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Tuesday, July 23, 2019

Fifth Circuit allows federal safety board review of Deepwater Horizon incident

By Louisiana Record reports | Sep 19, 2014

NEW ORLEANS – The U.S. Chemical Safety and Hazard Investigation Board will be allowed to conduct an in-depth investigation into Transocean’s role in the 2010 explosion of the Deepwater Horizon oil rig.

The U.S. Fifth Circuit Court of Appeals issued a 2-1 opinion on Sept. 18 agreeing that the U.S. Chemical Safety and Hazard Investigation Board (CSB) has the jurisdiction and authority to carry out five subpoenas that were originally issued in 2010 and 2011.

The CSB is a federal entity independent of the Environmental Protection Agency and the Occupational Safety and Health Administration that investigates industrial chemical accidents and submits proposals in attempt to prevent such incidents in the future. The CSB is independent from both the executive and legislative branches of the federal government.

A district court initially granted the CSB’s authority to investigate the incident based on the release of airborne gases in the oil rig explosion, but Transocean appealed the decision saying that the CSB did not have the proper authority to examine the issue as it was an offshore marine incident. The U.S. government intervened on the CSB’s behalf and filed the initial petition on behalf of the CSB compelling Transocean to allow access to necessary records as the oil rig fell under the requirements of the Clean Air Act. However, Transocean argued that CSB’s jurisdiction is limited to stationary sources and said that because an oil rig is a vessel it cannot be considered stationary and it should solely be under the jurisdiction of the National Transportation Safety Board.

Judge Thomas Morrow Reavley wrote the opinion and was joined by James E. Graves Jr. Reavley wrote that much of Transocean’s argument was mainly textual and hinged on a single sentence within the existing statute regarding CSB’s authority.

“Transocean’s argument is textual, and it is primarily based on the statutory provision noted above that the CSB ‘shall not be authorized to investigate marine oil spills, which the National Transportation Safety Board is authorized to investigate,’” the opinion reads.

Reavley goes on to say that the CSB is directed to investigate any accidental release that causes a fatality or serious injury and that the statute surrounding the CSB should be looked at in its entirety.

“We believe that looking at the full text of the statute, rather than one isolated clause, along with the statute’s structure and its public safety purpose shows that the comma-which clause was not intended to preclude the CSB from investigating all incidents involving marine oil spills,” the opinion reads.

Judge Edith Jones was the only one on the panel to side with Transocean. In her dissent she wrote that the incident was the first in her 20 years on the appeals court that the CSB had asked to investigate an oil spill and that the National Transportation Safety Board was actually responsible for such an investigation.

Hillary J. Cohen, CSB communications manager, released a statement following the announcement of the opinion by the Fifth Circuit.

“The CSB’s investigation has been taking a broad look at the causes of the blowout and explosion. Volumes 1 and 2, published in June of this year, provided new insights into how and why the BOP was unable to stop the flow of hydrocarbons from the well and made recommendations for improvements in the management of all safety critical elements. Issues to be explored in the final volumes include offshore risk management approaches, regulatory changes since the incident, and any additional safety improvements that may be warranted. Human, organizational, and regulatory factors will be explored,” the statement reads.

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