376.305 Removal of prohibited discharges. - Florida Statutes

376.305 Removal of prohibited discharges.

   (1) Any person discharging a pollutant as prohibited by ss. 376.30-376.317 shall immediately undertake to contain, remove, and abate the discharge to the satisfaction of the department. However, such an undertaking to contain, remove, or abate a discharge shall not be deemed an admission of responsibility for the discharge by the person taking such action. Notwithstanding this 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 the discharge, or the person in charge of facilities at which the discharge has taken place, fails to act immediately, 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, and the costs of removal incurred by the department shall be paid in accordance with the applicable provisions of that law. Federal funds provided under that act shall be used to the maximum extent possible prior to the expenditure of state funds.

   (3) 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 any pollutant shall be liable for any civil damages to third parties resulting solely from the acts or omissions of such person in rendering such assistance, except for acts or omissions amounting to gross negligence or willful misconduct.

   (5) Nothing in ss. 376.30-376.317 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.

   (6) The Legislature created the Abandoned Tank Restoration Program in response to the need to provide financial assistance for cleanup of sites that have abandoned petroleum storage systems. For purposes of this subsection the term “abandoned petroleum storage system” shall mean any petroleum storage system that has not stored petroleum products for consumption, use, or sale since March 1, 1990. The department shall establish the Abandoned Tank Restoration Program to facilitate the restoration of sites contaminated by abandoned petroleum storage systems.

   (a) To be included in the program:

   1. An application must be submitted to the department by June 30, 1996, certifying that the system has not stored petroleum products for consumption, use, or sale at the facility since March 1, 1990.

   2. The owner or operator of the petroleum storage system when it was in service must have ceased conducting business involving consumption, use, or sale of petroleum products at that facility on or before March 1, 1990.

   3. The site is not otherwise eligible for the cleanup programs pursuant to s. 376.3071 or s. 376.3072.

   (b) In order to be eligible for the program, petroleum storage systems from which a discharge occurred must be closed in accordance with department rules prior to an eligibility determination. However, if the department determines that the owner of the facility is financially unable to comply with the department’s petroleum storage system closure requirements and all other eligibility requirements are met, the petroleum storage system closure requirements shall be waived. The department shall take into consideration the owner’s net worth and the economic impact on the owner in making the determination of the owner’s financial ability. The June 30, 1996, application deadline shall be waived for owners who are financially unable to comply.

   (c) Sites accepted in the program will be eligible for site rehabilitation funding as provided in s. 376.3071(12) or s. 376.30711, as appropriate.

   (d) The following sites are excluded from eligibility:

   1. Sites on property of the Federal Government;

   2. Sites contaminated by pollutants that are not petroleum products;

   3. Sites where the department has been denied site access; or

   4. Sites which are owned by any person who had knowledge of the polluting condition when title was acquired unless that person acquired title to the site after issuance of a notice of site eligibility by the department.

   (e) Participating sites are subject to a deductible as determined by rule, not to exceed $10,000.

The provisions of this subsection do not relieve any person who has acquired title subsequent to July 1, 1992, from the duty to establish by a preponderance of the evidence that he or she undertook, at the time of acquisition, all appropriate inquiry into the previous ownership and use of the property consistent with good commercial or customary practice in an effort to minimize liability, as required by s. 376.308(1)(c).

History. s. 84, ch. 83-310; s. 13, ch. 86-159; s. 12, ch. 90-98; s. 13, ch. 91-305; s. 6, ch. 92-30; s. 2, ch. 94-311; s. 1016, ch. 95-148; s. 4, ch. 96-277; s. 60, ch. 2007-5.