Senate Bill S5011

2011-2012 Legislative Session

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

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Archive: Last Bill Status - Stricken

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 10, 2011	recommit, enacting clause stricken
May 02, 2011	referred to environmental conservation

2011-S5011 (ACTIVE) - Details

Law Section:: Navigation Law
Laws Affected:: Amd §§176, 180, 181 & 183, Nav L

2011-S5011 (ACTIVE) - 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.

2011-S5011 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5011

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/SUMMARY OF PROVISIONS:
Section 1 of this bill would amend Navigation Law § 176 subdivision
(a) of subparagraph 2 to allow a party the department has deemed a
discharger of a petroleum spill to be able to present evidence
another party in fact caused the discharge, and require the
department to consider that evidence, either rejecting it since the
evidence does not establish the third party was in fact the
discharger or accept it and deem the third party the rightful
discharger.

Section 2 of this bill would amend Navigation Law § 180 subdivision
(a) of subparagraphs 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 the
dischargers at a meeting or hearing.

Section 3 of this bill would amend Navigation Law § 181 subparagraph 1
to include a liability limitation incentive to parties who agree to

perform a spill cleanup identical to parties in the brownfield
cleanup program.

Section 4 of this bill would amend Navigation Law § 183, to allow the
administrator to promote and arrange a settlement between the
claimant and not only one discharger but multiple dischargers who may
be responsible for the discharge and to present evidence to the
administrator that other party may be wholly or partially responsible
for the claim.

JUSTIFICATION:
The navigation law provisions related to the
remediation of petroleum contaminated sites has not been amended for
19 years since 1992 and has been subject to years of litigation since
the current liability scheme encourages the Department to only seek
cleanup response costs from a single discharger. This legislation
would improve the brownfield cleanup program by making the program
permanent; narrowing eligibility to contaminated sites that are
abandoned, vacant, underutilized, functionally obsolete, or in real
estate markets that cannot absorb the required cleanup costs;
reinstate eligibility for the state's most contaminated enforcement
sites if a volunteer is willing to take over the remaining cleanup
responsibilities but also has a redevelopment project for the site;
provide an alternative expedited remediation program for minimally
contaminated sites; promote a new allocation scheme under the
navigation law to encourage multiple discharger to remediate
petroleum contaminated sites, which represent the largest category of
contaminated sites; eliminate the real property tax credit which will
save the state revenue, and streamlining the legal process. These
changes would promote predictability for program applicants


and would further advance the program's environmental cleanup and
urban revitalization goals by incentivizing the remediation,
strategic reuse and redevelopment of contaminated land throughout the
State.

EXISTING LAW:
The current provisions of the Navigation Law, which have
been amended, do not allow for the department or the comptrollers'
administrator of the spill fund to name more than one discharger
as the responsible party at a site. This does not reflect the reality
that typically more than one party should be named by the department
and present at meetings or hearings with the comptroller's office for
purposes of reached a fair settlement on allocation of liability
between the parties.

PRIOR LEGISLATIVE HISTORY:
This is a new bill.

STATEMENT IN SUPPORT:
These amendments are critical, particularly to
the petroleum industry, because frequently the wrong petroleum site
owner is named as the discharger, and their only recourse is
litigation against other dischargers. Non-petroleum company site
owners do not have resources to commence litigation and sites become
abandoned. Third party litigation is costly and time consuming, and
abandonment is far to frequent on the average petroleum corner lot.
Meanwhile these sites, which are well located, are not remediated and
become eyesores in every community throughout the state. The
Navigation Law has not been amended in many years. These provisions
do not change the stringent liability scheme, but will enable
agencies involved to allow parties to present evidence that other
dischargers should either be named as the discharger or joined into
the settlement proceeding to reach a fair allocation between the
parties.

BUDGET IMPLICATIONS:
These changes will result in more expeditious
cleanups of petroleum contaminated sites throughout the state with
increases tax revenue from remediated sites. There should be little
to no cost to the agencies since significance 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 if required.

EFFECTIVE DATE:
Immediately.

2011-S5011 (ACTIVE) - Bill Text download pdf

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

                                  5011

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 2, 2011
                               ___________

Introduced  by  Sen. MAZIARZ -- 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.
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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11209-01-1

S. 5011                             2

  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. 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. 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 accord-
ance 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. HOWEVER, ANY PERSON WHO AGREES TO REMEDIATE THE DISCHARGE
TO THE SATISFACTION OF THE DEPARTMENT, AND IN CONFORMANCE  WITH  ARTICLE
TWELVE OF THE NAVIGATION LAW, SHALL BE ENTITLED TO RECEIVE THE LIABILITY
LIMITATION  AFFORDED TO PARTIES IN THE BROWNFIELD CLEANUP PROGRAM PURSU-
ANT TO SECTION 27-1421 OF THE ENVIRONMENTAL CONSERVATION LAW.
  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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Senate Bill S5011

Sponsored By

Archive: Last Bill Status - Stricken

Actions

2011-S5011 (ACTIVE) - Details

2011-S5011 (ACTIVE) - Summary

2011-S5011 (ACTIVE) - Sponsor Memo

2011-S5011 (ACTIVE) - Bill Text download pdf

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Sponsored By

George D. Maziarz

Archive: Last Bill Status - Stricken

Actions

2011-S5011 (ACTIVE) - Details

2011-S5011 (ACTIVE) - Summary

2011-S5011 (ACTIVE) - Sponsor Memo

2011-S5011 (ACTIVE) - Bill Text download pdf

Comments