CONTINGENCY PLANNING CRUCIAL TO OIL-SPILL RESPONSE

Charles B. Anderson, Brian D. Starer
Haight, Gardner, Poor & Havens
New York

The first line of defense against an oil spill or release of hazardous substances is an effective individual company contingency plan and a well-trained and organized response team.

Facility-specific plans should be prepared for coastal and offshore petroleum exploration wells and production facilities, terminals, and other oil-transfer facilities, and any other sites with a potential for spills of hazardous substances.

Effective contingency planning can help avoid the possibility of federalization of a spill and relinquishment of control over the cleanup operations to the federal government, thus avoiding potentially disastrous costs.

Planning and response go hand-in-hand because without advance preparation, no amount of expertise, manpower, or equipment can be effectively organized on the spot in the chaotic situation which prevails after a large spill.

HAPHAZARD REQUIREMENTS

Current U.S. legal requirements for such plans are haphazard. The Federal Water Pollution Control Act, often referred to as the Clean Water Act, states that regulations are to be issued which establish "procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances from vessels and from onshore facilities and offshore facilities, and to contain such discharges...."1

The U.S. Department of Transportation (DOT) has issued regulations implementing the Clean Water Act which require contingency plans for marine oil-transfer facilities. The plans must include "procedures for reporting initial containment of oil discharges" and must be approved by the Coast Guard Captain of the Port.2

Although the DOT regulations merely state that each "facility must have ready access to enough oil-containment material and equipment to contain any oil discharged on the water from operations at that facility," U.S. Environmental Protection Agency (EPA) regulations require such facilities to list in their plans the equipment to be maintained in the event of oil discharge.3

By contrast, many states leave contingency planning to industry on a voluntary basis. Legislative initiatives are already under way, however, to make such plans mandatory.

Whether currently required by law, there are also sound economic reasons for preparing effective contingency plans.

If the federal "On-Scene Coordinator" (FOSC; usually EPA or Coast Guard officers who have been trained and designated under federal law to respond to pollution incidents4) determines that a spiller's actions are insufficient, the coordinator may "federalize" the spill, taking over the cleanup operations from the spiller and opening a fund pursuant to the National Contingency Plan to pay for the costs.

Under the Clean Water Act, the spiller is then strictly liable, up to the specified limits, for the actual costs incurred by the government in containing and removing the oil. If the discharge is from a facility, the current limit is $50 million; if the discharge is from a large vessel, the limit is currently $150/gross ton of ship or $250,000, whichever is greater.5

As a result of the Exxon Valdez spill, legislation is pending in Congress which would significantly raise these limits.

The House version of the new comprehensive oil-spill legislation (H.R. 3394) would raise the ceiling on tanker-vessel liability to the greater of $1,200/gross ton or $10 million.

For offshore facilities, the limit would be set at $75 million plus unlimited removal costs. Other facilities, including deepwater ports, would be liable for up to $350 million.

The House version of the bill would also impose secondary liability up to $600/gross ton on the owners of oil shipped in bulk as cargo. The House-Senate conference is expected to meet shortly on the new legislation.

When the discharge is the result of willful negligence or misconduct, the discharger is liable for the full amount of the cleanup costs without limitation. Costs which must be reimbursed include natural-resource damages, defined as "any costs or expenses incurred by the federal government or any state government in the restoration or replacement of natural resources damaged or destroyed as a result of a discharge of oil...."6

If the spiller initially underestimates the cost of cleanup and takes on the task itself only to find it is approaching the statutory limits and the spill is then federalized, no credit is given for the money spent up to the point of federalization.

In addition, the statute provides for imposition of civil penalties of up to $50,000 or (in the case of willful misconduct) $250,000.7

PLAN'S MAJOR AREAS

Experience has shown that action to contain and control an oil spill must be taken well within the first 24 hr in order to be effective. There will probably be insufficient time to mobilize federal and state governmental resources before the effects of a spill become widespread.

Where to start developing an effective, well-organized response plan rests with company executive management.

An effective plan must address the following general areas: (1) assessment and reporting; (2) organization and responsibilities; and (3) control and coordination of response efforts, including containment, cleanup, and disposal.

ASSESSMENT, REPORTING

The first step in preparing a contingency plan is to identify the areas and resources potentially threatened by an oil spill or release of hazardous substances. In the case of inland oil spills, the greatest risk will generally be to the groundwater and community water supplies.

Information should be obtained in advance concerning the type of soil at or near an oil production or handling facility, its permeability to oil, and other particulars, as well as the level of the groundwater table and variations, direction and speed of groundwater flow, connections with other bodies of water, and any changes to the soil structure. These data will save valuable time in determining the appropriate removal method in the event of an emergency.8

Where the spillage occurs on inland waters or at sea, assessment of threatened areas is generally more difficult because of the rapid spread of the oil by wind and currents. Where such spills are anticipated, the location of major fishing areas, spawning grounds, marinas, recreational beaches, and environmentally sensitive areas should be noted, as well as details of local tides and currents and prevailing winds throughout the year.

A survey of offshore exploration and development sites and tank-vessel operations in the area is useful in identifying high-risk areas. Identification and classification of such critical areas as marshlands or water-supply sources will assist in the planning of the type of remedial action required, such as use of mechanical recovery techniques or chemical dispersants.

The properties of probable pollutants, such as viscosity, volatility, water solubility, etc., should be also assessed.

In addition to identifying threatened areas and resources, procedures for prompt reporting of the spill and notification of key company officials as well as the appropriate government authorities should be defined (Fig. 1).

If an incident involves a spill or release of more than legally specified quantities of oil or hazardous substances, the party responsible for the incident is required by federal law to notify the National Response Center.

The center, funded by DOT and EPA, is located in Washington, D.C. (1/800/424-8802), and staffed 24 hr/day by Coast Guard officers and marine-science technicians. Some 16,000 incidents were reported to the center in 1987-88.

Most states also have requirements for reporting such incidents. Failure to comply can subject the responsible party to criminal liability or result in the imposition of substantial civil penalties.

Moreover, response efforts are most effective when taken immediately after a spill or release. The establishment of a system for timely reporting of pollution incidents can significantly increase the chances of effective control and vastly reduce the costs of cleanup.

Discovery of a spill may be made through random or incidental observation by government agencies or the general public, but it is obviously preferable for companies to initiate their own procedures, such as regular vessel patrols or fixed or rotary wing aircraft overflights to detect spills.

Such procedures, if carried out by properly trained personnel, will ensure that a proper initial assessment is made and, if company resources are insufficient, enable outside assistance to be brought in quickly.

ORGANIZATION, RESPONSIBILITIES

In the case of small spills, it may be sufficient if the contingency plan merely lists the names and telephone numbers of local cleanup contractors.

Although larger spills may be rare, the potential for disaster, as illustrated by the recent Exxon Valdez spill, virtually mandates that oil company managers have a well-trained and organized team of in-house personnel available to make crucial initial decisions and initiate prompt response measures before outside assistance arrives.

While terminology may vary, key personnel required for major oil spills or other pollution incidents must generally cover the following functions:

On-scene management and coordination. It is important to designate one individual as the overall crisis manager for the company.
Ideally, such a position should be full-time and include supervision of the containment and cleanup operations and liaison with company management and government officials as well as the news media.
The duties of the company oil-spill coordinator should generally parallel those of the federal on-scene coordinator under the National Contingency Plan. The company coordinator should have authority to activate cleanup cooperatives, hire outside contractors and consultants, order equipment, and authorize other disbursements necessary for cleanup operations.
On site cleanup management. Responsibilities of the on site manager include reconnaissance and evaluation of the spill; direct supervision of offshore and onshore cleanup operations; assignment of manpower; implementation of cleanup plans; and coordination of disposition of recovered oil, hazardous materials, and debris from the cleanup operations.
The on site manager should not only be thoroughly familiar with state-of-the-art cleanup techniques and equipment, but should also have established contacts with competent local cleanup contractors and have observed their performance in previous operations.
Contract management. One or more individuals should be assigned to supervise the cleanup activities of individual contractors, ensure that appropriate safety procedures are implemented, and review daily records of manpower, equipment, and supplies used in the cleanup operations.
Administration. Administrative tasks include communications and logistics, procurement of services and equipment, accounting, and documentation.
Individual assignments should cover providing and maintaining radio and telephone communications systems; establishing a cash-disbursement fund and accounting procedures for the review, documentation, reporting, and projecting of expenditures; and auditing, approving, and forwarding contractors' invoices for payment and preparing cost reports for underwriters.
Additionally, these assignments should include procuring equipment and supplies for use in the cleanup operations, including liaison with contractors and consultants; documenting all aspects of the spill incident and cleanup, such as daily reports, logs, press releases, photographs, statements from employees and witnesses, and other documents which may be required in connection with legal actions or insurance claims.
Legal. Legal representatives must advise regarding statutory reporting requirements, conduct investigations as to the cause and potential liability for the spill, advise on-scene management and persons in charge of documentation regarding record-keeping requirements, and develop and review information released to the public and news media.
These representatives must also provide necessary advice for press conferences and public meetings, conduct interviews of witnesses, retain experts to investigate the cause of the spill, review agreements with cleanup contractors and equipment suppliers, advise regarding salvage and insurance matters, and maintain liaison with government officials.
Insurance. An insurance coordinator should be appointed whose primary responsibilities are notifying insurance carriers, Protection and Indemnity ("P&I") Clubs, or other associations covering oil pollution risks; advising underwriters as to the size, location, and extent of the spill; supervising audit of contractor performance; coordinating settlement of third-party claims; liaison with the on-scene management regarding claims settlements; and establishing reserves for cleanup costs.
Public affairs. Representatives will be needed to handle relations with the news media, environmental and civic groups, politicians, and the general public.
Specific tasks may include assessing the impact of the spill on the public; liaison with government and regulatory public information personnel; arranging press conferences; setting up conference rooms, telephones, and audio-visual equipment; preparing and reviewing press releases; and conducting tours and news briefings.
Environmental protection. Consultants in environmental protection should advise the on-scene managers concerning the environmental impact of the spill and cleanup operations, notify federal and state wildlife agencies, conduct surveys of the affected areas, and recommend appropriate removal or remediation measures.

Further, they should take samples of oil or other materials to assess spill impact, retain experts in wildlife rescue and monitor the operations of wildlife-rescue centers, and coordinate volunteer response with appropriate state and federal agencies.

Consultants may also be required to advise regarding occupational health and safety concerns and their relation to the cleanup operations and to conduct appropriate monitoring.

TRAINING

Personnel with expertise in these areas should be identified and assigned to specific tasks in every major geographic area of a company's operations where the risk of an oil spill or release of hazardous material exists.

Unless such personnel have been organized and trained in advance to assume their assigned duties, the speed and coordination necessary to respond effectively to a major pollution incident will be lacking and a myriad of operational, logistical, communications, and other problems will quickly overwhelm the response effort.9 Even a well-organized team will not be effective unless it has undergone thorough and realistic training.

Training can be accomplished in a variety of ways: classroom sessions, on-the-job briefings, recall exercises, communications exercises, full-scale operational exercises, and disaster simulations where spill equipment is deployed under the direction of the response-team leaders.

A critique should be held after each exercise so that lessons learned from simulated spills can be incorporated into contingency plans, shaping new requirements for response training.

Training exercises should contain scenarios for spills of various sizes (small spills of less than 1,000 gal, medium spills of 1,000-100,000 gal, large spills of more than 100,000 gal) and should include response-time objectives to be achieved (5 hr or less for initial spill response). The training should in all cases be realistic, tough, and continuous.

In addition to defining personnel responsibilities, the plan should consider the type and amount of equipment and supplies available at every company facility and ensure that there is at least a minimum amount of equipment available locally to handle small spills and initiate containment and recovery of larger spills.

Where the company's own inventories are limited, additional equipment can be quickly made available through local contractors, cleanup cooperatives, or government agencies. But the location and type of equipment must be identified in advance.

Finally, response plans should constantly be reviewed and updated. Telephone numbers and addresses should be verified and updated at regular intervals.

Plans should also reflect current federal and state reporting requirements, as well as changes in manpower, equipment, and technology. Plans should be adaptable to the demands of a particular spill and should be sufficiently flexible to allow for and encourage individual initiative and innovation.

CONTROL, CLEANUP COORDINATION

After the discovery and notification phase, the contingency plan should provide guidelines as to containment and countermeasures, cleanup and disposal of the pollutant from the water and onshore areas, and restoration of the environment as well as the resumption of normal commercial operations.

There are, of course, many options to be considered in planning countermeasures. Selection of the optimum response method will vary according to the individual situation. The first priority, of course, is that the oil be contained. On land this can be accomplished by creating dykes, earth dams, or using sorbents.

When the spill occurs on water, floating booms may be deployed to contain and concentrate the oil, or chemical dispersants applied to dilute the oil. Thereafter, countermeasures may include skimming, pumping oil from exposed groundwater, excavation, degradation by biological action, continued use of dispersants, or combustion.

A detailed discussion of such measures is beyond the scope here, but planners should consider these options in advance with a view to the specific marine, coastal, or inland resources that are threatened.

In addition to defining countermeasures, it is vitally important that company contingency plans provide for coordination and interaction with the various national and regional plans, as well as with state, local, and other industry plans.

The effects of such lack of coordination were dramatically illustrated in the Exxon Valdez spill. Although many contingency plans were in effect for Prince William Sound, the plans often did not refer to each other or establish a chain of command which could quickly be implemented in the event of a spill.

In preparation of a contingency plan, the role and capabilities of national and regional response teams must be considered.

These organizations can provide advice and assistance on cleanup operations, including coordination with state and local agencies, assisting in establishing response priorities, providing scientific and technical expertise and equipment, and giving advice on how and when to use dispersants.

There are also several special teams available to assist in responding to an incident, such as the Coast Guard's National Strike Force and Public Information Assistance Team, the EPA's Environmental Response Team, and the National Oceanic and Atmospheric Administration's Scientific Support Coordinator.

Representatives of these organizations should be invited to attend planning sessions and to develop working relationships with appropriate company representatives in advance of a crisis.

In addition, these organizations maintain inventories of equipment which may be needed in the event of major spills but which are too expensive for most companies to maintain on a day-to-day-basis. Contingency planners should take advantage of such inventories in preparing their response plans.

REFERENCES

33 United States Code (U.S.C). 132(j)(1)(c).
33 Code of Federal Regulations (CFR) 154.310(a)(18), 33 CFR 154.320.
33CFR 154.545.
A description of the federal On-Scene Coordinator's responsibilities is contained in the National Contingency Plan, 40 CFR 300.33.
33 U.S.C. 1321 (f).
33 U.S.C. 1321 (f)(4).
33 U.S.C. 1321 (b)(6)(B).
Hubbard, E.H., "Inland Oil Spill Cleanup," Ninth World Energy Conference, Detroit 1974, Vol. 3, p. 400.
For a thorough discussion of oil-spill response-team members' responsibilities, see Levine, Robert A., "Contingency Planning for Oil Spills: An Update Based on Experience Gained from the Port Angeles Spill," Marine Technology, Vol. 25, No. 2 (April 1988), pp. 145-159.