Wyatt Fisher

3/16/16
H221 C

The Executive and Oil Spill Policy

Petroleum remains one of the most ubiquitous, life changing substances the world’s

societies are dependent on. From plastics to jet fuel, the far-flung potential uses of refined

petroleum easily explain the global demand for oil. Unfortunately, oil being spilled into the

environment, marine environments especially, can result in sublethal and even lethal impacts on

human and other animal individuals, populations, and ecosystems. State and national

legislatures, as well as international agreements, prescribe regulations for the production of oil

and how to respond when it is spilled in an effort to mitigate these effects. However, legislation

and agreements must be translated into policy by the executive to have an appreciable effect. At

the helm of the executive branch of the federal government of the United States of America is the

President. As legislation and international agreements allow for a degree of interpretation in

implementation, the details of the implementation are important to understanding the impact of

these regulations. This paper will seek to answer the question: What are the main sources of

regulation for oil production and oil spill response as they pertain to the United States, and how

are these regulations implemented through the executive branch and its agencies? Core to the

answer to this question is Section 300.2 of the National Oil and Hazardous Substances Pollution

Contingency Plan (NCP), which serves as the regulatory framework through which the President

delegates responsibility for preventing and responding to oil spills to various federal and state

agencies.

Legal Basis
The 1972 Clean Water Act (CWA), as amended by the 1990 Oil Pollution Act (OPA), and

the 1980 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

together form the core of the modern American framework for oil pollution legislative

regulation.

The CWA, the legislative response to the Argo Merchant grounding, sought to mitigate

water pollution through oil and other hazardous materials by prohibiting their discharge in

American navigable waters, empowering the President to determine and thus regulate the

quantity of oil that when discharged “will be harmful to the public health or welfare of the

United States, including, but not limited to, fish, shellfish, wildlife, and public and private

property, shorelines, and beaches” (CWA, 2002, § 311 (c) (4)), as well as to sue responsible

parties (RP) of oil spills to pay punitive charges. It further empowered the President, in the case

of an oil spill, “to act to remove” the oil unless the President deems the RP competent to clean it

up (CWA, 2002, § 311 (c) (1)). The CWA also reiterated the goals of the NCP to “provide for

efficient, coordinated, and effective action to minimize damage from oil and hazardous substance

discharges, including containment, dispersal, and removal of oil” (CWA, 2002, § 311 (c) (2)).

Many characteristics of the NCP clearly reflect the intent of this legislation, including the

establishment of a National Response Center (CWA, 2002, § 311 (c) (2) (E)), and the attention

paid to resources at risk and the spill response tools most effective in protecting those resources

(CWA, 2002, § 311 (c) (2) (G)).

CERCLA was passed in 1980 to address growing concerns about abandoned hazardous

waste sites (including oil spill sites) and the ability of the government to adequately respond to

and cleanup these sites. Through CERCLA, a federal “superfund” was established through an

added tax on oil and chemical companies to fund cleanup efforts where responsible parties
abandoned sites (Superfund Title II), though Congress has since allowed this tax to expire

(Broder, 2009), thus depleting the funds (USA GAO, 2015). However, through CERCLA the

Environmental Protection Agency (EPA) was designated as the primary agency responsible for

ensuring cooperation of responsible parties in cleanup efforts, and this regulation remains.

Furthermore, CERCLA required an update of the NCP to include specific guidelines on

hazardous waste disposal (CERCLA, 2002, § 105 (a)) and the establishment of a National

Priority List for sites necessitating long-term cleanup engagement (CERCLA, 2002, § 105 (a)

(8)) using a Hazard Ranking System to be formulated by the EPA based on risk to human health

and the environment (CERCLA, 2002, § 105 (c)).

Following the 1989 Exxon Valdez oil spill in Prince William Sound, Alaska, Congress

passed the Oil Pollution Act in 1990. The act sought to represent a comprehensive federal

response to the regulatory failings surfaced by Exxon Valdez. Thus, the OPA imposed stricter

requirements for the NCP to establish Area Committees with more local contingency plans

(OPA, 2000, § 4202 (b) (1)) and directed the President to develop regulations regarding response

planning on vessels and facilities handling oil (OPA, 2000, § 4202 (b) (4)). It further imposed

regulations on vessel design, requiring certain Coast Guard vessels to be fitted with oil skimmers

(OPA, 2000, § 4203) and requiring all tankers over 5,000 tons to have double hulls by 2015

(OPA, 2000, § 4115). In addition to these measures, OPA imposed a broad range of other

regulatory frameworks with the effect of enhancing response capabilities at all levels, broadening

enforcement authorities, and expanded financial responsibilities and liabilities for responsible

parties (OPA, 2016).

Together, these pieces of legislation laid out the groundwork for the federal regulatory

framework for policies related to oil production and spill cleanup. However, policy means little
without being put to practice. In the United States, it is the responsibility of the chief executive

through the various federal agencies to translate legislation to implementable policies through

rules and processes. Although bills at times specify the agency responsible for implementation,

as in the case of many parts of CERCLA as regards the EPA, other bills delegate the task of

delegation to the President, as in the case of the CWA, which states “The President is authorized

to delegate the administration of this section to the heads of those Federal departments, agencies,

and instrumentalities which he determines to be appropriate” (CWA, 2002, § 311 (k) (1)).

Implementation

According to the EPA, the National Oil and Hazardous Substances Pollution Contingency

Plan “is the federal government's blueprint for responding to both oil spills and hazardous

substance releases [and] is the result of efforts to develop a national response capability and

promote coordination among the hierarchy of responders and contingency plans,” (NCP

Overview, 2016). The NCP is incorporated into official federal government executive policy as

Title 40, Part 300 of the Code of Federal Regulations (CFR). Among those federal agencies

called upon by the NCP are those housed within the Departments of Defense (40 CFR § 300.175

(b) (1), (4)), Transportation (40 CFR § 300.175 (b) (1), (12)), Homeland Security (40 CFR §

300.175 (b) (3)), Energy (40 CFR § 300.175 (b) (5)), Agriculture (DOA) (40 CFR § 300.175 (b)

(6)), Commerce (40 CFR § 300.175 (b) (7)), Health & Human Services (HHS) (40 CFR §

300.175 (b) (8)), Interior (40 CFR § 300.175 (b) (9)), Justice (40 CFR § 300.175 (b) (10)), Labor

(40 CFR § 300.175 (b) (11)), and State (40 CFR § 300.175 (b) (13)), as well as the EPA (40 CFR

§ 300.175 (b) (2)) and state governments (40 CFR 300.180). Together, the subsidiary agencies of

these departments represent the executive branch’s implementation mechanism of the NPC in
accordance with the CWA, CERCLA, OPA, and other relevant legislation. While many of the

departments’ involvement mostly remains advisory in nature, some agencies play critical roles in

oil spill response.

The USCG and EPA remain at the center of NCP response plans, with the EPA

responsible for inland waters and the Coast Guard responsible for coastal waters (Regulatory

Information, 2016). Unless in a time of war, the USCG acts under the authority of the

Department of Transportation in oil spill response, while the EPA remains an independent federal

agency, although not technically Cabinet-level. The EPA is additionally responsible for amending

the NCP, among other leading roles, while Area contingency planning responsibility is divided

by inland or coastal zone to the EPA and USCG. The USCG’s main responsibilities through the

NCP are to maintain “facilities which can be used for command, control, and surveillance of oil

discharges” (40 CFR § 300.175 (b) (1)) along the US coasts, most clearly demonstrated through

its maintenance of the National Response Center, through which the NCP is activated (National

Response Center, 2015). Complementarily, the EPA “provides expertise on human health and

ecological effects of oil discharges [...]; ecological and human health risk assessment methods;

and environmental pollution control techniques” (40 CFR § 300.175 (b) (2)). Further regulatory

control is divided among the various Department Secretaries and Agency Administrators most

relevant to the roles, as determined by the President (Executive Order 12777). The rest of this

paper will address those other agencies most involved in oil spill response.

The Department of Commerce, through the National Oceanic and Atmospheric

Administration (NOAA) contributes:

“scientific support for response and contingency planning in coastal and marine areas,

including assessments of the hazards that may be involved, predictions of movement and
dispersion of oil and hazardous substances through trajectory modeling, and information

on the sensitivity of coastal environments to oil and hazardous substances and associated

clean-up and mitigation methods; provides expertise on living marine resources and their

habitats, including endangered species, marine mammals and National Marine Sanctuary

ecosystems; provides information on actual and predicted meteorological, hydrological,

ice, and oceanographic conditions for marine, coastal, and inland waters, and tide and

circulation data for coastal and territorial waters and for the Great Lakes.”

NOAA’s significant contributions to the NCP’s implementation include GNOME, a forecasting

tool, ADIOS, an oil weathering model, and Environmental Sensitivity Index maps (Oil Spills,

2016). These tools in addition to others NOAA provides help the USCG and EPA determine

appropriate and effective responses to mitigate the effects of oil spills. Additionally, NOAA in

conjunction with the Food and Drug Administration (FDA), a subsidiary agency of the HHS,

monitors seafood and other marine products following an oil spill to ensure fisher and consumer

health. An important administrative step of this Seafood Inspection Program is to close and upon

cleanup reopen fisheries, which only NOAA has the legislative authority to do so (Overview of

Testing, 2015).

HHS is further involved in oil spill response through several of its subsidiary agencies.

Where an oil spill requires human evacuation or other technical assistance on prevention and

mitigation, the Centers for Disease Control has “a 24-hour emergency response capability

wherein scientific and technical personnel are available” (40 CFR § 300.175 (b) (8) (i)).

Furthermore, the National Institutes of Health focuses on oil spill cleanup workers’ health

through training (40 CFR § 300.175 (b) (8) (iii)) and long-term monitoring (NIH Still Active,

2015).
Where the the Departments of Commerce and HHS are focused on immediate response

and the human effects of oil spills, the Department the Interior is more focused on natural

resources. Under the Department of the Interior, the Fish and Wildlife Service (FWS) Natural

Resource Damage Assessment and Restoration (NRDAR) Program seeks to restore any damaged

or destroyed wildlife following an oil spill. The NRDAR seeks to identify natural resources

injured, the extent to which they were injured, and then using this information hold responsible

parties accountable for the costs of cleanup (FWS Deepwater Horizone, 2012). Furthermore, the

DOA supports FWS’s efforts through its Forest Service resources to help monitor natural

resources, particularly migratory birds whose habitats may be affected by oil spills, and

identifying animals who may have been oiled. The DOA also conducts assistance programs for

communities affected by oil spills. As oil spills can have severe adverse consequences on coastal

communities, the DOA Food and Nutrition Service can provide food assistance for families

experiencing food insecurity due to job loss or other reasons for sudden income loss, while its

Rural Housing Service can offer options to families seeking emergency housing (BP Gulf Oil

Spill, 2011).

While some might see international agreements as sources of further regulation for oil

production and spill response, the Department of State is unlikely to enter agreements that do not

already align with American policy, as the executive does not have legislative authority on these

matters. However, international agreements nonetheless can provide the impetus for policy

making in those areas that serve American security and other interests. The agreements most

salient to the topic of this paper to which the United States has agreed are the 1969 International

Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties

(Intervention Convention) and the 1990 International Convention on Oil Pollution Preparedness,
Response and Cooperation (OPRC). The Intervention Convention allows for states to intervene

in international waters to prevent, mitigate, or eliminate oil from spilling into their waters, while

the OPRC requires states to establish national response plans for spills, to stockpile oil spill

response equipment, and to assist one another in times of emergency (Summary of IMO

Conventions). The timing and contents of these agreements are illustrative of the reasoning for

entering them. Both correspond similarly to major oil spills, Torrey Canyon and Exxon Valdez,

and both were entered around the same time as more comprehensive American legislation

regarding related domestic topics. When viewed with this understanding, it is clear that entering

these agreements were self-interested efforts by the United States to induce their neighbors to

follow similar regulatory frameworks, hoping to mitigate risks of international oil spill incidents

and the potentially confusing aftermaths of such crises.
References

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