Offshore Safety in the Wake of the Macondo Disaster: The Role of the Regulator

By Weaver, Jacqueline L. | Houston Journal of International Law, Spring 2014 | Go to article overview

Offshore Safety in the Wake of the Macondo Disaster: The Role of the Regulator


Weaver, Jacqueline L., Houston Journal of International Law


V. CONCLUSIONS, RECOMMENDATIONS AND FINAL OBSERVATIONS

A. Conclusion: BSEE Is Not (Yet) a Nimble and Competent Regulator

Part One of this Article began with a quip about post-Soviet Union reform in Russia: "Much has changed, but nothing has happened." The Article then traced key changes that have occurred in spheres other than legislation since the Macondo disaster: a better understanding of safety management systems and their role in fighting complacency; a wave of technological innovation; and the globalization of industry standards often used in government regulation of offshore operations. All of these changes need an effective regulator to assure that good safety management systems for major hazards are actually put into practice on offshore facilities; that the technology used is the Best and Safest (as required by existing law); and that industry technical standards and Recommended Practices have been developed using an open process that includes academic experts, labor and government officials so that when they are incorporated into mandatory regulations they reflect good, if not best, practice that drives continuous improvement. The public interest in developing offshore resources is not served without such a regulator. Sections III and IV looked at the role of the regulator in offshore safety and found serious deficiencies in the former MMS and its successors. It seems fair to say that BSEE has "happened," but little has yet fundamentally changed in terms of its capability to regulate the U.S. offshore using best regulatory practices. (354)

Many readers may conclude that the U.S. offshore is essentially self-regulated by industry. The auditors that will check to see if SEMS plans are being used offshore are consultants, pre-qualified through the Center of Offshore Center, an industry-created and owned entity. BSEE neither approves the SEMS programs of offshore operators before they begin operations nor does it conduct audits itself. BSEE will continue to use its inspectors, with some enhanced knowledge, to check facilities offshore. BSEE itself describes the new safety framework as "industry self-regulation with BSEE oversight," although the oversight seems minimal at this time. The OESAC Subcommittee on SMS pushed unsuccessfully for a better safety system protocol to start the new BSEE off with a framework that, if not "optimized," was at least "enhanced" beyond the current SEMS rules so that it could better embed a permanent safety culture into an organization. Audits by third parties with protocols of questions to ask, but no continuous dialogue with an active regulator, would not do the job.

Protocols for testing the safety-critical equipment used offshore are not yet developed. BSEE collects no data on leading indicators that can warn of rising risk levels offshore and then work with industry to reduce them. There is little participation by labor in developing standards offshore; indeed, the only workers' voices heard in the many post-Macondo hearings that the Author accessed were those of labor leaders from the United Kingdom or Norway. The API process of standard setting, at least in the area of worker fatigue (API RP 754), has been judged unacceptable by the U.K. HSE and by our U.S. Chemical Safety Board; and the onshore labor unions in the U.S. chemical processing sector withdrew from an API-ANSI standard-setting process because of its perceived industry bias.

Meanwhile COS is actively driving improved safety in deepwater offshore and the SEMS regulations incorporate much of this Center's work product, thereby applying it to all offshore operators regulated by BSEE, regardless of water depth. It is only partly facetious to state that COS is the nimble and competent "regulator" in the Gulf of Mexico today. COS has set up the SEMS audit process that will certify that companies operating in the Gulf of Mexico have met all SEMS requirements. (355) The COS mission statement extends beyond SEMS auditing. …

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