Lessons From the BP Emergency Action Plan in Action

Date01 November 2010
Author
11-2010 NEWS & ANALYSIS 40 ELR 11115
Lessons From the BP Emergency
Action Plan in Action
by Denis Binder
Denis Binder is Professor of Law, Chapman University.
I. Premises
Failures, disasters, and tragedies occur. Catastrophic oil spills
or toxic releases, mechanical breakdowns, technology fail-
ures, or software glitches may appear to be accidents, inten-
tional acts, or environmental disasters, but almost always,
human error will be involved.1 e human fault may occur
in project design, construction, supervision, operations,
maintenance, repairs and modications, inspections, a nd/
or regulation. Emergency action plans (EAPs) can minimize
the impact of human fault.2
In some cases, the threats may be innite, but the fore-
seeable damage c an be predicted. For example, no matter
how a dam is breached, the water will ow in only one
direction. On the other hand, many disasters, such as the
Deepwater Horizon blowout, will test unknown dimen-
sions. In these situations, the risks may be innite and on
the edge of technology, such that they a re not understood
until disa ster strikes.3
1. An initial BP investigation into the blowout recognized “A complex and in-
terlinked series of mechanical failures, human judgments, engineering design,
operational implementation, and team interactions came together to allow the
initiation and escalation of the” accident. BP, Deepwatwer Horizon Accident
Investigation Report, Sept. 8, 2010, at 31 [hereinafter BP Accident Report].
2. EAPs and business continuity plans are becoming the norm in the business
world. ey may be mandated or encouraged by statutes, regulations, and
professional codes and standards. See, e.g., 29 C.F.R. §1910.3(a) (1974). e
Department of Homeland Security, on June 15, 2010, adopted three stan-
dards for Voluntary Private Sector Preparedness Accreditation and Certica-
tion Programs, National Fire Protection Association 1600, BS 25999, and
ASIS SPC-1. In general, see Denis Binder, e Role of Statutes, Regulations, and
Professional Standards in Emergency Responses, available at ssrn.com, abstract
#904025.
3. e aerospace industry had a wonderful name for these risks: “unk-unks,” un-
known unknowns.
In other c ases, perhaps as with the Deepwater Horizon
blowout, a period of success can lead to an underestimation
of the risks; complacency may set in; and the decisionmakers,
as with the Teton Dam and the Space Shuttle Challenger,
may proceed oblivious to the underlying risks.
EAPs are not intended to prevent an incident, but plans
to respond to an emergency are becoming as integral to neg-
ligence analysis as exercising reasonable care to prevent an
accident. e purposes are to minimize the impacts, mitigate
the consequences, and facilitate recovery.
Litigation is still relatively scarce on emergency action
plans,4 but two cases illustrate the legal need for emergency
planning. Coates v. United States5 involved the failure of
Lawn Lake Dam overlooking the resort community of Estes
Park, Colorado. e dam was privately owned, but sited on
National Park Service (Park Service) la nd. Between Lawn
Lake Dam and Estes Park was the smaller Cascade Dam.
Lawn Lake Dam fa iled before 6:30 a.m. e Park Service
was soon notied, with a ranger dispatched in 20 minutes
to warn downstream campers. e ranger proceeded, in a
somewhat desultory manner, to warn several, but not all, of
the campers. e ood wave caused the lower da m to fail,
resulting in three deaths and extensive property damage. e
district cour t in the Federal Tort Claims Act lawsuit found
several instances of negligence on the part of the government
and awarded $480,000 to the family of a deceased camper.
e court’s decision involved a small-scale tragedy, com-
pared to the 11 lives lost and untold environmental dam-
age from the Deepwater Horizon blowout, but the principles
remain the same. e court held the government had a duty
to prepare an emergency action plan:
Because these national pa rks are outdoors a nd, therefore,
subject to extreme and sometimes unexpected weather
changes, structural failures such as t he one at issue here,
4. An analogous area of liability is the allegedly inadequate response to 911 calls.
e emergency responders did not cause the original emergency, but were al-
legedly negligent in their response. See, e.g., Chambers-Castanes v. King Coun-
ty, 669 P.2d 451 (Wash. 1983); Barth by Barth v. Board of Education, 490
N.E.2d 77 (Ill. App. Ct. 1986); DeLong v. Erie County, 455 N.Y.S.2d 887
(N.Y. App. Div. 1982); see also Harrell v. Chicago Heights, 945 F. Supp. 1112
(N.D. Ill. 1996). But see Eastburn v. Regional Fire Protection Authority, 7 Cal.
Rptr. 552 (Cal. Dist. Ct. App. 2003); Beltran v. City of El Paso, 367 F.3d 299
(5th Cir. 2004).
5. 612 F. Supp. 592 (D.C. Ill. 1985).
Author’s Note: is Article was completed on September 28, 2010,
after the blowout was plugged, but at the beginning of the extensive
post-mortems. It is based on the materials available, especially media
reports. Some of the observations and conclusions in this Article are
preliminary and therefore subject to change. e 2002 University of
Pittsburgh Law Review 9/11 Symposium issue included my Article on
emergency action planning. Denis Binder, Emergency Action Plans:
A Legal and Practical Blueprint, “Failing to Plan Is Planning to
Fail,” 63 U. P. L. R. 791 (2002). A substantially revised version
is available at ssrn.com, abstract #844428.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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