NY State Senate Bill 2017-S2822

Senate Bill S2822

2017-2018 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 - In Senate Committee Rules Committee

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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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 20, 2018	committed to rules
May 22, 2018	advanced to third reading
May 16, 2018	2nd report cal.
May 15, 2018	1st report cal.1257
Jan 03, 2018	referred to environmental conservation
Jun 21, 2017	committed to rules
May 15, 2017	advanced to third reading
May 10, 2017	2nd report cal.
May 09, 2017	1st report cal.861
Jan 17, 2017	referred to environmental conservation

Votes

- May 15, 2018 - Environmental Conservation Committee Vote
  S2822
  
  5
  
  Aye
  
  6
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Environmental Conservation Committee Vote: May 15, 2018
      
      aye (5)
      
      Funke
      
      Little
      
      O'Mara
      
      Phillips
      
      Tedisco
      
      nay (6)
      
      Addabbo Jr.
      
      Avella
      
      Hoylman-Sigal
      
      Kaminsky
      
      Kavanagh
      
      Mayer
      
      aye wr (2)
      
      LaValle
      
      Marcellino
  May 9, 2017 - Environmental Conservation Committee Vote
  S2822
  
  6
  
  Aye
  
  5
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Environmental Conservation Committee Vote: May 9, 2017
      
      aye (6)
      
      Funke
      
      Little
      
      O'Mara
      
      Ortt
      
      Phillips
      
      Tedisco
      
      nay (5)
      
      Addabbo Jr.
      
      Avella
      
      Hoylman-Sigal
      
      Kaminsky
      
      Latimer
      
      aye wr (2)
      
      LaValle
      
      Marcellino

co-Sponsors

2017-S2822 (ACTIVE) - Details

Current Committee:: Senate Rules
Law Section:: Navigation Law
Laws Affected:: Amd §§176, 180, 181 & 183, Nav L
Versions Introduced in Other Legislative Sessions:: 2011-2012: S5418
2013-2014: S1675
2015-2016: S4186
2019-2020: S1880

2017-S2822 (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.

2017-S2822 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S2822

 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 :

2016 - S.4186
2014 - S.1675

 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.

2017-S2822 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2822
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 17, 2017
                                ___________
 
 Introduced  by  Sens. O'MARA, RITCHIE -- 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.

                                                            LBD07053-01-7

 S. 2822                             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.
   §  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.
   § 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;
   § 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. 2822                             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.
   § 5. Section 183 of the navigation law, as added by chapter 845 of the
 laws of 1977, is amended to read as follows:
   § 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. 2822                             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.
   § 6. This act shall take effect immediately.

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Senate Bill S2822

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Sponsored By

Thomas F. O'Mara