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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 Vice President, Legal & General Counsel Water Quality Insurance Syndicate
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 Responsible Party: Owner, Operator or Charterer by demise Nature of Liability:Strict, joint and several
THE OIL POLLUTION ACT OF 1990 (OPA) P.L. 101-380 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 • 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 ? • Lost Revenue • Lost Profits • Increased Costs of Public Services • Removal Costs • Natural Resource Damages • Damage to Property • Loss of Subsistence Use
Spill Response Overview • Types of Incidents • Types of Spilled Products • Responsible Party’s (RP) Initial Response • MPRG
Spill Response Overview Continued • USCG Involvement • Other Government Agency Involvement • Response Resource Availability • Security Issues Under the MTSA
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 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 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 Spill SPILL RESPONSE • Coast Guard closed 58 miles of the Mississippi River (at least 3 days). • Down-river water intakes boomed off.
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 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 • Huge potential damages • Passive-Use (loss of enjoyment) • Wildlife habitats • Bird kills
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 ? • 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 • 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 .