Much has been written about the perceived deficiencies of New York State’s Brownfield Cleanup Program (BCP) (ECL Article 27, Title 14), as well as the frustration felt by many in the way that the program has been administered by the Department of Environmental Conservation (DEC). The tax incentives contained in the BCP turned out to be far more expensive for the state than had been anticipated when the statute was enacted.
In response to this fiscal miscalculation, DEC implemented criteria that made it harder for properties to qualify for participation in the BCP; harder, many argued, than the Legislature intended. As a result, many properties that appeared to meet the statutory definition of a brownfield, even some that seemed to epitomize the type of property that the BCP was designed to benefit, were excluded from participation, and, therefore, excluded from the substantial benefits, incentives and protections offered by the program. BCP amendments enacted in 2008 mitigated the state’s financial exposure, but did nothing to resolve the debate over program eligibility.
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