Spills of oil and hazardous substances

AuthorJeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
Chapter XIV:
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).

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