Could a Maryland oil spill responder lose legal immunity if their attempt to prevent a spill failed, or if they acted without first getting sign-off from a federal or state official?

Plain-English summary

Maryland's Secretary of the Environment asked the Attorney General three questions about a 1992 amendment to the state's oil spill liability law, EN §4-419, enacted after industry concerns that responders could face open-ended lawsuits for how they handled a spill: whether the immunity covered a responder whose attempt to prevent a spill failed, whether a responder lost immunity by acting without first contacting a federal or state official, and whether the Maryland Department of the Environment (MDE) could define by regulation what counted as a proper response.

The Attorney General answered all three questions in the responder's favor. On the first, the opinion reasoned it would be illogical to protect responders who clean up an existing spill but deny protection to those who try, unsuccessfully, to prevent one, since that reading would perversely encourage people to wait until a spill happened before acting. On the second, the opinion read the statute's "or" as making prior contact with an on-scene coordinator only one of two alternative paths to immunity, the other being that the response was itself consistent with Maryland's oil spill subtitle and the National Contingency Plan, so a responder did not automatically lose immunity for acting without prior sign-off. On the third, the opinion found MDE had explicit statutory authority to issue regulations defining the actions consistent with the law, though it could not use that regulatory power to grant immunity to grossly negligent responders or to change the National Contingency Plan itself, which only the President could revise.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did a Maryland oil spill responder lose immunity from liability if their attempt to prevent a spill failed? No. The opinion concluded the immunity in EN §4-419 covered a responder who rendered care, assistance, or advice in an unsuccessful attempt to prevent a discharge of oil, as long as the responder met the statute's other requirements and was not grossly negligent.

Did a responder have to contact a federal or state official before acting in order to keep their immunity? No. The opinion concluded a responder could qualify for immunity even without first contacting the federal on-scene coordinator or an appropriate state official, so long as the response itself was consistent with Maryland's oil spill subtitle and the National Contingency Plan.

Could a commercial company claim this immunity for its everyday business activities? No. The opinion made clear that a commercial firm not responding to an actual or threatened discharge could not claim immunity for ordinary commercial activities; the immunity only applied to actions taken to contain, clean up, remove, or prevent an oil discharge.

Did the Maryland Department of the Environment have authority to define by regulation what counted as an immune response? Yes, within limits. The opinion concluded MDE had statutory authority to issue regulations defining actions consistent with the oil spill subtitle, but could not use regulations to grant immunity to grossly negligent responders or to alter the requirements of the federally adopted National Contingency Plan.

Background and statutory framework

Following the Exxon Valdez spill and similar incidents elsewhere, the General Assembly strengthened Maryland's authority to regulate oil transportation and respond to spills, and enacted Chapter 459 of the Laws of Maryland 1992 to address industry concerns, reportedly triggered in part by oil spill contractors refusing to participate in a 1991 U.S. Coast Guard training exercise over fear of "unlimited" liability, by amending EN §4-419(a) to shield a responder from liability for containment, cleanup, and removal costs or damages arising from care, assistance, or advice consistent with the oil spill subtitle and the National Contingency Plan, or as otherwise directed by the federal on-scene coordinator or an appropriate state official, unless the responder was the party responsible for the discharge, a "responsible party" under the federal Oil Pollution Act of 1990, or grossly negligent or engaged in willful misconduct. The legislative history showed the General Assembly modeled this standard on the federal immunity provision in the Oil Pollution Act of 1990, 33 U.S.C. §1321(c)(4).

The opinion found the statute's purpose, like the "good Samaritan" immunity concept generally, was to encourage quick intervention, and that EN Title 4, Subtitle 4's own definitions and duties (the broad definition of "discharge" in EN §4-401, the discharge prohibition in EN §4-410(a), and MDE's duty under EN §4-405 to develop pollution-prevention programs) confirmed prevention, not just cleanup, was central to the scheme, a reading reinforced by similar legislative history behind the federal Oil Pollution Act and by Maryland case law recognizing the legislature's emphasis on preventing pollution rather than waiting to penalize it after the fact. On prior authorization, the opinion parsed the statute's disjunctive phrasing, "consistent with [Subtitle 4] and the National Contingency Plan, or as otherwise directed by" an official, to mean consistency with the subtitle and the Plan was an independent path to immunity, not conditioned on having first obtained official direction, while still recommending that responders seek authorization when time allowed, since doing so avoids having to establish consistency after the fact. On MDE's regulatory authority, the opinion pointed to EN §4-405(b)(1) and EN §4-405(a)(7) and (9) as explicit statutory grants letting MDE prescribe procedures for responding to spills and enact regulations to carry out the subtitle, subject to the limits that regulations cannot conflict with the statute, cannot immunize grossly negligent conduct, and cannot alter the federally adopted National Contingency Plan.

Citations and references

Statutes:

• EN §4-419(a), the oil spill responder immunity provision
• Chapter 459 (Senate Bill 199) of the Laws of Maryland 1992, the amending legislation, "Oil Spills - Liability"
• EN §4-401(g), definition of "person responsible for the discharge"
• EN §4-401, definition of "discharge"
• EN §4-410(a), discharge prohibition
• EN §4-405, EN §4-405(a)(7) and (9), EN §4-405(b)(1), MDE's pollution-prevention duties and regulatory authority
• EN §4-417, civil and criminal penalties for violating Subtitle 4 regulations
• 33 U.S.C. §1321(c)(4), the federal Oil Pollution Act responder immunity standard
• §1001(32), Oil Pollution Act of 1990, codified at 33 U.S.C. §2701(32), definition of "responsible party"
• §4201(c) of the Oil Pollution Act of 1990, National Contingency Plan revision requirement
• 33 U.S.C. §1321(d)(3), presidential authority over the National Contingency Plan

Cases:

• American Recovery Co. v. Department of Health, 306 Md. 12, 506 A.2d 1171 (1986), Maryland Court of Appeals
• Faulk v. State's Attorney, 299 Md. 493, 474 A.2d 880 (1984), Maryland Court of Appeals
• Falik v. Prince George's Hosp. & Medical Center, 322 Md. 409, 416, 588 A.2d 324 (1991), Maryland Court of Appeals

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1992/Volume77_1992.pdf (this opinion appears at printed page 69 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ENVIRONMENT

Torts - Immunity - Scope of Immunity for Responders to Potential or Actual Oil Spills

December 14, 1992

The Honorable Robert Perciasepe
Secretary of the Environment

You have requested our opinion on several questions related to §4- 419 of the Environment Article ("EN" Article), as recently amended by Chapter 459 (Senate Bill 199) of the Laws of Maryland 1992, the short title of which is "Oil Spills - Liability." Specifically, you ask:

1. Would the immunity provided by EN §4-419 extend to a person who renders care, assistance, or advice in an unsuccessful attempt to prevent a discharge of oil?

2. Is immunity lost if a person responds to a spill without first contacting the federal on-scene coordinator or appropriate State official?

3. Does the Maryland Department of the Environment ("MDE") have the authority to define by regulation the actions that will be consistent with EN Title 4, Subtitle 4?

For the reasons stated below, we conclude as follows:

1. The immunity from liability for certain damages provided by EN §4-419 applies to a responder who renders care, assistance, or advice in an unsuccessful attempt to prevent a discharge of oil, provided the person meets the other requirements of EN §4-419.

2. A responder may qualify for the immunity provided by EN §4- 419 even though the responder did not contact the federal on-scene coordinator or appropriate State official prior to initiating a response action, if the responder rendered care, assistance, or advice consistent with EN Title 4, Subtitle 4 and the National Contingency Plan.

3. MDE has the authority to define by regulation actions that are consistent with Subtitle 4.

I

Background

In the wake of the massive oil spill from the Exxon Valdez in Alaskan waters and similar, though smaller, spills elsewhere, the General Assembly considered methods to minimize the threat presented by vessels transporting oil on State waters. In a series of amendments to EN Title 4, Subtitle 4, the General Assembly provided MDE with the authority to regulate the transportation of oil more strictly and with additional tools to contain and remediate spills.

In addition to providing examples of the potential threat, the spills in other states provoked concern among private oil emergency responders about potential liability during a response to an oil spill emergency. Without statutory immunity, a responder might be subject to suit resulting from claims that the responder's actions, or inactions, resulted in greater damage from the spill.

In response to those concerns, the General Assembly enacted Chapter 459 of the Laws of Maryland 1992. Chapter 459 amended EN §4-419(a) to provide as follows:

Notwithstanding any other provision of law, a person is not liable for costs of containment, cleanup, and removal of the discharge or damages as a result of acts or omissions taken in the course of rendering care, assistance, or advice consistent with this subtitle and the National Contingency Plan, or as otherwise directed by the federal on-scene coordinator or other appropriate State official unless:

(1) The person is a person responsible for the discharge in accordance with §4-401(g) of this subtitle;

(2) The person is a responsible party as defined by the federal Oil Pollution Act of 1990; or

(3) The person is grossly negligent or engages in willful misconduct.

The legislative history of Chapter 459 shows that the General Assembly's objective in amending EN §4-419 was to adopt a standard similar to the federal standard of "responder" immunity. See Bill Analysis

• Senate Bill 199 of the Senate Economic and Environmental Affairs
  Committee; and Floor Report - Senate Bill 199 of the Senate Economic and Environmental Affairs Committee. The House Environmental Matters Committee and the Senate Economic and Environmental Affairs Committee files contain numerous references to the federal standard of immunity in floor reports, a bill analysis, MDE's position statement, and testimony provided by industry trade groups.

  The federal immunity standard is set forth in the Oil Pollution Act of
  1990, 33 U.S.C. §1321(c)(4), and provides, in relevant part, as follows:

       A person is not liable for removal costs or damages
       which result from actions taken or omitted to be taken
       in the course of rendering care, assistance or advice
       consistent with the National Contingency Plan or as
       otherwise directed by the President.
  

  The General Assembly evidently concluded that enactment of a
  standard similar to the federal immunity standard would encourage quick and thorough response to oil spill emergencies and thereby protect the Chesapeake Bay and other Maryland waters.

                                    II
  
                 Actions Taken to Prevent Spills
  

  In general, a primary purpose of "good Samaritan" immunity statutes
  is to encourage those who can do so to prevent harm by quick intervention. In the case of oil spills, the potential harm to the Bay and other Maryland waters is so great that quick and decisive preventive action is essential.

  It would be illogical to provide immunity once a spill occurred but
  to deny immunity for activities taken in an attempt to prevent a spill. Such an interpretation would encourage responders to wait until the spill occurred before taking any activities to minimize damage. In other words, such an interpretation would increase the likelihood of the harm that the General Assembly sought to minimize by enactment of the bill. For example, one hypothetical situation suggested by responders concerns an oil laden vessel that is drifting, powerless, towards a rocky shore. No public purpose is served by protecting the responder only if assistance is withheld until the vessel founders on the rocks.

  The clear intent of that statutory scheme, like the federal scheme, is
  not merely to remediate spills but to prevent an oil discharge from occurring. "Discharge" is defined in EN §4-401 as "the addition, introduction, leaking, spilling, or emitting [of] any oil to State waters or the placing of any oil in a location where it is likely to reach State waters." (Emphasis added.) Any "discharge" is prohibited by EN §4- 410(a). Further, EN §4-405 states, in part, that MDE shall have the duty to "[d]evelop comprehensive programs and plans for the prevention, control, and abatement of pollution of waters of the State by oil . . . " (Emphasis added.)

  In addition, the legislative history of the immunity provisions of the
  federal Oil Pollution Act, which shares a similar purpose, supports this reading. The conference committee report on the Act states that the relevant subsection "provides immunity from liability ... for those taking action in the response to an oil spill or the threat of a spill..." H.R. Rep. No. 101-653, at 146, 101st Cong., 2d Sess. (1990), reprinted in 1990 U.S. Code Cong. & Adm. Report 121, S25 (emphasis added). Given the references in the legislative history of Chapter 459 to enactment of the federal standard, this congressional statement is persuasive. See, e.g., Faulk v. State's Attorney, 299 Md. 493, 474 A.2d 880 (1984).

  In sum, to be consistent with this legislative intent and the manifest
  purpose of the bill, we must interpret the statute to provide immunity to a person who is rendering assistance to prevent an oil spill as well as to a person who is rendering assistance to clean up a spill.

  You specifically asked whether the immunity is available if the
  responder's actions are unsuccessful. Assuming other requirements of the statute have been met and the responder has not been grossly negligent or engaged in willful misconduct, the fact that the actions of the responder fail to prevent the threatened spill does not deprive the responder of immunity. A reading to the contrary would nullify much of the beneficial effect of EN
  §4-419. Immunity is not needed if the responder's actions are successful in preventing the spill. The statute is meant to protect responders when a spill occurs and actual harm results.

  To receive the immunity provided by EN §4-419, a person must be
  in the course of "rendering care, assistance, or advice." The specific actions that will constitute "care, assistance, or advice" must be determined on a case by case basis. A responder, however, may look to the National Contingency Plan, and the regional response and oil spill contingency plans for guidance as to the type of actions that are contemplated. Generally, if a responder can show that its actions were conducted for the purpose of containing, cleaning up, removing or preventing a discharge of oil, a responder should be able to meet its burden to show it was in the course of rendering care, assistance, or advice.

  Of course, a commercial firm that is not responding to a discharge
  

  or a threat of a discharge cannot claim immunity for ordinary commercial activities. Whether certain circumstances constitute a real threat of a spill and whether a person is rendering care, assistance, or advice to prevent a discharge are factual determinations to be made on a case by case basis. We cannot anticipate all the circumstances that might establish the existence of a threat or the purpose of the care, assistance, or advice. Moreover, the responder will also need to meet the other requirements of the bill regardless of whether the spill has occurred or is merely threatened.

                               III
  
                 Prior Approval of Actions
  

  Immunity applies to a person who provides assistance to a vessel in
  distress to prevent a discharge of oil only if the responder meets the other requirements set forth in the statute. One of those requirements is that the care, assistance, or advice must be "consistent with [Subtitle 4] and the National Contingency Plan, or as otherwise directed by the federal on- scene coordinator or appropriate State official." EN §4-419(a) (emphasis added).

  Since the two requirements are stated in the disjunctive, it follows
  that consistency with Subtitle 4 as well as the National Contingency Plan are alternatives to acting at the direction of the federal on-scene coordinator or appropriate State official. Put another way, immunity is not lost by failure to receive direction from federal or State officials provided that the actions taken are consistent with Subtitle 4 and the Plan.

  Consistency with the National Contingency Plan should be relatively
  straightforward since the Plan will be specifically written to guide the actions of responders. Subtitle 4 does not set forth specific criteria for responses to oil spills. Subtitle 4 does, however, set forth certain prohibitions and requirements. If the responder has acted in accordance with those prohibitions and standards, then the responder has acted in a manner consistent with Subtitle 4. In addition, as discussed in the following part of this opinion, the MDE has the authority to define actions that are consistent with Subtitle 4.

                                   IV
  
                 Authority to Enact Regulations
  

  A State agency may enact binding regulations only to the extent that
  a statute so authorizes. EN §4-405 provides just such authority for the adoption of regulations. MDE has been given explicit authority in EN §4- 405(b)(1) to issue regulations concerning procedures for responding to oil spills:

        The Department shall prescribe by rule or
    regulation approved methods, facilities, standards and
    devices for transfer, storage, separating, removing,
    treating, transporting, or disposing of oil and other
    unctuous substances to prevent pollution of waters of
    the State, which may include rules or regulations:
  
           (i) Outlining procedures for addressing water
    pollution episodes or emergencies which constitute an
    acute danger to health or the environment ....
  

Moreover, EN §4-405(a)(7) and (9) broadly authorize MDE to enact regulations to carry out Subtitle 4. Any person, including a responder, who violates a rule or regulation issued under Subtitle 4 is liable for civil and criminal penalties. EN §4-417. Therefore, MDE may specify by regulation those procedures that a responder must follow in responding to an oil spill emergency and to define by regulation the actions that are consistent with Subtitle 4.

To be sure, regulations may not conflict with statutory requirements.
Falik v. Prince George's Hosp. & Medical Center, 322 Md. 409, 416, 588 A.2d 324 (1991). The General Assembly did not intend for a responder to enjoy immunity if the responder acted in a manner inconsistent with the National Contingency Plan, Subtitle 4, and the directions of proper federal and State officials. Thus, MDE may not enact regulations that confer immunity on responders who act in such a manner. Nor may MDE confer regulatory immunity on responders who are grossly negligent or who are not, in fact, rendering care, assistance, or advice as specified in the statute. Finally, MDE may not issue regulations that change the requirements of the National Contingency Plan. In accordance with the federal Act, the Plan is adopted by the President and subject to his authority to revise it. 33 U.S.C. §1321(d)(3).

V

Conclusion

1. The immunity from liability for certain damages provided by EN §4-419 applies to a responder who renders care, assistance, or advice in an unsuccessful attempt to prevent a discharge of oil, provided the person meets the other requirements of EN §4-419.

2. A responder may qualify for the immunity provided by EN §4- 419 even though the responder did not contact the federal on-scene coordinator or appropriate State official prior to initiating a response action, if the responder rendered care, assistance, or advice consistent with EN Title 4, Subtitle 4 and the National Contingency Plan.

3. MDE has the authority to define by regulation actions that are consistent with EN Title 4, Subtitle 4.

J. Joseph Curran, Jr.
Attorney General

Michael C. Powell
Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

1
In this opinion, we use the term "responder" to refer to any person who renders care, assistance, or advice to clean up, mitigate, or prevent a discharge of oil in waters of the State.

2
We understand that during one "table top" oil spill response exercise run by the U.S. Coast Guard in Baltimore in 1991, oil spill contractors refused to respond to governmental requests for assistance in cleaning up the hypothetical spill because of concern about "unlimited" liability under Maryland law at the time.

3
EN §4-401(g) provides that "the person responsible for the discharge" is: (i) the owner of the oil; (ii) the owner, operator, or person in charge of the oil storage facility at the time of or immediately before the discharge; or (iii) any other person who through act or omission caused the discharge.

4
The Oil Pollution Act of 1990 provides that the "responsible party" in the case of a vessel is "any person owning, operating, or demise chartering the vessel." §1001(32), Oil Pollution Act of 1990, codified at 33 U.S.C. §2701(32).

5
The Oil Pollution Act of 1990 requires that the National Contingency Plan mandated by the Clean Water Act be revised in accordance with the criteria set forth in §4201 of the Oil Pollution Act. Those criteria require the President to "provide for efficient, coordinated, and effective action to minimize damage from oil..." The Plan includes designation of the federal official who shall be the federal on-scene coordinator for each area subject to an Area Contingency Plan; procedures and techniques to be employed in identifying, containing, dispersing, and removing oil; and establishment of a system whereby states affected by a discharge of oil may act to remove the discharge and be reimbursed in accordance with the Oil Pollution Act for reasonable costs incurred from the Oil Spill Liability Trust Fund.

6
A discussion of the purpose of "good Samaritan" laws, as well as the history and development of Maryland law on this topic, may be found in 64 Opinions of the Attorney General 169 (1979).

7
Maryland courts have recognized the Legislature's evident emphasis on the prevention of pollution. In American Recovery Co. v. Department of Health, 306 Md. 12, 506 A.2d 1171 (1986), the Court of Appeals, in determining whether civil penalties could be assessed for the improper storage and treatment of hazardous wastes despite the fact that there was no actual pollution, stated that "[f]or a civil penalty assessment to be effective in preventing pollution, the agency cannot wait until the pollution occurs to assess the penalty." 306 Md. at 19. In reaching its conclusion, the Court pointed to statutory language indicating that one of the goals of Maryland's hazardous waste laws is to prevent water pollution. Id. The language of EN Title 4, Subtitle 4 is very similar. It too is aimed toward prevention of pollution.

8
Although this opinion concludes that such explicit direction is not essential for immunity if the actions are consistent with the National Contingency Plan and Subtitle 4, prudence suggests that authorization for an action should be sought when time and the exigencies of a particular situation allow. Prior authorization makes it unnecessary to attempt to determine, in hindsight, whether the actions were consistent with the National Contingency Plan and Subtitle 4. As we understand the situation, obtaining such direction from the federal on-scene coordinator and appropriate State official, both of whom are identified in the National Contingency Plan and Regional Response Team Plan, is not difficult. Direction may be obtained by using traditional maritime emergency radio channels. Both the U.S. Coast Guard and the Natural Resources Police monitor emergency channel 16. MDE also maintains a 24 hour telephone number at its Emergency Response Center.

9
Section 4201(c) of the Oil Pollution Act of 1990 required that the National Contingency Plan be revised within one year of the enactment of the Act. Although this revision is overdue, we understand that a draft of the revisions to the National Contingency Plan has been prepared, albeit not yet adopted.

10
At least one responder has expressed concern that an unsuccessful attempt to prevent a discharge might be inconsistent with the prohibition of the discharge of oil set forth in Subtitle 4. However, as discussed in Part II above, the immunity is intended to apply to any responder who attempts, although unsuccessfully, to prevent a discharge. Therefore, the fact that the responder's efforts to prevent the discharge ultimately fail does not mean that those efforts were inconsistent with Subtitle 4.