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.

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S5418A-2011 Actions

• Jun 21, 2012: referred to environmental conservation
• Jun 21, 2012: DELIVERED TO ASSEMBLY
• Jun 21, 2012: PASSED SENATE
• Jun 11, 2012: ADVANCED TO THIRD READING
• Jun 6, 2012: 2ND REPORT CAL.
• Jun 5, 2012: 1ST REPORT CAL.1041
• May 23, 2012: PRINT NUMBER 5418B
• May 23, 2012: AMEND AND RECOMMIT TO ENVIRONMENTAL CONSERVATION
• Jan 4, 2012: REFERRED TO ENVIRONMENTAL CONSERVATION
• Jan 4, 2012: returned to senate
• Jan 4, 2012: died in assembly
• Jun 16, 2011: referred to environmental conservation
• Jun 16, 2011: DELIVERED TO ASSEMBLY
• Jun 16, 2011: PASSED SENATE
• Jun 14, 2011: ADVANCED TO THIRD READING
• Jun 13, 2011: 2ND REPORT CAL.
• Jun 7, 2011: 1ST REPORT CAL.1046
• May 23, 2011: PRINT NUMBER 5418A
• May 23, 2011: AMEND (T) AND RECOMMIT TO ENVIRONMENTAL CONSERVATION
• May 19, 2011: REFERRED TO ENVIRONMENTAL CONSERVATION

S5418A-2011 Meetings

Environmental Conservation: May 15, 2012, Environmental Conservation: Jun 7, 2011

S5418A-2011 Calendars

Active List: Jun 15, 2011 , Floor Calendar: Jun 13, 2011 , Floor Calendar: Jun 14, 2011 , Floor Calendar: Jun 15, 2011 , Floor Calendar: Jun 16, 2011

S5418A-2011 Votes

S5418A-2011 Memo

BILL NUMBER:S5418A

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 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.

Section 2 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 3 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.

Section 4 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.

LEGISLATIVE HISTORY:
This is a new bill.

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.

S5418A-2011 Text

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

                                   5418--A

                         2011-2012 Regular Sessions

                              I N  SENATE

                                May 19, 2011
                                 ___________

  Introduced by Sens. GRISANTI, MAZIARZ -- read twice and ordered printed,
    and  when  printed  to  be committed to the Committee on Environmental
    Conservation -- committee discharged, bill amended, ordered  reprinted
    as amended and recommitted to said committee

  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

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD11700-02-1

 S. 5418--A                          2

  conducted in accordance with  environmental  priorities  and  procedures
  established by the department.
    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. (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
  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

 S. 5418--A                          3

  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.
    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.