The Oil Pollution Act

• Author: Valerie Ann Lee/P.J. Bridgen
• Pages: 57-76

Page 57

Chapter 5

The Oil Pollution Act

5.1 Introduction

he Oil Pollution Act (OPA) of 1990 was enacted a year after the Exxon Valdez had spilled millions of

gallons of oil into Prince Will iam Sound, k illing birds and wildlife, and de spoiling hundreds of miles of

pristine Ala skan coa stline. Before Exxon Valdez, Congress had struggled for years to reform oil spill pre-

vention, response, and liability laws to be more logical a nd eective.1 e spill brought heart-wrenching

images of dying birds, sea ls, and sea otters into our homes on prime-time television and silenced an entire

shing industry based in Prince William Sound for months. Exxon Valdez was soon followed by other

major spills. With their devastation, the spills of 1989 and 1990 accomplished what lobbyists and scholars

had not been able to do for years.2 ey provided the impetus to Congress for major statutory revision.

OPA was designed to reform a mélange of federal statutes to make a more comprehensive, eective

framework for oil spill response, prevention, and liability.3 OPA contains nine titles. Title I establishes a

comprehensive liability and compensation scheme for oil spills. It a lso creates mechanisms for recovery

from the $1 billion Oil Spill Liability Trust Fund.4 Title IV contains provisions for oil spill prevention and

federal authority for the removal of oil. Because Titles I and IV are most relevant to natural resource dam-

age assessment (NR DA), the provisions of these titles will be the focus of this chapter.5

5.2 Statutory Framework and Liability

OPA, like the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),

creates a liability framework for the cleanup of spills or threatened spills and the reparation of damages

from them. In craft ing this scheme, Congress followed the “polluter-pays” principle. As we discuss below,

liability falls squarely on those who own facilities and vessels that cause spills or threats. Congress created a

$1 billion fund upon which to draw; however, generally those responding to spills and threats (and natural

1. See Steven R. Swanson, OPA 90 + 10: e Oil Pollution Act of 1990 After 10 Years, 32 J. M. L.  C. 135, 136 (discussing the various

statutes enacted to control oil spills before OPA).

2. e nal court case in the Exxon Valdez punitive damages was resolved by the U.S. Supreme Court 19 years after the spill, although the company

began paying natural resource damages under a settlement in the 1990s. See Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008).

3. e Senate Report notes that, “what the Nation needs is a package of complementary international, national, and state laws that will adequately

compensate victims of oil spills, provide quick, ecient cleanup, minimize damage to sheries, wildlife and other natural resources and internal-

ize those costs within the oil industry and its transportation section.” S. R. N. 101-94, at 2 (1989), reprinted in 1990 U.S.C.C.A.N. 722,

723. OPA made changes to the Intervention on the High Seas Act, the Federal Water Pollution Control Act (FWPCA), the Outer Continental

Shelf Lands Act, Deepwater Port Act and Trans-Alaska Pipeline System Reform Act. See Pub. L. No. 101-380, 104 Stat. 484 (1990) tits. II,

IV; subtits. B and C; and tit. VII.

4. See 33 U.S.C. §2713, ELR S. OPA §1013.

5. Title II contains conforming amendments to four statutes, including the Federal Water Pollution Control Act. See Pub. L. No. 101-380, tit.

2, 104 Stat. 484 (1990). Title III pertains to activities related to international oil spill prevention and removal. See id. tit. III. Title V directs

itself to improving safety in Prince William Sound, Alaska. See id. tit. V. Title VI contains miscellaneous provisions. See id. tit. VI. Title VII

provides for an oil pollution research and development program. See id. tit. VII. Title VIII contains provisions concerning the Trans-Alaska

Pipeline System and oil spills in the Arctic Ocean. See id. tit. VIII. Title IX transferred money from funds established under other laws into

the Oil Spill Liability Trust Fund. See id. Title IX. Money was transferred from funds created by the Federal Water Pollution Control Act,

the Deepwater Port Act of 1974, the Outer Continental Shelf Lands Act, and the Trans-Alaska Pipeline System Reform Act. See 26 U.S.C.

§9509(b).

Page 58 Natural Resource Damage Assessment Deskbook

resource trustees) are required to turn rst to responsible parties for facilities or vessels, giving rise to an

incident for payment, as we describe in succeeding sections in this chapter.

e liability provisions of OPA are broad. In the case of act ual or threatened oil spills in and on waters

and shorelines, OPA provides for recovery by the United States, states, Tribes, and even private parties for

costs associated with responding to the spill, i.e., removal costs, and for damages.6 Given the breadth of

OPA’s denitions, it is triggered any time there is a discharge or threatened discharge of oil from just about

anything moving or xed into or upon waters or shorelines. Unlike other statutes, recoverable damages

are those for public, e.g., NR Ds, and private losses. is situation makes the statute of particula r interest

and utility to private parties seeking redress for oil spills. Liability is strict and joint and several. Defenses

are very limited. OPA swept away the protections of the Limitation of Liability Act of 1851,7 a maritime

law that limits liability in ca ses involving injury related to vessels, which had historically been invoked to

provide great protection from un limited liability in the case of oil spills. OPA created its own limitations

to liability, which a re much higher t han those found in the L iability of Lim itations Act. e elements of

liability under OPA are as follows.

5.2.1 Type and Location of Discharge Triggering OPA Liability

Discharge or Threatened Discharge of Oil

OPA liability is triggered by an actual or threatened discharge of oil from a vessel or a facility into or upon

navigable waters of the United States (including the territorial sea), adjoining shorelines, or the exclusive

economic zone.8 Oil is dened as “[O]il of any kind or in any form, including petroleum, fuel oil, sludge,

oil refuse, and oil mixed with wastes other than dredged spoil . . . .”9 us, OPA covers spills or threatened

spills of oils that are not petroleum oils. In addition, the denition of oil expressly excludes hazardous sub-

stances regulated u nder CERCLA.10 In so dening “oil,” Congress attempted to draw a clear line between

the regulatory authority u nder OPA and CERCLA, with OPA addressing discharges of oil and CERCLA

addressing releases of hazardous substances.

From a Vessel or Facility

OPA paints with a broad stroke when it denes both a “facility” and a “vessel” from which discharges

must occur to trigger liability. Vessel is “every description of watercraft or a rticial contrivance used a s a

means of transportation on water, other than a public vessel.”11 Public vessels are those owned, operated,

or bareboat char tered by a federal, state, or local government, or foreign vessel, which are not engaged in

commerce.12 Facility is similarly broad in coverage and means just about anything other than a vessel used

for producing, processing, storing, exploring for, drilling for, handling, transferring, or transporting oil.13

6. Section 1002(a) of OPA, 33 U.S.C. §2702(a), ELR S. OPA §1002(a), provides the following:

Notwithstanding any other provision or rule of law, and subject to the provisions of this Act, each responsible party for a vessel or a

facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or

adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages specied in subsection (b) that result

from such incident.

Subsection (b) further elaborates on the costs and types of damages recoverable. See 33 U.S.C. §2702(b), ELR S. OPA §1002(b).

7. 46 U.S.C. §§30501-30512 (2012).

8. OPA denes discharge as “any emission (other than natural seepage), intentional or unintentional, and includes, but is not limited to, spilling,

leaking, pumping, pouring, emitting, emptying, or dumping.” 33 U.S.C. §2701(7), ELR S. OPA §1001(7). See also id. §2702(a), ELR

S. OPA §1002(a).

9. Id. §2701(23), ELR S. OPA §1001(23).

10. See id., whichprovides in full

. . . “oil” means oil of any kind or in any form, including petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other

than dredged spoil, but does not include any substance which is specically listed or designated as a hazardous substance under

subparagraphs (A) through (F) of section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act

and which is subject to the provisions of that Act.

11. Id. §2701(37), ELR S. OPA §1001(37).

12. See id. §2701(29), ELR S. OPA §1001(29).

13. See 33 U.S.C. §2701(9), ELR S. OPA §1001(9). One district court found some limits in the OPA denition of facility. It held that a

discharge of fuel from the engine of a derailed locomotive was not covered because the locomotive was not a “facility” within the meaning of

OPA. e court found that the purposes enumerated in the denition of facility evidenced a congressional intent that OPA’s coverage extend