8670.56.5. (a) A responsible party, as defined in Section 8670.3,
shall be absolutely liable without regard to fault for any damages
incurred by any injured party that arise out of, or are caused by a
spill or inland spill.
(b) A responsible person is not liable to an injured party under
this section for any of the following:
(1) Damages, other than costs of removal incurred by the state or
a local government, caused solely by any act of war, hostilities,
civil war, or insurrection or by an unanticipated grave natural
disaster or other act of God of an exceptional, inevitable, and
irresistible character, which could not have been prevented or
avoided by the exercise of due care or foresight.
(2) Damages caused solely by the negligence or intentional
malfeasance of that injured party.
(3) Damages caused solely by the criminal act of a third party
other than the defendant or an agent or employee of the defendant.
(4) Natural seepage not caused by a responsible party.
(5) Discharge or leaking of oil or natural gas from a private
pleasure boat or vessel.
(6) Damages that arise out of, or are caused by, a discharge that
is authorized by a state or federal permit.
(c) The defenses provided in subdivision (b) shall not be
available to a responsible person who fails to comply with Sections
8670.25, 8670.25.5, 8670.27, and 8670.62.
(d) Upon motion and sufficient showing by a party deemed to be
responsible under this section, the court shall join to the action
any other party who may be responsible under this section.
(e) In determining whether a party is a responsible party under
this section, the court shall consider the results of chemical or
other scientific tests conducted to determine whether oil or other
substances produced, discharged, or controlled by the defendant
matches the oil or other substance that caused the damage to the
injured party. The defendant shall have the burden of producing the
results of tests of samples of the substance that caused the injury
and of substances for which the defendant is responsible, unless it
is not possible to conduct the tests because of unavailability of
samples to test or because the substance is not one for which
reliable tests have been developed. At the request of a party, any
other party shall provide samples of oil or other substances within
its possession or control for testing.
(f) The court may award reasonable costs of the suit, attorneys'
fees, and the costs of necessary expert witnesses to a prevailing
plaintiff. The court may award reasonable costs of the suit and
attorneys' fees to a prevailing defendant if the court finds that the
plaintiff commenced or prosecuted the suit under this section in bad
faith or solely for purposes of harassing the defendant.
(g) This section does not prohibit a person from bringing an
action for damages caused by oil or by exploration, under any other
provision or principle of law, including, but not limited to, common
law. However, damages shall not be awarded pursuant to this section
to an injured party for loss or injury for which the party is or has
been awarded damages under any other provision or principle of law.
Subdivision (b) does not create a defense not otherwise available
regarding an action brought under any other provision or principle of
law, including, but not limited to, common law.
(h) Damages for which responsible parties are liable under this
section include the following:
(1) All costs of response, containment, cleanup, removal, and
treatment, including, but not limited to, monitoring and
administration costs incurred pursuant to the California oil spill
contingency plan or actions taken pursuant to directions by the
administrator.
(2) Injury to, or economic losses resulting from destruction of or
injury to, real or personal property, which shall be recoverable by
any claimant who has an ownership or leasehold interest in property.
(3) Injury to, destruction of or loss of, natural resources,
including, but not limited to, the reasonable costs of rehabilitating
wildlife, habitat, and other resources and the reasonable costs of
assessing that injury, destruction, or loss, in an action brought by
the state, a county, city, or district. Damages for the loss of
natural resources may be determined by any reasonable method,
including, but not limited to, determination according to the costs
of restoring the lost resource.
(4) Loss of subsistence use of natural resources, which shall be
recoverable by a claimant who so uses natural resources that have
been injured, destroyed, or lost.
(5) Loss of taxes, royalties, rents, or net profit shares caused
by the injury, destruction, loss, or impairment of use of real
property, personal property, or natural resources.
(6) Loss of profits or impairment of earning capacity due to the
injury, destruction, or loss of real property, personal property, or
natural resources, which shall be recoverable by any claimant who
derives at least 25 percent of his or her earnings from the
activities that utilize the property or natural resources, or, if
those activities are seasonal in nature, 25 percent of his or her
earnings during the applicable season.
(7) Loss of use and enjoyment of natural resources, public
beaches, and other public resources or facilities, in an action
brought by the state, a county, city, or district.
(i) Except as provided in Section 1431.2 of the Civil Code,
liability under this section shall be joint and several. However,
this section does not bar a cause of action that a responsible party
has or would have, by reason of subrogation or otherwise, against a
person.
(j) This section does not apply to claims for damages for personal
injury or wrongful death, and does not limit the right of a person
to bring an action for personal injury or wrongful death under any
provision or principle of law.
(k) Payments made by a responsible party to cover liabilities
arising from a discharge of oil, whether under this division or any
other provision of federal, state, or local law, shall not be charged
against royalties, rents, or net profits owed to the United States,
the state, or any other public entity.
(l) An action that a private or public individual or entity may
have against a responsible party under this section may be brought
directly by the individual or entity or by the state on behalf of the
individual or entity. However, the state shall not pursue an action
on behalf of a private individual or entity that requests the state
not to pursue that action.
(m) For the purposes of this section, "vessels" means vessels as
defined in Section 21 of the Harbors and Navigation Code.
8670.56.6. (a) (1) Except as provided in subdivisions (b) and (d),
and subject to subdivision (c), no person, including, but not limited
to, an oil spill cooperative, its agents, subcontractors, or
employees, shall be liable under this chapter or the laws of the
state to any person for costs, damages, or other claims or expenses
as a result of actions taken or omitted in good faith in the course
of rendering care, assistance, or advice in accordance with the
National Contingency Plan, the California oil spill contingency plan,
or at the direction of the administrator, onsite coordinator, or the
Coast Guard in response to a spill or threatened spill of oil.
(2) The qualified immunity under this section shall not apply to
any oil spill response action that is inconsistent with the
following:
(A) The directions of the unified command, consisting of at least
the Coast Guard and the administrator.
(B) In the absence of a unified command, the directions of the
administrator pursuant to Section 8670.27.
(C) In the absence of directions pursuant to subparagraph (A) or
(B), applicable oil spill contingency plans implemented under this
division.
(3) Nothing in this section shall, in any manner or respect,
affect or impair any cause of action against or any liability of any
person or persons responsible for the spill, for the discharged oil,
or for the vessel, terminal, pipeline, or facility from which the oil
was discharged. The responsible person or persons shall remain
liable for any and all damages arising from the discharge, including
damages arising from improperly carried out response efforts, as
otherwise provided by law.
(b) Nothing in this section shall, in any manner or respect,
affect or impair any cause of action against or any liability of any
party or parties responsible for the spill, or the responsible party'
s agents, employees, or subcontractors, except persons immunized
under subdivision (a) for response efforts, for the discharged oil,
or for the vessel, terminal, pipeline, or marine facility from which
the oil was discharged.
(c) The responsible party or parties shall be subject to both of
the following:
(1) Notwithstanding subdivision (b) or (i) of Section 8670.56.5,
or any other provision of law, be strictly and jointly and severally
liable for all damages arising pursuant to subdivision (h) of Section
8670.56.5 from the response efforts of its agents, employees,
subcontractors, or an oil spill cooperative of which it is a member
or with which it has a contract or other arrangement for cleanup of
its oil spills, unless it would have a defense to the original spill.
(2) Remain strictly liable for any and all damages arising from
the response efforts of a person other than a person specified in
paragraph (1).
(d) Nothing in this section shall immunize a cooperative or any
other person from liability for acts of gross negligence or willful
misconduct in connection with the cleanup of a spill.
(e) This section does not apply to any action for personal injury
or wrongful death.
(f) As used in this section, a "cooperative" means an organization
of private persons which is established for the primary purpose and
activity of preventing or rendering care, assistance, or advice in
response to a spill or threatened spill.
(g) Except for the responsible party, membership in a cooperative
shall not, in and of itself, be grounds for liability resulting from
cleanup activities of the cooperative.
(h) For purposes of this section, there shall be a rebuttable
presumption that an act or omission described in subdivision (a) was
taken in good faith.
(i) In any situation in which immunity is granted pursuant to
subdivision (a) and a responsible party is not liable, is not liable
for noneconomic damages caused by another, or is partially or totally
insolvent, the fund provided for in Article 7 (commencing with
Section 8670.46) shall, in accordance with its terms, reimburse
claims of any injured party for which a person who is granted
immunity pursuant to this section would otherwise be liable.
(j) (1) The immunity granted by this section shall only apply to
response efforts that are undertaken after the administrator
certifies that contracts with qualified and responsible persons are
in place to ensure an adequate and expeditious response to any
foreseeable oil spill that may occur in marine waters for which the
responsible party (A) cannot be identified or (B) is unable or
unwilling to respond, contain, and clean up the oil spill in an
adequate and timely manner. In negotiating these contracts, the
administrator shall, to the maximum extent practicable, procure the
services of persons who are willing to respond to oil spills with no,
or lesser, immunity than that conferred by this section, but, in no
event, a greater immunity. The administrator shall make the
certification required by this subdivision on an annual basis. Upon
certification, the immunity conferred by this section shall apply to
all response efforts undertaken during the calendar year to which the
certification applies. In the absence of the certification required
by this subdivision, the immunity conferred by this section shall not
attach to any response efforts undertaken by any person in marine
waters.
(2) In addition to the authority to negotiate contracts described
in paragraph (1), the administrator may also negotiate and enter into
indemnification agreements with qualified and financially
responsible persons to respond to oil spills that may occur in marine
waters for which the responsible party (A) cannot be identified or
(B) is unable or unwilling to respond, contain, and clean up the oil
spill in an adequate and timely manner.
(3) The administrator may indemnify response contractors for (A)
all damages payable by means of settlement or judgment that arise
from response efforts to which the immunity conferred by this section
would otherwise apply, and (B) reasonably related legal costs and
expenses incurred by the responder, provided that indemnification
shall only apply to response efforts undertaken after the expiration
of any immunity that may exist as the result of the contract
negotiations authorized in this subdivision. In negotiating these
contracts, the administrator shall, to the maximum extent
practicable, procure the services of persons who are willing to
respond to oil spills with no, or as little, right to indemnification
as possible. All indemnification shall be paid by the administrator
from the Oil Spill Response Trust Fund.
(4) (A) The contracts required by this section, and any other
contracts entered into by the administrator for response,
containment, or cleanup of an existing spill, the payment of which is
to be made from the Oil Spill Response Trust Fund created pursuant
to Section 8670.46, or for response to an imminent threat of a spill,
the payment of which is to be made out of the Oil Spill Prevention
and Administration Fund created pursuant to Section 8670.38, shall be
exempt from Part 2 (commencing with Section 10100) of Division 2 of
the Public Contract Code and Article 6 (commencing with Section 999)
of Chapter 6 of Division 4 of the Military and Veterans Code.
(B) The exemption specified in subparagraph (A) applies only to
contracts for which the services are used for a period of less than
90 days, cumulatively, per year.
(C) This paragraph shall not be construed as limiting the
administrator's authority to exercise the emergency powers granted
pursuant to subdivision (c) of Section 8670.62, including the
authority to enter into emergency contracts that are exempt from
approval by the Department of General Services.
(k) (1) With regard to a person who is regularly engaged in the
business of responding to oil spills, the immunity conferred by this
section shall not apply to any response efforts by that person that
occur later than 60 days after the first day the person's response
efforts commence.
(2) Notwithstanding the limitation contained in paragraph (1), the
administrator may, upon making all the following findings, extend
the period of time, not to exceed 30 days, during which the immunity
conferred by this section applies to response efforts:
(A) Due to inadequate or incomplete containment and stabilization,
there exists a substantial probability that the size of the spill
will significantly expand and (i) threaten previously uncontaminated
marine or land resources, (ii) threaten already contaminated marine
or land resources with substantial additional contamination, or (iii)
otherwise endanger the public health and safety or harm the
environment.
(B) The remaining work is of a difficult or perilous nature that
extension of the immunity is clearly in the public interest.
(C) No other qualified and financially responsible contractor is
prepared and willing to complete the response effort in the absence
of the immunity, or a lesser immunity, as negotiated by contract.
(3) The administrator shall provide five days' notice of his or
her proposed decision to either extend, or not extend, the immunity
conferred by this section. Interested parties shall be given an
opportunity to present oral and written evidence at an informal
hearing. In making his or her proposed decision, the administrator
shall specifically seek and consider the advice of the relevant Coast
Guard representative. The administrator's decision to not extend the
immunity shall be announced at least 10 working days before the
expiration of the immunity to provide persons an opportunity to
terminate their response efforts as contemplated by paragraph (4).
(4) No person or their agents, subcontractors, or employees shall
incur any liability under this chapter or any other provision of law
solely as a result of that person's decision to terminate their
response efforts because of the expiration of the immunity conferred
by this section. A person's decision to terminate response efforts
because of the expiration of the immunity conferred by this section
shall not in any manner impair, curtail, limit, or otherwise affect
the immunity conferred on the person with regard to the person's
response efforts undertaken during the period of time the immunity
applied to those response efforts.
(5) The immunity granted under this section shall attach, without
the limitation contained in this subdivision, to the response efforts
of any person who is not regularly engaged in the business of
responding to oil spills. A person who is not regularly engaged in
the business of responding to oil spills includes, but is not limited
to, (A) a person who is primarily dedicated to the preservation and
rehabilitation of wildlife and (B) a person who derives his or her
livelihood primarily from fishing.
(l) As used in this section, "response efforts" means rendering
care, assistance, or advice in accordance with the National
Contingency Plan, the California oil spill contingency plan, or at
the direction of the administrator, onsite coordinator, or the Coast
Guard in response to a spill or threatened spill into marine waters.
8670.56.5. (a) A responsible party, as defined in Section 8670.3,
shall be absolutely liable without regard to fault for any damages
incurred by any injured party that arise out of, or are caused by a
spill or inland spill.
(b) A responsible person is not liable to an injured party under
this section for any of the following:
(1) Damages, other than costs of removal incurred by the state or
a local government, caused solely by any act of war, hostilities,
civil war, or insurrection or by an unanticipated grave natural
disaster or other act of God of an exceptional, inevitable, and
irresistible character, which could not have been prevented or
avoided by the exercise of due care or foresight.
(2) Damages caused solely by the negligence or intentional
malfeasance of that injured party.
(3) Damages caused solely by the criminal act of a third party
other than the defendant or an agent or employee of the defendant.
(4) Natural seepage not caused by a responsible party.
(5) Discharge or leaking of oil or natural gas from a private
pleasure boat or vessel.
(6) Damages that arise out of, or are caused by, a discharge that
is authorized by a state or federal permit.
(c) The defenses provided in subdivision (b) shall not be
available to a responsible person who fails to comply with Sections
8670.25, 8670.25.5, 8670.27, and 8670.62.
(d) Upon motion and sufficient showing by a party deemed to be
responsible under this section, the court shall join to the action
any other party who may be responsible under this section.
(e) In determining whether a party is a responsible party under
this section, the court shall consider the results of chemical or
other scientific tests conducted to determine whether oil or other
substances produced, discharged, or controlled by the defendant
matches the oil or other substance that caused the damage to the
injured party. The defendant shall have the burden of producing the
results of tests of samples of the substance that caused the injury
and of substances for which the defendant is responsible, unless it
is not possible to conduct the tests because of unavailability of
samples to test or because the substance is not one for which
reliable tests have been developed. At the request of a party, any
other party shall provide samples of oil or other substances within
its possession or control for testing.
(f) The court may award reasonable costs of the suit, attorneys'
fees, and the costs of necessary expert witnesses to a prevailing
plaintiff. The court may award reasonable costs of the suit and
attorneys' fees to a prevailing defendant if the court finds that the
plaintiff commenced or prosecuted the suit under this section in bad
faith or solely for purposes of harassing the defendant.
(g) This section does not prohibit a person from bringing an
action for damages caused by oil or by exploration, under any other
provision or principle of law, including, but not limited to, common
law. However, damages shall not be awarded pursuant to this section
to an injured party for loss or injury for which the party is or has
been awarded damages under any other provision or principle of law.
Subdivision (b) does not create a defense not otherwise available
regarding an action brought under any other provision or principle of
law, including, but not limited to, common law.
(h) Damages for which responsible parties are liable under this
section include the following:
(1) All costs of response, containment, cleanup, removal, and
treatment, including, but not limited to, monitoring and
administration costs incurred pursuant to the California oil spill
contingency plan or actions taken pursuant to directions by the
administrator.
(2) Injury to, or economic losses resulting from destruction of or
injury to, real or personal property, which shall be recoverable by
any claimant who has an ownership or leasehold interest in property.
(3) Injury to, destruction of or loss of, natural resources,
including, but not limited to, the reasonable costs of rehabilitating
wildlife, habitat, and other resources and the reasonable costs of
assessing that injury, destruction, or loss, in an action brought by
the state, a county, city, or district. Damages for the loss of
natural resources may be determined by any reasonable method,
including, but not limited to, determination according to the costs
of restoring the lost resource.
(4) Loss of subsistence use of natural resources, which shall be
recoverable by a claimant who so uses natural resources that have
been injured, destroyed, or lost.
(5) Loss of taxes, royalties, rents, or net profit shares caused
by the injury, destruction, loss, or impairment of use of real
property, personal property, or natural resources.
(6) Loss of profits or impairment of earning capacity due to the
injury, destruction, or loss of real property, personal property, or
natural resources, which shall be recoverable by any claimant who
derives at least 25 percent of his or her earnings from the
activities that utilize the property or natural resources, or, if
those activities are seasonal in nature, 25 percent of his or her
earnings during the applicable season.
(7) Loss of use and enjoyment of natural resources, public
beaches, and other public resources or facilities, in an action
brought by the state, a county, city, or district.
(i) Except as provided in Section 1431.2 of the Civil Code,
liability under this section shall be joint and several. However,
this section does not bar a cause of action that a responsible party
has or would have, by reason of subrogation or otherwise, against a
person.
(j) This section does not apply to claims for damages for personal
injury or wrongful death, and does not limit the right of a person
to bring an action for personal injury or wrongful death under any
provision or principle of law.
(k) Payments made by a responsible party to cover liabilities
arising from a discharge of oil, whether under this division or any
other provision of federal, state, or local law, shall not be charged
against royalties, rents, or net profits owed to the United States,
the state, or any other public entity.
(l) An action that a private or public individual or entity may
have against a responsible party under this section may be brought
directly by the individual or entity or by the state on behalf of the
individual or entity. However, the state shall not pursue an action
on behalf of a private individual or entity that requests the state
not to pursue that action.
(m) For the purposes of this section, "vessels" means vessels as
defined in Section 21 of the Harbors and Navigation Code.
8670.56.6. (a) (1) Except as provided in subdivisions (b) and (d),
and subject to subdivision (c), no person, including, but not limited
to, an oil spill cooperative, its agents, subcontractors, or
employees, shall be liable under this chapter or the laws of the
state to any person for costs, damages, or other claims or expenses
as a result of actions taken or omitted in good faith in the course
of rendering care, assistance, or advice in accordance with the
National Contingency Plan, the California oil spill contingency plan,
or at the direction of the administrator, onsite coordinator, or the
Coast Guard in response to a spill or threatened spill of oil.
(2) The qualified immunity under this section shall not apply to
any oil spill response action that is inconsistent with the
following:
(A) The directions of the unified command, consisting of at least
the Coast Guard and the administrator.
(B) In the absence of a unified command, the directions of the
administrator pursuant to Section 8670.27.
(C) In the absence of directions pursuant to subparagraph (A) or
(B), applicable oil spill contingency plans implemented under this
division.
(3) Nothing in this section shall, in any manner or respect,
affect or impair any cause of action against or any liability of any
person or persons responsible for the spill, for the discharged oil,
or for the vessel, terminal, pipeline, or facility from which the oil
was discharged. The responsible person or persons shall remain
liable for any and all damages arising from the discharge, including
damages arising from improperly carried out response efforts, as
otherwise provided by law.
(b) Nothing in this section shall, in any manner or respect,
affect or impair any cause of action against or any liability of any
party or parties responsible for the spill, or the responsible party'
s agents, employees, or subcontractors, except persons immunized
under subdivision (a) for response efforts, for the discharged oil,
or for the vessel, terminal, pipeline, or marine facility from which
the oil was discharged.
(c) The responsible party or parties shall be subject to both of
the following:
(1) Notwithstanding subdivision (b) or (i) of Section 8670.56.5,
or any other provision of law, be strictly and jointly and severally
liable for all damages arising pursuant to subdivision (h) of Section
8670.56.5 from the response efforts of its agents, employees,
subcontractors, or an oil spill cooperative of which it is a member
or with which it has a contract or other arrangement for cleanup of
its oil spills, unless it would have a defense to the original spill.
(2) Remain strictly liable for any and all damages arising from
the response efforts of a person other than a person specified in
paragraph (1).
(d) Nothing in this section shall immunize a cooperative or any
other person from liability for acts of gross negligence or willful
misconduct in connection with the cleanup of a spill.
(e) This section does not apply to any action for personal injury
or wrongful death.
(f) As used in this section, a "cooperative" means an organization
of private persons which is established for the primary purpose and
activity of preventing or rendering care, assistance, or advice in
response to a spill or threatened spill.
(g) Except for the responsible party, membership in a cooperative
shall not, in and of itself, be grounds for liability resulting from
cleanup activities of the cooperative.
(h) For purposes of this section, there shall be a rebuttable
presumption that an act or omission described in subdivision (a) was
taken in good faith.
(i) In any situation in which immunity is granted pursuant to
subdivision (a) and a responsible party is not liable, is not liable
for noneconomic damages caused by another, or is partially or totally
insolvent, the fund provided for in Article 7 (commencing with
Section 8670.46) shall, in accordance with its terms, reimburse
claims of any injured party for which a person who is granted
immunity pursuant to this section would otherwise be liable.
(j) (1) The immunity granted by this section shall only apply to
response efforts that are undertaken after the administrator
certifies that contracts with qualified and responsible persons are
in place to ensure an adequate and expeditious response to any
foreseeable oil spill that may occur in marine waters for which the
responsible party (A) cannot be identified or (B) is unable or
unwilling to respond, contain, and clean up the oil spill in an
adequate and timely manner. In negotiating these contracts, the
administrator shall, to the maximum extent practicable, procure the
services of persons who are willing to respond to oil spills with no,
or lesser, immunity than that conferred by this section, but, in no
event, a greater immunity. The administrator shall make the
certification required by this subdivision on an annual basis. Upon
certification, the immunity conferred by this section shall apply to
all response efforts undertaken during the calendar year to which the
certification applies. In the absence of the certification required
by this subdivision, the immunity conferred by this section shall not
attach to any response efforts undertaken by any person in marine
waters.
(2) In addition to the authority to negotiate contracts described
in paragraph (1), the administrator may also negotiate and enter into
indemnification agreements with qualified and financially
responsible persons to respond to oil spills that may occur in marine
waters for which the responsible party (A) cannot be identified or
(B) is unable or unwilling to respond, contain, and clean up the oil
spill in an adequate and timely manner.
(3) The administrator may indemnify response contractors for (A)
all damages payable by means of settlement or judgment that arise
from response efforts to which the immunity conferred by this section
would otherwise apply, and (B) reasonably related legal costs and
expenses incurred by the responder, provided that indemnification
shall only apply to response efforts undertaken after the expiration
of any immunity that may exist as the result of the contract
negotiations authorized in this subdivision. In negotiating these
contracts, the administrator shall, to the maximum extent
practicable, procure the services of persons who are willing to
respond to oil spills with no, or as little, right to indemnification
as possible. All indemnification shall be paid by the administrator
from the Oil Spill Response Trust Fund.
(4) (A) The contracts required by this section, and any other
contracts entered into by the administrator for response,
containment, or cleanup of an existing spill, the payment of which is
to be made from the Oil Spill Response Trust Fund created pursuant
to Section 8670.46, or for response to an imminent threat of a spill,
the payment of which is to be made out of the Oil Spill Prevention
and Administration Fund created pursuant to Section 8670.38, shall be
exempt from Part 2 (commencing with Section 10100) of Division 2 of
the Public Contract Code and Article 6 (commencing with Section 999)
of Chapter 6 of Division 4 of the Military and Veterans Code.
(B) The exemption specified in subparagraph (A) applies only to
contracts for which the services are used for a period of less than
90 days, cumulatively, per year.
(C) This paragraph shall not be construed as limiting the
administrator's authority to exercise the emergency powers granted
pursuant to subdivision (c) of Section 8670.62, including the
authority to enter into emergency contracts that are exempt from
approval by the Department of General Services.
(k) (1) With regard to a person who is regularly engaged in the
business of responding to oil spills, the immunity conferred by this
section shall not apply to any response efforts by that person that
occur later than 60 days after the first day the person's response
efforts commence.
(2) Notwithstanding the limitation contained in paragraph (1), the
administrator may, upon making all the following findings, extend
the period of time, not to exceed 30 days, during which the immunity
conferred by this section applies to response efforts:
(A) Due to inadequate or incomplete containment and stabilization,
there exists a substantial probability that the size of the spill
will significantly expand and (i) threaten previously uncontaminated
marine or land resources, (ii) threaten already contaminated marine
or land resources with substantial additional contamination, or (iii)
otherwise endanger the public health and safety or harm the
environment.
(B) The remaining work is of a difficult or perilous nature that
extension of the immunity is clearly in the public interest.
(C) No other qualified and financially responsible contractor is
prepared and willing to complete the response effort in the absence
of the immunity, or a lesser immunity, as negotiated by contract.
(3) The administrator shall provide five days' notice of his or
her proposed decision to either extend, or not extend, the immunity
conferred by this section. Interested parties shall be given an
opportunity to present oral and written evidence at an informal
hearing. In making his or her proposed decision, the administrator
shall specifically seek and consider the advice of the relevant Coast
Guard representative. The administrator's decision to not extend the
immunity shall be announced at least 10 working days before the
expiration of the immunity to provide persons an opportunity to
terminate their response efforts as contemplated by paragraph (4).
(4) No person or their agents, subcontractors, or employees shall
incur any liability under this chapter or any other provision of law
solely as a result of that person's decision to terminate their
response efforts because of the expiration of the immunity conferred
by this section. A person's decision to terminate response efforts
because of the expiration of the immunity conferred by this section
shall not in any manner impair, curtail, limit, or otherwise affect
the immunity conferred on the person with regard to the person's
response efforts undertaken during the period of time the immunity
applied to those response efforts.
(5) The immunity granted under this section shall attach, without
the limitation contained in this subdivision, to the response efforts
of any person who is not regularly engaged in the business of
responding to oil spills. A person who is not regularly engaged in
the business of responding to oil spills includes, but is not limited
to, (A) a person who is primarily dedicated to the preservation and
rehabilitation of wildlife and (B) a person who derives his or her
livelihood primarily from fishing.
(l) As used in this section, "response efforts" means rendering
care, assistance, or advice in accordance with the National
Contingency Plan, the California oil spill contingency plan, or at
the direction of the administrator, onsite coordinator, or the Coast
Guard in response to a spill or threatened spill into marine waters.
8670.56.5. (a) A responsible party, as defined in Section 8670.3,
shall be absolutely liable without regard to fault for any damages
incurred by any injured party that arise out of, or are caused by a
spill or inland spill.
(b) A responsible person is not liable to an injured party under
this section for any of the following:
(1) Damages, other than costs of removal incurred by the state or
a local government, caused solely by any act of war, hostilities,
civil war, or insurrection or by an unanticipated grave natural
disaster or other act of God of an exceptional, inevitable, and
irresistible character, which could not have been prevented or
avoided by the exercise of due care or foresight.
(2) Damages caused solely by the negligence or intentional
malfeasance of that injured party.
(3) Damages caused solely by the criminal act of a third party
other than the defendant or an agent or employee of the defendant.
(4) Natural seepage not caused by a responsible party.
(5) Discharge or leaking of oil or natural gas from a private
pleasure boat or vessel.
(6) Damages that arise out of, or are caused by, a discharge that
is authorized by a state or federal permit.
(c) The defenses provided in subdivision (b) shall not be
available to a responsible person who fails to comply with Sections
8670.25, 8670.25.5, 8670.27, and 8670.62.
(d) Upon motion and sufficient showing by a party deemed to be
responsible under this section, the court shall join to the action
any other party who may be responsible under this section.
(e) In determining whether a party is a responsible party under
this section, the court shall consider the results of chemical or
other scientific tests conducted to determine whether oil or other
substances produced, discharged, or controlled by the defendant
matches the oil or other substance that caused the damage to the
injured party. The defendant shall have the burden of producing the
results of tests of samples of the substance that caused the injury
and of substances for which the defendant is responsible, unless it
is not possible to conduct the tests because of unavailability of
samples to test or because the substance is not one for which
reliable tests have been developed. At the request of a party, any
other party shall provide samples of oil or other substances within
its possession or control for testing.
(f) The court may award reasonable costs of the suit, attorneys'
fees, and the costs of necessary expert witnesses to a prevailing
plaintiff. The court may award reasonable costs of the suit and
attorneys' fees to a prevailing defendant if the court finds that the
plaintiff commenced or prosecuted the suit under this section in bad
faith or solely for purposes of harassing the defendant.
(g) This section does not prohibit a person from bringing an
action for damages caused by oil or by exploration, under any other
provision or principle of law, including, but not limited to, common
law. However, damages shall not be awarded pursuant to this section
to an injured party for loss or injury for which the party is or has
been awarded damages under any other provision or principle of law.
Subdivision (b) does not create a defense not otherwise available
regarding an action brought under any other provision or principle of
law, including, but not limited to, common law.
(h) Damages for which responsible parties are liable under this
section include the following:
(1) All costs of response, containment, cleanup, removal, and
treatment, including, but not limited to, monitoring and
administration costs incurred pursuant to the California oil spill
contingency plan or actions taken pursuant to directions by the
administrator.
(2) Injury to, or economic losses resulting from destruction of or
injury to, real or personal property, which shall be recoverable by
any claimant who has an ownership or leasehold interest in property.
(3) Injury to, destruction of or loss of, natural resources,
including, but not limited to, the reasonable costs of rehabilitating
wildlife, habitat, and other resources and the reasonable costs of
assessing that injury, destruction, or loss, in an action brought by
the state, a county, city, or district. Damages for the loss of
natural resources may be determined by any reasonable method,
including, but not limited to, determination according to the costs
of restoring the lost resource.
(4) Loss of subsistence use of natural resources, which shall be
recoverable by a claimant who so uses natural resources that have
been injured, destroyed, or lost.
(5) Loss of taxes, royalties, rents, or net profit shares caused
by the injury, destruction, loss, or impairment of use of real
property, personal property, or natural resources.
(6) Loss of profits or impairment of earning capacity due to the
injury, destruction, or loss of real property, personal property, or
natural resources, which shall be recoverable by any claimant who
derives at least 25 percent of his or her earnings from the
activities that utilize the property or natural resources, or, if
those activities are seasonal in nature, 25 percent of his or her
earnings during the applicable season.
(7) Loss of use and enjoyment of natural resources, public
beaches, and other public resources or facilities, in an action
brought by the state, a county, city, or district.
(i) Except as provided in Section 1431.2 of the Civil Code,
liability under this section shall be joint and several. However,
this section does not bar a cause of action that a responsible party
has or would have, by reason of subrogation or otherwise, against a
person.
(j) This section does not apply to claims for damages for personal
injury or wrongful death, and does not limit the right of a person
to bring an action for personal injury or wrongful death under any
provision or principle of law.
(k) Payments made by a responsible party to cover liabilities
arising from a discharge of oil, whether under this division or any
other provision of federal, state, or local law, shall not be charged
against royalties, rents, or net profits owed to the United States,
the state, or any other public entity.
(l) An action that a private or public individual or entity may
have against a responsible party under this section may be brought
directly by the individual or entity or by the state on behalf of the
individual or entity. However, the state shall not pursue an action
on behalf of a private individual or entity that requests the state
not to pursue that action.
(m) For the purposes of this section, "vessels" means vessels as
defined in Section 21 of the Harbors and Navigation Code.
8670.56.6. (a) (1) Except as provided in subdivisions (b) and (d),
and subject to subdivision (c), no person, including, but not limited
to, an oil spill cooperative, its agents, subcontractors, or
employees, shall be liable under this chapter or the laws of the
state to any person for costs, damages, or other claims or expenses
as a result of actions taken or omitted in good faith in the course
of rendering care, assistance, or advice in accordance with the
National Contingency Plan, the California oil spill contingency plan,
or at the direction of the administrator, onsite coordinator, or the
Coast Guard in response to a spill or threatened spill of oil.
(2) The qualified immunity under this section shall not apply to
any oil spill response action that is inconsistent with the
following:
(A) The directions of the unified command, consisting of at least
the Coast Guard and the administrator.
(B) In the absence of a unified command, the directions of the
administrator pursuant to Section 8670.27.
(C) In the absence of directions pursuant to subparagraph (A) or
(B), applicable oil spill contingency plans implemented under this
division.
(3) Nothing in this section shall, in any manner or respect,
affect or impair any cause of action against or any liability of any
person or persons responsible for the spill, for the discharged oil,
or for the vessel, terminal, pipeline, or facility from which the oil
was discharged. The responsible person or persons shall remain
liable for any and all damages arising from the discharge, including
damages arising from improperly carried out response efforts, as
otherwise provided by law.
(b) Nothing in this section shall, in any manner or respect,
affect or impair any cause of action against or any liability of any
party or parties responsible for the spill, or the responsible party'
s agents, employees, or subcontractors, except persons immunized
under subdivision (a) for response efforts, for the discharged oil,
or for the vessel, terminal, pipeline, or marine facility from which
the oil was discharged.
(c) The responsible party or parties shall be subject to both of
the following:
(1) Notwithstanding subdivision (b) or (i) of Section 8670.56.5,
or any other provision of law, be strictly and jointly and severally
liable for all damages arising pursuant to subdivision (h) of Section
8670.56.5 from the response efforts of its agents, employees,
subcontractors, or an oil spill cooperative of which it is a member
or with which it has a contract or other arrangement for cleanup of
its oil spills, unless it would have a defense to the original spill.
(2) Remain strictly liable for any and all damages arising from
the response efforts of a person other than a person specified in
paragraph (1).
(d) Nothing in this section shall immunize a cooperative or any
other person from liability for acts of gross negligence or willful
misconduct in connection with the cleanup of a spill.
(e) This section does not apply to any action for personal injury
or wrongful death.
(f) As used in this section, a "cooperative" means an organization
of private persons which is established for the primary purpose and
activity of preventing or rendering care, assistance, or advice in
response to a spill or threatened spill.
(g) Except for the responsible party, membership in a cooperative
shall not, in and of itself, be grounds for liability resulting from
cleanup activities of the cooperative.
(h) For purposes of this section, there shall be a rebuttable
presumption that an act or omission described in subdivision (a) was
taken in good faith.
(i) In any situation in which immunity is granted pursuant to
subdivision (a) and a responsible party is not liable, is not liable
for noneconomic damages caused by another, or is partially or totally
insolvent, the fund provided for in Article 7 (commencing with
Section 8670.46) shall, in accordance with its terms, reimburse
claims of any injured party for which a person who is granted
immunity pursuant to this section would otherwise be liable.
(j) (1) The immunity granted by this section shall only apply to
response efforts that are undertaken after the administrator
certifies that contracts with qualified and responsible persons are
in place to ensure an adequate and expeditious response to any
foreseeable oil spill that may occur in marine waters for which the
responsible party (A) cannot be identified or (B) is unable or
unwilling to respond, contain, and clean up the oil spill in an
adequate and timely manner. In negotiating these contracts, the
administrator shall, to the maximum extent practicable, procure the
services of persons who are willing to respond to oil spills with no,
or lesser, immunity than that conferred by this section, but, in no
event, a greater immunity. The administrator shall make the
certification required by this subdivision on an annual basis. Upon
certification, the immunity conferred by this section shall apply to
all response efforts undertaken during the calendar year to which the
certification applies. In the absence of the certification required
by this subdivision, the immunity conferred by this section shall not
attach to any response efforts undertaken by any person in marine
waters.
(2) In addition to the authority to negotiate contracts described
in paragraph (1), the administrator may also negotiate and enter into
indemnification agreements with qualified and financially
responsible persons to respond to oil spills that may occur in marine
waters for which the responsible party (A) cannot be identified or
(B) is unable or unwilling to respond, contain, and clean up the oil
spill in an adequate and timely manner.
(3) The administrator may indemnify response contractors for (A)
all damages payable by means of settlement or judgment that arise
from response efforts to which the immunity conferred by this section
would otherwise apply, and (B) reasonably related legal costs and
expenses incurred by the responder, provided that indemnification
shall only apply to response efforts undertaken after the expiration
of any immunity that may exist as the result of the contract
negotiations authorized in this subdivision. In negotiating these
contracts, the administrator shall, to the maximum extent
practicable, procure the services of persons who are willing to
respond to oil spills with no, or as little, right to indemnification
as possible. All indemnification shall be paid by the administrator
from the Oil Spill Response Trust Fund.
(4) (A) The contracts required by this section, and any other
contracts entered into by the administrator for response,
containment, or cleanup of an existing spill, the payment of which is
to be made from the Oil Spill Response Trust Fund created pursuant
to Section 8670.46, or for response to an imminent threat of a spill,
the payment of which is to be made out of the Oil Spill Prevention
and Administration Fund created pursuant to Section 8670.38, shall be
exempt from Part 2 (commencing with Section 10100) of Division 2 of
the Public Contract Code and Article 6 (commencing with Section 999)
of Chapter 6 of Division 4 of the Military and Veterans Code.
(B) The exemption specified in subparagraph (A) applies only to
contracts for which the services are used for a period of less than
90 days, cumulatively, per year.
(C) This paragraph shall not be construed as limiting the
administrator's authority to exercise the emergency powers granted
pursuant to subdivision (c) of Section 8670.62, including the
authority to enter into emergency contracts that are exempt from
approval by the Department of General Services.
(k) (1) With regard to a person who is regularly engaged in the
business of responding to oil spills, the immunity conferred by this
section shall not apply to any response efforts by that person that
occur later than 60 days after the first day the person's response
efforts commence.
(2) Notwithstanding the limitation contained in paragraph (1), the
administrator may, upon making all the following findings, extend
the period of time, not to exceed 30 days, during which the immunity
conferred by this section applies to response efforts:
(A) Due to inadequate or incomplete containment and stabilization,
there exists a substantial probability that the size of the spill
will significantly expand and (i) threaten previously uncontaminated
marine or land resources, (ii) threaten already contaminated marine
or land resources with substantial additional contamination, or (iii)
otherwise endanger the public health and safety or harm the
environment.
(B) The remaining work is of a difficult or perilous nature that
extension of the immunity is clearly in the public interest.
(C) No other qualified and financially responsible contractor is
prepared and willing to complete the response effort in the absence
of the immunity, or a lesser immunity, as negotiated by contract.
(3) The administrator shall provide five days' notice of his or
her proposed decision to either extend, or not extend, the immunity
conferred by this section. Interested parties shall be given an
opportunity to present oral and written evidence at an informal
hearing. In making his or her proposed decision, the administrator
shall specifically seek and consider the advice of the relevant Coast
Guard representative. The administrator's decision to not extend the
immunity shall be announced at least 10 working days before the
expiration of the immunity to provide persons an opportunity to
terminate their response efforts as contemplated by paragraph (4).
(4) No person or their agents, subcontractors, or employees shall
incur any liability under this chapter or any other provision of law
solely as a result of that person's decision to terminate their
response efforts because of the expiration of the immunity conferred
by this section. A person's decision to terminate response efforts
because of the expiration of the immunity conferred by this section
shall not in any manner impair, curtail, limit, or otherwise affect
the immunity conferred on the person with regard to the person's
response efforts undertaken during the period of time the immunity
applied to those response efforts.
(5) The immunity granted under this section shall attach, without
the limitation contained in this subdivision, to the response efforts
of any person who is not regularly engaged in the business of
responding to oil spills. A person who is not regularly engaged in
the business of responding to oil spills includes, but is not limited
to, (A) a person who is primarily dedicated to the preservation and
rehabilitation of wildlife and (B) a person who derives his or her
livelihood primarily from fishing.
(l) As used in this section, "response efforts" means rendering
care, assistance, or advice in accordance with the National
Contingency Plan, the California oil spill contingency plan, or at
the direction of the administrator, onsite coordinator, or the Coast
Guard in response to a spill or threatened spill into marine waters.
