N.Y. Environmental Conservation Law § 27-1327: Recovery of response costs and natural resource damages

§ 27-1327. Recovery of response costs and natural resource damages.

1. Each responsible person shall be strictly liable, jointly and

severally, for all response costs and for all natural resource damages

resulting from the disposal of hazardous waste at an inactive hazardous

waste disposal site. The commissioner may request the attorney general

commence an action in a court of competent jurisdiction to recover the

response costs and/or natural resource damages. The commissioner shall

prioritize recovering response costs and natural resource damages at

sites placed in classification 1 or 2, as described in clauses (i) and

(ii) of subparagraph one of paragraph b of subdivision two of section

27-1305 of this title, that are located in disadvantaged communities.

2. A determination or assessment of natural resource damages for the

purposes of this section made or adopted by the commissioner in

accordance with any applicable regulations promulgated under section

27-1315 of this title or under section 9651(c) of title 42 of the United

States Code shall have the force and effect of a rebuttable presumption

on behalf of the commissioner in any judicial proceeding.

3. In an action to recover response costs and/or natural resource

damages, the commissioner may also seek civil penalties under section

71-2705 of this chapter.

4. All amounts received to satisfy liability for natural resource

damages shall be credited to the department's natural resource damages

fund to be used exclusively to reimburse the reasonable costs of

assessing injury, destruction, and/or loss resulting from the disposal

of hazardous waste at the site for which the natural resource damages

were recovered and for the restoration, rehabilitation, replacement,

and/or acquisition of equivalent natural resources. Provided that any

such restoration, rehabilitation, replacement and/or acquisition shall

prioritize, to the maximum extent practicable, the natural resources of

the site for which the damages were recovered.

5. The state shall have an environmental lien for all response costs

incurred by the state and for all natural resource damages for which a

judicial determination of liability has been made upon such real

property located within the state:

(a) owned by a person liable to the state for such response costs

and/or natural resource damages under this title at the time a notice of

environmental lien is filed; and

(b) upon which the disposal of hazardous wastes occurred.

6. An environmental lien shall attach when:

(a) response costs are incurred by the state and/or a judicial

judgment of liability for natural resource damages is entered;

(b) the responsible person fails to pay such costs within ninety days

after a written demand therefor by the department is mailed by certified

or registered mail, return receipt requested, and/or fails to pay such

natural resource damages within ninety days after entry of judgment; and

(c) a notice of environmental lien is filed by the department as

provided in paragraph (a) of subdivision ten of this section; provided,

however, that a copy of the notice of environmental lien is served upon

the owner of the real property subject to the environmental lien within

thirty days of such filing in accordance with the provisions of section

eleven of the lien law.

7. (a) An environmental lien shall continue against the real property

until:

(i) the claim or judgment against the person referred to in

subdivision one of this section for response costs and/or natural

resource damages is satisfied or becomes unenforceable;

(ii) the lien is released by the commissioner pursuant to this

subdivision;

(iii) the lien is discharged by payment of monies into court; or

(iv) the lien is otherwise vacated by court order.

(b) Upon the occurrence of any event under subparagraphs (i) through

(iv) of paragraph (a) of this subdivision, except where the lien is

vacated by court order, the commissioner shall execute the release of an

environmental lien and file the release as provided in subdivision ten

of this section. The commissioner may release an environmental lien

where:

(i) a legally enforceable agreement satisfactory to the commissioner

has been executed relating to the response costs and/or natural resource

damages that are the subject of the lien; or reimbursing the state for

such response costs and/or natural resource damages; or an owner or

operator of the site subject to the lien agrees to perform remedial

work, site management, or other in-kind services of sufficient value to

the commissioner; or

(ii) the attachment or enforcement of the environmental lien is

determined by the commissioner not to be in the public interest.

8. An environmental lien is subject to the rights of any other person,

including an owner, purchaser, holder of a mortgage or security

interest, or judgment lien creditor, whose interest is perfected before

a lien notice has been filed as provided in subdivision ten of this

section.

9. A notice of environmental lien shall state:

(a) that the lienor is the state of New York;

(b) the name of the record owner of the real property on which the

environmental lien has attached;

(c) the real property subject to the lien, with a description thereof

sufficient for identification;

(d) that the real property described in the notice is the property

upon which a disposal of hazardous wastes occurred and that response

costs have been incurred by the lienor and/or that natural resource

damages have been judicially determined to be due to the lienor as a

result of such disposal;

(e) that the owner is potentially liable for response costs and/or

subject to a judgment for natural resource damages pursuant to this

title; and

(f) that an environmental lien has attached to the described real

property.

10. (a) A notice of environmental lien shall be filed in the clerk's

office of the county where the property is situated. If such property is

situated in two or more counties, the notice of environmental lien shall

be filed in the office of the clerk of each of such counties. The notice

of lien shall be indexed by the county clerk in accordance with the

provisions of section ten of the lien law. The notice of lien shall be

served upon the owner of the real property subject to the lien in

accordance with the provisions of section eleven of the lien law.

(b) A release of an environmental lien shall be filed in the clerk's

office of each county where the notice of environmental lien was filed

and shall be indexed in the manner prescribed for indexing environmental

liens.

11. An environmental lien may be enforced against the property

specified in the notice of environmental lien, and an environmental lien

may be vacated or discharged, as prescribed in article three of the lien

law; provided, however, that nothing in this article or in article three

of the lien law shall affect the right of the state to bring an action

to recover response costs and/or natural resource damages under section

one hundred seven of the federal comprehensive environmental response,

compensation, and liability act (42 U.S.C. § 9607 et seq).

12. Amounts received by the commissioner to satisfy all or part of an

environmental lien for response costs shall be deposited in the

department's hazardous waste remedial fund and amounts received to

satisfy all or part of an environmental lien for natural resource

damages shall be deposited in the department's natural resource damages

fund.

13. Environmental windfall liens. (a) A bona fide prospective

purchaser whose liability under this title and/or 42 U.S.C. § 9607 et

seq. arises solely from being considered an owner or operator of such

site shall not be subject to this subdivision as long as the bona fide

prospective purchaser does not impede the performance of a response

action or natural resource restoration.

(b) If there are unrecovered response costs incurred by the department

at an inactive hazardous waste disposal site for which an owner or

operator of the site is not liable by reason of paragraph (a) of this

subdivision, and if each of the conditions described in paragraph (c) of

this subdivision are met, the department shall have an environmental

windfall lien on the facility, or may by agreement with the owner or

operator, obtain from the owner or operator a lien on any other property

or other assurance of payment satisfactory to the department, for the

unrecovered response costs.

(c) The conditions referred to in paragraph (b) of this subdivision

are the following:

(i) A response action for which there are unrecovered costs of the

department is carried out at the inactive hazardous waste disposal site.

(ii) The response action increases the fair market value of the site

above the fair market value of the site before the response action was

initiated.

(d) An environmental windfall lien under paragraph (b) of this

subdivision:

(i) shall be in an amount not to exceed the lesser of:

(A) the incremental increase in fair market value of the property,

above the fair market value before the response action was initiated,

attributable to the response action at the time of a sale or other

disposition of the property; or

(B) any unrecovered response costs not subject to an environmental

lien attached to the property pursuant to subdivision five of this

section;

(ii) shall arise at the time at which costs are first incurred by the

department with respect to a response action at the site; and

(iii) shall be subject to the requirements of subdivisions seven,

eight, nine, ten, eleven, and twelve of this section.

14. (a) Contribution. Any person may seek contribution from any other

person who is liable or potentially liable under this title during or

following any civil action under this section. Such claims shall be

brought in accordance with this section and the civil practice law and

rules, and shall be governed by New York state law. In resolving

contribution claims, the court may allocate response costs among liable

parties using such equitable factors as the court determines are

appropriate. Nothing in this subdivision shall diminish the right of any

person to bring an action for contribution in the absence of a civil

action under this section.

(b) Settlement. A person who has resolved its liability to the state

in an administrative or judicially approved settlement shall not be

liable for claims for contribution regarding matters addressed in the

settlement. Such settlement does not discharge any of the other

potentially liable persons unless its terms so provide, but it reduces

the potential liability of the others by the amount of the settlement.

(c) Persons not party to settlement. (i) If the state has obtained

less than complete relief from a person who has resolved its liability

to the state in an administrative or judicially approved settlement, the

state may bring an action against any person who has not so resolved its

liability.

(ii) A person who has resolved its liability to the state for some or

all of a response action or for some or all of the costs of such action

in an administrative or judicially approved settlement may seek

contribution from any person who is not party to a settlement referred

to in paragraph (b) of this subdivision.

(iii) In any action under this paragraph, the rights of any person who

has resolved its liability to the state shall be subordinate to the

rights of the state.

15. (a) Limitation on claims. No new action under this title may be

commenced for natural resource damages or response costs for an inactive

hazardous waste site that was the subject of any previous action

commenced prior to the effective date of the chapter of the laws of two

thousand twenty-five which added this subdivision, 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.

(b) Actions for natural resource damages. Except as provided in

paragraphs (d) and (e) of this subdivision, an initial action under this

title for natural resource damages that occurs after the effective date

of the chapter of the laws of two thousand twenty-five which added this

subdivision, shall be commenced 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.

(c) Actions for response costs. An initial action for recovery of

response costs that occurs after the effective date of the chapter of

the laws of two thousand twenty-five which added this subdivision shall

be commenced:

(i) for a removal action, as defined by the department in regulation,

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

and consistent with the remedial action to be taken for continued

response action; and

(ii) for a remedial action, as defined by the department in

regulation, 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.

(d) Declaratory judgment. In any such action described in this

subdivision, the court shall enter a declaratory judgment on liability

for response costs or natural resource damages that will be binding on

any subsequent action or actions under this title to recover further

response costs or damages. A subsequent action or actions under this

section for further response costs at the facility or site may be

maintained at any time during the response action, but must be commenced

no later than three years after the date of completion of all response

action. Except as otherwise provided in this paragraph, an action may be

commenced under this section for recovery of costs at any time after

such costs have been incurred.

(e) Limitations on actions. No action for contribution for any

response costs or natural resource damages may be commenced 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.