Bill Text: NY S01880 | 2019-2020 | 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 (Republican 2-0)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO ENVIRONMENTAL CONSERVATION [S01880 Detail]
Download: New_York-2019-S01880-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 1880 2019-2020 Regular Sessions IN SENATE January 17, 2019 ___________ Introduced by Sens. O'MARA, RITCHIE -- 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: 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. LBD05767-01-9S. 1880 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 § 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 § 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 § 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 theS. 1880 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 § 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 § 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 suchS. 1880 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 § 6. This act shall take effect immediately.
