The Senate Subcommittee on Superfund and Waste Management is holding a hearing on the bill today.
The letter, signed by the Sierra Club, the American Public Health Association, the United Steelworkers, the New York Committee for Occupational Safety and Health, the Environmental Integrity Project and other organizations, asserts that S.B. 1761 "would give federal disaster contractors unprecedented legal immunity against environmental citizens suits and, in most cases, relieve federal contractors from responsibility for personal injuries and property damage they cause."
It urges, "Congressional relief, recovery, and rebuilding assistance must make clean air and water for the people of the Gulf Coast a priority. Instead, the residents of the Gulf Coast who have already been victimized by the terrific force of these hurricanes will be victimized again by this bill, which would leave them without a remedy against government contractors that cause irreparable harm to their air and water."
Noting that contractors' actions can either help people or imperil their safety, the letter asserts that such contractors, "who are paid by the taxpayers for the work that they do, should be held fully accountable to the public if they behave carelessly and cause harm to people or the environment. No public policy reason justifies Congress granting federal contractors legal immunity for negligence or illegal activity."
Sen. John Thune (R-S.D.) introduced S.B. 1761, the Gulf Coast Recovery Act, to limit the liability that private contractors face as they work to clean up and rebuild those regions devastated by Hurricane Katrina.
"Just as our nation witnessed following the 9/11 terrorist attacks, contractors are playing a major role in the stabilization and clean-up of Hurricane Katrina," said Thune. "In the wake of a large-scale disaster like Katrina, the expertise and hard work these contractors can provide is invaluable."
He explained that while there are many contractors who would like to help on the Gulf Coast, they are hesitant to do so for fear of becoming targets for major lawsuits – similar to those filed against post-9/11 contractors.
"The men and women working to restore 90,000 square miles of America's Gulf Coast already face enough obstacles and challenges without the added burden of unjust lawsuits. [This legislation] would limit the liability that contractors aiding in the Katrina relief effort face, so they can continue to assist with clean-up, repair and reconstruction in a quick and efficient manner," he added.
The Gulf Coast Recovery Act, co-sponsored by Sen. Trent Lott (R-Miss.), Sen. David Vitter (R-La.), Sen. James Inhofe (R-Okla.), and Sen. Lisa Murkowski (R-Alaska), would adopt special rules of litigation that are applicable to the recovery efforts associated with Hurricane Katrina and other major disasters in the future. These new litigation rules:
- Clarify the liability of contractors involved in the rescue, recovery, repair, or reconstruction of the Gulf Coast Region.
- Create a federal cause of action so that claims are handled in federal court.
- Prohibits private individuals from suing contractors who have been hired by the federal government to assist in the clean-up efforts.
- Prohibits punitive damages from being awarded.
- Allows for the assessment of non-economic damages only where there is physical harm.
The Gulf Coast Recovery Act requires contractors to remain liable for recklessness and willful misconduct. It also requires contractors to adhere to all state and federal regulations concerning the environment, safety and heath.
According to the letter from the Sierra Club and others, S.1761 would exempt contractors from citizen suits brought under the Clean Water Act, the Oil Pollution Act and environmental laws governing toxic waste management and disposal. This means that citizens could not hold contractors responsible if they illegally discharge polluted wastewater or oil into rivers, illegally dump hazardous waste or burn toxic materials.
The letter warns that S.B. 1761 also would immunize contractors from liability for personal injuries or property damage in most cases by expanding the Government Contractor Defense. Currently, that defense generally applies only if the government provides precise instructions that the contractor must follow – such as design requirements for military airplanes – and the injury occurred because the contractor adhered to those specific, mandatory instructions. But S.B. 1761 would create a presumption that all elements of the Government Contractor Defense are met merely by the Army Corps' Chief of Engineers certifying the contract as necessary for disaster recovery. The presumption could only be overcome if the contractor acted fraudulently or with willful misconduct in submitting information to the Chief of Engineers at the time of the contract. The letter notes, "In other words, the defense will almost always apply to disaster contractors."
The letter concludes that responsible contractors have no need of such a bill, and that it would only provide "a windfall to irresponsible contractors at the expense of public health and the environment."
