Basics of the “Oil Spill Act,” Article 12 of the New York Navigation Law

Posted By on December 3, 2006

New York’s Oil Spill Act, Article 12 of the New York Navigation Law, assigns strict liability to any person who has discharged petroleum, for all cleanup and removal costs associated with the cleanup of the petroleum, as well as all direct and indirect damages, such as attorney’s fees. N.Y. Navigation Law (1). A discharge of petroleum, sufficient to incur liability under the Oil Spill Act, includes any intentional or unintentional action or omission resulting in a release of petroleum into water, or into soil from which the petroleum could flow or drain into water. NL 172(8). New York generally interprets any and all spills of petroleum onto soil as falling within the jurisdiction of the Oil Spill Act, without any demonstration that the petroleum will actually find its way to the waters nominally protected by the Act.

Private parties as well as the State may sue to recover cleanup costs, through either a direct ‚cost recovery action by the State or a faultless private party that performed the cleanup, or a contribution action brought by a person who has had to pay cleanup costs to the party that performed the cleanup. NL 176(8), 181(1), (5). In contribution actions, the person bringing the action is usually at fault in some way for the spill, but has had to pay more than her fair share of the cleanup costs; the contribution action is a way of making all responsible parties pay their fair share toward the cleanup.

Liability under the Oil Spill Act extends to anyone responsible for the discharge. With extremely narrow exceptions, this includes owners or operators of property on which a spill occurred; the owner/operator necessary responsibility under the Act derives from its power to control activities on the property, i.e., its capacity to take action to prevent an oil spill or to clean up contamination resulting from a spill. This power of control includes a property owner ability to control lease terms, so an owner will be liable even if its lessee, such as a gas station operator, bears all responsibility for operation of the property under the lease. Other responsible parties commonly include oil delivery companies, operators of petroleum systems, maintenance companies, and installers of faulty systems.

While this liability scheme may seem and often is harsh in its application to property owners who did not commit any act to cause a leak or spill, there are numerous ways that a property owner can recover all or most of any payments it must make to clean up a spill.  In addition to the Navigation Law contribution action, mentioned above, there are also several common law claims such as negligence, breach of contract, or even trespass, available against others who may have been directly at fault for the leak or spill.

See New York Navigation Law Definition: NL 172

About the author

James Periconi’s practice focuses almost equally on commercial property transaction counseling, on environmental regulatory matters in the U.S. Environmental Protection Agency and the New York State Department of Environmental Conservation (DEC), and on environmental litigation in the federal and state courts. A former Chief of Solid and Hazardous Waste Enforcement for the State DEC and an Assistant New York Attorney General prosecuting civil and criminal environmental cases, he has in private practice since 1989 had substantial experience representing defendants in governmental actions brought for remediation of Superfund and other contaminated sites, and for prosecution and defense of private cost recovery actions for such sites.

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