senate Bill S5418A

Amended

Relates to responsible parties for petroleum contaminated sites and incentives to parties who are willing to remediate such sites

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 19 / May / 2011
    • REFERRED TO ENVIRONMENTAL CONSERVATION
  • 23 / May / 2011
    • AMEND (T) AND RECOMMIT TO ENVIRONMENTAL CONSERVATION
  • 23 / May / 2011
    • PRINT NUMBER 5418A
  • 07 / Jun / 2011
    • 1ST REPORT CAL.1046
  • 13 / Jun / 2011
    • 2ND REPORT CAL.
  • 14 / Jun / 2011
    • ADVANCED TO THIRD READING
  • 16 / Jun / 2011
    • PASSED SENATE
  • 16 / Jun / 2011
    • DELIVERED TO ASSEMBLY
  • 16 / Jun / 2011
    • REFERRED TO ENVIRONMENTAL CONSERVATION
  • 04 / Jan / 2012
    • DIED IN ASSEMBLY
  • 04 / Jan / 2012
    • RETURNED TO SENATE
  • 04 / Jan / 2012
    • REFERRED TO ENVIRONMENTAL CONSERVATION
  • 23 / May / 2012
    • AMEND AND RECOMMIT TO ENVIRONMENTAL CONSERVATION
  • 23 / May / 2012
    • PRINT NUMBER 5418B
  • 05 / Jun / 2012
    • 1ST REPORT CAL.1041
  • 06 / Jun / 2012
    • 2ND REPORT CAL.
  • 11 / Jun / 2012
    • ADVANCED TO THIRD READING
  • 21 / Jun / 2012
    • PASSED SENATE
  • 21 / Jun / 2012
    • DELIVERED TO ASSEMBLY
  • 21 / Jun / 2012
    • REFERRED TO ENVIRONMENTAL CONSERVATION

Summary

Relates to responsible parties for petroleum contaminated sites and incentives to parties who are willing to remediate such sites; provides that a discharger may present evidence as to third party responsibility for petroleum discharge; provides for apportionment of liability; provides that parties willing to remediate such discharge shall be entitled to liability limitation.

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Bill Details

See Assembly Version of this Bill:
A8192
Versions:
S5418
S5418A
S5418B
Legislative Cycle:
2011-2012
Current Committee:
Assembly Environmental Conservation
Law Section:
Navigation Law
Laws Affected:
Amd §§176, 180, 181 & 183, Nav L

Sponsor Memo

BILL NUMBER:S5418A

TITLE OF BILL:
An act
to amend the navigation law, in relation to responsible parties for
petroleum contaminated sites and incentives to parties who are
willing to remediate petroleum contaminated sites

PURPOSE:
This bill establishes a new allocation scheme under the Navigation Law
to enable the Department of Environmental Conservation ("Department")
to fairly allocate responsibility for a cleanup among the dischargers
who should be responsible to share in the remediation costs; and
establishes a new liability limitation that would incentivize parties
to remediate contaminated sites.

SUMMARY OF PROVISIONS:
Section 1 of this bill would amend Navigation Law § 176 paragraph (a)
of subdivision 2 to allow a party that the Department has deemed a
discharger of a petroleum spill to be able to present evidence that
another party is solely responsible for the discharge, and to require
the Department to consider and make a determination upon that evidence.

Section 2 of this bill would amend Navigation Law § 180 subdivisions 1
and 2 to allow for the State Comptroller's Administrator of the spill
fund to represent the State at meetings with more than one discharger
and to apportion liability among more than one discharger at a
meeting or hearing.

Section 3 of this bill would amend Navigation Law § 181 subdivision 1
to include a liability limitation incentive to parties who agree to
perform a spill cleanup.

Section 4 of this bill would amend Navigation Law § 183 to allow the
Administrator to promote and arrange a settlement between the
claimant and multiple dischargers and to allow an alleged discharger
to present evidence to the Administrator that another party may be
wholly or partially responsible for the claim.

JUSTIFICATION:
The Navigation Law provisions related to the remediation of petroleum
contaminated sites have not been amended since 1992. Often, more than
one discharger can be held liable for the cleanup of an oil spill
site. The current liability scheme encourages the Department to seek
cleanup response costs from a single discharger, which has resulted
in burdensome litigation among responsible parties in the aftermath.
All too often, a single discharger cannot afford the heavy cost of
third party litigation. Where the single discharger is a subsequent
owner of a contaminated site, these costs can be unforeseen and in
this way the current scheme can be devastating to New York State
businesses. This bill levels the playing field and allows the agencies

to consider evidence presented by the first named discharger that
others either are fully or partially responsible and bring all the
potentially responsible dischargers to the table at once. In
addition, the bill provides a new incentive in the form of the
liability limitation to parties who cooperate with the agencies and
proceed with the remediation. These amendments are critical to making
remediation procedures more efficient and less burdensome while
maintaining the integrity of the State's strict liability scheme.

LEGISLATIVE HISTORY:
This is a new bill.

FISCAL IMPLICATIONS:
These changes will result in more expeditious cleanups of petroleum
contaminated sites throughout the State with increased tax revenue
from remediated sites. There should be little to no cost to the
agencies since significant expenses are now incurred by these
agencies through enforcement efforts to secure cleanup cost recovery
from the incorrect parties and because tax revenue from the
redevelopment of these sites should offset any need for additional
staff.

EFFECTIVE DATE:
This act shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5418--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              May 19, 2011
                               ___________

Introduced by Sens. GRISANTI, MAZIARZ -- read twice and ordered printed,
  and  when  printed  to  be committed to the Committee on Environmental
  Conservation -- committee discharged, bill amended, ordered  reprinted
  as amended and recommitted to said committee

AN  ACT  to amend the navigation law, in relation to responsible parties
  for petroleum contaminated sites and incentives  to  parties  who  are
  willing to remediate petroleum contaminated sites

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  Paragraph (a) of subdivision 2 of section 176 of the navi-
gation law, as amended by chapter 584 of the laws of 1992, is amended to
read as follows:
  (a) Upon the occurrence of a discharge of  petroleum,  the  department
shall  respond  promptly and proceed to cleanup and remove the discharge
in accordance with environmental priorities or may, at  its  discretion,
direct  the discharger to promptly cleanup and remove the discharge.  IF
A PERSON THE DEPARTMENT DEEMS A DISCHARGER, AND THUS DIRECTS TO  CLEANUP
AND  REMOVE  THE DISCHARGE PURSUANT TO THIS SECTION PRESENTS THE DEPART-
MENT WITH EVIDENCE THAT A THIRD PARTY  IS  SOLELY  RESPONSIBLE  FOR  THE
DISCHARGE  AND REQUESTS THE DEPARTMENT TO DETERMINE WHETHER THE EVIDENCE
ESTABLISHES THE THIRD PARTY IS IN FACT SOLELY RESPONSIBLE,  THE  DEPART-
MENT  SHALL, WITHIN THIRTY DAYS OF RECEIPT OF SUCH REQUEST, DETERMINE IN
WRITING EITHER THAT THE THIRD PARTY: (I) SHALL BE DEEMED A DISCHARGER BY
THE DEPARTMENT, AND SHALL BE  DIRECTED  TO  UNDERTAKE  THE  CLEANUP  AND
REMOVAL OF THE DISCHARGE; OR (II) WILL NOT BE DEEMED A DISCHARGER BY THE
DEPARTMENT  BECAUSE  THE  INFORMATION  PRESENTED  DOES NOT ESTABLISH THE
RESPONSIBILITY OF THE THIRD PARTY BY A PREPONDERANCE  OF  THE  EVIDENCE.
The  department  shall  be responsible for cleanup and removal or as the
case may be, for retaining agents  and  contractors  who  shall  operate
under the direction of that department for such purposes. Implementation
of  cleanup  and  removal  procedures  after  each  discharge  shall  be

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11700-02-1

S. 5418--A                          2

conducted in accordance with  environmental  priorities  and  procedures
established by the department.
  S 2. Subdivisions 1 and 2 of section 180 of the navigation law, subdi-
vision  1  as added by chapter 845 of the laws of 1977 and subdivision 2
as amended by chapter 672 of the laws of 1991, are amended  to  read  as
follows:
  1.  To  represent the state in meetings with the alleged discharger OR
DISCHARGERS and claimants concerning liability  for  the  discharge  and
amount  of  the  claims,  AND, IF THERE IS MORE THAN ONE DISCHARGER IN A
MEETING, TO APPORTION LIABILITY FOR THE DISCHARGE;
  2. To determine if hearings are needed  to  settle  particular  claims
filed  by  injured  persons AND TO APPORTION LIABILITY BETWEEN AND AMONG
DISCHARGERS;
  S 3. Subdivision 1 of section 181 of the navigation law, as amended by
chapter 712 of the laws of 1989, is amended to read as follows:
  1. (A) Any person who  has  discharged  petroleum  shall  be  strictly
liable,  without  regard to fault, for all cleanup and removal costs and
all direct and indirect damages, no matter by whom sustained, as defined
in this section, UNLESS THE  LIABILITY  LIMITATION  AS  DESCRIBED  UNDER
PARAGRAPH  (B)  OF THIS SUBDIVISION APPLIES.  In addition to cleanup and
removal costs and damages, any such  person  who  is  notified  of  such
release  and who did not undertake relocation of persons residing in the
area of the discharge in accordance with paragraph  (c)  of  subdivision
seven  of  section  one  hundred  seventy-six  of this article, shall be
liable to the fund for an amount equal  to  two  times  the  actual  and
necessary  expense  incurred by the fund for such relocation pursuant to
section one hundred seventy-seven-a of this article.
  (B) (I) ANY PERSON WHO AGREES TO REMEDIATE THE DISCHARGE TO THE SATIS-
FACTION OF THE DEPARTMENT, AND IN CONFORMANCE WITH THIS  ARTICLE,  SHALL
BE  ENTITLED  TO  RECEIVE  LIABILITY LIMITATION. SUCH AGREEMENT SHALL BE
CALLED THE LIABILITY LIMITATION  AGREEMENT  AND  SHALL  BE  WRITTEN  AND
EXECUTED  BY BOTH THE DEPARTMENT AND SUCH PERSON. AFTER EXECUTION OF THE
LIABILITY LIMITATION AGREEMENT, SUCH PERSON SHALL NOT BE LIABLE  TO  THE
STATE  UPON  ANY STATUTORY OR COMMON LAW CAUSE OF ACTION, ARISING OUT OF
THE PRESENCE OF ANY CONTAMINATION IN, ON, OR  EMANATING  FROM  THE  SITE
THAT  WAS  THE  SUBJECT  OF  THE  LIABILITY LIMITATION, EXCEPT THAT SUCH
PERSON SHALL NOT RECEIVE A RELEASE FOR NATURAL RESOURCE DAMAGES THAT MAY
BE AVAILABLE UNDER LAW.   THE LIABILITY LIMITATION SHALL  APPLY  TO  ALL
SUCCESSORS IN OWNERSHIP OF THE PROPERTY AND TO ALL PERSONS WHO LEASE THE
PROPERTY OR WHO ENGAGE IN OPERATIONS ON THE PROPERTY, PROVIDED THAT SUCH
PERSONS  ACT  WITH  DUE CARE AND IN GOOD FAITH TO ADHERE TO THE REQUIRE-
MENTS OF THE LIABILITY LIMITATION AGREEMENT.
  (II) A LIABILITY LIMITATION AGREEMENT AND THE PROTECTIONS  IT  AFFORDS
SHALL NOT APPLY TO ANY DISCHARGE THAT OCCURS SUBSEQUENT TO THE EXECUTION
OF  THE LIABILITY LIMITATION AGREEMENT, NOR SHALL A LIABILITY LIMITATION
AGREEMENT AND THE PROTECTIONS IT AFFORDS RELIEVE ANY PERSON OF THE OBLI-
GATIONS TO COMPLY IN THE FUTURE WITH LAWS  AND  REGULATIONS.  THE  STATE
NONETHELESS SHALL RESERVE ALL OF ITS RIGHTS CONCERNING, AND SUCH LIABIL-
ITY  LIMITATION  SHALL  NOT  EXTEND TO, ANY FURTHER INVESTIGATION AND/OR
REMEDIATION THE DEPARTMENT DEEMS NECESSARY DUE TO  FRAUD,  NONCOMPLIANCE
WITH  THE  TERMS  THAT  FORMED  THE LIABILITY LIMITATION AGREEMENT, OR A
WRITTEN FINDING BY THE DEPARTMENT THAT  A  CHANGE  IN  AN  ENVIRONMENTAL
STANDARD,  FACTOR,  OR  CRITERION  UPON  WHICH  THE LIABILITY LIMITATION
AGREEMENT WAS  BASED  WOULD  RENDER  REMEDIATION  ACTIVITIES  NO  LONGER
PROTECTIVE  OF PUBLIC HEALTH OR THE ENVIRONMENT. NOTHING IN THIS SECTION
SHALL AFFECT THE LIABILITY OF THE PERSON RESPONSIBLE FOR  SUCH  PERSON'S

S. 5418--A                          3

OWN ACTS OR OMISSIONS CAUSING WRONGFUL DEATH OR PERSONAL INJURY. NOTHING
IN THIS SECTION SHALL AFFECT THE LIABILITY OF ANY PERSON WITH RESPECT TO
ANY CIVIL ACTION BROUGHT BY A PARTY OTHER THAN THE STATE. THE PROVISIONS
OF THIS SECTION SHALL NOT AFFECT AN ACTION OR A CLAIM, INCLUDING A STAT-
UTORY OR COMMON LAW CLAIM FOR CONTRIBUTION OR INDEMNIFICATION, THAT SUCH
PERSON HAS OR MAY HAVE AGAINST A THIRD PARTY.
  S 4. Section 183 of the navigation law, as added by chapter 845 of the
laws of 1977, is amended to read as follows:
  S 183. Settlements.  The  administrator  shall  attempt to promote and
arrange a settlement between the claimant  and  the  person  OR  PERSONS
responsible  for  the  discharge.  If the source of the discharge can be
determined and liability is  conceded,  the  claimant  and  the  alleged
discharger OR DISCHARGERS may agree to a settlement which shall be final
and  binding  upon the parties and which will waive all recourse against
the fund.  TO THE EXTENT AN ALLEGED DISCHARGER PRESENTS EVIDENCE TO  THE
ADMINISTRATOR  THAT ANOTHER PARTY IS WHOLLY OR PARTIALLY RESPONSIBLE FOR
THE CLAIM, AND REQUESTS  THE  ADMINISTRATOR  TO  CONSIDER  WHETHER  SUCH
INFORMATION  PRESENTED  ESTABLISHES  BY  A PREPONDERANCE OF THE EVIDENCE
THAT THE THIRD PARTY IS IN FACT WHOLLY  OR  PARTIALLY  RESPONSIBLE,  THE
ADMINISTRATOR WITHIN THIRTY DAYS OF RECEIPT OF SUCH REQUEST SHALL EITHER
DETERMINE:  (1)  IN WRITING, IF THE THIRD PARTY SHALL BE DEEMED AN ADDI-
TIONAL DISCHARGER TO ANY PENDING OR  ANTICIPATED  CLAIM  OR  (2)  IF  AN
ADMINISTRATIVE HEARING AS TO LIABILITY IS NECESSARY.
  S 5. This act shall take effect immediately.

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