SB 839: Oil spills: fishing: water closure: grants: liability.

5654.

(a) (1) The director, after a notification of a spill or discharge, as those terms are defined in Section 8670.3 of the Government Code, where any fishing, including all commercial, recreational, and nonlicensed subsistence fishing, may take place, or where aquaculture operations are taking place, may close all waters in the vicinity of the spill or discharge or where the spilled or discharged material has spread, or is likely to spread, to the take of all fish or shellfish, or may restrict the take or possession of all fish or shellfish, in those waters. In determining where a spill or discharge is likely to spread, the director shall consult with the Administrator of the Office of Spill Prevention and Response. At the time of closure, the department shall make all reasonable efforts to notify the public of the closure, including notification to commercial and recreational fishing organizations, and posting of warnings on public piers and other locations where subsistence fishing is known to occur. The department shall coordinate, when possible, with local and regional agencies and organizations to expedite public notification.

(2) Closure pursuant to paragraph (1) shall be required if the Office of Environmental Health Hazard Assessment finds that a public health threat exists or is likely to exist. In determining the need for a closure, the director shall initiate consultation with the Office of Environmental Health Hazard Assessment no later than 24 hours after a notification of a spill or discharge regarding the likelihood of a public health threat, if any of the following conditions are met:

(A) There is a reported volume of one or more barrels of oil spilled or discharged in inland or estuarine waters or enclosed bays.

(B) There is a reported volume of one or more barrels of oil spilled or discharged and the oil is impacting coastal shorelines.

(C) There is a reported volume of five or more barrels of oil spilled or discharged in open ocean waters.

(3) If none of the conditions in paragraph (2) are met, the director may consult with the Office of Environmental Health Hazard Assessment regarding the likelihood of a public health threat.

(b) Within 48 hours after a closure pursuant to subdivision (a), both of the following shall occur:

(1) The Office of Environmental Health Hazard Assessment shall assess the danger posed to the public from fishing in the area where the spill or discharge occurred or spread, and the danger of consuming fish or shellfish taken in the area where the spill or discharge occurred or spread.

(2) The director shall, in consultation with the Office of Environmental Health Hazard Assessment, determine whether the areas closed to the take of fish or shellfish should be revised to prevent any potential take or consumption of any fish or shellfish that may have been contaminated by the spill or discharge, as determined pursuant to paragraph (1).

(c) Within 48 hours after a closure pursuant to subdivision (a), or as soon as is feasible, the director, in consultation with the Office of Environmental Health Hazard Assessment, shall assess and determine the potential danger from consuming fish or shellfish that have been contained in a recirculating seawater tank onboard a vessel that may become contaminated by the vessel’s movement through an area where the spill or discharge occurred or spread.

(d) If the Office of Environmental Health Hazard Assessment finds in the assessment pursuant to subdivision (b) that there is no significant risk to the public or to the fisheries, the director may immediately reopen a closed area and waive the testing requirements of subdivision (e).

(e) Except under the conditions specified in subdivision (d), after complying with subdivisions (a) and (b), the director, in consultation with the Office of Environmental Health Hazard Assessment, within seven days after a closure, shall order expedited tests of fish or shellfish that would have been open for take for commercial, recreational, or subsistence purposes in the closed area if not for the closure, to determine the levels of contamination, if any, and whether the fish or shellfish is safe for human consumption.

(f) (1) As soon as possible after receiving a notification from the Office of Environmental Health Hazard Assessment that no threat to human health exists from the spill or discharge or that no contaminant from the spill or discharge is present that could contaminate fish or shellfish, the director shall reopen the areas closed pursuant to this section in a manner that promotes fair and orderly fisheries. The director shall maintain a closure in any remaining portion of the closed area where the Office of Environmental Health Hazard Assessment finds contamination from the spill or discharge persists that may adversely affect human health.

(2) The director, in consultation with the commission, may also maintain a closure in any remaining portion of the closed area where commercial fishing or aquaculture occurs and where the department determines, pursuant to this paragraph, that contamination from the spill or discharge persists that may cause the waste of commercial fish or shellfish as regulated by Section 7701.

(g) To the extent feasible, the director shall consult with representatives of commercial and recreational fishing associations and subsistence fishing communities regarding the extent and duration of a closure, testing protocols, and findings. If a spill or discharge occurs within the lands governed by a Native American tribe or affects waters flowing through tribal lands, or tribal fisheries, the director shall consult with the affected tribal governments.

(h) The director shall, and the Office of Environmental Health Hazard Assessment may, seek full reimbursement from the responsible party or parties for the spill or discharge for all reasonable costs incurred by the department or the Office of Environmental Health Hazard Assessment, respectively, in carrying out this section, including, but not limited to, all testing.

(i) It is unlawful to take any fish or shellfish from any waters closed pursuant to this section or to otherwise violate any restriction imposed pursuant to this section.

8670.8.3.

The administrator may offer grants to a local government, federally recognized tribe, or other public entity with jurisdiction over or directly adjacent to waters of the state to provide oil spill response equipment to be deployed by a local spill response manager certified pursuant to Section 8670.8. The administrator may request the Legislature to appropriate funds from the Oil Spill Prevention and Administration Fund created pursuant to Section 8670.38 for the purposes of this section.

8670.35.

(a) The administrator, taking into consideration the California oil spill contingency plan, shall promulgate regulations regarding the adequacy of oil spill elements of area plans required pursuant to Section 25503 of the Health and Safety Code. In developing the regulations, the administrator shall consult with the Oil Spill Technical Advisory Committee.

(b) The administrator may offer, to a unified program agency or a federally recognized tribe with jurisdiction over or directly adjacent to waters of the state, a grant to complete, update, or revise an oil spill element of the area plan.

(c) Each oil spill element established under this section shall include provisions for training fire and police personnel in oil spill response and cleanup equipment use and operations.

(d) Each oil spill element prepared under this section shall be consistent with the local government’s local coastal program as certified under Section 30500 of the Public Resources Code, the California oil spill contingency plan, the National Contingency Plan, and the area contingency plan.

(e) If a grant is awarded, the administrator shall review and approve each oil spill element established pursuant to this section. If, upon review, the administrator determines that the oil spill element is inadequate, the administrator shall return it to the unified program agency or federally recognized tribe that prepared it, specifying the nature and extent of the inadequacies, and, if practicable, suggesting modifications. The unified program agency or federally recognized tribe shall submit a new or modified element within 90 days after the element was returned, responding to the findings and incorporating any suggested modifications.

(f) The administrator shall review the preparedness of unified program agencies or federally recognized tribes to determine whether a program of grants for completing oil spill elements is desirable and should be continued. If the administrator determines that local government or tribal preparedness should be improved, the administrator shall request the Legislature to appropriate funds from the Oil Spill Prevention and Administration Fund for the purposes of this section.

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 person that arise out of, or are caused by, a spill.

(b) A responsible party is not liable to an injured person 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, that 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 person.

(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) 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 party 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 a responsible party under this section, the court shall join to the action any other party who may be a responsible party 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, attorney’s fees, and the costs of necessary expert witnesses to a prevailing plaintiff. The court may award reasonable costs of the suit and attorney’s fees to a prevailing defendant if the court finds that the plaintiff commenced or prosecuted the suit pursuant to 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 person for loss or injury for which the person 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 their earnings from the activities that utilize the property or natural resources, or, if those activities are seasonal in nature, 25 percent of their 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 pursuant to 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 purposes of this section, “vessels” means vessels as defined in Section 21 of the Harbors and Navigation Code.

8670.70.

The Environmental Enhancement Fund is hereby created in the State Treasury. All penalties collected under Article 9 (commencing with Section 8670.57) shall be deposited into the Environmental Enhancement Fund, except as specified in Section 8670.68.5. The moneys in the fund shall only be used for environmental enhancement projects. The moneys shall not be used for the cleanup of an oil spill or the restoration required after an oil spill. The moneys in the fund shall be available to the administrator for environmental enhancement projects, upon appropriation by the Legislature.

8670.73.

(a) The Environmental Enhancement Grant Program is hereby established. Project proposals shall be solicited when adequate funds have accumulated in the Environmental Enhancement Fund to cover the cost of an appropriate project or projects.

(b) Grants shall be awarded to nonprofit organizations, cities, counties, cities and counties, districts, state agencies, departments, and federally recognized tribes; and, to the extent permitted by federal law, to federal agencies on a competitive basis using the selection process established by the Environmental Enhancement Committee. The selection criteria will be enumerated in all requests for proposals distributed to potential applicants. The administrator may grant funds for those projects that are selected by the Environmental Enhancement Committee and that meet the requirements of this article. State departments and agencies receiving grants under this section for environmental enhancement projects, shall, to the maximum extent feasible, utilize the services of the California Conservation Corps in accordance with Section 14315 of the Public Resources Code.

(c) Grant recipients shall use the grant award to fund only the project described in the recipient’s application.

(d) Grant recipients shall not use the grant funds to shift money to or otherwise cover costs of an existing or proposed project or activity not included in the application.

(e) Any grant funds allocated to a project that exceed the actual cost of completing the project as outlined in the recipient’s application shall be returned to the Environmental Enhancement Fund, and shall not be used by the grant recipient for any other purpose.

(f) If a member of the Environmental Enhancement Committee, or a member of their immediate family, is employed by a grant applicant, the employer of a grant applicant, or a consultant or independent contractor employed by the grant applicant, the committee member shall make that disclosure to the other members of the committee and shall not participate or make recommendations on the grant proposal of that applicant.

(g) For habitat acquisition, the Environmental Enhancement Committee shall be subject to the same provisions as prescribed in Section 31116 of the Public Resources Code.