Fishermen seek a second TRO against BP to assume appropriate worker safety oversight duty in cleanup


The United Commercial Fisherman’s Association and its President George Barisich are seeking a Temporary Restraining Order from the U.S. District Court, Eastern District, requiring that BP take responsibility for hazardous chemical exposure safety oversight for all commercial fishermen employed in cleanup and mitigation services related to the DEEPWATER HORIZON/British Petroleum crisis in the Gulf of Mexico, said attorneys representing Mr. Barisich.

British Petroleum is employing fisherman through an agreement known as the Master Vessel Charter Agreement or MVCA. Certain sections of the MVCA, which required fishermen to waive their legal and other constitutional rights in order to be employed, were declared void by the U.S. District Court earlier this week because of emergency legal actions taken by Mr. Barisich and his attorneys.

The MVCA puts the responsibility for compliance with highly technical safety laws relating to work with hazardous substances on the fisherman, said Stuart Smith, of Smith Stag, LLC. Thus, the fishermen are requesting a supplemental emergency motion for temporary restraining, and requests that the same Court enter a temporary injunction requiring BP to assume safety oversight for these workers. In support of their filing, the commercial fishermen have tendered to the Court the expert opinions of Cmdr. David E. Cole USCG (ret.) and Dr. Vernon Rose, a multi-certified Industrial Hygenist and Professor Emeritus at the University of Alabama (Birmingham) School of Public Health.

“Since BP has caused this environmental disaster, it is ultimately responsible for all aspects of the cleanup, including Mr. Barisich’s safety,” said Attorney Smith. “If the motion is denied, Mr. Barisich and others like him face immediate and irreparable harm.  On the other hand, if a TRO is issued, BP will be no worse off and the public interest in promoting worker safety and expediting the clean-up of the environmental disaster will be served.

“Most vessel owners participating in the cleanup are probably completely unaware that specific safety schemes even exist,” said Mr. Smith. “Because of the threat to their very livelihood caused by BP’s catastrophic oil discharge that fishermen are responding to, and because of the expedited nature of the training provided by BP, we’re asking the Court, acting as an admiralty court, to provide special protection to those commercial fishermen.”

Attorney Kelly Bilek, of The Bilek Law Firm, LLP, said, “Our focus since the beginning of this case has been protecting the health and safety of all responders, protecting the responders’ legal rights, and finally protecting our natural resources and environment.”

The TRO requests BP to acknowledge that it, not the vessel owner, is responsible for safety oversight as to hazardous chemical exposure for services performed under the MVCA by the vessel owner and his/her crew.  This safety oversight duty shall include, but not be limited to the following actions:

(a)         prepare, distribute and communicate a written safety and health program specific to this class of workers;

(b)         prepare, develop and implement a medical surveillance program for this class of workers;

(c)         prepare, develop and implement monitoring for airborne hazardous chemicals in the areas in which these workers have been or will be assigned to perform work;

(d)         provide information as to the identification of the hazardous chemical exposure risks specific to the volunteer’s work and the area in which they have been or will be assigned to perform work;

(e)         identify the personal protective equipment issued for persons performing services, to whom they are being provided, and the quantity in which they are being provided;

(f)         describe the type of training being provided to persons performing services under the MVCA, including copies of all communications being made as part of that training, including but not limited to written materials disseminated, videos shown, or prepared remarks for speakers; and

(g)         describe the worker notification program it intends to use for persons performing services under the MVCA.

“While we need to stop the disaster and protect our clients’ livelihoods, it cannot be at the expense of their health and well being. That would be a pyrrhic victory at this point,” said Attorny Jim Garner, of Sher Garner Cahill Richter Klein & Hibert, LLC.

“Requiring that the volunteer responders, already victims of the oil spill disaster caused by BP, not be provided with the greatest amount of safety oversight in connection with their efforts to assist in the clean up of BP’s catastrophic discharge is unconscionable and constitutes irreparable injury,” added Attorney Bilek.

On April 20, 2010, while the vessel Deepwater Horizon was performing drilling operations for crude oil on behalf of British Petroleum off the coast of Louisiana at the Macondo Prospect, an apparent “blow-out” of the well occurred and a fiery explosion of the rig resulted. The Macondo well began to release, leak and/or discharge oil directly into the Gulf of Mexico.

The oil that is being released contains hazardous chemicals which pose a significant environmental risk to the wetlands and marine life of the Louisiana Coastal Zone as well as significant health risks to the workers involved in the clean-up of this disaster.

In order to protect their homes and livelihood, commercial fishermen in Louisiana and other Gulf States have volunteered to assist BP in its clean-up efforts and have entered into agreements (MVCA) requiring them to provide the services of “tending or deploying boom and skimming equipment, skimming equipment, skimming operations, recovering oil debris, collecting garbage, assistance with wildlife operations and towing equipment.”

BP clearly contemplates that this work can result in “contamination” for BP offers to reimburse vessel owner’s costs for “cleaning and decontamination if VESSEL requires such cleaning as a direct result of the contract services.” Yet, while BP is very much aware of the risk of exposure to the hazardous chemicals in the crude oil spewing from the Macondo well, the agreement workers sign with BP is entirely silent as to BP’s duties to provide for the hazardous chemical safety oversight for the vessel owners and their crews, said Attorney Smith.

“BP is hiring thousands of fishermen, oystermen, and shrimpers to assist in the clean-up operations.  These are not persons whom BP can expect to have previous training and/or experience in the handling or clean-up of hazardous chemicals,” said Ms. Bilek.

While BP is providing some rudimentary training to vessel owners and providing their crews with certain types of basic personal protective equipment, such as gloves and Tyvec suits, these provisions are nowhere near what is needed to protect the vessel owners and crews mustered by BP to help it clean up its oil spill, said Louisiana Environmental Action Network (LEAN) Director Marylee Orr.

LEAN, in partnership with its member organizations and charitable foundations, has raised the money to purchase and distribute 200 respirators and other necessary protective gear, which should be worn by fishermen involved in the cleanup operations. LEAN hopes British Petroleum will acknowledge its duty to supply these respirators, said Ms. Orr.

“By ignoring safety oversight in the MVCAs, BP presents fishermen with the untenable choice of either walking away from the collective efforts to protect his or her livelihood because he or she, unlike BP, is not in the business of handling hazardous chemicals, or, going forward ill-equipped,” said Ms. Orr.

Dr. Vernon Rose, a certified industrial hygienist and safety engineer, confirms that the crude oil spilling from BP’s Macondo prospect unquestionably contain hazardous materials, including, but not limited to substances such as benzene, cyclohexane, ethylbenzene, toluene, xylene.

“Worker exposure to all are regulated as toxic substances by OSHA,” said Dr. Rose. “To protect the health and well being of the individuals involved in the services requires the establishment and implementation of an effective and comprehensive hazardous waste and emergency control plan for the owners and crews performing services under the Master Vessel Carter Agreements, as required under OSHA’s Hazardous Waste and Emergency Response regulation.”

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Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
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