The NYCBP Legislative/Policy Committee held a conference call on June 26, 2018, with a really full agenda. Chairman David J. Freeman, Esq. asked that this information be shared with the entire membership of the Partnership. If you are interested in these topics, please join the Legislative/Policy Committee and become active in its work.

New York State

1. The NY Construction Materials Association’s Part 360 lawsuit resulted in settlement discussions with NYSDEC and the Attorney Generals’ office. The most recent meeting happened on June 21, 2018. An important aspect of the settlement was that the settlement agreements would be legally binding (court ordered) stipulations and would be posted on the NYSDEC website. 11 agreed-upon implementation issues were posted on NYSDEC’s website yesterday. Both sides (NY Materials and DEC) have agreed that “plain language” versions must be developed before the work is finalized. Here is a link to the stipulations as posted on the NYSDEC website: https://www.dec.ny.gov/regulations/81768.html
2. Rick Clarkson of NYSDEC’s presentation on 360 Revisions was shared by the CCLR, a like-minded non-profit organization that partners with the NYCBP on the exchange of information and ideas. Click here to view the presentation.
3. CCLR also shared Governor Cuomo’s Press Release on new Brownfield Opportunity Area program designations. Click here to view the Press Release.
4. Two pieces of legislation, S8636A as passed in the NYS Senate and the “long bill” (A10954) introduced in both houses and referred to Environmental Conservation committees can be accessed here: S8636A and A10954.

NYCBP Legislative/Policy Committee member, Phil Bousquet, Esq. provided comments on the ”long bill;” this information may ease your reading of it.

“There is a typo on page 4, line 46 – the language should read “Site preparation cost *shall* include the costs of remedial action cover systems …” [i.e., replace “shall not” with “shall”]. As it currently reads, “shall not include” directly contradicts the addition of “remedial action” at line 30 on that same page. My understanding is that the failure to delete the word “not” is simply a drafting oversight that will be corrected.

With that one exception the Tax Law changes in the long bill should work well as written, and the underlying (and closely knit) ECL changes would be very helpful to clarify questions that I often encounter in practice when helping clients understand the scope of remedial activities going into the site prep credit calculation.

The effective date language in the long bill is confusing, and I’m not quite sure what the drafter intended it to mean. If the idea is that the amendments are to supersede any prior definition or interpretation of the definition by the NYS Tax Dept, then that is helpful. However, my guess is that the drafter would not want taxpayers whose site preparation claims have been finally determined (after audit and after any appeals are closed off) to somehow have a “reopener.” Conversely, for taxpayers whose site prep claims have NOT been finally determined, the new definition should definitely apply, because this bill is intended to correct the Tax Department’s ongoing misreading of the definition. The effective date language in S8636A addresses these points, and should be worked into the “long bill” before reintroduction in the next term. “

Federal

USEPA is seeking comments on 3 aspect of brownfield funding in the BUILD Act. See the Federal Register notice sent by Larry Schnapf, Esq., NYCBP Legislative/Policy Committee member, who, in addition to Chairman David Freeman and the Gibbons Environmental Law group, is keeping the NYCBP updated regularly on federal activity on brownfields, including the Superfund Task Force’s efforts to make those sites available for redevelopment. Click here to view EPA BUILD Act and Brownfields.