Friday, May 28, 2010

The Federal Oil Spill Response - a little more reality if you please

There are a lot of calls all over the Internet and news media for the Federal Government to take over form BP the job of responding to the oil spill that is destroying the northern Gulf of Mexico. Some, like Mike’s, are based on the perceived lack of effective response to the oil in the marsh; others are rooted in a well deserved distrust of BP.

Being a Louisiana native, no one on the Internet aches more then I do for the marshes that now must absorb the fruits of our fossil fuel hubris. The areas now fouled will take a long time to clean, if they ever do come completely clean. We’ve learned, painfully, that cleaning Valdez Alaska was not really effective, and oil continues to seep from the beaches today.

That said, I’ve also had hazmat training, done federal disaster response from the Army Corps of Engineers, and read more then a little case law. So I have a few experiences and some knowledge to answer those calls.

First, oil spill response in the U.S. is regulated by federal statute – in this case the Oil Pollution Control Act of 1990 (OPA 90). In the Act, the principle liability for response and clean-up falls to the “the responsible party for a vessel or facility from which oil is discharged” which in this case is BP. The federal response is also laid out in the Act, and governed by the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) and that starts with the Coast Guard and EPA taking joint charge (As they have in the Gulf). The NCP also lays out how and under what general headings each federal agency responds – directing NOAA, for instance, to run the scientific response, as it is presently doing. Specific Agency Responsibilities are found at § 300.175 Federal agencies: additional responsibilities and assistance. Interestingly, only the U.S. Coast Guard is authorized by the plan to contract for spill response, and only then with “appropriate state in order to implement a response action.”

So to say that the federal government is just sitting back and letting BP run the show is just wrong, both in statute and in fact. Hundreds of my federal colleagues are on the ground, on the beaches, and working really long hours to do really tough jobs. To say BP hasn’t pulled its weight is, however, also fair, as their contingency planning was clearly not up to snuff. That needs to be investigated, and since all federal agencies working the spill have been directed by the Department of Justice to preserve their records, I suspect criminal investigations will begin, is they haven’t already.

But more to the point, what more does the federal government have an obligation to do? And with what resources? I’ve heard that the Navy should be deployed, but to what end? Destroyers and guided missile frigates are too big to pull skimmers or boom; smaller in shore craft lack endurance for staying at sea for weeks on end. Most, if not all of the private sector vessels that are equipped for response are already contracted to BP, so the feds couldn’t really bring in any more boats or crews.

On shore, boom was pulled along hundreds of miles of coast line well before the oil arrived, and the oil got through anyway. Having done oil boom placement and retrieval, I know of no way the government could have done it that the shrimpers and BP’s contractors didn’t. And now that the oil is in the marsh, the real question of how do we get it out is raised. Here the federal government may be able to predict what the impacts to ecosystems and species are, but do you really want the Army Corps of Engineers pulling up giant bucket-fulls of marsh mud and plants to remove the oil? That’s the only real mechanical solution that a federal agency could undertake, and it would destroy – as much as the oil is destroying – one of our Nation’s most productive ecosystems.

So for those of you who think the feds need to ride in on a white horse, and that this is Mr. Obama’s Katrina, tell me what, specifically and LEGALLY you think we, who are your federal government, should do that we haven’t. Chances are for every idea you bring up, I can find all sorts of federal employees and contractors already doing it, or some really good reason why they aren’t.

1 comment:

jg said...

Great information. Thanks for adding this detailed example of how law is also an example of human intelligence.