Guest Column: NYSDEC Brownfield Cleanup Program Amendments - Key Changes for Orange County Development

By: James S. Arrabito, Esq., Partner - Mahon | Rider | McKay

The New York State Department of Environmental Conservation (“NYSDEC”) recently adopted significant amendments to its environmental remediation regulations that should be on the radar of every developer, property owner, and economic development professional in Orange County. The changes to 6 NYCRR Part 375, which govern the Brownfield Cleanup Program (“BCP”) and Environmental Restoration Program, create fresh opportunities for transforming contaminated or underutilized sites into productive assets, particularly for renewable energy and advanced manufacturing.

 

What Changed and Why It Matters

 

The revised regulations, effective December 31, 2025, modernize facets of NYSDEC’s most successful remediation program, the BCP. The BCP has catalyzed the successful remediation of thousands of sites across New York while generating billions in private investment. For Orange County, several changes stand out.

 

Change of Use Clarifications. The amendments clarify the “change of use” framework by: (i) substantially altering the definition of a “change in use”; (ii) allowing notice to include a work plan or identification of an existing approved work plan/Site Management Plan (“SMP”) section covering the activity; (iii) allowing NYSDEC to waive a work plan where no physical alteration occurs; and (iv) removing the need for a separate change-of-use notice if post-cleanup work is already included in the SMP and the SMP’s notification procedures are followed. This can reduce administrative hurdles for post-cleanup owners, but only if the SMP is drafted carefully and used consistently.

 

Renewable Energy Gets a Formal Definition. The amendments formally define “renewable energy facility site” within the BCP framework, clarifying the pathway for developers seeking tangible property tax credits when converting contaminated land to solar arrays, wind facilities, or co-located energy storage. This codification provides greater certainty for projects turning brownfields to brightfields, an approach that continues to gain traction in Orange County.

 

Clearer Eligibility Standards. The regulations tighten BCP eligibility criteria, requiring applicants to demonstrate that a site genuinely “requires remediation” based on its anticipated future use. While this may add an upfront hurdle, it also provides developers with greater confidence that accepted sites will qualify for the program's valuable tax credits upon completion.

 

Habitat Reconstruction Requirements. The new regulations add provisions requiring remedial programs that disturb regulated habitats to include reconstruction plans specifying in-kind replacement of habitat structure and function. For Orange County sites near wetlands, streams, or other sensitive ecological areas, this formalizes what was previously handled case-by-case and should be factored into project planning and budgeting. This is particularly important in light of the recent expansion of wetlands designations by NYSDEC.

 

Streamlined Environmental Easements. Previously, nearly every BCP cleanup required placement of an environmental easement on the site. Now, for sites where the only use restriction is a prohibition on groundwater use, easements are no longer required if the site’s municipality already has such a restriction in place in its municipal code. This reduces administrative burden and can accelerate project timelines. Projects in areas like the cities of Newburgh and Middletown, which rely heavily on municipal water service and have a code restriction on new private potable water wells, might benefit from this rule change.

 

The amendments also introduce new requirements of which developers should take note. Applicants must now conduct their own potentially responsible party searches. The “Conditional Track 1” cleanup designation has been eliminated, requiring site developers to demonstrate bulk reduction of groundwater contamination within five years to achieve the highest tax credit tier. These changes underscore the importance of engaging experienced environmental counsel and consultants early in the due diligence process.

 

Strategic Implications for Orange County

 

These regulatory changes arrive at an opportune moment. The Orange County Partnership and Orange County Industrial Development Agency have been actively positioning the region as a hub for advanced manufacturing, clean technology, and semiconductor supply chain companies. BCP-participating sites complement these efforts by providing shovel-ready inventory without consuming productive farmland. For property owners sitting on contaminated parcels, the BCP continues to offer compelling incentives: tax credits that can offset a substantial portion of remediation costs, liability protection upon completion, and enhanced marketability through state certification.

James S. Arrabito is a Parter at Mahon, Rider, McKay, Bauer & Furst, PLLC, focusing on commercial real estate, environmental law, and renewable energy.