N.Y. Navigation Law § 176: Removal of prohibited discharges

§ 176. Removal of prohibited discharges. 1. Any person discharging

petroleum in the manner prohibited by section one hundred seventy-three

of this article shall immediately undertake to contain such discharge.

Notwithstanding the above requirement, the department may undertake the

removal of such discharge and may retain agents and contractors who

shall operate under the direction of such department for such purposes.

The commissioner shall develop a system of immediate response type

contracts with appropriate agents and contractors. Such contracts shall

be subject to the approval of the state comptroller in accordance with

section one hundred twelve of the state finance law, however, such

approval shall not obligate to any particular contract any specific

amount of monies from the fund but shall obligate from the fund on an

individual basis as such contracts are utilized the actual amount

required to effectuate any contract or any portion thereof. Any

necessary approvals of availability of funds for a particular project in

accordance with any provision of the state finance law shall be

undertaken as soon as practical after clean up and removal procedures

are undertaken, or such procedures are ordered by the commissioner.

2. (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. 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.

(b) Section eight of the court of claims act or any other provision 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

discharge of the department's responsibility pursuant to this article;

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 their officers,

employees or agents or for a discharge in violation of section one

hundred seventy-three of this article.

3. Any unexplained discharge of petroleum within state jurisdiction or

discharge of petroleum occurring in waters beyond state jurisdiction

that for any reason penetrates within state jurisdiction shall be

removed by or under the direction of the department. Except for those

expenses incurred by the party causing such discharge, any expenses

incurred in the removal of discharges shall be paid promptly from the

New York environmental protection and spill compensation fund pursuant

to sections one hundred and eighty-six and one hundred seventy-nine-a of

this article and any reimbursements due such fund shall be collected in

accordance with the provisions of section one hundred and eighty-seven

of this article.

4. Cleanup and removal of petroleum and actions to minimize damage

from discharges shall be, to the greatest extent possible, in accordance

with the National Contingency Plan for removal of oil and hazardous

substances established pursuant to section 311 (d) of the Federal Water

Pollution Control Act (33 U.S.C. 1251 et seq.), as amended by the

Federal Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.), or revised

under section 105 of the Comprehensive Environmental Response,

Compensation, and Liability Act (42 U.S.C. 9605).

5. The department in consultation with the attorney general shall

develop a standard contract form to be used when contracting services

for the cleanup and removal of a discharge.

6. Whenever the department acts to remove a discharge or contracts to

secure prospective removal services, it is authorized to draw upon the

money available in the fund. Such moneys shall be used to pay promptly

for all cleanup and removal costs incurred by the department.

7. (a) Nothing in this section is intended to preclude cleanup and

removal by any person threatened by such discharges, who, as soon as is

reasonably possible, coordinates and obtains approval for such actions

with ongoing state or federal operations and appropriate state and

federal authorities. Notwithstanding any other provision of law to the

contrary, the liability of any contractor for such person, where such

person obtains approval from appropriate state and federal authorities

for such cleanup and removal, and the liability of any person providing

services related to the cleanup or removal of a discharge, under

contract with the department, 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

provisions 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 is responsible for a discharge in violation of section one

hundred seventy-four of this article.

(b) No action taken by any person to contain or remove a discharge

shall be construed as an admission of liability for said discharge. No

person who gratuitously renders assistance in containing or removing a

discharge shall be liable for any civil damages to third parties

resulting solely from acts or omissions of such person in rendering such

assistance except for acts or omissions of gross negligence or willful

misconduct. In the course of cleanup and removal, no person shall

discharge any detergent into the waters of this state without prior

authorization of the commissioner of environmental conservation.

(c) A person may, without admission of responsibility for the

discharge of petroleum and with the consent of the commissioner,

commence clean up and removal of the discharge and upon the

recommendation of the commissioner of health and with the consent of the

fund undertake the relocation of persons affected by the discharge of

petroleum. Upon determination by the fund that the person is not

responsible for the discharge, the person shall be reimbursed by the

fund for the actual and necessary expenses incurred.

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

including but not limited to 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.