Page 2 - Commercial Litigation

S2 | MONDAY, AUGUST 10, 2015 | Commercial Litigation
| NYLJ.COM
Who Is a Discharger
Under the New York Oil Spill Law?
BY SUZANNE M. AVENA AND MARC A. SITTENREICH
The water seems muddy—or, perhaps, oily—regarding just who is and who is not a “discharger” under New York Navi- gation Law Article 12, also known as the Oil Spill Law (the Law). The statute notoriously makes no attempt to define the term, or to set clear limits as to the persons respon- sible for cleanup of spills. As a public welfare environmental law, the statute is interpreted broadly. However, it seems that the strict, retrospective, joint and several liability scheme is more often than not wielded by courts to capture a more variable selection of parties as dischargers than what may have been intended.
Clearly, the individuals and entities who actually cause or contribute to the release of petroleum into the soil and groundwater are dischargers, and thus responsible for its cleanup. However, courts have further con- strued the Law to impose liability on those who may be less evidently involved in the discharge, such as owners and operators of real property; owners and operators of petroleum dispensing systems; landlords, tenants, and subtenants; and vendors, consultants, and contractors. In fact, it seems like the courts will go to lengths to reimburse the state of New York for any dip it must make into its impoverished Oil Spill Fund (the Fund) to clean up spills where the parties actually responsible fail to respond. For landowners, the result has been a confusing series of holdings, hinging liability upon factors such as “knowledge,” “control,” and “capacity to take action.” And although New York courts have established these factors with the express intent to limit the liability of otherwise faultless parties, they have almost universally found the owners of contaminated property to be dischargers under the Law.
Liability for cleanup of contaminated sites can be a significant burden on property own- ers depending on the extent of the discharge, with damages and related costs numbering
SUZANNE AVENA is a partner and chair of the envi- ronmental practice group at Garfunkel Wild. MARC SITTENREICH is an associate at the firm.
Commercial Litigation
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