Spills of oil and hazardous substances

• Author: Jeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
• Pages: 1005-1062

1005

Chapter XIV:

SPILLS OF OIL AND

HAZARDOUS SUBSTANCES

A. INTRODUCTION

e heat of public reaction to notorious spill events has fueled oil spill

legislation. ose events have become progressively larger and more damag-

ing as oil transport has come to rely on a new breed of ship: the supertanker.

ese football eld-size behemoths a re so unwieldy that they ta ke miles just

to turn and cannot enter most ports while loaded. Furor over massive coastal

contamination in Engla nd and France from the w reck of the Torrey Canyon

in 1967 and over leaks from oil exploration and production o the California

coast near Santa Barbara in the 1960s, produced legislation in 1970 to pre-

vent and clean up oil spills. Pub. L. No. 91-224, 84 Stat. 91 (1970). When the

Clean Water Act (CWA), 33 U.S.C. §§1251-1387, was amended in 1972, the

provision was codied, unchanged, as §311. It was aga in amended in 1978

to apply to spills of hazardous substance s as well as of oil. e section was

once again substantially amended in 1990 in the wa ke of the Exxon Valdez

oil spill in Alaska, as a part of the Oil Pollution Act (OPA), Pub. L. No. 101-

380, 104 Stat. 484 (1990). e bulk of the OPA was codied separately at 33

U.S.C. §§2701-2761. Both §311 and the OPA must be consulted to obtain

a full understanding of how oil spills are dealt with today.

While these massive spills created public pressure for legislation to prevent

and minimize the eects of oil spills, they also created fears in the ma ri-

time industry that liability for oil spill damages a nd cleanup expenses were

uninsurable and could bankrupt the shipping industry. ese two competing

concerns shaped §311.

Section 311 is relatively simple in both structure and content. It prohib-

its spills, requires t hat spills be reported immediately to the government,

authorizes the government to contain and remediate spil ls, creates a fund

to nance government cleanup action, authorize s recovery of the govern-

ment’s cleanup costs and natural resource da mages, requires the government

to establish a program to prevent spills from occurring, limits the liability

of responsible parties, and provides sanctions for violations. It is the second

1006 Water Pollution Control, 2d Edition

longest section in the CWA, exceeded only by §301. Apart from some of the

denitions in §502, it does not depend on any of the other sections of the

CWA and could easily exist on its own.

Section 311 was the model for later legislation dealing comprehensively

with the remediation of hazardous substance releases to the environment, the

Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA or Superfund), 42 U.S.C. §§9601-9675. Indeed, §311 would have

been absorbed into CERCLA upon its enactment in 1980 if the authorizing

committees for §311 in the U.S. House of Representatives—the Merchant

Marine and Fisheries Comm ittee and the Public Works and Transportation

Committee—were not afraid of losing their jurisdiction to the Energy and

Commerce Committee, the authorizing committee for CERCLA . e term

Superfund denoted a fund that combined the existing oil spill response fund

and the new hazardous substance response fund. In the end, congressional

politics prevailed and the two were not combined. e result was the exclu-

sion of petroleum and its distillates from Superfund coverage, see 42 U.S.C.

§ 9601(14), a nd the decade-long quest for an enhanced oil spill fund. In

a statutory full circle, the 1990 OPA and accompanying amendments to

§311 borrowed several features from CERCLA , making the two authorities

remarkably parallel. Indeed, their similarity is such that the most prominent

regulations promulgated under both are contained in separate parts of the

national contingency plan (NCP), 40 C.F.R. pt. 300. e NCP establishes

the process under which cleanup decisions are made and implemented. As a

practical matter, the enactment of CERCLA displaced §311 as it relates to

hazardous substances. erefore, this chapter concentrates on the application

of §311 to oil spills, a lthough the issues also recur for hazardous substance

releases under CERCLA.

e length of §311 reects the broad reach of the section and the strength

of t he d ivergent interests it attempts to reconcile. For example, it erects a

single liability scheme for spills occurring both in marine and inland waters.

e U.S. Coast Guard and the U.S. Environmental Protection Agency (EPA)

exercise overlapping jurisdiction over events in these waters. is results in

a potential bureaucratic rivalry between the two organizations, which §311

to some degree anticipates and attempts to deal with. e liability scheme

balances the competing interests of placing liability for remediation on those

responsible for spills with placing such an onerous liability on the shipping

industry that it will become bankrupt. Maritime insurance is an important

factor in this balancing process.

Spills of Oil and Hazardous Substances 1007

In a more complicated vein, §311 must deal with the hoary tenets of

admiralty law, which governed maritime matters long before the advent

of § 311, and the contemporary t rend toward international cooperation in

preventing and mitigat ing transbounda ry pollution. Principles of ad miralty

law become most relevant when the government or others seek to recover

damages from oil spills. Not only did admiralty law govern these causes of

action prior to §311, it has not been entirely supplanted by §311. As for the

inuence of international cooperation, the impetus for enacting the original

oil spill legislation in 1970 was provided, in part, by the International Con-

vention on Civil Liability for Oil Pollution Damage, signed in Brussels in

1969. is convention responded to fea rs of t he international shipping and

maritime insurance industries that liabilit y for oil spills could be of such

enormity that maritime insurance would be priced out of the market. e

convention adopted limitations on liability, which the industries urged Con-

gress to adopt. ese limitations were originally reected in §311, but are

now largely supplanted by §2704 of the OPA. 33 U.S.C. §2704. Much of

the length and complexity of § 311 and the OPA can be traced to the dii-

culty of eectively dealing with oil spills, whi le at the same time recognizing

bureaucratic, political, and economic realities.

e general thru st of §311 and of the OPA is well-captured by the com-

mentary of Donald W. Stever in L  C R  H -

 W §6.02[1]:

e premise on which Sect ion 311 and the Oil Pollution Act of 1990 *** rest

is that t he custodian of the oil at the time it e scapes into the environment i s

in t he best position to clean up the spill, and should be obligated to do so

without regard to who was actu ally at fault in the accident. In the event the

custodian f ails to undertake thi s obligation, a fund of federal money is ma de

available to accomplish the task. In addition, it assumes that the private sector

should ultimately be responsible nancially for oil spill cleanup, and a ccord-

ingly the government should have a r ight of action to recover public monies

spent on oil spil ls from the defaultin g custodian. Final ly, since there may be

cases in w hich the custodian is in no sense at fault, t here should be a mecha-

nism for shifti ng the nancial responsibility to the p erson who is at fault. All

these concepts are conta ined within Section 311.

D W. S, L  C R  H

W §6.02[1] (1986).