ABSTRACT
This paper examines the oil pollution response fund created by Section 311(k) of the 1972 CWA and then modified, culminating with the Oil Spill Liability Trust Fund (OSLTF) established by OPA. Could the CWA have been successful absent the provision for a federal fund? This Fund is now four decades old. Has it passed the “test of time”? Did it meet the goals set at its birth? Is it still relevant? Should it continue?
CWA Section 311 and later OPA created a range of response tools to deal with oil and hazmat spills on the waters of the US. They established a public/private solution to spill response. Key components:An expectation that the spiller was responsible and liable to clean up the spill;The National Contingency Plan and the Federal On-Scene Coordinator/FOSC;Establishing expertise on “special teams”: the CG's National Strike Force and EPA's Emergency Response Team;An up-front trust fund available only to the FOSC that pays for removals if the responsible party (RP) does not step forward. The fund exists to:Pre-empt the RP from using delay as a response option, despite the law.Give the FOSC money to quickly hire private response companies, if the RP does not act or if the spill's origin is a mystery.
Equally important, the CWA and OPA did NOT designate a government agency to “clean up” oil spills. Rather, the law envisioned private companies performing that role, paid for by the spillers/RP or the 311(k)/OSLTF Fund, under the oversight of the USCG or the EPA. It tasked the USCG with managing this Fund.
The Fund achieved its results. The US has a robust private oil spill removal sector that responsible parties hire when needed. If an RP does not act, the CG and EPA FOSCs use the Fund to mobilize those same companies to remove oil spills on US waters. The US economy has grown, as has the number of oil spills reported. Cases each year requiring Fund use have not increased proportionally. Responsible parties continue to clean up their spills, as the CWA envisioned.
The Fund retains its ability to respond simultaneously to major spills, even during Exxon Valdez and Deepwater Horizon. In forty two years, the Fund has always been available for an FOSC directed removal.
The opinions stated in this paper are the author's alone, and do not reflect the official policies of the United States Coast Guard.
OPA 90: ENHANCED BY STATE PREVENTION AND RESPONSE PROGRAMS
