BP Oil Spill Law Blog

According to the GCCF's Eligibility Criteria for Emergency Advance Payments,

The GCCF anticipates that most submitted claims will be for Lost Profits or Impairment of Earning Capacity.

The GCCF will apply industry-specific criteria in determining the appropriate amount of emergency compensation, including factors like seasonality. Every claim will receive individual consideration and be evaluated on case-specific facts.

Claimants with losses that are closely tied to injury to real or personal property, or natural resources, resulting from the Spill-such as fishermen whose fishing grounds are closed and hotels located on oiled beaches-will receive an emergency payment for the full amount of the claimant's losses for either one month or up to six months where the claimant can establish that six months of loss will be incurred. Claimants have the choice to file for a one-month (or multiple up to six months) payment.

Economic losses which are more remote, or occurred at a location more distant from the Spill, are less likely to be fully compensated. In determining eligibility, and how much compensation is appropriate for such eligible claims, the GCCF will take into account geographic proximity to the Spill, the nature of the claimant's job or business, and the extent to which the claimant's job or business is dependent upon injured property or natural resources. Each of these factors will be weighed in the initial assessment of a claim.

Geographic proximity will primarily be based on whether the claimant's loss occurred in a community or municipality adjacent to a beach, shoreline, marsh, bay or tributary of the Gulf where oil or oil residues came ashore or appeared in the waters. Determinations regarding proximity focus on where the claimant's work or business activity takes place (or normally takes place) - not an individual's or business's mailing address.

The nature of the claimant's business will be evaluated based on the information provided by the claimant, such as whether the claimant is in the seafood processing industry, a supplier of commercial fishermen, a supplier of recreational users of the waters of the Gulf, or a tourist-oriented business such as a motel.

Based on the weighing of these factors, the GCCF will make an initial assessment of whether the claimant is eligible to receive compensation, and what amount of a claim for Lost Profits or Impairment of Earning Capacity is compensable. Claimants are encouraged to submit documentation that helps the GCCF evaluate these factors. The GCCF will review every claim, and a claimant that demonstrates special circumstances at variance with the weighing system will receive fair and careful consideration.

Protocol for Emergency Advance Payments
August 23, 2010

I. PURPOSE

This Protocol sets forth the procedure for the submission and resolution by the Gulf Coast Claims Facility ("GCCF") of claims for Emergency Advance Payments by Individuals and Businesses for costs and damages incurred as a result of the oil discharges from the April 20, 2010 Deepwater Horizon incident ("the Spill").

A. Role

The United States Coast Guard ("USCG") has designated BP Exploration & Production, Inc. ("BP"), as a Responsible Party under the Oil Pollution Act of 1990 ("OPA") for oil discharges from the Deepwater Horizon facility. Under OPA, Responsible Parties must establish a claims process to receive certain claims by eligible claimants. USCG, without in any way relieving other Responsible Parties of liability, directed BP to maintain a single claims facility for all Responsible Parties to avoid confusion among potential claimants.

The GCCF is intended to replace BP's claims facility for individuals and businesses. The GCCF (and the protocols under which it operates) are structured to be compliant with OPA. A final claim may be presented to the GCCF at any time that the facility is receiving claims. Whether or not a claim has been presented shall be governed by OPA and applicable law. All open Individual and Business claims that have been filed with the BP Claims Process will be transferred to the GCCF. BP has also authorized the GCCF to process certain non-OPA claims involving personal injury. Submission of such claims shall be wholly voluntary and participation in the GCCF shall not affect any right that the claimant would have had absent such participation unless final resolution and settlement of the claim is achieved.

B. Approach

The following non-exclusive principles apply to the operation of the GCCF:

The GCCF will evaluate all claims in a prompt and fair manner guided by applicable law.
The establishment of the GCCF does not diminish any right of any individual or business that existed prior to the creation of the GCCF; claimants have all of the same rights with respect to their various claims that they had prior to the creation of the GCCF and shall not be forced to relinquish any rights for the opportunity to seek compensation through the GCCF.

The GCCF claims process is structured to comply with OPA and apply the standards of OPA.
The GCCF is administered by Kenneth R. Feinberg ("the Claims Administrator"), a neutral fund administrator responsible for all decisions relating to the administration and processing of claims by the GCCF. This Protocol addresses only claims for Emergency Advance Payments; a subsequent Protocol will deal with all Final Claims. Under the Final Protocol, interim claims will be considered where appropriate.

II. ELIGIBILITY

Claimants who are experiencing hardship resulting from damages set forth below incurred due to the Spill may apply for an Emergency Advance Payment.

A. Removal and Clean Up Costs

1. Who may make a claim?

Any Individual or Business that incurred costs, as a result of the Spill for the removal of oil or to prevent, minimize, or mitigate oil pollution.

2. Required Proof

The costs are for removal of oil discharged due to the Spill or that are to prevent, minimize or mitigate oil pollution from the Spill;
The costs are reasonable and necessary; and
The actions taken to remove, prevent, minimize, or mitigate oil pollution were approved by the Federal On-Scene Coordinator or are otherwise proven to be consistent with the National Contingency Plan.

3. What information should the claimant submit?

Information or documentation (e.g., bills) showing the costs incurred after the Spill for removal of oil discharged as a result of the Spill or incurred to prevent, minimize, or mitigate oil pollution from the Spill.
Information or documentation explaining how the actions taken were necessary to prevent, minimize, or mitigate the effects of the Spill.
Information or documentation showing that the actions taken were approved by the Federal On-Scene Coordinator or were consistent with the National Contingency Plan.
Information or documentation explaining why the costs were reasonable.

B. Real or Personal Property

1. Who may make a claim?

Any Individual or Business that owns or leases real or personal property physically damaged or destroyed as a result of the Spill.

In order to avoid duplication of claims, an owner or lessee of the property must provide notice to all others with an ownership or lease interest in the property of the intent to file a claim. If duplicate claims are received, the GCCF will determine the appropriate claimant.

2. What information should the claimant submit?

Information or documentation showing an ownership or leasehold interest in the property.
Information or documentation showing the property was physically damaged or destroyed.
Information or documentation showing the damages claimed were incurred as the result of the physical damage to or destruction of the property.
Information or documentation showing the cost of repair or replacement of the property, or economic losses resulting from destruction of the property.
Information or documentation showing the value of the property both before and after damage.

C. Lost Profits and Lost Earning Capacity

1. Who may make a claim?

An Individual or Business that incurred a loss in profits or earning capacity due to the injury, destruction, or loss of real property, personal property or natural resources as a result of the Spill. The individual or business need not be the owner of the injured property or resources to recover for lost profits or income.

2. What information should the claimant submit?

Identification of injury, destruction, or loss to a specific property or natural resource.
Information concerning Claimant's lost earnings or profits that were caused by the injury, destruction, or loss of specific property or natural resource as a result of the Spill (such as lost income by a fisherman whose fishing grounds have been closed or a hotel or rental property that has had decreased profits because beaches, swimming, or fishing areas have been affected by the oil from the Spill).
Reduction of earnings or profits, or increase in expenses resulting from such damage.
Amount of profits and earnings or expenses in comparable time periods.
Income received from alternative employment or business during the period when the loss was suffered, and expenses incurred in generating the alternative income.
Savings to overhead and other normal expenses not incurred as a result of the Spill.

D. Subsistence Use of Natural Resources

1. Who may make a claim?

Any Individual who uses the natural resources that have been injured, destroyed or lost as a result of the Spill to obtain food, shelter, clothing, medicine, or other subsistence uses.

2. What information should be submitted?

Identification of the specific natural resources that have been injured, destroyed or lost as a result of the Spill for which compensation for loss of subsistence use is being claimed. The Claimant need not own the affected natural resource.
Description of the actual subsistence use made of each specific natural resource.
Description of how and to what extent the subsistence use was affected by the injury to or loss of each specific natural resource as a result of the Spill.
Description of expenditures made to replace or substitute for the subsistence use.

E. Physical Injury /Death

1. Who may make a claim?

A claim may be made by an injured individual or the representative of a deceased individual for a physical injury or death proximately caused by the Spill or the explosion and fire associated with the Deepwater Horizon incident, or by the clean-up of the Spill.

Submitting a physical injury or death claim to the GCCF is entirely voluntary. However, unlike claims under the Oil Pollution Act, claims for physical injury and death cannot be submitted to the National Pollution Funds Center.

2. What information should be submitted?

Medical records or death certificate demonstrating physical injury or death.
Medical records reflecting diagnosis by a medical practitioner.
Information concerning the cause of physical injury.
Information concerning the circumstances of the physical injury and the location where the physical injury occurred.
Information concerning any total or partial disability of the Claimant.
Records showing expenditures for medical care not otherwise compensated.
Proof of lost income, if the Claimant seeks compensation for such lost income.

F. Causation

The GCCF will only pay for harm or damage that is proximately caused by the Spill. The GCCF's causation determinations of OPA claims will be guided by OPA and federal law interpreting OPA and the proximate cause doctrine. Determinations of non-OPA claims will be guided by applicable law. The GCCF will take into account, among other things, geographic proximity, nature of industry, and dependence upon injured natural resources.

III. FILING FOR AN EMERGENCY ADVANCE PAYMENT

A. Equal Access and Fair Adjudications in the Claims Process

All potential claimants will be treated with respect, dignity, and fairness, without regard to race, color, sexual orientation, national origin, religion, gender, or disability. The GCCF shall strive to ensure that all claimants can equally access the GCCF process, and that claims will be adjudicated fairly. Individuals with disabilities will be able to effectively communicate their claims and problems to the GCCF. Individuals with language barriers will have meaningful access to the process and to the GCCF. Individuals with low literacy will have documents and forms explained to them plainly and in a simple manner they understand.

B. Claim Form

1. The Claimant will indicate on the Claim Form if the Claimant is applying for an Emergency Advance Payment. Claimants will complete a Claim Form for an Individual or Business.

2. Claimants shall submit the documentation requested on the Claim Form for an Emergency Advance Payment or other similar information as is sufficient to substantiate the claim and for the GCCF to review and process the Claim.

C. Process for Filing a Claim for an Emergency Advance Payment

A Claim Form may be obtained and submitted in any one of the following ways:

1. Via the Internet - Claimants may submit a claim online by visiting the GCCF website: www.gulfcoastclaimsfacility.com. Claimants will be instructed to follow simple steps for completing a claim. Once completed, the claim will be automatically submitted to the GCCF Database, a printable confirmation notification will be generated and displayed immediately confirming submission and providing the Claim Number and a confirmation email will be sent to those Claimants who have provided email addresses. The Claim Number will be the claim identifier throughout the process. The Claim Form and Instructions will be available in English, Spanish, Vietnamese and Khmer.

2. By Visiting a GCCF Claims Site Office - Claimants may visit one of the 36 Claims Site Offices established to assist Claimants with the claims submission process to (1) seek information about filing a claim or to (2) submit a claim in person. Claimants may either walk in to one of the Claims Site Offices or may make an appointment by calling the toll-free telephone line. The locations of the Claims Site Offices are posted on the GCCF website, www.gulfcoastclaimsfacility.com. If a visitor requires an interpreter and an interpreter is not available on site, the Claims Evaluator will make arrangements to provide these services either via conference call or a scheduled return trip to the Claims Site Office. A Claims Evaluator will assist the Claimant in completing the Claim Form. The Claims Evaluator will print a copy of the Claim Form, the claimant will sign the Claim Form and the claim will be automatically submitted to the GCCF Database. A confirmation of the claim submission and Claim Identification Number will be provided by the Claims Evaluator. The Claim Form must be signed by the Claimant.

3. Via U.S. Postal Service - Claimants may call the toll free, dedicated telephone line to request that a Claim Form be mailed via U.S. Postal Service. The Claims Operator will ask the caller to provide basic information which the Claims Operator will enter into the on-line system. The system will automatically generate a unique, pre-populated and bar-coded Claim Form which will include the identifying information provided by the caller. The Claim Form will contain a Claim Identification Number which will be the Claim identifier through the course of the process. The coded Claim Form will be mailed via U.S. Postal Service to the Claimant. The Claim Form must be signed by the Claimant. The Claimant may return the completed form via:

U.S. Postal Service:

Gulf Coast Claims Facility
P. O. Box XXX
Dublin, OH 43017-4958

Overnight, Certified or Registered Mail:

Gulf Coast Claims Facility
5151 Blazer Parkway, Suite A
Dublin, OH 43017-4958

Fax: 1 866 682-1772

Email: info@gccf-claims.com.

The toll-free telephone lines are as follows:

Toll Free Number: 1-800 916-4893
Multilingual Telephone Line: 1-800 916-4893
TTY Telephone Line: 1-866 682-1758
All submitted Claim Forms, regardless of the method of submission, will be automatically forwarded to the Central Processing Database and integrated into a comprehensive GCCF Database.

D. Appointment with a Claims Evaluator

The Claimant may request an appointment with a Claims Evaluator at the nearest Claims Site Office to answer or clarify issues regarding a claim for an Emergency Advance Payment. The Claims Evaluator will review the claim for completeness and eligibility and may contact the Claimant to request additional supporting documentation if necessary or if the Claims Evaluator has any questions about the information submitted with the Claim Form. Examples of information and documentation that support a claim are attached as Exhibit A.

E. Evaluation of Application for Emergency Advance Payment

1. Evaluation of an Emergency Advance Payment application will apply a less rigorous standard for required corroboration than evaluation of a claim for Final Payment. Documentation sufficient to establish the claim will be described in the Claim Form.

2. Each Emergency Advance Payment application will be evaluated preliminarily within 24 hours of receipt of the completed form and supporting documentation to determine whether an Emergency Advance Payment is appropriate based on the information submitted by the Claimant. Complex business claims submitted for an Emergency Advance Payment will be evaluated preliminarily within 7 days of receipt of the completed form and supporting documentation to determine whether an Emergency Advance Payment is appropriate based on the information submitted by the Claimant.

3. Upon a determination that the Claimant is eligible for an Emergency Advance Payment, a payment will be authorized within 24 hours.

F. Period for Application for Emergency Advance Payment

1. Emergency Advance Payment applications may be submitted on a monthly basis. Emergency Advance Payment applications for Lost Profits and Lost Earning Capacity, Loss of Subsistence Use of Natural Resources, or loss of income due to physical injury or death may be submitted either on a monthly basis or for six months of losses, at the option of the Claimant. Claimants seeking an Emergency Advance Payment on a six month basis must establish that they will incur loss for the six month period. To the extent possible, six month payments will be based on the seasonally adjusted lost income or lost profits, as applicable.

2. Emergency Advance Payment applications may be submitted during the period August 23 - November 23, 2010. After that date, applications for Emergency Advance Payments will no longer be accepted. Applications for Final Claims, and in appropriate circumstances applications for interim claims, will continue to be accepted pursuant to the Protocol for Final Claims.

G. Request or Receipt of Emergency Advance Payment Does Not Waive Any Rights

Claimants requesting an Emergency Advance Payment or receiving an Emergency Advance Payment will not be asked or required to sign a release or waive any rights to assert additional claims, to file an individual legal action, or to participate in other legal actions associated with the Spill.

H. Credit Against Final Payment

Any Emergency Advance Payment made to a Claimant will be deducted from any Final Payment of a Final Claim.

IV. REPORTING

The GCCF shall provide reports of non-personally identifiable information to state, local, and federal government officials and to BP to permit an evaluation of the claims process. The GCCF shall submit to interested parties, including BP, periodic reports regarding claims made and claims determinations.

V. PRIVACY

Information submitted by a Claimant to the GCCF will be used and disclosed for purposes of: (i) processing the Claimant's claim for compensation and any award resulting from that claim; (ii) legitimate business purposes associated with administering the GCCF, including the prevention of fraud and the determination of collateral source payments; and/or (iii) as otherwise required by law, regulation or judicial process.

VI. QUALITY CONTROL AND PROCEDURES TO PREVENT AND DETECT FRAUD

A. Review of claims

For the purpose of detecting and preventing the payment of fraudulent claims and for the purpose of accurate and appropriate payments to Claimants, the GCCF shall implement procedures to:

1. Verify and authenticate claims.

2. Analyze claim submissions to detect inconsistencies, irregularities, and duplication.

3. Ensure the quality control of claims review procedures.

B. Quality Control

1. The GCCF shall institute periodic quality control audits designed to evaluate the accuracy of submissions and the accuracy of payments.

2. The GCCF shall engage an independent outside accounting firm to perform an independent test of claims to ensure that the claims have been accurately processed.

C. False or Fraudulent Claims

Each Claimant will sign a form at the time of application, stating that he or she certifies that the information provided in the Claim Form is true and accurate to the best of his or her knowledge, and that he or she understands that false statements or claims made in connection with that application may result in fines, imprisonment, and/or any other remedy available by law, and that suspicious claims will be forwarded to federal, state, and local law enforcement agencies for possible investigation and prosecution. The GCCF shall refer all evidence of false or fraudulent claims to appropriate law enforcement authorities.

Additional Resources:

GCCFUnderstandingEmergencyAdvancePaymentProtocol.pdf

GCCFEmergencyAdvancePaymentProtocol08_23_2010.pdf

A Vietnamese American Voluntary LAW CORP Points Out The Following Eleven Issues It Has With the BP Oil Spill Draft Protocol:

• The GCCF steps into the shoes of BP, and therefore its claims procedure must meet all applicable requirements of the OPA.
• Under the OPA, the 90-day period for BP to honor a claim began to run when a claimant first submitted its claim to BP, and cannot reset by the GCCF.
• As an agent of BP, the GCCF is not in a position to advise a potential claimant whether or not to file a claim.
• A claimant is entitled under the OPA to make a claim for a sum certain, and any acceptance for a lesser amount does not preclude the claimant from pursuing future recovery for unrecovered amounts with the NPFC or through litigation.
• The requirement that a claimant sign a general release of all rights and claims the claimant may have is contrary to the OPA.
• The Draft Protocol's absolute limitations period is inconsistent with the OPA's limitations period, which incorporates the "discovery rule."
• Advance Emergency Payments under the Draft Protocol do not equate to Interim Payments under the OPA, which allows a claimant to make successive Interim Claims.
• A claimant is not required to make non-OPA claims to the GCCF, and settlement of OPA claims have no preclusive effect on non-OPA claims.
• Under the OPA, a claimant is entitled to interest on late paid claims.
• The OPA is a strict liability statute that does not require that a claimant show "proximate cause" in order to recover damages.
• The OPA allows a claimant to submit non-traditional alternative documentation to prove a claim.

Source:

Vietnamese American Voluntary Law Corps Problems With BP Oil Spill Protocol.pdf

You must complete a GCCF Claim Form if you intend to apply to receive Emergency
Advance Payments or a Final Damages for you damages or losses through the GCCF. Please remember this is a voluntary program.

Should you have any questions regarding the GCCF claims process, you should not delay in speaking with your BP Oil Spill Lawyer to protect your interests as you may be facing very important legal deadlines.

Gulf Coast Claims Facility Claim Form- Download Gulf Coast Claims Facility Claim Form.pdf

Gulf Coast Claims Facility Claim Form Instructions- Download Instructions_GCCF_ClaimForm.pdf

Gulf Coast Claims Facility Frequently Asked Questions

BP will transfer responsibility for individual and business claims relating to the BP Oil Spill to the Gulf Coast Claims Facility (GCCF) on August 23.

In order to clarify the next steps and to ensure an orderly and efficient transfer of files and data, BP announced the following:

• BP will accept new claims into its system through Wednesday, August 18. From August 19 - 22, individuals and businesses will be asked to file a claim when the GCCF is operational on August 23.
• BP's Immediate Action Claims Team will continue to operate through Sunday, August 22, for existing claimants only. This team can be contacted at (800) 573-8249 and will work with those who have real emergencies with regard to an existing claim.
• Government entity claims will continue to be handled by BP's claims team. Effective August 23, the contact information for government entity claims is: online, www.bp.com/governmentclaims; by email, governmentclaims@worleyco.com; by mail, Government Entity Claims and Funding Requests, 1905 W. Thomas Street; Suite D-358, Hammond, LA 70401; by phone, (877) 710-4064; and by fax, (800) 810-5650.

A report released today by the Georgia Sea Grant and the University of Georgia concludes that up to 79 percent of the oil released into the Gulf of Mexico from the Deepwater Horizon well has not been recovered and remains a threat to the ecosystem.

The report, authored by five prominent marine scientists, strongly contradicts media reports that suggest that only 25 percent of the oil from the Deepwater Horizon oil spill remains.

Source:

UGA Sea Grant Report

In a Friday, August 13, 2010 interview with Bloomberg, Kenneth Feinberg made the following points regarding BP Oil Spill Claims:

Geographic Consideration: "The farther away you are from the Gulf and the Gulf shore the less likely it is that you will have a valid claim," "But I will take a look at each claim."
Hotels that are 50 miles (80 kilometers) inland are unlikely to be compensated for tourism losses.

Realtors: Feinberg said he has set aside a "modest amount," which he didn't disclose, to compensate the Gulf region's Realtors for lost sales, rent and commissions.

Academics and environmentalists to assess damage: Independent academics and environmentalists will join government officials to help assess the spill damage so that each claim is judged by the same criteria.

Source:

BP Spill Claims From 50 States Confront Administrator Feinberg

While clean up workers continue efforts to plug the Deep Horizon oil well once and for all, Louisiana's delicate wetlands continue to suffer. The wetlands are a vital part of the ecosystem, providing a habitat to much of Louisiana's wildlife and a natural buffer against strong storm surges. Because much of Louisiana's 7,700 miles of shoreline is composed of wetlands and marshes, the spill related damage to the ecosystem has been substantial. Dead vegetation, oily water, blackened marsh grasses, and soiled dirt offer an alarming postcard from the state's endangered bayous as each tide brings another wave of oil pollution. The fragility of the wetlands makes many clean up efforts futile as further degeneration is caused by walking on the oil soaked grass and removal of soiled vegetation destroys the roots that prevent marshland from eroding into the open water. While strategies for wetland cleanup have included controlled burns, fresh water flushes, and even an unsuccessful attempt to clean stained grasses with pads resembling large Q-tips, the wetlands present a conundrum to scientists.

" [The wetlands] are so sensitive that they succumb to the oil spill impacts, but you can't go in and clean them up because you cause more damage," said Wes Tunnell, associate director of the Harte Research Institute for the Gulf of Mexico Studies in Corpus Christi.

Like Tunnell, many scientists favor a hands-off approach to wetland restoration, believing that time and Mother Nature's natural microbes offer the best hope for the damaged wetlands.

With over 2,300 miles of wetlands lost in the last seventy years, Louisiana marshlands are disappearing at an alarming rate. Much of the wetland depletion has been worsened by harmful land-use practices as levees and canals built to control flooding and maintain oil and gas industry pipelines have had detrimental ecological effects on the ecosystem. With relatively little scientific knowledge of the long-term effects of such a massive oil spill on coastal marshlands, the resiliency of Louisiana's wetlands will again be tested.

Sources/Further information:

Oil spill effects on nature in pictures

Interactive map of areas affected by oil spill

According to recent news reports, BP, the Responsible Party, plans to file its own claim with the the Gulf Coast Claims Facility and/or the National Pollution Funds Center to pay for its own Oil Spill expenses of at least $4.5 billion. As ridiculous as this may sound, apparently claims may be made by the Responsible Party ("RP") under certain limited circumstances.

Oil Pollution Act Section 1008 (33 U.S.C. 2708) provides that a RP may assert a claim for removal costs and damages only if the RP demonstrates that the RP is entitled to a defense to liability under Section 1003 or to a limitation of liability under Section 1004.

Sources:

Claimant's Guide NPFCClaimantGuide.pdf

Responsible Party Claims Submission

The Judicial Panel on Multi District Litigation announced today that it has assigned U.S. District Judge Carl Barbier in New Orleans to preside over lawsuits related to the BP Oil Spill.

Upon careful consideration, however, we have settled upon the Eastern District of Louisiana as the most appropriate district for this litigation. Without discounting the spill's effects on other states, if there is a geographic and psychological "center of gravity" in this docket, then the Eastern District of Louisiana is closest to it. Considering all of the applicable factors, we have asked Judge Carl J. Barbier to serve as transferee judge. He has had a distinguished career as an attorney and now as a jurist. Moreover, during his twelve years on the bench, Judge Barbier has gained considerable MDL experience, and has been already actively managing dozens of cases in this docket. We have every confidence that he is well prepared to handle a litigation of this magnitude.

John G. Heyburn II, chief judge for the panel wrote in today's five-page decision.

Sources:

TRANSFER ORDER- IN RE: OIL SPILL BY THE OIL RIG "DEEPWATER HORIZON"
IN THE GULF OF MEXICO, ON APRIL 20, 2010 (MDL Docket No. 2179.) MDL-2179-Transfer_Order.pdf

BP established the Deepwater Horizon Oil Spill Trust to pay Damage claims owed by BP for claims resolved by the Gulf Coast Claims Facility (the "GCCF"), final judgments or settlement agreements that are resolved outside of the GCCF process and relate to the Oil Spill, natural resource damage costs (including assessment costs) pertaining to the Oil Spill ("NRD Claims") and state and local government response costs pertaining to the Oil Spill ("Government Response Costs")

Source:

DEEPWATER HORIZON OIL SPILL TRUST Trust Agreement.pdf

As BP prepares for a deluge of spill related lawsuits, contractual agreements with scientists hired to access the extent of the damage and provide expert testimony will be under close scrutiny. A July 29th letter written by the House Committee on Energy and Commerce Chairman Henry A. Waxman and Rep. Edward Markey to BP America Chairman Lamar McKay warns that "any effort to muzzle scientists or shield their findings" will not be tolerated.

Concerns over the transparency of scientific data and suppression of scientific testimony arose as a result of an investigation led by the House panel and recent media reports. Information alleging that BP has retained only those scientific experts agreeing to contractual confidentiality agreements led the Committee on Energy and Commerce to request timely access to "copies of all contracts that BP has executed with any third party consultant, scientist, or academic... relating to assessing the environmental and health impacts of the Deepwater Horizon oil spill or restoration efforts in the Gulf of Mexico".

BP's corporate influence on research has also come under recent inquiry. Last week, California congresswomen Lois Capps and Lynn Woolsey urged BP to allow the National Academy of Sciences to take over management of its Gulf of Mexico Research Initiative, citing the need for " a rigorous peer review process" of research proposals. UC Berkeley is currently engaged in a 10 year, $500 million dollar contract with BP's Gulf of Mexico Research Initiative and has received heated criticism from students and staff who feel the corporate influence of BP compromises research validity. BP spokesman Steve Rinehart responded to complaints that Initiative scientists are contractually prohibited from releasing their research findings for three years stating, "We have asked that they limit public discussion of the dealings they have directly with our attorneys ... or the projects directly done for BP. They are free to discuss environmental or other data."

Reminding McKay and BP that " the disaster in the Gulf of Mexico is not a private matter", the Committee's letter stressed the importance of " an open exchange of scientific data and analysis" for the full recovery and future development of the Gulf environment.

More information/Sources:

BP's scientific integrity is questioned

A copy of the Committee's letter to McKay McKay.BP.2010.7.29.pdf

Why no campus protest over Berkeley-BP connection?

BP recently promised to expedite business claims. Coincidentally, this offer comes at a time when many Gulf Coast business owners have completed the Oil Pollution Act presentment requirement and are now authorized to sue BP.

BP's Tuesday news released said changes are being made to reduce paperwork and expedite payments to "businesspeople who are suffering."

Under the Oil Pollution Act, there is a 90 day presentment requirement where the claimant is required to present the damages claim to BP prior to filing suit in court. Many disgruntled business owners who have met their presentment requirement and still haven't been adequately paid are considering hiring lawyers to file suit. Perhaps BP is trying to manipulate the situation.

According to a Congressional investigation led by Massachusetts Rep. Edward Markey and the Energy and Environment Subcommittee, the U.S Coast Guard may be to blame for the haphazard use of thousands of gallons of chemical dispersants to break up oil slicks in the Gulf. According to government and BP documents, the U.S Coast Guard approved 74 requests for dispersant use over 48 days even after a federal order to stop the use of chemical dispersants on surface waters "except in rare cases were there might have to be an exception " was imposed at the urging of the EPA in late May. The EPA Directive instructed BP to "reduce the overall volume of dispersant used by 75% from the maximum daily amount used and to limit subsurface application to no more than 15,000 gallons a day" and required the submission of exemption requests to the U.S Coast Guard for consideration.

Despite concerns over the long-term effects of the toxic chemicals on the aquatic environment and the existing federal restriction, Markey's investigation maintains that the U.S Coast Guard routinely approved requests for the application of between 6,000 and 10,000 gallons of chemical dispersants a day, amounting to the overall use of hundreds of thousands of gallons of potentially toxic chemical dispersant on surface waters. Despite EPA concerns that the "exemption requests do not meet the requirements of the May 26th Directive", the U.S Coast Guard consistently approved exemption requests upon reception, even pre-authorizing requests for the use of dispersants up to a week in advance in some instances.

According to Markey, blatant discrepancies between the volumes of dispersants BP petitioned the U.S Coast Guard for and the figures for the actual volume of surface water dispersant used presented to the U.S Congressional staff exist. In his July 30th letter to Thad Allen, the retired U.S Coast Guard Admiral leading the response to the oil spill, Rep. Markey questioned the USCG's approval of exemption requests, inquiring what "rare circumstances" a-typical of a large scale oil spill necessitated such immediate approval.

In his letter, Markey stated that " the May 26th EPA Directive has become more of a meaningless paperwork exercise than an attempt to abide by the Directive and eliminate surface application of chemical dispersants" and requested a full response to the Subcommittee's findings by August 20,2010. So far, Allen has defended the approval of the exemption waivers, citing the overall decrease in chemical dispersants following the May 26th Directive and defending the use of dispersant as a "tactical" decision.

More information:

Rep. Markey's letter to Thad Allen 07-30-10ejmtocgdispersants.pdf

Despite Rule, BP Used Dispersant, Panel Finds

U.S. government scientists estimate that 4.9 million barrels of oil have flowed from the Macondo will since April 20.

In addition to $20 plus billion dollars BP owes under the Oil Pollution Act, up to an additional $20 billion is owed under the Clean Water Act.

Under the Clean Water Act, fines range from $1,100 a barrel spilt to as high as $4,300 per barrel, if gross negligence is proved.

Sources:

U.S. Scientific Teams Refine Estimates of Oil Flow from BP's Well Prior to Capping

The Clean Water Act of 1990- Liability of Offshore Facilities