Crisis Management in a Pandemic
COVID-19 presents the oil and gas sector with several novel safety considerations.
Drilling rigs and production platforms are self-contained vessels in which workers routinely live and work in close contact. It is not uncommon, for example, for a production platform in the Gulf of Mexico to have a housing capacity for upwards of 200 people, all living in compressed quarters. Transmission could reach offshore installations through foreign-flagged vessels and mariners who service U.S. offshore rigs under exemptions from the Jones Act, on the reasoning that suitable, domestically-flagged vessels are not available.
Technological and environmental challenges also pose risks for both offshore and onshore operators that the spread of COVID-19 or another infectious disease might compound. Industry stakeholders should consider exploring whether their incident response plans are sufficiently comprehensive in light of this unprecedented pandemic.
What does the general duty to protect health, safety, property, and the environment require offshore operators to consider in a pandemic?
Federal regulations issued by the Bureau of Safety and Environmental Enforcement (“BSEE”) require offshore operators to maintain “all equipment and work areas in a safe condition” and direct them to “immediately control, remove, or otherwise correct” any health or safety hazard. 30 C.F.R. § 250.107. There does not appear to be any meaningful guidance for the application of this regulation to a pandemic, but such an interpretation is not beyond the pale given the threat that COVID-19 poses to the offshore workplace—and, by extension, to safe operations.
BSEE regulations also require offshore operators to implement Safety and Environmental Management Systems (“SEMS”) designed to enhance the safety of operations by reducing the frequency and severity of accidents. 30 C.F.R. § 250.1900. Recognizing that worker safety and pollution control are largely dependent on proper human behavior, the SEMS place a premium on the human aspects of accident mitigation. The SEMS program must include a Job Safety Analysis that, among other things, identifies health hazards and recommends actions to eliminate or reduce the risk of workplace injury or illness. 30 C.F.R. § 250.1911(b). SEMS programs must “meet or exceed the standards of safety and environmental protection” set forth in the American Petroleum Institute’s Recommended Practice 75 (“API RP 75”), which the regulations incorporate by reference. 30 C.F.R. §§ 250.198, 1902(c). API RP 75 imposes a variety of additional performance-based standards, many of which implicate “the interactions of individuals with each other”—a basic concept that has taken on new meaning on offshore rigs and platforms applying CDC-recommended social-distancing practices.
BSEE regulations further empower the agency to issue orders to shut-in operations of a facility in the United States Gulf of Mexico because of a “threat of serious, irreparable, or immediate harm to health, safety, property, or the environment. . . .” 30 C.F.R. § 250.107(d). As a practical matter, if a national self-quarantine or other restrictions limit the ability of BSEE’s 187 inspectors to oversee safety or environmental protection, then BSEE may direct a suspension of operation activities for all or part of lease or unit areas under its existing authority in 30 CFR § 250.172(b)-(c).
In the face of a COVID-19 outbreak, offshore operators may have to decide whether to suspend operations on their own accord. At least one operator suspended a project in the North Sea after a worker tested positive for COVID-19. Reports suggest that other operators have halted, reduced, or delayed non-essential activity, interrupted helicopter services, and, in some cases, quarantined suspected-infected rig workers in United Kingdom-based oil fields to reduce the risk of infection on platforms. Suspending operations could be pragmatic because keeping workers in close quarters amidst an outbreak could subject operators and insurance providers to the same kinds of legal exposure experienced by Princess Cruise Lines in connection with its alleged negligence in quarantining passengers suffering from COVID-19.
Do OPA onshore emergency response plans need to consider response during a pandemic?
COVID-19 could likewise impact incident response efforts that are unrelated to the disease itself. With this pandemic, and outbreaks of Ebola, SARS, and the Bird and Swine Flus in the not-too-distant past, onshore operators should explore whether incident response plans ought to account for such infectious diseases in the future.
Under the Oil Pollution Act, certain onshore facilities must maintain a Facility Response Plan (“FRP”) designed to prepare to respond to a worst-case discharge. 40 C.F.R. § 112.20 (non-transportation-related) & 49 C.F.R. Part 194 (transportation-related). An FRP is intended to help an owner or operator develop a response organization and ensure the availability of the response equipment and trained personnel.
Incident response plans can take for granted that all participants are together making decisions in the same incident command center, as contemplated by FEMA’s National Incident Management System. Incident-command systems place a premium on human interaction. But such close proximity may cut against the CDC’s social-distancing recommendations and may further implicate the employer’s general duty under OSHA to maintain a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654. One infected response worker (who may show no symptoms) could infect the entire incident command, which could, in turn, hamstring the initiative. Thus, preparation and workarounds—either through remote incident response or personal protective equipment—may become necessary in an effort to ensure effective incident response.
