§ 46-12.5.1-6. Civil penalties for discharge of oil. (a) The legislature finds that:

(1) Oil is important as an energy source to the people of the state; however, the discharge of oil in any quantity may have a substantial permanent or negative impact on the public health and environment and the economy of this state in that it contaminates the land and water supplies and renders land unfit for use and water unfit for use and consumption; degrades, damages, and destroys the abundant natural beauty of the state; and kills marine and aquatic organisms at all stages of development;

(2) The citizens of this state should not have to bear the burdens of the cleanup and the losses of economic livelihood that result from the discharge of oil in any degree; and

(3) Substantial civil penalties should be imposed in order to provide an incentive to insure the safe handling of oil and to prevent the discharge of oil onto the land or into the waters of the state;

(b) The director shall promulgate rules and regulations pursuant to the Administrative Procedures Act, as set forth in chapter 35 of title 42, that establish administrative penalties for discharges of oil, which penalties shall not exceed the sum of twenty-five thousand dollars ($25,000) for each day during which the violation occurs. In determining the administrative penalty for the discharge of oil, the director shall consider several factors, including, but not limited to:

(1) The type of environment that the discharge oil enters, such as, but not limited to, a stream or tributary thereto that is capable of or has historically supported anadromous fish; a freshwater environment with significant or substantial aquatic resources; or an estuarine, intertidal, or salt water environment;

(2) The amount of oil spilled;

(3) The type of oil spilled;

(4) The toxicity, degradability, and dispersal characteristics of the oil spilled; and

(5) Any mitigating action that the vessel master or the facility owner or operator may have taken to stop or to control the discharge of oil.

(c) The entire penalty specified in the regulations shall be imposed, except that a person who discharges oil into a receiving environment may demonstrate, by a preponderance of evidence, that mitigating circumstances relating to the effects of the discharge would make imposition of the full penalty inappropriate. If mitigating circumstances are proven by a preponderance of the evidence, the director may reduce or eliminate the penalty, in accordance with the purposes of this section.

(d) A person otherwise liable for administrative penalties under subsection (e) of this section shall not be liable if the person demonstrates, by a preponderance of the evidence, that the discharge occurred solely as a result of:

(1) An act of God;

(2) An act of a third person, unless the third person is a person with whom the person charged is made jointly and severally liable under this section;

(3) A negligent or intentional act of the United States; or

(4) An act of war.

(e) Nothing in this section shall preclude the director from assessing additional penalties for the discharge of oil as set forth in chapters 12 of this title, 17.1 and 17.6 of title 42, and 19.1 of title 23.

(f) Nothing in this section shall preclude the state or any private party from seeking damages and/or penalties in an action brought pursuant to any other provision of the general laws or pursuant to common law or to limit the damages which can be awarded in such an action.

History of Section. (P.L. 1997, ch. 32, § 2.)