DEC Issues Notice of Availability of Proposed Program Policy for Real Property Eligibility Opinions for the Brownfield Cleanup Program
In November 2009, DEC issued a notice that it has prepared a proposed Program Policy that outlines the procedures and circumstances under which it will issue an opinion on eligibility for participation in the Brownfield Cleanup Program (BCP) relative to real property within a Brownfield Opportunity Area (BOA) study area or designated BOA pursuant to General Municipal Law § 970-R.
Upon a request submitted in accordance with this policy, DEC will issue an eligibility opinion limited to whether such real property satisfies the definition of a “brownfield site” set forth at Environmental Conservation Law (ECL) § 27-1405(2). The evaluation will be performed in conformance with the applicable statute, regulations and BCP eligibility guidance. In further recognition of the beneficial role the BCP can play in advancing the goals of the BOA Program, DEC will provide for early BCP eligibility opinions relative to real property within a BOA study area or designated BOA, thereby facilitating the marketing, reuse and redevelopment of properties within the BOA Program. It will establish a process that is easy to use and available before a site owner or developer is prepared to propose an actual project or submit an application for participation in the BCP. An early eligibility determination under this policy will increase the certainty and predictability that developers need before investing in contaminated real property, and will reduce the time required to process an application when participation in the BCP is ultimately sought.
The procedures set forth in this policy document are intended for the use and guidance of both DEC personnel and those seeking a determination under the policy. The policy is not intended to create any substantive or procedural rights enforceable by any party in administrative or judicial litigation with DEC and DEC reserves the right to vary these procedures to address site-specific circumstances, and to revise them as it deems appropriate based on changes in law or its experience in implementing the policy.