The Polluter Pays – Sometimes

Types : Bylined Articles

OPA 90 Precludes USA’S Liability for Contribution to the Responsible Party for Removal Costs and Damages

In the first case to examine the issues, the Federal Court of Appeals held that the even where it is negligent OPA 90 as the exclusive vehicle for a remedy shields the federal
government for liability to the spiller for contribution covering the OPA 90 removal costs and damages the spiller had incurred.

The essential facts are quickly recited: The Army Corps of Engineers’ negligence holed Savage’s loaded barge, spilling its oil cargo. Savage paid the removal costs and then sought contribution from the government under the provision in OPA 90 whereby “Any person may bring a civil action for contribution against any other person who is liable or may be potentially liable under this Act or another law.” 33 USC §2709

The Court analyzed first whether OPA 90 provides any remedy, and then whether OPA 90 provided the injured party’s exclusive remedy precluding Savage from resorting to “another law.”

OPA 90 90 Fails to Provide a Remedy by Way of Litigation.

The court began its reasoning noting that OPA 90 in amending the earlier Federal Water Pollution had stripped the spiller of the defense of government negligence. The Court then held that the government was not a “person” under the above section as that term is defined in OPA 90 itself. Finally, the court held that Savage could not take advantage of the defense to liability where the spill is the sole fault of a “third party.” 33 USC §2703, because the United States as the entity to which the spiller is liable is not a “third party,” i. e. a stranger to the event, but rather is the “second” party.