New statute allows the government to recover costs and natural resource damages from a broad set of PRPs.
By Gary P. Gengel, Thomas C. Pearce, G. Jack Mathews, and Gina Kwon
On May 9, 2025, New York Governor Kathy Hochul signed into law a broad array of amendments to the state’s Environmental Conservation Law sections pertaining to the Inactive Hazardous Waste Disposal Site program, also known as the state Superfund program (the Amendments). The Amendments address (1) parties responsible for injuries associated with inactive hazardous waste disposal sites (Sites), (2) defenses and limits on liability, (3) abatement orders by the New York State Department of Environmental Conservation (NYSDEC), (4) environmental liens, and (5) environmental justice.
Taken together, the Amendments serve to more closely align the state Superfund program with the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). However, there are material differences that narrow the scope of New York’s Superfund program.
Liability
The Amendments add provisions permitting the NYSDEC Commissioner to recover response costs, natural resource damages (NRD), and civil penalties associated with hazardous waste contamination at a Site.1 The Amendments allow the government to bring claims with respect to a variety of potentially responsible parties (PRPs) that broadly align with responsible parties under CERCLA and the regulatory definition of PRPs adopted by NYSDEC in its Part 375 regulations, including those who:
generated hazardous waste disposed at the Site;
chose the Site for hazardous waste disposal;
arranged for hazardous waste transportation to or disposal at the Site; and
anyone who is a PRP under CERCLA or applicable principles of statutory or common law.2
Anyone who is a “volunteer” under a brownfield cleanup agreement is specifically excluded from the definition of PRP, and as a result, such volunteers are protected from liability under the statute.3 Each PRP is strictly, jointly, and severally liable for both response costs and NRD.4
Notably, like CERCLA, the Amendments provide that any NRD determination or assessment completed under either federal NRD regulations or New York State-specific regulations has the force of a rebuttable presumption in any judicial proceeding.5 Funds recovered in an NRD action can exclusively be used to reimburse the government or private parties for the reasonable costs of assessing and/or restoring the injured natural resource.6
Bona Fide Purchaser Defense
The Amendments add a defense for bona fide purchasers of a Site that mirrors the CERCLA defense. The defense applies where a buyer or leaseholder establishes that, among other things, (1) their interest in the property is not designed to avoid liability under the Amendments, and (2) they made “all appropriate inquiries” into previous property ownership and use.7 The defense only applies to properties acquired on or after October 7, 2003.8
Contribution Claims and Protection
The Amendments also add the ability for PRPs to bring claims for contribution against other PRPs during or after any Superfund program litigation is brought against it or after a settlement with the government.9 The provision is generally modeled on CERCLA section 113(f)(1)-(3). In resolving contribution claims, courts are granted broad authority to allocate response costs and NRD among the parties “using such equitable factors as the court determines are appropriate.”10 As with CERCLA, to encourage agreements on consent with the government, parties who settle with the government can obtain protection from contribution claims for the matters addressed in the settlement when it is judicially approved.11
Limitations on Claims
The Amendments place certain limits on liability at Sites. For instance, claims are restricted to Sites without prior enforcement actions; “[n]o new action under this title may be commenced for NRD or response costs for an inactive hazardous waste site that was the subject of any previous action commenced prior to the effective date … regardless of: the venue in which such previous action was commenced; the statutory or common law source of such action, including settlement agreements; the completeness or totality of permissible recovery of such action; or the finality of any such action.”12 The statutes of limitations under the Amendments are generally similar to those in CERCLA:
Removal Actions: Claims for removal action costs must be brought “within three years after completion of the removal action, except that such cost recovery action shall be commenced within six years after a determination that continued response action is otherwise appropriate.”13
Remedial Actions: Claims to recover costs from remedial actions must be brought “within six years after initiation of physical on-site construction of the remedial action, except that, if the remedial action is initiated within three years after the completion of the removal action, costs incurred in the removal action may be recovered in the cost recovery action brought under this subparagraph.”14
NRD: The statute of limitations for suits for natural resource damages “within three years after the later of the following: (i) the date of the discovery of the loss and its connection with the release in question; or (ii) for any facility listed on the federal National Priorities List, any site listed on the New York state registry of inactive hazardous waste disposal sites, or any site at which a remedial action under this chapter is otherwise scheduled: the date of completion of the remedial action, excluding operation and maintenance activities.”15
Finally, the Amendments require that all contribution actions for response costs and/or NRD arising from a given Site be initiated no more than “more than three years after: (i) the date of judgment in any action under this section for recovery of such costs or damages; or (ii) the date of a judicially approved settlement with respect to such costs or damages.”16
Abatement Orders
Scope of Authority
The Amendments include authority to issue abatement orders (Abatement Orders).17 While much of the language for the Abatement Order provisions is based on CERCLA Section 106(a), there are significant limitations.
Specifically, Abatement Order authority is narrower because: (1) the Order can only be issued for Class 1 and Class 2 Sites (as defined in the statute); (2) the Order can only be issued if the release “is resulting in or is likely to result in irreversible or irreparable damage to natural resources”; and (3) the Order can only be issued if NYSDEC makes all reasonable efforts to secure voluntary agreement to abate the threat, among other additional requirements.
Moreover, Abatement Orders are subject to additional restrictions as discussed below. On the other hand, the authority is broader in that an Abatement Order can be issued for “an actual or threatened release,” not “because of” such a release as in CERCLA. The specific text is below.
ECL Section 27-1329(1)(a)CERCLA Section 106(a)1. (a) Maintenance, jurisdiction, etc. When the commissioner, after investigation, determines that there may be an imminent danger to the health or welfare of the people of the state or the environment, or an actual or threatened release of hazardous waste from an inactive hazardous waste disposal site, as defined in clauses (i) and (ii), respectively, of subparagraph one of paragraph b of subdivision two of section 27-1305 of this title, is resulting in or is likely to result in irreversible or irreparable damage to natural resources, the commissioner may request the attorney general to secure such relief as may be necessary to abate such danger or threat and to grant such relief as the public interest and the equities of the case may require. The commissioner may issue such orders as may be necessary to protect public health and welfare and the environment, provided the commissioner has a reasonable belief that persons responsible for implementing such orders have adequate financial resources to comply, there is evidence sufficient to support liability of such person, and the department has made all reasonable efforts to secure voluntary agreement of such person to abate the imminent danger or threat.(a) Maintenance, jurisdiction, etc. In addition to any other action taken by a State or local government, when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat, and the district court of the United States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public interest and the equities of the case may require. The President may also, after notice to the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and welfare and the environment.
Notice
NYSDEC must provide notice of the provisions of this section on Orders to known responsible persons at Class 1 and Class 2 sites, within six months of the effective date, if it intends to issue an Order to such responsible persons.18 No such Orders shall be issued within a one-year period after the effective date.19
Compliance and Challenges to Orders
Within five business days, the recipient of an Order can submit a request for a meeting that also contains “a description of the reason why such person believes they are not liable and any supporting documentation.”20 The Order is a “final determination of the department and subject to challenge pursuant to article seventy-eight of the civil practice law and rules.”21 Additionally, these actions cannot be brought “against a bona fide prospective purchaser.”22
There are daily penalties for failure to comply with the Order “without sufficient cause.”23 The maximum daily penalty is $37,500.24
However, if a person complies with the order, they may “petition the commissioner for reimbursement from the hazardous waste remedial fund … for the reasonable costs of [response] action, plus interest,” with the interest rates set at the same level as those established under CERCLA.25 In the scenario that the petition is not granted, “the petitioner may within thirty days of receipt of such refusal file an action” under Article 78.26 In order to be reimbursed, a petitioner must “establish by a preponderance of the evidence that such petitioner is not liable for response costs.”27
Alternatively, a party “may also recover its reasonable costs of response to the extent that such petitioner can demonstrate, on the administrative record, that the commissioner’s decision in selecting the response action ordered was arbitrary and capricious or was otherwise not in accordance with law.”28 If the commissioner refuses to grant the petition, it can be challenged under Article 78.[29
Liens
Under the Amendments, New York can impose a lien “for all response costs incurred by the state and for all NRD for which a judicial determination of liability has been made.”30 However, this power applies only to real property in New York that is (1) owned by a person liable to the state for such response costs and/or NRD at the time of the lien notice, and (2) upon which the disposal of hazardous waste occurred.31 Therefore, the reach of this authority may be limited, especially in cases where the PRP no longer owns the contaminated property.
Environmental Justice
The Amendments require that NYSDEC prioritize remedial programs and recovery of costs concerning contaminated Sites in areas previously identified as “disadvantaged communities.”32,33 To that end, NYSDEC is required by January 1, 2026, to publish and submit site cleanup prioritization criteria to the governor and legislature.34 When preparing these criteria, NYSDEC must “consider the effects on the health, environment and economy of the state, with particular consideration for the effects on disadvantaged communities.”35
Takeaways
Overall, the Amendments add an additional layer of state liability and enforcement with respect to Sites. While Abatement Orders under the Amendments are not true Unilateral Administrative Orders like those which might be issued to a PRP under CERCLA, they offer NYSDEC an additional tool for enforcement.
Entities who believe that they may be at risk of being identified as a PRP with respect to a Site should consider preparing defenses between the Amendment’s six-month notice date and the one-year start date for issuing Abatement Orders. In assessing possible risks, parties should also account for NYSDEC’s environmental justice efforts and priorities.
An “inactive hazardous waste disposal site” is “any area or structure used for the long term storage or final placement of hazardous waste including, but not limited to, dumps, landfills, lagoons and artificial treatment ponds, as to which area or structure no permit or authorization issued by the department or a federal agency for the disposal of hazardous waste was in effect after the effective date of this title and any inactive area or structure on the National Priorities List established under the authority of 42 U.S.C.A. Section 9605.” N.Y. Envtl. Conserv. Law (“ECL”) § 27-1301(2). See ECL § 27-1327. ↩︎ECL § 27-1301(11). ↩︎ECL § 27-1301(a). ↩︎ECL § 27-1327(1). ↩︎ECL § 27-1327(2). ↩︎ECL § 27-1327(4). ↩︎ECL § 27-1323(5)(b); 42 USC 9607(q)(1)(C); 42 U.S. Code § 9601(40). ↩︎ECL § 27-1323(5). ↩︎ECL § 27-1327(14)(a), (c)(ii). ↩︎Id. ↩︎ECL § 27-1327(14)(b). ↩︎ECL § 27-1327(15)(a). ↩︎ECL § 27-1327(15)(c)(i). ↩︎ECL § 27-1327(15)(c)(ii). ↩︎ECL § 27-1327(15)(b). ↩︎ECL § 27-1327(15)(e). ↩︎ECL § 27-1329. ↩︎ECL § 27-1329(3). ↩︎Id. ↩︎ECL § 27-1329(1)(b). ↩︎ECL § 27-1329(1)(c). ↩︎ECL § 27-1329(1)(d). ↩︎ECL § 27-1329(2)(a). ↩︎Id. ↩︎ECL § 27-1329(2)(b)(i). ↩︎ECL § 27-1329(2)(b)(ii). ↩︎ECL § 27-1329(2)(b)(iii). ↩︎ECL § 27-1329(2)(b)(iv). ↩︎ECL § 27-1329(2)(b)(ii). ↩︎ECL § 27-1327(5). ↩︎Id. ↩︎ECL §§ 27-1305(b)(2), 27-1327(1). ↩︎“Disadvantaged communities” are “communities that bear burdens of negative public health effects, environmental pollution, impacts of climate change, and possess certain socioeconomic criteria, or comprise high-concentrations of low- and moderate- income households, as identified pursuant to [ECL] 75-0111 . . .”; See ECL § 27-1305(12)(“‘Disadvantaged community’ shall have the same meaning as subdivision five of [ECL] 75-0101 . . . ”) ↩︎ECL § 27-1305(5). ↩︎Id. ↩︎