Oil Spill Legislation in the 111th Congress

Oil Spill Legislation in the 111th Congress

name redacted

Specialist in Environmental Policy

November 3, 2010

Congressional Research Service

7-....

www.crs.gov

R41453

CRS Report for Congress

Prepared for Members and Committees of Congress

Oil Spill Legislation in the 111th Congress

Summary

This report summarizes provisions of selected legislation—enacted and proposed—that addresses

oil spill policy issues raised after the April 20, 2010, explosion and resulting oil spill at the

Deepwater Horizon drilling platform in the Gulf of Mexico.

The 2010 Gulf oil spill has generated considerable interest in oil spill issues. The House of

Representatives has conducted at least 33 hearings in 10 committees. The Senate has conducted at

least 30 hearings in eight committees. Members have introduced over 150 legislative proposals

that have included one or more provisions that would affect oil spill policy.

As of the date of this report, President Obama has signed three bills into law that include oil spill

provisions. Provisions in these bills are generally short-term matters that will not have a lasting

impact on oil spill governance. However, H.R. 3619, the Coast Guard Authorization Act for

Fiscal Years 2010 and 2011, which the President signed October 15, 2010 (P.L. 111-281), includes

more substantial changes.

In addition to the enacted legislation, the House has passed several bills, including H.R. 3534, the

Consolidated Land, Energy, and Aquatic Resources Act (CLEAR Act), that include multiple oil

spill policy provisions. The Senate has comparable bills on its Legislative Calendar, but has not

voted on their passage.

This report focuses primarily on oil spill policy matters that concern prevention, preparedness,

response, and the liability and compensation framework. For the most part, the underlying

statutes for these provisions are found in either the Oil Pollution Act of 1990 (P.L. 101-380; 33

U.S.C. 2701 et seq.) or the Clean Water Act and its amendments (33 U.S.C. 1251 et seq.). In

general, this report does not address legislation that would alter the organizational structure of the

former Minerals Management Service (MMS) or legislation that would affect the offshore leasing

process.

Congressional Research Service

Oil Spill Legislation in the 111th Congress

Contents

Introduction ................................................................................................................................1

Tables

Table 1. Enacted Oil Spill Legislation .........................................................................................2

Table 2. Passed or Reported Legislation in the House ..................................................................4

Table 3. Passed or Reported Legislation in the Senate..................................................................9

Table 4. Summary of Selected Oil Spill Policy Provisions of H.R. 3534 .................................... 11

Table 5. Summary of Selected Oil Spill Policy Provisions of S. 3663 ........................................ 17

Contacts

Author Contact Information ...................................................................................................... 25

Congressional Research Service

Oil Spill Legislation in the 111th Congress

Introduction

On April 20, 2010, an explosion occurred at the Deepwater Horizon drilling platform in the Gulf

of Mexico, resulting in 11 fatalities. The incident disabled the facility and led to a full evacuation

before the platform sank into the Gulf on April 22. A significant release of oil at the sea floor was

soon discovered. According to the National Incident Command’s Flow Rate Technical Group

estimate of August 2, 2010, the well released approximately 206 million gallons of oil (4.9

million barrels) before it was contained July 15, 2010.1

The 2010 Gulf oil spill has generated considerable interest in oil spill issues. The House of

Representatives has conducted at least 33 hearings in 10 committees. The Senate has conducted at

least 30 hearings in eight committees. Members have introduced over 150 legislative proposals

that include one or more provisions that would affect oil spill policy.

This report focuses primarily on oil spill policy matters that concern prevention, preparedness,

response, and the liability and compensation framework. For the most part, the underlying

statutes for these provisions are found in either the Oil Pollution Act of 1990 (P.L. 101-380; 33

U.S.C. 2701 et seq.) or the Clean Water Act and its amendments (33 U.S.C. 1251 et seq.). In

general, this report does not address legislation that would alter the organizational structure of the

former Minerals Management Service (MMS) or legislation that would affect the offshore leasing

process.2

This report highlights oil spill provisions in enacted legislation, legislation that has passed one of

the chambers, and legislation that has received committee action: reported or ordered to be

reported from a committee. This last group also includes bills that have been placed on the

Senate’s Legislative Calendar.3 In addition, this report provides a more comprehensive summary

of two selected bills in Congress, both of which contain a substantial number of oil spill policy

provisions. This information is captured in the following tables:

•

Table 1 identifies enacted legislation.

•

Table 2 identifies legislation that has either passed the House or been reported

from a House committee.

•

Table 3 identifies legislation that has passed the Senate, been reported from a

committee, or placed on the Legislative Calendar.

•

Table 4 highlights selected oil spill policy provisions in H.R. 3534—the

Consolidated Land, Energy, and Aquatic Resources Act of 2010 (CLEAR Act).

•

Table 5 highlights selected oil spill policy provisions in S. 3663—the Clean

Energy Jobs and Oil Company Accountability Act of 2010.

The bills identified in the tables are listed in (descending) order by bill number.

1

Approximately 35 million gallons was recovered directly from the wellhead. National Incident Command, “BP

Deepwater Horizon Oil Budget: What Happened to the Oil?,” August 2, 2010.

2

For more information on some of these issues, see CRS Report R41262, Deepwater Horizon Oil Spill: Selected Issues

for Congress, coordinated by (name redacted) and (name redacted).

3

For more information on this procedure, see CRS Report RL30945, House and Senate Rules of Procedure: A

Comparison, by (name redacted).

Congressional Research Service

1

Oil Spill Legislation in the 111th Congress

Table 1. Enacted Oil Spill Legislation

Does not include resolutions

Bill

Number

Sponsor

Introduced Date

Short Title

Major Actions

Key Provisions

Passed House June 10,

2010; passed Senate June 9,

2010; signed by President

Obama June 15, 2010 (P.L.

111-191).

Authorizes additional advances from the Oil

Spill Liability Trust Fund, up to $100 million

per advance, not to exceed the per-incident

cap. Advances only available in response to

Deepwater Horizon incident.

H.R. 5499

Mica

June 10, 2010

S. 3473

Reid

June 9, 2010

H.R. 4899

Obey

March 21, 2010

Supplemental

Appropriations Act, 2010

Passed House March 24,

2010; passed Senate May

27, 2010; signed by

President Obama July 29,

2010 (P.L. 111-212).

Provides $94 million for oil spill-related

programs.a

H.R. 3619

Oberstar

September 22, 2009

Coast Guard Authorization

Act for Fiscal Years 2010

and 2011

Passed House October 23,

2009; Senate passed an

amended version May 7,

2010; passed House

September 30, 2010; signed

by President Obama

October 15, 2010 (P.L. 111281).

Instructs NOAA Administrator to establish

an oil spill prevention/education program for

small vessels; authorizes annual appropriation

of $10 million for FY2010-FY2014 to support

program.

Amends OPA in following ways: modifies the

definition of responsible party to include the

owner of the oil transported in a single-hull

vessel; authorizes appropriations to

NOAA—$15 million per fiscal year for

response and damage assessment activities;

modifies provisions concerning Trust Fund

auditing procedures; requires certain doublehull tanks in Prince William Sound to be

escorted by two towing vessels; specifies

that any tank vessel over 100 gross tons

must demonstrate financial responsibility.

Requires Secretary of Homeland Security to

submit a report regarding human error and

oil spills (or near misses); prepare a tribal

consultation policy to improve coordination

of oil spill prevention, preparedness,

response, and natural resource damage

assessment; submit a report to Congress on

technology that can detect oil spilled from a

CRS-2

Oil Spill Legislation in the 111th Congress

Bill

Number

Sponsor

Introduced Date

Short Title

Major Actions

Key Provisions

tank or non-tank vessel; ensure stronger

enforcement of International Maritime

Organization agreements.

Alters shipping code (46 U.S.C. § 3306) to

require certain vessels be in compliance with

construction standards for oil fuel tanks

(Regulation 12A of Annex I Protocol of 1978

relating to the International Convention for

the Prevention of Pollution from Ships);

directs Secretary of Homeland Security to

promulgate implementing regulations.

Directs Coast Guard to promulgate

regulations concerning oil transfer

operations and provide status update on

rulemakings.

Encourages the Secretary of Homeland

Security to work with other Arctic nations

(through the International Maritime

Organization) to ensure oil spill prevention

and response capability in the Arctic.

Source: Prepared by CRS.

a.

CRS-3

See CRS Report R41232, FY2010 Supplemental for Wars, Disaster Assistance, Haiti Relief, and Other Programs, coordinated by (name redacted).

Oil Spill Legislation in the 111th Congress

Table 2. Passed or Reported Legislation in the House

Does not include resolutions

Bill

Number

Sponsor

Introduced Date

Short Title

Major Actions

Key Provisions

H.R. 6016

Brady

July 30, 2010

Audit the BP Fund Act of

2010

Passed House September

28, 2010.

Directs the Comptroller General (GAO) to

conduct an investigation and audit (with

subpoena power) of the Gulf Coast Claims

Facility, reporting to Congress on a monthly

basis.

H.R. 6008

Schauer

July 30, 2010

Corporate Liability and

Emergency Accident

Notification Act (CLEAN

Act)

Passed House September

28, 2010.

Amends pipeline transportation code (49

U.S.C. Chapter 601) to require “immediate

telephonic notification” (defined as “earliest

practicable moment,” but not later than one

hour) for certain pipeline incidents.

Directs Secretary of Transportation to

maintain an internet database of reportable

incidents involving gas or hazardous liquid

pipelines.

H.R. 5629

Oberstar

June 29, 2010

Oil Spill Accountability and

Environmental Protection

Act of 2010

Reported by the House

Committee on

Transportation and

Infrastructure (H.Rept. 111567) July 27, 2010.

Eliminates liability limit for offshore facilities

(applies retroactively); increases financial

responsibility demonstration for offshore

facilities to $1.5 billion (or a greater amount

determined by the President); adds damages

to human health to the liability provisions

under OPA; modifies liability provisions for

mobile offshore drilling units (MODUs);

adds Indian Tribes to government revenue

liability category; repeals provisions in

Limitation of Liability Act (46 U.S.C.

Chapter 305); expands liability under Death

on the High Seas Act (46 U.S.C. Chapter

303) and Jones Act (46 U.S.C. § 30104).

Shortens the timeframe from 90 to 45 days

for claimants waiting on responsible party to

address a submitted claim; authorizes

President to require (during a spill of

national significance, SONS) a responsible

party to provide information related to its

claims process.

CRS-4

Oil Spill Legislation in the 111th Congress

Bill

Number

Sponsor

Introduced Date

Short Title

Major Actions

Key Provisions

Eliminates the “rebuttable presumption”

provision that applies to trustees’ natural

resource damage assessments in

administrative or judicial proceedings.

Adds provision to shipping code (46 U.S.C. §

12111) requiring that vessels (including

MODUs) engaged in exclusive economic

zone (EEZ) resource activities be registered

and owned by a U.S. citizen (i.e., U.S.

flagged); requires MODU safety

management plans (pursuant plans in 46

U.S.C. § 3203) to address drilling operations;

directs the Secretary of Homeland Security

to enhance MODU safety standard

regulations by addressing worst-case

discharges; enhances the Coast Guard’s

marine safety workforce; instructs Secretary

of Homeland Security to report to Congress

on needs of maritime safety and security

teams participating in patrols and setup of

safety zones; requires a MODU operator to

obtain a specific license.

Shortens the double-hull transition period

(from 2015 to 2011) for single-hull tankers

offloading oil at deepwater ports or in

lightering zones; removes ability for tank

vessels and offshore/onshore facilities to

operate without a response plan if a

submitted plan is awaiting official approval.

Amends the CWA to require changes to the

NCP regarding dispersants (in particular,

toxicity thresholds), containment booms,

response planning for worst-case discharges;

directs President to promulgate

implementing regulations; instructs

President to establish a comprehensive

oil/hazardous substance discharge database.

Directs the Secretary of Transportation to

submit report to Congress on existing

CRS-5

Oil Spill Legislation in the 111th Congress

Bill

Number

Sponsor

Introduced Date

Short Title

Major Actions

Key Provisions

regulations covering transportation-related

offshore platforms.

Modifies oversight authority of spill

response plans; requires that response plans

contain additional information (e.g., risk

analysis); grants additional authority

concerning response plan oversight and

enforcement; increases certain CWA

penalty amounts; modifies the administrative

penalty provisions.

Directs the Secretary of Homeland Security

to establish a process for technology use

during an oil spill (or hazardous substance

release); amends OPA to specify sensing and

monitoring system equipment requirements

for offshore facilities.

Amends CWA to more explicitly describe

the oil spill prevention and response duties

of EPA, the Coast Guard, and DOT;

requires the Coast Guard to inventory and

maintain a database of all vessels capable of

oil spill response.

Amends pipeline provisions (49 U.S.C. §

60108) to require damage notification and

assessment;

Directs the National Commission on the BP

Deepwater Horizon Oil Spill and Offshore

Drilling to make recommendations

pertaining to offshore drilling governance;

instructs the Comptroller General to

examine former Coast Guard officials’

involvement in foreign flag maritime

programs after leaving the Coast Guard;

tasks the Directors of the Agency for Toxic

Substances and Disease Registry and the

Centers for Disease Control with report to

Congress on health impacts related to the

Gulf oil spill.

CRS-6

Oil Spill Legislation in the 111th Congress

Bill

Number

Sponsor

Introduced Date

H.R. 5626

Waxman

June 29, 2010

H.R. 5481

Capps

June 8, 2010

H.R. 4213

Rangel

December 7, 2009

Short Title

Major Actions

Key Provisions

Blowout Prevention Act of

2010

Reported by the House

Committee on Energy and

Commerce (H.Rept. 111581).

Requires high-risk (as defined) offshore oil

well permit applicants to demonstrate and

attest specific prevention and response

technologies are in place to receive a

permit; sets relief well drilling timeframes;

requires certain technologies on blowout

preventers and periodic third-party

inspections; requires specific well design

components and third-party inspections;

specifies work stoppage situations; creates a

Well Control Technical Advisory

Committee, which will submit reports to

Congress regarding relevant technologies,

regulations, and implementation; authorizes

periodic, unannounced inspections; allows

for citizen suits compelling compliance with

these provisions; establishes penalties for

non-compliance; facilitates the Chemical

Safety and Hazard Investigation Board’s

involvement in future investigations.

Passed House June 23,

2010.

Provides subpoena power to the National

Commission on the BP Deepwater Horizon

Oil Spill and Offshore Drilling.

First version passed House

December 9, 2009;

amended by Senate and

passed March 10, 2010;

House amended and passed

May 28, 2010; after further

activity Senate passed

amended version July 21,

2010; House passed same

version July 22, 2010;

signed by President Obama

July 22, 2010 (P.L. 111-205).

The version that passed the House May 28,

2010, would have increased the per-barrel

tax to 34 cents and extended the tax rate to

December 31, 2020.

Passed House July 30, 2010.

See Table 4.

Unemployment

Compensation Extension

Act of 2010

(formerly the American

Jobs and Closing Tax

Loopholes Act of 2010)

H.R. 3534

CRS-7

Rahall

September 8, 2009

Consolidated Land, Energy,

and Aquatic Resources Act

of 2009 (CLEAR Act)

The enacted legislation does not include oil spillrelated provisions.

Oil Spill Legislation in the 111th Congress

Bill

Number

H.R. 2693

Sponsor

Woolsey

Source: Prepared by CRS.

CRS-8

Introduced Date

June 6, 2009

Short Title

Major Actions

Key Provisions

Federal Oil Spill Research

Program Act

Reported by the House

Committee on Science and

Technology (H.Rept. 111553); passed House July 21,

2010.

Amends the OPA Title VII: establishes

interagency committee, chaired by NOAA,

which would assess research, develop

research plan, set up competitive grant

program, prepare reports; direct NAS

assessment; repeal funding authorization cap

of $27.5 million.

Oil Spill Legislation in the 111th Congress

Table 3. Passed or Reported Legislation in the Senate

Does not include resolutions, but includes legislation placed directly on Senate Legislative Calendar

Bill

Number

Sponsor

Introduced Date

Short Title

Major Actions

Key Oil Spill Policy Provisions

S. 3815

Reid

September 21, 2010

Promoting Natural Gas and

Electric Vehicles Act of

2010

Placed on the Senate

Legislative Calendar

September 21, 2010.

Increases the Oil Spill Liability Trust Fund

per-barrel financing rate from 8 to 21 cents.

S. 3793

Baucus

September 16, 2010

Job Creation and Tax Cuts

Act of 2010

Placed on the Senate

Legislative Calendar

September 20, 2010.

Increases the Oil Spill Liability Trust Fund

per-barrel financing rate from 8 to 78 cents.

Extends the financing rate sunset date from

the end of 2017 until the end of 2020. Raises

the Trust Fund’s per-incident limitation from

$1 billion to $5 billion (natural resource

damages from $500,000 to $2.5 billion).

S. 3663

Reid

July 28, 2010

Clean Energy Jobs and Oil

Company Accountability

Act of 2010

Placed on Senate Legislative

Calendar July 29, 2010.

See Table 5 below.

S. 3614

Hutchison

July 19, 2010

Oil Spill Response Act

Ordered reported from the

Senate Committee on

Commerce, Science, and

Transportation.

Directs the Commandant of the Coast

Guard to establish a Maritime Center of

Expertise for Maritime Oil Spill and

Hazardous Substance Release Response.

The center would train federal, state, and

local responders and maintain two incident

management teams. The center would

support a research program (in coordination

with the Interagency Coordinating

Committee—OPA Title VII) for testing and

development of response technologies and

techniques.

Directs Commandant of the Coast Guard to

maintain a National Strike Force with a

coordination center and public information

assist team (each already created by the

National Contingency Plan). The strike force

will provide rapid incident management

support, maintain capability to mobilize

assets to incident within 24 hours, and train

personnel. The coordination center will

maintain an inventory of response

equipment, and certify marine response

CRS-9

Oil Spill Legislation in the 111th Congress

Bill

Number

Sponsor

Introduced Date

Short Title

Major Actions

Key Oil Spill Policy Provisions

organizations. The public information assist

team will provide crisis communication

during an incident and train personnel.

Requires Commandant of the Coast Guard

to maintain district preparedness teams to

maintain equipment, administer area

contingency plans and National

Preparedness for Response Exercise

Program, and provide other support and

coordination during responses.

Requires maritime oil spill response

organizations listed in vessel/facility

response plans to be certified by the Coast

Guard and inspected annually. Requires

response organizations to notify Strike

Force coordinating center of a decrease in

response assets.

S. 1194

Cantwell

(H.R. 3619)

Source: Prepared by CRS.

CRS-10

June 4, 2009

Coast Guard Authorization

Act for Fiscal Years 2010

and 2011

Passed House October 23,

2009; Senate passed an

amended version May 7,

2010; passed House

September 30, 2010;

presented to the President

for signature October 4,

2010.

See details in Table 2.

Oil Spill Legislation in the 111th Congress

Table 4. Summary of Selected Oil Spill Policy Provisions of H.R. 3534

The Consolidated Land, Energy, and Aquatic Resources Act of 2010 (Clear Act)—as passed the House July 30, 2010

Section Number and Title

Sec. 501. Gulf of Mexico restoration program

Summary

Creates a Gulf of Mexico Restoration Task Force,

staffed by the governors of each Gulf state and the

heads of federal agencies (selected by the President).

The President appoints the chair, who must be in the

Executive Office of the President.

Directs Task Force to create a Citizen Advisory Council

of local representatives to provide recommendations to

the Task Force.

Task Force creates a comprehensive restoration plan for

long-term ecological restoration of the Gulf.

Sec. 502. Gulf of Mexico long-term environmental

monitoring and research program

Directs the Secretary of Commerce (through NOAA)

to establish a long-term marine environmental

monitoring and research program in the Gulf and to

submit a biennial report to Congress summarizing the

program’s activities.

Sec. 503. Gulf of Mexico emergency migratory species

alternative habitat program

Directs the Secretary of Interior (through an agreement

with the Fish and Wildlife Service) to establish an

emergency migratory species alternative habitat

program. The program will support projects that

improve fish and bird habitats, among other things.

Sec. 504. Gulf of Mexico Restoration Account

Creates a Gulf of Mexico Restoration Account in the

Treasury. Adds a new section 311A to the CWA,

creating an additional civil penalty for violations of

section 311(b)(3): $200 million per 1 million barrels

discharged. The penalty revenues would fund the

Restoration Account. This change would be retroactive

to April 1, 2010.

Sec. 701. Short Title

Title VII of the act may be cited as the “Oil Spill

Accountability and Environmental Protection Act of

2010.”

CRS-11

Comments

Unlike other restoration task force initiatives, this

proposal includes Texas among the Gulf states.

Oil Spill Legislation in the 111th Congress

Section Number and Title

Sec. 702. Repeal of and adjustments to limitation on

liability

Summary

Comments

Removes the liability limit for offshore facilities; modifies

the liability limit provisions for mobile offshore drilling

units (MODUs).

Although the MODU liability limit is effectively removed,

MODUs would continue to be first treated as a tank

vessel for discharges of oil “on or above the surface of

the water.” The implications of this phrase are unclear.

The phrase might suggest that MODU owner/operators

would not be liable for discharges that are not “on or

above the surface of the water.” Such discharges would

most likely fall under the responsibility of the offshore

facility.

Directs the President to revise the liability limits for

vessels, onshore facilities, and deepwater ports at least

once every three years after enactment; revisions should

reflect the greater of (1) liability amount commensurate

with risk (as determined by the President) or (2) an

increase in Consumer Price Index.

The amendments would apply to oil spills after

enactment as well as claims arising from a spill that

occurred prior to enactment, as long as the claim was

presented within applicable time limits.

These amendments are effectively retroactive. The claim

time limitations, which provide the degree of

retroactivity, are found in 33 U.S.C. 2712. Claims for

removal costs must be presented within six years after

removal completion; damage claims must be presented

within three years of injury. Thus, these provisions could

apply to an incident that occurred several years ago, but

CRS is not aware of a relevant incident (other than the

April 2010 oil spill).

Sec. 703. Evidence of financial responsibility for offshore

facilities

Increases the amount of financial responsibility that

offshore facilities must demonstrate. Sets amount at

$300 million, but allows for President to establish

alternate amounts based on several factors, including

(among others) the insurance market, discharge risk,

asset value of offshore facility company. Alternate

amounts must be at least $105 million for facilities

seaward of state waters boundary and $30 million for

facilities landward of a state waters boundary.

Existing levels are $35 million and $10 million for

facilities seaward and landward, respectively, of state

waters boundaries. However, the President can set

levels up to $150 million, based on various factors. This

provision is promulgated in 30 CFR Part 253, which links

financial responsibility levels with potential worst-case

discharge scenarios. The maximum discharge scenario

requires a financial demonstration of $150 million.

Sec. 704. Damages to human health

Adds damages to human health to the categories of

damages for which a responsible party is liable. Human

health specifically includes mental health.

Adding human health damages to OPA would be a

substantial policy change. Whether to include human

health within the liability structure of the

Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA or Superfund,

enacted in 1980) was an issue of considerable debate.

CERCLA, which deals with hazardous substance releases

(specifically excluding oil), does not hold parties liable

for damages to human health.

This addition would apply to oil spills after enactment as

well as claims arising from a spill that occurred prior to

enactment, as long as the claim was presented within

applicable time limits.

Sec. 705. Clarification of liability for discharges from

mobile offshore drilling units

CRS-12

Amends liability provisions concerning mobile offshore

drilling units.

Oil Spill Legislation in the 111th Congress

Section Number and Title

Summary

Comments

Sec. 706. Standard of review for damage assessment

Eliminates the “rebuttable presumption” provision that

applies to trustees’ natural resource damage

assessments in administrative or judicial proceedings.

The rebuttable presumption provision means that a

responsible party would have the burden of proving that

a trustee’s assessment is wrong, rather than the trustee

having to show that the assessment is right.a

Sec. 707. Procedures for claims against Fund;

Information on claims

Adds provision stating during a spill of national

significance (SONS) the President may exercise

authorities in Sec. 707 to ensure that the presentation,

filing, processing, settlement, and adjudication of claims

occurs within the areas affected by the spill to greatest

extent practicable.

It is unclear whether this provision would have any

impact on the claims process, as it does not grant new

authority.

Adds new section (1013A) to OPA, authorizing

President to require (during a SONS) a responsible

party to provide information related to its claims

process. Required information includes claim processing

time and “any other data … necessary to ensure the

performance of the responsible party or the guarantor

with regard to the processing and adjudication of such

claims.”

Under existing law, OPA does not authorize the federal

government to monitor or audit the responsible party’s

claims process.

Sec. 708. Additional amendments and clarifications to

Oil Pollution Act of 1990

These amendments are effectively retroactive, employing

the same text used in Sec. 702 (discussed above).

Amends definition of “removal costs” to include related

federal enforcement activities. Makes a corresponding

addition to removal costs liability provision. Expands

definition of “responsible party” for onshore facilities.

Modifies cost recovery provisions: payments found to be

arbitrary or capricious are not recoverable.

Does not clarify who would determine if trust fund

payments were arbitrary or capricious.

Sec. 709. Americanization of offshore operations in the

Exclusive Economic Zone

Adds provision to shipping code (46 U.S.C. § 12111)

requiring that vessels (including MODUs) engaged in

EEZ resource activities be registered and owned by a

U.S. citizen (i.e., U.S. flagged). Requires Coast Guard

provide training to its personnel to implement this

provision.

For more discussion of foreign flag issues, see “Coast

Guard Oversight of OCS Safety” in CRS Report R41262,

Deepwater Horizon Oil Spill: Selected Issues for Congress,

coordinated by (name redacted) and (name redact

ed).

Sec. 710. Safety management systems for mobile

offshore drilling units

Requires MODU safety management plans pursuant to

46 U.S.C. § 3203 plans that address drilling operations.

Sec. 711. Safety standards for mobile offshore drilling

units

Directs the Secretary of Homeland Security to enhance

vessel safety standard regulations by addressing worstcase discharges.

Sec. 712. Operational control of mobile offshore drilling

units

Requires a MODU operator to obtain a specific license.

CRS-13

Oil Spill Legislation in the 111th Congress

Section Number and Title

Summary

Sec. 713. Single-hull tankers

Shortens the double-hull transition period (from 2015 to

2011) for single-hull tankers offloading oil at deepwater

ports or in lightering zones.

Sec. 714. Repeal of response plan waiver

Removes ability for tank vessels and offshore/onshore

facilities to operate without a response plan if a

submitted plan is awaiting official approval.

Sec. 715. National Contingency Plan

Amends the CWA to require changes to the NCP

regarding dispersant use and regulation including:

toxicity thresholds, independent testing, ranking of

dispersants by region, ingredient disclosure; directs EPA

to conduct dispersant risk study; authorizes fee

collection to cover EPA’s dispersant evaluation costs;

adds NCP provision concerning containment booms,

response planning for worst-case discharges.

Sec. 716. Tracking Database

Directs President to establish a comprehensive

oil/hazardous substance discharge database.

Sec. 717. Evaluation and approval of response plans;

maximum penalties

Modifies oversight authority of spill response plans, by

allowing the President to designate which offshore

facilities would require response plan review from the

Secretary of Homeland Security (Coast Guard); requires

that response plans contain additional information (e.g.,

risk analysis); grants additional authority concerning

response plan oversight (e.g., biennial report to

Congress) and enforcement; increases certain CWA

penalty amounts; modifies the administrative penalty

provisions.

Sec. 718. Oil and hazardous substance cleanup

technologies

Directs the Secretary of Homeland Security to establish

a process for technology use during an oil spill (or

hazardous substance release).

Sec. 719. Implementation of oil spill prevention and

response authorities

Amends CWA to more explicitly describe the oil spill

prevention and response duties of EPA, the Coast

Guard, DOT, and Interior.

Sec. 720. Impacts to Indian Tribes and public service

damages

Amends OPA liability by adding Indian Tribes to

government revenue and public services damage

categories.

CRS-14

Comments

For more discussion of dispersants, see “Use of

Dispersants” in CRS Report R41262, Deepwater Horizon

Oil Spill: Selected Issues for Congress, coordinated by

(name redacted) and (name redacted).

Under existing law/regulations, the Department of the

Interior’s Bureau of Ocean Energy Management,

Regulation, and Enforcement (BOEMRE, formerly the

Minerals Management Service) has sole oversight of

offshore facility response plans.

Oil Spill Legislation in the 111th Congress

Section Number and Title

Sec. 721. Federal enforcement actions

Summary

Comments

Amends the CWA administrative penalty provisions by

removing the limitation on Section 311(b) civil penalties

for actions being addressed through the administrative

penalty process.

According to the House Report (H.Rept. 111-567) for

H.R. 5629, which contains an identical provision:

Sec. 722. Time required before electing to proceed with

judicial claim or against the Fund

Amends OPA to shorten the timeframe from 90 to 45

days for claimants waiting on a responsible party to

address a submitted claim.

Sec. 723. Authorized level of Coast Guard personnel

Authorizes an increase in Coast Guard personnel for

implementing the activities of this title.

Sec. 724. Clarification of memorandums of

understanding

Directs the President to implement or revise

memorandums of understanding to clarify oil spill

prevention roles and responsibilities of various federal

agencies.

Sec. 725. Build America requirement for offshore

facilities

Amends OPA to require that offshore facilities used for

oil exploration, development, or production in, on,

above, or below the EEZ must be built in the United

States. Allows the Secretary of Homeland Security to

grant waiver under certain conditions.

Sec. 726. Oil spill response vessel database

Requires the Coast Guard to inventory and maintain a

database of all vessels capable of oil spill response.

Sec. 727. Offshore sensing and monitoring systems

Amends OPA to specify sensing and monitoring system

equipment requirements for offshore facilities.

Sec. 730. Authorization of appropriations

Authorizes additional appropriations from the Oil Spill

Liability Trust Fund:

Homeland Security: $30 million in FY2011; $32 million

annually in FY2012-FY2015;

EPA: $10 million annually FY2011-FY2015;

DOT: $7 million annually FY2011-FY2013; $6 million

annually FY2014-FY2015.

CRS-15

“This section would allow independent Federal and State

actions, including the assessment of penalties, in relation

to the discharge of oil or hazardous substances under

section 311 of the Clean Water Act. “

Oil Spill Legislation in the 111th Congress

Section Number and Title

Summary

Sec. 731. Extension of liability to persons having

ownership interests in responsible parties

Amends OPA definition of responsible party to include

any person having an ownership interest (of more than

25%) of any of the responsible party categories (e.g.,

vessels, facilities, pipelines). Applies to incidents

occurring on or after January 1, 2010.

Sec. 732. Clarification of liability under Oil Pollution Act

of 1990

Amends OPA to state that “no release of liability” in

connection with compensation received by a claimant

will apply to OPA liability unless the claimant presented

a claim and received compensation.

Sec. 733. Salvage activities

Amends the CWA definition of “discharge (in 33 U.S.C.

1321) to also exclude discharges incidental to salvage

activities authorized by the President in accordance with

the NCP. Adds “salvage activities” to the list of activities

exempt from liability (in 33 U.S.C. 1321(c)(4)).

Sec. 734. Requirement for redundancy in response plans

Amends the CWA response plan provisions to require

plans to specify redundancies if planned actions fail,

require response plans be “vetted by impartial experts.”

Comments

The process by which impartial experts would vet a

response plan is not explained. Moreover, “impartial

experts” is not clarified.

Amends the Outer Continental Shelf Lands Act to

prohibit the Secretary of the Interior from issuing a

license or permit for drilling unless the applicant has an

approved facility response plan (under 33 U.S.C.

1321(j)(5)).

Source: Prepared by CRS.

a.

CRS-16

See CRS Report R41396, The 2010 Oil Spill: Natural Resource Damage Assessment Under the Oil Pollution Act, by (name redacted).

Oil Spill Legislation in the 111th Congress

Table 5. Summary of Selected Oil Spill Policy Provisions of S. 3663

Clean Energy Jobs and Oil Company Accountability Act of 2010—Placed on Senate Calendar July 29, 2010

Section Number and Title

Summary

Sec. 101. Short Title

Big Oil Bailout Prevention Unlimited Liability Act of

2010

Sec. 102. Removal of limits on liability for offshore

facilities.

Eliminates liability limit for offshore facilities.

Sec. 103. Claims Procedure

Shortens the timeframe from 90 to 30 days for claimants

waiting on action from the responsible party before

submitting claim to the Trust Fund.

Comments

These amendments are effectively retroactive. The claim

time limitations, which provide the degree of

retroactivity, are found in 33 U.S.C. 2712. Claims for

removal costs must be presented within six years after

removal completion; damage claims must be presented

within three years of injury. Thus, these provisions could

apply to an incident that occurred several years ago, but

CRS is not aware of an relevant incident (other than the

April 2010 oil spill).

For spills of national significance, the Trust Fund may pay

for the government’s administrative/personnel costs

associated with claims process.

Sec. 104. Oil and Hazardous Substance Response

Planning

Adds individuals from industry, conservation groups, and

the general public to those eligible for appointment to

area committees.

Amends the response plan requirements in the CWA by

(among other things) adding provisions specific to oil

well blowouts and worst-case discharge scenarios.

Requires certain plans be published in Federal Register for

public comment. Enhances conditions to be met to

achieve plan approval. President may require plans to

include best available technology.

Sec. 105. Reports

Requires the administrator of the BP compensation fund

to submit periodic reports to Congress (180 days after

enactment, every 90 days after first report).

This would apply to the Gulf Coast Claims Facility,

which began operating August 23, 2010.

Sec. 106. Trust Fund Advance Authority

During spills of national significance, authorizes

additional advances from the Oil Spill Liability Trust

Fund, up to $100 million per advance, not to exceed the

per-incident cap.

This additional advance provision was added by P.L. 111191 (June 15, 2010), but that provision only applied to

the Deepwater Horizon spill.

CRS-17

Oil Spill Legislation in the 111th Congress

Section Number and Title

Summary

Comments

Sec. 201. Short Title

Federal Research and Technologies for Oil Spill

Prevention and Response Act of 2010

Sec. 202. Purposes

States objectives regarding technologies.

Sec. 203. Interagency Committee

Amends OPA Title VII (Research and Development) by

making the Interagency Committee chair a position that

rotates (every two years) between the Coast Guard,

EPA, NOAA, and the Department of the Interior.

Sec. 204. Science and Technology Advice and Guidance

Directs the chairman to work with the National

Academy of Sciences to establish a Science and

Technology Advisory Board. Board will assess state of

technology and research needs and provide a report to

Congress. Instructs Interagency Committee to update its

implementation plan accordingly and to accept input

from state and local governments and other

stakeholders.

Sec. 205. Oil Pollution Research and Development

Program

Among other provisions, adds various provisions to

research program, including evaluations of dispersants.

Creates new R&D program that will be managed by the

Secretary of the Interior to address oil discharges on

Interior-managed land. Directs Department of

Commerce to lead oil pollution effects research

program. Instructs Interior to conduct extreme

environmental condition demonstration projects.

Establishes Research Centers of Excellence to conduct

research through grant programs. Sets up pilot program

for field tests. Authorizes $25 million annually for the

R&D program from the Trust Fund (without further

appropriation) for FY2010 through FY2020. Authorizes

an additional $20 million annual appropriation from the

Trust Fund for relevant agencies. Amends OPA’s Trust

Fund funding limitation accordingly.

In recent years, Congress has appropriated

approximately $8 million per year to federal agencies to

support oil spill R&D efforts.

Sec. 301. Short Title

Outer Continental Shelf Reform Act of 2010

Most of this title deals with MMS restructuring issues.

Only the sections that relate most directly to oil spill

policy are included in this table. For further discussion of

MMS restructuring issues, see “Reorganization of

BOEMRE/MMS” by Henry Hogue in CRS Report

R41262, Deepwater Horizon Oil Spill: Selected Issues for

Congress, coordinated by (name redacted) and (name red

acted).

CRS-18

Under current law the chairman is always a Coast Guard

official.

Oil Spill Legislation in the 111th Congress

Section Number and Title

Summary

Sec. 306. Safety, environmental, and financial reform of

the Outer Continental Shelf Lands Act.

Among other provisions, allows the Secretary of Interior

(after a public notice and hearing) to disqualify a person

from bidding for OCS lease if the entity is a responsible

party under OPA or has failed to meet compensation

obligations for removal costs and damages. Requires

lease holders to submit to the Secretary of Interior a

deepwater operations plan before exploring areas in

waters greater than 500 feet deep. Requires approval of

a safety and environmental management plan before

obtaining a drilling permit. Authorizes Secretary of

Interior to disapprove an exploration plan under certain

“exceptional circumstances.”

Sec. 310. National Commission on Outer Continental

Shelf Oil Spill Prevention.

Establishes in the legislative branch a National

Commission on Outer Continental Shelf Oil Spill

Prevention to (among other things) examine causes of

Deepwater Horizon spill, building on work of other

investigative teams and commissions.

Sec. 401. Short Title

Environmental Crimes Enforcement Act of 2010

Sec. 402 Environmental Crimes

Among other provisions, instructs the U.S. Sentencing

Commission to review the sentencing guidelines and

policy statements related to CWA offenses to

appropriately account for harm to public and the

environment.

Sec. 501. Short Title

Fairness in Admiralty and Maritime Law Act

Sec. 502. Repeal of Limitation of Shipowners’ Liability

Act of 1851

Amends the liability provisions in the Shipowners’

Liability Act of 1851, adding claims related to oil spills to

the list of claims that are not subject to limitation.

Sec. 503. Assessment of Punitive Damages in Maritime

Law

Amends maritime law (46 U.S.C. Chapter 301) regarding

punitive damages for maritime torts.

Sec. 504. Amendments to the Death on the High Seas

Act

Expands liability under Death on the High Seas Act (46

U.S.C. Chapter 303).

Sec. 505. Effective Date

Applies to actions after April 19, 2010, and actions that

have not been fully adjudicated as of the enacted date.

Sec. 601. Short Title

Securing Health for Ocean Resources and Environment

Act (SHORE Act)

CRS-19

Comments

Oil Spill Legislation in the 111th Congress

Section Number and Title

Summary

Sec. 611. Improvements to National Oceanic and

Atmospheric Administration oil spill response,

containment, and prevention.

Directs Under Secretary for Oceans and Atmosphere

(i.e., Administrator of NOAA) to do the following:

conduct review of NOAA’s capacity to respond to oil

spills and submit a report to Congress; develop and

maintain oil spill trajectory models, update the

environmental sensitivity index products for each U.S.

coastal area and offshore leasing area; prepare a review

of subsea hydrocarbons, including their effects with

dispersants on marine resources; establish a

hydrocarbon monitoring and assessment program; set

up an Interagency Coordinating Committee on Oil

Pollution Research; establish an initiative examining

threat and fate of oil spills from aging or abandoned

infrastructure; prepare inventory of offshore

abandoned/sunken vessels; submit report (after

enactments and every five years) describing leasing

regions’ ecological baselines and risks posed by

hydrocarbon development.

Sec. 612. Use of Oil Spill Liability Trust Fund for

preparedness, response, damage assessment, and

restoration.

Amends OPA to provide from the Trust Fund not more

than $5 million (without further appropriation) in each

fiscal year to the NOAA Administrator and the Assistant

Secretary of the Interior for Fish and Wildlife and Parks.

This funding is to cover activities related to

preparedness, response, restoration, and damage

assessment capabilities. If a spill of national significance

occurs, $25 million shall be made available (from the

Trust Fund) to federal trustees.

Sec. 614. Strengthening coastal State oil spill planning

and response.

Amends the Coastal Zone Management Act to allow

Secretary of Commerce to issue grants (not to exceed

$750,000 per year for one state) to states for the

following purposes: to revise management programs to

identify and implement policies that address oil spill

response and impacts (environmental, economic, and

social) at the state level; to undertake regional coastal

marine spatial planning; to revise applicable enforceable

policies. Changes made should be coordinated with Area

Contingency Plans. Grants do not require state matching

funds.

CRS-20

Comments

This additional funding does not specifically reference

the additional duties created by Section 611. It is unclear

to what extent the funding is intended to cover these

activities.

Oil Spill Legislation in the 111th Congress

Section Number and Title

Summary

Sec. 615. Gulf of Mexico long-term marine

environmental monitoring and research program.

Directs the Secretaries of Commerce and Interior and

the EPA Administrator to establish a long-term (10-year

period, at minimum) marine environmental monitoring

and research program for the Gulf, ensuring access to

independent, peer-reviewed data regarding impacts

associated with Deepwater Horizon spill. Requires biennial

reports to Congress. Data collected will be available to

public after review and approval of Attorney General.

Sec. 616. Arctic research and action to conduct oil spill

prevention.

Directs NOAA (with collaboration from other agencies)

to direct research and perform actions to improve oil

spill prevention, response, and recovery in Arctic

waters.

Sec. 621. Secretary defined.

Secretary defined as the Secretary of Department in

which Coast Guard is operating (i.e., Homeland

Security).

Sec. 622. Arctic maritime readiness and oil spill

prevention.

Directs Coast Guard to assess and take action to reduce

the risk and improve the capability of the United States

to respond to a maritime disaster in the U.S. Beaufort

and Chukchi Seas.

Sec. 623. Advance planning and prompt decision making

in closing and reopening fishing grounds.

Amends the CWA to include in area contingency plans

advance planning concerning opening/closing fishing

grounds after an oil spill.

Sec. 624. Oil spill technology evaluation.

Directs the Secretaries of Homeland Security and

Interior and the EPA Administrator to establish a

program for the formal evaluation and validation of oil

pollution containment and removal technologies and

methods. At each validation, the officials will determine

if the process or technology should be designated as

“best available.” If so determined, the new standard will

be required in submitted and updated response plans.

Sec. 625. Coast Guard inspections.

Instructs the Secretary of Homeland Security to increase

the frequency and comprehensiveness of safety

inspections for U.S. and foreign-flagged vessels.

CRS-21

Comments

Oil Spill Legislation in the 111th Congress

Section Number and Title

Summary

Sec. 626. Certificate of inspection requirements.

Adds offshore oil/gas exploration/production facilities to

the list of vessels subject to Coast Guard inspection (33

U.S.C. § 3301). Instructs the Secretary of Homeland

Security and the Secretary of Interior to jointly develop

regulations to determine which components would be

subject, but would include (at minimum) MODUs, fixed

and floating drilling facilities, and risers and blowout

preventers. The Secretaries may waive inspection

requirements in some situations.

Sec. 627. Navigational measures for protection of

natural resources.

Directs the Coast Guard Commandant (in consultation

with NOAA) to identify areas of U.S. waters in which

routing or other navigational measures should be

established to reduce oil spill risks. If identified, the

Secretary of Homeland Security and NOAA

Administrator shall seek to establish such areas through

the International Maritime Organization. Instructs the

Coast Guard Commandant to submit quarterly data to

Congress on data collected in support of this section.

Sec. 628. Notice to States of bulk oil transfers.

Allows a state to require 24-hour notification to the

state and Coast Guard if a person transfers more than

250 barrels of oil to, from, or within a vessel in state

waters.

Sec. 629. Gulf of Mexico Regional Citizens’ Advisory

Council.

Instructs the President to establish a Gulf of Mexico

Regional Citizens’ Advisory Council to foster increased

participation from Gulf stakeholders. Directs the

President to submit to Congress a report describing

operational details of the council, including how the

council’s advice and recommendation will be treated by

relevant federal agencies.

Sec. 630. Vessel liability.

Amends OPA to modify the liability limits for vessels.

Increases limits for tank vessels without double-hulls.a

Creates new liability limits specific to tank barges.

Sec. 632. Prompt publication of oil spill information.

Requires the Coast Guard Commandant to make

publicly available (on a website) all prepared and

approved Incident action plans associated with an oil spill

response that is within the Coast Guard’s jurisdiction.

The plans shall be posted no later than 12 hours after an

associated action has begun.

CRS-22

Comments

The tank barge limits would represent a substantial

increase above current applicable limits.

Oil Spill Legislation in the 111th Congress

Section Number and Title

Summary

Sec. 701. Catastrophic incident planning.

Directs President to ensure the federal government has

a coordinated system of catastrophic incident plans.

Instructs President to (among other things) review

current plans and assess identified resources and related

exercises; submit annual reports to Congress on status

of catastrophic incident planning efforts. Amends

Homeland Security Act of 2002 by creating an Office of

Catastrophic Planning to lead the department’s efforts

concerning catastrophic incident planning and

preparedness.

Sec. 702. Alignment of response frameworks.

Directs the Secretary of Homeland Security and the EPA

Administrator (and other agency heads determined by

the President) to review the National Contingency Plan

and the National Response Framework and submit a

report to Congress concerning (among other things) the

plans’ coordination, consistency, and lessons learned

from the Deepwater Horizon incident.

Sec. 801. Subpoena power for National Commission on

the BP Deepwater Horizon Oil Spill and Offshore Drilling.

Grants conditional subpoena power to the National

Commission on the BP Deepwater Horizon Oil Spill and

Offshore Drilling.

Sec. 4201. Gulf Coast Ecosystem restoration.

Creates a Gulf Coast Ecosystem Restoration Task

Force, staffed by high-ranking federal agency officials, and

appointees from Gulf states and local governments and

affected Indian tribes. The President appoints the chair.

Task force creates a comprehensive restoration plan for

long-term ecological restoration of the Gulf. Plan will

include a list of priority projects: (1) based on best

available science; (2) without regard to geographic

location; and (3) with the highest priority to projects

and programs that will achieve the greatest contribution

in ecosystem restoration and function.

Authorizes $2.5 billion for FY2012-FY2021. The federal

share of project/activity costs shall not exceed 65% of

costs.

CRS-23

Comments

This provision may receive comparisons to the

Administration’s Restoration Plan (released September

2010)b and S. 3763 (Landrieu). Unlike this provision,

which would support the Task Force through

appropriations, both of those proposals would fund the

restoration activities by directing CWA penalties

associated with the Gulf spill into a restoration fund.

Oil Spill Legislation in the 111th Congress

Section Number and Title

Summary

Sec. 5001. Modifications with respect to Oil Spill Liability

Trust Fund.

Increases the Oil Spill Liability Trust Fund financing rate

to 45 cents per barrel. Extends the financing rate sunset

date from the end of 2017 until the end of 2020. Raises

the Trust Fund’s per-incident limitation from $1 billion

to $5 billion (natural resource damages from $500,000

to $2.5 billion).

Comments

The current rate is 8 cents per barrel.

Source: Prepared by CRS.

a.

The gross tonnage rate for double-hull tank vessels remains at $1,900 per gross ton. This would be a decrease, because the Coast Guard increased this value to

$2,000 in a 2009 rulemaking that adjusted liability limits to reflect inflation (Federal Register, Vol. 74, p. 31357; July 1, 2009).

b.

“America’s Gulf Coast: A Long-Term Recovery Plan after the Deepwater Horizon Spill,” at http://www.restorethegulf.gov/release/2010/09/28/america%E2%80%99sgulf-coast-long-term-recovery-plan-after-deepwater-horizon-oil-spill.

CRS-24

Oil Spill Legislation in the 111th Congress

Author Contact Information

(name redacted)

Specialist in Environmental Policy

-red acted-@crs.loc.gov, 7-....

Congressional Research Service

25

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