ABSTRACT
The Water Quality Insurance Syndicate has offices in lower Manhattan in New York City, and the events of September 11th remain vivid. However, in its aftermath it was difficult to envision the broad reaching ripple effects resulting from the event. Among the effects is the clash of two major issues: the increasing use of criminal sanctions in reaction to spills of oil and hazardous substances, and the practical and emotional consequences of both possible and actual terrorist events.
For the past several years, the responsible party and its insurer have faced the use of criminal sanctions when a spill occurs. Criminal sanctions are typically used to combat intentional environmental misconduct. In the realm of oil spills, common actions may include the deliberate dumping of oil and negligence or unintentional conduct leading to a spill.
In the post 9–11 United States, the first question presented at an oil spill is not how much oil has been spilled, but rather was the spill caused by an act of terrorism?. Government officials may treat the location of an oil spill as a crime scene, which will transform and complicate a pollution event.
A recent explosion on a gasoline barge at an oil and gas storage facility in Staten Island, New York illustrates the point. A leading national newspaper devoted the first five paragraphs of its lead story on the explosion to a discussion of whether or not there was a terrorist attack
Was the clean up of that spill hampered because of the terrorism investigation? We will probably never know, because the gasoline that escaped from the barge quickly evaporated so the cleanup was minimal. The next spill, however, might be a crude oil spill where every minute in response time counts. While the shipowner is trying to minimize the spill, the F.B.I, might have already taken control of the spill scene to conduct an investigation and effectively locked out the spill responders and their equipment, greatly increasing the cost and complexity of the cleanup, the environmental damage that is done, and the possibility that the shipowner's actions are found to be insufficient, increasing the possibility of criminal sanctions.
The threat of terrorism is real. But we must now work to integrate our response to the terrorism threat to our existing spill response infrastructure that has been developed under OPA, and not unnecessarily increase a shipowner's exposure to criminal liability.