Thursday, January 3, 2013

A Special Note to the 113th Congress: The Unfinished Business of Spill-related Legislation after the BP Oil Spill?

Keywords or Terms: H.R. 2383; 113th Congress Urgent Agenda; BP Oil Spill; Louisiana Offshore Platform Disaster; Emergency Clean Up; Torts; First Responders; Offshore Oil Spills; and, Bureau of Safety and Environmental Enforcement (BSEE).

Were the various acrimonious disagreements and schisms in the 112th congress, the bane(s) that delayed spill related legislation(s) since the deepwater horizon disaster? What does recent congressional gridlock or soft footing on the fiscal cliff imply for oil-spill related legislation? Will a fresh start with the 113th congress exacerbate or hinder needed legislation on tort claims from responders' performance in a cleanup after an oil spill? Why haven’t Congress enacted bill(s) to address many of the shortfalls in current laws; or, from incident reports consequent to BP Oil spill in the Gulf of Mexico? Will the 113th stand up to address this issue; or will it allow this opportunity to slip?

The answers to these questions lie partially in the hands of the newly sworn in congressional lawmakers of the 113th Congress. BP Deepwater off-shore oil spill and recent shallow-water production offshore platform disaster in Louisiana beg for legislative attention, especially regarding tort claims surrounding the work of first responders in the aftermath of a spill or environmental disaster. The associated deaths with recent disasters in the oil and gas industry directly points to two things: 1) the oil and gas industry may have learned a thing or two about emergency clean-up response consequent to a huge environmental disaster or oil spills; 2) clean-up efforts after huge disasters require thousands of responders working several months to manage the mayhem associated with horrendous offshore oil spills. Just as important as other legislation regarding oil and gas production and expansion of offshore and onshore drilling activities, in the drive to run up production levels of this carbon-based energy source, so also are the unfinished businesses regarding responders liability, manufacturers of spill containment chemicals liability, compensation infrastructure arrangement and personnel training regarding management of huge oil and gas spills in the field.

The new understanding of emergency management consequent to BP Oil spill and other subsequent disasters associated with oil and gas explorations, including the 30-inch pipeline burst near Marshall, Michigan, where over 800,000 gallons of crude oil were turned into the Talmadge Creek, a water way to the Kalamazoo River, indicate that new legislation are needed with respect to Safety and Environmental Management in offshore operations. Without new legislation or retooling existing provisions in laws addressing Oil pollution as conceived in 1970 and 1990, employee safety, torts’ provisions and employee safety training with respect to managing the huge aftermath of environmental disasters, will continue to lag. The onus is for the 113th Congress to act; even though the outgoing congress scratched the surface of putting together some provisions as envisaged in H.R. 2383. Unfortunately, this bill is still lying on the cue or schedule of legislation needing urgent congressional attention, before becoming law.

Despite the fact that the Bureau of Safety and Environmental Enforcement (BSEE) has began implementing the SEMS program, including: 1) focusing on human errors and impact of poor organizational safety practices in, and after, an accidental oil and gas spill or incident; 2) supporting the improvement of offshore oil and gas drilling safety and environmental records; 3) encouraging performance-based operating practices; and 4) collaborating with the oil and gas industry participants to promote offshore worker safety and environmental protection, there are still no legislation addressing the issue of protracted litigation filed again first responders, torts associated with chemical materials used to manage excessive pollution migration from the location of incident or spill, and the types of response actions covered by immunity under the 1970 and 1990 laws. Without added provisions or retooling of some of the languages in the Oil Pollution Act of 1990, there is hardly any better way, to address the issue of first responders liability or the full weight of obligations of responders in the event of managing oil and gas spills with manufactured chemicals or protocols to address the immediate consequence of similar disaster to what we had in the Gulf of Mexico two and a half years ago. 

Here is where the 113th congress can make a difference by moving forward H.R. 2383, Coast Guard and Maritime Transportation Act of 2011 (November 15, 2011; September 22, 2012). The new congressional class can take the initiative to address those bottlenecks that have made this act lag in both chambers of congress; by resolving those challenges regarding immunity protection for first responders under the Oil Pollution Act of 1990. Based on existing provisions of the Oil Pollution Act of 1990, first responders suffer huge legal costs and ramification with regard to how they respond, handle, and or manage huge spills; including the type of dispersant used for managing the aftermath of pollution. The experiences under the BP oil spill in the Gulf of Mexico show that containment resources during national emergencies to mitigate size of disaster’s environmental damage impact are limited for first responders, because of the fear of consequent litigation and liability associated with managing huge spills similar to Deepwater Horizon’s.

Further developments since the BP Oil spills have shown that, despite the Oil and Gas industry initiative to get prepared for managing huge oil spills, there are still no cautious effort to gather full information regarding near-misses, so the industry does not have to wait for an accident to occur or repeat itself, before recognizing the safety lapses. The Coast Guard and Maritime Transportation Act of 2011 attempts to demand better expediency in the industry; however, since it is being held up in congress, no one knows the full extent to which it has addressed all the concerns and challenges associated with the aftermath of the BP oil Spill or similar disaster. Despite the commendable clean-up effort during the BP Oil Spill Mayhem, no specific congressional initiative has addressed the issue of the first responders' liability after an incident; or the extent of responders’ immunity in the use of land-based hazardous substance spill to manage extent of environmental damage. 

Depending on one’s perspective, the break up of the Bureau of Ocean Energy Management, Regulations and Enforcement (BOEMRE) in October 2011, was a welcome effort from the government after the BP’s Oil spill or mayhem. In retrospect, there is evidence showing that the size of spill and the poor organizational management of the aftermath of a spill may prevent first responders from doing an adequate job in managing imminent danger associated with the spill. There is already litigation in courts calling first responders to answer to questions regarding the use of dispersants and the probably consequential impact on adjacent residents’ health in the impact area. Resolving this litigation will require new play book, one that is hardly available to the courts, except working on existing laws to resolve a very thorny issue, regarding safety and industrial accident management.

Today, little information is being compiled regarding accidental performance trend; and many organizations in the industry are still not paying attention to tracking individual accidental performance with respect to the industry “averages”. This probably will continue to compound the problems of associated industrial accidents that lead to employees’ deaths in the industry, especially regarding offshore oil and gas explorations.

There are many leaders in the industry who find this problem unacceptable and will like some legislation to compel the industry to track also, not just the spills, but also the near misses on the platforms to help track better accidental and potential accidental occurrence in the explorations of oil and gas. This is believed to be a better assessment of the industrial accidents experienced in the offshore platform drilling. It is also imperative that our lawmakers give the courts and industry what are their limitations, obligations and probably constraints with respect to the type of resources used for managing accidental disasters.

The current laws regarding liability under the Oil Pollution act, the Federal Water Quality Improvement Act of 1970 and Oil Pollution Act of 1990, have been criticized as inadequate and needing of revision in light of the experience of the blowout at BP Deepwater Horizon disaster. The immunities under both laws are seen as inadequate for protecting first responders, as they allow injured parties to recover full damages, even after paying for the removal costs of pollution.

While I completely do not share the argument that first responders may be negligent or act willfully of misconduct under current dispensation regarding personal injury and wrongful deaths with respect to offshore drilling or managing the aftermath impact of environmental disaster, it is my opinion that the short fall in both Federal Water Quality Improvement Act and Oil pollution Act of 1990, needs to be visited and re-visited, where necessary, by the 113th Congress. Three reasons for these visitation and further legislation are found in: 1) the argument that EPA-approved dispersants used to treat excessive spill put the first respondents at liability disadvantage, due to the tort claims and unintended consequence of using some resources for managing the huge size of the environmental disaster; 2) the argument that current settlements provision for restoration of fish, wildlife and people are still not up to snuff, under the natural resource damage assessment and restoration provisions, this essentially came out of the experience of the San Francisco Cosco Busan Oil spill; and, 3) complainants or affected parties in a spill zone(s) allege various torts due to personal injuries from dispersant used; this tort bundled, could extend tort claims to manufacturers of dispersant or other resources used for breaking down oil and gas, including aircraft companies spraying the dispersant and the contractors involved in managing the clean up of the environmental disaster.

If there was anything good about the BP Oil spill of 2010, we now know that the preceding laws under the Oil Pollution Act, the Federal Water Quality Improvement Act of 1970 and Oil Pollution Act of 1990, have several shortcomings; a few of which were hardly contemplated before the BP Deepwater Horizon Oil Spill. As documented by leaders in the oil and gas industry, including legal luminaries in admiralty and maritime laws, some of these short comings include: 1) the insufficient funding of the Oil Spill Liability Trust fund; 2) Uncertainties in the preservation of rights under state and admiralty law; 3) statutory limits on liabilities of responsible parties, including arrangements of compensation scheme; and 5) penalty provision applicable when responsible parties fail to pay claims in a timely fashion. In light of these shortcomings, the 113th Congress has the great opportunities to amend the Oil Pollution Acts or statutes associated, to help everyone connected to the industry, do a better job in case of another industrial mishap of platform explosions that may result in the deaths of employees. 

As a first step, the Coalition from the salvage industry, spill management industry, containment industry and first responders industry, asks that 113th Congress consider the following measures to correct for the inadequacies or anomalies of the existing laws: 1) Define with specificity, the term, “responder” and the types of response actions covered by immunity under the 1970 and 1990 laws; 2) Provide a “presumption” that any response action or omission does not constitute gross negligence or knowing misconduct; 3) provide that a responder shall share derivatively in government immunity with response to a response activity; 4) provide that immunity will not apply to land-based hazardous substance spill, or if the person is grossly negligent or knowingly engaged in misconduct; 5)  provide that person(s) filing a claim against a responder must pay a court cost and attorneys fees; and 6) expand the scope of current version of responder immunity to provide immunity for personal injury or wrongful death  and immunity from civil or criminal penalties. Clarification of the misgivings or misunderstandings of these terms, arrangements or developments, will help shed more lights on the current concerns in these areas.

While one or two of these coalition’s proposal may be debatable or subject to critical assessments, it is apparent that most of them will correct for not only the shortcomings in Federal Water Quality Improvement Act of 1970 and Oil Pollution Act of 1990, but also provisions contemplated in the House and Senate versions of H.R. 2838 bill: 1) Coast Guard and Maritime Transportation Act of 2011 (November 15, 2011) and 2) Coast Guard and Maritime Transportation Act (September 22, 2012). Notwithstanding, the Oil and Gas industry embraces most aspects of H.R 2838, House’s and Senate’s version; however, the industry leaders wonder why the issues of employee safety, personnel training, and torts claims are not addressed exhaustively to clear out the misconceptions that currently beclouds all the efforts expended by first responders after a spill similar to what we had in the Gulf of Mexico. These are essential items and the current movement on the work on H.R. 2383, brings to life the huge concerns in the industry regarding congressional efforts to fashion out a more responsive legislation in light of recent experiences.

We trust however, that congressional lawmakers in the 113th Congress have the necessary tools and wisdom to address the concerns of many in the industry regarding tort claims, near misses accidental records, employees’ safety training and infrastructural arrangement to manage huge environmental disaster without fear of tort claims that may hinder honest efforts by first responders.
Post a Comment