DEC Misses Deadline for Finalizing Underutilized Definition

As we have previously discussed, the 2015 Brownfield Cleanup Program (BCP) reforms that removed the tangible property cost (TPC) tax credit as an “as of right” benefit for NYC brownfield sites required NYSDEC to issue proposed definitions of “underutilized” and “affordable housing” by mid-June and to  finalize the definitions by October 1st. The agency met the first deadline but failed to issue final definitions by the October 1st deadline.

Indeed, sources tell us that the NYSDEC plans to issue a revised definition of “underutilized” within a month that will be subject to another round of public comments. On the one hand, this is good news since it means that NYSDEC has realized that the proposed definition was unreasonably narrow. All of the speakers at the public hearing criticized the proposed definition but there was concern that NYSDEC was going to publish the rule on the grounds that it would be able to withstand any legal challenges. Hopefully, the agency’s revised rule will be more reasonable.

However, what this means for new applicants is unclear.  Under the 2015 BCP reforms, applicants seeking to qualify for the TPCs must indicate at the time of their applications that they are seeking TPC determinations.  Will NYSDEC process applications seeking a TPC determination and accept them  without the applicant knowing it is entitled to TPC? Will  NYSDEC put a freeze on applications seeking TPC determination? Will NYSDEC allow the applicants to seek a determination after acceptance. Having missed the deadline, can new applicants claim the TPCC changes are not in effective so that they should be entitled to the TPCC as of right? stay tuned.