376.07 Regulatory powers of department; penalties for inadequate booming by terminal facilities.—
(1) The department shall adopt rules pursuant to ss. 120.536(1) and 120.54 to implement ss. 376.011-376.21.
(2) The department shall adopt rules including, but not limited to, the following matters:
(a) Operation and inspection requirements for discharge prevention, abatement, and cleanup capabilities of terminal facilities and vessels, and other matters relating to certification under ss. 376.011-376.21.
(b) Procedures and methods of reporting discharges and other occurrences prohibited by ss. 376.011-376.21.
(c) Procedures, methods, means, and equipment to be used by persons subject to regulation by ss. 376.011-376.21 in the removal of pollutants.
(d) Development and implementation of criteria and plans to meet pollution occurrences of various degrees and kinds.
(e) Creation by contract or administrative action of a state response team which shall be responsible for creating and maintaining a contingency plan of response, organization, and equipment for handling emergency cleanup operations and wildlife rescue and rehabilitation operations. The state plans shall include detailed emergency operating procedures for the state as a whole, and the team shall from time to time conduct practice alerts. These plans shall be filed with the Governor and all Coast Guard stations in the state and Coast Guard captains of the port having responsibility for enforcement of federal pollution laws within the state. The contingency plan shall include all necessary information for the total containment and cleanup of pollution, including, but not limited to, an inventory of equipment and its location, a table of organization with the names, addresses, and telephone numbers of all persons responsible for implementing every phase of the plan, including a plan for wildlife rescue and rehabilitation operations, a list of available sources of supplies necessary for cleanup, and a designation of priority zones to determine the sequence and methods of cleanup. The state response team shall act independently of agencies of the Federal Government but is directed to cooperate with any federal cleanup operation.
(f) Requirements for minimum weather and sea conditions for permitting a vessel to enter port and for the safety and operation of vessels, barges, tugs, motor vehicles, motorized equipment, and other equipment relating to the use and operation of terminals, facilities, and refineries, the approach and departure from terminals, facilities, and refineries, and requirements that containment gear approved by the department be on hand and maintained by terminal facilities and refineries with adequate personnel trained in its use.
(g) Requirements that, prior to being granted entry into any port in this state, the master of a vessel shall report:
1. Any discharges of pollutants the vessel has had since leaving the last port.
2. Any mechanical problem on the vessel which creates the possibility of a discharge.
3. Any denial of entry into any port during the current cruise of the vessel.
(h) Requirements that any terminal facility be subject to a complete and thorough inspection whenever the terminal facility causes or permits the discharge of a pollutant in violation of the provisions of ss. 376.011-376.21, and at other reasonable times. If the department determines there are unsatisfactory preventive measures or containment and cleanup capabilities, it shall, within a reasonable time after notice and hearing in compliance with chapter 120, suspend the registration until such time as there is compliance with the department requirements.
(3) The department shall not require vessels to maintain discharge prevention gear, holding tanks, and containment gear which exceed federal requirements. However, a terminal facility transferring heavy oil to or from a vessel with a heavy oil storage capacity greater than 10,000 gallons shall be required, considering existing weather and tidal conditions, to adequately boom or seal off the transfer area during a transfer, including, but not limited to, a bunkering operation, to minimize the escape of such pollutants from the containment area. As used in this subsection, the term “adequate booming” means booming with proper containment equipment which is employed and located for the purpose of preventing, for the most likely discharge, as much of the pollutant as possible from escaping out of the containment area.
(a) The owner or operator of a terminal facility involved in the transfer of such pollutant to or from a vessel which is not adequately boomed commits a noncriminal infraction and shall be cited for such infraction. The civil penalty for such an infraction shall be $2,500, except as otherwise provided in this section.
(b) A person cited for an infraction under this section may:
1. Pay the civil penalty;
2. Post bond equal to the amount of the applicable civil penalty; or
3. Sign and accept a citation indicating a promise to appear before the county court.
The department employee authorized to issue these citations may indicate on the citation the time and location of the scheduled hearing and shall indicate the applicable civil penalty.
(c) A person who willfully refuses to post bond or accept and sign a citation commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(d) After compliance with subparagraph (b)2. or subparagraph (b)3., a person charged with a noncriminal infraction under this section may:
1. Pay the civil penalty, either by mail or in person, within 30 days after the date of receiving the citation; or
2. If the person has posted bond, forfeit the bond by not appearing at the designated time and location.
A person cited for an infraction under this section who pays the civil penalty or forfeits the bond has admitted the infraction and waives the right to a hearing on the issue of commission of the infraction. Such admission may not be used as evidence in any other proceedings.
(e) A person who elects to appear before the county court or who is required to appear waives the limitations of the civil penalty specified in paragraph (a). The issue of whether an infraction has been committed and the severity of the infraction shall be determined by a hearing official at a hearing. If the commission of the infraction is proved by the greater weight of the evidence, the court shall impose a civil penalty of $2,500. If the court determines that the owner or operator of the terminal facility failed to deploy any boom equipment during such a transfer, including, but not limited to, a bunkering operation, the civil penalty shall be $5,000.
(f) A person who is found by the hearing official to have committed an infraction may appeal that finding to the circuit court.
(g) A person who has not posted bond and who fails either to pay the civil penalty specified in paragraph (a) within 30 days after receipt of the citation or to appear before the court commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
Cited 11 times | Published | District Court, M.D. Florida | 3 ERC 1429, 2 Envtl. L. Rep. (Envtl. Law Inst.) 20072, 3 ERC (BNA) 1429, 1971 U.S. Dist. LEXIS 10418
...Any claim for costs of cleanup, civil penalties, or damages by the state, and any claim for damages by any injured person, may be brought directly against the bond, the insurer, or any other person providing evidence of financial responsibility. [6] Section 376.07, Florida Statutes Annotated, provides in part: Regulatory powers of department. The department shall from time to time adopt, amend, repeal, and enforce reasonable regulations insofar as they relate to oil spills or discharges or the...
Cited 5 times | Published | Florida 4th District Court of Appeal | 1993 WL 390413
...d equipment used for fueling vessels. On March 6, 1992, DNR published notice in the Florida Administrative Weekly of, inter alia, proposed rules 16N-16.032, 16.033, and 16.034. In essence, these rules, which purport to implement sections 376.065 and 376.07, Florida Statutes (1991), would require a "terminal facility" [1] to: (1) obtain a spill prevention and response certificate from DNR; (2) prepare a spill contingency/prevention plan for reporting pollutant discharges (e.g., fuel spills) and d...
...the economic impact of the proposed rules on small businesses. After a hearing, the hearing officer issued an order which, among other things, found that proposed rules 16N-16.032, 16.033, and 16.034 are facially consistent with sections 376.065 and 376.07, and, therefore, are not an invalid exercise of delegated legislative authority....
...cer nevertheless found the error to be harmless because those costs imposed on small businesses by the proposed rules were not shown to be unreasonable. LAW AND ANALYSIS As noted, the proposed rules at issue purport to implement sections 376.065 and 376.07, which are part of the Pollutant Spill Prevention and Control Act (Act). Section 376.07 grants DNR the authority to adopt and enforce reasonable rules relating to, among other things: (1) operation and inspection requirements for spill prevention, *1266 abatement and cleanup of terminal facilities and vessels; (2) procedu...
...sed by terminal facilities in the removal of pollutants; (3) development and implementation of criteria and plans to meet a variety of pollution occurrences; and (4) such other rules as may be reasonably necessary to carry out the intent of the Act. Section 376.07(2)(a), (c), (d), & (i)....
...of law those rules purport to implement. *1267 PROPOSED RULES 16.032 & 16.034 After closely reviewing proposed rules 16.032 and 16.034, we find there is nothing in those rules that is inconsistent with either the rulemaking authority granted DNR by section 376.07 or the specific law these rules purport to implement (section 376.065)....
...on and response certificate, it would have expressly said so. See section 376.06 (expressly excepting marine fueling facilities from obtaining registration certificates). [4] Other sections of the Act further strengthen our conclusion. For instance, section 376.071 requires all vessels "operating in state waters with a storage capacity to carry 10,000 gallons or more of pollutants as fuel and cargo " to maintain their own "written ship-specific spill prevention and control contingency plan." (emphasis added). Furthermore, section 376.07(2)(a) mandates that all terminal facilities that "transfer[] heavy oil to or from a vessel with a heavy oil storage capacity greater than 10,000 shall be required to adequately boom or seal off the area ......
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