The Continued Pressing Need for Responder Immunity Enhancements

By Jon Waldron January 3, 2013

It has been over 2.5 years since the tragic incident involving the Deepwater Horizon occurred, resulting in the deaths of 11 and injuries to 17 men working on the platform and the discharge of approximately five million barrels of oil. The cleanup response required thousands of responders working several months to contain and clean up the spill under challenging conditions. In addition, immediately following the explosion emergency response vessels rushed to the rig to save lives and render assistance to those in peril. Despite these commendable efforts, emergency and cleanup responders were sued for their efforts to help in the worst environmental disaster in U.S. history. And, to date, there has been no specific Congressional spill-related legislation enacted to address pitfalls identified related to the incident.
Given the protracted and costly litigation filed against responders after the Deepwater Horizon incident, action should be taken to amend responder immunity laws under the Oil Pollution Act of 1990 in order to provide enhanced protection against future lawsuits. This action will ensure the resources needed to respond to national emergencies and mitigate the effects of future large spill incidents, will not only be available to respond, but also that these resources will respond immediately and boldly without fear of high litigation costs and liability.

Responder Immunity Today
Responder immunity protections were enacted following the Exxon Valdez incident in 1989 to protect from liability those individuals or corporations who provide care, assistance, or advice in mitigating the effects of oil spills. This immunity, however, does not prevent any injured parties from recovering their full damages resulting from the spill incident, as OPA 90 provides that the responsible party is liable for any of the removal costs or damages that a responder is relieved of pursuant to this immunity. This immunity does not apply if a responder acts with gross negligence or willful misconduct, or causes personal injury or wrongful death. 33 U.S.C. 1321(c)(4).

Status of the Litigation Against Responders
Unfortunately, the current immunity regime specific to responders has proven inadequate to protect responders from such suits. For example, plaintiffs have learned to simply make allegations of gross negligence, and to cast exposure claims (e.g., claims resulting from alleged exposure to released oil or from the Environmental Protection Agency-approved dispersants used to treat that oil) as personal injury claims falling outside the scope of the specific responder immunity provisions. This litigation has indeed been expensive for the responders. These lawsuits were consolidated in Multi-District Litigation in the Eastern District Court of Louisiana before Judge Barbier. The cases have been catalogued into pleading bundles which were filed on December 15, 2010. Response defendants were placed in a “B” bundle.
A B(3) pleading bundle named as defendants all parties involved in post-explosion response actions (“the Responder Bundle”) which includes the manufacturer of the dispersants used, the companies providing the aircraft spraying dispersants, the contractors leading the incident command for BP, as well as the nation’s two leading oil spill response contractors (the “Cleanup Responders”). The Responder Bundle complaint alleges various torts causing personal injury as a result of exposure to oil and/or dispersants and damages to personal and real property as a result of dispersants or oil coming into contact with such property.
A separate B(4) pleading bundle named as defendants the owners and/or operators of rescue vessels that answered the Deepwater Horizon distress call and responded to the fire emergency after the explosion (“the Emergency Responders”). Certain plaintiffs asserted claims against these good samaritan Emergency Responders arising out of the rescue efforts that took place under the direction and control of the United States Coast Guard and/or the RPs.
These actions against the responders to this incident are troubling because the responder immunity regime is intended to protect responders from extensive and costly litigation and potential liability. The Emergency Responders were successful in obtaining a dismissal from the lawsuit on October 12, 2011. However, although the Cleanup Responders have argued for immunity and preemption against liability as it relates to the Deepwater Horizon claims asserted against them in the current litigation, these defenses are proving to be time-consuming and expensive to assert, and there is (under the current regime) no consequence to plaintiffs for bringing claims against Cleanup Responders, even when they have full recourse against the RP. As a result, the Cleanup Responders continue to defend against these claims for an incident that occurred over 2 ½ years ago. Thus, the current MDL demonstrates the need for enhanced legislative protections for the responders relating to all oil spills, including the Deepwater Horizon spill, to eliminate and avoid the use of unnecessary litigation against responders.
Absent some enhancement to the responder immunity protections, it is doubtful that Cleanup Responders or Emergency Responders will again take such immediate and bold response actions at the time of spill incidents absent special indemnities or other protections. A legislative solution is particularly important as these entities constitute the first responders to both the casualty itself and the resulting oil spill and their response must be immediate and without hesitation for fear of liability. If Deepwater Horizon Emergency Responders can be sued for responding to a mayday distress call and lending assistance as directed by the Coast Guard and representatives of the RPs, and if Cleanup Responders can be sued for applying dispersants when: (i) they were applying a dispersant that was (and remains) approved by the EPA for use, and (ii) each day’s application was consistent with Incident Action Plans approved by the Coast Guard (i.e., the Federal On-Scene Coordinator), then when future responders are asked to respond to a disaster, they will likely not respond so quickly, if at all, thus exacerbating the effects of the spill.
For all of these reasons, it is important that the RP, not the responders, bear the costs of litigation and ultimately the liability related to the spill incident.

Responder Immunity Coalition and Legislative Enhancements
As a result of the above described situation, the response industry formed a coalition to propose to Congress enhancements that would address the identified gaps in the current responder immunity regime. The current coalition includes representatives from the salvage industry, response industry, spill management industry, and marine well containment industry.
The coalition has been working with key members of Congress to sponsor this effort. Enhancements currently under consideration by Congress include the following measures:

Expand the scope of the current version of responder immunity to provide immunity for personal injury or wrongful death and immunity from civil or criminal penalties.
Provide that a responder shall share derivatively in the Government’s immunity with respect to a response.
The immunity would not apply to a land-based hazardous substance spill, or if the person is grossly negligent or knowingly engages in misconduct.
Define with specificity the term “responder” and the types of response actions covered by the immunity.
Provide a “presumption” that any response action or omission does not constitute gross negligence or knowing misconduct.
Provide that a person filing a claim against a responder must pay court costs and attorneys’ fees if the court determines that the responder was not grossly negligent or engaged in willful misconduct.

Status of Legislative Effort
The House passed its version of the Coast Guard and Maritime Transportation Act of 2011 (H.R. 2838) on November 15, 2011 and the Senate passed its version of H.R. 2838 on September 22, 2012. Currently there is not specific language included in either the House or Senate versions of H.R. 2838 but there are oil spill-related provisions in both the Senate-passed and House-passed versions. Thus, the coalition working with Congress to include these responder immunity enhancements in H.R. 2838 or some other bill that will be enacted by the end of 2012 or early in 2013.

(As published in the December 2012 edition of Marine News - www.marinelink.com)