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.
Ayes (7): Grisanti, Johnson, Little, Marcellino, Maziarz, O'Mara, Young
Ayes W/R (1): LaValle
Nays (6): Avella, Espaillat, Oppenheimer, Perkins, Serrano, Stewart-Cousins
Ayes (42): Adams, Alesi, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Duane, Farley, Flanagan, Fuschillo, Gallivan, Golden, Griffo, Grisanti, Hannon, Johnson, Kennedy, Klein, Lanza, Larkin, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Nozzolio, O'Mara, Parker, Ranzenhofer, Ritchie, Robach, Saland, Savino, Seward, Skelos, Smith, Storobin, Valesky, Young, Zeldin
Nays (18): Addabbo, Avella, Ball, Dilan, Gianaris, Hassell-Thomps, Krueger, LaValle, Montgomery, Oppenheimer, Peralta, Perkins, Rivera, Sampson, Serrano, Squadron, Stavisky, Stewart-Cousin
Excused (2): Espaillat, Huntley
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 OR GENERAL IDEA OF BILL: 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: 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.
STATE OF NEW YORK ________________________________________________________________________ 5418--B 2011-2012 Regular Sessions IN SENATE May 19, 2011 ___________Introduced by Sens. GRISANTI, MAZIARZ, RITCHIE -- read twice and ordered printed, and when printed to be committed to the Committee on Environ- mental Conservation -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- recommitted to the Committee on Environmental Conservation in accordance with Senate Rule 6, sec. 8 -- 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. IF THE DEPARTMENT DETERMINES THAT THE PERSON THE DEPARTMENT INITIALLY DEEMSEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11700-04-2 S. 5418--B 2
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 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, SHALLS. 5418--B 3
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 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 finalS. 5418--B 4
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 6. This act shall take effect immediately.