The Need for a New Approach to Handling Spills of National Significance

¶The Macondo well blowout caused the largest accidental oil spill in history—one that presented an unprecedented challenge to the response capability of both government and industry. Clearly, neither was adequately equipped: In fact it was quickly evident that even the response capacity indicated in industry's spill response plans did not exist. Though the National Contingency Plan permitted the government to designate the spill as one of "national significance," this designation did not trigger any procedures other than allowing the federal government to name a National Incident Commander.

¶The spill's magnitude calls into question whether the National Contingency Plan establishes an appropriate relationship between the federal government and the responsible party, as the public demanded in the weeks and months following the Deepwater Horizon spill that the government demonstrate control of the response. The responsible party that caused the spill is clearly legally responsible for containing the spill and mitigating its harmful consequences. The federal government, not the responsible party, must be in charge of those efforts. As this spill demonstrated, the government unfortunately lacked both the expertise and the capacity to oversee aspects of the response at the outset of the spill—particularly the effort to control the well. Only as the full scope of the disaster unfolded and the government gathered and focused its resources from a variety of agencies was the government ultimately able to take charge.

¶Recommendation C2: EPA and the Coast Guard should establish distinct plans and procedures for responding to a "Spill of National Significance."

¶Under existing law, EPA is the federal agency responsible for developing a National Contingency Plan, which is the federal government's blueprint for responding to both oil spills and hazardous substances releases. In light of the Deepwater Horizon oil spill, EPA should amend or issue new guidance on the National Contingency Plan to add distinct plans and procedures for Spills of National Significance. In those amendments, EPA should:

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Increase government oversight of the responsible party, based on the National Contingency Plan's requirement that the government "direct" the response where a spill poses a substantial threat to public health or welfare.17

Augment the National Response Team and Regional Response Team structures to establish additional frameworks for providing interagency scientific and policymaking expertise during a spill. Further, EPA, NOAA, and the Coast Guard should develop procedures to facilitate review and input from the scientific community—for example, by encouraging disclosure of underlying methodologies and data.

Create a communications protocol that accounts for participation by high-level officials who may be less familiar with the National Contingency Plan structure and create a communications center within the National Incident Command—separate from the joint information center established in partnership with the responsible party—to help transmit consistent and complete information to the public.