senate Bill S1675

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

  • 09 / Jan / 2013
    • REFERRED TO ENVIRONMENTAL CONSERVATION
  • 30 / Apr / 2013
    • 1ST REPORT CAL.460
  • 01 / May / 2013
    • 2ND REPORT CAL.
  • 06 / May / 2013
    • ADVANCED TO THIRD READING
  • 04 / Jun / 2013
    • PASSED SENATE
  • 04 / Jun / 2013
    • DELIVERED TO ASSEMBLY
  • 04 / Jun / 2013
    • REFERRED TO ENVIRONMENTAL CONSERVATION
  • 08 / Jan / 2014
    • DIED IN ASSEMBLY
  • 08 / Jan / 2014
    • RETURNED TO SENATE
  • 08 / Jan / 2014
    • 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:
A2065
Versions:
S1675
Legislative Cycle:
2013-2014
Current Committee:
Senate Environmental Conservation
Law Section:
Navigation Law
Laws Affected:
Amd §§176, 180, 181 & 183, Nav L
Versions Introduced in 2011-2012 Legislative Cycle:
S5418B, S5418B

Sponsor Memo

BILL NUMBER:S1675

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 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 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. 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
subdivision 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 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.

PRIOR LEGISLATIVE HISTORY: S. 5418B Passed Senate in
2011 and 2012.

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
________________________________________________________________________

                                  1675

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by Sen. GRISANTI -- read twice and ordered printed, and when
  printed to be committed to the Committee on Environmental Conservation

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
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04687-01-3

S. 1675                             2

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
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

S. 1675                             3

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
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

S. 1675                             4

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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