Wednesday, May 26, 2010

Oil Spill Pollution Act of 1990

Oil Pollution Act of 1990.

The Oil Pollution Act of 1990 (PL 101-380), referred to herein as OPA ’90, was a direct Congressional response to the Exxon Valdez Oil Spill. The Act had several impacts on emergency management and hazardous materials response, even while upgrading technical safety standards for tankers (e.g., mandating double hulling for new tankers).

In 1989 Senator Ted Stevens (Alaska) pushed the amendments of the Stafford Act in response to FEMA’s recommendation to the President not to declare a disaster under the authority of the Stafford Act. In a Senate appropriations hearing on May 1, 1989, FEMA officials testified that they interpreted the Stafford Act as not giving the President authority to respond if another statute authorized a federal response. Regarding the Exxon Valdez incident, the National Contingency Plan (NCP), authorized by the Federal Water Pollution Control Act (33USC. § 1321), was triggered, and FEMA did not respond under the Stafford Act.

The NCP, a Memorandum of Agreement to which 16 federal agencies are signatories, is designed to respond to intentional or unintentional releases of oil or hazardous materials on land or water. There was, however, a requirement in place in OPA ’90 to update the NCP on a comprehensive basis. The NCP was completed in Sept. 1994 and codified and published at 40 CFR Part 300.

OPA ’90 also mandated a report to Congress on duplications, overlaps, and deficiencies in the federal response to hazardous materials releases. EPA submitted that report to Congress in Dec. 1993. Two key documents are: (1) Review of Federal Authorities for Hazardous Materials Accident Safety. Report to Congress Section 112(r)(10), Clean Air Act as Amended (Presidential Review), 12-01-93, 550-R-93-002 (2) Review of Emergency Systems, Report to Congress Section 305(b) Title III Superfund Amendments and Reauthorization Act of 1986 Final Report, 6-01-88, OSWER 305B. Both are in hard copy only, available from EPA.

Additionally, EO 12580, delegating authority from the President to a number of departments and agencies and creating the National Response System, was amended after passage of OPA ’90 to reflect experience from the Valdez oil spill and administrative procedures connected with that incident. Nothing in the floor debates, committee hearings, committee reports or conference report on OPA”90 addressed hazardous materials releases caused by terrorists. Administratively, however, in the revisions to the NCP required by OPA’90, it was made clear that the NCP had full applicability in response to terrorism incidents/events. See E.O. 12580 of January 23, 1987, “Superfund Implementation” as amended by E.O. 12777 and E.O. 13016. See also President’s memorandum of August 19, 1993, 52 Fed. Reg. 2923, 3 CFR, 1994 Comp, p. 767.

In February 1998 and every year since, the subject of response to terrorist-related hazardous materials releases has been a principal issue at the annual meeting of the National Response Team co-chairs (EPA and USCG). E.O. 12580 of January 23, 1987, was originally published at 52 Fed Reg. 2923, 3 CFR 1987 comp., p. 193.

Wondering if terrorists might target offshore oil drilling rigs?