Oil Spills in U.S. Coastal Waters:
Background and Governance
Jonathan L. Ramseur
Specialist in Environmental Policy
January 11, 2012
Congressional Research Service
7-5700
www.crs.gov
RL33705
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Oil Spills in U.S. Coastal Waters: Background and Governance
Summary
The impacts of an oil spill depend on the size of the spill, the rate of the spill, the type of oil
spilled, and the location of the spill. Depending on timing and location, even a relatively minor
spill can cause significant harm to individual organisms and entire populations. Oil spills can
cause impacts over a range of time scales, from days to years, or even decades for certain spills.
On April 20, 2010, an explosion occurred at the Deepwater Horizon drilling platform in the Gulf
of Mexico, resulting in 11 fatalities. The incident led to a significant release of oil: according to
the federal government’s estimate, the well released approximately 206 million gallons of oil
before it was contained on July 15. The 2010 Gulf oil spill generated considerable interest in oil
spill governance issues.
This report provides background information regarding oil spills in U.S. coastal waters and
identifies the legal authorities governing oil spill prevention, response, and cleanup. Based on
data between 1973 and 2009, the annual number and volume of oil spills have shown declines—
in some cases, dramatic declines.
The 1989 Exxon Valdez spill in Alaskan waters played a large role in stimulating actions that
contributed to this trend, particularly the decrease in the annual spill volumes. The Exxon Valdez
spill highlighted the need for stronger legislation, inflamed public sentiment, and spurred
Congress to enact comprehensive oil spill legislation, resulting in the Oil Pollution Act of 1990
(P.L. 101-380). This law expanded and clarified the authority of the federal government and
created new oil spill prevention and preparedness requirements. Moreover, the 1990 legislation
strengthened existing liability provisions, providing a greater deterrent against spills.
The governing framework for oil spills in the United States remains a combination of federal,
state, and international authorities. Within this framework, several federal agencies have the
authority to implement oil spill regulations. Agency responsibilities can be divided into two
categories: (1) oil spill response and cleanup and (2) oil spill prevention/preparedness.
Oil spill response authority is determined by the location of the spill: the U.S. Coast Guard has
response authority in the U.S. coastal zone, and the Environmental Protection Agency covers the
inland zone. Jurisdiction over oil spill prevention and preparedness duties is determined by the
potential sources (e.g., vessels, facilities, pipelines) of oil spills.
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Oil Spills in U.S. Coastal Waters: Background and Governance
Contents
Introduction...................................................................................................................................... 1
Background...................................................................................................................................... 2
Oil Inputs................................................................................................................................... 2
All Sources .......................................................................................................................... 2
Potential Sources of Major Spills........................................................................................ 3
Impacts of Oil Spills in Aquatic Environments ......................................................................... 6
Acute Impacts...................................................................................................................... 6
Chronic Impacts .................................................................................................................. 7
Ecosystem Recovery ........................................................................................................... 7
Economic Costs of Oil Spills..................................................................................................... 7
Cleanup Costs...................................................................................................................... 8
Natural Resources Damages................................................................................................ 9
Other Economic Costs....................................................................................................... 10
Oil Spill Governance ..................................................................................................................... 10
Federal Authorities: Before and After the Exxon Valdez Spill................................................. 10
Oil Pollution Act of 1990 .................................................................................................. 12
Other Federal Laws ........................................................................................................... 17
Federal Agencies’ Responsibilities.......................................................................................... 20
Response ........................................................................................................................... 20
Prevention and Preparedness............................................................................................. 21
International Conventions ....................................................................................................... 22
MARPOL 73/78 ................................................................................................................ 23
Intervention Convention.................................................................................................... 24
State Laws ............................................................................................................................... 24
Conclusion ..................................................................................................................................... 25
Figures
Figure 1. Estimates of Percentage Contribution of Oil into North American Coastal
Waters, by Major Source Categories ............................................................................................ 3
Figure 2. Annual Volume and Number of Oil Spills from Selected Sources................................... 4
Figure 3. Comparison of Estimated Oil Spill Volumes from Selected Sources............................... 5
Tables
Table 1. Federal Agency Jurisdiction for Oil Spill Prevention and Preparedness Duties,
by Source .................................................................................................................................... 22
Contacts
Author Contact Information........................................................................................................... 25
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Oil Spills in U.S. Coastal Waters: Background and Governance
Introduction
Oil is a dominant source of energy in the United States, supplying the nation with approximately
40% of its energy needs. Its use is widespread, providing fuel for the transportation, industrial,
and residential sectors. Vast quantities of oil continuously enter the country via vessel or pipeline
and are then transported to destinations throughout the country. With such widespread use and
nonstop movement, it is inevitable that some number of spills will occur.
Deepwater Horizon Oil Spill in the Gulf of Mexico
On April 20, 2010, an explosion occurred at the Deepwater Horizon drilling platform in the Gulf of Mexico, resulting in
11 fatalities. The incident disabled the facility and led to a full evacuation before the platform sank into the Gulf on
April 22. A significant release of oil at the sea floor was soon discovered. According to the National Incident
Command’s Flow Rate Technical Group estimate of August 2, 2010, the well released approximately 206 million
gallons of oil (4.9 million barrels) before it was contained.
For more information specific to this incident, see CRS Report R41407, Deepwater Horizon Oil Spill: Highlighted Actions
and Issues, by Curry L. Hagerty and Jonathan L. Ramseur. This report includes a list of other CRS reports that address
various issues raised by the incident.
The following websites provide additional information:
Federal government’s website for the Deepwater BP oil spill response and recovery, at
http://www.restorethegulf.gov/
EPA website, at http://www.epa.gov/bpspill/
NOAA website, at http://www.noaa.gov/
Over the past few decades, several major U.S. oil spills have had lasting repercussions that
transcended the local environmental and economic effects. The April 2010 oil spill in the Gulf of
Mexico (see text box) has intensified interest in many oil spill-related issues. Prior to the 2010
Gulf spill, the most notable example was the 1989 Exxon Valdez spill, which released
approximately 11 million gallons (260,000 barrels) of crude oil into Prince William Sound,
Alaska. The Exxon Valdez spill1 produced extensive consequences beyond Alaska. According to
the National Academies of Science, the Exxon Valdez disaster caused “fundamental changes in the
way the U.S. public thought about oil, the oil industry, and the transport of petroleum products by
tankers ... ‘big oil’ was suddenly seen as a necessary evil, something to be feared and
mistrusted.”2
This report provides background information regarding oil spills3 in U.S. coastal waters4 and
identifies the legal authorities governing oil spill prevention, response, and cleanup.5 The first
1 Note that the Exxon Valdez spill ranks only 35th for spill volume on the list of international tanker spills since 1967.
See International Tanker Owners Pollution Federation Limited, Historical Data, at http://www.itopf.com/stats.html.
2 See National Research Council (NRC), Oil in the Sea III: Inputs, Fates, and Effects, National Academies of Science
(hereinafter “NRC report”), February 2003, p. 11.
3 In this report, “oil” refers to crude oil and petroleum products, including gasoline and other fuels, unless stated
otherwise.
4 For the purposes of this report, “U.S. coastal waters” is defined broadly to encompass all waters between the shore
and the boundary of the U.S. exclusive economic zone (200 nautical miles from shore). Note that in other documents,
“coastal” may refer only to state waters, but in this report, the term “coastal waters” includes state and federally
regulated waters.
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Oil Spills in U.S. Coastal Waters: Background and Governance
section highlights background issues, including oil spill statistics and potential environmental
impacts. The second section discusses the legal and regulatory framework that governs oil spill
prevention and response.
Background
Oil Inputs
Oil enters coastal waters of the United States from a wide variety of sources. These sources vary
considerably. Some sources, such as discharges from recreational vessels, emit relatively minor
amounts per individual release but have numerous annual releases, which, in aggregate,
contribute a significant annual volume. Other sources, such as spills from oil tankers, release oil
on a less frequent basis but have the potential to release a significant volume in one incident.
These variances in frequency and volume of oil releases create different environmental impacts as
well as different challenges for responders and policymakers.
All Sources
A 2003 National Research Council report groups oil releases into four categories: natural seeps,
oil consumption, oil transportation, and oil extraction/production.6 As illustrated in Figure 1, the
majority of oil in U.S. waters comes from natural seeps—geologic openings on the ocean floor.
Well-known natural seeps are found in the Gulf of Mexico and off the coast of southern
California, regions with extensive oil exploration and production. Although the seeps release
large volumes of oil each year,7 the surrounding ecosystem can adapt, and even thrive, because
the rate of release is relatively slow.8
The vast majority of oil introduced to the environment through human behavior falls into the
consumption category. This category is broad in scope and includes land-based sources,9
operational discharges from commercial vessels10 and recreational craft,11 and atmospheric
deposition of petroleum hydrocarbons.12 The quantitative value and the environmental fate of
many of these sources are poorly understood. For example, oil from land-based sources—the
(...continued)
5 Although oil spills certainly occur in or reach non-coastal U.S. waters, this report focuses on issues and background
information related to coastal water spills. However, in many cases, the issues overlap.
6 NRC report, pp. 67-88.
7 The NRC estimate for natural seep volume ranges from 24 million to 71 million gallons each year. The “best
estimate” (included in Figure 1) is 47 million gallons (p. 69).
8 NRC report, p. 2.
9 This subcategory is particularly broad: municipal wastewaters, non-refinery industrial discharge, refinery discharges,
urban runoff, river discharges, and ocean dumping.
10 Includes large vessels, such as oil tankers, and smaller vessels, such as fishing boats.
11 Includes motor boats, jet skis, and other recreational vessels.
12 Atmospheric deposition generally refers to the process of air pollutants (generated from petroleum combustion)
reaching water bodies through various mechanisms (e.g., precipitation). According to the NRC report, “atmospheric
deposition supplies hydrocarbons somewhat uniformly to the coastal ocean at relatively low loading rates over large
areas” (p. 115).
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Oil Spills in U.S. Coastal Waters: Background and Governance
largest estimated component of the consumption category—may not directly enter U.S. coastal
waters until traveling through various man-made conveyances, such as storm-water drains. As
such, the range of uncertainty of land-based runoff is substantial, from a minimum annual
estimate of 5.6 million gallons to 588 million gallons.13
Figure 1. Estimates of Percentage Contribution of Oil into
North American Coastal Waters, by Major Source Categories
Based on Average Annual Releases, 1990-1999
33%
62%
4%
1%
Natural Seeps
Oil Extraction
Oil Transportation
Oil Consumption
Source: Prepared by the Congressional Research Service (CRS) with data from the National Research Council
(NRC) of the National Academies of Science, 2003, Oil in the Sea III: Inputs, Fates, and Effects, p. 69.
Notes: Extraction includes platform spills, produced waters, and atmospheric deposition. Transportation
includes spills from tanker/barges, pipelines, coastal facilities, and atmospheric deposition. Oil consumption
includes river and urban runoff, oil spills from cargo ships, operational discharges from commercial vessels and
recreational craft, and atmospheric deposition. For further details of these inputs, see the NRC Report.
Potential Sources of Major Spills
Although oil transportation and oil extraction activities contribute (on average) a relatively small
percentage of oil to U.S. waters (see Figure 1), sources within these sectors have generated major
oil spills in U.S. coastal waters. Oil spill policy in the United States has generally focused on
prevention, preparation, and response involving oil spills from these (and several other) sources.
Figure 2 illustrates the combined number and volume of oil spills from selected sources, whose
spills would likely impact U.S. coastal waters. These sources include oil tankers and barges,
13 Based on average, annual releases from 1990-1999. NRC report, pp. 69, 87.
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Oil Spills in U.S. Coastal Waters: Background and Governance
facilities, and pipelines, among others.14 Prior to the 2010 Gulf spill, data between 1973 and 2009
indicate that both the number of spills and volume of oil entering U.S. coastal waters have
declined; in some years, the declines have been dramatic.
Figure 3 compares the volume of spills over time from the same selected sources identified in
Figure 2. As Figure 3 illustrates, the primary source of oil spills in coastal waters has been oil
tankers and barges. The substantial drop in the annual spill volume (illustrated in both figures) is
most attributable to the decline in volume spilled by oil tankers and barges.
Figure 2. Annual Volume and Number of Oil Spills from Selected Sources
1973-2009
25
2,500
20
2,000
N
s
u
n
m
b
15
allo
1,500 er of
f G
I
s o
n
n
cident
o 10
1,000
illi
M
s
5
500
0
0
1973
1975
1977
1979
1981
1983
1985
1987
1989
1991
1993
1995
1997
1999
2001
2003
2005
2007
2009
Total volume
Number of incidents
Source: Prepared by CRS with data from the USCG Oil Spill Compendium, at https://homeport.uscg.mil (click
on “Investigations”).
Notes: The Coast Guard states that its Oil Spill Compendium includes spills that have been “investigated” by
the Coast Guard. Further, “this data is provided ‘as reported,’ with no interpretation or filtering. For example,
incidents that fal within the jurisdiction of other agencies, or that are not required to be reported under existing
Coast Guard regulations, may be included in the compendium.”
The volume of oil spilled from vessels in U.S. waters in the 1990s differed dramatically from the
volume spilled in the previous decades. This historical decline of spill incidents is likely related,
at least in part, to international oil pollution standards that went into effect in 1983. These new
standards were implemented in the United States by the Act to Prevent Pollution from Ships
(discussed later in this report).15
14 Other sources include non-tanker vessels (e.g., cargo ships, passenger vessels, fishing vessels, and recreational
vessels) and unknown sources. For a complete list see the USCG Oil Spill Compendium at https://homeport.uscg.mil
(click on “Investigations”).
15 P.L. 96-478, 33 U.S.C. 1901 et seq. These standards and the U.S. law are discussed later in this report.
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Oil Spills in U.S. Coastal Waters: Background and Governance
In addition, the Exxon Valdez spill of 1989 and the resulting Oil Pollution Act of 1990 (OPA)
played key roles in the subsequent spill volume reduction. The 1990 Act (discussed below) made
comprehensive changes to U.S. oil pollution law by expanding federal response authority and
increasing spill liability. The high costs associated with the Exxon Valdez spill,16 and the threat of
broad liability imposed by OPA (in some scenarios, unlimited liability), have likely been the
central drivers for the spill volume decline seen in the 1990s. In addition to international and
federal governance, 28 states had oil spill liability laws, 19 of which imposed unlimited liability,
before the Exxon Valdez spill occurred in 1989.17 After the 1989 spill, some states enacted
additional legislation,18 which may have contributed to the declines.
Figure 3. Comparison of Estimated Oil Spill Volumes from Selected Sources
1973 - 2009
25
20
s
n
15
allo
G
of 10
ns
llio
Mi 5
0
1973
1975
1977
1979
1981
1983
1985
1987
1989
1991
1993
1995
1997
1999
2001
2003
2005
2007
2009
Tankers and Barges
Facilities
Pipelines
Other
Unknown
Source: Prepared by CRS with data from the USCG Oil Spill Compendium.
Notes: The Coast Guard states that its Oil Spill Compendium includes spills that have been “investigated” by
the Coast Guard. Further, “this data is provided ‘as reported,’ with no interpretation or filtering. For example,
incidents that fal within the jurisdiction of other agencies, or that are not required to be reported under existing
Coast Guard regulations, may be included in the compendium.” Other sources include non-tanker vessels, such
as cargo ships, passenger vessels, fishing vessels, and recreational vessels. For a complete list see the USCG Oil
Spill Compendium at https://homeport.uscg.mil (click on “Investigations”).
16 The Exxon Valdez spill tallied approximately $2 billion in cleanup costs and $1 billion in natural resource damages
(not including third-party claims)—in 1990 dollars. Punitive damage claims were litigated for more than 12 years,
eventually reaching the U.S. Supreme Court in 2008 (Exxon Shipping v. Baker, 128 S. Ct. 2605 (2008)). Plaintiffs were
eventually awarded approximately $500 million in punitive damages. An additional $500 million in interest on those
damages was subsequently awarded.
17 CRS Report (out-of-print, available from CRS by request), Liability Provisions in State Oil Spill Laws: A Brief
Summary, October 1, 1990.
18 For example, California passed the Lempert-Keene-Seastrand Oil Spill Prevention and Response Act in 1990. More
information is available at http://www.dfg.ca.gov/ospr/about/history.html#.
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Oil Spills in U.S. Coastal Waters: Background and Governance
Although the volume of oil spills from oil tankers and barges has dwarfed other selected sources,
the 2010 Gulf spill highlighted the worst-case discharge potential of spills from offshore oil
extraction activities. Spills from offshore platforms and pipelines have typically represented (on
an annual basis) only a relatively minor (only 0.05%) component of the total input to North
American waters.19 However, oil well blowouts from offshore oil extraction operations have
historically been a source of major oil spills. Before the 2010 Gulf spill, the largest unintentional
oil spill in world history—the IXTOC I, estimated at 140 million gallons—was due to an oil well
blowout in Mexican Gulf Coast waters in 1979.20 The 2010 Deepwater Horizon incident released
approximately 206 million gallons of oil (4.9 million barrels) before it was contained.21 As a
comparison, the largest oil tanker spill in world history—the Atlantic Empress off the coast of
Tobago in 1979—was estimated at approximately 84 million gallons.22
Impacts of Oil Spills in Aquatic Environments
The impacts of an oil spill depend on the size of the spill, the rate of the spill, the type of oil
spilled, and the location of the spill. Depending on timing and location, even a relatively minor
spill can cause significant harm to individual organisms and entire populations.23 Oil spills can
cause impacts over a range of time scales, from days to years, or even decades for certain spills.
Impacts are typically divided into acute (short-term) and chronic (long-term) effects. Both types
are part of a complicated and often controversial equation that is addressed after an oil spill:
ecosystem recovery.24
Acute Impacts
Depending on the toxicity and concentration of the spill, acute exposure to oil spills can kill
various organisms and cause the following debilitating (but not necessarily lethal) effects:25
• reduced reproduction,
• altered development,
• impaired feeding mechanisms, and
• decreased defense from disease.
Birds, marine mammals, bottom-dwelling and intertidal species, and organisms in their
developmental stages (e.g., fish eggs and larvae) are particularly vulnerable to oil spills.26
19 While oil extraction activities contribute approximately 1% of the total oil input to North American waters, the vast
majority (95%) of this (1%) oil extraction input comes from operational discharges, which are regulated by a Clean
Water Act permit system. NRC Report, Table 3-2.
20 NRC report, p. 33.
21 National Incident Command’s Flow Rate Technical Group estimate of August 2, 2010.
22 For a list of the largest oil tanker spills, see The International Tanker Owners Pollution Federation (ITOPF) website,
at http://www.itopf.com/.
23 NRC report, p. 4.
24 For additional information, see CRS Report R41311, The Deepwater Horizon Oil Spill: Coastal Wetland and
Wildlife Impacts and Response, by M. Lynne Corn and Claudia Copeland.
25 These “sub-lethal” effects can occur at concentrations that are several orders of magnitude lower than concentrations
that cause death. NRC report, p. 127.
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Oil Spills in U.S. Coastal Waters: Background and Governance
In addition to the impacts to individual organisms, oil spills can lead to a disruption of the
structure and function of the ecosystem. Certain habitats—such as coral reefs, mangrove swamps,
and salt marshes—are especially vulnerable, because the physical structure of the habitats
depends upon living organisms.
These potential acute effects to individual organisms and marine ecosystems have been
“unambiguously established” by laboratory studies and well-studied spills, such as the Exxon
Valdez.27
Chronic Impacts
Long-term, chronic exposure typically occurs from continuous oil releases—leaking pipelines,
offshore production discharges, and non-point sources (e.g., urban runoff). Although spills are
normally associated with acute impacts, some oil spills have also demonstrated chronic exposure
and effects.28 There is increasing evidence that chronic, low-level exposures to oil contaminants
can significantly affect the survival and reproductive success of marine birds and mammals.29
However, because of the complexity of factors, including a longer time period and presence of
other pollutants, determining the precise effects on species and ecosystems due to chronic oil
exposure in a particular locale is difficult for scientists. As a result, studies involving chronic
effects are often met with debate and some controversy.
Ecosystem Recovery
Interested parties may have differing opinions as to what constitutes ecosystem recovery. At one
end of the spectrum, local groups may demand that an ecosystem be returned to pre-spill
conditions. NOAA regulations (15 CFR Section 990.30) state that recovery “means the return of
injured natural resources and services to baseline”—in other words, a return to conditions as they
would have been had the spill not occurred. Baseline conditions may not equate with pre-spill
conditions. Multiple variables affect local species and ecosystem services. For example, one
species at a spill site could have been on the decline at the time of an incident, because of
changing water temperatures. These types of trends are considered during the restoration
evaluative process (discussed below). Restoration leaves room for site-specific interpretation,
which, in the case of the Exxon Valdez spill and cleanup, continues to generate considerable
argument.
Economic Costs of Oil Spills
The economic costs that can result from an oil spill can be broken into three categories: cleanup
expenses, natural resource damages, and the various economic losses incurred by the affected
community or individuals.
(...continued)
26 NRC report, Chapter 5; also multiple conversations with National Oceanic and Atmospheric Administration (NOAA)
personnel (2008).
27 NRC report, p. 120.
28 NRC report, p. 121.
29 NRC report, p. 134.
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Cleanup Costs
The cleanup costs of an oil spill can vary greatly and are influenced by a mix of factors: location
characteristics, oil type, and oil volume.
Location
Location is generally considered the most important factor because it involves multiple variables.
Areas with less water movement, such as marshlands, will generally cost more to clean up than
open water. Some spill locations may have relatively robust populations of indigenous micro-
organisms that help degrade the oil naturally.30
Tourist destinations or sensitive habitats, such as coral reefs, will likely require more stringent
cleanup standards, thus increasing the costs. The political and social culture at the spill site plays
a part as well. A spill in a high-profile area may receive special attention.31 Major oil spills,
especially ones that affect shoreline ecosystems, are often met with extensive media coverage,
placing pressure on parties to take action. Coupled with this pressure, authorities (federal, state, or
local) at these locations may require extensive oil spill response requirements, which can
influence cleanup cost. For instance, spill costs in the United States are considerably higher than
in other parts of the world.32
Oil Type
The more persistent and viscous oil types, such as heavy crude oil and intermediates known as
bunker fuels, are more expensive to clean up. Gasoline and other lighter refined products may
require only minimal cleanup action. Generally, these materials will evaporate or disperse
relatively quickly, leaving only a small volume of petroleum product in the environment.
Oil Volume
Compared with other factors, spill volume is less important. A major spill away from shore will
likely cost considerably less than a minor spill in a sensitive location. Certainly, the amount of oil
spilled affects cleanup costs, because, all things being equal, a larger spill will require a larger and
more expensive cleanup effort. However, the relationship between cleanup costs and spill volume
is not linear. Cleaning up a smaller spill is likely to cost more than a larger spill on a per-gallon
basis.33
30 See, for example, Terry Hazen et al., “Deep-Sea Plume Enriches Indigenous Oil-Degrading Bacteria,” Science
(Online), August 24, 2010; Richard Camilli et al., “Tracking Hydrocarbon Plume Transport and Biodegradation at
Deepwater Horizon,” Science (Online), August 19, 2010.
31 For example, the November 7, 2007, spill (53,000 gallons) from a container ship into the San Francisco Bay
generated considerable interest.
32 The average cleanup cost is three times higher in the United States than in Europe (based on 1997 data and excluding
the Exxon Valdez costs). See Etkin, Dagmar, “Estimating Cleanup Costs for Oil Spills,” paper presented at the 1999
International Oil Spill Conference, 1999, citing data from the Oil Spill Intelligence Report International Oil Spill
Database.
33 This is primarily due to the fact that a spill of any size (e.g., in a sensitive area) will require that equipment and
response experts be sent to the scene. See Etkin, Dagmar, “Estimating Cleanup Costs for Oil Spills,” paper presented at
the 1999 International Oil Spill Conference, 1999, p. 5.
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Natural Resources Damages
This category of costs relates to the environmental impacts caused by an oil spill. Pursuant to
OPA, the party responsible for an oil spill is liable for any loss of natural resources (e.g., fish,
animals, plants, and their habitats) and the services provided by the resource (e.g., drinking water,
recreation).
When a spill occurs, natural resource trustees conduct a natural resource damage assessment to
determine the extent of the harm. Trustees may include officials from federal agencies designated
by the President, state agencies designated by the relevant governor, and representatives from
tribal and foreign governments.34 The various trustees assess damages to natural resources under
their respective jurisdictions.35 If multiple trustees are involved, they must select a lead
administrative trustee (LAT), who coordinates trustee activities and serves as a liaison between oil
spill responders. The LAT need not be from a federal agency; however, only a federal LAT can
submit a request to the Oil Spill Liability Trust Fund for the initial assessment funding.36
The Oil Pollution Act (OPA) of 1990 states that 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 natural resources pending restoration; and
• the reasonable cost of assessing those damages.37
Pursuant to OPA, NOAA developed regulations pertaining to natural resource damage
assessments in 1996.38 Natural resource damages may include both losses of direct use and
passive uses. Direct use value may derive from recreational (e.g., boating), commercial (e.g.,
fishing), or cultural or historical uses of the resource. In contrast, a passive-use value may derive
from preserving the resource for its own sake or for enjoyment by future generations.39
The damages are compensatory, not punitive. Collected damages cannot be placed into the
general Treasury revenues of the federal or state government, but must be used to restore or
replace lost resources.40 Indeed, NOAA’s regulations focus on the costs of primary restoration—
returning the resource to its baseline condition—and compensatory restoration—addressing
interim losses of resources and their services.41
34 For more information, see NOAA’s Damage Assessment, Remediation, and Restoration Program at
http://www.darrp.noaa.gov/about/index.html.
35 33 U.S.C. Section 2706(c). In some cases, trustees may share responsibility over the same resource. See, for
example, Department of the Interior’s “Pollution Response and Natural Resource Trusteeship Training Module On
NRDA,” at http://www.doi.gov/oepc/response/a01.htm.
36 33 U.S.C. Section 2712 and Executive Order (EO) 12777 (October 18, 1991).
37 33 U.S.C. Section 2706(d).
38 61 Federal Register 440 (January 5, 1996). See also NOAA, Injury Assessment Guidance Document for Natural
Resource Damage Assessment Under the Oil Pollution Act of 1990 (1996).
39 See 15 CFR Section 990.30, definition of “value.”
40 33 U.S.C. Section 2706(f); William D. Brighton, Natural Resource Damages under the Comprehensive
Environmental Response, Compensation, and Liability Act (2006), U.S. Department of Justice, Environment and
Natural Resources Division.
41 William D. Brighton, Natural Resource Damages under the Comprehensive Environmental Response,
(continued...)
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Other Economic Costs
Oil spills can generate costs other than response expenses or damages to natural resources. An oil
spill can disrupt business activity near the spill, particularly businesses and individuals that count
on the resources and reputation of the local environment. For example, the local fishing and
tourist industry may be affected. In some cases, a well-publicized oil spill can weaken local or
regional industries near the spill site, regardless of the actual threat to human health created by
the spill.
Local infrastructure and services can be disrupted by an oil spill. Port and harbor operations may
be interrupted, altering the flow of trade goods. Power plants that use cooling water systems may
need to temporarily cease operations. For example, the Salem Nuclear Plant—the second-largest
nuclear plant in the United States—was forced to halt activity due to a substantial oil spill (more
than 250,000 gallons) in the Delaware River in November 2004.
Unlike natural resource damage claims, which are brought by the appropriate natural resource
trustees, the costs described in this section would be submitted as claims by the third parties
suffering the specific loss.
Oil Spill Governance
When the Exxon Valdez ran aground in March 1989, there were multiple federal statutes, state
statutes, and international conventions that dealt with oil discharges. The governing framework
for oil spills in the United States remains a combination of federal, state, and international
authorities. Within this framework, several federal agencies have the authority to implement oil
spill regulations. The framework and primary federal funding process (the Oil Spill Liability
Trust Fund) used to respond to oil spills are described below.
Federal Authorities: Before and After the Exxon Valdez Spill
The following list highlights the primary federal authorities that were in effect when the Exxon
Valdez spill occurred in 1989:
• Clean Water Act (1972):42 The Clean Water Act (CWA) represented the broadest
authority for addressing oil spills at the time of the Exxon Valdez spill. Section
311 of the CWA established requirements for oil spill reporting, response, and
liability. The act also created a fund (311 Fund), maintained by federal
appropriations, that could be used for cleanup and natural resource restoration.
• Deepwater Port Act (1974):43 This statute addressed oil spills and liability issues
at deepwater oil ports. The act also set up the Deepwater Port Fund to provide for
(...continued)
Compensation, and Liability Act (2006), U.S. Department of Justice, Environment and Natural Resources Division.
42 The official statutory name is the Federal Water Pollution Control Act, P.L. 92-500, as amended, codified at 33
U.S.C. 1251 et seq.
43 P.L. 93-627, codified at 33 U.S.C. 1501 et seq.
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prompt cleanup and to compensate damages above liability limits. The fund was
financed by a per-gallon tax on oil transferred at a deepwater port.
• Trans-Alaska Pipeline Authorization Act (1973):44 This act covered oil spills and
liability relating to the Trans-Alaska Pipeline System (TAPS). Although the
pipeline is constructed over land, spills from it could reach coastal waters via
inland rivers. The act created a trust fund, financed through a lessee fee, that
could be used to respond to spills and damages from the pipeline.
• Outer Continental Shelf Lands Act Amendments (1978):45 This act established an
oil spill liability structure and rules for oil extraction facilities in federal offshore
waters. With this legislation, Congress created the Offshore Pollution Fund,
financed by a per-gallon fee on produced oil, that could be used for oil spill
cleanup and damages.
• National Oil and Hazardous Substances Pollution Contingency Plan (NCP): The
first NCP was administratively prepared in 1968 after observing the British
government’s response to a 37-million-gallon oil tanker spill (Torrey Canyon) off
the coast of England.46 The NCP contains the federal government’s procedures
for responding to oil spills and hazardous substance releases.47 (The NCP is
discussed in more detail later in this report.)
After the Exxon Valdez spill, many observers48 described the above legal collection as an
ineffective patchwork. Arguably, each law had perceived shortcomings (discussed below in the
context of post-Exxon Valdez legislation), and none provided comprehensive oil spill coverage.
For more than 15 years prior to the Exxon Valdez incident, Congress made attempts to enact a
unified oil pollution law. Several contentious issues produced deadlocks, hindering the passage of
legislation. One of the central points of debate, state preemption, dealt with whether a federal oil
spill law should limit a state’s ability to impose stricter requirements, particularly unlimited
liability. Other liability questions also generated debate. For example, if an oil spill occurred,
should the owner of the cargo (i.e., oil) be held liable, as was the ship owner/operator? Another
point of contention was whether oil-carrying vessels should be required to have double hulls.
Although proponents argued that a second hull would help prevent oil spills, the shipping
industry raised concern that implementing such a mandate would disrupt oil transportation and
potentially affect the national economy. A final issue involved the interaction between domestic
legislation (federal and state) and international measures. Some were concerned that if the United
States became a party to certain international agreements under consideration in the 1980s,49 the
international standards would preempt federal and state laws, especially those establishing
liability limits. Proponents argued that these concerns were overstated and stressed that joining
44 P.L. 93-153, codified at 43 U.S.C. 1651 et seq.
45 P.L. 95-372, codified at 43 U.S.C. 1801 et seq.
46 See EPA “National Contingency Plan Overview” at http://www.epa.gov/emergencies/content/lawsregs/ncpover.htm.
47 The NCP is codified at 40 CFR Part 300.
48 See, for example, U.S. Congress, House Committee on Merchant Marine and Fisheries, Report accompanying H.R.
1465, Oil Pollution Prevention, Removal, Liability, and Compensation Act of 1989, 1989, H.Rept. 101-242, Part 2,
101st Cong., 1st sess., p. 32.
49 The two agreements under consideration were the 1984 Protocols to the International Convention on Civil Liability
for Oil Pollution Damage and the Protocols to the International Fund for Compensation for Oil Pollution Damages.
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the international agreements was especially important for the United States because of the
international nature of oil transportation and associated pollution.
Following the 1989 Exxon Valdez spill, Members of Congress faced great pressure to overcome
the disputes discussed above.50 The spill highlighted the inadequacies of the existing coverage
and generated public outrage. The end result was the Oil Pollution Act of 1990 (OPA)51—the first
comprehensive law to specifically address oil pollution to waterways and coastlines of the United
States.
Oil Pollution Act of 1990
With the enactment of OPA on August 18, 1990, Congress consolidated the existing federal oil
spill laws under one program. The 1990 law expanded the existing liability provisions within the
CWA and created new free-standing requirements regarding oil spill prevention and response.
Key OPA provisions are discussed below.
Spill Response Authority
When responding to a spill, many considered the lines of responsibility under the pre-OPA regime
to be unclear,52 with too much reliance on spillers to perform proper cleanup.53 OPA strengthened
and clarified the federal government’s role in oil spill response and cleanup. OPA Section 4201
amended Section 311(c) of the CWA to provide the President (delegated to the U.S. Coast Guard
or EPA) with authority to perform cleanup immediately using federal resources,54 monitor the
response efforts of the spiller, or direct the spiller’s cleanup activities. The revised response
authorities addressed concerns “that precious time would be lost while waiting for the spiller to
marshall its cleanup forces.”55
The federal government—specifically the On-Scene Coordinator (OSC) for spills in the Coast
Guard’s jurisdiction—determines the level of cleanup required. Although the federal government
must consult with designated trustees of natural resources and the governor of the state affected
by the spill, the decision that cleanup is completed and can be ended rests with the federal
government. States may require further work, but without the support of federal funding.56
50 A handful of other oil spills followed the Exxon Valdez in 1989 and 1990 (e.g., the Mega Borg spilled 5 million
gallons of oil in the Gulf of Mexico), further spurring congressional action.
51 P.L. 101-380, primarily codified at U.S.C. 2701 et seq.
52 See, for example, Wilkinson, Cynthia et al., “Slick Work: An Analysis of the Oil Pollution Act of 1990,” Journal of
Energy, Natural Resources, and Environmental Law, 12 (1992), p. 190.
53 See Grumbles, Benjamin, and Manley, Joan, “The Oil Pollution Act of 1990: Legislation in the Wake of a Crisis,”
Natural Resources and Environment, 10:2 (1995), p. 38.
54 Leading up to the passage of OPA, parties referred to this approach as “federalizing” the spill.
55 U.S. Congress, House Committee on Merchant Marine and Fisheries, Report accompanying H.R. 1465, Oil Pollution
Prevention, Removal, Liability, and Compensation Act of 1989, 1989, H.Rept. 101-242, Part 2, 101st Cong., 1st sess., p.
84.
56 OPA Section 1011.
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National Contingency Plan
OPA expanded the role and breadth of the NCP. The 1990 law established a multi-layered
planning and response system to improve preparedness and response to spills in marine
environments.57 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.58
Tank Vessel and Facility Response Plans
As a component of the enhanced NCP, OPA amended the CWA to require that U.S. tank vessels,
offshore facilities, and certain onshore facilities59 prepare and submit oil spill response plans to
the relevant federal agency. In general, vessels and facilities are prohibited from handling,
storing, or transporting oil if they do not have a plan approved by (or submitted to) the
appropriate agency (discussed below).60
The plans should, among other things, identify how the owner or operator of a vessel or facility
would respond to a worst-case scenario spill. Congress did not intend for every vessel to have
onboard all the personnel and equipment needed to respond to a worst-case spill, but vessels must
have a plan and procedures to call upon—typically through a contractual relationship—the
necessary equipment and personnel for responding to a worst-case spill.61
In 2004, Congress enacted an amendment requiring non-tank vessels (i.e., ships carrying oil for
their own fuel use) over 400 gross tons to prepare and submit a vessel response plan.62 Congress
reasoned that many non-tank vessels have as much oil onboard as small tank vessels, thus
presenting a comparable risk from an oil spill. Moreover, the international standards for oil spill
prevention63 apply to tanker and non-tanker vessels alike. Thus, the 2004 amendment brought the
U.S. law more in line with international provisions.
Double-Hull Design for Vessels
The issue of double hulls received considerable debate for many years prior to OPA, and it was
one of the stumbling blocks for unified oil spill legislation. Proponents maintained that double-
hull construction provides extra protection if a vessel becomes damaged.64 However, opponents
57 OPA Section 4202, amending Section 311(j) of the CWA.
58 OPA Section 4201(b), amending Section 311(d)(2)(J) of the CWA.
59 The response plan requirement is applicable only to an onshore facility that, because of its location, could reasonably
be expected to cause substantial harm to the environment by discharging into navigable waters, adjoining shorelines, or
the exclusive economic zone. CWA Section 311(j)(5)(iii).
60 OPA Section 4202, amending Section 311(j)(5)(E) of the CWA.
61 U.S. Congress, House Committee on Merchant Marine and Fisheries, Report accompanying H.R. 1465, Oil Pollution
Prevention, Removal, Liability, and Compensation Act of 1989, 1989, H.Rept. 101-242, Part 2, 101st Cong., 1st sess., p.
87. OPA Section 4202, amending Section 311(j)(5)(C)(iii) of the CWA.
62 Amendments Relating to the Oil Pollution Act of 1990, Title VII of Coast Guard and Maritime Transportation Act of
2004 (P.L. 108-293), codified at 33 U.S.C. 1321.
63 Primarily the shipboard oil pollution emergency plans required by MARPOL 73/78, discussed later in this report.
64 A study from the National Academy of Sciences reached this conclusion in 1999. See National Research Council,
Double hull Tanker Legislation: An Assessment of the Oil Pollution Act of 1990, National Academies of Science, 1999,
p. 144.
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argued that a double-hulled vessel might cause stability problems if an accident occurred, thus
negating the benefits.65 Stakeholders also highlighted the impacts that a double-hull requirement
would entail for the shipping industry (e.g., cost and time of retrofitting, ship availability).66 The
OPA requirements for double hulls reflected some of these concerns.
The act required new vessels carrying oil and operating in U.S. waters to have double hulls.67
However, OPA provided certain exceptions, depending on the size of the vessel (e.g., less than
5,000 gross tons)68 and its particular use (e.g., lightering).69 For older vessels, OPA established a
staggered retrofitting schedule, based on vessel age and size. As of January 2010, single-hull
vessels (with several exceptions, some of which expire in 2015) cannot operate in U.S. waters.
Liability Issues70
OPA unified the liability provisions of existing oil spill statutes, creating a freestanding liability
regime. Section 1002 states that responsible parties are liable for any discharge of oil (or threat of
discharge) from a vessel or facility71 to navigable waters, adjoining shorelines, or the exclusive
economic zone72 of the United States (i.e., 200 nautical miles beyond the shore).
Regarding the oil spill statutes prior to OPA, Congress recognized that “there is no
comprehensive legislation in place that promptly and adequately compensates those who suffer
other types of economic loss as a result of an oil pollution incident.”73 OPA broadened the scope
of damages (i.e., costs) for which an oil spiller would be liable. Under OPA, a responsible party is
liable for all cleanup costs incurred, not only by a government entity, but also by a private party.74
In addition to cleanup costs, OPA significantly increased the range of liable damages to include
the following:
• injury to natural resources,
• loss of personal property (and resultant economic losses),
65 Opponents maintained that if water entered the space between hulls, the ship could become unstable, hindering
salvage and possibly capsizing. Cynthia Wilkinson et al., “Slick Work: An Analysis of the Oil Pollution Act of 1990,”
Journal of Energy, Natural Resources, and Environmental Law, 12 (1992), p. 196.
66 U.S. Congress, Conference Report accompanying H.R. 1465, Oil Pollution Act of 1990, H. Conf. Rept. 101-653, at
140-141 (1990).
67 OPA Section 4115, amending 46 U.S.C. 3703.
68 This exception applied to many inland barges.
69 Lightering is the process of transferring oil from a large vessel to a smaller vessel. This common practice occurs in
designated areas that are typically many miles away from shore.
70 For a discussion of liability issues raised by the 201 Deepwater Horizon oil spill, see CRS Report R41679, Liability
and Compensation Issues Raised by the 2010 Gulf Oil Spill, by Jonathan L. Ramseur.
71 The definition of “facility” is broadly worded and includes pipelines and motor vehicles. OPA Section 1001.
72 Under the pre-OPA regime (primarily the CWA), a discharge 12 miles beyond shore had to affect the natural
resources before liability attached. Under OPA Section 1002, the discharge itself triggers liability. Cynthia Wilkinson
et al., “Slick Work: An Analysis of the Oil Pollution Act of 1990,” Journal of Energy, Natural Resources, and
Environmental Law, 12 (1992), p. 201.
73 U.S. Congress, House Committee on Merchant Marine and Fisheries, Report accompanying H.R. 1465, Oil Pollution
Prevention, Removal, Liability, and Compensation Act of 1989, 1989, H.Rept. 101-242, Part 2, 101st Cong., 1st sess., p.
31.
74 OPA Section 1002(b)(1).
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• loss of subsistence use of natural resources,
• lost revenues resulting from destruction of property or natural resource injury,
• lost profits and earning capacity resulting from property injury or natural
resource injury, and
• costs of providing extra public services during or after spill response.75
OPA provided limited defenses from liability: act of God, act of war, and act or omission of
certain third parties. These defenses are similar to those of the Superfund statute,76 established in
1980 for releases of hazardous substances (which does not include oil).
Except for certain behavior, including acts of gross negligence or willful misconduct,77 OPA set
liability limits (or caps) for cleanup costs and other damages. Until 2006, liability limits for
vessels were based on vessel carrying capacity, generally $1,200 per gross ton. As an example,
the liability limit for the 2004 Athos tanker spill in Delaware River was approximately $45
million.78
OPA requires the President to issue regulations to adjust the liability limits at least every three
years to take into account changes in the consumer price index (CPI). Despite this requirement,
adjustments to liability limits were not made until Congress amended OPA in July 2006. The
Coast Guard and Maritime Transportation Act of 2006 (P.L. 109-241) increased limits to
$1,900/gross ton for double-hulled vessels and $3,000/gross ton for single-hulled vessels.
Furthermore, the Coast Guard made its first CPI adjustment to the liability limits in 2009,
increasing the limits to $2,000 and $3,200, respectively.79
Mobile offshore drilling units (MODUs), like the Deepwater Horizon unit involved in the April
2010 incident in the Gulf of Mexico, are first treated as tank vessels for their liability cap. If
removal and damage costs exceed this liability cap, a MODU is deemed to be an offshore facility
for the excess amount.80
Offshore facility liability is unlimited for removal costs but capped at $75 million for other costs
and damages; onshore facility and deepwater port liability is limited to $350 million. In contrast
to tank vessel liability limits, these liability limits are at the same level as they were in 1990.
75 OPA Section 1002(b)(2).
76 Section 107(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA,
commonly known as Superfund), P.L. 96-510.
77 In addition, liability limits are unavailable if the violation of a federal safety, construction, or operating requirement
proximately caused the spill. Spillers must also report the incident and cooperate with response officials to take
advantage of the liability caps. OPA Section 1004(c).
78 37,895 gross tons x $1,200/ton = $45.47 million. Vessel data from United States Coast Guard, Investigation into the
Striking of Submerged Objects by the Tank Vessel Athos I in the Delaware River on November 26, 2004 with a Major
Discharge of Oil, January 2006, p. 4.
79 U.S. Coast Guard, “Consumer Price Index Adjustments of Oil Pollution Act of 1990 Limits of Liability—Vessels
and Deepwater Ports,” Federal Register Volume 74, No. 125 (July 1, 2009), pp. 31357-31369.
80 33 USC 2704(b).
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The Oil Spill Liability Trust Fund
Prior to OPA, federal funding for oil spill response was generally considered inadequate,81 and
damages recovery was difficult for private parties.82 To help address these issues, Congress
supplemented OPA’s expanded range of covered damages with the Oil Spill Liability Trust Fund
(OSLTF).
Pursuant to Executive Order (EO) 12777, the Coast Guard created the National Pollution Funds
Center (NPFC) to manage the trust fund in 1991. The fund may be used for several purposes:
• prompt payment of costs for responding to and removing oil spills;
• payment of the costs incurred by the federal and state trustees of natural
resources for assessing the injuries to natural resources caused by an oil spill, and
developing and implementing the plans to restore or replace the injured natural
resources;
• payment of parties’ claims for uncompensated removal costs, and for
uncompensated damages (e.g., financial losses of fishermen, hotels, and
beachfront businesses);
• payment for the net loss of government revenue, and for increased public
services by a state or its political subdivisions; and
• payment of federal administrative and operational costs, including research and
development, and $25 million per year for the Coast Guard’s operating expenses.
Although Congress created the OSLTF in 1986,83 Congress did not authorize its use or provide its
funding until after the Exxon Valdez incident. In 1990, OPA provided the statutory authorization
necessary to put the fund in motion. Through OPA, Congress transferred balances from other
federal liability funds84 into the OSLTF. In complementary legislation, Congress imposed a 5-
cent-per-barrel tax on the oil industry to support the fund.85 Collection of this fee ceased on
December 31, 1994, due to a sunset provision in the law. However, in April 2006, the tax resumed
as required by the Energy Policy Act of 2005 (P.L. 109-58). In addition, the Emergency Economic
Stabilization Act of 2008 (P.L. 110-343) increased the tax rate to 8 cents through 2016. In 2017,
the rate increases to 9 cents. The tax is scheduled to terminate at the end of 2017.86
81 Wilkinson, Cynthia et al., “Slick Work: An Analysis of the Oil Pollution Act of 1990,” Journal of Energy, Natural
Resources, and Environmental Law, 12 (1992), p. 188.
82 U.S. Congress, House Committee on Merchant Marine and Fisheries, Report accompanying H.R. 1465, Oil Pollution
Prevention, Removal, Liability, and Compensation Act of 1989, 1989, H.Rept. 101-242, Part 2, 101st Cong., 1st sess., p.
35.
83 Omnibus Budget Reconciliation Act of 1986 (P.L. 99-509).
84 The CWA Section 311(k) revolving fund; the Deepwater Port Liability Fund; the Trans-Alaska Pipeline Liability
Fund; and the Offshore Oil Pollution Compensation Fund.
85 Omnibus Budget Reconciliation Act of 1989 (P.L. 101-239). Other revenue sources for the fund include interest on
the fund, cost recovery from the parties responsible for the spills, and any fines or civil penalties collected.
86 Section 405 of P.L. 110-343.
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Financial Responsibility
To preserve the trust fund and ensure that responsible parties can be held accountable for oil spill
cleanup and damages, OPA requires that vessels and offshore facilities maintain evidence of
financial responsibility (e.g., insurance). The Coast Guard’s National Pollution Funds Center
(NPFC) implements the financial responsibility provisions for vessels; the Bureau of Ocean
Energy Management, Regulation, and Enforcement (formerly the Minerals Management Service,
MMS) implements this requirement for offshore facilities.
The current levels of financial responsibility are related to the current liability limits for various
sources (e.g., vessels, offshore facilities) of potential oil spills. The liability limits differ by
potential source. In the case of vessels, whose liability limits are a single dollar amount
encompassing both removal costs and other damages, the financial responsibility levels are
directly tied to the corresponding liability caps. Current law requires responsible parties for
vessels to demonstrate the “maximum amount of liability to which the responsible party could be
subjected under [the liability limits in OPA Section 1004; 33 U.S.C. 2704].”
Because the structure of offshore facility liability limit is different than vessels, the corresponding
financial responsibility limit provisions differ. Responsible parties for offshore facilities in federal
waters must demonstrate $35 million financial responsibility, unless the President determines a
greater amount (not to exceed $150 million) is justified (33 U.S.C. 2716(c)). The federal
regulations that are authored by this statutory provision (30 CFR Part 254) base the financial
responsibility amount—between $35 million and $150 million—on a facility’s worst-case
discharge volume (as defined in 30 CFR Section 253.14). For example, a facility with a worst-
case discharge volume over 105,000 barrels87—the highest level of worst-case discharge listed in
the regulations—must maintain $150 million in financial responsibility.
Other Federal Laws
Although OPA is the primary domestic legislation for oil spills, other federal laws contain
provisions that relate to oil spills. Many of these provisions were in place before OPA. The
following list is not all-inclusive, but it highlights the main requirements authorized by laws other
than OPA.
Clean Water Act
The Clean Water Act (CWA) was the primary federal statute governing oil spills prior to OPA and
many provisions continue to apply. A key provision is found in Section 311(b)(3), which prohibits
the discharge of oil or hazardous substances into U.S. navigable waters. In addition, the CWA
contains various penalty provisions for noncompliance, including violations of the discharge
prohibition of Section 311(b).88
87 This amount is significantly less than the 4.9 million barrels estimated to have been released during the 2010 Gulf
spill. See National Incident Command’s Flow Rate Technical Group, press release, August 2, 2010.
88 For further discussion, see CRS Report R41370, Federal Civil and Criminal Penalties Possibly Applicable to Parties
Responsible for the Gulf of Mexico Oil Spill, by Robert Meltz.
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Pursuant to statutory requirements in the CWA,89 the EPA crafted regulations90 for spill
prevention control and countermeasure (SPCC) plans in 1973. SPCC plans address the
“procedures, methods, and equipment and other requirements for equipment to prevent
discharges.”91 The EPA’s SPCC plans apply only to non-transportation, onshore facilities that
exceed a certain oil storage capacity and that, in the event of a spill, can be reasonably expected,
because of their location, to produce an oil discharge that would reach navigable waters or
adjoining shorelines of the United States.92 Unlike other oil spill preparedness provisions, SPCC
plans focus more on prevention than on response activities, requiring, for example, secondary
containment (e.g., dikes, berms) for oil-storage equipment.
The agency offered several regulatory amendments after the 1973 rulemaking. Following the
passage of the Oil Pollution Act of 1990 (OPA),93 the agency proposed substantial changes and
clarifications that were not made final until July 2002. For reasons beyond the scope of this
report, the effective date of the 2002 final rule has been extended multiple times; for some parts
of the amended rule, the current effective date was January 14, 2009, and for other parts, the
effective date was extended to November 10, 2010.94 However, EPA proposed in July 2010 to
extend the date an additional year for most facilities.95
Outer Continental Shelf Lands Act
The primary federal law governing oil development and operations in waters in federal
jurisdiction is the Outer Continental Shelf Lands Act (OCSLA) of 1953 and its subsequent
amendments (43 U.S.C. §§ 1331-1356). The OCSLA provided the foundation for regulations (30
CFR Part 250) that are implemented by the Bureau of Ocean Energy Management, Regulation,
and Enforcement (formerly the Minerals Management Service, MMS). Sections of these
regulations address oil spill prevention and response issues by requiring that various equipment
and procedures be in place at offshore facilities.96
Pipeline Statutes
The U.S. pipeline network is extensive. Recent estimates indicate there are more than 33,000
miles of pipelines just in the Gulf of Mexico.97 Moreover, U.S. inland pipelines are concentrated
in coastal areas, particularly in the Gulf states, and these pipelines may have an impact on coastal
waters if spills reach waterways that empty into coastal waters.
89 Section 311(j)(1) of the 1972 CWA called for regulations to prevent the discharge of oil from vessels, onshore
facilities, and offshore facilities. Executive Order 11735 (August 3, 1973) granted EPA the authority to regulate non-
transportation-related onshore and offshore facilities.
90 U.S. EPA, “Oil Pollution Prevention: Non-Transportation Related Onshore and Offshore Facilities,” Federal
Register, vol. 38, no. 237 (December 11, 1973), pp. 34164-34170.
91 CWA Section 311(j)(1)(C).
92 See 40 CFR Section 112.1.
93 P.L. 101-380, primarily codified at U.S.C. 2701 et seq.
94 For a comprehensive history of the regulations, see Federal Register, vol. 74, pp. 58784 (November 13, 2009).
95 For more information, see EPA’s SPCC website at http://www.epa.gov/emergencies/content/spcc/index.htm.
96 For more information, see CRS Report RL33404, Offshore Oil and Gas Development: Legal Framework, by Adam
Vann.
97 See, for example, MMS Press Release from February 2, 2005, at http://www.mms.gov/ooc/press/2005/
press0202.htm.
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Several laws govern oil pipelines. The Hazardous Liquid Pipeline Act of 1979 (P.L. 96-129)
granted authority to the Department of Transportation (DOT) to regulate various issues regarding
oil spills from pipelines. On December 29, 2006, the President signed the Pipeline Safety
Improvement Act of 2006 (P.L. 109-468) to improve pipeline safety and security practices, and to
reauthorize the federal Office of Pipeline Safety.98 The Office of Pipeline Safety (OPS), which is
part of the DOT, implements provisions concerning pipeline design, construction, operation and
maintenance, and spill response planning.99
Recent Pipeline Spills
Kalamazoo River—2010
On July 26, 2010, a pipeline released approximately 800,000 gallons of crude oil of oil into Michigan’s Talmadge
Creek, a waterway that flows into the Kalamazoo River. As the federal OSC (for the inland zone), EPA established a
Unified Command of federal, state and local agencies, and private parties to respond to the spill. Pursuant to the
liability provisions in OPA, Enbridge Energy Partners, LLP is the responsible party for the spill.
For more up-to-date information, see EPA’s Enbridge oil spill website, at http://www.epa.gov/enbridgespill/index.html.
Yellowstone River—2011
On July 1, 2011, am ExxonMobil pipeline ruptured and released oil into the Yellowstone River near Billings, Montana.
EPA leads the federal response activities, coordinating with Montana agencies and other federal agencies. According
to the pipeline owner (and cited on EPA’s website), the incident discharged an estimated 42,000 gal ons.
For more up-to-date information, see EPA’s Yellowstone River spil website at http://www.epa.gov/
yellowstoneriverspill/.
Vessel Statutes
Several federal laws directly or indirectly deal with oil pollution from vessels.100 Laws
concerning navigation reduce the possibilities of vessel collision or hull breach by objects in the
waterways.101 Other laws call for particular vessel design standards. For example, the Ports and
Waterways Safety Act of 1972,102 amended by the Port and Tanker Safety Act of 1978,103 called
for specific construction and equipment design requirements for oil tankers. (As noted, OPA
subsequently amended this statute in 1990 to establish a phased-in schedule for double-hulled
tankers.) Congress enacted the 1970s legislation to coincide with international initiatives. In fact,
many of the federal laws concerning vessel standards and pollution control procedures were
written to implement international conventions. These are discussed below.
98 See 49 U.S.C. 60101 et seq.
99 For further information on pipeline legislation, see CRS Report R41536, Keeping America’s Pipelines Safe and
Secure: Key Issues for Congress, by Paul W. Parfomak.
100 For a comprehensive list of federal maritime legislation see USCG, Marine Safety Manual, Vol. IX (undated),
Chapter 1, available at http://homeport.uscg.mil.
101 For example, the Rivers and Harbors Act of 1899, as amended (33 U.S.C. 401 et seq.), and the International
Regulations for Preventing Collisions at Sea, as amended (33 U.S.C. 1601 et seq.).
102 P.L. 92-340, 33 U.S.C. 1221 et seq.
103 P.L. 95-474, codified at 33 U.S.C. 1221-1232 and 46 U.S.C. 3701-3718.
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Federal Agencies’ Responsibilities
The United States shares jurisdiction over its coastal waters with the coastal states. The 1953
Submerged Lands Act (SLA) gave coastal states jurisdiction over the submerged lands, waters,
and natural resources (e.g., oil deposits) located, in most cases, within 3 nautical miles off the
coastline.104 The waters, seabed, and natural resources beyond the states’ waters are exclusively
federal, and extend to the edge of the exclusive economic zone (200 nautical miles from shore).
However, the federal government maintains the authority to regulate commerce, navigation,
national defense, power production, and international affairs within state waters.
The oil spill legal framework involves implementation by multiple federal agencies. Agency
responsibilities can be divided into two categories: (1) oil spill response and cleanup and (2) oil
spill prevention/preparedness.
Response
As mentioned above, the National Oil and Hazardous Substances Pollution Contingency Plan
(NCP) contains the federal government’s framework and operative requirements for responding
to an oil spill (and releases of hazardous substances). Although first developed through
administrative processes in 1968, subsequent laws have amended the NCP, including the Clean
Water Act in 1972; the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA or Superfund) in 1980; and the Oil Pollution Act (OPA) in 1990. Oil spill response
actions required under the regulations of the NCP are binding and enforceable, per these
enforcement authorities.
The NCP establishes the National Response System (NRS), a multi-tiered and coordinated
national response strategy for addressing oil spills and releases of hazardous substances. The NCP
provisions specific to oil spill response are codified in 40 C.F.R. Part 300, Subpart D. Key
components of the NRS include the following:
• National Response Team (NRT): composed of representatives from the federal
departments and agencies assigned roles in responding to oil spills. The U.S.
Coast Guard chairs the NRT when a response is being mounted to a spill in a
coastal region.
• Regional Response Teams (RRTs): composed of regional representatives of each
NRT member agency, state governments, and local governments. The Coast
Guard leads the relevant RRT during responses to oil spills in coastal waters.
• Area Committees (ACs): composed of qualified personnel from federal, state,
and local agencies. The primary function of each AC is to prepare an Area
Contingency Plan (ACP) for its designated area.
• On-Scene Coordinator (OSC): who directs the response efforts and coordinates
all other efforts at the scene.
104 Most state waters extend 3 nautical miles (1 nautical mile = 6,076 feet, or 1.15 miles) from shore. Louisiana waters
extend 3 imperial nautical miles (1 imperial nautical mile = 6,080 feet). Texas and Gulf Coast of Florida waters extend
3 marine leagues (equating to 9 nautical miles). See the MMS, OCS, website (“Definitions and Jurisdictions”) at
http://www.mms.gov/incidents/pollution.htm. See also CRS Report RL33404, Offshore Oil and Gas Development:
Legal Framework, by Adam Vann.
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Oil spill response authority is determined by the location of the spill: the Coast Guard has
response authority in the coastal zone, and the EPA covers the inland zone.105 The OSC has the
ultimate authority to ensure that an oil spill is effectively removed and actions are taken to
prevent further discharge from the source. The OSC is broadly empowered to direct and
coordinate all response and recovery activities of federal, state, local, and private entities
(including the responsible party), and will draw on resources available through the appropriate
ACPs and RRTs.
Although the OSC must consult with designated trustees of natural resources and the governor of
the state affected by the spill, the OSC has the authority and responsibility to determine when
removal (i.e., cleanup) is complete.
Other agencies, particularly those on the NRT and relevant RRT, may play a role in response
activities. As the chair of the NRT (and vice-chair during oil spills in the coastal zone), EPA may
provide response support. For example, during the Deepwater Horizon spill response, EPA
conducted air and water sampling and provided environmental monitoring support, particularly
regarding the use of dispersants.
In addition, NOAA provides scientific analysis and consultation during oil spill response
activities.106 Assistance can include oil spill tracking, cleanup alternatives, and knowledge of at-
risk natural resources. Moreover, NOAA experts begin to collect data to assess natural resource
damages during response operations.
Prevention and Preparedness
Regarding oil spill prevention and preparedness duties, jurisdiction is determined by the potential
sources (e.g., vessels, facilities, pipelines) of oil spills. A series of executive orders (EOs),
coupled with memoranda of understanding (MOU), have established the various agency
responsibilities.107 Table 1 identifies the agencies responsible for implementing prevention and
preparedness regulations for the potential sources of oil spills.
105 The terms inland zone and coastal zone are defined in the National Contingency Plan (40 CFR Section 300.5). The
coastal zone covers all waters subject to the tide, the Great Lakes, and all seaward waters (extending 200 nautical miles
beyond shore). The inland zone covers all other U.S. waters. Spills in inland waters can potentially affect coastal waters
and ecosystems, particularly if the spill occurs in water systems near the coast. In fact, a fine line may separate specific
inland and coastal waters (e.g., consider the nexus between a bay and a river).
106 For more information see NOAA’s Office of Response and Restoration website, at
http://response.restoration.noaa.gov/index.php.
107 Executive Order (EO) 12777 (October 18, 1991) delegates authorities pursuant to the Oil Pollution Act of 1990.
This order was amended by EO 13286 (March 5, 2003), which reorganized duties in response to the creation of the
Department of Homeland Security.
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Table 1. Federal Agency Jurisdiction for Oil Spill Prevention
and Preparedness Duties, by Source
Potential Source of Oil Spill
Responsible Agency
Vessels
Coast Guard
Onshore, non-transportation facilities
Environmental Protection Agency
Onshore, transportation facilities
Coast Guard and Department of Transportation
Deepwater portsa
Coast Guard and Department of Transportation
Offshore facilities (oil/gas extraction)
Bureau of Ocean Energy Management within the
Department of Interior
Offshore pipelines directly associated with oil extraction
Bureau of Ocean Energy Management within the
activities (i.e., “production lines”)b
Department of Interior
Offshore pipelines not directly associated with oil extraction
Office of Pipeline Safety within the Department
activities (i.e., “transmission lines”)
of Transportation
Inland pipelines
Office of Pipeline Safety within the Department
of Transportation
a. There is only one deepwater port for oil in U.S. coastal waters: the Louisiana Offshore Oil Port (LOOP).
b. For further discussion on federal pipeline jurisdiction, see National Research Council, Improving the Safety of
Marine Pipelines, National Academies of Science, 1994, pp. 86-89.
Prevention responsibilities include, among other things, assessing whether facilities or vessels
have the necessary equipment in place. As discussed above, vessels may be required to have
double hulls; facilities may need secondary containment.
Preparedness duties involve oversight tasks, such as evaluating facility and vessel response plans.
Preparedness responsibilities also include developing and maintaining contingency plans at
various levels: area, regional, and national. Personnel training is a vital component of sustaining
readiness. NOAA oil spill experts help train responders in government service and private
business.
In addition, OPA requires agencies to conduct internal examinations to test preparedness.108 As
part of this requirement, the Coast Guard conducts Spills of National Significance (SONS)
exercises to analyze the Coast Guard’s ability to respond to a major oil spill.
International Conventions
The relationship between international and domestic law can be complex. For example, a “self-
executing” agreement taking the form of a treaty, signed by the Executive and ratified with the
advice and consent of the Senate, stands on equal footing with federal statute. On the other hand,
if an international agreement is not self-executing, implementing legislation may be necessary for
the agreement’s provisions to be given domestic legal effect, including to provide U.S. agencies
with the domestic legal authority necessary to carry out functions contemplated under the
108 As required by OPA Section 4202(a), which amended CWA Section 311(j)(7), codified in 33 U.S.C. 1321(j)(7).
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agreement. Several federal laws governing oil spills were fashioned to implement obligations
contained in international agreements.109
International conventions have played an important role in developing consistent standards for
oil-carrying vessels from different nations. A primary player in this regard is the International
Maritime Organization (IMO), a body of the United Nations, which sets international maritime
vessel safety and marine pollution standards. The Coast Guard represents the United States at
IMO meetings.
Multiple international conventions concern vessels and their impact on the marine environment.
Described below are two selected conventions that contain provisions that are particularly
relevant to oil pollution in coastal waters.
MARPOL 73/78
The IMO implements the 1973 International Convention for the Prevention of Pollution from
Ships, as modified by the Protocol of 1978 (MARPOL 73/78).110 Vessels whose nations are
signatories to MARPOL are subject to its requirements, regardless of where they sail, and
member nations are responsible for the vessels registered under their flag.
MARPOL 73/78 includes six annexes, each covering a different pollution type. Annex I
(Prevention of Pollution by Oil) entered into force in 1983111 and established requirements for
controlling oil discharges to sea. Annex I requires vessels to have equipment that minimizes oil
discharge, such as oil-water separators, and shipboard oil pollution emergency plans (SOPEPs).
Although the SOPEP applicability is similar to that of the vessel response plan (VRP) required by
OPA,112 the purpose of the SOPEP is somewhat different. A SOPEP is intended to provide
guidance to the vessel’s officers regarding proper onboard emergency procedures when an oil
spill occurs,113 whereas the VRP is more focused on responding to the spill itself.
The United States implements Annex I through the Act to Prevent Pollution from Ships
(APPS).114 APPS applies to all U.S.-flagged ships, irrespective of location, and to all foreign-
flagged vessels in U.S. waters or at ports under U.S. jurisdiction. The Coast Guard issues and
enforces regulations necessary to carry out the APPS provisions. The Coast Guard inspection
program is a key component of its oil spill prevention effort.
109 If a treaty is considered “self-executing,” domestic legislation implementing the treaty is not necessary. For more
details on these issues, see CRS Report RL32528, International Law and Agreements: Their Effect Upon U.S. Law, by
Michael John Garcia.
110 For convention texts and other materials, see http://www.imo.org.
111 The phrase “entry into force” signifies that the requisite number of nations have ratified the convention or annex,
thus making the agreed upon requirements binding for all participating nations. For more discussion of the procedures
of international conventions, see the IMO website at http://www.imo.org.
112 All vessels of any type over 400 gross tons traveling over international waters must have a SOPEP approved by their
flag state. See USCG VRP/SOPEP “FAQs” at http://www.uscg.mil/vrp.
113 USCG, 1997, Marine Safety Manual, Marine Environment Protection, Volume IX, p. 4-24.
114 P.L. 96-478, 33 U.S.C. 1901 et seq.
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Intervention Convention
The 1967 Torrey Canyon spill off the coast of Great Britain was one of the first major spills to
receive worldwide attention.115 The incident raised many questions regarding oil spill response,
particularly when dealing with vessels from other nations. For example, the incident prompted
debate over responses allowable if a nation’s waters and environment are threatened by a spill
from another nation’s vessel. The 1969 International Convention Relating to Intervention on the
High Seas in Cases of Oil Pollution Casualties (the Intervention Convention) sought to address
these issues.
To implement this convention in the United States, Congress passed the Intervention on the High
Seas Act of 1974.116 Under this act, if the Coast Guard determines there to be a “grave and
imminent danger to the coastline or related interests of the United States from pollution or threat
of pollution of the sea by convention oil [i.e., as defined in the convention],” the Coast Guard can
take action to “prevent, mitigate, or eliminate that danger.”
State Laws
As mentioned above, multiple states had oil spill liability laws before the passage of OPA in
1990. During the 15 years prior to OPA’s passage, the issue of whether or not to preempt state
liability laws was perhaps the primary obstacle to enacting unified oil spill legislation. Proponents
of preemption argued that differing state laws—particularly the various levels of liability—
frustrate the shipping industry and were contrary to the goal of comprehensive federal legislation.
Preemption opponents maintained that states should be allowed (as with most other federal
environmental statutes) to set stiffer standards regarding liability, compensation, and cleanup.117
In the aftermath of the Exxon Valdez spill, the scales tipped to the side of anti-preemption.
According to OPA Section 1018 (referred to as a “savings clause”), the act will not preempt any
state from imposing “additional liability or requirements” with respect to the discharge of oil or
related response activity (e.g., cleanup standards). A 2003 study identified 16 states that impose
unlimited liability for oil spills.118
There was some concern that the language of OPA’s savings clause would allow states to regulate
matters typically reserved for the federal government, such as oil tanker construction. To address
this issue, the conference report stated that the savings clause would not disturb a 1978 Supreme
Court decision that dealt with the intersection of federal and state authority to regulate the
shipping industry.119 In that case, the Court determined that a Washington State law was
115 The Torrey Canyon, a Liberian-flagged tanker, spilled approximately 35 million gallons of crude oil.
116 P.L. 93-248 , 33 U.S.C. 1471 et seq.
117 One argument against preemption was that existing requirements under particular state laws would be diminished or
negated entirely. See Benjamin Grumbles and Joan Manley, “The Oil Pollution Act of 1990: Legislation in the Wake of
a Crisis,” Natural Resources and Environment, 10:2 (1995), p. 38.
118 Dagmar Etkin, 2003, A Worldwide Review of Marine Oil Spill Fines and Penalties, at http://www.environmental-
research.com/erc_papers/ERC_paper_10.pdf. See also, CRS Congressional Distribution Memorandum, “Oil Spill
Liability in the Gulf States,” July 2, 2010 (on file with author).
119 U.S. Congress, Conference Report accompanying H.R. 1465, Oil Pollution Act of 1990, H. Conf. Rept. 101-653, at
122 (1990).
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preempted. The state law had attempted to govern oil tanker design, size, and movement in Puget
Sound.120
Regardless of the clarification in the conference report, the line between federal and state
jurisdiction (i.e., the extent of federal preemption) continues to be tested. In 2000, the Supreme
Court struck down (as preempted) a Washington State rule calling for various personnel
requirements, such as training, on oil tankers.121 Similarly, in March 2010, a federal district court
in Massachusetts ruled against a state law—finding it preempted—that would affect tanker
design, personnel qualifications, and navigation.122
Conclusion
With the nation a significant producer and consumer of oil, vast quantities are continuously
extracted, imported, and transported throughout the United States. Oil is expected to remain a
primary source of energy in the United States for at least the next several decades. Future oil
spills are inevitable.
As with the Exxon Valdez oil spill in 1989, the 2010 Deepwater Horizon spill generated
significant interest in various oil spill policy matters, including prevention, preparedness,
response, and liability and compensation. Members held multiple hearings and introduced
numerous bills in the 111th Congress. The 111th Congress enacted three oil spill-related proposals
into law (P.L. 111-191, P.L. 111-212, and P.L. 111-281), but these laws generally concerned short-
term matters that will not have a lasting impact on oil spill governance. Although some Members
continue to express interest regarding specific issues, overall interest has declined in the 112th
Congress.123
Author Contact Information
Jonathan L. Ramseur
Specialist in Environmental Policy
jramseur@crs.loc.gov, 7-7919
120 Ray v. Atlantic Richfield, 435 U.S. 151 (1978).
121 United States v. Locke, 529 U.S. 89 (2000).
122 United States v. Massachusetts, 2010 Westlaw 1345018 (D. Mass. March 31, 2010).
123 See CRS Report R41407, Deepwater Horizon Oil Spill: Highlighted Actions and Issues, by Curry L. Hagerty and
Jonathan L. Ramseur.
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