§ 176 — Removal of prohibited discharges

New York § 176

• Jurisdiction: New York
• Law NAV: Navigation
• Part 2: Oil Spill Cleanup and Removal; Licenses
• Art. 12: Oil Spill Prevention, Control, and Compensation

Text

§ 176. Removal of prohibited discharges. 1. Any person discharging\npetroleum in the manner prohibited by section one hundred seventy-three\nof this article shall immediately undertake to contain such discharge.\nNotwithstanding the above requirement, the department may undertake the\nremoval of such discharge and may retain agents and contractors who\nshall operate under the direction of such department for such purposes.\nThe commissioner shall develop a system of immediate response type\ncontracts with appropriate agents and contractors. Such contracts shall\nbe subject to the approval of the state comptroller in accordance with\nsection one hundred twelve of the state finance law, however, such\napproval shall not obligate to any particular contract any specific\namount of monies from the fund but shall obligate from the fund on an\nindividual basis as such contracts are utilized the actual amount\nrequired to effectuate any contract or any portion thereof. Any\nnecessary approvals of availability of funds for a particular project in\naccordance with any provision of the state finance law shall be\nundertaken as soon as practical after clean up and removal procedures\nare undertaken, or such procedures are ordered by the commissioner.\n 2. (a) Upon the occurrence of a discharge of petroleum, the department\nshall respond promptly and proceed to cleanup and remove the discharge\nin accordance with environmental priorities or may, at its discretion,\ndirect the discharger to promptly cleanup and remove the discharge. The\ndepartment shall be responsible for cleanup and removal or as the case\nmay be, for retaining agents and contractors who shall operate under the\ndirection of that department for such purposes. Implementation of\ncleanup and removal procedures after each discharge shall be conducted\nin accordance with environmental priorities and procedures established\nby the department.\n (b) Section eight of the court of claims act or any other provision 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\ndischarge of the department's responsibility pursuant to this article;\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 their officers,\nemployees or agents or for a discharge in violation of section one\nhundred seventy-three of this article.\n 3. Any unexplained discharge of petroleum within state jurisdiction or\ndischarge of petroleum occurring in waters beyond state jurisdiction\nthat for any reason penetrates within state jurisdiction shall be\nremoved by or under the direction of the department. Except for those\nexpenses incurred by the party causing such discharge, any expenses\nincurred in the removal of discharges shall be paid promptly from the\nNew York environmental protection and spill compensation fund pursuant\nto sections one hundred and eighty-six and one hundred seventy-nine-a of\nthis article and any reimbursements due such fund shall be collected in\naccordance with the provisions of section one hundred and eighty-seven\nof this article.\n 4. Cleanup and removal of petroleum and actions to minimize damage\nfrom discharges shall be, to the greatest extent possible, in accordance\nwith the National Contingency Plan for removal of oil and hazardous\nsubstances established pursuant to section 311 (d) of the Federal Water\nPollution Control Act (33 U.S.C. 1251 et seq.), as amended by the\nFederal Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.), or revised\nunder section 105 of the Comprehensive Environmental Response,\nCompensation, and Liability Act (42 U.S.C. 9605).\n 5. The department in consultation with the attorney general shall\ndevelop a standard contract form to be used when contracting services\nfor the cleanup and removal of a discharge.\n 6. Whenever the department acts to remove a discharge or contracts to\nsecure prospective removal services, it is authorized to draw upon the\nmoney available in the fund. Such moneys shall be used to pay promptly\nfor all cleanup and removal costs incurred by the department.\n 7. (a) Nothing in this section is intended to preclude cleanup and\nremoval by any person threatened by such discharges, who, as soon as is\nreasonably possible, coordinates and obtains approval for such actions\nwith ongoing state or federal operations and appropriate state and\nfederal authorities. Notwithstanding any other provision of law to the\ncontrary, the liability of any contractor for such person, where such\nperson obtains approval from appropriate state and federal authorities\nfor such cleanup and removal, and the liability of any person providing\nservices related to the cleanup or removal of a discharge, under\ncontract with the department, for any injury to a person or property\ncaused by or related to such services shall be limited to acts or\nomissions of the person during the course of performing such services\nwhich are shown to have been the result of negligence, gross negligence\nor reckless, wanton or intentional misconduct. Notwithstanding any other\nprovisions of law, when (i) a verdict or decision in an action or claim\nfor injury to a person or property caused by or related to such services\nis determined in favor of a claimant in an action involving a person\nperforming such services and any other person or persons jointly liable,\nand (ii) the liability of the person performing such services is found\nto be fifty percent or less of the total liability assigned to all\npersons liable, and (iii) the liability of the person performing such\nservices is not based on a finding of reckless disregard for the safety\nof others, or intentional misconduct, then the liability of the person\nperforming such services to the claimant for loss relating to injury to\nproperty and for non-economic loss relating to injury to a person shall\nnot exceed the equitable share of the person performing such services\ndetermined in accordance with the relative culpability of each person\ncausing or contributing to the total liability for such losses;\nprovided, however, that the culpable conduct of any person not a party\nto the action shall not be considered in determining any equitable share\nherein if the claimant proves that with due diligence the claimant was\nunable to obtain jurisdiction over such person in said action. As used\nin this section, the term "non-economic loss" includes, but is not\nlimited to, pain and suffering, mental anguish, loss of consortium or\nother damages for non-economic loss. However, nothing in this\nsubdivision shall be deemed to alter, modify or abrogate the liability\nof any person performing such services for breach of any express\nwarranty, limited or otherwise, or an express or implied warranty under\nthe uniform commercial code, or to an employee of such person pursuant\nto the workers' compensation law, or to relieve from any liability any\nperson who is responsible for a discharge in violation of section one\nhundred seventy-four of this article.\n (b) No action taken by any person to contain or remove a discharge\nshall be construed as an admission of liability for said discharge. No\nperson who gratuitously renders assistance in containing or removing a\ndischarge shall be liable for any civil damages to third parties\nresulting solely from acts or omissions of such person in rendering such\nassistance except for acts or omissions of gross negligence or willful\nmisconduct. In the course of cleanup and removal, no person shall\ndischarge any detergent into the waters of this state without prior\nauthorization of the commissioner of environmental conservation.\n (c) A person may, without admission of responsibility for the\ndischarge of petroleum and with the consent of the commissioner,\ncommence clean up and removal of the discharge and upon the\nrecommendation of the commissioner of health and with the consent of the\nfund undertake the relocation of persons affected by the discharge of\npetroleum. Upon determination by the fund that the person is not\nresponsible for the discharge, the person shall be reimbursed by the\nfund for the actual and necessary expenses incurred.\n 8. Notwithstanding any other provision of law to the contrary,\nincluding but not limited to section 15-108 of the general obligations\nlaw, every person providing cleanup, removal of discharge of petroleum\nor relocation of persons pursuant to this section shall be entitled to\ncontribution from any other responsible party.\n