The New York State Department of Environmental Conservation (NYSDEC) revealed its revised Brownfield Cleanup Program (BCP) application which reflects changes made the recent Budget agreement. We previously discussed the revisions to the BCP here. The revised application which took effect on April 25th is available here .
The revised form require applicants to provide new and more detailed information. It also provides for the new $50K application fee that is due upon receipt of acceptance from NYSDEC for applications submitted on or after April 25th. The legislation provides that the applicants may seek a hardship waiver from the application fee and directed the agency develop regulations to determine the circumstances when hardships will be granted. Until the regulations are issued, the NYSDEC will consider waiver requests on a case-by-case basis.
The application instructions have been significantly revised to help applicants provide the new required. One of the most important sections of the revised application instructions is section VIII which guidance on how applicants may seek a waiver of the application fee. The instructions state that applicants need to demonstrate that the application fee will make remediation of the brownfield site economically unviable and suggests documentation that could be used to demonstrate financial hardship such as tax returns with applicable schedules, financial statements and balance sheets, proof that the applicant has waived its right to tax credits and other documentation that is acceptable to the NYSDEC.
Since the application fee is a new feature of the BCP, the agency will admittedly be on a learning curve as it better understands the types of projects that may seek fee waivers and the factors that may pose financial hardships. Once the NYSDEC develops a better understanding on factors causing financial hardship, it will provide additional information to the regulated community. Hopefully, the agency will decide to waive the fee for affordable housing projects and allow applicants to make payments over time, perhaps when submissions are delivered to NYSDEC for review and approval.
In the meantime, applicants and their professional advisers should carefully review the revised application instructions to minimize delays in the application process.