1 | A bill to be entitled |
2 | An act relating to liability for pollution; amending s. |
3 | 376.031, F.S.; revising the definition of the term |
4 | "damage" under the Pollutant Discharge Prevention and |
5 | Control Act to provide for liability for economic damages |
6 | and for tax revenue lost as a result of a prohibited |
7 | discharge; amending s. 376.12, F.S.; deleting provisions |
8 | relating to limitations on liability for cleanup costs and |
9 | exceptions thereto; conforming a provision to changes made |
10 | to the Administrative Procedures Act; conforming cross- |
11 | references; amending s. 376.09, F.S.; conforming |
12 | provisions to changes made by the act; amending s. |
13 | 376.205, F.S.; conforming a cross-reference; providing an |
14 | effective date. |
15 |
|
16 | Be It Enacted by the Legislature of the State of Florida: |
17 |
|
18 | Section 1. Subsection (5) of section 376.031, Florida |
19 | Statutes, is amended to read: |
20 | 376.031 Definitions; ss. 376.011-376.21.-When used in ss. |
21 | 376.011-376.21, unless the context clearly requires otherwise, |
22 | the term: |
23 | (5) "Damage" means the documented extent of any of the |
24 | following as a direct result of the discharge of a pollutant: |
25 | (a) Destruction to or loss of any real or personal |
26 | property., or |
27 | (b) The documented extent, pursuant to s. 376.121, of any |
28 | destruction of the environment and natural resources, including |
29 | all living things except human beings, as the direct result of |
30 | the discharge of a pollutant. |
31 | (c) All economic damages, including, without limitation, |
32 | loss of income and, without limitation, with respect to the |
33 | state and all political subdivisions thereof, loss of tax |
34 | revenues. |
35 | Section 2. Section 376.12, Florida Statutes, is amended to |
36 | read: |
37 | 376.12 Liabilities and defenses of responsible parties; |
38 | liabilities of third parties; financial security requirements |
39 | for vessels; liability of cargo owners; notification |
40 | requirements.- |
41 | (1) LIABILITY FOR CLEANUP COSTS.-Because it is the intent |
42 | of ss. 376.011-376.21 to provide the means for rapid and |
43 | effective cleanup and to minimize cleanup costs and damages, any |
44 | responsible party who permits or suffers a prohibited discharge |
45 | or other polluting condition to take place within state |
46 | boundaries shall be liable to the fund for all costs of removal, |
47 | containment, and abatement of a prohibited discharge, unless the |
48 | responsible party is entitled to a limitation or defense under |
49 | this section. |
50 | (2) LIMITATION OF LIABILITY FOR CLEANUP COSTS.-Except as |
51 | provided in subsection (3), a responsible party's liability to |
52 | the fund for costs of removal, containment, and abatement shall |
53 | be as follows: |
54 | (a) For a vessel transporting pollutants as cargo: |
55 | 1. For any such vessel of 3,000 gross tons or more, $10 |
56 | million or $1,200 per gross ton, whichever is greater. |
57 | 2. For any such vessel of less than 3,000 gross tons, $2 |
58 | million or $1,200 per gross ton, whichever is greater. |
59 | (b) For any other vessel: $500,000 or $600 per gross ton, |
60 | whichever is greater. |
61 | (c) For a terminal facility: $150 million. |
62 | (3) EXCEPTIONS TO LIMITATION OF LIABILITY.-The provisions |
63 | of subsection (2) shall not apply when: |
64 | (a) The department demonstrates that such discharge was |
65 | the result of willful or gross negligence or willful misconduct |
66 | of, or the violation of an applicable federal or state safety, |
67 | construction, or operating regulation or rule by, the |
68 | responsible party, an agent or employee of the responsible |
69 | party, or a person acting pursuant to a contractual relationship |
70 | with the responsible party, except where the sole contractual |
71 | arrangement arises in connection with carriage by a common |
72 | carrier by rail; or |
73 | (b) The responsible party fails or refuses: |
74 | 1. To report the incident as required by law and the |
75 | responsible party knows or has reason to know of the incident; |
76 | or |
77 | 2. To provide reasonable cooperation and assistance |
78 | requested by a state or federal on-scene coordinator in |
79 | connection with cleanup activities. The responsible party must |
80 | file an objection with the department if such party deems that |
81 | cooperation or assistance requested by a state or federal on- |
82 | scene coordinator is unreasonable. Such an objection must be |
83 | filed with the department within 2 working days after the |
84 | request. If such request is determined by the department to be |
85 | unreasonable, the responsible party may assert a claim against |
86 | the fund, pursuant to s. 376.123, for reimbursement of expenses |
87 | incurred in carrying out such request. The responsible party may |
88 | not file an objection to a request based solely on the premise |
89 | that the requested activity did not have satisfactory results, |
90 | that the responsible party has exceeded the applicable |
91 | limitation of liability, or that the responsible party has a |
92 | defense to liability. |
93 | (2)(4) LIABILITY FOR NATURAL RESOURCE DAMAGES.-Each |
94 | responsible party is liable to the fund, pursuant to s. 376.121, |
95 | for all natural resource damages that result from the discharge. |
96 | (3)(5) LIABILITY FOR ECONOMIC AND PROPERTY DAMAGES.-Each |
97 | responsible party is liable to any affected person for all |
98 | damages as defined in s. 376.031, excluding natural resource |
99 | damages, suffered by that person as a result of the discharge. |
100 | (4)(6) ADMINISTRATIVE REMEDIES OF RESPONSIBLE PARTIES.-A |
101 | responsible party that disputes any claim by the department may |
102 | request a hearing pursuant to ss. 120.569 and s. 120.57. |
103 | (5)(7) DEFENSES TO LIABILITY.-In any proceeding |
104 | determining claims of the fund or any other claims by the state |
105 | pursuant to ss. 376.011-376.21, it shall not be necessary for |
106 | the department to plead or prove negligence in any form or |
107 | manner. The department need only plead and prove that the |
108 | prohibited discharge or other polluting condition occurred. The |
109 | only defenses of a person alleged to be responsible for the |
110 | discharge to an action or proceeding for damages or cleanup |
111 | costs shall be to plead and prove that the occurrence was solely |
112 | the result of any of the following or any combination of the |
113 | following: |
114 | (a) An act of war. |
115 | (b) An act of government, either federal, state, county, |
116 | or municipal. |
117 | (c) An act of God, which means only an unforeseeable act |
118 | exclusively occasioned by the violence of nature without the |
119 | interference of any human agency. |
120 | (d) An act or omission of a third party other than an |
121 | employee or agent of the responsible party or a third party |
122 | whose act or omission occurs in connection with any contractual |
123 | relationship with the responsible party, except where the sole |
124 | contractual arrangement arises in connection with carriage by |
125 | rail, |
126 |
|
127 | provided that, to establish entitlement to any of the foregoing |
128 | defenses, the responsible party shall plead and prove that the |
129 | responsible party exercised due care with respect to the |
130 | pollutant concerned, taking into consideration the |
131 | characteristics of the pollutant and in light of all relevant |
132 | facts and circumstances, and took precautions against |
133 | foreseeable acts or omissions of others and the foreseeable |
134 | consequences of those acts or omissions. |
135 | (6)(8) EXCEPTIONS TO DEFENSES.-The defenses provided in |
136 | subsection (5) (7) shall not apply with respect to a responsible |
137 | party who fails or refuses: |
138 | (a) To report the discharge as required by law, when the |
139 | responsible party knows or has reason to know of the discharge; |
140 | or |
141 | (b) To provide reasonable cooperation and assistance |
142 | requested by a state or federal on-scene coordinator in |
143 | connection with cleanup activities. The responsible party must |
144 | file an objection with the department, pursuant to subsection |
145 | (3), if such party deems that cooperation or assistance |
146 | requested by a state or federal on-scene coordinator is |
147 | unreasonable. |
148 | (7)(9) LIABILITY OF THIRD PARTIES.-In any case in which a |
149 | responsible party establishes that a discharge or threat of a |
150 | discharge and the resulting cleanup costs and damages were |
151 | caused solely by an act or omission of one or more third parties |
152 | as described in paragraph (5)(7)(d), or solely by such an act or |
153 | omission in combination with an act of war, an act of |
154 | government, or an act of God, the third party or parties shall |
155 | be treated as the responsible party or parties for all purposes |
156 | of determining liability under ss. 376.011-376.21. |
157 | (8)(10) LIABILITY OF CARGO OWNERS.-The owner of a |
158 | pollutant transported as cargo on any vessel suffering a |
159 | discharge within state waters is liable for all cleanup costs |
160 | within the applicable vessel liability limits established under |
161 | this section, not paid for by the owner or operator of the |
162 | vessel. However, the cargo owner is not liable under this |
163 | subsection if the vessel owner, operator, or master is found in |
164 | compliance with the financial security requirements of this |
165 | section at the time of the discharge or fails to provide |
166 | certified notification of the cancellation or withdrawal of |
167 | financial security to the department and the cargo owner at |
168 | least 3 working days before the vessel entered state waters. |
169 | (9)(11) NOTIFICATION REQUIREMENTS FOR VESSELS AND TERMINAL |
170 | FACILITIES.-In addition to any civil penalties which may apply, |
171 | any person responsible who fails to give immediate notification |
172 | of a discharge to the department or the nearest Coast Guard |
173 | Marine Safety Office or National Response Center commits a |
174 | felony of the third degree, punishable as provided in s. |
175 | 775.082, s. 775.083, or s. 775.084. However, a discharge of 5 |
176 | gallons or less of gasoline or diesel from a vessel shall not |
177 | give rise to felony penalties for failure to comply with the |
178 | state notification requirements in this subsection. After |
179 | reporting a discharge, a vessel shall remain in the jurisdiction |
180 | of the department until such time as the department is able to |
181 | prove financial responsibility for the damages resulting from |
182 | the discharge. The master of a vessel that fails to remain in |
183 | the jurisdiction of the department for a reasonable time after |
184 | notice of a discharge commits a felony of the third degree, |
185 | punishable as provided in s. 775.082, s. 775.083, or s. 775.084. |
186 | The department shall not detain the vessel longer than 12 hours |
187 | after receiving proof of financial responsibility. The |
188 | department shall, by rule, require that the terminal facility |
189 | designate a person at the terminal facility as the person in |
190 | charge of that facility for the purposes specified by this |
191 | section. |
192 | Section 3. Paragraph (b) of subsection (7) of section |
193 | 376.09, Florida Statutes, is amended to read: |
194 | 376.09 Removal of prohibited discharges.- |
195 | (7) |
196 | (b) A responsible party may assert a claim against the |
197 | fund only if it under the following circumstances: |
198 | 1. A responsible party who complies with the requests of |
199 | the state and federal on-scene coordinators and later pleads and |
200 | proves a valid defense under s. 376.12 may assert a claim |
201 | against the fund, pursuant to s. 376.123, for reimbursement of |
202 | the reasonable costs expended for containment, abatement, or |
203 | removal. |
204 | 2. A responsible party who complies with the requests of |
205 | the state and federal on-scene coordinators and later pleads and |
206 | proves a valid limitation of liability under s. 376.12 may |
207 | assert a claim against the fund, pursuant to s. 376.123, for |
208 | reimbursement of the reasonable costs expended in excess of the |
209 | applicable limitation of liability. |
210 | 3. If the department has determined, pursuant to s. |
211 | 376.12(3)(b)2., that a particular request by a state or federal |
212 | on-scene coordinator for the responsible party's cooperation or |
213 | assistance was unreasonable, the responsible party may assert a |
214 | claim against the fund, pursuant to s. 376.123, for |
215 | reimbursement of the costs expended in complying with the |
216 | particular request. |
217 | Section 4. Section 376.205, Florida Statutes, is amended |
218 | to read: |
219 | 376.205 Individual cause of action for damages under ss. |
220 | 376.011-376.21.-The remedies in this act shall be deemed to be |
221 | cumulative and not exclusive. Nothing in this act shall require |
222 | pursuit of any claim against the fund as a condition precedent |
223 | to any remedy against a responsible party. Notwithstanding any |
224 | other provision of law, any person may bring a cause of action |
225 | against a responsible party in a court of competent jurisdiction |
226 | for damages, as defined in s. 376.031, resulting from a |
227 | discharge or other condition of pollution covered by ss. |
228 | 376.011-376.21. In any such suit, it shall not be necessary for |
229 | the person to plead or prove negligence in any form or manner. |
230 | Such person need only plead and prove the fact of the prohibited |
231 | discharge or other pollutive condition and that it occurred. The |
232 | only defenses to such cause of action shall be those specified |
233 | in s. 376.12(5)(7). The court, in issuing any final judgment in |
234 | such action, may award costs of litigation, including reasonable |
235 | attorney's and expert witness fees, to any party, whenever the |
236 | court determines such an award is in the public interest. |
237 | Section 5. This act shall take effect upon becoming a law. |