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This entry was published on 2014-09-22
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SECTION 27-0916
Department authority for cleanups
Environmental Conservation (ENV) CHAPTER 43-B, ARTICLE 27, TITLE 9
§ 27-0916. Department authority for cleanups.

1. The department shall have authority to clean up or return to its
original state any area where hazardous wastes were disposed, possessed
or dealt in unlawfully in violation of section 27-0914 of this article.
For the purpose of this section "the original state of the area" shall
mean the reasonably ascertainable condition of the property immediately
prior to the unlawful act or if impracticable to determine such
condition, the cleanup or restoration shall be done in a manner to
restore the area to a reasonably sound environmental condition.

2. The department shall have the authority to contract with the
environmental facilities corporation or any other person to perform
necessary work in connection with such cleanup or restoration.

3. Notwithstanding any other provision of law to the contrary, the
liability of any person designing, implementing or otherwise performing
services related to cleanup or restoration work pursuant to a contract
with the department, or an order of the department or a court for any
injury to a person or property caused by or related to such services,
shall be limited to acts or omissions of the person during the course of
performing such services which are shown to have been the result of
negligence, gross negligence or reckless, wanton or intentional
misconduct. Notwithstanding any other provision of law, when (i) a
verdict or decision in an action or claim for injury to a person or
property caused by or related to such services is determined in favor of
a claimant in an action involving a person performing such services and
any other person or persons jointly liable, and (ii) the liability of
the person performing such services is found to be fifty percent or less
of the total liability assigned to all persons liable, and (iii) the
liability of the person performing such services is not based on a
finding of reckless disregard for the safety of others, or intentional
misconduct, then the liability of the person performing such services to
the claimant for loss relating to injury to property and for
non-economic loss relating to injury to a person shall not exceed the
equitable share of the person performing such services determined in
accordance with the relative culpability of each person causing or
contributing to the total liability for such losses; provided, however,
that the culpable conduct of any person not a party to the action shall
not be considered in determining any equitable share herein if the
claimant proves that with due diligence the claimant was unable to
obtain jurisdiction over such person in said action. As used in this
section, the term "non-economic loss" includes but is not limited to
pain and suffering, mental anguish, loss of consortium or other damages
for non-economic loss. However, nothing in this subdivision shall be
deemed to alter, modify or abrogate the liability of any person
performing such services for breach of any express warranty, limited or
otherwise, or an express or implied warranty under the uniform
commercial code, or to an employee of such person pursuant to the
workers' compensation law, or to relieve from any liability any person
who possessed, disposed of or dealt in hazardous wastes in violation of
section 27-0914 of this article.

4. Section eight of the court of claims act or any other provisions of
law to the contrary notwithstanding, the state shall be immune from
liability and action with respect to any act or omission done in the
exercise of the department's authority pursuant to this section;
provided, however, that this subdivision shall not limit any liability
which may otherwise exist for unlawful, willful or malicious acts or
omissions on the part of the state, state agencies, or other officers,
employees or agents.

5. Moneys for actions taken by the department pursuant to this section
including any sampling of wastes, soils, air, surface water and
groundwater done by or on behalf of the department and any
administrative expenses related thereto, shall be payable from the
hazardous waste remedial fund directly to the department pursuant to
section ninety-seven-b of the state finance law.