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OPA 90 Responder Immunity – Does the favorable decision in the Deepwater Horizon litigation really alleviate Cleanup Responders’ litigation risks?

On February 16, 2016, after five years of litigation and millions of dollars in legal fees, the US District Court for the Eastern District of Louisiana (J. Barbier) “effectively” dismissed the claims against private cleanup companies that responded to the Deepwater Horizon oil spill.  Why is the word “effectively” used in many of the headlines we are seeing about this very important decision?  Simply stated, the case is not over and legal fees will continue for the cleanup responders, but hopefully at a reduced level.  While this decision dismissed almost all of the claims (i.e. about 20,000), it also allows 11 claims to proceed.
For those in the industry (both potentially responsible parties and responders) familiar with the Oil Pollution Act of 1990 (OPA 90), it is important to note that this decision makes no reference to OPA 90’s Responder Immunity provisions.  OPA 90’s Responder Immunity has several exceptions for claims based on actions such as gross negligence or personal injury.  Since the claims against the cleanup responders in the Deepwater Horizon suit were for personal injuries, OPA 90’s Responder Immunity terms never really came into play.
So how did immunity arise in this decision?  Without the benefit of OPA 90’s Responder immunity, the judge looked to other well established immunity concepts and determined that the cleanup responders, who acted under the orders of the Federal On Scene Coordinator (FOSC) were entitled to “derivative” immunity pursuant to other federal laws including the Clean Water Act and Federal Torts Claims Act, provided the cleanup responders actions were consistent with the FOSC’s instructions.  And, there is the catch!  In reality, the 20,000 claims that were dismissed were ended more on a technicality.  Those plaintiffs never provided even very basic information about their claims that the cleanup responders did not follow the FOSC’s orders.  The 11 remaining plaintiffs that provided this minimal information can still proceed with their claims against the cleanup companies.

PCB chemical threat to Europe's killer whales and dolphins

14 January 2016
PCBs were once used in electrical gear, paints and flame retardants, but were banned from the 1970s because of their toxic effect in humans and animals.

However the manmade chemicals have persisted in the environment, and are accumulating in top predators. 

The study finds Europe's cetaceans have levels of PCBs that are among the highest found in on the oceans.

Lead author Dr Paul Jepson, a wildlife veterinarian from the Zoological Society of London, said: "For striped dolphins, bottlenose dolphins and killer whales, we have mean PCB levels that are excessive - they are really high - probably the highest in the world right now, by some way.

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A Plastic Ocean documentary

More than 8 million tons of plastic are dumped into our oceans every year. See the results in this trailer for the new adventure documentary "A Plastic Ocean”.

Chemical cleanup continues at foreclosed GR plant

February 15, 2016

GRAND RAPIDS, Mich. (WOOD) — A large vat of toxic chemicals has leaked inside a foreclosed industrial plant in Grand Rapids.
The site is at the corner of Blane Avenue and Cottage Grove SE. Last year, the Kent County Land Bank took over the closed chrome plating company due to unpaid property taxes and discovered about 100 drums containing various highly corrosive chemicals were still there.
At the site Monday, officials from the U.S. Environmental Protection Agency said some of the material had leaked into the cement. They are investigating whether it seeped out of the building. Officials say if the corrosive chemicals get into the air or water, they could lead to health problems for neighbors.

After four months, progress on removing sunken tugboat

February 1, 2016 
Four months after the 96-foot tugboat Challenger sank in Gastineau Channel, detailed efforts to remove the hulk are about to begin.
On Friday, U.S. Coast Guard Sector Juneau spokeswoman Lt. Jennifer Ferreira announced that the Coast Guard has received approval (and funding) to remove the Challenger.
“We will make it a priority to keep the community and stakeholders informed throughout this process,” said Capt. Shannan Greene, commander of Coast Guard Sector Juneau, in a prepared statement.
According to the Coast Guard, Global Diving and Salvage has been awarded the contract to remove the Challenger from the spot where it has rested, surrounded by an orange oil-spill containment boom, since Sept. 12.

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