21 ELR 10605 | Environmental Law Reporter | copyright © 1991 | All rights reserved

Federal Implementation of the Oil Pollution Act of 1990

Charles Openchowski

Editors' Summary: The Oil Pollution Act (OPA) is undergoing implementation. Responsibility for carrying out this newest federal environmental statute, which strengthens federal response authorities, increases civil penalty and liability limits, mandates an expanded regulatory program for contingency planning and prevention, and creates a $ 1 billion damages compensation fund, is divided among several executive branch agencies. As the author points out, the process of implementing the OPA will redefine the scope and power of these agencies. The author discusses the executive agencies to which Congress, under the OPA, assigned over 50 administrative duties and responsibilities. The author then explores how jurisdictional responsibilities will be divided among the agencies, and how previous implementations of other environmental statutes may serve as models for rules promulgated under the OPA. The author also analyzes the revision of the National Contingency Plan mandated by the OPA, assesses key terminology and new enforcement authorities under the OPA, and concludes with the OPA's relation to pending international oil spill protocols.

Mr. Openchowski is an attorney in the Office of General Counsel, U.S. Environmental Protection Agency. The views expressed in this Article are those of the author and do not necessarily represent the views of any federal agency.

[21 ELR 10605]

The American Trader. The Mega Borg. The Exxon Valdez. These names evoke vivid images of dead wildlife, fouled beaches, and fires raging out of control. To the American people, these names have become inextricably linked to the enormous environmental risks associated with handling the rivers of petroleum needed to fuel everyday life. And in anticipation of the next big spill, they highlight fears of what could happen in a worst-case scenario if a supertanker actually lost its entire cargo in coastal waters.

The incidents associated with these names figured prominently in shaping the Oil Pollution Act of 1990 (OPA).1 But, in addition to the influence of these specific events, the OPA embodies over a decade of efforts by Congress to revamp existing laws governing spills of oil and hazardous substances into the nation's waters.2 The result is legislation that strengthens federal response authorities, increases civil penalties and liability limits, and mandates an expanded regulatory program for contingency planning and prevention to address discharges from vessels and facilities. The OPA also creates a $ 1 billion fund to provide sufficient compensation for damages resulting from spills and adequate resources to carry out the act's new preparedness and response provisions.3

As with all new statutes, implementation of the OPA will take time and involve agency rulemaking. The inevitable outcome will be to redefine the power of executive branch agencies that are given responsibility for carrying out the OPA's mandates. This Article examines some significant steps that need to be taken by executive branch agencies to implement the provisions of the OPA.4

[21 ELR 10606]

OPA Responsibilities Directly Assigned to Executive Branch Agencies

Under the OPA, Congress assigned over 50 new administrative duties and responsibilities, many of them directly, to federal agencies. While the Secretary ofTransportation received the largest share of these assignments, the Departments of Commerce, State, and the Interior also received congressional direction on a wide range of issues.

Department of Transportation

One of the more significant tasks, promulgating regulations to implement the OPA's new double-hull requirements, was given to the Department of Transportation (DOT).5 The OPA requires double hulls on most newly constructed tank vessels6 and phases out existing vessels without double hulls over the next 25 years.7 The phasing-out process begins in 1995 and will take into account the age and tonnage of affected vessels in order to balance adequate shipping and shipbuilding capacity against the need to expeditiously ensure environmental protection. In the interim, the DOT is required to issue regulations establishing economical and technically feasible structural and operational methods that provide substantial environmental protection.8

The OPA also requires the DOT to implement new provisions relating to the prevention of oil spills from vessels. These provisions require the DOT to promulgate regulations establishing:

* minimum standards and periodic testing for plating thickness (§ 4109);

* requirements for devices to warn of overfilling and to monitor tank levels and pressure in oil tankers (§ 4110);

* conditions under which tanker auto-pilot systems may be used in navigable waters generally (§ 4114), and specific pilotage and escort requirements in Prince William Sound and Puget Sound (§ 4116); and

* standards for vessel communication equipment (§ 4118).9

The OPA also requires the DOT to adequately consider alcohol and drug use when reviewing and issuing licenses, certificates of registry, and merchant mariner's documents.10 The OPA further allows the Secretary to deny entry into U.S. ports to foreign vessels that are not properly manned11 or do not have adequate evidence of financial responsibility.12 As a related matter, another DOT rulemaking will need to address the financial responsibility requirements for vessels under the significantly increased liability limits set forth in § 1004.13

Finally, the Secretary will be conducting studies on a variety of subjects, including vessel movement and the need for better traffic service systems;14 the adequacy of existing authorities designed to ensure safe waterborne transport of oil and hazardous substances, including issues relating to crew size, training, equipment, inspection, and navigation procedures;15 alternatives to double hulls that can provide equal or better environmental protection;16 and the feasibility of a Maritime Oil Pollution Prevention Program.17

Department of Commerce

OPA § 1006(e)(1)18 charges the Under Secretary of Commerce for Oceans and Atmosphere, in consultation with the Fish and Wildlife Service and the Environmental Protection Agency (EPA), among others, with publishing natural resource damage assessment regulations within two years of the OPA's enactment. In a recent advance notice of proposed rulemaking, the National Oceanic and Atmospheric Administration (NOAA) informed the public of its intent to issue these regulations and solicited public comment on a number of aspects concerning development of appropriate damage assessment procedures and the proper scope of the damage assessment process.19

An interesting feature in the OPA is a new provision that requires federal natural resource trustees to assess damages, as well as to prepare and implement a restoration plan.20 When the NOAA regulations are used by natural resource trustees in evaluating the extent of injuries to natural resources [21 ELR 10607] caused by oil spills, the resulting damage assessments will enjoy a rebuttable presumption on behalf of the trustee in subsequent administrative or judicial proceedings.21 The legislative history indicates that the measure of damages includes the cost associated with restoring, rehabilitating, replacing, or acquiring the equivalent of the impacted natural resources.22 The measure of damages also includes the diminution or loss of value in services provided by those resources pending their restoration, and the cost of conducting damage assessments.23

The OPA provision is patterned after § 301(c) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),24 under which the President delegated to the Department of the Interior (DOI) the responsibility for preparing regulations for assessing damages to natural resources that are injured, lost, or destroyed by releases subject to CERCLA and § 311 of the Federal Water Pollution Control Act (FWPCA).25 Although Congress specified its desire to have the Department of Commerce (DOC), rather than the DOI, prepare damage assessment regulations for purposes of the OPA, basic similarities between DOI's damage assessment regulations promulgated under CERCLA and DOC's forthcoming regulations under the OPA can be expected. However, the recent advance notice of proposed rulemaking indicates that NOAA intends to consider newly available technical information and may adopt methodologies and procedures that differ from the DOI model.26

Under the OPA, the Secretary of Commerce also chairs the Prince William Sound Oil Spill Recovery Institute.27 The institute will initiate research and carry out educational and demonstration projects related to the Exxon Valdez spill. The institute is distinct from the Interagency Coordinating Committee on Oil Pollution Research, which is established by OPA § 7001 to conduct "a comprehensive program of oil pollution research, technology development, and demonstration" projects.28 The committee, which is composed of representatives of EPA, NOAA, the National Aeronautics and Space Administration, and other federal agencies, is to coordinate its comprehensive program with, and to seek the cooperation of, industry groups, universities and research institutions, and state and foreign governments. OPA § 1012(a)(5)(C) authorizes up to $ 27.5 million per year for research and development efforts under § 7001. In addition, the OPA also encourages joint funding of research. An example of such research involves the efforts undertaken by EPA and Exxon in the wake of the Valdez spill to explore the feasibility and efficacy of new bioremediation technologies on oil spills pursuant to the Technology Transfer Act.29

Department of State

On the international side of oil pollution issues, the Secretary of State, in consultation with the DOT, EPA, NOAA, neighboring states, the International Joint Commission, and other interested agencies, is tasked with reviewing existing agreements and treaties with Canada related to cooperation in addressing spills on the Great Lakes and Lake Champlain.30 In addition, the Secretary of State, in consultation with the Secretaries of the Interior and Transportation, and the Governor of Alaska, is called upon to begin negotiations with Canada on a treaty regarding liability for and response to possible oil spills in the Arctic Ocean.31

Department of the Interior

Finally, § 600332 temporarily prohibits the Secretary of the Interior from conducting any offshore oil leasing, exploration, or development activities pursuant to the Outer Continental Shelf Lands Act33 off the coast of North Carolina. In addition, the section requires the Secretary to conduct additional ecological and socioeconomic studies prior to authorizing such activities.

Delegating Presidential Functions in an Executive Order

As with CERCLA and FWPCA § 311, many important authorities and duties under the OPA simply are given to the President.This approach necessitates promulgation of an executive order to delegate these functions to the appropriate administrative agencies.34 Two primary concepts in the existing executive orders governing implementation of [21 ELR 10608] CERCLA and FWPCA § 311 programs will likely serve as models for the OPA executive order.35

First, some program functions vested in the President are currently divided between EPA and the Secretary of Transportation (acting through the Coast Guard) on the basis of "inland" and "coastal" waters.36 This jurisdictional division is reflected in the National Contingency Plan (NCP), which provides that EPA generally will provide on-scene coordinators "for discharges [of oil] or releases [of hazardous substances] into or threatening the inland zone," while the Coast Guard generally will provide on-scene coordinators for discharges and releases "within or threatening the coastal zone."37

Second, regulatory functions vested in the President under FWPCA § 311(j) traditionally have been divided between EPA and the Coast Guard on the basis of the discharger's characteristics. Thus, EPA has been responsible for promulgating regulations under §311(j)(1)(C) concerning "procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances … and to contain such discharges" where the facilities are characterized as "non-transportation-related onshore and offshore facilities."38 At the same time, the Coast Guard has taken responsibility for vessels and transportation-related facilities.39

Inland and Coastal Areas

Dividing jurisdictional responsibility on the basis of inland and coastal waters will likely be applied to several programs and authorities under the OPA and amended FWPCA § 311.

[] The federal response system. Prior to the OPA, FWPCA § 311(c) authorized the President to respond to a discharge of oil or hazardous substances into waters of the United States, unless he determined "such removal will be done properly by the owner or operator" causing the spill. In addition, the President was authorized under FWPCA § 311(j)(1)(A) to establish "methods and procedures for the removal of discharged oil and hazardous substances."40

The OPA significantly modified and strengthened federal authority to respond to oil and hazardous substance spills.41 To begin with, under FWPCA § 311(c), the President must "ensure effective and immediate removal of a discharge of oil or hazardous substance." Moreover, the President must assume responsibility for cleanup actions where the discharge (or substantial threat of a discharge) poses a "substantial threat to the public health and welfare."42 In carrying out both provisions, the OPA requires the President to consult with natural resource trustees regarding "the appropriate removal action to be taken in connection with any discharge of oil."43 To more effectively carry out these expanded response authorities and duties, Congress added new federal enforcement authority to direct cleanup actions by responsible parties and states, and to issue administrative orders to that end.44

[] Abatement of imminent and substantial endangerment. In the past, FWPCA § 311(e) authorized the President to seek judicial relief to abate an imminent and substantial threat to public health and welfare caused by a discharge or threatened discharge of oil or hazardous substances. OPA § 4306 amends that provision by giving the President new authority to issue administrative orders to address these situations.45

[21 ELR 10609]

[] Area contingency plans. Prior to enactment of the OPA, the President was authorized under FWPCA § 311(j)(1) to establish "criteria for the development and implementation of local and regional oil and hazardous substance removal contingency plans." Current EPA regulations provide some criteria to assist local, state, and regional development of oil removal contingency plans.46 Other federal contingency planning procedures are established in the NCP, which discusses the purposes and scope of different kinds of federal contingency plans, including the NCP, regional contingency plans, and on-scene coordinator (OSC) contingency plans.47

Although Congress did not amend § 311(j)(1), it added a new requirement to the existing contingency planning framework. Under FWPCA § 311(j)(4), the President must designate "areas" throughout the country, appoint members to federal area committees who are to draw up contingency plans for each area, and review and approve those plans.48

Vessels and Facilities

The division of responsibility that brings nontransportation-related facilities under EPA's jurisdiction and transportation-related facilities and vessels under the Coast Guard's jurisdiction also is expected to be carried over for several authorities in the OPA executive order.

[] Response plans. Since 1972, FWPCA § 311(j)(1)(C) has provided the President with the authority to issue regulations "establishing procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances from vessels and from onshore facilities and offshore facilities, and to contain such discharges." OPA § 4202(b)(4) added a new subparagraph (5) to FWPCA § 311(j) that requires facility and vessel owner/operators to prepare response plans and, in some cases, obtain federal approval of those plans in order to continue operating. That provision also requires the President to conduct periodic drills and inspections of vessels and facilities to ensure availability of response equipment and test response capabilities described in vessel and facility response plans.49

[] Adjustment of liability limits. OPA § 1002 outlines the elements of liability for "responsible parties."50 In addition to removal costs, liability extends to a wide range of damages, including those to natural resources; real or personal property and related profits and earning capacity; subsistence use; revenues lost by governmental entities (e.g., taxes, royalties, and rents); and the provision of additional public services.51 Liability also extends to the cost of assessing these damages.52

The statute places parameters on this broad liability in two ways. First, § 1003 provides a limited set of defenses to liability patterned after those found in CERCLA § 107(b).53 However, these defenses are unavailable to responsible parties who fail or refuse to report the discharge, cooperate and assist in cleanup activities, or comply with a federal order or directive issued under FWPCA § 311(c) or (e).54 In addition, § 1004(a) establishes liability limits for parties responsible for discharges of oil into waters of the United States. These limits range from $ 1,200 per gross ton for vessels (or $ 10 million, whichever is greater), to $ 75 million plus removal costs for offshore facilities other than deepwater ports, to $ 350 million for onshore facilities and deepwater ports.55 These limits do not apply where the discharge is caused by responsible party's gross negligence or willful misconduct; violation of applicable regulations; failure or refusal to report the discharge or cooperate in the cleanup efforts; or failure or refusal "without sufficient cause" to comply with an administrative cleanup order or directive.56

There are two administrative responsibilities associated with the OPA's liability limits. First, the limits for onshore facilities may be adjusted downward by the President [21 ELR 10610] to not less than $ 8 million through a rulemaking procedure, depending on the "size, storage capacity, oil throughput, proximity to sensitive areas, type of oil handled, history of discharges, and other factors relevant to the risks posed by the … facility."57 For deepwater ports, the Secretary of Transportation is authorized to lower the limits of liability to not less than $ 50 million, after conducting a study and issuing a report on the associated operational and environmental risks.58 The OPA also mandates periodic reports to Congress by the President, starting six months after enactment, in order to determine whether the statutory limits should be adjusted.59 Recognizing how quickly limits can become obsolete, Congress authorized the President to adjust the liability limits every three years through regulations to reflect significant increases in the Consumer Price Index.60

Other Executive Order Issues

A third set of presidential functions under the OPA does not depend on the traditional jurisdictional divisions between EPA and the Coast Guard.61 These functions include assigning responsibility for making the revisions to the NCP required by § 4201(b), and determining the quantities of oil and hazardous substances that "may be harmful" to public health, welfare, or the environment.62 Based on how CERCLA and the FWPCA § 311 program have been implemented, it is likely these OPA responsibilities will be delegated to EPA.

Similarly, one can presume that the Coast Guard, with its experience in administering the FWPCA § 311(k) fund, will be given responsibility for managing the billion dollar Oil Spill Liability Trust Fund. The fund manager will be responsible for reimbursing response costs incurred consistent with the NCP and uncompensated claims under § 1013, and paying natural resource trustees for damage assessment costs and federal agencies for administrative and operational costs associated with implementing the statute. In addition, § 1012 requires the President to issue regulations to designate federal officials who are authorized to obligate the fund, and to authorize states to obligate up to $ 250,000 per spill. Furthermore, § 1013(e) calls for regulations to govern the processing of claims filed by aggrieved parties seeking compensation for removal costs they incurred or for damages described in § 1002(b) (e.g., damages to natural resources, property, subsistence use, revenues, profits and earning capacity, and public services). As a related matter, § 1014 requires the President to identify the source of a spill and let the affected public know how to present claims against the fund when there has been a discharge.

One final issue that may be addressed by the executive order relates to interagency coordination during oil spills.63 In the initial stages of the Exxon Valdez spill, President Bush directed EPA Administrator William Reilly to coordinate the long-term restoration of Prince William Sound and the Gulf of Alaska on behalf of the federal natural resource trustees.64 This coordination role for EPA, designed to ensure an ecosystem-wide approach to restoration activities, is not embodied in the NCP or in prior executive orders governing CERCLA or FWPCA § 311 response actions. To institutionalize EPA's role in nationally significant incidents, it would be appropriate to include language in the OPA executive order clarifying EPA's relationship to federal natural resource trustees for reference in future spills. A fuller elaboration of EPA's role would also be appropriate in the context of the revisions to the NCP.

Implementing Revisions to the Federal Response and Planning Framework

Through the OPA, Congress added new features to the existing framework for addressing discharges that affect the aquatic environment. The OPA now establishes three levels of response and planning capabilities. The first level builds on the NCP,65 the current regulation that implements the FWPCA § 311 and CERCLA programs. The second level creates a new federal entity designed primarily for planning purposes — the area committee — which is to prepare area contingency plans throughout the country.66 The third level requires owners and operators of facilities and vessels to prepare individual response plans.

The NCP

The NCP (which is the common acronym for the National Oil and Hazardous Substances Pollution Contingency Plan) [21 ELR 10611] dates back to 1968 in one form or another.67 Since 1972, it has provided a regulatory framework for planning and response actions related to discharges of oil and hazardous substances, first under the FWPCA § 311 program and later under the Superfund program.68 Although CERCLA significantly changed the complexion of the NCP in 1980, the plan has continued to provide the fundamental organizational structure, general procedures, and basic responsibilities of federal agencies and their interaction with state and local entities.

OPA § 4201 requires another revision to the NCP69 and provides only one year to republish the new regulation.70 In addition to the existing statutory list of subjects to be covered in the NCP,71 the OPA adds two major items:

*"criteria and procedures to ensure immediate and effective Federal identification of, and response to, a discharge, or threat of discharge, that results in a substantial threat to the public health and welfare;"72 and

*"procedures and standards for removing a worst case discharge of oil, and for mitigating or preventing a substantial threat of such a discharge."73

Substantial threat to the public health and welfare. The OPA's new requirement that the President must direct all federal, state, and private response activities when the discharge "is of such a size or character as to be a substantial threat to the public health or welfare of the United States,"74 represents a significant change in federal removal authority. In determining what kind of incident constitutes a "substantial threat" and how best to address it, Congress deferred to the executive branch.

The legislative history of the OPA provides some indication of which spills Congress intended to cover by the new NCP criteria. First, the conference committee report lists three specific incidents involving a substantial threat to the public health and welfare: the Exxon Valdez (Prince William Sound, Alaska), the American Trader (Huntington Beach, California), and the Mega Borg (Gulf of Mexico).75

The size of the spill or potential spill alone, however, is not determinative. The Senate Environment and Public Works Committee report states:

The requirements of this provision are meant to apply not only to large spills like the one from the Exxon Valdez, but also to smaller spills, such as those that occurred in the waters off the Rhode Island coast and in the Delaware River in June, 1989, which posed substantial threats of a pollution hazard to the public health and welfare, including fisheries and wildlife.76

In addition, spills occurring near major drinking water supplies or environmentally sensitive areas could represent a substantial threat to the public health or welfare.77

As to the need for procedures in the NCP governing effective response actions in these circumstances, the conference committee report notes that the revisions to FWPCA § 311(c) authority are "designed to eliminate the confusion evident in recent spills where the lack of clear delineation of command and management responsibility impeded prompt and effective response."78 By more clearly describing the roles of affected local, state, and federal agencies, and outlining how they are called into play during major spill events, the revised NCP should act to facilitate the direction of cleanup efforts when the federal government assumes responsibility.

Worst-case discharge. Congress, prompted by fears of what the full impacts could have been had the Mega Borg lost its entire cargo, added a new definition to FWPCA § 311(a) for "worst case discharge."79 This phrase means the loss of a vessel's entire cargo "in adverse weather conditions," or "the largest foreseeable discharge in adverse weather conditions" at a facility.80 The "largest foreseeable discharge" at a facility does not necessarily equate to a total loss of the facility's contents, but "is intended to describe a case that is worse than either the largest spill to date or [21 ELR 10612] the maximum probable spill for that facility."81 The difference in definitions reflects the dissimilarities between vessels and onshore facilities in terms of the actual proximity of the contained oil or hazardous substance to the aquatic environment, and the potential buffer that secondary containment and other preventive equipment, such as shut-off devices and overflow alarms, can provide on land.

The worst-case concept provides a common thread throughout the new federal contingency planning process envisioned by Congress. It is to be integrated into the NCP, area contingency plans, and facility response plans.82 Revisions to the NCP must include appropriate measures for addressing such a catastrophe once it happens, as well as steps that can be taken to mitigate or to prevent a potential worst-case spill.

The NCP will also need to address the interaction between a worst-case spill and a discharge that poses a substantial threat to the public health or welfare. For example, there clearly will be cases where a worst-case spill also represents a substantial threat (i.e., the breakup of a full supertanker near a fragile estuary). At the same time, some worst-case spills at facilities may not require the same level of attention (i.e., a small refinery suffering the collapse of its single, small above-ground storage tank near a heavily polluted waterway). To ensure effective cleanup actions, while not needlessly over-committing scarce response resources, the NCP will need to reconcile the appropriate degree of federal involvement in worst-case spills and events posing substantial threats.

The worst-case concept appears to be borrowed in part from regulations issued by the Council on Environmental Quality (CEQ) implementing the National Environmental Policy Act (NEPA).83 A previous iteration of those regulations required federal agencies preparing environmental impact statements for major federal actions significantly affecting the environment to include a worst-case analysis where relevant information concerning the potential adverse impacts of a proposed course of action did not exist or was too costly to obtain.84 That analysis could then be used to fully evaluate the different environmental effects of available alternatives.

In the NEPA context, the worst-case analysis was formerly designed to ensure more comprehensive planning by factoring in the risks and severity of possible adverse consequences of federal agency decisions in the face of scientific uncertainty or lack of information. Under the OPA, the worst-case scenario also serves a planning function to better prepare response actions in the face of catastrophic spill events.85 However, the worst-case concept under the OPA and the former CEQ regulations clearly differ in at least one respect. The CEQ interpreted the worst-case analysis to cover not only "low probability/catastrophic impact" events, but also "a spectrum of events of higher probability but less drastic impact."86 The OPA's use of the worst-case spill, on the other hand, is focused only on catastrophic events.

Other NCP Revisions

In addition to incorporating the "substantial threat" and "worst-case" concepts into the NCP, the OPA expands the scope of the previous statutory language governing the NCP's treatment of the use of dispersants. At present, dispersants for the most part may be used to respond to an oil discharge only if they are included on the National Product Schedule.87 The existing NCP establishes data requirements that must be satisfied prior to being listed on the schedule.88 Currently, dispersants, surface collecting agents, oil spill control agents, and other chemical and biological products are eligible for inclusion.89

The OPA now suggests that "other spill mitigating devices and substances" may be appropriate for inclusion on the existing product schedule.90 While there is no indication what this phrase is intended to cover, it could include booms, skimmers, sorbents, and burning agents, which are not currently listed. The conference committee report indicates that the short- and long-term environmental impacts of such devices and substances should be considered, and that the schedule should include "those which are least harmful to the environment."91 Thus, besides providing information on a product's toxicity and effectiveness, it may be appropriate for the NCP to require an evaluation of a product's overall acceptability for use.

[21 ELR 10613]

In addition, Congress added a requirement that the NCP include "[a] fish and wildlife response plan … for the immediate and effective protection, rescue, and rehabilitation of, and the minimization of risk of damage to, fish and wildlife resources and their habitat that are harmed or that may be jeopardized by a discharge."92 Such a plan could facilitate effective response actions by establishing procedures and allocating responsibilities among federal, state, and local fish and wildlife agencies, as well as private organizations with expertise in these matters. Specific subjects that might be included in the plan are identification of particularly vulnerable species and habitats, and priorities for addressing them in the event of an incident; availability of equipment and personnel to address fish and wildlife aspects of a response action; and procedures for ensuring adequate consideration of fish and wildlife values during cleanup activities.

Finally, the NCP is to designate a federal on-scene coordinator for each "area" established under the amended FWPCA § 311(j)(4) and to provide for coordination between those on-scene coordinators,the area committees established in the designated areas, Coast Guard strike teams, and Coast Guard District Response Groups.93

Designation of Areas and Appointment of Area Committees

Another key feature of the OPA's expanded federal planning and response framework focuses more on the regional level. The OPA creates a new federal planning entity, the "area committee." In addition, the act establishes two new components — a Coast Guard National Response Unit94 and ten Coast Guard District Response Groups95 — that in large part are to assist on-scene coordinators in responding to discharges. These new elements represent a new, statutorily mandated intermediate federal presence, bridging the general perspective of the NCP with the more specific focus of individual facility response plans.

The OPA requires the President to designate "areas" covering virtually all surface waters in the country.96 Criteria for area designations could include the likelihood of discharges, the likelihood of severe economic or environmental damage that could arise from a discharge, and the adequacy of existing contingency plans.97 Other relevant factors may include the amount and kind of oil handled at facilities within the area; the natural resources at risk; and the influence of geographic, topographic, and weather factors on the frequency and severity of discharges.98 Assuming the executive order follows the inland/coastal division of responsibilities between EPA and the Coast Guard, it is likely the Coast Guard will use the areas presently covered by its 48 Captains of the Port, while EPA is likely to use the 13 areas now covered by regional response teams, at least initially.

The area committees created by the OPA are responsible for preparing contingency plans for their respective areas under the direction of federal on-scene coordinators.99 Each plan is to integrate the responsibilities and capabilities (e.g., equipment and personnel) of individual facility owners within the area, as well as local and state agencies.100 Plans are also to address the possibility of a worst-case spill and provide a framework for coordinating the appropriate elements of the NCP, other areas' plans, and individual facility response plans when responding to discharges.

Finally, the OPA emphasizes the importance of integrating preplanning measures into area contingency plans, particularly procedures for expediting decisions on dispersant use. Preauthorization of dispersants and other spill control agents by each area committee, based on the unique geographic and environmental features within that area, could expedite response decisions and minimize potential adverse ecological impacts associated with removing spills.

The area contingency plans are subject to federal review [21 ELR 10614] and approval. Under OPA § 4202(b)(1)(B), plans are to be submitted by February 18, 1992, and are to be approved — with modifications required by the appropriate federal agency — by August 18, 1992.

Facility and Vessel Response Plans

Extending direct federal involvement in contingency planning to the local level, Congress, under the OPA, requires the preparation of individual facility and vessel response plans to address discharges of oil and hazardous substances.101 These plans will build on the existing regulatory framework addressing prevention and preparedness plans for certain types of facilities. Since 1973, EPA regulations under FWPCA § 311(j)(1)(C) have required the preparation of oil spill prevention, control, and countermeasure plans at nontransportation-related facilities.102 Where owners or operators of facilities do not include appropriate containment features to prevent oil from reaching waters of the United States in the event of a spill, they must prepare an oil spill contingency plan and provide a "written commitment of manpower, equipment and materials required to expeditiously control and remove any harmful quantity of oil discharged."103 For its part, the Coast Guards has issued regulations governing marine oil transfer facilities, including a requirement for an operations manual that is to address, among other items, the "procedures to be followed if the cargo spills or leaks," "fire fighting procedures and extinguishing agents effective with fires involving the cargo," and "reporting and initial containment of oil discharges."104

Pursuant to FWPCA § 311(j)(5), as amended by the OPA, oil tanker and offshore facility owners and operators — and owners and operators of onshore facilities that "could reasonably be expected to cause substantial harm to the environment" by virtue of potential discharges into or onto navigable waters, adjoining shorelines, and the waters of the exclusive economic zone — must prepare and submit a response plan. Within this regulated community, owners and operators of onshore facilities that "could reasonably be expected to cause significant and substantial harm to the environment"105 due to their location, and vessel and offshore facility owners and operators, must obtain federal approval of their plans by August 1993, in order to continue handling, storing, or transporting oil.106 As amended, the FWPCA allows for a two-year extension where a draft plan has been submitted and the owner or operator has made appropriate arrangements to secure the personnel and equipment needed to respond "to the maximum extent practicable, to a worst case discharge or a substantial threat of such a discharge."107

Relevant criteria for determining which onshore facility response plans require federal review and approval include "oil storage capacity, location of environmentally sensitive areas, and location of potable water supplies," as well as the size and age of the facility's storage tanks.108 Also, the spill history of the facility or vessel might be a critical factor in this determination. However, Congress made it clear that no liability extends to the United States as a result of any federal approval given to response plans.109

Once again, the worst-case concept is woven into response plan requirements. Unlike the NCP and area contingency plans, however, the requirement to address worst-case spills in facility and vessel response plans is qualified to some degree. A response plan must provide for the availability of personnel and equipment "necessary to remove to the maximum extent practicable a worst case discharge (including a discharge resulting from fire or explosion) and to mitigate or prevent a substantial threat of such a discharge."110 The owner or operator must either have such equipment on hand, or ensure its availability through a "contract or other means approved by the President."111 Congress intended the "maximum extent practicable" qualification to reflect "technological limitations associated with oil spill removal, and the practical and technical limits of the spill response capabilities of individual owners and operators."112

At the same time, the OPA envisions that facility and vessel response plans will be keyed into the NCP and area contingency plans. Thus, resources (e.g., equipment and personnel) identified in the area contingency plan — and ultimately in the NCP, in spills of truly catastrophic proportions — would normally come into play as the financial and technical capabilities of an owner or operator to address a worst-case discharge are exceeded.113 There is, however, [21 ELR 10615] no requirement to proceed sequentially in these circumstances, or to wait to initiate federal cleanup actions under the area contingency plan or NCP until a determination is made that a particular facility or vessel response plan might be inadequate.

The response plan must also describe the actions to be taken to minimize impacts from any discharge. Beyond that, the owner or operator is required to describe how equipment testing, periodic drills, and training are to be carried out. Other elements that may be incorporated in federal regulations implementing the response plan requirement include detection and notification procedures; availability of equipment and personnel for less than a worst-case discharge; measures to protect the aquatic environment during implementation of response actions; and the appropriate disposal of contaminated materials used in the cleanup, such as booms and recovered oil.114 Significant changes in a response plan necessitate resubmission to the appropriate federal agency for approval.115

The conference committee report makes it clear that these response plans do not replace or supersede reporting and emergency planning requirements under other statutes, such as the Resource Conservation and Recovery Act (RCRA),116 CERCLA, the Emergency Planning and Community Right-to-Know Act,117 and the Occupational Safety and Health Act.118 At the same time, the conference report indicates that Congress intended that federal agencies coordinate the OPA facility and vessel response plan requirement with other program initiatives to avoid potential conflicts and duplication of effort.119

Enforcement Authorities

Realizing that the existing enforcement provisions under FWPCA § 311 were out of date, Congress dramatically raised civil penalty ceilings and provided stronger administrative enforcement mechanisms in the OPA. The OPA also substantially increased criminal sanctions for failure to report discharges pursuant to FWPCA § 311(b)(5) and added violations of FWPCA§ 311(b) discharge limitations to the list of sections covered by the criminal provisions in FWPCA § 309(c).120 The new penalty framework may be applied only to violations occurring after the date of the OPA's enactment.121

Two OPA provisions augment the President's enforcement authority and, in all likelihood, will be delegated to EPA and the Coast Guard in the upcoming OPA executive order along the lines previously discussed.122 The first authorizes the President to seek injunctive relief to secure compliance with financial responsibility requirements and obtain civil penalties of up to $ 25,000 per day for violations of these requirements.123 The second modifies the existing authority to obtain judicial relief in emergency situations under FWPCA § 311(e). Reflecting language from similar provisions in CERCLA and RCRA, FWPCA § 311(e) now allows the President to issue administrative orders to address a discharge or threat of discharge that may present an imminent and substantial threat to the public health and welfare.124

The other amended FWPCA § 311 civil enforcement authorities are given directly to EPA and the Coast Guard.125 OPA § 4301 greatly expands the framework for assessing administrative and judicial penalties, patterned largely after the federal enforcement provision in FWPCA § 309.126 Unauthorized discharges of oil and hazardous substances, and owners and operators of facilities who do not comply with regulations issued under FWPCA § 311(j), are now subject to two administrative penalty regimes. Class I penalties of $ 10,000 per day (up to a maximum of $ 25,000 total) may be assessed after notice and opportunity for a hearing, using streamlined procedures.127 Class II penalties of up to $ 125,000 may be assessed where formal adjudicatory proceedings are followed.128 The OPA also provides an opportunity for interested members of the public to participate [21 ELR 10616] (including presentation of evidence) in both class I and II procedures.129

Congress also brought the civil penalty amounts available in judicial proceedings under FWPCA § 311 more in line with current levels found in other federal environmental statutes. Dischargers are now subject to civil fines of up to $ 25,000 per day, or $ 1,000 per barrel of oil or unit of hazardous substances exceeding the established reportable quantity.130 Anyone who, without sufficient cause, fails to comply with a directive issued under FWPCA § 311(c) when the federal government assumes responsibility for cleanup (i.e., where the discharge poses a substantial threat to the public health or welfare), or with a FWPCA § 311(e) administrative order issued in response to an imminent and substantial threat to the public health or welfare, may be assessed a $ 25,000 per day penalty or up to three times the amount paid out by the oil spill trust fund because of the failure to comply. Finally, failure to comply with regulations issued under FWPCA § 311(j) can lead to a civil fine of up to $ 25,000 per day.131 Civil and criminal penalties are to be paid into the oil spill trust fund.132

EPA and the Coast Guard will need to pursue several initiatives to implement these new authorities. First, each agency will have to publish regulations governing the conduct of class I and II administrative proceedings. EPA will presumably continue its past practice by consolidating OPA class II formal adjudicatory procedures into the existing regulations governing similar actions under other federal environmental statutes.133 For class I procedures, it is likely that EPA will follow the same basic procedures it uses for similar violations in other federal environmental statutes.134 As for the Coast Guard, existing regulations for hearing officers might be adequate for class I procedures,135 but would have to be modified to satisfy due process requirements for formal adjudicatory proceedings.136

In addition, the agencies may issue guidance in the form of a penalty policy to address the new statutory requirement that various factors be considered in determining FWPCA § 311 civil penalty amounts.137 These factors include the seriousness of the violation, the economic benefit to the discharger, the degree of culpability, prior violations, efforts by the violator to minimize the impact of the discharge, and the economic impact of a penalty on the violator.

Finally, the two agencies will need to revise the existing memorandum of understanding that divides their respective enforcement responsibilities under the § 311 program.138 A significant aspect that will need to be addressed in this process is the change made by the OPA to allow both agencies to assess civil penalties for discharges of both oil and hazardous substances.

International Initiatives

One long-standing executive branch initiative left unresolved by the OPA concerns a proposed international oil spill liability and compensation regime. In 1984, the United States participated in the preparation of two protocols designed to amend the 1969 Civil Liability Convention and the 1971 Fund Convention.139 The protocols would establish new international liability rules and limits for oil spill incidents, and create a larger fund to provide compensation for pollution damage caused by spills from foreign tankers. However, efforts to secure the Senate's ratification of the protocols, in the context of the OPA, were unsuccessful.

Two major issues have stood in the way of ratification of the protocols. First, there is a concern that the limitations on liability set in the protocols would be insufficient to ensure sufficient financial compensation for environmental harm done and provide adequate incentives to prevent discharges.140 The 1989 Exxon Valdez spill, with its potential cleanup and restoration costs measured in billions of dollars, has reinforced those concerns. One way to address this issue would be to include an automatic upward adjustment of liability limits, based on experience gained from actual incidents and an appropriate pricing index.141 Second, strong opposition exists to the preemption of state oil spill liability and compensation laws, which could result from ratification of these international agreements. The OPA contains two express provisions preserving states' authority to impose additional liability and other requirements related to oil spills.142 One possible avenue for compromise could have been to ratify the protocols with a specific reservation [21 ELR 10617] concerning the preservation of state law dealing with oil spill liability and compensation.143 Such a reservation, however, would call into question the effect of United States ratification, since it would largely undercut the purpose of the protocols and significantly reduce the prospects of ratification by other countries.

The Senate bill contained no language that could be construed as ratification of the protocols.144 H.R. 1465, on the other hand, contained an international conventions title that could have served to implement the major elements of the protocols. In particular, the House bill contained a "joinder" provision, under which the domestic oil spill fund established by the legislation would indemnify and defend parties liable under the international framework, and also would be substituted as the party defendant in any resulting litigation (including state law actions). However, the House bill also provided that "[n]othing in this title shall constitute a ratification of either the Civil Liability Convention or the Fund Convention."145 In addition, both the House and Senate bills had strong language precluding any preemption of state liability laws.

The compromise reached in conference committee was to include the following provision in the OPA:

It is the sense of Congress that it is in the best interests of the United States to participate in an international oil pollution liability and compensation regime that is at least as effective as Federal and State laws in preventing incidents and in guaranteeing full and prompt compensation for damages resulting from incidents.146

It is now up to executive branch agencies to continue exploring avenues for achieving these goals in an arrangement acceptable to the international community.147

One other international initiative in the OPA has produced more positive results. Under § 3004, Congress sought to "encourage appropriate international organizations to establish an international inventory of spill removal equipment and personnel."148 International efforts in this regard were well underway by the time the OPA was enacted, and the Convention On Oil Pollution Preparedness, Response and Co-Operation was adopted by an international conference on November 28, 1990.149 The convention would require preparation of vessel oil pollution emergency plans; establish reporting procedures for discharges; encourage national and regional cooperation in developing preparedness and response systems; facilitate technical cooperation and the exchange of research and development results; and promote international cooperation in providing technical support, equipment, and advice in the event of a major incident. The United States, along with over a dozen other countries, signed the convention.

Looking Ahead

The OPA took well over a decade to develop and enact, and will take years to fully implement. The act's emphasis on planning, preparedness, and prevention should reduce the need to use newly expanded federal authorities in responding to worst-case incidents and those posing substantial threats to public health and the environment. In addition, the adoption of more comprehensive procedures for coordinating federal, regional, local, and individual facility response efforts, and the development of new cleanup technologies to mitigate adverse environmental impacts once a spill takes place, should go a long way to achieving the act's goals. The OPA's true effectiveness, however, will be measured over time by the absence of oil spill catastrophes and near misses, and by the reduction in the thousands of smaller spills that occur each year.

1. 33 U.S.C. §§ 2701-2761, ELR STAT. OIL POLL. 001-034.

2. The OPA mirrors the general jurisdictional scope of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 001-071; both cover discharges of oil and hazardous substances into "navigable waters," a term that has been interpreted under the FWPCA to extend to virtually all surface waters of the United States. See International Paper Co. v. Ouellette, 479 U.S. 481, 484, 107 S. Ct. 805, 808, 17 ELR 20327, 20330 (1987); United States v. Riverside Bayview Homes, 474 U.S. 121, 106 S. Ct. 455, 16 ELR 20086 (1985).

3. Title I of the OPA establishes new sections of the FWPCA, which have been codified at 33 U.S.C. §§ 2701-2719. This title now governs liability and compensation issues arising from discharges of oil. While titles II and IV amend existing FWPCA § 311 authorities, codified at 33 U.S.C. § 1321, § 311 continues to cover prevention and removal issues arising from discharges of oil and hazardous substances. OPA § 2002 makes it clear, however, that the new OPA billion dollar trust fund — which replaces the previous $ 35 million FWPCA § 311(k) fund — may be used only for addressing oil pollution. The OPA also defines "oil" in § 1001(23) to exclude hazardous substances covered by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 001-075. Thus, it appears that FWPCA § 311 actions to address hazardous substance release prevention and response will be funded by the Superfund program.

4. See also Randle, The Oil Pollution Act of 1990: Its Provisions, Intent, and Effects, 21 ELR 10119 (Feb. 1991).

5. This rulemaking most likely will be promulgated by the Coast Guard, which carries out most of the Secretary's functions relating to marine pollution and navigation issues.

6. OPA § 4115(a), ELR STAT. OIL POLL. 014. There are some exceptions to the general double-hull requirement. Tank vessels under 5,000 gross tons need not have double hulls if they are equipped with an equally effective double containment system (e.g., flexible bladders, double sides, or other combinations of technologies). In addition, vessels offloading oil at deepwater ports are exempt from the double-hull requirement until 2015.

7. Id. at 015. Smaller tank vessels (i.e., those under 5,000 gross tons) may qualify for an exemption if they are equipped with equally protective features.

8. See OPA § 4115(b), ELR STAT. OIL POLL. 015. The OPA requires promulgation of these regulations in final form by August 1991. Examples of structural and operational requirements include hydrostatic loading, liners, spill rails, and on-board containment devices. See H.R. CONF. REP. NO. 653, 101st Cong., 2d Sess. 141 (1990).

9. The Secretary is also required to install an automated navigation light at Bligh Reef (site of the Exxon Valdez accident) (§ 5003) and a vessel traffic service system to track vessels transiting Prince William Sound (§ 5004).

10. OPA § 4101, ELR STAT. OIL POLL. 012. The Secretary is authorized to review driving records and criminal records in carrying out these duties. Id.

11. Id. at § 1016, ELR STAT. OIL POLL. 009.

12. Id. at § 4106, ELR STAT. OIL POLL. 013.

13. OPA § 1016 also authorizes the President to issue financial responsibility regulations for offshore facilities. This function will need to be delegated in the executive order, which is discussed in the next section.

14. Id. at § 4107, ELR STAT. OIL POLL. 013.

15. Id. at § 4111, ELR STAT. OIL POLL. 014.

16. Id. at § 4115(e), ELR STAT. OIL POLL. 015.

17. Id. at § 4117, ELR STAT. OIL POLL. 016. In addition to DOT studies, OPA § 4112 requires the Secretary of the Army to study the feasibility of converting dredges into vessels suitable for removing discharges of oil and hazardous substances. Moreover, OPA § 4113 requires the President to study liners and other secondary containment measures at onshore facilities, and report to Congress with recommendations within one year of enactment. Given the Environmental Protection Agency's (EPA's) experience with liners in the hazardous waste management program under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-050, it is likely that EPA will conduct this study.

18. 33 U.S.C. § 2706(e)(1), ELR STAT. OIL POLL. 007.

19. See 55 Fed. Reg. 53478 (1990) (proposed Dec. 28, 1990).

20. See OPA § 1006(c), ELR STAT. OIL POLL. 007.

21. See OPA § 1006(e)(2), ELR STAT. OIL POLL. 007.

22. H.R. CONF. REP. NO. 653, supra note 8, at 108.

23. 42 U.S.C. § 9651(c), ELR STAT. CERCLA 062.

24. H.R. CONF. REP. NO. 653, supra note 8, at 108. The Conference Report states a preference for restoration, rehabilitation, and replacement, indicating that acquisition of equivalent resources should be used as a last resort. Id.

25. Under CERCLA § 301(c)(2), these regulations outline procedures for either simplified or full-field damage assessments. The procedures, published at 43 C.F.R. pt. 11 (1990), were remanded in part by the U.S. Court of Appeals for the District of Columbia in Ohio v. U.S. Dep't of the Interior, 880 F.2d 432, 19 ELR 21099 (D.C. Cir. 1989) and Colorado v. U.S. Dep't of the Interior, 880 F.2d 481 (D.C. Cir. 1989). One aspect rejected by the court dealt with DOI's narrow market/use value approach for damage assessment. See Olson, Natural Resource Damages in the Wake of the Ohio and Colorado Decisions: Where Do We Go From Here, 19 ELR 10551 (Dec. 1989); and Kopp, Portney, & Smith, Natural Resource Damages: The Economics Have Shifted After Ohio v. United States Department of the Interior, 20 ELR 10127 (Apr. 1990).

26. The Senate Environment and Public Works Committee report encourages NOAA to explore new approaches for the damage assessment regulations: "in requiring NOAA to issue new regulations, it is intended that NOAA adopt advanced techniques to assess damages consistent with the above-mentioned measurement of damages [sums including, but not limited to, restoration, replacement, acquisition of equivalent resources, plus interim diminution of use and other values]." S. REP. NO. 94, 101st Cong., 1st Sess. 15 (1989).

27. See OPA § 5001, ELR STAT. OIL POLL. 023.

28. 33 U.S.C. § 2761, ELR STAT. OIL POLL. 029.

29. Pub. L. No. 99-502, 100 Stat. 1785 (1986) (codified at 15 U.S.C. § 3710a).

30. OPA §§ 3002-3003, ELR STAT. OIL POLL. 011. Reports on these points were due to Congress by February 18, 1991.

31. Id. at § 302, ELR STAT. OIL POLL. 033.

32. 33 U.S.C. § 2753, ELR STAT. OIL POLL. 027.

33. 43 U.S.C. §§ 1331-1356, ELR STAT. OUT. 045.

34. Delegation of one presidential authority could not be delayed pending preparation of the anticipated executive order. On August 24, 1990, President Bush delegated to the Secretary of Transportation the authority under the OPA to make money available from the newly created $ 1 billion Oil Spill Liability Trust Fund for response actions, among other things. See 55 Fed. Reg. 35291 (1990). This special delegation was necessitated by the elimination of the previous FWPCA § 311(k) response fund. The Secretary of Transportation subsequently delegated this new authority to the Commandant of the U.S. Coast Guard.

35. Exec. Order No. 12580, 3 C.F.R. 193 (1987), reprinted in 42 U.S.C. § 9615 app. at 1356-59 (Supp. V 1982), implements CERCLA, as amended by the Superfund Amendments and Reauthorization Act of 1986 (to the extent the OPA does not specifically amend CERCLA, this executive order should remain in tact); and Exec. Order No. 11735 (38 Fed. Reg. 21243) (1973), as amended by Exec. Order No. 12418, 3 C.F.R. 187 (1984), reprinted in 33 U.S.C. § 1321 app. at 628 (Supp. V 1982), implements FWPCA § 311. Most of Exec. Order No. 11735 will need to be amended to carry out the revisions contained in the OPA.

36. For example, in § 1(a)(3) of Exec. Order No. 12580 (implementing Superfund), the chairperson of the regional response teams is determined by whether the release occurs in the inland or coastal zone.

37. On-Scene Coordinators and Remedial Project Managers: General Responsibilities, 40 C.F.R. § 300.120 (1990). The "inland zone" is defined at 40 C.F.R. § 300.5 for response purposes as "the environment inland of the coastal zone excluding the Great Lakes and specified ports and harbors on inland rivers." The "coastal zone" is defined at 40 C.F.R. § 300.5 as "all United States waters subject to the tide, United States waters of the Great Lakes, specified ports and harbors on inland rivers, waters of the contiguous zone, other waters of the high seas subject to the NCP, and the land surface or land substrata, ground waters, and ambient air proximal to those waters."

38. See Exec. Order No. 11735, supra note 35, § 1(4). In implementing the OPA, it may be appropriate to delegate a number of the responsibilities relating to offshore facilities under DOI's jurisdiction to the DOI instead of to EPA to the extent the DOI regulates offshore oil exploration and leasing activities.

39. See id. § 2. The agencies have set out the distinctions between these two types of facilities in a memorandum of understanding, the relevant portion of which is published as an appendix to 40 C.F.R. pt. 112 (1990).

40. The main components of the response framework are set out in Subpart B of the NCP, including the responsibilities of the National Response Team (40 C.F.R. § 300.110 (1990)), Regional Response Team (40 C.F.R. § 300.115 (1990)), and On-Scene Coordinators (40 C.F.R. § 300.120 (1990)). FWPCA § 311(j)(1)(A) was not amended by the OPA.

41. One change that appears unintended, but which could have a dramatic impact on the FWPCA § 311 program, arises from a slight change in the language outlining the jurisdictional scope of this provision. FWPCA § 311(c)(1) still provides federal removal authority in response to discharges of oil or hazardous substances into navigable waters, onto adjoining shorelines to navigable waters, or into the waters of the exclusive economic zone. After listing these three water-related jurisdictional categories, the statute now continues with "or (iv) that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States." This last category is not tied to "waters" of any kind, and arguably could stretch § 311 authority to cover discharges occurring solely on dry land. Congress' attempt to clarify this provision by creating separate subparagraphs may have inadvertently changed the entire scope of the program.

42. By adding this new language to the FWPCA, the OPA appears to limit to some extent the President's discretion to respond to a discharge and introduces a feature not found in the CERCLA model.

43. See OPA § 1011, ELR STAT. OIL POLL. 008. This consultation appears to be a prerequisite to considering a removal action to have been completed.

44. See OPA § 4201, ELR STAT. OIL POLL. 016, and § 4306, ELR STAT. OIL POLL. 022, amending FWPCA § 311(c), (e), ELR STAT. FW-PCA 044, 045.

45. It is not clear how Congress intended the standard in FWPCA § 311(c), which requires the federal government to take over removal actions where a "substantial threat to the public health and welfare" exists, to interface with the federal government's amended authority under FWPCA § 311(e) to issue administrative orders and take judicial action where "there may be an imminent and substantial threat to the public health or welfare" (emphasis added).

46. See Criteria for State, Local, and Regional Oil Removal Contingency Plans, 40 C.F.R. pt. 109 (1990). The criteria include descriptions of appropriate authorities and responsibilities of relevant agencies, notification procedures, availability of equipment and other resource capabilities, and response and coordination procedures.

47. See Federal Contingency Plans, 40 C.F.R. § 300.210 (1990).

48. See OPA § 4202(b), ELR STAT. OIL POLL. 019.

49. See OPA § 4202(a)(6), ELR STAT. OIL POLL. 018. In addition, the President continues to have authority under FWPCA § 311(j)(1)(D) to inspect vessels carrying oil and hazardous substances and their cargoes.

50. OPA § 1001(32), 33 U.S.C. § 2701(31), ELR STAT. OIL POLL. 004, provides an extensive definition of "responsible part[ies]" that includes owners, operators, licensees, and permittees of a variety of vessels and facilities. This definition is also incorporated into the revised federal removal authority by FWPCA § 311(c)(6).

51. OPA § 1001(31), 33 U.S.C. § 2701(31), ELR STAT. OIL POLL. 004, defines the "purposes of this Act." Under the OPA, "removal costs" means those costs incurred after a discharge — or substantial threat of discharge — of oil has occurred, including prevention, minimization and mitigation expenses. OPA § 1001(30) defines "removal" to mean actions taken to contain and clean up discharges, as well as "the taking of other actions as may be necessary to minimize or mitigate damage to the public health or welfare." This definition is consistent with the new definition of "removal" in FWPCA § 311, as amended by OPA § 4201(b). Interestingly, the definition of "removal" in OPA § 1001(30) applies to both oil and hazardous substances, even though title I of the act focuses on oil discharges only.

52. See OPA § 1001(5), 33 U.S.C. § 2701(5), ELR STAT. OIL POLL. 004.

53. See 42 U.S.C. § 9607(b), ELR STAT. CERCLA 025. Defenses include an act of God, an act of war, or an act or omission of certain third parties.

54. OPA § 1003(c)(3), ELR STAT. OIL POLL. 005. As in CERCLA §§ 106(b)(1) and 107(c)(3), "sufficient cause" on the part of the responsible party may excuse such refusal or failure to comply with an administrative order or directive. The sufficient cause defense is intended to preclude assessment of penalties when a party demonstrates it has an objective, reasonable belief that it was not responsible for the discharge or that the action required by the order or directive is inconsistent with the NCP. See Solid State Circuits v. U.S. EPA, 812 F.2d 383, 17 ELR 20453 (8th Cir. 1987). This could arise if key facts are in question when the order or directive is issued, if the responsible party does not have the financial or technical resources to comply, or if no technological means exist for achieving compliance. The sufficient cause defense also tempers several other OPA provisions, including § 1004's exception to liability limits and § 4301(b)'s imposition of civil penalties for failure or refusal to comply with an order or directive, amending FWPCA § 311(b)(7)).

55. In addition to increasing applicable liability limits, Congress eliminated from play an archaic, potentially troublesome maritime statute. The 1851 Limitation of Liability Act, 46 U.S.C. § 183, passed in part to promote the growth of the country's merchant marine, essentially limits a vessel owner's liability to the value of the vessel after an accident occurs. Congress has resolved any lingering doubts about the applicability of the 1851 act to discharges of oil into waters of the United States by stating that it cannot be used to limit a responsible party's liability under applicable federal law (including RCRA) or state or local authorities, including common law. See OPA § 1018, ELR STAT. OIL POLL. 010.

56. OPA § 1004(c)(1)-(2), ELR STAT. OIL POLL. 006.

57. Id. at § 1004(d)(1), ELR STAT. OIL POLL. 006.

58. Id. at § 1004(d)(2), ELR STAT. OIL POLL. 006.

59. Id. at § 1004(d)(3), ELR STAT. OIL POLL. 006.

60. Id. at § 1004(d)(4), ELR STAT. OIL POLL. 006.

61. Functions in this category include a number of appointments to committees and advisory groups by the President. For example, the President is to appoint the federal representative to the Oil Terminal Facilities and Oil Tanker Operations Association operating in Prince William Sound pursuant to OPA § 5002(c). Additionally, the President may add federal representatives to the membership list Congress already specified for the Interagency Coordinating Committee on Oil Pollution Research in OPA § 7001, and is to select the members of the Presidential Task Force on the Trans-Alaska Pipeline System under OPA § 8103.

62. OPA § 4204 amends existing authority to make such determinations found in FWPCA § 311(b)(4) by adding "or the environment." For purposes of oil spills, EPA has issued regulations at 40 C.F.R. § 110.3 determining the quantity that may be harmful to be either a violation of applicable water quality standards or a discharge that creates a "film or sheen." The Fifth Circuit Court of Appeals recently upheld EPA's "sheen test" in Chevron, U.S.A., Inc. v. Yost, 919 F.2d 27, 21 ELR 20336 (5th Cir. 1990).

63. Interagency coordination is generally addressed in both Exec. Order No. 11735 (§ 6), implementing FWPCA § 311, and Exec. Order No. 12580 (§ 11(f)), 3 C.F.R. 193 (1987), reprinted in 42 U.S.C. § 9615 app. at 1356-59 (Supp. V 1982), implementing CERCLA. In addition, § 11(g) of the CERCLA executive order contains authority to redelegate certain assigned functions to heads of other federal agencies. A similar provision for the OPA may be appropriate, as well.

64. For purposes of CERCLA and FWPCA § 311, federal natural resource trustees designated by § 1(c) of Exec. Order No. 12580 [17 ELR 45031], include the Secretaries of Commerce, the Interior, and Agriculture. OPA § 1006(c) adds Indian tribes and foreign trustees to the two categories of natural resource trustees previously mentioned in FWPCA § 311(f)(5) (i.e., federal and state trustees).

65. For a complete discussion of the most recent revisions to the NCP, see Freedman, Proposed Amendments to the National Contingency Plan: Explanation and Analysis, 19 ELR 10103 (Mar. 1989); Starfield, The 1990 National Contingency Plan — More Detail and More Structure, But Still a Balancing Act, 20 ELR 10222 (June 1990).

66. The OPA area committees do not necessarily displace regional response teams, the response and planning bodies established under the current NCP. See 40 C.F.R. § 300.115 (1990). However, the exact relationship between regional response teams and area committees will need to be addressed in the next NCP revision.

67. Freedman, supra note 65, at 10105-07.

68. Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100 Stat. 1613 (1986), ELR STAT. CERCLA 001.

69. Previous revisions to the NCP, precipitated by legislative directives, occurred in 1973, 1982, and 1990.

70. OPA § 4201(c), ELR STAT. OIL POLL. 018.

71. Prior to the OPA, FWPCA § 311(c)(2) outlined the basic elements to be included in the NCP for FWPCA purposes, such as provisions addressing general duties and responsibilities, equipment and supplies, notification requirements, response procedures and techniques, use of dispersants, and reimbursement for removal costs by states. CERCLA § 105 requires the NCP to address similar points and methods for discovering, investigating, evaluating, and remediating releases of hazardous substances.

72. OPA § 4201(b), ELR STAT. OIL POLL. 017 (amending FWPCA § 311(d)(2)(I), ELR STAT. FWPCA 045).

73. Id. (amending FWPCA § 311(d)(2)(J), ELR STAT. FWPCA 045).

74. OPA § 4201(a), ELR STAT. OIL POLL. 016 (amending FWPCA § 311(c)(2), ELR STAT. FWPCA 045). This provision applies to discharges and substantial threats of discharges of both oil and hazardous substances. FWPCA § 311(c)(2) states that public health and welfare concerns include "fish, shellfish, wildlife, other natural resources, and the public and private beaches and shorelines."

75. H.R. CONF. REP. NO. 653, supra note 8, at 146.

76. S. REP. NO. 94, supra note 26, at 18-19. The Senate bill contained language similar to that adopted by the conference committee.

77. These two characteristics are mentioned in the conference committee report's discussion of facility response plans. See H.R. CONF. REP. NO. 653, supra note 8, at 150. As described infra in footnotes 98 through 113 and accompanying text, owners and operators must prepare response plans in situations where a discharge from their facility "could reasonably be expected to cause substantial harm to the environment." FWPCA § 311(j)(5). It is not clear whether Congress attached any significance to the slight difference in terminology between the response authority provision (i.e., "is of such a size or character as to be a substantial threat to the public health or welfare") and the facility response plan provision (i.e., "could reasonably be expected to cause substantial harm to the environment") (emphasis added).

78. H.R. CONF. REP. NO. 653,supra note 8, at 146. The Senate Committee on Environment and Public Works was equally concerned with recent federal response efforts: "The disaster caused by the nation's largest oil spill in Prince William Sound was exacerbated greatly by an unreasonably slow, confused and inadequate response by industry and government that failed miserably in containing the spill and preventing damage." S. REP. NO. 94, supra note 26, at 2.

79. OPA § 4201(b)(4), ELR STAT. OIL POLL. 018.

80. See FWPCA § 311(a)(24), ELR STAT. OIL POLL. 039. In addition to such atmospheric conditions as severe storms and floods, it may be appropriate to consider other variables directly influencing worst-case events. These might include seismic activity and unstable geologic formations, such as karst terrain and unstable foundation areas.

81. H.R. CONF. REP. NO. 653, supra note 8, at 147. The need for defining vessels and facilities differently is explained in the conference committee report as arising from the difficulty in determining what the entire contents of a facility are in certain circumstances (e.g., pipelines).

82. See OPA § 4202(a), ELR STAT. OIL POLL. 018. On the response side, the worst-case scenario also forms the basis of one of the responsibilities of the newly created Coast Guard National Response Unit, which is to "coordinate use of private and public personnel and equipment to remove a worst case discharge, and to mitigate or prevent a substantial threat of such a discharge." FWPCA § 311(j)(2)(C).

83. See Environmental Impact Statement Guidelines, 40 C.F.R. § 1502.22 (1990).

84. The requirement in the CEQ regulations for a worst-case analysis was upheld in Sierra Club v. Sigler, 695 F.2d 957, 13 ELR 20210 (5th Cir. 1983). That case involved a Corps of Engineers permit issued under FWPCA § 404 for a multipurpose deepwater port and crude oil distribution system in a sensitive wildlife and estuarine environment. The worst-case analysis required in that litigation centered on the total loss of a supertanker's cargo. The CEQ subsequently deleted the specific requirement in its regulations for a worst-case analysis, an action upheld by the U.S. Supreme Court in Robertson v. Methow Valley Citizens Council, 109 S. Ct. 1835, 19 ELR 20743 (1989).

85. 42 U.S.C. §§ 4321-4370a, ELR STAT. NEPA 001-014. Use of the word "foreseeable" in the OPA definition of worst-case spill may revive some of the concerns raised in the context of NEPA that defining the scope of a worst-case event requires a "crystal ball inquiry." See, e.g., Sigler, 695 F.2d at 970, 13 ELR at 20215.

86. Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 46 Fed. Reg. 18026, 18032 (1981).

87. See 40 C.F.R. § 300.910(a) (1990). The regulations provide a limited exception to this general rule, however, where the use of a product not on the schedule is needed to "prevent or substantially reduce a hazard to human life." Id. at § 300.910(c).

88. See 40 C.F.R. § 300.915 (1990).

90. OPA § 4201(b), ELR STAT. OIL POLL. 017.

91. H.R. CONF. REP. NO. 653, supra note 8, at 147. Since booms and skimmers are mechanical means to control oil spills and, as distinct from chemical and biological compounds, normally would not pose environmental hazards when used, there does not appear to be a need to evaluate their characteristics through the NCP Product Schedule process.

92. See OPA § 4201(b), ELR STAT. OIL POLL. 017 (amending FWPCA § 311(d), ELR STAT. FWPCA 045). Congress requires the consideration of fish and wildlife concerns in other contexts, as well. For example, the Army Corps of Engineers consults with the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and appropriate state agencies in carrying out civil works projects and issuing permits under § 404 of the FWPCA. This consultation, required under the Fish and Wildlife Coordination Act (16 U.S.C. § 662), is aimed at preventing direct and indirect loss and damage to fish and wildlife resources. See 33 C.F.R. §§ 320.4, 336.1 (1990).

93. Prior to enactment of the OPA, the FWPCA required the NCP to address establishment of specialized "strike teams"; the OPA has now clarified that these are to be composed of Coast Guard personnel. The role of Coast Guard strike teams currently is described in the NCP at 40 C.F.R. § 300.145 (1990).

94. Under FWPCA § 311(j)(2), as amended by the OPA, the National Response Unit is established in Elizabeth City, North Carolina, to act as a clearinghouse for available equipment and resources needed to respond to discharges, provide technical assistance to on-scene coordinators and area committees in carrying out their responsibilities, and to maintain copies of area contingency plans.

95. Each district response group is responsible for maintaining equipment and providing technical assistance to on-scene coordinators for response actions and to area committees in preparing contingency plans.

96. Under OPA § 4202(b)(1)(A), ELR STAT. OIL POLL. 019, this designation process was to be completed by February 18, 1991. However, the deadline was not met due to the fact that the OPA executive order had not been signed at that time.

97. These criteria are taken from § 432 of the House Merchant Marine and Fisheries Committee version of the House bill, which was incorporated into H.R. 1465. The House language in large part provided the framework for area committees. The Merchant Marine and Fisheries Committee report specifically refers to the Long Island Sound, New York Harbor, and the Hudson River region as an area that would satisfy the statutory criteria for designation, "[i]n light of the number of spills, and environmental and economic damage such spills cause." H.R. REP. NO. 242, 101st Cong., 1st Sess., pt. 2, at 85 (1989). Another example of an appropriate designation "would be an area in which a port or ports and unloading and loading facilities are located in the same general vicinity and would be in a position to respond to a spill from a vessel or facility in that area." See id., pt. 1, at 40.

98. These criteria were listed in § 202 of the House Committee on Public Works and Transportation version of the House bill. The conference committee chose not to include any designation criteria in the statute, and dropped the requirement in the House versions that designations be made in consultation with state and local governments and the public.

99. See OPA § 4202(a)(6), ELR STAT. OIL POLL. 018 (amending FWPCA § 311(j)(4)(A), ELR STAT. FWPCA 047, to provide that the members of these committees shall be appointed by the President, from appropriate federal, state, and local agencies).

100. See FWPCA § 311(j)(4)(C), ELR STAT. FWPCA 047. In this regard, "[t]he plan could include cooperative agreements for assistance on a reciprocal or reimbursable basis, the sharing of expenses for the shortage [sic] and maintenance in the area of response equipment, the training of personnel for response actions, and the like." H.R. REP. NO. 242, supra note 97, pt. 1, at 40.

101. See OPA § 4202(a)(6), ELR STAT. OIL POLL. 018 (amending FWPCA § 311(j)(5), ELR STAT. FWPCA 047). The President's responsibilities under this section are most likely to be delegated to the EPA for nontransportation-related facilities and to the Coast Guard for vessels and transportation-related facilities.

102. See 40 C.F.R. pt. 112 (1990).

103. 40 C.F.R. § 112.7(d) (1990). The contingency plan is to be consistent with the criteria set forth in 40 C.F.R. pt. 109 (1990); see supra note 46.

104. See 33 C.F.R. § 154.310 (1990).

105. FWPCA § 311(j)(5)(D), ELR STAT. FWPCA 047. Congress did not elaborate on the intended distinctions between a discharge that could cause "significant and substantial harm to the environment" under this section and one posing a"substantial threat to the public health and welfare" under § 311(c). However, the conference committee report indicates that the requirement for facility response plans "should be applied broadly," since "even small discharges from an onshore facility could result in substantial harm under certain circumstances." H.R. CONF. REP. NO. 653, supra note 8, at 150.

106. FWPCA § 311(j)(5)(D), ELR STAT. FWPCA 047. By the express terms of the statute, this provision applies only to facilities and vessels handling oil.

107. FWPCA § 311(j)(5)(E), ELR STAT. FWPCA 047.

108. See H.R. CONF. REP. NO. 653, supra note 8, at 150. The report also states that "the selection criteria should not necessarily omit those smaller facilities that are near major drinking water supplies or that are near environmentally sensitive areas." In determining what are environmentally sensitive areas, consideration of fisheries, wildlife, and other natural resources would be appropriate.

109. FWPCA § 311(j)(8), ELR STAT. FWPCA 047.

110. FWPCA § 311(j)(5)(C)(iii), ELR STAT. FWPCA 047 (emphasis added).

111. Id. The House Merchant Marine and Fisheries Committee report indicates that "[p]rivate contractors will play an important part in enabling vessels to meet their responsibilities under this Act" with regard to this requirement. H. REP. NO. 242, supra note 97, pt. 2, at 87.

112. H.R. CONF. REP. NO. 653, supra note 8, at 150.

113. Section 204 of the Senate bill would have required the owner or operator to be more self-sufficient in this regard. Under the Senate approach, the plan was to be capable of "removing oil and minimizing any damage to the environment resulting from a worst case discharge" from a vessel "promptly and properly" and "to the maximum extent practicable … without the active participation of any Federal personnel or equipment" (emphasis added). For cases involving a "maximum probable spill," the plan was to demonstrate cleanup capability "entirely without the active participation of any Federal personnel or equipment" (emphasis added).

114. These regulations are due to be published in August 1992. See OPA § 4202(b)(4), ELR STAT. OIL POLL. 019.

115. FWPCA § 311(j)(5)(C)(vi), ELR STAT. FWPCA 047.

116. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-050.

117. Superfund Amendments and Reauthorization Act of 1986, title III, 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA 001-012.

118. Pub. L. No. 91-596, 84 Stat. 1590 (1970).

119. See H.R. CONF. REP. NO. 653, supra note 8, at 151.

120. OPA § 4301(a), (c), ELR STAT. OIL POLL. 020-21.

121. See OPA § 6001(d), ELR STAT. OIL POLL. 027.

122. For both of these enforcement authorities, and the authority to file a collection action if an administrative civil penalty is not paid, the OPA specifies that the Attorney General shall file the action. Interestingly, no such assignment is made to the Attorney General in FWPCA § 311(b)(7) civil penalty actions. Arguably, EPA and the Secretary of Transportation could seek such civil penalties directly without requesting the Attorney General to file on behalf of the United States. This issue may also be addressed in the executive order.

123. OPA § 4303, ELR STAT. OIL POLL. 022.

124. Both CERCLA § 106 and RCRA § 7003 authorize administrative and judicial actions to confront situations giving rise to an "imminent and substantial endangerment" to public health, welfare, and the environment. For all practical purposes, the CERCLA/RCRA standard is essentially the same as the amended FWPCA § 311(e) provision ("imminent and substantial threat to the public health or welfare"). It is interesting to note, however, that Congress in OPA § 4202 broadened the scope of FWPCA § 311(b)(4) by adding the words "or the environment" to the existing FWPCA standard of "public health and welfare," but did not make conforming language changes to § 311(c) and (e). Nonetheless, examples of public health or welfare specifically included in FWPCA § 311(e) (i.e., "including fish, shellfish, and wildlife, public and private property, shorelines, beaches, habitat, and other living and nonliving natural resources") appear to cover many environmental values, and the nonexhaustive nature of the list leaves the door open to address other environmental concerns.

125. Congress in OPA § 4302 also amended a number of other enforcement provisions in statutes governing maritime operations under the jurisdiction of the Secretary of Transportation. These include provisions in the Deepwater Port Act (33 U.S.C. § 1514(a)), the Act to Prevent Pollution From Ships (33 U.S.C. § 1908(a)), the Intervention on the High Seas Act (33 U.S.C. § 1481(a)), and the Ports and Waterways Safety Act (33 U.S.C. § 1232(b)).

126. FWPCA § 311(b)(11) provides that civil penalties cannot be assessed under both § 311 and § 309 for the same discharge.

127. FWPCA § 311(b)(6)(B)(i), ELR STAT. FWPCA 043.

128. FWPCA § 311(b)(6)(B)(ii), ELR STAT. FWPCA 043. Initiation of Class II administrative proceedings bars parallel administrative action under FWPCA § 309(g) and judicial action for civil penalties under FWPCA § 309(d) and § 505 (citizen suit provision).

129. FWPCA § 311(b)(6)(C), ELR STAT. FWCPA 043.

130. Where the discharge results from gross negligence or willful misconduct, the limits are increased to a minimum of $ 100,000 per day of violation, up to a maximum of $ 3,000 per barrel or unit of reportable quantity. FWPCA § 311(b)(7)(D), ELR STAT. FWPCA 044. EPA has published regulations establishing reportable quantities for hazardous substances for purposes of FWPCA § 311 at 40 C.F.R. pt. 117 (1990).

131. FWPCA § 311(b)(7)(C), ELR STAT. FWPCA 044.

132. See OPA § 4304, ELR STAT. OIL POLL. 022.

133. See 40 C.F.R. pt. 22 (1990).

134. EPA has issued one set of streamlined procedures in 40 C.F.R. pt. 24 (1990), which governs hearings for corrective action orders issued under RCRA § 3008(h). These procedures were upheld in Chemical Waste Management, Inc. v. U.S. EPA, 873 F.2d 1477, 19 ELR 20868 (D.C. Cir. 1989). In addition, EPA intends to propose new regulations providing informal hearing procedures for class I violations under several federal environmental statutes, including CERCLA, the FWPCA, the Safe Drinking Water Act, and the Emergency Planning and Community Right-to-Know Act. These procedures will be codified at 40 C.F.R. pt. 26.

135. See 33 C.F.R. § 1.07 (1990).

136. FWPCA § 311(b)(6)(B)(ii), ELR STAT. FWPCA 043, requires notice and hearing procedures for class II penalty assessments to be consistent with § 554 of the Administrative Procedure Act.

137. See FWPCA § 311(b)(8), ELR STAT. FWPCA 044.

138. The existing memorandum of understanding was published in the Federal Register on August 29, 1979 (44 Fed. Reg. 50785).

139. International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, 26 U.S.T. 765, T.I.A.S. No. 8068, 973 U.N.T.S. 3; and International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, Dec. 18, 1971, 11 I.L.M. 284 (Mar. 1972). The United States has not ratified these two original treaties dealing with oil spill liability and compensation. The failure to ratify the original treaties and the 1984 protocols undermines, to some degree, the ability of the United States to play a lead role in developing international agreements on other significant environmental issues.

140. The 1984 protocols would cap liability at nearly 60 million "units of account." Units of account fluctuate depending on the relative value of certain key world currencies. As of 1991, one unit of account is worth approximately $ 1.40.

141. OPA § 1004(d) incorporates an adjustment mechanism into its financial responsibility regulatory structure, using the Consumer Price Index as a reference point.

142. See OPA § 1018, ELR STAT. OIL POLL. 010 (relationship to other law); OPA § 4202(c) ELR STAT. OIL POLL. 019 (state law not preempted).

143. For example, in cases where the responsible party was negligent in causing the discharge, the liability framework could provide that the protocols' cap on liability could be exceeded once the international fund's limits have been exhausted in response to claims made for that discharge.

144. There was a title in S. 1066, introduced by Sen. Chafee (R-R.I.) and referred to the Environment and Public Works Committee, that would have implemented the 1984 protocols. That provision, however, was not incorporated into S. 686, the bill the Senate passed.

145. H.R. 1465, 101st Cong., 1st Sess. § 3002(a) (1989).

146. OPA § 3001, ELR STAT. OIL POLL. 011.

147. A parallel effort to design an international regime addressing liability and compensation for releases of hazardous substances is also being actively developed under the auspices of the International Maritime Organization (IMO). The two issues raised as obstacles in the context of the 1984 protocols may well generate similar concerns when the IMO treaty is submitted to the Senate for ratification.

148. Statement by President of the United States, 5 U.S. CODE CONG. & ADMIN. NEWS 861-1 (Nov. 1990). When signing the bill into law, President Bush noted that this provision, as written, "could be construed to infringe on my constitutional authority over the conduct of diplomacy by requiring me to take certain actions with respect to international organizations." The President went on to construe the language as "advisory" in nature.

149. 30 I.L.M. 733 (May 1991). Over 90 countries participated in the conference.

21 ELR 10605 | Environmental Law Reporter | copyright © 1991 | All rights reserved