Oil Pollution Deskbook
Russell V. Randle, Environmental Law Institute, Second Edition, 2012.
Oil, so vital to the U.S. economy, has its darker side as demonstrated by the tragic BP Deepwater Horizon incident in 2010 in the Gulf of Mexico, the “largest maritime oil spill in U.S. history”. Oil spills and environmental law have a long relationship. In the Foreword, John Cruden notes:
Oil spills have marked key moments in American environmental history and, arguably, have provided the impetus for significant change in U.S. environmental law. Many credit the Santa Barbara oil spill and the fires on the Cuyahoga River with helping to shepherd in the environmental activism of the 1970s and the blooming of federal environmental law.
Cruden also observes that adoption of the Oil Pollution Act of 1990 (OPA) was “a direct product” of the Exxon Valdez oil spill of more than 10 million gallons of oil in 1989 in Prince William Sound, Alaska.
The Oil Pollution Deskbook illuminates the OPA and its implementation. The second edition includes lessons learned from the BP Deepwater Horizon incident and suggests that significant revisions to the OPA may be necessary as a result. Extensive appendices include the current text of the OPA, as well as the legislative history and related regulations.
According to the author, Russell Randle, enactment of the OPA,
resolved a decade-long dispute over preemption of state oil spill liability law by federal law, substantially rewrote the rules on oil pollution cleanup, increased the resources available for such cleanup, and reinforced strict liability aspects of oil spill cleanup and natural resource damage liability rules. . . . [T]he law’s passage also culminated almost 15 years of prior congressional work to consolidate and rationalize oil spill response mechanisms under federal laws, including § 311 of the [Clean Water Act (CWA)], the Deepwater Port Act of 1974, the Trans-Alaska Pipeline Authorization Act of 1973 (TAPAA), the [Outer Continental Shelf Lands Act] of 1978, as well as to harmonize these oil spill response mechanisms with state laws, international conventions, and other federal environment law, especially CERCLA.
Although attempts have been made to amend CERCLA to include comprehensive oil spill provisions, the petroleum exclusion remains. According to Randle, “[t]he omission of oil spill cleanup from CERCLA is especially ironic, because the liability provisions of § 107 of CERCLA are patterned on the oil spill liability provisions of § 311 of the CWA.”
The OPA, according to the author, has eight main elements:
- a comprehensive federal liability scheme, addressing all discharges of oil to navigable waters, the exclusive economic zone (EEZ), and shorelines;
- a single, unified federal fund, called the Fund, to pay for the cleanup and other costs of federal oil spill response authorized at $1 billion, far higher than any of the other funds previously authorized, but whose limits are now challenged by the BP Deepwater Horizon spill;
- clear federal authority to order removal action or to conduct the removal action itself;
- drastically revised spill prevention control and countermeasure plan requirements for onshore facilities, offshore facilities, and vessels, requirements which failed to work adequately in the BP Deepwater Horizon spill, exposing serious problems with the implementation requirements;
- strong criminal penalties and large civil penalties for spills of oil and for spills of hazardous substances. The outer bounds of these penalties are likely to be tested with the civil penalty claims in the BP Deepwater Horizon disaster;
- tighter standards and reviews for licensing tank vessel personnel, and for equipment and operations of tank vessels, including the requirement of double hulls, now almost fully implemented according to the elaborate compromise schedule in the statute;
- no preemption of state laws and an endorsement of U.S. participation in an international oil spill liability and compensation scheme; and
- a number of provisions pertinent to specific water bodies around the United States, including Prince William Sound, Puget Sound, the Great Lakes, Alaska, as well as a large number of studies Congress directed to be performed.
“The OPA of 1990 was a comprehensive and thorough effort to resolve the difficult political issues that had hobbled effective oil spill prevention and cleanup efforts under the previous uncoordinated legal regime”, notes Randle. He also observes that the “OPA and its programs improved oil spill response performance and compensation in most cases over the situation as it was in the late 1980s.” However, Randle concludes, regulatory neglect and in some cases malfeasance, inadequate federal resources, and wishful thinking, instead of careful contingency planning by industry, meant that the response to the largest maritime oil spill in U.S. history, the BP Deepwater Horizon sinking, proved chaotic and ineffective in preventing substantial environmental and economic damage. The lessons from that response suggest that significant revisions are needed to some aspects of OPA. Perhaps more important, analysis of that response suggests that adequate funding of regulatory agencies, continuous research and development of spill containment technologies, and a consistent emphasis on practicing spill responses and improving them, will be needed to avoid repeating the mistakes of both the Exxon Valdez and BP Deepwater Horizon oil spills, and avoiding needles environmental damage from oil transportation and offshore drilling.