October 5, 1978
Page 34034
Mr. MUSKIE. Mr. President, the Committee on Environmental and Public Works has unanimously reported S. 2083,the Oil Pollution Liability and Compensation Act of 1978, a bill which deserves enactment as a public law before the close of the 95th Congress.
If we do not act now, we allow the continued existence of a time bomb whose detonation no one can predict. For no one can say when another Argo Merchant or Amoco Cadiz will occur. This bill is designed to address such disasters.
The bill's purpose is to assist our citizens and protect our resources from the economic, environmental, and esthetic consequences of spills of oil and other hazardous substances. It is a tough bill. It is the best approach to the problems such spills create, and the only approach that I believe has a realistic chance of being adopted in this Congress.
Oil spill liability law has been confusing and inadequate in the past. We have tried to protect our citizens along the country's coast and inland waterways by enacting a patchwork of Federal programs, State statutes and nebulous international agreements, each dealing with different circumstances.
Presently, there are five domestic laws which have provisions affecting liability for cleanup and damages from oil spills: the Federal Water Pollution Control Act — which deals only with cleanup — the Trans-Alaska Pipeline Act, the Deepwater Ports Act, the Outer Continental Shelf Lands Act, and the Limitation of Liability Act of 1851. There are also numerous State laws and common law remedies offering legal recourse in the event of an oil spill. Internationally, there have been two conventions — neither of which has been ratified by the United States — and two voluntary agreements that provide for liability and compensation in the event of an oil spill. Voluntary agreements by tanker owners have either failed to provide sufficient relief to private parties or to extend coverage to damages or ecological impairment.
In the case of protection from spills of hazardous materials, the Federal Water Pollution Control Act is the only Federal statute which assesses liability for such spills, and only for cleanup and mitigation, not third party damages. In fact, section 311 of the Federal Water Pollution Control Act treats spills of hazardous substances under the same cleanup liability scheme as spills of oil. Spills of nonremovable hazardous substances are assessed a penalty in lieu of cleanup liability. There is no Federal statute imposing liability for third party damages resulting from spills of hazardous substances.
However, even with all these legal avenues, the average citizen cannot be assured of prompt and adequate compensation for damages suffered from an oil or hazardous substance spill.
What exists today is an uneven mixture of Federal and State laws dealing with spills of oil and hazardous substances. The need exists for a comprehensive law to pull these various schemes together and fill in the holes.
Therefore, we should approve S. 2083, to provide liability and compensation for cleanup costs and damages created by spills of oil and other hazardous sub-stances.
It was in 1967 that the world first grasped the consequences of spilled oil in open waters. The Torrey Canyon, a vessel carrying 880,000 barrels of crude oil, ran aground off the southwest coast of England. The seeping oil fouled beaches, killed marine and wildlife but, more important, awakened the international community to the dangers posed by oil-carrying supertankers. The public outcry was great and resulted in an international convention to discuss the expanding tanker technology which threatened to repeat such disasters in greater proportions.
In 1969, ocean discharges of oil came home to America. We witnessed an oil disaster off the Santa Barbara coast when an oil well blew up, gushing almost14,000 tons of oil onto pristine beaches, killing marine and wildlife. The $8.5 million cleanup cost and the $14.5 million worth of damages resulted in the Department of Interior's first regulations covering liability for Outer Continental Shelf drilling activity.
It was 7 more years before the domestic interest in oil pollution liability laws was renewed. In December of 1976,the Liberian flag tanker, the Argo Merchant, went aground 28 miles from Nantucket Island. The vessel spilled most of its 7.8 million gallons of heavy heating oil, which eventually was taken out to sea and away from important tourist industry along Cape Cod. But for several weeks we all held our breath, wondering whether the vagaries of wind and current patterns would destroy or save the area.
Soon after the Argo Merchant, another tanker ran aground in the Delaware River, spilling 135,000 gallons of crude oil into the fertile tidal marshes below Philadelphia.
Last March, the Amoco Cadiz incident off the coast of Brittany, France, left little doubt that the growing world demand for oil has led to larger tankers and greater risks for disaster. The French Government has expended $84 million for cleanup costs alone. Damages are estimated to run well over another $100 million. It is clear that the economic consequences of such spills are far greater than any of us anticipated even a decade ago when the Senate first initiated legislation to deal with this problem.
However, the tragic fact is that it always takes a disaster to ignite concern about the danger of oil spills.
Do we need to wait until another ecological disaster hits our shorelines, or a financial disaster hits those citizens making a livelihood along our coast, to realize that comprehensive legislative action to protect oil spill victims is needed?
Mr. President, coming from a State whose livelihood and soul have evolved from the clean ruggedness of its coastline, I am particularly aware of the concern and the potential for destruction which exists along Maine's 2,300 miles of inlet and bay shoreline.
I ask for support of S. 2083, which was unanimously reported from the Environment and Public Works Committee, because this problem is not going to go away. On the contrary, every year, every month that we neglect to address the problem of inadequacies in our present liability and compensation programs, the greater the risk that more crises will occur — and to a greater extent.
There are numerous spills which occur in American waters every year. A General Accounting Office report identified the sources of oil spills and identified 10,600 oil pollution incidents which occurred in our waters in 1976. These incidents resulted in 23.1 million gallons of oil being spilled. Almost one-third of all spills were caused by oil-carrying vessels. There is no doubt but that our Nation's waters will see increased numbers of such vessels as our dependence on imported oil continues to grow.
The table from the May 16, 1978, report of the General Accounting Office is printed as appendix A.
Increased offshore oil development also enhance the likelihood for oil leakage into the ocean. Texaco, for example, announced last July that it had discovered oil or gas in the Atlantic Ocean off the coast of New Jersey. We can surely expect greater exploration and probable development in that area.
A very real need, then, exists for a comprehensive liability and compensation regime such as is embodied in S. 2083.
S. 2083, as amended and reported, seeks to expand liability limits and coverage of third party damages to put the responsibility of cleanup and damages squarely on those responsible for the act. The concept of a fund, or a "superfund" as this bill has commonly been referred to, is to provide financial protection for victims damaged by a spill where the costs of such damages exceed the spillers' liability. Also, victims would be compensated when the owner of the spilled material cannot be identified. In such cases, S. 2083 provides a fund which would guarantee that all the costs associated with a spill would be compensated through a mechanism which passes these excess costs through to all users of the product.
Before I discuss the major provisions of this legislation, I would first like to emphasize what this bill will not do.
This is not legislation to improve oil tanker safety requirements or to prevent spills. The Oil Pollution Liability and Compensation Act of 1978 would instead provide a means of dealing with removal costs and damages that occur as a result of a spill. It is the purpose of other legislation, namely the pending tanker safety bills, to establish tanker safety and other regulatory safeguards.
S. 2083 does not contain provisions for safer tanker operation, though it leaves in place State laws that may provide such incentives. The absence of provisions providing for incentives for safe operation causes some concern among members of the committee. The committee, therefore, has directed the Environmental Protection Agency, the General Accounting Office, and the Coast Guard to direct a joint study and report on the existence or absence of incentives for safe operation in the industries affected by this legislation.
The bill before us is a reasonable approach to truly protecting our citizens and resources from damages derived from a variety of spills into American waters.
After 3 days of hearings and 3 days of markup by the Subcommittee on Environmental Pollution on a bill I introduced last April, the full Committee on Environment and Public Works unanimously reported an amended version of an oil spill liability bill already reported by the Senate Commerce Committee. The bill differs from versions produced by that committee or the House of Representatives in three important respects.
First, this bill builds upon an existing body of law — section 311 of the Federal Water Pollution Control Act. No new statutory framework would be formed. The House bill and the Senate Commerce Committee legislation, on the other hand, depart from existing law, and so into unchartered waters by creating new statutory structures.
Second, this legislation is unique in that spills of hazardous substances are covered. The committee agreed that the public should have the same protection from damages whether they resulted from discharges of oil or hazardous substances. Testimony to the Subcommittee on Environmental Pollution revealed that hazardous substances, like the Kepone discharged into the James River, can inflict as much, if not greater, damage to natural resources and property as spills of oil.
Third, this bill specifically preserves the right of any State wishing to impose any additional requirements or liability with respect to discharges of oil or hazardous substances within that State. Under this provision, States are free to establish or maintain funds for cleanup or compensation purposes and to collect such fees or penalties as they may establish.
SECTION 311 OF THE FEDERAL WATER POLLUTION CONTROL ACT
This bill addresses the problems of liability and compensation through a variety of provisions and concepts adopted, directly or by reference, from section 311 of the Federal Water Pollution Control Act. Other legislative proposals concerned with oil spill liability would establish an entirely new structure which would depart significantly from the regulatory program which has been in effect since 1970.
The existing provisions under section 311 establish liability out to 200 miles for cleanup of spills of oil and hazardous substances and for damages to natural resources. A $35 million appropriated fund presently covers claims beyond the limit of liability. The liability for cleanup of spills of oil or removable hazardous substances from vessels, not including inland barges, is set at $150 per gross ton or $250,000, whichever is greater for vessels carrying oil or hazardous substances as cargo. The liability limit is set at $125 per gross ton for inland barges, or $125,000, whichever is greater. The liability limit for onshore and offshore facilities is set at a maximum of $50 million — which could be lowered by the President for certain categories of facilities to not less than $8 million. Contingency funds are permitted to be used in order to protect against threatened discharges.
Under section 311, the President is authorized to establish a national contingency plan which provides for the removal of oil and hazardous substances. This plan is implemented by the Coast Guard. It has been in operation for 7 years and is the basic response mechanism for action in cleaning up oil and hazardous substances spills. Appendix B outlines an example of the chain of events surrounding a major oil spill.
The committee bill proposes to keep this mechanism in place.
HAZARDOUS SUBSTANCES
Since 1972, the Environment and Public Works Committee has integrated all legislative provisions dealing with the spills of oil and hazardous substances. This bill follows in that tradition. The authority to deal with oil and hazardous substances within the same regulatory scheme already exists within section 311of the Federal Water Pollution Control Act.
Economic damages resulting from discharges of hazardous substances are not presently included under Federal law. The need to include hazardous substances within the provisions of this legislation is no less urgent — and often more urgent — than the need to protect victims of oil spills. Scarcely a week goes by without some new account of a toxic substances debacle which has caused economic loss and threatened public health. To exclude hazardous substances from such a bill at this time, to needlessly delay until another Congress legislation which would compensate the victim of such disasters, would be folly indeed.
Since April 12, when I introduced legislation to establish a comprehensive oil spill liability regime, I have been informed by the Environmental Protection Agency of four more tragic incidents of hazardous substance spills. The information on these four spills is attached as appendix C.
When we speak of establishing a comprehensive Oil Pollution Liability and Compensation Act — we must mean a comprehensive act. If we should turn our backs on the inclusion of hazardous substances in this legislation, we would be enacting only half a law.
PREEMPTION
The third major difference embodied in the legislation reported by the Environment and Public Works Committee is the total preservation of the rights of States to provide for more stringent protection than is offered in the proposed Federal legislation. Section 7 of the bill allows States to establish or maintain funds for cleanup or compensation, to collect such fees or penalties, or penalties as they see fit and, most importantly, to establish more restrictive liability and compensation laws than is provided by the Federal law The committee agreed that any restriction of such States' rights would ultimately do little good and be contrary to this committee's tradition of preserving the rights of States to impose more restrictive requirements for the purpose of protecting their own citizens, as well as air, water, and land resources. Because some Members saw preemption of some innovative State laws as a step backward from comprehensive oil spill compensation protection, the committee chose not to preempt States' rights to their own legislation.
The members of the committee have been confronted with the issue of deciding the degree of State autonomy in the past, and S. 2083 embodies the same approach found in other environmental legislation.
This legislation specifically establishes a baseline, or a national minimum standard. Should States desire to maintain stricter liability or requirements through the adoption of stiffer standards, the bill allows for such action. Those States which believe the Federal program provides enough protection for its resources may choose not to enact additional State laws.
A Library of Congress analysis revealed that 18 States have already enacted their own statutes. Thirteen States chose not to impose limits on liability, while five States decided, as the Federal statute dictates, that a limit should exist. Eight States do not list defenses to liability. Of the 18 States which possess liability statutes, only 11 chose also to establish funds. Only 5 of the 11 chose to maintain their fund by charging fees for the substances involved. And only one State, New Jersey, chose to create separate fees for both oil and hazardous substances.
So, a wide variety of options have been open to the States. The committee believes those options should remain open with the Federal role being one of providing a minimum-level program.
The bill which was ultimately reported excludes any preemptive provisions and has received strong support from coastal State resource offices and offices of State attorneys general.
Appendix D contains the recent correspondence specifically addressing the preemption question from States and associations.
Mr. President, it is these three major provisions of this bill which make it different from other legislation and are essential ingredients to any liability and compensation fund bill which will be passed. Frankly, without any one of these basic differences, I might find my support for passage of such legislation waning.
In my opinion, working to enact a bill which does not build upon section 311 of the Federal Water Pollution Control Act, preempts individual State programs, or excludes the coverage for hazardous substance spills, would be a waste of time.
Mr. President, at this point I would like to discuss some of the other key provisions of S. 2083.
COVERAGE AND LIABILITY
The committee bill covers discharges of oil and hazardous substances into all bodies of water already covered under section 311, including the inland waters of the United States and waters out to 200 miles offshore.
Discharge standards are the same as under section 311 of the Federal Water Pollution Control Act. That section prohibits the discharge of oil and other hazardous substances except where the discharge standard for vessels beyond the American territorial waters is specifically spelled out under the 1954 International Convention for the Prevention of Pollution by the Sea by Oil.
Strict liability would be imposed on the owner or operator of any vessel or facility discharging oil or hazardous substances in violation of section 311 of the Federal Water Pollution Control Act. The liability, up to certain established limits, covers removal and mitigation costs or expenses resulting from a spill, restoration and replacement costs for damages to natural resources, and the costs or expenses resulting from damages incurred by any third party.
The limits of liability established by the reported bill are as follows:
First, $300 per gross ton or $500,000, whichever is greater, for vessels carrying oil or hazardous substances in bulk or in commercial quantities as cargo;
Second, $300 per gross ton for other vessels;
Third, all removal costs plus $50,000,000 for facilities under the Outer Continental Shelf Act;
Fourth, $50 million for deepwater ports(including discharges from vessels moored at such ports)
Fifth, $50 million for other facilities unless a lower limit is established by the President for a particular class or category of facility but in no case lower than $8 million.
These liability limits supersede the liability limits set forth in section 311 as these include both removal costs and compensation for damages.
The defenses to liability remain the same as in existing law. Only those spills caused solely by an act of God, an act of war, third-party negligence, or negligence on the part of the U.S. Government would relieve the spiller of liability.
Liability is not limited if caused by willful misconduct or gross negligence within the knowledge of the owner or operator, or by a gross or willful violation of applicable safety, construction, or operating standards or regulations. Failure or refusal to cooperate in cleanup activities also invalidates liability limits.
While damages to natural resources are recovered in monetary terms, this bill recognizes that damages are not necessarily limited to amounts which can be spent for restoration or replacement. A specific damage assessment capability is provided for in the bill to assist in this particular area.
THE FUNDS
The oil spill liability fund, established by S. 2083, is derived from a 3-cent-per-barrel fee on oil. This $200 million fund will be available to pay for the removal of oil discharges and damages resulting from such pollution. Such expenses are to be recovered from the spiller up to his limit of liability.
The Secretary of the Treasury is directed to collect the fees on all offshore, imported, exported, and Alaskan oil until the $200 million mark is reached. The fee would be reinstated when the fund is depleted to the $150 million level. Once the $200 million level is again attained, the levy for the fund will once again be terminated.
At a later date, a fee on hazardous substances will be established to fund a hazardous substances liability fund. Prior to such action, however, a study will be conducted to establish an adequate size and a fair fee structure for a hazardous substances fund. Any payments from the oil fund for hazardous substance spills will be repaid with interest.
There are three major reasons for the implementation of such funds. First, the fund is a tool which can be utilized as a quick source of money for immediate cleanup activities or damage compensation should a spiller not act quickly. Second, such a fund can be used as a source of compensation for claims which are not settled by the spiller because a liability limit has been reached or a defense has been justifiably made. Thus, regardless of a spiller's liability, all victims will be fully compensated.
Third, in situations where a spiller cannot be identified or located, the fund would be available to compensate those suffering economic loss from a discharge. In cases where the assets of an owner or operator are not sufficient to meet the liability, the fund can assure compensation by all those owners and users of oil who contributed the 3-cent-per-barrel fee.
The main purpose of the legislation — to assure prompt cleanup and compensation regardless of the spill's circumstances — is guaranteed. And it is appropriately the oil and hazardous substances consumers, not the general taxpayers, who foot the bill where the spiller does not.
HAZARDOUS SUBSTANCES
In line with the authority embodied in section 311 of the Federal Water Pollution Control Act to deal with oil and hazardous substances within the same regulatory framework, the committee unanimously supported including hazardous substances within the "Superfund" structure.
In order to provide equal treatment of claims for damages from both oil and hazardous substances, to provide uniformity among laws and coverage, to simplify decision making by on-scene coordinators, and to minimize administrative procedures, the committee determined that hazardous substances should be included within the coverage of the proposed bill.
Current litigation regarding the section 311 hazardous substances regulations has delayed the effective date of the Environmental Protection Agency's designation of harmful quantities of hazardous substances. Liability for discharges of hazardous substances cannot be imposed until these regulations are effective. At that time, claims and payments could begin. If the litigation is resolved before the 18-month study is completed and Congress has enacted a fee system, payments to cover the costs of hazardous substances would be made from the oil fund and repaid with interest by the newly-established Hazardous Substances Fund.
The committee report on this legislation outlines in more detail the litigation involved with the regulation of hazardous substances. It also provides examples of the types of hazardous substance spills which might be covered by this bill.
EXISTING LAW
The single comprehensive liability law and compensation fund established in S. 2083 would replace those funds created under the Trans-Alaska Pipeline Act, the Deepwater Ports Act of 1974 and the Fund proposed by the Outer Continental Shelf Lands Act Amendments.
PREEMPTION
Section 7 of the reported bill preserves the rights of States to impose additional requirements or liability with respect to discharges of oil or hazardous substances. States would remain free to establish or maintain funds for compensation and cleanup purposes and would be allowed to collect such fees or penalties as they so desire.
FINANCIAL RESPONSIBILITY
This bill continues the practice under existing laws requiring vessels and offshore facilities to show evidence of financial responsibility for the amount of liability exposure. This assures that the spiller is financially able to pay in the event of a spill.
No showing of financial responsibility is required for onshore facilities.
Mr. President, this has been just a brief summary of S. 2083, and I have tried to outline the most important issues our Members perceived during consideration of the measure. I commend my colleagues' attention to the committee report on this bill which provides an in-depth discussion of the bill and associated issues.
I hope that my colleagues will join with the unanimous opinion of the Environment and Public Works Committee to approve this measure. We must move quickly so that we may go to conference and send a bill to the President before adjournment.
We must provide the best liability and compensation protection we can to those who might suffer from oil or hazardous substance spill damages.
It is our duty to act now.
The material referred to follows:
APPENDIX A: "OIL SPILLS, 1976"
Oil spills, 1976
Source of spills Percent of incidents Percent of gallons spilled
Vessels 29. 1 45.9
Land vehicles 3.9 2.0
Non-transportation related facilities 26.8 29.5
Pipeline 5.9 18.9
Marine facilities 4.8 1.4
Land facilities 1.6 1.5
Miscellaneous or unknown 27.9 0.8
Total 100.0 100.0
APPENDIX "B"
CHRONOLOGICAL ORDER OF EVENTS SURROUNDING A MAJOR OIL SPILL
Situation: A steam-turbine powered foreign flag tanker, 19.000 gross registered tons grounded on a shoal located approximately two nautical miles off the coast of the United States. Vessel cargo: 8 million gallons light crude oil. Weather conditions: severe, seas: 10 ft., wd: 25/kts, sea state: 5.
Vessel condition: hull damaged, water entering room at unknown rate, engine room inoperative as result; listing heavily to port.
Vessel master contacts Coast Guard unit via radio.
Local Coast Guard contacts area Marine Safety Office (MSO).
MSO becomes On-Scene Coordinator (OSC)
OSC initiates response mechanism directing Coast Guard cutter on fisheries patrol to proceed to scene.
OSC notifies National Response Center (NRC). NRC notifies: G-WEP-4, WEP, W, C, CC, LCL, LMI, A, EPA HQ (All components within Coast Guard Headquarters)
OSC notifies State Environmental Agency. OSC puts oil spill contractors on standby. OSC initiates overflight.
OSC dispatches Marine Environmental Protection (MEP) and Marine Inspection Office (MIO) personnel to scene.
OSC activates Regional Response Team (RRT) by telephone for their information.
OSC notifies Coast Guard area and Strike Team.
OSC begins sending POLREPS LAW National Contingency Plan (NCP) & COMDTINST 16450.1. (attached)
CGCutter arrives on scene to find vessel hard aground, no pollution yet evident.
OSC contacts agent and owner and issues "Notice of Federal Interest"owner states no action to be taken after high tide.
The Federal Maritime Commission is contacted to obtain information on ship's insurer and relevant data on owner.
Insurer's agent in U.S. is contacted. Received advice to contact the ship's insurer in London directly.
Insurer advises that it has not decided on a course of action.
OSC declares a Federal response, requests and receives project number from Coast Guard district.
National Strike Force (NSF) arrives on scene with Air Deliverable Anti-Pollution Transfer System (ADAPTS).
OSC notifies agent and owner of U.S. assuming control through the Coast Guard.
OSC directs commercial tugs and barge to the scene to commence lightering operations.
Contact is made with Admiralty and Shipping Section, Department of Justice in Washington. A request is made to Justice to assign a trial attorney in order that consultation can begin immediately on legal theories for recovery of cleanup costs.
Telephone contact is made by the Office of Chief Counsel at USCG Headquarters with two international organizations, Tovalop and Cristal. Function of these two groups is to provide compensation for cleanup costs above those available under statute. In addition both groups provide compensation to third parties damaged by the spill.
Tovalop and Cristal requested to advise USCG of vessel's coverage. Specifically is the vessel a
Tovalop vessel and is its cargo owned by a Cristal member? Also, will compensation be available to USCG for the costs of cleanup and third party damage claims. Cristal notified because cleanup costs may exceed FMC certificate of financial responsibility.
On scene weather worsens. Ship begins leaking crude oil. Crew of vessel is evacuated. NSF on board.
RRT meets, outlines alternatives. Requests National Response Team (NRT) review their findings.
Tug and barge arrive on scene, weather prohibits lightering attempt.
Overflight planned with OSC, NSF, State Environmental organization as soon as weather permits.
NRT meets; request initiated through DOD representatives for Navy Superintendent of salvage assistance. U.S. Fish & Wildlife assistance bird cleaning.
District requests authority for fund ceiling of $200K.
Chief of Naval Operations (CNO), Washington, D.C. requests Superintendent of Salvage be tasked with technical assistance to the OSC.
USCG receives information that cargo owner has sued the vessel owner for loss of cargo. Department of Justice advised of this. Department of Justice requests that USCG send an attorney to observe depositions. District legal office is requested by Chief Counsel to comply with Department of Justice request.
Vessel owner's attorney petitions for limitation under Limitation of Liability Act, 46 USC 746 et seq. in New York. Federal District Court in New York orders that all claims be filed within eight days.
Discussion is held with Department of Justice Trial Attorney and the Claims and Litigation Division, USCG Headquarters, to consider the legal validity of claims for cleanup costs. Cleanup costs now appear to exceed one million dollars.
Coast Guard Oceanographic Unit is requested by OSC to undertake oil spill trajectory.
Commercial salvage company is contracted by Superintendent of Salvage as salvage master.
Overflight reports large slick heading westerly towards shore. Lightering of the vessel begins as weather improves.
Oil spill contractors begin booming off mouths of harbors and estuaries under monitoring of Coast Guard personnel. OSC continues to submit documentation IAW COMDTINST 16450.1.
Department of Justice files protective claim in Limitation proceedings.
EPA representative meets with OSC for contingency planning and to arrange for inland dumping of oil coming ashore.
U.S. Fish and Wildlife establishes a bird cleaning station in conjunction with state authorities.
Oil begins coming ashore along area beaches. Cleanup begins, monitored by Coast Guard personnel, samples are taken for identification.
Additional funds request for ceiling of $1M is approved.
OSC requests and receives authority for establishing a security zone to keep civilians and commercial salvors clear of area.
OSC meets with cleanup contractors, Superintendents of Salvage, NSF, and area authorities.
OSC holds press conference.
Local officials join in cleanup; (harbor-master, shellfish warden, fire and police departments).
EPA meets with State Environmental Office and establishes inland dumping area.
Offloading of vessel completed, estimated loss is held at 2,000,000 gallons, cleanup continues.
Meeting set up by Chief Counsel, USCG, in New York with parties representing ship-owner, Cristal, London insurers, cargo interests and the two affected states. Coast Guard attorney from Claims and Litigations Division, Coast Guard Headquarters, the legal office from the affected district, and a DOJ, Admiralty and Shipping attorney present an estimate of claim to responsible parties. Parties agree to consider claim by the United States.
District requests and receives authorization for additional funds ceiling of 81.5 million.
Cleanup completed, Coast Guard and DOJ attorney meet again in New York with vessel's attorney to discuss settlement. Settlement discussions break down.
Coast Guard and DOJ attorney fly to London to meet with Cristal and London insurer to attempt to overcome certain legal stumbling blocks. Parties agree to consider matter once documentation is complete.
Coast Guard convenes Marine Board in New York.
Foreign Flag State convenes Marine Board in New York to inquire into circumstances surrounding the grounding. Coast Guard Headquarters agrees to provide witnesses. Coast Guard and DOJ attorneys represent the interests of the United States.
Pollution removal costs are documented in accordance with COMDTINST 16450.1.
Final documented claim of United States (including all state and Federal agencies) is submitted to Cristal, vessel's attorney and underwriter.
Water Pollution Violation Report completed and submitted to district commander IAW COMDTINST 16450.1.
OSC Report completed and submitted IAW COMDTINST 16450.1.
Meeting held in New York with representatives for owner, Cristal and vessel's underwriter.
Settlement agreed upon. U.S. agrees to dismiss claim in the Limitation proceeding in return for payment by underwriter and Cristal. Cristal agrees to notify damaged third parties.
Approval for acceptance of offer is obtained from Coast Guard Headquarters and the Associate Attorney General of United States.
Marine Board concludes that cause of casualty was malfunctioning gyro compass and failure to utilize alternative methods f navigation by vessel master.
Foreign Flag State Marine Board concludes causes were same as those set forth above. Foreign flag state revokes master's document.
APPENDIX "C"
HAZARDOUS SUBSTANCE SPILLS
HAZARDOUS SUBSTANCE SPILL NO. 1
On June 6, a 900 gallon tank of the chlorinated hydrocarbon pesticide methoxychlor fell from a truck and the entire contents entered a small 1.5 million gallon recreational lake near Brightwater, New York — (Long Island). A fish kill occurred in the lake and a smaller fish kill occurred in a second, larger lake. Of major concern were the shellfish beds in the Great South Bay of Long Island Sound into which the chain of lakes flow. The Oil and Special Materials Control Division (OSMCD) of EPA activated and funded the mobile carbon treatment unit from the EPA laboratory at Edison, New Jersey. This unit, called the Environmental Emergency Response Unit or EERU, is capable of filtering contaminated water through its activated carbon tanks at a rate of 600 gallons per minute.
Methoxychlor is a pesticide and is in category X of the Hazardous Substance Regulation. The harmful quantity of a category X substance is one pound. It is estimated that the 900 gallon tank contained about 18 pounds of active ingredient.
The EERU was operational for approximately 8 hours until analysis showed a contamination level of less than 30 parts per billion. The State initiated a sampling program to determine the fate of the methoxychlor. Should high concentrations be encountered in the lake bottom sediment, it may be necessary to drain and dredge one or more of the three lakes to preclude contamination of the shellfish beds in Great South Bay. This effort coupled with the disposal of the dredged material could become a lengthy and expensive operation.
HAZARDOUS SUBSTANCE SPILL NO. 2
Early on June 13, a truck carrier, loaded with 500 fifty gallon cans of the pesticide endosulfan, was involved in an accident on Interstate 5 south of Bakersfield, California. A fire resulted from the accident and the majority of the product, a 33 percent concentration in a kerosene carrier, burned. Although the accident occurred near Grapevien Creek, EPA aerial photography of the site revealed that none f the endosulfan entered the water. The highway was flushed with hot salt water, the runoff contained and removed by vacuum truck. California State personnel have initiated dirt removal along a 500 foot section of the road shoulder.
Endosulfan, a highly toxic insecticide, is an X category substance on the EPA list of designated hazardous substances. One pound of a category X product constitutes a harmful quantity.
In this particular incident, even though none of the product entered the water, an imminent threat could have been produced and actions could have been taken to prevent the entry and subsequent cleanup to remove the threat.
These actions would have been taken only in the absence of quick and proper actions by the spiller.
HAZARDOUS SUBSTANCE INCIDENT NO. 3
A chemical warehouse fire near Dunn, North Carolina, on June 30, 1978, involved a number of pesticides and agricultural chemicals. Among those involved were Diazinon, a category X substance and Malathion, category A (harmful quantity 10 pounds). The local fire department poured 500,000 gallons of water onto the first and contaminated run-off entered the Black River. A sampling program was set up and samples were analyzed by the EPA Laboratory, Athens, Georgia. State personnel were conducting a survey of the river in an attempt to determine environmental damage.
Incidents such as this can produce widespread effects and long lasting environmental damage. Cleanup and restoration may be very complex and in some cases impossible.
HAZARDOUS SUBSTANCE INCIDENT NO. 4
On July 2, 1978, a train derailment near Waveland, Arkansas involved a number of cars containing fuel oil, LPG, crude sulfur and 1 tank car of pentachlorophenol. Region IV emergency response personnel were on scene, however, no surface water contamination or water runoff from fire fighting was reported.
Pentachlorophenol, sometimes called PCP or Penta is a category A substance; the harmful quantity is 10 pounds.
APPENDIX "D" CORRESPONDENCE
STATE OF NEW YORK,
New York, N.Y.,
September 19, 1978.
Hon. EDMUND S. MUSKIE,
Chairman,
Subcommittee on Environmental Pollution,
Committee on Environment and Public Works,
U.S. Senate, Russell
Senate Office Building,
Washington, D.C.
DEAR SENATOR MUSKIE: I am responding to your August 25, 1978, letter regarding S. 2083, the "Oil Spill Liability and Compensation Act of 1978,"as reported by the Committee on Environment and Public Works. My office strongly supports the retention of Section 7 of the bill, which states that nothing in the Act shall preempt any state from imposing additional liability or requirements with respect to the discharge of oil or hazardous substances within the state.
In my view any such preemption would be most inappropriate in light of the recognition by the U.S. Supreme Court of "the police power f the States over oil spillage — an insidious form of pollution of vast concern to every coastal city or port and to all the estuaries on which the life of the ocean and the lives of the coastal people are greatly dependent." See Askew v. American Waterways Operators, 411 U.S. 325, 328-30 (1973) .
Any weakening of the no-preemption provision would detrimentally affect the interests of this State. New York has its own Environmental Protection and Spill Compensation Fund, which is supported principally by a per-barrel license fee for the transfer of petroleum. This fund may be used, among other things, to pay for damages and cleanup costs incurred by private parties and governmental entities. My Office is of the opinion that New York should continue to develop and operate this Fund as provided under State law.
As is well pointed out in the Report on the bill by the Committee on Environment and Public Works, it would be unfortunate to establish a preemptive Federal law which is not as strict as some state laws already in place. For example, New York's Oil Spill Prevention, Control and Compensation Act provides the discharger of oil with fewer defenses than does S. 2083.
Indeed, even Section 7 of S. 2083 should be improved. The New York Act specifically applies to discharges into waters outside the jurisdiction of the state when damage may result within the state. Section 7 could be improved by striking the words "within such State" so as to eliminate any possible argument that preemption could apply to discharges outside of a state which result in damage within the state.
Also of particular concern to my office is the provision regarding the assessment of damage to natural resources. While the Committee Report does declare that nothing in S. 2083 would preclude the states from carrying out their own assessments, it would be clearer if the bill itself specifically would authorize the states to do so. I wish to emphasize that the bill's requirement that assessment protocols and standard assessment procedures be set forth in regulations will prove to be counterproductive if sufficient funds are not appropriated for scientific research on the effects of discharges on natural resources. Without much further research, such regulations will merely reflect our present comparative lack of knowledge regarding these effects.
Finally, as you pointed out in your letter, S. 2083 includes liability for spills of hazardous substances as well as spills of oil. I agree that this is an important feature of the bill and strongly support its retention. Recent spills of hazardous substances in New York and elsewhere highlight the need for immediate legislative action.
I appreciate the opportunity to present our views on this significant bill.
Sincerely,
Lours J. LEFKOWITZ, Attorney General.
STATE OF CONNECTICUT,
September 14, 1978.
Hon. EDMUND S. MUSKIE,
Chairman, Subcommittee on Environmental Pollution,
Washington, D.C.
DEAR SENATOR MUSKIE: This is to advise you that I have reviewed S. 2083 which permits States to establish their own liability standards and other requirements which may be more strict than federal standards relative to liability for oil spills.
It is my pleasure to relay to you my complete support of S. 2083 which I believe protects a vital interest of the several States.
Very truly yours,
CARL R. AJELLO, Attorney General.
STATE OF MARYLAND,
Annapolis, Md.,
September 8, 1978.
Hon. EDMUND S. MUSKIE,
Chairman, Subcommittee on Environmental Pollution,
Committee on Environment and Public Works,
United States Senate,
Russell Office Building,
Washington, D.C.
DEAR SENATOR MUSKIE: On May 2, 1978, I wrote to you expressing Maryland's concerns over certain provisions of the comprehensive oil spill liability legislation, S. 2900, which was being considered by the Subcommittee on Environmental Pollution. This was followed by a letter dated June 19, 1978, which set forth Maryland's specific objections to certain provisions of S. 2900.
We now have had the opportunity to review the provisions of S. 2083 (formerly S. 2900) as amended by the Committee on Environment and Public Works and reported for consideration to the full Senate. The amendments made by the Committee were very responsive to the concerns we previously expressed. The conclusion drawn by Maryland officials, including members of the Attorney General's Office, is that the amended legislation expressly precludes Federal preemption and allows the State of Maryland to continue to charge oil terminal license fees, thereby enabling us to maintain and develop our existing oil pollution cleanup and prevention program.
Our support of the amended legislation is based upon the presumption that Section 4 (c) (1), which prohibits oil that has been subject to the three cents per barrel levy from being subject to a subsequent levy, is not intended to prevent Maryland or other states from requiring a license fee from individuals who receive, store or transfer oil within the state in order to finance their oil spill cleanup and prevention programs. The language in Section 7 of the amended legislation appears to us to support this view.
The majority of oil pollution in Maryland is caused by oil spills of less than 1,000 gallons discharged from the over-filled oil tanks, tank trucks and sundry delivery systems. The Maryland oil pollution program provides the capability for personnel and equipment to be deployed and to be on scene anywhere within the State within two hours of notification of an oil discharge. We are justifiably proud of our existing capability to protect and preserve Maryland waters, particularly the Chesapeake Bay and the Atlantic Coast beaches, from the threat of environmental degradation posed by oil pollution. This rapid oil pollution response program, specifically designed to suit our needs, should not be dismantled or otherwise disrupted by a Federal oil spill liability scheme.
I believe that S. 2083 as reported by your Committee represents a step forward in the protection and preservation of our limited natural resources by providing for a mutually beneficial Federal/ State partnership. Again, I wish to express my appreciation for the Subcommittee's responsive action.
Sincerely,
BLAIR LEE III,
Acting Governor.
RESOURCES AGENCY OF CALIFORNIA,
Sacramento, Calif.,
September 1, 1978.
Hon. EDMUND MUSKIE,
U.S. Senate, Chairman, Subcommittee on Environmental Pollution,
Committee on Public Works,
Washington, D.C.
DEAR SENATOR MUSKIE: Because of the importance to the State of California of liability for oil and hazardous substance spills, the State, through its Interagency Tanker Task Force, has commented extensively on proposed Federal legislation. The provisions of any Federal oil liability legislation are critical to its ability to achieve the objectives of providing full compensation for damages caused by spills, while providing the maximum incentive to prevent spills. S. 2900 (now amended into S. 2083), will achieve these objectives and the State of California supports the bill wholeheartedly.
As the bill proceeds to the Senate floor, and amendments may be offered, I want to reiterate California's concern over the possible effects of Federal preemption.
PREEMPTION OF STATE LIABILITY LAWS
California is concerned about possible preemption of State liability laws for three reasons: 1) State laws may be needed to provide an adequate incentive to prevent spills; 2) States could be prevented from enacting measures designed to assure more complete recovery for environmental harm; and 3) An over-broad interpretation of preemption language could impair the State's water pollution enforcement authority by preempting the State's statutory damage laws.
H.R. 6803, with its preemption of State liability laws, could actually weaken the incentive to prevent spills. As the Interagency Tanker Task Force has commented earlier, H.R. 6803, while purporting to set a strict liability standard, has such broad defenses that even a negligent spiller could escape liability in some instances. California already has strict liability laws applicable to many spills but these laws, and even the State's negligence laws, would be preempted by H.R.6803.
Federal preemption could also limit the State's ability to obtain complete compensation for environmental losses. H.R. 6803, like traditional damage law, will limit recovery to losses that are quantifiable to a reasonable certainty. But how can the loss of a brown pelican or a gray whale be priced to a reasonable certainty? Traditional law seems to assume that because something is priceless, it is worthless. Some states, including California, have statutes designed to deal with the problem of placing a value on environmental losses. S. 2900 (now S. 2083) has provisions aimed at the problem, but we should permit further innovation and experimentation by the states, so that better solutions may be discovered.
California's statutory damage laws, which provide the enforcement authority needed for the State to assume responsibility for the permit program under the Clean Water Act, set a civil liability of up to $16,000 per day of spill, in addition to ordinary damages. The State Supreme Court has ruled that these laws are not penalties, but provide compensation for "unquantifiable" damage to the environment. H.R. 6803 does not provide compensation for these losses, and therefore its preemption clause should not be interpreted to preempt California's statutory damage laws. Because these laws provide recovery for damage to natural resources, however, there is a danger that H.R. 6803's preemption provisions could be misconstrued to preempt these laws.
PREEMPTION OF STATE FUNDS
California does not have any funds like the proposed "superfund," supported by taxes or fees on the production or transfer of oil. Preemption of these funds is not a matter of great concern to the State, except to the extent that funds in other states may provide a model for future legislation here in California.
California would be seriously affected, however, if preemption goes beyond the prohibition of taxes or fees on oil transfer or production. Money collected by State agencies in actions to impose liability for water pollution, including liability for cleanup costs, civil liability, and criminal fines, is paid into two State funds, a Cleanup and Abatement Account and a Fish and Wildlife Preservation Fund. Among other purposes, these funds are used to abate water pollution, and to replace lost natural resources. These funds are vital to the maintenance of California's oil spill response capability.
These funds do not impose duplicative or burdensome requirements. There is no greater imposition on the oil industry than if liabilities and penalties were paid into the general fund of the State treasury. It is also clear that Congress does not intend to preempt this kind of fund, yet preemptive language which has been suggested does not expressly limit preemption to taxes or fees on oil. H.R. 6803, for example, prohibits the states from requiring any person to "contribute" to any fund the purpose of which is to pay compensation for losses which may be asserted under the act. If such broad language is adopted, a polluter may argue that civil liability, or even criminal fines, cannot be collected in California because the money goes into a fund used to clean up oil pollution or replace fish and wildlife.
PREEMPTION OF FINANCIAL RESPONSIBILITY REQUIREMENTS
The State of California currently does not set financial responsibility requirements for vessels or facilitates handling or transporting oil. However, the State Lands Commission, a proprietary agency with responsibility for managing the State's sovereign, tide, and submerged lands, is considering regulations for oil terminals on public trust lands. The proposed regulations include a financial responsibility requirement.
At least where State law does not merely duplicate Federal requirements but imposes additional requirements, State financial responsibility requirements should be permitted. Establishing financial responsibility requirements which reflect the risk of spills is one way the states can provide an incentive to take precautionary measures to prevent spills.
There is no reason to preempt State financial responsibility requirements applicable to facilities. Facilities, unlike vessels, need only comply with the requirements of a single state, which should not be unduly burdensome.
CONCLUSION
Protection of the environment, and the definition of liability standards and recoverable damages, are two areas traditionally regulated by the states, and of vital concern to the states. When the Federal government enacts legislation in these areas, as it is now for liability for oil and hazardous substance spills, State authority should be preserved as much as possible. Thus, environmental laws, like the Clean Water Act, have permitted the states to set stricter standards, and have sought to preserve State enforcement authority. So, too, previous Federal oil liability laws have not preempted State law. There is no need for Federal oil and hazardous substance liability legislation to deviate from this tradition. Leaving the states free to enact stricter liability standards will further the purposes of Federal law and help maintain the proper balance between State and Federal authority.
Sincerely,
HUEY D. JOHNSON, Secretary for Resources.
DEPARTMENT OF LEGAL AFFAIRS,
Tallahassee. Fla.,
September 7, 1978.
Re S. 2083, proposed "Oil Pollution Liability and Compensation Act of 1978"
Hon. EDWARD MUSKIE,
U.S. Senator, Subcommittee on Environmental Protection,
Dirksen Office Building,
Washington, D.C.
DEAR SENATOR MUSKIE: I have reviewed and support S. 2083, the proposed "Oil Pollution Liability and Compensation Act of 1978." This proposed legislation is particularly important to the State of Florida because of our vast coastline and its importance to our tourist industry.
One of the provisions of the bill of major importance to this State is the fact that the rights of a state to impose additional liability or requirements with respect to discharge of oil or hazardous substances within this State are specifically not preempted. Other provisions of particular importance to me are the ones that provide for recovery of damages for economic loss and loss of tax revenues. Also of importance is that the bill provides for delegation to the State of the authority to settle claims and to obligate money in the Oil Spill Liability Fund.
The Governor and Cabinet of Florida in April 1977 passed a formal Resolution supporting two similar bills, and I am sure that such body would likewise support S. 2083. A copy of that Resolution is enclosed, which shows the interests and concerns of this State.
A copy of this letter is being sent to the Florida delegation enlisting their support for your bill.
Sincerely yours,
ROBERT L. SHEVIN,
Attorney General of Florida.
STATE OF FLORIDA
RESOLUTION
Whereas, the United States is increasingly dependent upon oil transported from foreign and domestic sources through an ever larger fleet of oil tankers; and
Whereas, the worldwide safety record of oil tankers is steadily worsening and recent oil tanker accidents have threatened the marine resources of the United States; and
Whereas, two deepwater ports are proposed to be established in the Gulf of Mexico off the coasts of Texas and Louisiana and supertankers en route to and from these deepwater ports will transit the coastal waters of the State of Florida; and
Whereas, Florida's coastline and coastal waters contain some of the State's most valuable and vulnerable resources, including its beautiful beaches and productive marine systems, all of which are dependent on pollution-free waters; and
Whereas, presently pending before the United States Congress are varying legislative proposals to minimize oil pollution incidents and provide compensation for losses due to such incidents; and
Whereas, S. 182, S. 682, and S. 893 impose minimum safety and navigational standards, including provisions for segregated ballast and manning requirements, which standards are necessary to protect Florida's vulnerable coastal waters and resources; and
Whereas, S. 182 and S. 898 create a Comprehensive Federal Oil Pollution Liability and Compensation Fund governing oil pollution liability and compensation; and
Whereas, S. 182 and S. 898 allow recovery for loss of income or earning capacity due to damages to natural resources without regard to ownership of such resources if the claimant derives a minimum percentage of income from activities which utilize such natural resources; and
Whereas, S. 182 and S. 898 allow payments to local and state governments for loss of tax revenues resulting from oil contamination; and
Whereas, S. 182 and S. 898, contrary to other pending legislation, do not preempt state laws imposing liability for or control over discharges of oil or toxic substances, and allow the administrator of the Compensation Fund to utilize state or local governmental services on a reimbursable basis to perform coastal protection functions, which provisions afford a coastal protection role to the Florida Department of Natural Resources' efforts to prevent and monitor oil spills under Chapter 376, Florida Statutes, and allow flexibility to the Florida Legislature to impose additional requirements or liabilities relative to oil polluting incidents;
Now, therefore, be it resolved that the Governor and Cabinet sitting as the Executive Board of the Department of Natural Resources:
1. Support the requirements for minimum equipment and navigational standards as contained in S. 182, S. 682, and S. 898 as essential to the protection of Florida's coastal resources.
2. Support the above concepts of S. 182 and S. 898 creating the Comprehensive Oil Pollution Liability and Compensation Fund which Fund and procedures afford relief from oil polluting incidents to Florida fishermen, others dependent on non-polluted marine resources, and local and state governments, and allow active participation in coastal protection from oil polluting incidents to be performed by the Florida Legislature and the Florida Department of Natural Resources.
3. Urge the support of these concepts by the Florida Congressional Delegation.
4. Direct that a copy of this Resolution be sent to each member of the Florida Congressional Delegation; to each member of the U.S. Senate Committee on Commerce, Science, and Transportation; and to each member of the U.S. House of Representatives Committee on Merchant Marine and Fisheries.
THE DEPARTMENT OF LAW,
Atlanta, Ga.,
September 7, 1978.
Re S. 2083 — Oil Pollution Liability and Compensation Act of 1978.
Senator EDMUND S. MUSKIE,
Chairman, Subcommittee on Environmental Pollution,
Washington, D.C.
DEAR SENATOR MUSKIE: I would like to thank you for providing me with a copy of S. 2083 and requesting my comments on same.The bill certainly appears to take into consideration the states' desire to enforce their own laws in this area, and. to participate with the Federal government in the administration of the Oil Spill Liability Fund.
In particular, I sneak of subsection 3(b) which authorizes a State to act on behalf of the public to recover damages for the injury, destruction or loss of the State's natural resources; subsection 5(6) (1) which authorizesthe President to delegate to states with adequate programs operating under a cooperative agreement with the Federal government, the power to obligate money in the Liability Fund and to settle claims; and Section 7 which provides that the Act shall not be construed or interpreted so as to preempt any state "from imposing any additional liability or requirements with respect to the discharge of oil or hazardous substances within such State."
This latter provision would appear to allow the states to collect civil penalties and bring civil actions for damages under its own laws in lieu of proceeding under the Federal Oil Pollution Act, if they so choose.
While this Act may very well preempt the states in the areas of limitations on liability and financial responsibility, it is, in my opinion, by far the best Federal oil pollution bill to be introduced in the Congress to date.
Sincerely,
ARTHUR X. BOLTON,
Attorney General.
COMMONWEALTH OF VIRGINIA,
Richmond, Va.,
September 5, 1978.
SENATOR EDMUND S. MUSKIE,
Committee on Environment and Public Works,
Washington, D.C.
Re S. 2083
DEAR SENATOR MUSKIE: Thank you for your letter of August 29, regarding the Committee's recent action on the Oil Spill Liability Fund and Compensation Act of 1978. As you are aware, the Commonwealth has followed this legislation with great interest, and has appreciated your efforts to encourage the participation and comments of the coastal states. It is particularly gratifying to see that S. 2083, as reported by the Committee, is in substanital conformity with the views and comments we submitted during the Committee's deliberations. Among the most desirable features of the legislation, and one which the Commonwealth and other coastal States have strongly supported, is the disclaimer of preemption contained in Section 7 of the bill.
In comments submitted during the Committee's hearings on the legislation last April, Governor Dalton expressed several reasons for the importance of the non-preemption principle to the effectiveness of the federal-state partnership in dealing with oil spills. I will briefly recapitulate someof those reasons below:
1. Legislation preventing full recovery of cleanup costs and damages from those responsible might hamper State agencies, with scarce funds, in their efforts to perform their primary role in cleaning up smaller spills, and in assisting federal cleanup of larger spills. In Virginia's case, the ability to respond to spills depends on the maintenance of the Virginia Oil Spill Contingency Fund, which in turn is dependent on quick and full recovery of expended funds. While the federal "Superfund" will be of great benefit in this regard, the flexibility afforded by permitting the option of recovery under State law, particularly with regard to minor spills, will ensure, to the extent possible, the integrity of the State program.
2. Requiring claimants to recover costs and damages pursuant to federal law might work a considerable hardship on private claimants, who might find the federal fund remote and recovery expensive and confusing. Long delays in recovery might result if there are a number of claims against the federal fund, and claimants who have suffered damage or expended funds on clean-up may be seriously disadvantaged. Under Virginia law, private claimants may recover damages and cleanup costs in State court, based on strict liability. Under a scheme of federal preemption, all claimants would be forced to aggregate their claim for recovery against the responsible parties, up to the limits of liability, and then present a claim for the excess to the fund. State agencies and local governments would, of course, find themselves in the same position. This might prove to be a very difficult burden, for example, in the case of a waterman or a marina owner who might have to depend on quick recovery for the survival of his business.
3. State oil spill statutes providing for strict and full liability are intended to have a deterrent as well as a remedial purpose on the theory that they will encourage care on the part of those handling oil. The Commonwealth has a direct interest in regulation to protect and preserve its coastal and estuarine resources, and as one approach to regulation has chosen, pursuant to its police power, to make spillers strictly liable for damages and cleanup costs. Federal preemption would weaken or destroy the deterrent effect of State law, and protection of the State's coastal resources would depend in large part on the effectiveness of the Federal scheme as a deterrent.
Thank you again for this opportunity to comment on S. 2083. The efforts of the Committee to preserve the States' authority to regulate oil spills are strongly supported and deeply appreciated.
With kindest regards, I am
Very truly yours,
MARSHALL COLEMAN,
Attorney General.
STATE OF NORTH CAROLINA,
Raleigh, N.C.,
September 8, 1978.
Senator EDMUND S. MUSKIE,
Subcommittee on Environmental Pollution,
Washington, D.C.
DEAR ED: This is to thank you for the opportunity to comment on Senate Bill 2083, the Oil Spill Liability Fund and Compensation Act of 1978, and to add my strong support to your efforts to secure approval of the disclaimer of preemption contained in Section 7 of the bill.
Currently the North Carolina Oil Pollution Control Act, N.0 G.S. 143-215.75 et seq. provides for recovery by the state for cleanup costs and for damages to public resources from oil spills and we vigorously oppose federal preemption of state law in these matters for a number of reasons:
1. The various states' experiences with difficulties and delays in recovery against the Federal Water Pollution Control Act fund testify to the problems inherent in a system whereby the states are required to petition the United States for cleanup and restoration expenditures. Various states have had to contend with delays and administrative difficulties in seeking to recover from that fund, only to discover that the fund was depleted.
2. The ramifications of being totally dependent on the United States for reimbursement for cleanup costs and resource damage and replacement include impairment of the state's abilities to act as guardian of its valuable natural resources. North Carolina currently may attempt to prove in court the value of its damaged resources on a theory of the state's choosing and it is critical to our ability to protect those resources that we maintain this enforcement option.
3. State and federal cooperation in the oil spill area is eminently desirable, but inasmuch as minor spills are more efficiently and promptly handled at the state level it is critical that the integrity of the state's enforcement program be preserved.
Your vigorous efforts to preserve the states' authority to regulate oil spills are noted and greatly appreciated.
With kindest personal regards I am
Very truly yours,
RUFUS L. EDMISTEN,
Attorney General.
NATIONAL CONFERENCE OF STATE LEGISLATURES,
September 7, 1978.
Hon. EDMUND S. MUSKIE,
Washington, D.C.
DEAR SENATOR MUSKIE: The Senate will soon be voting on the "Oil Spill Liability Fund and Compensation Act of 1978" (S. 2083). As you know, the bill would establish a $200 million federal fund to pay for cleanup costs and damages resulting from spills of oil or other hazardous substances.
As the official representative of the nation's 7600 state legislators, the National Conference of State Legislatures is vitally interested in insuring that federal laws respect individual state's solutions to their own environmental problems. In almost a dozen states the legislatures have already established their own programs, liability limits and funds to cover cleanup costs and damages incurred as a result of oil spills.
Some of these states, including my home state of Oregon, have more demanding liability standards and requirements than those proposed in S. 2083. The rights of the states to apply stricter laws are specifically preserved in both the Clean Water Act and the Deepwater Port Act.
As S. 2083 is now written, the rights of states to establish their own liability standards and their own funds for cleanup costs and damages are preserved. The NCSL strongly supports this position and would be opposed to any efforts to establish a federal law preempting the states from determining their own programs, liability limits and funding mechanisms.
I thank you for your serious consideration of the NCSL position.
Sincerely,
JASON BOE, President, NCSL.
NATIONAL ASSOCIATION OF ATTORNEYS GENERAL,
Washington, D.C.,
September 6, 1978.
Hon. EDMUND S. MUSKIE
Chairman, Subcommittee on Environmental Pollution,
Washington, D.C.
DEAR SENATOR MUSKIE: I understand that the Senate will soon consider S. 2083, the Oil Spill Liability Fund and Compensation Act of 1978 which would establish a $200 million liability fund for cleanup costs and damages due to spills of oil or hazardous substances. This is legislation which interests many of our members.
Enclosed are copies of Resolutions adopted by this Association concerning state cleanup of oil spills and limits of liability which are forwarded to you for additional information.
Section 7 of S. 2083 as now drafted does not preempt the states' authority to impose additional liability and requirements for oil spills. We share the concern that the states should be able to have their own programs for control, containment, and removal of oil from state waters.
Thank you very much for your consideration of the views of this Association. Sincerely yours,
C. RAYMOND MARVIN.
RESOLUTION
OIL SPILLS — LIMITS OF LIABILITY AS ADOPTED AT THE 1977 ANNUAL MEETING
Whereas, existing federal legislation designed to assess liability and provide for cleanup of oil spills; namely, § 311 of the Federal Water Pollution Control Act Amendment f 1972, is inadequate in that it:
1. Provides units of liability which act as a disincentive to responsible parties to take precautions necessary to prevent spills from occurring, and, once they do occur, from undertaking effective containment, cleanup and removal; and
2. Fails to provide for compensation to public and private victims damages by oil spills; and
Whereas, while unlimited liability for cleanup costs, and damages from oil spills is most proper and desirable, it is recognized that the increase in limits of liability of legislation now pending in the United States Congress, albeit too small an increase, is better than no increase at all; and
Whereas, the states are burdened directly with the short and long term impact of oil spills upon their natural resources, economy and citizens, and thereby, have a vital interest in assessing liability, and assisting in the containment, cleanup and removal of spilled oil, and must have available to them every reasonable means of preventing or minimizing the consequences of such spills;
Now, therefore, be it resolved that the National Association of Attorneys General supports legislation now under consideration by the United States Congress which would increase the limits of liability for oil spills, establish a substantial fund from which cleanup costs and damages may be paid, and reserves to the states the right to proceed independently of the fund, and establish their own contingency funds to assist in containment, cleanup and removal of oil spills.
Be it further resolved, that the Washington Counsel of the National Association of Attorneys General is hereby requested to forward a copy of this resolution to the relevant personnel in the legislative and executive branches of the federal government, and to work with such personnel in an effort to effectuate the results advocated by this resolution.
RESOLUTION — STATE CLEANUP OF OIL SPILLS AS ADOPTED AT THE 1977 ANNUAL MEETING
Whereas, legislation is now pending in Congress which would set up funds to pay for the cleanup of oil spills; and
Whereas, it is proposed that the President of the United States will be authorized to take immediate action to clean up such spillsat the earliest possible time and in so doing draw upon the funds provided for this purpose; and
Whereas, the protection of coastal waters and costs of coastal states from environmental pollution is of grave concern to these coastal states;
Now, therefore, be it resolved by the National Association of Attorneys General that Congress consider legislation that would provide that once an oil spill occurs in or enters into a zone 3 miles from a state's coast the governor of the state, with the approval of the President, be authorized to take such emergency steps as may be necessary to accomplish the immediate cleanup of the oil spill so as to protect coastal waters and the coast of the state involved to the greatest possible extent, with reimbursement for costs incurred to be provided by the federal government's oil cleanup fund.