/>iAs part of the 2025 Executive Budget, New York’s legislature has passed significant amendments to New York’s Environmental Conservation Law concerning the Inactive Hazardous Waste Disposal Site Remedial Program—commonly referred to as the State Superfund program. It is anticipated that the governor will sign the legislation. The proposed amendments (S.8308-C/A.8808-C) would align New York’s state-level liability framework more closely with core components of federal CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601–9675.
The new law would strengthen enforcement authority and emphasizes environmental justice (EJ) priorities. Notably, it codifies a state analog to CERCLA’s “bona fide prospective purchaser” (BFPP) defense—previously absent from New York statutory law. This legislative package marks a departure from the governor’s initial proposal and signals a broader evolution of the State Superfund program. Property owners, prospective purchasers, and others should carefully assess how these changes affect liability exposure and the steps necessary to qualify for liability protections.
Revising Liability Standards and Introducing New Defenses
The bill broadens the definition of “responsible person,” to include any owner, operator, disposer, arranger, or transporter—excluding only Brownfield Cleanup Program volunteers—as liable for hazardous waste disposal at a site. Without carve-outs, this expansive language would capture “innocent owners” and prospective purchasers of contaminated sites who had no role in the contamination. While the definition aligns with federal CERCLA, the governor’s initial January 2025 proposal did not include CERCLA-style defenses, potentially complicating the sale of contaminated properties. The law, as-passed, now provides for a state BFPP safe harbor. Since 2002, federal CERCLA law has recognized that a party can maintain BFPP status to avoid potential liability for the purchase of a contaminated site so long as certain statutory criteria are met. New York’s version would extend similar protections to good-faith buyers who conduct “all appropriate inquiries” and fulfill continuing care obligations. This marks a significant improvement over New York’s vague common law “innocent owner” defense, which was largely derived from Navigation Law oil spill cases, offering greater clarity for purchasers navigating contaminated site transactions.
Shifts in Enforcement and Procedural Architecture
The new legislation also rejects an earlier proposal authorizing the DEC commissioner to issue unilateral cleanup orders, akin to EPA’s power under CERCLA § 106. Instead, the bill introduces a summary abatement mechanism modeled on NY ECL § 71-301, under which the commissioner may issue an order finding an imminent danger to health or welfare of the people or environment. If a party 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 may be challenged administratively and, if upheld, via an Article 78 proceeding. The legislation leaves unchanged the DEC’s ability to issue notices of potential liability, pursue consent orders, or undertake cleanups and seek cost recovery through litigation. The bill also raises civil penalties significantly—to $65,000 to $125,000 per day for continuing violations—bringing them closer to federal levels.
Environmental Justice Considerations
The bill enhances the role of local governments in identifying potential inactive hazardous waste sites, particularly within disadvantaged communities (DACs). DEC must now consider these referrals in prioritizing state-funded cleanups. The statute directs state Superfund dollars—not voluntary cleanup incentives—to Class 1 and 2 sites located in DACs, marking a policy shift that favors direct state remediation in EJ areas. Again, tying into developments at the federal level that have mostly abandoned prior administrations’ focus on DACs, New York law now expressly compels the prioritization of cleanups in DACs, giving the state primacy in the protection of these communities.
GT Insights
This bill marks a significant step toward aligning New York’s Superfund program with federal CERCLA, particularly by its codifying BFPP protections. Previously, good-faith purchasers had limited options—either enter a Brownfield agreement, BFPP administrative consent order, or litigate under an ill-defined “innocent owner” defense. The new framework would provide clearer, more accessible liability relief. The adoption of established summary abatement authority seeks to balance the need for administrative enforcement tools without overreaching through unilateral orders. The structured abatement referral process, combined with heightened penalties, enhances enforcement while allowing for both administrative and judicial review. This new framework should strengthen the state’s leverage over noncompliant actors without risking over-reliance on heavy-handed unilateral orders in ordinary agency disputes. Finally, the mandated prioritization of Class 1 and 2 cleanups in DACs signals a state-led commitment to EJ—positioning New York as the primary regulator of that space amid inconsistent federal policy.
