Fla. Stat. § 376.12 : Natural Resources; Conservation, Reclamation, And Use — Pollutant Discharge Prevention And Removal — Liabilities and defenses of responsible parties; liabilities of third parties; financial security requirements for vessels; liability of cargo owners; notification requirements

Date: 18 Apr 2016

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Current through Chapter 269 of the 2016 Legislative Session

(1) LIABILITY FOR CLEANUP COSTS.--Because it is the intent of ss. 376.011- 376.21 to provide the means for rapid and effective cleanup and to minimize cleanup costs and damages, any responsible party who permits or suffers a prohibited discharge or other polluting condition to take place within state boundaries shall be liable to the fund for all costs of removal, containment, and abatement of a prohibited discharge, unless the responsible party is entitled to a limitation or defense under this section.

(2) LIMITATION OF LIABILITY FOR CLEANUP COSTS.--Except as provided in subsection (3), a responsible party's liability to the fund for costs of removal, containment, and abatement shall be as follows:

(a) For a vessel transporting pollutants as cargo:

1. For any such vessel of 3,000 gross tons or more, $10 million or $1,200 per gross ton, whichever is greater.

2. For any such vessel of less than 3,000 gross tons, $2 million or $1,200 per gross ton, whichever is greater.

(b) For any other vessel: $500,000 or $600 per gross ton, whichever is greater.

(3) EXCEPTIONS TO LIMITATION OF LIABILITY.--The provisions of subsection (2) shall not apply when:

(a) The department demonstrates that such discharge was the result of willful or gross negligence or willful misconduct of, or the violation of an applicable federal or state safety, construction, or operating regulation or rule by, the responsible party, an agent or employee of the responsible party, or a person acting pursuant to a contractual relationship with the responsible party, except where the sole contractual arrangement arises in connection with carriage by a common carrier by rail; or

(b) The responsible party fails or refuses:

1. To report the incident as required by law and the responsible party knows or has reason to know of the incident; or

2. To provide reasonable cooperation and assistance requested by a state or federal on-scene coordinator in connection with cleanup activities. The responsible party must file an objection with the department if such party deems that cooperation or assistance requested by a state or federal on-scene coordinator is unreasonable. Such an objection must be filed with the department within 2 working days after the request. If such request is determined by the department to be unreasonable, the responsible party may assert a claim against the fund, pursuant to s. 376.123, for reimbursement of expenses incurred in carrying out such request. The responsible party may not file an objection to a request based solely on the premise that the requested activity did not have satisfactory results, that the responsible party has exceeded the applicable limitation of liability, or that the responsible party has a defense to liability.

(4) LIABILITY FOR NATURAL RESOURCE DAMAGES.--Each responsible party is liable to the fund, pursuant to s. 376.121, for all natural resource damages that result from the discharge.

(5) LIABILITY FOR PROPERTY DAMAGES.--Each responsible party is liable to any affected person for all damages as defined in s. 376.031, excluding natural resource damages, suffered by that person as a result of the discharge.

(6) ADMINISTRATIVE REMEDIES OF RESPONSIBLE PARTIES.--A responsible party that disputes any claim by the department may request a hearing pursuant to s. 120.57.

(7) DEFENSES TO LIABILITY.--In any proceeding determining claims of the fund or any other claims by the state pursuant to ss. 376.011- 376.21, it shall not be necessary for the department to plead or prove negligence in any form or manner. The department need only plead and prove that the prohibited discharge or other polluting condition occurred. The only defenses of a person alleged to be responsible for the discharge to an action or proceeding for damages or cleanup costs shall be to plead and prove that the occurrence was solely the result of any of the following or any combination of the following:

(a) An act of war.

(b) An act of government, either federal, state, county, or municipal.

(c) An act of God, which means only an unforeseeable act exclusively occasioned by the violence of nature without the interference of any human agency.

(d) An act or omission of a third party other than an employee or agent of the responsible party or a third party whose act or omission occurs in connection with any contractual relationship with the responsible party, except where the sole contractual arrangement arises in connection with carriage by rail,

provided that, to establish entitlement to any of the foregoing defenses, the responsible party shall plead and prove that the responsible party exercised due care with respect to the pollutant concerned, taking into consideration the characteristics of the pollutant and in light of all relevant facts and circumstances, and took precautions against foreseeable acts or omissions of others and the foreseeable consequences of those acts or omissions.

(8) EXCEPTIONS TO DEFENSES.--The defenses provided in subsection (7) shall not apply with respect to a responsible party who fails or refuses:

(a) To report the discharge as required by law, when the responsible party knows or has reason to know of the discharge; or

(b) To provide reasonable cooperation and assistance requested by a state or federal on-scene coordinator in connection with cleanup activities. The responsible party must file an objection with the department, pursuant to subsection (3), if such party deems that cooperation or assistance requested by a state or federal on-scene coordinator is unreasonable.

(9) LIABILITY OF THIRD PARTIES.--In any case in which a responsible party establishes that a discharge or threat of a discharge and the resulting cleanup costs and damages were caused solely by an act or omission of one or more third parties as described in paragraph (7)(d), or solely by such an act or omission in combination with an act of war, an act of government, or an act of God, the third party or parties shall be treated as the responsible party or parties for all purposes of determining liability under ss. 376.011- 376.21.

(10) LIABILITY OF CARGO OWNERS.--The owner of a pollutant transported as cargo on any vessel suffering a discharge within state waters is liable for all cleanup costs within the applicable vessel liability limits established under this section, not paid for by the owner or operator of the vessel. However, the cargo owner is not liable under this subsection if the vessel owner, operator, or master is found in compliance with the financial security requirements of this section at the time of the discharge or fails to provide certified notification of the cancellation or withdrawal of financial security to the department and the cargo owner at least 3 working days before the vessel entered state waters.

(11) NOTIFICATION REQUIREMENTS FOR VESSELS AND TERMINAL FACILITIES.--In addition to any civil penalties which may apply, any person responsible who fails to give immediate notification of a discharge to the department or the nearest Coast Guard Marine Safety Office or National Response Center commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. However, a discharge of 5 gallons or less of gasoline or diesel from a vessel shall not give rise to felony penalties for failure to comply with the state notification requirements in this subsection. After reporting a discharge, a vessel shall remain in the jurisdiction of the department until such time as the department is able to prove financial responsibility for the damages resulting from the discharge. The master of a vessel that fails to remain in the jurisdiction of the department for a reasonable time after notice of a discharge commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The department shall not detain the vessel longer than 12 hours after receiving proof of financial responsibility. The department shall, by rule, require that the terminal facility designate a person at the terminal facility as the person in charge of that facility for the purposes specified by this section.

Fla. Stat. § 376.12

s. 12, ch. 70-244; s. 326, ch. 71-136; s. 12, ch. 74-336; ss. 4, 5, ch. 80-382; s. 18, ch. 90-54; s. 1, ch. 91-135; s. 293, ch. 94-356; s. 1013, ch. 95-148; s. 8, ch. 96-263; s. 104, ch. 96-410.

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