OIL SPILLS: An Initial Response Manual for Attorneys General
by Douglas K. Mertz
Copyright 1990 by the National Association of Attorneys General, 444 North Capitol Street, Suite 403, Washington, D.C. 20001, (202) 628-0435
Permission to quote from or reproduce materials in this publication is granted when due acknowledgement is made.
Contents
Acknowledgements
Letter of Transmittal
Foreword
1. Introduction
2. Securing the Evidence: Initial Steps
In Advance of a Spill, or As Part of the First Response
1. Designate your own field personnel dedicated to documenting the spill
2. Give the field personnel basic training in evidence-gathering techniques
3. Set up a system for preserving physical evidence
4. Set up a system for documenting all state costs by all state agencies
5. Set up a system for cataloging documentation
During the First Few Days
1. Get experts into the field to assist the documentation efforts
2. Secure all vessel documentation
3. Document the condition of the vessel or facility
4. Secure the vessel crew information
5. Discover the vessel's legal information
6. Secure all records of vessel communications
7. Determine the location and course of the vessel at the time of the mishap
8. Interview the pilot immediately
9. Interview all eyewitnesses
10. Take a large sample of unspilled oil from the vessel or facility
11. Record baseline data and prevailing environmental conditions
12. Map the spill as often as possible
13. Arrange a reimbursable costs agreement with the responsible party
3. Litigation: Initial Steps
By the Home Office
1. Secure warrants for critical documents and necessary inspections
2. Issue administrative subpoenas and deposition subpoenas
3. Determine whether to arrest the vessel
4. Consider legal action to prevent interference with investigation
5. Begin preparing for a Limitation of Liability action
6. Prepare to Counter a Bankruptcy Petition
7. Seek an injunction to compel participation in containment and cleanup
8. Ascertain whether an insurer will take responsibility
9. Identify and contract with key experts
10. Begin to analyze potential causes of action
By the On-Scene Attorneys
1. Be constantly available to the key players
2. Act as a scribe and organizer for the response agencies
3. Anticipate and assist in on-scene permitting needs
4. Organize the local documentation system
5. Advise state personnel on sharing of information
4. Other Important Factors
1. Media relations
2. Relations with other agencies
3. Internal Management of the Attorney General's Reponse
Acknowledgments
This manual was produced by the staff of several Attorneys General offices. Principal authors were:
Douglas K. Mertz (Editor), Assistant Attorney General, Alaska
Jeanne L. Langdon, Deputy Attorney General, Delaware
V. Lee Okarma Rees, Former Assistant Attorney General, Washington
Several NAAG staff members contributed editorial, design and production assistance to this project: Nancy Szabo, Environment Project Manager; Robert Biesenbach, Director of Information Services; and Anna Morgan, Secretary.
Letter of Transmittal
July 9, 1990
Honorable Thomas J. Miller
Attorney General of Iowa
Hoover Building - Second Floor
Des Moines, Iowa
Dear General Miller:
It is my pleasure to present to you this report, Oil Spills: An Initial Response Manual for Attorneys General. This manual is an outgrowth of the strong interest expressed by participants of last fall's NAAG/EPA Coastal Pollution Conference in developing a guide for Attorney General decision making in the days and weeks following an oil spill.
The culmination of nearly nine months' work by an eight-state task force, this manual provides timely and important advice to Attorneys General who are faced with an oil spill disaster that demands a quick and efficient response in order to limit the damage, safeguard the environment, and protect the state's legal interests.
As Chairman of the Environment Control Committee, I am pleased to submit this manual to you and the membership. I am confident that it will be an invaluable resource for Attorneys General and their staff.
Sincerely,
Jeffrey L Amestoy
Attorney General of Vermont
Chairman, NAAG Environmental Control Committee
Back to Table of Contents
Foreword
In October of 1989, the National Association of Attorneys General and the United States Environmental Protection Agency jointly sponsored a "Coastal Pollution Enforcement Conference" in Newport, Rhode Island. In the months prior to the conference, the nation had endured three major oil spills -- the Exxon Valdez disaster, as well as serious tanker spills off the coasts of Rhode Island and Delaware. In light of these incidents, a portion of the NAAG/EPA conference was devoted to discussion of oil spills and possible strategies for preventing and responding to such events.
During the conference, a group of Assistant Attorneys General met to discuss a common interest in developing guidance for Attorneys General who must respond to oil spills in their states. Out of these discussions emerged the concept of an Oil SpillResponse Manual. Over the course of the next nine months, a task force of representatives of eight Attorneys General offices worked together to produce this manual.
The manual has three major sections. The first section after the introduction lays out the initial steps that should be taken by an Attorney General to secure evidence in the first few days after the spill. This section also discusses the importance of advance planning in anticipation of a major spill. The next section recommends initial litigation steps to be taken both by the home office and by on-scene attorneys in order to protect state interests. The last section covers other important factors to consider, including media relations and coordination with other agencies in containment and cleanup of the spill.
As the manual illustrates, the first few days, or in some instances, first two weeks, following an oil spill are critical to the state's success in securing vital evidence and making important decisions about possible legal action. The burden on the Attorney General's office during this period is significant, as it mobilizes its resources in order to assure swift and effective response to the spill.
It is our hope that the experience and advice of the states that have had to deal with oil spills in their waters will be of benefit to those states that have yet to deal with such disasters. It should also be noted that while this manual deals primarily with tanker spills, much of the advice contained herein is relevant to other types of spills, such as from land-based and off-shore facilities.
A special thanks goes to Douglas K. Mertz, Assistant Attorney General of Alaska, who contributed a substantial amount of time and experience editing this manual. The other principal authors were V. Lee Okarma Rees, former Assistant Attorney General of Washington, and Jeanne L. Langdon, Assistant Attorney General of Delaware. Other states represented on the task force are Connecticut, Hawaii, New Jersey, New York, and Rhode Island.
I extend my gratitude and that of my colleagues to all who participated in this effort and my congratulations for producing a useful and informative guide for Attorneys General who must contend with the special demands of an oil spill disaster.
James E. O'Neil
Attorney General of Rhode Island
Chairman, NAAG Ocean Pollution Subcommittee
I. Introduction
Oil spills occur every day, somewhere in the nation. Most are small, some large; sometimes the product spilled is particularly toxic or persistent, sometimes less so; and some-times the spill affects critical environmental areas, sometimes not. A state Attorney General's office usually has no role regarding minor spills, but when a major spill occurs it becomes the primary defender of the interests of the state and its citizens. Above all else, that means the office must act quickly. Since few state Attorneys General offices litigate more than a few large spill cases in their careers, the state cannot simply rely on the expertise already existing on its legal staff. The state must prepare in advance and must be capable of swift action. This manual is an attempt to distill the experiences of several Attorneys General offices that have worked on large spills into a guide to the most important steps to take in the first few days of a major spill.
To put the advice in this manual into a nutshell, the state's success usually depends on its actions in the first few days of a spill. Depending on circumstances, that may mean the first three days or the first two weeks; in any case it means realigning the priorities of the Attorney General's office to bring whatever resources are needed to the spill effort. Large spills put an unprecedented burden on the state legal staff: it must work intensively in areas of the law with which it lacks familiarity, and it must coordinate constantly with other agencies that have a role in spill response. It must gather evidence that will disappear within days or hours, and it may need to initiate litigation within the same period. Clearly, this job will be performed better if the office has an oil spill legal contingency plan in place -- that is, preassigned roles for the legal staff and preassigned functions that will be carried out automatically. But even without that kind of planning, the office that is aware of the primary goals of the initial legal response,and that moves quickly to fulfill them, will be far ahead of the legal team that merely feels its way through the first days of a spill.
The primary goals of the initial legal response should be three-fold:
1. secure the transitory evidence;
2. take the initial litigation steps necessary to protect state interests; and
3. assist other agencies in containment and cleanup of the oil.
These goals remain the same whether you are dealing with a minor discharge of a few gallons or a massive spill; only the resources committed to the task change. The advice in this manual focuses on response to a large spill, and assumes that the state has sufficient resources to address all the tasks outlined. In fact, most offices cannot mobilize those resources, at least not immediately, and spills that are not massive may not justify taking all the steps listed here. Each office must make an early decision on what resources it can devote to a particular spill and which of the tasks we outline should be given priority. Of course the fewer the resources that a state can devote to a spill, the more important it is that the attorneys be aware of and devote their early efforts to the most critical tasks. If time and personnel simply are not available to do everything, the person directing the effort must decide what parts to sacrifice or defer, rather than trying to do it all at once and failing to do any part of it properly.
Much of the advice in this manual regards spills from vessels, since tanker spills are among the most massive and since they have unique features of which the legal team should be aware. But the general advice and much of the specific advice applies equally to spills from land-based facilities and off-shore facilities, such as wells, terminals, storage facilities, and pipelines.
Finally, we note that the attorneys who have worked on various large spills in recent months have come to realize that one of their most important assets is each other. The legal staff of a state with a major spill should contact its counterparts in other states with spill experience and draw on that expertise. That knowledge, gained from experience, is at least as valuable as what this manual can teach.
II. Securing the Evidence: Initial Steps
Securing vital evidence during the early days of a spill is the most critical factor for later litigation success. Much of the evidence -- for example, regarding causation and the immediate impact of the oil -- will disappear if it is not collected in the first few days after the spill. Evidence that can be collected later -- e.g., regarding the long-term fates and effects of the oil -- will be without value unless it is collected according to a well-planned and scientifically rigorous system. The Attorney General's office must therefore be prepared to 1) secure the transitory evidence -- the evidence that will disappear within days of the initial spill; and 2) coordinate with other state agencies to set up a system for collecting usable evidence in the long run.
The following advice applies equally to large and to small spills and to Attorneys General offices with large staffs and those with small staffs. Naturally, not all spills justify utilizing the full resources of a state, and not every state can mount a full-scale evidence-gathering effort. But whatever the size of the effort, putting emphasis on securing the early transitory evidence and ensuring that evidence is gathered in a way that makes it admissible and useful in litigation, will make successful litigation possible.
It also makes sense to plan for the specific steps outlined below. The Attorney General's office that has planned for those steps in advance, in cooperation with other state agencies, is in the best position to gather quality evidence when a spill actually happens.
In Advance of a Spill, or As Part of the First Response
The following steps should be taken before a spill, whenever possible. If a state has not done advance planning, however, these steps should be taken immediately after notification of a spill.
1.
Designate your own field personnel dedicated to documenting the spill.
Whenever possible, it is better to have your own group of personnel securing evidence in the field rather than relying on personnel of the state environmental or public safety agencies who have their hands full with other missions. Your team may consist of people from those agencies working with your attorneys, but they should not be burdened by having to perform cleanup or safety functions simultaneously.
2.
Give the field personnel basic training in evidence-gathering techniques.
Whether you rely on your own team for gathering evidence or on cleanup or public safety personnel, make sure they have basic training in what to look for (e.g., wildlife kills, poor response techniques or inaction by the spiller, alternate sources of the pollution); how to document it (written notes, pocket tape-recorders, still film, videotape, etc.); sampling techniques (e.g., not using containers made of plastics, which can contaminate the sample); chain-of-custody requirements; and uniform descriptive terminology, so that all witnesses use the same language to refer to the same phenomena (e.g., "mousse" means emulsified oil and water mixture, "light sheen" is intermittent sheening, etc.).
3.
Set up a system for preserving physical evidence.
Evidence is useless if it is not maintained in a condition that preserves its value. For example, oil samples degrade if not maintained in proper containers and at proper temperatures; the same is true of oiled plants and animals. Physical evidence may become useless if it is not kept in a secure place and with a proper chain-of-custody record. You should rely on scientific advisors for proper conditions for maintaining samples, and on your own criminal law expertise for designing proper chain-of-custody procedures.
4.
Set up a system for documenting all state costs by all state agencies.
Claims for reimbursement of state expenditures on oil spills have been denied for insufficient documentation; some states have been unable to claim all their costs because state agencies have been unable to do more than merely estimate their spill-related expenses. You are in the best position to claim full damages and reimbursement if your state has a unified accounting system capable of tracking all spill-related expenditures by all state agencies.
5
. Set up a system for cataloging documentation.
The amount of information generated after a large spill can be enormous, and much valuable evidence can be lost without a system for handling field notes, written reports, photos and videotapes, as well as physical evidence. At the very least there should be a central repository for all such documentation. Ideally, a computerized data base containing records of all the information gathered should be used.
During the First Few Days
The following steps are designed to secure the basic but transitory evidence that will be essential to your legal efforts.
1.
Get experts into the field to assist the documentation efforts.
Oil spills can involve several areas of expertise not likely to be found on an Attorney General's staff. These areas include civil engineering, vessel operations, biology, geology, chemistry, and oceanography; there is also a growing number of experts in narrower fields related to oil spills, such as cleanup and contingency plan experts, and oil spill scientific coordinators. Your field personnel will be handicapped in their search for relevant evidence if they do not have direction from experts to tell them a) what to look for, and b) how to handle physical evidence, such as oil samples. With a large spill, there is also sometimes a rush by the responsible parties to contract with the most eminent scientific advisors, perhaps motivated in part by the desire to prevent them from being used by the government. The best policy is to identify immediately those substantive areas in which expert help will be needed, and begin contracting with the experts. One useful approach is to identify a key scientific spill coordinator, who can both give advice to your staff and can identify other experts whose services would be helpful. Ideally, this person and perhaps other key experts will have been identified in advance and given contingency contracts, which are activated when a spill occurs; in the absence of such advance arrangements, the Attorney General offices in states that have had recent spill experience are the best source of advice on specific experts who may be available.
2.
Secure all vessel documentation.
When a spill occurs from a vessel, it is vital to secure all the ship's documents immediately: log, bridge rough log (bell book), engine room log, automated course recorder printout, fathometer printout, cargo documents (to verify that the vessel was carrying persistent petroleum in bulk, in which case international protocols may apply; and to ascertain the quantity carried, since the quantity of oil lost is frequently disputed), including the "Declaration of Inspection" concerning cargo transfers (46 CFR Sec. 35.35-30), vessel operating manual (to establish standards for operations which the vessel or crew may have violated), ullage reports (to establish quantity of product onboard), vessel survey information, officers licenses, Coast Guard Certificate of Inspection and other documents required under 33 CFR Parts 153-156 and 46 CFR Part 32, crew list, and records of communications with the vessel. The charts aboard the vessel should be examined; equipping a ship with outdated or inaccurate charts has been held to strip a vessel owner of the right to limit liability. There may be other important documents; advice from an expert in maritime matters may help identify them.
Speed in securing this evidence is vital for several reasons. If the vessel is still seaworthy, it may leave the jurisdiction before the evidence can be secured. Even if the vessel is not seaworthy, the owner may arrange removal of the key documents. Finally, some states have had the experience that federal agencies -- notably the National Transportation Safety Board -- may seize the documents and refuse all access to them by other government agencies, despite an equally valid need for them. If the state has acted quickly, it will at least have made copies of the relevant documents before federal agencies may interfere with the state investigation.
Because of the need to act quickly and the possibility that the vessel owner crew will refuse to cooperate, search warrants should be considered. Several factors should be remembered. An administrative search warrant is far easier to secure than a criminal search warrant, but evidence seized through a civil warrant may be unusable in a criminal proceeding if the civil warrant was used to avoid the probable cause requirement of a criminal warrant. On the other hand, it violates ethical standards to use a criminal proceeding to gain an advantage in a prospective civil case, so there should be a viable option of criminal proceedings before a criminal warrant is sought. And finally, use of a criminal justice tool like a search warrant will escalate the adversarial nature of the investigation; it is necessary to consider carefully whether a cooperative approach will yield better results at any particular time.
3.
Document the condition of the vessel or facility.
It is vital to have knowledgeable investigators inspect and document the condition of the vessel or other facility from which the spill occurred. On a vessel, this means testing the gyros, the steering systems, and the radar to eliminate them as sources of an accident; it also means inspecting the hull, tanks, piping, or any other place that would confirm or refute the master's version of how the mishap occurred. A marine surveyor may be needed to perform much of this inspection. To some extent the Coast Guard may be relied on to perform the same function, but it is an error to depend too exclusively on Coast Guard personnel, who sometimes are inexperienced and who sometimes decline to share the results of their investigations. There may be vessels other than the source of the leak whose condition should be documented -- such as a tug which pushed a barge that then developed a leak, or a vessel which collided with the spilling vessel -- to determine whether those vessels were the actual cause of the spill. Finally, it may be advisable to take measurements of product remaining onboard to help determine how much was lost.
4. Secure the vessel crew information.
A prime source of information which will disappear rapidly after the spill is the vessel crew. Within days after a spill, the crew may have dispersed to other states or other countries. The investigators should immediately secure a list of all crew members with permanent addresses, and then put priority on interviewing or deposing each of them. If the crew members are predominantly foreign, you may need to hire a translator. If the spill is from a facility other than a vessel, there is the same need to find out the names and addresses of everyone who was in the vicinity and could possess evidence
5.
Discover the vessel's legal information.
The first legal steps in the case may require knowledge of the owner of the vessel, its charter, agents, and insurers. Some of this information may be available from the Coast Guard or from Lloyd's Registry of Ships, from the Tanker Advisory Center1 in New York, or from the maritime agency of the country of registry. In some cases the ownership may become very difficult to determine; however, with a large vessel, a suit in rem against the ship itself, against any party apparently controlling the vessel, or against the owner of the cargo will usually cause an insurer or agent to surface. The full ownership question can then be pursued after the first crisis of the spill has passed. At a later time a list of past surveyors should be secured, as well as shipyards making repairs in the past.
6
. Secure all records of vessel communications.
It is very important to secure all records of communications to and from the vessel. If the owner files for limitation under the Federal Limitation of Liability Act, the records will be important to show the owner's knowledge and control of vessel operations, in order to demonstrate "privity" to break the limitation. The communications may also reveal evidence that reflect on negligence of officers or owners in causing the mishap. They may show problems with vessel safety or operating systems. They may show the officers were warned of navigational or weather hazards. Both the bridge and the radio room may have records of such communications, as will ships' agents ashore and the owners' or charterers' home offices.
7.
Determine the location and course of the vessel at the time of the mishap.
This information is basic in showing causation and in assigning fault. It may be an error to rely on either the vessel's master or pilot, who may have conflicting interests, or even on the Coast Guard, which may have assigned personnel lacking experience in recording such matters. Location and course should be plotted on a nautical chart with depth markings, using vessel course recorders, bridge logs, and other available data. This information, along with information on prevailing weather and tidal currents, will be important later when the scientists recreate the fate of the spilled oil for purposes of your damages case.
8
. Interview the pilot immediately.
If a pilot had the conn or was even on the vessel, an interview should be conducted immediately. The pilot is normally not an employee of the vessel owner, nor a crew member, and so may give more objective evidence on events on the bridge. Of course it is vital to determine whether the pilot or the master was giving orders at the time of the mishap. The pilot's licensing information, whether state or federal, should be obtained.
9.
Interview all eyewitnesses.
To the extent possible, investigators should try to take statements immediately from all eyewitnesses, including participants (e.g., crew members) and observers. Interviews should cover both causation issues and near-term damages observed. Where immediate interviews are not possible, names and addresses of eyewitnesses should be obtained.
10.
Take a large sample of unspilled oil from the vessel or facility.
It is important to have a large supply of uncontaminated oil from the same vessel preferably, from the same holds that were ruptured. The oil will be available for chemical "fingerprinting," so that you can prove that samples of oil collected from the environment were from the same source and not some other spill. The oil may also be useful for later scientific testing, to prove its harmful characteristics or its persistence in the environment. With a large spill, several barrels may not be too much. The oil should be stored in the conditions that your scientific advisors recommend to prevent chemical deterioration.
11.
Record baseline data and prevailing environmental conditions.
In order to prove damages caused by the oil, it will be necessary to prove the prespill condition of the area, i.e., the environmental baseline. Useful data for many coastal areas of the United States already exists in environmental sensitivity mapping done by the National Oceanic and Atmospheric Administration (NOAA). Your own local universities may have also done biological or chemical studies of the estuaries or wetlands in the area. For immediate purposes, the most useful task is to identify uncontaminated areas which are near and similar to other areas that were hit by the oil. Try to ensure that the unsoiled areas are preserved as a basis for later scientific comparisons with contaminated areas. At the same time, records must be kept of prevailing environmental conditions such as winds, air and water temperatures, and other factors that could by themselves impact the environment. Much of this information can be reconstructed later from weather service records, but especially in remote areas, it is wise to record it yourself.
12.
Map the spill as often as possible.
At least one person should be assigned to maintain daily maps of where the oil is each day. The information should be compiled from all available field data, from cleanup personnel, site visits, photographic records, and where possible, regular overflights. The map should also show whether the oil is present in light, medium, or heavy concentrations, and whether it is a sheen or mousse or some other form. In a large spill there is an advantage to producing maps through computer programs capable of overlaying oil distribution data onto preexisting maps or charts. These computerized maps can later be animated to show time-lapse progress of the spill, a very impressive courtroom tool. Detailed day-to-day mapping will reduce debates on whether oiled shorelines resulted from the prime suspect's spill or from another spill. Good maps will also reduce the need for chemical "signature" or "fingerprint" testing because witnesses will be able to show graphically where the oil came from and where it went and caused an impact. Copies of supporting documentation should be kept with the maps. If possible, scales of the maps should be consistent. Maps of the same scale showing wetlands, shellfish beds, and other important habitat areas, can then be prepared as overlays for future use. Another set of map overlays can be produced showing the location of animal and vegetation mortality and morbidity.
13. Arrange a reimbursable costs agreement with the responsible party.
Available funds of the state and federal response agencies are always limited. It is to the state's advantage to arrange, as quickly as possible, a system whereby costs incurred by the state will be paid by the responsible party, either directly to a vendor or contractor or through reimbursement to the state. Such an agreement can be litigation-neutral, i.e., it can provide for eventual reallocation of costs depending on the outcome of litigation over liability. Not only will such a system slow the depletion of the state's budgeted funds, it may also obviate time-consuming requirements for direct state procurement. A reimbursable costs agreement can be attractive to the responsible party because it enables that party to monitor and document the state's expenditures, for which it may later become liable.
III. Litigation: Initial Steps
As with the collection of evidence, the one inflexible rule for initial litigation steps is to act fast. The nature of oil spills and the tactical advantages gained in early litigation call for quick attention to those first litigation measures. Speed is all the more critical because the Attorney General's office is often among the last state agencies to be mobilized in the event of a spill. That means the Attorney General's office will have to make quick contact with other state agencies and with personnel on board the vessel or with the facility that released the oil, and will then have to make a quick assessment of likely culpability and the likely extent of cooperation from the responsible party. It must then tailor its litigation steps according to that assessment. The following are recommendations to consider when deciding on those initial steps. The bulk of these steps should be taken by attorneys in the main offices of the Attorney General. The attorneys on the spill scene will have their hands full giving day-to-day direction on evidence gathering and advice to other agencies on the scene, and should not be burdened by other duties better performed back at the main office.
By the Home Office
1. Secure warrants for critical documents and necessary inspections.
As noted above, it is important to secure all the important documentation aboard the vessel or the facility that relates to the spill incident. An early decision is necessary on whether to seek search warrants for this purpose. Delay may result in the documents leaving the area with the vessel or employees of the responsible party, being destroyed, or being seized by a federal agency that refuses to make them available to the state.
The first stage of the decision is whether to seek a warrant at all. Like the federal government, some states have statutory authority without a warrant to board and inspect vessels from which oil or hazardous substances have been discharged [see 33 U.S.C. Sec. 1321(m)]. Whether that authority extends to seizure of documents is problematical. It is also possible to rely on the "exigent circumstances" exception to the warrant requirement when entry is necessary to protect life or property (see Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971)), or on the exception for pervasively regulated industries (see New York v. Burger, 107 S.Ct. 2636 (1987); United States v. Kaiyo Maru No.53, 699 F.2d 989 (9th Cir. 1983)). There is also an "open fields" exception for areas that are, literally, open to entry (see Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861(1974)). But the safest route is to secure a valid warrant from a judicial officer for entry, search, and seizure.
The next question is whether to seek a criminal warrant or a civil (sometimes called "administrative") warrant. The main difference is in the probable cause requirement, which, in the case of civil warrants, can be based on a mere showing that reasonable legislative or administrative standards for conducting the searches or seizures exist; this "attenuated probable cause" probably includes a reasonable suspicion that evidence regarding a civil violation of law would be found. (See Marshall v. Barlows Inc., 436 U.S. 307 (1978); Camara v. Municipal Court, 387 U.S. at 535 (1967)). While this "attenuated probable cause" standard is relatively easy to meet, there is a pitfall -- namely, that evidence seized pursuant to a civil warrant may not be usable in a later criminal proceeding if the defendant can convince the court that the civil warrant was a mere pretext for a search for criminal evidence; moreover, any other evidence developed as a result of the civil warrant would be equally tainted and unusable. Of course, evidence of criminal activity discovered during the course of a valid, non-pretextual administrative search may be seized if it falls under the "plain view" doctrine (Michigan v. Clifford, 464 U.S. 287 (1983)).
The other side of this coin is that a decision to use a criminal warrant, or the threat of such a warrant to secure voluntary cooperation, can be unethical if it is done solely to gain an advantage in the civil litigation, without the real intention to institute criminal proceedings.
For these reasons -- primarily to avoid tainting criminal proceedings -- some states have felt it necessary to make a complete separation of civil and criminal investigations from the very start. At the very least, the Attorney General should confer with his or her principal civil and criminal staffs early in the case to discuss the potential conflicts and determine how to avoid them.
Finally, it should be remembered that invoking criminal remedies -- especially summary remedies like search warrants will escalate the controversy and likely cause a cooperative responsible party to harden its attitude. When and whether to take this step with a cooperating party should be carefully considered.
2. Issue administrative subpoenas and deposition subpoenas.
As noted above, both the crew and the vessel documents may disappear long before the oil is off the beaches. The only sure way to preserve testimony and documentary evidence in the crew's hands is through mandatory process. Availability of administrative subpoenas varies from state to state, and the standards generally follow the same rules as with administrative warrants (See See v. City of Seattle, 387 U.S. 541(1967); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1945)). Most states will permit early discovery, including depositions, after a showing of need to the court. If your office is not able to put together a summary complaint and application for authority to take depositions soon enough, it should nonetheless strive to make complete interviews of the transient witnesses, in whatever form it can.
3. Determine whether to arrest the vessel
One of the first decisions to be made after a spill from a vessel is whether to arrest the ship. Damage as a result of a collision, grounding, or tortious act by a vessel will support a maritime lien. A government whose property or interests are injured by an oil spill has a maritime lien against the vessel causing the spill, U.S. v. M/V Big Sam, 454 F. Supp. 1144 (E.D. La 1978); State of California, Dep't of Fish & Game v. S/S Bournemouth, 307 F. Supp. 922 (C.D. Cal. 1967). A state's interest in recovering its damages can be protected by proceeding in rem against the vessel itself, in effect foreclosing the lien so as to arrest or hold the vessel -- with the right to sell it -- as security for the final judgment. This security is especially important when the vessel's owner may be an undercapitalized corporation whose other assets cannot easily be reached (such as, for example, a foreign "one-vessel corporation," whose sole asset is the vessel itself).
The procedure for arresting a vessel is time-consuming and complex, and will vary from jurisdiction to jurisdiction depending on local rules. The basic procedure set out in Admiralty Rule C of the Federal Rules involves filing a complaint in rem against the vessel, along with an advance of costs and an agreement to pay all costs awarded against the plaintiff, and a warrant for the vessel's arrest. In addition, the U.S. Marshal's office may require payment of an additional amount, including the cost of insurance against its own liability. If the vessel is to be retained for a substantial period, arrangements for a substitute custodian must also be made. The procedures are complicated and time-consuming enough that a state should either prepare its papers in advance, as part of a legal contingency plan, or should call in an outside admiralty counsel to perform the work.
In most cases where the vessel retains considerable value after the pollution incident, the owner will respond to arrest -- or to the threat of arrest -- by posting security in exchange for release of the vessel. The security is most often a surety bond or a cash bond, or sometimes a letter of undertaking, in which a respected third party, such as a protection and indemnity club, promises to pay whatever judgments eventually arise. From a state's point of view, such substitute security, in an adequate amount, is far superior to holding the vessel, since acting as custodian for a damaged vessel may create even more problems. It should be remembered, however, that the period within which a vessel is prevented from leaving the jurisdiction may be the only opportunity for the state to interview officers and crew and physically inspect the vessel and its documents.
In short, arrest of a vessel achieves access to it by preventing departure, and provides leverage against the owner for posting of adequate security for the state's eventual claims. It is most appropriate where the vessel retains value and is seaworthy; it is least valuable where the vessel does not retain much value to the owner or is incapable of leaving the jurisdiction anyway. It should also be remembered that sometimes the objectives of arrest can be achieved through the simpler mechanism of a temporary restraining order in a non-admiralty civil suit, e.g., an order prohibiting removal of evidence or transfer of crew, or an order prohibiting transfers of oil from a vessel when the transfer may cause further pollution.
When considering arrest of a vessel, caution is necessary for two reasons. First, as custodian of the vessel, the arresting authority may assume liability for maintaining it in a safe condition and may in fact assume some liability for further releases of oil after the arrest. Second, with a vessel that is owned by a foreign government, the federal Foreign Sovereign Immunities Act provides for special rules regarding jurisdiction and service of process. See 28 USC § 1602-1611. Under 28 USC § 1610(d), a vessel owned by a foreign state may not be attached prior to entry of judgment unless the foreign state has explicitly waived its immunity; a party that arrests such a vessel in violation of this section may be liable for consequential damages. 28 USC § 1608 also provides detailed rules on service of process; failure to follow these rules may also result in a claim of false arrest and in damages. Finally, 28 USC § 1611(b) grants immunity to all vessels owned by a foreign nation and controlled by the nation's military or defense agencies; some nations regulate commercial vessels through their navies, so this provision may also frustrate actions against nation-owned vessels. In short, extreme caution is advised when initiating actions against vessels that may be owned by foreign nations.
4. Consider legal action to prevent interference with investigation.
Occasionally, personnel of the responsible party, or others, may interfere with access to sites or evidence needed for the investigation or for containment/cleanup activities. The Attorney General's office should be prepared to counter such tactics swiftly and decisively. It may call for filing for a temporary restraining order, issuance of administrative orders where available, arrest of offenders for willful interference with the investigation, or, in exigent circumstances, using state police to force entry. As to arrests, while there is rarely an immediate need to determine whether criminal charges should be filed against personnel responsible for the spill (unless the obvious targets are foreign nationals or are otherwise likely to flee the country), the Attorney General's office should be prepared to use arrest powers to halt interference with containment and cleanup and access for investigative purposes.
The state must be equally alert to prevent a liable party from limiting access to witnesses or from intimidating cooperative employees. Since employee intimidation is sometimes unspoken, the state should consider filing a request for a discovery order from a court that explicitly forbids intimidation or retaliation against cooperative employees. While this may not prevent it entirely, it at least provides a concrete measure for the state's own investigators to cite when attempting to assure witnesses that they can speak freely.
5. Begin preparing for a Limitation of Liability action.
The federal Limitation of Liability Act of 1851, 46 U.S.C. Append. §§ 181-189, is the most powerful defensive tool available to the owner or charterer of a vessel that has been involved in an event giving rise to liability. It permits the owner or bare-boat charterer to limit its liability to the value of the vessel and freight after the incident, with only a few restrictions. In the case of a complete loss of a ship, the statute could allow the owner to limit its liability to zero. With a large spill, the damages can easily become greater than the remaining value of the ship. The most important restriction on use of the act is that the owner is stripped of the defense if the cause of the incident was within the "privity or knowledge" of the owner (46 U.S.C. Append. § 183). There are hundreds of cases analyzing what constitutes "privity or knowledge" of the owner, but as a general rule the owner has a duty to ensure that the ship is seaworthy, has appropriate equipment for navigation, and is manned by a competent crew. (See Gilmore and Black, The Law of Admiralty, Ch. 10 (1975 ed.), or any other standard treatise on admiralty.) This area of law is complex enough that an Attorney General's office is advised either to develop some expertise on its staff in advance of a spill, or to engage outside counsel specializing in admiralty law. The following advice concerns basic steps that may need to be carried out immediately after a spill in order to counter a swift filing for limitation by the owner.
1.
Venue. In order to limit liability, the owner files a complaint in U.S. District Court and gives notice to all known potential claimants that they must file a claim with the court within the time set in the notice. This procedure -- with the potentially liable party filing as plaintiff -- permits the owner to choose the forum, which may be at some distance from the injured parties. (For example, following the oil spill from the Amoco Cadiz on the coast of France, the owner filed for limitation in the U.S. District Court in Chicago, forcing all claimants, including the government of France, to litigate thousands of miles away in an unfamiliar jurisdiction.) But injured parties, including a state, may defeat this tactic by filing their own damage claims first, in the venue of their choice, thereby forcing the owner to file for limitation in the same action. In short, if a limitation action seems possible, and the owner is a corporation with offices in diverse places, the state should consider filing an immediate complaint to gain the initial advantage as to venue.
2.
Substantive responses. Once a limitation action is filed, the state has several options. In its answer it can contest the right of the owner to limitation on the grounds that the incident was caused by factors within the privity or knowledge of the owner, based on whatever facts are applicable in that case, e.g., outdated charts, incompetent crew, equipment failure due to lack of maintenance, or inadequate written procedures. The state should examine the owner's claim as to the value of the vessel and challenge it if it is undervalued. The state can make a claim under the Clean Water Act and under state law, and argue that the owner is not entitled to limit liability under those laws (an open legal question). One federal court has ruled that the Trans-Alaska Pipeline Authorization Act, 46 U.S.C. § § 1651-1655, repealed the Limitation of Liability Act as to shipments of Alaska pipeline oil, In Re the Glacier Bay, No. A88-l15 Civil, Order on Motions to Dismiss Limitation Complaint, April 13,1990 (D. Alaska) (appeal pending). Where the owner has filed for limitation and is the nominal plaintiff, the state may be able to plead some creative defenses such as the Eleventh Amendment or sovereign immunity. Also, some states have financial responsibility laws that permit direct actions against insurers, and at least one court has held that an insurer may not take advantage of the Limitation Act since it is not itself an owner or charterer (see Olympic Towing Corp. v. Nebel Towing Corp., 419 F.2d 230 (5th Cir. 1969)). Finally, some states make the owner of the oil liable as well as the owner of the vessel; the owner of the oil is not protected by the Limitation of Liability Act, so that if one corporation owns both vessel and oil, it can be sued in its capacity as oil owner for full damages, even if it could have limited liability in its other persona.
6. Prepare to Counter a Bankruptcy Petition.
If a limitation action is not available to the owner (for example, where the spill was not from a vessel or where the vessel is a permanently moored barge instead of a ship), the owner may file a bankruptcy petition. This tactic may be used in order to avoid ultimate full liability, or in order to avoid having to participate in cleanup. In the case of a single asset corporation (such as a corporation whose sole asset is the vessel involved in the incident) this has much the same effect as a limitation of liability action. If the spill is continuing, the state should move quickly to avoid having an automatic bankruptcy stay prevent requiring the responsible party from sharing the containment and cleanup duties. It should argue that the trustee has the duty to protect the bankrupt estate, in the face of increasing damages, by containing or cleaning up the spill. Second, if the spill is continuing, and the relief requested by the state is injunctive relief requiring participation in cleanup, the automatic bankruptcy stay will ordinarily not prohibit such an action. Finally, state suits that can be characterized as police power actions to protect the public health and welfare will generally be found to be exempt from automatic stay provisions.
7. Seek an injunction to compel participation in containment and cleanup.
A judgment call is necessary by all relevant state agencies on whether the state wishes to force a reluctant responsible party to participate in containment and cleanup. With a small spill and a responsible party that has cleanup capabilities, it is often advantageous to put the major burden for field work directly on that party. On the other hand, if the state and federal governments are already handling the field work adequately, and the responsible party is not clearly equally capable of directing the work, it may be advantageous not to push the liable party into participation. Even without participation in field work, a demand should be made of the party to pay ongoing containment/cleanup expenses directly. Moreover, a formal demand for repayment of state expenditures should be made immediately, in order to start the period within which prejudgment interest may be claimed.
Remember that courts may be reluctant to grant mandatory injunctive relief, such as requiring participation in containment/cleanup, without statutory authority. The most helpful authority is a statute that compels responsible parties to participate in the cleanup.
8. Ascertain whether an insurer will take responsibility.
It should be remembered that with corporate spillers, much of the responsibility for responding to state demands and for payment of ultimate judgments will fall on an insurance company. A state may find that virtually all its contacts with a spiller are through the insurer. This situation may actually be an advantage since pollution insurers often have more experience with spills than the insured and are more capable of finding and contracting with response and cleanup contractors. When dealing with an insurer it is helpful to have a copy of actual policies, or at least to have a general idea of coverage; there has been considerable litigation on the meaning of pollution exclusion clauses of standard business liability policies. If an insurer denies coverage and hence refuses to participate in responding to a spill, and the state is aware of the details of the policy and of caselaw that construes such policies to extend coverage, an allegation of bad faith dealing may be sufficient to cause the insurer to change its mind.
Most pollution insurance is fairly standardized. Besides business liability coverage, many industries carry specialized pollution insurance. For example, most of the tankers in world trade are backed by Protection and Indemnity (P&I) Clubs, which, though not formally insurance companies, are associations of vessel owners that perform much the same function by providing coverage defined according to club rules. The P&I coverages for pollution risks are set forth in volume 7A of Benedict on Admiralty (7th ed., revised). Each club has a different set of rules, so a state must determine which club is involved in any particular incident.
Most oil barge operators are covered by the Water Quality Insurance Syndicate (WQIS), which writes "full protection coverage." It offers two types of coverage. One section of WQIS covers losses only up to limits specified under federal law, and coverage is payable directly to the federal government; most companies will argue that state claims are limited to coverage under this section. However, an optional second coverage, which may go as high as $1 million covers third party liability claims. Additional excess liability coverage may be available through underwriters at Lloyds of London. That coverage may amount to between $4 and $5 million. WQIS, and most other insurers, will deny that they provide coverage for civil fines and penalties, and they all will deny coverage for criminal acts. However, several carriers will pay claims for civil penalties that are compensatory rather than punitive in nature.
It is critical that states immediately secure copies of applicable insurance policies and determine the type of coverage and applicable exclusions or limitations. State insurance regulatory agencies frequently have records of coverage and even copies of standard policies. Some states, and the federal government for the carriage of some oil, have detailed filings by vessel owners showing proof of financial responsibility. For example, if a West Coast state suffers a spill from a tanker carrying oil from the trans-Alaska oil pipeline, it can determine the tanker's insurance coverage through the Alaska Department of Environmental Conservation, which requires the owners to provide proof of insurance or other financial responsibility.
Note that if a state joins its claim regarding oil spill damage to that of the federal government, and there is not sufficient insurance coverage to cover all claims, the state and the U.S. could end up in the difficult situation of having to bargain on how to divide the proceeds. In such a situation it is wise to agree with the U.S. on the division of spoils before joining claims.
Finally, when determining what claims to pursue against the spiller, it is important to recall that insurance coverage will usually be denied for intentional or criminal acts. For that reason it is sometimes best not to plead those facts when the existence of insurance funds are critical to payment of a judgment.
9. Identify and contract with key experts.
There are two reasons to obtain the services of key experts early in the process. First, natural resource experts will need to be on the scene very soon after the spill in order to collect evidence, establish benchmarks and take samples during the spill at its worst. Second, if the litigation will involve the services of highly specialized experts, especially in fields with only a dozen or so top experts in the country, the responsible party may attempt to establish ties with all of those experts in order to create a conflict of interest between those experts and the state.
10. Begin to analyze potential causes of action.
Even in the very early days of a spill it is important to analyze potential causes of action. First, a state may need to file a complaint on a moment's notice, either to establish venue for purposes of the Limitation of Liability Act, to serve as a basis for injunctive relief regarding cleanup, or to arrest a vessel as security for eventual judgments. And second, the state will need to make critical choices regarding state versus federal court and among different statutory causes of action, which require some degree of coordination and foresight. This manual is not intended to advise among the various federal, state, and common law causes of action that may apply. See Selected Cost Recovery Options and Issues Arising From a Maritime Oil Spill, The BC/States Oil Spill Task Force, 1990, for specific guidance.
One critical early decision is whether to seek damages for the effect of the oil on natural resources under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9657. CERCLA sets up a system of trustees, on behalf of federal and state resources, to assess damage and administer damages. Although it provides a vehicle for federal/state cooperation on spill litigation, in practice, the CERCLA trustee system has been subject to interagency and intergovernmental squabbling that may have made the process more burdensome than it is worth. In addition, the regulations prescribing methodologies for assessing and valuing natural resources have been struck down as improperly restricting damaged parties in their claims, Ohio v. U.S. Dep't of the interior, 880 F.2d 432 (D.C. Cir. 1989); Colorado v. U.S. Dep't of tile Interior, 880 U.S. 481 (D.C. Cir. 1989). If a state decides to file for resource damages under CERCLA, and to engage in a joint investigation and assessment with federal agencies, it must carefully negotiate full terms of how the investigation will be administered and how any mitigation fund that results will be spent.
By the On-Scene Attorneys
Experience with major spills teaches that there is a critical need for attorneys on the scene, and that the demands on those attorneys will be non-stop for the early days of the spill. Some of the burden can be taken by attorneys in the home office, but some must be done by the on-scene attorneys. Part II of this manual, on gathering the evidence, listed several critical tasks which must be organized by the on-scene attorneys. The most important is to ensure that the key documentation in the vessel or facility is reached and that properly trained and equipped teams begin collecting evidence of causation, extent of oiling, and effects of oiling. The on-scene attorneys must oversee creation of a system for tracking and preserving the evidence as it is collected, and must ensure that the integrity of the evidence is maintained. The attorneys must make sure that all state workers maintain records of time spent and materials purchased or used. And the attorneys must make sure that all state workers know to report anything unusual or otherwise significant. Besides those points, the following comments outline the other functions the on-scene attorneys should be prepared to perform.
1. Be constantly available to the key players.
Naturally this includes the decision-makers on the scene from state agencies, but equally important is to be available to attorneys for the responsible parties and to the insurer's representatives. The on-scene attorney should make sure that communications from the responsible parties' attorneys go through him or her, and not directly to client agencies. The contacts with the other side can be used right at the outset to create systems for direct payment or reimbursement of state expenses by the responsible party, and for ensuring that evidence in the hands of the responsible party or its contractors is preserved.
2. Act as a scribe and organizer for the response agencies.
An on-scene attorney should attend all work meetings and briefings, both in order to keep the home office informed and to permit follow-through with the state response agencies. Unless satisfied that it is already being done, an attorney should act as scribe for the response agencies, memorializing admissions, commitments and agreements made at joint decision meetings, and following through to make sure that promises are fulfilled.
3. Anticipate and assist in on-scene permitting needs.
In the emergency atmosphere of a major spill, one matter that gets neglected until too late is the need for permits for certain response actions, e.g., for mobile incinerators for disposing of oily waste, or for deposit of dispersants in state waters (unless they have been pre-authorized). There will be tremendous pressure on state agencies to short-cut the permit process, but failure to follow legal procedures can also result in public criticism and even state liability for allowing unpermitted activities that themselves cause damage. By anticipating the need and getting the jump on procedural requirements, such as public notice and hearings, the attorney will help avoid more complications and more conflict later.
4. Organize the local documentation system.
As noted earlier, the on-scene attorney should be central in organizing a system for tracking evidence as it is gathered; but there is also a need for a system to track and retrieve non-evidence documents which may be needed at the spill site, such as correspondence on commitments to pay costs, bills and procurement orders, worker timesheets, data on dispersants and chemicals, and a variety of others. Ideally the response agencies would handle this themselves, but in the real world the response agencies will have their hands full with either the oil itself or with meetings with other bureaucrats, so the on-scene attorney should ensure that this function is performed.
5. Advise state personnel on sharing of information.
In the early days of a spill, the press will be anxious for information from field personnel. Field personnel from the state may wish to share information with their counterparts in federal agencies and with the spiller's cleanup contractors. Scientists attached to state and federal agencies will want to share information and opinions. There may be legitimate reasons for such data sharing, but the state's attorneys must also try to control dissemination of litigation-privileged information, and should try to educate state personnel about the danger of statements that can be used against the state in litigation. Release of information will be controlled by specific state laws, or in the case of information developed jointly with the federal government, by the Federal Freedom of Information Act, 5 U.S.C. § 552. The on-scene attorney should quickly develop a sense of what information must be protected, what must be released on request, and which policies affect what falls in between. He or she must then make the standards known to all state personnel, including contract workers.
IV. Other Important Factors
Several other concerns are important to bear in mind, since inattention to them can significantly interfere with the Attorney General's effectiveness.
1. Media relations.
In a major spill, representatives of the news media will be present early and constantly. The press will persistently seek access to critical sites and to key decision-makers. The need to attend to press inquiries and demands for access can interfere with your office's work and will certainly be a drain on its resources. But ignoring the press and denying them access is seldom if ever helpful. The best approach is to appoint a central press officer for the Attorney General's office, either separately from, or in conjunction with, those of other state agencies. The press officer's role will be to provide timely and accurate information to the media and to expedite and assist the media's requests for access to places and people.
The most helpful tools for the press officer are an information base listing the names, roles, and phone numbers of key individuals, and ready access to internal briefings, situation reports ("sitreps"), oil distribution mapping, and other up-to-the-minute information. As a crisis situation unfolds, this information is the most important thing the press officer needs.
Press contacts should rigorously be channeled through the press officer to avoid swamping other officials while they carry out their duties; conversely the press officer should serve the media's needs by arranging orderly briefings and interviews, and by arranging site visits for the press using state aircraft or other means. The press officer must be able to move information as quickly as possible without regard to chain of command. He or she should coordinate with other press officers and rely on a "communication tree" to disseminate the information widely, both internally and externally.
If the spill threatens human health or safety, the department may need to identify an off-site media center. It should have access to telephones, typewriters, and fax machines. The Attorney General's office should consider, along with other state agencies, making some of its own documentation -- e.g., videotapes of the spill scene -- available to the press. This not only will disseminate the office's own view of the scene, but may decrease pressure from the press to allow their own crews into areas where they may interfere with ongoing work.
2. Relations with other agencies.
Obviously, close coordination with other state agencies is a must. (The Attorney General's office should be on the list of agencies to receive immediate notification of a major spill.) Most of the time, the Attorney General's office will be relying on the state environmental agency for evidence gathering and for logistical support. But even more importantly, the federal agencies and the responsible party will interface primarily with the state environmental agency, so it is imperative that the Attorney General's office have a strong and constant presence with the decision-makers in the environmental agency. We suggest that a senior attorney be assigned as full-time liaison and advisor to the leadership of the environmental agency; to the extent that the Governor has hands-on involvement, the same advice applies. In states where the other agencies or the Governor have independent counsel, it is important to put the Attorney General's office in the clear place of primary state legal counsel, and to coordinate with those other attorneys so that all advice is consistent and, ideally, so that the Attorney General always occupies the lead among the lawyers.
As to Federal agencies, their presence at a large spill is both a resource and a potential obstacle. The federal government is not a monolith and so it is necessary to distinguish early among the different agencies and their missions, and to establish good relations wherever possible. With a marine spill the Coast Guard will be the dominant federal agency. Coast Guard personnel are usually competent, cooperative, and used to dealing with a command structure that gets things done. Nevertheless, because friction may arise between lead federal and state agencies, state officials must try to establish a good working relationship early on so that any problems with Coast Guard oversight or related matters can be resolved early. The same is true of other federal agencies. We have mentioned elsewhere the difficulty of dealing with investigators of the National Transportation Safety Board who sometimes unnecessarily frustrate legitimate state investigations. Other federal personnel may also pursue conflicting personal or institutional agendas. In each case a good working relationship helps subsequent efforts enormously, so we suggest assigning someone to liaison duty. As noted earlier, the single best thing that can be done in preparation for a spill to facilitate intergovernmental cooperation is to establish a good relationship with the agency beforehand, i.e., high-level contacts and low-level cooperation; in most situations this means the local Coast Guard office, whose commanding officer should be invited to participate in your office'splanning for a major spill.
Federal agencies other than the Coast Guard that may be involved in a spill include:
* National Oceanic and Atmospheric Administration (within the Department of Commerce). NOAA is the scientific support coordinator for spills in the coastal zone; the evidence collected or coordinated by its scientists may be invaluable, and an effort should be made to coordinate between the state and federal scientists;
* The Department of Defense, which is the designated on-scene coordinator for spills from military vessels or facilities. Military lawyers (or their commanding officers) lacking experience in this area may mistakenly claim that states have no jurisdiction on military bases. The Attorney General's office should be alert for this claim and should refute it early and with vigor;
* The Department of the Interior, through the Fish & Wildlife Service, the National Park Service, and the Bureau of Land Management, depending on the site of the spill. USF&WS will be the primary advisor to the federal government on wildlife matters and, as with NOAA, its scientific expertise should be tapped;
* The Department of Justice litigates for all federal agencies except the military and may be involved early in obtaining injunctive relief. Since later legal developments almost always involve parallel efforts by the state and the federal governments, it is not unusual for conflicts over authority to arise. Some states have encountered a tendency of some federal lawyers to exclude state attorneys from the legal process. It is therefore important for the state attorneys to demonstrate at the outset that they are involved, cooperative, and knowledgeable;
* The Environmental Protection Agency, which acts as on-scene coordinator for all inland spills on federal land or navigable waters. EPA can provide important logistical and scientific support in regard to fingerprinting oil, aerial photography, and use of dispersants;
* The Department of State may be called in if a foreign flag vessel is involved;
* The Federal Emergency Management Agency (FEMA) is authorized to evacuate and relocate persons in an emergency;
* The U.S. Customs Service clears vessels entering or leaving U.S. waters; it can withhold clearance at the Coast Guard's request, or if the vessel lacks a valid certificate of financial responsibility under federal law;
* The National Transportation Safety Board and the Office of Pipeline Safety, both within the Department of Transportation, have authority to investigate spills in some situations. As noted earlier, the NTSB in particular has sometimes been known to exclude state (and other federal) officials from access to evidence and to its own hearings.
Finally, after the initial response to a spill, the federal government and the state's Governor may appoint trustees to assess and collect damages to natural resources under CERCLA. The Attorney General's office should be involved in the trustee process from the beginning. As presently set up in federal law, the trustee process is so rife with opportunities for conflict and misunderstandings that early and sound legal advice to the state trustee should be a priority. See, in general, Woodard & Hope, Natural Resource Damage Litigation under CERCLA, 14 Harvard Env. Law Rev. 189 (1990). For the corporate perspective, see L. Schenke, National Resource Damages Update, 8 Corporation Counsel Review 49 (Nov.1989).
3. Internal Management of the Attorney General's Spill Response.
Many volumes can be written on internal organization of the state's legal offices. Out of our experience with oil spills, we offer the following suggestions:
1. Plan for internal communications. In a major spill, the first reaction is to dispatch the most experienced spill attorneys to the field. As wise as that is, many of the critical decisions must be made back in the office, usually by the Attorney General or a senior deputy. Since the Attorney General is unlikely to have extensive spill experience himself or herself, the experienced spill hands in the office must be able to offer timely advice. If the spill scene offers good communications, then regular telephone conferences may suffice; but if the spill is in a remote area where communications are lacking or overburdened, it is best not to put all the office expertise out of contact with the Attorney General. Conversely, when communications with the spill site are poor, the Attorney General should consider permitting the attorneys on the spot to take appropriate steps and offer necessary advice without pre-clearance from the central office.
2. Avoid the exhaustion factor. The first response to a major spill can call for non-stop work for days. After a week of 18-hour days and sleeping on the office floor, an attorney's effectiveness flags like that of anyone else. We suggest that on-site attorneys be rotated in and out so that some relief is given to the initial troops. But at the same time it is a mistake to replace all of the first responders at the same time, so that the replacements have no background and no one to guide them in a confusing and overwhelming situation. These may seem like obvious points, but in the overload of the initial response, the exhaustion factor may be overlooked.
3. Mutual aid among states. As we stated at the beginning, the single best resource for a state Attorney General faced with a major spill is attorneys from other states who have already gone through spills. Phone calls should quickly yield advice, but we also suggest that bringing experienced hands from other states into your offices for a few days to help systematize and prioritize your response to a spill can be invaluable. Most state attorneys with experience in this area would be happy to respond in this way. Interstate support in major spills is now a standard feature of spill response by state environmental agencies, and it should be of state legal offices as well.
Footnotes
1. Tanker Advisory Center, Inc., 217 E. 85th St., Suite 259, New York, NY 10028, (212) 628-7686.
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