Section 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   section  one  hundred  and  eighty-six  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.