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This entry was published on 2017-04-28
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Removal of prohibited discharges
Navigation (NAV) CHAPTER 37, ARTICLE 12, PART 2
§ 176. Removal of prohibited discharges. 1. Any person discharging
petroleum in the manner prohibited by section one hundred seventy-three
of this article shall immediately undertake to contain such discharge.
Notwithstanding the above requirement, the department may undertake the
removal of such discharge and may retain agents and contractors who
shall operate under the direction of such department for such purposes.
The commissioner shall develop a system of immediate response type
contracts with appropriate agents and contractors. Such contracts shall
be subject to the approval of the state comptroller in accordance with
section one hundred twelve of the state finance law, however, such
approval shall not obligate to any particular contract any specific
amount of monies from the fund but shall obligate from the fund on an
individual basis as such contracts are utilized the actual amount
required to effectuate any contract or any portion thereof. Any
necessary approvals of availability of funds for a particular project in
accordance with any provision of the state finance law shall be
undertaken as soon as practical after clean up and removal procedures
are undertaken, or such procedures are ordered by the commissioner.

2. (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. 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.

(b) Section eight of the court of claims act or any other provision 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
discharge of the department's responsibility pursuant to this article;
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 their officers,
employees or agents or for a discharge in violation of section one
hundred seventy-three of this article.

3. Any unexplained discharge of petroleum within state jurisdiction or
discharge of petroleum occurring in waters beyond state jurisdiction
that for any reason penetrates within state jurisdiction shall be
removed by or under the direction of the department. Except for those
expenses incurred by the party causing such discharge, any expenses
incurred in the removal of discharges shall be paid promptly from the
New York environmental protection and spill compensation fund pursuant
to sections one hundred and eighty-six and one hundred seventy-nine-a of
this article and any reimbursements due such fund shall be collected in
accordance with the provisions of section one hundred and eighty-seven
of this article.

4. Cleanup and removal of petroleum and actions to minimize damage
from discharges shall be, to the greatest extent possible, in accordance
with the National Contingency Plan for removal of oil and hazardous
substances established pursuant to section 311 (d) of the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended by the
Federal Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.), or revised
under section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. 9605).

5. The department in consultation with the attorney general shall
develop a standard contract form to be used when contracting services
for the cleanup and removal of a discharge.

6. Whenever the department acts to remove a discharge or contracts to
secure prospective removal services, it is authorized to draw upon the
money available in the fund. Such moneys shall be used to pay promptly
for all cleanup and removal costs incurred by the department.

7. (a) Nothing in this section is intended to preclude cleanup and
removal by any person threatened by such discharges, who, as soon as is
reasonably possible, coordinates and obtains approval for such actions
with ongoing state or federal operations and appropriate state and
federal authorities. Notwithstanding any other provision of law to the
contrary, the liability of any contractor for such person, where such
person obtains approval from appropriate state and federal authorities
for such cleanup and removal, and the liability of any person providing
services related to the cleanup or removal of a discharge, under
contract with the department, 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
provisions 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 is responsible for a discharge in violation of section one
hundred seventy-four of this article.

(b) No action taken by any person to contain or remove a discharge
shall be construed as an admission of liability for said discharge. No
person who gratuitously renders assistance in containing or removing a
discharge shall be liable for any civil damages to third parties
resulting solely from acts or omissions of such person in rendering such
assistance except for acts or omissions of gross negligence or willful
misconduct. In the course of cleanup and removal, no person shall
discharge any detergent into the waters of this state without prior
authorization of the commissioner of environmental conservation.

(c) A person may, without admission of responsibility for the
discharge of petroleum and with the consent of the commissioner,
commence clean up and removal of the discharge and upon the
recommendation of the commissioner of health and with the consent of the
fund undertake the relocation of persons affected by the discharge of
petroleum. Upon determination by the fund that the person is not
responsible for the discharge, the person shall be reimbursed by the
fund for the actual and necessary expenses incurred.

8. Notwithstanding any other provision of law to the contrary,
including but not limited to 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.