New BCP Application Can Be a Trap for the Unwary Applicant

The New York State Department of Environmental Conservation (NYSDEC) has unveiled its revised Brownfield Cleanup Program (BCP) application to implement the sweeping changes to the BCP that became partially effective on July 1st. The new form is available HERE

The revised application requires applicants to provide more detailed information about the brownfield site, the development project and the applicant. While some of the changes reflect best practices that experienced brownfield counsel had been including in BCP applications, the bulk of the changes are designed to enable NYSDEC to determine if the site qualifies under the new brownfield site definition and if projects located in New York City will qualify for the tangible property cost (TPC) tax credit.

Because of the changes to the BCP application, it is critical that applicants ensure they engage experienced brownfield counsel to assist with the preparation of the application. The BCP application process was never purely a technical exercise and with the addition of new criteria, revised definitions and ambiguous terms, it is important that applicants ensure their applications are vetted by counsel not only to enhance eligibility but also so applicants can preserve their rights in the event of the application is denied or NYSDEC determines the project is not eligible for one of the TPC gates.

Following are some of the more significant changes to the BCP application:

Section II (“Project Description”)- this section asks for more specific information than the former Section VI. Applicants must now describe the reasonably anticipated use and benefits of the project to the community, anticipated remedial costs and cost of future development, the date that the remedial program is to start and the date the Certificate of Completion is anticipated.

For applicants that have performed remedial investigation without NYSDEC oversight (i.e., “self-directed” or “at risk” sampling) and want to enroll in the BCP to implement a cleanup, the applicant is required to confirm that the RIR meets the requirements of the ECL. The BCP application instructions require specific information for investigations that were completed without the oversight of the NYSDEC.

Section III (Property’s Environmental History”) – this part of the application has been revised to reflect the new definition of a brownfield site. The Applicant must provide sufficient information to establish the presence of contamination requiring remediation based on the reasonably anticipated use of the property as set forth in section II.

For each media that the applicant believes requires remediation, the application must now include a site drawing that includes the following:

  • Sample location;
  • Date of sampling event;
  • Key contaminates detected;
  • For soil contamination, the drawing must highlight exceedances for the reasonably anticipated use;
  • For groundwater contamination, the drawing must highlight exceedances of 6 NYCRR PART 703.5;
  • For soil gas/soil vapor/ indoor air samples, the drawing must highlight sampling results above the mitigation levels set forth in the NYSDOH vapor intrusion matrix

The application instructions caution that the drawings are to be representative of the site conditions that the applicant is using to demonstrate that the site requires remediation.

Section IV (“Property Information”) includes more questions than the old Section II and includes more extensive instructions.

  • Question 5 asks about soil vapor or groundwater contaminated from off-site sources. The reason for this question is that the 2015 BCP Amendments clarified that a site may be eligible for the BCP where there are impacts are solely from off-site sources but will not be eligible for the TPC.
  • Question 6 asking if the site was previously remediated responds to yet another tax credit limitation wrinkle by the 2015 Amendments. Sites that were remediated under the supervision of NYSDEC to a level that is consistent with the then land use will not be eligible for the TPC.
  • Question 10 (property narrative description) is no longer open ended but more proscriptive. Applicants must now provide the specific information that NYSDEC references in the application instructions.
  • Question 11 asks the applicant if it wants a determination that the project is eligible for the TPC. Note that the application instructions provide that applicants seeking to qualify for the TPC “underutilized” gate must request the determination at the time of the application. However, applicants may request determination for the other gates any time before the COC is issued.

Section VI (Current Property Owner/Operator Information where not applicant) – this part of the application are essentially unchanged from the old application but the instructions are more specific.

  • The application instructions advise applicants that they are to list ALL parties having an interest in the property. Since owners are referenced elsewhere in this instruction, this request could be construed to require applicants to identify lenders, easement holders and others with fractional property interests in the land.
  •  If the applicant is not the owner, the application not only asks to describe the relationship with the current owner but also asks if any of applicant’s corporate members has any relationship with the current owner.

Section VII (Requestor Information) – Some of the statutory eligibility questions have changed from the old application and there are two new questions.

  • Question 4 asking about prior violations includes an expanded list of violations.
  • Question 7 expands the list of criminal offenses to include handling, storing, treating, disposing or transporting of contaminants.
  • Question 8 asking if the applicants has knowingly made falsified statements or concealed material facts as been expanded to include “in any matter within the jurisdiction of DEC”.
  • Question 10 is new and asks if the applicant was previously terminated from the BCP
  • Question 11 is new and asks if all known tanks subject to the Petroleum or Chemical Bulk Storage laws have been registered. Failure to do so can cause an applicant to be considered a participant.

The old application stated that where the applicant did not own the property at the time of the application, the applicant had to provide evidence that it has access to complete the requirements of the BCP. Revised section VII provides more detail on the nature of the documentation that needs to be submitted, The application now states that the a proof must show that the requestor will have access to the property before signing the BCA and throughout the BCP project, including the ability to place an easement on the site. The application also clarifies that a purchase agreement is not sufficient evidence of proof of access.

Cautionary Note for Volunteer Applicants- The application requires applicants  to indicate if they are enrolling as a “volunteer” or “participant”Where the applicant currently owns the property and is seeking to enroll in the BCP as a “volunteer”, the application now requires that the applicant submit a statement explaining why it should be considered a volunteer and specifically identifying how it complied with the appropriate care obligations that are part of the Innocent Landowner Defense of both CERCLA and the state superfund law.

This statement is fraught  with risk to the applicant since if it cannot satisfy NYSDEC that is qualifies as a volunteer, the applicant will be deemed to be a responsible party. If the application is then denied,  the applicant could find itself subject to an enforcement action for  both on-site and off-site contamination. It would be prudent for recent purchasers of contaminated property to consult with counsel prior to submitting an application to determine if they have met the appropriate care obligations. If not, the potential applicant should work with counsel and their consultant to design a due care or appropriate care plan, and document that they have implemented prior to attending a pre-application meeting.

Section VIII (Property Eligibility Information) – The 2015 BCP Amendments provide that a site that are on the Registry of Inactive Hazardous Waste Disposal Sites as a Class 2 Site or has been issued RCRA TSDF permits pursuant to ECL 27-0900 et seq. parties that are owned by or under contract by a volunteer and there is no financially viable party at the time of the application may be eligible for acceptance into the BCP.

Thus, this section now contains questions for volunteers who wish to enroll Class 2 or RCRA TSDF sites. Volunteers are asked to provide any information available to the related to previous owners or operators of the facility or property and their financial viability, including any bankruptcy filing and corporate dissolution documentation. Like Section VII, the applicant will have the burden of establishing that it both qualifies as a volunteer and that there is no financially viable party at the time of the application.

Section IX (Land Use Factors) – This section now only has six questions. The answers that the applicant provides in this section will be used by NYSDEC to determine if the site meets the new the definition of a “brownfield site” as well as to determine whether the proposed use is consistent with the currently identified, intended and reasonably anticipated future land use of the site at this stage. Furthermore, this land use finding will be used to determine if a previously remediated site will be eligible for the TPC.

  • Question 1 asks about the current zoning. Note that if a zoning change is imminent, the applicant must provide documentation from the appropriate zoning authority.
  • Question 2 asks about current use. Applicants are expected to discuss current business operations or uses with an emphasis on identifying possible contaminant source areas. If operations or uses have ceased, applicants are asked to provide the date that operations ceased.

Note that sites that are impacted with contaminated soil gas or groundwater from an off-site source are eligible for acceptance into the BCP under the new Brownfield site definition but will not be eligible for TPC tax credits. Thus, it will be important for the application to identify potential on-site sources of contamination from the current or former uses.

  • Question 5 asks if the proposed use consistent with applicable zoning laws/maps> However, this is no longer just a “yes” or “no” question. Instead, applicants will now be expected to explain their answer.
  • Likewise question 6 asking if the proposed use is consistent with local plans, the applicant must support its answer.


Supplemental Questions for Sites Seeking Tangible Property Credits in New York City- The BCP application now contains a supplemental section for sites located in NYC  where the applicant is seeking a determination that the site one of the meets one or more of the TPC eligibility criteria set forth at ECL 27 1407(1-a).

If the applicants wants a TPC eligibility determination at the time of the application, it must mark the “yes” box in the second row. It is important to note that an application only has to mark the “yes” box at the time of the application if is seeking TPC eligibility under the underutilized category. If the applicant is plans to qualify under the En-zone, upside-down or affordable housing criteria, it can request a TPC eligibility at any time before issuance of a certificate of completion

Applicants are instructed they must provide “sufficient information” to establish that the site meets one or more of the criteria. The application instructions do not shed any further light on the kind of documentation that should be submitted.

Interestingly, the application contains the text of the definitions of “underutilized” and “affordable housing projects” that NYSDEC proposed on June 10th. A public hearing is scheduled for July 29th and deadline for submitting written comments is August 5th. If NYSDEC amends the definitions in the final rule, the BCP application will need to be revised again.

New Application Review Period and Procedure

The 2015 Amendments expanded the period that the NYSDEC has to determine if an application is complete to 30 days from ten days. As reflected in the instructions to the new BCP application, it appears that NYSDEC is formalizing the process it used to notify applicants about the status of its application.

If NYSDEC determines the application is incomplete, the agency will notify the applicant via email or phone call regarding minor deficiencies. The applicant must then submit information correcting the deficiency to DEC within the 30-day completeness review period . Applicants that fail to comply within 30 days will receive a formal Letter of Incomplete Application (LOI) that will identify the deficiencies in the application. An LOI will be issued if:

  • an application is substantially deficient;
  • the information needed to make an eligibility determination is missing or found to be incomplete,; or
  • a response to a minor deficiency is not received

If the information is not submitted within 30 days from the date of the LOI, the application will be deemed withdrawn. In this case, the requestor may resubmit the application without prejudice.

If the application is determined to be complete, DEC will send a Letter of Complete Application (LOC) that includes the dates of the public comment period

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