The environmental due diligence process is a tool to identify and assess the risk of environmental liabilities. In addition, " innocent purchaser" and other defenses may not be available unless an owner exercised due diligence prior to acquisition. The process can also be a tool to identify whether additional opportunities are available for funding brownfield transactions through potential cost recovery actions. This outline will discuss liabilities, defenses and remedies related to contaminated properties in New York, and the impact of real property transfers on environmental liabilities.

I. Assignment of Rights to Buyer

CPLR §1018 provides that "[u]pon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action." Similarly, FRCP Rule 25(c) provides that '[i]n the case of any transfer of interest, the action may continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party."

As provided by Real Property Law §223, "an owner's rights and remedies run with the land and may be assumed by a new owner," 815 Park Owners, Inc. v. West LB Admin., Inc., 119 Misc.2d 671, 673, 463 N.Y.S.2d 1015, 1017 (Sup. Ct. N.Y. Co. 1983), so a new owner might be able to pursue claims of prior owners. However, it would be prudent to specifically provide for an assignment of claims at closing, rather than rely upon the deed.

II. Effect of the Closing

A. Merger

Where a landowner is suing the prior owner for selling contaminated property, the doctrine of merger is generally a bar to claims arising out of the purchase and sale contract. 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). Thus, it is in the buyer's interest to be sure that his or her purchase contract includes provisions such as representations and indemnifications with regard to environmental conditions that survive closing. See, e.g. Avalon Realty, Inc. v. Baumrind, 203 A.D.2d 185, 610 N.Y.S.2d 269 (1st Dep't 1994), app. dis'd 84 N.Y.2d 864, 618 N.Y.S.2d 8 (1994) (buyer justified in canceling contract based upon false representation regarding lack of tidal wetlands). 

While an indemnity provision may be enforceable to require a buyer or seller to reimburse the other for cleanup costs, the court in State v. Tartan Oil Corp., 219 A.D.2d 111, 638 N.Y.S.2d 989 (3d Dep't 1996) strictly construed indemnity language in a purchase contract, and allowed the present owner to sue past owners for oil discharges. See also Gettner v. Getty Oil Co., 226 A.D.2d 502, 641 N.Y.S.2d 73 (2d Dep't 1996) (release strictly construed so as to not bar environmental cleanup costs).

However, the merger doctrine neither bars a claim of fraud, Lawlor v. Engley, 166 A.D.2d 799, 563 N.Y.S.2d 160 (3d Dep't 1990), nor mutual mistake, Larsen v. Potter, 174 A.D.2d 801, 571 N.Y.S.2d 121 (3d Dep't 1991); Copland v. Nathaniel, 164 Misc.2d 507, 624 N.Y.S. 514 (Sup. Ct. Westchester Co. 1995). Nor is it a bar to a claim based upon an indemnification, representation or other provision intended to survive closing or outside the contract. See, e.g., Irmer v. Autohaus, Civ. No. 92-CV-6553L (W.D.N.Y. 6/11/93), Daily Record July 1-2, 1993 (indemnification agreement in separation agreement). Furthermore, it does not bar a claim based upon an environmental statute, such as the Oil Spill Law. White v. Long, 204 A.D.2d 892, 612 N.Y.S.2d 482 (3d Dep't 1994), rev'd on other grounds 85 N.Y.2d 564, 626 N.Y.S.2d 989 (1995).

B. "As Is" Clause

An "as is" clause is probably only a bar to warranty claims, and is not a complete 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); Channel Master Satellite Systems, Inc., JFD Electronics Corp., 702 F. Supp. 1229 (E.D.N.C. 1988); Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994 (D.N.J. 1988).

Thus, the "as is" cause does not bar a claim under the New York Oil Spill Law. Umbra U.S.A., Inc. v. Niagara Frontier Transportation Authority, ___ A.D.2d ___, 693 N.Y.S.2d 371 (4^th Dep't 1999). However, a former owner is generally not liable for pollution that happened after they sold. Thus, where documentary evidence established that tanks were not leaking prior to transfer, a claim under the Oil Spill was dismissed. Kozemko v. Griffith Oil, 256 A.D.2d 1199, 682 N.Y.S.2d 503 (4^th Dep't 1998).

III. Statutory Claims

A. RCRA

Under the federal Resource Conversation and Recovery Act ("RCRA"), 42 U.S.C. §§6901, et seq., a citizen can bring a suit against past or present generators, transporters or TSDF owners or operators to abate "an imminent and substantial endangerment to health or the environment" caused by using solid or hazardous waste. §7002(a)(1)(B), 42 U.S.C. §6972(a)(1)(B). For example, in Volunteers of America of Western New York v. Heinrich, 90 F.Supp.2d 252 (W.D.N.Y. 2000), the court allowed a RCRA citizen's suite to proceed where the plaintiff "sufficiently alleged that toxic contamination is present on the site and is creating the threat of serious harm to the ecology though migration into the deep bedrock and possibly groundwater."

Action under this provision requires a 90-day notice, and is barred if certain cleanup or enforcement actions have been undertaken by EPA or the state. §7002(b)(2), 42 U.S.C. §6972(b)(2). See, e.g., Dague v. Burlington, 935 F.2d 1343 (2d Cir. 1991); Volunteers of America of Western New York v. Heinrich, 90 F.Supp.2d 252 (W.D.N.Y. 2000). The Supreme Court has ruled that the RCRA citizen's suit provision cannot be used to recover past costs of a spill that was cleaned up. Meghrig v. KFC Western, Inc., 516 U.S. 479, 116 S.Ct. 1251 (1996); see also Furrer v. Brown, 62 F.3d 1092 (8th Cir. 1995). Nonetheless, Meghrig clearly contemplates RCRA citizen's suits to address continued contamination, indicated that there was no statute of limitations for suits for such suits, and left the door open for possibly recovering costs of cleanups that are completed after suit is filed..

Petroleum-contaminated soil is "solid waste" to which this provision applies if it causes a "substantial endangerment." Zands v. Nelson, supra; Craig Lyle Partnership v. Land O'Lakes, Inc., No. 4-93-88 (D. Minn. Feb. 22, 1995). One case has even allowed a property owner to sue past owners and tenants for contamination under the RCRA citizen's suit provision, Lincoln Properties v. Higgins, 24 E.L.R. 21068 (E.D. Cal. 1993), and obtain an order directing investigation of the site, 24 E.L.R. 20665 (E.D. Cal. 1993).

B. CERCLA

CERCLA provides a framework for the cleanup of the "release" or threatened release" of hazardous substances into the environment. EPA can take action to clean up hazardous substances using funds from the multi-billion dollar "Superfund" (raised by excise taxes on certain chemical feedstocks and crude oil), and then seek reimbursement from "responsible parties." Alternatively, it can require responsible parties to clean up a site.

"Hazardous substances" are defined to include hazardous wastes under RCRA, hazardous substances and toxic pollutants under Clean Water Act §§311(b)(2)(A) and 307(a), 33 U.S.C. §§1321(b)(2)(A) and 1317(a), hazardous air pollutants under Clean Air Act §112, 42 U.S.C. §7412(a), any "imminently hazardous chemical substance or mixture" designated under Toxic Substances Control Act §7, 15 U.S.C. §2606, and substances specifically designated under CERCLA §102, 42 U.S.C. §9602 (relating to release reporting). CERCLA §101(14), 42 U.S.C. §9601(14). The courts have refused to make a de minimis exception, so that even minute quantities of hazardous substances can be subjected to CERCLA action. CERCLA also applies to "pollutants or contaminants," which are defined at §101(33), 42 U.S.C. §9601(33), to parallel the definition of hazardous substances. 

Petroleum is specifically excluded from these definitions of "hazardous substances" and "pollutants or contaminants." However, the petroleum exclusion has been held by the courts not to exclude petroleum contaminated with other substances which are deemed hazardous. 

"Release" is defined to include, among other things, any spill, leak, abandonment, disposal, or other discharge of hazardous substances. CERCLA §101(22), 42 U.S.C. §9601(22). Specific exceptions from this definition include certain exposures "solely within a workplace," certain releases allowed under the Atomic Energy Act of 1954, motor vehicle exhaust, and "the normal application of fertilizer."

1. Cleanups

CERCLA §104, 42 U.S.C. §9604 authorizes the federal government, whenever there is a "release" or a "substantial threat of such a release into the environment" to:

act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substances, pollutants, or contaminants at any time (including its removal from any contaminated natural resource), or take any other response measure consistent with the national contingency plan . . .

Under the NCP and CERCLA §104, 42 U.S.C. §9604, EPA can either take immediate "removal action" to eliminate immediate risks to health and the environment, or conduct a longer term "remedial action" to fully cleanup a site. Before remedial action is undertaken, a remedial investigation/feasibility study ("RI/FS") must be completed. This work is done with moneys supplied by the federal Superfund. CERCLA §111, 42 U.S.C. §9611. However, EPA can later recover its response costs from responsible parties in federal district court. CERCLA §107, 42 U.S.C. §9607. 
CERCLA §121, 42 U.S.C. §9621, added by SARA in 1986, requires that cleanups be "cost effective," and should prefer "remedial action in which treatment which permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants, and contaminants is a principal element," while least favored is "offsite transport and disposal." §121(b), 42 U.S.C. §9621(b). Further, the degree of cleanup" should attain "relevant and appropriate" standards under other federal and state environmental laws. §121(d), 42 U.S.C. §9621(d). Generally, a specific remedial action is selected by EPA upon filing a formal "record of decision."

CERCLA §104(d)(1), 42 U.S.C. §9604(d)(1) allows states to enter into cooperative agreements to carry out a Superfund cleanup on behalf of EPA. A responsible party may also be allowed to carry out an RI/FS and cleanup. §104(a)(1), 42 U.S.C. §9604(a)(1).

CERCLA requires EPA to develop a "National Priorities List" ("NPL") of sites slated for cleanup, using a "hazard ranking system." §105(c), 42 U.S.C. §9605(c). However, listing on the NPL is not a prerequisite to action or liability under CERCLA.

CERCLA §106(a), 42 U.S.C. §9606(a), permits the United States to make an administrative order directing a responsible party to take "abatement action," or to seek an injunction in federal district court to require such action. Further, CERCLA §104(e), 42 U.S.C. §9604(e) grants EPA access to sites and necessary information, as well as the authority to enter administrative orders directing such access. Any person who fails to comply with such an administrative order is subject to a fine of $25,000 per day. CERCLA §§104(c)(5), 106(b), 42 U.S.C. §9604(c)(5), 9606(b). Further, if EPA then completes the cleanup and sues the responsible party, it can recover triple its costs as punitive damages, unless there was "sufficient cause." §107(c)(3), 42 U.S.C. §9607(c)(3).
CERCLA also contains numerous other provisions, including public participation requirements, §117, 42 U.S.C. §9617, application of CERCLA to federal facilities, §120, 42 U.S.C. §9620, civil penalties and awards, §109, 42 U.S.C. §9609, and requirements for the Agency for Toxic Substances and Disease Registry ("ATSDR") to investigate hazardous substances, prepare toxicological profiles, and conduct health assessment and health effects studies. §104(i), 42 U.S.C. §9604(i).

2. Liability

Given this comprehensive statutory scheme, the key question often is who is responsible for CERCLA cleanup costs. CERCLA §107(a), 42 U.S.C. §9607(a), specifically provides that the following persons are liable:

(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which hazardous substances were disposed of,
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the occurrence of response coats, of a hazardous substance.

A cleanup is consistent with the National Contingency Plan, so that costs may be recovered, if it is carried out under supervision by a state environmental agency, even if the public notice provisions in the NCP are not strictly satisfied. Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998). Generally, attorney's fees are not response costs, except when incurred to identify other responsible parties, Key Tronic Corp. v. United States, 511 U.S. 809, 114 S.Ct. 1960 (1994), or as a part of cleanup efforts. Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998).

Natural resource damages are only recoverable by the United States or a state, and do not include "irreversible and irretrievable commitments of natural resources" identified in an environmental impact statement, if allowed pursuant to a federal permit or license. §107(f)(1), 42 U.S.C. §9607(f)(1). The determination of natural resource damages by the appropriate federal or state official designated as trustee for the public pursuant to CERCLA and Clean Water Act §311, 33 U.S.C. §§1321, is a rebuttable presumption of the damages assessed.

Persons who incur "response costs" may also file administrative claims which may be paid by the Superfund, §112(a), 42 U.S.C. §9612(a), provided they do so within 6 years of the completion of all response actions, §112(d)(1), 42 U.S.C. §9612(d)(1). However, they can only make a claim if they first present the claim to the owner or operator, and it is not satisfied within 60 days.

Liability applies retroactively, so that pre-1980 releases which were legal at the time are covered, as well as pre-1980 response costs. See, e.g., U.S. v. Hooker Chemicals & Plastics Corp., 680 F.Supp. 546 (W.D.N.Y. 1988). CERCLA can be applied retroactively, U.S. v. Olin Corp., 107 F.3d 1506 (11^th Cir. 1997). Liability is strict, so that it does not matter whether a responsible party exercised all due care in his dealing with hazardous substances. Id.

Liability is generally considered "joint and several," so that each responsible party is liable for the entire cost of a response, even if he only bears a small percentage of relative responsibility. See, e.g., U.S. v. Hooker Chemicals & Plastics Corp., 680 F. Supp. 546 (W.D.N.Y. 1988). However, the courts have been willing to entertain arguments that liability for response costs might not be joint in cases where a reasonable basis for allocation can be found. United States v. Alcan Aluminum Corp., 964 F.2d 252 (3d Cir. 1992); United States v. Alcan Aluminum Corp., 990 F.2d 711 (2d Cir. 1993); In re Bell Petroleum Services, Inc., 3 F.2d 889 (5th Cir. 1993). The statute preempts common law claims for restitution and indemnification for costs recoverable under the contribution provisions of CERCLA. Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998).

Furthermore, the courts have allowed responsible parties to sue other responsible parties for contribution based upon their relative responsibility. CERCLA §113(f)(1), 42 U.S.C.§9613(f)(1) specifically allows such a contribution action. A responsible party can only sue for contribution, and cannot bring a cost recovery action. Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998); United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96 (1st Cir. 1994); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489 (11th Cir.1996). However, if a plaintiff alleges that it qualifies for a defense from liability under CERCLA §107(b), 42 U.S.C. §9607(b), it may pursue a cost recovery action under CERCLA §107(a), 42 U.S.C. §9607.(a). Volunteers of America of Western New York v. Heinrich, 90 F.Supp.2d 252 (W.D.N.Y. 2000).

CERCLA §122, 42 U.S.C. §9622, encourages EPA to enter into settlements to allocate responsibility and release responsible parties from further liability, and provides special incentives for settlements with "de minimis" contributors.

Both the present "owner" or "operator," as well as the "owner" or "operator" at the time of disposal, are responsible parties. New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985). However, an owner or operator probably will not be held liable for mere "passive migration" of hazardous chemicals disposed of or released by prior owners, which occurred during their tenure. ABB Industrial v. Prime Technology, 120 F.3d 351 (2d Cir.1997). Although CERCLA fails to specifically address successor corporate liability, the courts have held "that Congress intended successor liability to apply in the context of CERCLA," provided it is "justified by the facts." North Shore Gas Co. v. Salomon Inc. 152 F.3d 642 (7^th Cir. 1998).

A stockholder or responsible corporate officer could be deemed to be an "owner or operator" subject to liability under §107(a)(1,2), 42 U.S.C. §9607(a)(1,2), provided he or she exercised sufficient control over a corporation's operations. New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985). Similarly, in some circumstances, parent corporations, as well as their officers and directors, may be liable for actions at their subsidiaries' facilities despite the traditional common law tradition of limited liability of corporate officers. 

However, the Supreme Court recently held that directors and officers of a parent corporation may be liable only if they "made policy decisions and supervised activities" at the subsidiary facility. United States v. Bestfoods, 524 U.S. 51, 118 S.Ct. 1876 (1998). While previous cases focused on the relationship between the parent corporation and its subsidiary (i.e. whether the parent operates the subsidiary), the proper focus for determining liability is the relationship between the parent and the facility itself (i.e. whether it directly participated in the activities at the facility). Id. Furthermore, in cases where an officer or director serves both the parent and subsidiary, it is not enough that "dual officers and directors made policy decisions and supervised activities at the facility," rather it would have to be shown that the officers and directors were acting in their capacities on behalf of the parent corporation, and not on behalf of the subsidiary, before the parent corporation could be found liable. Id.

C. State Superfund

Under the New York State Superfund Law, if DEC finds, after a hearing, that an inactive hazardous waste disposal site presents a "significant threat to the environment," it can order and implement cleanup efforts at the site, using money from the State Superfund, and later seek recovery of its costs from responsible parties. ECL §27-1313(3,4,5). Note that the State Superfund only covers hazardous wastes defined by the New York State hazardous waste regulations, and not all hazardous substances. 

Regulations set forth at 6 N.Y.C.R.R Part 375 govern this program, and provide guidance for determination of what poses a significant threat, §375-1.4, selection of remedial measures, §375-1.10, use of interim remedial resources, §375-1.11, and use of the State Superfund, Subpart 375-3.

Generally, if it believes a site may pose a "significant threat," DEC will require a Phase I assessment. If this indicates the need for further investigation, a Phase II study will be done, and then, if necessary, an RI/FS and remedial work. While this work may be accomplished by DEC, often it enters into consent order by which a responsible party promises to do the work.

DEC annually publishes a Registry of Inactive Hazardous Waste Disposal Sites. See ECL §27-1305. Currently, it is in the process of studying and cleaning up hundreds of sites. By law, sites are ranked from 1 (imminent danger) to 5 (no further action required), ECL §27-1305(4)(b). DEC has created a new classification, "2a," for those sites for which it does not yet have significant information. The New York State Department of Health is also involved in the program, and has primary authority for sites which present "a condition dangerous to life or health." Public Health Law §1389-b(2). There is a process for filing petitions to delist or reclassify a site. 6 N.Y.C.R.R. §375-1.9. 

While the statute does not define "responsible parties," 6 N.Y.C.R.R. §375-1.3(a) identifies the following persons as responsible:

(1) the current owner and the current operator of the site or any portion thereof;

(2) the owner, and the operator, of the site or any portion thereof at the time any hazardous waste disposal occurred;

(3) any person who generated any hazardous waste that was disposed at the site;

(4) any person who transported any hazardous waste to the site, provided that such site was selected by that person;

(5) any person who disposed of any hazardous waste at the site;

(6) any person, who, by contract, agreement, or otherwise arranged for the transportation of any hazardous waste to the site or the disposal of any hazardous waste at the site;

(7) any other person determined to be responsible according to applicable principles of statutory or common law liability.

D. Citizen's Suits

Many federal environmental statutes allow a citizen to bring an enforcement action for violations and recover their attorneys' fees. See, e.g., Clean Air Act §304, 42 U.S.C. §7604; RCRA §7002(a), 42 U.S.C. §6972(a); Clean Water Act §505(a), 33 U.S.C. §1365(a). While generally a citizen may only sue if the polluter is "in violation," §501(a), 33 U.S.C. §1365(a), meaning that the violation must be continuing, or at least intermittent, and not wholly past, Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S.Ct. 376 (1987), action may be brought under the Clean Air Act for past repeated violations. Patton v. General Signal, 984 F.Supp. 666 (W.D.N.Y. 1997). Such a suit can be used to put tort claims within the supplemental (pendent) jurisdiction of federal court. 28 U.S.C. §1367. See, e.g., CARE v. Southview Farm, 834 F. Supp. 1422 (W.D.N.Y. 1993), rev'd on other grounds 34 F.3d 114 (2d Cir. 1994), cert. den'd 514 U.S. 1082, 115 S.Ct. 1793 (1995).

E. Oil Spill Law

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.

1. Liability

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). 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).

"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."

"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).

2. Oil Spill Fund

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. 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.

3. 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, 1999 WL 72981 (1999).

4. 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.

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). 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"). However, in Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 619 N.Y.S.2d 433 (4th Dep't 1994) (discussed infra), the Fourth Department held that a property owner who did not own or operate the tanks that were the source of the discharge was not automatically liable for activities of his tenant. 

The courts have gone as far as ruling that 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), and an oil broker, State v. Montayne, 199 A.D.2d 674, 604 N.Y.S.2d 978 (3d Dep't 1993), may qualify as "dischargers." 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). 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, ___ A.D.2d ___, 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'd92 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., ___ A.D.2d ___, 708 N.Y.S.2d 138 (2d Dep't 2000).

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 contamination source is strictly liable under the statute. The Third Department has held that a property owner whose tenant operated leaking underground storage tanks was strictly liable under the Oil Spill Law. State v. Wisser Co., Inc., 170 A.D.2d 918, 566 N.Y.S.2d 747 (3d Dep't 1991). In 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 same court held that a person who "unwittingly" purchased land which contained petroleum underground storage tanks that had previously leaked was himself a discharger strictly liable for cleanup costs under the Oil Spill Law. According to the court:

Even accepting the contention that all discharges of petroleum occurred prior to petitioners' ownership of land and that petitioners were unaware and did nothing to contribute to the contamination, it is nonetheless our view that petitioners are dischargers of petroleum . . . This court has consistently construed Navigation Law §181(1) so as to impose liability on the owner of a system from which a discharge occurred in the absence of evidence that the owner caused or contributed to the discharge . . . 

In Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 619 N.Y.S.2d 433 (4th Dep't 1994), the Fourth Department held that an owner who did not own the tanks in question was not automatically liable for activities of his tenant. The court stated that under the Oil Spill Law, the landowner wasnot a discharger, so that "[p]laintiffs were properly granted summary judgment declaring and holding defendant liable under the Navigation Law for all cleanup and removal costs and other damages resulting from defendants's discharge of the tank." In Drouin, the Fourth Department also found that "[t]he statutory scheme makes clear that liability as a 'discharger' is based upon conduct, not status," and rejected the broad 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." Similarly, in Whitesell v. Richardson-Walchli Corp., 237 A.D..2d 953, 654 N.Y.S.2d 541 (4^th Dep't 1997), mot. dis'd92 N.Y.2d 876, 677 N.Y.S.2d 782 (1998), the Fourth Department reaffirmed that a landowner is not "'responsible solely because it is a landowner,'" and held that the owner of an oil well lease was not a discharger because "[h]e did not control operations conducted under the lease.'"

Recently, the Second and Third Departments agreed with the Fourth Department, so it is now clear that a person who owned or operated the tanks and other equipment that caused the discharges is a discharger, and not a landowner who did not own the system. State v. Green, ___ A.D.2d _, 707 N.Y.S.2d 704 (3d Dept 2000); Four Star Oil & Gas Company v. Kalish, ___ A.D.2d ___, 707 N.Y.S.2d 189 (2^nd Dep't. 2000). According to the Third Department:

Navigation Law §181(1) imposes liability upon the owner of the system from which a discharge occurred, regardless of fault. In those somewhat infrequent cases where there is no unity of ownership of the land and the system, there will be no corresponding per se landowner liability. Where, as here, the owner of the system from which the discharge occurred and the owner of the property on which the system is located are not the same, liability without regard to fault is properly imposed on the system owner.

State v. Green, ___ A.D.2d ___, 707 N.Y.S.2d 704, 705 (3d Dept 2000). Thus, in State v. Markowitz, __ A.D.2d ___, 710 N.Y.S.2d 407 (3^rd Dep't 2000), the court held that persons "who directly owned the system from which a discharge occurred" are strictly liable under the Oil Spill Law "despite a lack of proof that the owner caused or contributed in any way to the discharge." Nonetheless, while the Third Department left the door open for "some valid circumstances supporting the imposition of liability against a landowner who does not actually own the system from which the discharge occurred," State v. Green, ___ A.D.2d ___, 707 N.Y.S.2d 704, 705 (3d Dept 2000), this would be the exception, not the rule, and probably cover a situation where the landowner exercised some control over the system.

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). In State v. Markowitz, __ A.D.2d ___, 710 N.Y.S.2d 407, 412 (3^rd Dep't 2000), the Third Department adopted a similar rule:

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.

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 Fourth Department's holding in Drouin, reaffirmed in Walchli, that liability is based upon "conduct." Furthermore, under analogous case law under CERCLA, a property owner cannot be held liable for "passive migration."
5. Private Right of Action

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.

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).

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.

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).

ECL Article 37

ECL §37-0701 provides that "[n]o person shall store or release to the environment substances hazardous or acutely hazardous to public health, safety or the environment in contravention of rules and regulations promulgated pursuant hereto." This covers petroleum, and various other "hazardous substances" identified by DEC. In Berens v. Cook, __ A.D.2d ___, 694 N.Y.S.2d 684 (2d Dep't 1999), the plaintiff sought property damages arising out of an oil spill, and the Second Department recognized a private cause of action under this statute.

IV. Common Law/Equitable Causes of Action

Duty and foreseeability are necessary elements of a tort claim. While there is generally a duty to nearby owners, and pollution is generally foreseeable, N.Y. Telephone Co. v. Mobil Oil Corp., 99 A.D.2d 185, 473 N.Y.S.2d 172 (1st Dep't 1984), that may not always be the case. Nodine v. Tarpening Trucking Co., Inc. 64 A.D.2d 808, 407 N.Y.S.2d 277 (4th Dep't 1978). Whether past landowners and occupants have a duty to protect remote future owners or occupants from pollution, if the impact upon these potential plaintiffs is foreseeable, and whether caveat emptor bars their claims, is not well-settled. See, e.g., 79 N.Y.Jur.2d Negligence §71; 55 Motor Ave. Co. v. Liberty Industrial Finishing Corp, 885 F.Supp. 410 (E.D.N.Y. 1994); Hydro-Manufacturing, Inc. v. Kayser-Roth Corp., 640 A.2d 950 (R.I.1994) (R.I. 1994); Rosenblatt v. Exxon Co. U.S.A., 642 A.2d 180 (Md. 1994); T & E Industries, Inc. v. Safety Light Corp., 123 N.J. 371, 587 A.2d 1249 (1991). A buyer may have a claim against an environmental inspector hired by the seller, especially if recommendations are made with respect to corrective action. Benz v. Burrows, 191 A.D.2d 1021, 594 N.Y.S.2d 929 (4th Dep't 1993).

While generally the owner/operator of a facility that causes pollution is responsible, even a non-landowner can be held liable for creating environmental conditions causing a nuisance. State v. Fermenta Asc Corp., 160 Misc.2d 187, 608 N.Y.S.2d 980 (Sup. Ct. Suffolk Co. 1994), aff'd 238 A.D.2d 400, 656 N.Y.S.2d 342 (2^nd Dep't 1997), app. den'd 90 N.Y.2d 810, 664 N.Y.S.2d 271 (1997). Further, an individual corporate officer or employee that "controls corporate conduct and thus is an active participant in that conduct is liable for the torts of the corporation," including those involving responsibility for environmental contamination. New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985). A landowner may be liable for actions of his tenant if he has been made aware of contamination, but has failed to fully abate the situation, since he has "control over the premises." State v. Monarch Chemicals, Inc., 90 A.D.2d 907, 456 N.Y.S.2d 867, 868 (3d Dep't 1982). 

A purchaser of contaminated property may be liable for cleanup of environmental contamination, even if he did not cause the situation, if "upon learning of the nuisance and having a reasonable opportunity to abate it" the purchaser fails to do so. N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir. 1985); see also N.Y. Telephone Co. v. Mobil Oil Corp., 99 A.D.2d 185, 473 N.Y.S.2d 172 (1st Dep't 1984); Restatement (Second) of Torts §839, comment d (1979) ("liability is not based upon responsibility for the creation of the harmful condition, but upon the fact that he has exclusive control over the land and the things done upon it...."). Thus, a purchaser must be wary of buying into common law, as well as statutory, environmental liability, and neither an "innocent purchaser" defense, nor a voluntary cleanup release, may be an absolute protection from this liability. Conversely, a seller's liability may shift to the buyer if, after a reasonable time after the transfer of title, the new owner fails to take steps necessary to remediate the continuing environmental problem. N.Y. Telephone Co. v. Mobil Oil Corp., 99 A.D.2d 185, 473 N.Y.S.2d 172 (1st Dep't 1984). 

A. Trespass

Trespass is the intentional invasion of another's property. A trespasser is liable for property damages caused by his or her action. In Phillips v. Sun Oil Co., 307 N.Y. 328, 331 (1954), the Court of Appeals held:

[W]hile the trespasser, to be liable, need not intend or expect the damaging consequences of his intrusion, he must intend the act which amounts to or produces his unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he willfully does, or he does so negligently as to amount to willfulness.

However, trespass may include the unintentional (but inevitable) consequences of an intentional act. Scribner v. Summers, 84 F.3d 554 (2d Cir. 1996). Thus, a landowner who dumps wastes on his or her own land has been held liable for the inevitable migration of the contamination to the adjacent property. Scribner v. Summers, 84 F.3d 554 (2d Cir. 1996). See also Serotta v. M&M Utilities, Inc., 55 Misc.2d 286, 285 N.Y.S.2d 121 (Sup. Ct. Nassau Co. 1967) (spill caused by unauthorized oil delivery); Dunlop Tire v. FMC, 53 A.D.2d 150, 385 N.Y.S.2d 971 (4th Dep't 1976) (unintended explosion resulting in trespass on nearby property); CARE v. Southview Farm, 834 F. Supp. 1422 (W.D.N.Y. 1993), rev'd on other grounds 34 F.3d 114 (2d Cir. 1994), cert. den'd 514 U.S. 1082, 115 S.Ct. 1793 (1995) (overspreading of cow manure resulted in trespass); State v. Fermenta ASC Corp., 238 A.D.2d 400, 656 N.Y.S.2d 342 (2d Dep't 1997), mot. den'd 90 N.Y.2d 810, 664 N.Y.S.2d 271 (1997) (use of pesticide resulted in trespass).

It is quite likely that a leaking oil tank or other petroleum spill will be unintentional, and thus not actionable as a trespass. See, e.g., Phillips v. Sun Oil Co., 307 N.Y. 328, 331 (1954); 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); Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 619 N.Y.S.2d 433 (4th Dep't 1994). However, in Hilltop Nyack Corp. v. TRMI Holdings, ___ A.D.2d ___, 694 N.Y.S.2d 717 (2d Dep't 1999), a trespass claim was allowed to proceed where there was "'good reason to know or expect' that the contaminants would pass from the gasoline service station to the plaintiffs' property." Furthermore, a defendant cannot trespass on his or her own property. 55 Motor Ave. Co. v. Liberty Industrial Finishing Corp, 885 F.Supp. 410 (E.D.N.Y. 1994); Metzger v. Agway, Index No. 81362 (Sup. Ct. Ontario Co. 1994, Harvey, J.).

B. Negligence

A landowner is held to the standard of a "reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk." Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564 (1976). Thus, a landlord owes a duty to his or her tenant to maintain safe premises, and to avoid environmental hazards such as flaking lead paint. Morales v. Felice Properties Corp.,221 A.D.2d 181, 633 N.Y.S.2d 305 (1st Dep't 1995). 

A landowner cannot have a duty with regard to tanks or other conditions she does not know exist. 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); Strand v. Neglia, 232 A.D.2d 907, 649 N.Y.S.2d 729 (3d Dep't 1996), app. dis'd 89 N.Y.2d 1086, 659 N.Y.S.2d 859 (1997). "[F]or negligence liability to ensue in cases involving the pollution of underground waters, the plaintiff must demonstrate that the defendant failed to exercise due care in conducting the allegedly polluting activity or in installing the allegedly polluting device, and that he knew or should have known that such conduct could result in the contamination of the plaintiff's well." Fetter v. DeCamp, 195 A.D.2d 771, 773, 600 N.Y.S.2d 340 (3d Dep't 1993). 

Negligence can often be demonstrated in cases involving a leaking tank or other discharge of pollutants. See, e.g., N.Y. Telephone Co. v. Mobil Oil Corp., 99 A.D.2d 185, 473 N.Y.S.2d 172 (1st Dep't 1984) (negligence due to leaking tanks); Snyder v. Jessie, 145 Misc.2d 293, 546 N.Y.S.2d 777 (Sup. Ct. Monroe Co. 1989), mod. 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) (unusually frequent deliveries to tank later found to be leaking may be negligence). Further, a landowner can be liable for pollution resulting from a failure "to use reasonable care to maintain" underground tanks or other facilities "in a reasonably safe condition." Leone v. Leewood Service Station, Inc., 212 A.D.2d 669, 670, 624 N.Y.S.2d 610, 612 (2d Dep't 1995), mot. den'd 86 N.Y.2d 709, 634 N.Y.S.2d 443 (1995). An environmental consultant may be liable for negligence for failing to discover or properly address contamination. Benz v. Burrows, 191 A.D.2d 1021, 594 N.Y.S.2d 929 (4th Dep't 1993); Hilltop Nyack Corp. v. TRMI Holdings, ___ A.D.2d ___, 694 N.Y.S.2d 717 (2d Dep't 1999).

An environmental law or regulation may create a duty, so that violation of the law will constitute negligence. 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) (negligent failure to test gasoline tanks). Nonetheless, violation of a regulation is merely evidence of negligence, and does not automatically create tort liability. Juarez v. Wavecrest Mgt. Team Ltd., 88 N.Y.2d 628, 649 N.Y.S.2d 115 (1996) (violation of New York City Administrative Code requirements to abate lead paint hazards did not result in absolute liability).

C. Private Nuisance

In the seminal case, Copart Industries, Inc. v. Consolidated Edison Co. of New York, Inc., 41 N.Y.2d 564, 568, 394 N.Y.S.2d 169, 172 (1977), the Court of Appeals explained the nature of a private nuisance:

A private nuisance threatens one person or a relatively few (McFarlane v. City of Niagara Falls, 247 N.Y. 340, 344), an essential feature being an interference with the use or enjoyment of land (Blessington v. McCrory Stores Corp., 198 Misc. 291, 299, 95 N.Y.S.2d 414, 421, affd. 279 App.Div. 807, 110 N.Y.S.2d 456, affd. 305 N.Y. 140). It is actionable by the individual person or persons whose rights have been disturbed (Restatement, Torts, notes preceding § 822, p. 217). 

one is subject to liability for a private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities (Restatement, Torts 2d (Tent Draft No. 16), s 822; Prosser, Torts (4th ed.), p. 574; 2 N.Y.P.J.I. 563-654; see Spano v. Perini Corp., 25 N.Y.2d 11, 15, 302 N.Y.S.2d 527, 529, 250 N.E.2d 31, 33; Kingsland v. Erie Co. Agric. Soc., 298 N.Y. 409, 426-427, 84 N.E.2d 38, 46-47; Wright v. Masonite Corp., D.C., 237 F.Supp. 129, 138, affd. 4th Cir., 368 F.2d 661, cert. den. 386 U.S. 934, 87 S.Ct. 957, 17 L.Ed.2d 806.

Pollution may be actionable as a private nuisance. See, e.g., Scribner v. Summers, 84 F.3d 554 (2d Cir. 1996) (neighboring property contaminated by hazardous waste); Snyder v. Jessie, 145 Misc.2d 293, 546 N.Y.S.2d 777 (Sup. Ct. Monroe Co. 1989), mod. 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) (oil spill); CARE v. Southview Farm, 834 F. Supp. 1410 (W.D.N.Y. 1993) (spreading of cow manure). However, a private nuisance claim generally does not lie with regard to conditions created by a landowner or tenant on its own property where there is no off-site impact. Rose v. Grumman Aerospace Corp., 196 A.D.2d 861, 602 N.Y.S.2d 34 (2d Dep't 1993); Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 619 N.Y.S.2d 433 (4th Dep't 1994); Nashua Corp. v. Norton Company, 1997 U.S. Dist. LEXIS 5173 (N.D.N.Y. 1997).

While generally nuisance requires a substantial or non-trivial interference, exceedance of an applicable regulatory standard may be sufficient to support such a claim. See, e.g., State of New York v. Fermenta ASC Corp., 166 Misc.2d 524, 630 N.Y.S.2d 884 (Sup. Ct. Suffolk Co 1995), aff'd 238 A.D.2d 400, 656 N.Y.S.2d 342 (2d Dep't 1997); Suffolk Co. Water Authority v. Union Carbide Corp., N.Y.L.J., May 2, 1991, p. 28, col. 1 (Sup. Ct. Suffolk Co. 1991). 

The courts had been divided as to whether nearby property owners whose land is not contaminated may sue for loss of value caused by an environmental problem, perhaps based upon an anticipatory nuisance claim. See 81 N.Y. Jur. 2d Nuisances §64 (anticipatory nuisance). Some cases have allowed recovery, at least where there was a physical invasion in the past. See In Re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994). Other courts have refused to allow any damages without a physical invasion of the plaintiff's property. Adkins v. Thomas Solvent Co., 440 Mich. 293 (1992); Steimer v. Bausch & Lomb, Inc., Index No. 12308/93 (Sup. Ct. Monroe Co. 1994, Wisner, J.); Adams v. Star Enterprise, 51 F.3d 417 (4th Cir. 1995). 

In Nalley v. General Electric Company, 165 Misc.2d 803, 630 N.Y.S.2d 452 (Sup. Ct. Rensselaer Co. 1995), the court refused to allowed a claim for damages where the plume of contamination had not entered plaintiffs' property, since "it was incumbent upon the plaintiffs to produce competent and convincing proof, through qualified experts, demonstrating the immediate effects of property contamination and/or, at the very least, a reasonable probability and expectation of contamination in the future." However, the Appellate Division, Fourth Department seems to have (at least inadvertently) adopted a new rule in Scheg v. Agway, Inc., 229 A.D.2d 963, 645 N.Y.S.2d 687, 688 (4th Dep't 1996), where the plaintiffs' properties were near a landfill, but had never actually been contaminated. The court held that the "complaint, insofar as it alleges that the value of their property was diminished as a result of its proximity to the landfill, does state a cause of action." This rule was followed in Osarczuk v. Associated Universities, Inc., Index No. 2836/96 (Sup. Ct. Suffolk Co. 9/4/96) (court also rejected claim that the state's ownership of groundwater precluded claim for contamination of property), but it remains to seen how far other courts will follow Scheg.

D. Public Nuisance

In Copart Industries, Inc. v. Consolidated Edison Co. of New York, Inc., 41 N.Y.2d 564, 568, 394 N.Y.S.2d 169, 172 (1977), the Court of Appeals also explained the nature of a public nuisance:

A public, or as sometimes termed a common, nuisance is an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency (Restatement, Torts, notes preceding § 822, p. 217; see Penal Law, § 240.45). It consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all (New York Trap Rock Corp. v. Town of Clarkston, 299 N.Y. 77, 80, 85), in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons (Melker v. City of New York, 190 N.Y. 481, 488; Restatement, Torts, notes preceding § 822, p. 217).

although an individual cannot institute an action for public nuisance as such, he may maintain an action when he suffers special damage from a public nuisance (Restatement, Torts, notes preceding § 822, p. 217; Wakeman v. Wilbur, 147 N.Y. 657, 663-664).

E. Strict Liability

Under the doctrine of "strict liability," certain activities are so dangerous that the common law imposes liability regardless of whether or not a person acts reasonably. Doundoulakis v. Town of Hempstead, 42 N.Y.2d 440, 448, 398 N.Y.S.2d 401, 404 (1977). This principle has historically applied to activities such as blasting or storage of explosives. This doctrine may apply to "generation and disposal of chemical wastes." State v. Schenectady Chemical, Inc., 117 Misc.2d 960, 459 N.Y.S.2d 971 (Sup. Ct. Rensselaer Co. 1983), mod. 103 A.D.2d 33, 37, 479 N.Y.S.2d 1010, 1013 (3d Dep't 1989); State v. Monarch Chemicals, 90 A.D.2d 907, 456 N.Y.S.2d 867 (3d Dep't 1982); see also New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985). 

Thus, a person who uses all due care in the storage of a hazardous chemicals, and complies with all applicable regulations, may still be liable for damages arising from an accidental spill under the theory of strict liability. New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985); State v. Schenectady Chemical, Inc., 103 A.D.2d 33, 37, 479 N.Y.S.2d 1010, 1013 (3d Dep't 1989). However, home heating oil has been held not to give rise to common law strict liability. 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). Likewise, storage of gasoline is not an ultrahazardous activity. 750 Old Country Road Realty Corp. v. Exxon Corp., 229 A.D.2d 1034, 645 N.Y.S.2d 186 (4^th Dep't 1996); Hilltop Nyack Corp. v. TRMI Holdings, ___ A.D.2d ___, 694 N.Y.S.2d 717 (2d Dep't 1999).

F. Fraud

Fraud is an intentional misrepresentation. For instance, if a seller intentionally deceives a buyer with respect to environmental conditions on a property, the seller may be liable for fraud. Keywell v. Weinstein, 33 F.3d 159 (2d Cir. 1994). For example, the seller of a gasoline service station was liable to the new owner for fraud since he knowingly misrepresented the condition of underground storage tanks which leaked onto neighboring properties and subsequently led to the closing of the station. Kaddo v. King Service Inc., 250 A.D.2d 948, 673 N.Y.S.2d 235 (3d Dep't 1998).

Under the doctrine of caveat emptor ("buyer beware"), silence is not fraud, so that unless a seller intentionally gives false information about environmental contamination, there is no fraud. However, the courts have eroded this doctrine, especially with regard to environmental matters, and may imply a duty to disclose defects to a buyer, even if no inquiry is made. Stambovsky v. Ackley, 169 A.D.2d 254, 572 N.Y.S.2d 674 (1st Dep't 1991) (duty to disclose haunted nature of house); Young v. Keith, 112 A.D.2d 625, 492 N.Y.S.2d 489 (3d Dep't 1985) (duty to disclose faulty water and sewer systems).

Thus, a seller who knowingly fails to disclose the presence of an oil spill or other hidden environmental contamination on a property may be liable to the buyer for fraud even if no inquiry or representations were made with regard to environmental contamination. See Roth v. Leach, 5 TXLR 641 (Sup. Ct. Wayne Co. 1990, Parenti, J.) (duty to notify buyer of presence of buried hazardous wastes); 195 Broadway Co. v. 195 Broadway Corp. N.Y.L.J., April 15, 1988, p. 6, col. 4 (Sup. Ct. N.Y. Co. 1988) (duty to notify buyer of presence of asbestos in building); Tahini Investments, Ltd. v. Bobrowsky, 99 A.D.2d 489, 470 N.Y.S.2d 431 (2d Dep't 1984) (buried drums); cf. Metzger v. Agway, Index No. 81362 (Sup. Ct. Ontario Co. 1994, Harvey, J.) (no fraud claim against owner who sold to seller). Further, in Keywell v. Weinstein, 33 F.3d 159 (2d Cir. 1994), a claim stated for fraud due to misrepresentation with regard to the extent of TCE disposal. 

However, in Bank North Salem v. Haight, 204 A.D.2d 949, 612 N.Y.S.2d 281 (3d Dep't 1994), no fraud claim could be made against the seller of an apple orchard who had no knowledge of the use of hazardous chemicals. In Vandervort v. Higginbotham, 222 A.D.2d 831, 634 N.Y.S.2d 800 (3d Dep't 1995), a buyer could not make a fraud claim when he was on notice of a possible oil spill, since he knew that the property had been used as a motor vehicle repair shop, and floor drains were obvious.

There may also be a duty to give a buyer correct information about nearby environmental problems that may have an effect on value. Diggins v. Amato, Index No. 66839 (Sup. Ct. Steuben Co. 1994, Purple, J.), aff'd 214 A.D.2d 1056, 627 N.Y.S.2d 507 (4th Dep't 1995); see also Strawn v. Canuso, 271 N.J. Super. 88, 638 A.2d 141 (N.J. App. Div. 1994) (real estate broker may have obligation to investigate and disclose potential contamination on or near property).

Neither the statement that no representations are made, 60 N.Y. Jur.2d Fraud and Deceit §218; DeBell v. Nothnagle Florida Realty Corp., 24 A.D.2d 825, 264 N.Y.S.2d 190 (4th Dep't 1965), nor even an "as is" clause, 60 N.Y. Jur.2d Fraud and Deceit §207; George v. Lumbrazo, 184 A.D.2d 1050, 584 N.Y.S.2d 704 (4th Dep't 1992), app. dis'd 81 N.Y.2d 759, 594 N.Y.S.2d 719 (1992); Haney v. Castle Meadows, Inc., 839 F.Supp. 753 (D. Colo. 1993), necessarily bars a fraud claim.

G. Mistake

If contaminated property is sold, but there is no intentional fraud (perhaps because the seller did not know), there might be a mutual mistake. In Rekis v. Lake Minnewaska Mountain Houses, Inc., 170 A.D.2d 124, 130, 573 N.Y.S.2d 331, 335 (3d Dep't 1991), app. dis'd 79 N.Y.2d 851, 580 N.Y.S.2d 201, mot. to reargue den'd 79 N.Y.2d 978, 583 N.Y.S.2d 196 (1992), the court held that:

a contract is voidable under the equitable remedy of rescission if the parties entered into the contract under a mutual mistake of fact which is substantial and existed at the time the contract was entered into.

H. Waste

A tenant who damages property either through neglect or unreasonable voluntary acts, may be liable for "waste." Accordingly, a tenant may "waste" property by leaving behind environmental contamination. See P.B.N. Associates v. Xerox Corp., 141 A.D.2d 807, 529 N.Y.S.2d 877 (2d Dep't 1988), mod. 176 A.D.2d 861, 575 N.Y.S.2d 451 (2d Dep't 1991). 

I. Restitution

A claim for restitution arises where "it would be against equity and good conscience to permit the defendant to retain what is sought to be recovered." 22 N.Y.Jur.2d Contracts §445. Restitution must be made for "unjust enrichment" for "property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefore." Id. §447. The "essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered." Id. §448. There is no need to prove any wrongdoing by the defendant. Id. 

Thus, some courts have recognized claims for restitution where a defendant should, in fairness, be held accountable for the cleanup of environmental contamination. New York v. SCA Services, 754 F. Supp. 995 (S.D.N.Y. 1991); State of New York v. Almy Brothers, Inc., 866 F.Supp. 668 (N.D.N.Y. 1994); State v. Schenectady Chemicals, Inc., 117 Misc.2d 960, 966-67, 459 N.Y.S.2d 971, 977 (Sup. Ct. Rensselaer Co. 1983), mod. 103 A.D.2d 33, 479 N.Y.S.2d 1010 (3d Dep't 1984); City of New York v. Lead Industries Association, Inc., 222 A.D.2d 119, 644 N.Y.S.2d 919 (1st Dep't 1996), later opn. 241 A.D.2d 387, 660 N.Y.S.2d 422 (1997); City of New York v. Keene Corp., 132 Misc. 2d 745, 505 N.Y.S.2d 782 (Sup. Ct., NY Co. 1986), aff'd 129 A.D.2d 504, 513 N.Y.S.2d 1004 (1st Dep't 1987). However, a contribution claim as allowed under CERCLA §113, 42 U.S.C. §9613, a restitution claim is preempted. Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998).

J. Indemnification or Contribution

Where two parties are both under a duty to clean up environmental contamination, and the duty, as between the two parties, should have been discharged by the defendant, the plaintiff may recover cleanup costs under a theory of "implied indemnification" or contribution. City of New York v. Lead Industries Association, Inc., 222 A.D.2d 119, 644 N.Y.S.2d 919 (1st Dep't 1996), later opn. 241 A.D.2d 387, 660 N.Y.S.2d 422 (1997); City of New York v. Keene Corp., 132 Misc. 2d 745, 505 N.Y.S.2d 782 (Sup. Ct., N.Y. Co. 1986), aff'd 129 A.D.2d 504, 513 N.Y.S.2d 1004 (1st Dep't 1987); State v. Stewart's Ice Cream Co., Inc., 64 N.Y.2d 83, 86, 484 N.Y.S.2d 810, 811 (1984). In City of New York v. Lead Industries, the City alleged that it had a non-delegable duty to its tenants to remediate lead contamination, and it stated a claim against lead manufacturers to reimburse it for its costs. 

If a contribution action is available under CERCLA §113, 42 U.S.C. §9613, such a claim is preempted. Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998). Thus, in Volunteers of America of Western New York v. Heinrich, 90 F.Supp.2d 252 (W.D.N.Y. 2000), the plaintiff could pursue common law contribution claims for expenses it was required to incur under the State Superfund Law, but not those available under a CERCLA contribution claim.

K. Quasi-Contract

"'Quai contracts are not contracts at all," but are "imposed by law where there has been no agreement... to assure a just and equitable result.'" Wood Realty Trust v. N. Storonske Cooperage Co., Inc., 229 A.D.2d 821, 646 N.Y.S.2d 410 (3d Dep't 1996). In Wood Trust, the owner of an apartment building stated a quasi-contract claim when the defendant owner of nearby land that had contaminated the plaintiff's property stopped providing bottled water to residents after the statute of limitations to sue in tort had expired.

L. Contract

A contract may also form the basis for an environmental claim. For example, a landlord may have a cause of action for breach of lease if his or her tenant contaminates the landlord's property. P.B.N. Associates v. Xerox Corp., 141 A.D.2d 807, 529 N.Y.S.2d 877 (2d Dep't 1988), mod. 176 A.D.2d 861, 575 N.Y.S.2d 451 (2d Dep't 1991). However, environmental contamination does not make the title to property unmarketable, or result in breach of the warranties of title. Vandervort v. Higginbotham, 222 A.D.2d 831, 634 N.Y.S.2d 800 (3d Dep't 1995); Roth v. Leach, 5 TXLR 641 (Sup. Ct. Wayne Co. 1990, Parenti, J.). Thus, in John Hancock Mutual Life Insurance Co. v. 491-499 Seventh Avenue Associates, 169 Misc.2d 493, 644 N.Y.S.2d 953 (Sup. Ct. N.Y. Co. 1996), app. wdrwn. 232 A.D.2d 966, 648 N.Y.S.2d 490 (2d Dep't 1996), where the notice of sale disclosed oil contamination, a foreclosure sale could proceed.

M. Inverse Condemnation

Invasion of property by the government by pollution may give rise to an inverse condemnation claim. See Knapp v. Livingston County, 175 Misc.2d 112, 667 N.Y.S.2d 662 (Sup. Ct. Livingston Co 1997). The U.S. Supreme Court has made it clear that overly rigorous environmental or land use regulations that deprive a landowner of the use of his or her land may be compensable takings. Lucas v. South Carolina Coastal Commission, 505 U.S. 1003, 112 S.Ct. 2886 (1992) (beachfront regulations); Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309 (1994) (designated greenspace and flood protection zone). Nonetheless, if a landowner buys property subject to severe regulatory restrictions, he or she cannot then sue to complain that there has been a regulatory taking, since the taking had already taken place. Gazza v. New York State Department of Environmental Conservation, 89 N.Y.2d 603, 657 N.Y.S.2d 555 (1997).

IV. Insurance Claims

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 contmination. See, e.g.,Whitesell v. Richardson-WalchliCorp., 237 A.D..2d 953, 654 N.Y.S.2d 541 (4^th Dep't 1997), mot. dis'd92 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). Cleanup 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).

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). 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). 

V. Defenses

A. Statute of Limitations

Under New York CPLR §214, most actions for personal injury and property damage must be brought within three years of the date of the tort, New York v. King Service, 167 A.D.2d 777, 563 N.Y.S.2d 331 (3d Dep't 1993), while an action for fraud or breach of contract must be brought within six years under CPLR §213. However, special rules apply to certain environmental claims.

1. CPLR §214-c

In New York, a special statute of limitations commonly known as the "discovery rule," CPLR §214-c, applies to toxic torts. Under this law, enacted in 1986, the three-year statute of limitations for property damage or personal injuries, as well as the limitations periods for filing claims against the state and municipalities for a claim for personal or property injuries caused by "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." Thus, even if it takes decades after exposure to the chemical to discover the injury, a lawsuit could still be brought within three years after that discovery.

Suppose an injury is discovered, but the cause of the injury is uncertain and is not discovered until much later - after a claim would be barred under this rule. CPLR §214-c(4) addresses this problem, and 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.

In Wetherill v. Eli Lilly & Co., 89 N.Y.2d 506, 655 N.Y.S.2d 862 (1997), the Court of Appeals held that "the time for bringing [an] action begins to run under the statute when the injured party discovers the primary condition on which the claim is based," even if the cause has not yet been determined, subject only to the limited extension under subdivision 4 of CPLR §214-c. See also Annunziato v. City of New York, 224 A.D.2d 31, 647 N.Y.S.2d 850 (2d Dep't 1996).

Some jurisdictions, including New York, recognize the doctrine of "continuing torts," so that the statute of limitations for a continuing trespass (e.g. seeping water) recommences each day the tort continues. 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. Thus, Jensen left the doctrine still viable for claims for injunctive relief. See also Annunziato v. City of New York, 224 A.D.2d 31, 647 N.Y.S.2d 850 (2d Dep't 1996). Furthermore, in continuous exposure cases, the statute of limitations begins to run from the date of the injury (extended in some cases by CPLR §214-c to the date of discovery) rather than the date of last exposure to the substance. Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 599 N.Y.S.2d 515 (1993). 

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); Scherrer v. Time Equities, Inc., 218 A.D.2d 116, 634 N.Y.S.2d 680 (1st Dep't 1995); State v. Fermenta ASC Corp., 238 A.D.2d 400, 656 N.Y.S.2d 342 (2d Dep't 1997), lv. to app. den'd. 90 N.Y.2d 810, 664 N.Y.S.2d 271 (1997). 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. 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.

Under CERCLA §309, the three-year New York state statute of limitations does not begin to run until a plaintiff knows, or should know, that a hazardous substance is the cause of his or her injury. Kowalski v. Goodyear Tire & Rubber Co., 841 F.Supp. 104 (W.D.N.Y. 1994); see also Soo Line Railroad Co. v. B.J. Carney & Co., 797 F.Supp. 1472, 1487 (D. Minn. 1992); Angeles Chemical Co., Inc. v. Spencer & Jones, 44 Cal. App.4th 112, 51 Cal. Rptr.2d 594 (Ct. App. 1996). Since petroleum is not a CERCLA "hazardous substance," this provision does not apply to oil spill cases that do not also involve hazardous substances. The CERCLA commencement date was recently been applied to pre-empt to toxic tort survival and wrongful death cases as well as actions for personal injuries and property damages. In re Pfohl Brothers Landfill Litigation, No. 96-CV-0020A(F) (D.C.N.Y. 3/11/98).

3. Indemnification/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 v. Stewart's Ice Cream Co., Inc., 64 N.Y.2d 83, 86, 484 N.Y.S.2d 810, 811 (1984); 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.

Thus, in Oliver Chevrolet, Inc. v. Mobil Oil Corp., 249 A.D.2d 793, 671 N.Y.S.2d 850 (3^rd Dep't 1998), the court held that while damage claims were untimely, the plaintiffs' request for reimbursement for remediation costs "was timely," since it was governed by the six-year time limit, "whether premised upon allegations that defendant was a negligent party,"or was a discharger liable under the Oil Spill Law. Id. at 795, 671 N.Y.S.2d at 852. In State v. Speonk Fuel, Inc., ___A.D.2d ___, ____ N.Y.S. ___ (3^rd Dep't. 2000), the Third Department followed the Court of Appeals ruling in State v. Stewart's Ice Cream Co., Inc., 64 N.Y.2d 83, 86, 484 N.Y.S.2d 810, 811 (1984), and held that for all cleanup expenses, the six-year statute runs from the last expenditure on a cleanup:

the Statute of Limitations did not begin to run upon plaintiff's first payment of the costs incurred in the cleanup and removal of the petroleum contamination. Rather, if the action "was commenced within six years after [plaintiff] expended funds for the cleanup, the action is timely as to all of plaintiff's expenditures" (id., at 89). In this case, plaintiff demonstrated that it expended funds as late as September 1996 and, therefore, the action is timely as against both defendants.

CERCLA §113(g)(2) provides that actions under CERCLA §107 to recover costs of a removal action must be brought "within 3 years after completion of the removal action," while for remedial actions, suit must be filed "within 6 years after initiation of physical on-site construction of the remedial action." 42 U.S.C. §9613(g)(2). Further, CERCLA §113(g)(3), 42 U.S.C. §9613(g)(3) provides that no contribution action may be brought more than three years after either "(A) the date of judgment in any action under this chapter for recovery of such costs or damages, or (B) the date of an administrative order under section 9622(g) of this title (relating to de minimis settlements) or 9622(h) of this title (relating to cost recovery settlements) or entry of a judicially approved settlement with respect to such costs or damages." Nonetheless, none of the "triggering events listed in that section will occur unless a potentially responsible party (PRP) incurs its cleanup costs pursuant to §106 or §107 civil action by the government." Sun Co. (R&M) v. Browning-Ferris, Inc., 124 F.3d 1187 (10^th Cir. 1997). "Thus, PRPs who... incur cleanup costs pursuant to a unilateral administrative order (or by a consent decree, or in some cases, voluntarily) potentially have an unlimited time in which to bring their contribution claims." Id. 

B. Preemption

The ability of DEC and other governmental agencies to proceed through administrative action does not necessarily preempt available common law remedies. State v. Schenectady Chemicals, Inc., 103 A.D.2d 33, 479 N.Y.S.2d 1010 (3d Dep't 1984); State v. Monarch Chemicals, Inc., 90 A.D.2d 907, 456 N.Y.S.2d 867 (3d Dep't 1982); Osarczuk v. Associated Universities, Inc., Index No. 2836/96 (Sup. Ct. Suffolk Co. 9/4/96). 

If CERCLA covers a site, claims in the same nature as CERCLA contribution, such as restitution and contribution, may be preempted. Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998). However, CERCLA does not generally preempt common law claims for damages not available under CERCLA. Volunteers of America of Western New York v. Heinrich, 90 F.Supp.2d 252 (W.D.N.Y. 2000).

C. CERCLA

CERCLA allows very limited affirmative defenses, which include:
 

(1) an act of God;

(2) an act of war;

(3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or

(4) any combination of the foregoing paragraphs.

Further, government officials acting pursuant to the NCP, §107(d), 42 U.S.C. §9607(d), and cleanup contractors, §119, 42 U.S.C. §9619, are not liable provided they were not negligent. An "indemnification, hold harmless or similar agreement" is not effective to absolve a responsible party from liability, although such arrangements are still enforceable between the parties. §107(e), 42 U.S.C. §9607(e); Olin Corp. v. Consolidated Aluminum Corp., 5 F.3d 10 (2d Cir. 1993). Moreover, even bankruptcy may not provide complete discharge from CERCLA liability.

The courts have sparingly allowed the "third party" defense. For example, the purchaser of contaminated property has been held to have a contractual relationship with the wrongdoer which bars the defense. However, in New York v. Lashins Arcade Co., 91 F.3d 353 (2d Cir. 1996), a purchaser was able to use the defense when the contamination was caused by a prior owner's tenant. 

It had been held that the exception under §101(20)(A), 42 U.S.C. §9601(20)(A), for persons who hold "indicia of ownership principally to protect his security interest," may not apply if a bank purchases a property after a foreclosure sale. U.S. v. Maryland Bank & Trust Co., 632 F.Supp 573 (D. Md. 1986). Nonetheless, some courts held that financial institutions may hold title for a brief period of time to protect their security interest without becoming an "owner." Northeast Doran, Inc. v. Key Bank of Maine, 15 F.3d 1 (1st Cir. 1994).

EPA attempted to clarify this issue by regulations added to the NCP at 40 C.F.R. Subpart L. Under this regulation, a lender was only liable if it exercised "decisionmaking control over the borrower's environmental compliance," or "control at a level comparable to that of a manager of the borrower's enterprise . . . with respect to (A) Environmental compliance or (B) All, or substantially all, of the operational (as opposed to financial or administrative) aspects of the enterprise." 40 C.F.R. §300.1100(c)(1). Under the regulations, merely "policing" a loan, or perhaps even purchasing at a foreclosure sale, would not constitute sufficient control to invoke liability. §300.1100(c)(2),(d). However, this regulation was struck down by the courts. Michigan v. EPA, 15 F.3d 1100 (D.C. Cir. 1994), reh. den'd 25 F.3d 1088 (D.C. Cir. 1994), although EPA made it guidance for its own enforcement decisions.

In 1996, Congress amended CERCLA, as part of an omnibus appropriations measure, to add the lender liability provisions to the statute, as well as protections for fiduciaries. Under the new provisions, which track the previously invalidated lender liability rule, "indicia of ownership" does not include a lender who does not "participate in management" of the facility. CERCLA §101(20)(E)(i), 42 U.S.C. §9601(20)(E)(i). 

Under these amendments, "participation in management" is defined to include "actually participating in the management or operational affairs" of a facility, and "does not include merely having the capacity to influence, or the unexercised right to control" the facility. CERCLA §101(20)(F)(i), 42 U.S.C. §9601(20)(F)(i). Rather, "participation in management" means a person who "exercises decisionmaking control over the environmental compliance related to the... facility, such that the person had undertaken responsibility for the hazardous substance handling or disposal practices," or he or she "exercises control at a level comparable to that of a manager," so that the person has responsibility for "overall management... encompassing day-to-day decisionmaking with respect to environmental compliance," or "all or substantially all of the operational functions (as distinguished from financial or administrative functions)." CERCLA §101(20)(F)(ii), 42 U.S.C. §9601(20)(F)(ii).

Moreover, lenders who take title after foreclosure may also be protected if they seek to sell "at the earliest practicable, commercially reasonable time." CERCLA §101(20)(E)(ii), 42 U.S.C. §9601(20)(E)(ii). Other "safe harbors," such as monitoring, are also provided for lenders. CERCLA §101(20)(F)(iv), 42 U.S.C. §9601(20)(F)(iv). A new subdivision (n) of CERCLA §107, 42 U.S.C. §9607(n), protects fiduciaries (including trustees) from CERCLA liability for certain acts contained within a "safe harbor," including undertaking response actions under the National Contingency Plan, and monitoring. 

Congress did provide some relief as part of SARA by adding an "innocent purchaser" defense for persons who acquired a facility "by inheritance or bequest," government entities which acquired property by involuntary transfer or condemnation, and persons who "did not know and had no reason to know" about hazardous substances at the site, as long as such persons do not cause or contribute to the release or threatened release. CERCLA §101(35)(A,D), 42 U.S.C. §9601(35)(A,D). CERCLA §101(20)(D), 42 U.S.C. §9601(20)(D), was also added to provide relief for governments which acquire title involuntarily by "bankruptcy, tax delinquency, abandonment, or other circumstances," provided they did not cause or contribute to the problem.

In order to establish that an "innocent purchaser" "did not know and had no reason to know," it must be shown that:

the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. For purposes of the preceding sentence the court shall take into account any specialized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection.

D. Oil Spill Law

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," §178-a, 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).

VI. Remedies

A. Permanent Property Damages

The general rule is that "[a] person whose property is taken, damaged, or destroyed by the negligent or wrongful act or omission of another is entitled to compensation for the damage sustained in such a sum as will restore him as nearly as possible to his former position." 36 N.Y. Jur.2d Damages §72; Cashin v. New Rochelle, 256 N.Y. 190 (1931). "[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 (2d Cir. 1998). However, "the plaintiff need only present evidence as to one measure of damages, and that measure will be used when neither party presents evidence going to the other measure." Id. Furthermore, the burden is on the defendant to prove failure to mitigate or some alternative measure of damages. Jenkins v. Etlinger, 55 N.Y.2d 35, 39, 447 N.Y.S.2d 696, 698 (1982).In cases of environmental contamination, 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); Scribner v. Summers, 138 F.3d 471 (2d Cir. 1998).

Permanent property damages may 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); In Re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994);see also Scribner v. Summers, 138 F.3d 471 (2d Cir. 1998); Scheg v. Agway, Inc., 229 A.D.2d 963, 645 N.Y.S.2d 687 (4th Dep't 1996);Osarczuk v. Associated Universities, Inc., Index No. 2836/96 (Sup. Ct. Suffolk Co. 9/4/96). The New York Court of Appeals has clearly recognized stigma as an element of diminution of property value in both a condemnation case, Criscuola v. Power Authority of State of New York, 81 N.Y.2d 649, 602 N.Y.S.2d 588 (1993), and a tax certiorari proceeding. Commerce Holding Corp. v. Board of Assessors of the Town of Babylon, 88 N.Y.2d 724, 649 N.Y.S.2d 932 (1996). However, generally no stigma damages can be awarded if there is no physical invasion of the plaintiff's property, since there is no underlying tort. Mehlenbacher v. Akzo Nobel Salt, Inc., Civil Action No. 94-CV-6343L (W.D.N.Y., Sept. 28, 1999); Halliday v. Norton Company, ___ N.Y.2d ___, ___ N.Y.S.2d ___(3d Dep't 1999), mot. den'd __ N.Y.2d __, ___ N.Y.S.2d ___ (2000); cf. Scheg v. Agway, Inc., 229 A.D.2d 963, 645 N.Y.S.2d 687, 688 (4th Dep't 1996); see also Adkins v. Thomas Solvent Co., 440 Mich. 293 (1992); Adams v. Star Enterprise, 51 F.3d 417 (4th Cir.1995).

In Mehlenbacher v. Akzo Nobel Salt, Inc., Civil Action No. 94-CV-6343L (W.D.N.Y., Sept. 28, 1999), where the plaintiffs sought stigma damages due to collapse of salt mine under their properties, Judge Larimer took a restrictive view of stigma damages, and held that "[i]n order to recover damages for diminution in value, property owners must show (1) that their property has been physically damaged, or that their use and enjoyment of their property has been unreasonably interfered with, by the defendant's actions, and (2) either that the trespass or nuisance thus created cannot be fully remediated, or that the cost of remediation would exceed the amount by which the value of the property has been diminished." Slip Opinion at 17.

B. Temporary Property Damages

Where injury to property is temporary, damages are measured by "the reduction of the rental or usable value of the property." Guzzardi v. Perry's Boats, Inc., 92 A.D.2d 250, 460 N.Y.S.2d 78, 82 (2d Dep't 1983). Even if there is a partial restoration, property damages include both damages due to the temporary loss in rental value, as well as "further damage, if any, caused to the fee." Mead v. State, 24 A.D.2d 1043, 265 N.Y.S.2d 302, 303 (3d Dep't 1965). 

During the time of the temporary injury, a property owner may sustain damages including carrying costs of the property, such as taxes, insurance, maintenance and operating costs. Keystone Associates v. Moedler, 19 N.Y.2d 78, 278 N.Y.S.2d 185 (1966). Thus, in Putnam v. State of New York, 223 A.D.2d 872, 636 N.Y.S.2d 473 (3rd Dep't 1996), while no permanent property damages were awarded, the court allowed recovery for temporary injury due to "decrease in the rental value during pendency of the injury" until cleanup was complete, based upon testimony of the defendant's appraiser, who treated the spill as a temporary easement. Likewise, in Gettner v. Getty Oil Col, ___ A.D.2d ___, ___ N.Y.S.2d ___ (2d Dep't 1999), mot. den'd 95 N.Y.2d 791, __ N.Y.S.2d ___ (2000), the plaintiff was allowed to recover lost rent, but only for the period in which the cleanup should have been completed. In Kinley v. Atlantic Cement Company, 42 A.D.2d 496, 349 N.Y.S.2d 199 (3d Dep't 1973), the plaintiffs were entitled to damages for time during which their properties were burdened with pollution from a cement factory. See Boomer v. Atlantic Cement Company, 226 N.Y.2d 219, 309 N.Y.S.2d 312 (1970). 

C. Other Economic Damages

Other economic damages may flow from property contamination. 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 (including cable companies and law firms) were forced to move their businesses out of a building for a month due to PCB contamination caused by an explosion of defendant's transformer. They 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." 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).

D. Injunction

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). An injunction is, in effect, a court order prohibiting the defendant from continuing offensive conduct, or requiring the defendant to take certain action. For example, a court may require a polluter to stop polluting, or to clean up a spill.

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. For instance, a court might allow a factory to continue to emit air pollution which caused a private nuisance due to the public interest in maintaining the local economy, but still require the factory to pay damages to the injured neighbors. Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312 (1970).

E. Loss of Quality of Life

Courts have long recognized that an element of damage for nuisance is compensation for discomfort or annoyance. In toxic tort cases, this principle has been extended to allow recovery for "loss of quality of life," including damages for "'inconveniences, aggravation, and unnecessary expenditures of time and effort... as well as other disruption in their lives.'" Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1987); see also 42 Proof of Facts 2d 247 §7; CARE v. Southview Farm, 834 F. Supp. 1422 (W.D.N.Y. 1993), rev'd on other grounds 34 F.3d 114 (2d Cir. 1994), cert. den'd 514 U.S. 1082, 115 S.Ct. 1793 (1995). This might involve, for example, compensation for the disruption of home life due to the necessity of using bottled water, or the inability to invite a guest to visit one's home. This may be considered an element of property damages. Scribner v. Summers, CIV No. 6094L (W.D.N.Y. 1996), mod. Scribner v. Summers, 138 F.3d 471 (2d Cir. 1998).

F. Other Remedies for Toxic Torts

In toxic tort cases, "the defendant is liable for 'reasonably anticipated' consequential damages which may flow later from that invasion although the invasion itself is 'an injury too slight to be noticed at the time it is inflicted.'" Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 136, 477 N.Y.S.2d 242, 247 (4th Dep't 1984). See also Doe v. State of New York, 189 A.D.2d 199, 595 N.Y.S.2d 592 (4^th Dep't. 1993) (damages awarded for economic loss were based on pre-injury life-expectancy).

Obviously, personal injuries are available. See, e.g., Hancock v. 330 Hull Realty Corp., 225 A.D.2d 365, 638 N.Y.S.2d 654 (1st Dep't 1996) (verdict of $2,250,000 for personal injuries, including future pain and suffering, due to lead poisoning). However, damages are not available for the mere increase in risk of developing a disease due to exposure to a toxic substance, but rather the damages can only be awarded when a disease is actually manifested. Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 477 N.Y.S.2d 242 (4th Dep't 1984); Gerardi v. Nuclear Utility Services, 149 Misc.2d 657, 566 N.Y.S.2d 1002 (Sup. Ct. Westchester Co. 1991). 

While physical contact is generally required, many courts in "toxic tort" cases have indicated that the mere inhalation, ingestion or absorption of a toxic substance is a sufficient contact to justify an award for emotional distress or "cancerphobia" arising out of the reasonable fear of contracting such a disease.Gerardi v. Nuclear Utility Services, 149 Misc.2d 657, 566 N.Y.S.2d 1002 (Sup. Ct. Westchester Co. 1991). However,a plaintiff "must establish both that he or she was in fact exposed to the disease-causing agent and that there is a 'rational basis' for his fear of contracting the disease," and "'rational basis' has been construed to mean the clinically demonstrable presence of [contaminants] in the plaintiff's body, or some indication of... disease." Wolff v. A-One Oil, Inc., 216 A.D.2d 291, 292, 627 N.Y.S.2d 788, 789 (2d Dep't 1995), app. dis'd. 87 N.Y.2d 968, 642 N.Y.S.2d 196 (1996); see also Metro-North Commuter Railroad Co. v. Buckley, __ U.S. ___, 117 S.Ct. 2113 (1997); Abusio v. Consolidated Edison Co. of New York, Inc., 238 A.D.2d 454, 656 N.Y.S.2d 371 (2d Dep't 1997), app. den'd 90 N.Y.2d 806, 664 N.Y.S.2d 268 (1997); Doner v. Adams Contracting, 208 A.D.2d 1072, 617 N.Y.S.2d 565 (3d Dep't 1994).

Exposure to a chemical may create a substantial enough risk of future disease that regular medical checkups would be warranted. In such a case, some courts in New York and other states have allowed a recovery for the cost of future "medical monitoring." This is not damages for increased risk, but merely to pay for the necessary cost of addressing the risk. Courts may allow such an award if the risk is sufficiently significant that it is reasonably necessary that a plaintiff obtain periodic medical examinations to monitor his or her health and facilitate early diagnosis and treatment of diseases which might be caused by the exposure. See, e.g., Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 477 N.Y.S.2d 242 (4th Dep't 1984); Gibbs v. E.I. DuPont De Nemours & Co., Inc., 1995 W.L. 60788 (W.D.N.Y. 1995); Patton v. General Signal, 984 F.Supp. 666 (W.D.N.Y. 1997); Cf. Metro-North Commuter Railroad Co. v. Buckley, __ U.S. ___, 117 S.Ct. 2113 (1997) (medical monitoring not available under the Federal Employers' Liability Act). Many courts have required that where medical surveillance is appropriate, the court should administer a trust funded by the defendant to pay out medical expenses, rather than awarding money directly to the plaintiff. See Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1987).

G. Oil Spill Law

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). Liability under the Oil Spill Law may include property damages as described above, including diminution in property value, Henning v. Rando Machine Corp., 207 A.D.2d 106, 620 N.Y.S.2d 867 (4th Dep't 1994), and lost rent. Gettner v. Getty Oil Col, ___ A.D.2d ___, ___ N.Y.S.2d ___ (2d Dep't 1999), mot. den'd 95 N.Y.2d 791, __ N.Y.S.2d ___ (2000). 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).

The Third Department has 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). 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 Col, ___ A.D.2d ___, ___ N.Y.S.2d ___ (2d Dep't 1999), mot. den'd 95 N.Y.2d 791, __ N.Y.S.2d ___ (2000); although this may be limited to fees associated with cleanup activities. See Gettner v. Getty Oil Col, ___ A.D.2d ___, ___ N.Y.S.2d ___ (2d Dep't 1999).

VII. Proof

A. Burden of Proof

The courts have recently considered whether or not "alternative liability" applies. In a California case arising under RCRA, 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). 

B. Expert Proof

The Federal Rules of Evidence ("F.R.E.") govern the admissibility of experts' opinions in federal court. Under F.R.E. Rule 702, an expert's opini