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Q&A: Federal official discusses how oil cleanup happens and who pays for it

Saturday, May 29, 2010; 8:57 PM

Cleaning up the largest oil spill in U.S. history will be a mammoth undertaking. In addition to the practical difficulties of removing oil from beaches and marshes will be the challenges of defining lines of authority, responsibility and liability.

Post reporter David Brown talked about those challenges with Roger Helm, 56, chief of the Division of Environmental Quality at the U.S. Fish and Wildlife Service. A marine ecologist by training, Helm has dealt with a number of smaller spills since the passage of the Oil Pollution Act of 1990.

Q: Where do the lines of authority and responsibility run for cleaning up oil spills like the one in the gulf?

A: Typically, when a spill is of this magnitude or if there is significant damage to natural resources, a "unified command" will be set up. It will consist of a federal on-scene coordinator, and for all marine spills the Coast Guard takes that role. The state on-scene coordinator will be involved, and then the "responsible party" -- the company that spilled the oil or has control of the structure that the oil is coming out of. The federal on-scene coordinator, in my experience, has always had at least 51 percent of the vote, but it is very definitely a collaborative effort.

Q: Why doesn't the federal government just do the cleanup itself?

A: There's a number of reasons. One is the resources that need to be brought to bear. The responsible parties, particularly the larger companies, have the financial liability for cleaning the spill up. They are the ones ultimately footing the bill here. They have a very, very big interest in stopping any kind of release as soon as possible and cleaning up as soon as possible and in the most economical way possible. The federal on-scene coordinator and the state on-scene coordinator have significant influence they can exert if they feel that corners are being cut.

Q: Once the leak is stopped, how is the damage assessed and valued so it can be presented to the responsible party as a bill?

A: There are two separate actions for damages beyond the cost of the response. For the response, an ongoing, accumulating bill accrues, which the Coast Guard and the responsible party pay very, very close attention to -- time sheets for personnel involved in the action, contractors hired, things like that. Virtually everybody who goes into the field or into one of the command centers is tracked. That cumulative bill will be presented to and paid for by the responsible party. But until it's presented, the Oil Spill Liability Trust Fund is the mechanism through which things are paid. It was created under the Oil Pollution Act and comes from taxes on barrels of oil in the U.S. It is managed by the Coast Guard, and its size was recently increased to $2.7 billion before this spill.

Q: The contractors are primarily hired by the company and not the government?

A: Yes. For example, they are paying fishermen to put booms on their nets and go out and clean up oil, people doing beach cleanup, aerial survey work and some of the science, are directly contracted by BP. The more the companies pay directly, the less they have to pay a middleman, whether it is the state or the federal government, which have their own overhead charges.

Q: There have been questions about the dispersants that BP is using and whether they are safe. How much research has been done on them?

A: A fair amount of research has been done, but not exhaustive. They've gone through standard toxicological tests that EPA [the Environmental Protection Agency] has required to determine that they are safe enough. However, it's disingenuous not to acknowledge that response to a spill is a function of trade-offs. Whether you use dispersants, in situ burning, skimmers, boom, or don't do anything -- those all have consequences. In this situation where the spill occurred 40 miles offshore, the use of dispersants had been preapproved by the federal government.

Q: I understand there are several categories of damage assessed in a spill like this. Can you explain what they are?

A: There are usually at least three separate types of claims made after a large spill. There are the response claims that I described before. There are "third-party claims," which are damages to businesses or individuals. And then there are "natural resource damage claims." The five federal "trustee agencies" for the public -- Interior, Commerce, Agriculture, Defense, Energy -- and all states and federally recognized tribes can make a claim for injury to natural resources. They have to prove that a specific release caused a specific set of injuries to pretty much anything in the natural world you want to name -- air, water, plants, birds, fish, invertebrates. The trustees quantify the loss or damage, and the responsible party has to pay for that equivalent amount of restoration. We negotiate with the company, and sometimes it goes to trial. But it's not a penalty, and the money has to be used for restoration.

Q: How does one restore something like dead pelicans?

A: We try to come up with a variety of possibilities that will restore the number of pelicans lost or injured. That could be a situation where, say, a colony of pelicans has had reproductive problems because a predator has gotten into it, so part of the restoration plan would be to do something to prevent that predation. For instance, sometimes bird colonies are on isolated islands but a land bridge has developed and that has allowed predators to get access. We will get rid of that land bridge -- whatever it costs -- and thereby produce that many more pelicans. "In place, like kind" -- which means restoring where the injury occurred, with the same species -- is always the preferred option. When that isn't possible, we might go to another site where the same species is present, or possibly a related species is having problems, and do something there.

Q: How do you restore things that are less visible, like fish?

A: That has always been a bigger challenge. This is key to why the Oil Pollution Act is different from other laws. We can't say to the responsible party, 'You did bad things, you released X amount of gallons and therefore based on some table we have you now owe us Y number of dollars.' We have to actually show what the injury was. It's often difficult to show the extent of injury to fish, plankton and some other species. So we often turn to a habitat approach. We say, you've diminished the quality of this habitat by some percentage and therefore you owe the public that much habitat. For example, if oil gets into a marsh, we won't try to measure all the injury to individual species. We'll base our claim on the amount of marsh that is oiled and how badly oiled it is. We may say, you owe us 30 or 300 or 3,000 acres of marsh. They can pay us what we estimate it will cost to restore that acreage, or they can do something to restore it themselves -- replacing sediment, replanting vegetation, doing water-control measures, things like that. What we care about is that we get our acres of marsh back.

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