§ 27-0916 — Department authority for cleanups

New York § 27-0916

• Jurisdiction: New York
• Law ENV: Environmental Conservation
• Title 9: Industrial Hazardous Waste Management
• Art. 27: Reduction, Collection, Reuse, Recycling, Treatment and Disposal of Solid Waste

Text

§ 27-0916. Department authority for cleanups.\n 1. The department shall have authority to clean up or return to its\noriginal state any area where hazardous wastes were disposed, possessed\nor dealt in unlawfully in violation of section 27-0914 of this article.\nFor the purpose of this section "the original state of the area" shall\nmean the reasonably ascertainable condition of the property immediately\nprior to the unlawful act or if impracticable to determine such\ncondition, the cleanup or restoration shall be done in a manner to\nrestore the area to a reasonably sound environmental condition.\n 2. The department shall have the authority to contract with the\nenvironmental facilities corporation or any other person to perform\nnecessary work in connection with such cleanup or restoration.\n 3. Notwithstanding any other provision of law to the contrary, the\nliability of any person designing, implementing or otherwise performing\nservices related to cleanup or restoration work pursuant to a contract\nwith the department, or an order of the department or a court for any\ninjury to a person or property caused by or related to such services,\nshall be limited to acts or omissions of the person during the course of\nperforming such services which are shown to have been the result of\nnegligence, gross negligence or reckless, wanton or intentional\nmisconduct. Notwithstanding any other provision of law, when (i) a\nverdict or decision in an action or claim for injury to a person or\nproperty caused by or related to such services is determined in favor of\na claimant in an action involving a person performing such services and\nany other person or persons jointly liable, and (ii) the liability of\nthe person performing such services is found to be fifty percent or less\nof the total liability assigned to all persons liable, and (iii) the\nliability of the person performing such services is not based on a\nfinding of reckless disregard for the safety of others, or intentional\nmisconduct, then the liability of the person performing such services to\nthe claimant for loss relating to injury to property and for\nnon-economic loss relating to injury to a person shall not exceed the\nequitable share of the person performing such services determined in\naccordance with the relative culpability of each person causing or\ncontributing to the total liability for such losses; provided, however,\nthat the culpable conduct of any person not a party to the action shall\nnot be considered in determining any equitable share herein if the\nclaimant proves that with due diligence the claimant was unable to\nobtain jurisdiction over such person in said action. As used in this\nsection, the term "non-economic loss" includes but is not limited to\npain and suffering, mental anguish, loss of consortium or other damages\nfor non-economic loss. However, nothing in this subdivision shall be\ndeemed to alter, modify or abrogate the liability of any person\nperforming such services for breach of any express warranty, limited or\notherwise, or an express or implied warranty under the uniform\ncommercial code, or to an employee of such person pursuant to the\nworkers' compensation law, or to relieve from any liability any person\nwho possessed, disposed of or dealt in hazardous wastes in violation of\nsection 27-0914 of this article.\n 4. Section eight of the court of claims act or any other provisions of\nlaw to the contrary notwithstanding, the state shall be immune from\nliability and action with respect to any act or omission done in the\nexercise of the department's authority pursuant to this section;\nprovided, however, that this subdivision shall not limit any liability\nwhich may otherwise exist for unlawful, willful or malicious acts or\nomissions on the part of the state, state agencies, or other officers,\nemployees or agents.\n 5. Moneys for actions taken by the department pursuant to this section\nincluding any sampling of wastes, soils, air, surface water and\ngroundwater done by or on behalf of the department and any\nadministrative expenses related thereto, shall be payable from the\nhazardous waste remedial fund directly to the department pursuant to\nsection ninety-seven-b of the state finance law.\n