New York State Enacts Significant Amendments to State Superfund Program
New York’s recently passed 2025 Executive Budget includes significant amendments to sections of the New York Environmental Conservation Law that concern the Inactive Hazardous Waste Disposal Site Remedial Program, commonly referred to as the State Superfund Program (“SSF”). This is one of the principal environmental remediation programs in the State. These amendments, originally proposed in S.3008-C/A.3008-C and signed into law by Governor Hochul as Chapter Law 58, align New York’s state-level liability framework more closely with standards outlined in the Federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”, 42 U.S.C. §§ 9601–9675).
Most notably, the amendments to the State Superfund Program strengthen the enforcement authority of the New York State Department of Environmental Conservation (“DEC”) and emphasize environmental justice priorities. They also codify a state analog to CERCLA’s “bona fide prospective purchaser” (“BFPP”) defense, a provision which was previously absent from New York’s SSF program. See a brief summary of significant amendments below:
Overview of Significant Amendments
CERCLA is one of a handful of major Federal environmental statutes that does not include provisions allowing for delegated oversight authority to states that seek to implement programs at least as stringent as the Federal requirements. This has led to a number of states promulgating “mini-Superfund” programs, allowing for similar enforcement oversight, but typically requiring any formal litigation to include federal claims. While these changes do not alter that approach, they do strengthen aspects of New York-based enforcement provisions, as well as the potential defenses that can be raised in any formal proceeding.
The amendments revise certain liability standards and introduce new potential defenses under the SSF program. The definition of “responsible person” is broadened to include any owner, operator, disposer, arranger, or transporter (excluding only New York State Brownfield Cleanup Program volunteers) as liable for hazardous waste disposal at a site. Due to this expanded definition, and the potential liability to innocent parties resulting from it, the amendments also provide for BFPP safe harbor status for “Responsible Parties” in line with the federal standard under CERCLA. The amended language would provide similar protections from liability under the SSF program to good-faith buyers who conduct “all appropriate inquiries” relating to potential contamination and satisfy continuing care obligations. This represents a significant departure from the previous common law “innocent owner” defense and provides both owners and buyers with increased clarity in the context of contaminated site transactions.
The amendments also present a marked shift in the procedure and framework for enforcement under the SSF program. The amendments introduce a summary abatement mechanism modeled on NY ECL § 71-301, through which the DEC may issue an order finding an imminent danger to public health or the environment. If a party subsequently fails to comply or refuses to enter a remedial program, the DEC may refer the matter to the attorney general for injunctive relief or cost recovery. Orders under this section may be challenged initially through an administrative appeal process, and subsequently via a civil action under Article 78 if upheld. DEC still retains the ability to issue notices of potential liability, pursue consent orders, or undertake cleanups and seek cost recovery through litigation. The amendments also raise civil penalties closer to federal levels under CERCLA ($65,000 to $125,000 per day for continuing violations).
The amendments also contain several mechanisms relating to environmental justice considerations. Namely, local governments will play a larger role in the process of identifying potential inactive hazardous waste sites within disadvantaged communities. DEC must now consider referrals these sites made by local governments in prioritizing state-funded cleanups. The statute directs State Superfund dollars to Class 1 and 2 sites located in disadvantaged communities, supporting direct state remediation in these areas.
Hodgson Russ Insights
These amendments will assist, at least in part, in aligning the Inactive Hazardous Waste remediation program with Federal standards under CERCLA. This regulatory revision tracks an ongoing process by the DEC to update its remedial program regulations and guidance, which includes DEC’s promulgation of revised regulations under 6 NYCRR Part 375 to address State remedial programs, as well as the State’s Soil Cleanup Guidance known as Commissioner’s Policy-51.
In particular, the express codification of BFPP protections provides an additional defense to State liability that has been noticeably absent for some time. The strengthened abatement referral process, combined with heightened penalties, enhances DEC’s enforcement ability, and will raise questions regarding how and when the State will seek to utilize this authority. Most notable in that regard is the ability of the summary abatement authority to provide the DEC with an effective enforcement tool without the need to rely on unilateral orders. Both current property owners and prospective buyers should familiarize themselves with these new procedures and consider how these amendments will impact potential exposure to liability under the Program.
Hodgson Russ will continue to monitor the impacts of these amendments to the SSF program and other relevant regulatory updates. For further information, please contact Michael Hecker, Jeff Stravino, Michael Boncardo, Dan Spitzer, or any other member of the Hodgson Russ Environmental & Energy Practice.
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