuomo Proposes BCP Reform: Déjà vu all over again?

Governor Andrew Cuomo  unveiled his 2015-16 budget on January 21st. As anticipated, the budget contains sweeping reforms to the Brownfield Cleanup Program (BCP) in Part R of the Revenue Article VII Legislation. The BCP amendments are substantially similar to the changes proposed in 2014 which some tweaking around the margins.  Click here for a copy of the proposed BCP changes. 

The amendments would become effective on April 1, 2014. This means that applicants would have to be accepted into the BCP prior to that date to remain eligible for the site preparation and tangible property tax credits as a matter of right. Following are some of the highlights of the proposed changes to the BCP. 

1. Brownfield Site (§2) -The proposed legislation changes the definition of brownfield to a site where contaminants exceed “soil cleanup objectives or other health-based or environmental standards, criteria or guidance” adopted by NYSDEC for the reasonably anticipated use. It is unclear if the “reasonably anticipated use” is to be determined by current zoning or the proposed use set forth in the BCP application.

If adopted, this definition will mean that applicants will probably need to have completed phase 2 reports prior to submitting applications. Indeed, §3 of Part R provides that applicants “shall” submit an investigation report sufficient to demonstrate that the site requires remediation in order to meet the remedial requirements of this title.

The revised brownfield definition does not require the contamination to be from an on-site source which represents a significant eligibility expansion since applicants are currently required to establish an on-site source of contamination to be eligible for the BCP.  Instead of excluding these sites from the BCP, the proposed bill would simply prohibit applicants of these sites from claiming tangible tax credits for addressing such contamination.  For example, an applicant who would have to install an sub-slab depressurization system (SSDS) to address vapors from contaminated soil gas because of a plume that originated from an adjacent dry cleaner could enroll in the BCP and be eligible for site preparation costs tax credit but not for the tangible property tax.

 2. Class 2 Sites (§2)- The original BCP legislation contained a six-month amnesty period for class 2 superfund sites to apply to the NYSDEC that expired in July 2004.  Since then, class 2 sites have been ineligible for the BCP even when an innocent party sought to redevelop the property.

The proposed change would allow class 2 sites owned by parties who are determined to be “volunteers” to be enrolled in the BCP. If a volunteer is under contract to purchase a class 2 site, the site would be eligible for the BCP only if the NYSDEC has been unable to identify a PRP with the ability to pay for the investigation or cleanup of the site.

3. Tangible Property Tax Credit Eligibility Changes(§3) -Like the 2014 proposal, the Governor would limit eligibility for the tangible tax credit to three categories of sites, projects or areas of the state that are believed to need the tax credits to incentivize redevelopment. The three criteria are: (i) at least half of the site area is located in an environmental zone (En-zone); (ii) the projected costs of the investigation and cleanup based on reasonably anticipated use exceeds the certified appraised value of the property in a “clean” condition; or (iii) the project is an affordable housing project.

Note that the proposal changes the definition of an En-Zone definition. The Commissioner of the Department of Labor is to identify En-zones based on 2009-2013 American Community Surveys and is required to update the En-zones upon request of the NYSDEC. In addition, NYSDEC is to advise the applicant if the site is located in an En-Zone when the agency determines that the application is complete.

Applicants seeking to qualify for the tangible property tax credit will have to submit information sufficient to establish that the site qualifies for one of the three categories of eligible sites. An applicant may request an eligibility determination for tangible property credits at any time from application until the site receives a certificate of completion. NYSDEC will notify the applicant upon acceptance into the BCP if the project meets the criteria for qualifying for the tangible property tax

Sites are not eligible for the tangible property tax credit where the contamination is SOLELY from an off-site source or the on-site contamination was previously remediated and the cleanup is suitable for the proposed development.

Other changes to the tangible property tax credit made in other sections of Part R include:

  • the base tangible tax credit now begins at 10% (current corporate tax payers may claim a base credit of 12% while individuals begin with 10% base)(§25);
  • Eligible tangible property eligible costs shall not include payments made to “related” parties(§21);
  • Eligible tangible property costs are limited to costs “associated with actual construction of tangible property incorporated into the physical structure and costs associated with the foundation of any buildings constructed as part of the site cover that are not properly included in the site preparation component” (§21);
  • If the property was put into use prior to the issuance of the COC, the tangible property tax credit may be claimed for up to five years from start of the “redevelopment of the site provided the redevelopment starts within ten years of the issuance of the COC(§21);
  • In calculating the so-called “soft cap” ( 3x site preparation costs), applicants may use on-site groundwater remediation costs and costs that would not have been  ”expensed” and deducted for purposes of the IRS 198 brownfield tax credit (§22);
  • Applicants seeking to qualify for the tangible property tax will be required to prepare two remedial alternatives with one being a track 1 cleanup (§9);
  • An extra 5% tax credit would be available for the following projects: affordable housing (based on square footage of the total affordable housing units, sites located in En-Zones, sites located within a BOA that conform to the BOA plan, and for sites used primarily for manufacturing activities(§25);

4. Site Preparation Tax Credit Changes– This tax credit has applied to costs incurred to qualify a site for a COC and to prepare a brownfield site for redevelopment (i.e., erection of a building or portion of a building) that are “properly chargeable” to a capital account. Examples of eligible costs include demolition, excavation, dewatering, temporary wiring, scaffolding, sheeting, fencing and security.

The proposed legislation clarifies that eligible site preparation costs are limited to costs directly associated with actual site preparation-related construction, including costs associated with all requirements of site remediation and easements such as architectural and engineering fees, appraisal, surveys, soil borings/other investigations, legal fees associated with any environmental easement required, operation, maintenance and monitoring of treatment systems, testing for asbestos or lead paint, legal fees associated with construction loan closing, cost certification and insurance(§27).

Other provisions relating to the site preparation tax credit include:

  • The costs must now be “charged” to a capital account and must be paid by the applicant within six months of the date the expense is incurred by the taxpayer;
  • Eligible site prep costs shall not include payments made to “related” parties;
  • Eligible costs would also include activities undertaken under the oversight of the Department of Labor or in accordance with standards established by the Department of Health to address asbestos, lead-paint or PCBs;
  • For a building foundation, only those costs equivalent to the cost of a site cover for the area covered by the foundation shall be eligible for the site preparation costs;

 5. Track 1 Cleanups With Controls(§10)– If a BCP project has to use institutional or engineering controls, it is not eligible for a track 1 cleanup which allows for a higher site preparation cost tax credit and a 2% bonus for the tangible property tax credit. Where all the contaminated soil has been removed but elevated levels of contaminants remain in groundwater, the NYSDEC has been willing to approve conditional track 1 cleanups if there has been a significant reduction in the contaminant mass and contaminant levels have reached asymptotic conditions. Under this approach, the applicant will have to record an environmental easement and continue to monitor groundwater for five years. However, if the contaminant concentrations remain above groundwater standards after five years, the cleanup would revert to a lower cleanup track that could cause recapture of tax credits.

The proposed legislation will allow sites to qualify for an unconditional track 1 status where engineering or institutional controls are required for more than five years solely for groundwater remediation where the bulk contaminant concentrations have been reduced to asymptotic levels or to address vapor intrusion.

6. Transfer of COCs (§14)  The proposed legislation clarifies that COCs may by the applicant or subsequent holder of the certificate of completion to a successor to a real property interest, including legal title, equitable title or leasehold, in all or a part of the brownfield site for which a COC was issued. However, A COC shall not be transferred to a responsible party.

 7. BCP-EZ program (§18) The proposed amendments would create a streamlined remedial program that would be called the BCP-EZ program. Applicants that qualify as “volunteers” under the BCP would be exempt from certain procedural requirements for implementing remedial investigations and remedial actions for sites where the contamination does not pose a significant threat provided the applicant waives rights to any tax credits and the work satisfies the technical requirements of Part 375. The applicant would be eligible to receive a COC after the NYSDC accepts a certification by the applicant that the remediation requirements of this title have been achieved and an environmental easement, if necessary, has been created and recorded. NYSDEC would have to promulgate regulations implementing the BCP-EZ program.

8. VCP Applicants– The bill contains a curious provision that authorizes NYSDEC to accept BCP applications from parties currently enrolled in the old administrative voluntary cleanup program (VCP). However, such applicants would not be eligible for any brownfield tax credits. It is unclear why the Governor or NYSDEC believes a second non-tax credit program is required.

 9. Oversight Costs (§47) Because both the NYSDEC and the New York State Department of Health (NYSDOH) play a role in the state remedial programs, oversight costs can be significant especially for larger projects. Under the proposed bill, volunteers will no longer be required to pay oversight costs on or after April 1, 2015. This exemption applies both to applications submitted after April 1, 2015 as well as sites accepted into the BCP prior to April 1, 2015.

Parties that are accepted into the BCP as “participants” will be required to pay the NYSDEC for past costs incurred prior to the effective date of the brownfield cleanup agreement. However, the proposed amendment provides that NYSDEC could negotiate a “reasonable” flat rate fee for future oversight costs. (§7)

10.  New COC Deadlines (§31)- Under existing law, BCP sites have to obtain their COCs by 12/31/15 to qualify for the brownfield tax credits (BTCs). The Governor’s proposal would allow applicants accepted before 4/1/15 to have an extra two years to obtain their COC (12/31/17)  to remain eligible for the BTCs.  If an applicant accepted prior to 4/1/15 does not obtain a COC by 12/31/17, it would only be able to be eligible for tangible tax credits if it qualifies for the post 4/1/15 criteria. Sites accepted into the BCP before 12/31/22 will have until 12/31/25 to obtain their COCs and qualify for BTCs.

11. .Hazardous Waste Generation Fee Exemption (§§ 38 & 39)- Urban sites often contain significant swaths of fill material that may contain constituents such as heavy metals, semi-volatile organic compounds (SVOCs), petroleum and lead-based paint from demolished buildings. As a result, construction projects in urban areas can generate large quantities of excavated soil that may have to be managed as hazardous waste. Having to dispose soils and building debris as hazardous waste not only significantly increases disposal costs but can also trigger two types of state hazardous waste fees: a hazardous waste program fee and a special tax assessments. Depending on the size of the site or the depth of the excavation, the hazardous waste fees can approach or even exceed the total remediation costs.

Under current law, generators of hazardous remediation waste are exempt from paying the hazardous waste tax or program fee exempt if the remediation is performed under the state superfund program or BCP. However, projects enrolled in the Voluntary Cleanup Program (VCP) administered by the New York City Office of Environmental Remediation (OER) are not exempt from the tax or fee.

The proposed amendments would exempt remediation wastes from the state hazardous waste generator fee that are generated for cleanups performed under an agreement with EPA, pursuant to an order issued by a court or an agreement with a municipality such as OER that has entered into a memorandum of agreement with NYSDEC.

12. Miscellaneous Changes- Other notable changes include:

  •  The NYSDEC will now have 30 days to determine if an application is complete (§4). In the acceptance letters, the NYSDEC will advise the applicant if it has met the qualifying criteria for the tangible property tax credit (§6);
  • The NYSDEC may reject a BCP applicant if the applicant had another site in a NYSDEC remedial program that was terminated by NYSDEC or a court for failing to substantially comply with an order or NYSDEC oversight agreement (§6);
  • Applicants must implement work plans within 90 days of approval and complete the work in accordance with the schedule set forth in the document (§8);
  • Applicants must execute environmental easements within 180 days of commencement of the remedial design or at least 90 days prior to the anticipated issuance of the COC (§11);
  • COCs will now include the date of the brownfield cleanup agreement (BCA); the names of the parties eligible for the tax credits and the applicable percentage available as of the date of the COC(§13);
  • Final Engineering Reports would have to describe any interim remedial measures (IRMs) and the costs of the IRMs(§13);
  • COCs may be revoked or modified if DEC determines that the applicant made a misrepresentation of material fact concerning its status as a volunteer or its eligibility for the tangible tax credits. There was already a revocation for misrepresentation about the applicants qualification for volunteer status (§14);
  • A COC may be revoked if the environmental easement no longer provides effective enforcement mechanism for ensuring performance of the remedy(§14);
  • NYSDEC is exempt and authorized to grant waivers from local permits extends to investigations or remediation for contamination migrating from a brownfield site (§16);
  • NYSDEC is expressly authorized to inspect sites for compliance with site management plans including evaluating operation and maintenance of remedial components, confirming site use and collecting samples (§17);
  • The Brownfield Advisory Board is abolished (§29);
  • The insurance remediation tax credit and the real property tax credit are repealed due to lack of interest (§31);
  • Municipalities seeking to apply for funds from the Environmental Restoration Program (ERP) will now have to assist NYSDEC in identifying potentially liable parties by searching local records including property tax records. The amount of any assistance provided to the municipality would be adjusted if the payments are received by responsible parties. NYSDEC may implement an ERP project on behalf of a local government provided the municipality periodically pays its share of the costs to the state (§42).

The Governor’s budget includes a new $100 million appropriation to extend the State Superfund cleanup program for ten years. The lack of  superfund funding had been a key obstacle in 2014.

The Constitution authorizes the Governor to amend the Executive Budget within 30 days of submission, allowing for technical corrections and revisions based on the latest information. However, to help achieve timely budgets, the 2007 Budget Reform Act requires the Executive, to the extent practicable, submit any necessary amendments within 21 days. After the 21 day period, the legislation will be formally submitted to the Legislature.

We will provide further updates and commentary on the 2015 BCP reform proposals