The Need for Increased Research and Development to Improve Spill

¶Response The technology available for cleaning up oil spills has improved only incrementally since 1990. Federal research and development programs in this area are underfunded: In fact, Congress has never appropriated even half the full amount authorized by the Oil Pollution Act of 1990 for oil spill research and development. In addition, the major oil companies have committed minimal resources to in-house research and development related to spill response technology. Oil spill removal organizations are underfunded in general and dedicate few if any resources to research and development. Though some commentators and industry representatives have argued that more research and development would not have allowed for a more effective spill response because no technology will ever collect more than a fraction of spilled oil, the fact is that neither industry nor government has made significant investments in improving the menu of response options or significantly improved their effectiveness. Thus any argument about the limited potential of response technology is speculative. After the Deepwater Horizon spill, agencies, industry, and entrepreneurs focused attention on developing new response technologies for the first time in 20 years, and a number of promising options emerged within a relatively short period of time—including beach-cleaning machines, subsea dispersant delivery systems, and new in situ burning techniques.

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Recommendation C4: Congress should provide mandatory funding for oil spill response research and development and provide incentives for private-sector research and development.

Specifically, Congress should provide mandatory funding (i.e. funding not subject to the annual appropriations process) at a level equal to or greater than the amount authorized by the Oil Pollution Act of 1990 to increase federal funding for oil spill response research by agencies such as Interior, the Coast Guard, EPA, and NOAA—including NOAA's Office of Response and Restoration. To be sure, such mandatory appropriations are rarely done, but they are not unprecedented. Congress has included such a provision when, as here, Congress seeks to target appropriations to support a discrete category of activities where Congress perceives that the need is high and the concern is great that the desired activity will otherwise go unfunded over a sustained period of time. For instance, Congress has provided for an annual mandatory appropriation of $100 million for emergency highway repairs for those damaged by natural disasters or catastrophic failures.18 Congress also provided for mandatory funding for five years for several farm conservation programs in the Farm Security and Rural Investment Act of 2002.19 By similarly removing oil spill research and development funding from the ordinary appropriations process, Congress can avoid the experience that followed the Exxon Valdez spill, when support for response research and development decreased over time. Moreover, Congress can comply with its pay-as-you-go rules by supporting increased research and development funding with a fee on offshore lessees. (See Recommendation G2.)

An advisory board, made up of experts from relevant offices of the Department of the Interior, U.S. Geological Survey, Department of Energy, EPA, and NOAA, as well as from professional societies, academia, industry, and non-governmental organizations, should be established to develop a research agenda and roadmap. In addition, to promote increased research investments by industry, the Coast Guard should revise its Effective Daily Recovery Capacity regulations to encourage the development and use of more efficient oil recovery equipment. At the same time, EPA should revise its oiled-water discharge regulations and streamline its permitting process for open-water testing. Finally, Congress and the Administration should encourage private investment in response technology more broadly, including through public-private partnerships and a tax credit for research and development in this area.

The Need for New Regulations to Govern the Use of Dispersants

The decision to use dispersants involves difficult tradeoffs: If dispersants are effective, less oil will reach shorelines and fragile marsh environments, but more dispersed oil will be spread throughout the water column. Prior to the Deepwater Horizon incident, the federal government had not adequately planned for the use of dispersants to address such a large and sustained oil spill, and did not have sufficient research on the long-term effects of dispersants and dispersed oil to guide its decision-making. Officials had to make decisions about dispersant use without important relevant information or the time to gather such information. Under the circumstances, however, the Commission believes that the National Incident Commander, Federal On-Scene Coordinators, and EPA Administrator

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¶made reasonable decisions regarding the use of dispersants at the surface and in the subsea environment.

¶Recommendation C5: EPA should update and periodically review its dispersant testing protocols for product listing or pre-approval, and modify the pre-approval process to include temporal duration, spatial reach, and volume of the spill.

¶EPA should update its dispersant testing protocols and require more comprehensive testing prior to listing or pre-approving dispersant products. The Coast Guard and EPA, as co- chairs of the Regional Response Teams and leaders of the Area Contingency Plan drafting process, should modify pre-approvals of dispersant use under the National Contingency Plan to establish procedures for further consultation based on the temporal duration, spatial reach, or volume of the spill and volume of dispersants that responders are seeking to apply. EPA and NOAA should conduct and encourage further research on dispersants, including research on the impacts of high-volume and subsea use of dispersants, the long-term fate and effects of dispersants and dispersed oil, and the development of less toxic dispersants.

The Need to Re-evaluate the Use of Offshore Barrier Berms in Spill

¶Response Offshore barrier berms generally do not constitute a viable spill response measure for several reasons. These reasons include the time and cost of construction, and the highly variable and dynamic marine environment that limit effectiveness and pose the potential for negative environmental impacts resulting from dredging and filling. Thus, for instance, barrier berms constructed off the shores of Louisiana in response to the Deepwater Horizon spill could not be considered a success. Only a fraction of the project (approximately 6 percent) was completed by the time the well was capped, and no estimate of the amount of oil trapped by the berms is much more than 1,000 total barrels. In fact, the Louisiana berms project stands out as the most expensive and perhaps most controversial response measure deployed to fight the Deepwater Horizon spill. The decision to approve the project as one of the oil spill response techniques to be funded by the responsible party was based primarily on the demands of local and regional interests rather than on a scientific assessment of its likely efficacy.

¶Recommendation C6: The Coast Guard should issue guidance to establish that offshore barrier berms and similar dredged barriers generally will not be authorized as an oil spill response measure in the National Contingency Plan or any Area Contingency Plan.

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Advancing Well-Containment Capabilities

As described in Chapter 5, the most obvious, immediately consequential, and plainly frustrating shortcoming of the oil spill response set in motion by the events of April 20, 2010 was the simple inability—of BP, of the federal government, or of any other potential intervener—to contain the flow of oil from the damaged Macondo well. Clearly, improving the technologies and methods available to cap or control a failed well in the extreme conditions thousands of feet below the sea is critical to restoring the public's confidence that deepwater oil and gas production can continue, and even expand into new areas, in a manner that does not pose unacceptable risks of another disaster. Better technology and methods are also needed to gather accurate information in the event of an accident or failure. This section discusses the Commission's recommendations for advancing well-containment capabilities in the wake of the Macondo well blowout.

The Need for Government to Develop Greater Source-Control Expertise

As described in Chapter 5, at the time of the Macondo well blowout on April 20, the U.S. government was unprepared to oversee a deepwater source-control effort. Though the public expected federal authorities to take charge once the accident occurred, neither MMS nor the Coast Guard had the expertise or resources to supervise BP's well-containment efforts. Once the Secretary of Energy's science team, the U.S. Geological Survey, the national laboratories, and other sources of scientific expertise became involved, the government was able to substantively supervise BP's decision-making, forcing the company to fully consider contingencies and justify its chosen path. The government's oversight effort was assisted by outside industry experts, although their involvement also raised some concerns (about conflicts of interest, sharing of proprietary information, and potential liability for participants) that were never resolved.

Recommendation D1: The National Response Team should develop and maintain expertise within the Federal government to oversee source-control efforts.

The National Response Team should create an interagency group—including representation from the Department of the Interior, Coast Guard, and the Department of Energy and its national laboratories—to develop and maintain expertise in source control, potentially through public-private partnerships. The proposed Ocean Energy Safety Institute at the Department of the Interior could play a role in developing such expertise.

¶In addition, EPA should amend the National Contingency Plan to:

Define and institutionalize the role of federal agencies and the national laboratories that possess relevant scientific expertise in source-control.

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Create a mechanism for involving outside industry experts in source-control design and oversight.

The Need to Strengthen Industry's Spill Preparedness

¶Beyond attempting to close the blowout preventer stack, no proven options for rapid source control in deepwater existed when the blowout occurred. BP's Initial Exploration Plan for the area that included the Macondo prospect identified only one response option by name: a relief well, which would take months to drill. Although BP was able to develop new source-control technologies in a compressed timeframe, the containment effort would have benefited from prior preparation and contingency planning.

¶Recommendation D2: The Department of the Interior should require offshore operators to provide detailed plans for source control as part of their oil spill response plans and applications for permits to drill.

¶Consistent with the enhanced planning process described above in Recommendation C1, oil spill response plans should be required to include detailed plans for source control. These plans should demonstrate that an operator's containment technology is immediately deployable and effective. (BOEMRE has recently issued a Notice to Lessees requiring operators to demonstrate, as part of the spill response planning process, that they have "access to and can deploy surface and subsea containment resources that would be adequate to promptly respond to a blowout or other loss of well control."20 In enforcing this Notice, BOEMRE must ensure that operators provide detailed descriptions of their technology and demonstrate that it is deployable and effective.)

¶In applications for permits to drill, the Department of the Interior should require operators to provide a specific source-control analysis for each well. The analysis must demonstrate that an operator's containment technology is compatible with the well. (The Department of the Interior could implement this requirement through amendments to existing regulations21 or through a Notice to Lessees.22 The latter option could be implemented more quickly, though the former might be more permanent.)

¶As with oil spill response plans, source-control plans should be reviewed and approved by agencies with relevant expertise, including the Department of the Interior and the Coast Guard.

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The Need for Improved Capability to Develop Accurate Flow Rate Estimates

As described in Chapter 5, early flow rate estimates were highly variable and difficult to determine accurately. However, the understated estimates of the amount of oil spilling from the Macondo well appear to have impeded planning for and analysis of source-control efforts like the cofferdam and especially the top kill. U.S. Geological Survey Director Marcia McNutt stated that if a similar blowout occurs in the future, the government will be able to quickly and reliably estimate oil flow using the oceanographic techniques that eventually provided an accurate estimate of the flow rate from the Macondo well.23

Recommendation D3: The National Response Team should develop and maintain expertise within the federal government to obtain accurate estimates of flow rate or spill volume early in a source-control effort.

The National Response Team should create an interagency group—including representation from the Department of the Interior, the Coast Guard, the national laboratories, and NOAA—to develop and maintain expertise in estimating flow rates and spill volumes, potentially through consultation with outside scientists.

In addition, EPA should amend the National Contingency Plan to create a protocol for the government to obtain accurate estimates of flow rate or spill volume from the outset of a spill. This protocol should require the responsible party to provide the government with all data necessary to estimate flow rate or spill volume.