The Coast Guard issued a Notice of Inquiry ("NOI") on November 1, 2011 inviting the public to comment on the current Oil Pollution Act of 1990 ("OPA 90") claims procedures and whether certain pre-OPA 90 regulations should be removed. In addition, the Coast Guard is requesting background information and cost data as it is developing a supplemental notice of proposed rulemaking ("SNPRM") that will propose amendments to a 1992 Interim Rule setting forth OPA 90 claims procedures. The NOI includes 37 specific questions that the Coast Guard considers inadequately answered in 1992 or not addressed at all at the time. Comments are due by January 30, 2012. The NOI can be accessed at: http://www.gpo.gov/fdsys/pkg/FR-2011-11-01/pdf/2011-28189.pdf.
Under OPA 90, responsible parties for a vessel or facility from which oil is discharged, or which poses a substantial threat of discharge, into the waters of the United States, adjoining shorelines, or the exclusive economic zone are strictly liable, jointly and severally, for the resulting oil removal costs and damages up to their limits to liability, absent certain exceptions. The responsible party is the owner or operator of a vessel, pipeline or onshore facility, the lessee of an offshore facility, or the licensee of a deepwater port. Any individual or entity that sustains damages due to the discharge of oil prohibited under OPA 90 or has uncompensated costs related to removal actions may file a claim for such damages and removal costs. OPA 90 sets forth the procedures claimants must follow in order to receive compensation for removal costs and damages.
Generally, claims for OPA 90 removal costs and damages must first be presented to the responsible party of the designated source. If the claim is denied or is not settled within 90 days by the responsible party, then the claimant may commence an action in court or present a claim for the uncompensated removal costs and damages to the Coast Guard's National Pollution Funds Center for payment by the Oil Spill Liability Trust Fund (the "Fund"). OPA 90 requires that the procedures for advertising source designations and for presenting, filing, processing, settling, and adjudicating claims against the Fund for removal costs and damages be established by regulation, which the Coast Guard began through an Interim Rule published on August 12, 1992.
The Interim Rule
The Interim Rule established the OPA 90 Claims Procedures and amended the Outer Continental Shelf Lands Act ("OCSLA") regulations. OCSLA established an oil spill liability, compensation, and financial responsibility regime for the Outer Continental Shelf that was mirrored by OPA 90. Among other things, the Interim Rule set forth the requirements concerning designation of the source of a discharge, procedures for responsible parties to deny a source designation or advertise a source designation, and procedures for presenting and processing claims directed towards a responsible party and the Fund. The Interim Rule also removed oil source designation and claims advertising regulations from the OCSLA regulations, which established an oil spill liability, compensation, and financial responsibility regime for the Outer Continental Shelf, because they conflicted with OPA 90. OPA 90 repealed this portion of OCSLA (Title III), but expressly provided that certain regulations created under Title III should remain in place until repealed, amended, or superseded.
An opportunity for public comment on the Interim Rule provided in 1992 did not lead to a final rule and the Interim Rule has remained in effect for over 19 years. The Coast Guard is now developing an SNPRM to finalize the Interim Rule and remove all remaining OCSLA regulations it considers to have been superseded by other regulations. Some of the superseded OCSLA regulations include those addressing financial responsibility for a vessel, requirements of persons in charge of a vessel or facility to report pollution incidents, and access to vessels, denial of entry, and detention. The Interim Rule can be accessed at: http://www.regulations.gov/#!documentDetail;D=USCG-2004-17697-0001.
The Notice of Inquiry
Now that the OPA 90 Claims Procedures have been in effect for 19 years, the Coast Guard recognizes that they should be amended to address gaps and clarify various provisions. Before publishing an SNPRM, however, the Coast Guard would like the public's views based on its experience over the years.
To assist with providing comments, the Coast Guard has provided two Excel format matrix documents available for download—the 1992 Comments Matrix and the NOI Questions Matrix. As noted, there are 37 specific questions categorized as follows: 1) questions concerning the interest in the rulemaking; 2) questions concerning the 1992 comments on the interim rule; 3) questions concerning the claims procedures; 4) questions concerning removing of the OCSLA rule; 5) questions concerning the regulatory analysis for the rulemaking; and 6) other issues.
Conclusion and Recommendations
The OPA 90 claims procedures affect anyone who could potentially suffer damages or uncompensated removal costs as the result of a discharge of oil in U.S. waters. Comments received by the Coast Guard in response to the NOI will likely affect the substance of the SNPRM, therefore your experience with the claims procedures, requirements, and deadlines will be important and constructive. The Coast Guard is particularly interested in the public's experience with the claims procedures arising from the 2010 Deepwater Horizon oil spill. Comments to the Coast Guard are due by January 30, 2012.