[As to the United States’, Transocean’s, and Anadarko’s Cross-Motions for Partial Summary Judgment Regarding Liability under the CWA and OPA]
Before the Court are three cross-motions for partial summary judgment regarding the liability of BP Exploration and Production, Inc. (“BP”), Anadarko Petroleum Corporation (“Anadarko”), Anadarko E & P Company LP (“Anadarko E & P”), and the Transoeean entities
I. BACKGROUND
For purposes of the instant Motions, the following facts are not in dispute: At all relevant times, BP and Anadarko were co-lessees of Block 252, Mississippi Canyon (“MC 252”), on the Outer Continental Shelf. BP and Anadarko also co-owned the Macondo Well, an exploratory well on MC 252. At all relevant times, the DEEP-WATER HORIZON, a mobile offshore drilling unit (“MODU”), was owned and operated by one or more of the Trans-ocean entities. From February 2010 until April 2010, the DEEPWATER HORIZON was engaged in drilling activities on the
Following these events, the United States instituted case number 10-4536, United States v. BP Exploration & Prod. Inc., et al, which alleged two claims for relief. First, the Government asserted civil penalties against the Defendants
The Government moved for partial summary judgment on the issues of liability under the CWA and OPA. (Rec. Doc. 4836). Each Defendant filed an opposition to the Government’s Motion. (Rec. Docs. 5124, 5113, 5103). Additionally, the Anadarko entities cross-moved for partial summary judgment that they are not liable for CWA penalties as a matter of law. Trans-ocean also cross-moved for partial summary judgment, urging that it is not liable under either OPA or the CWA with respect to the underwater discharge of oil.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
If the dispositive issue is one that the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’ ” Int’l Shortstop, Inc. v. Rally’s, Inc.,
III. DISCUSSION
A. Anadarko E & P
On April 20, 2010, Anadarko E & P submitted an application to the Minerals Management Service (MMS) to reassign its 22.5% interest in the Macondo lease to Anadarko, which the MMS approved on April 28, 2010. The Anadarko entities argue that the assignment was retroactive to April 1, 2010. The Government initially argued that the assignment was not retroactive and that both Anadarko E & P and Anadarko were liable under OPA and the CWA. However, it appears the Government has receded from this position, although it is not entirely clear to what extent.
B. The Oil Pollution Act
The Government argues that BP, Anadarko, and Transocean are jointly and severally liable under OPA for removal costs and damages, because oil discharged from both the Macondo Well, an offshore facility, and appurtenances (the BOP and riser segment) of the DEEPWATER HORIZON, a vessel. BP and Anadarko generally do not dispute their liability under OPA. Transocean, however, argues that it is not liable with respect to the discharge that occurred beneath the surface of the water, because only the lessees or permittees of the area are liable under OPA for such discharges.
Under OPA, “responsible parties” are strictly liable for removal costs and dam
Notwithstanding any other provision or rule of law, and subject to the provisions of this Act, each responsible party for a vessel or a facility from which oil is discharged ... into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages specified in subsection (b) of this section that result from such incident.
33 U.S.C. § 2702(a) (emphasis added). Who is a “responsible party,” is set out in OPA’s definition section, Section 1001:
“responsible party” means the following: (A) Vessels.—In the case of a vessel, any person owning, operating, or demise chartering the vessel.
(C) Offshore facilities.—In the case of an offshore facility ..., the lessee or permittee of the area in which the facility is located....
33 U.S.C. § 2701(32). ‘Vessel,” as that term is used in Sections 1001 and 1002(a), “means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, other than a public vessel.” 33 U.S.C. § 2701(37). “ ‘[Ojfishore facility’ means any facility of any kind located in, on, or under any of the navigable waters of the United States, ... other than a vessel or a public vessel.” 33 U.S.C. § 2701(22). Furthermore, “facility,” as that term is used to define “offshore facility” and in Section 1002(a), means “any structure, group of structures, equipment, or device (other than a vessel) which is used for one or more of the following purposes: exploring for, drilling for, producing, storing, handling, transferring, processing, or transporting oil....” 33 U.S.C. § 2701(9). Thus, when oil discharges from a “vessel,” the responsible party is the owner, operator, or demise charterer of the vessel (hereinafter, “owner/operator”). When oil discharges from an “offshore facility,” the responsible party is the lessee or permit-tee of the area in which the facility is located (hereinafter, “lessee”).
As the words “other than a vessel” in the definitions for “facility” and “offshore facility” indicate, vessels and offshore facilities typically are mutually exclusive categories. However, OPA provides a hybrid definition for MODUs: “ ‘mobile offshore drilling unit’ means a vessel (other than a self-elevating lift vessel) capable of use as an offshore facility.” 33 U.S.C. § 2701(18) (emphasis added). In the MODU context, then, the responsible party is determined by how the MODU was used at the time of the incident (subject to the caveat created by Section 1004(b), discussed below). When the MODU is not being used as an offshore facility—such as when it is moving from one drilling location to another—the MODU is treated as a vessel and the responsible party is the owner/operator of the MODU (the responsible party for a vessel). When the MODU is being used as an offshore facility—i.e., when the MODU is “exploring for, drilling for, producing, [etc.] ... oil” “in, on, or under ... navigable waters”—then the responsible party is the lessee (the responsible party for an offshore facility).
Section 1004(b) creates an exception to this rule, however:
(b) Division of liability for mobile offshore drilling units
(1) Treated first as tank vessel
For purposes of determining the responsible party and applying this
(2) Treated as facility for excess liability
To the extent that removal costs and damages from any incident described in paragraph (1) exceed the amount for which a responsible party is liable (as that amount may be limited under subsection (a)(1) of this section), the mobile offshore drilling unit is deemed to be an offshore facility. For purposes of applying subsection (a)(3). of this section, the amount specified in that subsection shall be reduced by the amount for which the responsible party is liable under paragraph (1).
33 U.S.C. § 2704(b) (emphasis added). Section 1004(b)(1) establishes that, even when the MODU is being used as an offshore facility, the owner/operator of the MODU will be the responsible party for a discharge that occurs on or above the surface of the water. In such a case, if liability exceeds the limits that would apply to a tank vessel, Section 1004(b)(2) provides that excess liability is borne by the lessee or permittee.
Thus, OPA’s liability scheme for MO-DUS can be summarized as follows:
(1) If the MODU is being used as an offshore facility and the discharge occurs beneath the water’s surface, then the responsible party is the lessee.
(2) If the MODU is being used as an offshore facility and the discharge occurs on or above the water’s surface, then the responsible party is the owner/operator of the MODU up to the limits of liability that would apply for a tank vessel. Excess liability is borne by the lessee.
(3) If the MODU is not being used as an offshore facility, the responsible party for a discharge from the MODU is the owner/operator of the MODU.
Because of this liability allocation, the Court need not examine whether the discharge of oil was “from” the Macondo Well or an appurtenance of the MODU, or both. The MODU was being used as an offshore facility at the time of the discharge; therefore, with respect to the subsurface discharge, BP and Anadarko are responsible parties.
The Government argues that because Section 1004(b) only speaks to surface discharges, there is no reason the owner/operator of the MODU cannot be liable for a subsurface discharge. It argues that the purpose of Section 1004(b)(1) is merely to increase the liability of the owner/operator when a MODU is being used as an offshore facility, since it treats the MODU as a “tank vessel.” The Government contends that, absent this provision, the MODU would be treated as a non-tank vessel, which has a lower limit of liability. See 33 U.S.C. 2704(a). However, if effect is to be given Section 1004(b)(l)’s phrase, “on or above the surface of the water,”
Although the Court need not look outside the statutory language to reach its conclusion, it is worth noting that this interpretation is consistent with- at least some commentators
Furthermore, this interpretation is entirely consistent with the scheme established in OPA’s limits of liability. OPA is rooted in economic theory—the parties benefiting the most from oil production and transportation are exposed to the greatest liability. See Nat’l Shipping Co. v. Moran Mid-Atl. Corp.,
There is perhaps a question as to whether Transocean would be liable to the Government for removal costs, but not damages, under Section 1004(c)(3) of OPA. That Section states:
Notwithstanding the limitations established under subsection (a) of this section and the defenses of section 2703 of this title, all removal costs incurred by the United States Government or any State or local official or agency in connection with a discharge or substantial threat of a discharge of oil from any Outer Continental Shelf facility14 or a vessel carrying oil as cargo from such a facility shall be borne by the owner or operator of such facility or vessel.
33 U.S.C. § 2704(c)(3) (emphasis added). Curiously, this Section does not use “responsible party” to assign responsibility, instead referring to the “owner or operator.”
The parties raise three other issues relative to OPA. First is whether liability under OPA is divisible or joint and several. The second issue pertains to OPA’s liability cap. Third is whether the Government is entitled to a declaratory judgment for removal costs and damages.
As to the first issue, previous courts held that liability under OPA is joint and several when there is more than one responsible party. See In re Settoon Towing, LLC,
tion 1321 of this title [Section 311 of the CWA].” 33 U.S.C. § 2701(17). Liability under Section 311, in turn, “has been determined repeatedly to be strict, joint and several.” H.R.Rep. No. 101-653, at 2 (1990) (Conf. Rep.), reprinted in 1990 U.S.C.C.A.N. 779, 780; see, e.g., United States v. MTV Big Sam,
As to the second issue, the Government seeks a ruling that BP and Anadarko are liable without limit under OPA.
the incident18 was proximately caused by ... the violation of an applicable*755 Federal safety, construction, or operating regulation by the responsible party, an agent or employee of the responsible party, or a person acting pursuant to a contractual relationship with the responsible party ...
33 U.S.C. § 2704(c)(1)(B). The United States focuses on two regulations.
The Government’s second proposed regulation states, “The lessee shall not create conditions that will pose unreasonable risk to public health, life, property, aquatic life, wildlife, recreation, navigation, commercial fishing, or other uses of the ocean.” 30 C.F.R. § 250.300(a). The Government asserts that it is beyond dispute that the blowout was a condition created by BP and its co-lessees that posed an “unreasonable risk” to human life, as eleven men died. This argument fails for similar reasons. Identifying what caused the blowout is exactly what is required to determine whether any conditions on the rig were unreasonable or not.
The final issue concerns declaratory judgment. OPA states:
An action for recovery of removal costs referred to in section 2702(b)(1) of this title must be commenced within 3 years after completion of the removal action. In any such action described in this subsection, the court shall enter a declaratory judgment on liability for removal costs or damages that will be binding on any subsequent action or actions to recover further removal costs or damages.
33 U.S.C. § 2717(f)(2) (emphasis added). Congress’ directive is clear. Having determined that BP and Anadarko are liable as “responsible parties” under OPA for the subsurface discharge of oil, the Government is entitled to declaratory judgment on this issue. Of course, there may be issues regarding quantum in subsequent actions, but the issue of liability is settled with regard to these two entities.
To conclude, because the DEEPWA-TER HORIZON, a MODU, was being used as ah offshore facility at the time of the incident, BP and Anadarko, co-lessees of the area in which the offshore facility was located, are responsible parties with regard to the discharge of oil that occurred beneath the surface of the water.
C. The Clean Water Act
Section 311(b)(3) of the CWA prohibits the “discharge of oil ... (i) into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone, or (ii) in connection with activities under the Outer Continental Shelf Lands Act [OCS-LA] ... in such quantities as may be harmful
Any person who is the owner, operator, or person in charge of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged in violation of paragraph (3), shall be subject to a civil penalty in an amount up to $25,000 per day of violation or an amount up to $1,00022 per barrel of oil or unit of reportable quantity of hazardous substances discharged.
33 U.S.C. § 1321(b)(7)(A). Thus, to establish liability for civil penalties under CWA Section 311(b)(7), the Government must show that each Defendant is (1) an “owner, operator, or person in charge of’ (2) a “vessel ... or offshore facility” (3) “from which oil ... discharged” (4) in a harmful quantity (5) into or upon covered waters or “in connection with activities under [OCS-LA].” There is no dispute that elements (4) and (5) are met.
Although civil penalties existed under Section 311 before OPA was enacted, OPA amended Section 311 to, inter alia, increase the amounts of these penalties. OPA § 4301, Pub. L. No. 101-380, 104 Stat. 484, 533-37 (1990); see also H.R.Rep. No. 101-653, at 51-52 (1990) (Conf. Rep.), reprinted in 1990 U.S.C.C.A.N. 779, 831-33. However, the amendments did not incorporate the terms “responsible party”
(A) in the case of a vessel, any person owning, operating, or chartering by demise, such vessel, and
(B) in the case of an ... offshore facility, any person owning or operating such ... offshore facility....
33 U.S.C.- § 1321(a)(6). “Person in charge” is not defined. The CWA’s definition of “vessel” and “offshore facility” is the same as OPA’s:
“vessel” means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water other than a public vessel;
“offshore facility” means any facility of any kind located in, on, or under, any of the navigable waters of the United States, ... other than a vessel or a public vessel;
33 U.S.C. § 1321(a)(3), (11). Finally, the CWA’s definition of “discharge” is similar to OPA’s:
“discharge” includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping....
33 U.S.C. § 1321(a)(2).
Similar to its arguments regarding OPA, the United States contends that oil discharged from both the Macondo Well
The CWA does not define “from,” and its definition of “discharge” is of little help. While there appear to be no cases addressing this exact issue, Peconic Baykeeper, Inc. v. Suffolk County,
The language Peconic interpreted is similar to the relevant portion of Section 311(b)(7):
“any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged,” {Peconic) “vessel ... or offshore facility from which oil ... is discharged” (Section 311(b)(7)).
Thus, Peconic’s conclusion that “from” means “a starting point” or “source or original or moving force of something” indicates that “discharge” in Section 311(b)(7) does not necessarily mean the point where oil entered the marine environment. Rather, Peconic suggests that this discharge occurred where the uncontrolled movement of oil began, as contended by Transocean. Indeed, Section 311(a)’s definition of “discharge” suggests a broader interpretation than Anadarko would apply: “ ‘discharge’ ” includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping .... ” (emphasis added).
It is true that, for three months in 2010, images of oil gushing out of Transocean’s broken riser saturated news media. Yet, few would conclude from these images that the flow of oil was controlled while in the Macondo Well, and only began its movement seaward in the riser or the BOP. In fact, it is undisputed that oil flowed uncontrollably even while the riser was still connected to the MODU.
Anadarko’s interpretation also contradicts one of the purposes CWA penalties. The Fifth Circuit has stated that the civil penalty in Section 311(b)(6)—which is functionally similar to, albeit smaller than, a(b)(7) penalty—is designed to “placet ] a major part of the financial burden for achieving and maintaining clean water upon those who would profit by the use of our navigable waters and adjacent areas, and who pollute same.” United States v. Coastal States Crude,
Tex-Tow was engaged in the type of enterprise which will inevitably cause pollution and on which Congress has determined to shift the cost of pollution [via Section 311(b)(6) ] when the additional element of an actual discharge is present. These two elements, actual pollution plus statistically foreseeable pollution attributable to a statutorily defined type of enterprise, together satisfy the requirement of cause in fact and legal cause.... An enterprise such as Tex-Tow engaged in the transport of oil can foresee that spills will result despite all precautions and that some of these will result from the acts or omissions of third parties. Although a third party may be responsible for the immediate act or omission which “caused” the spill, Tex-Tow was engaged in the activity or enterprise which “caused” the spill. Congress had the power to make certain oil-related activities or enterprises the “cause” of the spill rather than the conduct of a third party. With respect to the civil penalty Congress has exercised this power.... Economically, it makes sense to place the cost of pollution on the enterprise ... which statistically will cause pollution and in fact does cause pollution.... This is the theory of cost “internalization,” under which the social costs of an enterprise are attributed to that enterprise.
Furthermore, this interpretation is also consistent with OPA, which was similarly designed to impose the greatest liability upon those who would benefit the most from oil production and transportation (discussed above). Congress intended that OPA would “build upon section 311 of the Clean Water Act to create a single Federal law providing cleanup authority, penalties, and liability for oil pollution.”
Civil penalties should serve primarily as an additional incentive to minimize and eliminate human error and thereby reduce the number and seriousness of oil spills. There are strong operational and economic incentives within the Conference substitute that should encourage responsible parties to prevent oil spills. In determining the amount of a civil penalty, particular weight should be given to the rapidity and effectiveness of the response actions by the responsible party, (emphasis added).
H.R.Rep. No. 101-653, at 52 (1990) (Conf. Rep.), reprinted in 1990 U.S.C.C.A.N. 779, 833.
Finally, the Court’s interpretation is also consistent with the CWA’s definition of “worst case discharge,” which is used to describe the response plans required by the CWA. See 33 U.S.C. § 1321(a)(24). In the case of a vessel, “worst case discharge” refers to the discharge of the vessel’s “entire cargo.” In the context of an offshore facility, the phrase means the “the largest foreseeable discharge.” Using “cargo” to describe the worst case discharge from a vessel implies that Congress did not intend the owner or operator of the DEEPWATER HORIZON to be primarily liable under the CWA for this incident, because the DEEPWATER HORIZON was not intended to- carry this vast amount of oil as is cargo. Conversely, the vague nature of the phrase, “largest foreseeable discharge,” contemplates the vast quantities of oil that discharged in this incident. Thus, if Congress envisioned that the owner of the offshore facility would have to respond to an oil spill such as this one, then it is logical that they would also be the party upon whom the civil penalty is imposed.
The court is not persuaded by the cases relied upon by Anadarko. For example, Anadarko cites United States v. Chotin Transportation, Inc., where a tank barge was bunkering at an onshore facility, and fuel overflowed the tank and spilled into the river.
For the reasons stated above, the Court holds that, for purposes of CWA Section 311(b)(7) and with respect to the subsurface discharge, oil discharged from the Macondo Well, an offshore facility. Conversely, the Court finds that the subsurface discharge was not from the vessel, the DEEPWATER HORIZON.
As to Transocean, even though the discharge was not from the vessel, a question remains as to whether it would be an “operator” of the offshore facility. The CWA’s definition of “operator” provides little guidance: “ ‘owner or operator’ means ... any person owning or operating such ... offshore facility....” 33 U.S.C. § 1321(a)(6). However, the Supreme Court described an “operator” under the Comprehensive Environmental Response, Compensation and Liability Act [“CERCLA”], 42 U.S.C. § 9601(20)(a),
must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.
United States v. Bestfoods,
To conclude, BP and Anadarko are liable for civil penalties under Section 311(b)(7) of the CWA, 33 U.S.C. § 1321(b)(7), because they are both owners of the offshore facility from which oil discharged. In this respect, the United States’ Motion for Partial Summary Judgment is granted and Anadarko’s Motion is denied. Because Transocean might be liable under Section 311(b)(7) as an “operator” or “person in charge” of the offshore facility, Trans-ocean’s Motion for Partial Summary Judgment is denied.
IT IS ORDERED that the United States’ Motion for Partial Summary Judgment (Rec. Doc. 4836) is GRANTED IN PART and DENIED IN PART, Anadarko’s Motion for Partial Summary Judgment (Rec. Doe. 5113) is DENIED, and Transocean’s Motion for Partial Summary Judgment (Rec. Doc. 5103) is GRANTED IN PART and DENIED IN PART, as set forth above.
Notes
. The Transocean entities are Transocean Deepwater Inc., Transocean Offshore Deep-water Drilling Inc., Transocean Holdings LLC, and Triton Asset Leasing GmbH.
. The Clean Water Act is also known as the Federal Water Pollution Control Act.
. Additional briefing related these Motions appears at Record Documents 5214 (U.S.), 5216 (U.S.), 5265 (B.P.), 5266 (B.P.), 5283 (B.P.), 5280 (Anadarko), 5300 (Transocean), and 5510 (Plaintiffs' Steering Committee as amicus curiae).
. There is a factual dispute as to whether any oil discharged on or above the surface of the water between the time of the blowout and when the riser broke. Transocean contends that any oil that traveled up the riser to the deck of the MODU during this time would have combusted in the fire before it could have entered the water. Because of this dispute, the Court does not address here any discharge that may have occurred on or above the surface of the water. Instead, this Order focuses only on the discharge that occurred beneath the surface of the water after the riser was broken.
. The United States’ Complaint also named MOEX Offshore 2007 LLC and QBE Underwriting Ltd., Lloyd's Syndicate 1036 as defendants. However, the United States has not moved for summary judgment against these entities. (See, e.g., USA Memo, in Supp. p. 26 n. 43, Rec. Doc. 4820-2 at 37 n. 43). These entities are irrelevant for present purposes.
. At oral argument, Anadarko’s counsel stated that the Government conceded that the leaseholder issue does not relate to the issue of CWA liability, only OPA liability. (Transcript pp. 31-32 (Rec. Doc. 5338)). The Government did not refute this statement, and its Reply brief tends to focus on Anadarko’s ownership of the Macondo Well, not E & P's ownership. (See U.S. Reply, p. 9, Rec. Doc. 5214 at 17) (“Each defendant admits that it is an 'owner.' ... 'APC [Anadarko] was a partial owner of the Macondo Well' ”).
. There are a few defenses to liability under OPA, none of which are at issue here. See 33 U.S.C. § 2703.
. "It is 'a cardinal principle of statutory construction’ that 'a statute ought, upon the whole, to be construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.' ’’ TRW Inc. v. Andrews,
. See Antonio J. Rodriguez & Paul A.C. Jaffe, The Oil Pollution Act of 1990, 15 Tul. Mar. L.J. 1, 17 (1990) ("So, for a spill on or above the surface of the watér, the owner or the operator of the MODU is the responsible party up to the limits of liability specified for a tank vessel. For oil discharged below the surface of the water, the offshore facility limits apply and the lessee or permittee is deemed the responsible party.”)
. The enacted version of OPA combined elements from House bill 1465 ("H.R. 1465”)and Senate bill 686 ("S.686”). The Senate Report on S.686 was explicit about making the lessee liable for subsurface discharges: "Where a mobile offshore drilling unit is being used as an OCS facility, and there is a discharge of oil on or above the surface of the water, the owner or operator of the unit is liable, up to the limits established by the reported bill for tankers. If costs exceed that limit, the excess costs must be borne by the lessee or permittee. If a discharge of oil from a mobile offshore drilling unit occurs below the surface of the water, the lessee or permittee is liable." S. Rep. No. 101-94, at T1 (1989), reprinted in 1990 U.S.C.C.A.N. 722, 733-34 (emphasis added). When Congress combined the House and Senate bills, the joint statement in the Conference Report explained the substantive differences between the bills, and made explicit when one choice was adopted and another rejected. See, e.g., H.R. Rep. No. 101-653, at 7 (1990) (Conf. Rep.), reprinted in 1990 U.S.C.C.A.N. 779, 784 (explicitly rejecting the portion of the House bill that would have made the owner of oil cargo a responsible party). Although Congress ultimately adopted the House language regarding MODUs, the Conference Report does not indicate that there was any substantive difference between the Senate and House bills in this regard. Id., 1990 U.S.C.C.A.N. at 785. In fact, the House Report on H.R. 1465 leads to the same interpretation discussed in the main text: " ‘Mobile offshore drilling unit' (MODU) is defined as a vessel other than a self-elevating lift vessel that is capable of use as an offshore facility. The definition is important for the purpose of allocating liability between the responsible party for a MODU and a lessee.... With respect to an offshore facility (other than a deepwater port or pipeline), the responsible party normally will be the lessee or permittee of the area in which the facility is located.... With respect to a MODU which is being used as an offshore facility and when the pollution originates on or above the surface of the water, the responsible party will be the owner and operator of the MODU.” H.R. Rep. No. 101-242, pt. 2, at 53, 55 (1989) (emphasis added). The emphasized "and” implies that when a subsurface discharge occurs, the responsible party will be the lessee. See also id. at 57.
. Under OPA, "oil” means "oil of any kind or in any form, including ... fuel oil....” 33 U.S.C. § 2701(23). At oral argument, Trans-ocean’s counsel stated that the DEEPWATER HORIZON could carry about 17,000 barrels of diesel.
. As explained by that court:
The congressional decision to limit a vessel owner's liability under OPA is firmly rooted in economic theory. Under the statute, the owner of a large vessel, like the M/V SAUDI DIRIYAH, is exposed to much greater liability than the owner of small vessel, like the HARRIET MORAN. See 33 U.S.C. § 2704(a). This scheme places the greatest exposure upon those who are in a position to obtain the most benefit from maritime commerce. Certainly, the owners of a large cargo vessel receive a greater benefit from the vessel’s activity in this area than the owners of the tug boat which assists with the cargo vessel’s docking procedure. The owners of large vessels, therefore, are in a better position to insure against an oil spill or to absorb the cost of a spill and pass the cost on to their customers. By placing the greatest risks of operating a vessel in the navigable waters of the United States upon those who receive the greatest benefits from doing so, the statute’s liability scheme allows the costs associated with oil spills to be spread among all those who benefit from maritime commerce, including those who consume products which are shipped from overseas.
Moran Mid-Atl. Corp.,
. S.Rep. No. 101-94, at 28 (1989), reprinted in 1990 U.S.C.C.A.N. 722, 748 (additional comments of Senator Chaffee, et al.)
. “p?]he term "Outer Continental Shelf facility” means an offshore facility which is located, in whole or in part, on the Outer Continental Shelf and is or was used for one or more of the following purposes: exploring for, drilling for, producing, storing, handling, transferring, processing, or transporting oil produced from the Outer Continental Shelf.” 33 U.S.C. § 2701(25).
. A review of the legislative history reveals that this language anomaly may be due to the*754 fact that this provision was adopted directly from the Senate bill, S. 686, which used “owner or operator” instead of “responsible party” to affix liability. See H.R. Rep. No. 101-653, at 7 (1990) (Conf. Rep.), reprinted in 1990 U.S.C.C.A.N. 779, 785; S. 686 101st Cong. § 102(c)(3) (passed by Senate Aug. 4, 1989). The Senate bill also defined “owner or operator” to mean "lessee or permittee” when oil discharged below the surface of the water from a MODU being used as an Outer Continental Shelf facility. Of course, this is different from the definition of "owner or operator” that was enacted in OPA:
"owner or operator”—
(A) means—
(i) in the case of a vessel, any person owning, operating, or chartering by demise, the vessel;
(ii) in the case of an ... offshore facility, any person owning or operating such facility. ...”
33 U.S.C. § 2701(26). As explained in the main text, however, the Court need not address the effect of this language.
. At issue in Burlington was the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA”). That decision relied on United States v. Chem-Dyne Corp.,
. BP has waived its liability cap, but opposes the Government’s motion "to ensure that BP is not unfairly tainted with regulatory violations before the Phase 1 trial even begins.” (BP Opp’n, p. 11, Rec. Doc. 5124 at 17).
. " '[Ijncident' means any occurrence or series of occurrences having the same origin, involving one or more vessels, facilities, or any combination thereof, resulting in the discharge or substantial threat of discharge of oil.” 33 U.S.C. § 2701(14).
. The Government contends many other regulations have been violated, but claims these two are appropriate for summary judgment because they are strict liability provisions that do not turn on material facts in dispute.
. It should be noted that, although OPA generally treats a MODU as an offshore facility when it is used as such, this does not imply that the DEEPWATER HORIZON was not a "vessel” for other purposes under general maritime law or that admiralty jurisdiction is not present. OPA’s scheme merely establishes who will be liable for oil pollution under that Act; it expressly states that it does not affect maritime law or jurisdiction. 33 U.S.C. § 2751; see also H.R. Rep. No. 101-
. A discharge is "harmful” if it "cause[s] a film or sheen or discoloration of the surface of the water or adjoining shorelines or cause[s] a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines.” 40 C.F.R. § 110.3(b); Chevron, U.S.A., Inc. v. Yost,
. Federal regulations increased this amount to $1,100 per barrel. 33 C.F.R. § 27.3; 40 C.F.R. § 19.4. The maximum penal amount is increased in the event of gross negligence or willful misconduct. 33 U.S.C. § 1321(b)(7)(D).
. Cf. 33 U.S.C. § 2701(7) (" 'discharge' means any emission (other than natural seepage), intentional or unintentional, and includes, but is not limited to, spilling, leaking, pumping, pouring, emitting, emptying, or dumping”).
. The parties do not dispute, and the Court finds, that the Macondo Well was an "offshore facility” for purposes of the CWA.
. BP merely adopts Anadarko’s arguments regarding the CWA. For convenience, here BP and Anadarko will be referred to collectively as “Anadarko.”
. Section 301(a) states that “the discharge of any pollutant by any person shall be unlawful,” except where done in compliance with a permit. 33 U.S.C. 1311(a) (emphasis added). "Discharge of a pollutant” is defined as "any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12) (emphasis added). "Point source” is defined in the main text.
. What is disputed is whether oil actually reached the surface of the water during this time, or was consumed in the fire on the DEEPWATER HORIZON. See note 4, supra.
. It is important to note that the Court’s interpretation of Section 311(b)(7) is not merely based on the source of the oil, but on the source of the uncontrolled movement of oil toward the marine environment. If the issue simply turned on the source of the oil, then an argument could be made that an owner of an offshore facility is liable for any oil spill involving oil produced from that facility, such as a spill from a third party’s tank barge carrying the oil as its cargo.
. Along these lines, there is perhaps an argument that the CWA should treat a MODU as an offshore facility when it is drilling, etc., for oil, notwithstanding the fact that the term "MODU” does not appear in Section 311 of the CWA. OPA copied the definition of "offshore facility” directly from the CWA. Compare 33 U.S.C. § 1321 (a)(l 1) with 33 U.S.C. § 2701(22). This indicates that the term should be treated identically under the two Acts; what is an offshore .facility under the CWA is also an offshore facility under OPA, and vice versa. See H.R. Rep. No. 101-653, at 2 (1990) (Conf. Rep.), reprinted in 1990 U.S.C.C.A.N. 779, 779 ("In each case, these [CWA] definitions shall have the same meaning in this legislation [OPA] as they do under the [CWA] and shall be interpreted accordingly.”). Under this reasoning, even if the discharge occurred "from” the broken riser, the discharge would nevertheless be "from” the offshore facility.
. Int'l Marine Carriers v. Oil Spill Liab. Tr. Fund,
. Again, the Court does not address here any surface discharge that may have occurred. See note 4, supra.
. At oral argument, the Government asserted that where multiple parties are liable for a CWA penalty, a separate penalty is imposed on each defendant, rather than the defendants sharing liability for a single penalty. The Government also asserted that the penalty could not be shifted to a third party by equitable means. These issues were not addressed in the parties' briefs, other than the Government’s passing reference to "absolute” liability, which it then contradicted by stating "CWA Section 311’s standard of liability has been determined repeatedly to be strict, joint, and several.” (U.S. Memo in Supp., p. 17, Rec. Doc. 4820-5 at 44 (quotations omitted)). Consequently, the Court does not address these issues here.
. The definition of “operator” provided in CERCLA is identical to the CWA’s definition: “The term ‘owner or operator’ means ... in the case of an ... offshore facility, any person ... operating such facility....” 42 U.S.C. § 9601 (20)(a).
. Accord Beartooth Alliance v. Crown Butte Mines,