Posted by A_ _ Kicker, a resident of the Another Pleasanton neighborhood neighborhood, on Jun 18, 2010 at 6:23 am Dublinmike:
You stated "The President is not responsible for the cleanup." ??? !!!
Sorry, but Obama apologists like you have no use for facts...and laws.
Here is an excerpt of the Oil Protection Act of 1990 which states that the President is responsible for the cleanup. After you've read it, please send this to Obama to read also. He obviously has not.
>>> Web Link
1
Chapter Eight:
Oil Spills, Clean Water Act § 311, and the Oil Pollution Act
I. Introduction
The CWA and the Oil Pollution Act (OPA) include both regulatory and liability
provisions that are designed to reduce damage to natural resources from oil spills. Federal laws
aimed at preventing and responding to oil spills represent Congress’s reaction to dramatic
incidents causing environmental damage. Following oil well blowouts and oil spills in the late
1960s, Congress added § 311 to the CWA.1 Congress then expanded § 311 in 1978 by
authorizing the government to recover the value of lost or damaged natural resources from those
responsible for a spill. In response to the Exxon Valdez oil spill in Prince William Sound,
Alaska, Congress enacted the Oil Pollution Act (OPA) of 1990.2 The OPA amended CWA § 311
and contains provisions applicable to onshore facilities and operations, including those on
Federal lands.
Section 311, as amended by the OPA, provides for spill prevention requirements, spill
reporting obligations, and spill response planning and authorities. It regulates the prevention and
response to accidental releases of oil and hazardous substances into navigable waters, on
adjoining shorelines, or affecting natural resources belonging to or managed by the United
States. Section 311 works in conjunction with the program provided by the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) for cleaning up
hazardous substance spills. CERCLA addresses releases of hazardous substances to all
environmental media including water. Therefore, both CERCLA and the CWA come into play
when there is a discharge of hazardous substances to waters. Even though CERCLA does not
1
33 U.S.C. § 1321.
2
Pub. L. No. 101-380 (Aug. 18, 1990).
2
supersede § 311, releases of hazardous chemicals are more comprehensively addressed under
CERCLA, so efforts under § 311 tend to focus primarily on discharges of oil.
A. Agency Jurisdiction
Implementation of CWA § 311 and the OPA is the dual responsibility of the Coast Guard
and the EPA. The Coast Guard is primarily responsible for regulations and enforcement related
to vessels and marine transportation, whereas the EPA is responsible for non-transportation-
related facilities and onshore operations.
B. Waters and Pollutants Covered
CWA § 311 prohibits the discharge of oil into navigable waters, on adjoining shorelines,
or affecting natural resource belonging to the United States in such quantities as are determined
by the EPA to be harmful.3 “Discharge” is broadly defined as any spilling, leaking, pumping,
pouring, emitting, emptying, or dumping of oil or hazardous substances.4 “Oil” includes oil of
any kind including petroleum, fuel oil, oil refuse, sludge, and oil mixed with wastes other than
dredged spoils.5 The EPA has determined that a “harmful quantity” of oil is an amount that,
when discharged, violates state water quality standards, causes a film or sheen on the surface of
the water, or causes a sludge to be deposited beneath the surface.6
The scope of CWA § 311 and the OPA is similar to the rest of the CWA (Chapters One
and Six). It applies to all waters that are navigable in-fact, non-navigable tributaries, and
adjoining wetlands. These provisions also apply to discharges into or on the waters of the
3
33 U.S.C. § 1321(b)(3).
4
33 U.S.C. § 1321(a)(2).
5
Id.
6
40 C.F.R. § 110.3.
3
exclusive economic zone, i.e. the zone contiguous to the territorial sea extending 200 miles from
shore.7 Natural resources covered by CWA § 311 and the OPA include land, fish, wildlife, biota,
air, water, groundwater, drinking water supplies, and other resources belonging to or managed,
held in trust, or otherwise controlled by the United States, and state or local governments, Indian
tribes, or foreign governments.8
II. Removal Authority
The OPA amended the Federal authority in § 311 to respond to spills. Prior to the OPA,
§ 311 authorized the President to respond to discharges of oil and hazardous substances, but
there was significant latitude for private cleanup efforts by the discharger. The OPA amended §
311 to mandate the President to take action to ensure “effective and immediate removal of a
discharge, and mitigation or prevention of a substantial threat of a discharge, of oil or a
hazardous substance.”9 The President’s removal authority is primarily carried out through the
creation and implementation of facility and response plans.
III. Planning Provisions
CWA § 311 mandates that the President issue regulations establishing procedures,
methods, equipment, and other requirements to prevent discharge of oil and hazardous
substances from vessels and facilities and to contain such discharges.10 The EPA has been
delegated the authority to regulate non-transportation related onshore facilities, and the Coast
7
33 U.S.C. § 1321 (c)(1)(A).
8
33 U.S.C. § 2701(20).
9
33 USC § 1321(c)(1)(A).
10
Id.
4
Guard has the authority to regulate tank vessels, transportation-related facilities, and offshore
facilities (such as platforms).
Elaborate planning provisions constitute the regulatory components of § 311 and the
OPA. These provisions are aimed at correcting organizational difficulties experienced in
responding to spills such as that from the Exxon Valdez. However, planning processes
sometimes work better in theory than they do in practice. As Glicksman notes, planning may
increase readiness prior to a spill, but it may also reduce decision making flexibility at the time
of the spill.11
A. Facility Planning: Spill Prevention, Control, and Countermeasure (SPCC) Plans
Non-transportation onshore facilities include those that drill, produce, gather, store,
process, refine, transfer, distribute, or consume oil. This includes “any onshore facility that,
because of its location, could reasonably be expected to cause substantial harm to the
environment by discharging into or on the navigable waters.”12 These facilities must have a fully
prepared and implemented SPCC Plan.13
An SPCC Plan must be consistent with the National Contingency Plan (NCP) and with
Area Contingency Plans (ACPs) (discussed below) and contain the following information: 1) for
a facility that had experienced one or more spills within the past year, a written description of
each spill, the corrective action taken, and plans for preventing recurrence; 2) a prediction of the
direction, rate of flow, and total quantity of oil that could be discharged where experience
indicates a potential for equipment failure; 3) a description of containment and/or diversionary
11
Glicksman, Robert. Pollution on the Federal Lands II: Water Pollution Law. 12 UCLA J. Envtl. L. and Pol’y 61.
1993.
12
33 U.S.C. § 1321(j)(5)(B)(iii).
13
40 C.F.R. § 112.3(b).
5
structures or equipment to prevent discharged oil from reaching navigable waters; 4) when it is
determined that containment and/or diversionary structures are not practicable, a demonstration
of the impracticability accompanied by a practical oil spill contingency plan and a written
commitment of personnel, equipment, and materials to quickly control and remove spilled oil;
and 5) a complete discussion of the spill prevention and control measures applicable in the
regulations to the type of facility and/or its operations.14
SPCC Plans can be amended either upon order of the EPA Regional Administrator or
based upon review by the owner or operator of the facility. The plans are required to be
reviewed by the facility owner or operator at least once every three years or when there is a
change in the facility’s design or operation.15
B. Response Planning: National Contingency Plan (NCP) and Area Contingency Plans
(ACPs)
The OPA revised the contingency planning and response requirements and established
greater control at the national level through the National Contingency Plan.
i. National Contingency Plans (NCP)
The NCP is the primary planning vehicle to provide for the efficient, coordinated, and
effective response to spills. The NCP has been promulgated by the EPA (40 C.F.R. part 300)
and as required by § 311, includes the following:
1. Assignment of duties and responsibilities among Federal departments for water
pollution control and conservation and trusteeship of natural resources;
2. Provision for the identification, procurement, maintenance, and storage of response
equipment and supplies;
3. Establishment of Coast Guard spill response strike teams;
14
40 C.F.R. § 112.7.
15
40 C.F.R. § 112.5.
6
4. A system of surveillance and notice to safeguard against discharges or imminent
threats of discharges of oil and hazardous substances and to ensure earliest possible
notice for response;
5. Procedures and techniques to employ in identifying, containing, dispersing, and
removing oil and hazardous substances;
6. A schedule that identifies dispersants and other chemicals that may be used to
respond to oil and hazardous substance discharges, and the waters where they may be
used;
7. A system whereby an affected state or states may act to remove a discharge of oil or a
hazardous substance and how the state(s) may be reimbursed for the reasonable costs
of such removal from the Oil Spill Liability Trust Fund;
8. Criteria and procedures to respond immediately and effectively to discharges or
threats of discharges that pose a substantial threat to the public health or welfare;
9. Procedures and standards for removing a worst-case discharge of oil, and for
mitigating or preventing a substantial threat of such a discharge;
10. Procedures for coordinating response actions among the various Federal response
entities; and
11. A fish and wildlife response plan for the protection, rescue, and rehabilitation of fish
and wildlife resources and their habitat.16
ii. Area Contingency Plans (ACP)
Area committees designated by the President to work with state and local officials must
prepare Area Contingency Plans (ACPs) to enhance contingency planning and joint response and
mitigation efforts. ACPs supplement the NCP by including more specific resource and response
information for the specific area covered. Each ACP must include a list of requirements,
including development of adequate means of dealing with a “worst-case” discharge and a
description of areas of special economic or environmental importance, which a discharge might
damage.17
IV. Liability Under CWA § 311 and the OPA
CWA § 311, as amended by the OPA, imposes strict, joint and several liability on any
party that is responsible for an oil spill or the substantial threat of an oil spill in quantities that
16
33 U.S.C. § 1321(d)(2).
17
33 U.S.C. § 1321(j)(4).
7
may be harmful to public health or the environment. The “environment” includes fish, shellfish,
wildlife, public and private property, shorelines, and beaches.18 Every responsible party is liable
for the removal costs and damages that result from the discharge.19 However, discharges
authorized by a permit issued under Federal, state, or local law, and discharges from an onshore
facility subject to the Trans-Alaska Pipeline Authorization Act are not liable under the OPA.
Defenses to liability are limited to proof that the discharge was caused solely by an act of
God, an act of war, an act or omission of a third party, or any combination.20 These defenses are
unavailable to a party who 1) fails to report a spill as required by law; 2) fails to cooperate
reasonably with officials responsible for removal activities; or 3) fails, without sufficient cause,
to comply with a cleanup order.21
A. Liability for Removal Costs
Responsible parties are liable under CWA § 311 and the OPA for removal costs incurred
by the United States, a state, or an Indian tribe.22 Removal costs include the costs of removing
an oil spill that has already occurred, as well as the costs of preventing, minimizing, or
mitigating pollution from a threatened discharge. Liability also extends to costs incurred by any
private party for removal in a manner consistent with the NCP.23
18
33 U.S.C. § 1321(b)(4).
19
33 U.S.C. § 2702(a).
20
33 U.S.C. § 2703(a).
21
33 U.S.C. § 2703(c).
22
33 U.S.C. § 2702(b)(1).
23
33 U.S.C. § 2702(b)(1)(B).
8
B. Liability for Damages: Natural Resource Damage
The OPA and CWA § 311 impose liability on responsible parties for damages. Any
public or private plaintiff may sue to recover damages to real and personal property and loss of
profits or earning capacity.24 Most relevant to the BLM is that Federal, state, or local
governmental entities may sue for lost taxes or other revenues and for increased costs of public
services resulting from an oil spill;25 and trustees of the Federal government or Indian tribes may
sue for damages for injury to, or destruction of natural resources, including the costs of assessing
the damage.26 As mentioned above, natural resources are defined as land, fish, wildlife, biota,
air, water, groundwater, drinking water supplies, and other resources belonging to or managed,
held in trust, or otherwise controlled by the United States, and state and local governments,
Indian tribes, or foreign governments.27
The OPA requires the Federal, state, and tribal governments to designate officials as
trustees of natural resources.28 If these natural resources are damaged by oil spills covered by
the OPA, the trustee is authorized to assess the damages and develop a plan for the restoration,
rehabilitation, or replacement of the resources.29 The trustee must assess damages in accordance
with specific regulations.30 The trustee may seek to recover natural resource damages either by
bringing suit in Federal district court against responsible parties, or by making a claim on the Oil
Spill Liability Trust Fund. The amount of natural resource damages to which the trustee will be
entitled is the sum of the costs of restoring, rehabilitating, replacing, or acquiring the equivalent
24
33 U.S.C. § 2702(b)(2)(B), (E).
25
33 U.S.C. § 2702(b)(2)(D), (F).
26
33 U.S.C. § 2702(b)(2)(A).
27
33 U.S.C. § 2701(20).
28
33 U.S.C. § 2706(b).
29
33 U.S.C. § 2706(c).
30
NOAA issued these regulations in 1996. 15 C.F.R. §§ 990.10-990.66. These regulations provide that natural
resource trustees can consider both “active-use” and “passive-use” losses in assessing natural resource damages.
Active use is the loss of actual use of the resource while passive use is the loss suffered by those who have never
used or intended to use the resource, but value its availability.
9
of the damaged resources; the diminution in value of those natural resources pending restoration;
and the reasonable cost of assessing those damages.31
C. Oil Spill Liability Trust Fund
The OPA establishes an Oil Spill Liability Trust Fund that is financed by a tax on crude
oil and petroleum products. This fund may be used to pay the following: 1) removal costs
incurred by Federal or state authorities consistent with the NCP; 2) costs incurred by trustees to
assess natural resource damages and develop and implement restoration plans; 3) reasonable
Federal administrative costs to implement and enforce the OPA; and 4) claims for
uncompensated removal costs incurred in a manner consistent with the NCP or for
uncompensated damages.32
31
33 U.S.C. § 2706(d).
32
33 U.S.C. § 2712(a).
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