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

New York § 27-1327

• Jurisdiction: New York
• Law ENV: Environmental Conservation
• Title 13: Inactive Hazardous Waste Disposal Sites
• Art. 27: Reduction, Collection, Reuse, Recycling, Treatment and Disposal of Solid Waste

Text

§ 27-1327. Recovery of response costs and natural resource damages.\n 1. Each responsible person shall be strictly liable, jointly and\nseverally, for all response costs and for all natural resource damages\nresulting from the disposal of hazardous waste at an inactive hazardous\nwaste disposal site. The commissioner may request the attorney general\ncommence an action in a court of competent jurisdiction to recover the\nresponse costs and/or natural resource damages. The commissioner shall\nprioritize recovering response costs and natural resource damages at\nsites placed in classification 1 or 2, as described in clauses (i) and\n(ii) of subparagraph one of paragraph b of subdivision two of section\n27-1305 of this title, that are located in disadvantaged communities.\n 2. A determination or assessment of natural resource damages for the\npurposes of this section made or adopted by the commissioner in\naccordance with any applicable regulations promulgated under section\n27-1315 of this title or under section 9651(c) of title 42 of the United\nStates Code shall have the force and effect of a rebuttable presumption\non behalf of the commissioner in any judicial proceeding.\n 3. In an action to recover response costs and/or natural resource\ndamages, the commissioner may also seek civil penalties under section\n71-2705 of this chapter.\n 4. All amounts received to satisfy liability for natural resource\ndamages shall be credited to the department's natural resource damages\nfund to be used exclusively to reimburse the reasonable costs of\nassessing injury, destruction, and/or loss resulting from the disposal\nof hazardous waste at the site for which the natural resource damages\nwere recovered and for the restoration, rehabilitation, replacement,\nand/or acquisition of equivalent natural resources. Provided that any\nsuch restoration, rehabilitation, replacement and/or acquisition shall\nprioritize, to the maximum extent practicable, the natural resources of\nthe site for which the damages were recovered.\n 5. The state shall have an environmental lien for all response costs\nincurred by the state and for all natural resource damages for which a\njudicial determination of liability has been made upon such real\nproperty located within the state:\n (a) owned by a person liable to the state for such response costs\nand/or natural resource damages under this title at the time a notice of\nenvironmental lien is filed; and\n (b) upon which the disposal of hazardous wastes occurred.\n 6. An environmental lien shall attach when:\n (a) response costs are incurred by the state and/or a judicial\njudgment of liability for natural resource damages is entered;\n (b) the responsible person fails to pay such costs within ninety days\nafter a written demand therefor by the department is mailed by certified\nor registered mail, return receipt requested, and/or fails to pay such\nnatural resource damages within ninety days after entry of judgment; and\n (c) a notice of environmental lien is filed by the department as\nprovided in paragraph (a) of subdivision ten of this section; provided,\nhowever, that a copy of the notice of environmental lien is served upon\nthe owner of the real property subject to the environmental lien within\nthirty days of such filing in accordance with the provisions of section\neleven of the lien law.\n 7. (a) An environmental lien shall continue against the real property\nuntil:\n (i) the claim or judgment against the person referred to in\nsubdivision one of this section for response costs and/or natural\nresource damages is satisfied or becomes unenforceable;\n (ii) the lien is released by the commissioner pursuant to this\nsubdivision;\n (iii) the lien is discharged by payment of monies into court; or\n (iv) the lien is otherwise vacated by court order.\n (b) Upon the occurrence of any event under subparagraphs (i) through\n(iv) of paragraph (a) of this subdivision, except where the lien is\nvacated by court order, the commissioner shall execute the release of an\nenvironmental lien and file the release as provided in subdivision ten\nof this section. The commissioner may release an environmental lien\nwhere:\n (i) a legally enforceable agreement satisfactory to the commissioner\nhas been executed relating to the response costs and/or natural resource\ndamages that are the subject of the lien; or reimbursing the state for\nsuch response costs and/or natural resource damages; or an owner or\noperator of the site subject to the lien agrees to perform remedial\nwork, site management, or other in-kind services of sufficient value to\nthe commissioner; or\n (ii) the attachment or enforcement of the environmental lien is\ndetermined by the commissioner not to be in the public interest.\n 8. An environmental lien is subject to the rights of any other person,\nincluding an owner, purchaser, holder of a mortgage or security\ninterest, or judgment lien creditor, whose interest is perfected before\na lien notice has been filed as provided in subdivision ten of this\nsection.\n 9. A notice of environmental lien shall state:\n (a) that the lienor is the state of New York;\n (b) the name of the record owner of the real property on which the\nenvironmental lien has attached;\n (c) the real property subject to the lien, with a description thereof\nsufficient for identification;\n (d) that the real property described in the notice is the property\nupon which a disposal of hazardous wastes occurred and that response\ncosts have been incurred by the lienor and/or that natural resource\ndamages have been judicially determined to be due to the lienor as a\nresult of such disposal;\n (e) that the owner is potentially liable for response costs and/or\nsubject to a judgment for natural resource damages pursuant to this\ntitle; and\n (f) that an environmental lien has attached to the described real\nproperty.\n 10. (a) A notice of environmental lien shall be filed in the clerk's\noffice of the county where the property is situated. If such property is\nsituated in two or more counties, the notice of environmental lien shall\nbe filed in the office of the clerk of each of such counties. The notice\nof lien shall be indexed by the county clerk in accordance with the\nprovisions of section ten of the lien law. The notice of lien shall be\nserved upon the owner of the real property subject to the lien in\naccordance with the provisions of section eleven of the lien law.\n (b) A release of an environmental lien shall be filed in the clerk's\noffice of each county where the notice of environmental lien was filed\nand shall be indexed in the manner prescribed for indexing environmental\nliens.\n 11. An environmental lien may be enforced against the property\nspecified in the notice of environmental lien, and an environmental lien\nmay be vacated or discharged, as prescribed in article three of the lien\nlaw; provided, however, that nothing in this article or in article three\nof the lien law shall affect the right of the state to bring an action\nto recover response costs and/or natural resource damages under section\none hundred seven of the federal comprehensive environmental response,\ncompensation, and liability act (42 U.S.C. § 9607 et seq).\n 12. Amounts received by the commissioner to satisfy all or part of an\nenvironmental lien for response costs shall be deposited in the\ndepartment's hazardous waste remedial fund and amounts received to\nsatisfy all or part of an environmental lien for natural resource\ndamages shall be deposited in the department's natural resource damages\nfund.\n 13. Environmental windfall liens. (a) A bona fide prospective\npurchaser whose liability under this title and/or 42 U.S.C. § 9607 et\nseq. arises solely from being considered an owner or operator of such\nsite shall not be subject to this subdivision as long as the bona fide\nprospective purchaser does not impede the performance of a response\naction or natural resource restoration.\n (b) If there are unrecovered response costs incurred by the department\nat an inactive hazardous waste disposal site for which an owner or\noperator of the site is not liable by reason of paragraph (a) of this\nsubdivision, and if each of the conditions described in paragraph (c) of\nthis subdivision are met, the department shall have an environmental\nwindfall lien on the facility, or may by agreement with the owner or\noperator, obtain from the owner or operator a lien on any other property\nor other assurance of payment satisfactory to the department, for the\nunrecovered response costs.\n (c) The conditions referred to in paragraph (b) of this subdivision\nare the following:\n (i) A response action for which there are unrecovered costs of the\ndepartment is carried out at the inactive hazardous waste disposal site.\n (ii) The response action increases the fair market value of the site\nabove the fair market value of the site before the response action was\ninitiated.\n (d) An environmental windfall lien under paragraph (b) of this\nsubdivision:\n (i) shall be in an amount not to exceed the lesser of:\n (A) the incremental increase in fair market value of the property,\nabove the fair market value before the response action was initiated,\nattributable to the response action at the time of a sale or other\ndisposition of the property; or\n (B) any unrecovered response costs not subject to an environmental\nlien attached to the property pursuant to subdivision five of this\nsection;\n (ii) shall arise at the time at which costs are first incurred by the\ndepartment with respect to a response action at the site; and\n (iii) shall be subject to the requirements of subdivisions seven,\neight, nine, ten, eleven, and twelve of this section.\n 14. (a) Contribution. Any person may seek contribution from any other\nperson who is liable or potentially liable under this title during or\nfollowing any civil action under this section. Such claims shall be\nbrought in accordance with this section and the civil practice law and\nrules, and shall be governed by New York state law. In resolving\ncontribution claims, the court may allocate response costs among liable\nparties using such equitable factors as the court determines are\nappropriate. Nothing in this subdivision shall diminish the right of any\nperson to bring an action for contribution in the absence of a civil\naction under this section.\n (b) Settlement. A person who has resolved its liability to the state\nin an administrative or judicially approved settlement shall not be\nliable for claims for contribution regarding matters addressed in the\nsettlement. Such settlement does not discharge any of the other\npotentially liable persons unless its terms so provide, but it reduces\nthe potential liability of the others by the amount of the settlement.\n (c) Persons not party to settlement. (i) If the state has obtained\nless than complete relief from a person who has resolved its liability\nto the state in an administrative or judicially approved settlement, the\nstate may bring an action against any person who has not so resolved its\nliability.\n (ii) A person who has resolved its liability to the state for some or\nall of a response action or for some or all of the costs of such action\nin an administrative or judicially approved settlement may seek\ncontribution from any person who is not party to a settlement referred\nto in paragraph (b) of this subdivision.\n (iii) In any action under this paragraph, the rights of any person who\nhas resolved its liability to the state shall be subordinate to the\nrights of the state.\n 15. (a) Limitation on claims. No new action under this title may be\ncommenced for natural resource damages or response costs for an inactive\nhazardous waste site that was the subject of any previous action\ncommenced prior to the effective date of the chapter of the laws of two\nthousand twenty-five which added this subdivision, regardless of: the\nvenue in which such previous action was commenced; the statutory or\ncommon law source of such action, including settlement agreements; the\ncompleteness or totality of permissible recovery of such action; or the\nfinality of any such action.\n (b) Actions for natural resource damages. Except as provided in\nparagraphs (d) and (e) of this subdivision, an initial action under this\ntitle for natural resource damages that occurs after the effective date\nof the chapter of the laws of two thousand twenty-five which added this\nsubdivision, shall be commenced within three years after the later of\nthe following:\n (i) the date of the discovery of the loss and its connection with the\nrelease in question; or\n (ii) for any facility listed on the federal National Priorities List,\nany site listed on the New York state registry of inactive hazardous\nwaste disposal sites, or any site at which a remedial action under this\nchapter is otherwise scheduled: the date of completion of the remedial\naction, excluding operation and maintenance activities.\n (c) Actions for response costs. An initial action for recovery of\nresponse costs that occurs after the effective date of the chapter of\nthe laws of two thousand twenty-five which added this subdivision shall\nbe commenced:\n (i) for a removal action, as defined by the department in regulation,\nwithin three years after completion of the removal action, except that\nsuch cost recovery action shall be commenced within six years after a\ndetermination that continued response action is otherwise appropriate\nand consistent with the remedial action to be taken for continued\nresponse action; and\n (ii) for a remedial action, as defined by the department in\nregulation, within six years after initiation of physical on-site\nconstruction of the remedial action, except that, if the remedial action\nis initiated within three years after the completion of the removal\naction, costs incurred in the removal action may be recovered in the\ncost recovery action brought under this subparagraph.\n (d) Declaratory judgment. In any such action described in this\nsubdivision, the court shall enter a declaratory judgment on liability\nfor response costs or natural resource damages that will be binding on\nany subsequent action or actions under this title to recover further\nresponse costs or damages. A subsequent action or actions under this\nsection for further response costs at the facility or site may be\nmaintained at any time during the response action, but must be commenced\nno later than three years after the date of completion of all response\naction. Except as otherwise provided in this paragraph, an action may be\ncommenced under this section for recovery of costs at any time after\nsuch costs have been incurred.\n (e) Limitations on actions. No action for contribution for any\nresponse costs or natural resource damages may be commenced more than\nthree years after:\n (i) the date of judgment in any action under this section for recovery\nof such costs or damages; or\n (ii) the date of a judicially approved settlement with respect to such\ncosts or damages.\n