affect legal contingency planning. Few lawyers have the opportunity to litigate an oil spill case dur~ng their career, practically none negotiatt~ two or more.
LEGAL CONTINGENCY PLANNING FOR OIL SPILLS1 Douglas K. Mertzl Office of the Attorney General State of Alaska Pouch K Juneau, Alaska 99811 James S. Mattson P.O. Box 586 102900 Overseas Highway Key Largo, Florida 33037
ABSTRACT: This paper describes a model for extending contin~ency planning to the legal aspects of oil spills. The. ear!y.~tages of a splll are a critical time for gathering evidence and taklng lnalallegal steps. The authors examine the need to assign specific documentation tasks to field personnel in advance and to have a team. of legal staff, ~now~edgeable in oil spill, admiralty, and tort law preasslgned to deal wah splil-related legal matters requiring immediate attention. This approach should be of value to any organization involved i~ a s~ill, whether corporate owners or operators, or regulatory agencles. Finally, the authors consider whether being in a defensive or offensive legal posture should affect legal contingency planning.
number of samples had been taken in 1975 to prove that more than one quart of oil had been spilled by the vessel. The Clean Water Act, and several state laws, require every storage facility, and certain government agencies, to prepare oil spill contingency plans. Contingency planning should not ~e r.estric~ed to cleaning up a spill. It is our position that every organization with the potential for getting involved in oil spill litigation should prepare for it. We agree with the philosophy that "every spill is unique,O' but ~e point out that there are many functions which remain the same spill after spill.
Designing a legal contingency plan
Few lawyers have the opportunity to litigate an oil spill case dur~ng their career, practically none negotiatt~ two or more. The only saving grace comes when one's opponent is equally new to ?il spill litigation. In such a case, neither side will have an advantage In competence or preparation, and luck will often determine the outcome. This situation is neither necessary nor desirable, and a modest amount of prespill planning can work to the benefit of all parties in oil spill litigation. In most instances, government or c~rporate att~rneys a~e brought into a spill situation after all the action has subsided. This forces the attorney to rely on the evidence-gathering skills of field personnel, many of whom may not have been trained in the legal aspects of a spill. This reliance can lead to unexpected results, two examples of which follow. 1. One of the authors defended an alleged spiller who stored gasoline in some old, probably leaky, above-ground tanks. When a sheen appeared intermittently on an adjacent water body, federal and state officials descended en masse to accuse the client. The matter eventually was dismissed because (a) the investigating officials only took three samples, (b) they subsequently lost one of them, and (c) o~ ~he defendant's request they sent him the entire quantity of the remaining two samples, without analyzing either one, and without retaining a portion for analysis. The defenda~t's analysis demonst.rated t?at the samples were No.2 fuel oil or diesel fuel, not gasohne which the defendant maintained was in the tanks. Unfortunately for the government, nobody sampled the tanks themselves. 2. One of the authors assisted the lJ nited States in identifying the source of a mystery spill in 1975. The suspected "source" vessel was not arrested until more than six years had elapsed. The case had to be dropped because government analyses co.nfi~med that "at. least:' ~wo different types of oil were spilled in the Incident and an InsuffiCIent
The scope of any organization's legal contingency plan will depend on the resources available. There are two obvious levels of implementation. The first is for an organization willing to commit substantial resources to the legal aspects of oil spills. The second is a more limited effort for organizations which cannot provide the same level of resources. Both levels of implementation require a commitment to prespill planning, the heart of any contingency plan, whether "cleanup" or "legal." Major effort. The basic components of a major effort include the following. • An oil spill legal team composed of in-house personnel with appropriate specialized expertise is necessary. A senior in-house attorney should be predesignated as overall coordinator. • Consideration should be given to a contingency contract with an oil spill specialist. Few legal teams will deal with more t~a~ on~ oil spill in their collective lifetimes, but there are some speCIalIsts In North America who have dealt with dozens, or even hundreds, of spills. Having one such specialist on a contingency contract is the best ~ay to go, unless such a specialist is available in-house. Other speCialists, legal or technical, should be on contingency contracts, to handle areas of law or technical areas in which there is insufficient expertise within the organization (e.g., admiralty or natural resource law). • Special field investigators need to be designate~ (sep~rate fr?m personnel assigned to non-legal aspects of a spill), With specIfic documentation assignments. • Special training must be conducted regularly for regular field personnel. Limited effort. The basic components for a limited effort include the following. • An in-house legal team needs training in the relevant legal areas, and access to outside experts if needed. They should have pre-
1. The views in this paper are those: of the authors, and do not necessarily reflect those of the State of Alaska.
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assi~ned roles regardi~g necessary servlce~ s.hould be avaIlable on an
legal actions. and basic support emergency basis. • ~s a minImum, an organization's regular field personnel should be gIven advance training, and should have preassigned tasks regarding spill documentation. In. both cases it .is best to integrate the implenlentation of the legal contingency plan Into that. of the organization's oil spill contingency plan, so that support serVIces related to travel, equipment, and accounting can be provided in common.
Immediate action in the field A pla~ ~esigned t.o place .a p~tential litigant in the best possible legal poSItion following an oIl spill must have t\\lO goals. The first is documentation of spill events; the second. analysis of related scientific and ~ngi~eering factors. The transitory nature of events surrounding an Ol~ spIll m.ake~ an early effort to gather such facts important. P~espIl~ plannIng !S necess.a~y, as field personne I are often too busy With mlnute~to-mlnute HcnSlS management" to think about gathering documentation and samples for future litigation. Any legal team which has been through complex oil spill litigation can list the evidence which it should have had or should have had more of. The following general categories of information and evidence need to be gathered during, not after, the spill incident. Witness information: Identities of persons on the scene, both actors and observers; statements to record observations when n1emories are fre~h, and, hopefully, not influenced by institutional pressures; observatl?~s of environmental conditions, cleanup activities, and direction; posl.tIons take~ by key personnel, both government and spiller Visual: Copies of photographs and videotapes, both for formal proof of facts and for the greater impact which videotape and color photos have over verbal testimony; aerial photos, including infrared, from different altitudes Records: Vessel logs, crew lists, names of cleanup personnel; initial reports on cause and cleanup; records containing technical performance data (e.g., pipeline pressures), notes of mechanical problems, records of maintenance for navigation equipment Cost information: Documentation of costs of initial response, cleanup, follow-up investigations, and litigation related expenses Physical evidence: Regular samples of oil spilled into the environment, as a function of space and time; samples of oil taken from the source, .a~d re~ularly re-taken if there is any chance of a change in compOSItIon; oIled flora and fauna, along with documented counts of injured organisms, and measurements of impacted areas; scaled photographs, both short-distance and aerial. Analyses of samples, as necessary, and proper storage of samples (e.g., frozen) are high-priority considerations. All sampling personnel should be taught the legal niceties of maintaining a solid chain-ofcustody, and the application of chain-of-custody procedures to the introduction of evidence in a trial. Sci.entific an~/or en~ineering experts should be brought in to assess certain factors Immediately after the spill. These factors include the following. Immediate damages: Natural resource damages occurring soon after ~ntry of spilled oil into the environment may become less apparent as time passes. The legal teams also will need an early assessment of damages .in order to determine whether, and at what level, legal response IS warranted. Baseline for measuring impacts: Experts may be able to observe natural resource damage as it occurs, and hence be able to document pre-impact conditions. At the same time they can record and assess for comparative purposes, the condition of nearby unimpacted areas~ Prevailing environmental conditions: Experts on the scene may be able to document certain transient environmental conditions which mitigate or increase impact from the spill, or which relate to causal factors. For example, a fish kill may have been contributed to by natural run-off from heavy rains, or mangrove destruction may have resulted from unrelated temporary saltwater intrusion.
Immediate legal measures While field personnel are gathering information for use after the spill, a party's legal personnel need to be taking immediate steps to
protect their client's interests. In a maritime spill, the vessel owner's attorneys will need to assess immediately whether to file a limitation of liability petition. In many instances a wide choice of venues is available and an advantage may lie with the party who first chooses the .forum. A potential plai~tiff. private or government, will be prepanng to arrest the vessel In order to obtain financial securitv and leverage, or a~cess to physical evidence and ship personnel. . . Subpoenas .for dehvery of documents and taking of depositions of the ~rew ~1l1. be necessary, as well as court orders allowing entry and InveStigatIon of the vessel's condition. . .Occasional!y a spiller will attempt to restrict access to spill sites. An Injured party s .legal team must ~e ready to take immediate steps to secure entry nghts for appropnate purposes. Plaintiffs attornevs must see to .it that sampl.es are taken, documents are copied, a~d names ~f WItnesses obtained before such evidence "disappears." Some.spillers may attempt to restrict access to their personnel. or may penalIze employees who cooperate with investigations. Plaintiffs legal tearn should be prepared to counter such tactics swiftlv. Government l.awyers may need to assist in negotiations early i;' the spill re~ardIng governnlent takeover of cleanup responsibility, and appropnate levels of response.
Specific steps in advance of spills After a decision to create a legal contingency plan has been made. specific steps must be taken in advance of an actual spill. These preparatory steps will permit the maximum to be accomplished in a minimum of time under difficult conditions. Advance preparation is, as with other aspects of oil spill response, the heart of a good legal contingency plan. Leg~l team members. Members of the response team should be preaSSIgned to areas of responsibility in which they will exercise independent judgment. Staff attorneys should be identified who have backgrounds in admiralty, administrative, and state and federal laws relating directly to oil and hazardous substance spills. Certain members of the team should be designated to act as liaison with the organization's executive decisionmakers. field personnel, and other entities involved in the spill. A legal team should have someone in charge of discovery, that is. of gaining maximum access to information held by others. With modern word-processing capabilities, some critical pleadings can be prepared in advance. Above all, a senior attorney with experience in the field and familiarity with the facilities and personalities involved should be predesignated as the legal coordinator. Special field investigators. When the legal contingency plan permits assignment of non-lawyer field personnel devoted to assisting the legal staff, those persons should receive specialized training in several areas. They should have training or experience in professional investigative t~chn~q~es,. includi~g interv~ewing, report-writing, and legal and ethical lImitations on Information gathering. Training programs of stat.e and federal law enforcement agencies can be utilized by public agencIes. Investigators should be familiar with the types of facilities (e.g., pipelines, tankers, or refineries) and the environments most likely to be involved in a spill. They should be indoctrinated on the types o.f documentation and observations of most value to the legal staf,r. FInally, they should be thoroughly familiar with any equipment a~aIlab~e to them s.uch as c~meras, videotape equipment, or sampling kits (With appropnate chain-of-custody documentation). Regular field personnel. Personnel who are normally involved in sp~ll-related activities for reasons other than litigation will be the pnmary source of data. For a spiller, cleanup supervisors, environmental personnel, security, and normal operating personnel all will be pre~ent at the spill. For government agencies, on-scene coordinators, ~nvtronmental protection personnel, fish and wildlife biologists, pubhc sa~ety ~ers~nnel, and all the rest of officialdom who descend upon a major Oil spIll, are sources of day-to-day information. One principle always should be observed: utilization of regular field pe:s~nnel should n~ver be at the expense of their primary tasks. WithIn that constraInt there is much that field personnel can do to ass~s~ in gathering ~vidence for legal purposes. The key is advance traIning: as many held personnel as possible should be trained to ~onside.r recording events and observations as a routine part of their Jobs. Field notebooks or pocket dictating machines should be standard issue. The legal staff should attend regular training sessions of
ECONOMIC AND LEGAL; CONTINGENCY PLANNING spill personnel. and remind them what facts ought to be documented or noted and how to write effective reports. Certain personnel must be assigned specific tasks, such as taking samples or recording the scene on film. and must receive specialized training in those techniques. The goal is to instill in field personnel the attitude that careful observation and documentation of events is a routine component of their jobs. Equipment needs. Most of the equipment needs for adequate documentation of an oil spill have already been touched on: 35mm cameras (preferably automatic for ease of use in difficult conditions and with "databacks" that imprint the date on each photo); videotape cameras, which, more than any othe~r medium, can transport a judge or a jury, or opposing counsel, to the scene of the spill itself~ waterresistant field notebooks; and compact dictating machines that fit in a shirt pocket. Any organization which deals with oil spills should have carefullyprepared sampling kits with full instructions and sealing devices for chain-of-custody protection. Organizations that have to respond to remote areas should have camping gear and provisions available when shelter is scarce or unavailable. As part of the overall contingency plan, the legal team should have worked out coordination of its own transportation needs with those of the organization as a whole.
Legal contingency planning from different perspectives The authors believe that applying contingency planning to the legal aspects of oil spills will benefit any party able to engage in advance planning, whether regulatory agency or part of the petroleum industry. In the real world of litigation, potential plaintiffs and potential defendants must have different strategies for protecting their own interests. A well-designed legal contingency plan will take into account such differing perspectives. Potentially liable party. A prospective defendant in an oil spill case needs to develop fully all exculpatory evidence. Major industry defendants need to be prepared to defend when brought in as third parties to a spill they did not cause. Tension may exist between the plaintiffs need to gather evidence and a defendant's desire to limit the evidence available to potential plaintiffs. Some defendants may rely on being able to keep key parts of their documentation confidential. Artful legal practitioners may succe(~d to an extent, but for every lawyer trying to keep his client's documentation secure there is an opposition lawyer trying to pry it loose. There is much to be said for both sides maintaining an 0pen" discovery attitude-it reduces costs and antagonisms, and it also can bring favorable early settlements, benefiting both sides. No defendant can rely on not gathering any evidence and leaving the field open to the other side. Each defendant should emphasize the type of documentation most likely to yield benefits for his case. The object is to go the other side one step better. The advantage usually lies with the best prepared side. For example, a defendant who participates in cleanup should fully document: • The presence of a healthy functioning ecosystem in and around the impacted area • The real extent of the spill, and perimeter beyond which no impact was felt • Post-spill recovery of impacted areas • Its commitment of manpower and equipment to containment and cleanup • The extent to which other factors, such as severe weather or diseases of animal populations, contributed to apparent ecological impacts The defendant's plans should counteract potentially damaging evidence collected by the plaintiff. This includes monitoring the type of documentation being done by government officials, looking for tlaws in methodology, and duplicating their sampling. Always demand Hsplits" of the other side's samples, and analyze those splits (particularly if they do not). If there are legitimate security reasons for limiting government personnel on the scene, steps should be taken to make it clear that potential defendants are not trying to withhold information from the government. Arrange for a limited number of government employees to have carte blanche access to the site. Defendants must avoid the natural .Instinct to document only the worst aspects of the situation, but should insure that coverage is '4
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devoted to positive achievements as well: surrounding unimpacted areas, successful containment, commitment to a good cleanup, and general good will" comnlunity efforts. Potential plaintiff. The potential plaintiffs documentation plan will be more straightforward: maximize knowledge about the spill. with emphasis on the extent and nature of damages and on inculpatory material which will be unavailable later. In addition to the standard sampling and recording of evidence. the potential plaintiff's field staff should compile (in notes or on tape) lists of problems observed, areas where better. or worse. performance is the norm. and instances of acts of, or statements by, cleanup personnel which demonstrate the spiller's attitude toward the spill and its cleanup. The plaintiffs field personnel should be trained to be particularly alert to eyewitnesses who will be unavailable later or who may be subject to pressure to conform to the spiller's view of the facts. From a plaintiffs point of view, the most important areas of documentation include: • Sampling of oil and the affected ecosystem • Measuring and documenting impacted areas • Documenting other potential impacts on affected ecosystems. whether already polluted or pristine • Documenting sub-lethal and long-term effects of the spill • Documenting secondary, usually economic, losses caused by the spill Small party. In designing a legal contingency plan it is clear that a party with large resources, such as major corporations and national governments, will be able to achieve more than small companies or local governments. Beyond that obvious point, the amount of resources available will affect certain specifics of a contingency plan. For example, in the period just after a spill, the smaller party, whether potential plaintiff or potential defendant, will concentrate on: • Getting the basic spilled oil samples, leaving more expensive sampling until later • Securing transitory information. such as statements from temporary workers or eyewitnesses not likely to be found later • Using the quickest and easiest visual documentation methods, usually 35 mm cameras • Identifying existing documentary material which can be secured later such as personnel lists A small party can "piggyback" on a larger party, and can sometinles implead a deep-pockets organization that hasn't already been named. To a great extent a small party can use legal discovery methods to fill in his documentary gaps with materials from the other parties' files. A small plaintiff might get total cooperation from a government plaintiff, for example. The party should still do his own basic work. to whatever extent is possible. including keeping track of the documentation methods of other parties in the field. Large party. In contrast, a party with greater access to personnel, equipment, and finances should concentrate on large-scale documentation in the early days of the spill. A large party will undoubtedly become a source of information for smaller parties, and for the opposition. By planning its field work in advance of a spill, the large party can avoid collecting an encyclopedia of information (both good and bad), and can focus on its actual needs. The large party should exploit its superior ability to cover a larger geographical area with more field personnel and to bring more legal and engineering expertise to the problem. The ability to maintain contingency contracts with legal and scientific experts is an advantage reserved to the larger players. Ultimately, the greatest advantage of a large party over a smaller one may be in its ability to weather extended litigation, but short-term advantages should be utilized as much as possible. Government parties. Most of the comments above pertaining to potential plaintiffs apply to government agencies as oil spill litigants. A government attorney has access to an array of legal tools not available to other parties. For example, in any transitory or emergency situation involving potential adversaries, search warrants can be a tremendously valuable tool. The legal team should be familiar with standards for administrative and criminal warrants, and with procedures for procuring them. Use of a strong tool like search warrants will escalate disputes and freeze parties into adversarial positions. Therefore, such tools should be used only after a thorough consideration of their necessity. It is essential to think through, in advance of a spill, precisely what conditions justify their use. Anyone contemplating use of criminal law procedures should be absolutely clear on the ethical prohibitions against using criminal process for civil litigation advantages. When '4
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there is strong probable cause to consider a matter criminal, the criminal justice system should be considered. Public agencies possess other useful powers. An agency may have independent authority to subpoena documents and witnesses as part of a pollution investigation. The most useful aspect of participation by government agencies, however, is the access it provides to additional personnel with useful backgrounds. State governments can usually count on assistance from state police, U.S. milita!y units, fish and game regulatory agencies, university professors, public prosecutors, state agricultural experts, and state highway crews. A modest amount of prespill planning will identify useful personnel, and their talents then can be drawn upon in a spill situation. These people should be key components in any oil spill legal contingency plan. A public agency, just as a corporate entity, needs to preplan the decision-making process during an oil spill. Knowing who can make what decision is essential information during the hectic days of a spill.
It is important to identify decision processes as part of a government legal contingency plan in order to overcome bureaucratic inertia in the face of unusual situations.
Conclusion This article has presented suggestions for successful legal contingency planning. We do not expect every agency, company, and individual to incorporate all of these ideas into a formal legal contingency plan. As oil spilllitigators we can only offer two pieces of advice. The closer a party involved in oil spills comes to the type of advance planning we suggest, the better his position will be in any subsequent litigation. Second, since for every oil spill litigant there is at least one opposing party trying to put together a better case, you cannot afford to prepare poorly for this task.
