If you’ve followed the news lately, you’ve probably noticed that a number of suits have been filed in states along the Gulf, as those devastated by the British Petroleum (BP) oil spill attempt to recover for losses to their property and livelihood. Attorneys have filed suit in Birmingham, Galveston, and New Orleans, on behalf of fishermen in the regions. While most of these suits are aimed at the worthy goal of restoring some semblance of normalcy back to the lives of the people of the Gulf region, the litigation itself may be somewhat premature.

Under the Oil Pollution Act of 1990 (OPA), which will govern BP in determining their liability, “all claims for removal costs or damages shall be presented first to the responsible party.” See 28 U.S.C. §2713. President Obama has already designated BP as a responsible party under OPA. The next step should be to file claims with BP, not to file suit against them. Once BP has notice of the claim, they have 90 days to pay for the damages before the claimant can bring litigation. In the cases brought thus far, claims have not been filed with BP because it has not even been 90 days since the April 20 Deepwater Horizon explosion. Those injured may also opt into the Oil Spill Liability Trust Fund, which may be focused mainly on removing the oil.[1]

The conclusion is that presenting a claim to a responsible party prior to filing suit is a mandatory condition precedent, and judges have dismissed OPA cases that have failed to do this. In a 1995 case, Boca Ciega Hotel Inc. v. Bouchard Transp. Co. Inc., the 11th Circuit Court of Appeals dismissed an OPA claim that was not properly made to the defendant prior to trial. Any case brought prior to this type of action should thus eventually prove unfruitful.

BP has provided individuals with a claims process through which they plan to reimburse some individuals for part of the losses they have incurred. This, however, may not be an adequate remedy for those who have suffered significant financial harm. The losses suffered by many will not be fully known or calculable for some time.

Individuals and businesses should be wary of settling claims for future injury with BP when the totality of the oil spill is not yet known. There should be little doubt that in settling these claims, BP is acting in their own best interests. Those who have suffered property or business loss from the oil spill should do the same and know the potential effects of reaching a settlement with BP, which may not take into account all damages.

The CDC (Center for Disease Control and Prevention) held a conference call today where concerned citizens across the country listened and asked important questions regarding the ongoing Gulf Oil Spill crisis. Many individuals asked questions regarding their particular affected field. Physicians, paramedics, and nurses asked the CDC how they should respond when they begin to receive patients with injuries as a result of the spill. Others asked questions about the how the various organizations are collecting and consolidating the data developing from the spill. While several of these questions were answered, many were not.

One concerned educator asked about the upcoming hurricane season and what types of new protocols are being implemented in response. The CDC was unsure. Additionally, a Louisiana Registered Nurse noted that the reports regarding the spill are currently on a voluntary basis. She expressed her concern that because the reports are merely voluntary, her facility may be negatively affected for doing the right thing and lose business as a result. A representative from the CDC said that it is unlikely that something like that would happen and companies such as BP were being very cooperative at the moment. Her response, “well I don’t really trust BP anymore.”

Importantly, one woman referred back to the September 11 air pollution levels as a result of all of the debris. At that time, the government reassured the public that the pollution levels were acceptable and did not pose a risk to workers. Years later, however, it was discovered that thousands of workers involved in the cleanup have suffered long-term health issues as a result. Similarly, the cleanup efforts for the Gulf should not be taken lightly. The CDC and other government entities need to closely monitor the long-term effects that these chemicals may have on clean-up workers. Especially since many of the cleanup workers are fishermen who have already lost their economic livelihood as a result of the spill. Their health should not have to suffer as well.

If you have a question regarding the oil spill that you believe the CDC can help assist you with, please contact the CDC at their website or through email at coca@cdc.gov.

If you need assistance from Poison control, please call 1-800-222-1222.

The CDC also recommends visiting NOAA’s (National Oceanic and Atmospheric Administration) website for further information.

Much has been reported over the last several weeks about the Oil Pollution Act of 1990 (OPA) and how it relates to the Deepwater Horizon oil spill. Discussion has mainly centered on the part of the law that might limit British Petroleum’s (BP) liability to $75 million. U.S. Senators, with the initial support of President Obama have even gone so far as to seek passage of a retroactive bill that would raise the liability cap to $10 billion. Senators on both sides of the aisle have blocked these efforts, showing concern that doing so may prevent smaller companies from operating offshore drilling rigs. Nevertheless, whether Congress is able to raise the level of liability may not matter, as certain provisions are likely to allow claimants to “break the cap.”

Under OPA, BP would be required to pay for all removal costs plus up to $75 million in damages. BP has already spent $1 billion in cleanup costs, and investors believe cleanup will likely total well over $10 billion. If OPA forces BP to pay for the entire cost of cleanup, the question then becomes whether they will be obligated to pay for damages sustained by those who live on the Gulf. The answer, perhaps somewhat surprisingly, is that BP’s actions on and prior to the April 20 explosion may make them liable for damages in excess of the $75 million cap.

In order to break the cap, claimants must show that the incident was proximately caused by,

• (A) gross negligence or willful misconduct of, or
• (B) the violation of an applicable Federal safety, construction, or operating regulation by,the responsible party, an agent or employee of the responsible party, or a person acting pursuant to a contractual relationship with the responsible party. See 33 U.S.C. §2704(c).

With news that the Justice Department is opening both civil and criminal investigations and that President Obama has appointed a special commission, including former Florida Sen. Bob Graham and former EPA Administrator William Reilly, it appears as though some in Washington D.C. believe gross negligence or a violation of safety regulations did occur. In his testimony before the U.S. Coast Guard investigatory committee, Douglas Brown, the chief mechanic on the Deepwater Horizon, stated that BP cut corners while pushing workers to complete drilling at an even quicker pace. As if it wasn’t obvious, BP’s CEO has since admitted that their being unprepared for such a spill is “an entirely fair criticism.”

While it’s clear that BP was not prepared to handle such an event, whether their actions prior to and on April 20 rise to the level of gross negligence or a violation of Federal regulations will be left for a judge or jury to decide. If one of those exceptions can be proven, the $75 million dollar OPA cap should have no effect on what those devastated by the spill are able to recover.

Several years ago, Sandra Bullock starred in a movie Hope Floats, which was a quaint, feel-good movie about recovering from an unexpected life-altering blow and finding hope for the future in an unlikely place. If Hope Floats can be used as a phrase for life in the Gulf of Mexico waters, it arrived today in the form of a huge containment boom, which is in the process of being lowered over the largest of the three oil leaks coming from the pipeline 5,000 feet under the surface of the Gulf.

The four-story high dome, constructed of steel and concrete, must be painstakingly lowered to the floor of the Gulf and has never been attempted at the depth of the nearly three-week-old leak. The process is expected to take several days to complete, although the dome should be in place by later this afternoon.

Communities and residents from Louisiana to Florida are taking steps to protect their property; fish, oysters and other wildlife; their personal property and their economic survival from damage from the arriving oil slick, but oil has already washed ashore in Louisiana and up the delta of the Mississippi River. The main oil slick appears to be moving toward the northwest, temporarily, at least, sparing the west coast of Florida from the direct assault of the oncoming wave. Additional controlled burns of the oil at the surface have been completed this week.

Lawsuits have already been filed and a federal judicial panel in Washington has been asked to consolidate at least 65 potential class-action lawsuits claiming economic damage from the spill. Commercial fishermen, business and resort owners, charter boat captains, even would-be vacationers have sued from Texas to Florida, seeking damages that could reach into the billions.

Meanwhile, state, local and federal officials are preparing to deal with multiple health hazards for citizens if the oil reaches shore. Health risks range from assessing what illnesses or ailments might arise from exposure to the toxic slick to what effect the oil will have on seafood consumed nationwide. Officials are monitoring air and water quality and implementing plans to analyze seafood.

So, if Hope Floats, this dome works. What is at stake is multi-faceted – the livelihoods of fisherman and farmers, the eco-system of the entire Gulf, the lives of wildlife and the future of off-shore drilling and how and where it is done.

Men dressed in black cloaks secreting through the night from one house to another. Their mission: to buy off residents. To purchase rights away from widows and orphans.

This sounds more like a movie and less like real life.

When I first heard stories that BP officials were traveling around and trying to exchange releases for “cash”, my first response was that I did not believe it. I mean it’s the 21^st century, right? Companies don’t really think it is acceptable to try the shady character on the corner, “hey buddy” dodge, right?

I guess BP did not get the memo about avoiding the appearance of being really shady characters after you dump thousands of gallons of oil into one of the most treasured bodies of water on the planet.

Well, my very fragile faith in the responsibility of Corporate America has been wracked — ’cause it is true!

Apparently, BP employees were traveling around trying to get waivers of liability against the company in exchange for payments of up to $5000. What is possibly more despicable is that reports seem to indicate that the BP “black cloaks” are targeting fisherman. The very people who stand to be hurt, in many respects, the very worst, are the people BP targets first.

Sorry “Black Cloak” BP guys, if you did this, it is despicable and you should be ashamed. Announcing that BP would not hold anyone to releases they signed, after you were caught trying to take advantage, does not somehow make it any more unseemly.

As citizens, homeowners, and fisherman scramble to protect their property and livelihoods from the impending arrival of hundreds of thousands of gallons of oil, the National Guard has been mobilized as the oil slick miles in length approaches the coast. Current estimates on the amount of oil escaping from the leaking well in the Gulf of Mexico suggest that the total spill will exceed Alaska’s 1989 Exxon Valdez accident by the third week of June.

Earlier today, Bloomberg News reported, “Louisiana closed some coastal waters to shrimping and expects to close its entire eastern coastline to fishing to protect health and safety, said Randy Pausina, spokesman for the Department of Wildlife and Fisheries. Oil washed ashore on the Louisiana coastline last night, and it is predicted to hit Mississippi by tomorrow and Alabama and Florida by the end of the weekend.

“This has a danger of becoming an utter ecological disaster,” Ken Medlock, a fellow in energy and resource economics at Rice University’s Baker Institute for Public Policy in Houston, said yesterday. “This is going to result in remediation costs and is going to be burdensome, to say the least.”

States of emergency were declared by the governors of Florida and Louisiana. Earlier today, Florida Governor Charlie Crist declared a state of emergency in six Panhandle counties, saying the oil spill “threatens the state of Florida with a major disaster.” Crist’s order affects Escambia, Santa Rosa, Okaloosa, Walton, Bay and Gulf counties. Governor Bobby Jindal of Louisiana declared a state of emergency in his state Thursday.

The Disaster, now in its tenth day, came only three weeks after the decision by the Obama Administration to allow offshore drilling along a huge portion of the east coast of the United States. In an New York Times article from March 31, 2009, “But even as Mr. Obama curries favors with pro-drilling interests, he risks a backlash from some coastal governors, senators and environmental advocates, who say that the relatively small amounts of oil to be gained in the offshore areas are not worth the environmental risks.”

As the predictions of the magnitude of the disaster grow more and more dire, the White House has addressed the issue in a statement from the President, “I continue to believe that the domestic oil production is an important part [of U.S. energy policy]. “But I’ve always said it must be done responsibly, for the safety of our workers and our environment.”

The White House also announced that no additional drilling will be authorized until its determined what happened aboard the rig, owned by Transocean Ltd., White House senior Advisor David Axelrod said today on ABC’s “Good Morning America.” U.S. Attorney General Eric Holder dispatched a team of lawyers to New Orleans to meet the U.S. Attorney and spill responders.

But, is this all coming just a little too late for the residents, wildlife, fishing industry and environment of the Gulf Coast?

This Disaster is EXACTLY the environmental risk which forms the central reason for opposing offshore drilling along our coastlines. There are safer alternative energy resources to pursue in this country, ones which provide little downside to the environment, wildlife and investments of tens of thousands of residents of each state along the coastline of the Gulf of Mexico.

As a Floridian I can find no comfort as this disaster approaches our shores. I only hope that I will be permitted to help as things progress.

It is not bad enough that gas prices have risen to the point that families are regularly trying to decide not whether to buy a loaf of bread, but can we afford to drive down to the store to buy it.

Now, we have a broken oil rig sitting in the middle of the gulf, directly connected to some of the most environmentally sensitive areas in the United States.

Soon, we will begin seeing the sad pictures of dying fish, injured birds, and oil soaked animals; all struggling to stay alive.

Then comes the damage to homes and businesses along the coast. Finally, the disastrous injury to business owners dependent on the Gulf and the coastal areas for their livelihood.

Can we afford to risk the economic and environmental damage caused by Gulf coast drilling? Can we afford to risk the livelihood of honest business people because errors are made that allow hundreds of thousands of barrels of oil to escape into the Gulf? Can people afford to lose jobs and businesses?

I am not suggesting I have the answers to these questions, but this catastrophe certainly presents a time for reflection on these questions and on recent legislation passed. Can we afford to trade gas for disaster?

The way the numbers and facts are being reported is confusing.

The way some members of the community are responding to what is simply awful news is angering.

Some people are even calling the families “liars” who reported their concerns to the state.

Do such name-callers suppose that these families fabricated the number of brain tumors in the area?  The cancer cluster designation was based on the number of cases, not on the veracity of the families who dared to start the inquiry.

Let’s face it.  The Acreage has had some very bad news and there is little concrete information being provided. People are struggling with how to handle it because that’s a hard task.

The news is full of stories: an increased risk of cancer, childhood illnesses, childhood mortality, and yes, degraded home values.  None of these concerns are unimportant. It’s essentially the complete disintegration of what we call “home sweet home.”

But pretending that there is not a problem and calling those who are facing the staggering truth “liars” is an unproductive way to handle the news of the day.  It is a denial afforded by the lack of concrete information.

So let’s try a new perspective.

Yes, the newspapers and the state focus on the fives cases of female pediatric brain tumors diagnosed before 2007; this is a staggering number in particular because female brain tumors are rarer even than male pediatric brain tumors.

Let’s look at the time range that includes the first cases reported.  And let’s look at the environmental proximity, since that’s usually the focus of the inquiry into causation.    From 2005 to 2008, seven brain tumors were diagnosed within a 3.3 mile by 2.2 mile grid in the Acreage community. This is less than half the area described in the state study and includes only a portion of the population they are looking at.  The greatest distance between any two of these cases is 3749 yards.   The average case to case distance is 1894 yards.

This is how that time span breaks down:

There were 2 diagnosed tumors in 2005, separated by 1000 yards home to home.

Both of these cases are females.  (In other words, a very rare occurrence.)

In more important words, each of these cases is someone’s little girl.

There were 5 diagnosis occurring in late 2007 through 2008.

One of these was a male and all the others were females.  (In other words, still a very rare occurrence.)

In more important words, each of these cases is someone’s child.

It should be noted that  the closest of these homes is separated by a  distance of 1000 yards.

The diagnosis of the children was separated by 6 months.

Again, both of these very proximate cases were someone’s little girls.

Noone would expect to see four cases in three years, let alone 4 cases in 2008 alone.

Sure, you could broaden the geographic grid to the one as large as that on the state Department of Health web site.  After all, there were six more cases that I did not include in the numbers above, either because they fall outside the 2005-2008 time span or because they fall outside the smaller geographic grid I refer to.  4 of those were prior to 2008.  Two were after 2008.

So eleven cases of brain tumors in 2001-2008.  13 if you go to 2009… And none of these numbers considers the calls we are getting from families who have had a child diagnosed with a pediatric brain tumor within months of moving away from the Acreage.  (Not YEARS, months.)

And while each of the cases that I list so clinically above is someone’s child, and will always be someone’s child, not all of them are alive anymore.

So who is really lying to their community and who is simply lying to themselves?

The federal government’s Center for Disease Control confirmed on Monday what many have believed and feared for months — the incidence of cancer among children living in the Acreage is substantially higher than would reasonably be expected based on national statistics- three times higher. The bad news is that the federal government has confirmed the existence of a “cancer cluster”. The good news is that the federal government has confirmed the existence of a “cancer cluster”.

The news is bad because behind the finding is the terrible tragedy that many Acreage families are already suffering. It is bad because of the terrible dilemma that confronts so many others faced with having to choose whether to abandon their homes to protect their family’s health. It is bad news because it reinforces the fear that already exists that leaving the Acreage now might already be too late.

However, the CDC’s “cancer cluster” confirmation is good news because it opens the door to additional federal resources essential to the welfare of the Acreage community. The need for a very careful and thorough investigation is now undeniable.

We now know for sure there is a serious health problem. The very important question of who or what has caused that problem remains unanswered, but Monday’s announcement raises the level of confidence that private and public efforts will find the answer.

Palm Beach County Health Officials plan to hold a forum:

What: Palm Beach County health officials plan to discuss their interviews and population research at a public meeting.

When: 6:30 to 8:30 p.m. Feb. 9.

Where: Seminole Ridge High School, 4601 Seminole Pratt Whitney Road, Loxahatchee, FL

Is the phrase, a government “of the people, by the people, for the people” in the constitution? Popular belief is yes, but it is not actually in the constitution. Rather, this phrase comes from President Abraham Lincoln’s Gettysburg address. It is probably a concept that should have been incorporated into the constitution and certainly Lincoln included it to remind citizens that it is their country. I think politicians, and even some of us, forget that it is OUR government and the politicians are OUR employees; they are supposed to be working in OUR best interests.

Business interests are fond of complaining about the jury system and regularly claim that it is “broken”, it needs to be “fixed”. Perhaps the best word is, in fact, “fixed”; they would like to fix the civil justice system so that it can be better influenced in their direction. Should we hold it against them because they work to achieve an unfair playing field? We should not hate Big Corporations for this, but should we allow them to achieve it? Absolutely not!

I think the jury system our founding fathers borrowed from English common law works just fine in protecting the rights of individual citizens. Frankly, I want six of my fellow citizens sitting and listening to evidence in my case. I want six regular people considering what makes sense and what does not make sense. I do not want a special panel appointed to hear my case, as has been promoted by many business “political parrots”. I do not want the government inserting itself into the civil justice system anymore than they already do. I trust an impartial panel of my fellow citizens to fairly weigh the evidence and reach a decision that makes sense.

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