The Donovan Law Group

The Oil Pollution Act Provides for the Federalization of the BP Oil Spill

Posted in BP, federalize, oil spill, OPA 90, responsible party by renergie on June 5, 2010

The Oil Pollution Act Provides for the Federalization of the BP Oil Spill

By Brian J. Donovan

June 5, 2010

President Obama has stated, “The Oil Pollution Act of 1990 (OPA 90) gives BP primary responsibility to prepare for an oil spill: lining up contractors to supply boom and skimmers and deploying them when needed, then controlling any accident and cleaning it up.” In terms of shoreline protection, President Obama recently stated, “the way this thing has been set up under the oil spill act of 1990 – Oil Pollution Act – is that BP has contracts with a whole bunch of contractors on file in the event that there is an oil spill, and as soon as the Deep Horizon well went down, then their job is to activate those and start paying them.” “Under OPA 90, BP, the responsible party, has the primary responsibility to clean up its oil spill” has been repeated, in one form or another, so many times by President Obama that it has become the truth. The truth is that President Obama, under OPA 90, has the primary responsibility to “ensure effective and immediate removal of a discharge, and mitigation or prevention of a substantial threat of a discharge, of oil.”

Section 4201 of OPA 90 provides,
(c) FEDERAL REMOVAL AUTHORITY
(1)(A) The President shall, in accordance with the National Contingency Plan and any appropriate Area Contingency Plan, ensure effective and immediate removal of a discharge, and mitigation or prevention of a substantial threat of a discharge, of oil or a hazardous substance:
(i) into or on the navigable waters;
(ii) on the adjoining shorelines to the navigable waters;
(iii) into or on the waters of the exclusive economic zone; or
(iv) that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States.
(B) In carrying out this paragraph, the President may:
(i) remove or arrange for the removal of a discharge, and mitigate or prevent a substantial threat of a discharge, at any time;
(ii) direct or monitor all Federal, State, and private actions to remove a discharge; and
(iii) remove and, if necessary, destroy a vessel discharging, or threatening to discharge, by whatever means are available.

Section 4201 of OPA 90 further provides,
(2) DISCHARGE POSING SUBSTANTIAL THREAT TO PUBLIC HEALTH OR WELFARE (A) If a discharge, or a substantial threat of a discharge, of oil or a hazardous substance from a vessel, offshore facility, or onshore facility is of such a size or character as to be a substantial threat to the public health or welfare of the United States (including but not limited to fish, shellfish, wildlife, other natural resources, and the public and private beaches and shorelines of the United States), the President shall direct all Federal, State, and private actions to remove the discharge or to mitigate or prevent the threat of the discharge.
(B) In carrying out this paragraph, the President may, without regard to any other provision of law governing contracting procedures or employment of personnel by the Federal Government:
(i) remove or arrange for the removal of the discharge, or mitigate or prevent the substantial threat of the discharge; and
(ii) remove and, if necessary, destroy a vessel discharging, or threatening to discharge, by whatever means are available.

When responding to a spill, many considered the lines of responsibility under the pre-OPA 90 regime to be unclear, with too much reliance on spillers to perform proper cleanup. OPA 90 strengthened and clarified the federal government’s role in oil spill response and cleanup. The revised response authorities addressed concerns “that precious time would be lost while waiting for the spiller to marshal its cleanup forces.”

Simply stated, Section 4201 of OPA 90 provides President Obama with three options:
(1) perform cleanup immediately (“federalize” the spill);
(2) monitor the response efforts of the spiller; or
(3) direct the spiller’s cleanup activities.

Oil spill response authority is determined by the location of the spill: the USCG has response authority in coastal waters, and the EPA covers inland oil spills. As the primary response authority in coastal waters, the USCG has the ultimate authority to ensure that an oil spill is effectively removed and actions are taken to prevent further discharge from the source. During response operations, the USCG coordinates the efforts of federal, state, and private parties. USCG response efforts are supported by NOAA. NOAA provides scientific analysis and consultation during oil spill response activities. Assistance can include oil spill tracking, cleanup alternatives, and knowledge of at-risk natural resources. NOAA experts also collect data to assess natural resource damages during response operations.

Pursuant to Section 4201(c)(1)(B)(i) of OPA 90, President Obama should federalize the collection of the oil that is in the sea and restoration of the impacted coastal areas. MMS and USCG would monitor BP’s efforts to stop the flow of oil from the well; USCG would collect the oil that is in the sea; and EPA would restore the impacted coastal areas.

In regard to OPA 90 and the BP oil spill, President Obama is either: (a) being misinformed by his advisors; or (b) making a purely political decision not to partially federalize the oil spill incident. The latter is the more probable reason for his inaction. If this continues, historians are going to look back and refer to this as the “Great BP/Obama Oil Spill of 2010.”

For a more complete discussion of the issue, visit: http://renergie.wordpress.com/2010/05/25/bp-is-not-the-only-responsible-party/

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