In our most recent post, we discussed the change in the credits allowed to brownfield developers under the new statute. We now turn our attention to monitoring requirements and the reporting thereof, and other aspects of the new law. To aid in the monitoring the brownfield program, the amendments introduce several distinct reporting requirements:
For the applicant:
Every year for 11 years, the applicant will have to submit information to NYSDEC concerning the amount of state and local taxes generated by the brownfield site and real taxes paid with respect to the site.
Every year, NYSDEC, in consultation with the commissioner of taxation and finance, must submit a Brownfield Cleanup Program Report to the governor and other key members of the New York State executive and legislative branches, and the New York State Brownfields Advisory Board. The Cleanup Program Report must contain the number of requests for participation, the number remedial investigations commenced and completed, number of requests withdrawn or terminated, the length of time between the request and the COC and other important information as set forth in the new law.
Additionally, every year, NYSDEC must publish the Brownfield Credit Report, which will provide detailed information concerning the credits claimed under the program based on information filed with NYSDEC during the previous year. This report is supposed to aid in analyzing the effects of the program.
The Brownfield Amendments also establishes the New York Brownfields Advisory Board out of selected members of the government plus at-large members appointed by the governor (upon recommendations from key legislative officials). It is intended to be a working forum to exchange views, concerns, ideas, information and recommendations concerning the brownfield cleanup program. Starting in 2009, the Advisory Board must submit an annual report to the governor and the legislature on the implementation of the brownfield cleanup program and its recommendations regarding the program and its funding sources.
Lastly, the legislature has transferred responsibility for operating BOA from NYSDEC Commissioner to Secretary of State so that NYSDEC does not have to make decisions on economic development issues.
It is worth noting that the new law did not amend the program's eligibility requirements, which have been much criticized in the past. However, as future posts will point out, the courts have had much to say about how NYSDEC has applied eligibility requirements to deny admission into the brownfield program.