Section 46.03.760. Civil action for pollution; damages.

   (a) A person who violates or causes or permits to be violated a provision of this chapter other than AS 46.03.250 - 46.03.313, or a provision of AS 46.04 or AS 46.09, or a regulation, a lawful order of the department, or a permit, approval, or acceptance, or term or condition of a permit, approval, or acceptance issued under this chapter or AS 46.04 or AS 46.09 is liable, in a civil action, to the state for a sum to be assessed by the court of not less than $500 nor more than $100,000 for the initial violation, nor more than $5,000 for each day after that on which the violation continues, and that shall reflect, when applicable,
        (1) reasonable compensation in the nature of liquidated damages for any adverse environmental effects caused by the violation, which shall be determined by the court according to the toxicity, degradability, and dispersal characteristics of the substance discharged, the sensitivity of the receiving environment, and the degree to which the discharge degrades existing environmental quality;
        (2) reasonable costs incurred by the state in detection, investigation, and attempted correction of the violation;
        (3) the economic savings realized by the person in not complying with the requirement for which a violation is charged.
   (b) Except as determined by the court under (e)(4) of this section, actions under this section may not be used for punitive purposes, and sums assessed by the court must be compensatory and remedial in nature.
   (c) The court, upon motion of the department or upon its own motion, may defer assessment of all or part of that portion of the sum imposed upon a person under (a)(3) of this section conditioned upon the person complying, within the shortest feasible time, with the requirement for which a violation is shown.
   (d) In addition to liability under (a) - (c) of this section, a person who violates or causes or permits to be violated a provision of AS 46.03.740 - 46.03.750 is liable to the state, in a civil action brought under AS 46.03.822, for the full amount of actual damages caused to the state by the violation, including
        (1) direct and indirect costs associated with the abatement, containment, or removal of the pollutant;
        (2) restoration of the environment to its former state;
        (3) amounts paid as grants under AS 29.60.510 - 29.60.599 and as emergency first response advances and reimbursements under AS 46.08.070(c); and
        (4) all incidental administrative costs.
   (e) A person who violates or causes or permits to be violated a provision of AS 46.03.250 - 46.03.313, 46.03.460 - 46.03.475, AS 46.14, or a regulation, a lawful order of the department, or a permit, approval, or acceptance, or term or condition of a permit, approval, or acceptance issued under AS 46.03.250 - 46.03.313, 46.03.460 - 46.03.475, AS 46.14, or under the program authorized by AS 46.03.020(12), is liable, in a civil action, to the state for a sum to be assessed by the court of not less than $500 nor more than $100,000 for the initial violation, nor more than $10,000 for each day after that on which the violation continues, and that shall reflect, when applicable,
        (1) reasonable compensation in the nature of liquidated damages for any adverse environmental effects caused by the violation, that shall be determined by the court according to the toxicity, degradability and dispersal characteristics of the substance discharged, the sensitivity of the receiving environment, and the degree to which the discharge degrades existing environmental quality; for a violation relating to AS 46.14, the court, in making its determination under this paragraph, shall also consider the degree to which the discharge causes harm to persons or property; for a violation of AS 46.03.463, the court, in making its determination under this paragraph, shall also consider the volume of the graywater, sewage, or other wastewater discharged; this paragraph may not be construed to limit the right of parties other than the state to recover for personal injuries or damage to their property;
        (2) reasonable costs incurred by the state in detection, investigation, and attempted correction of the violation;
        (3) the economic savings realized by the person in not complying with the requirement for which a violation is charged; and
        (4) the need for an enhanced civil penalty to deter future noncompliance.
   (f) An owner, agent, employee, or operator of a commercial passenger vessel, as defined in AS 43.52.295, who falsifies a registration or report required by AS 46.03.460 or 46.03.475 or who violates or causes or permits to be violated a provision of AS 46.03.250 - 46.03.314, 46.03.460 - 46.03.490, AS 46.14, or a regulation, a lawful order of the department, or a permit, approval, or acceptance, or term or condition of a permit, approval, or acceptance issued under AS 46.03.250 - 46.03.314, 46.03.460 - 46.03.490, or AS 46.14 is liable, in a civil action, to the state for a sum to be assessed by the court of not less than $5,000 nor more than $100,000 for the initial violation, nor more than $10,000 for each day after that on which the violation continues, and that shall reflect, when applicable,
        (1) reasonable compensation in the nature of liquidated damages for any adverse environmental effects caused by the violation, that shall be determined by the court according to the toxicity, degradability, and dispersal characteristics of the substance discharged, the sensitivity of the receiving environment, and the degree to which the discharge degrades existing environmental quality; for a violation relating to AS 46.14, the court, in making its determination under this paragraph, shall also consider the degree to which the discharge causes harm to persons or property; this paragraph may not be construed to limit the right of parties other than the state to recover for personal injuries or damage to their property;
        (2) reasonable costs incurred by the state in detection, investigation, and attempted correction of the violation;
        (3) the economic savings realized by the person in not complying with the requirement for which a violation is charged; and
        (4) the need for an enhanced civil penalty to deter future noncompliance.
   (g) As used in this section, "economic savings" means that sum which a person would be required to expend for the planning, acquisition, siting, construction, installation and operation of facilities necessary to effect compliance with the standard violated.

Authorities

46.03.482;46.03.758;46.03.759;46.03.761;46.04.010;46.04.030;46.04.040;46.08.070;46.14.255

Notes

Implemented As

18 AAC 52.100
18 AAC 75.290
18 AAC 75.910
18 AAC 78.940
18 AAC 90.225

References

18 AAC 52.100
18 AAC 75.290
18 AAC 75.605
18 AAC 75.910
AS 46.03.482 Commercial passenger vessel environmental compliance fund.
AS 46.03.758 Civil penalties for discharges of oil.
AS 46.03.759 Civil penalties for discharges of crude oil.
AS 46.03.761 Administrative penalties.
AS 46.04.010 Reimbursement for cleanup expenses.
AS 46.04.030 Oil discharge prevention and contingency plans.
AS 46.04.040 Proof of financial responsibility.
AS 46.08.070 Reimbursement for containment and cleanup.
AS 46.14.255 Interest and sanctions for nonpayment.

History

(Sec. 3 ch 120 SLA 1971; am Sec. 9 ch 220 SLA 1976; am Sec. 5 ch 266 SLA 1976; am Sec. 5, 6 ch 116 SLA 1980; am Sec. 5 - 7 ch 77 SLA 1984; am Sec. 9 ch 59 SLA 1986; am Sec. 8 ch 83 SLA 1991; am Sec. 16 ch 74 SLA 1993; am Sec. 3 ch 1 FSSLA 2001; am Sec. 14 ch 20 SLA 2002; am Sec. 8 ch 143 SLA 2004; am Sec. 9, 2006 Primary Election Ballot Measure No. 2)