By Dennis L. Bryant, Bryant’s Maritime Consulting

EXECUTIVE SUMMARY: In 1998, an obscure, last minute addition to the Coast Guard Authorization Act amended section 311 of the Federal Water Pollution Control Act (FWPCA), expanding the definition of “discharge”, and clarifying the liability of responders engaged in preventing the substantial threat of a discharge. These amendments immunize responders from liability for damages from oil spills during mechanical removal activities undertaken under the National Contingency Plan (NCP) or as directed by the Federal On-Scene Coordinator (FOSC), including mechanical removal operations intended to prevent the substantial threat of a discharge.

Discussion

On October 10, 1998, Representative Michael T. Gilcrest (R-MD), Chair of the Coast Guard and Maritime Transportation Subcommittee, rose on the House Floor to present the final version of the Coast Guard Authorization Act of 1998 (H.R. 2204). He had introduced the original version on July 21, 1997, and then guided it, with various amendments, through the Subcommittee, the Transportation and Infrastructure Committee, and the full House. He also participated in the Conference Committee negotiating differences with his Senate counterparts. Today was the culmination of all that work.

Reviewing the bill for the record, Representative Gilchrest noted several amendments to the bill’s text, stating:

Page 20, after line 22, add these new sections (and conform the table of contents in section 2 accordingly):

SEC. 411. CLARIFICATION OF LIABILITY OF PERSONS ENGAGING IN OIL SPILL PREVENTION AND RESPONSE ACTIVITIES.

(a) CLARIFICATION OF LIABILITY FOR PREVENTING SUBSTANTIAL THREAT OF DISCHARGE.—Section 311 of the Federal Water Pollution Control Act (33 U.S.C. 1321) is amended— (1) in subsection (a)(8) by striking ‘‘to minimize or mitigate damage’’ and inserting ‘‘to prevent, minimize, or mitigate damage’’; (2) by striking ‘‘and’’ after the semicolon at the end of subsection (a)(23), by striking the period at the end of subsection (a)(24) and inserting ‘‘; and’’, and by adding at the end of subsection (a) the following: ‘‘(25) ‘removal costs’ means— ‘‘(A) the costs of removal of oil or a hazardous substance that are incurred after it is discharged; and ‘‘(B) in any case in which there is a substantial threat of a discharge of oil or a hazardous substance, the costs to prevent, minimize, or mitigate that threat.’’; and (3) in subsection (c)(4)(A), by striking the period at the end and inserting: ‘‘relating to a discharge or a substantial threat of a discharge of oil or a hazardous substance.’’.

(b) OIL SPILL MECHANICAL REMOVAL.—Section 311(a)(2) of the Federal Water Pollution Control Act (33 U.S.C. 1321(a)(2)) is amended— (1) by striking ‘‘and (C)’’ and inserting ‘‘, (C)’’; and (2) by inserting before the semicolon at the end the following: ‘‘, and (D) discharges incidental to mechanical removal authorized by the President under subsection (c) of this section’’.

(c) SENSE OF THE CONGRESS REGARDING OIL SPILL RESPONSE ACTIONS.—It is the sense of the Congress that, under the Oil Pollution Act of 1990, the President should ensure that liability concerns regarding response actions to remove a discharge, or to mitigate or prevent the threat of a discharge, do not deter an expeditious or effective response, by promulgating guidelines under applicable Federal law, as soon as possible, clarifying that a person who takes any response action consistent with the National Contingency Plan, including the applicable fish and wildlife response plan, or as otherwise directed by the President, to prevent or mitigate the environmental effects of a discharge or a threat of a discharge should not be held liable for the violation of fish and wildlife laws, unless the person is grossly negligent or engages in willful misconduct.

In reviewing the bill, he announced bipartisan support for these provisions which he summarized:

New section 411(a) of the bill, as contained in this amendment, amends provisions in section 311 of the FWPCA, regarding liability immunity for measures to respond to oil spills, to clarify that such immunity also applies to measures to prevent, minimize, or mitigate the substantial threat of a discharge. The intent of this amendment is to address oil spill prevention and response. Nothing in the amendment changes the current relationship between the FWPCA and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, regarding hazardous substances. For example, there is no intent to supersede or modify the effect of section 304 of such Act. Section 411(b) amends the definition of discharge in section 311 of the FWPCA to exclude discharges that are incidental to mechanical removal authorized by the President under section 311. Mechanical removal activities, such as the ‘‘decanting’’ or separation of water from recovered oil, usually involve the return of excess water into the response area. However, such excess water necessarily includes a ‘‘de minimis’’ amount of oil. Unfortunately, current provisions and policies regarding ‘‘harmful quantities’’ in section 311 could potentially apply to such de minimis discharges, creating a disincentive to effective oil spill response. The amendment is intended to remove this potential disincentive. Congressional Record, H12973-12986 (October 15, 1998).

Research has revealed no additional legislative history regarding the Mechanical Removal amendment. Thus, we are left with little to enlighten us beyond the words of the amendment itself.  Section 311(a)(2) of the Federal Water Pollution Control Act [33 U.S.C. § 1321(a)(2)] as amended by the Coast Guard Authorization Act of 1998 defines “discharge” for the Act:

(2) ‘‘discharge’’ includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping, but excludes (A) discharges in compliance with a permit under section 1342 of this title, (B) discharges resulting from circumstances identified and reviewed and made a part of the public record with respect to a permit issued or modified under section 1342 of this title, and subject to a condition in such permit,,1 (C) continuous or anticipated intermittent discharges from a point source, identified in a permit or permit application under section 1342 of this title, which are caused by events occurring within the scope of relevant operating or treatment systems, and (D) discharges incidental to mechanical removal authorized by the President under subsection (c) of this section; (emphasis added).

Subsection (c) of the FWPCA addresses federal removal authority and provides among other things that “Each Federal agency, State, owner or operator, or other person participating in efforts under this subsection shall act in accordance with the National Contingency Plan or as directed by the President.” [33 U.S.C. §1321(c)(3)(A)].

The effect of mechanical removal amendment is that any discharge during the response to an incident covered by the FWPCA where the discharge is incidental to mechanical removal during response efforts taken under the National Contingency Plan or as directed by the President or his designated representative is NOT a discharge for purposes of the penalty provisions of the FWPCA.

Mechanical Removal Defined

While the amendment includes no definition of mechanical removal and Representative Gilchrest’s floor statement only mentions the example of decanting or separation of water from recovered oil, [which] usually involves the return of excess water into the response area, the Coast Guard has utilized and defined the term since 1976.

Following enactment of the Federal Water Pollution Control Act (FWPCA) Amendments Act of 1972 and the delegation of broad regulatory and enforcement authority to the Coast Guard, the agency promulgated its first regulations for the control of pollution by oil and hazardous substances and discharge removal. 41 Fed. Reg. 12628-34 (March 25, 1976). This regulation established for the first time that “mechanical removal” of discharges of oil and hazardous substances means “the use of pumps, skimmers, booms, earthmoving equipment, and other mechanical devices to contain the discharge of oil and to recover the discharge from the water or adjoining shorelines.” That initial regulatory definition has remained unchanged and is now codified at 33 C.F.R. §153.103(j).

Regarding discharge removal, regulations provide that:

Each person who removes or arranges for the removal of a discharge of oil from coastal waters shall [among other things]:

(a) Use to the maximum extent possible mechanical methods and sorbents that: (1) Most effectively expedite removal of the discharged oil; and (2) Minimize secondary pollution from the removal operations;

(b) Control the source of discharge, prevent further discharges, and halt or slow the spread of the discharge by mechanical methods or sorbents or both to the maximum extent possible;

(c) Recover the discharged oil from the water or adjoining shorelines by mechanical or manual methods or both to the maximum extent possible.
33 CFR §153.305. (Note: the wording of this regulation is also unchanged from that of the original 1976 promulgation).

The regulation creates a distinction between discharge removal by mechanical means and removal by sorbents. This distinction is significant due to its impact on the breadth of the discharge exemption in 33 U.S.C. § 1321(a)(2)(D). The regulation also includes an interesting note: The Federal OSC is authorized by the provisions of the National Contingency Plan to require or deny the use of specific mechanical methods and sorbents.

Substantial Threat of Discharge Defined

The term “substantial threat of discharge,” like so much else relating to the prevention of and response to discharges of oil or a hazardous substance, originated with the Oil Pollution Act of 1990 (OPA 90) and the various implementing regulations.

The authority of the federal government was established:

(c) Federal removal authority (1) General removal requirement (A) The President shall, under the National Contingency Plan and any appropriate Area Contingency Plan, ensure effective and immediate removal of a discharge, and mitigation or prevention of a substantial threat of a discharge, of oil or a hazardous substance— (i) into or on the navigable waters; (ii) on the adjoining shorelines to the navigable waters; (iii) into or on the waters of the exclusive economic zone; or (iv) that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States. (B) In carrying out this paragraph, the President may— (i) remove or arrange for the removal of a discharge, and mitigate or prevent a substantial threat of a discharge, at any time; (ii) direct or monitor all Federal, State, and private actions to remove a discharge; and (iii) remove and, if necessary, destroy a vessel discharging, or threatening to discharge, by whatever means are available. 33 USC 1321 (c)(1) [emphasis added].

The Environmental Protection Agency (EPA), as the lead agency regarding the National Contingency Plan (NCP), promulgated pertinent definitions. Among them is the definition of “discharge”:

Discharge as defined by section 311(a)(2) of the CWA [Clean Water Act, also known as the Federal Water Pollution Control Act (FWPCA)], includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying, or dumping of oil, but excludes discharges in compliance with a permit under section 402 of the CWA, discharges resulting from circumstances identified and reviewed and made a part of the public record regarding a permit issued or modified under section 402 of the CWA, and subject to a condition in such permit, or continuous or anticipated intermittent discharges from a point source, identified in a permit or permit application under section 402 of the CWA, that are caused by events occurring within the scope of relevant operating or treatment systems. For purposes of the NCP, discharge also means substantial threat of discharge. 40 CFR § 300.5 Definitions (emphasis added).

The U.S. Coast Guard has promulgated implementing regulations about the maritime sector. These regulations include the following definition:

Substantial threat of such a discharge means any incident involving a vessel that may create a significant risk of discharge of cargo oil. Such incidents include, but are not limited to, groundings, strandings, collisions, hull damage, fire, explosion, loss of propulsion, flooding, on-deck spills, or other similar occurrences. 33 CFR 155.1020 – Definitions – Tank Vessel Response Plans for Oil.

Caveats

There is a disconnect between what Congress intended to accomplish and what they accomplished. The uncodified Sense of Congress provision states that a person who takes any response action consistent with the National Contingency Plan, including the applicable fish and wildlife response plan, or as otherwise directed by the President, to prevent or mitigate the environmental effects of a discharge or a threat of a discharge should not be held liable for the violation of fish and wildlife laws, unless the person is grossly negligent or engages in willful misconduct. (Emphasis added). The statutory amendment, though, included no such limitation. All discharges incidental to mechanical removal authorized by the President under 33 U.S.C. §1321(c) are, by this amendment, not discharges for the liability provisions of the FWPCA. While a discharge caused by the willful misconduct of a responder is a separate discharge caused by independent action, the same cannot be said for a discharge exacerbated by gross negligence. Thus, a third party may not maintain an action against a responder for damages from a discharge resulting from mechanical removal (even in cases of gross negligence).

Strangely, when Congress amended the FWPCA in 1998, it failed to also amend to the similar provision in the Oil Pollution Act, adopted as Title 1 to the Oil Pollution Act of 1990 (OPA 90). The Oil Pollution Act, at 33 USC §2701(7), includes no exception provisions to its definition of discharge, and the 1998 amendment to the definition of “discharge” in the FWPCA was intended to prevail over the 1990 definition of “discharge” in OPA 90. Representative Gilchrest, in his floor statement when presenting the final bill for a vote stated that its provision regarding mechanical removal was not intended to impact the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA). By implication, the amendment was intended to prevail over anything to the contrary in the Oil Pollution Act.

Impact of Amendments

The “mechanical removal” amendment particularly comes into play when, during an oil discharge response, the responder acts under the NCP or at the direction of the FOSC that results in an additional oil discharge that causes harm to a third party or the environment. An example of such situation is the response to the September 2019 grounding of the car carrier GOLDEN RAY in St. Simons Sound near Brunswick, Georgia. At the direction of the FOSC, the responder cut the hull into smaller, transportable pieces. During the cutting process, additional oil was discharged. The responder is not liable for that discharge. Because of this amendment, the responder avoids liability for this secondary pollution.

The “substantial threat of discharge” is of slightly less significance, but still important as it resolves an ambiguity in the law. Together these amendments significantly impact the potential liability of responders in their important work.