THE NEW YORK OIL SPILL LAW

Navigation Law Article 12

By: Alan J. Knauf, Esq.

Navigation Law Article 12 (the "Oil Spill Law") is the primary mechanism to deal with liability and cleanup for oil spills on land and water in New York State. The Oil Spill Law, enacted in 1977, prohibits the unpermitted discharge of petroleum. It follows the same basic pattern as the later federal and state Superfund statutes, creating strict liability for "[a]ny person who has discharged petroleum" (a "discharger"), and providing for cleanup financed by a government fund.

The law generally prohibits the "discharge of petroleum," but does not apply to discharges "in compliance with the conditions of a federal or state permit." Navigation Law §173. Special provisions relate to "major facilities" (including refineries, pipelines, and other facilities with a capacity greater than 400,000 gallons, Navigation Law §172(11), and coordination with the federal Oil Pollution Act of 1990. The statute is "liberally construed to effect its purposes." Henning v. Rando Machine Corp., 207 A.D.2d 106, 620 N.Y.S.2d 867 (4th Dep't 1994); Navigation Law §195. The Oil Spill Law applies to spills which occurred before the statute was enacted in 1977. State v. Cities Service Co., 180 A.D.2d 940, 580 N.Y.S.2d 512 (3d Dep't 1992); Navigation Law §190-a.

Note that petroleum is excluded from the federal Superfund Law (the Comprehensive Environmental Response Compensation and Liability Act, or "CERCLA") CERCLA §101(14), 42 U.S.C. §9601(14); see also Exxon Corporation v. Hunt, 475 U.S. 355, 106 S.Ct. 1103 (1986). However, the Oil Spill Law does not preclude the right to sue under common law theories. Calabro v. Sun Oil Co., 276 A.D.2d 858, 714 N.Y.S.2d 781 (3^rd Dep't 2000).

I. Liability

A. Strict Liability for Dischargers. Under Navigation Law §181(1), "[a]ny person who has discharged petroleum shall be strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained...." There is no "third party" defense, so liability may be imposed on a "blameless" party. Merrill Transport Co. v. State, 94 A.D.2d 39, 43, 464 N.Y.S.2d 249, 252 (3d Dep't 1983), mot. den'd 60 N.Y.2d 555, 467 N.Y.S.2d 1030 (1983). The "failure, unintentional or otherwise, to take any action in controlling the events that led to the spill or to effect an immediate cleanup renders [a defendant] liable as a discharger." State v. Green, 96 N.Y.2d 403, 729 N.Y.S.2d 420 (2001). While the statute specifically provides that the "owner or operator of a major facility or vessel which has discharged petroleum" is strictly liable, the statute establishes a cap on the liability of such major facilities (e.g. refineries) and vessels. Navigation Law §181(3).

B. Discharge. "Discharge" is defined to include all "intentional and unintentional... releasing, spilling, leaking,... of petroleum "into the waters of the state or onto lands from which it might flow or drain into said waters...." Navigation Law §172(8). Those "waters" include "all lakes, springs, streams and bodies of surface or ground water." §172(18). Accordingly, even spills on the land that "might flow or drain" into "ground water" are covered. Unless an oil spill is totally enclosed indoors, it is generally considered to be a "discharge" encompassed by the statute, and "judicial notice can be taken of the common knowledge that oil can seep through the ground into surface and groundwater... and thereby cause ecological damage." Merrill Transport Co. v. State, 94 A.D.2d 39, 43, 464 N.Y.S.2d 249, 252 (3d Dep't 1983), mot. den'd 60 N.Y.2d 555, 467 N.Y.S.2d 1030 (1983). However, in State v. Arthur L. Moon, Inc., 228 A.D.2d 826, 643 N.Y.S.2d 760, 761 (3d Dep't 1996), mot. for leave to appeal den'd 87 N.Y.2d 861, 653 N.Y.S.2d 282 (1996), a question of fact was raised as to whether an oil spill "did not actually reach the groundwater or threaten to do so."

C. Petroleum. "Petroleum" is defined to include "oil or petroleum of any kind and in any form including, but not limited to, oil, petroleum, fuel oil, oil sludge, oil refuse, oil mixed with other wastes and crude oils, gasoline and kerosene." Navigation Law §172(15). Thus, "'hydrocarbons which are commonly associated with petroleum waste,' broadly construed," are encompassed within the definition of "petroleum." Henning v. Rando Machine Corp., 207 A.D.2d 106, 620 N.Y.S.2d 867 (4th Dep't 1994).

D. Retroactive Liability. The Oil Spill Law applies to spills which occurred before the statute was enacted in 1977. State v. Cities Service Co., 180 A.D.2d 940, 580 N.Y.S.2d 512 (3d Dep't 1992); Bologna v. Kerr-McGee Corp., 95 F.Supp.2d 197 (S.D.N.Y. 2000); Navigation Law §190-a.

E. Burden of Proof. Ordinarily, the burden of proof is on a plaintiff to show that the defendant is the discharger. In Prato v. Vigliotta, 253 A.D.2d 749, 677 N.Y.S.2d 380 (2d Dep't 1998), the plaintiff's case was dismissed because he failed to rebut the defendant's affidavit and demonstrate any connection between leaks in 1983 and contamination discovered years later. However, in a California case arising under the Resource Conservation and Recovery Act where it was not clear which past or present owner controlled the tanks at the time they leaked, the burden of proof shifted to the defendants to show they were not responsible. Zands v. Nelson, 779 F.Supp. 1254 (S.D. Cal. 1991).

F. Penalties. Navigation Law §192 provides for fines of up to $25,000 per day for violation of the law, such as an illegal discharge of petroleum, and "[i]f the violation is of a continuing nature each day during which it continues shall constitute an additional, separate and distinct offense." See, e.g., State v. Markowitz, 273 A.D.2d 636, 710 N.Y.S.2d 407, 412 (3^rd Dep't 2000), lv. den'd 95 N.Y.2d 770, 722 N.Y.S.2d 473 (2000) (lower court assessed $2.25 million penalties). For example, in Oil Co., Inc. v. NYSDEC, 277 A.D.2d 241, 716 N.Y.S.2d 398 (2d Dep't 2000), 277 A.D.2d 241, 716 N.Y.S.2d 398 (2d Dep't 2000), lv. den'd 96 N.Y.2d 708, 725 N.Y.S.2d 638 (2001), the court upheld a fine of $3.5 million for over 18,000 violations of environmental statutes, including violation of the Oil Spill Law by operating a major facility for 10 years without a permit. In Howard v. Cahill, ___ A.D.2d ___, 736 N.Y.S.2d 470 (3d Dep't 2002), discharges in violation of Navigation Law §172, failure to complete a timely cleanup in violation of Navigation Law §176, and exceeding groundwater standards under 6 N.Y.C.R.R. Part 703 resulted in a $50,000 fine.

II. Cleanups. Under the Oil Spill Law, the New York State Department of Environmental Conservation ("DEC") is authorized to clean up an oil spill site and hire contractors to assist it. Navigation Law §176. Such cleanups are funded by the New York Environmental Protection and Spill Compensation Fund (the "Oil Spill Fund"). Navigation Law §186. Dischargers are required to immediately contain a spill, §176(1), can be directed by DEC to undertake a cleanup, §176(2), or may voluntarily remediate with the approval of DEC and (if applicable) federal authorities. §176(7)(a). Voluntarily undertaking a cleanup is not an admission of liability. §176(7)(b).

"Cleanup and removal" is defined by Navigation Law §172(4) as:

(a) containment or attempted containment of a discharge, (b) removal or attempted removal of a discharge or, (c) taking of reasonable measures to prevent or mitigate damages to the public health, safety, or welfare, including but not limited to, public and private property, shorelines, beaches, surface waters, water columns and bottom sediments, soils and other affected property, including wildlife and other natural resources.

Cleanups should be consistent with the federal National Contingency Plan. Navigation Law §176(4). DEC requires that:

Containment must be initiated immediately after discovery of a discharge ro reduce the costs of recovery, increase the recyclability of recovered petroleum, and minimize hazards to public health, economic loss and environmental damage.

6 N.Y.C.R.R. §611.13(a). The objectives of cleanup are to (1) rapidly remove the discharge to increase recyclability and minimize environmental damage, (2) continue to protect environmental and natural resources, (3) soundly dispose of unrecyclable waste, (4) restore the environment to "pre-spill conditions," (5) collect injured fauna for rehabilitation, and (6) collect evidence of natural Resource damages. Generally, containment and cleanup procedures follow the New York State Water Quality Accident Contingency Plan and Handbook. 6 N.Y.C.R.R. §§611.13(b), 611.6(b).

Ground and surface water standards for various substances, including oil and constituents of petroleum are set forth at 6 N.Y.C.R.R. Part 703. For oil, the standards require no "visible oil film nor globules of grease." 6 N.Y.C.R.R. §703.2. While DEC formerly used DEC STARS Memo. #1, Petroleum Contaminated Soil Guidance (1992) as the guideline for cleanups levels, early in 2001, it substituted the soil cleanup objectives contained in TAGM 4046 and states that, generally, the soil cleanup objectives for individual contaminants should be used. The cleanup values in STARS #1 will continue to be used for the stated purpose "[t]o provide direction on the handling, disposal and/or reuse of nonhazardous petroleum contaminated soils." 14 New York Business Environment 4 (April 2001). It may be possible to negotiate less stringent cleanup levels.

DEC had been considering formally adopting a policy on risk-based corrective action ("RBCA"). Such a RBCA policy would require baseline remedial action, including source removal and necessary plume management activities, but may permit residual contamination to remain and "naturally attenuate" provided all exposure pathways (vapor, groundwater, etc.) are eliminated through engineering (e.g. pavement) or institutional (e.g. deed restriction prohibiting excavation) controls. Nonetheless, RBCA principles are commonly applied to cleanups.

Residents faced with a health risk can be relocated through an emergency oil spill relocation network headed by the Commissioner of Health. Navigation Law §177-a. If a discharger fails to relocate residents as recommended, pursuant to Navigation Law §176(7)(c), it can be liable for double the cost incurred by the Oil Spill Fund in such relocation. Navigation Law §181(1). Residents faced with a health risk can be relocated through an emergency oil spill relocation network headed by the Commissioner of Health. Navigation Law §177-a. If a discharger fails to relocate residents as recommended, pursuant to Navigation Law §176(7)(c), it can be liable for double the cost incurred by the Oil Spill Fund in such relocation. Navigation Law §181(1).

While DEC can proceed through formal administrative proceedings to require cleanups and collect fines for failure to report or clean a site, generally it proceeds through negotiated settlements that are memorialized in "consent orders." Under a program commenced in 1994, DEC has adopted a short and uniform "Stipulation Agreement," by which an alleged discharger would agree to clean up a spill, but would not admit to liability. Besides the simplicity of this procedure, another advantage is that it relieves the responding party from the necessity of obtaining permits for remedial work (such as an air permit to emit vapors).

Under the Voluntary Cleanup Program, a purchaser can enter into an agreement with DEC for cleanup of contaminated property, resulting in a release of liability. DEC, Voluntary Cleanup Program at http://www.dec.state.ny.us/website/der/vcpfs.html. The discharger may even be eligible to be a party to the voluntary agreement. However, in order to obtain full liability protection, it may be necessary to obtain the agreement of the State Comptroller, as the trustee of the Oil Spill Fund, as well as the State Attorney General. Sullivan, "The Department of Environmental Conservation's Voluntary Remedial Program," 2 Environmental Law in New York, vol. 8 (Feb. 1997) at 28; "Summary of Voluntary Cleanup Agreements Issued by the New York Department of Environmental Conservation Under the Voluntary Cleanup Program," 16 New York Environmental Lawyer, no. 4 (Fall 1996); Sullivan, "The Department of Environmental Conservation's Brownfield Programs," New York Virtual Environmental Law Center at http://www.nyenvlaw.com/cleanup.htm.

III. Oil Spill Fund

A. Payment for DEC Cleanups. Cleanups by DEC are funded by the New York Environmental Protection and Spill Compensation Fund (the "Oil Spill Fund"), Navigation Law §179, which is administered by the State Comptroller. Navigation Law §180. Disbursements from the Oil Spill Fund are allowed for specified cleanup costs and damages. Navigation Law §186; 2 N.Y.C.R.R. Part 404. The state can sue "the person responsible for causing a discharge for reimbursement of its costs." Navigation Law §187.

B. Private Claims. Injured third parties are allowed to file claims with the Oil Spill Fund for their damages, Navigation Law §182, 2 N.Y.C.R.R. Part 402, and if paid, the Comptroller acquires the claimant's claims against the discharger by subrogation. Navigation Law §188. Claims generally must be filed "not later than three years after the date of discovery of damage" and "not later than ten years after the date of the incident which caused the damage." Navigation Law §182; Z & H Realty, Inc. v. Office of State Comptroller, 259 A.D.2d 928, 686 N.Y.S.2d 900 (3d Dep't 1999). While the statute states that the Oil Spill Fund "shall be strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained," Navigation Law §181(2), the term "claim" is defined to only include "claims of the fund or any claim by an injured person, who is not responsible for the discharge." Navigation Law §172(3). Thus, the courts have held that a discharger liable under the Oil Spill Law is not entitled to payment of such a claim. Merrill Transport Co. v. State, 94 A.D.2d 39, 43, 464 N.Y.S.2d 249, 252 (3d Dep't 1983), mot. den'd 60 N.Y.2d 555, 467 N.Y.S.2d 1030 (1983); White v. Regan, 171 A.D.2d 197, 575 N.Y.S.2d 375 (3d Dep't 1991), app. den'd 79 N.Y.2d 754, 581 N.Y.S.2d 282 (1992). The State Comptroller can arrange for settlements between the discharger, the injured party, and/or the Oil Spill Fund. Navigation Law §§183, 184, or hold hearings on disputed claims. Navigation Law §185. See also 2 N.Y.C.R.R. Part 403.

IV. Liens

If, within 90 days after a demand, a landowner fails to reimburse the state "for the costs incurred by the fund for the cleanup and removal of a discharge and for the payment of claims for direct and indirect damages as a result of a discharge," the state may file a lien on land "upon which the discharge occurred." Navigation Law §181-a. The environmental lien is "subject to the rights of any other person, including an owner, purchaser, holder of a mortgage or security interest, or judgment lien creditor, whose interest is perfected before a lien notice has been filed." Navigation Law §181-a(4). The notice of lien is indexed in the same manner as a lien under Lien Law §10. Navigation Law §181-c. An action to vacate an environmental lien is governed by Lien Law §59, and should not be brought as an Article 78 proceeding. Art-Tex Petroleum, Inc. v. New York State Department of Audit and Control, 93 N.Y.2d 830, 687 N.Y.S.2d 61 (1999).

V. "Dischargers"

The statute does not define "person who discharged petroleum" or "discharger," and in fact the term "discharger" does not even appear in Navigation Law §181, which governs liability under the law. However, the courts have broadly construed liability under the Oil Spill Law applies to encompass "any party discharging oil." State v. Stewart's Ice Cream Co., Inc., 64 N.Y.2d 83, 86, 484 N.Y.S.2d 810, 811 (1984). While it may be helpful to consider case law under the Clean Water Act and CERCLA, see Merrill Transport Co. v. State, 94 A.D.2d 39, 43, 464 N.Y.S.2d 249, 252 (3d Dep't 1983), mot. den'd 60 N.Y.2d 555, 467 N.Y.S.2d 1030 (1983), the term "discharger" is not equivalent to an "owner" or "operator" under federal environmental laws.

A. Operators. The operator of a facility which leaked gas, oil, or other forms of petroleum into the ground will generally be strictly liable for cleanup costs under the Oil Spill Law. State v. King Service, 167 A.D.2d 777, 563 N.Y.S.2d 331 (3d Dep't 1990); Roosa v. Campbell, ___ A.D.2d ___, 737 N.Y.S.2d 461 (4^th Dep't 2002). This may include both the operator of a service station, and an oil company that owns the tanks. Leone v. Leewood Service Station, Inc., 212 A.D.2d 669, 624 N.Y.S.2d 610 (2d Dep't 1995), mot. den'd 86 N.Y.2d 709, 634 N.Y.S.2d 443 (1995); State v. Tartan Oil Corp., 219 A.D.2d 111, 638 N.Y.S.2d 989 (3d Dep't 1996). A truck driver may be liable for a discharge from his truck resulting from an accident he did not cause. Merrill Transport Co. v. State, 94 A.D.2d 39, 43, 464 N.Y.S.2d 249, 252 (3d Dep't 1983), mot. den'd 60 N.Y.2d 555, 467 N.Y.S.2d 1030 (1983). A residential homeowner may be liable as a discharger. State v. New York Central Mutual Fire Co., 147 A.D.2d 77, 542 N.Y.S.2d 402 (3d Dep't 1989); State v. Arthur L. Moon, Inc., 228 A.D.2d 826, 643 N.Y.S.2d 760 (3d Dep't 1996), app. dis'd 89 N.Y.2d 861, 653 N.Y.S.2d 282 (1997). See also Navigation Law §172(14) (defining "operator").

B. Non-Operators. Any person who "set in motion the events which resulted in the discharge" is liable, even if there is "no proof is required of a specific wrongful act or omission which directly caused the spill." Domermuth Petroleum Equipment & Maintenance Corp. v. Herzog & Hopkins, Inc., 111 A.D.2d 957, 490 N.Y.S.2d 54, 56 (3d Dep't 1985); see also State v. Green, 96 N.Y.2d 403, 729 N.Y.S.2d 420 (2001). Thus, liable "dischargers" have included a company that delivered oil and repaired the tank, Id., a general contractor responsible for "oversight and management of the construction project, including the design, specification and installation of the UST system," Huntington Hospital v. Andron Heating and Air Conditioning, Inc., 250 A.D.2d 814, 673 N.Y.S.2d 456 (2d Dep't 1998), the seller and installer of an oil tank, Mendler v. Federal Ins. Co., 159 Misc.2d 1099, 607 N.Y.S.2d 1000 (Sup. Ct. N.Y. Co. 1993), the supplier of a leaking home heating oil tank or hose, Snyder v. Jessie, 145 Misc.2d 293, 546 N.Y.S.2d 777 (Sup. Ct. Monroe Co. 1989), rev. in part on other grounds, 164 A.D.2d 405, 565 N.Y.S.2d 924 (4th Dep't 1990), mot. den'd 77 N.Y.2d 940, 569 N.Y.S.2d 613 (1991); Lowenthal v. Perkins, 164 Misc.2d 922, 626 N.Y.S.2d 358 (Sup. Ct. Tompkins Co. 1995); Premier National Bank v. Effron Fuel Oil Co., 182 Misc.2d 169 (1999), 698 N.Y.S.2d 434 (Sup. Ct. Dutchess Co. 1999), an oil broker, State v. Montayne, 199 A.D.2d 674, 604 N.Y.S.2d 978 (3d Dep't 1993), the owner of a facility served by a pipeline that leaked off-site. Steuben Contracting, Inc. v. Griffith Oil Co., Inc., 283 A.D.2d 1008, 726 N.Y.S.2d 308 (4^th Dep't 2001), and an architect who designed and supervised installation of a waste oil system. Irmer v. Dewolff Partnership Architects, Index No. 1344/96 (Sup. Ct. Monroe Co. 2001, Frazee, J.).

The failure to install a tank liner may result in liability as a discharger. Barclay's Bank of New York, N.A. v. Tank Specialists, Inc., 236 A.D.2d 570, 654 N.Y.S.2d 673 (2d Dep't 1997). Likewise, the failure of an oil company to provide corrosion protection when a pipeline was installed may give rise to liability. Steuben Contracting, Inc. v. Griffith Oil Co., Inc., 283 A.D.2d 1008, 726 N.Y.S.2d 308 (4^th Dep't 2001). A fire company that caused a discharge while fighting a fire was held liable (although today it might qualify under defense for fire departments set forth in Navigation Law §181(6)). Nicol v. D.W. Jenkins Fire Co., Inc., 192 A.D.2d 164, 600 N.Y.S.2d 519 (3d Dep't 1993). An environmental contractor who caused a release when removing a tank may also be a discharger. Hilltop Nyack Corp. v. TRMI Holdings, 264 A.D.2d 503, 694 N.Y.S.2d 717 (2d Dep't 1999).

However, a "non-operator" co-tenant in a lease for an oil well was held not to be a discharger. Whitesell v. Richardson-Walchli Corp., 237 A.D.2d 953, 654 N.Y.S.2d 541 (4^th Dep't 1997), mot. dis'd 92 N.Y.2d 876, 677 N.Y.S.2d 782 (1998). Where a defendant only owned the property in question prior to the discharges, it was not liable. Hilltop Nyack Corp. v. TRMI Holdings, Inc., 272 A.D.2d 521, 708 N.Y.S.2d 138 (2d Dep't 2000). An oil company will not be liable for discharges unless the discharge "occurred during delivery or... was in a position to 'halt [the] discharge, to effect an immediate cleanup or to prevent the discharge in the first place.'" State v. Avery-Hall Corp. 279 A.D.2d 199, 719 N.Y.S.2d 735 (3d Dep't 2001); State v. Cronin, 186 Misc.2d 809, 717 N.Y.S.2d 828 (Sup. Ct. Albany Co. 2000).

C. Owners. Unlike CERCLA, the Oil Spill Law does not provide that a landowner is liable. The courts have struggled with the question of whether a landowner who does not actively operate the source of the spill is strictly liable under the statute. In a series of decisions, the Third Department held owners automatically liable, no matter if they knew tanks were even present on their property. White v. Regan, 171 A.D.2d 197, 575 N.Y.S.2d 375 (3d Dep't 1991), app. den'd 79 N.Y.2d 754, 581 N.Y.S.2d 282 (1992) (owner "unwittingly" purchased land which contained petroleum underground storage tanks that had previously leaked); State v. King Service Inc., 167 A.D.2d 777, 563 N.Y.S.2d 331 (3d Dep't 1991) (purchaser of leaking tanks); State v. Tartan Oil Corp., 219 A.D.2d 111, 638 N.Y.S.2d 989 (3d Dep't 1996) (purchaser of service station with leaking tanks).

In contrast, the Fourth Department held that a landowner who did not own leaking tanks was not automatically liable for activities of his tenant, because "[t]he statutory scheme makes clear that liability as a 'discharger' is based upon conduct, not status," and rejected broader rulings of the Third Department, stating that "to the extent that those cases can be read as establishing landowner liability per se, they find no support in the statute and cannot be reconciled with other cases." Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 619 N.Y.S.2d 433 (4th Dep't 1994); see also Whitesell v. Richardson-Walchli Corp., 237 A.D.2d 953, 654 N.Y.S.2d 541 (4^th Dep't 1997), mot. dis'd 92 N.Y.2d 876, 677 N.Y.S.2d 782 (1998) (owner of an oil well lease who did not control operations was not a discharger).

By 2000, the Appellate Divisions seemed to come into agreement with Drouin, holding that "the owner of the system" that caused the discharges is liable, and where there is no "unity of ownership," so that the tanks or other petroleum system were owned by a tenant, the landowner was not automatically liable. State v. Green, 272 A.D.2d 214, 707 N.Y.S.2d 704 (3d Dept 2000), rev. 96 N.Y.2d 403, 729 N.Y.S.2d 420 (2001); State v. Markowitz, 273 A.D.2d 636, 710 N.Y.S.2d 407 (3^rd Dep't 2000), lv. den'd 95 N.Y.2d 770, 722 N.Y.S.2d 473 (2000); Four Star Oil & Gas Company v. Kalish, 272 A.D.2d 292; 707 N.Y.S.2d 189 (2^nd Dep't. 2000); 310 South Broadway Corp. v. McCall, 275 A.D.2d 549, 712 N.Y.S.2d 206 (2d Dep't 2000), lv. den'd 96 N.Y.2d 701, 722 N.Y.S.2d 793 (2001). After repeatedly ducking the issue, see, e.g., Art-Tex Petroleum, Inc. v. New York State Department of Audit and Control, 93 N.Y.2d 830, 687 N.Y.S.2d 61 (1999), the Court of Appeals finally tackled the issue when it reviewed Green.

In State v. Green, 96 N.Y.2d 403, 729 N.Y.S.2d 420 (2001), the Court of Appeals reversed the Third Department, and held that the statutory "language is sufficiently broad to include landowners, like Lakeside, who have both control over activities occurring on their property and reason to believe that their tenants will be using petroleum products." 96 N.Y.2d at 407, 729 N.Y.S.2d at 423. Thus, defendant Lakeside, the owner of a trailer park was held to be liable as a discharger, since it "had the ability to control potential sources of contamination on its property, including Green's maintenance of a 275-gallon kerosene tank." Id. Its "failure, unintentional or otherwise, to take any action in controlling the events that led to the spill or to effect an immediate cleanup renders it liable as a discharger." Id. However, the Court held that not all landowners will be liable:

By predicating liability on a landowner's control over the contaminated premises, we ensure that landowners are not in all instances liable for spills occurring on their property. A landowner, for example, who falls victim to a "midnight dumper," or an errant oil truck that spills fuel, would not be liable as a "discharger" because, in those cases, the landowner could not control the events resulting in the discharge. Here, however, Lakeside, as owner of the property, was in a position to control the site and source of the discharge. As Green's lessor, moreover, Lakeside could have reasonably expected Green to use fuel to heat her home; and it received the benefit of the lease as well as the cleanup. In these circumstances, Lakeside is liable for the discharge.

96 N.Y.2d at 407, 729 N.Y.S.2d at 423-4.

In Roosa v. Campbell, ___ A.D.2d ___, 737 N.Y.S.2d 461 (4^th Dep't 2002), the Fourth Department followed Green, and held a landowner leased property to a service station, it was liable.

D. Corporate Veil. Broad interpretations of the definitions of "owner" and "operator" under federal environmental laws can result in liability, in limited situations, for responsible corporate officers, parent corporations, and even lenders who were actively involved in operation of a facility that resulted in pollution. See, e.g., New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985); Monachino, Courts May Find Individuals Liable for Environmental Offenses Without Piercing Corporate Shield, 72 New York State Bar Journal, May 2000 at 22. In State v. Markowitz, 273 A.D.2d 636, 710 N.Y.S.2d 407, 412 (3^rd Dep't 2000), lv. den'd 95 N.Y.2d 770, 722 N.Y.S.2d 473 (2000), the Third Department adopted a similar rule, and under the facts of the case refused to find individual liability:

Consistent with the relevant Federal and State statutes and developing case law, we hold that in order to hold a corporate stockholder, officer or employee personally liable under the Navigation Law for a discharge occurring at a site owned or operated by the corporation, that individual must, at a minimum, have been directly, actively and knowingly involved in the culpable activities or inaction which led to a spill or which allowed a spill to continue unabated.

See also Allen v. W.W. Griffith Oil Company, Inc., Index No. 25554 (Sup. Ct. Wyoming Co. 1992, Dadd, J.) (president and CEO of oil company could not be held liable as a discharger where the "allegations...do not show that [he] participated in the wrongful conduct"); Malin v. Bill Wolf Petroleum Corp., Index No. 21438/96 (Sup. Ct. Nassau Co. 1999) (defendant who controlled corporate discharger liable); State v. Amicucci, Index No. 629/94 (Sup. Ct. Putnam Co. 1995) (corporate officer may be personally liable).

E. "Victim" Properties. While there is no definitive case law on the issue, it would seem that a nearby owner whose land is contaminated by a spill from another property could not be liable under the Oil Spill Law, since he would not be a "person who discharged petroleum," especially in light of the Court of Appeals holding in Green. Furthermore, under analogous case law under CERCLA, a property owner cannot be held liable for "passive migration." See ABB Industrial v. Prime Technology, 120 F.3d 351 (2d Cir.1997).

The extent to which an on-site petroleum discharge has migrated off-site will dictate the level of cleanup required. DEC generally requires a discharger to completely remediate off-site contamination, to the extent feasible, in order to avoid claims by victim property owners against the Oil Spill Fund.

VI. Private Right of Action

A. Right of Action By Injured Party Against Discharger. Previously, the Appellate Division, Fourth Department had held that private parties had no private cause of action against a discharger under the Oil Spill Law. Snyder v. Jessie, 164 A.D.2d 405, 565 N.Y.S.2d 924 (4th Dep't 1990), mot. den'd 77 N.Y.2d 940, 569 N.Y.S.2d 613 (1991). In reaction to Snyder, the Legislature amended Navigation Law §181 in 1991 to add a new subsection 5, which now explicitly provides:

Any claim by any injured person for the costs of cleanup and removal and direct and indirect damages based on the strict liability imposed by this section may be brought directly against the person who discharged the petroleum.

This provision has also been held to apply retroactively to spills that occurred before its enactment. Snyder v. Newcomb, 194 A.D.2d 53, 603 N.Y.S.2d 1010 (4th Dep't 1993); Wheeler v. National School Bus Service, 193 A.D.2d 998, 598 N.Y.S.2d 109 (3d Dep't 1993). Thus, landowners whose property is contaminated, and innocent persons who are exposed, clearly have a right to sue a discharger under the Oil Spill Law. Id. Cf. Scheg v. Agway, Inc., 229 A.D.2d 963, 645 N.Y.S.2d 687 (4^th Dep't 1996) (damages may be allowable for continuing nuisance based upon mere proximity of uncontaminated property to landfill). This remedy does not preempt other available common law and equitable remedies. Navigation Law §193.

B. Right of Discharger to Sue Another Discharger. There has been much confusion over whether a "discharger" has recourse under the Oil Spill Law against another discharger. See Koegel, Dischargers v. Dischargers Under the Navigation Law, 214 N.Y.L.J. 1 (July 25, 1995). In Busy Bee Food Stores v. WCC Tank Lining Technology, Inc., 202 A.D.2d 898, 609 N.Y.S.2d 118 (3d Dep't 1994), mot. den'd 83 N.Y.2d 953, 615 N.Y.S.2d 877 (1994), the Third Department held that a discharger "has no remedy under the statute against another discharger." Contra Mendler v. Federal Ins. Co., 159 Misc.2d 1099, 607 N.Y.S.2d 1000 (Sup. Ct. N.Y. Co. 1993).

In White v. Long, 85 N.Y.2d 564, 626 N.Y.S.2d 989 (1995), the Court of Appeals resolved this issue, and decided that "faultless" owners can sue other dischargers under section 181(5):

Although even faultless owners of contaminated lands have been deemed "dischargers" for purposes of their own section 181(1) liability, where they have not caused or contributed to (and thus are not "responsible for") the discharge, they should not be precluded from suing those who have actually caused or contributed to such damage.

The Court of Appeals rejected the Third Department's holding in Busy Bee, and further distinguished New York v. King Service, 167 A.D.2d 777, 563 N.Y.S.2d 331 (3d Dep't 1993), because the latter case properly rejected a discharger's claim against the state's Oil Spill Fund, rather than against another discharger under the relatively new private right of action under §181(5). Thus, in State v. Tartan Oil Corp., 219 A.D.2d 111, 638 N.Y.S.2d 989 (3d Dep't 1996), the present owner/operator of a service station could sue prior owners for liability as dischargers. In White, defendant Long could only be held liable if he was a "guilty" discharger, which would preclude his claim under §181(5), pursuant to Navigation Law §172(3); see also Hjerpe v. Globerman, 280 A.D.2d 646, 721 N.Y.S.2d 367 (2d Dep't 2001); Calabro v. Sun Oil Co., 276 A.D.2d 858, 714 N.Y.S.2d 781 (3^rd Dep't 2000).

Accordingly, under White, apparently there are two classes of dischargers who can be held liable to the state for a cleanup under §181(1) - "guilty" dischargers and "innocent" ("faultless") landowners. See also White v. Long, 229 A.D.2d 178, 655 N.Y.S.2d 176 (3d Dep't 1997). While an innocent landowner can sue "guilty" dischargers, it is unlikely that a claim could be made against a prior "innocent" owner. In State v. Green, 96 N.Y.2d 403, 729 N.Y.S.2d 420 (2001), the Court of Appeals reaffirmed this interpretation, noting that where a landowner who had the ability to control a tenant's activities was liable as a discharger, it was "not, however, without redress," and might "seek contribution from the actual discharger" under Navigation Law §181(5).

C. Indemnification or Contribution. Navigation Law §176(8) provides that "every person providing cleanup, removal of discharge of petroleum or relocation of persons" pursuant to Navigation Law §176 (which authorizes cleanup activities by DEC and dischargers) "shall be entitled to contribution from any other responsible party." Whether based directly upon this provision, or common law principles, a discharger who conducts a cleanup or other response activities may have a cause of action for some or all of his response costs under the Oil Spill Law under an indemnification or contribution theory. Volunteers of America of Western New York v. Heinrich, 90 F.Supp.2d 252 (W.D.N.Y. 2000); 145 Kisco Ave. Corp. v. Dufner Enterprises, Inc.,198 A.D.2d 482, 604 N.Y.S.2d 963 (2d Dep't 1993); State v. King Service Inc., 167 A.D.2d 777, 563 N.Y.S.2d 331 (3d Dep't 1991); AL Tech Specialty Steel Corp. v. Allegheny International Credit Corp., 104 F.3d 601 (3d Cir. 1997); Barclays Bank of New York, N.A. v. Tank Specialists, Inc., 236 A.D.2d 570, 654 N.Y.S.2d 673 (2d Dep't 1997); Oliver Chevrolet, Inc. v. Mobil Oil Corp., 249 A.D.2d 793, 671 N.Y.S.2d 850 (3^rd Dep't 1998). However, a contractual allocation between the parties may be determinative of such a claim. 101 Fleet Place Associates v. New York Telephone Co., 197 A.D.2d 27, 609 N.Y.S.2d 896 (1^st Dep't 1994). Further, to the extent full "indemnification," rather than partial contribution, is sought, the plaintiff may be disqualified as a discharger who contributed to the spill. Hjerpe v. Globerman, 280 A.D.2d 367, 721 N.Y.S.2d 367 (2d Dep't 2001).

VII. Insurer of a Discharger

A. Direct Right of Action. Under Navigation Law §190, not only the state, State of N.Y. Central Mutual Fire Ins. Co., 147 A.D.2d 77, 542 N.Y.S.2d 402 (3d Dep't 1989), but also an injured party may bring suit directly against a discharger's insurer under the Oil Spill Law. Snyder v. Newcomb Oil Co., Inc., 194 A.D.2d 53, 603 N.Y.S.2d 1010 (4th Dep't 1993). Late notice is not necessarily a defense to this claim. State v. Taugco, Inc., 213 A.D.2d 831, 623 N.Y.S.2d 383 (3d Dep't 1995). However, dischargers may not be able to sue another discharger's insurance company to obtain compensation for an injured party. New York v. King Service, 167 A.D.2d 777, 563 N.Y.S.2d 331 (3d Dep't 1993).

B. Pollution Exclusion. A claim under Navigation Law §190 may be subject to the pollution exclusion and other terms of the insurer's policy. State v. Capital Mut. Ins. Co., 213 A.D.2d 888, 623 N.Y.S.2d 660, mot. den'd 86 N.Y.2d 702, 631 N.Y.S.2d 606 (1995). The Court of Appeals has decided that there is a "temporal element" to the "sudden and accidental" exception to the pollution exclusion contained in policies issued before about 1986 that did not cover a pinhole leak in an underground oil tank where there was no showing of "an abrupt, environmentally significant discharge of pollutants could be inferred," and "the allegations regarding the temporal aspects of the petroleum leakages actually describe them as having occurred continuously over a period of many years." Northville Industries Corp. v. National Fire Insurance Co. of Pittsburgh, Pa., 89 N.Y.2d 621, 635, 657 N.Y.S.2d 564, 569 (1997); see also Ziankoski v. Boonville Oil Co., Inc., 241 A.D.2d 951, 661 N.Y.S.2d 322 (4^th Dep't 1997). However, in other situations, the "pollution exclusion" does not bar claims arising out of contamination. See, e.g., Whitesell v. Richardson-Walchli Corp., Inc., Index No. 23168 (Sup. Ct. Allegany 1997, Himelein, J.), aff'd 237 A.D.2d 953, 654 N.Y.S.2d 541 (4^th Dep't 1997), mot. dis'd 92 N.Y.2d 876, 677 N.Y.S.2d 782 (1998); Petr-All Petroleum Corp. v. Fireman's Ins. Co. of Newark, N.J., 188 A.D.2d 139, 593 N.Y.S.2d 693 (4^th Dep't 1993); Family Service of Rochester, Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 149 Misc.2d 48, 562 N.Y.S.2d 358 (Sup. Ct. Monroe Co. 1990). Note that some parties liable as a discharger, such as a fuel delivery service, may not be not included within some versions of the "absolute pollution exclusion." Costs incurred under the Oil Spill Law have been held to be "property damages" covered under a general liability policy. Don Clark, Inc. v. U.S. Fidelity and Guaranty Co., 145 Misc.2d 218, 545 N.Y.S.2d 968 (Sup. Ct. Onondaga Co. 1989).

VIII. Defenses

A. Statutory Defenses. The Oil Spill Law provides limited defenses. Defenses for an "owner or operator of a major facility or vessel responsible for a discharge" are limited to an "act or omission solely caused by war, sabotage, or government negligence." Navigation Law §181(4). However, it is not clear if facilities that are not large enough to be a "major facility" have any broader defenses. Further, if a discharge is permitted, it is not covered by the Oil Spill Law. Navigation Law §173. Limited defenses are provided for "responders," Navigation Law §178-a; see Hilltop Nyack Corp. v. TRMI Holdings, 275 A.D.2d 440, 712 N.Y.S.2d 888 (2d Dep't 2000), good Samaritans, §176(7)(b), and volunteer firemen, §181(6), provided there is no "willful or gross negligence," as well as non-negligent cleanup contractors. §176(7)(a).

B. Statute of Limitations.

1. Property Damage. In general, under CPLR §214, actions for property damage (or personal injury) must be brought within three years of the date of accrual of the claim. New York v. King Service, 167 A.D.2d 777, 563 N.Y.S.2d 331 (3d Dep't 1993). However, under CPLR §214-c, which was enacted in 1986, the three-year time limit (as well as the limitations periods for claims against the state and municipalities), for claims for personal or property injuries arising out of "latent effects of exposure to any substance" runs "from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier." In addition, CPLR §214-c(4) provides that a plaintiff would have one year after the time of discovery of the cause of the injury to bring suit if he or she could show that "technical, scientific or medical knowledge and information sufficient to ascertain the cause of his or her injury had not been discovered, identified or determined" prior to the expiration of the three-year period after discovery of the injures, but was discovered within five years of discovery of the injury. The issue of when a plaintiff "should have known" is generally a question of fact, and the statute is construed liberally in a plaintiff's favor. Cochrane v. Owens Corning, 219 A.D.2d 557, 631 N.Y.S.2d 358, 367 (1st Dep't 1995). For instance, in Bimbo v. Chromalloy American Corp., 226 A.D.2d 812, 640 N.Y.S.2d 623 (3d Dep't 1996), the Third Department held that an issue of fact was presented as to whether well contamination put a landowner on notice to soil and shallow groundwater contamination. However, in Kozemko v. Griffith Oil, 256 A.D.2d 1199, 682 N.Y.S.2d 503 (4^th Dep't 1998), tank tests prior to closing should have put a buyer on notice.

2. Continuing Wrongs. Under the doctrine of "continuing torts," the statute of limitations for a continuing trespass (e.g. seeping gasoline) recommences each day the tort continues. Nonetheless, in Jensen v. General Electric Co., 82 N.Y.2d 77, 603 N.Y.S.2d 420 (1993), the Court of Appeals held that CPLR §214-c extinguished the doctrine of "continuing trespass" for purposes of claims for damages, although a claim for an injunction may continuously reaccrue (with the limitations period continuously restarting) if contamination continues to seep.

3. CERCLA §309. CERCLA §309, 42 U.S.C. §9658, provides an "exception to state statutes," pursuant to which the "federally required commencement date" supersedes any date for commencement of the state statute of limitations in a case involving "personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility." See Kowalski v. Goodyear Tire & Rubber Co., 841 F.Supp. 104 (W.D.N.Y. 1994); Pfohl Brothers Landfill Litigation, 26 F.Supp.2d 512 (W.D.N.Y. 1998). The "federally required commencement date" is defined as "the date plaintiff knew (or reasonably should have known) that the personal injury or property damages... were caused or contributed to by the hazardous substance or pollutant or contaminant concerned." CERCLA §309(b)(4)(A), 42 U.S.C. §9658(b)(4)(A). Under some fact patterns (particularly where the cause of the injury has not been determined), this statute could give a plaintiff a longer time period to sue than CPLR §214-c. While this statute has typically been applied to cases involving CERCLA hazardous substances, from which petroleum is excluded, CERCLA §101(14,33), 42 U.S.C. §9601(14,33), one court has held that since petroleum is not specifically excluded from the definitions of "pollutants" and "contaminants" that are also covered by CERCLA §309, the statute applies to extend the state limitations periods for oil spills. Buggsi, Inc. v. Chevron, Inc., 857 F.Supp. 1427 (D. Ore. 1994).

4. Indemnification or Contribution. Claims for response costs in the nature of indemnification or contribution (as opposed to property damages to the claimant) are subject to the six-year statute of limitations under CPLR §213, AL Tech Specialty Steel Corp. v. Allegheny International Credit Corp., 104 F.3d 601 (3d Cir. 1997); State of New York v. Ackley, ___ A.D.2d ___, 734 N.Y.S.2d 722 (3d Dep't 2001); 750 Country Road Realty Corp. v. Exxon Corp., 229 A.D.2d 1034, 645 N.Y.S.2d 186 (4^th Dep't 1996); 145 Kisco Ave. Corp. v. Dufner Enterprises, Inc., 198 A.D.2d 482, 604 N.Y.S.2d 963 (2d Dep't 1993); Barclays Bank of New York, N.A. v. Tank Specialists, Inc., 236 A.D.2d 570, 654 N.Y.S.2d 673 (2d Dep't 1997), as is a claim by the state. Town of Guilderland v. Texaco Refining and Marketing, Inc., 159 A.D.2d 829, 552 N.Y.S.2d 704 (3d Dep't 1990). In AL Tech Specialty Steel Corp. v. Allegheny International Credit Corp., 104 F.3d 601 (3d Cir. 1997), the Third Circuit held that the statute has not yet even begun to run for claims for future remediation costs. In State of New York v. Speonk Fuel, Inc., 273 A.D.2d 681, 710 N.Y.S.2d 652 (3d Dep't 2000), the Third Department surprisingly held that if an action was commenced within six years of completion of the cleanup, it was timely as to all of the plaintiff's expenditures, even if some were more than six years old. In State of New York v. Ackley, ___ A.D.2d ___, 734 N.Y.S.2d 722 (3d Dep't 2001), that court reversed itself, and held that the six-year statute ran from each actual disbursement of funds sought to be recovered. Thus, claims for disbursements made within six years of commencement of an indemnification or contribution action will be timely, and earlier expenditures for the same cleanup will not be.

C. Real Estate Contract. Where a landowner is suing the prior owner, the doctrine of merger is generally a bar to claims arising out of the purchase and sale contract, but not a defense to claims under an environmental statute like the Oil Spill Law. White v. Long, 204 A.D.2d 892, 612 N.Y.S.2d 482 (3d Dep't 1994), rev. on other grounds, 85 N.Y.2d 564, 626 N.Y.S.2d 989 (1995). Likewise, an "as is" clause is probably only a bar to warranty claims, and is not a defense to a statutory claim for environmental contamination, "leaving the burden of environmental hazards with the seller." 51 U. Pitts. L. Rev. 995, 1019, An 'As Is' Provision in a Commercial Property Contract: Should It Be Left As Is When Assessing Liability For Environmental Torts? (1990); International Paper Co. v. GAF Corp., 1995 WL 760641 (N.D.N.Y. 1995). Thus, the "as is" cause does not bar a claim under the Oil Spill Law. Umbra U.S.A., Inc. v. Niagara Frontier Transportation Authority, 262 A.D.2d 980, 981, 693 N.Y.S.2d 371, 372 (4^th Dep't 1999); Rugaber v. Vella, Index No. 88869 (Sup. Ct. Ontario Co. 2001, Henry, J.). However, a former owner is generally not liable for pollution that happened after the sale. Kozemko v. Griffith Oil, 256 A.D.2d 1199, 682 N.Y.S.2d 503 (4^th Dep't 1998).

IX. Remedies. Generally, a discharger is liable for "all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained." Navigation Law §181(1); see also Navigation Law §181(5). Damages may also include natural resource damages, "[l]oss of income or impairment of earning capacity due to damage to real or personal property," loss of tax revenues to local governments, and interest on loans obtained for the purpose of "ameliorating the adverse effects" of a discharge. Navigation Law §181(2).

A. Cleanup Costs. A discharger is liable for "all cleanup and removal costs." Navigation Law §181(1); see also Navigation Law §181(5); Gettner v. Getty Oil Co. 266 A.D.2d 342, 701 N.Y.S.2d 64 (2d Dep't 1999), lv. den'd 95 N.Y.2d 860, 714 N.Y.S.2d 704 (2000). "Cleanup and removal costs" are defined as "all costs associated with the cleanup and removal of a discharge including relocation costs pursuant to section one hundred seventy-seven-a of this article incurred by the state or its political subdivisions or their agents or any person with approval of the department." Navigation Law §172(5). In Bologna v. Kerr-McGee Corp., 95 F.Supp.2d 197 (S.D.N.Y. 2000), the court held that informal approval by DEC (a meeting followed by a confirming letter) may be sufficient.

B. Property Damages.

1. Permanent Property Damages. Navigation Law §181(2)(a) indicates that property damages recoverable include "reduction in value of such property caused by such discharge by comparison with its value prior thereto." Thus, plaintiffs can recover "damages for diminution in the fair market value of their real property allegedly caused by contamination from hazardous substances." Henning v. Rando Machine Corp., 207 A.D.2d 106, 620 N.Y.S.2d 867 (4th Dep't 1994). "[T]he proper measure of damages for permanent injury to real property is the lesser of the decline in market value and the cost of restoration." Jenkins v. Etlinger, 55 N.Y.2d 35, 39, 447 N.Y.S.2d 696, 698 (1982); Scribner v. Summers, 138 F.3d 471 (1998). In Rizzuto v Getty Petroleum Corp., ___ A.D.2d ___, 736 N.Y.S.2d 233 (2d Dep't 2001), a jury verdict of $509,000 in diminution of property value was upheld.

2. Stigma Loss. While cleanup costs may compensate a plaintiff for loss in property value, cases involving environmental contamination have recognized that permanent property damages may also include loss due to stigma that remains even after a property is cleaned up. Nashua Corp. v. Norton Company, 1997 U.S. Dist. LEXIS 5173 (N.D.N.Y. 1997); Scribner v. Summers, 138 F.3d 471 (2d Cir. 1998); Mehlenbacher v. Akzo Nobel Salt, Inc., 71 F.Supp. 179 (W.D.N.Y. 1999), vacated 216 F.3d 291 (2d Cir. 2000) (recognizing "uncertainty in New York law as to the availability of stigma damages"); see also Commerce Holding Corp. v. Board of Assessors of the Town of Babylon, 88 N.Y.2d 724, 649 N.Y.S.2d 932 (1996). While in Putnam v. State of New York, 223 A.D.2d 872, 636 N.Y.S.2d 473 (3rd Dep't 1996), the court contemplated awarding stigma damages under the Oil Spill Law, it rejected an appraiser's opinion that an oil spill stigmatized the property to render it unmarketable, since the appraiser "did not take into account that claimant might be able to use or rent the commercial portion of such property."

3. Temporary Property Damages. In Putnam v. State of New York, 223 A.D.2d 872, 636 N.Y.S.2d 473 (3rd Dep't 1996), the court allowed recovery for temporary injury due to "decrease in the rental value during pendency of the injury" until cleanup was complete, treating the spill as a temporary easement. Likewise, in Gettner v. Getty Oil Co. 266 A.D.2d 342, 701 N.Y.S.2d 64 (2d Dep't 1999), lv. den'd 95 N.Y.2d 860, 714 N.Y.S.2d 704 (2000), the plaintiff was allowed to recover lost rent, but only for the period in which the cleanup should have been completed.

C. Personal Injuries. Some courts have held that personal injuries are not available under the Oil Spill Law, and that an injured party's damages are limited to "economic loss." Wever Petroleum Inc. v. Gord's Ltd., 225 A.D.2d 27, 649 N.Y.S.2d 726 (3d Dep't 1996); Strand v. Neglia, 232 A.D.2d 907, 649 N.Y.S.2d 729 (3d Dep't 1996); cf. Snyder v. Jessie, 145 Misc.2d 293, 546 N.Y.S.2d 777 (Sup. Ct. 1989) rev. in part on other grounds, 164 A.D.2d 405, 565 N.Y.S.2d 924 (4th Dep't 1990), mot. den'd 77 N.Y.2d 940, 569 N.Y.S.2d 613 (1991) (allowing claim that sought personal injuries).

D. Attorneys' Fees. Counsel fees are recoverable as an "indirect damage" under the Oil Spill Law. Strand v. Neglia, 232 A.D.2d 907, 649 N.Y.S.2d 729 (3d Dep't 1996); Gettner v. Getty Oil Co. 266 A.D.2d 342, 701 N.Y.S.2d 64 (2d Dep't 1999), lv. den'd 95 N.Y.2d 860, 714 N.Y.S.2d 704 (2000). Nonetheless, fees may be limited to those associated with cleanup activities. See Gettner v. Getty Oil Co. 266 A.D.2d 342, 701 N.Y.S.2d 64 (2d Dep't 1999), lv. den'd 95 N.Y.2d 860, 714 N.Y.S.2d 704 (2000).

E. Other Types of Damages. Cases arising under other legal theories have allowed other types of damages arising out of environmental contamination. These categories of damages will probably be found by the courts to fall within the category of "all direct and indirect damages, no matter by whom sustained," recoverable under the Oil Spill Law. Navigation Law §181(1); see also Navigation Law §181(5).

1. Consequential Damages. In Syracuse Cablesystems, Inc. v. Niagara Mohawk Power Co., 173 A.D.2d 138, 578 N.Y.S.2d 770 (4th Dep't 1991), the plaintiffs were forced to move their businesses out of a building for a month due to PCB contamination, and were allowed to make claims for damages due to interruption of their businesses, including lost profits, and additional business expenses such as "rental expense, lost subscriber revenue, lost installation revenue, employee overtime, lost sales commission, employee wages and additional advertising expense."

2. Avoidable Consequences. Under the doctrine of avoidable consequence, a plaintiff may be able to recover for the costs of such things as bottled water, testing water and installing filters in order to avoid damages from a contaminated water supply. Leicht v. Town of Newburgh Water District, 213 A.D.2d 604, 624 N.Y.S.2d 506 (2d Dep't 1995).

3. Loss of Quality of Life. Since compensation for "loss of quality of life" should be considered an element of property damage, it is probably recoverable under the Oil Spill Law, even if personal injuries are not. See, e.g. Scribner v. Summers, CIV No. 6094L (W.D.N.Y. 1996), mod.138 F.3d 471 (2d Cir. 1998).

E. Injunction. In environmental cases, a plaintiff may also be able to obtain the equitable remedy of injunction, if he or she can show "irreparable harm." Poughkeepsie Gas Co. v. Citizens' Gas Company, 89 N.Y. 493, 497-8 (1882). Since an injunction is an equitable remedy, the court must balance the equities of the situation, and take into consideration whether the plaintiff has an adequate remedy at law by obtaining damages. Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312 (1970).

ALAN J. KNAUF is a partner in the law firm of Knauf Shaw LLP, located at 975 Crossroads Building, 2 State Street, Rochester, New York 14614. He concentrates his practice in the areas of environmental (including brownfield development, hazardous and solid waste, Superfund and oil spills, and air and water pollution issues), municipal and land use law, and civil litigation. He represents corporations, landowners, governments, and citizens. He is attorney for the Town of Huron, and has represented numerous municipalities in land use matters. Knauf is Co-Chair of the Internet Committee of the Environmental Law Section of the New York State Bar Association, is a former Co-Chair of its Toxic Torts Committee, and serves on the Executive Committee of that Section. He was founding Chairperson of the Environmental Law Committee of the Monroe County Bar Association. Knauf served as Chairman of the Center for Environmental Information, Inc. (CEI), and chairman of the CEI Annual Survey Course in Environmental Law. Knauf has served as an Assistant Adjunct Professor of Environmental Law at the University of Rochester, is an Adjunct Professor of Emergency Preparedness Laws and Regulations at the Rochester Institute of Technology, and is Vice-President of American Recycling & Manufacturing Co., Inc. Knauf maintains the New York Virtual Environmental Law Center on the Internet at www.nyenvlaw.com. Knauf received a B.S.C.E. in Environmental Engineering from M.I.T. in 1977, and a J.D. from the University of Michigan in 1980. He is admitted to the bars of New York, Florida, and various federal courts.