N.Y. Environmental Conservation Law § 27-0916: Department authority for cleanups

§ 27-0916. Department authority for cleanups.

1. The department shall have authority to clean up or return to its

original state any area where hazardous wastes were disposed, possessed

or dealt in unlawfully in violation of section 27-0914 of this article.

For the purpose of this section "the original state of the area" shall

mean the reasonably ascertainable condition of the property immediately

prior to the unlawful act or if impracticable to determine such

condition, the cleanup or restoration shall be done in a manner to

restore the area to a reasonably sound environmental condition.

2. The department shall have the authority to contract with the

environmental facilities corporation or any other person to perform

necessary work in connection with such cleanup or restoration.

3. Notwithstanding any other provision of law to the contrary, the

liability of any person designing, implementing or otherwise performing

services related to cleanup or restoration work pursuant to a contract

with the department, or an order of the department or a court for any

injury to a person or property caused by or related to such services,

shall be limited to acts or omissions of the person during the course of

performing such services which are shown to have been the result of

negligence, gross negligence or reckless, wanton or intentional

misconduct. Notwithstanding any other provision of law, when (i) a

verdict or decision in an action or claim for injury to a person or

property caused by or related to such services is determined in favor of

a claimant in an action involving a person performing such services and

any other person or persons jointly liable, and (ii) the liability of

the person performing such services is found to be fifty percent or less

of the total liability assigned to all persons liable, and (iii) the

liability of the person performing such services is not based on a

finding of reckless disregard for the safety of others, or intentional

misconduct, then the liability of the person performing such services to

the claimant for loss relating to injury to property and for

non-economic loss relating to injury to a person shall not exceed the

equitable share of the person performing such services determined in

accordance with the relative culpability of each person causing or

contributing to the total liability for such losses; provided, however,

that the culpable conduct of any person not a party to the action shall

not be considered in determining any equitable share herein if the

claimant proves that with due diligence the claimant was unable to

obtain jurisdiction over such person in said action. As used in this

section, the term "non-economic loss" includes but is not limited to

pain and suffering, mental anguish, loss of consortium or other damages

for non-economic loss. However, nothing in this subdivision shall be

deemed to alter, modify or abrogate the liability of any person

performing such services for breach of any express warranty, limited or

otherwise, or an express or implied warranty under the uniform

commercial code, or to an employee of such person pursuant to the

workers' compensation law, or to relieve from any liability any person

who possessed, disposed of or dealt in hazardous wastes in violation of

section 27-0914 of this article.

4. Section eight of the court of claims act or any other provisions of

law to the contrary notwithstanding, the state shall be immune from

liability and action with respect to any act or omission done in the

exercise of the department's authority pursuant to this section;

provided, however, that this subdivision shall not limit any liability

which may otherwise exist for unlawful, willful or malicious acts or

omissions on the part of the state, state agencies, or other officers,

employees or agents.

5. Moneys for actions taken by the department pursuant to this section

including any sampling of wastes, soils, air, surface water and

groundwater done by or on behalf of the department and any

administrative expenses related thereto, shall be payable from the

hazardous waste remedial fund directly to the department pursuant to

section ninety-seven-b of the state finance law.