Contingency Planning - Lessons Learned

• Author: Russell V. Randle
• Position: ELI's Oil Pollution Deskbook, a current vice-chair of the ABA Committee on Superfund and Natural Resource Damages Litigation, and a partner in the Washington, D.C., office of Patton Boggs LLP, where he has previously led the environmental group
• Pages: 51-51

SEPTEMBER/OCTOBER 2010 ❧ Page 51

Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, Sept./Oct. 2010

Th e fo r u m

Contingency

Planning —

Lessons Learned

R V. R

The Deepwater Horizon ex-

plosion, f‌ire, sinking, and

well blowout demonstrated

the failure of BP’s contin-

gency plans for a worst-

case accident. Congressional hear-

ings in June strongly suggested that

some of the other plans currently in

place in the Gulf of Mexico would

not work any better. ese plans use

much the same language as BP’s,

and contain similar errors, errors

showing use of an Alaskan template

without adequate updates of person-

nel or adaptation to local f‌lora and

fauna. e government’s repeated

approval of these plans suggest that

regulators were not just asleep but

comatose.

Five early lessons can help guide

future steps to avoid similar disas-

ters:

Prevention. Although a faster,

more robust response would have

prevented or slowed some environ-

mental damage, once the blowout

preventer failed no one had the

technology to contain this mile-deep

pressurized discharge. Responders

have to deal with the oil when it

reaches the surface, subject to wind,

tides, and waves. e limits on such

spill response place a high premium

on prevention; we should expect

much more detailed regulatory

review of blowout preventers and

of‌fshore drilling procedures.

Paper vs. practice. e Deepwater

Horizon had regular f‌ire drills, drills

which probably saved some lives.

Sadly, there do not appear to have

been any full-scale tests of BP and

governmental contingency plans

for a worst-case discharge. ough

such a full-scale test would have

been costly and time consuming,

lasting several days, failure to test

these plans adequately has already

cost much more. ere is a military

adage, “You can expect what you

inspect.” We should not be surprised

that untested plans worked badly.

When Congress passed the Oil

Pollution Act in 1990, it revised

the Clean Water Act to provide that

of‌fshore facility contingency plans

must provide for “training, testing,

and periodic unannounced drills,”

among other steps. We should ex-

pect — and insist — that Congress

and the administration demand

periodic full-scale testing of these

plans, not just at the facility (e.g.,

f‌ire drills), but testing the full mobi-

lization of resources, including ves-

sels, onshore facilities, containment

equipment, and emergency person-

nel, called for in the plan, with steps

taken to address identif‌ied def‌icien-

cies — both private and governmen-

tal — as soon as practical.

Say what you mean, mean what

you say — every day. Static con-

tingency plans for a worst-case oil

spill cannot work properly. is is

especially true for a worst-case spill

on the high seas, whether from a

drilling rig or a tanker. e avail-

ability of vessels, people, and con-

tainment equipment like booms will

change, sometimes rapidly, depend-

ing on the season, other spills, and

other demands for these vessels and

personnel. Key contacts routinely

change. e steps to be taken may

vary depending on hurricane risks,

f‌ish and waterfowl migration, and

availability of governmental resourc-

es such as the National Guard.

Consequently, plans need to be

checked and updated often if they

are to work well. EPA rules already

require oil spill contingency plans to

be certif‌ied by a professional engi-

neer, in part because improper certi-

f‌ication may subject the engineer to

professional discipline. Requiring a

similar certif‌ication from key facility

management for mandatory updates

may help assure realistic, workable

plans. False certif‌ication is an easily

provable felony.

See for yourself. BP badly under-

estimated the discharge volume

and thus the needed response. e

error was compounded by regula-

tors’ initial reliance on BP estimates.

Regulators need to make an early

independent factual assessment to

help assure an adequate response.

e absence of this independent

capability slowed deployment of

enough surface vessels to contain the

produced oil and hurt regulators’

credibility with the public.

Build Government Response Ca-

pability. It is painfully clear that the

federal government lacks the capac-

ity to address a submerged spill, par-

ticularly one at this depth, but needs

this capability if deepwater drilling

is to continue. Fixing this problem

means acquisition of manned and

robotic submarines, more surface

vessels and containment equip-

ment, and addition of highly trained

personnel into the Coast Guard to

operate this new equipment. Fixing

this problem also means adequate

funding for the Coast Guard to

train with the equipment, maintain

it and modernize it over time —

something past administrations have

done poorly for a long time.

If applied, these lessons can

improve prevention, increase gov-

ernment spill response resources,

and force contingency plans to be

regularly tested against reality and

improved. ough more costly than

the prior regime, there is noth-

ing cheap about the cleanup and

environmental damage that failure

to heed these lessons has already

caused.

Russell V. Randle is the author of ELI’s

Oil Pollution Deskbook, a current vice-chair

of the ABA Committee on Superfund and

Natural Resource Damages Litigation, and

a partner in the Washington, D.C., ofce of

Patton Boggs LLP, where he has previously

led the environmental group.