§ 8670.56.6. — 8670.56.6. (Amended by Stats. 2016, Ch. 209, Sec. 10.)

(a)
(1)
Except as provided in subdivisions (b) and (d), and subject to subdivision (c), a person, including, but not limited to, an oil spill response organization, its agents, subcontractors, or employees, shall not 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 response efforts.
(2)
The qualified immunity under this section shall not apply to any response efforts that are 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)
This section does not, 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, for the discharged oil, or for the vessel, terminal, pipeline, or facility from which the oil was discharged. The responsible party or parties 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)
This section does not, 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 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 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 response organization 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)
This section does not immunize an oil spill response organization or any other person from liability for acts of gross negligence or willful misconduct in connection with response efforts.
(e)
This section does not apply to any action for personal injury or wrongful death.
(f)
[Reserved]
(g)
Except for the responsible party, membership in an oil spill response organization shall not be grounds, in and of itself, for liability resulting from response efforts of the oil spill response organization.
(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 reimburse, in accordance with its terms, claims of any injured person 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 persons who are qualified and responsible are in place to ensure an adequate and expeditious response to any foreseeable oil spill that may occur in waters of the state 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 procure, to the maximum extent practicable, 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 waters of the state.
(2)
In addition to the authority to negotiate contracts described in paragraph (1), the administrator may also negotiate and enter into indemnification agreements with persons who are qualified and financially responsible to respond to oil spills that may occur in waters of the state
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 procure, to the maximum extent practicable, 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, or for response of an imminent threat of a spill, the payment of which is to be made from the Oil Spill Response Trust Fund created pursuant to Section 8670.46, 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 extend, upon making all the following findings, 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 resources, (ii) threaten already contaminated 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)
A person or their agents, subcontractors, or employees shall not 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.

Legislative History

Amended by Stats. 2016, Ch. 209, Sec. 10. (AB 2912) Effective January 1, 2017.