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Part one of the digest of diaries is here and part two is here.
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It's not just a can of worms that has been opened...it's a fifty-five-gallon DRUM of worms!
Louisiana court rules BP's Gulf oil spill compensation fund is not independent.Louisiana Federal Court Judge Carl Barbier ruled last night that BP can no longer call the administrator of its $20bn Gulf spill claims fund "independent", which could endanger BP's repeated attempts to cap liabilities following the spill. Barbier said that BP must spell out in all future communications that the claims fund and its administrator, Kenneth Feinberg, are acting on behalf of BP in fulfilling its legal obligations under the Oil Pollution Act. Some lawyers say that the ruling could invalidate the promise made by 87,000 claimants who have received a lump sum payout from the fund that they would not seek further damages from BP in the courts.
Feinberg, who was appointed last summer by the White House to take over the claims process, has advised individuals and businesses seeking compensation that they do not need their own lawyer to agree a payout. In television interviews and town hall meetings across the Gulf, he has repeatedly said that claimants would be better off receiving a lump sum payment from the fund rather than seeking compensation through uncertain and lengthy legal action.
He, the US government and BP have all described the fund he administers, the Gulf Coast Claims Facility (GCCF), as "neutral" and "independent".
Yeah, right. How's that working out for you?
BP also is now obliged to tell claimants that they have the right to consult a lawyer and add their names to the many US lawsuits being prepared to seek damages independently of the fund.
One attorney representing spill claimants said that the ruling could result in the 87,000 settlements being re-examined.
Kevin Dean of Motley Rice in South Carolina told Bloomberg: "It's not a can of worms. It's a 55-gallon drum of worms." He added his firm would start to contact clients who had accepted settlements from the claims fund to "tell them of their rights".
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And more debatable pronouncements issue from the mouth of Kenneth Feinberg... Gulf of Mexico 'to recover from BP oil spill by 2012' By that time, most of the harmful effects of the worst offshore oil spill in US history will have dissipated and the economy should have picked up, said Kenneth Feinberg, independent administrator of the Gulf Coast Claims Facility (GCCF) However, Judge Barbier's ruling could extend the legal wrangling with BP for much longer than 2012.
"For every claimant who is eligible other than oyster harvesters, we believe at the GCCF that it is reasonable to conclude full recovery by the end of 2012. There will be gradual recovery over the next two years," Feinberg said.
"Document any claims and we will double it minus the offset," he told a news conference.
But for oyster fishermen the figure would be four times the amount of documented damages sustained in 2010 because of uncertainty over the rate of recovery of that industry.
Many angry Gulf coast residents say the compensation fund has short-changed them and favored BP's interests over their own. They also argue BP is attempting to wriggle out of its commitment to "make this right" for spill victims.
The fund was set up in an agreement between the White House and BP to pay the thousands of businesses and individuals who suffered economic damage. It has so far disbursed around $3.5bn, Feinberg said.
One difficulty it faces is to assess future economic losses given uncertainty about the pace of economic and environmental recovery on the coast.
To make the judgment involves wading into a series of scientific disputes and Feinberg said he "canvassed the universe" in terms of experts and used considerably a report by a marine biologist at Texas A&M University.
But he acknowledged a degree of uncertainty and encouraged dissatisfied potential claimants not to apply.
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Feinberg explains final payment amounts to claimants of the spill. Most eligible oil spill claimants will be paid twice their 2010 damages if they apply for a final payment from BP, except for oyster harvesters, who will be offered four times their documented losses from last year, said Kenneth Feinberg.
He said final payments will be based on documented actual losses, plus an assumption of future losses. That additional amount will be equal to twice the 2010 losses for all qualified claimants. The exceptions are oyster harvesters, who will get four times their 2010 losses, and claimants with more than $500,000 in damages. The larger claims will get individual assessments of future losses to determine final payments.
Also, for the first time Wednesday, Feinberg said that he'll pay for damage to oyster beds caused by the freshwater diversions ordered by Gov. Bobby Jindal's administration to combat the oil spill. There had been a question as to whether damage from the freshwater would be considered eligible claims.
Feinberg said his methodology assumes that 2011 losses will be 70 percent of actual losses in 2010, and 2012 losses will be 30 percent of the 2010 damages. Oyster beds will generally require a longer recovery period, thus supporting a payment of four times a harvester's 2010 loss, he said. Feinberg, who hopes to begin paying interim and final claims around Feb. 18, invited those who want to challenge his calculation methods to do so during the next two weeks. If comments are persuasive, he said he could consider altering his methodology. He also promised to reassess oil-spill impacts every four months.
So far, more than 91,000 individuals and businesses have filed final claims. Only one, a retail business near Houston, has been paid. GCCF has said it simply processed that $10 million settlement, which was negotiated separately by BP and the unnamed claimant in December.
Feinberg said final payment claims will be reviewed independently of the emergency claims a person or business may have filed last year. Even if they received emergency payments for lost income that coincided with the oil spill period, claimants will now have to document exactly how the loss was due to the spill.
"If the claimant can demonstrate a sufficient link between the spill and the damage, we will pay it. But all signs point to the Gulf region recovering at the present time and, therefore, documentation of ongoing damage will be critical to proving the legitimacy of the claim," Feinberg said.
And again, in light of Judge Barbier's recent ruling, Feinberg's confident statements may prove rather moot... |
From ProPublica: Drilling Industry Says Diesel Use Was Legal After three members of Congress reported this week that drilling companies have been injecting large amounts of diesel fuel underground to hydraulically fracture oil and gas wells, the industry is fighting back -- not by denying the accusation, but by arguing that the EPA never fully regulated the potentially environmentally dangerous practice in the first place.
According to a letter to the EPA from Henry Waxman, D-Calif., Edward Markey, D-Mass., and Diana DeGette, D-Colo., 14 fracking companies injected more than 32 million gallons of diesel fuel into the ground in 19 states between 2005 and 2009. And they did it without asking for or receiving permission from environmental regulators in those states. Diesel fuel contains benzene, a known carcinogen, which has been detected in water supplies near drilling facilities across the country.
The 2005 Energy Policy Act states that hydraulic fracturing using diesel is subject to federal regulations that protect drinking water by governing the injection of materials underground. Those injection regulations, contained in the Safe Drinking Water Act, say that companies need a permit before they put anything down a well.
By the lawmakers' reading of these statutes, the drilling companies broke the law.
But the energy companies now say there was no law to break. "We are not questioning that EPA has the authority to regulate hydraulic fracturing under the Safe Drinking Water Act if diesel fuel is being used. It's the fact that there are no rules to do that," said Lee Fuller, vice president of government relations for the Independent Petroleum Association of America and executive director of industry-funded Energy in Depth. "The regulations did not expressly address or prohibit the use of diesel fuel as fracturing fluids," he said, adding that the company phased out diesel fuel sometime before 2010. "We believe that retroactively creating a permitting requirement is clearly improper... there was nothing in the federal regulations –--it neither addressed it or prohibited it."
The Obama administration is arguing, according to court filings, that the law always obligated the EPA to enforce the Safe Drinking Water Act and that a website change articulating that policy does not amount to a change in regulations at all.
It is not yet clear whether the government will launch a criminal investigation into the diesel use reported by the three Democrats, or wait for the legal issues to be ironed out by a judge. When asked, an EPA spokeswoman would only say that the agency is still reviewing the information it received from the lawmakers.
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QUICK HITS...
Shell's Delay in Alaska Will Protect Arctic Refuge, Wildlife in 2011
In response to Royal Dutch Shell’s announcement that it would delay its drilling campaign in Alaska, Chuck Clusen, director of national parks and Alaska projects at the Natural Resources Defense Council, made the following statement:
"Shell's plan was ill-conceived from the start. Now the government can proceed with full environmental impact statements on the company’s permit to drill and its contingency spill plan. This needs to be completed before any decisions are made about opening the Beaufort and Chukchi Sea to oil and gas exploration. Shell’s announcement will protect the Arctic National Wildlife Refuge shoreline from potential damage, bowhead whale migration and the denning of polar bears and many other marine mammals."
These Fish Deserve Better
(From the Gulf Restoration Network) The BP oil drilling disaster in the Gulf of Mexico sent hundreds of millions of gallons of crude oil into the Gulf just as the spawning season for Western Atlantic bluefin tuna reached its peak. The Western Atlantic bluefin tuna is a critically endangered species due to decades of overexploitation. Just last month a bluefin tuna sold for a record $396,000 (or about $526/lb) at the the Tsukiji Fish Market in Japan.
Marine researchers are concerned:
"Any larvae that came into contact with the oil doesn’t have a chance,’’ says John Lamkin, with NOAA.
But while it’s clear that the bluefin will be affected, the National Marine Fisheries Service (NMFS) isn't doing enough to protect the fish in their spawning grounds. Please visit this page to urge them to do more.
Surface longlines catch and kill a vast amount of ocean wildlife including spawning bluefin tuna, as well as threatened and endangered sea turtles, marine fish such as white and blue marlin, and many species of seabirds.
A year-round prohibition on surface longlines is the only way to provide effective long-term protection from this indiscriminate fishing gear. The use of more selective alternatives to longlinges will allow fishermen to continue harvesting swordfish and yellowfin without further damaging bluefin populations.
Bad News For Gulf Seafood: Bioaccumulating Chemicals Found
(From the Gulf Restoration Network) Bioaccumulate is just a big word that scientists use to mean "stores up". Some chemicals flush out of our bodies very easily while others stick around for a long time. These chemicals with staying power are said to bio-accumulate. We are not alone; the same thing is true for fish and shellfish that we like to eat.
Oysters, blue crab, shrimp, and mussel collected from the Atchafalaya Bay eastward to the Louisiana/Mississippi state line contained hydrocarbons that are known to bioaccumulate in tissue.[i] The hydrocarbons Fluoranthene, Anthracene,, Phenanthrene, and Pyrene are listed as bio-accumulating on the Ecological Risk Assessment.[ii] This is very bad news. Samples have been contaminated with up to 8,815 to 12,500 mg/kg Oil Range Organic Petroleum Hydrocarbons. When we eat fish and shellfish with chemicals with staying power, then our bodies collect them too. This is not terrible if you are a young healthy man, but women of child bearing age and children should be more careful.
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PLEASE visit Pam LaPier's diary to find out how you can help the Gulf now and in the future. We don't have to be idle! And thanks to Crashing Vor and Pam LaPier for working on this!
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The last Mothership has links to reference material.
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