Chapter 376 Section 308 - 2024 Florida Statutes

2024 Florida Statutes

Title XXVIII NATURAL RESOURCES; CONSERVATION, RECLAMATION, AND USE

Chapter 376 POLLUTANT DISCHARGE PREVENTION AND REMOVAL

SECTION 308Liabilities and defenses of facilities.

376.308 Liabilities and defenses of facilities.—

(1) In any suit instituted by the department under ss. 376.30-376.317, it is not necessary to plead or prove negligence in any form or matter. The department need only plead and prove that the prohibited discharge or other polluting condition has occurred. The following persons shall be liable to the department for any discharges or polluting condition:

(a) Any person who caused a discharge or other polluting condition or who owned or operated the facility, or the stationary tanks or the nonresidential location which constituted the facility, at the time the discharge occurred.

(b) In the case of a discharge of hazardous substances, all persons specified in s. 403.727(4).

(c) In the case of a discharge of petroleum, petroleum products, or drycleaning solvents, the owner of the facility, the drycleaning facility, or the wholesale supply facility, unless the owner can establish that he or she acquired title to property contaminated by the activities of a previous owner or operator or other third party, that he or she did not cause or contribute to the discharge, and that he or she did not know of the polluting condition at the time the owner acquired title. If the owner acquired title subsequent to July 1, 1992, or, in the case of a drycleaning facility or wholesale supply facility, subsequent to July 1, 1994, he or she must also 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. The court or hearing officer shall take into account any specialized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection. In an action relating to a discharge of petroleum, petroleum products, or drycleaning solvents under chapter 403, the defenses and definitions set forth herein shall apply.

(2) In addition to the defense described in paragraph (1)(c), the only other defenses of a person specified in subsection (1) are to plead and prove that the occurrence was solely the result of any of the following or any combination of the following:

(a) An act of war;

(b) An act of government, either state, federal, or local, unless the person claiming the defense is a governmental body, in which case the defense is available only by acts of other governmental bodies;

(c) An act of God, which means only an unforeseeable act exclusively occasioned by the violence of nature without the interference of any human agency; or

(d) An act or omission of a third party, other than an employee or agent of the defendant or other than one whose act or omission occurs in connection with a contractual relationship existing, directly or indirectly, with the defendant, except when the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier or by rail, and the defendant establishes by a preponderance of the evidence that:

1. The defendant exercised due care with respect to the pollutant concerned, taking into consideration the characteristics of such pollutant, in light of all relevant facts and circumstances.

2. The defendant took precautions against any foreseeable acts or omissions of any such third party and against the consequences that could foreseeably result from such acts or omissions.

(3) For purposes of this section, the following additional defenses shall apply to sites contaminated with petroleum or petroleum products:

(a) The defendant is a lender serving as a trustee, personal representative, or other type of fiduciary, provided the defendant did not otherwise cause or contribute to the discharge;

(b) The defendant is a lender which holds indicia of ownership in the site primarily to protect a security interest, and which has not divested the borrower of, or otherwise engaged in, decisionmaking control over site operations, particularly with respect to the storage, use, or disposal of petroleum or petroleum products, or which otherwise caused or contributed to the discharge; provided, that the financial institution may direct or compel the borrower to maintain compliance with environmental statutes and rules and may act to prevent or abate a discharge; or

(c) The defendant is a lender which held a security interest in the site and has foreclosed or otherwise acted to acquire title primarily to protect its security interest, and seeks to sell, transfer, or otherwise divest the assets for subsequent sale at the earliest possible time, taking all relevant facts and circumstances into account, and has not undertaken management activities beyond those necessary to protect its financial interest, to effectuate compliance with environmental statutes and rules, or to prevent or abate a discharge; however, if the facility is not eligible for cleanup pursuant to s. 376.305(6), s. 376.3071, or s. 376.3072, any funds expended by the department for cleanup of the property shall constitute a lien on the property against any subsequent sale after the amount of the former security interest (including the cost of collection, management, and sale) is satisfied.

(4) Liability pursuant to this chapter shall be joint and several. However, if more than one discharge occurred and the damage is divisible and may be attributed to a particular defendant or defendants, each defendant is liable only for the costs associated with his or her damages. The burden shall be on the defendant to demonstrate the divisibility of damages.

(5) Effective July 1, 1996, and operating retroactively to March 29, 1995, notwithstanding any other provision of law, judgment, consent order, order, or ordinance, no person who owns or operates a facility or who otherwise could be responsible for costs as a result of contamination eligible for restoration funding from the Inland Protection Trust Fund shall be subject to administrative or judicial action, brought by or on behalf of the state or any local government or any other person, to compel rehabilitation in advance of commitment of restoration funding in accordance with a site’s priority ranking pursuant to s. 376.3071(5)(a) or to pay for the costs of rehabilitation of environmental contamination resulting from a discharge of petroleum products that is eligible for restoration funding from the Inland Protection Trust Fund. For purposes of chapter 95, a cause of action to compel rehabilitation of environmental contamination at a facility resulting from a discharge of petroleum products that is eligible for restoration funding, or to compel payment of costs for environmental contamination resulting from a discharge of petroleum products that is eligible for restoration funding, shall not accrue until restoration funding can be committed to the facility or environmental contamination in accordance with the priority ranking. In the event of a new release, the facility operator shall be required to abate the source of the discharge. If free product is present, the operator shall notify the department, which may direct the removal of free product where prior approval of the scope of work and costs has been granted by the department. Nothing herein shall preclude any person from bringing civil action for damages or personal injury, not to include the cost of restoration or the compelling of restoration in advance of the state’s commitment of restoration funding in accordance with a site’s priority ranking pursuant to s. 376.3071(5)(a). The Legislature’s intent in establishing the limitations in this subsection is to recognize that on March 29, 1995, the Legislature enacted chapter 95-2, Laws of Florida.

(6) This section may not be construed to affect cleanup program eligibility under ss. 376.305(6), 376.3071, 376.3072, 376.3078, and 376.3079. Except as otherwise expressly provided in this chapter, nothing in this chapter shall affect, void, or defeat any immunity of any real property owner or nearby real property owner under s. 376.3078.

History.—s. 84, ch. 83-310; s. 11, ch. 84-338; s. 18, ch. 86-159; s. 10, ch. 92-30; s. 4, ch. 94-311; s. 8, ch. 94-355; s. 1019, ch. 95-148; s. 5, ch. 95-239; s. 11, ch. 96-277; s. 11, ch. 98-189; s. 5, ch. 2003-276; s. 66, ch. 2007-5; s. 90, ch. 2008-4.