Dry-Cleaning Chemical, PERC, Is Not “Petroleum” Within the Meaning of the Navigation Law—Plaintiff’s Suit for Clean-Up of PERC Under the Navigation Law Properly Dismissed

The Third Department determined the Navigation Law did not confer upon plaintiff a private right of action to sue for clean-up of PERC, a chemical used in dry cleaning.  Plaintiff is the owner of a shopping plaza and sued the estate of the owner a of dry cleaning business that was located in the plaza after PERC was found in the soil. The Navigation Law provides a private right of action to sue for the clean-up of “petroleum.” Although PERC is derived from petroleum, the court held PERC does not constitute petroleum within the meaning of the Navigation Law:

Essentially, plaintiff argues that this finding that PERC is petroleum derived is sufficient to support imposition of liability under the Navigation Law. This would constitute a novel expansion of the law; plaintiff does not cite to, nor can we find, any case in which PERC has been deemed to constitute petroleum under the Navigation Law. At least two other courts have come to the opposite conclusion, finding that PERC does not constitute petroleum under the Navigation Law … . As defendant argues, the vast and diverse range of products and substances derived from petroleum — many of which pose none of the same dangers as petroleum itself — would make a per se rule imposing liability for the discharge of any petroleum-derived substance unworkable. Accordingly, we find no error in Supreme Court’s determination that PERC is not petroleum as defined under Navigation Law article 12 … . Fairview Plaza, Inc. v Estate of Peter J. Rigos, 2015 NY Slip Op 04901, 3rd Dept 6-11-15