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Environmental Law & Policy Center v. United States Coast Guard

United States District Court, E.D. Michigan, Northern Division

April 11, 2019

ENVIRONMENTAL LAW & POLICY CENTER, and NATIONAL WILDLIFE FEDERATION, Plaintiffs,
v.
UNITES STATES COAST GUARD, and REAR ADMIRAL JOANNA M. NUNAN in her official capacity as Coast Guard District Commander, Defendants.

          Patricia T. Morris, Magistrate Judge.

          ORDER DIRECTING SUPPLEMENTAL BRIEFING ON PLAINTIFFS' MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD

          THOMAS L. LUDINGTON, UNITED STATES DISTRICT JUDGE.

         On August 22, 2018, Plaintiffs Environmental Law & Policy Center (ELPC), and National Wildlife Federation (NWF) filed a complaint against Defendants United States Coast Guard and Rear Admiral Joanna M. Nunan in her official capacity as Coast Guard District Commander. Compl., ECF No. 1. Plaintiffs allege that the Coast Guard's Northern Michigan Area Contingency Plan (NMACP), certified by the Ninth Coast Guard District Commander, Rear Admiral June E. Ryan, on June 6, 2017, is inadequate to respond to a worst-case discharge, and that Defendants wrongfully approved the NMACP in violation of the Administrative Procedure Act (Count I) and the Oil Pollution Act of 1990 (OPA) (Count II). Id. ¶ 101-110.

         On October 15, 2018, Enbridge, an owner of two oil pipelines known as “Line 5” and the primary risk addressed by the NMACP, moved to intervene as a defendant. ECF No. 12. As the owner and operator of Line 5, Enbridge was entitled to intervention as of right. See Fed. R. Civ. P. 24(a)(2). The motion was unopposed and was granted on November 1, 2018. ECF No. 17. The administrative record was filed on December 17, 2018. ECF No. 20.

         On February 15, 2019, Plaintiffs moved to supplement the administrative record to add Coast Guard Commandant Adm. Paul Zukunft's testimony before the U.S. Senate Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard on November 16, 2017, some five months after Rear Admiral Ryan's certification of the NMACP. ECF No. 24. A statement by Admiral Zukunft made before the committee in April of 2015 is included in the administrative record. Defendant responded on March 1, 2019. ECF No. 25.

         I.

         Some background on the Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq., is necessary to address the legal context of Plaintiff s motion. On March 24, 1989, the Exxon Valdez spilled over 11 million gallons of Alaskan crude into the water of Prince William Sound. Although the environmental damage and massive cleanup efforts were the most visible effects of this casualty, one of the most important outcomes was the enactment of the OPA

         The OPA established new requirements and extensively amended the Federal Water Pollution Control Act (33 U.S.C. 1301 et. seq.) to provide enhanced capabilities for oil spill response and natural resource damage assessment. The OPA also amended the Clean Water Act and addressed the wide range of problems associated with preventing, responding to, and paying for oil pollution incidents in navigable waters of the United States. It created a comprehensive prevention, response, liability, and compensation regime to deal with vessel- and facility-caused oil pollution to U.S. navigable waters. OPA greatly increased federal oversight of maritime oil transportation, while providing greater environmental safeguards by:

• Setting new requirements for vessel construction and crew licensing and manning,
• Mandating contingency planning,
• Enhancing federal response capability,
• Broadening enforcement authority,
• Increasing penalties,
• Creating new research and development programs,
• Increasing potential liabilities, and
• Significantly broadening financial responsibility requirements.

         Title I of OPA established new and higher liability limits for oil spills, with commensurate changes to financial responsibility requirements. It substantially broadened the scope of damages, including natural resource damages (NRDs), for which polluters are liable. It also authorized the Oil Spill Liability Trust Fund (OSLTF) up to $1 billion to pay for expeditious oil removal and uncompensated damages up to $1 billion per incident.[1] The primary source of revenue for the fund is a five-cents per barrel fee on imported and domestic oil. Collection of this fee ceased on December 31, 1994, due to a “sunset” provision in the law. Other revenue sources for the fund include:

• interest on the fund,
• cost recovery from the parties responsible for the spills, and
• any fines or civil penalties collected.

         The OPA streamlined and strengthened EPA's ability to prevent and respond to catastrophic oil spills. The OPA requires oil storage facilities and vessels to submit to the Federal government plans detailing how they will respond to large discharges. EPA has published regulations for aboveground storage facilities; the Coast Guard has done so for oil tankers.

         The OPA also requires the development of Area Contingency Plans to prepare and plan for oil spill response on a regional scale.[2]

         Pursuant to 33 U.S.C. § 1321(j) (National Response System):

Consistent with the National Contingency Plan required by subsection (c)(2) of this section, as soon as practicable after October 18, 1972, and from time to time thereafter, the President shall issue regulations consistent with maritime safety and with marine and navigation laws (A) establishing methods and procedures for removal of discharged oil and hazardous substances, (B) establishing criteria for the development and implementation of local and regional oil and hazardous substance removal contingency plans, (C) 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, and (D) governing the inspection of vessels carrying cargoes of oil and hazardous substances and the inspection of such cargoes in order to reduce the likelihood of discharges of oil from vessels in violation of this section.

33 U.S.C. § 1321(j)(4), in turn (Area Committees and Area Contingency Plans) provides:

(A) There is established for each area designated by the President an Area Committee comprised of members appointed by the President from qualified-
(i) personnel of Federal, State, and local agencies; and
(ii) members of federally recognized Indian tribes, where applicable.
(B) Each Area Committee, under the direction of the Federal On-Scene Coordinator for its area, shall-
(i) prepare for its area the Area Contingency Plan required under subparagraph (C);
(ii) work with State, local, and tribal officials to enhance the contingency planning of those officials and to assure preplanning of joint response efforts, including appropriate procedures for mechanical recovery, dispersal, shoreline cleanup, protection of sensitive environmental areas, and protection, rescue, and rehabilitation of fisheries and wildlife, including advance planning with respect to the closing and reopening of fishing areas following a discharge; and
(iii) work with State, local, and tribal officials to expedite decisions for the use of dispersants and other mitigating substances and devices.
(C) Each Area Committee shall prepare and submit to the President for approval an Area Contingency Plan for its area. The Area Contingency Plan shall-
(i) when implemented in conjunction with the National Contingency Plan, be adequate to remove a worst-case discharge, and to mitigate or prevent a substantial threat of such discharge, from a vessel, offshore facility, or onshore facility operating in or near the area
(ii) describe the area covered by the plan, including the areas of special economic or environmental importance that might be damaged by a discharge;
(iii) describe in detail the responsibilities of an owner or operator and of Federal, State, and local agencies in removing a discharge, and in mitigating or preventing a substantial threat of a discharge;
(iv) list the equipment (including firefighting equipment), dispersants or other mitigating substances and devices, and personnel available to an owner or operator, Federal, State, and local agencies, and tribal governments, to ensure an effective and immediate removal of a discharge, and to ensure mitigation or prevention of a substantial threat of a discharge;
(v) compile a list of local scientists, both inside and outside Federal Government service, with expertise in the environmental effects of spills of the types of oil typically transported in the area, who may be contacted to provide information or, where appropriate, participate in meetings of the scientific support team convened in response to a spill, and describe the procedures to be followed for obtaining an expedited decision regarding the use of dispersants;
(vi) describe in detail how the plan is integrated into other Area Contingency Plans and vessel, offshore facility, and onshore facility response plans approved under this subsection, and into operating procedures of the National Response Unit;
(vii) include a framework for advance planning and decision making with respect to the closing and reopening of fishing areas following a discharge, including protocols and standards for the closing and reopening of fishing areas;
(viii) include any other information the President requires; and
(ix) be updated periodically by the Area Committee.

(emphasis added).

         An Area Contingency Plan (ACP) is a reference document prepared for the use by all agencies engaged in responding to environmental emergencies within a defined geographic area. An ACP may also contain Sub-Area and Geographic Response Plans, which may have more access to essential area-specific information and promotes inter-agency coordination to improve the effectiveness of responses.[3]

         Under the OPA and the National Contingency Plan (NCP), all U.S. territory is divided into jurisdictional zones for purposes of removal and response actions. The U.S. Coast Guard is designated the lead agency for planning and response in the coastal zone and certain major inland water bodies, and EPA is designated the lead for the inland zone, with certain exceptions for areas managed by the Department of Defense. The EPA also has a role in coastal zone planning, specifically regarding oil spill countermeasure concurrences and authorizations. Coast Guard-lead coastal plans and EPA-lead inland plans covering adjacent areas are to be compatible. Id.

         When implemented in conjunction with the NCP, the ACP must be adequate to address a worst-case discharge and mitigate or prevent a substantial threat of such discharge. Additionally, ACPs may provide guidelines for conducting specific tasks such as:

• sampling,
• classifying,
• segregation, and
• temporary staging of recovered waste.

         Other specific tasks listed include identifying prior state disposal approval, various waste disposal options and a hierarchy of preferences for disposal alternatives (40 CFR 300.310(c)).

         The area covered by the ACP may be defined by geographic features, jurisdictional boundaries, or both, at the discretion of the Area Committee (AC). Under the direction of an OSC and subject to approval of EPA, within the inland zone, each AC is to develop an ACP for its designated area. This plan, when implemented in conjunction with other provisions of the NCP, should be adequate to remove a worst-case discharge under 40 CFR 300.324, and to mitigate or prevent a substantial threat of such a discharge, from a vessel, offshore facility or onshore facility operating in or near the area. Within the ACP boundaries, sub-areas may be defined where there are unique circumstances that may require tailored response strategies.

         After the AC has developed the initial inventory of sensitive areas and potential sources, it then considers the general response strategies with special consideration given to potential worst-case discharges. Oil spill countermeasures include dispersants, in-situ burning (including accelerants), bio-remediation, surface washing agents, solidifiers and other methods for reducing the impact of oil to the environment.

         Facilities that could reasonably be expected to cause “substantial harm” to the environment by discharging oil into or on navigable waters are required to prepare and submit Facility Response Plans (FRPs). Facilities that could cause “significant and substantial harm” are required to have their plans approved by an EPA Regional Administrator (RA). Facilities may be identified as posing substantial harm either through a self-identification process, or by the determination of an RA. These include ...


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