2023 New York Laws › NAV - Navigation › Article 12 - Oil Spill Prevention, Control, and Compensation › Part 2 - Oil Spill Cleanup and Removal; Licenses › 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.