• Criminal and civil penalties may be enforced against facilities that violate prevention, response, and notification regulations regarding oil spills.

The Environmental Protection Agency (EPA) regulates the prevention, response, and notification of oil spills that reach navigable water and/or adjoining shorelines. This authority comes from both the Clean Water Act (CWA) and the Oil Pollution Act (OPA). However, a facility owner or operator should know that there may be criminal and civil penalties for violating the regulations.

Criminal penalties

Per 33 U.S.C. 1319(c)(1) and (2) and 1321(b)(3), a person found guilty of negligently or knowingly discharging oil in a harmful quantity into a water of the U.S. or upon adjoining shorelines or into the contiguous zone, may face the following penalties:

• Negligent Violations: One year and/or $2,500–$25,000 per day; Subsequent convictions two years and/or $50,000 per day.
• Knowing Violations: Three years and/or $5,000–$50,000 per day; Subsequent convictions six years and/or $100,000 per day.

A person in charge of an onshore or offshore facility who fails to immediately notify the appropriate federal agency as soon as that person has knowledge of oil that is discharged in a reportable (harmful) quantity into or upon waters of the United States, upon adjoining shorelines, or into the Contiguous Zone may face five years and/or fines under 18 U.S.C. 3571 (see 33 U.S.C. 1321(b)(5)).

Civil penalties

Section 311(b)(3) of the CWA prohibits the discharge of threshold amounts of oil or hazardous substances to navigable waters of the U.S. To reduce the likelihood of a mishap, regulations issued under section 311(j) (published at Part 112) require facilities that store oil in significant amounts to prepare spill prevention plans and to adopt certain measures to keep accidental releases from reaching navigable waters. Certain types of facilities that pose a greater risk of release must also develop plans to respond promptly to clean up any spills that do occur.

Sections 311(b)(6) and (7) of the CWA, also found at 33 U.S.C. 1321(b)(6) and (7), authorize civil penalties for violation of any of these requirements. The penalty monies are deposited in the Oil Spill Liability Trust Fund, administered by the U.S. Coast Guard, and are used to help cover any spill cleanup costs incurred by the government. Civil penalties reduce the likelihood of a spill by providing an incentive to the violator and to other members of the regulated community to comply with the Act’s requirements, help replenish funds that are used to clean up the environment, and provide a level playing field for businesses that meet their obligations under the law.

OPA increased penalties for violations of Section 311 of the CWA. In administrative cases, Section 311(b)(6) of the Act, as amended, 33 U.S.C. 1321(b)(6), authorizes EPA to assess Class I or Class II administrative penalties for the violation of section 311(b)(3) or section 311(j). A Class I penalty may be assessed in an amount of up to $10,000 per violation, not to exceed $25,000. For liability purposes each violation should also be tabulated on a daily basis. A Class II penalty may be assessed in an amount of up to $10,000 per day of violation, not to exceed $125,000.

However, the above have been increased by 10 percent, for events occurring after January 30, 1997, by the Debt Collection Improvement Act of 1996 (DCIA) and its implementing regulations published at Part 19. Future across-the-board inflation adjustments under the DCIA are to be published not less often than every four years. EPA typically publishes annual increases to civil penalty amounts in January.

Under Part 19, the penalty amounts as enacted and as amended for inflation are as follows:

OPA also established additional judicial sanctions. A person who violates section 311(b)(3) of the Clean Water Act is subject to a civil penalty of up to $25,000 per day of violation, or up to $1,000 per barrel of oil or per unit of reportable quantity of CWA-listed hazardous substance discharged. In instances of gross negligence or willful misconduct, these penalties increase to a $100,000 minimum and a maximum of $3,000 per barrel or unit of reportable quantity discharged.

EPA interprets this to mean that in the judicial forum the government may elect whether per day or volumetric penalties may apply according to how it pleads its case, or plead both approaches in the alternative. The law also provides that a person subject to regulations implementing the spill prevention and response program of section 311(j) of the Act may be assessed civil penalties of up to $25,000 per day of violation.