USA – NEW YORK Trends and Developments Contributed by: David P Flynn and Shengkai Xu, Phillips Lytle LLP
Amending New York State’s Inactive Hazardous Waste Disposal Site Program New York State’s Inactive Hazardous Waste Disposal Site Program, commonly known as the State Super- fund Program, was first established in 1979 to identify, investigate and remediate sites in New York State that are impacted by the historical disposal of hazardous waste. On 9 May 2025, the Program received an addi- tional USD1.25 billion funding and a ten-year reauthor- isation as part of New York State’s fiscal year 2025- 2026 executive budget. A new Section 27-1305 (5) was added in Environmental Conservation Law (ECL) to require the New York State Department of Environ- mental Conservation (NYSDEC) to create State Super- fund Site prioritisation criteria and prioritise impacted sites that are located in disadvantaged communities. Specifically, actions to address NYSDEC-designated Class 2 sites, which present a significant threat, will be prioritised on a scoring system of 100 possible points. The scoring system weighs human health threats the highest, followed by environmental threats, proximity to the state’s mapped disadvantaged communities The 2025-2026 budget enacted a new Section 27-1329 to the ECL, which created a streamlined enforcement authority for NYSDEC to initiate abate- ment actions upon finding that there may be imminent danger or threat to human health or the environment. The recipient party may request a meeting with NYS- DEC to demand reconsideration of the order within five business days of receiving the abatement order. The recipient party is further entitled to challenge the order administratively and via special proceedings under Article 78 of New York’s Civil Practice Law and Rules. Non-compliance with NYSDEC’s abatement orders may expose the recipient to significant penal- ties of up to USD37,500 each day the non-compliance continues. Under ECL Section 27-1329 (3), NYSDEC is prohibited from issuing abatement orders for a peri- od of one year from 9 May 2025. Natural resource damages and economic redevelopment potential. Enforcement through abatement orders The 2025-2026 budget added a new Section 27-1327 to the ECL, which authorises the state to recover from one or more responsible parties all natural resource damages that result from the disposal of hazardous
waste at a site. Each responsible party is subject to strict, joint and several liability. Natural resource dam- ages, as defined in Section 27-1301 (8), include com- pensatory damages for the loss of natural resources, reasonable costs incurred to assess such damages and the value of the natural resource services that were lost. Under ECL Section 27-1327 (4), costs recovered from natural resource damages are to be used exclu- sively for the restoration, rehabilitation, replacement and acquisition of equivalent natural resources. Bona fide prospective purchaser defence The 2025-2026 budget enacted a broadened defini- tion of a “responsible person” for the disposal of haz- ardous waste at a site. Under the revised definition at ECL Section 27-1301 (11), a “responsible person” now includes any person who currently owns or oper- ates any portion of the site except for a volunteer in the state brownfield cleanup programme (BCP). How- ever, BCP volunteers can become responsible parties if they engage in bad faith with respect to any provi- sion of Title 13, Article 27 of the ECL or are not in full compliance with the law. ECL Section 27-1323 (5) created a bona fide prospec- tive purchaser liability defence. It protects purchas- ers who are not affiliated with a responsible party but acquired property with knowledge that the property has been impacted by hazardous waste. To assert this affirmative defence, one must establish that it has conducted all appropriate inquiries for the prop- erty’s environmental conditions before obtaining title or leasehold interest, and that any releases of haz - ardous substances at the property occurred prior to the party’s acquisition of the property. Moreover, the bona fide prospective purchaser must provide all legally required notices with respect to the discovery or disposal of any hazardous waste at the site, exer- cise appropriate care by taking reasonable steps to stop continuing discharges, prevent future discharges and prevent exposure to previously disposed hazard- ous waste. The bona fide prospective purchaser must also co-operate with and provide access to NYSDEC, comply with requests for information and comply with required land use restrictions and institutional con- trols. Determination of a party’s eligibility to the bona fide prospective purchaser defence is a fact-intensive inquiry. It is in general good practice to carefully docu-
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