Bill Text: NY A02065 | 2013-2014 | General Assembly | Introduced


Bill Title: 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.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2014-01-08 - referred to environmental conservation [A02065 Detail]

Download: New_York-2013-A02065-Introduced.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2065
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                      (PREFILED)
                                    January 9, 2013
                                      ___________
       Introduced  by  M.  of  A.  SCHIMMINGER -- read once and referred 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:
    1    Section 1.  Paragraph (a) of subdivision 2 of section 176 of the navi-
    2  gation law, as amended by chapter 584 of the laws of 1992, is amended to
    3  read as follows:
    4    (a)  Upon  the  occurrence of a discharge of petroleum, the department
    5  shall respond promptly and proceed to cleanup and remove  the  discharge
    6  in  accordance  with environmental priorities or may, at its discretion,
    7  direct the discharger to promptly cleanup and remove the discharge.   IF
    8  A  PERSON THE DEPARTMENT DEEMS A DISCHARGER, AND THUS DIRECTS TO CLEANUP
    9  AND REMOVE THE DISCHARGE PURSUANT TO THIS SECTION PRESENTS  THE  DEPART-
   10  MENT  WITH  EVIDENCE  THAT  A  THIRD PARTY IS SOLELY RESPONSIBLE FOR THE
   11  DISCHARGE AND REQUESTS THE DEPARTMENT TO DETERMINE WHETHER THE  EVIDENCE
   12  ESTABLISHES  THE  THIRD PARTY IS IN FACT SOLELY RESPONSIBLE, THE DEPART-
   13  MENT SHALL, WITHIN THIRTY DAYS OF RECEIPT OF SUCH REQUEST, DETERMINE  IN
   14  WRITING EITHER THAT THE THIRD PARTY: (I) SHALL BE DEEMED A DISCHARGER BY
   15  THE  DEPARTMENT,  AND  SHALL  BE  DIRECTED  TO UNDERTAKE THE CLEANUP AND
   16  REMOVAL OF THE DISCHARGE; OR (II) WILL NOT BE DEEMED A DISCHARGER BY THE
   17  DEPARTMENT BECAUSE THE INFORMATION  PRESENTED  DOES  NOT  ESTABLISH  THE
   18  RESPONSIBILITY OF THE THIRD PARTY BY A PREPONDERANCE OF THE EVIDENCE. IF
   19  THE DEPARTMENT DETERMINES THAT THE PERSON THE DEPARTMENT INITIALLY DEEMS
   20  A  DISCHARGER  AND  THE THIRD PARTY ARE BOTH DISCHARGERS, THE DEPARTMENT
   21  SHALL, WITHIN THIRTY DAYS OF SUCH REQUEST, ADVISE EACH  OF  THE  PARTIES
   22  THAT  THEY  ARE DEEMED DISCHARGERS SUBJECT TO APPORTIONMENT OF LIABILITY
   23  FOR THE DISCHARGE PURSUANT TO SUBDIVISIONS ONE AND TWO  OF  SECTION  ONE
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD04687-01-3
       A. 2065                             2
    1  HUNDRED  EIGHTY OF THIS ARTICLE. The department shall be responsible for
    2  cleanup and removal or as the case may  be,  for  retaining  agents  and
    3  contractors who shall operate under the direction of that department for
    4  such  purposes.  Implementation  of cleanup and removal procedures after
    5  each discharge shall  be  conducted  in  accordance  with  environmental
    6  priorities and procedures established by the department.
    7    S  2.  Subdivision 8 of section 176 of the navigation law, as added by
    8  chapter 712 of the laws of 1989, is amended and a new subdivision  9  is
    9  added to read as follows:
   10    8. Notwithstanding any other provision of law to the contrary, includ-
   11  ing  but not limited to SUBDIVISION (C) OF section 15-108 of the general
   12  obligations law, every person providing cleanup, removal of discharge of
   13  petroleum or relocation of persons pursuant to  this  section  shall  be
   14  entitled to contribution from any other responsible party.
   15    9.  THE FOLLOWING SHALL NOT BE DEEMED A FINAL AGENCY ACTION SUBJECT TO
   16  REVIEW PURSUANT TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE  LAW  AND
   17  RULES,  AND  SHALL  NOT HAVE A BINDING EFFECT ON ANY PARTY IN PENDING OR
   18  FUTURE PROCEEDINGS REGARDING  THE  DISCHARGE:  (A)  A  DETERMINATION  OR
   19  ACTION  OF  THE DEPARTMENT PURSUANT TO SUBDIVISION ONE, TWO, OR THREE OF
   20  THIS SECTION, INCLUDING BUT NOT  LIMITED  TO,  A  DETERMINATION  OF  THE
   21  REASONABLENESS  OF  ANY COSTS INCURRED; (B) A DETERMINATION OR ACTION OF
   22  THE ADMINISTRATOR PURSUANT TO SECTION ONE HUNDRED  EIGHTY,  ONE  HUNDRED
   23  EIGHTY-ONE-A, OR ONE HUNDRED EIGHTY-THREE OF THIS ARTICLE, INCLUDING THE
   24  FILING OF AN ENVIRONMENTAL LIEN.
   25    S 3. Subdivisions 1 and 2 of section 180 of the navigation law, subdi-
   26  vision  1  as added by chapter 845 of the laws of 1977 and subdivision 2
   27  as amended by chapter 672 of the laws of 1991, are amended  to  read  as
   28  follows:
   29    1.  To  represent the state in meetings with the alleged discharger OR
   30  DISCHARGERS and claimants concerning liability  for  the  discharge  and
   31  amount  of  the  claims,  AND, IF THERE IS MORE THAN ONE DISCHARGER IN A
   32  MEETING, TO APPORTION LIABILITY FOR THE DISCHARGE;
   33    2. To determine if hearings are needed  to  settle  particular  claims
   34  filed  by  injured  persons AND TO APPORTION LIABILITY BETWEEN AND AMONG
   35  DISCHARGERS;
   36    S 4. Subdivision 1 of section 181 of the navigation law, as amended by
   37  chapter 712 of the laws of 1989, is amended and a new subdivision  7  is
   38  added to read as follows:
   39    1.  (A)  Any  person  who  has  discharged petroleum shall be strictly
   40  liable, without regard to fault, for all cleanup and removal  costs  and
   41  all direct and indirect damages, no matter by whom sustained, as defined
   42  in  this  section,  UNLESS  THE  LIABILITY LIMITATION AS DESCRIBED UNDER
   43  PARAGRAPH (B) OF THIS SUBDIVISION APPLIES.  In addition to  cleanup  and
   44  removal  costs  and  damages,  any  such  person who is notified of such
   45  release and who did not undertake relocation of persons residing in  the
   46  area  of  the  discharge in accordance with paragraph (c) of subdivision
   47  seven of section one hundred  seventy-six  of  this  article,  shall  be
   48  liable  to  the  fund  for  an  amount equal to two times the actual and
   49  necessary expense incurred by the fund for such relocation  pursuant  to
   50  section one hundred seventy-seven-a of this article.
   51    (B) (I) ANY PERSON WHO AGREES TO REMEDIATE THE DISCHARGE TO THE SATIS-
   52  FACTION  OF  THE DEPARTMENT, AND IN CONFORMANCE WITH THIS ARTICLE, SHALL
   53  BE ENTITLED TO RECEIVE LIABILITY LIMITATION.  SUCH  AGREEMENT  SHALL  BE
   54  CALLED  THE  LIABILITY  LIMITATION  AGREEMENT  AND  SHALL BE WRITTEN AND
   55  EXECUTED BY BOTH THE DEPARTMENT AND SUCH PERSON. AFTER EXECUTION OF  THE
   56  LIABILITY  LIMITATION  AGREEMENT, SUCH PERSON SHALL NOT BE LIABLE TO THE
       A. 2065                             3
    1  STATE UPON ANY STATUTORY OR COMMON LAW CAUSE OF ACTION, ARISING  OUT  OF
    2  THE  PRESENCE  OF  ANY  CONTAMINATION IN, ON, OR EMANATING FROM THE SITE
    3  THAT WAS THE SUBJECT OF  THE  LIABILITY  LIMITATION,  EXCEPT  THAT  SUCH
    4  PERSON SHALL NOT RECEIVE A RELEASE FOR NATURAL RESOURCE DAMAGES THAT MAY
    5  BE  AVAILABLE  UNDER  LAW.   THE LIABILITY LIMITATION SHALL APPLY TO ALL
    6  SUCCESSORS IN OWNERSHIP OF THE PROPERTY AND TO ALL PERSONS WHO LEASE THE
    7  PROPERTY OR WHO ENGAGE IN OPERATIONS ON THE PROPERTY, PROVIDED THAT SUCH
    8  PERSONS ACT WITH DUE CARE AND IN GOOD FAITH TO ADHERE  TO  THE  REQUIRE-
    9  MENTS OF THE LIABILITY LIMITATION AGREEMENT.
   10    (II)  A  LIABILITY LIMITATION AGREEMENT AND THE PROTECTIONS IT AFFORDS
   11  SHALL NOT APPLY TO ANY DISCHARGE THAT OCCURS SUBSEQUENT TO THE EXECUTION
   12  OF THE LIABILITY LIMITATION AGREEMENT, NOR SHALL A LIABILITY  LIMITATION
   13  AGREEMENT AND THE PROTECTIONS IT AFFORDS RELIEVE ANY PERSON OF THE OBLI-
   14  GATIONS  TO  COMPLY  IN  THE FUTURE WITH LAWS AND REGULATIONS. THE STATE
   15  NONETHELESS SHALL RESERVE ALL OF ITS RIGHTS CONCERNING, AND SUCH LIABIL-
   16  ITY LIMITATION SHALL NOT EXTEND TO,  ANY  FURTHER  INVESTIGATION  AND/OR
   17  REMEDIATION  THE  DEPARTMENT DEEMS NECESSARY DUE TO FRAUD, NONCOMPLIANCE
   18  WITH THE TERMS THAT FORMED THE  LIABILITY  LIMITATION  AGREEMENT,  OR  A
   19  WRITTEN  FINDING  BY  THE  DEPARTMENT  THAT A CHANGE IN AN ENVIRONMENTAL
   20  STANDARD, FACTOR, OR  CRITERION  UPON  WHICH  THE  LIABILITY  LIMITATION
   21  AGREEMENT  WAS  BASED  WOULD  RENDER  REMEDIATION  ACTIVITIES  NO LONGER
   22  PROTECTIVE OF PUBLIC HEALTH OR THE ENVIRONMENT. NOTHING IN THIS  SECTION
   23  SHALL  AFFECT  THE LIABILITY OF THE PERSON RESPONSIBLE FOR SUCH PERSON'S
   24  OWN ACTS OR OMISSIONS CAUSING WRONGFUL DEATH OR PERSONAL INJURY. NOTHING
   25  IN THIS SECTION SHALL AFFECT THE LIABILITY OF ANY PERSON WITH RESPECT TO
   26  ANY CIVIL ACTION BROUGHT BY A PARTY OTHER THAN THE STATE. THE PROVISIONS
   27  OF THIS SECTION SHALL NOT AFFECT AN ACTION OR A CLAIM, INCLUDING A STAT-
   28  UTORY OR COMMON LAW CLAIM FOR CONTRIBUTION OR INDEMNIFICATION, THAT SUCH
   29  PERSON HAS OR MAY HAVE AGAINST A THIRD PARTY.
   30    7. NOTWITHSTANDING ANY OTHER  PROVISION  OF  THIS  SECTION,  A  PUBLIC
   31  CORPORATION SHALL NOT BE LIABLE FOR THE DISCHARGE OF PETROLEUM AT A SITE
   32  IF  SUCH  PUBLIC  CORPORATION ACQUIRED SUCH SITE INVOLUNTARILY, AND SUCH
   33  PUBLIC CORPORATION RETAINED  SUCH  SITE  WITHOUT  PARTICIPATING  IN  THE
   34  DEVELOPMENT  OF  SUCH SITE. THIS EXEMPTION SHALL NOT APPLY TO ANY PUBLIC
   35  CORPORATION THAT HAS (A) CAUSED  OR  CONTRIBUTED  TO  THE  DISCHARGE  OF
   36  PETROLEUM  FROM  OR  AT  THE  SITE, (B) PURCHASED, SOLD, REFINED, TRANS-
   37  PORTED, OR DISCHARGED PETROLEUM FROM OR AT SUCH SITE, OR (C) CAUSED  THE
   38  PURCHASE,  SALE,  REFINEMENT,  TRANSPORTATION, OR DISCHARGE OF PETROLEUM
   39  FROM OR AT SUCH SITE. THE TERMS "PARTICIPATION IN DEVELOPMENT,"  "PUBLIC
   40  CORPORATION" AND "INVOLUNTARY ACQUISITION OF OWNERSHIP OR CONTROL" SHALL
   41  HAVE  THE SAME MEANING AS THOSE TERMS ARE DEFINED IN PARAGRAPHS (C), (D)
   42  AND (E) OF SUBDIVISION TWO  OF  SECTION  27-1323  OF  THE  ENVIRONMENTAL
   43  CONSERVATION  LAW.  HOWEVER,  "PARTICIPATION  IN  DEVELOPMENT" SHALL NOT
   44  INCLUDE IMPROVEMENTS WHICH ARE PART  OF  A  CLEANUP  AND  REMOVAL  OF  A
   45  DISCHARGE OF PETROLEUM PURSUANT TO THIS ARTICLE.
   46    S 5. Section 183 of the navigation law, as added by chapter 845 of the
   47  laws of 1977, is amended to read as follows:
   48    S 183. Settlements.  The  administrator  shall  attempt to promote and
   49  arrange a settlement between the claimant  and  the  person  OR  PERSONS
   50  responsible  for  the  discharge.  If the source of the discharge can be
   51  determined and liability is  conceded,  the  claimant  and  the  alleged
   52  discharger OR DISCHARGERS may agree to a settlement which shall be final
   53  and  binding  upon the parties and which will waive all recourse against
   54  the fund.  TO THE EXTENT AN ALLEGED DISCHARGER PRESENTS EVIDENCE TO  THE
   55  ADMINISTRATOR  THAT ANOTHER PARTY IS WHOLLY OR PARTIALLY RESPONSIBLE FOR
   56  THE CLAIM, AND REQUESTS  THE  ADMINISTRATOR  TO  CONSIDER  WHETHER  SUCH
       A. 2065                             4
    1  INFORMATION  PRESENTED  ESTABLISHES  BY  A PREPONDERANCE OF THE EVIDENCE
    2  THAT THE THIRD PARTY IS IN FACT WHOLLY  OR  PARTIALLY  RESPONSIBLE,  THE
    3  ADMINISTRATOR WITHIN THIRTY DAYS OF RECEIPT OF SUCH REQUEST SHALL EITHER
    4  DETERMINE:  (1)  IN WRITING, IF THE THIRD PARTY SHALL BE DEEMED AN ADDI-
    5  TIONAL DISCHARGER TO ANY PENDING OR  ANTICIPATED  CLAIM  OR  (2)  IF  AN
    6  ADMINISTRATIVE HEARING AS TO LIABILITY IS NECESSARY.
    7    S 6. This act shall take effect immediately.
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