376.09 Removal of prohibited discharges. - Florida Statutes

376.09 Removal of prohibited discharges.

   (1) Any person discharging pollutants as prohibited by s. 376.041 shall immediately undertake to contain, remove, and abate the discharge to the department’s satisfaction. Notwithstanding the above requirement, the department may undertake the removal of the discharge and may contract and retain agents who shall operate under the direction of the department.

   (2) If the person causing a discharge, or the person in charge of facilities at which a discharge has taken place, fails to act, the department may arrange for the removal of the pollutant, except that if the pollutant was discharged into or upon the navigable waters of the United States, the department shall act in accordance with the national contingency plan for removal of such pollutant as established pursuant to the Federal Water Pollution Control Act, as amended, or other federal law, and the costs of removal incurred by the department shall be paid in accordance with the applicable provisions of federal law. Federal funds shall be used to the maximum extent possible prior to the expenditure of state funds.

   (3) In the event of discharge the source of which is unknown, any local discharge cleanup organization shall, upon the request of the department or its designee, immediately contain and remove the discharge. No action taken by any person to contain or remove a discharge, whether such action is taken voluntarily or at the request of the department or its designee, shall be construed as an admission of liability for the discharge.

   (4) No person who, voluntarily or at the request of the department or its designee, renders assistance in containing or removing pollutants shall be liable for any civil damages to third parties resulting solely from acts or omissions of such person in rendering such assistance, except for acts or omissions amounting to gross negligence or willful misconduct.

   (5) Notwithstanding the provisions in subsection (4), any person who is authorized by the department or the Federal Government or the person alleged to be responsible for the discharge, or by a designee thereof, to render assistance in containing or removing pollutants shall not be liable for costs, expenses, and damages, unless such costs, expenses, and damages are a proximate result of acts or omissions caused by gross negligence or willful misconduct of such authorized person.

   (6) Nothing in ss. 376.011-376.21 shall affect the right of any person to render assistance in containing or removing any pollutant or any rights which that person may have against any third party whose acts or omissions in any way have caused or contributed to the discharge of the pollutant.

   (7)(a) Any person, other than the responsible party, who renders assistance in containing or removing any pollutant may assert a claim against the fund, under s. 376.12, for reimbursement of the reasonable costs expended for containment, abatement, or removal, provided prior approval for such reimbursement is granted by the department. The department may, upon petition and for good cause shown, waive the prior-approval prerequisite.

   (b) A responsible party may assert a claim against the fund only under the following circumstances:

   1. A responsible party who complies with the requests of the state and federal on-scene coordinators and later pleads and proves a valid defense under s. 376.12 may assert a claim against the fund, pursuant to s. 376.123, for reimbursement of the reasonable costs expended for containment, abatement, or removal.

   2. A responsible party who complies with the requests of the state and federal on-scene coordinators and later pleads and proves a valid limitation of liability under s. 376.12 may assert a claim against the fund, pursuant to s. 376.123, for reimbursement of the reasonable costs expended in excess of the applicable limitation of liability.

   3. If the department has determined, pursuant to s. 376.12(3)(b)2., that a particular request by a state or federal on-scene coordinator for the responsible party’s cooperation or assistance was unreasonable, the responsible party may assert a claim against the fund, pursuant to s. 376.123, for reimbursement of the costs expended in complying with the particular request.

   (8) Notwithstanding any other provision of law, including provisions relating to discharge prohibitions or permit requirements, the federal on-scene coordinator or the department may authorize discharges in connection with activities related to removal of pollutants that have entered the waters of the state.

History. s. 8, ch. 70-244; s. 1, ch. 70-439; s. 9, ch. 74-336; s. 2, ch. 80-382; s. 16, ch. 90-54; s. 5, ch. 96-263.