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Andrew J. Garger. Vice President, Legal & General Counsel Water Quality Insurance Syndicate. Do You Remember?. OPA’s Predecessors . Water Quality Improvement Act Federal Water Pollution Control Act Clean Water Act Outer Continental Shelf Lands Act Amendments

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Andrew j garger
Andrew J. Garger

Vice President, Legal & General Counsel

Water Quality Insurance Syndicate



Opa s predecessors
OPA’s Predecessors

  • Water Quality Improvement Act

  • Federal Water Pollution Control Act

  • Clean Water Act

  • Outer Continental Shelf Lands Act Amendments

  • Trans-Alaska Pipeline Authorization Act

  • Deep Water Ports Act


The oil pollution act of 1990 opa p l 101 380
THE OIL POLLUTION ACT OF 1990 (OPA) P.L. 101-380

Responsible Party: Owner, Operator or Charterer by demise

Nature of Liability:Strict, joint and several


The oil pollution act of 1990 opa p l 101 3801
THE OIL POLLUTION ACT OF 1990 (OPA) P.L. 101-380

Pollutant:Oil of any kind, except if classified as an hazardous substance under CERCLA

Jurisdiction: Navigable waters, adjoining shorelines, or the Exclusive Economic Zone


Opa liability limits
OPA LIABILITY LIMITS

  • Higher for Single Hulled Vessels than for Double Hulled Vessels.

  • Example: 3000 gross ton double hulled vessel has limit of the greater of $2000 per gross ton or $17,800,000

  • Single hulled tank vessel same size the greater of $3200 per gross ton or $23,496,000


What is recoverable
WHAT IS RECOVERABLE ?

  • Lost Revenue

  • Lost Profits

  • Increased Costs of Public Services

  • Removal Costs

  • Natural Resource Damages

  • Damage to Property

  • Loss of Subsistence Use


Spill response overview
Spill Response Overview

  • Types of Incidents

  • Types of Spilled Products

  • Responsible Party’s (RP) Initial Response

  • MPRG


Spill response overview continued
Spill Response Overview Continued

  • USCG Involvement

  • Other Government Agency Involvement

  • Response Resource Availability

  • Security Issues Under the MTSA


Spill response overview continued1
Spill Response Overview Continued

  • Third Party Issues and Concerns

  • Things that can Drive the Cost of the Spill Response

  • Natural Resource Damage Assessment (NRDA) Considerations


Mississippi river spill
Mississippi River Spill

Collision July 23rd – Barge DM-932, TUG MEL OLIVER, M/V TINTOMARA

  • Mile 99 near entrance to Harvey Canal

  • Approximately 9000 bbls of #6 oil (heavy). Approx. half spilled

  • ACL, owner of the DM-932 (double skinned barge) is responsible party


Mississippi river spill1
Mississippi River Spill

CASUALTY RESPONSE

  • On scene- spill response managers, spill response contractors, environmental experts, Coast Guard, state officials, 3rd party claims handlers.

  • Over 1000 responders at height of cleanup.


Mississippi river spill2
Mississippi River Spill

SPILL RESPONSE

  • Coast Guard closed 58 miles of the Mississippi River (at least 3 days).

  • Down-river water intakes boomed off.








Mississippi river spill8
Mississippi River Spill

Public Commentary (NOLA.COM)

  • “Was Joseph Hazlewood piloting the tanker?”

  • “Sounds like someone had too much to drink.”

  • “How in the hell do you not see a 600 foot tanker? Can you say DUI.?”

  • “Sounds like Al Qaeda.”

  • “I might just call it a day and get on out of work and throw and oil spill party.”

  • “If they were only using Cosmo Kramer’s bladder system that he invented this could have all been avoided.”


Mississippi river spill9
Mississippi River Spill

Coast Guard Investigation

  • Many hearings held.

  • Barge Pilot took the 5th

  • Preliminary Statement by Coast Guard indicated improper licensure.

  • Ultimately criminal charges were brought against the tug.


Natural resource damage assessment
Natural Resource Damage Assessment

Natural Resource Damage Assessment

  • Huge potential damages

  • Passive-Use (loss of enjoyment)

  • Wildlife habitats

  • Bird kills


Mississippi river spill10
Mississippi River Spill

Class Action Lawsuits

  • At least six filed naming ACL, DRD, and others.

  • Includes loss of revenue claims.

  • Classes have not been certified.


What is a natural resource
WHAT IS A NATURAL RESOURCE ?

  • CERCLA AND OPA ‘90 DEFINE “NATURAL RESOURCES” AS LAND, FISH,WILDLIFE, BIOTA, AIR, WATER, GROUNDWATER, DRINKING WATER SUPPLIES, AND OTHER SUCH RESOURCES.

  • INJURY REFERS TO THE ACTUAL ADVERSE IMPACTOR LOSS OF THE NATURAL RESOURSE RESULTING DIRECTLY OR INDIRECTLY FROM EXPOSURE TO A RELEASE OR THREAT OF RELEASE OF OIL OR A DISCHARGE OR RELEASE OF A HAZARDOUS SUBSTANCE.

  • DAMAGE IS THE AMOUNT OF MONEY SOUGHT BY THE TRUSTEES TO COMPENSATE FOR THE INJURY THROUGH RESTORATION OR REPLACEMENT PROJECTS.


Alphabet soup
ALPHABET SOUP

  • H.E.A.- HABITAT EQUIVALENCY ANALYSIS

  • R.E.A. – RESOURCE EQUIVALENCY ANALYSIS

  • COMPLEX FORMULAE USED TO FIGURE OUT WHAT NEEDS TO BE DONE TO CREATE, RESTORE OR PROTECT THE INJURED RESOURCE .


The gulf spill
THE GULF SPILL

  • LARGEST SPILL IN HISTORY ??

  • MASSIVE SPILL RESPONSE

  • EVERY TYPE OF CLEANUP TECHNOLOGY BEING USED

  • EFFECTS WILL BE FELT FOR YEARS IF NOT DECADES.


Largest spills
LARGEST SPILLS

  • Lakeview Gusher, CA. 9 Mill. Bbls.

  • Deepwater Horizon 3-8.7 Mill. Bbls.

  • Gulf War 2-6 Mill BBLS.

  • Ixtoc I - Gulf of Mexico 3.5 Mill Bbls.

  • Exxon Valdez – 257,000 Bbls.

  • Yet, only 8% of oil in water every year is from tanker /pipeline/well spills.























Oil skimming1

100716-G-5030M-007-- GULF OF MEXICO -- Crewmembers monitor the oil skimming set-up aboard CGC Walnut, a 225-foot sea-going buoy tender based in Honolulu while CGC Resolute stands by in the background. The Walnut is skimming oil near the BP oil spill site after transiting the Panama Canal. Coast Guard photo by Petty Officer 1st Class John Masson. 

OIL SKIMMING


Modified fishing vessel
MODIFIED FISHING VESSEL the oil skimming set-up aboard CGC Walnut, a 225-foot sea-going buoy tender based in Honolulu while CGC Resolute stands by in the background. The Walnut is skimming oil near the BP oil spill site after transiting the Panama Canal. Coast Guard photo by Petty Officer 1st Class John Masson. 


Oil skimmer
OIL SKIMMER the oil skimming set-up aboard CGC Walnut, a 225-foot sea-going buoy tender based in Honolulu while CGC Resolute stands by in the background. The Walnut is skimming oil near the BP oil spill site after transiting the Panama Canal. Coast Guard photo by Petty Officer 1st Class John Masson. 


Skimming operations
SKIMMING OPERATIONS the oil skimming set-up aboard CGC Walnut, a 225-foot sea-going buoy tender based in Honolulu while CGC Resolute stands by in the background. The Walnut is skimming oil near the BP oil spill site after transiting the Panama Canal. Coast Guard photo by Petty Officer 1st Class John Masson. 


Boom in florida
BOOM IN FLORIDA the oil skimming set-up aboard CGC Walnut, a 225-foot sea-going buoy tender based in Honolulu while CGC Resolute stands by in the background. The Walnut is skimming oil near the BP oil spill site after transiting the Panama Canal. Coast Guard photo by Petty Officer 1st Class John Masson. 


Emulsified oil

GULF OF MEXICO - Vessels of Opportunity participants chase and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 

EMULSIFIED OIL


Largest oil skimmer ever
LARGEST OIL SKIMMER EVER and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Largest oil skimmer ever1
LARGEST OIL SKIMMER EVER and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Beach cleanup scat team
BEACH CLEANUP - SCAT TEAM and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Beach cleanup
BEACH CLEANUP and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Beach cleanup1
BEACH CLEANUP and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Marsh grass cleanup
MARSH GRASS CLEANUP and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Snare boom
SNARE BOOM and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Containment boom
CONTAINMENT BOOM and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Containment boom and sorbent boom
CONTAINMENT BOOM AND SORBENT BOOM and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Sorbent and protective boom
SORBENT AND PROTECTIVE BOOM and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Protective boom
PROTECTIVE BOOM and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Protective booming
PROTECTIVE BOOMING and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


In situ burning
IN-SITU BURNING and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


In situ burning1
IN SITU BURNING and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


In situ burning2
IN – SITU BURNING and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Chemical dispersants
CHEMICAL DISPERSANTS and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Chemical dispersants1
CHEMICAL DISPERSANTS and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Diver searching for underwater pollution
DIVER – SEARCHING FOR UNDERWATER POLLUTION and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Subsea dispersants
SUBSEA DISPERSANTS and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Breton national wildlife refuge
BRETON NATIONAL WILDLIFE REFUGE and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Brown pelican again
BROWN PELICAN AGAIN and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Wildlife
WILDLIFE and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Sea turle nest
SEA TURLE NEST and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Sea turtle nest
SEA TURTLE NEST and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Sea turtle
SEA TURTLE and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Top kill procedure
TOP KILL PROCEDURE and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Top hat
TOP HAT and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Attempt to cap the well
ATTEMPT TO CAP THE WELL and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Loop current research
LOOP CURRENT RESEARCH and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Decontamination at ports
DECONTAMINATION AT PORTS and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Decontamination site
DECONTAMINATION SITE and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Decontamination
DECONTAMINATION and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Decontamination1
DECONTAMINATION and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Political visits
POLITICAL VISITS and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Media response
MEDIA RESPONSE and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


What now
What Now? and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Current situation
Current Situation and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 

  • 94 and 180 million gallons have spilled (2.2-4.4 million barrels)????

  • Successful Capping of Well (for now)

  • Need to be removed if leaking

  • Oil would flow freely again

  • Would then try to use subsea containment systems to capture escaping oil and divert to surface vessels.


Relief well
RELIEF WELL and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Relief well1
RELIEF WELL and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Aftermath of gulf spill
Aftermath of Gulf Spill and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 

  • MOST EXPENSIVE SPILL IN HISTORY: 3.5 million in cleanup expenses

  • DRIVING MASSIVE POLITICAL RESPONSE

  • CONGRESSIONAL HEARINGS AND LEGISLATIVE PROPOSALS

  • ECOLOGICAL FALLOUT

  • CRIMINAL PROBE

  • ECONOMIC EFFECTS

  • CVIL LAWSUITS


Political action
Political Action and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 

  • Congressional Hearings

  • Legislative Proposals

  • “Independent “Presidential Commission

  • Extralegal Pressure

  • Who should be in charge, Dept. of Interior or Coast Guard


Ecological fallout
ECOLOGICAL FALLOUT and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 

As of July 17, 2010

  • 2,200 dead birds found

  • 500 dead sea turtles

  • 590 miles of Gulf shoreline oiled

  • 1/3 to ½ fisheries are closed

  • Fisheries imperiled, including shrimp/crabs

  • Underwater plumes of oil found

  • Oil getting into food chain - crabs


Nrda as a result of ecological fallout
NRDA as a result of Ecological Fallout and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 

  • Assessment of environmental effects to determine what BP must pay to restore the Gulf Environment.

  • Inexact Science


Drilling moratorium
Drilling Moratorium and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 

  • First one overruled in Court, reissued by Administration

  • 8000 drilling workers and 24,000 people who service the 33 rigs effected have future employment jeopardized

  • $750 million in annual wages


Other economic effects
Other Economic Effects and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 

  • Tourism down

  • Fishing: The fisherman, companies that build and maintain boats, people who process and resell catch, and the restaurants.

  • 20 billion compensation fund set up

  • Factors for payment: Proximity to Coast, dependence on resources, industry.


See you in court
SEE YOU IN COURT and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 

  • Government Criminal Probe – Low burden of proof, Migratory Bird Treaty Act, Refuse Act, Criminal Negligence.

  • Settlement s to injured and killed

  • Hundreds of Economic Claims but mitigated by BP Settlment Fund.


Oil in new york
Oil in New York ?? and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 

  • Supercomputer simulations suggest it is likely oil will move up the East Coast

  • Within next six months.

  • Factors: wind speed, current patterns, temperatures and past weather patterns.


Long term outlook
Long Term Outlook and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 

  • Move more oil by tanker??

  • Natural gas/ nuclear/Wind Farms

  • Green energy

  • Resources will bounce back – Exxon Valdez

    • www.evostc.state.ak.us/facts/qanda.cfm


Thanks
Thanks! and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 


Breaking liability limits
BREAKING LIABILITY LIMITS and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. 

  • Gross negligence, willful misconduct (no privity or knowledge of owner required).

  • Violation of federal safety, construction or operating standard.

  • Failure to report spill or cooperate with clean-up.


Bp spill issue breaking liability limits
BP Spill Issue BREAKING and corral oil near Dauphin Island, Ala. More than 38,000 people are participating in the nation's largest oil spill response in history. U.S. Coast Guard photo. LIABILITY LIMITS

  • Gross negligence, willful misconduct. (no privity or knowledge of owner required)

  • Violation of federal safety, construction or operating standard.

  • Failure to report spill or cooperate with clean-up.


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