(a) A response action contractor who responds to a release or threatened release of oil is not civilly liable for removal costs or damages that result from an act or omission in the course of providing care, assistance, or advice
(1) consistent with a contingency plan
(A) approved under AS 46.04.030 or 46.04.055 if the response action contractor is listed in the contingency plan; or
(B) prepared under AS 46.04.200 , 46.04.210, or 33 U.S.C. 1321(d) if the response action contractor is not listed in the contingency plan; or
(2) as otherwise directed by the federal or state on-scene coordinator.
(b) The limitation on liability contained in (a) of this section does not apply to
(1) an action for personal injury or death; or
(2) a response action contractor who
(A) would otherwise have been liable for the release or threatened release under AS 46.03.822 ;
(B) acts with gross negligence or intentional misconduct; or
(C) has agreed in writing to be listed as a primary response action contractor, who is listed as a primary response action contractor in a contingency plan approved under AS 46.04.030 or 46.04.055, and who fails to respond to a release or threatened release of oil that the primary response action contractor was required to respond to under its contract with the applicable contingency plan holder; this subparagraph does not apply to a primary response action contractor if the failure to respond to a release or threatened release of oil results from a prior and ongoing response under another contingency plan approved under AS 46.04.030 or 46.04.055 in which the primary response action contractor has the primary duty to respond and a significant portion of the response action contractor's oil spill cleanup equipment listed in the contingency plan approved under AS 46.04.030 or 46.04.055 is in use.
(c) If the liability of an oil spill response action contractor is not limited under (a) of this section or if the provisions of (a) of this section do not apply because of (b) of this section, the oil spill response action contractor is not civilly liable for injuries, costs, damages, expenses, or other liability that results from the response action contractor's act or omission with respect to a release or threatened release of oil unless the act or omission of the oil spill response action contractor is negligent, grossly negligent, or constitutes intentional misconduct. This subsection does not apply to an oil spill response action contractor who would have been liable for the initial release or threatened release of oil under AS 46.03.822 even if that contractor had not carried out a response action.
(d) The defense provided in AS 46.03.822 (b)(1)(B) is not available to a potentially liable person with respect to costs or damages caused by an act or omission of a response action contractor.
(e) Except as provided in (d) of this section, this section does not affect the liability under this chapter or under any other state law of a person other than a response action contractor.
(f) Nothing in this section is intended to amend AS 46.04.030(l) or 46.04.055, or to create a cleanup or performance standard that must be met by a holder of a contingency plan or by a primary response action contractor.
(g) In this section,
(1) "consistent" means in substantial compliance with a contingency plan;
(2) "primary response action contractor" has the meaning given in AS 46.04.035;
(3) "response action" means an action taken to respond to a release or threatened release of oil, including mitigation, clean up, marine salvage, incident management team services, response plan facilitator services, or removal of a release or threatened release of oil.
Sec. 46.03.826. Definitions for AS 46.03.822 - 46.03.828.
In AS 46.03.822 - 46.03.828,
(1) "act of God" means an act of nature which is unforeseeable in kind or degree;
(2) "economic benefit" means a benefit measurable in economic terms, including but not limited to the gathering, catching, or killing of food or other items utilized in a subsistence economy and their replacement cost;
(3) "facility"
(A) includes a
(i) building, structure, installation, equipment, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, aircraft, or pipe or pipeline, including a pipe into a sewer or publicly-owned treatment works;
(ii) site or area at which a hazardous substance has been deposited, stored, disposed of, placed, or otherwise located;
(B) does not include any consumer product in consumer use;
(4) "having control over a hazardous substance" means producing, handling, storing, transporting, or refining a hazardous substance for commercial purposes immediately before entry of the hazardous substance into the atmosphere or in or upon the water, surface, or subsurface land of the state, and specifically includes bailees and carriers of a hazardous substance;
(5) "hazardous substance" means
(A) an element or compound which, when it enters into the atmosphere or in or upon the water or surface or subsurface land of the state, presents an imminent and substantial danger to the public health or welfare, including but not limited to fish, animals, vegetation, or any part of the natural habitat in which they are found;
(B) oil; or
(C) a substance defined as a hazardous substance under 42 U.S.C. 9601(14);
(6) "natural resources" means land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the state or a municipality;
(7) "oil" means a derivative of a liquid hydrocarbon and includes crude oil, lubricating oil, sludge, oil refuse or another petroleum-related product or by-product;
(8) "owner" and "operator"
(A) mean
(i) in the case of a vessel, any person owning, operating, or chartering by demise, a vessel;
(ii) in the case of facility, any person owning or operating the facility;
(iii) in the case of an abandoned facility or vessel, any person who owned, operated, or otherwise controlled activities at the facility or vessel immediately before the abandonment; and
(iv) in the case of a facility or vessel, title or control of which was conveyed due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means to a unit of the state or a political subdivision of the state, any person who owned, operated, or otherwise controlled the facility or vessel immediately beforehand;
(B) do not include a person who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect that person's security interest in the vessel or facility;
(9) "release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance, but excluding
(A) any release that results in exposure to persons solely within a workplace, with respect to a claim that those persons may assert against the persons' employer; and
(B) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, or vessel;
(10) "response action contract" means a written contract or agreement to provide response action with respect to a release or threatened release of a hazardous substance entered into by a person with
(A) the department;
(B) another person who has entered into an agreement with the department that provides for response action subject to the department's oversight and control;
(C) a federal agency with jurisdiction over the release or threatened release; or
(D) another person potentially liable for the release or threatened release under state or federal law;
(11) "response action contractor" means
(A) a person who enters into a response action contract with respect to a release or threatened release of a hazardous substance and who is carrying out the contract, including a cooperative organization formed to maintain and supply response equipment and materials that enters into a response action contract relating to a release or threatened release;
(B) a person who is retained or hired by and is under the control of a person described in (A) of this paragraph to provide services related to the response action contract; and
(C) a person who acts as a volunteer and is engaged in a response action;
(12) "subsistence economy" means an economy which utilizes on a regular basis an item which is owned in common by the people of the state, or the United States, including but not limited to fish, game, fur bearing animals, birds, timber or any part of the natural habitat for noncommercial purposes;
(13) "transport" means the movement of a hazardous substance by any mode, including pipeline; in the case of a hazardous substance that has been accepted for transportation by a common or contract carrier, "transport" includes any stoppage in transit that is temporary, incidental to the transportation movement, and at the ordinary operating convenience of a common or contract carrier, and any stoppage of this type shall be considered as a continuity of movement and not as the storage of a hazardous substance;
(14) "vessel" means every description of watercraft or other artificial contrivance that is used, or is capable of being used, as a means of transportation on water, or that carries hazardous substances for the purpose of incineration of the hazardous substances;
(15) "water, surface or subsurface land of the state" means all water, surface or subsurface land within the territorial limits of the State of Alaska.
Section: Previous 46.03.780 46.03.790 46.03.800 46.03.810 46.03.820 46.03.822 46.03.823 46.03.824 46.03.825 46.03.828 46.03.830 46.03.833 46.03.840 46.03.850 NextLast modified: November 15, 2016