senate Bill S5418B

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:
A8192A
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:S5418B

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 will-
ing to remediate petroleum contaminated sites

PURPOSE OR GENERAL IDEA OF BILL:
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 SPECIFIC 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 dischar-
ger 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. This
section further provides that if the department determines that the
person the department initially deems a discharger and the third party
are both dischargers, the department shall, within 30 days of such
request, advise each of the parties that are deemed dischargers subject
to apportionment of liability for the discharge pursuant to subdivisions
one and two of section 180 of this article.

Section 2 of this bill would amend Navigation Law § 176 subdivision 8 to
clarify that a party who has otherwise settled a claim for costs or
damages related to the discharge of petroleum is entitled to seek
contribution from other potentially responsible parties. A new subdivi-
sion 9 is created which provides that certain determinations by either
the department or the administrator of the spill fund are not subject to
challenge in an Article 78 proceeding.

Section 3 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 4 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. A new subdivision 7 would provide for an exemption to
liability for prohibited discharges of petroleum to municipalities that
involuntarily acquire title to petroleum contaminated property without
participating in the development of the site.

Section 5 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 burden-
some 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 cooper-
ate 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 liabil-
ity scheme.

PRIOR 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--B

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              May 19, 2011
                               ___________

Introduced by Sens. GRISANTI, MAZIARZ, RITCHIE -- read twice and ordered
  printed, and when printed to be committed to the Committee on Environ-
  mental  Conservation  --  committee  discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee --  recommitted
  to  the  Committee  on  Environmental  Conservation in accordance with
  Senate Rule 6, sec. 8 -- 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. IF
THE DEPARTMENT DETERMINES THAT THE PERSON THE DEPARTMENT INITIALLY DEEMS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11700-04-2

S. 5418--B                          2

A DISCHARGER AND THE THIRD PARTY ARE BOTH  DISCHARGERS,  THE  DEPARTMENT
SHALL,  WITHIN  THIRTY  DAYS OF SUCH REQUEST, ADVISE EACH OF THE PARTIES
THAT THEY ARE DEEMED DISCHARGERS SUBJECT TO APPORTIONMENT  OF  LIABILITY
FOR  THE  DISCHARGE  PURSUANT TO SUBDIVISIONS ONE AND TWO OF SECTION ONE
HUNDRED EIGHTY OF THIS ARTICLE. 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  conducted  in  accordance with environmental
priorities and procedures established by the department.
  S 2. Subdivision 8 of section 176 of the navigation law, as  added  by
chapter  712  of the laws of 1989, is amended and a new subdivision 9 is
added to read as follows:
  8. Notwithstanding any other provision of law to the contrary, includ-
ing but not limited to SUBDIVISION (C) OF section 15-108 of the  general
obligations law, every person providing cleanup, removal of discharge of
petroleum  or  relocation  of  persons pursuant to this section shall be
entitled to contribution from any other responsible party.
  9. THE FOLLOWING SHALL NOT BE DEEMED A FINAL AGENCY ACTION SUBJECT  TO
REVIEW  PURSUANT  TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND
RULES, AND SHALL NOT HAVE A BINDING EFFECT ON ANY PARTY  IN  PENDING  OR
FUTURE  PROCEEDINGS  REGARDING  THE  DISCHARGE:  (A)  A DETERMINATION OR
ACTION OF THE DEPARTMENT PURSUANT TO SUBDIVISION ONE, TWO, OR  THREE  OF
THIS  SECTION,  INCLUDING  BUT  NOT  LIMITED  TO, A DETERMINATION OF THE
REASONABLENESS OF ANY COSTS INCURRED; (B) A DETERMINATION OR  ACTION  OF
THE  ADMINISTRATOR  PURSUANT  TO SECTION ONE HUNDRED EIGHTY, ONE HUNDRED
EIGHTY-ONE-A, OR ONE HUNDRED EIGHTY-THREE OF THIS ARTICLE, INCLUDING THE
FILING OF AN ENVIRONMENTAL LIEN.
  S 3. 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 4. Subdivision 1 of section 181 of the navigation law, as amended by
chapter  712  of the laws of 1989, is amended and a new subdivision 7 is
added 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

S. 5418--B                          3

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
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.
  7. NOTWITHSTANDING ANY OTHER  PROVISION  OF  THIS  SECTION,  A  PUBLIC
CORPORATION SHALL NOT BE LIABLE FOR THE DISCHARGE OF PETROLEUM AT A SITE
IF  SUCH  PUBLIC  CORPORATION ACQUIRED SUCH SITE INVOLUNTARILY, AND SUCH
PUBLIC CORPORATION RETAINED  SUCH  SITE  WITHOUT  PARTICIPATING  IN  THE
DEVELOPMENT  OF  SUCH SITE. THIS EXEMPTION SHALL NOT APPLY TO ANY PUBLIC
CORPORATION THAT HAS (A) CAUSED  OR  CONTRIBUTED  TO  THE  DISCHARGE  OF
PETROLEUM  FROM  OR  AT  THE  SITE, (B) PURCHASED, SOLD, REFINED, TRANS-
PORTED, OR DISCHARGED PETROLEUM FROM OR AT SUCH SITE, OR (C) CAUSED  THE
PURCHASE,  SALE,  REFINEMENT,  TRANSPORTATION, OR DISCHARGE OF PETROLEUM
FROM OR AT SUCH SITE. THE TERMS "PARTICIPATION IN DEVELOPMENT,"  "PUBLIC
CORPORATION" AND "INVOLUNTARY ACQUISITION OF OWNERSHIP OR CONTROL" SHALL
HAVE  THE SAME MEANING AS THOSE TERMS ARE DEFINED IN PARAGRAPHS (C), (D)
AND (E) OF SUBDIVISION TWO  OF  SECTION  27-1323  OF  THE  ENVIRONMENTAL
CONSERVATION  LAW.  HOWEVER,  "PARTICIPATION  IN  DEVELOPMENT" SHALL NOT
INCLUDE IMPROVEMENTS WHICH ARE PART  OF  A  CLEANUP  AND  REMOVAL  OF  A
DISCHARGE OF PETROLEUM PURSUANT TO THIS ARTICLE.
  S 5. 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

S. 5418--B                          4

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 6. This act shall take effect immediately.

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