Section 46.03.758. Civil penalties for discharges of oil.

   (a) The legislature finds that
        (1) recent information discloses that the discharge of oil may cause significant short and long-term damage to the state's environment; even minute quantities of oil released to the environment may cause high mortalities among larval and juvenile forms of important commercial species, may affect salmon migration patterns, and may otherwise degrade and diminish the renewable resources of the state;
        (2) the exact nature and extent of oil pollution can be neither documented with certainty nor precisely quantified on a spill-by-spill basis; however, in light of the magnitude of harm which may be caused by oil discharges, and the vital importance of commercial, sport, and subsistence fishing, tourism, and the state's natural abundance and beauty to the economic future of the state and its quality of life, it is the judgment of the legislature that substantial civil penalties should be imposed for the discharge of oil in order to provide a meaningful incentive for the safe handling of oil and to insure that the public does not bear substantial losses from oil pollution for which, because of its subtle, long-term, or unquantifiable nature, compensation would not otherwise be received; and
        (3) the handling of oil in large quantities is a hazardous undertaking that poses a significant threat to the economy and environment of the state, which can be substantially reduced only by the taking of rigorous safety precautions involving considerable expense; conversely, persons handling oil in smaller amounts pose a correspondingly lower risk to the economy and environment of the state, and are capable of safe oil handling practices at correspondingly lower costs; in order to provide an incentive that is effective, but not punitive, it is necessary and appropriate that the assessment of civil penalties for discharges of small quantities of oil be left for case-by-case judicial determination, while ensuring, through the penalty provisions of this section, that the handling of oil in large quantities occurs in a manner that will not impair the renewable resources of the state.
   (b) No later than the 10th day after the convening of the Second Session of the Tenth Alaska Legislature, the department shall submit to the legislature regulations establishing the following schedule of fixed penalties for discharges of oil:
        (1) subject to (2) of this subsection, the penalties for the following categories of receiving environments may not exceed
             (A) $10 per gallon of oil which enters an anadromous stream or other freshwater environment with significant aquatic resources;
             (B) $2.50 per gallon of oil which enters an estuarine, intertidal or confined saltwater environment; and
             (C) $1 per gallon of oil which enters an unconfined saltwater environment, public land or freshwater environment without significant aquatic resources;
        (2) for discharges of oil that are caused by the gross negligence or intentional act of the discharger, or when the court finds that the discharger did not take reasonable measures to contain and clean up the discharged oil, the penalty shall be determined by multiplying the penalty established under (1) of this subsection by a factor of five.
   (c) Regulations adopted under (b) of this section shall become effective 60 days after submission to the legislature, unless disapproved by a special concurrent resolution introduced in either house, and concurred in by a majority of the members in joint session within 60 days of the submission of the regulations.  The department may periodically revise regulations adopted under (b) of this section. Revised regulations shall be submitted to the legislature no later than 10 days after the convening of the appropriate regular session of the legislature, and are subject to disapproval as specified in this subsection.
   (d) The schedule shall vary according to the toxicity, degradability and dispersal characteristics of the oil.  The schedule shall also vary according to the sensitivity and productivity of the receiving environment.  Variations under this subsection may be by subcategories of receiving environments, specific receiving environments, or both.  The maximum penalties established in (b) of this section shall apply to discharges in the most sensitive and productive of receiving environments within each category of receiving environment, and the penalty shall decrease for less productive or sensitive receiving environments.
   (e) If a discharge of oil in excess of 18,000 gallons not permitted under applicable state and federal law occurs within the territorial jurisdiction of the state, or into or upon the adjacent outer continental shelf of the state, the following persons, in addition to the person causing or permitting the discharge, are jointly and severally liable to the state, in a civil action, for the full amount of penalties established in the regulations adopted under this section:
        (1) if the discharge occurs from any commercial or industrial facility other than a vessel or offshore platform, the owner, lessee or permittee, and operator of the facility;
        (2) if the discharge occurs from a vessel,
             (A) the owner and operator of the vessel; and
             (B) the owner of the oil carried as cargo on the vessel at the time the vessel was loaded, if the loading occurred within the territorial jurisdiction of the state, or at a deep-water port or other offshore storage facility adjacent to the state; however, if the owner of the oil temporarily transfers ownership of the oil to another person, and the transfer has the purpose or effect of evading the vicarious liability imposed by this section, the transferor shall be considered the owner of the oil for the purposes of this subsection; and
        (3) if the discharge occurs from an offshore platform, the lessee or permittee of the tract or acreage upon which the platform is situated, and the operator of the platform.
   (f) The court shall deduct from the penalties for which the person charged is liable under (e) of this section that amount of oil which was removed from the environment as a result of a cleanup operation undertaken in conformity with applicable state and federal law, unless the oil was removed by an agency of state, local or federal government.  The dispersal of oil through the use of chemical agents or other means is not considered removal for the purposes of this subsection.  The court may estimate the amount of oil removed.
   (g) Except as provided in (f) and (j) of this section, the entire penalty specified in the regulations shall be imposed, except that a person who discharges oil into a receiving environment may demonstrate, by a preponderance of evidence, that mitigating circumstances relating to the effects of the discharge would make imposition of the full penalty inappropriate.  In determining whether mitigating circumstances exist, the court shall recognize that scientific knowledge pertaining to oil spills is very limited and if there is insufficient knowledge either to predict a base case or to show mitigating circumstances varying from that base case, the administratively established schedule of penalties shall apply.  If mitigating circumstances are proven by a preponderance of the evidence, the court may reduce or totally eliminate the penalty, in accordance with the purposes of this section.
   (h) A person otherwise liable for penalties under (e) of this section is not liable if the person demonstrates, by a preponderance of the evidence, that the discharge occurred solely as a result of
        (1) an act of God;
        (2) an act of a third person with intent to cause a discharge, unless the third person is a person with whom the person charged is made jointly and severally liable under (e)(1) - (3) of this section;
        (3) a negligent or intentional act of this state or the United States; or
        (4) an act of war.
   (i) Notwithstanding AS 46.03.875, a person liable under this section is not also liable for the discharge of oil under AS 46.03.760(a).  A person causing or permitting a discharge of oil of 18,000 gallons or less not permitted under applicable state or federal law is liable for that discharge under the penalty provisions of AS 46.03.760(a); however, the court may impose a penalty of less than $500 for the discharge.
   (j) The court may reduce the penalty imposed under this section if the person charged demonstrates, by a preponderance of the evidence, that the discharge was caused solely by a negligent act of a third person, unless the third person is a person with whom the person charged is made jointly and severally liable under (e)(1) - (3) of this section.
   (k)   [Repealed, Sec. 19 ch 59 SLA 1986].
   (l) In this section,
        (1) "adjacent outer continental shelf" means that portion of the outer continental shelf that would be within the territorial jurisdiction of the state if its boundaries were extended seaward to the outer margin of the outer continental shelf;
        (2) "confined saltwater environment" means a bay, sound, or other partially enclosed saltwater body in which flushing through tidal or current action is significantly restricted;
        (3) "discharge of oil" means the entry of oil into or upon the water or public land of the state, except oil discharges into an enclosed and impervious oil spill containment area, regardless of causation;
        (4) "intertidal" means the ocean area between highest high water and lowest low water of tidal action;
        (5) "offshore platform" means an offshore structure, whether floating or temporarily or permanently secured to the floor of the ocean or other water body, which is used primarily for the exploration for or production of oil or natural gas;
        (6) "oil" means petroleum and any substance refined from petroleum, except crude oil;
        (7) "operator" means the person who, through contract, lease, sublease, or otherwise, exerts general supervision and control of activities at the facility; the term includes, by way of example and not limitation, a prime or general contractor, the master of a vessel and the master's employer, or any other person who, personally or through an agent or contractor, undertakes the general functioning of the facility;
        (8) "vessel" means any form or manner of watercraft, whether or not capable of self-propulsion, except offshore platforms.

Authorities

46.03.763;46.03.770;46.04.030;46.04.040

Notes

Implemented As

18 AAC 75.605
18 AAC 75.610
18 AAC 75.620
18 AAC 75.630
18 AAC 75.640
18 AAC 75.650
18 AAC 75.660
18 AAC 75.670
18 AAC 78.940
18 AAC 78.995

References

18 AAC 75.605
18 AAC 75.610
18 AAC 75.620
18 AAC 75.630
18 AAC 75.640
18 AAC 75.650
18 AAC 75.660
18 AAC 75.670
18 AAC 78.940
AS 46.03.763 Attorney fees and costs.
AS 46.03.770 Detention of vessel without warrant as security for damages.
AS 46.04.030 Oil discharge prevention and contingency plans.
AS 46.04.040 Proof of financial responsibility.

History

(Sec. 1 ch 129 SLA 1977; am Sec. 1 - 3 ch 128 SLA 1978; am Sec. 110 ch 59 SLA 1982; am Sec. 19 ch 59 SLA 1986; am Sec. 1, 2 ch 41 SLA 1989)