Fifth
Circuit Defines Scope of the Oil Pollution Act
Rice v. Harken Exploration Co., 2001 WL 422051 (5th
Cir. Tex).
Craig
Pake, 3L
This issue for the Fifth Circuit is a case of first impression
on the scope of the Oil Pollution Act (OPA). After Congress'
creation of the OPA in 1990, there has been an on-going debate
as to the scope of the OPA and the reach Congress intended to
give the Act. In recent years, the EPA and Army Corps of Engineers
have interpreted the reach of the OPA to include "bodies
of water in the United States," similar in scope to the
Clean Water Act (CWA). Trial courts have struggled with the
question of whether the OPA should be given a broad interpretation
or whether its scope is more limited and narrow. In this case,
the court addressed the question of whether sub-surface waters
fall within the scope of the OPA. One of the questions raised
by the current case is what is "navigable water" or
"waters of the United States." The Fifth Circuit answered
the question that subsurface waters are not navigable waters
protected under the OPA.
Background
The OPA was enacted in 1990 in response to the Exxon Valdez
disaster and was passed in order to impose strict liability
on all parties responsible for the spill or discharge of oil.
The OPA targets each liable party for the damages and costs
of the clean up of waters and/or adjoining shorelines and pertains
to any activity which discharges or poses a hazard to discharge
oil into any "navigable waters."
This dispute arises between the Rice family (Plaintiffs) and
Harken Exploration Co. (Defendants). The Rice family owns the
surface rights to Big Creek Ranch in Hutchinson County Texas,
located in the Texas panhandle, hundreds of miles inland from
the Gulf of Mexico. Harken Exploration Co. operates oil and
gas production on the property, pursuant to existing oil leases.
Harken began its oil operations in January of 1996, however
Big Creek Ranch has been used for oil and gas production for
several decades by other oil companies.
The Rices allege that Harken contaminated the ground waters
of Big Creek Ranch and the surface waters of the Big Creek in
direct violation of the OPA. Big Creek is a small seasonal creek
that, for much of the year, is dry and void of surface water.
The Rices assert that Harken contaminated sub-surface ground
water beneath the ranch and contaminated Big Creek by way of
small spills and leaks from their oil tanks and other equipment.
Harken does not deny these small leaks and spills occurred but
instead states that these small spills are not unusual for any
type of oil drilling production. Furthermore, Harken states
that at no time did any of the discharges endanger navigable
water under the OPA, since all the leaks and spills occurred
on dry land. The Rices contend that the surface waters of the
creek were contaminated when oil seeped through the ground into
the large subsurface water pools that flowed into the Big Creek.
They also argue that surface water run-off associated with rain
water washed oil into the creek, causing further contamination.
Navigable Waters Under OPA
Plaintiffs argue that the term "navigable waters"
in the OPA not only includes oceans, bays, seas, and large rivers
but also includes smaller rivers, streams, creeks, and all subsurface
waters. To advance their argument the Rices claim that Congress
used the same language in both the OPA and the Clean Water Act
(CWA) giving the OPA the same broad interruption as the CWA.
Plaintiffs argue that the OPA should be construed as broadly
as the Clean Water Act, covering "waters of the United
States." However, in a recent Supreme Court decision, Solid
Waste Agency of Northern Cook County v. United States Army Corps
of Engineers1 (SWANCC), the nation's highest court
restricted the scope of the CWA in defining "waters of
the United States." In SWANCC, the Supreme Court ruled
that the Army Corps of Engineers had exceeded their authority
in the application of the "Migratory Bird Rule," which
had been used to extend the reach of the CWA to include any
interstate water, which could be used as migratory bird habitat.2
The SWANCC decision invalidated this Rule, limiting the scope
of the CWA to water that is actually navigable or water that
adjoins an open body of navigable water.
Defendants argue that the OPA applies only to navigable bodies
of water such as seas, inlets, bays, and oceans, not inland
bodies of waters hundreds of miles away from the sea. The trial
court agreed with the Defendants and refused to apply the OPA
to inland bodies of water. However, the Fifth Circuit disagreed
on this point, finding that both the House Conference Report
and the Senate Report indicate that Congress' intent was for
the OPA to "cover all bodies of water and resources covered
by § 311 of the CWA, including the inland waters of the
United States."3
At trial and on appeal, the Rices produced evidence of contaminated
groundwater, claiming that oil had seeped through the ground
to underground water, which in turn contaminated Big Creek.
They failed to produce any evidence that the oil spills directly
contaminated the surface waters of Big Creek. Harken argues
that the nature of the oil spills on Big Creek Ranch do not
fall within the scope of the OPA and that even if the OPA's
reach is as broad as that of the Clean Water Act, the CWA has
never been so sweeping as to include groundwater as a protected
body of water.4
In the present case, the Fifth Circuit could not find any evidence
to construe the term navigable waters under the OPA any more
broadly than in the CWA. Nor was there any direct evidence that
Big Creek was a navigable body of water since much of the year
it is dry and void of all surface water. The Fifth Circuit held
that subsurface waters are not "waters of the United States"
covered by the OPA. Furthermore, since the Rices did not present
evidence showing direct contamination of Big Creek, the trial
court’s ruling for a summary judgement was affirmed. However,
the court did leave open the question of whether the discharges
into subsurface waters may be actionable under the OPA or the
CWA if the discharges resulted in a direct contamination of
a protected body of water.
Conclusion
The Fifth Circuit affirmed the trial court’s ruling for
summary judgement in favor of Harken, finding that groundwater
is not within the scope of the OPA under these circumstances.
The Plaintiffs were not able to prove direct contamination of
the surface waters of Big Creek, nor did they present evidence
that Big Creek was connected, in any way, to a navigable body
of water. While it is unclear what the court would do in a case
where contaminated ground water directly contaminates surface
water, this case suggests that a plaintiff must show a direct
connection of contaminated surface water to a protected or navigable
body of water to prevail under the OPA.
ENDNOTES
1. 531 U.S. 159 (2001).
2. Id.
3. Senate Report No. 101-94, reprinted in 1990 U.S.C.C.A.N.
722, 733 and House Conference Re-port No. 101-653, reprinted
in 1990 U.S.C.C.A.N. 779, 779-80.
4. Exxon Corp. v. Train, 554 F.2d 1310, 1322 (5th Cir. 1977)
(no federal control of any pollution of subsurface waters under
the CWA).
To Learn More . . .
Oil Pollution Act of 1990, 33 U.S.C. §§ 2702 to 2761
The Oil Pollution Act (OPA) of 1990 streamlined and strengthened
EPA’s ability to prevent and respond to catastrophic oil
spills through new reporting and damages provisions. A trust fund
financed by a tax on oil is available to clean up spills when
the responsible party is incapable or unwilling to do so. 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.
For more information, visit: http://www.epa.gov/region5/defs/html/opa.htm
