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[answered] Access the following article using ProQuest, the Ashworth C

Need help with the attached assignment. Several questions need to be answered, having a hard time getting started.? Attaching the questions, please the required reading, which answers should be based on.

Access the following article using ProQuest, the Ashworth College online library:


? Griggs, J. (2011). BP GULF OF MEXICO OIL SPILL. Energy Law Journal, 32.1, 5779. Retrieved from


tid=45844 Respond to the following:


1. In your own words, provide an overview of the events and implications of the


BP Gulf of Mexico oil spill.


2. Explain the Oil Pollution Act of 1990, including why it was enacted, its general


provisions, and OPA 90's effectiveness in terms of containing a major spill.


3. Why did it take BP so long to stop the spill?


4. Which type of control would have been most helpful to BP in averting the oil


spill in the Gulf of Mexico? Provide one (1) supporting fact to support your




John Wyeth Griggs*


Synopsis: The blowout of BP?s Macondo well in the Gulf of Mexico on


April 20, 2010, provided the first major test of the national oil spill containment


and response apparatus put in place by the Oil Pollution Act of 1990. News


media coverage of the blowout displayed a lack of awareness of the Act or the


mechanisms it had put in place to respond to major oil spills. Many questions


raised by the media are answered or explained by the statute and its regulations.


This article discusses the Act?s provisions as they relate to the Macondo


blowout, its effectiveness in dealing with the spill, and the prospects for


amending the law.


I. The Macondo Blowout .............................................................................. 57


II. The Oil Pollution Act of 1990 .................................................................. 59


A. Who Is in Charge? ............................................................................. 59


B. Why Was the Government Slow to Respond? ................................... 62


C. Why Did It Take So Long to Stop the Spill? ..................................... 63


D. Is There a Cap on BP?s Liability? ...................................................... 67


E. Why Was BP?s Permission Required for Private Clean-up


Efforts?............................................................................................... 69


F. To What Penalties Is BP Subject? ..................................................... 69


G. What Damages Will BP Have to Pay? ............................................... 71


H. How Will the Macondo Blowout Affect Deepwater Oil


Production? ........................................................................................ 74


III. Legislative Response................................................................................. 76


IV. Concluding Observations .......................................................................... 78




The blowout of British Petroleum?s (BP) Macondo well in the deep water


of the Gulf of Mexico was the largest accidental oil spill in the world, greater


than both the Ixtoc blowout off the coast of Mexico and the Exxon Valdez spill


in Alaska.1 Eleven crew members of the Deepwater Horizon drilling rig were


killed, others were injured, the livelihoods of thousands of fishermen were


impacted, countless marine animals and organisms were destroyed, and marshes


and beaches in Louisiana, Mississippi, Alabama, and Florida were fouled. The


blowout dominated news coverage from April 20, 2010, until the blowout was * Managing Partner, Griggs & Adler, P.C. Mr. Griggs represents users of oil pipelines, utilities, and wholesale


purchasers of electric power in proceedings before the Federal Energy Regulatory Commission. Mr. Griggs is


not involved in any of the litigation related to the Macondo blowout.


1. Tom Zeller, Jr., Estimates Suggest Spill Is Biggest in U.S. History, N.Y. TIMES, May 27, 2010,


available at (Exxon Valdez spilled some 11 million


gallons; Ixtoc some 140 million gallons); Joel K. Bourne, Jr., The Deep Dilemma, NAT?L GEOGRAPHIC, Oct.


2010, at 43. 57 58 ENERGY LAW JOURNAL [Vol. 32:57 finally capped on July 15, 2010. Hundreds of lawsuits have been filed.2 There


have been hearings before a joint investigatory panel of the Coast Guard and the


Department of the Interior,3 an investigation by a commission appointed by


President Obama,4 and extensive Congressional hearings.5


In the aftermath of the spill, resource damage assessment has begun, but


will take time to complete. Some 185,000,000 gallons (4.4 million barrels) of oil


were discharged,6 and, while clean-up efforts and natural processes appear to


have removed much of the oil from the water surface, the effects on the Gulf of


Mexico may last for decades. Media attention, once intense, is now focused


elsewhere.7 The intensive media coverage raised many questions that were left


unanswered before the media moved on to other issues. Among these are


questions regarding who was in charge, delayed emergency response efforts, the


laxity of federal oversight, the culpability of the companies involved,8 the impact


of the oil on the ecosystem, the use of dispersants, and the ability of the


environment to recover. Resolving the larger questions concerning resource


damage will take years and involve disciplines outside the law. It is not the


purpose of this article to resolve these issues or assess blame for the spill.


Rather, the purpose of this article is more modest and limited: to address those


questions that relate to the adequacy and effectiveness of the existing legal


regime for responding to offshore oil spills. 2. Over 400 suits have been consolidated in the federal district court for New Orleans, presided over by


Judge Barbier. In Re: Oil Spill by the Oil Rig ?Deepwater Horizon? in the Gulf of Mexico, on April 20, 2010,


No. 2:10-MDL-02179-CJB-SS, 2010 WL 3269206 (E.D. La. Aug. 10, 2010).


3. Deepwater












2010), The due date for the report of the joint investigation


panel was extended to March 27, 2011. Harry R. Weber, Fed Panel Gets 60-Day Extension on Spill Report,


ASSOCIATED PRESS, Oct. 25, 2010, available at


4. Nat?l Comm?n on the BP Deepwater Horizon Oil Spill and Offshore Drilling (May 22, 2010), (last updated Feb. 18, 2011).


5. The House Committee on Energy and Commerce held ten days of hearings in May, June, and July of


2010, and the House passed a bill on July 30, 2010, H.R. 3534, that would impose restrictions on deepwater


drilling. H.R. 3534, 111th Cong. (2010). See also Committee on Energy and Commerce, Hearings, (last visited Jan. 28,


2010). A companion bill to the House bill was introduced in the Senate, S. 3663, but is unlikely to be enacted


in the current session of Congress. Steven Mufson, Concerns About the Big Spill Might Already Be Drying Up,


WASH. POST, Sept. 30, 2010, at AA01.




Current estimates include the official government estimate of 172,000,000 gallons, and an estimate


by Columbia University of 185,000,000 gallons. Seth Borenstein, Study Shows Latest Government Spill


















at An earlier DOE estimate pegged the total amount


of the spill at 206 million gallons. Joel Achenbach, Oil Spill Dumped 4.9 Million Barrels into Gulf of Mexico,


Latest Measure Shows, WASH. POST, Aug. 3, 2010,


7. Mufson, supra note 5.




Issues of culpability will be determined in other forums. Claims in the cases consolidated in federal


court in New Orleans allege violations of state and federal law by BP, Transocean, Ltd. (owner of the


Deepwater Horizon drilling rig), Halliburton Energy Services, Inc., and others. Typical of the actions is Buras


v. BP PLC, which alleges negligence and wantonness in the operation of the drilling rig, negligence and


defective design and manufacture of the rig and of the blowout preventer, and negligence in the cementing of


the well. Buras v. BP PLC, No. 3:10-cv-00369-JJB-SCR (M.D. La. May 26, 2010). 2011] BP OIL SPILL 59 II. THE OIL POLLUTION ACT OF 1990


The current regulatory framework for oil spill response to a large degree


reflects reactions to earlier oil spill disasters. The Exxon Valdez spill in March of


1989 led to the enactment of the Oil Pollution Act of 1990 (OPA 90 or the Act).9


OPA 90 amended section 311 of the Clean Water Act, 33 U.S.C. ?1321, which


was enacted after the 1969 Santa Barbara blowout. The Port and Tanker Safety


Act of 1978, which also amended section 311, was a reaction to the Argo


Merchant tanker spill off Nantucket in 1976. OPA 90 was the capstone of a


fifteen year legislative effort to ?consolidate and rationalize the oil spill response


mechanisms under various federal laws? that was pushed to completion in


reaction to Exxon Valdez.10 OPA 90 provides a comprehensive legal framework


that establishes federal management and control of oil spills, and federal control


of containment, removal, recovery and clean-up efforts. It holds each


?responsible party? liable for the costs of containment, clean-up, and damages


sustained as a result of the spill. It creates a single, unified fund called the Oil


Spill Liability Trust Fund to pay clean-up and removal costs of up to $1 billion,


and it creates stronger enforcement authorities, penalties, spill prevention


countermeasures, and response mechanisms.11 Answers to many of the


questions raised by the media can be gleaned from OPA 90 and its implementing




A. Who Is in Charge?


Prior to the passage of OPA 90, it was unclear who among various federal,


state, and local officials and private parties had primary responsibility for


responding to a major oil spill. To remedy this, section 4201 of OPA 90 clearly


requires that the federal government take control immediately in order to insure


that containment, removal, and remediation measures are undertaken in a timely


and orderly fashion.12 Federal responsibility resides with the EPA for spills on


land and with the Coast Guard for offshore incidents, such as the BP blowout.


As the authorized federal agency, the Coast Guard was required to assume


control of the spill response and to designate the party or parties responsible for


the spill, and hence the party or parties liable for removal and clean-up costs.13


The Coast Guard assumed supervisory control of the response to the spill at


the outset, but the fact that the Coast Guard was in charge was not consistently


the perception of the media. The confusion relates in part to the fact that BP was


the primary ?responsible party? under OPA 90, and in that capacity shared


responsibility for controlling the spill.14 The ?responsible party? for an offshore 9. RUSSELL V. RANDLE, OIL POLLUTION DESKBOOK 3 (Envtl. L. Inst. eds., 1st ed. 1991). Much of


OPA 90 is codified at 33 U.S.C. ?? 2701-2762 (2006), and certain provisions are codified elsewhere, including


33 U.S.C. ? 1321 (2006).


10. Randle, supra note 9, at 3.


11. Id.


12. Oil Pollution Act, 33 U.S.C. ? 1321(c)(2) (2006).


13. Id.






POLICIES AND PROCEDURES, at 1 (Nov. 12, 2010) (?The U.S. Coast Guard?s National Pollution Funds Center


(NPFC) designated two BP subsidiaries - BP Exploration and Production and its guarantor, BP Corporation 60 ENERGY LAW JOURNAL [Vol. 32:57 facility includes ?the lessee or permittee of the area in which the facility is


located.?15 BP?s status as a ?responsible party? was clear from the outset, and


BP accepted that responsibility.16 In addition, on May 15, 2010, Secretary


Napolitano and Secretary Salazar sent a letter to BP?s CEO, Tony Hayward,


reiterating that as a responsible party, BP is accountable for the cleanup of the


spill and all the economic loss caused by the spill.17 OPA 90 makes the


responsible party not only responsible for ?removal? costs, penalties, and


damages, but also makes that party subject to orders of the Coast Guard to take


remedial action to contain the spill and conduct removal operations.18 While the


Coast Guard may not have among its personnel technicians skilled in the arts of


deepwater drilling, the Coast Guard has authority under OPA 90 to requisition


equipment and skilled personnel from private industry, including the responsible


party, and put them to work in responding to the blowout.19 Consistent with


OPA 90, BP remained on site throughout the duration of the spill, albeit its


personnel were assisted by other personnel assigned by the Coast Guard, and BP


carried out the Coast Guard?s directions in bringing the blowout under control.


The tension in the relationship between the government and BP was


addressed in the reports of the President?s Commission.20 The responsible party


is, on the one hand, made liable for damages caused by the spill and is subject to


civil and criminal penalties, and, at the same time, is often required to work


under federal direction to bring the spill under control and conduct clean-up and


remediation operations. That the responsible party is both an adversary and a


partner may be confusing to the general public but is a direct result of the


incongruent obligations imposed by OPA 90.


At the core of OPA 90?s approach to oil spill containment and response is


the National Contingency Plan (NCP).21 The NCP establishes an organizational


structure with national, regional, state, and local components, and integrates the


responsibilities of sixteen federal agencies and state and local governments.22


The purpose of this structure is to create a ?unified command system? that


involves the responsible party ?to achieve an effective and efficient response.?23


The NCP pre-designates a National Response Team, Regional Response Teams,


North America, Inc. - and five other companies as ?Responsible Parties? for Deepwater Horizon oil spill


related claims.?).


15. 33 U.S.C. ? 2702(a). An offshore facility is defined in 33 U.S.C. ? 2701(32)(C).


16. If a designated party refuses to accept responsibility and is, after investigation, determined to be


responsible for the spill, then additional penalties can be invoked for failure to accept responsibility, including


liability for up to three times the cost of the federal response and clean up. Oil Pollution Act of 1990 ? 4201,


33 U.S.C. ? 2704(c)(2).


17. Drilling Down on America?s Energy Future: Safety, Security, and Clean Energy, Hearings Before


the Subcomm. on Energy and Env?t, H. Comm. on Energy and Commerce, 111th Cong. 3 (2010) (Attachment


A ? Chronology of Deepwater Horizon Events) [hereinafter Hearings].


18. 33 U.S.C. ? 2702.


19. Id. ? 1321(c)(2)(B).




Making Within the Unified Command 10-16 (Staff Working Paper No. 2, Oct. 6, 2010), available at


ing%20Paper.pdf) [hereinafter NAT?L COMM?N].


21. 33 U.S.C. ? 1321(d); 40 C.F.R. pt. 300, subpt. D (2010).


22. 40 C.F.R. ? 300.175(b) (2010).


23. Id. ? 300.105(d). 2011] BP OIL SPILL 61 an On-Scene Coordinator, a Unified Area Command, a National Incident


Commander, and Area Committees.24 The Unified Area Command includes a


federal On-Scene Coordinator, a state On-Scene Coordinator, and the


responsible party, and in the event of an oil spill, the federal On-Scene


Coordinator takes charge of the Unified Area Command to orchestrate the


appropriate response. If a spill is classified to be of ?national significance,? then


a National Incident Commander takes over. Area Committees develop area


contingency plans, and Regional Response Teams develop plans for a regional




After an oil spill, the following sequence of events occurs under the NCP.


First, the party discovering the spill notifies the National Response Center


(NRC).26 Second, the NRC informs the federal On-Scene Coordinator.27 Third,


the federal On-Scene Coordinator investigates the spill and coordinates and


directs all containment and removal actions at the site.28 Fourth, if the federal


On-Scene Coordinator so elects, a responsible party may be directed to conduct


containment and removal activity subject to oversight by the federal On-Scene




The Coast Guard?s initial response to the BP blowout was handled by its


On-Scene Coordinator, Captain Joseph Paradis, who set up an Incident


Command Post in Houma, Louisiana.30 When the Unified Command was


activated, Admiral Mary Landry became the On-Scene Coordinator, and a


second Incident Command Post was opened at BP offices in Houston, Texas.31


On April 29, nine days into the event, the Coast Guard designated the incident a


?Spill of National Significance,? created a National Incident Command (NIC),


and named Admiral Thad Allen as National Incident Commander.32 On June 1,


2010, a third Incident Command Post was opened at Mobile, Alabama.33


The media?s confusion over who was in charge seems largely generated by


the fact that BP remained involved throughout the response efforts and shared


offices with the Incident Command Posts. Nevertheless, government employees


insist that the Coast Guard was actually in charge at all times.34 Within the


Unified Command Structure, ?BP had decision makers in multiple locations,?


and Coast Guard members and BP employees worked side by side.35 BP


controlled access to the wellhead, operated the remotely operated vehicles


(ROVs) required for deepwater operations, and controlled the movement of


vessels in the area above the wellhead.36 BP also took the lead in containment 24.
























36. 33 U.S.C. ? 1321(d)(2); 40 C.F.R. pt. 300, subpt. D (2010).


40 C.F.R. ? 300.120.


Id. ? 300.300(b).


Id. ? 300.300(d).


Id. ? 300.305(b).


Id. ? 300.305(d).


NAT?L COMM?N, supra note 20, at 4.


Id. (Initially assigned personnel were subsequently changed.).


Id. at 4-5.


Id. at 4.


Id. at 8.


NAT?L COMM?N, supra note 20, at 12.


Id. 62 ENERGY LAW JOURNAL [Vol. 32:57 efforts, including unsuccessful attempts to activate the blowout preventer using


ROVs, failed efforts to stop the leak using a cofferdam, ?top hat? and ?junk


shot,? and the finally successful containment dome emplaced on July 15, 2010.37


Because the Coast Guard?s clean-up expertise is limited to water surface


impacts, the Coast Guard relied on BP and experts recruited from other


companies.38 When early containment efforts proved unsuccessful, Deputy


Secretary of the Interior David Hayes, Energy Secretary Steven Chu, and


scientists from the National Laboratories and Geological Survey became


involved.39 Throughout, the Coast Guard asserts it maintained control through


its On-Scene Coordinator and National Incident Commander.40 BP remained


onsite at the Macondo well, and under Coast Guard supervision and direction,


capped the well on July 15, 2010, and completed on September 19, 2010,


cementing of the bottom of the Macondo well using a relief well.41 BP?s


exercise of responsibility, under Coast Guard supervision, for the efforts to bring


the blowout under control is entirely consistent with OPA 90?s response and


containment apparatus.


B. Why Was the Government Slow to Respond?


OPA 90 was intended to create a comprehensive oil spill response and


containment network that would quickly and effectively respond to any type of


oil spill.42 The Macondo blowout was the first major incident of national


significance to test this network since OPA 90?s enactment, and the media


complained that the government was slow to respond.


Media complaints that the government was slow to respond appear to be


overstated. ?Though some of the command structure was put in place very


quickly, in other respects the mobilization of resources to combat the spill


seemed to lag.?43 The On-Scene Coordinator responded immediately. Coast


Guard vessels were on scene on the day of the blowout to respond to the


explosion and fire, and on the next day, April 21, 2010, the federal On-Scene


Coordinator was designated and a Regional Response Team activated.44 While it


took ten days to elevate the spill to ?national significance,? by mid-May ?the


Coast Guard was fighting a war against the oil. They built out the organizational


structure for the response, and they moved resources into the area from all over


the country.?45 In commenting on the task of rescuing injured birds, Audubon


Magazine, an institution not reticent in finding fault with the government,


indicated that the Coast Guard was quick to respond, competent, and dedicated.46 37. Id. at 13.


38. Id. at 14-15.


39. Id.


40. Id. at 13.


41. David A. Fahrenthold & Steven Mufson, After Months of Trying, BP?s Macondo Oil Well Finally


Dead, WASH. POST, Sept. 18, 2010, available at


42. S. REP. NO. 101-94, at 3, 10 (1989).


43. NAT?L COMM?N, supra note 20, at 5.


44. Hearings, supra note 17, at 1.


45. NAT?L COMM?N, supra note 20, at 6.


46. Ted Williams, Black Bayou, AUDUBON MAG., Sept./Oct. 2010, at 62. 2011] BP OIL SPILL 63 An explanation for the lag in mobilizing a national effort lies in the gross


understating of the magnitude of the spill in its very earliest stages. BP reported


initially that the spill was a mere 1,000 barrels per day, then increased that


estimate to 5,000 barrels per day.47 Experts with Columbia?s Lamont-Doherty


Earth Observatory reported that as early as May they were able, using reliable


techniques, to estimate from video of the blowout a flow rate of 40,000 to 60,000


barrels per day, ten times greater than what BP was stating.48 This was the rate


ultimately determined by the official federal estimate.49 BP?s low ball initial


estimates undoubtedly delayed the Coast Guard?s elevating the spill to ?national


significance? and organizing the massive response required for such a large




C. Why Did It Take So Long to Stop the Spill?


The reason it took so long to stop the spill is that there was no capability in


place to do so, despite the existence of contingency plans for that very purpose.


The NCP requires that each offshore drilling facility have in place, prior to


drilling, a facility-specific oil spill response plan.51 That plan is supposed to be


the principal tool for containing any spill. BP?s response plan was wholly




The NCP regulations adopted to implement OPA 90 require that:


[A]n offshore facility . . . that, because of its location, could reasonably expect to


cause substantial harm to the environment by discharging into or on the navigable


waters, adjoining shorelines, or exclusive economic zone must prepare and submit a


plan for responding, to the maximum extent practicable, to a worst case discharge,




and to a substantial threat of such a discharge, of oil or a hazardous substance. The NCP regulation cross references a Department of the Interior (DOI)


regulation, which sets forth detailed requirements for facility specific response


plans for offshore oil rigs.53 DOI?s regulations in turn require that if you operate


an oil rig seaward of the coastline, you must file with the Mineral Management


Service (MMS)54 for approval a spill response plan, and ?[y]our spill-response


plan must demonstrate that you can respond quickly and effectively whenever oil


is discharged from your facility.?55 The general requirements for the response


plan are:


(a) The response plan must provide for response to an oil spill from the facility.


You must immediately carry out the provisions of the plan whenever there is a


release of oil from the facility. You must also carry out the training, equipment 47. Lea Winerman, Report: Government Understimated, Underreported Oil Spill Size, PBS.ORG


NEWSHOUR, Oct. 6, 2010, available at


48. Michael B. Shavelson, Oil + Water, COLUMBIA MAG., 2010, at 29, available at


49. See Borenstein, supra note 6; Achenbach, supra note 6.


50. NAT?L COMM?N, supra note 20, at 6-7, 10.


51. 33 U.S.C. ? 1321(j)(5) (2006).


52. 40 C.F.R. ? 300.211 (2010).


53. Id. ? 300.211(b).


54. MMS has since been reorganized, with most of its functions assumed by the Bureau of Ocean


Energy Management, Regulation and Enforcement.


55. 30 C.F.R. ? 254.1(a). 64 ENERGY LAW JOURNAL [Vol. 32:57 testing, and periodic drills described in the plan, and these measures must be


sufficient to ensure the safety of the facility and to mitigate or prevent a discharge


or a substantial threat of a discharge;


(b) The plan must be consistent with the National Contingency Plan and the


appropriate Area Contingency Plan(s);


(c) Nothing in this part relieves you fro...


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