On December 3, 2021, the Department of Justice published a notice in the Federal Register of a settlement between Federal and State Trustees and Kirby Inland Marine, LP (“Kirby”) to resolve natural resource damages from a 2014 oil release. On March 22, 2014, a bulk carrier collided with an oil tank barge owned by Kirby in Galveston Bay near Texas City, Texas. The collision punctured a tank on the Kirby barge, resulting in the release of approximately 168,000 gallons of oil. The collision and release closed the Houston Ship Channel and Intercoastal Coastal Waterway and interrupted the recreational use of the area. The released oil impacted Galveston Bay and the Gulf of Mexico, including the wildlife refuge on Matagorda Island.
Kirby has been a cooperating responsible party and paid for removal costs. Additionally, Kirby paid $4.9 million in civil penalties under the Clean Water Act, as well as administrative penalties under the Texas Oil Spill Prevention and Response Act.
Shortly after the incident, Kirby and the Natural Resource Trustees began assessing natural resource damages caused by the release. The Trustees for this incident include the National Oceanic and Atmospheric Administration, the U.S. Department of the interior, the Texas General Land Office, the Texas Parks and Wildlife Department, and the Texas Commission on Environmental Quality. In September 2014, Kirby and the Trustees entered a memorandum of agreement to work jointly to assess the natural resource damages. The natural resource damages assessed include injuries to bottlenose dolphins, birds, shoreline habitats, and outdoor recreation opportunities.
In November 2021, the U.S. Department of Justice filed a signed consent decree in federal court, to settle natural resource damages with the Federal and State Trustees for approximately $15.5 million. See United States v. Kirby Inland Marine, LP, Civil Action No. 3:21-cv-00335 (S.D. Tex.). Before the consent decree becomes final, it must go through a 30-day public comment period and be entered by the court. The 30-day public comment period began on December 3, 2021, when notice of the settlement was published in the Federal Register, 86 Fed. Reg. 68686, and goes through January 3, 2022. A copy of the consent decree is available for review on the Department of Justice’s website: https://www.justice.gov/enrd/consent-decrees.
That it has taken nearly eight years to resolve the natural resource damages claim is fairly typical. For example, in 2021, the Department of Justice provided notice of seven consent decrees for Oil Pollution Act natural resource damages, and these consent decrees were signed anywhere from two to 15 years after the incident, and on average, nearly nine years after the incident.