HB 17C

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.

CODING: Words stricken are deletions; words underlined are additions.