Washington’s Federal Legislators Focus on Oil Spill Response, Prevention, and Reparations in the Pacific Northwest
In the first few months of 2006, Washington state representatives, senators, and senatorial candidates appear to be making the issue of oil spills a priority. So far this year, Washington legislators have urged payment of the pending multi-billion dollar punitive damage award in the Exxon Valdez litigation, played a role in tabling a Senate bill that would have allowed increased tanker traffic in Puget Sound, and introduced bills to both the House and Senate aimed at preventing oil spills during the transfer process, strengthening U.S. Coast Guard inspections, and decreasing oil spill response time by state and federal agencies.
This focus may be due in part to a series of high-profile oil spills in the Northwest over the past several years. As discussed previously in the Environmental News, the New Carissa oil spill off the coast of Oregon has been viewed as a warning of the kinds of major oil spills that can occur. In Puget Sound, the 2004 Dalco Passage spill of approximately 1,500 gallons received considerable attention, particularly since the spill went undetected for a significant time, the responsible party was not identified for weeks after the spill occurred, and, at that time “was the nation’s most expensive spill per gallon,” costing $2 million. In another spill, a barge owned by Foss Maritime Company released approximately 4,800 gallons of industrial fuel oil at the ChevronTexaco terminal into Puget Sound near Shoreline, Washington in December 2003 (“Point Wells spill”). The Point Wells spill fouled a pristine four-hundred-acre marine sanctuary, Suquamish tribal shellfish beds, public beaches, and the Doe-kag-wats marsh on the northern shore of Port Madison. In April 2005, the Washington Department of Ecology (“Ecology”) fined Foss Maritime $577,000 in penalties for the 2003 Point Wells spill. This penalty was imposed in addition to an assessment of $4.5 million in cleanup costs and an as yet undetermined amount for the costs to restore environmental resources damaged by the spill. The $577,000 fine is the second-largest ever issued by Ecology for a petroleum spill. Ecology Director Jay Manning explained last year that, “The lesson here is that there’s no such thing as an insignificant spill. Anyone who operates any size of watercraft must take extra care to not spill fuel into the water.”
Looking back further, Washington regulators imposed the largest oil spill compensation claim in 1994, for the 1991 spill by the Japanese fishing vessel Tenyo Maru. In the Tenyo Maru spill, 100,000 gallons of intermediate fuel oil and diesel spilled about twenty-five miles northwest of Cape Flattery after the Chinese freighter Tuo Hai collided with the Tenyo Maru, which was carrying over 350,000 gallons of intermediate fuel oil and about 97,800 gallons of diesel. The Tenyo Maru quickly began to sink and release oil after the collision. In the Tenyo Maru spill, the company responsible for the spill settled with Ecology for $5,200,000; a consent decree has been filed and project implementation is underway.
While Ecology, as a state agency, cannot fine the U.S. Army Corps of Engineers, it cited the federal agency in March 2006 for spilling approximately 50 gallons of hydraulic oil into the Columbia River from the oceangoing dredge Essayons in October 2005 (following four previous oil spills dating back to 2002 from the same vessel, two of which resulted in releases to the Columbia River). According to Ecology, a private vessel could have been fined up to $10,000, and Ecology was not notified of the spill for nearly ninety minutes after it occurred.
A review of data kept by Ecology shows that, in Washington state, twenty-five damage assessments from spills occurring between 2002 and 2005 are currently in progress, including assessments for the Dalco Passage and Point Wells spills. According to Ecology, there have been at least twelve spills of over 1,000 gallons in Washington since 2002. The response to a recent, relatively small, fifteen-gallon oil spill in Puget Sound from a Harbor Island stormwater outfall on March 17, 2006, illustrates the response efforts now in place in Washington: After the spill was reported, the U.S. Coast Guard and Ecology responded “by sea, land and air,” eventually using $15,000 from the federal Pollution Liability Trust Fund to boom the outfall. Ecology has not received any reports of harm to marine birds or other wildlife from the spill, but Stephen Metruck, Coast Guard captain for the port of Puget Sound, told a Seattle-area newspaper, “Any pollution within Puget Sound is something we take seriously.” This high level of concern appears to be shared by Washington’s Congressional delegation.
On March 24, 2006, perhaps not coincidentally, the seventeenth anniversary of the eleven-million-gallon Exxon Valdez oil spill in Alaska’s Prince William Sound, Representative Dave Reichert (R-WA-08) sent letters seeking some closure to the 1989 disaster. Representative Reichert urged both Rex Tillerson (CEO, ExxonMobil) to pay, and his colleagues in the United States Congress to require payment, of the $4.5 billion punitive damage award awarded to the fishermen and other plaintiffs in the In re Exxon Valdez litigation. The current award was reduced from the original $5 billion award, payment of which has been stayed pending appellate court proceedings. Exxon alleges the award is unconstitutional and should be reduced to no more than $25 million. This call to pay reflects the fact that Exxon has avoided paying any of the judgment while appealing decisions in Alaska federal district court to the Ninth Circuit six times, and winning every time.
Representative Reichert, echoing plaintiffs’ sentiments, stated, “I’m frankly appalled that after almost 20 years, the fisherm[e]n and others who lost their livelihoods as a result of Exxon’s negligence still have not received a single penny of the punitive damages awarded to them … ExxonMobil earned $36 billion last year, a record for a single company, yet it still has not paid any of the punitive damages to people harmed by this disaster … 33,000 fishermen, businesses, and affected communities are still waiting for just compensation.” Representative Reichert also noted that the Exxon Valdez Oil Spill Trustee Council estimates that the spill damaged 1,300 miles of coastline and killed approximately 2,800 sea otters and 35,000 birds. University of Washington law professor William H. Rodgers, Jr. explains that the Exxon Valdez “spill killed more birds, contaminated more shoreline, covered more water, spawned more lawsuits, and ruined more lives than any oil spill in the history of this continent.”
Exxon countered that it has paid $900 million to the Exxon Valdez Oil Spill Trustee Council, which consists of three state and three federal representatives and oversees use of settlement funds to restore damage to the environment of the Prince William Sound and surrounding areas. Further, Exxon noted that the civil settlement included a “Reopener Clause,” under which Exxon is required to spend “an additional $100 million to fund restoration or rehabilitation of resources whose injuries were not foreseeable in 1989.” In support of its appeals and arguments for remittitur, Exxon stated that it paid $2.2 billion toward cleanup of the Valdez spill between 1989 and 1992, and that it also “voluntarily began paying … over $300 million in … damage claims immediately to fully compensate those directly damaged by the spill[, to over] 11,000 people and businesses[.]” Exxon also argued that the “unprecedented punitive damage judgment of $4.5 billion is meant solely to punish,” and that “it is not, in any way, an issue of compensation to the plaintiffs. It is not an outstanding claim that must be resolved. The appeals process has not delayed in any way payments for the actual damages caused by the spill,” and Exxon “is exercising a fundamental right to appeal these damages.”
In another legislative initiative, on November 8, 2005, Senator Ted Stevens (R-AK) introduced S. 1977, a bill that would have repealed section five of the Marine Mammal Protection Act, 33 U.S.C. 476 (a section also known as the Magnuson Amendment of 1977). The Magnuson Amendment seeks to protect Puget Sound from oil spills by restricting the tanker traffic supplying state refineries. Former senator Warren Magnuson (D-WA) “put the Puget Sound protections in place after concluding that the Cherry Point refinery in Whatcom County could become a ‘super port’ for Alaskan crude oil.” Senator Maria Cantwell (D-WA) stated last November that she would filibuster Senator Stevens’ bill, which would have allowed increased oil tanker traffic in Puget Sound by expansion of BP’s Cherry Point refinery, and to do “everything in [her] power to prevent giveaways to big oil companies that will increase the risk of a major oil spill in our precious Puget Sound.” In March 2006, however, Senator Stevens asked that his bill be “permanently postponed” – an action some surmised was intended to remove a potential political advantage for Senator Cantwell over Mike McGavick, a Washington republican running for U.S. Senate.
Meanwhile, Senator Cantwell introduced S. 2440, the Oil Pollution Prevention and Response Act of 2006, 109th Cong. (2006), to the Senate on March 16, 2006. S. 2440 would, among other changes, strengthen safety standards for towing vessels; increase the frequency and comprehensiveness of vessel inspections performed by the U.S. Coast Guard; require promulgation of regulations to reduce the risk of spills during oil transfers; improve coordination with tribes with respect to oil spill prevention, preparedness, and response; and create a Federal Oil Spill Research Committee.
In a related initiative, Representative Jay Inslee (D-WA) introduced H.R. 4724, the Oil Spill Prevention Act of 2005, 109th Cong. (2006), to the House on February 8, 2006. H.R. 4724 attempts to prevent spills during the oil transfer process. According to Representative Inslee’s office, H.R. 4724 contains U.S. Coast Guard recommendations provided after the Point Wells Spill – recommendations that Representative Inslee seeks to implement nationally.
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