Oil Pollution Act (OPA)
- Preplanning, nationally and locally, and including all levels of government plus industry, to optimize effectiveness and coordination in spill response.
- Stringent penalties and liability.
- Responsibility of the oil industry, through a tax for the Oil Spill Liability Trust Fund, to help pay for cleanup and losses.
In the predawn hours of March 24, 1989, Captain Joseph Hazelwood radioed fateful words to the US Coast Guard: We’ve fetched up hard aground on Bligh Reef. The oil supertanker Exxon Valdez had strayed from shipping lanes and grounded. The tanker proceeded to spill eleven million gallons of North Slope crude oil into Prince William Sound—an environmental disaster that riveted the attention of the American public. The following year, 1990, Congress enacted the Oil Pollution Act (OPA),1 a comprehensive oil spill prevention and response regime. Legislation for this purpose had been debated in Congress for twenty years, but it did not get enacted until a catastrophe galvanized public demand for environmental protection.
OVERVIEW
The OPA seeks to promote health and the environment by protecting our navigable waters from oil and other hazardous pollution.
Scope
The OPA is aimed at preventing oil spills, ensuring effective response when spills occur, and imposing stringent penalties and liability on those responsible for spills. It applies to spills of oil and hazardous substances on navigable waters and shorelines. In addition to oil, OPA covers spills of hazardous substances on navigable waters (which are covered by CERCLA on land). The OPA greatly increased federal oversight of maritime oil transportation and environmental safeguards, such as
- Requirements for vessel construction and crew licensing
- Mandated contingency planning
- Enhanced federal response capability
- Greater enforcement authority
- Increased penalties and liability
Some of these provisions had existed previously in the Clean Water Act, but the OPA is far more comprehensive and strict. After enactment of OPA, oil spill statistics in the United States notably improved, at least until the blowout of the BP Deepwater Horizon well in the Gulf of Mexico in 2010.
Implementation
Emergency response is a multi-agency, multilevel effort. The US Coast Guard is assigned major responsibilities. The EPA and the National Oceanic and Atmospheric Administration (NOAA) also play important roles. State and local authorities are also involved (see discussion of spill response later in the chapter).
Key Definitions
Regulation is aimed at facilities and vessels that are involved with—and therefore may spill—oil or hazardous substances. A vessel is broadly defined as any “watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water,” other than a vessel owned or operated by a government for noncommercial purposes. A facility is even more broadly defined to mean “any structure, group of structures, equipment or device (other than a vessel) which is used for one or more of the following purposes: exploring for, drilling for, producing, storing, handling, transferring, processing, or transporting oil. This term includes any motor vehicle, rolling stock, or pipeline used for one or more of these purposes.”2
SPILL PREVENTION
The OPA contains comprehensive regulations concerning equipment, personnel, and operations designed to help prevent spills. The major equipment requirement is that all new tanker vessels be built with double hulls. Existing single-hulled tankers are to be phased out.
Alcohol use was an issue in the Exxon Valdez oil spill, and the new personnel regulations reflect concern with drug and alcohol impairment. Requirements include mandatory drug and alcohol testing; background investigation for licensure; and potential loss of licenses for drug and alcohol violations by personnel in safety-sensitive jobs. Other regulations restrict vessel crews’ work hours to avoid fatigue-related mishaps.3
Operational provisions address a variety of matters, including when and where a tanker must have a pilot or tug escorts; when the use of automatic pilot is allowable; and improvements to vessel traffic systems.4
SPILL RESPONSE
Response to an oil spill consists of containment, removal, and, commonly, dispersal of the oil with chemical dispersants. (The response to a CERCLA hazardous substance can be more complex, depending on the characteristics of the substance.) Assuring that spill response is fast, well organized, and maximally effective is a major focus of the OPA. This section describes some of the main features.5
Notification
The spiller is required to notify authorities immediately of any spill, large or small. Failure to do so invokes severe penalties, as described later in the chapter.
Equipment
The equipment needed for spill response is to be strategically placed and ready for rapid mobilization, so that it can quickly reach any location where a spill occurs. This is largely the responsibility of vessel and facility owners, which must ensure, by contract or otherwise, the availability, readiness, and preplacement of response resources. The regulations set specific time limits. For example, vessel owners must be prepared to mobilize response equipment within two hours. Their equipment should be able to reach a spill in a port area within twelve hours. Longer time limits are allowed for inland or offshore spills that are less accessible.
Governmental authorities also have a role in rapid marshaling of response equipment under the OPA. Local area committees, made up of federal, state, and local agencies, are involved in emergency planning. One of their responsibilities is to keep tabs on all available response equipment in their area, no matter if it’s privately or publicly owned. If a spill occurs, the committee’s equipment census lets authorities know exactly what is available and where.
Personnel
Requirements relating to response personnel are analogous to those for equipment. Owners of vessels and facilities are responsible to provide response crews that are trained, drilled, and ready for immediate mobilization to a spill. In addition, local area committees maintain a list of all federal, state, local, and private personnel in their area who can be called up in case of a spill. Coast Guard strike teams, specially trained and equipped to deal with oil spills, can be called in to help.
Lines of Authority
Confusion about lines of authority and responsibility can paralyze a response effort. The OPA makes it very clear that the federal government is in charge, both of public and private response activities. Depending on their assessment of what is needed, federal authorities may simply direct and monitor efforts, or they may “federalize” the response—that is, actively conduct and pay for the response (subject to later reimbursement as discussed in the section on liability for costs, below). One federal official, designated the federal on-scene coordinator (FOSC), is appointed to direct response operations. The on-scene coordinator is the ultimate authority at any spill site.
Planning
Vessels and facilities must have contingency plans for spill response, demonstrating their preparedness and capability to respond to a spill. The plan must, for example, identify the response equipment and personnel available for compliance with OPA requirements. It must describe how the response personnel are trained and drilled. The plan must identify who will be the point person with authority to act for the owner-company in the event of a spill. A plan must be approved by federal authorities, as must any changes to the plan. In addition, vessels and facilities are subject to inspection to ensure they are complying with their plans.
On the government side, there are multiple entities with response functions, all of which engage in planning. There is an overarching plan called the National Contingency Plan