Major oil spills, like what happened on the Indian Ocean Island of Mauritius last Thursday, are unfortunately more common than they should be.
Years of forcing the global shipping industry to increase sustainability and safety standards have not yielded sufficient results, as international shipping continues to lag behind on climate change commitments.
This has placed many smaller nations, without the resources to handle a major oil incident, woefully unprepared to deal with the complexity and magnitude of how to handle major industrial oil spill, as Mauritius found to its cost last week. As an aging and abandoned large crude oil tanker off the coast of Yemen is also at risk of spilling across the entire Red Sea, causing the US Secretary of State to issue an alert, what steps do countries have to take if a major oil spill hits their shores for the first time?
What happens when there is an oil spill and what steps should a country take, particularly if they’ve never experienced such an event.
It all eventually boils down to two questions.
A question of How Much and Who Pays
After all is said and done, oil cleanup operations come down to two questions: who pays, and how much do they pay. Some key early decisions could mean an order of magnitude (ten times) difference in any payout. This is critical to know.
All major shipping companies pay into catastrophic risk insurance. Ultimately, any funds for restoration of habitats will come from this pooled risk insurance that has pockets of billions of dollars. As a comparison, compensation for the Deepwater Horizon oil spill in 2010, which had a robust scientific assessment behind it, was $20 billion, for Exxon Valdez oil spill in 1989 it was $5 billion (over $10.5 billion in today’s prices). If bilateral settlement terms for what is a reasonable cost of cleanup cannot be reached, this will often go to arbitration. This is a well understood process.
At such arbitration, the quality of the data collected in the early days of the incident will make all the difference in the decision of the magnitude of payout made.
Here are the five critical steps that any country experiencing an oil spill must take in the immediate days following a crisis.
There are two aspects to this: containing the oil spill itself, and salvaging the vessel. This often entails two different sets of experts for each challenge.
Containing the oil spill
A key group of international technical experts in suggesting effective spill response techniques to a maritime incident is ITOPF. They are usually activated by a vessel’s owner and insurer. They may organize a spill response team, such as Oil Spill Response Limited, which are the largest international industry-funded cooperative that exists to respond to oil spills wherever in the world they may occur, by providing preparedness, response and intervention services. They are wholly owned by most of the environmentally responsible oil and gas companies, who employ 275 people across 12 locations around the world. They also respond to spills for non-members, subject to a set of pre-set fees.
They are the teams who advise and lead on the initial operational details of containing the oil spill, including at distances far from the actual accident site itself.
Salvaging the vessel
In cases where vessels have been structurally impacted, the experts are typically the large, global, salvage companies who are appointed by the ship’s owners and insurers.
2. Collect and Freeze Samples immediately at an unprecedented scale
Whilst in many countries there is often the initial shock, confusion and coordination challenges in the immediate aftermath of a spill, the samples collected in the immediate days following a spill (and continually in the following days and weeks), will be the biggest determination of any cleanup compensation payout.
No resource should be spared collecting these samples using the right scientific protocols that would be admissible in any arbitration. The pay off from extensive and well cataloged samples could mean the difference of a payout that is orders of magnitude (ten times) greater, and would justify any investment in the collection team and robust scientific protocols that could be admissible in any arbitration.
Once this window is missed, it may be too late to see the full extent of the damage caused, as lessons from the quality of sampling around the Cosco Busan show.
Biological samples (such as coral, fish, mangrove tissue) can reveal certain bio-markers of where the pollution may have traveled that is invisible to the naked eye or satellite evidence. To obtain these indicators, specimens need to be genetically tested using specialist genomic equipment that is widely available in the US and Europe.
Often such equipment is not present in the location of the spill and there is a several week delay for this to arrive (especially given Covid-19). However, this does not mean samples should not be collected daily from specific locations under specific protocols. These samples can be frozen and tested many weeks or months later when the right equipment arrives.
Incidentally, due to Mauritius’ strong response to Covid-19 (there are no local cases), many PCR kits are currently available which may end up being one of the most powerful tools in the oil spill response. That, combined with armies of specially trained volunteers from the tourism and fishing community who know the area, could give a strong advantage for a unified a national response.
The documentation for the ‘chain of custody’ is critical
What is most important for samples to be admitted in any arbitration settlement is the strict cataloging of the chain of custody and storage of the samples. The importance of this cannot be emphasized enough. Many cases have fallen apart when it was alleged that samples could have been tampered with.
Fortunately, Mauritius has a large and secure tuna industry and aquaculture facilities with refrigeration and security capacity that should address these concerns.
The documentation and protocols can be printed off from existing documentation, such as on Page 23 of NOAA’s guide to Heavy Fuel Oil spills. Often a swift training is required for all collecting officers. Given the large local fishing and tourism sector around the crash location, Mauritius has the opportunity to secure and freeze a much more compelling set of baseline data than many other countries. Especially given how well studied and monitored the wildlife sanctuaries around the crash site were.
3. Develop a unified, national response
There is often a ‘fog of war’ after a major oil spill, particularly where this happens in a country for the first time. It took two major oil spills (1969 Santa Barbara, California and 1989 Exxon Valdez) for the US to fully have its standard operating protocols and laws in place, so they could better handle the Cosco Busan in San Francisco Bay in 2007.
In most countries, there is often inter-departmental challenges. In the US, following major oil spills, the Port Authorities are often at odds with the Environmental Agencies (EPA and NOAA). However, in the most effective cases, they are put under the umbrella of the US Department of Justice to ensure a coordinated response with sufficient and fast-tracked funds, to ensure the best possible outcome for the citizens of the affected area.
Whilst there may initially be trade-offs between who pays for sample collections, scientific information, and other baseline impact studies, resourcing should be agreed in a unified way. In the United States, there are often well established established Accident Investigation Boards for major events that look into the forensics of the incidents and lessons learned. Such processes into the causes of what happened should be handled separately from preparing a strong and independent Natural Resource Damage Assessment case for compensation from any polluter.
4. A country should engage its own independent experts
These should be separate from those provided by the polluting company, the insurer or any host nation associated with a polluter
This is critical. Given the magnitude in any payout, not all international experts are incentivized to offer objective advice. In many cases, it may be more prudent for the insurer to have a ‘counter-narrative’ to diminish the potential impact (e.g., describing an environment that was already in decline, tourism was impacted by Covid-19 or that multiple factors were to blame, rather than what the insurer is responsible for).
Where a country has its own set of independent experts who have gone through major oil spills before, these countries are always more effectively prepared with a stronger, unified narrative. Given that settlements are often in the hundreds of millions of dollars and even billions of dollars, there are very high stakes here to have the right, independent experts on the side of the country and citizens who have been impacted.
5. Invest in a world class science team
The centerpiece of any claim will come down to the credibility of the science presented. This will be determined by the quality of the samples and data collected (including how strictly scientific protocols were carried out and the extensiveness of the tests), as well as the quality of the experts engaged.
Often, a polluter or host nation would offer to pay for a scientific team. This could lead to sub-optimal outcomes for the host nation. Not all scientists are equal, and each may use different approaches to reduce their assessment of impact.
One example that has been seen in many places is for a scientist to cut fish into slices to visually look for the presence of oil as the main indicator. Whilst this makes for compelling media images, this does not give robust scientific information. When a fish takes in oil, it is akin to a human drinking alcohol. The liver de-toxifies (reduces the toxicity) of the alcohol. The only way to accurately assess the impact of an oil spill is through advanced genetic testing.
There is a specific gene that is sought for in genetic testing and that is the famous CYP1A gene (part of the family of CYP enzymes). This is a critical indicator in response to oil spills. This is a well known ‘bio-marker’ that indicates the fish’ defense mechanisms have been activated against the pollution. If more of this enzyme is made, that may be an indicator that the fish trying to detoxify itself, as admissible evidence of stress due to the oil spill. This is the true measure to understand the impact of an oil spill (not visual inspection of a slice of fish), which reveals that oil spills are often the ‘invisible killer’ to marine life. These bio-markers can easily be detected using PCR tests, that are commonly being used for Covid-19 testing.
Hence it is important that any country impacted agree swiftly on an international scientific team from an internationally respected university who can work with local scientists to jointly frame the right questions and focus immediately on collecting the right samples. With Exxon Valdez in Alaska, only a certain set of species population needed to be monitored. With more biodiverse areas, experts in animal diseases from corals, mangroves, birds, turtles, insects, dolphins, whales, crustaceans, plants, flowers and trees would need to be engaged to know which indicators to start searching for. Some of the world’s leading scientists who worked on behalf of the communities that secured the $20 billion settlement from BP from the Deepwater Horizon well blowout, are at Stanford University’s Marine Hopkins Laboratory in California. They also happen to have some of the world’s deepest expertise in the Indian Ocean, covering coral reefs, fish and other rare marine life found only in the Indian Ocean.
If the funding party (the polluter or their sponsoring nation) does not agree to a highly credible, world class scientific team from a separate country, it is often prudent for the host Government to pay for this scientific expertise themselves and be reimbursed later during any settlement. These costs may be as high as $3 million initially for the full range of scientific logging, right equipment, and expertise that a world class scientific team can oversee and evaluate the samples being collected, working and training local scientists to build capacity long after the international scientists have left.
Bearing in mind that the Cosco Busan’s settlement was $44m for a spill that was in the heavily industrial San Francisco Bay three and a half times smaller than the Wakashio in Mauritius and significantly smaller than the risk from theSafer tanker off the coast of Yemen and the environmentally sensitive Red Sea with some of the last remaining Pristine Corals, the investment in the right internationally renown scientific team early on could immensely strengthen any case during arbitration.