The Real Estate Board of New York to The New York State Department of Environmental Conservation on the Proposed Regulations to 6 NYCRR Part 375 Environmental Remediation Program

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REBNY thanks the New York State Department of Environmental Conservation (DEC) for the opportunity to comment on the Part 375 Brownfields amendments. Our members are frequent users of the Brownfield Cleanup Program and are deeply invested in the environmental and economic well-being of New York.

While we acknowledge the intent behind these amendments to enhance the effectiveness and efficiency of the Brownfields Cleanup Program (BCP), we urge the NYS Department of Environmental Conservation (DEC) to carefully consider certain provisions that may inadvertently hinder the program's objectives or impose undue burdens on stakeholders.

More specific recommendations are outlined in detail below.

§ 375-3.3(a)(4) – BCP Eligibility – Factors to determine if a Site Requires Remediation

REBNY suggests modifying the proposed amendment to provide clearer guidance on how to determine whether a site requires remediation. The new five factors for determining eligibility are overly ambiguous and rely on DEC personnel to determine the necessity of remediation. The current language grants subjective authority to DEC, deviating from the statutory criteria outlined in the Environmental Conservation Law § 27-1407(1). That statute outlines that for remedial work the DEC must determine “eligibility and the current, intended and reasonably anticipated future land use of the site pursuant to section 27-1415.” The DEC should revise the amendment to avoid inconsistencies and align with statutory provisions so that owners and developer can have more certainty as they evaluate potential projects. Financial institutions may be hesitant to commit resources to projects where the criteria for eligibility are subjective and unpredictable, potentially slowing down the pace of redevelopment efforts.

§ 375-3.2(e) – New Definition of Cover System Requirements or Site Cover

REBNY believes the proposed amendment is generally a welcome change that could be improved if several technical issues are addressed. . First, it is not necessary to include that sites must abide by fire safety and building code measures. DEC should anticipate that all sites will meet local laws given that projects will not be allowed to proceed without obtaining that local approval. Second, there is language in subparagraph two that sites may use a “hardscape cover system consisting of other materials and components where such component already exists or are a component of the redevelopment.” This clause is not necessary as hardscape materials that already exist on the site should clearly be considered as physical barriers (such as building foundations or sidewalks).

§ 375-3.8(e)(1) – Conditional Track One Cleanups

We urge DEC to preserve the existing amendment language allowing for Conditional Track One cleanups. Conditional Track One is a new designation that allows certain contaminated sites to receive a Certificate of Completion (COC) under Track One despite the use of short-term institutional or engineering controls, provided that the remedial objectives are expected to be met within five years. Maintaining flexibility in cleanup track options is essential for achieving remediation objectives and promoting equitable redevelopment in impacted communities. The designation provides flexibility for sites with ongoing remediation efforts, particularly those dealing with soil vapors or groundwater contamination. The amendment acknowledges that some remediation activities may take time to complete. We recommend that the existing regulations permitting Conditional Track One cleanups continue to be implemented.

Thank you for considering our comments and recommendations.