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Andrew J. Garger

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

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  1. Andrew J. Garger Vice President, Legal & General Counsel Water Quality Insurance Syndicate

  2. Do You Remember?

  3. 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

  4. 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

  5. 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

  6. 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

  7. WHAT IS RECOVERABLE ? • Lost Revenue • Lost Profits • Increased Costs of Public Services • Removal Costs • Natural Resource Damages • Damage to Property • Loss of Subsistence Use

  8. Spill Response Overview • Types of Incidents • Types of Spilled Products • Responsible Party’s (RP) Initial Response • MPRG

  9. Spill Response Overview Continued • USCG Involvement • Other Government Agency Involvement • Response Resource Availability • Security Issues Under the MTSA

  10. 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

  11. 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

  12. 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.

  13. Mississippi River Spill SPILL RESPONSE • Coast Guard closed 58 miles of the Mississippi River (at least 3 days). • Down-river water intakes boomed off.

  14. Mississippi River Spill

  15. Mississippi River Spill

  16. Mississippi River Spill

  17. Mississippi River Spill

  18. Mississippi River Spill

  19. Aggressive Cleanup Measures

  20. 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.”

  21. 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.

  22. Natural Resource Damage Assessment Natural Resource Damage Assessment • Huge potential damages • Passive-Use (loss of enjoyment) • Wildlife habitats • Bird kills

  23. 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.

  24. 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.

  25. 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 .

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