The Brownfield Cleanup Program was enacted in 2003 to foster private development of former brownfield parcels. The program was amended in June 2008 to cap tax credits, and those tax credits are scheduled to expire in December 2015. Unfortunately, significant state concerns exist about the scope of the available tax credits. As part of the budget proposal, the governor recommended sweeping changes to the program and an extension of the tax credits. While the BCP changes were not incorporated into the final budget legislation, they remain subject to discussion and may receive action prior to the legislative session ending in June. The main areas of concern in the BCP since its enactment have been the following: determination of site eligibility for acceptance into the BCP; treatment of background contamination for eligibility; issuance of substantial tax credits to a perceived small number of mega-projects in downstate in exchange for modest environmental remediation expenditures; and a need to foster additional development of multiple brownfields across upstate urban areas. The BCP currently provides a three-part brownfield redevelopment tax credit: a site preparation credit (ranging from 10 percent to 22 percent based on corporate status and the location of the site); tangible property costs; and on-site groundwater remediation costs. The site preparation credit may be increased based upon the future use and level of cleanup (Track 1 is the highest cleanup; Track 4, the lowest) and ranges from 50 percent for unrestricted use, 40 percent for residential use; 33 percent for commercial use, and 27 percent for industrial use. However, if a Track 4 cleanup is performed, it reduces the applicable tax credit. The tangible property tax credit was capped in 2008 to avoid excessive credits for individual brownfield projects. At non-manufacturing brownfield sites, the tax credit is capped at $35 million of the calculated tangible property credit, or three times the site preparation cost and groundwater remediation costs, whichever is less. Manufacturing sites have a tax cap of $45 million, or six times the site preparation cost and groundwater remediation costs, whichever is less. Although the maximum tax credit appears to be significant, by enacting a “lesser of” test based on the site preparation costs and groundwater costs, the Legislature significantly limited the potential tax credits for any site. In addition, the 2008 amendments created a definition of “manufacturing activities” that are entitled to the tax credits. The governor’s 2014 budget proposal included a variety of modifications to the BCP program. In order to qualify as a “brownfield,” a site would be required to have documented contamination above NYS soil cleanup standards for the proposed future use of the site. The governor proposed a new “BCP-EZ” program that allows for expedited remediation of sites, but without access to tax credits. For the site preparation tax credit available for remediation work, the proposal kept the tax credits in the existing range of 22 percent to 50 percent of the costs, depending on the scope of the cleanup. However, the governor proposed granting tax credits based on a NYS DEC approved remedial work plan. This could exclude tax credits for necessary tasks such as site investigation and IRM work that might pre-date DEC’s approved work plan. The site preparation credits were also clarified to include remediation of asbestos, lead and PCBs. The governor also proposed significant new deadlines and criteria for the tangible property tax credits. This tax credit applies to the value of buildings and improvements put in service on the brownfield. The governor proposed a bar date of July 1, 2014, so that parcels admitted into the BCP after that date would not obtain tangible property tax credits unless they seek and obtain DEC approval at the time of the application and the site meets specific criteria. The site would need to be one of the following to qualify: vacant — the property and buildings have been vacant for 15 years or more, or have both been vacant and tax delinquent for 10 years or more financially underwater — the estimated cost of the investigation or remediation for the proposed future use of the site exceeds the appraised value of the property without construction; or a priority economic development project — the project has been determined to meet certain criteria by the Department of Economic Development, including locating specific types of businesses at the parcel and the creation of 50, 100 or 300 net new jobs based on the type of business. The proposal would also exclude tangible property tax credits if the site is subject to contamination from off-site sources, or if the DEC determines that the parcel has previously been remediated so that it can be developed for its intended use. Assuming that a site qualifies for tangible property tax credit, the credit would be capped under the proposal at 24 percent based on the following components: 10 percent base credit; 10 percent if the site is in an environmental zone; 5 percent if the site is in a Brownfield Opportunity Area and the project is certified to be in conformance with the plan; and 5 percent if the site is developed as affordable housing. The governor’s proposal also set deadlines for BCP completion. Initially, sites admitted prior to June 23, 2008, would be removed if no Certificate of Completion is issued by Dec. 31, 2015. Sites admitted after July 23, 2008, but prior to July 1, 2014, would be removed if no COC is issued by Dec. 31, 2017. Further, sites accepted into the program after July 1, 2014, must obtain a COC by Dec. 31, 2025, to apply for BCP tax credits. The proposal would also preclude sites accepted after Dec. 31, 2022 from tax credit eligibility. The BCP program has provided significant economic development benefits to New York state, but particularly upstate communities. Hopefully the governor and Legislature will take action prior to the end of the legislative session to renew the tax credits and provide long-term certainty for the BCP. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

The New York State Department of Environmental Conservation is working on a new Self-Audit Policy to encourage environmental compliance. The draft policy is being finalized and is expected to be issued in the near future. The policy would apply to private industry, agricultural producers and municipalities. The purpose of the policy is to “encourage compliance with environmental laws and prevent pollution by reducing or waiving civil penalties for certain violations discovered by a regulated entity through self-audit, compliance assistance or pollution prevention activities.” The key is that the regulated entity must promptly disclose the violation to DEC and address the matter in short order. The new policy adopts portions of, but would supersede, DEC’s Small Business Self Disclosure Policy. DEC is responsible for enforcing myriad state and federal environmental laws and regulations through record-keeping, inspection and enforcement. However, budgetary impacts over the last several years have significantly reduced the DEC’s staff at regional offices across the state. Similarly, federal funding for state and local enforcement has been cut by national budget shortfalls. Consequently, according to the draft policy, DEC has concluded that “the high volume of activities potentially affecting human health and the environment as well as practical constraints, including resource limitations, compel the Department to evaluate and implement auxiliary strategies to address compliance with the Environmental Conservation Law (ECL).” DEC has also determined that pollution prevention through improved environmental compliance may increase the competitive status of New York business. The policy contains two main elements. First, under the Self-Audit Policy, an entity can voluntarily report violations of environmental laws to DEC to seek a reduction or waiver of applicable penalties associated with the violation. In addition, the policy provides a prospective process for entities that enter a Self-Audit Agreement with DEC. The self-auditing process would allow entities to access environmental compliance and performance programs offered by the state, potential incentives, additional penalty reduction opportunities and recognition as part of the state’s New York Environmental Leaders Program. There are important limitations that will apply once the policy is formally issued. First, it is a policy and is not a statute or regulation which is binding on DEC and the state. The policy will not apply to: criminal violations of environmental laws; violations discovered by DEC inspection processes such as record-keeping review or information requests; or violations which result in serious actual harm or carry a threat of imminent substantial danger to the public or the environment. Similarly, certain high priority violations under the federal Clean Water Act, Resource Conservation and Recovery Act, and Clean Air Act would not be subject to the policy. In addition, DEC has complete discretion to determine whether entities are eligible for the self-audit program and can exclude entities that have a poor compliance history. The policy would authorize DEC to exclude entities with history of non-compliance within the last five years for the same or a similar violation, or those with a history of being uncooperative in addressing violations. The policy applies to environmental violations discovered by an eligible entity in the course of a self-audit or by DEC, federal, state or local agencies in the course of compliance assistance and pollution prevention matters. In order to qualify for the Self-Audit Policy, the regulated entity must voluntarily disclose the violation within any applicable time period under the subject environmental law or by 30 calendar days “after the business knew or should have known of the violation, unless an alternate time frame is established as part of a facility audit agreement.” The policy provides for contact with the DEC regional attorney who will assign a project attorney to assess eligibility for the policy. Although DEC has the discretion to extend the time period for reporting, the reporting must be made prior to any DEC, federal or local inspection or investigation or any reporting by a whistle-blower. In the event that the violation is timely disclosed, the entity must also take steps to promptly address the matter in accordance with applicable environmental law and as directed by the DEC. The policy includes a Return to Compliance Form to be executed and submitted by the regulated entity, which lists the following items: violation (with statutory or regulatory reference); detection method; detection date; corrective action and compliance date. In general, the policy calls for the violation to be addressed within 60 days after disclosure to DEC, unless a separate time period is established pursuant to a Self-Audit Agreement entered by the party. DEC has the discretion to extend the time period for compliance as it deems appropriate. Significantly, under the policy, DEC will require the entity to remediate “any environmental harm associated with the violation and implement procedures to prevent further violations.” A significant benefit of the proposed self-audit policy is a waiver of a portion of the penalties associated with violation of an environmental law. Most environmental laws provide for penalties including components for gravity of the violation and the economic benefit of non-compliance. If an entity qualifies for the policy, DEC will waive the gravity component of the penalty calculation. In addition, if an entity undertakes environmental audits and environmental management systems during the company operations or in accordance with an environmental audit agreement, DEC may consider additional penalty mitigation. In particular, DEC may waive the economic benefit component of an environmental penalty where it is de minimus (under $10,000) or where DEC determines that the waiver is appropriate. In the event that an entity receives penalty mitigation under the Self-Audit Policy, it must determine future compliance measures associated with the violation at issue and guarantee that the corrective measures will be implemented. Future environmental performance can be attained through a wide variety of mechanisms including environmental compliance systems, environmental management tools and pollution prevention steps. Although the Self- Audit Policy still needs to be formally issued, DEC views the policy as a means to attain environmental compliance in an era of rapidly shrinking budgets and staffing, along with an incentive for improved environmental performance. While environmental compliance is certainly a cornerstone of DEC’s mission, the policy appears to offer a method to address modest environmental violations and prevent future problems. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

In an apparent attempt to reduce health risks, the U.S. Environmental Protection Agency issued a new rule requiring the use of lead-safe work practices during renovation activities at residential homes, schools and daycare centers. The Lead-Based Paint Renovation, Repair and Painting Rule, 40 CFR Part 745, was issued under the Residential Lead-Based Paint Hazard Reduction Act of 1992 and applies to any contractor, including renovators, electricians, HVAC contractors, plumbers, painters and maintenance staff who disrupt more than six square feet of lead paint in pre-1978 homes, schools and daycare centers, as well as other areas where children gather. The new rule — which became effective April 22 — is aimed at eliminating instances of childhood lead poisoning. In practice, at least to date, the rule is catching many contractors by surprise and creating a great deal of concern about traditional renovation and remodeling projects. Some contractors even have decided to avoid working on structures covered by the rule due to the regulatory headache and enforcement risk. As an overview, the RRP rule requires contractors performing renovation activities in subject structures to first submit an application and pay a fee to the EPA for certification. Contractors also are required to attend a one-day class to have renovators certified. Both the certification application and training are valid for five years. In Western New York, the training course costs about $150 per attendee. As part of the required training, the RRP rule specifies lead-safe work practices aimed at minimizing dust and debris. The contractor must have at least one certified renovator in charge of each project where lead paint is disturbed. EPA’s RRP rule does not apply to homeowners performing their own renovations, repairs or painting work. There also are certain limited regulatory exceptions to the application of the rule, the first of which is that a written determination has been made by a certified inspector and provided to the contractor stating the structural components to be renovated are free of lead paint or fall below regulatory standards. Certified contractors may use an EPA-approved test kit to test the structural components and determine whether they fall below regulatory standards. Another exemption permits property owners to provide contractors with written certification that no children younger than six and no pregnant women reside in the owner’s residence, that the house is not a child-occupied facility and that the owner acknowledges the renovation firm will not be required to use RRP work practices. Prior to beginning renovation work, contractors are required to provide owners, tenants and child-care facilities with the pamphlet “Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools,” and document compliance with the notice. Lead-safe work practices generally consist of: containment of the work area, including taping and sealing off the area with plastic sheeting, covering floors and furniture that cannot be moved, and sealing off doors and HVAC systems; avoiding renovation activities that generate excessive dust, such as burning and torching, as well as using power equipment with HEPA vacuum attachments; and thoroughly cleaning the work area after the renovation with HEPA vacuum equipment, followed by wet wiping and wet mopping with adequate quantities of rinse water. The work area must be cleaned daily. Contractors also must also perform a final clean-up verification. The work area must be re-cleaned if necessary to meet clearance standards. Contractors also are required to retain all documents for three years after a covered project is completed. In an effort to simplify contractors’ compliance with the RRP rule, the EPA released a handbook “Small Entity Compliance Guide to Renovate Right.” As with most EPA rules, failure to follow the RRP rule can subject contractors to significant fines and penalties ranging from $10,000 per violation. Although the EPA supposedly has done outreach to advise the public and contractors about the new RRP rule, it is still catching many by surprise. Many firms that applied for certification prior to the April 22 effective date are still awaiting approval. According to an EPA enforcement memo, if a firm applied prior to the effective date, the EPA will not disrupt ongoing renovations over certification, but it will demand compliance with the training and lead-safe work practices. Although the apparent regulatory purpose may be laudable, it remains to be seen whether the new rule actually will produce a reduction in childhood lead poisoning. Given the magnitude of the regulation, it seems the EPA’s action will have a significant impact on the residential remodeling industry for older homes. It appears the EPA did not account for the impact of the new regulation, certification and cost impacts on residential remodeling projects. Many homeowners undoubtedly will be surprised by the increased costs for once-routine painting, renovation and repair activities as contractors attempt to comply with the new rule, which has mandated new and unprecedented regulatory and paperwork requirements on the remodeling industry. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

In this post-meltdown era, the news media and case reporters are full of stories about lawsuits by investors alleging fraud, breach of fiduciary duty and other misconduct by the people who managed their now-worthless investments. Litigators representing those investors have advanced both traditional and novel legal theories in support of their efforts to compel the responsible parties to pay for the losses. Although some lawsuits arise from exotic and sophisticated investment schemes, others involve a more traditional form of investment, the limited partnership. A limited partnership is an unincorporated association that can serve as the vehicle for straightforward or complex business ventures. A limited partnership often is used to put together an investment in real estate, for example. A person or entity intending to control the venture and serve as the general partner seeks out investors who become the limited partners. A limited partner’s expected return on his or her investment often is a combination of tax benefits related to pass-through losses in the venture’s early stages and a share of the profits. Under New York’s Revised Limited Partnership Act — applicable to limited partnerships formed after July 1, 1991 — a limited partner’s status is more like that of a corporate shareholder than that of a partner in a New York general partnership. Under RLPA §121-303(a), a limited partner is not responsible for the liabilities of the limited partnership unless he or she also is a general partner or participates in the control of the business. The limitation of liability provided by RLPA §121-303(a) can be a double-edged sword for a limited partner, because its bar against participation in the control of the business leaves him or her vulnerable to harm caused by the misconduct of an unscrupulous general partner. The relationships between the general partner, the limited partnership itself and the individual limited partners are addressed generally in RLPA, but the Act essentially defers to the limited partnership’s written agreement on governance issues, such as the sharing of profits and losses (§121-503), the sharing of distributions (§121-504), the withdrawal of a limited partner (§121-603), and the assignability of a limited partnership interest (§121-702). RLPA §121-108 authorizes a partner to lend money to, borrow money from, and transact other business with, the limited partnership. The RLPA also restricts a limited partner’s ability to obtain financial and operational information from the general partner. Section 99(1) of the original Limited Partnership Act afforded a limited partner the same rights as a general partner to “have on demand true and full information of all things affecting the partnership, and a formal account of partnership affairs whenever circumstances render it just and reasonable,” but the RLPA now makes it more difficult for a limited partner to stay informed of the status of his or her investment and the general partner’s activities. RLPA §121-106(b) provides a relatively restricted list of the information a limited partner is entitled to review as a matter of right, “subject to reasonable standards as may be set forth in the partnership agreement or otherwise established by the general partners.” In many ventures, the prospective general partner offers the potential limited partner a written agreement that restricts, to the maximum extent permitted by the RLPA, the limited partner’s rights of withdrawal, assignability and access to information. It is also often true that the general partner is more likely to engage in business transactions with the limited partnership — including borrowing money from the limited partnership — than the non-participating limited partners. The limited partnership agreements we see in our litigation practice make it extremely difficult to remove a general partner, generally specifying no grounds for removal short of fraud. In other words, a general partner bent on mischief often has the opportunity to misbehave under the belief he or she never will be punished. The best time for a limited partner to protect against potential general partner misconduct is when the investment is made. The limited partner’s attorney should insist that the limited partnership agreement require the general partner to provide limited partners with, at minimum, copies of annual tax returns. Knowledge is power, and returns contain key information about distributions received, assets bought and sold, and transactions in limited partnership interests. A general partner’s refusal to agree to share such information is a red flag that should not be ignored. Of course, a litigator asked to represent a limited partner in a dispute with a general partner often is presented with a onesided agreement of the type I’ve described. That means an uphill but winnable battle, especially when the general partner is highly motivated to block inquiry into his or her activities, and can use the limited partnership’s funds to pay lawyers, permitted by RLPA §121-1004, at least until judgment is entered establishing misconduct. The litigator may have to start with a proceeding under RLPA §121-106(b) to force the general partner to disgorge basic but critical business records such as tax returns and banking records. The documents enable litigators to follow the money and may support claims against the general partner based on the uncovered misconduct. A general partner is a trustee who owes the limited partnership and the individual limited partners the highest fiduciary duties. See RLPA §121-403(c) and Partnership Law §43(1). A general partner breaches those fiduciary duties by misappropriating or commingling funds or through self-dealing, and is liable for the harm caused by any breach. Evidence of a general partner’s breach of fiduciary duties would support an action for equitable relief, such as an accounting and the imposition of a constructive trust on any ill-gotten gains. It also would support a derivative action under RLPA §121-1002 or a dissolution proceeding under RLPA §121-802. A litigator should choose the form of proceeding and requested remedies based on the client’s objectives but, whatever the choice, proof of the general partner’s breach of fiduciary duties can be used as a powerful weapon for the protection of a limited partner’s investment. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

I have seen an increase of patients with chronic pain disorders and more and more of them are requesting narcotics for their pain. I am concerned about the cases I see in the newspaper regarding physicians being disciplined for prescribing narcotics. My patients have pain that should be treated. What should I be doing to minimize my risk? A physician has responsibility for properly prescribing and dispensing narcotics to their patients. Physicians should base their prescribing of controlled substances for pain on legitimate medical purposes. The prescribing of narcotics should be based on accepted scientific knowledge of the treatment of pain and sound clinical grounds. There are six risk areas that a physician should focus on when prescribing narcotics for pain. These include: initial patient evaluation, the treatment plan, informed consent, periodic review, additional consultations, and medical records. Prior to prescribing narcotics for pain, the physician should take a complete medical history and perform an appropriate physical exam. The evaluation should include the nature and level of the pain, past and present treatments for the pain, underlying conditions and causes, and the effect of the pain on the person. A history of substance abuse should be included. The physician should take additional steps to verify the cause of pain (including appropriate testing and obtaining information from past or current physicians) and not prescribe for vague complaints. A treatment plan should be developed and reviewed routinely to verify treatment efficacy. Diagnostic evaluations and treatment options such as physical therapy, use of over the counter pain medications, massage, etc. should be explored prior to prescribing narcotics, if possible. The drug therapy should be monitored and adjusted to the individual needs of the patient. The physician should discuss the risks and benefits of the use of the narcotic with the patient and obtain informed consent. This includes the risk of drug dependence. The new ISTOP Program will help reduce the risk of physician shopping. However, the physician should still communicate and document the expectations of the patient. This includes not sharing drugs, keeping them safe, no early refills, no use of narcotics in conjunction with alcohol or other illegal substances, etc. Next, the physician should periodically review the course of the patient’s treatment. It is not enough to merely document that “condition remains; continue with medication.” The physician should consider the progress of the patient’s treatment plan. It should be documented that, if the pain is not controlled or improved, other therapeutic modifications are considered. The prescribing of higher and higher doses of narcotics over long periods of time, without documented consideration of other options, is a red flag to OPMC investigators. The physician should consider consulting with pain treatment experts for patients with significant pain that is not resolved with routine treatments. The primary care physician should be in regular communication with the patient’s other physicians to coordinate the treatment of pain. Consider referring patients to a rehabilitation center or patient treatment pain center for consultation when patients have a history of substance abuse. Finally, medical records must be accurate and include all of the previous topics discussed above: medical history and exam, treatment plan, diagnostic and therapeutic results, evaluations and consultations. Professional investigators from the OPMC and the Narcotics Bureau will assume that if it is not documented, “it wasn’t done.” In order to defeat an allegation of inappropriate narcotic prescribing, the documentation of all six areas will be key. Download the Reprint from The November/December 2013 Edition of 'The Bulletin' by MCMS As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

The American Society for Testing and Materials (ASTM) developed the initial Phase I Environmental Site Assessment (ESA) standard in 1993 to address the scope of environmental due diligence required prior to acquisition of real estate in light of environmental liability concerns under federal and state Superfund statutes. The Phase I is part of the purchaser’s and lender’s due diligence in assessing whether to acquire or lend on a parcel of property. The Phase I report is a document prepared by an environmental consultant that summarizes available site reports, witness information and environmental regulatory database information to determine whether or not there are recognized environmental conditions (REC) on a subject property. If so, based on the status of the transaction, the parcel may require further investigation through soil, groundwater and possibly soil vapor testing. The ASTM Phase I standard was updated in 1997 and 2000. Statutory changes to the federal Superfund statute in 2002 added new defenses and led to the issuance of US EPA regulations on All Appropriate Inquiry (AAI) standards. In coordination with EPA’s final AAI regulations, the ASTM issued its last substantial update to the Phase I standard, captioned ASTM E 1527-05, in 2005. The Phase I standard was heightened by additional investigation requirements in exchange for potential liability protection under the federal Superfund statute. By performing a Phase I meeting the E 1527-05 standard, a property purchaser may be able to avail itself of one of the three Superfund defenses, namely the innocent purchaser, bona fide prospective purchaser or contiguous property owner defense. Environmental consultants, banks, property owners, developers and attorneys have worked with the current Phase I standard since 2005. However, ASTM updates its standards every eight years, and ASTM voted on a series of proposed changes in January 2013. The revisions are currently subject to EPA review, public comment and approval, which is slated to take approximately five months. It is expected that the new Phase I standard, captioned E 1527-13, will be finalized in the next several months. The proposed changes to the Phase I standard include both major and minor revisions. In the major revision area are the following items: simplification of the definition of “Recognized Environmental Conditions,” vapor migration and establishing when regulatory file review is appropriate. The minor revisions to the Phase I standard include user responsibilities and industrial/manufacturing properties. Initially, the REC definition addresses instances in which hazardous substances or petroleum products exist on the property in a manner to indicate a past, present or potential release. The new ASTM Phase I definition has been streamlined as “the presence or likely presence of any hazardous substances or petroleum products in, or at a property: (1) due to any release to the environment; (2) under conditions indicative of a release to the environment; or (3) under conditions that pose a material threat of a future release to the environment.” The new definition is simplified and tracks the definitions of release and environment under CERCLA. In addition, the new Phase I standard includes a revised definition of historic REC and a new definition of controlled REC, known as CREC. The definition of CREC encompasses a REC from “a past release of hazardous substances or petroleum products that has been addressed to the satisfaction of the applicable regulatory authority …” such as through a no further action letter or a brownfield site with institutional and engineering controls to address remaining hazardous substances. Another significant change to the Phase I standard is the inclusion of vapor migration as part of the Phase I. Vapor migration is the potential for contamination in soil and groundwater to cause vapor to infiltrate adjoining buildings. Vapor intrusion is being addressed at numerous sites under the oversight of DEC and the NYS Department of Health. With the addition of vapor intrusion as a Phase I consideration, this media will now need to be considered on the same basis as contaminated soil or groundwater. The new Phase I standard also incorporates E2600-10, which is a national method for assessing vapor intrusion. In addition, a definition of migration has been added to the Phase I standard and the definition of activity and use limitation (AUL) has been revised to include soil vapor. Finally, a few minor revisions have been made to the Phase I standard. The standard now sets out circumstances in which regulatory file review and records review is necessary. The user responsibility section has also been revised. Environmental liens and AULs are generally found in recorded land title records, but in some jurisdictions these are recorded or filed in judicial records. If environmental liens and AULs are only recorded in judicial records, the Phase I standard requires the records to be searched. Under the current Phase I standard, the client or user is required to provide the environmental professional with known environmental lien and AUL information, unless the consultant is engaged to perform that work. However, under the new standard the environmental professional may conduct a search of institutional and engineering control registries in conjunction with the government records search. The standard requires the user to provide commonly known and reasonably ascertainable information within the community, which could be material to the REC determination, to the environmental professional. Further, if the user does not provide the required information under this Phase I section, the environmental professional needs to consider the information shortfall as they would similar to any other data gap. Although it is impossible to predict with certainty when the final Phase I standard will be issued by ASTM, it is expected to occur over the next several months. To the extent that the E1527-13 Phase I standard is finalized it will require additional time, money and effort on the part of the prospective property purchasers, banks and environmental professionals. The exact cost and time impact will depend on geographic and market-particular property factors. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

The New York State Environmental Quality Review Act (SEQR) was adopted in 1976 and requires that state and local agencies evaluate potential environmental impacts of projects prior to granting approval. Since enactment, it has served as the principal environmental planning tool for New York agencies and municipalities prior to decisions to fund, undertake or approve projects across the state. This article addresses some fundamental changes that have been made to the short and long Environmental Assessment Forms (EAF). The Department of Environmental Conservation (DEC) issued proposed regulatory changes consisting of revised draft forms for public comment in 2011. The full EAF (or long form) used for large projects has not been significantly revised since 1978. The short EAF used for smaller projects was last subject to substantial revisions in 1987. In January 2012, DEC adopted revised model EAF forms to be published as part of the SEQR regulations at 6 NYCRR Part 617.20, Appendices A and B. The revised forms will include consideration of emerging environmental issues such as climate change, energy conservation, environmental justice, smart growth and pollution prevention. The DEC’s changes also seek to incorporate refinements in the process gained from experience over the years. Although the effective date of the new EAF forms was initially slated to be Oct. 1, 2012, it has now been re-scheduled for Oct. 7, 2013. The DEC is working on developing detailed workbooks to correspond with the new forms in an effort to aid project applicants and agencies in preparing and reviewing the SEQR documents. As an overview, when a project applicant submits a land-use application for a new project it is generally accompanied by an EAF to provide information to the agency regarding the proposed action, site location and environmental resources. The agency must first determine whether the proposed action is subject to SEQR, using basic regulatory criteria: is the project included in the list of Type 1 actions (SEQR review required), unlisted, or listed as a Type 2 action (SEQR exempt); is there a potential for significant impact on the environment; and will the planning and design of the project benefit from SEQR review. In determining the significance of potential environmental impacts from a project, the SEQR regulations require agencies to identify and assess relevant areas of environmental concern in order to address impacts that are reasonably foreseeable. The reasonableness standard is key, since potential impacts which are not reasonably foreseeable and are speculative do not have to be addressed. The EAF forms are central to this process. The short form EAF is used for unlisted actions. The long form EAF is used for Type 1 actions, or larger projects that may require preparation of an environmental impact statement. The EAFs consist of the following: Part 1 — prepared by the project sponsor regarding background information on the proposed action; Part 2 — completed by the lead agency, serves to identify potentially significant adverse environmental impacts; and Part 3 — completed by the lead agency to support the agency’s determination of significance. In the event that the agency determines that there will be no significant impacts on the environment (negative declaration), the agency completes the record for reaching that determination and environmental review of the action is concluded. In the event that a positive declaration is issued by the agency, an environmental impact statement must be prepared to further evaluate potential environmental impacts of a project. The current version of the short form EAF consists of two pages and has three parts: Part 1 — Project and Sponsor Information; Part 2 — Impact Assessment; and Part 3 — Determination of Significance. The DEC’s revised form is four pages with expanded details in each section. Aside from format changes, there are a number of substantive changes which make the short form EAF significantly more detailed. A few of the key changes to Part 1 include additional questions regarding: public transportation and pedestrian accommodations near the site; whether the action maximizes use of energy efficient design or on-site renewable energy technology; whether the proposed action will connect to existing public water and sewer utilities; whether the proposal will create new point source storm water discharges; whether the proposed action includes construction of on-site impoundments such as retention ponds, waste lagoons, etc.; and whether solid or hazardous waste has ever been stored on-site or on adjacent property. DEC has added similar questions to the Part 2 Impact Assessment that is prepared by the lead agency for the project. Finally, Part 3 of the new short form EAF will require the lead agency to discuss why each potential impact checked as a “yes” in Part 2 will not result in a significant adverse environmental impact. The new form will require the agency to discuss in detail the impacts, mitigation measures included by the applicant, and an explanation of how the lead agency determined that the impact will not be significant. The revised Part 3 appears to place a much greater burden on the lead agency to discuss and explain each element of Part 2, which forms the basis for its decision. The DEC’s revisions to the long form EAF are substantially more detailed than the changes to the short form. The current version is 21 pages; the DEC’s revised EAF is 35 pages and is significantly more detailed than the current version. The DEC has added similar questions to Part 1 regarding climate change, renewable energy and impacts on existing infrastructure. In addition, DEC has added much more detailed sub-parts on each page regarding existing questions on potential environmental impacts. As an example, the revised form requests information about whether the project will create a new demand for water, anticipated daily use, capacity of the public system, and need for expansion of the system or district. The revised Part 2, which is prepared by the lead agency, is now exceptionally detailed with new questions and sub-parts to existing questions to conform with the expanded Part 1. The updates to SEQR forms are certainly appropriate given the length of time since the last revisions. However, in reviewing the revised EAF forms there are a variety of questions and concerns that are raised. Although the SEQR process has been around for decades, many smaller municipalities and project sponsors still struggle with it under the existing framework. The revised forms require so much detail that it appears to shift the preparation process away from the project sponsor and agency to an engineering function. While the DEC intends to issue the workbooks to correspond with the new form, it remains uncertain whether these will substantially aid applicants or reviewing agencies. The amount of detail which will be required at the initial stage of project review will be significant, and hence the EAF will be much more expensive and time-consuming to prepare. In addition, new questions regarding climate change, energy conservation and similar issues, while part of public discussion, are rather amorphous and difficult for applicants and municipalities to quantify. Unfortunately, the nature of many of the new questions may subject the SEQR process to further litigation brought by applicants and project opponents to a proposed action. Finally, the revised EAF forms appear to raise regulatory hurdles in a state that already faces problems attracting and retaining new business investment. Once the revised SEQR EAF forms because effective on Oct. 7, they will inevitably require substantially more time, review and expense for project sponsors and agencies. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Limited liability companies appeared in New York state in 1994, when the New York Limited Liability Company Law (LLCL) went into effect. An LLC is an unincorporated organization (but not a partnership or a trust) of one or more persons having limited liability for the contractual obligations and other liabilities of the business. The LLC combines aspects of the corporate form and the partnership form. An LLC can be used to limit the personal liability of its owners (called members) like a corporation, and offers flexibility in management and operations, capital formation, and the allocation and distribution of benefits like a partnership. Last, but certainly not least in the minds of business owners who use the LLC form, the LLC may provide significant tax advantages to those owners. LLCL §417 requires the LLC’s members to adopt an operating agreement addressing the business of the LLC, the conduct of its affairs, and the rights, powers, preferences, limitations or responsibilities of its members, managers, employees or agents. A well-considered operating agreement should address, among other things, decision-making procedures, access to the business’ books and records and exit strategies such as buyout provisions. In the absence of an operating agreement, and in the event of legal action, a court will enforce the rights and obligations in issue by reference to the “default” provisions of the LLCL. Business owners may choose the LLC form without much thought (and sometimes without an operating agreement), or they may elect to form an LLC in consultation with lawyers experienced in business formation and tax law. Either way, the members hope common goals and the LLC form will lead to financial success. However, sometimes members may encounter irreconcilable differences even when dealing with one another in good faith, and sometimes one member’s intentional misconduct, such as fraud, misappropriation, and misuse of LLC assets for personal gain, will cause harm to the LLC, and the other member or members will be forced to go to court to protect the LLC and their ownership interests, or to obtain a remedy that will extricate them from an untenable situation. While the LLCL provides for judicial dissolution under certain limited circumstances, it does not expressly provide an aggrieved member with remedies such as the right to bring a derivative action, the right to an accounting or the right to a buyout of her ownership interest. Therefore, given the hybrid nature of the LLC form, lawyers who handle “business divorce” cases have advocated, and the courts have evaluated, an LLC member’s potential remedies by analogy, using the Business Corporation Law (BCL), the Partnership Law, and the common law. At the threshold level, the courts have recognized that members of LLCs owe fiduciary duties to one another, see, e.g., McGuire Children LLC v. Huntress, 24 Misc.3d 1202A (Erie Sup. Ct. 2009), aff’d 83 A.D.3d 1418 (4th Dept. 2011); Willoughby Rehabilitation and Health Care Center LLC v. Webster, 13 Misc.3d 1230A (N.Y. Sup. Ct. 2006), aff’d 46 A.D.3d 801 (2nd Dept. 2007). These decisions, which analogize a member’s duties to other members to a partner’s duties to other partners, provide a foundation for the advocacy of a member’s rights and remedies in the face of misconduct by other members. In Tzolis v. Wolff, 10 N.Y.3d 100 (2008), the Court of Appeals held that LLC members may sue derivatively, even though the LLCL does not expressly authorize such actions. The court, after reviewing the development of the law authorizing derivative actions on behalf of trusts, corporations and limited partnerships, found that an LLC member had the right to bring a derivative action, stating that “to hold that there is no remedy when corporate fiduciaries use corporate assets to enrich themselves” was unacceptable. In Gottlieb v. Northriver Trading Co., LLC, 58 A.D.3d 550 (1st Dept. 2009), a minority member of an LLC sued the LLC and the majority member for an accounting. Supreme Court dismissed the complaint, holding, among other things, that the LLCL did not give the plaintiff member the right to an accounting; the court refused to apply the cases cited by the member plaintiff, which addressed the right to an accounting in business entities other than LLCs. The First Department reversed, holding that “members of a limited liability company may seek an equitable accounting under common law”, and rejecting any assertion that LLC members “are limited to statutory remedies with respect to potential fraud” as inconsistent with the reasoning of Tzolis. Although the LLCL provides for the judicial dissolution of an LLC, unlike the BCL, which includes provisions authorizing the buyout of a complaining shareholder as a means of resolving a dissolution action brought by that shareholder, the LLCL does not contain any provision which authorizes a buyout as a means of avoiding dissolution. Notwithstanding this absence of statutory authority, in Matter of the Dissolution of Superior Vending, LLC, 71 A.D.3d 1153 (2nd Dept. 2010), an action in which the members consented to the dissolution of their LLC, the Second Department approved Supreme Court’s order that one member buy out the other member’s ownership interests as “the most equitable method of liquidation.” Also, in Matter of Gold (Cosmo Holdings, LLC) (Nassau County Index No. 6722/11), the court denied an LLC member’s application for judicial dissolution but ordered an appraisal proceeding for the buyout of that member’s ownership interest, holding that the member “has the common law right to an appraisal proceeding for the purpose of determining the fair market value of her membership interest in the limited liability company.” As authority for this proposition, the court cited Appleton Acquisition, LLC v. National Housing Partnership, 10 N.Y.3d 250, 256 (2008), a case in which the Court of Appeals addressed a limited partner’s remedies under the New York Revised Limited Partnership Law. Each of the decisions discussed above is worthy of analysis, but the takeaway for practitioners is that the courts will likely continue to follow the Court of Appeals’ lead in Tzolis and look, where appropriate, to the New York law on corporations and partnerships for guidance in the development of remedies for LLC members. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

In a unanimous decision, the New York State Court of Appeals ruled that, under certain circumstances, a business seller may give active assistance to a new employer’s efforts to pitch its business to former clients without incurring liability for improperly soliciting business. Bessemer Trust Co. N.A. v. Branin, no. 63, 2011 NY Slip Op. 3307 (Apr. 28). Under common law, the seller of the good will of a business cannot actively solicit former clients, as it would deprive the buyer of the value of the bargain. The seller can, however, compete with the buyer in the same business and even accept his former client’s business if he is not otherwise bound by any express restrictive covenants. Background Plaintiff Bessemer Trust Company N.A. is a privately owned wealth management and investment advisory firm that provides services to high net-worth individuals, families and institutional clients. The defendant, Branin, was a principal at investment management firm Brundage, which was sold by purchase agreement to Bessemer in 2000 for $75 million. Branin, the largest Brundage shareholder, received more than $9 million personally. The purchase agreement between Bessemer and Brundage imposed no express restrictive covenants on the Brundage principals. Branin continued to work for Brundage after the sale, but left in 2002 to work for a competing wealth management firm. Although he did not directly solicit his former clients, many of them (including his largest client) contacted him after his departure and followed him to his new place of business. Shortly thereafter, Bessemer commenced an action alleging that Branin had breached his duty of loyalty to Bessemer under the theory that Branin improperly solicited his former clients to join him at his new place of business, thereby impairing the good will that Branin had sold to Bessemer. After a bench trial in the Southern District of New York, Branin was found to have improperly induced his largest client to leave Bessemer. On appeal, the U.S. Court of Appeals for the Second Circuit certified a question seeking guidance in determining what actions under New York law constitute improper solicitation. The New York State Court of Appeals In answering the certified question, the Court of Appeals reiterated that New York Common Law has long prohibited a seller of a business from improper solicitation of its former clients because such solicitation impairs the value of the good will sold. However, the seller of “good will,” absent a non-compete agreement, may compete with a purchaser. Bessemer answered questions about how a seller of good will, who is no longer working for the purchaser, may respond to former clients who inquire about the seller’s current employer or business. The Bessemer court recognized that there is always a risk on the part of the purchaser of a business that customers will decide to go elsewhere as a result of the change in ownership. The court restated that a seller may not initiate direct contact with its former clients. However, for situations where the client initiates the contact, the court declined to provide a bright line rule and instead declared that the trier of fact must weigh the facts on a case-bycase basis as it applies to the industry involved. The court provided guidance in making the determination. While there are certain barriers on a seller’s conduct, there is no prohibition on a former customer or client from gathering information about the seller. The seller, the court said, may not take advantage of client-initiated contacts to disparage the purchaser of its former business or tout its new business, but can respond to factual inquiries from the client about his new venture. As such, a seller of good will may answer the factual inquiries of a former client so long as the response does not go beyond the scope of the specific information sought. In responding to the inquiry, the seller may not explain why he believes the products or services of the new venture are superior to those offered by the purchaser of the business. Further, the seller may not send targeted mailings or make individualized phone calls to former clients, but, absent a covenant not to compete, may advertise to the public if the advertisements are general in nature. Where a former client initiates the inquiry, a seller may even go so far as to assist a new employer in the active development of a plan to respond to the client’s inquiries. The seller may provide the employer with industry appropriate, nonproprietary information about the former client. The seller may also assist the new employer to prepare for a sales pitch meeting requested by the former client and may be present during the meeting. The seller’s role at the meeting, however, must remain largely passive. Warning to Purchasers The Bessemer decision accentuates the importance of utilizing noncompete and nonsolicitation agreements to protect the value of a business purchase. In its decision, the court reminded prospects that “a purchaser is free to negotiate an express covenant, reasonably restricting ... a seller’s right to compete in a particular geographical area or field of endeavor.” Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Underberg & Kessler LLP is proud to announce that nine of its attorneys have been selected by their peers for inclusion in The Best Lawyers in America® 2014. Jim Coniglio, Pat Cusato, Steve Gersz, Ron Hull, Kate Karl, Paul Keneally, Anna Lynch, Paul Nunes and Margaret Somerset are included in the 2014 edition under the following specialties: Jim Coniglio - Municipal Law Pat Cusato - Real Estate Law Steve Gersz - Closely Held Companies and Family Businesses Law, Corporate Law Ron Hull - Environmental Law, Litigation - Environmental Kate Karl - Real Estate Law Paul Keneally - Labor & Employment Litigation Anna Lynch - Corporate Law, Elder Law, Health Care Law Paul Nunes - Mass Torts Litigation/Class Actions–Plaintiffs, Personal Injury Litigation–Plaintiffs, Personal Injury Litigation–Defendants Margaret Somerset - Medical Malpractice Law–Defendants Best Lawyers® conducted its annual peer-review survey in which 50,000 attorneys cast nearly five million votes on the legal abilities of other lawyers in their practice areas. Lawyers are neither required nor allowed to pay a fee to be listed, and are included solely based on the results of the peer review. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Since the 1913 ratification of the Sixteenth Amendment to the U.S. Constitution granting Congress the “power to lay and collect taxes on incomes,” taxpayers have been pitted against the government as to their accurate assessment and collection. Nearly a century’s worth of litigation on the issue has created and defined the concepts of “tax evasion” and “tax avoidance.” In an effort to maximize receipt of taxes owed, the government has increased its focus on tax fraud. The Internal Revenue Service has acknowledged the fine distinction of discerning between tax avoidance and evasion by establishing two avenues of enforcement — the civil tax audit and the criminal investigation. When preparing a return for an individual client or a business, the preparer must always be mindful of the risk of triggering an audit to determine civil tax evasion or, worse, criminal activity. Knowing the circumstances that may lead to a criminal investigation will assist the preparer in determining when its time to refer a client to an attorney well versed in such exposure. Investigative Stage — Badges of Fraud Section 25.1.2.3 of the Internal Revenue Manual (IRM) identifies six “badges of fraud” that may prompt an audit. They are a taxpayer’s income, expenses or deductions, books and records, allocations of income, conduct and methods of concealment. In the context of taxpayer conduct, for example, indicators of fraud include: (a) false statements about material facts during the audit; (b) attempts to hinder the audit by failing or refusing to answer questions, cancelling appointments, or refusing to supply complete and accurate records; (c) testimony of third parties (e.g. employees) about irregular business practices; (d) destruction of books and records; and (e) transfers of assets for purposes of concealment. An agent may initiate an audit based on relatively ambiguous conduct. The IRM states that “[u]nusual, inconsistent or incongruous items should alert examiners to the possibility of fraud and the need for further investigation. Taxpayer misconduct should be an early warning sign of possible fraudulent conduct.” Revenue agents are trained on the importance of the “initial contact” with the taxpayer as it provides “the opportunity to obtain valuable information which may not be readily available later.” Agents will document all statements made by a taxpayer as well as a filer’s failure to respond to questions. The Fraud Development Procedures in IRM 25.1.2.2 provide that, when signs of fraud are uncovered, an agent is to take the matter to their group manager. If the group manager concurs that there are indicators of fraud warranting fraud development, the compliance employee is to contact the fraud technical advisor assigned to that area. If the case is ultimately placed in fraud development status, a plan of action is formulated as early as possible to develop and document affirmative acts of fraud. Note that some cases may not require a face-to-face meeting with the fraud technical advisor. Although in-person interviews are preferred, consultations may occur over the telephone or by email. Several warning signs that an audit may turn into a criminal investigation include a period of unexplained silence from the agent after some investigative activity. This may be the result of the agent’s consultation with a fraud specialist regarding a potential criminal fraud referral. Another red flag is the refusal of the agent to discuss the status of the audit or its conclusion. The government may also issue subpoenas or request information from third parties (e.g. banks, suppliers, or customers). Referral to Tax Counsel A taxpayer may be inclined to continue to work with an accountant even after issues of fraud arise. A fraud investigation will generate anxiety and a client may be eager to simply see the investigation conclude rather than face the uncertainty and/or embarrassment of IRS agents contacting business associates and family members as part of their examination. This may result in the taxpayer directing the return preparer to cooperate with the government. However, due to potential criminal prosecution, it is extremely important for the preparer to instruct the client to retain a criminal tax attorney as early in the course of the proceedings as possible, and before voluntarily providing significant information. The advice to hire tax counsel is not mandated by differences in expertise of attorneys and accountants but rather by the rules of privileged communications. There is no state or federal accountant-client privilege that may protect the shared information and work product of the accountant. Note, however, that information obtained from an accountant hired by counsel for forensic accounting analysis is privileged as attorney work product. It is also important to remember that the attorney represents the interests of the taxpayer and not the accountant. Since revisions to the definitions of criminal tax fraud in the New York Tax Law, return preparers face criminal exposure for assistance in a scheme to defraud the Department of Tax. As a result, a return preparer with concerns about his or her own conduct related to a client’s alleged scheme to defraud is advised to retain separate, personal counsel. Once a client retains tax counsel, it’s important for the return preparer to limit their role, regardless of one’s experience or rapport with a client, due to the limitations of privilege. This will prevent the preparer from developing knowledge that he or she may later have to surrender to the government. In addition, delinquent or amended returns should not be filed unless and until directed by counsel. Care should be taken in this circumstance as information on a current return may provide evidence for a fraud investigation into conduct extending over several years. Although an ongoing criminal investigation does not exempt a taxpayer from filing a currently owed return, the taxpayer’s attorney will need to develop a defense and to ensure that there is no continuing fraudulent activity. Special Agents Audits are conducted by agents who, as employees of the IRS, are instructed to notify the proper officials once badges of fraud are discovered. The criminal investigation will be conducted by a Revenue Crimes Specialist and/or a Special Agent of the U.S. Treasury. Taxpayers are well advised to exercise their right to remain silent and immediately contact an attorney if a special agent appears at their doorstep. Special agents almost always arrive in pairs and they will have already established a significant portion of their case. Additional agents will often appear, simultaneously, at the taxpayer’s residence and at the residences or places of business of potential witnesses. If a special agent attempts to interview a return preparer in connection with tax compliance work, then the accountant should request that the client’s attorney also attend. While not acting as the accountant's attorney, the presence of the taxpayer's counsel will allow for better monitoring of the progress of the investigation and will ultimately help to protect the taxpayer’s rights. Summary Although one can not predict a tax audit or its conversion into a criminal investigation, it is necessary for tax practitioners to know the procedure and steps of a civil tax case. One must be intimately familiar with the facts and prepare appropriate responses in anticipation of the government’s discovery of “badges of fraud” during audit. A client should be advised of the risks of acquiring additional badges during an investigation as well as the need to obtain criminal tax counsel early in the process and before voluntarily providing harmful information. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

The New York Brownfield Cleanup Program (BCP) was enacted in 2003 and has provided significant legal and financial incentives for private parties to remediate and re-develop brownfield parcels across New York. Based on the duration of sites in the BCP, time is running out for developers to complete brownfield projects prior to the expiration of the tax credits at the end of 2015. As part of Governor Cuomo’s budget, the administration has submitted a series of sweeping legislative changes to extend and modify the BCP tax credits. Overview of the BCP Changes Definition of “Brownfield” revised to a site with documented contamination at levels above soil cleanup standards for the proposed future site use – will require a Phase II site investigation Makes certain Class 2 New York Superfund eligible for the BCP Creates a BCP-EZ program similar to the old VCP program for expedited remediation of sites without tax credits Only participants, and not volunteers, in the BCP would have to pay State costs Site Preparation and Remediation Credits Site preparation tax credits remain: ranging from 22% to 50% of costs depending on cleanup level For sites admitted into the BCP after July 1, 2014, any Certificate of Completion needs to identify the entities eligible for tax credits and percentage of credits available Site preparation costs specifically include remediation of asbestos, lead and PCB Only site preparation costs identified in DEC approved remedial work plan would qualify – exclusion of site investigation, Phase I, and IRM costs Key New Deadlines and Criteria to Obtain Tangible Property Tax Credits Sites admitted into the BCP after July 1, 2014 would be restricted from obtaining tangible property tax credits for the value of on-site construction Sites where a Brownfield Cleanup Agreement is entered after July 1, 2014 need to seek and obtain approval of the tangible property tax credit at the time of the application by documenting that the site meets one of the following: Vacancy: the site property and buildings have been vacant for 15 years or more, or have been both vacant and tax delinquent for 10 years or more; or Financially underwater: the estimated cost of the investigation or remediation for the proposed future use of the site exceeds the appraised value of the property without construction; or Priority economic development project: the project has been determined a PED by the Department of Economic Development, which include locating specific types of businesses at the parcel and the creation of significant jobs of 50, 100, or 300 net new jobs based on the type of business. The proposal would remove sites from the BCP if they were accepted in prior to June 23, 2008 and no COC is issued by December 31, 2015 Sites admitted after July 23, 2008 but prior to July 1, 2014 would be removed if no COC is issued by December 31, 2017 Sites accepted into the program after July 1, 2014 must obtain a COC by December 31, 2025 to apply for tax credits No sites accepted into the BCP after December 31, 2022 would be eligible for tax credits No tangible property tax credits for sites where contamination is from off-site source or DEC determines that prior remediation permits site development for proposed use If a site qualifies for the tangible property tax credit, it will be capped at 24% and the individual components have been adjusted based on the type and location of site Other New York Brownfield Programs The municipal Environmental Restoration Program (ERP) is slated to receive $10 million under the budget Despite new funding source, the ERP sites currently in the program account for all of the new funding – significant additional funding is necessary to allow municipalities to put new sites into the ERP program Funding is removed for the Brownfield Opportunity Area (BOA) Program administered by the Department of State Without BOA funding, municipalities will not be able to progress area-wide BOA planning in the multi-step program or identify sites that might fit into the BCP for re-development If you have questions about the BCP program or the application to specific development sites, please contact us. Based on the proposed deadlines, we strongly encourage you to evaluate potential sites for BCP applications prior to any legislative changes to the program. Download this Legal Alert As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.