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Who’s In Charge Here? At U.S. Oil Spills, It’s Whoever Made the Mess

Originally published on Onearth.org here.

Oil spill in Mayflower, Arkansas

When ExxonMobil’s Pegasus pipeline burst last month, filling the streets and front lawns of small-town Mayflower, Arkansas, with pools of heavy crude oil, the company followed what has by now become standard protocol: attend to the spill and clamp down on the media. It’s a scenario all too familiar to those journalists who covered 2010’s Deepwater Horizon disaster, and to the people of the Gulf Coast desperate for information about how the BP blowout would affect their health and livelihoods.

In the days right after last month's Mayflower spill, ExxonMobil was allowed to impose and supervise an FAA-approved temporary no-fly zone over the town. Reporters who attempted to get anywhere near the site -- or even enter the area that housed the accident’s command center -- were threatened with arrest. All told, it was more than a week before journalists were allowed any substantive access; and even then, reporters were allowed to do their jobs only in the presence of an ExxonMobil escort. (The company, of course, denies this -- spokesman Russ Roberts told me "the media has always been granted access to the site within accordance to the law and safety procedures" -- but that runs counter to what reporters on the ground were documenting.)

Journalists and citizens alike cried foul, claiming that ExxonMobil was infringing on the public’s right to know. And they would seem to have a point. Quick: try to name another instance where the perpetrator of potential criminal negligence is placed in charge of the accident scene.

Yet the legal power of an oil spiller to run the show, so to speak, remains one of the most mysterious aspects of these occurrences. ExxonMobil’s authority in Mayflower derives mainly from a little known (let alone understood) law that was passed right after the 1989 Exxon Valdez disaster: the 1990 Oil Pollution Act, or OPA. This statute charges the oil spiller -- known as the “responsible party” -- with the task of stopping the flow and cleaning up the spill. But while those goals in and of themselves make sense, the statute also grants that same party an inordinate amount of control over who gets to see how it’s doing that job.

And here’s where the law gets really interesting.

To compound the problem, the statute also dictates that the oil company’s liability for any given spill is to be calculated based on the volume of oil released and the resulting damage to the environment. From a liability standpoint, then -- not to mention a public relations one -- it’s pretty obvious why an oil company would be motivated to staunch not only the flow of oil, but also the flow of images that bear witness to an accident’s breadth and depth. (To see the kinds of images oil companies would really prefer that you not be seeing, check out this devastating aerial footage of the Mayflower accident site, taken just before the no-fly zone had been imposed and provided to OnEarth by Austin Kellerman, the news director of KARK 4 News in Little Rock.)

“Their instinct is to keep people as far away from this thing as possible, to limit their liability and limit the negative publicity,” says Pat Parenteau, an environmental law professor at Vermont Law School. “They don’t want those pictures in the paper.” Parenteau makes clear that the Environmental Protection Agency, as the ultimate authority on site, can and should override ExxonMobil or any other oil spiller in situations where the agency thinks the company is unduly limiting media access. Consequently, he says, the press has an obligation to be “hammering the EPA to give access” in any such cases.

The fundamental problem, Parenteau maintains, is the wording of the statute itself. “That’s just the way the law is built,” he says. For example, “fines are calculated per barrel, so ExxonMobil has a huge financial incentive to low-ball.” (Something the company has already been suspected of doing in Mayflower, and something which BP did, famously, in the Gulf of Mexico, forcing the company to plead guilty to lying to Congress as part of a $4.5 billion legal settlement.) “ExxonMobil is facing tort claims, personal injury claims, property damage claims, interference-with-quality-of-life claims, and on and on,” Parenteau continues. “There could also be criminal indictments of individuals, as well as the corporation, if there’s gross negligence. So it’s just natural that ExxonMobil’s going to limit access and limit information; that’s their whole orientation. Get this thing cleaned up, get it behind us, limit the damages, cut our losses.”

What’s more, the complexity of the statute, especially in regards to how it plays into the U.S. National Contingency Plan (which covers federal, state, and local authorities who respond to and supervise oil spills), adds to confusion about who’s in charge. As the designated on-scene coordinator representing the federal government, the EPA officially serves as the final authority during cleanup operations at any such major accident scene. But per the OPA, even on-scene coordinators -- along with any state and local authorities who happen to be assisting them -- are encouraged to defer to oil spillers unless and until the actions of the “responsible party” are deemed inadequate. Finally, there’s one more troublesome legal hitch that makes the EPA reluctant to step in and take over: according to the statute, if federal authorities somehow wind up causing or facilitating further on-site damage that can later be proven in court, a portion of the oil company’s liability tab can be shifted to the federal government.

When Americans watched video showing millions of gallons of oil spewing into the Gulf of Mexico after the Deepwater Horizon disaster, many of them felt confused and helpless. Why was the White House continuing to defer to BP’s judgement on the question of what to do? A better knowledge of the Oil Pollution Act would have helped to explain -- at least in part -- why the federal government seemed so hesitant, at the time, to take the reins.

In the end, perhaps the starkest example of all that’s wrong with the Oil Pollution Act comes in the form of a single phone number. It’s to be found on any and all of the press releases coming out of the Mayflower Incident Unified Command Joint Information Center -- an operation that is, nominally at least, headed jointly by officials from the EPA, ExxonMobil, the city of Mayflower and the county in which Mayflower sits.

Call that phone number, as I did, and you’ll be routed to an ExxonMobil representative in Virginia. When I asked the telephone operator (as she described herself) who took my call what the protocol was if someone from the press wanted to speak to an EPA official on site, she informed me that all media inquiries had to go through her -- and would be forwarded, summarily, to an official ExxonMobil press officer. So I asked, and got sent back to Russ Roberts, the ExxonMobil spokesman I had been in contact with previously. He took my email address and deadline, sent it to the EPA, and said the agency would contact me directly. When EPA spokeswoman Jennah Durant called me from Dallas, she said she couldn't answer my questions, and would run them further up the chain of command. As of press time, I was still waiting.

Image: EPA

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