23 ELR 10491 | Environmental Law Reporter | copyright © 1993 | All rights reserved

Federal Oil Pollution Law and Regulatory Developments

Guy E. Wall

Editors' Summary: Whether Congress intended it or not, the Oil Pollution Act of 1990 (OPA) has shaken the entire oil exploration and production industry to its core. Precipitated by the Exxon Valdez oil spill, the Act represents Congress' decision to create a regulatory framework for preventing oil spills and for responding to actual or threatened discharges of oil into U.S. waters, and to change the historical limits on civil and criminal liability to a degree that will almost certainly cause some industry participants to discontinue doing business in the offshore area. The author provides a succinct review of the changes the OPA has brought about that affect the oil exploration and production industry. First the author explores the laws and regulations that control oil spills, including the 1899 Rivers and Harbors Appropriations Act and the Federal Water Pollution Control Act, in light of the changes required by the OPA. The author analyzes the statutory penalty structure that currently exists, which was changed dramatically by the OPA. The author next describes the regulatory structure that controls the prevention of oil spills and the provisions of the OPA that establish contingency planning and federal and private response actions. After addressing the issues of financial responsibility and notification requirements, he discusses the liability and claims procedures for oil spills, including the controversial new liability limits imposed under the OPA.

Mr. Wall is engages in the practice of environmental law at Gordon, Arata, McCollam & Duplantis in New Orleans, Louisiana.

[23 ELR 10492]

I. Introduction

The regulation of oil spills that affect U.S. waters expanded dramatically in the aftermath of the Exxon Valdez oil spill disaster of 1989.1 The purpose of this Article is to outline the existing federal law, regulations, and current developments that directly affect the oil and gas exploration and production industry.

This Article does not discuss the laws applicable to spills on land or current proposals to regulate used oil, and makes only passing refernces to the law applicable to vessels and transportation-related facilities. Readers should be aware that while the scope of this Article is limited to federal laws of nationwide applicability, numerous state laws also regulate oil spills that affect water.

II. Prohibitions Against Oil Discharges

A. Rivers and Harbors Appropriation Act of 1899

The Rivers and Harbors Appropriation Act of 1899 (RHA) prohibits the unpermitted discharge of "refuse matter," which includes oil and petroleum products, into a navigable water of the United States, or into any tributary from which refuse matter will float or be washed into a navigable water.2 A violation of the RHA is a misdemeanor punishable by imprisonment for not less than 30 days nor more than one year, and by a fine of not less than $ 500 nor more than $ 2,500, with one-half of the fine to be paid to the person giving information which leads to a conviction.3

The U.S. Coast Guard, which has primary enforcement jurisdiction over the RHA, has defined "navigable waters" under the Act as:

* the territorial seas of the United States;

* the internal waters4 of the United States that are subject to tidal influence; and

* the internal waters of the United States not subject to tidal influence that are or have been susceptible for use as highways for interstate or foreign commerce, or are capable of improvement at a reasonable cost to provide highways for substantial interstate or foreign commerce.5

The courts have interpreted "navigable waters" under RHA § 13 to mean waters actually navigable for purposes of commerce. Thus, in United States v. American Cyanamid Co.,6 the court held that a tributary of the Hudson River that was not capable of use in commerce was not a navigable water under § 13, even though it was subject to the ebb and flow of the tide. However, a discharge into a nonnavigable tributary constitutes a criminal violation where it is shown more probable than not, as opposed to beyond a reasonable doubt, that the refuse was carried into a navigable water.7

The RHA imposes absolute criminal liability,8 in that a fine may be imposed on a corporation without proof of negligence.9 Indeed, in United States v. White Fuel Corp.,10 the court held that a corporate defendant could not introduce evidence that it was not negligent because such evidence was irrelevant. The court left open the question of whether negligence would be a necessary element of proof if the government sought to convict and incarcerate an individual. In dicta, the court suggested that acts of a third party, including an independent contractor over whom the defendant had no control, and acts of God might constitute a defense to a criminal prosecution under the RHA.11

B. Federal Water Pollution Control Act

1. In General

Section 311(b)(3) of the Federal Water Pollution Control Act (FWPCA)12 prohibits the discharge of oil or hazardous substances in quantities that may be harmful:

* into or on the navigable waters of the United States, their adjoining shorelines, or the waters of the contiguous zone (extending nine miles seaward from the outer limit of the territorial sea);13

* in connection with activities under the Outer Continental Shelf Lands Act14 or the Deep Water Port Act of 1974;15 or

* when the discharge may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States.16

The U.S. Environmental Protection Agency's (EPA's) regulations prohibit potentially harmful discharges of oil if they violate applicable water quality standards; cause a film or sheen upon, or discoloration of, the surface of the water or adjoining shorelines; or cause a sludge or emulsion to be deposited beneath the surface of the water or on the adjoining shorelines.17 Since virtually any amount of oil [23 ELR 10493] spilled on water will create a sheen, all discharges of oil are effectively prohibited.18 Thus, in Orgulf Transport Co. v. United States,19 the court held that a five-gallon spill of diesel fuel was a violation of FWPCA § 311(b)(3).

2. Scope of the FWPCA

The FWPCA defines "navigable waters" as waters of the United States including the territorial seas.20 In contrast to the RHA, the FWPCA has been interpreted to cover all surface waters,21 including any waterway within the United States. Also included are normally dry creeks through which water may flow and ultimately end up in public waters, such as a river, stream, tributary to a river or stream, lake, reservoir, bay, gulf, sea, or ocean within or adjacent to the United States.22 However, the FWPCA's jurisdictional reach does not include groundwater, unless it is directly connected hydrologically with surface waters.23

EPA's regulatory definition of "navigable waters" under the FWPCA specifically includes wetlands,24 and courts have upheld EPA's application of the definition to interstate wetlands and wetlands adjacent to other waters.25 However, isolated26 intrastate wetlands may be beyond EPA's regulatory jurisdiction where no nexus to interstate commerce can be established.27

3. Penalties

In General. A violation of FWPCA § 311(b)(3) subjects the owner or operator of a vessel or facility at the time of a discharge to liability for removal costs and damages, as well as civil and criminal fines.28 Such owners and operators are civilly liable despite any prudent conduct or lack of negligence, and must provide prompt notification of the discharge and proper cleanup.29 Moreover, in United States v. General Motors Corp.,30 the court held that the act of a third party was not a defense to the imposition of a civil penalty for a discharge of oil in violation of § 311(b)(3).31

Administrative Penalties. The Oil Pollution Act of 1990 (OPA)32 amended the FWPCA to increase the administrative penalties that may be assessed for oil or hazardous substance spills. For class I penalties, the OPA increased the penalty from $ 5,000 for each offense to $ 10,000 per violation, not to exceed $ 25,000, and a class II penalty up to $ 10,000 per day not to exceed $ 125,000.33 The proposed class I penalty procedures call for short deadlines, limit the length of legal arguments, constrain the scope and time for administrative discovery, limit the participation of commentators, and use EPA attorneys rather than administrative law judges to preside over hearings.34 FWPCA § 311(b)(6) provides that the imposition of a class II penalty is governed by the Administrative Procedure Act.35

Civil Penalties. As an alternative to administrative penalties, a responsible person is potentially liable for civil penalties. Civil penalties are imposed by courts at an agency's request and range up to $ 25,000 perday of violation, or up to $ 1,000 per barrel of discharged oil or unit of reportable quantity of hazardous substance.36 However, if the discharge results from a responsible party's gross negligence or willful misconduct, that person is subject to a civil penalty of at least $ 1,000 and [23 ELR 10494] not more than $ 3,000 per barrel of discharged oil or unit of reportable quantity of hazardous substance.37

Criminal Penalties. The OPA extends the FWPCA's criminal penalties to cover negligent or knowing discharges of oil or hazardous substances.38 A person who negligently discharges oil or hazardous substances commits a crime punishable by a fine of not less than $ 2,500 nor more than $ 25,000 per day of violation and/or one year of imprisonment for the first conviction. In the event of a second conviction, a fine of up to $ 50,000 per day and/or imprisonment for two years is provided.39

Conviction for a knowing discharge can result in a criminal fine of not less than $ 5,000 nor more than $ 50,000 per day of violation and/or three years imprisonment for the first conviction, and not more than $ 100,000 per day and/or six years of imprisonment for the second conviction.40 And a person who knowingly endangers another by discharging oil or hazardous substances commits a crime punishable by a fine up to $ 250,000 and/or 15 years imprisonment or, if the person is an organization, a fine of up to $ 1 million.41

III. Prevention of Oil Spills

A. Spill Control Regulations for Facilities

1. Regulatory Jurisdiction for Spill Prevention

The FWPCA, as amended by the OPA, required the President to issue regulations establishing procedures, methods, equipment, and other requirements to prevent discharges of oil from vessels and facilities, and to contain such discharges.42 By Executive Order No. 11735,43 President Nixon delegated to EPA the authority to regulate nontransportation-related onshore and offshore facilities, and delegated the authority to regulate onshore and offshore transportation-related facilities and vessels to the department in which the Coast Guard is operating (currently the Department of Transportation).

Nontransportation-related facilities include fixed and mobile onshore and offshore oil well drilling, production, and storage facilities, and all equipment and appurtenances relating thereto. Such facilities do not include terminal facilities, units, or processes integrally associated with the handling or transferring of oil in bulk to or from a vessel.44 Transportation-related onshore and offshore facilities include terminal facilities, transfer hoses, loading arms, and other equipment used to transfer oil in bulk to or from a vessel or pipeline system (excluding piping used to transport oil within the confines of a facility).45

Both EPA and the Coast Guard have issued regulations designed to prevent and contain oil spills. The Coast Guard's regulations apply to facilities transferring oil or hazardous material in bulk to a vessel,46 as well as to the actual conduct of the transfer itself.47 However, EPA's regulations, discussed below, have the greatest impact on the exploration and production industry.

2. Nontransportation-Related Facilities

Covered Facilities. The Oil Pollution Prevention (OPP) Regulation48 promulgated by EPA establishes requirements for nontransportation-related onshore and offshore facilities to prevent the discharge of oil into the navigable waters of the United States or adjoining shorelines.49 Owners and operators of such facilities are subject to the OPP Regulation unless either a facility could not reasonably be expected to discharge oil to the water or shorelines due to its location, or because a facility has a surface storage capacity no greater than 1,320 gallons (or greater than 660 gallons aboveground in a single tank), or a buried underground oil storage capacity no greater than 42,000 gallons.50

Spill Prevention and Countermeasures. Facilities subject to the OPP Regulation are required to have certain spill prevention features, such as appropriate containment and diversionary structures or equipment, including dikes, culverts, ponds, or sorbent materials.51 Further, owners and operators of such facilities must prepare a spill prevention control and countermeasures (SPCC) plan. An SPCC plan describes all prevention features and includes, if appropriate, a written description of each spill within the last 12 months, the corrective action taken, plans for preventing another occurrence, and a prediction of the direction, rate of flow, and total quantity of oil that could be discharged from the facility as a result of equipment failure.52

Filing Requirements and Penalties. The owner or operator of a facility that has discharged more than1,000 gallons of oil into the water or adjoining shoreline in a single event, or discharged oil that created a sheen in two events within any 12-month period, must submit an SPCC plan and other information to the applicable EPA regional administrator within 60 days of the discharge.53 Owners or operators who violate the [23 ELR 10495] requirements of the OPP Regulation are liable for a civil penalty up to $ 5,000 per day of violation.54

B. Proposed Revisions to Spill Control Regulations

The 1988 oil spill from an Ashland Oil Company petroleum tank into the Monongahela River led to the formation of a task force to examine the federal regulations governing spills of oil from aboveground storage tanks.55 The task force recommended that EPA clarify certain regulatory language and notification requirements contained in the OPP Regulation and expand the overall scope of the Regulation to include requirements for facility-specific oil spill contingency plans.56 On October 22, 1991, EPA proposed revisions to the OPP Regulation that would modify the requirements regarding plan preparation and require that owners and operators subject to the Regulation notify EPA of their facility's existence, size, and number of storage tanks.57

IV. Contingency Planning and Response Actions

The OPA was enacted to reduce oil spills and to improve the nation's preparedness and ability to respond to them.58 Through amendments to the FWPCA, the OPA provides for a national planning and response system to ensure effective and immediate removal of a discharge, or threat of discharge, of oil or hazardous substances.

A. Federal Response Authority

The OPA requires the President to ensure the effective and immediate removal of a discharge, and mitigation or prevention of a substantial threat of a discharge, of oil or hazardous substances: (1) into or on the navigable waters of the United States and their adjoining shorelines, or the waters of the exclusive economic zone (which extends 200 nautical miles out from the U.S. coast); or (2) that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States.59

In carrying out this assignment, the OPA grants the President several options. The President may federalize the effort by assuming responsibility for, and the costs of, cleanup actions, subject to reimbursement from the responsible party. The President may also either (1) direct or monitor all federal, state, and private actions, or (2) remove and, if necessary, destroy a vessel discharging or threatening to discharge.60 However, the President must direct all federal, state, and private actions to remove a discharge, or to mitigate or prevent a substantial threat of a discharge, if it is of such size or character as to be a substantial threat to the public health, welfare, or natural resources.61 A civil penalty of up to $ 25,000 per day of violation may be imposed on owners, operators, or persons in charge of vessels or facilities who fail to carry out federal orders regarding the removal of a spill.62

The President, by Executive Order No. 12777, delegated these functions to the EPA Administrator for the inland zone and to the secretary of the department in which the Coast Guard is operating for the coastal zone.63 The "coastal zone" means all U.S. waters subject to the tide, U.S. waters of the Great Lakes, specified ports and harbors on inland rivers, the waters of the exclusive economic zone, and the air, land, and groundwater proximate thereto.64 The "inland zone" means the environment inland of the coastal zone, excluding the Great Lakes and specified ports and harbors on inland rivers.65

B. Government Contingency Planning

1. The National Contingency Plan (NCP)

The NCP, which is the common abbreviation for the National Oil and Hazardous Substances Pollution Contingency Plan,66 coordinates the duties and responsibilities of federal, state, and private groups in responding to spills of oil and hazardous substances.67 The OPA requires the President to amend the NCP to include procedures and standards for removing a "worst case" discharge of oil, for mitigating or preventing a substantial threat of such a discharge, and for coordinating the activities of Coast Guard strike teams (formerly termed "strike forces" under FWPCA § 311), federal on-scene coordinators, district response groups, and area committees.68 The revised NCP must also include a national surveillance and notice system intended to give immediate warning of spills, and a national response center to coordinate and direct the implementation [23 ELR 10496] of the plan.69 The President delegated the task of revising the NCP to EPA.70

Under the NCP, the on-scene coordinator is the federal official who coordinates and directs federal response efforts at the scene of a discharge.71 The Coast Guard captains-of-the-port are the designated federal on-scene coordinators for oil pollution responses in the coastal zone, while EPA regional administrators are the designated coordinators for the inland zone.72

2. National Planning and Response System

The OPA amended FWPCA § 311(j) to establish a national planning and response system,73 consisting of a national response unit (NRU),74 Coast Guard strike teams,75 Coast Guard district response groups,76 area committees,77 area contingency plans, and vessel and facility response plans. The OPA also mandated the creation of response areas for which an area committee, consisting of qualified personnel appointed by the President from federal, state, and local agencies, was required by February 18, 1992, to submit for approval an area contingency plan.78 This deadline, however, was not met. When implemented in conjunction with the NCP, an area contingency plan would be adequate to remove a worst-case discharge and mitigate or prevent a substantial threat of such a discharge from a vessel, offshore facility, or onshore facility operating in or near the area.79

C. Private Response Plans

The owner or operator of a vessel or facility must respond immediately to the discharge or threatened discharge of oil.80 The OPA expands the private contingency planning and response requirements for oil spills that were contained in the FWPCA.81 Through the OPA, Congress intended private parties to supply the bulk of any equipment and personnel needed for oil spill response in a given area.82 Many companies are forming cooperatives in order to share the burden associated with creating and maintaining an oil spill response capability.

[23 ELR 10497]

1. Affected Facilities and Regulatory Jurisdiction

The OPA required the President to issue regulations by August 18, 1992, compelling owners or operators of tank vessels, offshore facilities, and certain onshore facilities to prepare and submit response plans for worst-case oil and hazardous substance discharges, which will be integrated into the area contingency plans.83 The affected onshore facilities are those that, because of their location, could reasonably be expected to cause substantial harm to the environment by discharging oil into or on the navigable waters, adjoining shorelines, or the exclusive economic zone.84 EPA has also suggested that even facilities that do not pose a threat of substantial harm may have to prepare, but not submit, a response plan.85

EPA proposed a two-part definition of "substantial harm" for subjecting a nontransportation-related onshore facility to the response plan regime.86 First, a facility is deemed to have the potential to cause "substantial harm" if it transfers oil over water to or from vessels, and has a storage capacity greater than 42,000 gallons. Second, a facility has the potential to cause "substantial harm" if its total oil storage capacity is greater than one million gallons (about 23,800 barrels), and if any one of the following is true:

(i) the facility is located at a distance such that a discharge from the facility would shut down operations at a public drinking water intake;

(ii) the facility is located at a distance such that a discharge from the facility could cause injury to an "environmentally sensitive area";

(iii) the facility does not have secondary containment for each above-ground storage area sufficient to contain the capacity of the largest tank in each area; or

(iv) the facility has had a spill of 10,000 gallons (about 238 barrels) or more during the past five years. Under the proposed rule, the EPA regional administrator would also have the power to determine on a case-by-case basis that a facility had the potential to cause "substantial harm" even absent satisfaction of the two-prong test. In contrast to the SPCC regulations, which apply to more than 400,000 facilities, the EPA regulations are expected to apply to only about 6,500 facilities.87

The Coast Guard's interim final rule provides that fixed and mobile (tank trucks and railroad truck cars) marine transportation-related facilities that are used, or intended to be used, for transferring oil, in bulk, to or from a vessel with a capacity of 250 barrels or more fall within this substantial harm category.88 Even if this test is not met, the port captain may require the submission of a response plan.89 As a practical matter, substantial harm facilities under this rule will be mostly mobile facilities, because most fixed facilities that meet the substantial harm test will also meet the significant and substantial harm test, discussed below.90

Using these criteria, most of the 3,500 transportation-related facilities in the coastal zone that handle oil will be required to prepare and submit response plans to the Coast Guard's various captain-of-the-port offices.91 The Coast Guard estimates the cost of developing a response plan for a small to moderate facility at between $ 20,000 and $ 70,000, resulting in an estimated first year cost to all affected oil facilities of between $ 70 million and $ 245 million. These estimates do not include the cost of additional pollution response equipment, the cost of retaining a spill response contractor, or belonging to a spill response cooperative.92

The Department of Transportation (DOT) determined that all onshore pipelines could reasonably be expected to cause substantial harm to the environment by discharging oil into the navigable waters or adjoining shorelines, except for "small" or "distant" pipelines.93 A "small" pipeline is 6 [23 ELR 10498] and 5/8 inches or less in outside nominal diameter, is 10 miles or less in length, and meets all of the following conditions: (1) the pipeline has not experienced a release greater than 1,000 barrels within the previous five years; (2) the pipeline has not experienced two or more reportable releases within the previous five years; (3) a pipeline made of electric resistance welded pipe manufactured prior to 1970, which does not operate at a pressure that creates a stress level greater than 50 percent of the pipe's minimum yield strength; and (4) the pipeline is not in proximity to public drinking water intakes, navigable waters, or environmentally sensitive areas.94 A "distant" pipeline is one far enough away from navigable waters, public drinking water intakes, or environmentally sensitive areas that it is not reasonable to expect that a discharge would have an adverse effect within 12 hours after release.95 The owners and operators of small and distant pipelines need not prepare and submit a response plan.

The OPA requires the President to review all submitted vessel and offshore facility response plans, and any response plan submitted for an onshore facility that, because of its location, could reasonably be expected to cause both "significant and substantial harm" to the environment by discharging into or on the navigable waters, adjoining shorelines, or the exclusive economic zone.96 The President delegated to EPA the responsibility for issuing regulations governing the preparation, submittal, and approval of response plans for nontransportation-related onshore facilities; to the DOT for tank vessels, transportation-related onshore facilities, and deepwater ports; and to the Department of the Interior (DOI) for offshore facilities including associated pipelines.97 Neither EPA, the DOT, nor the DOI issued regulations by the August 18, 1992, deadline.98 As of February 18, 1993, the deadline for private parties to submit their response plans, EPA still had not issued final regulations, but rather suggested reliance on its proposed February 17, 1993, regulations.

There is no legal mandate for the local Coast Guard on-scene coordinator, on whom the NCP places responsibility for responding to a spill in the coastal zone, to review the response plan of a nontransportation-related facility in the coastal zone.99 Likewise, an EPA coordinator theoretically could have to cope with a spill from a transportation-related facility without ever having seen the response plan, or more importantly, from a facility which, unknown to the coordinator, was not required to have a response plan.100 There is, however, a general agreement between EPA and the Coast Guard that an on-scene coordinator will be able to review any response plan required from a facility in his or her response zone before the agency with authority to approve the plan grants final approval.101

2. Plan Deadlines and Penalties

After February 18, 1993, tank vessels and facilities that are required to prepare a plan may not handle, store, or transport oil unless their plan has been submitted to the President.102 After August 18, 1993, a vessel or facility required to have a plan may not handle, store, or transport oil unless the following conditions are met: (1) in the case of a tank vessel, [23 ELR 10499] offshore facility, or onshore facility required to have an approved plan, the plan has been approved; and (2) the vessel or facility is operating in compliance with the plan.103 However, if the owner or operator of the tank vessel, offshore facility, or onshore facility certifies that it has ensured the availability of equipment and personnel necessary to respond, to the maximum extent practicable, to a worst-case discharge, then operations may continue pending plan approval for up to two years after the plan was submitted for approval.104 The OPA imposes FWPCA § 311(b)(6)'s administrative and civil penalty scheme for failure to comply with regulations under § 311(j) regarding oil and hazardous substance contingency response plans.105

3. Plan Contents

A response plan must identify and ensure by contract, or other approved means, the availability of private personnel and equipment sufficient to remove, to the maximum extent practicable, a worst-case discharge, and to mitigate or prevent a substantial threat of a discharge.106 The phrase "to the maximum extent practicable" embodies a technological limitation associated with oil spill removal and is not intended to prevent a significant increase in commercial removal resources.107

V. Financial Responsibility

A. In General

The OPA requires owners and operators of vessels and facilities to establish and maintain evidence of financial responsibility, and imposes civil sanctions for noncompliance. Every vessel and facility must have a certificate of financial responsibility, which may be established by:

(1) evidence of insurance;

(2) surety bond;

(3) guarantee;

(4) letter of credit;

(5) qualification as a self-insurer; or

(6) other evidence of financial responsibility.108

Owners and operators may continue to operate under their current certificates of financial responsibility until new regulations are promulgated.109 The states, however, are free to impose additional financial responsibility requirements.110

It appears that the OPA's financial responsibility requirements will be extremely difficult to meet. Insurance companies, through which most owners and operators obtain evidence of financial responsibility, have stated they will not provide evidence of financial responsibility because of the OPA's right of direct action.111

B. Onshore Facilities

The OPA does not require evidence of financial responsibility for onshore facilities. However, certain onshore facilities are subject to financial responsibility requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)112 and are generally subject to regulation by the states.113

C. Offshore Facilities

Each party responsible for an offshore facility must establish and maintain evidence of financial responsibility of $ 150 million.114 The financial responsibility requirements for a person that owns or operates more than one offshore facility [23 ELR 10500] is still $ 150 million, but it must cover each offshore facility owned or operated by that party.115

Financial responsibility for a deepwater port must equal either the current maximum level of responsibility, $ 350 million, or an amount not less than $ 50 million established by the Coast Guard.116 There is only one deepwater port in the United States, the Louisiana Offshore Oil Port (LOOP) facility off the coast of Louisiana.

D. Vessels and Mobile Offshore Drilling Units

Each party responsible for a vessel over 300 gross tons, except a nonself-propelled vessel that does not carry oil as cargo or fuel or any vessel using waters of the exclusive economic zone to tranship or lighter oil destined for the United States, must establish and maintain evidence of financial responsibility in the amount of the vessel's applicable liability limit, which is based on its tonnage. These limits are discussed below.117 A mobile offshore drilling unit is treated as a vessel in determining liability limits, unless it is being used as an offshore facility, in which case it is treated in some respects as a tank vessel and in other respects as an offshore facility.118

E. Enforcement

A vessel without evidence of financial responsibility may be denied entry into the United States, detained, and, in some cases, seized and forfeited.119 Moreover, failure of a vessel or facility to comply with financial responsibility requirements subjects the owner or operator to a civil penalty of $ 25,000 per day, or, alternatively, the Department of Justice can obtain an order compelling compliance or termination of operations.120

VI. Notification Requirements

A. Duty to Report Spill

Any person in charge of a vessel or facility must notify the National Response Center by telephone, (800) 424-8802, as soon as he has knowledge of any discharge of oil or hazardous substance from such vessel or facility in violation of FWPCA § 311(b)(3).121 If direct reporting to the National Response Center is not practicable, reports may be made to the predesignated Coast Guard or EPA on-scene coordinator for the geographic area where the discharge occurs.122 Failure to notify immediately is a crime punishable by a fine of not more than $ 500,000 for a corporation, not more than $ 250,000 for an individual, and/or not more than five years imprisonment.123 In United States v. Ashland Oil & Transportation Co.,124 the corporate defendant was convicted for failing to immediately notify the appropriate authorities where it knew of a spill by 7:00 p.m., but did not report it until 10:00 a.m. the next day.

B. Federal Immunity

Before the OPA, FWPCA § 311(b)(5) provided that the required notification, or information obtained through that notification, could not be used in a criminal case against any person giving the information.125 The immunity provided by § 311(b)(5) was limited to criminal prosecutions and was not applicable to civil proceedings.126 The courts interpreted that section as not only prohibiting the government from using information contained in the notification, but also from using any information derived therefrom. Thus, the government had to show that the evidence it introduced to prove a criminal violation of the RHA or the FWPCA was not derived from the defendant's § 311(b)(5) notification.127 The courts rejected the government's argument that "person" referred only to a natural person, and held that corporations were also able to invoke the notification immunity.128 The courts also rejected the government's contention that a corporation was entitled to "use" immunity only if the highest person in charge, as opposed to a lower-level employee, made the report. Thus, in United States v. General American Transportation Corp.,129 the court held that it was sufficient for any employee or agent to make the report so long as it was made by, under the direction of, or with the specific consent of, a person reasonably described as being "in charge," though not necessarily the highest ranking individual.

The OPA amended FWPCA § 311(b)(5) by limiting the immunity to natural persons and by limiting the scope of the immunity to the information contained in the notification itself.130 The House Conference Report accompanying the OPA explains the purpose of this amendment: "Section 4301(a)(3) would eliminate all use immunity arising from a spill notification by persons other than natural persons, and would eliminate derivative use immunity arising from a spill notification by natural persons."131 Thus, § 311(b)(5) provides no immunity to a corporation when one of its employees reports the spill.

The amended § 311(b)(5) also allows the government to use information derived from the notification in a prosecution of the individual making the notification, which, when coupled with the requirement that the notification must be given, may violate an individual's Fifth Amendment right [23 ELR 10501] against self incrimination.132 Corporations, however, do not have a privilege against self incrimination.133 As amended, § 311(b)(5) may have the unintended effect of acting as a disincentive to reporting, particularly where the spill may go undetected by third parties.

VII. Liability and Claims Procedures for Oil Spills

A. Liability for Removal Costs and Damages

1. Liability, Contribution, and Jurisdiction

The OPA imposes strict liability for removal costs and damages on persons responsible for vessels and facilities where (1) there is a discharge, or threat of discharge from a vessel or facility, (2) of oil, or (3) into navigable waters, their adjoining shorelines, or the exclusive economic zone.134 Each responsible party may assert a claim for contribution or indemnity against any other person liable under the OPA or any other law.135 The U.S. district courts have jurisdiction over all controversies arising under the OPA with venue in the district in which the discharge or injury occurred, or where the defendant resides or has his principal office.136 State courts may also hear claims under the OPA for removal costs and damages.137

2. Persons Liable

The OPA imposes liability for oil spill response costs and damages on "responsible parties." "Responsible parties" are defined by their relationship with the source of the discharge as:

* any person owning, operating, or demise chartering (bareboat chartering) a vessel;138

* any person owning or operating an onshore facility, but not including any governmental entity that owns a facility but has given another person the right to use it;139

* the lessee, permittee, or holder of a right of use and easement for the area where an offshore facility is located, but not a governmental entity that, as owner, has given another person the possession and right of use by lease, assignment or permit;

* any person owning or operating a pipeline; and

* the licensee of a deepwater port licensed under the Deepwater Port Act of 1974.140

A mobile offshore drilling unit (MODU) that is used as an offshore facility is deemed to be a vessel for the purpose of determining the responsible party, unless and until removal costs and damages exceed the amount for which that responsible party is liable.141 To the extent liability exceeds that amount, the lessee, permittee, or holder of a right of use for the area where the MODU is located is the responsible party.142 The OPA does not explicitly identify the responsible party for a MODU that is not being used as an offshore facility. Nonetheless, in those circumstances, a MODU falls within the definition of a vessel and will probably be treated as one for the purpose of determining the responsible party.143

3. Defenses

Liability may be avoided where the discharge was caused solely by an act of God, an act of war, or an act or omission of a third party who is not an employee or agent of the responsible party, or who is acting under contract (except for common carriage by rail) to the responsible party.144 None of these defenses are available, however, if the responsible party fails: (1) to report the spill, assuming he knew or had reason to know about it; (2) to cooperate and assist in removal efforts if requested to do so by a responsible government official; or (3) to comply with official orders in connection with removal activities, unless he has sufficient cause not to do so.145

Further, none of these defenses apply to a responsible party's liability to federal, state, or local governments for removal costs incurred in connection with the discharge from a facility located on the Outer Continental Shelf (OCS) or a vessel carrying oil as cargo therefrom.146 Additionally, the act of God and act of third-party defenses are available only where the responsible party exercised due care and foresight.147 And a responsible party is not liable to a claimant to the extent that the oil spill was caused by the claimant's gross negligence or willful misconduct.148 A responsible party's failure to report the spill or cooperate with government officials will not bar this gross negligence/willful misconduct defense.149

When a responsible party establishes the third-party defense, the third party will be treated as the responsible party150 and may assert the responsible party's liability limits.151 Nonetheless, the responsible party must pay removal costs and damages to any claimant, at which time he will become subrogated to the rights of the United States and the claimant to recover the amount of said claims from the third party or from the Oil Spill Liability Trust Fund, discussed below.152

[23 ELR 10502]

B. Immunity for Response Participants

The OPA amended FWPCA § 311(c) to provide immunity from liability for those taking action in response to an actual or threatened oil spill. Congress intended the amendment to remove the legal concerns that could deter a cleanup contractor from prompt and aggressive response activities.153 Thus, persons rendering assistance or advice consistent with the NCP, except for responsible parties, are immune from any action arising therefrom except for: (1) an action for personal injury or wrongful death, (2) a response action under CERCLA, or (3) gross negligence or willful misconduct. A responsible party will be liable for any removal costs and damages for which another person is relieved of liability by virtue of this immunity.154 Moreover, state-law liability is not affected by this immunity.155

C. Liability Limits

Under the OPA a responsible party's total liability may be subject to certain limits. These limits, which are to be periodically adjusted, also apply to third parties if they are liable.156 However, as noted, the OPA does not preempt state law, which may provide for unlimited liability.157

1. Vessels

The liability limits for tank vessels are the greater of (a) $ 1,200 per gross ton or (b) $ 2 million for vessels of 3,000 gross tons or less, or (c) $ 10 million for vessels larger than 3,000 gross tons.158 However, these limits do not apply to liability for removal costs incurred by federal, state, or local governments or agencies in connection with a discharge from a vessel transporting oil from an OCS facility.159 For other vessels, the limit is the greater of $ 600 per gross ton or $ 500,000.160 A responsible party maynot take advantage of the Limitation of Liability Act.161

2. Facilities

Liability is limited to $ 350 million for onshore facilities and deepwater ports.162 However, this limit may be reduced by federal regulations to not less than $ 8 million depending on size, storage capacity, oil throughput, proximity to sensitive areas, type of oil handled, history of discharges, and other risk factors.163 Additionally, the secretary of transportation may reduce the limits of liability for deepwater ports to not less than $ 50 million if justified by a study of operational and environmental risks of using such ports as opposed to conventional ports.164 For offshore facilities, liability is limited to $ 75 million in damages, but liability for removal costs is unlimited.165

3. Mobile Offshore Drilling Units

When a MODU is being used as an offshore facility, the liability is allocated first to the MODU owner or operator up to the limits of liability of a tank vessel. If those limits are exceeded, then liability is allocated to the lessee or permittee for the area where it is located up to the liability limits for an offshore facility, but reduced by the amount for which the MODU owner or operator is liable.166 When a MODU is not being used as an offshore facility, it will probably be treated as a vessel for the purpose of determining liability limits.167

4. Exceptions

The liability limitations will not apply if either: (1) the incident was caused by gross negligence, willful misconduct, or the violation of applicable federal safety, construction, or operating regulations by the responsible party, his agent, employee, or contractor; or (2) the responsible party failed to (a) report the spill despite knowing or having reason to know of it, (b) cooperate and assist with removal efforts if requested to do so by a responsible official, or (c) comply with official removal orders unless sufficient cause not to do so existed.168 Further, there are no liability limits for the removal costs incurred by federal, state, or local governments in responding to an actual or threatened discharge of oil from an OCS facility or a vessel transporting oil therefrom.169

D. Removal Costs and Damages

1. Removal Costs

A responsible party is liable for the costs of removal actions that are consistent with the NCP. Included are the cost of actions to avertthe threat of a discharge, to ensure immediate and effective containment and removal of oil or hazardous substances, and actions necessary to protect fish, shellfish, wildlife, public and private property, shorelines, beaches, and living and nonliving natural resources.170

2. Types of Damages

A responsible party is liable for damage to:

[23 ELR 10503]

* natural resources;171

* real or personal property;

* subsistence use of natural resources;

* government revenues;

* profits and earning capacity; and

* increased costs of public services, including fire, safety, and health protection.172 In providing for loss of profits and earning capacity, the OPA eliminates the requirement that a claimant show physical damage to his property as a prerequisite to recovery.173 Additionally, interest on a claim must be paid without regard to the liability limits, and begins to run 30 days after the claim is presented to the responsible party.174 An offer equal to the amount finally paid in satisfaction of a claim, if made within 60 days of presentation of the claim, results in the elimination of interest.175

E. Claims Procedures and the Oil Spill Liability Trust Fund

The Coast Guard, where appropriate, is required to designate the source of a spill and, if a vessel or facility is involved, to notify the responsible party of the designation.176 Designation may not be appropriate for minor spills where there is no possibility that any removal costs or damages will be sustained by any potential claimant.177

A responsible party or guarantor must either deny the designation within five days of receipt of the notice or, within 15 days of the date of designation, commence advertising for 30 days the designation and the procedures by which claims may be presented.178 If the source of a spill is a public vessel, is unknown, or the responsible party denies the designation within five days of receiving notice, the Coast Guard must advertise or otherwise notify claimants of the procedures by which claims may be presented for payment out of the Oil Spill Liability Trust Fund (the Fund).179

The OPA created the Fund to provide for prompt payment of response costs and damages by combining a number of other funds. The Fund's liability is limited to $ 1 billion per incident, with not more than $ 500 million of that amount for natural resource damage assessments and claims.180

Claims may be presented directly to the Fund when the Coast Guard has advertised or otherwise notified claimants.181 Claims by a responsible party, by the governor of a state for removal costs, or by a United States' claimant if the discharge is from a foreign offshore unit, may also be presented directly to the Fund.182 Otherwise, claims must be first presented to the responsible party or guarantor and then, if the claim is denied or not settled by payment within 90 days, the claimant may elect to either commence an action in court against the responsible party or present the claim to the Fund.183

Once a claimant pursues a court action against a responsible party, that same claim may not also be presented to, or approved for payment by, the Fund during the pendency of the court action.184 This should encourage most claimants to go directly to the Fund for payment, since they will not have to contend with the delays inherent in a court proceeding. Thus, the Fund is likely to be the payor of most claims in the first instance, while the OPA's financial responsibility regime provides the Fund with a source of recovery for its subrogation claims.

Any person or entity, including the Fund, which pays a claim for removal costs or damages is subrogated to the claimant's right to recover from the responsible party.185 Alternatively, the Fund may be subrogated to a claimant's rights under state law.186 A responsible party may also assert a claim against the Fund if the party is entitled to a defense under the OPA, or if it paid more than its liability limit.187

[23 ELR 10504]

F. Statute of Limitations

Damage claims must be brought within three years after the date on which the loss, and the connection of the loss with the discharge, is reasonably discoverable. Natural resource damage claims must be brought within three years of the date of the completion of a natural resource damage assessment.188

Actions for removal costs may be brought at any time after costs have been incurred, but must be commenced within three years after completion of the removal action.189 In such a case, the court is required to enter a declaratory judgment on liability that will be binding in any subsequent action involving the same parties.190 Contribution actions must be brought within three years after the date of judgment in any action under the OPA for recovery of such costs or damages, or the date of entry of a judicially approved settlement regarding such costs or damages.191 Subrogation actions must be brought within three years of the date of the payment of the claim.192 The rights of minors and incompetents are preserved until such time as they become legally competent or a legal representative is duly appointed.193

VIII. Conclusion

The FWPCA effectively prohibits the discharge of any amount of oil into water and, together with the OPA, provides a broad regulatory framework for the prevention of, response to, and liability for, actual or threatened discharges of oil into U.S. waters. Failure to report oil spills is a crime and information derived from notification of an oil spill can now be used to prosecute the informant for a negligent discharge. Owners and operators of vessels and facilities that discharge oil are strictly liable for increased penalties, response costs, and damages.

Significantly, the OPA increased financial responsibility requirements to the point where some participants simply will be unable to continue doing business in the offshore area. Federal, state, and local governments are currently involved in a massive effort to prepare for oil spill response actions. Privately owned and operated facilities will soon have to expend considerable sums to demonstrate the financial and logistical capability of responding to a worst-case spill. In view of all this, the cost of doing business for those that remain will increase.

1. On March 24, 1989, the Exxon Valdez ran aground spilling 11 million gallons of crude oil into Prince William Sound in Alaska, the largest oil spill into U.S. waters in history. Precipitated by public outcry over the spill and the lack of regulatory oversight, Congress passed H.R. 1465 and President Bush signed the Oil Pollution Act of 1990 on August 18, 1989.

2. 33 U.S.C. § 407 (1988). See United States v. Standard Oil Co., 384 U.S. 224 (1966).

3. Id. § 411.

4. Internal waters are the waters shoreward of the territorial sea baseline. See 33 C.F.R. § 2.05-20 (1992).

5. 33 C.F.R. § 2.05-25 (1992). See also United States v. Appalachian Elec. Power Co., 311 U.S. 377 (1940); United States v. Stoeco Homes, Inc., 498 F.2d 597, 4 ELR 20390 (3d Cir. 1974), cert. denied, 420 U.S. 927 (1975). Jurisdiction over tidally influenced navigable waters extends from the three-mile limit of the territorial seas shoreward to the mean high-water mark in its unobstructed, natural state. Leslie Salt Co. v. Froehlke, 578 F.2d 742, 8 ELR 20480 (9th Cir. 1978); see United States v. Rohm & Haas Co., 500 F.2d 167, 4 ELR 20738 (5th Cir. 1974), cert. denied, 420 U.S. 962 (1975). For a comparison of how the Coast Guard defines "navigable waters" under FWPCA § 313, see n.21 and accompanying text.

6. 354 F. Supp. 1202 (S.D.N.Y. 1973), aff'd, 480 F.2d 1132, 3 ELR 20656 (2d Cir. 1973).

7. Id.

8. United States v. White Fuel Corp., 498 F.2d 619, 622, 4 ELR 20531, 20532 (1st Cir. 1974).

9. United States v. American Cyanamid, 354 F. Supp. 1202 (S.D.N.Y. 1973), aff'd, 480 F.2d 1132, 3 ELR 20656 (2d Cir. 1973).

10. 498 F.2d 619, 4 ELR 20531 (1st Cir. 1974).

11. Id. at 624, 4 ELR at 20533.

12. 33 U.S.C. § 1321(b)(3), ELR STAT. FWPCA 043.

13. 40 C.F.R. § 300.5 (1992).

14. 43 U.S.C. §§ 1331-1356 (1988), ELR STAT. OUT. 045.

15. 33 U.S.C. §§ 1501-1524 and 43 U.S.C. § 1333 (1988).

16. Id. § 1321(b)(3). Natural resources are not defined for the purpose of the jurisdictional scope of FWPCA § 311(b)(3).

17. 40 C.F.R. § 110.3 (1992).

18. Orgulf Transport Co. v. United States, 711 F. Supp. 344, 19 ELR 21294 (W.D. Ky. 1989). See also Chevron, U.S.A., Inc. v. Yost, 919 F.2d 27, 21 ELR 20336 (5th Cir. 1990).

Prior to amendment in 1978, FWPCA § 311(b)(3) prohibition on discharges of harmful quantities of oil was interpreted to mean that de minimis discharges of oil were permissible if they caused no harm. United States v. Chevron Oil Co., 583 F.2d 1357, 8 ELR 20847 (5th Cir. 1978) (§ 311 was not violated by a discharge of oil that caused a sheen where the defendant could prove that it was not harmful.) See also United States v. Boyd, 491 F.2d 1163, 3 ELR 20434 (9th Cir. 1973). In 1978, § 311 was amended to prohibit discharges of quantities of oil that may be harmful, resulting in the current rule that even de minimis spills are prohibited.

19. 711 F. Supp. 344, 19 ELR 21294 (W.D. Ky. 1989).

20. FWPCA § 502(7), 33 U.S.C. § 1362(7) (1988).

21. See United States v. Byrd, 609 F.2d 1204, 1209, 9 ELR 20757, 20760 (7th Cir. 1979) (the FWPCA's scope is as broad as Congress' constitutional reach under the Commerce Clause).

The Coast Guard defines "navigable waters" under FWPCA § 313 as:

(1) territorial seas;

(2) internal waters subject to tidal influence;

(3) internal waters not subject to tidal influence that are susceptible for use in interstate commerce or capable of improvement at a reasonable cost to provide highways for interstate commerce;

(4) all waters within the United States that are tributary to the foregoing waters; and

(5) other waters over which the federal government may exercise constitutional authority.

33 C.F.R. § 2.05-25(b) (1992).

22. United States v. Phelps Dodge Corp., 391 F. Supp. 1181, 1187, 5 ELR 20308, 20311 (D. Ariz. 1975). See also United States v. Texas Pipe Line Co., 611 F.2d 345, 10 ELR 20184 (10th Cir. 1979); United States v. Ashland Oil & Transp. Co., 504 F.2d 1317 (6th Cir. 1974).

23. McClellan Ecological Seepage Situation v. Weinberger, 707 F. Supp. 1182, 1193-97, 19 ELR 20124, 20128-30 (E.D. Cal. 1988); Kelley v. United States, 618 F. Supp. 1103, 16 ELR 20080 (D. Mich. 1985); United States v. GAF Corp., 389 F. Supp. 1379, 1383, 5 ELR 20581, 20583 (S.D. Tex. 1975).

24. 40 C.F.R. § 110.1 (1992).

25. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR 20086 (1985).

26. Isolated wetlands are not adjacent to an open body of water.

27. See Hoffman Homes, Inc. v. EPA, 961 F.2d 1310 (7th Cir. 1992) (use by migratory birds not interstate commerce) vacated, 975 F.2d 1554, 22 ELR 21547 (in a peculiar order, resulting from a petition for rehearing and answer thereto, the Seventh Circuit vacated its holding and ordered settlement negotiations).

28. See Quaker State Corp. v. U.S. Coast Guard, 681 F. Supp. 280, 18 ELR 20826 (W.D. Pa. 1988) (government must prove discharge occurred when defendant operated property).

29. United States v. Atlantic Richfield Co., 429 F. Supp. 830, 18 ELR 20826 (E.D. Pa. 1977), aff'd sub nom and without opinion, United States v. Gulf Oil Corp., 573 F.2d 1303 (3d Cir. 1978); United States v. Le Beouf Bros. Towing Co., 537 F.2d 149, 6 ELR 20708 (5th Cir. 1976), cert. denied, 430 U.S. 987 (1977).

30. 403 F. Supp. 1151, 6 ELR 20248 (D. Conn. 1975).

31. Id. at 1157, 6 ELR at 20249.

32. 33 U.S.C. §§ 2701-2761, ELR STAT. OIL POLL. 001-034.

33. 33 U.S.C. § 1321(b)(6)(B) (1988 & Supp. III 1991).

34. 56 Fed. Reg. 29996 (1991) (to be codified at 40 C.F.R. pt. 28) (proposed July 1, 1991).

35. 5 U.S.C. §§ 554, 556, ELR STAT. ADMIN. PROC. 4, 5.

36. 33 U.S.C. § 1321(b)(7)(A) (1988 & Supp. III 1991).

37. Id. § 1321(b)(7)(D).

38. Id. § 1319(c).

39. Id. § 1319(c)(1).

40. Id. § 1319(c)(2).

41. Id. § 1319(c)(3).

42. Id. § 1321(j)(1)(c).

43. 38 Fed. Reg. 21243 (1973).

44. 40 C.F.R. app. § 112 (1992).

45. Id.

46. 33 C.F.R. pt. 154 (1992).

47. Id. pt. 156.

48. 40 C.F.R. § 112 (1992).

49. EPA's definition of "navigable waters," for the purpose of this regulation, does not explicitly include wetlands. 40 C.F.R. § 112.2 (1992).

50. 40 C.F.R. § 112.1(d) (1992).

51. Id. § 112.7(c). Appropriate containment or diversionary structures for offshore facilities include curbing, drip pans, sumps, and collection systems. Id. § 112.7(c)(1). Where such structures are not practicable, the owner or operator must demonstrate the impracticability and provide a strong oil spill contingency plan and a written commitment of manpower and equipment to expeditiously control and remove any harmful quantity of oil. Id. § 112.7(d).

52. 40 C.F.R. § 112.7 (1992). The plan must be prepared within six months of commencement of operations, fully implemented within the next six months, and certified by a registered professional engineer. Id. § 112.3(b)(d). A complete copy of the plan must be maintained at any facility attended at least eight hours per day, or at the nearest field office if the facility is not so attended. Id. § 112.3(e).

53. 40 C.F.R. § 112.4 (1992).

54. Id. § 114.1.

55. 56 Fed. Reg. 54612, 54613 (1991).

56. Id.

57. Oil Pollution Prevention, 56 Fed. Reg. 54612, 54614 (1991) (to be codified at 40 C.F.R. pt. 112) (proposed October 22, 1991). Under the proposed revision, an SPCC plan must be in place prior to the time operations commence, as opposed to the current requirement that the plan be in place within six months of commencement. Id. at 54618. The plan must describe the facility; include a diagram showing the location and contents of storage tanks; describe the unit-by-unit storage capacity; describe the type and quantity of oil stored; estimate potential discharge amounts; describe possible spill pathways; outline spill prevention, containment, and countermeasures; describe disposal of recovered materials; and provide a contact list with telephone numbers. Id. at 54634. The proposed rule requires that the plan be certified by an independent (not in-house) registered professional engineer and be amended or updated before any changes are made in the facility's design, construction, operation, or maintenance that would affect the facility's potential for discharge of oil. Id. at 54634. Records of inspection and maintenance would be maintained with the plan for five years, an increase from the previous three-year term. Id. at 54635.

58. 57 Fed. Reg. 1933 (1992).

59. 33 U.S.C. § 1321(c)(1)(A) (1988 & Supp. III 1991). See H.R. CONF. REP. NO. 653, 101st Cong., 2d Sess. 101, 145 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 824.

60. 33 U.S.C. § 1321(c) (1988 & Supp. III 1991).

61. Id. § 1321(c)(1).

62. Id. § 1321(b)(7)(B).

63. 56 Fed. Reg. 54757 (1991).

64. 40 C.F.R. § 300.5 (1992).

65. Id.

66. The NCP dates back to at least 1968 and, since 1972, has provided a regulatory framework for planning and response actions related to discharges of oil and hazardous substances, first under FWPCA § 311 program, and later under the Superfund program (Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100 Stat. 1613 (1986)).

67. 40 C.F.R. pt. 300 (1992). See 33 U.S.C. § 1321(d) (1988 & Supp. III 1991).

68. 33 U.S.C. § 1321(d) (1988 & Supp. III 1991).

69. Id.

70. Exec. Order No. 12777, 56 Fed. Reg. 54757, 54758 (1991).

71. 40 C.F.R. § 300.120 (1992).

72. Id.

73. 33 U.S.C. § 1321(j) (1988 & Supp. III 1991). See H.R. CONF. REP. No. 653, 101st Cong., 2d Sess. 101, 148, reprinted in 1990 U.S.C.C.A.N. 779, 827.

74. The National Response Unit (U.S. Coast Guard, Ste. 1, 1023 U.S. Hwy. 17 S., Elizabeth City, NC 27909 (919) 331-6007) must (1) compile a list of oil spill removal resources, personnel, and equipment worldwide; (2) coordinate use of private and public personnel and equipment to remove a worst-case discharge; (3) administer Coast Guard strike teams; (4) provide technical assistance and equipment to the federal on-scene coordinator; and (5) review and maintain on file area contingency plans. 33 U.S.C. § 1321(j)(2) (1988 & Supp. III 1991).

75. The Coast Guard strike teams consist of available, trained personnel, adequate oil and hazardous substance pollution control equipment, and a detailed oil and hazardous substance pollution prevention plan, including measures to protect fish and wildlife. 33 U.S.C. § 1321(d)(2)(C) (1988 & Supp. III 1991). These teams are available on request by any federal on-scene coordinator to provide assistance, guidance, and training. H.R. CONF. REP. No. 653, 101st Cong., 2d Sess. 101, 149, reprinted in 1990 U.S.C.C.A.N. 779, 828. The Coast Guard is establishing an Atlantic Strike Team at Fort Dix, New Jersey, that will compliment two existing strike teams, the Pacific Strike Team in Novato, California, and the Gulf Strike Team in Mobile, Alabama. BENNARDO, NO MORE "BUSINESS AS USUAL," 49 PROCEEDINGS OF THE MARINE SAFETY COUNCIL 3, 6 (May-June 1992).

76. The OPA mandates the creation of a district response group in each of the 10 Coast Guard districts. 33 U.S.C. § 1321(j)(3) (1988 & Supp. III 1991). Each group will consist of Coast Guard personnel and equipment for each port within the district, additional prepositioned equipment, and district advisory staff. H.R. CONF. REP. No. 653, 101st Cong., 2d Sess. 101, 149, reprinted in 1990 U.S.C.C.A.N. 779, 828. The Coast Guard must give priority to several factors in determining where to locate the response groups and prepositioned equipment, including (1) the availability of facilities suitable to load and unload heavy or bulky equipment by barge; (2) the proximity to an airport capable of supporting large military transport aircraft; (3) the flight time to provide response to oil spills in all areas of the Coast Guard district that hold the potential for marine casualties; (4) the availability of trained local personnel capable of responding in an oil spill emergency; and (5) areas where large quantities of petroleum products are transported. Id. The district response groups should provide rapid response activities at least until a contractor employed by a responsible party can arrive on the scene. 33 U.S.C. § 1321(j)(3) (1988 & Supp. III 1991). The response group will also provide technical assistance at the direction of the federal on-scene coordinator, assist in the preparation of area contingency plans, and maintain all Coast Guard response equipment. Id.

77. The area committees replace the emergency task forces previously required by FWPCA § 311(c)(2)(C). The President delegated to EPA the authority to designate areas, appoint area committee members, and approve area contingency plans for the inland zone and to the Coast Guard for the coastal zone. Exec. Order No. 12777, 56 Fed. Reg. 54757, 54758 (1991). The Coast Guard has designated as areas those portions of the 47 existing captain-of-the-port zones that are within the coastal zone. 33 C.F.R. § 3 (1992). See 57 Fed. Reg. 15201 (1992). EPA will likely designate as areas those portions of existing regions within the inland zone.

78. 33 U.S.C. § 1321(j)(4)) (1988 & Supp. III 1991); See H.R. CONF. REP. No. 653, 101st Cong., 2d Sess. 101, 149, reprinted in 1990 U.S.C.C.A.N. 779, 828; 57 Fed. Reg. 1933 (1992).

79. See OPA § 4202(b); 57 Fed. Reg. 1933, 1934 (1992). The area committees will have no formal role during an actual response, even though the on-scene coordinator and some of the area committee members will be involved in coordinating it. 57 Fed. Reg. at 1935.

The area contingency plan must conform to the policies of the NCP and should:

(1) describe and address a worst-case discharge and measures to mitigate or prevent a substantial threat of such a discharge from a vessel or facility;

(2) describe the area covered by the plan, including areas of special economic, recreational, political, or environmental importance that might be damaged by a discharge;

(3) describe the responsibilities of federal, state, and local agencies in preparedness, planning, and responding to a discharge or substantial threat of a discharge;

(4) describe the responsibilities of an owner or operator of a facility or vessel in removing a discharge or mitigating or preventing a substantial threat of a discharge;

(5) list the response equipment, dispersants, devices, and personnel available to an owner or operator and federal, state, and local agencies to ensure an effective and immediate removal of a discharge and ensure mitigation or prevention of a substantial threat of discharge;

(6) describe the procedures to obtain an expedited decision regarding the use of dispersants; and

(7) describe in detail how the area contingency plan is integrated into other area contingency plans and private response plans, and into the procedures of the National Strike Force Coordination Center. Id.

80. 33 U.S.C. § 1321(c) (1988 & Supp. III 1991).

81. See OPA § 4202(a); 33 U.S.C. § 1321(j)(5) (1988 & Supp. III 1991).

82. H.R. CONF. REP. No. 653, 101st Cong., 2d Sess. 101, 149, reprinted in 1990 U.S.C.C.A.N. 779, 827.

83. 33 U.S.C. § 1321(j)(5) (1988 & Supp. III 1991).

The following definitions are pertinent to this requirement:

(1) A tank vessel is a vessel that carries oil or hazardous materials in bulk as cargo or cargo residue and that is a U.S. vessel, operates on U.S. navigable waters, or transfers oil or hazardous material in a port or place subject to the jurisdiction of the United States; 46 U.S.C. § 2101 (1988 & Supp. III 1991).

(2) A facility is any structure or device other than a vessel used for exploring for, storing, or transporting oil, including motor vehicles, rolling stock or pipelines; 33 U.S.C. § 2701(a) (1988 & Supp. III 1991).

(3) An offshore facility is a facility located in, on or under any of the navigable waters of the United States or located in, on, or under any water and subject to the jurisdiction of the United States; id. § 2701(22).

(4) An onshore facility is a facility located in, on, or under land within the United States; id. § 2701(24).

(5) A worst-case discharge means, in the case of a vessel, a discharge of the entire cargo in adverse weather conditions and, in the case of a facility, the largest foreseeable discharge in adverse weather conditions. Id. § 2735(b). The largest foreseeable discharge from a given type of facility is intended to describe a case that is worse than either the largest spill to date or the maximum probable spill for that facility type. See H.R. CONF. REP. NO. 653, 101st Cong., 2d Sess. 101, 147, reprinted in 1990 U.S.C.C.A.N. 779, 826.

84. 33 U.S.C. § 1321(j)(5)(B)(iii) (1988 & Supp. III 1991). See H.R. CONF. REP. NO. 653, 101st Cong., 2d Sess. 101, 149-50, reprinted in 1990 U.S.C.C.A.N. 779, 828-29 (requirement for onshore facility owners and operators to submit response plans should be applied broadly). HUNT, HOW FACILITIES WILL RESPOND TO OPA 90, 49 PROCEEDINGS OF THE MARINE SAFETY COUNCIL 23, 26 (May-June 1992) [hereinafter HUNT]. See Facility Response Plans, 57 Fed. Reg. 8707, 8709 (1992) (to be codified at 33 C.F.R. pt. 154) (advance notice of proposed rulemaking March 11, 1992).

85. 58 Fed. Reg. 8823, 8827 (Feb. 17, 1993).

86. Id. at 8823, 8826.

87. 58 Fed. Reg. 8823, 8845 (Feb. 17, 1993).

88. 58 Fed. Reg. 7330, 7332, (1993) (to be codified at 33 U.S.C. pts. 150, 154). The Coast Guard's interim final rule defines significant and substantial harm facilities as fixed marine transportation-related facilities capable of transferring oil to or from a vessel with a capacity of 250 barrels or more, deepwater ports, and any other facility selected by the port captain on a case-by-case basis. 58 Fed. Reg. 7330, 7353 (1993) (to be codified at 33 C.F.R. § 154.1015).

89. Id.

90. Id. at 7335, 7340.

91. See 57 Fed. Reg. at 8714.

92. Id.

93. 58 Fed. Reg. 244, 247-49 (Jan. 5, 1993). The DOT's interim final rule requires a company-wide core response plan and "response zone" appendices that address geographical variables. 58 Fed. Reg. 244, 247 (Jan. 5, 1993) (response plans for onshore oil pipelines) (to be codified at 49 C.F.R. pt. 194). "Response zone" is vaguely defined as a geographic area containing one or more "line sections." Id. at 254. A "line section" means a continuous run of pipe that is contained between adjacent pressure pump stations, between a pressure pump station and a terminal or breakout tank, between a pressure pump station and a block valve, or between adjacent block valves. Id. If a response zone contains a line section that could reasonably be expected to cause "significant and substantial harm," then the plan must be approved. Id. at 255.

Finally, a line section, and hence a pipeline, can be reasonably expected to cause "significant and substantial harm" if it is greater than 6 5/8 inches in outside nominal diameter, greater than 10 miles in length, and any of the following conditions exist:

(1) the line section has experienced a release greater than 1,000 barrels within the previous five years;

(2) the line section has experienced at least two reportable releases within the previous five years;

(3) a line section containing electric resistance-welded pipe, manufactured prior to 1970, which operates at a maximum operating pressure that corresponds to a stress level greater than 50 percent of the minimum yield strength of the pipe;

(4) the line section is located within a five-mile radius of potentially affected public drinking water intakes and could reasonably be expected to reach public drinking water intakes; or

(5) the line section is located within a one-mile radius of potentially affected environmentally sensitive areas, as defined in this rule, and could reasonably be expected to reach these areas.

94. 58 Fed. Reg. at 248.

95. Id.

96. 33 U.S.C. § 1321(j)(5)(D) (1988 & Supp. III 1991). The word "significant" is intended to limit the number of response plans for onshore facilities that are to be reviewed and approved by the President. See H.R. CONF. REP. NO. 653, 101st Cong., 2d Sess. 101, 150, reprinted in 1990 U.S.C.C.A.N. 779, 829. In EPA's proposed regulations, determining whether an onshore nontransportation-related facility's discharge has the potential to cause "significant and substantial harm" to the environment, thus triggering the need for review and approval of a facility's response plan, is left to the determination of EPA regional administrators on a region-to-region basis. In addition to the two-prong "substantial harm" test, the regional administrators would be required to consider "facility compliance history, age of tanks, proximity of discharge sources to navigable waters and additional areas of environmental concern, regional site characteristics, and local impacts on public health." 58 Fed. Reg. 8823, 8826-27 (Feb. 17, 1993). EPA has solicited comments on the appropriateness and relative importance of these criteria, as well as the need for additional criteria. Id. at 8827.

97. Exec. Order No. 12777, 56 Fed. Reg. 54757, 54761 (1991).

98. On January 5, 1993, the DOT published interim final regulations for response plans for onshore oil pipelines (58 Fed. Reg. 244, Jan. 5, 1993) (to be codified at 49 C.F.R. pt. 194), and on February 2, 1993, published interim final regulations for oil spill prevention and response plans applicable to cargo tanks (tank trucks), railroad cars, and portable tanks (58 Fed. Reg. 6864, Feb. 2, 1993) (to be codified at 49 C.F.R. pt. 171 et seq.). On February 8, 1993, the DOI, through the Minerals Management Service (MMS), published interim final regulations governing the spill response plans for offshore facilities, including state submerged lands and pipelines. 58 Fed. Reg. 7489 (Feb. 8, 1993) (to be codified at 30 C.F.R. pt. 254). On February 5, 1993, the DOT, through the Coast Guard, issued interim final regulations covering response plans for marine transportation-related facilities, defined as any onshore facility (including piping), any structure used to transfer oil to or from a vessel, and any deepwater port. 58 Fed. Reg. 7330 (Feb. 5, 1993) (to be codified at 33 C.F.R. pts. 150 and 154). The Coast Guard has identified the first valve inside the secondary containment as separating the marine transportation-related segment of the facility from the nontransportation-related segment. For below-ground storage or tanks without secondary containment, the separation between facilities may be a valve or pump located on or adjacent to the tanks. Id. at 7335-36. On February 17, 1993, just one day before the plan submission deadline, EPA published a proposed rule addressing facility response plan requirements for nontransportation-related onshore facilities. 58 Fed. Reg. 8823 (Feb. 17, 1993) (to be codified at 40 C.F.R. pt. 112). See also 58 Fed. Reg. 7376 (Feb. 5, 1993) (Coast Guard's interim final rule for vessel response plan in the coastal zone the response plans) (to be codified at 33 C.F.R. pt. 155).

99. HUNT, supra note 85, at 26. See supra text at notes 72-73.

100. Id.

101. 57 Fed. Reg. 8707 (1992) (facility response plans) (to be codified at 33 C.F.R. pt. 154) (rule proposed March 11, 1992). HUNT, supra note 85, at 26. The intent is for both the Coast Guard and EPA to review plans from certain facilities that could be expected to pose significant and substantial harm to the environment. Id.

102. See OPA § 4202(b)(4)(B), ELR STAT. OIL POLL. 019.

103. Id. OPA § 4202(b)(4)(C), ELR STAT. OIL POLL. 019. See 33 U.S.C.A. § 1321(j)(5)(E) (West Supp. 1993).

104. 33 U.S.C.A. § 1321(j)(5)(F) (West Supp. 1993).

105. 33 U.S.C. § 1321(b)(6) & (b)(7) (1988 & Supp. III 1991).

106. 33 U.S.C.A. § 1321(j)(5)(C)(iii) (West Supp. 1992).

The plan must also:

(1) be consistent with the NCP and the area contingency plans;

(2) identify a qualified individual with full authority and capability to activate the response plan;

(3) describe the training, equipment, drilling, periodic unannounced drills, and actions of facility personnel to ensure the safety of the facility, and to mitigate or prevent the discharge, or substantial threat of discharge;

(4) be updated periodically; and

(5) be resubmitted for approval of each significant change. 33 U.S.C. § 1321(j)(5)(c) (1988 & Supp. III 1991); See HUNT, supra note 85, at 24.

The plan requirements are contained in interim final regulations issued by the Coast Guard, the DOT, and the DOI, and in proposed regulations issued by the EPA. See 58 Fed. Reg. 7330 (1993) (Feb. 5, 1993, the Coast Guard's regulations for response plans for marine transportation-related facilities, to be codified at 33 C.F.R. pts. 150, 154); 58 Fed. Reg. 8824 (1993) (Feb. 17, 1993, EPA's proposed regulations for nontransportation-related onshore facilities, to be codified at 40 C.F.R. pt. 112); 58 Fed. Reg. 6864 (Feb. 2, 1993, the DOT's interim final regulations for cargo tanks (tank trucks), railroad tank cars, and portable tanks, to be codified at 40 C.F.R. pt. 171 et seq.); 58 Fed. Reg. 7489 (Feb. 8, 1993, the DOI's, through the MMS, interim final regulations for offshore facilities, including state submerged lands and pipelines, to be codified at 30 C.F.R. pt. 254); 58 Fed. Reg. 244 (Jan. 5, 1993, the DOT's interim final rule for onshore pipelines, to be codified at 49 C.F.R. pt. 194). See also 58 Fed. Reg. 7376 (Feb. 5, 1993, the Coast Guard's interim final regulations for vessels, to be codified at 33 C.F.R. pt. 155). The MMS regulations incorporate the existing spill contingency planning requirements imposed on lessees operating in the Outer Continental Shelf (OCS) and extend those requirements to state waters seaward of the ordinary low-water mark along the coast. 58 Fed. Reg. at 7489, 7491; 30 C.F.R. pt. 150 (existing OCS planning requirements). These regulations and proposed regulations impose complicated new planning requirements, the details of which are beyond the scope of this Article.

107. H.R. CONF. REP. NO. 653, 101st Cong., 2d Sess. 101, 150, reprinted in 1990 U.S.C.C.A.N. 779, 829.

108. 33 U.S.C. § 2716(e) (1988 & Supp. III 1991).

The regulations proposed for vessels would require that financial responsibility as a self-insurer be established by maintaining, in the United States, both working capital and net worth in the required amount. 56 Fed. Reg. 49005, 49012 (1991) (financial responsibility for water pollution (vessels)) (to be codified at 33 C.F.R. pt. 130) (proposed September 26, 1991)). "Working capital" means the amount of current assets located in the United States less all current liabilities. Id. at 49012. "Net worth" means the amount of all assets located in the United States less all liabilities anywhere in the world. Id. If this test were applied to facilities, only a few major oil companies could meet it.

109. 33 U.S.C. § 2716(h) (1988 & Supp. III 1991).

110. Id. § 2718.

111. See id. § 2716(f) (right of direct action).

112. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 001-075.

113. Id. § 9608(b).

114. 33 U.S.C. § 2716(c)(1) (1988 & Supp. III 1991).

115. Id.

116. Id. § 2716(c)(2).

117. Id. § 2716(a). See infra text at notes 159-62.

118. Id. § 2704(b). See infra text at notes 167-68.

119. Id. § 2716(b).

120. 33 U.S.C.A. § 2716a (West Supp. 1992).

121. 33 U.S.C. § 1321(b)(5) (1988 & Supp. III 1991); 40 C.F.R. § 110.10 (1992).

122. 40 C.F.R. § 110.10 (1992).

123. 33 U.S.C. § 1321(b)(5); 18 U.S.C. §§ 3559, 3571 (1988 & Supp. III 1991).

124. 504 F.2d 1317, 4 ELR 20784 (6th Cir. 1974).

125. 33 U.S.C. § 1321(b)(5) (1988) (amended).

126. United States v. Ward, 448 U.S. 242, 10 ELR 20477 (1980) (no immunity in action for civil penalty under FWPCA § 311(b)(6)).

127. United States v. General American Transp. Corp., 367 F. Supp. 1284 (D.N.J. 1973) (issue of whether evidence was derived from notification determined at trial on the merits).

128. See, e.g., United States v. Republic Steel Corp., 491 F.2d 315, 4 ELR 20276 (6th Cir. 1974); United States v. Mobil Oil Corp., 464 F.2d 1124, 2 ELR 20456 (5th Cir. 1972).

129. 367 F. Supp. 1284 (D.N.J. 1973).

130. 33 U.S.C. § 1321(b)(5) (1988 & Supp. III 1991).

131. H.R. CONF. REP. NO. 653, 101st Cong., 2d Sess. 101, 153, reprinted in 1990 U.S.C.C.A.N. 779, 832.

132. See Kastigar v. United States, 406 U.S. 441, 453 (1972) (government may compel testimony only if it grants derivative-use immunity).

133. Doe v. United States, 487 U.S. 201, 206 (1988).

134. 33 U.S.C. § 2702(a) (1988 & Supp. III 1991).

135. Id. §§ 2702(a), 2709, 2710.

136. Id. § 2717(b).

137. Id. § 2717(c).

138. Id. § 2701(32)(A). "Vessel" is defined to include every type of watercraft except for noncommercial vessels that are owned (or bareboat chartered) and operated by either the United States, a foreign country, a state, or a political subdivision of a state. Id. § 2701(29).

139. Id. § 2701(32)(C).

140. Id. § 2701(32)(C)-(E).

141. Id. § 2704(b).

142. Id. See 33 U.S.C. § 2701(32) (definition of responsible party for offshore facility).

143. 33 U.S.C. § 2701(37) (1988 & Supp. III 1991).

144. Id. § 2703(a).

145. Id. § 2703(c).

146. Id. §§ 2701(25), 2704(c)(3).

147. Id. §§ 2701(1), 2703(a)(3).

148. Id. § 2703(b).

149. Id. § 2703(c).

150. Id. § 2702(d)(1)(A).

151. Id. § 2702(d)(2).

152. Id. § 2702(d)(1)(B). See infra text at notes 181-87.

153. H.R. CONF. REP. NO. 653, 101st Cong., 2d Sess. 101, 146, reprinted in 1990 U.S.C.C.A.N. 779, 825.

154. Id. § 1321(c)(4).

155. Id. §§ 2717(c), 2718(a).

156. 33 U.S.C. § 2702(d)(2) (1988 & Supp. III 1991).

157. Id. § 2718(a). Further, a state court judgment on an OPA or state law claim is valid and enforceable for all purposes under the OPA. Id. § 2717(c).

158. Id. § 2704(a)(1).

159. Id. § 2704(c)(3).

160. Id. § 2704(a)(2).

161. See id. § 2702(a); H.R. CONF. REP. NO. 653, 101st Cong., 2d Sess., reprinted in 1990 U.S.C.C.A.N. 722, 781.

162. 33 U.S.C. § 2704(a)(4) (1988 & Supp. III 1991).

163. Id. § 2704(d)(1).

164. Id. § 2704(d)(2).

165. Id. § 2704(a)(3).

166. Id. § 2704(b)(2); S. REP. NO. 94, 101st Cong. 2d Sess. 1, 12 (1990), reprinted in 1990 U.S.C.C.A.N. 722, 733-34.

167. 33 U.S.C. § 2701(37) (1988 & Supp. III 1991).

168. Id. § 2704(c)(1), (2).

169. Id. § 2704(c)(3).

170. Id. §§ 2701(30), (31), 2702(b)(1).

171. Natural resources include land, fish, wildlife, biota, air, water, groundwater, drinking water supplies, and other resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States, any state, local government, Indian tribe, or any foreign government. 33 U.S.C. § 2701(20) (1988 & Supp. III 1991). These entities may recover for damages to natural resources and are required to develop plans for the restoration, rehabilitation, replacement, or acquisition of natural resources equivalent to those damaged. Id. § 2706(c). The measure of natural resource damages includes the cost of restoring, rehabilitating, replacing, or acquiring the equivalent of the damaged natural resources; the diminution in value of those resources pending restoration; and the reasonable costs of assessing those damages. Id. § 2706(d)(1).

172. Id. § 2702(b). The notion that oil and gas, while still in the ground, is a fugacious substance, insusceptible of private ownership until reduced to possession, is derived from the law applicable to wild animals. A wild animal, which could not be owned or possessed, could be destroyed with impunity because, not having an owner, no one would suffer damage. Environmental laws such as CERCLA, the FWPCA, and most recently, the OPA, change these notions by recognizing society's interest in things not owned or possessed in the traditional sense.

The National Oceanic and Atmospheric Administration (NOAA) is developing regulations for natural resource damage assessments that will establish a rebuttable presumption as to the value of such damages in any administrative or judicial proceeding. The regulations may include a compensation table for use where precise injury is difficult to ascertain (e.g., in a small spill), which would establish predetermined values for damaged resources, (e.g., dollar-per-gallon formula, per-animal value, or an amount based on footage of beach affected, etc.). In addition to a compensation table, NOAA is considering a range of assessment procedures similar to those developed by the DOI under CERCLA. 57 Fed. Reg. 8964(1992) (natural resource damage assessments) (to be codified at 15 C.F.R. ch. IX) (advanced notice of proposed rulemaking Mar. 13, 1992). See also Natural Resource Damage Assessments, 43 C.F.R. pt. 11 (1990) (natural resource damage assessments under CERCLA).

173. H.R. CONF. REP. NO. 653, 101st Cong., 2d Sess. 101, 103, reprinted in 1990 U.S.C.C.A.N. 779, 781.

174. 33 U.S.C. § 2705(b)(1), (5) (1988 & Supp. III 1991).

175. Id. § 2705(b).

176. Id. § 2714(a). See 57 Fed. Reg. 36314, 36321-22 (August 12, 1992) (claims under the OPA) (the Coast Guard's interim final rule to be codified at 33 C.F.R. pt. 136).

177. H.R. CONF. REP. NO. 653, 101st Cong., 2d Sess. 101, 118 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 796.

178. 33 U.S.C. § 2714(b) (1988 & Supp. III 1991). See 57 F.R. 36314 (August 12, 1992) (claims under the OPA) (the Coast Guard's interim final rule to be codified at 33 C.F.R. pt. 136).

179. 33 U.S.C. § 2714(c) (1988 & Supp. III 1991).

180. 26 U.S.C.A. § 9509(c)(2) (West Supp. 1992).

181. 33 U.S.C. § 2713(b) (1988 & Supp. III 1991).

182. Id.

183. Id. § 2713(c). See 57 Fed. Reg. at 36317 (Aug. 12, 1992) (to be codified at 33 C.F.R. § 136.103).

184. Id. § 2713(b)(2). See 57 Fed. Reg. at 36317 (Aug. 12, 1992) (to be codified at 33 C.F.R. § 136.103).

185. Id. § 2715. See 57 Fed. Reg. at 36318 (to be codified at 33 C.F.R. § 136.107).

186. 33 U.S.C. § 2718(c) (1988 & Supp. III 1991).

187. Id. § 2708.

188. Id. § 2717(f)(1).

189. Id. § 2717(f)(2).

190. Id.; see H.R. CONF. REP. NO. 653, 101st Cong., 2d Sess. 101, 121, reprinted in 1990 U.S.C.C.A.N. 779, 799.

191. 33 U.S.C. § 2717(f)(3) (1988 & Supp. III 1991).

192. Id. § 2717(f)(4).

193. Id. § 2717(f)(5).

23 ELR 10491 | Environmental Law Reporter | copyright © 1993 | All rights reserved