A few months ago, I authored an article for Marine News focused on just one of the many successful features of the Oil Pollution Act of 1990 (“OPA 90,” Pub. L. No. 101-380 (1990)) — Alaska’s regional citizen advisory councils (RCACs). The Prince William Sound and Cook Inlet RCACs were established under OPA 90 to work with oil and gas industry interests on behalf of the surrounding communities to ensure safe operations and community buy-in. I was heartened by the positive responses I received from friends, colleagues, and the general readership, which served as a reminder to me that OPA 90 more broadly is one of the best thought out and smartly crafted environmental statutes of our modern era. Accordingly, I think it is fitting here to revisit some of the largely forgotten events that led to the enactment of OPA 90, and to highlight some of the many effective and impactful features of the Act.
The TORREY CANYON, Ixtoc I, and the EXXON VALDEZ
The 1967 TORREY CANYON disaster marked a significant turning point in public thinking and awareness about oil spills, because of its impacts on coastal communities and the marine environment. It is a classic case of environmental damage. The S.S. TORREY CANYON was a tank ship that was fabricated at Newport News, Virginia, in 1959, and “jumboized” to a dead weight of 120,890 tons at a Japanese shipyard in 1965.
In February, 1967, the TORREY CANYON left the Persian Gulf laden with crude oil and destined for Milford Haven, Wales, via the Cape of Good Hope. Most of the voyage was uneventful. At noon on March 17, the tank ship was near the Canary Islands headed on a course that would take it to the west of the Isles of Scilly, which are just off the southwestern tip of Cornwall. During the remainder of the day, the vessel was actually moved to the East, apparently as a result of strong currents. By 6:30 am on March 18, the ship found itself sailing to the East, rather than to the West, of the Isles of Scilly.
After a number of maneuvers by master and crew attempting to change course and head off disaster, at 8:50 am on March 18, 1967, at full speed and in broad daylight, the TORREY CANYON ran aground on the rocks of the Scilly Islands. Over the days that followed, all of the ship’s 764,303 barrels, or 32,100,757 gallons, of crude oil leaked from its tanks and covered the coasts of southern England and Normandy.
The TORREY CANYON disaster got the world’s attention, and was the beginning of a shift in thinking about marine pollution, which previously had been focused on reducing discharges of oily bilge water and other pollutants that can occur within the scope of a vessel’s routine operations.
Twelve years later, in 1979, North America experienced its own oil spill disaster in Mexican waters in the Bay of Campeche. Ixtoc I was an exploratory oil well drilled by Mexico’s government-owned oil company Petróleos Mexicanos, or PeMex. On June 3, 1979, circulation of drilling mud to the well failed, causing a blowout, explosion, and fire that resulted in the destruction and sinking of the rig involved. For ten months, the well spewed crude oil at an estimated 30,000 barrels (1.26 million gallons) per day. The flow rate was subsequently cut by approximately a third by pumping nearly 100,000 ball bearings into the well to partially clog it. The well was eventually capped with a coffer dam on March 23, 1980, after having released an estimated 3.3 million barrels (138 million gallons) of crude oil into the Gulf, much of which ultimately found its way to the beaches of Mexico and Texas as weathered oil “tar balls.”
In response, Congress spent the better part of the 1980s debating various aspects of major proposals to overhaul U.S. law to promote better oil spill prevention and effective spill response until 1989, when the EXXON VALDEZ marine casualty and environmental disaster in Prince William Sound, Alaska, highlighted the inadequacies of our then existing spill prevention and response framework and generated significant public outrage. The end result was OPA 90.
The Improvements of OPA 90
At the time of the EXXON VALDEZ spill, the Clean Water Act (CWA) represented the broadest authority for addressing oil spills. Section 311 of the CWA (33 U.S.C. 1321), which deals with oil and hazardous substance liability, already contained requirements for oil spill reporting, response, and liability for spill cleanup. It also established a fund (the 311 Fund), maintained by federal appropriations, that could be used for cleanup and natural resource restoration. OPA 90 built on what seemed to work well under section 311 of the Clean Water Act, and incorporated many of the spill prevention and response concepts that had been the subject of protracted debate.
Spill Response Authority
OPA 90 strengthened and clarified the federal government’s role in oil spill response and removal. It amended Section 311(c) of the CWA to provide the President with authority (delegated to the U.S. Coast Guard and EPA as the Federal On-Scene Coordinator for coastal and inland spills, respectively) to perform cleanup immediately using federal resources, to monitor the response efforts of the spiller, and to direct the spiller’s cleanup activities.
Expanded National Contingency Plan
OPA 90 expanded the role and breadth of the National Contingency Plan (NCP) under section 311(d) of the CWA. The 1990 law established a multi-layered planning and response system to improve preparedness and response to spills in the marine environment. Among other things, the Act also required the President to establish procedures and standards (as part of the NCP) for responding to worst-case oil spill scenarios.
New Response Plan Requirements
OPA 90 amended the CWA to require that U.S. tank vessels and offshore facilities prepare and submit oil spill response plans to the federal government. By Executive Order, the Coast Guard reviews and approves Vessel Response Plans, and the Department of Interior’s Bureau of Safety and Environmental Enforcement reviews and approves offshore Facility Response Plans. In general, vessels and facilities are prohibited from handling, storing, or transporting oil if they do not have a spill response plan approved by the appropriate agency. These response plans identify how the owner or operator of a vessel or facility would respond to a worst-case scenario spill.
Phased-In Double Hull Requirement for Tank Vessels
Perhaps the quietest but most significant improvement in spill prevention was the gradual, scheduled phaseout, over the course of 20 years, of single-hull tank vessels, with a single-hull tank vessel prohibited from operating after January 1, 2010. Double hulls have prevented countless spills from occurring over the years. This scheduled phaseout was conducted in a way that minimized economic hardship and disruption, and industry is to be commended for its successful completion.
Expanded Liability
OPA 90 replaced the liability limitations established in section 311 of the Clean Water Act section with much higher ones. It expanded the classes of persons authorized to recover removal costs from the responsible party to “any person” who has incurred removal costs in connection with a discharge of oil into covered waters. Previously, only the federal government could recover removal costs from the responsible party. Additionally, OPA created categories of damages for which the responsible party would be liable, within specified limits, based on the type of vessel or facility involved in the oil spill incident.
OPA 90’s Ultimate Pressure Test: The DEEPWATER HORIZON
For proof of the effectiveness of Congress’s OPA 90 improvements, one need look no further than the sui generis DEEPWATER HORIZON spill in 2010. From April 20 to July 15, 2010, an estimated 3.19 million barrels (just under 134 million gallons) of crude oil spewed into the Gulf waters off the coast of Louisiana, entered the Gulf Stream, and wended its way to East Texas, Louisiana, Mississippi, Alabama, and Florida. While there is always room for improvement, consider that, in the face of this worst oil spill by far in U.S. history under OPA 90: BP as a responsible party ultimately was required to pay over $65 billion in removal costs, penalties, and damage claims; The Coast Guard’s Unified Command under the NCP was successfully stood up and it organized and deployed thousands of response vessels, including local fishing vessels repurposed as vessels of opportunity, for spill response and clean-up; the legal framework was solidly in place for the Natural Resource Damage Assessment trustees to conduct a hard, science-based assessment of resulting damage to Gulf ecosystems and to secure $1 billion in early ecosystem restoration money from BP as a responsible party.
Was the law perfectly matched for this one-of-a-kind (we hope) oil spill? Of course not. The $75 million liability limit for offshore facilities was absurdly low—fortunately, BP’s gross negligence meant that the offshore facility liability cap didn’t apply. The response plan for the Deepwater Horizon when operating as a facility did not even begin to recognize the true worst case spill scenario that unfolded, altohugh this may be as much due to the lax facility response plan approval process of the Minerals Management Service as anything else. My point is that, on the whole, tested by the worst, continuous, 87-day oil spill in U.S. history, the OPA 90 spill regime actually worked better than anyone could have imagined it would.