The Marshall Spill – what now?

29 Jul 2010

Kalamazoo River Inlet, Ted Swoboda Photography, Saugatuck, MI

With a normal spill, the MDNRE would respond under the Michigan Clean Water Act and force the company to act under its Spill Prevention Control and Countermeasure plan which is required when there are storage facilities of oil or other polluting materials that may spill into waters.

However, because this is a pipeline, it is actually NOT governed by the EPA or the MDNRE – it is regulated by the US Department of Transportation. DOT has statutory responsibility for ensuring the safe transportation of hazardous liquids by pipeline. DOT has promulgated safety standards concerning pipeline construction, operation, and maintenance.  The Office of Pipeline Safety (OPS) enforces these regulations and inspects pipelines to monitor compliance with DOT safety standards.  OPS has responsibility for review and approval of response plans for cleanups.

The Oil Pollution Act (OPA) was signed into law in August 1990, and expanded the federal government’s ability, funding and resources  to respond to oil spills.   The OPA provided new requirements for contingency planning both by government and industry.  Finally, the OPA increased penalties for regulatory noncompliance, broadened the response and enforcement authorities of the Federal government, and preserved State authority to establish law governing oil spill prevention and response.  If it is determined that owner of the pipeline failed to promptly give notice of the spill, it could be fined up to $500,000; and if an individual is found criminally liable, he could spend up to 15 years in prison.  Civil penalties may be assessed at $25,000 for each day of violation or $1,000 per barrel of oil discharged (in this case there is a report of over 20,000 barrels spilled) .

While the federal government has taken over responding to this spill, neither the federal  Clean Water Act or the OPA preempts State Law.  Michigan may impose additional liability, removal actions, and fines and penalties for responsible parties.

Back in 2008, another pipeline company agreed to pay $5.3 million in civil penalties for alleged violations of the Clean Water Act related to illegal spills or discharges of petroleum products from its pipeline network at 11 locations in six states over a 10 year period.  One can only expect that Enbridge (which services refineries all through the midwest including a huge BP refinery in Indiana) can expect similar or harsher treatment.  Certainly, there is no shortage of public and private plaintiffs ready to lash out.

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