Phillips Lytle LLP
David P. Flynn and Luke Donigan
March 26, 2018
Real estate and other transactions often involve property that has perceived environmental concerns. There can also be parcels that have modest known environmental impacts as well, however they do not make sense for either the New York State Superfund (“Superfund”) or Brownfield Cleanup Program (“BCP”) for any number of reasons. In the past, this has often left parties (buyers, sellers, developers and lenders) in a difficult position, unable to obtain any regulatory comfort for such properties.
An emerging program overseen by the New York State Department of Environmental Conservation (“DEC Contractors”) is working to address these “in-between” sites that may not qualify for a Classification Code on the Superfund Registry of Inactive Hazardous Waste Disposal Sites (the “Registry”) or the BCP. Classification Code P (for potential) is the designation given to sites where preliminary information indicates that the site “may” have contamination that makes it eligible for placement on the Registry. So-called “P Sites” require further focused characterization investigation to determine whether the property justifies inclusion in the Registry or whether it should be given a “Class N” designation – meaning no further action (“NFA”) is required at this time.
The program uses a modified consent order, which commits the respondent to only complete work plans for Site Characterization and potential Interim Remedial Measures ((“Work Plan(s)”)). Upon satisfactory completion of the Work Plans (as well as a Site Management Plan and any required Environmental Easement), DEC will issue a Satisfactory Completion Letter, which is the equivalent of an NFA designation.
The P Site program has the potential to facilitate transactions where banks, buyers and developers may have previously been hesitant to get involved on a project simply because of too many unknowns. This program provides an opportunity to engage DEC on issues related to non-Registry sites that do not make sense for the BCP. As the P Site program becomes more well-known and better understood, it may become an important tool for developing many properties with environmental question marks.
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Flynn & Mr. Donigan and may not reflect the opinions of Synergy Environmental, Inc., Phillips Lytle LLP or either of those firms’ clients.