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Oil Pollution Act is a powerful tool - The Galveston County Daily News: Guest Columns

October 22, 2016

Guest column Oil Pollution Act is a powerful tool

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Posted: Sunday, March 30, 2014 12:00 am

Since the spill occurred, our office has gotten multiple calls. Most who call want to know if they have a claim, and if so, how to engage in the process.

I intend here to give some basic background of oil spill law, and how the process works. If you have specific questions, consult your own lawyer.

The Oil Pollution Act — the OPA — was enacted in 1990 as a response to the Exxon Valdez Oil Spill. In the Exxon Valdez litigation, it was unclear whether a nonfisherman could make a claim and could be compensated for the spill under the law, even though the oil hadn’t actually physically damaged his property.

The OPA answered that question, clearly. Now, under the OPA, a claimant who can show damage, whether oil was on the beach, and whether oil ever touched his property, has a valid claim.

Now, under the OPA, claimants can receive oil removal and cleanup expenses — even if the cleanup hasn’t yet occurred. A claimant can also recover expenses actually associated with oil damage to real or personal property, including damages associated with the inability to use their boat, dock or beach.

These claimants can also recover damages for the loss of value their property, even after it has been cleaned as best as it can be.

Further, under the OPA, a claimant can recover moneys associated with their inability to perform their water-related business — such as shrimp boat owners, or fishermen or crabbers.

This category would include damages for the catches being smaller than usual — or even nonexistent — or restrictions imposed as to where they can ply their trade. Typically, these are these individuals who suffer the most immediate damage, and also deal with the uncertainty of whether that damage will continue in the future.

The final category of claimants allowed under the OPA demonstrates why OPA law is so unique. The OPA allows restaurants, retail stores, hotels and other businesses to seek moneys for business interruption or loss of revenues as a result of the spill.

This category of claimants is typically the largest category of claimants, and the challenge here is to demonstrate that the lack of revenue is a result of the spill, and not some other reason.

A claimant under the OPA must document the claim, quantify it, and present it to the responsible party — in this case, Kirby Inland Marine, the company that spilled the oil. Upon receipt of the claim, the responsible party then has 90 days to act upon it.

If the responsible party doesn’t pay the claim, then suit can be filed in court. It is important to note that failure to present the claim to the responsible party prior to filing suit will result in the claim being dismissed by the court until presentment is accomplished.

The OPA is a powerful tool for those damaged by an oil spill; almost any type of business can recover under the act, if, and only if, they can demonstrate that the loss of revenue experience was a result of the spill.

Documentation and careful analysis of the claim is key in order to ensure the claim is paid in full.

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