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 Discharges of Petroleum under the NY Navigation Law
The NY Navigation Law defines responsibility for the clean-up of discharged petroleum. Although the act provides for an oil spill fund that allows the State of New York to pay for petroleum discharges in the first instance, ultimate responsibility for these costs rests with the discharger of petroleum. This site provides a brief introduction to the requirements of the Navigation Law.
To review more details about the NYSDEC's Spill Response and Remediation, please review their website: http://www.dec.state.ny.us/website/der/spills/.
Who is a discharger of petroleum?
Discharger means any person (and "person" is defined very broadly to include both natural and corporate persons) discharging petroleum. Navigation Law § 176.
Dischargers include:
- The first category of discharger: the spiller. Obviously, any person who discharges or spills petroleum will be responsible for its clean-up. However, there are other categories of dischargers who are also responsible for the clean-up of spilled petroleum.
"Discharge" means any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of petroleum into the waters of the state or onto lands from which it might flow or drain into said waters, or into waters outside the jurisdiction of the state when damage may result to the lands, waters or natural resources within the jurisdiction of the state. Navigation Law § 172(8).
"Spill" or "spillage" means any escape of petroleum from the ordinary containers employed in the normal course of storage, transfer, processing or use. A spill becomes a discharge only when petroleum reaches waters of the State or lands from which they might flow or drain into said waters. 6 NYCRR § 611.2(g).
 The second category of discharger: the owner of the real property upon which a petroleum discharge occurred. The owner can be an "innocent" owner, that is, a person not directly responsible for the petroleum discharge. Courts have held that if the owner has control over the petroleum, or the system in which the petroleum is stored, or if the owner has control of the activities on the property and reason to believe that will be stored there, he or she may be responsible to clean-up any discharge of petroleum occurring on his or her property.
- The third category of discharger: the supplier of petroleum that was discharged. Courts have determined that oil delivery companies and petroleum brokers may be responsible for the clean-up of petroleum discharges that occurred during delivery.
- The fourth category of discharger: corporate shareholders, officers and employees. The State of New York has sought to hold corporate officers liable as dischargers, not by piercing the corporate veil, but by virtue of their ability to control corporate activities.
- The fifth category of discharger: the contractor. Courts have held a contractor liable for the costs of a petroleum clean-up as a "discharger" for its failure to clean-up a petroleum contaminated site properly.
Who must report a spill?
- Any person responsible for causing a discharge must report to DEC within two hours of spill. Navigation Law § 175.
- An owner or person in actual or constructive control of petroleum must also report to DEC within two hours of spill. 17 NYCRR §§ 32.3 - 32.4.
- Under bulk storage regulations (facilities with a combined storage of more than 1100 gallons of petroleum) any person with knowledge of a spill, leak or discharge must report to DEC within two hours of discovery. 6 NYCRR §613.8.
The DEC Hotline telephone number (for spill reporting): 1-800-457-7362.
Any oil discharge that violates water quality standards or causes sheen on navigable waters must also be reported to the National Response Center: 1-800-424-8802. 40 CFR §110.10.
When is a spill a reportable spill?
Under guidance issued by DEC, the following petroleum spills do not have to be reported if all of the following criteria have been met:
- The spill is less than 5 gallons;
- The spill is contained and under control of the spiller;
- The spill will not reach the State's waters or any land leading thereto; and
- The spill is cleaned up within 2 hours of discovery.
All other spills of petroleum must be reported.
If you have a question about a petroleum discharge or other matter affecting you and the environment, please contact me via email, or by mail or telephone and I'll be happy to answer your questions.
This memorandum was accurate when written. However, statutory and regulatory provisions, and how they are interpreted, change over time. The matters discussed in this memorandum should not be considered legal advice and readers should seek advice of counsel for any questions involving personal or business decisions relating to the issues raised herein.
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