NY State Senate Bill 2015-S4186

Senate Bill S4186

2015-2016 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 Environmental Conservation 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
Jan 06, 2016	referred to environmental conservation
Jun 25, 2015	committed to rules
May 11, 2015	advanced to third reading
May 06, 2015	2nd report cal.
May 05, 2015	1st report cal.540
Mar 05, 2015	referred to environmental conservation

Votes

- May 5, 2015 - Environmental Conservation Committee Vote
  S4186
  
  4
  
  Aye
  
  6
  
  Nay
  
  3
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Environmental Conservation Committee Vote: May 5, 2015
      
      aye (4)
      
      Little
      
      O'Mara
      
      Ortt
      
      Young
      
      nay (6)
      
      Addabbo Jr.
      
      Avella
      
      Espaillat
      
      Hoylman-Sigal
      
      Latimer
      
      Serrano
      
      aye wr (3)
      
      Funke
      
      LaValle
      
      Marcellino

co-Sponsors

2015-S4186 (ACTIVE) - Details

Current Committee:: Senate Environmental Conservation
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
2017-2018: S2822
2019-2020: S1880

2015-S4186 (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.

2015-S4186 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4186

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:

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.

2015-S4186 (ACTIVE) - Bill Text download pdf

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

                                  4186

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              March 5, 2015
                               ___________

Introduced  by  Sen.  O'MARA -- 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
HUNDRED  EIGHTY OF THIS ARTICLE. The department shall be responsible for

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07075-01-5

S. 4186                             2

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
STATE  UPON  ANY STATUTORY OR COMMON LAW CAUSE OF ACTION, ARISING OUT OF

S. 4186                             3

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
INFORMATION  PRESENTED  ESTABLISHES  BY  A PREPONDERANCE OF THE EVIDENCE

S. 4186                             4

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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Senate Bill S4186

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Sponsored By

Thomas F. O'Mara