Hawai`i is one of the 20 or so states having no statutory limit on liability in the event of an oil spill, which makes it – at least in theory – able to recover more than the liability ceiling set in the federal Oil Pollution Act. Under the so-called Superfund law, passed by the 1990 Legislature, polluters are responsible for the full costs of cleaning up any spill for which they are held legally responsible.
But it may not work out quite like that. While it would seem that in the determination of liability, state law, providing for unlimited damages, would supersede federal law, in the actual payment of damages, however, a realistic limit may well be the amount of insurance required under federal law – especially when the responsible party is a corporation whose net worth is less than the total clean-up bill.
Among the most hotly contested provisions of the Superfund law is the authority it gives the Director of Health to order companies to clean up spills of oil and other substances that might pose a hazard to public health or the environment. But when it comes to spills of oil at sea, the authority given to the Director of Health takes a back seat to federal law, which puts the Coast Guard in charge. The Department of Health and other state agencies would perform an auxiliary (albeit important) role.
As far as prosecution for negligence or misconduct is concerned, the mild knuckle-raps in the state law would (one hopes) yield to tougher federal charges and penalties.
The exact way in which the state Superfund law will be implemented will not be known until administrative rules are adopted. Those rules are now being formulated. Watch for public hearings on them in the next few months.
Volume 1, Number 6 December 1990
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