Objective

To determine whether the Department of Environmental Conservation (DEC) is effectively administering and monitoring the Brownfield Cleanup Program in accordance with requirements. The audit covered the period from January 2019 through January 2025.

About the Program

Brownfields are properties where a hazardous substance is present at levels exceeding DEC cleanup standards or other health-based or environmental standards applicable to the expected use of the property (e.g., residential or commercial). These substances may pose a range of hazards to human health and the environment, but left vacant, contaminated sites can also diminish property values and threaten the economic viability of surrounding properties. The U.S. Environmental Protection Agency estimates that there are more than 450,000 brownfields in the United States.

DEC’s Brownfield Cleanup Program (Brownfield Program) was established to encourage and accelerate voluntary private-sector cleanup and redevelopment of brownfield sites through incentives including technical assistance, tax credits, and liability relief to assist developers in cleanup efforts. Prior to the Brownfield Program,¹ owners of contaminated properties in the State were held liable for cleanup costs, regardless of when or how the properties were acquired relative to the contamination. This responsibility—in addition to the potential cost of cleanup, which may not be known at the time of acquisition—contributed to developers’ reluctance to purchase even minimally contaminated sites. Although redevelopment of sites is not a requirement of the program, DEC officials state that remediation of sites makes them more attractive to potential buyers by removing a barrier to redevelopment.

Individuals interested in the Brownfield Program must submit an application to DEC. Upon approval, DEC formalizes program participation with applicants by entering into a Brownfield Cleanup Agreement (Agreement) outlining site investigation and cleanup objectives. Site cleanup under remedial programs can take several years to complete. As such, DEC reviews, oversees, and tracks each site’s progress from investigation, design, and completion of each remedial measure, in addition to certifying cleanup completion and planning for any further site management needs. To track and expedite site progress, DEC officials stated staff conduct site visits, meet periodically with project managers to discuss progress and guidance on next steps, and identify roadblocks to remediation and resolutions. Failure to initiate, proceed with, or complete the remedial program in accordance with the Agreement, including schedules in approved work plans, is cause for DEC to terminate the Agreement. As of October 12, 2023, there were 669 active Brownfield Program sites in New York State.

Distinct from the voluntary Brownfield Program, the Inactive Hazardous Waste Disposal Site Program (referred to as the Superfund Program) is DEC’s enforcement program, with a goal of ensuring that hazardous waste sites that pose a significant threat to public health or the environment are properly addressed. DEC is required by law to investigate all suspected or known potential inactive hazardous waste disposal sites. Potential sites go through an environmental assessment to confirm the presence of hazardous waste and determine the level of threat posed to public health or the environment. Once the presence of a consequential amount of hazardous waste is confirmed at a site, it is added to the State’s public Registry of Inactive Hazardous Waste Disposal Sites (Registry). DEC attempts to identify the responsible party or parties for contamination, and when known, they often pay for and perform the investigation and evaluation of cleanup options. However, when the responsible parties cannot be identified, or are unable or unwilling to pay for remediation, and only after DEC makes all reasonable efforts to secure voluntary agreement with responsible parties to fund the investigation and cleanup without success, the State may use Superfund Program funds to complete investigation and cleanup.

While both programs allow owners that may be responsible for contamination of sites to voluntarily remediate, under the Brownfield Program, sites are not added to the Registry and owners receive an added benefit of being able to claim tax credits for remediation when it’s completed. Based on publicly available data provided by the Department of Taxation and Finance, between calendar years 2019 and 2022, New York saw a 60% increase in claimed Brownfield Program tax credits, totaling $1.8 billion.

Key Findings

While time needed to complete remediation varies from site to site based on the type, scope, and severity of contamination, we identified some sites in the Brownfield Program that posed significant threats to health and the environment where delays did not appear to be reasonable. We reviewed 518 active Brownfield Program sites and determined 86 sites (17%) have been active for more than 10 years. Of the 25 sites we reviewed that had been in the program between 17 and 19.5 years, DEC officials indicated that four (16%) posed a significant threat to the public health or environment and had significant delays. Reasons for delays were unique to each site and included, but were not limited to:

• Remedial actions failing
• DEC rejecting certain reports submitted by the applicant
• Owners experiencing financial difficulties that delayed progress
• General lack of progress

Additionally, between September 2018 and July 2024, we identified 27 sites that entered the Brownfield Program and had remedial activity (e.g., investigations and/or remedial actions) that could have possibly been remediated through the Superfund Program, but whose owners chose to apply for the Brownfield Program after receiving notification from DEC of the option to do so. Of the nine sites in the remedial action stage as of December 2024, we found issues with two (22%) that suggested the applicants may not have entered the Brownfield Program in good faith or entered without due consideration of the significant financial costs of the remediation. Specifically:

• For a dry-cleaning business in Brooklyn, there were multiple delays, partly the result of financial difficulties. More than 9 years after contamination was identified and more than 4 years after entering the Brownfield Program, this property had not been remediated despite being identified as posing a significant threat to health and the environment.
• Another project, a former dry-cleaning business in Westchester County, also experienced significant delays and the applicant did not adequately disclose certain factors to DEC when they applied for the Brownfield Program. Six years after the initial investigation finding new contamination and 3 years after finding evidence of ongoing contamination, the site had not been fully remediated.

Protracted cleanup efforts may unnecessarily prolong the risk contamination poses and delay opportunities for revitalization and the related economic benefits. Although time frames for project completion are outlined in Agreements and DEC work plans, DEC lacks specific policies, or other such guidance documents, that specifically communicate to project managers criteria or time frames to review project activity against expected outcomes and when to take appropriate action over a lack of progress. Instead, this is done on a case-by-case basis. Although situations are unique to each site, DEC should develop policies and/or guidance documents to assist project managers in determining when amended remedial schedules, Brownfield Program termination, or using the Superfund Program would be the most effective remedy for lack of progress.

Key Recommendation

Develop policies or guidance that communicate to project managers more specific criteria and time frames for determining appropriate progress and possible actions to ensure effective and timely cleanup for sites that pose a significant threat to health and the environment. The policies or guidance should include direction on when program termination should be considered and what circumstances might constitute lack of progress, especially in cases where DEC determines the applicant is not acting in good faith to adhere to the Agreement.

1 The Brownfield Program was modeled after DEC’s former Voluntary Cleanup Program (VCP). The VCP was established in 1994 to address the environmental, legal, and financial barriers that hinder the reuse and redevelopment of contaminated properties. Volunteers that successfully completed remedial actions received a liability release from DEC indicating no further action would be taken at the site; however, the release was not binding on other State agencies or the State’s Attorney General. As of March 2025, 314 sites were completed under the VCP.