[Senate Hearing 110-1187]
[From the U.S. Government Publishing Office]
S. Hrg. 110-1187
OIL SPILLS FROM NON-TANK VESSELS:
THREATS, RISKS, AND VULNERABILITIES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON OCEANS, ATMOSPHERE, FISHERIES, AND COAST GUARD
OF THE
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
DECEMBER 18, 2007
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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77-422 WASHINGTON : 2012
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
DANIEL K. INOUYE, Hawaii, Chairman
JOHN D. ROCKEFELLER IV, West TED STEVENS, Alaska, Vice Chairman
Virginia JOHN McCAIN, Arizona
JOHN F. KERRY, Massachusetts TRENT LOTT, Mississippi
BYRON L. DORGAN, North Dakota KAY BAILEY HUTCHISON, Texas
BARBARA BOXER, California OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida GORDON H. SMITH, Oregon
MARIA CANTWELL, Washington JOHN ENSIGN, Nevada
FRANK R. LAUTENBERG, New Jersey JOHN E. SUNUNU, New Hampshire
MARK PRYOR, Arkansas JIM DeMINT, South Carolina
THOMAS R. CARPER, Delaware DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota
Margaret L. Cummisky, Democratic Staff Director and Chief Counsel
Lila Harper Helms, Democratic Deputy Staff Director and Policy Director
Christine D. Kurth, Republican Staff Director, and General Counsel
Paul Nagle, Republican Chief Counsel
------
SUBCOMMITTEE ON OCEANS, ATMOSPHERE, FISHERIES, AND COAST GUARD
MARIA CANTWELL, Washington, OLYMPIA J. SNOWE, Maine, Ranking
Chairman TRENT LOTT, Mississippi
JOHN F. KERRY, Massachusetts GORDON H. SMITH, Oregon
BARBARA BOXER, California JOHN E. SUNUNU, New Hampshire
BILL NELSON, Florida JIM DeMINT, South Carolina
FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana
THOMAS R. CARPER, Delaware
AMY KLOBUCHAR, Minnesota
C O N T E N T S
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Page
Hearing held on December 18, 2007................................ 1
Statement of Senator Boxer....................................... 7
Prepared statement........................................... 8
Statement of Senator Cantwell.................................... 10
Statement of Senator Inouye...................................... 3
Statement of Senator Kerry....................................... 3
Prepared statement........................................... 5
Statement of Senator Lautenberg.................................. 1
Statement of Senator Snowe....................................... 6
Statement of Senator Stevens..................................... 2
Witnesses
Allen, Admiral Thad W., Commandant, U.S. Coast Guard, Department
of Homeland Security........................................... 12
Prepared statement........................................... 14
Cooper, Hon. Mike, Chairman, Washington State Oil Spill Advisory
Council........................................................ 64
Prepared statement........................................... 65
Deaver, William G., President and COO, Totem Ocean Trailer
Express, Inc................................................... 72
Prepared statement........................................... 74
Etkin, Ph.D., Dagmar Schmidt, President, Environmental Research
Consulting..................................................... 61
Prepared statement........................................... 63
Fleming, Susan A., Director, Physical Infrastructure Issues, U.S.
Government Accountability Office............................... 25
Prepared statement........................................... 26
Glackin, Mary M., Deputy Under Secretary of Commerce for Oceans
and Atmosphere, National Oceanic and Atmospheric
Administration, U.S. Department of Commerce.................... 18
Prepared statement........................................... 20
Letter, dated January 14, 2008 to Hon. Maria Cantwell from
Admiral Thad W. Allen, Commandant, U.S. Coast Guard........ 43
Report, entitled 2006 Report of the Secretary of Commerce to
the Congress of the United States Concerning U.S. Actions
Taken on Foreign Large-Scale High Seas Driftnet Fishing
Pursuant to Section 206(e) of the Magnuson-Stevens Fishery
Conservation and Management Act, As Amended by Public Law
104-297, The Sustainable Fisheries Act of 1996............. 56
Appendix
Letter, dated January 24, 2008 to Hon. Maria Cantwell from Ronald
J. Forest, Senior Vice President Operations, Matson Navigation
Company........................................................ 87
Johnson, Jr., Ben, Chairman, Makah Tribal Council, prepared
statement...................................................... 83
Response to written questions submitted by Hon. Maria Cantwell
to:
Admiral Thad W. Allen........................................ 88
Hon. Mike Cooper............................................. 104
William G. Deaver............................................ 108
Dagmar Schmidt Etkin, Ph.D................................... 98
Susan A. Fleming............................................. 97
Response to written questions submitted by Hon. John F. Kerry to:
Admiral Thad W. Allen........................................ 95
OIL SPILLS FROM NON-TANK VESSELS: THREATS, RISKS, AND VULNERABILITIES
----------
TUESDAY, DECEMBER 18, 2007
U.S. Senate,
Subcommittee on Oceans, Atmosphere, Fisheries, and
Coast Guard,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:30 p.m., in
room SR-253, Russell Senate Office Building, Hon. Frank R.
Lautenberg, Chairman of the Subcommittee, presiding.
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM NEW JERSEY
Senator Lautenberg. We're going to open the hearing, and we
are to be addressing this question: we've seen too much of the
damage that's created when we have spills and we're today going
to be examining a fuller extent of what takes place, including
the damage, the costs to repair. We want to prevent it where we
can. And when EXXON VALDEZ has spoken, most Americans have an
immediate reaction. We remember seeing birds, fish, and other
wildlife covered in black, messy oil; 11 million gallons
pouring into the sea. I was up there within 3 days of the
grounding of the EXXON VALDEZ, and disaster was obvious. And,
of course, there were incredible financial costs involved, as
well as the damage to the birds and marine life, that existed
there.
The EXXON VALDEZ spill cost nearly $4 billion to clean up.
And believe it or not, Exxon Mobil, which took in $40 million
in profits in the year 2006, is still fighting the punitive
damage that was awarded in that case. After the spill, we
passed the Oil Pollution Act of 1990, which was a landmark rule
on spill prevention and response. As a Senator from a coastal
state, and a state whose waterways carry lots of oil shipments,
I was proud to play a significant role in crafting that bill.
Unfortunately, more spills followed. In 2004, a single
hulled oil tanker, the ATHOS I, spilled more than 260,000
gallons of heavy crude into the Delaware River, which flows
along our New Jersey boundary. And so last year, with this
Committee's leadership, we updated our shipping laws. The
legislation that I authored nearly tripled the amounts that
polluters must pay for spills caused by single-hull tankers,
and nearly doubled the liability for nontankers.
It also required the creation of Federal Advisory
Commission on Spill Prevention for the Delaware River Region,
and it required a study by the Government Accountability
Office--which has been recently completed--on the actual cost
of spills. And yet, oil spills are still a tremendous risk to
our environment and our economy. Just last month, we witnessed
the accident that occurred with the COSCO BUSAN, where they
spilled 58,000 gallons of oil in the San Francisco Bay.
After that incident, and important findings by the GAO, it
is clear that our government's attitude toward oil spill
prevention or response has been one of complacency, and there
is more work that has to be done. But first, we need to
reinforce that polluters should pay for the disasters they
create. Over the past 16 years, the Oil Spill Liability Trust
Fund has subsidized polluters to a tune of $39 million. And
these payouts happen because the Coast Guard failed to update
Federal liability limits on a regular basis to keep up with
inflation.
Now, making sure that polluters pay isn't the only
challenge we face. For example, the Delaware River Oil Spill
Advisory Commission has never had a meeting. There is too
little funding in the Oil Spill Liability Trust Fund to support
the cleanup of a catastrophic spill. And the oil spill
prevention research seems to have fallen by the wayside. So I
want to work with my subcommittee leaders--the Chairman of the
Subcommittee has arrived, Ms. Senator Cantwell--on legislation
to correct these problems. And I also plan in my subcommittee,
the surface and marine maritime subcommittee, to focus on
better ship designs and operations to prevent oil spills in the
first place. And we've got to get beyond this complacency when
it comes to the health of our shores and our economy.
Madam Chairman? Do you want to go from there?
Senator Cantwell [presiding]. Thank you, Senator
Lautenberg. Thank you for opening up this hearing this
afternoon. I would like to call on Senator Stevens, if he would
like to make an opening statement.
STATEMENT OF HON. TED STEVENS,
U.S. SENATOR FROM ALASKA
Senator Stevens. I did. I think my colleague, the Chairman.
Can I comment also, because we're going to have to go get
involved in the--spill very quickly. I think, Admiral, one of
the most vivid memories I have is flying with your predecessor
Admiral the day after spill, as we went over the Prince William
Sound and saw oil spreading over that vast, beautiful place. We
were both sickened at the time. Many people forget that tanker
was aground, and only one-fourth of its tanks had spilled. It
was subsequent action that lead up to all of the oil coming out
before it was through, in that Sound. I think that's probably
the most devastating impact we've ever had from oil spills.
The other one that was in 2004, the SELENDANG AYU went down
in Alaska with 300,000 gallons of bunker fuel. The San
Francisco Bay had 50,000 gallons this last year. I think
Senator Lautenberg mentioned another one here on the East
Coast. I'm really concerned about the adequacy of the
prevention and response. I think the Coast Guard has done a
great job for the Nation in reducing the impact of oil spills,
but they're stretched very thin now with the responsibilities
you have on the homeland security. I think we need to make sure
the Coast Guard has the resources it needs to conduct the
training and drills that remain so necessary to prevent and
take care of oil spills.
I did go down to Valdez this past summer, there at Mile
800, and witnessed their deployment of the equipment that's
there. I don't think many people believe we have it, but we
have four different sets of recovery material in the Prince
Williams Sound now. The initiatives you have, a Vessel Tracking
System that is used in the convoying of tankers, double-bottom
tankers now, since that Oil Pollution Act of 1990, go in and
out of the Prince William Sound, I hope to God they will
prevent another spill in our areas. I do think we have to
improve our tracking systems, not only of the tankers, but of
all cargo ships that carry substantial amounts of fuel. I hope
we can get the Committee working together with your agencies
all through it to make sure the laws we have are adequate to
give you the authority you need, but I'm worried about the
funding.
Since we're in the era of earmarks, I bow to no one in
terms of the earmarks we make, because they're necessary to
assure you have the resources you need to continue the
activities that are so important to prevent these catastrophes
in the future. Thank you very much, Madam Chairman.
Senator Cantwell. Thank you. Senator Inouye?
STATEMENT OF HON. DANIEL K. INOUYE,
U.S. SENATOR FROM HAWAII
The Chairman. Thank you very much, Madam Chairman. During
the past decade, significant progress has been made toward
reducing the number of oil spills from tank vessels. Much of
that success is the direct result of passage and implementation
of the Oil Pollution Act of 1990. However, as we all know, in
recent years, vessel traffic has rapidly increased, with our
country's growing dependency on imports of fuel. With that
increase in vessel traffic, it is evident that nontank vessel
spills are an emerging concern today. Non-tank vessels can
carry millions of gallons of oil as fuel, and the standards for
nontank vessels need to be strengthened.
I am aware that the Coast Guard is in the process of
finalizing long-awaited rulemakings in this area, and I wish to
encourage them to take the steps necessary to hasten the
completion of these regulations. I look forward to hearing the
testimony to better address these issues from a policy
perspective. Thank you very much.
Senator Cantwell. Senator Kerry?
STATEMENT OF HON. JOHN F. KERRY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Kerry. Thank you, Madam Chairman. As Senator
Lautenberg has mentioned, a lot of us on this Committee, and as
Senator Stevens has mentioned in his own comments, we know from
firsthand experience what happens when we have an oil spill,
the dramatic environmental and economic impact. I know Senator
Boxer knows, and obviously Senator Stevens, as was mentioned.
While the number of oil spills has thankfully been
decreasing over the past few decades, they still do occur with
a frightening regularity. And while improvement obviously needs
to be made--and we've discussed this in this Committee over the
many years, in fact, leading up to the double hull sort of
effort--is really how do you prevent them from happening in the
first place, and the concept of the double hull is a way to do
that.
We have certainly learned that when the cameras go away and
the attention shifts, the local communities are left dealing
with the impacts for a long, long period of time. On Sunday,
the 27th of 2003, the tank barge, BOUCHARD No. 120, ran aground
and spilled an estimated 98,000 gallons of No. 6 fuel in
Buzzards Bay. Buzzards Bay, you know, Admiral, but for those
who don't, is a small area surrounded by the coastline of
Massachusetts and the islands before you break out into
Nantucket and Vineyard Sound.
This was the eighth reported grounding in Buzzards Bay in
the past 4 years, and the fourth since the EXXON VALDEZ. And
the community is still dealing with the aftereffects of this
spill. The total cost to clean up estimated to be around $40 to
$45 million.
Buzzards Bay has been the site of several catastrophic oil
spills, and near-miss groundings, because it is the access and
entrance to the Cape Cod Canal. The largest spill occurred in
1969, when approximately 189,000 gallons of No. 2 fuel oil
spilled when the barge FLORIDA ran aground off West Falmouth.
And then, in 1990, two groundings occurred within 8 days of
each other--the grounding of a passenger ship, BERMUDA STAR,
off Cleveland Ledge, and the grounding of another BOUCHARD oil
barge, No. 145. Two years later, the QUEEN ELIZABETH II
grounded off Sow and Pigs Reef, way out near Cuttyhunk, near
the entrance coming in as you head in toward the Canal.
So these are just a few examples. Now, I think a lot of us
have adopted the notion on this Committee that the states
really do have a pretty good sense, if not the best knowledge,
of what safety measures are needed to try to protect their
waters. And so, in response to what happened in Buzzards Bay,
Massachusetts enacted the Oil Spill Prevention Act of 2004. And
the law required an escort tug for large vessels, and required
a state pilot for many of the waters, to help steer the barge.
And these are pretty commonsense moves.
The tugs can help with an equipment failure or with human
error, and they can prevent a spill from occurring. The cost of
an escort tug and a local pilot, as required by the
Massachusetts Oil Spill Prevention Act, is approximately $6,000
per tug transit through the Bay and Cape Cod Canal--miniscule
compared to the profits carried in those vessels, and nothing
compared to the costs inflicted on the community in the event
of an oil spill. Nevertheless, Admiral, the Coast Guard
challenged this law in court, and is still fighting against the
requirement for a double-hulled vessel to meet these
requirements.
The double-hulled ships are relatively new. We've already
seen massive oil spills from double-hulled vessels. In 2005, a
double-hulled vessel operated by K-Sea. Transportation hit a
submerged oil platform, and through a 36-foot gash spilled 3
million gallons of oil into the Gulf of Mexico. And since
double-hulled vessels sit deeply in the water, creating a
greater risk of rupture in shallow areas such as Buzzards Bay,
we are concerned.
1.6 billion gallons of fuel travel through Buzzards Bay
each year. And local entities, we believe, have the specialized
knowledge to prevent those spills. So the Coast Guard has
accepted other states' assertion that local waterways require
specialized knowledge, and hence require the type of actions
Massachusetts has taken. And we believe, obviously, that
Buzzards Bay is proof the area needs a preventative action. So
it is my hope, Admiral, I certainly want to explore with you
why the Coast Guard opposes this, and would like to see if we
can't move forward. Thank you, Madam Chairman.
[The prepared statement of Senator Kerry follows:]
Prepared Statement of Hon. John F. Kerry,
U.S. Senator from Massachusetts
Too many of us on this Committee know first hand from our own
states the tragic and dramatic environmental and economic impact of oil
spills right off of our shores. Senator Boxer knows, Senator Stevens
knows--and after our experience in Buzzards Bay, I know what it means
to a local community that can find itself still reeling from an oil
spill almost 5 years later.
Yes, the number of oil spills has thankfully been decreasing over
the past two decades, they still occur with frightening regularity.
While improvement should be made in preparedness and response, the
best way to deal with oil spills is to prevent them from happening in
the first place.
One lesson we've all learned is that after the cameras go away and
the attention shifts, it is the local communities that have to deal
with the long term consequences of an oil spill. But what we don't seem
to have understood fully is that it is also the local community that is
in the best position to prevent an oil spill.
On Sunday April 27, 2003 the tank barge BOUCHARD No. 120 ran
aground and spilled an estimated 98,000 of gallons of Number 6 fuel oil
in Buzzards Bay. This was the eighth recorded grounding in Buzzards Bay
in the past forty years and fourth since EXXON VALDEZ, and the
community is still dealing with the after effects of this latest spill.
The total cost of the cleanup is estimated at $40-45 million.
Buzzards Bay has been the site of several catastrophic oil spills
and many, many more near-miss groundings. The largest spill occurred on
1969 when approximately 189,000 gallons of #2 fuel oil spilled when the
barge FLORIDA ran aground off West Falmouth. In 1990, two groundings
occurred within 8 days of each other--the grounding of the passenger
ship BERMUDA STAR off Cleveland Ledge and the grounding of another
BOUCHARD oil barge #145. Two years later, the QUEEN ELIZABETH II
grounded off Sow and Pigs Reef near Cuttyhunk. These are just a few
examples.
The states know their waterways best and the local governments know
what safety measures are needed. That is why, in response to what
happened in Buzzards Bay, Massachusetts enacted the Oil Spill
Prevention Act of 2004. This law required an escort tug for large
vessels and required a state pilot that knows the waterway to help
steer a barge--common sense measures.
These tugs can help with an equipment failure or human error and
prevent a spill from occurring. The cost of an escort tug and a local
pilot as required by the Massachusetts Oil Spill Prevention Act of 2004
is approximately $6,000 per tug transit through the Bay and Cape Cod
Canal--nothing compared to the profits that are carried in that ship,
and nothing compared to the costs inflicted on a community in the event
of an oil spill. However, the Coast Guard challenged this law in court
and is still fighting against the requirement for double hulled vessels
meet these requirements.
Though double hulled ships are relatively new, we have already seen
massive oil spills from double hulled vessels. In 2005, a double hulled
vessel operated by K-Sea Transportation hit a submerged oil platform
and through a 36-foot gash spilled 3 million gallons of oil into the
Gulf of Mexico. Double hulled vessels sit deeper in the water, creating
a greater risk for a rupture in a shallow area such as Buzzards Bay.
1.6 billion gallons of fuel travel through Buzzards Bay each year,
and local entities have the specialized knowledge to help prevent
future oil spills. While the Coast Guard has been helpful in dealing
with the response to the oil spill, preempting the State law which will
help prevent future oil spills is perplexing to me. The Coast Guard has
accepted other State's assertion that local waterways require
specialized knowledge and hence require the type of actions
Massachusetts has taken. The number and severity of oil spills in
Buzzards Bay serve as proof that this area needs the preventative
actions the State Law includes, and it is my hope that today we will at
last get some answers about why these basic steps still face so much
resistance.
Senator Cantwell. Thank you, Senator. Senator Snowe?
STATEMENT OF HON. OLYMPIA J. SNOWE,
U.S. SENATOR FROM MAINE
Senator Snowe. Thank you, Madam Chair, for holding this
hearing today on an issue that's vital to the future of our
ocean and coastal resources. Just over a month ago, many of us
met here in the immediate aftermath of the disastrous COSCO
BUSAN oil spill looking for answers of how and why it occurred.
As those investigations continue, in our discussions today,
we'll look beyond that single incident and broaden the inquiry
to determine what more can be done to reduce the likelihood of
future spills and improve our ability to respond, contain, and
mitigate the impact in incidents that do occur.
Also, I would like to thank Senator Boxer. She chaired that
hearing last month, along with Senator Feinstein, a meeting
that was very important to provide a clearer picture of the
response in the environmental disaster that occurred on
November 7th in the San Francisco Bay. I understand that
approximately one-third of the oil spilled in that accident has
been recovered; a percentage well above the average for oil
recovery. But questions remain about the causes of the
incident, as well as the adequacy of the response plan,
including the flow of communications with state and local
officials and the management of non-Federal assets in the
immediate aftermath.
I am troubled by the reports, as many have indicated, not
only that it was about eight hours before the Coast Guard
learned of the magnitude of this spill, and then another 4
hours that lagged between the time the Coast Guard notified
local officials about the magnitude of this spill, including
the Mayor of San Francisco. I was pleased to hear you say,
Admiral, that an independent investigation of the Coast Guard's
effort is underway. I look forward to the results to help
determine appropriate changes to a better response strategy and
the lessons learned.
I represent a state recognized for more than 5,000 miles of
majestic coastline, the longest on the Eastern Seaboard. And
many rely on the beauty and the bounty of our oceans from
tourism, to fisheries, to maritime transportation--for our
livelihoods. The Port of Portland plays a very significant role
hosting ferries and commercial fishing boats, cruise ships, oil
tankers, and tank barges. Portland is the second-highest volume
oil importer on the Eastern Seaboard, and we have seen
firsthand the devastation of oil spills and what it can do to
our environment, to our shores, and also to the livelihood for
the many people who depend on the ocean.
In 1996, the tanker JULIE ANNE discharged nearly 180,000
gallons of fuel into the Portland Harbor, incurring upwards of
$43 million in damages.
We have also seen high volumes of nontanker cargo ships.
Portland is visited at least by one container ship per week,
and numbers are expected to grow in the coming years. And we
are currently experiencing a boom in the cruise ship traffic.
Large cruise ships, like other massive vessels, such as the
container and cargo ships, carry hundreds of thousands of
gallons of fuel oil. Last summer, cruise ships made a record
number of visits to Maine, including 90 port calls at Mount
Desert Island, home to the scenic areas of Bar Harbor and
Acadia National Park. The natural beauty of this region, of
course, is the main attraction for cruise ships. It is also
enhanced by its remoteness, something that also increases the
degree of difficulty for responders should a spill occur.
During our discussion here following the COSCO BUSAN
incident, it became clear that large oil spills from cargo
ships are relatively rare. Furthermore, the recent decline in
large spills is attributable in no small measure to the passage
of the Oil Pollution Act back in 1990. In fact, according to
your agency's statistics, Admiral Allen, in the 10 years prior
to the passage of that Act, there were over 180 oil spills
greater than 50,000 gallons, or an average of 18 large spills
per year. From 1990 through 2004, that number has declined by
nearly 75 percent. A lot of the Nation's efforts to reduce the
incidence and impact of oil spills has focused on tanker
vessels, resulting in improvements such as double hulls and
Vessel Response Plans. It is time to shift some of that
attention to nontanker vessels.
Fully one-fifth of the oil that has spilled into our waters
since 1990 has come from nontanker vessels, and today's cargo
ships are capable of holding up to 4 million gallons of oil. It
is critical that this Committee exercises oversight authority
to minimize the risk of future calamities like the COSCO BUSAN.
I look forward to speaking to the witnesses here today, in
particular Admiral Allen. We have spoken on numerous occasions
about the Coast Guard's many missions, and I know this is one
of your multi missions. We have to ensure that you have,
obviously, the strategy, the policy, and the resources
necessary to carry out these future endeavors.
What we need is to adjust the current Federal policy to
make sure that we are prepared to address any of these oil
spills and catastrophes in the future. Thank you.
Senator Cantwell. Thank you. Senator Boxer?
STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM CALIFORNIA
Senator Boxer. Madam Chair, Senator Snowe, thank you so
much for your extraordinary leadership on this. And as I look
at everyone here, we all come from states that know the value
of the ocean, the value of the bay, the environmental value,
the economic value, and frankly, the culture that we have
around the ocean. And I just want to say on behalf of
Californians, who have over 840 miles of coastline, that when
the COSCO BUSAN struck on the Bay Bridge on November 7th, and
it ripped the visible 100-foot-long gash in the ship's side,
and it spewed 58,000 gallons of bunker fuel in the San
Francisco Bay. When that happened, everyone mobilized. But
because of a lot of confusion, a lot of facts not getting out
to the people, we saw this.
And I'd like to just show you two photographs here of the--
some of the wildlife--2,200 birds and marine mammals were
injured or killed. And now, we think that 20,000 birds may have
perished in the oil spill. Show them the other one. And these
are some of the people who were just giving aid to these
helpless creatures, and, you know, if we had known
immediately--immediately--I think things would've been
different. There's more that we need to do, and I just hope
that we stay on this. And that's why, Senator Cantwell and
Senator Snowe, I was so grateful to you for following up on the
briefing that Senator Feinstein and I did.
But I also want to point out that, in addition to the harm
done to the wildlife, others are suffering. And I think Senator
Stevens might be interested in this point, and I'll wait for
him, because I do--Senator Stevens, I want to tell you
something that I thought would interest you in particular, that
there is are so many ramifications from something like this.
The Dungeness crab season was suspended for several weeks,
because of health concerns over the potential for tainted
seafood, and our whole fishery has been impacted by this. So,
you know, it's one moment, one incident, one mistake, one
problem, and it has all these effects for so long.
I'm going to ask to put my whole statement in the record,
and my remaining 3 minutes I'm going to highlight that, if I
might.
[The prepared statement of Senator Boxer follows:]
Prepared Statement of Hon. Barbara Boxer, U.S. Senator from California
I want to thank the Commerce Committee and Senators Cantwell and
Snowe for holding this hearing today to call attention to the threats
posed by the large amounts of oil carried by cargo ships.
I also want to thank Senator Cantwell and the Committee for
including provisions in the Coast Guard Reauthorization bill to address
oil spill pollution prevention.
Unfortunately, Californians know all too well the damage and
destruction that can occur to our waters, wildlife and communities due
to toxic bunker fuel used by most shipping companies worldwide.
The cargo ship the COSCO BUSAN struck the protective bumper of the
Bay Bridge on November 7, ripping a visible 100 foot long gash in the
ship's side, spewing 58,000 gallons of bunker fuel into San Francisco
Bay.
This disaster has wreaked havoc on our environmentally sensitive
Bay, killing or injuring at least 2,200 birds and marine mammals.
Wildlife biologist experts now estimate that more than 20,000 birds may
have perished due to the spill.
The negative impacts of the disaster are not just limited to
extensive environmental damage, Californians all along the coast are
feeling the effects of this spill on their pocketbooks. The Dungeness
crab season was suspended for several weeks because of health concerns
over the potential for tainted seafood.
At the Members briefing I held shortly after the disaster, I raised
many questions about the Coast Guard's and NOAA's response to the
spill. While I appreciate each agency's efforts, there are many more
questions that still need answers.
I think we need to re-evaluate how Federal agencies respond to
these types of environmental disasters and the resources that are
allocated for oil spills prevention programs and response.
That is why I recently introduced two bills along with Senator
Feinstein to help address some of the main issues raised in the wake of
the spill--the role of and funding for the Coast Guard's Vessel Traffic
Service (VTS), liability limits for cargo ships, and laptop computers
for pilots.
The Maritime Emergency Prevention Act of 2007, which was referred
to this Committee, gives the local Coast Guard Vessel Traffic Service
the authority to command a ship to modify its speed and direction in
the event of an emergency or in hazardous conditions, it mandates
pilots use laptop computers where appropriate and authorizes increased
funding for the VTS.
We need to give the VTS the resources and authority to do its job
to intervene when circumstances warrant so when we have another
incident similar to the COSCO BUSAN, the Coast Guard can alert the ship
in a manner that may prevent an accident.
Another issue raised recently by this spill is the increasing size
of cargo ships and the ability of these ships to carry a tremendous
amount of oil. The largest cargo ships today can carry 4.5 million
gallons of fuel, and despite those totals, cargo ships are not required
to have double hulls.
Mr. Chairman, I think the potential for a major disaster here is
terrifying. Our communities are no longer in a position of wondering if
they will have to respond to a major disaster but when.
That is why I have also introduced legislation, which was referred
to my EPW Committee, to equalize the liability limits under OPA for oil
tankers and cargo ships, raising cargo ships from $950 per gross ton to
$1,900 for double hulled and $3,000 for single hulled ships.
The GAO report released today points out that the Coast Guard has
not acted to raise the liability limits for vessels since OPA was
enacted in 1990, and instead relied on the Oil Spill Liability Trust
Fund to shoulder the remaining financial burden.
In fact, the GAO found that of the 51 major spills between 1990 and
2006, the failure of the Coast Guard to raise the liability limits
resulted in a $39 million shift in costs from the responsible parties
to the Oil Spill Liability Trust Fund.
As we have seen first hand with the disaster in San Francisco Bay,
the liability limits often cap the liability for the responsible party
far below what the actual total cost of clean up and recovery for a
spill.
I also am working on legislation mandating the development and
implementation of national guidance for volunteer management during oil
spills.
With the San Francisco Bay oil spill we witnessed a tremendous and
impressive volunteer response. However, we also witnessed confusion and
inefficiencies with how to properly manage this valuable resource.
We need national guidance and further local planning and training
to address the complexities with engaging volunteers and to define how
to best provide for their worthwhile and safe use.
Mr. Chairman, as I stated before, many questions still remain about
whether our Federal agencies have the resources necessary and are up to
the task of responding to and cleaning up major oil spills.
I have concerns about whether Coast Guard has the resources to
adequately monitor the Vessel Response Plans for non-tanker ships and
whether Coast Guard's current training schedule is sufficient to
respond to a major spill.
Why is Coast Guard continuing to drag its feet on rulemaking? Is
Coast Guard too focused on the security aspects of the Agency and not
enough on marine environmental protection?
Finally, should we in the United States step up at the
international level, like private companies such as Intertanko have,
and work to ban toxic bunker fuel? We know the benefits of a lower-
sulfur fuel provides for respiratory health, and now we also need to
think about the potential affects of toxic fuel on our waters and
marine life.
As international trade continues to grow, the threat of a
catastrophic oil spill occurring off the coast of the United States
continues to grow exponentially.
I want to thank the Committee for holding this important hearing
and look forward to working with the agencies and groups present to
protect our waters and communities.
Senator Boxer. I think we need to reevaluate how Federal
agencies respond to these disasters, and I don't certainly have
all the answers, but Senator Feinstein and I, after our many
briefings, and Admiral Allen was helpful to us in telling us,
in his opinion, not that we necessary agreed with everything he
said, but we came up with a couple of approaches. One bill has
been referred to this Committee, Mr. Chairman, and I want to
thank you for your interest.
The Marine--the Maritime Emergency Prevention Act of 2007
would take away the ambiguity as to who is in charge when we
have conditions that are so hazardous that you can't see one
inch in front of your nose. It would say that the Coast Guard
declares a hazardous circumstances--declares an emergency
circumstance, and then it would be responsible to pilot that
ship in. And right now, what we have is this one's pointing
here, it was his fault, it was his fault, it was his fault. I
think, in case of emergency, I have so much faith in the Coast
Guard. I say to you, Admiral, I think they need to declare that
there is an emergency, and they take charge, and I think we
will--I believe, remove some of the problems that we face right
now. We need to give the VTS, the Vessel Traffic Service, the
resources they need to do the job, and I think we should be
ready to do that. The second bill that we introduce--yes, I
will.
Senator Stevens. Will you give them the authority to not to
have to file Environmental Impact Statements and not have to
clear it with all these other people in order to do that? If
you will, I'll go with you.
Senator Boxer. Well, Senator, that question I don't think
is appropriate at this time. I think we need to sit down and
look at what has to happen at the moment that they declare that
there is an immediate emergency and they bring the ship in. I
don't think it would have anything to do with environmental
reports. There's no reporting here. It's the when--who leads
the ship in. So I don't think that's an issue that would come
up. But if this is something you think we need to deal with,
fine. I don't get it. I don't think it has anything to do with
it.
The second bill that we introduced, which has been referred
to my Committee on Environment and Public Works, would do the
following: it would raise the liability limit for the cargo
ships to the level of the tankers, and it would lower the limit
if you had a double hull. Because I think Senator Kerry is
right; the double hull would help a lot. So if we give
financial incentives, in terms of a liability cap if you have a
double hull, I think that would help. We're also working on
legislation that will deal with getting the volunteers into the
cleanup sooner, because at this point, there was confusion and
we had volunteers testify who were just beside themselves
because they couldn't really help.
So Madam Chair, those are the two pieces of legislation
that I'd like to talk more with colleagues about. I also think
it's important that the Coast Guard look at some of the
rulemaking they're supposed to be doing. I don't know how up to
date they are on it, but I hear it's going a little slower than
we would like. So I want to--Oh, only one more point, very
quickly. The kind of fuel that's spilled is the worst type of
fuel, this bunker fuel. And there ought to be an international
treaty to ban this fuel, and our people in the Bush
Administration say they agree, but they are dragging and
dragging and dragging.
So we have a bill, Senator Feinstein and I, that would
simply say ``Bunker fuel is banned.'' When you're ready to come
into an area in any of our ports, you've got to change to a
cleaner fuel, and we have tremendous support from that, from
all these port communities. So these are some approaches. Thank
you for your interest and concern.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Senator Boxer. And I want to
thank Senators--Chairman Inouye and Vice Chairman Stevens for
their long and hard work, and attention to this issue, and to
many of my colleagues who were here when the EXXON VALDEZ
situation happened in the passage of the 1990 Act. I really
think it was groundbreaking legislation that has done a lot to
protect our environment and to reduce the risk of maritime oil
pollution.
The volume, though, of oil spilled nationwide is still far
too large, and spills are still too frequent. We are here today
because these events recently in California, I think, demand
that we reexamine America's oil pollution prevention and
response. We know that a container ship, the COSCO BUSAN,
collided with the San Francisco Bay Bridge as it was exiting
the bay. That collision created a 100-foot gash in the side of
the vessel, and fuel that was spilled was 58,000 gallons, as my
colleague from California just said, of bunker fuel into the
bay, and resulted in one of the largest oil spills in San
Francisco Bay in the last decade.
The fact that this ship was not an oil tanker transporting
oil, like the EXXON VALDEZ, is an important one because the
cargo ship was built to carry nearly 2 million gallons of oil
as fuel. And the true scale of that fuel tank that was ruptured
was 1 million gallons. The incident has brought to light how
vulnerable our oceans are to the oil spills from nontank
vessels that carry massive amounts of oil--not as cargo, but as
fuel. I believe this event highlights a need to reexamine the
protections of the Oil Pollution Act and whether they are
sufficient given today's reality.
Is the current regulation of such nontank vessels
sufficient in the light of the risks that they pose? When
nontank vessels are growing, both in size and in number, and
often carrying volumes of fuel oil in the millions of gallons,
is it really responsible for us to slow-walk the rules that
would regulate these vessels? In a world where the cost of
cleanup for a single catastrophic spill would cost several
billion dollars, should we really be toying with the solvency
of the Oil Spill Liability Trust Fund, the very source of
cleanup dollars in an emergency?
And when we have better communication and navigation
technology, safer ship designs, and more innovative ways to
save ships when things go wrong, isn't prevention a better
investment than paying for the cleanup in the next catastrophe?
As recent incidents in San Francisco, the Puget Sound, and
along the Pacific coastline can attest, much more remains to be
done to safeguard our waterways and our shorelines. Like many
of my colleagues here, Washington State knows these issues and
confronts them every day. Approximately 600 tankers and 3,000
barges move nearly 15 billion gallons of oil through Puget
Sound's very fragile ecosystem each year.
But over 6,000 larger nontank vessels, such as cargo ships
and freighters transit through the same waters each year, as
well. And since 1964, vessels have spilled approximately 4.8
million gallons of oil in Washington waters. Of this, 184,000
gallons were spilled after the Oil Pollution Act of 1990. I,
too, will submit the rest of my testimony for the record,
because I do want to hear the testimony of those witnesses, but
I think it's safe to say that now we are 17 years after the Oil
Pollution Act of 1990, and we're nearly 30 years since my
predecessor Warren Magnuson, Senator Magnuson, banned
supertankers in Puget Sound. I hope we can continue to make
progress on this vital issue, and that's why we're here today,
to hear from these panelists who will join us to bring insight,
to examine the risks and threats and the vulnerabilities that
we still face, particularly from nontank vessels.
So I want to thank the panelists on the first panel.
Admiral Allen of the U.S. Coast Guard; Ms. Mary Glackin, Deputy
Under Secretary of the National Oceanic and Atmospheric
Administration; and Ms. Susan Fleming, Director of Physical
Infrastructure for the GAO. Welcome, and thank you for being
here, and for your patience in this hearing this afternoon. And
Admiral Allen, if you could start with your testimony, we're
asking each of the witnesses to make a 5-minute statement.
STATEMENT OF ADMIRAL THAD W. ALLEN, COMMANDANT,
U.S. COAST GUARD, DEPARTMENT OF HOMELAND SECURITY
Admiral Allen. Good afternoon, Madam Chair, Senator Snowe,
and distinguished members of the Committee. Thank you for the
opportunity to appear before the Committee today on this very
important topic. I would ask that my full testimony be
submitted for the record, and I have a brief opening statement.
The risks presented by the fuel carried on nontank vessels
have been recognized for some time, and the recent spill in San
Francisco has underscored the need to understand the causes and
to prevent spills from these vessels. I think we have all been
very clear in our statements here today; there is no better
approach to this problem than prevention. Once the oil has been
discharged into the environment, there are no winners. And the
best any response can do is to mitigate the impact.
I'd like to provide the Committee with some data today that
frames the size of the fleet and the threat that we are
discussing here today. Based on data through December of 2007,
the Coast Guard has received and reviewed response plans from
more than 13,000 nontank vessels that call on U.S. ports. Of
that number, over 8,000 are classified as ocean-buoyant freight
vessels, such as the COSCO BUSAN. The majority of these vessels
have fuel capacity between 10,000 and 20,000 barrels. Each
barrel contains 42 gallons, so the range is 420,000 to 840,000
gallons, on average.
However, there are 360 vessels that carry more than 50,000
barrels, and there are 100 that carry more than 70,000 barrels.
The highest capacity freight ship listed in our records is
173,000 barrels, or about 7.3 million gallons. And we all know
the discharge from the EXXON VALDEZ was close to 10 million.
The COSCO BUSAN had a capacity of 52,000 barrels, or 2.2
million gallons, as was stated previously.
To address the threat posed by nontank vessels, there have
been several international and domestic steps taken, and more
are planned and more are needed, as you have stated. Under the
provisions of MARPOL Annex I, single-hulled fuel tanks are
being phased out. Double hulls for fuel tanks are required for
ship contracts awarded after the 1st of August 2007, and for
ships delivered after 1 August 2010. There are also provisions
that require a shipboard oil emergency plan. Domestically,
we've gone further than the international standards. Based on
recent legislation by the Congress in 2004 and 2006, we have
established a response plan requirement for nontank vessels
greater than 400 gross tons.
The legislation created an August 2005 deadline for the
implementation of these plans. The Coast Guard issued interim
guidance in February of 2005 that provided interim
authorization for nontank vessels to operate under Coast Guard-
reviewed response plans, pending the development of new
Committee regulations. I noted earlier plans for over 13,000
vessels have been received and reviewed by the Coast Guard. By
comparison, we have reviewed response plans for 7,800 tank
vessels in that same period of time. Clearly, the number and
increasing fuel capacity of large freight ships justify a
review of all aspects of spill prevention and response.
Another significant area of interest is the limit of
liability for a responsible party under the provisions of OPA
90. For a number of years, the limits of liability remained as
established at the time of OPA 90. However, as you know, they
were significantly increased after the Coast Guard and Maritime
Transportation Act of 2006 was passed. We believe increasing
liability limits per incident for single-hulled tankers,
barges, and nontank vessels greater than 300 gross tons would
result in a more balanced cost-share between responsible
parties and the Oil Spill Liability Trust Fund. However, that
legislation did not increase in a like manner the requirement
for a Certificate of Financial Responsibility, and we are
pursuing a rule to adjust that level, and expect to issue it in
2008.
Madam Chair, I would like to close with the comment
regarding Coast Guard rulemaking, as mentioned earlier. My
comments here today reflect a previous conversation that you
and I had with your staff, as well as other Members of
Congress. The current backlog of rules to be developed by the
Coast Guard exceeds 90. On 9/11/2001, it was approximately 50.
Despite tremendous effort by our Coast Guard personnel, we are
not gaining ground, and many important rules have been queued
awaiting required resources. The situation is unsatisfactory to
me, I know it's unsatisfactory to you, and it erodes confidence
in our commitment to important work. I've tasked the Coast
Guard and Marine Safety and Security Council to assess the
current situation, and to provide any options to reduce this
backlog.
Given the multiple interests involved, I intend to convene
a National Stakeholders Meeting to seek input and advice on
this effort. I would ask for the involvement of the Committee
staff in this effort, as well. Within this context, the Coast
Guard will continue to aggressively partner with our
stakeholders to prevent incidents and improve response to
incidents as they occur. We provided interim guidance to our
field commanders, based on feedback from the COSCO BUSAN
response, and I have initiated an Incident Specific Review of
the responses, which includes third parties.
The results of that review will be made available before
the spring hearings, and I will provide the Congress the
results and make those results available to the public. Thank
you for the opportunity to be here today. I will be glad to
answer any questions.
[The prepared statement of Admiral Allen follows:]
Prepared Statement of Admiral Thad W. Allen, Commandant,
U.S. Coast Guard, Department of Homeland Security
Good afternoon Madam Chairman and distinguished members of the
Committee. It is a pleasure to appear before you today to discuss the
Coast Guard's efforts to reduce and mitigate oil spills from nontank
vessels. Today I will discuss requirements and implementation of
nontank vessel response plans and the status of rulemaking pertaining
to nontank vessels. The Coast Guard is absolutely committed to
protection of the environment as a valuable public good.
The Coast Guard plans and prepares for significant oil spill
incidents, including worst case discharge scenarios, through Area
Committees and Regional Response Teams. These entities represent a
partnership of Federal, state, and local agencies and tribal, non-
governmental and private organizations. Through committee process, Area
Contingency Plans are reviewed, tested, and updated to best manage oil
spill response operations. These plans identify environmentally
sensitive areas within the local area of responsibility, establish
appropriate protection strategies, and list all potential locations for
staging response equipment. The plans describe command and control
structures, the role of volunteers, establish conditions for using
special response procedures such as the use of dispersants, and
identify the National Response System and local assets that can be
brought to bear in the event of an oil spill incident.
The Area Committees and Regional Response Teams oversee other
preparedness activities such as regular government and industry
exercises, training evolutions, and risk assessments. Their activities
are overseen by the National Response Team, and operate under the aegis
of the National Contingency Plan and the National Response Framework.
The creation of Coast Guard Sectors unified port and coastal
operational commands, placing increased resources in the hands of
Federal On-Scene Coordinator. The Coast Guard conducts regular,
rigorous, oil spill exercises, inspects vessels and facilities for
safety and environmental compliance, and participates in a host of
prevention, planning and preparedness activities related to
environmental protection and response. Incident Command System training
is required for all Coast Guard personnel ensuring the skills necessary
to manage all hazards incidents, including oil spill response
operations. In addition, Coast Guard Strike Teams offer unique
capabilities and expertise to assist local response operations and the
National Strike Force Coordination Center conducts regular assessments
of the capabilities and readiness of privately owned Oil Spill Removal
Organizations.
Nontank Vessel Response Plans
The Coast Guard and Maritime Transportation Act of 2004 amended the
Federal Water Pollution Control Act to require the preparation and
submission of oil spill response plans for nontank vessels. The Act
defined a ``nontank vessel'' as a self-propelled vessel of 400 gross
tons or greater, other than a tank vessel, that carries oil of any kind
as fuel for main propulsion and that is a vessel of the United States
or operates in the navigable waters of the United States. Under the
Act, response plans for nontank vessels were required to be submitted
to the Coast Guard by August 8, 2005. The Coast Guard and Maritime
Transportation Act of 2006 was signed by the President on July 11, 2006
and further amended the Federal Water Pollution Control Act. Section
608 of the CGMTA 2006 contained provisions to further amend the FWPCA
with regard to applicability standards for nontank vessels. All nontank
vessels that are not assessed under the convention tonnage measurement
system will use the regulatory tonnage admeasurements system for their
applicability tonnage. Additionally, U.S. vessels that are not
operating on the navigable waters of the United States are not required
to comply with this law.
The Act provided 1 year for the development and submission of
nontank vessel response plans. The Coast Guard did not have adequate
time to provide for public comments and then develop and publish
regulations within the one-year timeframe. Under the authority provided
by 33 U.S.C. 1321(j)(5)(G), until regulations are in effect, the Coast
Guard has authorized nontank vessels to operate without an approved
plan for up to 2 years if the owner or operator certifies availability
of personnel and equipment necessary to respond to a worst case
discharge. On February 4, 2005, the Coast Guard published Navigation
and Vessel Inspection Circular 01-05 (NVIC 01-05) entitled, ``Interim
Guidance for the Development and Review of Response Plans for Nontank
Vessels.'' This document provides guidance to help vessel owners and
operators develop plans and receive interim operating authorization
from the Coast Guard. The publishing of NVIC 01-05 was announced to the
public and industry by Federal Register Notice.
On June 24, 2005, the Coast Guard published another Federal
Register Notice and Request for Comments, concerning Nontank Vessel
Response Plans (70 FR 36649) which informed the public of issues
related to this legislation, posed questions on the size of the
population of vessels affected, discussed Coast Guard efforts to engage
the regulated community, and informed the owners and operators of
nontank vessels of the Coast Guard's enforcement policy. The Coast
Guard is currently reviewing, researching, and answering the comments
received in response to the Federal Register Notice and Request for
Comments and is drafting a regulatory work plan.
As of December 1, 2007, the Coast Guard has received and reviewed
approximately 2,359 nontank vessel response plans covering 13,306
nontank vessels. As vessel owners submit their nontank plans, these
plans are reviewed and 2 year interim operating authorization letters
are issued. As these interim operating authorization letters expire,
the Coast Guard reissues new interim operating authorizations based
upon the vessel owner's certification that the necessary private
resources needed to respond to a worst case discharge are ensured by
contract or other approved means, per 33 U.S.C. 1321(j)(5)(D).
Oil Spill Threat
Nontank vessels pose a threat to the marine environment due to the
fuel oil capacities of these vessels. Ship fuel, also referred to as
``bunker'', generally presents a response challenge due to its density
and inability to break down in the marine environment as fast as
lighter oils. This is problematic when bunker comes in contact with
shorelines, marine mammals, birds and environmentally sensitive areas.
Of the 13,000 nontank vessels in vessel response plan files, 8,364 of
these vessels are oceangoing freight vessels such as container,
breakbulk, roll-on/roll-off or bulk cargo ships. The majority of these
freight vessels have a fuel capacity between 10,000 and 20,000 barrels.
There are, however, over 360 freight ships with a fuel capacity of
50,000 barrels or more, and about 100 freight ships with a fuel
capacity over 70,000 barrels. The highest fuel capacity we have listed
for a freight ship is over 173,000 barrels. The M/V COSCO BUSAN, with a
fuel capacity of approximately 52,000 barrels is on the larger side.
Significant oil spills from nontank vessels over the years have clearly
identified nontank vessels as an ongoing threat to the marine
environment. Spills such as the Japanese freighter KUROSHIMA in Summer
Bay, Alaska in 1997, NEW CARISSA off Coos Bay, Oregon in 1999, the
SALENDANG AYU off Unalaska Island, Alaska in 2004 and the COSCO BUSAN
in San Francisco Harbor in 2007 demonstrate the hazard posed by this
type of vessel.
New Requirements for Oceangoing Freight Ships
Nontank vessels are vulnerable to spills caused by groundings,
collisions and allisions due to the location and capacity of onboard
fuel tanks. Fuel is generally carried in tanks located in the bottom or
side of the vessels without double hull protection. International oil
spill prevention and response requirements applicable to oceangoing
freight ships are based on build date and fuel capacity. These
requirements address issues such as double hull requirements,
accidental outflow requirements, and emergency response plans.
Oceangoing freight vessels are subject to the International
Convention for the Prevention of Pollution from Ships otherwise
referred to as MARPOL 73/78. New MARPOL Annex I regulation 12A--Oil
Fuel Tank Protection has entered into force and applies to all ships (a
``ship'' means a vessel of any type whatsoever operating in the marine
environment and includes hydrofoil boats, air-cushion vehicles,
submersibles, floating craft and fixed or floating platforms) with an
aggregate oil fuel capacity of 600 cubic meters (this equates to
approximately 158,500 gallons or 3,775 barrels) and above with a
building contract on or after 1 August 2007, or which are delivered on
or after 1 August 2010. The 600 cubic meters applicability threshold
was established because it generally equates to the MARPOL 600 ton
deadweight applicability threshold for oil tanker double hull
requirements in regulation 19. The regulation provides two options for
the protection of fuel tanks: (1) a prescriptive double hull
requirement; or (2) a probabilistic accidental oil outflow performance
requirement. There is an exclusion for small fuel tanks of 30 cubic
meters or less. OPA 90 requires all new build tank vessels (tank ships
and barges) that carry oil in bulk to be double hulled. There is no
bottom limit of how much cargo oils are carried and OPA 90 standards
are enforced on all tank vessels that operate in the U.S. waters.
Regulation 37 of Annex I of MARPOL 73/78 requires that each ship
maintain a Shipboard Oil Pollution Emergency Plan (SOPEP) that
addresses and mitigates oil spills. There are significant differences
between SOPEP and Federal Water Pollution Control Act requirements.
SOPEPs require information in the following areas: spill reporting
provisions, casualty/spill mitigation procedures, and vital vessel
information (vessel name, VIN, principal characteristics). FWPCA plans
require the same information as a SOPEP, but also include more
stringent requirements including: follow-up report; procedures for
equipment failure, discharge equipment deployment, internal transfers;
emergency towing; geographical specific appendices including
information on Oil Spill Removal Organizations (OSROs); shore-based
response activities, including use of an ICS or equivalent system;
identification of spill management team; Salvage and Marine
Firefighting; lightering provider; Qualified Individual; training;
exercises; and vessel-specific appendix, including maximum most
probable and worst case discharge amounts, oil groups carried, tank
capacities, and specific vessel diagrams.
Adequacy and Enforcement of Vessel Response Plans
The Coast Guard currently maintains 837 tank vessel response plans
covering 7,841 vessels and 2,359 nontank vessel response plans covering
13,306 vessels, both U.S. and foreign flagged. The Coast Guard also
reviewed and approved 2,594 individual Shipboard Oil Pollution
Emergency Plans (SOPEPs) for U.S. flag vessels. Additionally, the Coast
Guard reviewed and approved 570 Shipboard Marine Pollution Emergency
Plans (SMPEPs) for U.S. flag vessels that carry some form of hazardous
substance aboard to be in compliance with Regulation 17 of Annex II of
MARPOL 73/78.
Challenges
One area of vessel response plan enforcement that has been
challenging is required transit coverage for vessels operating within
our Exclusive Economic Zone, but beyond our territorial sea and
navigable waters jurisdiction. As our maritime domain awareness
improves with advances in technology, so does our cognizance that there
are vessels transiting U.S. waters without the required coverage per
vessel response plan regulations. We are currently examining this issue
for possible changes in our enforcement practices to address areas in
the Nation where vessel traffic poses environmental risks and ensure
the necessary response resources are in place.
Tank vessel response plans required by the Oil Pollution Act of
1990, required tank ship owners to ensure the availability of private
personnel and response resources necessary to respond to a worst case
discharge including fire and explosion. In the vast majority of U.S.
ports, oil spill removal organizations, or ``OSROs'' are contracted by
vessel owners to provide the required resource capacity and spill
management expertise to respond to worst case discharge scenarios.
However, in some ports there is far more freight ship traffic than tank
ship transits. The introduction of nontank vessel response plan
statutory and regulatory requirements provides for an opportunity to
increase oil spill response equipment in support of the national
response plan, especially in remote locations.
Many states, including Alaska, Washington, Oregon, California and
Texas passed legislation requiring nontank vessels to have vessel
response plans. The state requirements are founded upon OPA 90 tank
vessel response plan requirements, however, there are inconsistencies
from state to state in applicability and scope and no two states have
adopted precisely the same requirements. Thus vessels seeking to trade
between states have to satisfy increasingly disparate requirements
including maintaining multiple response plans.
Vessel Response Plan Related Rulemaking Projects
The response plan regime for vessels will change in the future. New
domestic and international requirements will build on the existing
response plan foundation to provide an enhanced pollution response
regime. The Coast Guard has several vessel response plan improvement
rulemaking projects in various stages of development pertaining to the
use of dispersants, oil spill tracking, salvage and marine firefighting
response equipment, implementation and incorporation of International
Maritime Organization standards into our domestic regulations and the
development of hazardous substance response plans for vessels and
facilities. The following is a list of related rulemaking projects:
Title: Vessel and Facility Response Plans for Oil: 2003
Removal Equipment Requirements and Alternative Technology
Revisions.
Docket Number: USCG-2001-8661.
Summary: The Coast Guard proposes changes to its requirements
for oil-spill removal equipment under vessel response plans and
marine transportation-related facility response plans. These
changes increase the minimum available spill removal equipment
required for tank vessels and facilities, add requirements for
new response technologies, and clarify methods and procedures
for responding to oil spills in coastal waters.
Status: A Notice of Proposed Rulemaking (NPRM) was published
on October 11, 2002 (67 FR 63331). A Final Rule is expected in
the near future.
Title: Salvage and Marine Firefighting Requirements; Vessel
Response Plans for Oil.
Docket Number: USCG-1998-3417.
Summary: The Coast Guard proposes to revise the vessel
response plan salvage and marine firefighting requirements for
tank vessels carrying oil. These revisions clarify the salvage
and marine firefighting services that must be identified in
vessel response plans. The proposed changes will assure the
appropriate salvage and marine firefighting resources are
identified and available for responding to incidents up to and
including the worst-case scenario. The proposed rulemaking will
also set new response time requirements for each of the
required salvage and marine firefighting services.
Status: An NPRM was published on May 10, 2002 (67 FR 31868).
Title: Nontank Vessel Response Plans.
Summary: The Coast Guard will implement a statutory
requirement that an owner or operator of a self-propelled,
nontank vessel of 400 gross tons or greater, which operates on
the navigable waters of the United States, must prepare and
submit an oil spill response plan to the Coast Guard. The
rulemaking will specify the content of a response plan,
including the requirement to plan for responding to a worst-
case discharge and a substantial threat of such a discharge.
The rulemaking will also specify the procedures for submitting
a plan to the Coast Guard.
Status: To provide guidance to industry, a Navigation and
Vessel Inspection Circular (NVIC) was published on February 4,
2005. NVIC 01-05 is titled ``Interim Guidance for the
Development and Review of Response Plans for Nontank Vessels.''
Change One to NVIC 01-05 was published on January 13, 2006. The
work plan for this rulemaking is being finalized.
Title: Tank Vessel Response Plans for Hazardous Substances.
Docket Number: USCG-1998-4354.
Summary: The Coast Guard proposes regulations requiring
response plans for certain tank vessels operating on the
navigable waters of the United States that could reasonably be
expected to cause substantial or significant and substantial
harm to the environment by discharging a hazardous substance.
These regulations are mandated by the Oil Pollution Act of 1990
(OPA 90), which requires the President to issue regulations
requiring the preparation of hazardous substance response
plans. The primary purpose of requiring response plans is to
minimize the impact of a discharge of hazardous substances into
the navigable waters of the United States.
Status: An NPRM was published on March 22, 1999 (64 FR
13734).
Adequacy of Nontank Vessel OPA Liability Limits
While OPA liability limits for vessels were increased significantly
under the Coast Guard and Maritime Transportation Act of 2006, further
increases should be considered including increases for nontank vessels.
The Secretary addressed the adequacy of nontank vessel OPA
liability limits in a January 5, 2007, report to Congress on vessel
liability limits in general pursuant to section 603(c) of the CG&MT Act
of 2006. The first annual update of the report was provided to Congress
on October 10, 2007.
As updated, the limited data available indicates that increasing
liability limits per incident for single hull tank ships, tank barges
and nontank vessels greater than 300 gross tons in particular would
result in a more balanced cost share between responsible parties and
the Oil Spill Liability Trust Fund while positively impacting the Fund
balance.
OPA 90 provides for exceptions from limits when, for example, the
incident is caused by gross negligence, willful misconduct or a
violation of a Federal safety, operating or construction regulation by
a responsible party, its agents, employees or contractors.
Oil Spill Prevention, Preparedness, and Research and Development in a
Post-9/11 World
Oil spill prevention and response is a very important function of
the Coast Guard. The model set forth by Area Committees and the Area
Contingency Plan process provided a valuable framework for the creation
of Area Maritime Security Committees and Area Maritime Security Plans.
Coast Guard oil spill response continues to serve as a model for all
hazards response in the maritime domain. We strive to leverage our
partnerships with the maritime industry, Federal, state, and local
agencies, and Congress to ensure our nations ports waterways operate
safely, securely, and in a manner that protects our environment. The
shared goal in preventing or responding to major maritime incidents,
regardless of the cause, is the same, to save lives, preserve property,
protect the environment and minimize disruption to the marine
transportation system.
The Coast Guard continues to conduct regular, rigorous, oil spill
exercises, inspect ships and facilities for safety and environmental
compliance, and participate in a host of prevention, planning and
preparedness activities related to environmental protection and
response. We are absolutely committed to the environmental protection
mission and recognize its importance to the public good. The
environmental protection mission is part of the well-balance portfolio
the Coast Guard maintains to ensure our nations ports and waterways
remain safe, secure, and clean.
Thank you for the opportunity to testify before you today. I will
be happy to answer any questions you may have.
Senator Cantwell. Thank you, Admiral Allen. Thank you for
your testimony. We will put the whole thing in the record. And
let's to turn Ms. Glackin. Thank you for being here.
STATEMENT OF MARY M. GLACKIN, DEPUTY UNDER
SECRETARY OF COMMERCE FOR OCEANS AND ATMOSPHERE,
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION,
U.S. DEPARTMENT OF COMMERCE
Ms. Glackin. Good afternoon, Chairman Cantwell, Ranking
Member Snowe, and members of the Committee. I appreciate----
Senator Cantwell. If you could just pull that microphone a
little closer to you. Thank you.
Ms. Glackin. OK, great. Is that better? OK. I appreciate
the opportunity to join you this afternoon. As the Chairman
said earlier, I'm Mary Glackin, the Deputy Under Secretary of
Commerce for Oceans and Atmosphere at NOAA. And I wanted to
take this opportunity to highlight some of the aspects of my
written testimony about NOAA's many roles in preventing and
responding to oil spills, as well as the importance of research
and development to both of those activities.
Each year, our nation's ports handle approximately 44
percent of the U.S. international merchandise trade by value.
On any given day, a variety of vessels, including tankers and
container ships, carry oil and other goods to their
destinations. Whenever these vessels travel, they pose a threat
of oil spills. And it's been pointed out here today, prevention
is key to this, and one of the key parts of prevention is
promoting safe marine transportation. Once a spill does occur,
we must act quickly and effectively to mitigate any harmful
effects and restore injured resources. To do this, we must
continue to be prepared for spills and have adequate response
capabilities.
I'll speak first of NOAA's role in prevention. The most
effective way to protect the marine environment is to prevent a
maritime accident from ever occurring. One role that NOAA plays
that is key in spill prevention is to provide accurate and
timely information to mariners through nautical charts. These
charts are the roadmaps that provide the mariners with the lay
of the land and delineate important information required for
vessel safety. Toward that end, NOAA is building a suite of
Electronic Navigational Charts, and these charts, along with
global positioning and real-time water levels, current and
weather data, provide a safe and profitable waterway system.
To further improve tools for prevention, NOAA is also
updating the hydrographic data on its charts, using surveys and
the latest technologies. These updates can prevent accidents by
exposing previously undetected hazards. The data collected also
supports spill response trajectory models and coastal
management efforts.
And finally, under prevention, NOAA's Physical
Oceanographic Real Time System or PORTS Program provides real-
time oceanographic and meteorological data at key locations.
This information provides mariners and port authorities with an
awareness of the current water levels and weather, which is
important to prevent groundings. It allows mariners the time
they need to anticipate the need for difficult maneuvers.
Shifting to NOAA's role in response, when an oil spill
occurs, Federal, state, and local agencies across the country
call on NOAA to help in a response. NOAA's suite of scientific
products and services, and the expertise of our personnel, are
critical in mitigating harm. They are also critical in
providing response information, restoring natural resources,
and making science-based decisions. During an oil spill, NOAA's
Office of Response and Restoration provides scientific support
services, such as overflight observations, identification of
sensitive environmental areas, and we also provide shoreline
surveys, toxicity assessments, and the evaluation of cleanup
alternatives.
NOAA is also responsible for providing real-time ocean and
coastal observations to determine the location and the
trajectory of an oil spill. NOAA's Integrated Ocean Observing
System program is working to increase the availability and the
compatibility of this data among all oil spill response
partners.
Response training and exercises are also essential to
maintain capabilities. NOAA has aided in the response to the
COSCO BUSAN spill by a major field exercise called NOAA Safe
Seas that we conducted in the San Francisco Bay area in 2006.
Safe Seas has allowed us to train hundreds of regional staff
and Beach Watch volunteers in various aspects of response, and
to test response protocols. Although there is a high level of
interest in supporting a similar training exercise in the
Northwest, we have been unable to support such an effort at
current funding levels.
After an initial response to an oil spill, NOAA develops a
restoration plan through the Natural Resource Damage Assessment
Process. Within this process, NOAA experts determine how to
best restore injured resources. We'll also ascertain the most
appropriate restoration products that will compensate the
public for lost services.
As I mentioned earlier, research is critical to improving
oil spill preparedness, response, and restoration. One focus of
our oil spill research is our partnership with the Coastal
Response and Research Center at the University of New
Hampshire. This partnership stimulates innovation in spill
preparedness response and damage assessment. In the past
several years, oil spill research has focused on improving
spill models and studying the effects of released oil on
affected species. We're also focusing on human dimensions.
So in conclusion, I'll just mention that I think you'll
agree that NOAA's expertise is a critical component in
preventing further incidents, restoring the adverse effects on
natural resources, and aid in planning and responding. I'd be
happy to respond to any questions the Committee has.
[The prepared statement of Ms. Glackin follows:]
Prepared Statement of Mary M. Glackin, Deputy Under Secretary of
Commerce for Oceans and Atmosphere, National Oceanic and Atmospheric
Administration, U.S. Department of Commerce
Good afternoon, Chairman Cantwell, Ranking Member Snowe, and
Members of the Committee. Thank you for the opportunity to join you
today. I am Mary Glackin, Deputy Under Secretary of Commerce for Oceans
and Atmosphere, within the National Oceanic and Atmospheric
Administration (NOAA). I will be discussing NOAA's role in preventing
oil spills, our role in spill response, and the importance of research
and development for both. I will also highlight three examples of non-
tanker vessel spills where NOAA assisted in the response efforts.
Overview
Our marine transportation system is an intrinsic part of the U.S.
economy. According to a recent report from the Bureau of Transportation
Statistics, our marine transportation system conveys as much as 78
percent of U.S. international merchandise trade by weight and 44
percent by value through our Nation's ports each year, far more than
the other transportation modes. On any given day, as part of this
system, vessels that contain large quantities of fuel oil travel
through our waterways to their destinations. These vessels include not
only oil tankers but also container ships, fishing vessels, ferries,
and other public and private vessels. Wherever these vessels travel,
their daily transits pose a threat of oil spills. Over the past fifty
years, ships have doubled in length, width, and draft, and seagoing
commerce has tripled. The Department of Transportation projects that by
2020 the volume of marine trade will more than double, particularly in
international container traffic..
Despite this increase in vessel traffic and size, the number of oil
spills in U.S. coastal waters has declined in the two decades since the
EXXON VALDEZ oil spill. However, the SELENDANG AYU, KUROSHIMA, and SS
CAPE MOHICAN vessel spills, along with the recent COSCO BUSAN incident,
serve as reminders that oil spills still happen.
When oil spills into our coastal waters, it can harm people and the
environment and cause widespread economic effects. The best remedy is
to prevent oil spills by promoting safe marine transportation. Once a
spill occurs, we must act quickly and effectively to mitigate any
harmful effects and restore injured resources. To ensure a quick and
effective response, we must continue to be prepared for spills by
having adequate response capacity and capabilities on hand.
Response training and exercises are essential to maintaining
capabilities. Together with the U.S. Coast Guard, the State of
California, and the Department of the Interior, NOAA conducted a major
field exercise called NOAA Safe Seas 2006 in the San Francisco Bay area
in the summer of 2006. Safe Seas allowed us to train hundreds of
regional staff and Beach Watch volunteers in various aspects of oil
spill response, and to test the response protocols that would be used
for a real spill. This exercise reinforces the value of our efforts to
develop improved capabilities, maintain our capacity, and continue
response-related research and development efforts for a timely and
effective response. Due to this exercise, NOAA was able to integrate
high frequency radar and other data from the Central and Northern
California Integrated Ocean Observing System into pollution trajectory
models. Local NOAA personnel and other responders received specific
capability training that allowed them to function more efficiently
within the Command Post and in the field during the response to the
recent COSCO BUSAN oil spill.
NOAA's Role in Prevention
It is critical to both the Nation's economy and the coastal
environment that the marine transportation system continues to function
safely and efficiently as its use grows. The most effective way to
protect the marine environment is to prevent the maritime accident from
ever occurring. NOAA plays a vital role in spill prevention by
providing accurate and timely information to mariners.
Nautical charts, the mariner's most basic tool, are the `road maps'
that provide the mariner with the overall `lay of the land' and
delineate the fundamental information required for the vessel to safely
navigate the coastline. NOAA is building and maintaining a suite of
Electronic Navigational Charts (ENCs) to fuel electronic navigation
systems that can also integrate a variety of environmental data.
Funding to complete this suite, for full coverage of U.S. waters, is
included in the FY 2008 President's Budget Request. NOAA is also
updating the hydrographic data on its nautical charts by surveying with
the latest full bottom coverage technologies. Much of the 3.4 million
square nautical miles (nmi2) depicted on these charts were
collected prior to 1940 with obsolete methods. NOAA has prioritized
500,000 nmi2 of this area as navigationally significant, and
is able to survey approximately 3,000 nmi2 a year using
state-of-the-art technology. Not only do these updates show changes in
coastal bathymetry, but more importantly, they can prevent maritime
accidents by exposing previously undetected hazards to navigation. The
data collected also support scientific uses, spill response trajectory
models, and other coastal and emergency management efforts.
Even the most accurate nautical chart cannot help the mariner if
the vessel's location is not known with certainty. Determining a
vessel's precise position has been a challenge to mariners for
centuries. With the advent of the Global Positioning System (GPS), it
has become possible for mariners to determine their position to within
meters. NOAA's development and implementation of the Continuous
Operating Reference System program enables even more precise
applications of GPS.
Mariners have traditionally relied on astronomically predicted
water level and current information to prevent groundings and
anticipate where difficult maneuvers might be required. However,
weather and other factors can cause actual conditions to deviate
significantly from predictions, misleading the mariner, and increasing
the risk of an accident. NOAA's Physical Oceanographic Real Time System
(PORTS') program provides real time oceanographic and
meteorological data at key locations that provides mariners with a
situational awareness of their operating environment that can help
avoid accidents. The 14th PORTS' was just established in
Mobile, Alabama and we are working with the USCG to integrate
PORTS' data into its Automated Identification System. Two
different NOAA-funded reports studying the economic impacts of
PORTS' in Florida and Texas have documented that ports with
established PORTS' have an over 50 percent reduction in
groundings (both reports available at http://tidesandcurrents.noaa.gov/
pub.html).
In addition to PORTS', NOAA's National Marine Sanctuary
Program has taken steps to address a number of vessel traffic measures
with the International Maritime Organization, including offshore
routing measures, reporting measures, Areas to be Avoided (ATBA's),
Particularly Sensitive Sea Areas and No-Anchoring Areas. These areas,
including the voluntary ATBA off the Olympic Coast of Washington State
and the mandatory ATBA off the Florida Keys, have provided additional
protection for the National Marine Sanctuaries. Off the Olympic Coast,
NOAA is working with both the U.S. and Canadian Coast Guard to address
vessels that have been identified as non-compliant; current compliance
rates are greater than 97 percent over the last 2 years.
NOAA's Role in Response
Federal, state, and local agencies across the country call on
NOAA's scientific support when an oil spill occurs. NOAA's suite of
scientific products and services and the expertise of our personnel are
critical in mitigating harm, providing critical information for
allocation of response assets, restoring adversely affected natural
resources, and making smarter response decisions through the
application of science. Under the Oil Pollution Act of 1990 (OPA), the
National Contingency Plan, and the National Marine Sanctuaries Act,
when an oil spill happens, NOAA is responsible for:
Providing scientific support to the Federal On-Scene
Coordinator, whether the FOSC is EPA or USCG;
Representing the Department of Commerce on the National and
Regional Response Teams;
Working with our Federal and state co-trustees to assess and
restore injured natural resources and the services they
provide;
Fulfilling responsibilities to protect resources when a
National Marine Sanctuary is affected; and
Participating on the Interagency Coordinating Committee on
Oil Pollution Research, which coordinates research and
development efforts among industry, universities, and others.
During an oil spill, NOAA's Office of Response and Restoration
provides scientific support services such as trajectory predictions,
overflight observations, identification of sensitive environmental
areas, shoreline surveys, toxicity assessment, and evaluation of
cleanup alternatives. The Emergency Response Division is charged with
developing all of NOAA's response models and tools, conducting planning
in U.S. coastal areas and the Great Lakes, maintaining a 24/7
notification system, and responding to more than 100 hazardous material
release notifications each year.
The NOAA Scientific Support Coordinator (SSC) is the key player in
the NOAA effort to provide scientific support to an oil spill response.
Nine SSCs are located around the country, in USCG Districts, to respond
around the clock to any emergencies involving the release of oil or
hazardous materials into the oceans or atmosphere. The SSC is supported
by a diverse group of scientists in Seattle, WA, who are experienced in
dealing with spill response. The SSC also coordinates access to all of
NOAA's capabilities including: spot weather forecasts, emergency
coastal survey and charting capabilities, aerial and satellite imagery,
and real-time coastal ocean observation data to assist response
efforts.
During the COSCO BUSAN oil spill, NOAA's Office of Response and
Restoration deployed seven people to the spill site to carry out
overflights, coordinate beach surveys, develop cleanup standards and
protocols, evaluate risks and effects to natural resources, and
otherwise support the Federal On-Scene Coordinator. In addition, NOAA
provided four technical experts in trajectory modeling, toxicity
assessment, and other specialties to support the response 7 days a week
from Seattle, WA. NOAA also provided over 30 personnel from the
National Marine Sanctuary Program and coordinated 90 volunteers (Beach
Watch) that were trained in the Safe Seas 2006 exercise. The Safe Seas
exercise improved the capability of NOAA staff and volunteers to
provide expertise to the Command Post in Liaison, the Environmental
Unit, Wildlife Operations and the Joint Information Center as well as
Natural Resource Damage Assessment Activities, in response to the
recent COSCO BUSAN spill.
During a coastal oil spill event, NOAA is also responsible for
providing real-time ocean and coastal observations to our Hazardous
Materials (HAZMAT) teams and to the USCG to determine the location and
trajectory of an oil spill. Currently, there is no easy or centralized
access to the thousands of high frequency radar surface current
measurements, which are critical for pollution tracking and response
planning. NOAA HAZMAT staff must contact individual radar operators for
data. In addition, the data are not compatible from site to site and
may have gaps in space and time. NOAA's Integrated Ocean Observing
System program is working to increase availability and compatibility of
these data, in partnership with regional data providers, through the
development of common data standards and access points.
Effective spill response also depends on effective planning and
preparation. NOAA promotes preparedness by working closely with
regional response teams and local area committees to develop policies
on dispersant use, best cleanup practices, communications, and ensuring
access to science-related resources, data and expertise. In addition,
NOAA enhances the state of readiness by conducting training for the
response community to develop better response tools including
trajectory models, fate models, and integrating improved weather and
ocean observing systems data into spill trajectory forecasts.
NOAA's Role in Damage Assessment and Restoration
Oil spills may also diminish the services that natural resources
provide us, such as fishing, boating, beach going, and wildlife
viewing, as well as ecological services, such as providing habitat,
nutrient cycling, and energy transfer through food webs.
As an agency with Federal trustee responsibilities for many marine
resources, NOAA seeks, pursuant to OPA, restoration of ocean and
coastal resources that are harmed by an oil spill. NOAA's trust
resources include: commercial and recreational fisheries, anadromous
fish, selected endangered and threatened marine species, selected
marine mammals, wetlands, mangroves, seagrass beds, coral reefs, and
other coastal habitats, all resources associated with National Marine
Sanctuaries and National Estuarine Research Reserves. Restoration is
accomplished through the Natural Resource Damage Assessment (NRDA)
process--by assessing injuries, developing a restoration plan that is
subject to public review, and presenting a claim for restoration costs
to the responsible party. If the responsible party does not pay the
claim, the trustees may litigate or file a claim for restoration costs
with the Oil Spill Liability Trust Fund.
For incidents occurring in, or creating a significant threat to, a
National Marine Sanctuary, the National Marine Sanctuaries Act (NMSA)
provides jurisdictional authority. The NMSA prohibits destroying,
causing the loss of, or injuring any sanctuary resource managed under
the statute or regulations for that sanctuary. Thus, during an oil
spill or any other emergency response incident, NOAA's National Marine
Sanctuary Program has responsibility under the NMSA and the National
Contingency Plan for addressing threats and injuries to Sanctuary
resources. Possible response roles for the Program include
participating:
As a jurisdictional authority providing resources in direct
support of response operations;
As a trustee agency assisting in response decisions in order
to reduce the environmental consequences of the spill and
response actions; and
As a trustee participating in NRDA activities.
Natural resource trustees typically work together as a coordinated
group, often with representatives of the responsible party in a
cooperative process. NOAA scientists and economists work with other
Federal and state trustees and responsible parties to ensure that
coastal and marine resources injured by oil spills are restored.
NOAA and other natural resource trustees are responsible for two
types of restoration: primary and compensatory. To fulfill these
responsibilities, they pursue restoration projects that satisfy the OPA
goal of restoring natural resources and services to pre-incident
conditions (primary restoration) and compensating the public for
interim losses resulting from the injury (compensatory restoration).
NOAA scientists and economists provide the technical foundation for
natural resource damage assessments and work with other trustees and
responsible parties to restore resources injured by oil spills. To
accomplish this effort NOAA experts collect data, conduct studies, and
perform analyses needed to determine whether and to what degree coastal
resources have sustained injury from oil spills. NOAA experts determine
how best to restore injured resources and to ascertain the most
appropriate restoration projects to compensate the public for
associated lost services.
NOAA has long been interested in looking at alternative ways to
expedite restoration and cut process costs for natural resource damage
assessment. One alternative is a cooperative assessment in which the
responsible party plays a major role with the natural resource
trustees. Based on NOAA's successful experiences in cooperative
assessments, NOAA is promoting this approach through national and
regional dialogues. The intent is to expedite restoration, encourage
innovative approaches, strengthen partnerships, and provide meaningful
public involvement. Cooperative assessments offer industry the
opportunity for a greater role and more control over the timing of
restoration actions without undermining the natural resource trustee
responsibilities. This approach also reduces damage assessment costs
and the risk and costs associated with litigation.
NOAA's Oil Spill Research Role
Even though the number of large spills from vessels has decreased
over the last decade, when a spill occurs, we still want to mount the
best response that science and technology can provide. Oil spill
research and development is critical to improving the effectiveness of
oil spill preparedness, response, and restoration.
NOAA's oil spill research is conducted through NOAA's partnership
with the Coastal Response Research Center (CRRC) at the University of
New Hampshire, which was created in 2004. This partnership combines the
strength of NOAA's spill response staff and the University of New
Hampshire's research abilities and academic affiliations, and
stimulates innovation in spill preparedness, response and damage
assessment. In 2005, NOAA and CRRC supported a report published by the
National Academy of Sciences entitled Oil Spill Dispersants: Efficacy
and Effects. Since then NOAA, through CRRC, has funded studies to
improve decision-making capabilities for dispersant use, and has
galvanized the national and international spill communities to
collaborate on dispersant research to minimize duplication of efforts
and maximize resources. NOAA and CRRC are working to improve predictive
and response capabilities for oil spills in cold-water environments
through national and international collaborations. Additionally, NOAA
and CRRC continue to sponsor workshops to address pressing issues in
oil spill response, including the use of dispersants, submerged oil,
human dimensions of spills, habitat equivalency analysis metrics, and
integrated modeling. NOAA and CRRC work with partner agencies and
industry to examine the benefits/costs with in situ burning in coastal
marshes, and communicate how to use the technology to minimize further
injury to resources. NOAA also works with the U.S. Coast Guard and
other members of the Regional Response Teams during Ecological Risk
Assessments, where multiple stakeholders analyze environmental
tradeoffs with the range of response options for spill events within a
region. This information is then included into contingency plans, and
informs research and technology agendas.
In the past several years NOAA's oil spill research has focused on
improvements to spill modeling that are essential to predicting where
oil will go in the environment; exposure and effects of the released
oil on sensitive and economically-important species; methods to improve
environmental recovery and restoration; and the human dimensions of
spills (e.g., social issues, community effects, risk communication
methods, valuation of natural resources, etc.) that affect decision-
making.
Examples of Response, Restoration, and Research at Work
M/V SELENDANG AYU
On December 7-8, 2004, the cargo vessel M/V SELENDANG AYU lost
power, ran aground and broke in half on the shore of Unalaska Island,
Alaska, losing her 60,000 ton cargo of soybeans and spilling
approximately 335,000 gallons of fuel oil. During the initial response,
NOAA participated in aerial observations and mapping of floating and
beached oil, as well as provided on-scene weather information,
including the establishment of an emergency remote weather station and
the provision of a dedicated on-scene meteorologist. To give an example
of the difficult nature of the work involved, a heavy-lift helicopter
was used to remove 140,000 gallons of fuel remaining on the wreck by
transporting seventy, 2,000-gallon fuel canisters, one at a time,
through the mountains, 25 miles to Dutch Harbor. Without accurate, up
to date, spot-specific forecasts, it would not have been possible to
safely conduct this complicated operation in such an extreme climate.
The SSC provided input on environmental issues to the Unified
Command, including technical matters related to potential dispersant
use. The SSC and Scientific Support Team reviewed satellite data and
remote sensing information and assisted the USCG in prioritizing search
areas for the flight recorder from a downed helicopter. NOAA
participated in shoreline and aerial surveys and helped prepare a
comprehensive map of shoreline contamination. NOAA also worked with the
USCG, the Department of the Interior, and the State of Alaska to
monitor cleanup operations and determine the potential trade-offs in
using one cleanup technique versus another.
The Port of Dutch Harbor on Unalaska Island is the largest fishing
port in the United States and the largest Alaskan Native subsistence
community in the Aleutians. NOAA, U.S. Fish and Wildlife Service, and
the State of Alaska worked with the local community to address
subsistence and seafood safety concerns. Any real or perceived
contamination of fisheries products with oil had the potential to
disrupt both the local community and worldwide markets. With a
combination of trajectory analysis and experience from other large
spills, NOAA was able to provide valuable assistance to the Seafood
Safety Task Force.
NOAA continues to work with the other natural resource trustees
(U.S. Fish and Wildlife Service and the State of Alaska) and the
responsible party to conduct a natural resource damage assessment. The
parties are assessing injury to natural resources and beginning to
evaluate restoration alternatives. Public meetings already have been
held to solicit local input on potential restoration alternatives, and
NOAA is committed to providing the public with up to date information
and meaningful opportunities for review and comment during the damage
assessment and restoration planning process.
M/V KUROSHIMA
On November 26, 1997, the M/V KUROSHIMA, a 370-foot refrigerated
cargo vessel owned by Kuroshima Shipping, S.A., broke away from its
anchorage in Summer Bay on Unalaska Island, near Dutch Harbor, Alaska.
While the vessel was attempting to move to a safer anchorage, winds
reported to be in excess of 100 knots blew the freighter into Second
Priest Rock, damaging several of the vessel's fuel tanks. The vessel
subsequently ran aground on the shore of Summer Bay. Two crewmen were
killed in the incident and approximately 39,000 gallons of heavy fuel
oil were spilled.
The SSC provided input to the Unified Command as well as technical
support in identifying the extent of the oiled areas. NOAA also
provided shoreline mapping, trajectory and overflight information. NOAA
led a multi-agency shoreline cleanup assessment team to survey the
impacted areas and prepare detailed cleanup instructions. Although the
response was curtailed several times due to poor weather conditions,
the cleanup was officially completed in July 1998.
SS CAPE MOHICAN
On October 28, 1996, the military reserve vessel SS CAPE MOHICAN
spilled an estimated 96,000 gallons of intermediate fuel oil (IFO 180)
into a dry dock structure. Approximately 40,000 gallons of fuel escaped
into the San Francisco Bay at Pier 70. The spill occurred during
routine maintenance when an opened valve discharged stored fuel while
oil was being transferred from a stabilization tank. The oil affected
many sensitive and highly valued natural resources including the Gulf
of the Farallones and Monterey Bay National Marine Sanctuaries, as well
as historical parks and sites, beaches, and wetlands, and migratory
birds under Department of the Interior trusteeship. The spill resulted
in physical fouling of artificial structures (e.g., pier pilings, rip
rap, and seawalls), sand and gravel beaches, rocky intertidal habitat,
kelp beds, mudflats, and wetlands. The spill also caused closures of
recreation areas and oiling of marinas and vessels, including historic
ships.
The SSC and NOAA Scientific Support Team provided technical support
including trajectory and mapping information, resources at risk
assessments, overflight observations and shoreline assessments. NOAA
worked with the Department of the Interior and the State of California
to develop a restoration plan addressing five resource categories
impacted by the spill: birds, fisheries and water quality, wetland
habitat, sandy shoreline and rocky intertidal habitats, and lost and
diminished human use.
Conclusion
Thank you for the opportunity to discuss with you NOAA's important
role in oil spill preparedness, response, and restoration. NOAA's
expertise is critical to prevent further harm, restore adverse effects
on natural resources, and aid planning and response decision-making
associated with oil spills. I am happy to answer any questions that you
may have.
Senator Cantwell. Thank you, Ms. Glackin. Ms. Fleming?
Thank you for being here.
STATEMENT OF SUSAN A. FLEMING, DIRECTOR,
PHYSICAL INFRASTRUCTURE ISSUES,
U.S. GOVERNMENT ACCOUNTABILITY OFFICE
Ms. Fleming. Thank you. Madam Chair, Ranking Member Snowe,
and members of the Subcommittee, thank you for the opportunity
to discuss the cost of major oil spills. As the recent accident
in the San Francisco Bay illustrates, the potential for oil
spills exists daily across coastal and inland waters of the
United States. This accident also shows that the potential
extends well beyond vessels involved in the petroleum industry.
Cargo, fishing, and other types of vessels also carry
substantial fuel reserves. Accidents can release this fuel and
create significant damage. Spills can be expensive, with
considerable costs to the Federal Government and the private
sector.
My testimony today has two parts: The number of major oil
spills since 1990 and the costs; and second, the factors that
affect major oil spill costs. First, we estimate that since
1990, there have been 51 oil spills that have had removal costs
and damage claims totaling at least a million dollars.
Responsible parties and the Federal Oil Spill Liability Trust
Fund have spent between $860 million and $1.1 billion to clean
up these spills and compensate affected parties. Responsible
parties paid about 75 percent of these costs; the fund has paid
the remainder. Since removal costs and damage claims may
stretch out over many years, the cost of these spills could
rise.
I'll now go into a little more detail on the 51 spills.
These spills, which constitute about 2 percent of all vessel
spills since 1990, vary greatly from year to year and number in
costs, and show no discernable trends in frequency, size, or
type of vessel. They also occurred in a variety of locations,
on the Atlantic, Gulf, and Pacific coasts, and in open coastal
waters, and more confined waterways.
Moving on to my second point, there are three main factors
that affect the cost of a spill, according to industry experts,
agency officials, and the studies we reviewed.
The first factor is the spill's location. Spills that occur
in remote areas, for example, can increase costs involved in
mobilizing responders and equipment. Similarly, a spill that
occurs close to shore, rather than further out at sea, can
become more expensive because it may involve the use of manual
labor to remove oil from sensitive shoreline habitats.
The second factor affecting cost is the time of year the
spill occurs. A spill at one time of year might be more costly
than a spill in the same place, but at a different time of
year. For example, a spill occurring during tourist or fishing
season might produce substantial compensation claims, while the
same spill at another time of year might not.
The third factor affecting costs is the type of oil
spilled. Fuels, like gasoline, may dissipate quickly, but if
they do not, they are extremely toxic to fish and plants. Crude
oil is less toxic, but it doesn't dissipate quickly, and harms
wildlife if it coats their bodies or if they ingest it, and
it's much harder to clean up. No single factor clearly predicts
a spill's cost. The 51 major spills we identified occurred in
many different types of locations, across all seasons, and with
all major types of oil. In each case, the three factors came
together in unique ways to affect the spill's overall cost.
Although the costs of the San Francisco spill are not fully
known at this point, location and oil type will again likely
have an impact.
In conclusion, major oil spills are rare, but the risk of
such spills exists daily. Further, spills are expensive, with
significant cost to the Federal Government, the private sector,
the environment, the economy, and the public at large. It is
therefore critical that we do not become complacent in our
preparedness efforts. Madam Chair, this concludes my statement.
I will be pleased to answer any questions you, or members of
the Subcommittee might have.
[The prepared statement of Ms. Fleming follows:]
Prepared Statement of Susan A. Fleming, Director, Physical
Infrastructure Issues, U.S. Government Accountability Office
Madam Chair and Members of the Subcommittee:
We appreciate the opportunity to be here today to discuss the costs
of major oil spills. As the recent accident in San Francisco Bay
illustrates, the potential for an oil spill exists daily across coastal
and inland waters of the United States. Specifically, on November 7,
2007, a cargo ship leaving the Port of Oakland struck the San
Francisco-Oakland Bay Bridge, tearing the hull of the ship. As a
result, over 50,000 gallons of heavy oil spilled into the bay.\1\ The
total cost of cleaning up the spill, as well as the damage to marine
wildlife and fisheries is still undetermined. As this spill also
illustrates, the potential for costly spills is present for vessels
other than tankers and tank barges involved in the petroleum industry.
Cargo, fishing, and other types of vessels also carry substantial fuel
reserves and accidents can release this fuel and create substantial
damage. Spills can be expensive, with considerable costs to the Federal
Government and the private sector.
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\1\ As of December 4, 2007, about 20,000 gallons of oil had been
recovered.
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The framework for addressing and paying for maritime oil spills is
identified in the Oil Pollution Act of 1990 (OPA), which was enacted
after the EXXON VALDEZ spill. OPA created a ``polluter pays'' system
that places the primary burden of liability and the costs of oil spills
on the vessel owner or operator who was responsible for the spill--that
is, the responsible party. However, there are financial limitations on
that liability. Under this system, the responsible party assumes, up to
a specified limit, the burden of paying for spill costs--which can
include both removal costs (cleaning up the spill) and damage claims
(restoring the environment and payment of compensation to parties that
were economically harmed by the spill). Above the specified limit, the
responsible party is no longer financially liable.\2\ To pay costs
above the limit of liability, as well as to pay costs when a
responsible party does not pay or cannot be identified, OPA authorized
the Oil Spill Liability Trust Fund (Fund), which is financed primarily
from a per-barrel tax on petroleum products either produced in the
United States or imported from other countries. The Fund is
administered by the National Pollution Funds Center (NPFC) within the
U.S. Coast Guard. The balance in the Fund--about $600 million at the
end of Fiscal Year 2006--is well below its peak of $1.2 billion in
2000. The decline in the Fund's balance primarily reflects an
expiration of the barrel tax on petroleum in 1994. The tax was not
reinstated until 2005.
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\2\ Responsible parties are liable without limit, however, if the
oil discharge is the result of gross negligence, or a violation of
Federal operation, safety, and construction regulations.
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While this system is well understood, the costs involved in
responding to oil spills are less clear. Costs paid from the Fund are
well documented, but the party responsible for the spill is not
required to report the costs it incurs. As a result, private-sector and
total costs for cleaning up spills and paying damages are largely
unknown to the public. The lack of information about the cost of
spills, the declining Fund balance, and significant claims made on the
Fund--for spills in which the removal costs and damage claims have
exceeded established OPA liability limits--have all raised concerns
about the Fund's long-term viability.
Although we have not assessed the November 2007 San Francisco oil
spill in depth, we have done considerable work looking at the cost of
major spills in recent years and the factors that contribute to making
spills particularly expensive to clean up and mitigate. My remarks
today are intended to provide a context for looking at the Nation's
approach to paying the costs of such spills. Specifically, my testimony
today focuses on (1) the number of major oil spills--i.e., spills for
which the total costs and claims paid was at least $1 million--from
1990 to 2006 and the total costs of these spills, (2) the factors that
affect major oil spill costs, and (3) the implications of major oil
spill costs for the Oil Spill Liability Trust Fund.\3\ My comments are
based primarily on our September 2007 report on oil spill costs, which
was issued to the Senate Committee on Commerce, Science, and
Transportation and the House Committee on Transportation and
Infrastructure.\4\ In preparing our September report, we analyzed oil
spill removal cost and claims data from NPFC, the National Oceanic and
Atmospheric Administration's (NOAA) Damage Assessment, Remediation, and
Restoration Program, and the Department of the Interior's (DOI) Natural
Resource Damage Assessment and Restoration Program and the U.S. Fish
and Wildlife Service (FWS). We also analyzed cost data obtained from
vessel insurers and through contract with Environmental Research
Consulting.\5\ We interviewed NPFC, NOAA, and state officials
responsible for oil spill response, as well as industry experts and
representatives from key industry associations and a vessel owner. In
addition, we selected five oil spills on the basis of the spill's
location, oil type, and spill volume for an in-depth review. During
this review, we interviewed NPFC officials involved in spill response
for all five spills, as well as representatives of private sector
companies involved in the spill and spill response; and we conducted a
file review of NPFC records of the Federal oil spill removal activities
and costs associated with spill cleanup. We also reviewed documentation
from the NPFC regarding the Fund balance and vessels' limits of
liability. Because private-sector and total costs for cleaning up
spills and paying damages are not centrally tracked and maintained, we
obtained the best available cost data from a variety of sources, as
previously described. We then combined the information that we
collected from these various sources to develop cost estimates for the
oil spills. However, because the cost data are somewhat imprecise and
the data we collected vary somewhat by source, we present the cost
estimates in ranges. The lower and higher bounds of the range represent
the low and high end of cost information we obtained. Based on reviews
of data documentation, interviews with relevant officials, and tests
for reasonableness, we determined that the data were sufficiently
reliable for the purposes of our report. We also conducted additional
research and interviewed NPFC officials to update our September 2007
report's findings and to gather information on the recent oil spill in
San Francisco Bay. We conducted this work in December 2007 in
accordance with generally accepted government auditing standards.
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\3\ The National Oil and Hazardous Substances Pollution Contingency
Plan states that any oil discharge that poses a substantial threat to
public health or welfare of the United States or the environment or
results in significant public concern shall be classified as a major
spill. For the purposes of our work, however, we defined major spills
as spills with total removal costs and damage claims that exceed $1
million.
\4\ GAO, Maritime Transportation: Major Oil Spills Occur
Infrequently, but Risks to the Federal Oil Spill Fund Remain, GAO-07-
1085 (Washington, D.C.: Sept. 7, 2007). The Coast Guard and Maritime
Transportation Act of 2006 directed us to conduct an assessment of the
cost of response activities and claims related to oil spills from
vessels that have occurred since January 1, 1990, for which the total
costs and claims paid was at least $1 million per spill. The mandate
required that the report summarize the costs and claims for oil spills
that have occurred since January 1, 1990, that total at least $1
million per spill, and the source, if known, of each spill for each
year.
\5\ Environmental Research Consulting is a private consulting firm
that specializes in data analysis, environmental risk assessment, cost
analyses, expert witness research and testimony, and development of
comprehensive databases on oil and chemical spills in service to
regulatory agencies, nongovernmental organizations, and industry.
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Summary
We estimate that from 1990 to 2006, 51 oil spills have involved
removal costs and damage claims totaling at least $1 million.
Collectively, from public and nonpublic sources, we estimate that
responsible parties and the Fund have paid between approximately $860
million and $1.1 billion to clean up these spills and compensate
affected parties. Responsible parties paid between about 72 to 78
percent of these costs; the Fund has paid the remainder, or $240
million. The overall cost for the 51 spills we identified could also
increase over time because the claims adjudication processes can take
many years to resolve. The 51 spills we identified, which constitute
about 2 percent of all vessel spills from 1990 to 2006, varied greatly
from year to year in number and cost and showed no discernible trends
in frequency or size. All vessel types were involved with the 51 major
spills we identified--with cargo/freight vessels and tank barges
involved with 30 of the 51 spills.
Three main factors affect the costs of a spill, according to
industry experts and agency officials and the studies we reviewed: the
spill's location, the time of year it occurs, and the type of oil
spilled.\6\ A remote location, for example, can increase the cost of a
spill because of the additional expense involved in mounting a remote
response. Similarly, a spill that occurs close to shore rather than
further out at sea can become more expensive because it may involve the
use of manual labor to remove oil from sensitive shoreline habitat.
Time also has situation-specific effects, in that a spill that occurs
at a particular time of year might involve a much greater cost than a
spill occurring in the same place but at a different time of year. For
example, a spill occurring during fishing or tourist season might carry
additional economic damage, or a spill occurring during a typically
stormy season might prove more expensive because it is more difficult
to clean up than one occurring during a season with generally calmer
weather. The specific type of oil affects costs because the type of oil
can affect the amount of cleanup needed and the amount of natural
resource damage incurred. Lighter oils such as gasoline or diesel fuels
dissipate and evaporate quickly--requiring minimal cleanup--but are
highly toxic and create severe environmental impacts. Heavier oils such
as crude oil do not evaporate, and therefore may require intensive
structural and shoreline cleanup; and while they are less toxic than
light oils, heavy oils can harm waterfowl and fur-bearing mammals
through coating and ingestion. Each spill's cost reflects the
particular mix of these factors, and no factor is clearly predictive of
the outcome. The 51 major spills we identified, for example, occurred
on all U.S. coasts, across all seasons, and with all major types of
oil; but each spill's particular location, time, or product contributed
to making it expensive. Although the total costs of the San Francisco
spill are unknown, some of the same key factors such as location and
oil type will likely have an impact on the costs of the spill.
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\6\ Another potential factor is the size of the spill. Although a
larger spill will require an extensive and expensive cleanup effort,
officials reported that compared with the factors presented here, spill
volume is less important to the costs of oil spill response.
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To date, the Fund has been able to cover costs that responsible
parties have not paid, but risks remain. In particular, the Fund is at
risk from claims resulting from spills that significantly exceed
responsible parties' liability limits. The effect of such spills can be
seen among the 51 major oil spills we identified: 10 of them exceeded
the limit of liability, resulting in claims of about $252 million on
the Fund. In the Coast Guard and Maritime Transportation Act of 2006,
the Congress increased these liability limits, but for two main
reasons, additional attention to the limits appears warranted. First,
the liability limits for certain vessel types may be disproportionately
low compared with their historic spill cost. For example, of the 51
major spills since 1990, 15 resulted from tank barges. The average cost
for these 15 tank barge spills was about $23 million--more than double
the average new liability limit ($10.3 million) for these vessels. The
Coast Guard is responsible for adjusting limits of liability at least
every 3 years for significant increases in inflation and for making
recommendations to Congress on whether adjustments to limits are
necessary to help protect the Fund.\7\ In its January 2007 report
examining oil spills that exceeded the limits of liability, the Coast
Guard had similar findings on the adequacy of some of the new limits.
However, the Coast Guard did not make explicit recommendations to
Congress on how the limits should be adjusted. Second, although OPA has
required since 1990 that liability limits be adjusted every 3 years to
account for significant increases in inflation, such adjustments have
never been made. If such adjustments had been made between 1990 and
2006, claims against the fund for the 51 major spills would have been
reduced by 16 percent, which could have saved the Fund $39 million. The
Coast Guard, which has been delegated the authority to adjust limits
for significant increases in inflation, has not indicated whether it
will exercise its authority to adjust liability limits in the future.
Aside from issues related to limits of liability, the Fund faces other
potential drains on its resources, including ongoing claims from
existing spills, claims related to already-sunken vessels that may
begin to leak oil, and the threat of a catastrophic spill such as
occurred with the EXXON VALDEZ in 1989.
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\7\ OPA has required since 1990 that the President--and through
several delegations to the Secretaries of Transportation and Homeland
Security and a redelegation to the Coast Guard in 2005--adjust
liability limits at least every 3 years to account for significant
increases in inflation. However, the Executive Branch has never made
such adjustments.
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In our September 2007 report, we recommended that the Commandant of
the Coast Guard (1) determine whether and how liability limits should
be changed, by vessel type, and make recommendations about these
changes to the Congress and (2) adjust the limits of liability for
vessels every 3 years to reflect changes in inflation, as appropriate.
The Department of Homeland Security (DHS), including the Coast Guard,
generally agreed with the report's contents and agreed with the
recommendations. To date, the Commandant of the Coast Guard has not
implemented these recommendations.
Background
With more than 100,000 commercial vessels navigating U.S. waters
and 12.2 million barrels of oil being imported into the United States
each day, some oil spills in domestic waters are inevitable.
Fortunately, however, spills are relatively infrequent and are
decreasing. While oil transport and maritime traffic have continued to
increase, the total number of reported spills has generally declined
each year since 1990.
OPA places the primary burden of liability and the costs of oil
spills on the vessel owner and operator who were responsible for the
spill.\8\ This ``polluter pays'' system provides a deterrent for vessel
owners and operators who spill oil by requiring that they assume the
burden of spill response, natural resource restoration, and
compensation to those damaged by the spill, up to a specified limit of
liability--which is the amount above which responsible parties are no
longer financially liable under certain conditions. (See Fig. 1 for the
limits of liability by vessel type.) For example, if a vessel's limit
of liability is $10 million and a spill resulted in $12 million in
costs, the responsible party only has to pay up to $10 million--the
Fund will pay for the remaining $2 million.\9\ The Coast Guard is
responsible for adjusting limits for significant increases in inflation
and for making recommendations to Congress on whether other adjustments
are necessary to help protect the Fund.\10\ OPA also requires that
vessel owners and operators must demonstrate their ability to pay for
oil spill response up to their limit of liability. Specifically, by
regulation, with few exceptions, owners and operators of vessels over
300 gross tons and any vessels that transship or transfer oil in the
Exclusive Economic Zone are required to have a certificate of financial
responsibility that demonstrates their ability to pay for oil spill
response up to their limit of liability.\11\
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\8\ OPA applies to oil discharged from vessels or facilities into
navigable waters of the United States and adjoining shorelines. OPA
also covers substantial threats of discharge, even if an actual
discharge does not occur.
\9\ When responsible parties' costs exceed their limit of liability
and the limit is upheld--because there was no gross negligence or
violations of Federal regulations by the vessel owner or operator--the
responsible party is entitled to file a claim on the Fund to be
reimbursed for costs in excess of the limit. NPFC reviews the claim to
determine which costs are OPA-compensable and the responsible party is
reimbursed from the Fund.
\10\ Title VI of the Coast Guard and Maritime Transportation Act of
2006. Public Law 109-241, 603(c)(3).
\11\ 33 C.F.R. 138. The U.S. Exclusive Economic Zone extends 200
nautical miles offshore.
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Source: GAO.
OPA consolidated the liability and compensation provisions of four
prior Federal oil pollution initiatives and their respective trust
funds into the Oil Spill Liability Trust Fund and authorized the
collection of revenue and the use of the money, with certain
limitations, with regard to expenditures.\12\ The Fund's balance has
generally declined from 1995 through 2006, and since Fiscal Year 2003,
its balance has been less than the authorized limit on Federal
expenditures for the response to a single spill, which is currently set
at $1 billion (see Fig. 2). The balance has declined, in part, because
the Fund's main source of revenue--a $0.05 per barrel tax on U.S.
produced and imported oil--was not collected for most of the time
between 1993 and 2006.\13\ As a result, the Fund balance was $604.4
million at the end of Fiscal Year 2006.\14\ The Energy Policy Act of
2005 reinstated the barrel tax beginning in April 2006.\15\ With the
barrel tax once again in place, NPFC anticipates that the Fund will be
able to cover potential noncatastrophic liabilities.
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\12\ The prior Federal laws regarding oil pollution included the
Federal Water Pollution Control Act, the Deepwater Port Act, the Trans-
Alaska Pipeline System Authorization Act, and the Outer Continental
Shelf Lands Act Amendments of 1978. Congress created the Fund in 1986
but did not authorize collection of revenue or use of the money until
it passed OPA in 1990.
\13\ The tax expired in December 1994. Besides the barrel tax, the
Fund also receives revenue in the form of interest on the Fund's
principal and fines and penalties.
\14\ Recent related GAO products include GAO, U.S. Coast Guard
National Pollution Funds Center: Improvements Are Needed in Internal
Control Over Disbursements, GAO-04-340R (Washington, D.C.: Jan. 13,
2004) and GAO, U.S. Coast Guard National Pollution Funds Center: Claims
Payment Process Was Functioning Effectively, but Additional Controls
Are Needed to Reduce the Risk of Improper Payments, GAO-04-114R
(Washington, D.C.: Oct. 3, 2003).
\15\ The Energy Policy Act of 2005. Public Law 109-58 1361. The
barrel tax is scheduled to be in place until 2014.
Source: GAO analysis of NPFC data.
Note: The Fund balance increase in 2000 was largely due to a
transfer of $181.8 million from the Trans-Alaska Pipeline Liability
Fund.
OPA also defines the costs for which responsible parties are liable
and for which the Fund is made available for compensation in the event
that the responsible party does not pay or is not identified. These
costs, or ``OPA compensable'' costs, are of two main types:
Removal costs: Removal costs are incurred by the Federal
Government or any other entity taking approved action to
respond to, contain, and clean up the spill. For example,
removal costs include the equipment used in the response--
skimmers to pull oil from the water, booms to contain the oil,
planes for aerial observation--as well as salaries and travel
and lodging costs for responders.
Damages caused by the oil spill: OPA-compensable damages
cover a wide range of both actual and potential adverse impacts
from an oil spill, for which a claim may be made to either the
responsible party or the Fund. Claims include natural resource
damage claims filed by trustees, claims for uncompensated
removal costs and third-party damage claims for lost or damaged
property and lost profits, among other things.\16\
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\16\ OPA authorizes the United States, states, and Indian Tribes to
act on behalf of the public as natural resource trustees for natural
resources under their respective trusteeship. Trustees often have
information and technical expertise about the biological effects of
pollution, as well as the location of sensitive species and habitats
that can assist the Federal On-Scene Coordinator in characterizing the
nature and extent of site-related contamination and impacts. Federal
Trustees include Commerce, DOI, the Departments of Agriculture,
Defense, Energy, and other agencies authorized to manage or protect
natural resources.
The Fund also covers costs when responsible parties cannot be
located or do not pay their liabilities. NPFC encounters cases where
the source of the spill, and therefore the responsible party is
unknown, or where the responsible party does not have the ability to
pay. In other cases, since the cost recovery can take a period of
years, the responsible party may become bankrupt or dissolved. Based on
our analysis of NPFC records, responsible parties have reimbursed the
majority--about 65 percent--of the Fund's costs for the 51 spills.\17\
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\17\ Our analysis excluded the spills with limit of liability
claims.
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Response to large oil spills is typically a cooperative effort
between the public and private sector, and there are numerous players
who participate in responding to and paying for oil spills. To manage
the response effort, the responsible party, the Coast Guard, EPA, and
the pertinent state and local agencies form the unified command, which
implements and manages the spill response.\18\ Appendix I contains
additional information on the parties involved in spill response.
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\18\ The Incident Command System (ICS) is a standardized response
management system that is part of the National Interagency Incident
Management System. The ICS is organizationally flexible so that it can
expand and contract to accommodate spill responses of various sizes.
The ICS typically consists of four sections: operations, planning,
logistics, and finance/administration.
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Oil Spills Costing At Least $1 Million Occurred Infrequently Between
1990 and 2006, but Estimated Costs Total $860 Million to $1.1
Billion
On the basis of information we were able to assemble about
responsible parties' expenditures and payments from the Fund, we
estimate that 51 oil spills involving removal costs and damage claims
totaling at least $1 million have occurred from 1990 to 2006. During
this period, 3,389 oil spills occurred in which one or more parties
sought reimbursement from the Fund. The 51 major spills represent less
than 2 percent of this total.\19\ As Figure 3 shows, there are no
discernable trends in the number of major oil spills that occur each
year. The highest number of spills was seven in 1996; the lowest number
was zero in 2006.
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\19\ We established the universe of major oil spills from 1990 to
2006, based on available public and private sector data in consultation
with NPFC, Environmental Research Consulting, and other industry
experts. Additionally, we gathered removal costs and damage claims data
from Federal agencies involved in spill response, claims payments, and
conducting natural resource damage assessments (Coast Guard, NOAA, DOI,
and FWS); and to the best of our ability, we gathered private-sector
cost data from vessels insurers, and in contract with Environmental
Research Consulting.
Source: GAO analysis of NPFC data.
Note: Because spill costs accrue over time, there may have been
vessel spills in 2006 for which costs will exceed $1 million in the
future.
These 51 spills occurred in a variety of locations and involved a
range of vessel types. The spills occurred on the Atlantic, Gulf, and
Pacific coasts and include spills both in open coastal waters and
inland waterways. In addition, as Figure 4 shows, 30 of the 51 spills
involved cargo/freight vessels and tank barges, 12 involved fishing and
other types of vessels, and 9 involved tanker vessels.
Source: GAO.
The total cost of the 51 spills cannot be precisely determined
because private-sector expenditures are not tracked,\20\ the various
parties involved in covering these costs do not categorize them
uniformly, and spills costs are somewhat fluid and accrue over time.
Because spill cost data are somewhat imprecise and the data we
collected vary somewhat by source, the results described below will be
reported in ranges, in which various data sources are combined
together. The lower and higher bounds of the range represent the low
and high end of cost information we obtained.
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\20\ Under regulation S-K, 17 C.F.R. 229, companies that are
publicly traded must disclose any outstanding liabilities, including
liabilities such as oil spill removal costs or claims made against the
company for natural resource or third-party damages incurred. However,
many vessel owners or operators are not publicly traded companies.
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Our analysis of these 51 spills shows their total cost was
approximately $1 billion--ranging from $860 million to $1.1 billion.
This amount breaks down by source as follows:
Amount paid out of the Trust Fund: Because the NPFC tracks
and reports all Fund expenditures, the amount paid from the
Fund can be reported as an actual amount, not an estimate. For
these 51 spills, the Fund paid a total of $239.5 million.
Amount paid by responsible parties: Because of the lack of
precise information about amounts paid by responsible parties
and the differences in how they categorize their costs, this
portion of the expenditures must be presented as an estimate.
Based on the data we were able to obtain and analyze,
responsible parties spent between $620 million and $840
million. Even at the low end of the range, this amount is
nearly triple the expenditure from the Fund.
Costs of these 51 spills varied widely by spill, and therefore, by
year (see Fig. 5). For example, 1994 and 2004 both had four spills
during the year, but the average cost per spill in 1994 was about $30
million, while the average cost per spill in 2004 was between $71
million and $96 million. Just as there was no discernible trend in the
frequency of these major spills, there is no discernible trend in their
cost. Although the substantial increase in 2004 may look like an upward
trend, 2004 may be an anomaly that reflects the unique character of two
of the four spills that occurred that year. These two spills accounted
for 98 percent of the year's costs.
Source: GAO.
Note: Because we are reporting costs from multiple sources of data,
the data were combined and grouped into cost ranges. In some cases,
however, there was only one cost estimate. In those cases, we present
the amount as a single cost estimate.
Key Factors Affect Oil Spill Costs in Unique Ways
Location, time of year, and type of oil are key factors affecting
oil spill costs, according to industry experts, agency officials, and
our analysis of spills.\21\ Officials also identified two other factors
that may influence oil spill costs to a lesser extent--the
effectiveness of the spill response and the level of public interest in
a spill. In ways that are unique to each spill, these factors can
affect the breadth and difficulty of the response effort or the extent
of damage that requires mitigation.
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\21\ Another potential factor is the size of the spill. Although a
larger spill will require an extensive and expensive cleanup effort,
officials reported that compared with the factors presented here, spill
volume is less important to the costs of oil spill response.
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Location Impacts Costs in Different Ways
The location of a spill can have a large bearing on spill costs
because it will determine the extent of response needed, as well as the
degree of damage to the environment and local economies. According to
state officials with whom we spoke and industry experts, there are
three primary characteristics of location that affect costs:
Remoteness: For spills that occur in remote areas, spill
response can be particularly difficult in terms of mobilizing
responders and equipment, and they can complicate the logistics
of removing oil from the water--all of which can increase the
costs of a spill.
Proximity to shore: There are also significant costs
associated with spills that occur close to shore. Contamination
of shoreline areas has a considerable bearing on the costs of
spills as such spills can require manual labor to remove oil
from the shoreline and sensitive habitats. The extent of damage
is also affected by the specific shoreline location.
Proximity to economic centers: Spills that occur in the
proximity of economic centers can also result in increased
costs when local services are disrupted. A spill near a port
can interrupt the flow of goods, necessitating an expeditious
response in order to resume business activities, which could
increase removal costs. Additionally, spills that disrupt
economic activities can result in expensive third-party damage
claims.
Time of Year Has Impact on Local Economies and Response Efforts
The time of year in which a spill occurs can also affect spill
costs--in particular, impacting local economies and response efforts.
According to several state and private-sector officials with whom we
spoke, spills that disrupt seasonal events that are critical for local
economies can result in considerable expenses. For example, spills in
the spring months in areas of the country that rely on revenue from
tourism may incur additional removal costs in order to expedite spill
clean-up, or because there are stricter standards for clean up, which
increase the costs.
The time of year in which a spill occurs also affects response
efforts because of possible inclement weather conditions. For example,
spills that occur during the winter months in areas of the country that
experience harsh winter conditions can result in higher removal costs
because of the increased difficulty in mobilizing equipment and
personnel to respond to a spill in inclement weather. According to a
state official knowledgeable about a January 1996 spill along the coast
of Rhode Island, extremely cold and stormy weather made response
efforts very difficult.
Type of Oil Spilled Impacts the Extent of the Response Effort and the
Amount of Damage
The type of oil spilled affects the degree to which oil can be
cleaned up and removed, as well as the nature of the natural resource
damage caused by the spill. The different types of oil can be grouped
into four categories, each with its own set of impacts on spill
response and the environment (see Table 1).
Source: NOAA.
Lighter oils such as jet fuels, gasoline, and diesel fuel dissipate
and evaporate quickly, and as such, often require minimal cleanup.
However, these oils are highly toxic and can severely affect the
environment if conditions for evaporation are unfavorable. For
instance, in 1996, a tank barge that was carrying home-heating oil
grounded in the middle of a storm near Point Judith, Rhode Island,
spilling approximately 828,000 gallons of heating oil (light oil).
Although this oil might dissipate quickly under normal circumstances,
heavy wave conditions caused an estimated 80 percent of the release to
mix with water.\22\ Natural resource damages alone were estimated at
$18 million, due to the death of approximately 9 million lobsters, 27
million clams and crabs, and over 4 million fish.
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\22\ National Research Council of the National Academies, Oil in
the Sea III: Inputs, Fates, and Effects (Washington, D.C.: 2003).
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Heavier oils, such as crude oils and other heavy petroleum products
are less toxic than lighter oils but can also have severe environmental
impacts. Medium and heavy oils do not evaporate much, even during
favorable weather conditions, and can blanket structures they come in
contact with--boats and fishing gear, for example--as well as the
shoreline, creating severe environmental impacts to these areas, and
harming waterfowl and fur-bearing mammals through coating and
ingestion. Additionally, heavy oils can sink, creating prolonged
contamination of the sea bed and tar balls that sink to the ocean floor
and scatter along beaches. These spills can require intensive shoreline
and structural clean up, which is time-consuming and expensive. For
example, in 1995, a tanker spilled approximately 38,000 gallons of
heavy fuel oil into the Gulf of Mexico when it collided with another
tanker as it prepared to lighter its oil to another ship.\23\ Less than
1 percent (210 gallons) of the oil was recovered from the sea, and as a
result, recovery efforts on the beaches of Matagorda and South Padre
Islands were labor intensive, as hundreds of workers had to manually
pick up tar balls with shovels. The total removal costs for the spill
were estimated at $7 million.
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\23\ Lightering is the process of transferring oil at sea from a
very large or ultra-large carrier to smaller tankers that are capable
of entering the port.
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Other Factors Also Affect Spill Costs
Some industry experts cited two other factors as also affecting
costs incurred during a spill.
Effectiveness of Spill Response: Some private-sector
officials stated that the effectiveness of spill response can
impact the cost of cleanup. The longer it takes to assemble and
conduct the spill response, the more likely it is that the oil
will move with changing tides and currents and affect a greater
area, which can increase costs. Some officials said the level
of experience of those involved in the incident command is
critical to the effectiveness of spill response. For example,
they said poor decisionmaking during a spill response could
lead to the deployment of unnecessary response equipment, or
worse, not enough equipment to respond to a spill. Several
officials expressed concern that Coast Guard officials are
increasingly inexperienced in handling spill response, in part
because the Coast Guard's mission has been increased to include
homeland security initiatives.
Public interest: Several officials with whom we spoke stated
that the level of public attention placed on a spill creates
pressure on parties to take action and can increase costs. They
also noted that the level of public interest can increase the
standards of cleanliness expected, which may increase removal
costs.
Key Factors Will Likely Influence Cost of San Francisco Spill
The total costs of the San Francisco spill are currently unknown.
According to NPFC officials, as of December 4, 2007, the Unified
Command estimated that $48 million had been spent on the response,
which includes approximately $2.2 million from the Fund.\24\ The total
costs will not likely be known for a while, as it can take many months
or years to determine the full effect of a spill on natural resources
and to determine the costs and extent of the natural resource damage.
Our work for this testimony did not include a thorough evaluation of
the factors affecting the spill. However, some of the same key factors
that have influenced the cost of 51 major oil spills will likely have
an effect on the costs in the San Francisco spill. For example, the
spill occurred in an area close to shore, which caused the closing of
as many as 22 beaches, according to Coast Guard officials. A weather-
related factor was that the spill occurred during dense fog, which
complicated efforts to determine how much of an area the spill covered.
Moreover, the cargo ship spilled a heavy oil--specifically intermediate
fuel oil--that requires particularly intensive shoreline and structural
clean-up, and harmed scores of birds and marine mammals through coating
and ingestion.\25\ Concerns have also been raised about the
effectiveness of the spill response and incident command, another of
the factors cited as contributing to increased costs. The National
Transportation Safety Board, the Coast Guard, as well as other
government agencies, are currently investigating the details of the
accident and the subsequent response.
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\24\ According to NPFC officials, the OPA limit of liability for
this vessel, if the limit applies under the circumstances of the spill,
is approximately $61.8 million.
\25\ Intermediate fuel oil is a common diesel fuel used to power
marine vessels.
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Fund Has Been Able to Cover Costs Not Paid by Responsible Parties, but
Risks Remain
The Fund has been able to cover costs from major spills that
responsible parties have not paid, but risks remain. Specifically, the
current liability limits for certain vessel types, notably tank barges,
may be disproportionately low relative to costs associated with such
spills. There is also no assurance that vessel owners and operators are
able to financially cover these new limits, because the Coast Guard has
not yet issued regulations for satisfying financial responsibility
requirements. In addition, although OPA calls for periodic increases in
liability limits to account for significant increases in inflation,
such increases have never been made. Aside from issues related to
limits of liability, the Fund faces other potential drains on its
resources, including ongoing claims from existing spills.
Further Attention To Limits of Liability Is Needed
The Fund has been able to cover costs from major spills that
responsible parties have not paid, but additional focus on limits of
liability is warranted. Limits of liability are the amount, under
certain circumstances, above which responsible parties are no longer
financially liable for spill removal costs and damage claims. If the
responsible party's costs exceed the limit of liability, they can make
a claim against the Fund for the amount above the limit. Major oil
spills that exceed a vessel's limit of liability are infrequent, but
their impact on the Fund can be significant. Ten of the 51 major oil
spills that occurred since 1990 resulted in limit-of-liability claims
on the Fund.\26\ These limit-of-liability claims totaled more than $252
million and ranged from less than $1 million to more than $100 million.
Limit-of-liability claims will continue to have a pronounced effect on
the Fund. NPFC estimates that 74 percent of claims under adjudication
that were outstanding as of January 2007 were for spills in which the
limit of liability had been exceeded. The amount of these claims under
adjudication was $217 million.\27\
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\26\ Additional spills had costs in excess of the vessel's limit of
liability, but either the limit was not upheld or no claim was filed by
the responsible party.
\27\ This figure is based on all spills with claims on the Fund,
currently under adjudication, not just the 51 major spills. U.S. Coast
Guard, Report on Oil Pollution Act Liability Limits, Jan. 5, 2007. Like
our report, the Coast Guard's report was prepared in response to a
provision in the Coast Guard and Maritime Transportation Act.
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We identified three areas in which further attention to these
liability limits appears warranted: the appropriateness of some current
liability limits, the need to adjust limits periodically in the future
to account for significant increases in inflation, and the need for
updated regulations for ensuring vessel owners and operators are able
to financially cover their new limits.
Some Recent Adjustments to Liability Limits Do Not Reflect the Cost of
Major Spills
The Coast Guard and Maritime Transportation Act of 2006
significantly increased the limits of liability from the limits set by
OPA in 1990. Both laws base the liability on a specified amount per
gross ton of vessel volume, with different amounts for vessels that
transport oil commodities (tankers and tank barges) than for vessels
that carry oil as a fuel (such as cargo vessels, fishing vessels, and
passenger ships). The 2006 Act raised both the per-ton and the required
minimum amounts, differentiating between vessels with a double hull,
which helps prevent oil spills resulting from collision or grounding,
and vessels without a double hull (see Table 2 for a comparison of
amounts by vessel category).\28\ For example, the liability limit for
single-hull vessels larger than 3,000 gross tons was increased from the
greater of $1,200 per gross ton or $10 million to the greater of $3,000
per gross ton or $22 million.
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\28\ OPA requires that all tank vessels (greater than 5,000 gross
tons) constructed (or that undergo major conversions) under contracts
awarded after June 30, 1990, operating in U.S. navigable waters must
have double hulls. Of the 51 major oil spills, all 24 major spills from
tank vessels (tankers and tank barges) involved single-hull vessels.
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Source: Coast Guard and Maritime Transportation Act of 2006.
Our analysis of the 51 spills showed that the average spill cost
for some types of vessels, particularly tank barges, was higher than
the limit of liability, including the new limits established in 2006.
As Figure 6 shows, the 15 tank barge spills and the 12 fishing/other
vessel spills had average costs greater than both the 1990 and 2006
limits of liability. For example, for tank barges, the average cost of
$23 million was higher than the average limit of liability of $4.1
million under the 1990 limits and $10.3 million under the new 2006
limits. The nine spills involving tankers, by comparison, had average
spill costs of $34 million, which was considerably lower than the
average limit of liability of $77 million under the 1990 limits and
$187 million under the new 2006 limits.\29\ Similarly, the 15 major
spills involving cargo/freight vessels had an average spill cost of $67
million, which was lower than both the 1990 and 2006 limits of
liability.
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\29\ The average limits of liability for the spills involving
tankers are much greater than the average liability for tank barges
because the liability is based on the volume of the vessel, and tankers
generally have much higher volumes than tank barges.
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Source: GAO.
In a January 2007 report examining spills in which the limits of
liability had been exceeded, the Coast Guard had similar findings on
the adequacy of some of the new limits.\30\ Based on an analysis of 40
spills in which costs had exceeded the responsible party's liability
limit since 1991, the Coast Guard found that the Fund's responsibility
would be greatest for spills involving tank barges, where the Fund
would be responsible for paying 69 percent of costs. The Coast Guard
concluded that increasing liability limits for tank barges and non tank
vessels--cargo, freight, and fishing vessels--over 300 gross tons would
positively impact the Fund balance. With regard to making specific
adjustments, the Coast Guard said dividing costs equally between the
responsible parties and the Fund was a reasonable standard to apply in
determining the adequacy of liability limits.\31\ However, the Coast
Guard did not recommend explicit changes to achieve either that 50/50
standard or some other division of responsibility.
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\30\ U.S. Coast Guard, Report on Oil Pollution Act Liability
Limits, Jan. 5, 2007.
\31\ We did not assess the reasonableness of adopting such a
standard in determining liability limits.
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Liability Limits Have Not Been Adjusted for Inflation
Although OPA requires adjusting liability limits to account for
significant increases in inflation, no adjustments to the limits were
made between 1990 and 2006, when the Congress raised the limits in the
Coast Guard and Maritime Transportation Act. During those years, the
Consumer Price Index rose approximately 54 percent.\32\ OPA requires
the President, who has delegated responsibility to the Coast Guard,
through the Secretary of Homeland Security, to issue regulations not
less often than every 3 years to adjust the limits of liability to
reflect significant increases in the Consumer Price Index.\33\ We asked
Coast Guard officials why no adjustments were made between 1990 and
2006. Coast Guard officials stated that they could not speculate on
behalf of other agencies as to why no adjustments had been made prior
to 2005 when the delegation to the Coast Guard was made.\34\
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\32\ The new limits, which increased an average of 125 percent for
the 51 vessels involved in major oil spills, were substantially higher
than the rise in inflation during the period.
\33\ Congress reiterated this requirement in the Coast Guard and
Maritime Transportation Act by requiring that regulations be issued 3
years after the enactment of the act (July 11, 2006) and every 3 years
afterward to adjust the limits of liability to reflect significant
increases in the Consumer Price Index.
\34\ OPA has required since 1990 that the President--and through
several delegations to the Secretaries of Transportation and Homeland
Security and a redelegation to the Coast Guard in 2005--adjust
liability limits at least every 3 years to account for significant
increases in inflation. However, the Executive Branch has never made
such adjustments.
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The decision to leave limits unchanged had financial implications
for the Fund. Raising the liability limits to account for inflation
would have the effect of reducing payments from the Fund, because
responsible parties would be responsible for paying costs up to the
higher liability limit. Not making adjustments during this 16-year
period thus had the effect of increasing the Fund's financial
liability. Our analysis showed that if the 1990 liability limits had
been adjusted for inflation during the 16-year period, claims against
the Fund for the 51 major oil spills would have been reduced 16
percent, from $252 million to $213 million. This would have meant a
savings of $39 million for the Fund.
Certification of Compliance With the New Liability Limits Is Not in
Place
Certificates of Financial Responsibility have not been adjusted to
reflect the new liability limits. The Coast Guard requires Certificates
of Financial Responsibility, with few exceptions, for vessels over 300
gross tons or any vessels that are lightering or transshipping oil in
the Exclusive Economic Zone as a legal certification that vessel owners
and operators have the financial resources to fund spill response up to
the vessel's limit of liability. Currently, Certificate of Financial
Responsibility requirements are consistent with the 1990 limits of
liability and, therefore, there is no assurance that responsible
parties have the financial resources to cover their increased
liability.\35\ The Coast Guard plans to initiate a rulemaking to issue
new Certificate of Financial Responsibility requirements. Coast Guard
officials indicated their goal is to publish a Notice of Proposed
Rulemaking by the end of 2007, but they said they could not be certain
they would meet this goal.
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\35\ According to the NPFC, while liable parties are not required
to establish an ability to pay at the higher amended limits until the
certificate of financial responsibility rule is published as required
by OPA, those parties are liable for the higher amounts.
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Other Challenges Could Also Affect the Fund's Condition
The Fund also faces several other potential challenges that could
affect its financial condition:
Additional claims could be made on spills that have already
been cleaned up: Natural resource damage claims can be made on
the Fund for years after a spill has been cleaned up. The
official natural resource damage assessment conducted by
trustees can take years to complete, and once it is completed,
claims can be submitted to the NPFC for up to 3 years
thereafter.\36\ For example, NPFC recently received and paid a
natural resource damage claim for a spill in U.S. waters in the
Caribbean that occurred in 1991.
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\36\ Federal response costs for spills that resulted from
Hurricanes Katrina and Rita were paid from the Stafford Act Disaster
Relief Funds. However, private parties can seek reimbursement from the
Fund for cleanup costs and damages in the future. According to NPFC, it
is difficult to estimate future liabilities to the Fund as a result of
Hurricanes Katrina and Rita, but as of July 2007, there are no claims
pending in connection with these hurricanes.
Costs and claims may occur on spills from previously sunken
vessels that discharge oil in the future: Previously sunken
vessels that are submerged and in threat of discharging oil
represent an ongoing liability to the Fund. There are over
1,000 sunken vessels that pose a threat of oil discharge.\37\
These potential spills are particularly problematic because in
many cases there is no viable responsible party that would be
liable for removal costs. Therefore, the full cost burden of
oil spilled from these vessels would likely be paid by the
Fund.
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\37\ Michel, J., D. Etkin, T. Gilbert, J. Waldron, C. Blocksidge,
and R. Urban; 2005. Potentially Polluting Wrecks in Marine Waters: An
Issue Paper Prepared for the 2005 International Oil Spill Conference.
Spills may occur without an identifiable source and
therefore, no responsible party: Mystery spills also have a
sustained impact on the Fund, because costs for spills without
an identifiable source--and therefore no responsible party--may
be paid out of the Fund. Although mystery spills are a concern,
the total cost to the Fund from mystery spills was lower than
the costs of known vessel spills in 2001 through 2004.
Additionally, none of the 51 major oil spills was the result of
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discharge from an unknown source.
A catastrophic spill could strain the Fund's resources:
Since the 1989 EXXON VALDEZ spill, which was the impetus for
authorizing the Fund's usage, no oil spill has come close to
matching its costs.\38\ Cleanup costs for the EXXON VALDEZ
alone totaled about $2.2 billion, according to the vessel's
owner. By comparison, the 51 major oil spills since 1990 cost,
in total, between $860 million and $1.1 billion. The Fund is
currently authorized to pay out a maximum of $1 billion on a
single spill. Although the Fund has been successful thus far in
covering costs that responsible parties did not pay, it may not
be sufficient to pay such costs for a spill that has
catastrophic consequences.
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\38\ The EXXON VALDEZ only discharged about 20 percent of the oil
it was carrying. A catastrophic spill from a vessel could result in
costs that exceed those of the EXXON VALDEZ, particularly if the entire
contents of a tanker were released in a `worst-case discharge'
scenario.
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Concluding Observations
In conclusion, the ``polluter pays'' system established under OPA
has been generally effective in ensuring that responsible parties pay
the costs of responding to spills and compensating those affected.
However, increases in some liability limits appear warranted to help
ensure that the ``polluter pays'' principle is carried out in practice.
For certain vessel types, such as tank barges, current liability limits
appear disproportionately low relative to their historic spill costs.
The Coast Guard has reached a similar conclusion but so far has stopped
short of making explicit recommendations to the Congress about what the
limits should be. Absent such recommendations, the Fund may continue to
pay tens of millions for spills that exceed the responsible parties'
limits of liability. Further, to date, liability limits have not been
regularly adjusted for significant changes in inflation. Consequently,
the Fund was exposed to about $39 million in liability claims for the
51 major spills between 1990 and 2006 that could have been saved if the
limits had been adjusted for inflation. Without such actions, oil
spills with costs exceeding the responsible parties' limits of
liability will continue to place the Fund at risk. Given these
concerns, in our September 2007 report, we recommended that the
Commandant of the Coast Guard (1) determine whether and how liability
limits should be changed, by vessel type, and make recommendations
about these changes to the Congress and (2) adjust the limits of
liability for vessels every 3 years to reflect significant changes in
inflation, as appropriate. DHS, including the Coast Guard, generally
agreed with the report's contents and agreed with the recommendations.
To date, the Commandant of the Coast Guard has not implemented these
recommendations.
Madame Chair this concludes my statement. I would be pleased to
answer any questions that you or other Members of the Subcommittee may
have at this time.
Appendix I: Information on Spill Response
Response to large oil spills is typically a cooperative effort
between the public and private sector, and there are numerous players
who participate in responding to and paying for oil spills. To manage
the response effort, the responsible party, the Coast Guard, EPA, and
the pertinent state and local agencies form the Unified Command, which
implements and manages the spill response.\39\ Beyond the response
operations, there are other stakeholders, such as accountants who are
involved in documenting and accounting for costs, and receiving and
processing claims. In addition, insurers and underwriters provide
financial backing to the responsible party. The players involved in
responding to and/or paying for major spill response are as follows:
\40\
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\39\ The Incident Command System (ICS) is a standardized response
management system that is part of the National Interagency Incident
Management System. The ICS is organizationally flexible so that it can
expand and contract to accommodate spill responses of various sizes.
The ICS typically consists of four sections: operations, planning,
logistics, and finance/administration.
\40\ For a full description of the organizational structure and
procedures for preparing for and responding to discharges of oil, see
The National Oil and Hazardous Substances Pollution Contingency Plan,
40 C.F.R. 300.
Government agencies: The lead Federal authority, or Federal
On-Scene Coordinator, in conducting a spill response is usually
the nearest Coast Guard Sector and is headed by the Coast Guard
Captain of the Port.\41\ The Federal On-Scene Coordinator
directs response efforts and coordinates all other efforts at
the scene of an oil spill. Additionally, the on-scene
coordinator issues pollution removal funding authorizations--
guarantees that the agency will receive reimbursement for
performing response activities--to obtain services and
assistance from other government agencies. Other Federal
agencies may also be involved. NOAA provides scientific
support, monitoring and predicting the movement of oil, and
conducting environmental assessments of the impacted area. The
Federal, state, and tribal trustees join together to perform a
natural resource damage assessment, if necessary. Within the
Coast Guard, the NPFC is responsible for disbursing funds to
the Federal On-Scene Coordinator for oil spill removal
activities and seeking reimbursement from responsible parties
for Federal costs. Additionally, regional governmental entities
that are affected by the spill--both state and local--as well
as tribal government officials or representatives may
participate in the Unified Command and contribute to the
response effort, which is paid for by the responsible party or
are reimbursed by the responsible party or the Fund.\42\
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\41\ Although this report focuses on vessels, and most vessel
spills are in the Coast Guard zone of jurisdiction, EPA is the lead on-
scene coordinator in the inland zone, and Coast Guard is lead on-scene
coordinator in the coastal zone.
\42\ State governments can seek reimbursement directly from
responsible parties or from the Fund. State officials in Alaska,
California, New York, Rhode Island, Texas, and Washington said that
state agencies recover almost all of their costs, either directly from
responsible parties or from the NPFC. Officials in Texas said that the
reimbursement rate for oil spill costs may be as high as 98 percent.
Responsible parties: OPA stipulates that both the vessel
owner and operator are ultimately liable for the costs of the
spill and the cleanup effort. The Coast Guard has final
determination on what actions must be taken in a spill
response, and the responsible party may form part of the
Unified Command--along with the Federal on-scene coordinator
and pertinent state and local agencies--to manage the spill
response. The responsible parties rely on other entities to
evaluate the spill effects and the resulting compensation.
Responsible parties hire environmental and scientific support
staff, specialized claims adjustors to adjudicate third-party
claims, public relations firms, and legal representation to
file and defend limit of liability claims on the Fund, as well
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as serve as counsel throughout the spill response.
Qualified individuals: Federal regulations require that
vessels carrying oil as cargo have an incident response plan
and, as part of the plan, they appoint a qualified individual
who acts with full authority to obligate funds required to
carry out response activities. The qualified individual acts as
a liaison with the Federal On-Scene Coordinator and is
responsible for activating the incident response plan.
Oil spill response organizations: These organizations are
private companies that perform oil spill cleanup, such as
skimming and disposal of oil. Many of the companies have
contractual agreements with responsible parties and the Coast
Guard. The agreements, called basic ordering agreements,
provide for prearranged pricing, response personnel, and
equipment in the event of an oil spill.
Insurers: Responsible parties often have multiple layers of
primary and excess insurance coverage, which pays oil spill
costs and claims. Pollution liability coverage for large
vessels is often underwritten by not-for-profit mutual
insurance organizations. The organizations act as a collective
of ship owners, who insure themselves, at-cost. The primary
insurers of commercial vessels in U.S. waters are the Water
Quality Insurance Syndicate, an organization providing
pollution liability insurance to over 40,000 vessels, and the
International Group of P&I Clubs, 13 protection and indemnity
organizations that provide insurance primarily to foreign-
flagged large vessels.\43\
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\43\ These 13 organizations are American Steamship Owners Mutual
Protection and Indemnity Association, Inc.; Assuranceforeningen Gard;
Assuranceforeningen Skuld; the Britannia Steam Ship Insurance
Association Limited; the Japan Ship Owners' Mutual Protection &
Indemnity Association; the London Steam-Ship Owners' Mutual Insurance
Association Limited; the North of England Protection and Indemnity
Association, Limited; the Shipowners' Mutual Protection and Indemnity
Association (Luxembourg); the Standard Steamship Owners' Protection and
Indemnity Association (Bermuda), Limited; the Steamship Mutual
Underwriting Association (Bermuda), Limited; the Swedish Club; United
Kingdom Mutual Steam Ship Assurance Association (Bermuda), Limited; the
West of England Ship Owners Mutual Insurance Association (Luxembourg).
At the Federal level, the National Oil and Hazardous Substances
Pollution Contingency Plan provides the framework for responding to oil
spills.\44\ At the port level, each port has an Area Contingency Plan,
developed by a committee of local stakeholders, that calls for a
response that is coordinated with both higher-level Federal plans and
lower-level facility and vessel plans. The Federal plans designate the
Coast Guard as the primary agency to respond to oil spills on water.
The Coast Guard has a National Strike Force to provide assistance to
efforts by the local Coast Guard and other agencies.\45\ The Coast
Guard also has an exercise program--known as the Spills of National
Significance exercise program--to test national level response
capabilities. This program is focused on exercising the entire response
system at the local, regional and national level using large-scale,
high probability oil and hazardous material incidents that result from
unintentional causes such as maritime accidents or natural disasters.
The most recent program exercise, in June 2007, tested the response and
recovery to an oil and hazardous materials release in the wake of a
large scale earthquake in the Mississippi and Ohio River valleys.
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\44\ The National Oil and Hazardous Substances Pollution
Contingency Plan is a part of a larger plan known as the National
Response Plan which covers a wide variety of contingencies that include
natural disasters, major disasters, and terrorist attacks.
\45\ The National Strike Force was established in 1973. Originally
comprised of three 17-member strike teams, today's National Strike
Force totals over 200 active duty, civilian, and reserve Coast Guard
personnel for three distinct regions--the Atlantic, Gulf and Pacific.
Senator Cantwell. Thank you. And thank you all for your
testimony and the focus on this important issue. I know many of
my colleagues will have questions, but I think what I want to
do is to start with 5-minute rounds, and if we want to have a
second round on this panel, we can, but we do have another
panel afterwards. So I want to get to them as time allows and
have interest.
So we'll just have to take a reading after that. But let's
start with 5-minute rounds, if we could, and I'd like to start
with how the 1990 Act required the preparedness of Vessel
Response Plans. And each of you mentioned that in your
testimony, and the effectiveness of the response structure. All
vessels that carry oil as cargo over 400 gross tons, that carry
that fuel, must have a Vessel Response Plan. And these response
plans are to address the potential of discharge from the
vessel.
So Congress mandated the Coast Guard to come up with the
2004 Maritime Transportation Act with what these actual
regulations should be, what is the final rule implemented into
law. So just a yes or no answer, if you can just tell me
whether you think it's important that we get this done. Just a
yes or no.
Senator Lautenberg. Yes.
Ms. Fleming. Yes.
Senator Cantwell. OK. Admiral Allen? Will we these
regulations put in place within the next 12 months?
Admiral Allen. We're putting together a regulatory work
plan right now. As I stated in my opening statement, we did
provide guidance to the industry, and they have submitted plans
to us that we have reviewed, and they have been acting under
those plans. So we are constructively meeting the intent, but
the rule is not out there and it needs to get out there. I'm
prepared to put resources out, and I think we've got a good
chance to get it done in the next 12 to 18 months, but there
are----
Senator Cantwell. I'm asking you for a yes or no commitment
of whether we'll have that done in the next year or not. In the
next 12 months. If it takes longer than 12 months--but I think
what we're trying to get at is we----
Admiral Allen. Oh, you certainly have my commitment. Yes,
ma'am. Yes, ma'am.
Senator Cantwell. I'm asking you more yes or no, do you
think it can be done, and are you----
Admiral Allen. It can be done in 12 months. As I say, we
have a number of rules in the backlogs, so we can do this in 12
months. It will likely displace something else, but yes, it can
be done.
Senator Cantwell. Do you think it should be done in the
next 12 months, Admiral?
Admiral Allen. I would like to collaborate and talk about
that, because I would like to get that sense from the Congress
how to compete in priorities on the rules that we'd be required
to make.
Senator Cantwell. I think we're here today because we think
it's very important. So happy to have that collaboration, but I
think you will hear from us that we expect it to be done soon.
Let me ask you about how many nontank vessels under law haven't
submitted a response plan--that haven't done so.
Admiral Allen. Well, any nontank vessel that is calling
here is required to have one, so if there is not one that's
been prepared, it means they're not calling the United States,
ma'am.
Senator Cantwell. So you say there is none.
Admiral Allen. None that I'm aware.
[An appended statement from Admiral Allen on this issue
follows:]
United States Coast Guard
U.S. Department of Homeland Security
Washington, DC, January 14, 2008
Hon. Maria Cantwell,
Chair,
Fisheries and Coast Guard Subcommittee,
Committee on Commerce, Science, and Transportation,
U.S. Senate,
Washington, DC.
Dear Madam Chair:
I am writing to advise you of the need to correct my testimony from
the December 18, 2007, hearing pertaining to oil spills from non-tank
vessels. During the hearing, you questioned me about the number of non-
tank vessels which have yet to submit response plans. I indicated that
any non-tank vessel calling on a U.S. port is required to have a Non-
tank Vessel Response Plan (NTVRP). I further added that vessels without
such plans are not permitted to call on U.S. ports; I have since
learned that this is incorrect. Specifically, there are instances where
both U.S. and foreign-flagged non-tank vessels have entered and
operated in the United States without a Coast Guard-reviewed NTVRP.
Absent the effect of a formal rule to implement the NTVRP required
by the Coast Guard Maritime Transportation Act of 2004 (MTA), as
amended in 2006, the fully enforceable requirement is the international
standard required under MARPOL Annex I. Annex I requires that non-tank
vessels over 400 gross tons have an approved Shipboard Oil Pollution
Emergency Plan (SOPEP).
The Coast Guard ensures vessels possess valid SOPEPs during Port
State Control examinations and domestic inspections. However, these
standards are not as detailed and rigorous as those required by MTA. In
the case of M/V COSCO BUSAN, both the MTA-required NTVRP and
international SOPEP requirements were met.
I have initiated a review of the interim guidance provided to our
field commanders following the passage of MTA, the effectiveness of
that guidance, and a more accurate determination of the compliance
rate. I am accountable to ensure the statutory NTVRP requirement is met
and will take appropriate action. I am available to provide a more
comprehensive brief upon your return from holiday recess.
Thank you for your leadership on this important national issue. The
Coast Guard is committed to protecting the environment through
prevention and stands ready to answer any questions you may have. You
can reach me through my Senate Liaison Office. Identical letters have
been sent to Senator Snowe, Senator Stevens and Senator Inouye.
Sincerely,
Thad W. Allen,
Admiral,
U.S. Coast Guard, Commandant.
Senator Cantwell. And is the Coast Guard effectively
enforcing the response plans?
Admiral Allen. Yes. We've received and reviewed, and I'm
going to give them authority to operate as nontank vessels
under the Circular that was issued in 2005 to conform to the
legislation, ma'am.
Senator Cantwell. And what kind of uniformity do you think
there is in these response plans?
Admiral Allen. Well, the guidance that was issued to the
industry regarding nontank vessels is very similar to the tank
vessel plans that are already required out there, and we're
looking for continuity between two sets of plans. And so
they're basically mirrored on the tank vessel plans made.
Senator Cantwell. And so you'd be surprised if--I mean, I
think we're going to hear from my colleague from California,
and we already heard a little from Senator Snowe on this issue
of the response time in general. And I think what we're seeing
in this particular case is perhaps a lack of uniformity and the
lack of oversight might have a broad array of what these
response plans have been.
But clearly, notifying people hours and hours later I don't
think is what we had in mind. But let's say, for example, if
this particular ship did not have a response plan, what would
have happened? What would have transpired?
Admiral Allen. In this ship, it had to have a response
plan, as it is a requirement to enter the port, ma'am. And
every time it had to have met the requirements of the Circular
that was issued in 2005 would have to be reviewed and accepted
by the Coast Guard.
Senator Cantwell. Ms. Glackin and Ms. Fleming, do you have
any----
Ms. Glackin. No. This role is primarily a Coast Guard role.
We would consult on these things as needed.
Senator Cantwell. How sufficient do you think the response
plans are today?
Ms. Glackin. I'm not in a position to answer that.
Senator Cantwell. OK. OK, Senator Snowe, I'm going to turn
it over to you.
Senator Snowe. Thank you, Madam Chair. Admiral Allen, on
these interim plans, what percentage of the nontanker fleet
does this represent those who have these Vessel Response Plans
on file?
Admiral Allen. The total population of Non-Tank Vessel
Response Plans on file is about 13,000. The subset of our large
ocean wave freight vessels, like the COSCO BUSAN, is about
8,000.
Senator Snowe. 8,000 out of how many total? 15,000?
Admiral Allen. Thirteen--Yes, ma'am.
Senator Snowe. What is the reason due to the backlog on
these regulations that you're so far behind?
Admiral Allen. The legislation required that the rule be
done within a year. We could not get the rule done within a
year, so we issued interim guidelines that were constructively
the same----
Senator Snowe. Yes.
Admiral Allen.--as the Tank Vessel Response Plans that were
required OPA 90. We're in the process of putting together a
regulatory plan to write that regulation right now. But in the
interim, we issued guidance that was basically the same as the
Tank Vessel Response Plans.
Senator Snowe. Yes. Do you have the resources to carry out
these regulations?
Admiral Allen. I don't think we've got adequate resources
right now. No, ma'am. And we can even talk about that. I've
gone to the Administration, and I am getting support for more
resources moving forward.
Senator Snowe. Do you require a budgetary increase?
Admiral Allen. It requires a couple of things. We can move
internal resources, but you're robbing Peter to pay Paul. We
can do that increase in the staffs that make rules. We also
need to talk about the priority in which rules are being made.
And we're trying to establish a task force to take a look at
it.
Senator Snowe. What's the timeline for reaching a decision
in exactly how you're going to proceed?
Admiral Allen. Quite frankly----
Senator Snowe.--at what point?
Admiral Allen. I cannot conceive of coming to the hearing
this next spring and not having a move forward on the
regulatory backlog for the Coast Guard, ma'am. It's
unsatisfactory to you, but it's unsatisfactory to me, as well.
Senator Snowe. Admiral Allen, also on the response
personnel, I gather from following the exercise in 2004, the
Coast Guard's After Action Report stated that response
personnel were not proficient with their equipment, and that
there was a shortage of experienced personnel to fill these
positions? What have you done to develop a response capability
and to work on these deficiencies?
Admiral Allen. We have a national--we call it our Prep
Program. It's a national exercise program where we issue
guidelines every year. Our large major spill exercises for the
last year have been met. I've asked for a detailed data
collection to make sure that all of the training requirements
clear down to the lower levels have been consistent with the
guidance that was provided out there. And we'll be looking at
that as part of the incident review that we're doing, ma'am. If
there is a gap there, I will advise you. But for the major
large significant exercises to be conducted both by industry
and the government, we have been meeting those criteria.
Senator Snowe. OK. Are these drills being conducted with
adequate frequency?
Admiral Allen. Yes. They're according to standard. Yes. The
current standard is there should be six to eight major spill
exercises a year. We completed seven last year. The industry is
supposed to lead 13 to 16, and they've led 16, ma'am.
Senator Snowe. Yes. And are you going to incorporate
anything you've learned from this recent spill with the COSCO
BUSAN?
Admiral Allen. Yes, ma'am. Most notably, if I could just
summarize, and as Senator Boxer already indicated, I think
things in our country right now, in terms of information
available to the public, for we're not envisioning, with OPA 90
this past--we look at NGOs, how to bring volunteers in, and
take advantage of our more modern communications.
Senator Snowe. Yes. And Ms. Fleming mentioned the NGO
report. There are various issues that have an impact on the
severity of the spill, and the cost of the cleanup, especially
around port facilities, and that's something I mentioned in my
opening statement, whether it's at the Port of Portland or up
near Bar Harbor and Acadia National Park. We do have dense fog,
high winds, and that all adds excessively to the dangerous
conditions in which these ships are coming into port. How is
the Coast Guard addressing those issues? What authority do you
have to regulate that traffic around various ports?
Admiral Allen. The Coast Guard has extensive authority to
regulate traffic, and I would differentiate the movement of
vessels in the port as opposed to Vessel Traffic Services for
the purposes of this answer, as far as high winds, hurricane
conditions, and so forth. We routinely put restrictions on port
entry or port departure, and we have the current authority to
be able to do that.
Although, what we need to look at going forward is issues
like if there was low visibility in a port, to move beyond the
judgment of the pilot to be able to make that vessel movement
and whether or not there needs to be a government role in doing
that. And that is handled differently around the country, but
most notably, the pilot's associations make determinations on
whether or not it's safe to move a vessel. But we have
statutory authority to intervene as well.
Senator Snowe. OK. Ms. Fleming, you mentioned several
things, one of which, 51 spills, up to a billion dollars, which
sounds like a lot of money for 51 oil spills. But you say in
your report the Fund has been able to cover costs not paid by
responsible parties, but risks remain.
Ms. Fleming. Yes.
Senator Snowe. So we're not able to recover the costs from
the responsible parties with respect to the cleanup?
Ms. Fleming. What I've highlighted in my statement is that
the Coast Guard reports that as of the end of Fiscal Year 2006,
the Fund balance was about $600 million.
Senator Snowe. Yes.
Ms. Fleming. At its peak, there was about $1.2 billion.
There's enough, because of the recent reinstitution of the
barrel tax, to cover non-catastrophic spills. However, we've
highlighted in our work that there are other factors that could
affect the solvency of the Trust Fund. For instance, there are
still spills out there for which additional costs may accrue
for instance, additional natural resource damage claims.
As you know, in a 1991 spill, the claims were just filed
and they were just paid by the fund. So another thing is that
previously sunken vessels could discharge oil. That comes into
play particularly if there is no viable responsible party,
because the fund would pay the full cost for those types of
incidents. So while the fund is in good shape to cover non-
catastrophic costs there are other factors that could affect
the solvency of the fund.
Senator Snowe. Yes, Admiral Allen?
Admiral Allen. I just wanted to add that another issue is
whether the response exceeds the limits of liability of the
responsible party. Then the fund is vulnerable at that point.
That's why it's very, very important to look at limits of
liability.
Senator Snowe. To raise them?
Admiral Allen. Yes.
Senator Snowe. Yes, to raise them? Would you agree, Ms.
Fleming?
Ms. Fleming. Yes. We agreed with that--it was a
recommendation that we made in our September report, that for
certain vessel types we change the liability limits to be more
commensurate with the historic spill costs for certain vessels,
such as tank barges.
Senator Snowe. OK. Well, that's something obviously we
should consider then and take action on. Thank you.
Senator Cantwell. Thank you. Senator Lautenberg?
Senator Lautenberg. OK. Admiral Allen, pursuant to the
discussion that was just taking place with Senator Snowe and
Ms. Fleming, what do you do where there is a billion-dollar
cost allowed in the event of a catastrophic spill, what do you
do in the case of a major spill that a billion dollars of
Federal cleanup assistance is required, and the Trust Fund
doesn't have it? What then takes place?
Admiral Allen. Well, sir, first of all, it would depend on
the vessel and the limits of liability and how much the
responsible party had to pay. I'm assuming your question is
based on the fact that we went over the limits of liability and
over what was available in the fund. We would have to go back
and seek additional appropriations or support from Congress to
source the fund.
Senator Lautenberg. How does that happen in a timeline that
requires the additional funding?
Admiral Allen. We have not had to do that in the history of
the fund. As you know, we have reinstituted the upper-barrel
tax and the fund is increasing back up. In fact, I would just
like to make a correction, we're up around $943 million right
now, and we're bringing in about $250 million to $300 million a
year based on that tax, and we think we're going to stabilize
at about $2 billion by 2014. We have not faced a catastrophic
incident that challenged the entire amount of the fund yet,
sir.
Senator Lautenberg. Ms. Fleming, what brought you to
revisit the Federal liability limits to better align the
polluter responsibilities over damages that they cause in a
spill?
Ms. Fleming. We believe for certain vessel types, most
notably tank barges, the liability limits are
disproportionately low compared to historic oil spill costs.
Even with the recent limits, the 2006 limits, we did an
analysis that shows both the 1990 liability limits for certain
vessel types, as well as the 2006, stayed disproportionately
low compared to what a historic oil spill costs.
Senator Lautenberg. Are barges enveloped in the same
structure that provide the insurance necessary, the insurance
that a regular vessel would have? Are the barges ever put in
the separate designations that are not really able to meet the
same financial obligations that a seagoing vessel would?
Admiral Allen. They're covered and required to meet those
obligations. Yes, sir.
Senator Lautenberg. Admiral, it's been a year and a half
since the Federal liability limits have been set. When will the
Coast Guard publish new regulations requiring shippers to prove
that they can meet the required financial liabilities now?
Admiral Allen. Well, you know limits of liability have
already been raised, subsequent to the legislation. What we are
now required to do is raise the Certificate of Financial
Responsibility; in other words, their assurance that they can
pay that up to the same levels. That rule is in process right
now. We're expecting to be published in 2008.
Senator Lautenberg. And did the COSCO BUSAN possess your
required proof of----
Admiral Allen. They did. And as a result of the earlier
legislation, their limits of liability range from approximately
$31 million to almost $61 million regarding this particular
incident.
Senator Lautenberg. Does it look like that's going to be
enough to cover the damage that resulted from this?
Admiral Allen. Yes, sir.
Senator Lautenberg. So it would fall--does it first fall to
the fund or does it----
Admiral Allen. The responsible party pays, sir.
Senator Lautenberg. The responsible party----
Admiral Allen. Yes, sir.
Senator Lautenberg.--pays to whatever their liability is
today.
Admiral Allen. Yes, sir. As they move above the limits of
liability, obviously, there is a conversation that has to
occur. However, there are provisions that you can weigh the
limits of liability based on certain circumstances, and those
discussions are going on now with the Department of Justice.
Senator Lautenberg. Are they required to meet those
standards if they've got a vessel afloat? A higher level of----
Admiral Allen. Up to their limits of liability, yes, sir.
Senator Lautenberg. Up to the limit of the Federal
liability standards?
Admiral Allen. Yes, sir. And we see many companies that go
above their limit of liability, just because it's the
responsible thing to do. But they are captive to liability if
there are certain exigencies that exist. In this case, there
are reasons why you can move above the limits of liability
based on the circumstances surrounding the incident itself. And
quite frankly, we are discussing them now.
Senator Lautenberg. Before Congress updated the Federal Oil
Spill Liability Limits last year, the Coast Guard failed for 16
years to raise the limits as required by law to keep up with
the CPI. Now, as a result, we ended up subsidizing polluters by
some $39 million. When will the Coast Guard next update these
limits to keep up with inflation?
Admiral Allen. Sir, there is not any procedure in place
right now to add a Consumer Price Index increase to those
limits, and that was fixed in the legislation in our committee
rules. What we still have to do is move that over to the
Certificates of Financial Responsibility, which is the
financial assurance that they can pay, and that's already being
done right now and will be issued in 2008, sir.
Senator Lautenberg. It's been a year and a half since my
law passed requiring the Coast Guard to create the Delaware
River Oil Spill Advisory Commission. This Commission has still
not had its first meeting. And the Coast Guard has not yet
appointed members to it. What's taking place, Admiral?
Admiral Allen. Sir, the situation is that the nomination
period closes out in January, and we need to establish a
committee.
Senator Lautenberg. The time runs out in January?
Admiral Allen. We have asked for nominations, and the
nominating period closes in January, at which point we will
send the paperwork for the establishment of the Committee, sir.
Senator Lautenberg. You're prepared to present candidates?
Admiral Allen. Yes, sir.
Senator Lautenberg. Thank you very much, Madam Chairman.
Senator Cantwell. Thank you. Senator Boxer?
Senator Boxer. Thank you so much, Senator, again. It's my
understanding if there is gross negligence then the cap doesn't
apply. Is that correct?
Admiral Allen. There's a provision for that. Yes, ma'am.
Senator Boxer. So that if--So the cap only applies if it
was just sort of an act of God. But if it's gross negligence,
the cap doesn't apply. Let me just ask our GAO person this
question. My understanding is we have several issues here. One
is the cap itself, and the second issue is that the cap is
different for oil tankers versus cargo ships. It's like half
the amount. And it seems to me, as Senator Feinstein and I
looked at this, and I'm so happy everyone is interested in
this, because this will go over to the EPW. But if we can come
up with--obviously, Senator Feinstein and I are certainly not
wedded to what we did, but let me tell you what we did.
We took the limits for the nontanker ships, put the cargo
ships, such as this ship that crashed into the Bay Bridge, and
we moved it up to equal the liability cap of the tankers,
because now, as Senator Snowe points out, there is so much more
oil being carried by these other type of ships. So we equalized
it. And also, I guess, the third question is the issue of the
double hulls. Right now, is there a different cap if you have a
double hull?
Admiral Allen. In establishing limits of liability, there
is.
Senator Boxer. Good.
Admiral Allen. Double hulls, double size, there is
different----
Senator Boxer. Right.
Admiral Allen.--gradations, and then it's an amount by
gross tonnage, and we can provide----
Senator Boxer. OK.
Admiral Allen.--a detailed----
Senator Boxer. Well, my understanding is it's 3,000 per
gross ton for a single-hulled vessel and $1,800 for a double-
hulled vessel is what we have per gross ton. But I said in my
comments, the issue is equalizing this. And then, the next
issue is maybe we want to review the double hulls more as we
reform this. So I think this is an area that we really need to
deal with. Just in all honesty, I am very disappointed in your
response to Senator Cantwell's questions about the Vessel
Response Plans. And in her prodding you, saying can you promise
to be here, in your answer, well, it would have to displace
other rules, so I really can't tell you.
Now, this law passed in 2004. We're going into 2008. That's
4 years. It's unacceptable. So could you tell me what we can do
to help you get the resources you need, the people you need?
Because it's just not right. That's not an answer we want to
hear. We know the Coast Guard has a lot of issues being part of
Homeland Security, and one of the things we worried about when
the Coast Guard went into Homeland Security is, you know, we
were afraid that maybe this would take second tier of your
interests.
Now, it can't. You have to tell us what you need to do
everything: Homeland Security and protecting our resources.
Because I'll tell you, if this starts to take second fiddle,
and we have more of these issues, we look at more of these
birds, and we can't have a fishing season, we are looking at a
very grim future indeed. So can you tell us, from your bottom
of your heart and in all honesty, how can we help you get to
the point where you have the resources to do all the
rulemakings that you have to do?
Admiral Allen. Well, it's more people to do legal analysis,
economic analysis, regulatory analysis, and all the
requirements of the Administrative Procedures Act and all of
the policy guidance. Some of these require environmental impact
statements.
Senator Boxer. Yes.
Admiral Allen. The hoops you have to jump through for some
of these rules are extensive. The average time to make a rule
in the Coast Guard right now--not just because of resources,
but because of the process, because I think we have to look at
the process, too--is 3.5 years. That is unsatisfactory.
Senator Boxer. Yes. Well, could you please, in writing,
just--we're asking a question. If you were to have to do--if
you decided you want to complete all your rulemakings that
you've had to set aside, what would you need? Because it would
help us. We want to be there for you. We want this to happen I
can tell you. We can't sit back. I mean, we pass these laws,
and then colleagues, we think they're going to do the rules,
and they don't do the rules because they don't have the
resources. It's just wrong. And it's not an answer. It's not
going to satisfy my people back home. So thank you for your
candor, and I look forward to getting this.
[The requested information follows:]
The Coast Guard has chartered a Rulemaking Review and Reform
Project (RRRP) to conduct a top to bottom review of our rulemaking
processes and to facilitate increases in capacity. The RRRP will assess
the current state of rulemaking, determine root causes of rulemaking
delays and identify specific opportunities for improvement. The RRRP
will deliver a complete report with recommendations and an
implementation plan by April 2008.
Moreover, the Consolidated Appropriations Act, 2008 (Pub. L. 110-
161) provided the Coast Guard with 31 additional full time positions to
apply toward rulemaking efforts. A working group within the RRRP has
begun an expedited process for hiring these new rulemaking personnel.
We expect to begin hiring personnel by April 1, 2008 and to be near
full complement by September 30, 2008. These additional resources will
allow us to make significant, near-term progress in our existing
rulemaking backlog.
Senator Boxer. Now, I wanted to ask a question about bunker
fuel, and then I'll be done. The Coast Guard has represented
the United States at the International Maritime Organization
negotiations on bunker fuel, recommending that either lower
sulfur be used, or technology used to retrofit existing ships.
In light of the recent tragedy in San Francisco Bay, should the
United States consider taking a stronger stand by supporting a
ban on bunker fuel, just flat-out?
Admiral Allen. We could do that, ma'am, but I'm not sure it
would have the constructive effect, because we can only
regulate what goes on within our economic zone in our
territorial sea. Many ships would end up carrying two tankers
of fuel, using bunker fuel outside the EEZ, and leaving the
larger----
Senator Boxer. Absolutely. And guess what? If that's what
happens, that's a huge victory for our people, because my
people, who live around ports, and I'm sure it goes to--we have
all the ships coming in. We do 40 percent of the exports that
come through Los Angeles/Long Beach, and I've got to tell you,
the people are suffering. The kids who live around there, they
have lower lung development.
And if that happens, we feel that that is a first step. We
would love to see an international agreement. But short of
that, we have legislation that would ban the bunker fuel. But I
have to just say, if you have to change your fuel when you get
close to American waters, fine. But if you want the privilege
of coming into our waters, then you need to step up to the
plate and keep the air clean, because this bunker fuel--that's
what spilled in the bay. This is horrific. It's terrible on the
lungs, it's terrible on the water. And so, sir, I think if the
outcome was, yes, that we have to get them to change the fuel
as they're coming into our ports, then that will help us.
Admiral Allen. Yes, ma'am. I would say that this has been
done under MARPOL Annex VI, which involves air emissions. It
would remove some of the bunker fuel, but there will be bunker
fuel on the ship that it used to maneuver before it came into
the country.
Senator Boxer. I under----
Admiral Allen. I just want to be clear.
Senator Boxer. I totally get it. That's why we're amending
the Clean Air Act. That's why our bill does that in the EPW
Committee. Well, thank you.
Senator Cantwell. Thank you. Senator Kerry?
Senator Kerry. Thank you, Madam Chairman. So Admiral, I
sort of asked a question, in essence, to really summarize your
familiarity with the Oil Spill Prevention Act that was passed
in Massachusetts. In several other states, the Coast Guard did
not challenge similar legislation. We had several oil spills
back in the day, so why does the Coast Guard not allow
Massachusetts to protect its own environmental interests there?
Admiral Allen. Sir, I don't think it's a matter of that.
And, in fact, I think on 85 and 90 percent of what's involved
here, we actually agree. The real issue is the inclusion----
Senator Kerry. We know what it involves if we go to court.
I mean----
Admiral Allen. Well, these are the double hulls, sir, as
you know.
Senator Kerry. I know, but--well, I understand that. But
that's exactly what they want to require, any major ship
carrying major amounts of oil, no matter what, double hull or
not, because double hull, as it obviously draws more, and has
as much risk in a shallow area if it--if somebody mis-
navigates. I mean, the last spill took place because they went
for the wrong side of the navigation buoy.
Admiral Allen. Yes, sir.
Senator Kerry. So why can't a double hull do that?
Admiral Allen. Sir, when we do a rulemaking, again, like we
were talking about earlier, under the Administrative Procedures
Act and the current guidelines, we have to do a regulatory
analysis and an economic analysis, and look at the cost
benefits of the solution that we're going to provide in the
rules. When you do that, the cost of regulating a double-hull
tanker in which an investment has already been made has a
higher degree of safety, and you work through this process, it
drives you to different than what the state arrived at, then we
have the issue of trying to provide a standard set of rules
across the country, so that we're not dealing with 50 different
sets of guidelines within the Federal Government, sir. We'd be
happy to work with you on it, sir.
Senator Kerry. Well, I understand that--I mean, it's not
skin off your back if a state has a stricter requirement, as
long as the ship that's coming through is going to enforce it.
I mean, the requirement is pretty simple. They've got to have a
minimum staffing watch requirement. That's fairly standard
fare. They've got to have a tug pilot, and then, a mandatory
navigational route.
Admiral Allen. Yes, sir.
Senator Kerry. I mean, what is complicated about that?
Admiral Allen. Sir, there is nothing complicated about it
at all, and it would be a higher degree of safety were we to
apply this to double hulls. All I was saying is the analysis
that a company's rulemaking required to do leads you to an
answer that says there is not a greater benefit to include
double hulls through the regulatory process. And if that's
unsatisfactory, we need to look at that process, sir.
Senator Kerry. Well, obviously, the state disagrees with
you.
Admiral Allen. Yes, sir.
Senator Kerry. So in effect, the Coast Guard is, by virtue
of its oppositional roles, trying to overrule the state's
desire to regulate its own waters.
Admiral Allen. No, sir. I think what we're trying to do is
take a Federal position, and there are a lot of higher legal--
--
Senator Kerry. You've never taken that position in other
places.
Admiral Allen. Sir, the position we have taken regarding
special areas and what the state has done, I think we have been
consistent. I can provide you the background on that.
Senator Kerry. Is that the only place where there is a
double hulled rule of this type?
Admiral Allen. I would have to go back and check, sir. I
would be happy to respond for the record.
Senator Kerry. Would you, please?
Admiral Allen. Yes, sir.
[The requested information follows:]
In August 2007, The First Coast Guard District published amendments
to an existing regulated navigation area that includes Buzzards Bay.
The rule accomplished four objectives:
(1) It requires tug escorts for single-hull tankers transiting
Buzzards Bay and carrying 5,000 or more barrels of oil or other
hazardous material.
(2) It requires a federally licensed pilot, in addition to the
crew, to be onboard the primary tug during the transit.
(3) It maintains the recommended route for tankers as
``recommended'' vice mandatory to allow mariners maximum
flexibility in the event of unusual circumstances and;
(4) It establishes a vessel movement reporting system to better
track and monitor tanker movements in the Bay.
It is true that the Massachusetts state rule, currently being
challenged by the Department of Justice in Federal court, requires tug
escorts and state licensed pilots for double-hulled tankers, as well.
During the rulemaking process, the state asked that the Coast Guard
adopt the same rule. After careful consideration, the Coast Guard
rejected the state's proposal, for the following reasons:
1. As stated in the preamble to the Final Rule, the Coast Guard
believes that double hulls provide a sufficient margin of
safety for tankers transiting Buzzards Bay. The bottom
characteristics of the Bay are primarily rocky--a condition
double hulls are designed to protect against. The State has
repeatedly cited a situation in the Gulf of Mexico where a
double-hulled tanker was involved in a spill. This situation
presented a unique set of facts--a tanker struck a submerged,
uncharted oil platform that sank during Hurricane Rita. These
facts are unlikely to be repeated in Buzzards Bay.
2. As Admiral Sullivan, the First District Commander, stated
when the final rules were published, the Coast Guard is seeking
opportunities to create economic incentives for shippers to use
double hull tankers; the State's rule, by requiring tug escorts
of both single and double hull tank vessels removes that
incentive. Prior to the B-120 spill in 2003, approximately 20
percent of tanker transits through Buzzards Bay were in double
hull tankers. In 2005, that percentage rose to nearly 58
percent, and has since remained at that level. The Coast Guard
seeks to increase that percentage; our regulatory choice is one
method of accomplishing that goal. By Federal statute, single
hull tankers will be largely phased out in the U.S. by 2015.
The Coast Guard has no authority to accelerate that timetable.
In contrast, the international phase-out will be largely
complete by 2010. Without double hull incentives in certain
sensitive areas like Estuaries of National Significance
(Buzzards Bay is so designated), use of single hull tankers
might conceivably increase.
3. It has long been the Coast Guard's position that consistent,
uniform national and international regulation is the most
effective method to ensure navigation safety and protection of
the marine environment. The majority of maritime accidents are
caused by human error, and a confused mariner is an unsafe
mariner. Conflicting Federal and state regulations can create
such confusion. The Coast Guard wants mariners to concentrate
on navigating safely, not on whether a state rule or a Federal
rule applies in a certain waterway.
Regulated Navigation Areas, such as the one covering Buzzards Bay,
are created under the authority of the Ports and Waterways Safety Act
of 1972, as amended. That statute requires the Coast Guard to consult
and work closely with affected states before promulgating any new rules
regulating vessel traffic. The Coast Guard takes that mandate very
seriously, as interaction with our state and local partners is a
crucial component of developing sound, sensible rules. In the case of
the Buzzards Bay rule, the Coast Guard coordinated closely with state
and local government through briefings, public hearings and by giving
the state and several cities and towns formal consultative status
during the rulemaking process. In the final analysis, our nation, as
described in the Federalist Papers, through the founding of the
Republic and in numerous, subsequent Congressional and Supreme Court
actions, has long recognized the need to ultimately speak with one
voice on matters maritime.
The actions of the Coast Guard throughout this rulemaking process
have been consistent with those objectives, while always keeping in
mind the value and importance of input from all stakeholders. San
Francisco Bay, Prince William Sound and Puget Sound are the only other
places where there are tug escort rules for tankers. The conditions in
those places, as well as the statutory and regulatory history for their
creation are sufficiently distinct that they may not be compared to
Buzzards Bay to determine what requirements should exist in Buzzards
Bay. For example, in San Francisco, there are no Federal tug escort
rules with which the state rule might conflict, and no indication that
there is a need for any Federal tug escort regulation. In Prince
William Sound, the rules are statutorily mandated as part of Oil
Pollution Act of 1990. In Puget Sound, the tank vessels requiring
escort serve only ports in the State of Washington, whereas in Buzzards
Bay, they serve several states (Rhode Island, Connecticut, New York,
New Hampshire and Maine), in addition to Massachusetts, and thus an
obvious need for Federal uniformity.
Finally, the law established by the Supreme Court in U.S. v. Locke
in 2000, strengthened and clarified how Federal rules applicable to
vessel regulation preempt state rules. This strengthened Federal
preemption regime for vessel regulation was not so clear when the Puget
Sound rules were adopted in 1994.
Senator Kerry. I think you should. And, you know, it's--
well, it's obviously frustrating, particularly when you look at
the cost issue. Secretary Glackin, the NOAA Damage Assessment
Remediation and Restoration is not yet completed, the damage
assessment for Buzzards Bay. And the community has not been
compensated for shellfish loss, salt marsh, beach damage, et
cetera. What is the status of when will the community be
compensated to have those environmental issues being addressed?
Ms. Glackin. Senator, I'll have to get back to you with the
specifics on that, but I can tell you that that activity is
ongoing and we're moving forward with that. I'm sorry. I'm just
not prepared to give you a date.
Senator Kerry. Would you get us something more specific,
please?
Ms. Glackin. Absolutely.
Senator Kerry. We are moving forward. It's been several
years now. It just goes on and on. These folks are not big
conglomerates and corporations; they get hurt, they get hurt.
Ms. Glackin. I understand.
Senator Kerry. And the compensation is pretty critical. And
we're supposed to do that for them.
Ms. Glackin. Yes. I understand.
Senator Kerry. All of us. You, me, et cetera. So I'd like
to see if we could address that. Admiral, you know, for the 24
years that I've been on this Committee, almost 24, I've been
involved with these issues with the waterways, the Coast Guard.
I used to be Chairman of the Subcommittee with the Coast Guard.
And I've always been frustrated. I mean, I'm frustrated. I
imagine you are, and you can't say it. You and I have had a
little bit of this discussion previously.
But the Coast Guard's responsibilities just keep getting
bigger and bigger, and go up and up and up. You know, and any
fair measurement says that you're not getting what you need in
terms of the increases in complement to your personnel and to
your assets. And so, it's hard for us to sit here and sort of
measure really where we are in terms of Homeland Security
requirements, drug interdiction requirements, public safety
requirements, enforcement, EPA enforcement, and all those other
things you have to do.
And I wonder if you can share with us--I mean, I know it's
difficult under the structure we have--but can you at least
share with us the priorities that you wish you had to have a
better ability to be able to address?
Admiral Allen. I can say that I can tell you that these
priorities also represent Secretary Chertoff, as well, because
I talked with him personally about it. We have to put more
people in certain critical functions at least in the
perceptions of our stakeholders and overseers, whether or not
our performance has diminished, at least, there is a perception
that we've been diverting and not been taking care of business.
And there is another safety area with inspections, other areas
of rulemaking, watch standards for our command centers in our
ports, people that play a direct impact on managing the
waterways and preventing these events from happening. I've made
my requirements clear, and thus far I've gotten support from
the Secretary.
Senator Kerry. Well, can I emphasize something that's
bothered me for a long, long time? I was recently down in South
Africa, and in South Africa, in the port, I saw a lot of
Taiwanese and Japanese trawlers and fishing vessels in the
South African port. Senator Stevens and I took the issue of the
driftnet fishing to the United Nations in the 1990s, and we
succeeded in getting it banned. But there were folks out there
doing it, and about 50 percent or more of the catch is ``by
catch'' and it's discarded.
And all across the globe, but obviously, we care--we have
to care about it all, but our primary focus is needless to say
on our shorelines. But I talked to our own fishermen. I've seen
and it's happening up in New England and elsewhere. We just
don't have adequate capacity to enforce, to monitor anywhere.
And I'd like not see that left out of the list of immediate
priorities. I mean, we've got to have the ability to be able to
bring stocks back and enforce fisheries, or else we're in
trouble.
Admiral Allen. I can give you a response for the record. I
can give you a couple of highlights, if you'd like, sir.
Senator Kerry. I would.
Admiral Allen. One of the real issues--and you know this
all too well from your service--is maritime patrol aircraft and
sensors to be able to understand what's out there, establish a
threat, and be able to interdict a target of interest. We have
done a couple of things in the last couple of years that I
think are going to provide us a significant improvement on our
performance there. This last year, we combined maritime patrol
aircraft from Japan and Canada, working with the Coast Guard
cutter with a Chinese shiprider on interdicting seven high seas
driftnet cases in the middle of the Pacific. Three of them
constituted severe enough infractions that we took them back to
the Chinese and turned them over for prosecution. We also
established an adjoined program office with Customs and Border
Protection on UAVs, trying to extend our region and also take
care of the new Hawaiian Island Sanctuary, sir. But I can
provide you more for the record.
[The requested information follows:]
The attached annual Report of the Secretary of Commerce to the
Congress of the United States Concerning U.S. Actions Taken on Foreign
Large Scale High Seas Driftnet Fishing (2006) incorporates Coast Guard
contributions and summarizes overall U.S. Government actions to combat
High Seas Driftnet (HSDN) fishing worldwide. Coast Guard HSDN
enforcement operations have focused exclusively on the North Pacific
Ocean. The success of Coast Guard HSDN enforcement operations in the
North Pacific results from dedicated cooperation with, and coordinated
planning between, a number of Pacific Rim governments and counterpart
enforcement agencies.
Coast Guard HSDN Enforcement Efforts in 2007
U.S.-PRC HSDN Enforcement MOU. The United States and the People's
Republic of China (PRC) conducted joint operations in 2007 pursuant to
the terms of a Memorandum of Understanding (MOU) to ensure effective
implementation of United Nations General Assembly (UNGA) Resolution 46/
215 in the North Pacific Ocean. The MOU (also referred to as the
``U.S.2DPRC Shiprider Agreement'') established boarding procedures for
law enforcement officials of either country to board and inspect U.S.
or Chinese-flagged vessels suspected of driftnet fishing. The MOU
allows PRC officials to embark on U.S. Coast Guard vessels or aircraft.
Coast Guard Partnership with the PRC Fisheries Law Enforcement
Command (FLEC). The Coast Guard has had a strong working relationship
with the PRC Fisheries Law Enforcement Command (FLEC) for well over a
decade, and China has provided opportunities for 46 enforcement
officials to visit and work with the Coast Guard since 1994. In May
2007, the Coast Guard hosted familiarization visits for PRC FLEC
enforcement officers as well as an operational planning meeting for the
2007 enforcement season. Two FLEC officers rotated through the North
Pacific Regional Fishery Training Center in Kodiak, Alaska from April
through August 2007. In addition, two Chinese FLEC shipriders were
deployed on U.S. Coast Guard Cutters (USCGCs) BOUTWELL and MIDGETT
during their Illegal, Unregulated, Unreported (IUU) fisheries patrols.
The FLEC officials in Kodiak passed real-time operational information
to their colleagues onboard the Coast Guard cutters at sea. These
officials were instrumental in facilitating communications between the
Coast Guard and the PRC FLEC, effectively expanding the jurisdictional
reach of both enforcement agencies and allowing for the largest number
of HSDN vessel seizures in the North Pacific since implementation of
the MOU. The Coast Guard hopes to host additional PRC officials during
the 2008 fishing season.
Aircraft patrols. In recent years, the Coast Guard has patrolled
High Threat Areas in the North Pacific in support of the U.S. High Seas
Driftnet Enforcement Act and North Pacific Anadromous Fish Commission
(NPAFC) initiatives, as well as to monitor compliance with the United
Nations (UN) moratorium on large-scale HSDN operations. Operation North
Pacific Watch, the Coast Guard's 2007 multi-national HSDN enforcement
campaign, began in April with support from Canadian deployments to
Shemya Island, Alaska, Coast Guard Air Station Kodiak, Alaska deployed
once from Shemya to patrol the HSDN High Threat Area, and additional
Coast Guard HC-130s flew in late September 2007 to support joint
operations with USCGC BOUTWELL and USCGC MIDGETT.
In early September 2007, a Coast Guard Seventeenth District law
enforcement officer participated in a joint surveillance aircraft
patrol with the Japan Coast Guard (JCG) (the second of such flights,
the first being in 2006). The purpose of this JCG flight was to patrol
for IUU fishing activity and perform communications exercises with
USCGC BOUTWELL. The patrol identified several radar contacts in the
HSDN High Threat Area but weather conditions precluded a specific
determination of vessel type and activity. This information did,
however, directly facilitate subsequent positioning of USCGC BOUTWELL
for follow-on HSDN interdictions.
Surface patrols. USCGC BOUTWELL also participated in a multi-
national IUU fisheries enforcement patrol from July 22 to November 7,
2007 that included NPAFC party states and fisheries law enforcement
officials from the PRC. USCGC BOUTWELL patrolled the HSDN High Threat
Area, made port calls in Japan, Russia, and China, and embarked a PRC
Fisheries Law Enforcement Command (FLEC) shiprider. USCGC MIDGETT
deployed on short notice from the Bering Sea to the HSDN High Threat
Area in late September due to reports of multiple possible HSDN fishing
vessel sightings. USCGC MIDGETT expanded the surface patrol coverage
through coordinated patrolling with USCGC BOUTWELL. During September
and October of 2007, these U.S. Coast Guard Cutters interdicted and
subsequently transferred custody of six PRC-flagged HSDN-capable
fishing vessels to Chinese authorities for additional investigation and
prosecution.
While patrolling on September 14, 2007, USCGC BOUTWELL's embarked
helicopter located the Indonesian F/V FONG SENG No. 818 rigged for
large-scale driftnet fishing on the high seas. As USCGC BOUTWELL closed
position, the crew of FONG SENG No. 818 conducted evasive maneuvers and
attempted to conceal nets and gear on deck. USCGC BOUTWELL documented
the vessel's configuration and activity, while at the same time
performing Right of Approach \1\ questioning alongside the vessel to
gather registry information, which USCGC BOUTWELL was eventually able
to obtain. The Coast Guard joined with the U.S. Department of State to
report this activity to the Government of Indonesia and has initiated
diplomatic dialogue regarding F/V FONG SENG No. 818's observed
activities. It is suspected that FONG SENG No. 818 is a sister ship of,
and is associated with, the F/V RONG SHENG No. 828, which Russian
authorities seized on the high seas in June 2007 with a reported 90
metric tons of salmon onboard.
---------------------------------------------------------------------------
\1\ Annotated Supplement to the Commanders Handbook of the Law of
Naval Operations, Naval War College, 1997 (Section 3.4)
---------------------------------------------------------------------------
In addition to the enforcement efforts associated with seizure of
the six PRC-flagged large-scale HSDN vessels, USCGC CHASE conducted a
joint IUU fisheries law enforcement patrol, officer exchange, and
training engagement with the Russian Federal Security Service patrol
vessel VOROVSKY in April 2007. The vessels conducted a joint boarding
exercise on the Alaska State Trooper vessel WOLSTAD in preparation for
future North Pacific IUU fishing and Central Bering Sea law enforcement
operations.
2006 Report of the Secretary of Commerce to the Congress of the United
States Concerning U.S. Actions Taken on Foreign Large-Scale High Seas
Driftnet Fishing Pursuant to Section 206(e) of the Magnuson-Stevens
Fishery Conservation and Management Act, As Amended by Public Law 104-
297, The Sustainable Fisheries Act of 1996
I. Introduction
Public Law 101-627: The President signed Public Law 101-627, the
Fishery Conservation Amendments of 1990, on 28 November 1990. Title I,
Section 107, of the law amended Section 206 of the Magnuson-Stevens
Fishery Conservation and Management Act (hereafter referred to as the
Magnuson-Stevens Act) (16 U.S.C. 1826) to incorporate and expand upon
provisions of the Driftnet Impact Monitoring, Assessment, and Control
Act of 1987.
Section 206(b) of the Magnuson-Stevens Act sets forth Congressional
findings, including inter alia that ``the continued widespread use of
large-scale driftnets beyond the exclusive economic zone (EEZ) of any
nation is a destructive fishing practice that poses a threat to living
marine resources of the world's oceans.'' It also notes the expansion
of large-scale driftnet fishing into other oceans and acknowledges the
30 June 1992 global driftnet moratorium called for by United Nations
General Assembly (UNGA) Resolution 44/225. Finally, Section 206(b)
recognizes the moratorium on the use of large-scale driftnets agreed
through the Convention for the Prohibition of Fishing with Long
Driftnets in the South Pacific, also known as the Wellington
Convention.
Section 206(c) sets forth Congress's driftnet policy, specifically
that the United States should:
(1) implement the moratorium called for by UNGA Resolution 44/
225;
(2) support the Tarawa Declaration and the Wellington
Convention; and
(3) secure a permanent ban on the use of destructive fishing
practices, and in particular large-scale driftnets, by persons
or vessels fishing beyond the exclusive economic zone of any
nation.
Section 206(d) directs the Secretary of Commerce, through the
Secretary of State and the Secretary of Homeland Security, to seek to
secure international agreements to implement immediately the findings,
policy, and provisions of Section 206, particularly the international
ban on large-scale driftnet fishing.
Section 206(e) directs the Secretary of Commerce, after
consultation with the Secretaries of State and Homeland Security, to
submit to Congress no later than 1 January an annual report (1)
describing the efforts made to carry out Section 206, especially
subsection (c); (2) evaluating the progress of those efforts, the
impacts on living marine resources, including available observer data,
and plans for further action; (3) listing and describing any new high
seas driftnet fisheries developed by nations that conduct or authorize
their nationals to conduct large-scale high seas driftnet fishing; and
(4) listing nations that conduct or authorize their nationals to
conduct high seas driftnet fishing in a manner that diminishes the
effectiveness of or is inconsistent with any international agreement
governing large-scale driftnet fishing to which the United States is a
party. (The number of reporting requirements in Section 206(e) of
Public Law 101-627 were reduced in 1996 to those above by Public Law
104-297, the Sustainable Fisheries Act.)
Finally, Section 206(f) provides that, if at any time the Secretary
of Commerce, in consultation with the Secretaries of State and Homeland
Security, identifies any nation that warrants inclusion in the list
described in (4) above, the Secretary shall certify that fact to the
President. This certification shall be deemed to be a certification for
the purposes of Section 8(a) of the Fishermen's Protective Act of 1967
(22 U.S.C. 1978(a), as amended by Public Law 102-582), commonly
referred to as the Pelly Amendment. Such a certification gives the
President discretion to embargo products imported into the United
States from that nation, so long as such action is consistent with U.S.
obligations under the General Agreement on Tariffs and Trade.
Public Law 102-582: On 2 November 1992, the President signed Public
Law 102-582, the High Seas Driftnet Fisheries Enforcement Act. Among
other things, this Act is intended to enforce implementation of UNGA
Resolution 46/215, which called for a worldwide driftnet moratorium
beginning 31 December 1992. Once the Secretary of Commerce identifies a
country as a nation whose nationals or vessels are conducting large-
scale driftnet fishing beyond the EEZ of any nation, pursuant to the
Act, a chain of U.S. actions is triggered. The Secretary of the
Treasury must deny entry of that country's large-scale driftnet vessels
to U.S. ports and navigable waters. At the same time, the President is
required to enter into consultations with the country within 30 days
after the identification to obtain an agreement that will effect the
immediate termination of high seas large-scale driftnetting by its
vessels and nationals. If these consultations are not satisfactorily
concluded within 90 days, the President must direct the Secretary of
the Treasury to prohibit the importation into the United States of
fish, fish products, and sport fishing equipment from the identified
country. The Secretary of the Treasury is required to implement such
prohibitions within 45 days of the President's direction.
If the above sanctions are insufficient to persuade the identified
country to cease large-scale high seas driftnet fishing within 6
months, or if it retaliates against the United States during that time
period as a result of the sanctions, the Secretary of Commerce is
required to certify this fact to the President. Such a certification is
deemed to be a certification under Section 8(a) of the Fishermen's
Protective Act of 1967 (22 U.S.C. 1978(a), as amended by Public Law
102-582).
Public Law 104-43: Public Law 104-43, the Fisheries Act of 1995,
was enacted on 3 November 1995. Title VI of this law, the High Seas
Driftnet Fishing Moratorium Protection Act, prohibits the United
States, or any agency or official acting on behalf of the United
States, from entering into any international agreement with respect to
the conservation and management of living marine resources or the use
of the high seas by fishing vessels that would prevent full
implementation of UNGA Resolution 46/215. Title VI also charges the
Secretary of State, on behalf of the United States, to seek to enhance
the implementation and effectiveness of the UNGA resolutions and
decisions regarding the large-scale high seas driftnet moratorium
through appropriate international agreements and organizations.
Finally, the Act specifies that the President of the United States
shall utilize appropriate assets of the Department of Defense, the U.S.
Coast Guard (USCG), and other Federal agencies, to detect, monitor, and
prevent violations of the U.N. large-scale high seas driftnet
moratorium for all fisheries under the jurisdiction of the United
States, and to the fullest extent permitted under international law for
fisheries not under U.S. jurisdiction.
The National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Department of Commerce, in
consultation with the Department of State and the Department of
Homeland Security, submits the following report for 2006 in fulfillment
of the Section 206(e) reporting requirement. Information pertaining to
U.S. actions in support of the Act prior to 2006 and after 1988 can be
found in the 1990-2005 annual driftnet reports to the Congress
available from NMFS.
II. Description and Progress of Efforts Made to Carry Out Provisions of
Section 206(c) Policy
A. Implementation of the Driftnet Moratorium Called for by UNGA
Resolutions
44/225, 45/197, and 46/215
1. Current Status of the Driftnet Moratorium
As of 31 December 2006, the UNGA global moratorium on large-scale
high seas driftnet fishing has been in effect for 14 years.
International implementation of the moratorium in the world's oceans
and enclosed and semi-enclosed seas continues to be generally
successful, although problem areas remain. Of the two major problem
areas in recent years, the North Pacific Ocean and the Mediterranean
Sea, 98 vessels capable of conducting unauthorized large-scale high
seas driftnet fishing operations were sighted \1\ in the North Pacific
Ocean in 2006. At least 12 vessels were reported operating on the high
seas of the Mediterranean Sea in 2006 with large-scale driftnets.
---------------------------------------------------------------------------
\1\ A number of these vessels were unidentified, raising the
possibility of multiple sightings of the same vessel or vessels. For
purposes of this report, only those vessels that were visually
confirmed as driftnet-capable have been considered sightings.
---------------------------------------------------------------------------
a. North Pacific Ocean
No large-scale driftnet fishing vessels were intercepted on the
high seas of the North Pacific Ocean by the international community in
2006. However, 98 vessels capable of driftnet fishing were sighted
operating in the Northwestern Pacific.
(1) Regional Driftnet Enforcement Coordination
North Pacific Anadromous Fish Commission (NPAFC): The NPAFC serves
as a forum for promoting the conservation of anadromous stocks and
ecologically-related species, including marine mammals, sea birds, and
non-anadromous fish, in the high seas area of the North Pacific Ocean.
This area, as defined in the Convention for the Conservation of
Anadromous Stocks in the North Pacific Ocean (the Convention that
established the NPAFC), is ``the waters of the North Pacific Ocean and
its adjacent seas, north of 33+ North Latitude beyond 200 nautical
miles from the baselines from which the breadth of the territorial sea
is measured.'' The members of the NPAFC are Canada, Japan, the Republic
of Korea (Korea), Russia, and the United States.
In addition, the NPAFC serves as the venue for coordinating the
collection, exchange, and analysis of scientific data regarding the
above species within Convention waters. It also coordinates high seas
fishery enforcement activities by member countries. The Convention
prohibits directed fishing for salmonids and includes provisions to
minimize the incidental take of salmonids in other fisheries in the
Convention area. Although it does not specifically ban high seas
driftnet fishing, fishing for salmonids on the high seas has
historically been carried out in this manner. As a result, the NPAFC
and its enforcement activities are primarily targeted against high seas
driftnet fishing vessels. The members of the NPAFC jointly plan and
coordinate their high seas enforcement operations in order to most
efficiently utilize enforcement resources.
NPAFC Enforcement Evaluation and Coordination Meeting (EECM):
Representatives of the NPAFC Parties met in Juneau, Alaska, on 28
February-1 March 2006, for the annual NPAFC EECM. The meeting included
presentations by each Party on enforcement efforts to date in 2006;
coordination of enforcement plans and resources for the remainder of
2006; a demonstration on the use of the Parties' Integrated Information
System (IIS), a software tool developed by Russia to improve
information sharing and coordination; and a discussion on the
applicability of the FAO model scheme on port state measures to combat
illegal, unreported and unregulated (IUU) fishing in the NPAFC
Convention Area. The Parties also discussed the characterization of
vessels to be placed on a ``Vessels of Interest'' list on the IIS;
i.e., those vessels believed to be engaged in fishing activity contrary
to the Convention.
On 2 March, following the EECM, an enforcement symposium ``Patrol
tactics, planning and execution of enforcement in the NPAFC Convention
Area'' was held in Juneau. The purpose of the symposium was to bring
together enforcement professionals from each of the NPAFC Parties to
share lessons learned and best practices from their respective
agencies. Enforcement officers, ship captains, and air crews from
Canada's Department of Fisheries and Oceans (DFO) and Department of
National Defense (DND), Japan's Fisheries Agency (FAJ) and Coast Guard,
Republic of Korea's Ministry of Maritime Affairs and Fisheries,
Russia's Federal Security Service, and the United States' NMFS and USCG
participated. Each agency made a presentation which was followed by
lengthy and spirited discussion. The NPAFC funded the attendance of two
representatives from each of the Parties. The symposium fostered a very
productive exchange of ideas and presented a valuable opportunity for
the actual vessel, aircraft, and enforcement officers to meet each
other prior to the beginning of the 2006 fishing season.
NPAFC Annual Meeting: The 14th Annual Meeting of the NPAFC was held
in Vancouver, British Columbia, on 23-27 October 2006. Enforcement
officials of the Parties met under the auspices of the NPAFC Committee
on Enforcement to review enforcement activities in 2006 and begin
planning activities for 2007. Representatives of Taiwan observed the
proceedings of the meeting.
As a result of the Parties' cooperative enforcement efforts in
2006, no vessels were detected engaged in illegal large-scale driftnet
fishing for salmon in the NPAFC Convention Area. However, sightings,
boardings, and fishing vessel seizures from 2003-2006 indicate that the
high seas driftnet threat in the North Pacific Ocean may be increasing,
and shifting fishing effort from salmon to squid and albacore tuna. At
least 26 vessels suspected of high seas driftnet fishing were sighted
in 2003, 22 vessels in 2004, 24 vessels in 2005, and 98 vessels in
2006. Unfortunately, the Parties were unable to investigate and
positively identify many of these vessels because of their remote
location. The Parties believe that the majority of the vessels were
from the People's Republic of China (China) because of the type of
vessel, the characteristic style of the Chinese characters used for
vessel names, and because many Chinese-flagged squid jigging vessels
were often sighted fishing in close proximity.
Approximately two thirds of the 2006 sightings occurred in the
September-November time-frame. In past years, the Parties concentrated
most of their enforcement efforts in the summer months. In 2005, Japan
patrolled the northwestern part of the Convention Area in September-
DOctober and made 17 of the 24 total driftnet vessel sightings for the
year. There is some uncertainty as to whether the increased number of
sightings represents a real increase in the occurrence of large-scale
high seas driftnet fishing in the North Pacific Ocean or whether
enforcement efforts have uncovered an existing IUU fishery.
Although the NPAFC has successfully deterred high seas salmon
fishing and served as a forum for joint enforcement planning and
coordination in the NPAFC Convention Area, it has limited enforcement
authority against non-salmon non-Party high seas driftnet fishing
threats. Because of the different target species and vessel flags
involved, the NPAFC will work multilaterally through enforcement and
diplomatic channels to bring pressure on these driftnet fishing vessels
and their flag states to end operations in the NPAFC Convention Area.
The NPAFC Parties agreed to send a letter from the Commission to the
Chinese Government to request it to take preventative measures to
ensure that Chinese vessels and nationals are not involved in high seas
driftnet fishing operations on anadromous fish stocks in the NPAFC
Convention Area and to express its concern about the increased number
of Chinese vessels equipped with driftnet gear. The letter would also
invite China to partner with the NPAFC Parties to combat such illegal
activity.
In light of the continuing threat of unauthorized high seas salmon
fishing in the Convention Area, Parties agreed to maintain 2007
enforcement efforts at levels similar to 2006 as a deterrent to
unauthorized fishing activity. To coordinate enforcement efforts, the
Parties agreed to hold the annual EECM in Busan, Korea, from 27
February-1 March 2007.
Senator Kerry. Well, I really appreciate that. Yes, I would
like that. I'd like to follow up with you sometime and talk
about it, and see how we could sort of think this through and
plan for some things as we head into next year and beyond,
because it's very distressing. And I'm hearing unbelievable
stories of depleted stocks on almost everything everywhere, and
not to mention the pollution issues and others kinds of issues.
One last thing--container ships.
Admiral Allen. Yes, sir.
Senator Kerry. Drop some of these containers out on the
ocean, and they float, submerged, and they become a serious
hazard to other shipping. What, if anything, could be done? I
understand there is an enormous number. I've heard it's in the
thousands--maybe you can shed some light on this--of containers
that in storms or bad lashing and loading and other procedures,
they lose them. And because of the weight, they don't really
sink completely because of the buoyancy, but they also don't
float so we see them. And they're a real hazard to navigation.
Admiral Allen. Yes, sir. I'm just prepared to handle the
reporting, but if I could, for the record, I will go back and
consult with the International Maritime Organization and
Secretary General Mitropoulos, and I will give you our best
estimate on worldwide figures.
Senator Kerry. I would really appreciate that.
Admiral Allen. Yes, sir.
[The requested information follows:]
It is estimated that between 500 and 2,000 containers are lost at
sea annually. While the International Maritime Organization does not
collect data regarding numbers of containers lost overboard world-wide,
National Cargo Bureau records indicate that at least 500 containers are
lost each year. Some industry trade publications estimate approximately
2,000 containers are lost annually. It is reasonable to assume that
some containers losses are not reported and the number for any given
year may be skewed by one or two major incidents. As such, we conclude
that between 500 and 2,000 are lost annually.
Senator Kerry. Thank you, Madam Chair.
Senator Cantwell. Thank you. And I want to thank the
panelists for their testimony. I think this will be the first
of probably several hearings that we'll end up having on this
issue, perhaps even a third hearing. Admiral Allen, I think you
will take away that my colleagues are very concerned about this
rulemaking, whether it's on salvage or response plans or
updating the Oil Spill Liability Trust Fund for inflation.
All of those things we think are things that we're falling
behind on, so we would prefer the Coast Guard come to us and
lead the charge on the changes that we're now wanting to be
proposing as it relates to these nontank vessels, these cargo
containers, because I think that many of my colleagues are
expressing here today, in addition to Senator Boxer, issues
that we think need to be updated from the 1990 Act. So we look
forward to discussing that with you further, and for the
timeline to respond to these various rulemaking authorities,
sir. With that, I thank the other panelists for being here, as
well, and for your work, and we look forward to dialoguing with
you about this important issue.
I'd like to call up the second panel now--Dr. Dagmar Etkin,
who is the President of the Environmental Research Consulting,
Mr. Mike Cooper, Chairman of the Washington State Oil Spill
Advisory Council, and Mr. Bill Deaver, President and Chief
Operating Officer of Totem Ocean Trailer Express. And if those
who are exiting could help us by doing so quickly and quietly,
we would appreciate it, so that we can get on with the second
panel.
And I think that we would like to start with you, Dr.
Etkin, for being here with us today and for your testimony. And
if the witnesses could keep their comments to 5 minutes or so,
thank you.
STATEMENT OF DAGMAR SCHMIDT ETKIN, Ph.D., PRESIDENT,
ENVIRONMENTAL RESEARCH CONSULTING
Dr. Etkin. Thank you. Good afternoon, and thank you for the
opportunity to speak today.
Senator Cantwell. Dr. Etkin, if you could just pull the
microphone a little closer to you, thank you.
Dr. Etkin. Thank you. For 19 years, I've been an
independent consultant on oil spill risks, statistics,
environmental impacts, costs and response, in the U.S. and
internationally. I've been a consultant to the Coast Guard and
Corps of Engineers, National Research Council, EPA, NOAA, GAO,
and to the States of California and Washington. I've been on
three U.N. IMO task teams on environmental risks from shipping.
And I have also worked with NGOs and industry. I've seen many
sides of this complex issue.
Spill risk is the probability of spillage multiplied by
spill consequences--environmental, economic, social, and
political. The probability of nontank vessel spillage has
decreased over 20 years despite increases in shipping, but we
now know that the consequences of the spill may be great. The
risk remains.
Most nontank vessel spills are small incidents that occur
during bunker transfers and other operations that result in
relatively small spills. But there have also been significant
spills related to accidental groundings and collisions, notably
the recent incident in San Francisco.
Spill consequences are directly related to volume, oil
type, location, and timing. Heavy oil that often spills from
nontank vessels presents a particular challenge with regard to
its persistence and its propensity to coat bird feathers and
shorelines. Spill volume is a factor, but even a relatively
small spill in a bad location can cause serious damage. Timing
is also important. Had the San Francisco spill occurred in
January, ten times as many birds may have been oiled.
There are three arenas in which we can make progress:
prevention, preparedness, and response--preferably in that
order. It is best to prevent spills in the first place, and
there are proven ways to accomplish this. Safer ship design,
such as double hulls, and increased financial responsibility
requirements, with Certificates of Financial Responsibility,
have reduced tanker spills in the U.S. waters more so than
outside the U.S. We have a better class of tankers in the U.S.
waters due to our more stringent regulations.
This strategy can be extended to nontank vessels. Double-
hulled bunker tanks and cargo ships reduce the probability of
spillage after impact. Requiring tug escorts in challenging
waterways in sensitive areas has proven to be an effective
measure in Washington State. Improvements in vessel traffic
systems and crew training can also prevent accidents. We should
also carefully study nontank vessel liability limits, taking
into account the oil volume carried and the actual spillage
risk.
Being prepared to respond promptly and effectively are keys
to success. Studies I've conducted for Washington State show
that increased response equipment deployed at the scene earlier
than required can significantly reduce impacts. Pre-booming of
vessels and pre-positioning of response equipment during oil
transfers can increase the chances of successful damage
mitigation. Maintenance inspections and spill exercises are
also important. Spills will happen, but we've been fortunate.
We've never had a worst-case tanker or large cargo ship
discharge in U.S. waters. With the total release, the spill in
San Francisco could have involved 20 times as much oil, or a
thousand times as much oil had it been a fully loaded tanker.
We cannot become complacent. We must increase and then maintain
preparedness even as spill rates are going down.
Spill response presents an opportunity for improvement, as
well. There are many technological challenges in spill
response. Despite decades of research and development, and
practical experience, we are still left with relatively
inefficient mechanical recovery options and largely manual
shoreline cleanup methods. Booms and skimmers do not work well
in high currents in San Francisco Bay. The forces of physics
simply come into play.
Even when conditions are favorable, it's rare that more
than 10 to 25 percent of spilled oil is recovered. Dispersants
can be effective, but their use is limited in sensitive near-
shore waters and on heavier oils. But there are ways to improve
spill response. Simply repositioning of some boom can better
protect sensitive areas. Ironically, I was working with
California Fish and Game on alternative booming strategies to
protect sensitive areas of San Francisco Bay when the recent
spill occurred.
I've worked with the U.S. Coast Guard on studies to improve
detection of submerged and floating oil with laser technologies
to improve response and reduce damages. Special booming
techniques for faster water conditions have been developed by
the U.S. Coast Guard; these need to be applied. We need to
continue to fund research and development efforts and to train
responders with the best techniques. We have an excellent spill
response testing and training facility at OHMSETT in New
Jersey, and many excellent researchers and practitioners to
learn from.
Last, I think we have an opportunity and responsibility for
public education. The public has unrealistic expectations of
what spill responders and officials can do to magically erase
spilled oil. Rather than point accusatory fingers at officials
or industry, we need to work together to educate the public
about realistic expectations when a spill does occur and get
their support rather than animosity. There is no time to be
looking for good guys and bad guys. We need public support;
funding for spill prevention, preparedness, and response
efforts; and we need to make the public understand that
rational, scientifically based decisionmaking and planning are
required to reduce the likelihood of future spills and to
respond effectively when they do occur. We are all in this
together. Thank you.
[The prepared statement of Dr. Etkin follows:]
Prepared Statement of Dagmar Schmidt Etkin, Ph.D., President,
Environmental Research Consulting
My name is Dagmar Schmidt Etkin. For the past 19 years, I have been
an independent environmental consultant specializing in oil spill risk
analysis, spill statistics, costs, environmental impacts, policy
analysis, and response issues in the U.S. and internationally. I have
been a consultant to the U.S. Coast Guard, Minerals Management Service,
Maritime Administration, Army Corps of Engineers, National Research
Council Transportation Research and Ocean Studies Boards, EPA, NOAA,
GAO, California Department of Fish and Game, and Washington Department
of Ecology. I have been on three United Nations task teams on oil
pollution and environmental risk assessments from shipping. I have also
worked closely with non-governmental organizations and industry on oil
spill issues. In my work, I have had the privilege of seeing many sides
of this complex issue.
Spill risk is a combination of the probability of spills occurring
multiplied by the consequences (environmental, economic, social, and
political). The probability of spillage from a non-tank vessel has
decreased in the last two decades despite the fact that there have been
increases in worldwide shipping, but the potential consequences of a
spill are still great. The risk remains. The data indicate that the
greatest proportion of spills from non-tank vessels occurs during
bunker transfers and other operations which result in relatively small
spills. And there have been a number of significant spills related to
accidental groundings, collisions, and allisions that have resulted in
larger oil releases, notably the recent COSCO BUSAN spill in San
Francisco.
The consequences of a spill are directly related to four main
factors--volume, oil type, location, and timing. Heavy oil that often
spills from non-tank vessels presents a particular challenge with
regard to its persistence and its propensity to coat bird feathers and
visibly impact shorelines. Spill size is certainly a factor, but even a
relatively small spill (note that the recent COSCO BUSAN spill was
actually a relatively small spill with regard to an accident-related
non-tank vessel spill) in the wrong location can cause serious damage
on many fronts. Timing is an important issue. Had the San Francisco
spill occurred 2 months later, ten times as many birds may have been
oiled!
There are three arenas in which we can make progress in reducing
the impacts of spills from non-tank vessels--better efforts at
prevention, better preparedness, and better response, preferably in
that order.
Prevention--It would be best to prevent spills from non-tank
vessels in the first place. There are proven ways that this can be
done. We know that the phasing-in of double hulls and better ship
design, as well as increasing financial responsibility requirements,
have reduced tanker spills in U.S. waters in particular. We have a
better class of tankers in U.S. waters due to our more stringent
requirements. This tactic can be extended to non-tank vessels. Double-
hulled bunker tanks on cargo ships reduce the probability of spillage
with a grounding, collision, or allision. Requiring tug escorts in
challenging waterways has proven to be an effective prevention measure
in Washington State. Improvements in vessel traffic systems and crew
training can help prevent accidents in the first place. We should also
carefully study the issue of liability limits for non-tank vessels
taking into account the amount of oil carried and potential for
spillage.
Preparedness--Being prepared to respond promptly and effectively
after notification of a spill is the key to success in spill response.
Studies I have conducted for Washington Department of Ecology have
shown that increasing the amount of spill response equipment and
requiring it to be at the scene earlier than is currently required can
result in significant reductions in impacts. Pre-booming of vessels and
having response equipment on standby during oil transfer and bunkering
operations--one of the most common times during which spills occur--can
increase the chances of successfully mitigating spill damages.
Maintenance of equipment and maintaining readiness with required spill
exercises and inspections are important to keep prepared for the next
spill. Spills will happen. We have been fortunate that we have never
had a worst-case discharge from a tanker or from a large cargo ship in
U.S. waters. The situation in San Francisco Bay could have involved
twenty times as much oil from a non-tank vessel and a thousand times as
much oil with a fully-loaded tanker. We must maintain preparedness even
if spill rates are going down!
Response--Finally, spill response presents an opportunity for
improvement. There are many technological challenges in spill response.
Despite decades of research and development, as well as experience on
many actual spills, we are still left with relatively inefficient on-
water mechanical containment and recovery options, occasional
opportunities to apply chemical dispersing agents, and tedious, largely
manual, shoreline cleanup methods. Booms and skimmers do not work well
in high currents, such as those seen in much of San Francisco Bay. The
forces of physics come into play. Even when all things are in favor it
is rare that more than 10-25 percent of spilled oil is recovered.
More--as was recovered in San Francisco--is considered a real success.
Oil spill dispersants can be effective, but their use is limited in
sensitive nearshore waters and on heavier oils.
But, there are ways to improve spill response in addition to
timing. Positioning of boom to protect particularly sensitive sites can
dramatically reduce damages. Ironically, I was in the midst of working
with California Fish and Game on some new booming strategies to protect
sensitive areas of San Francisco Bay when the recent spill occurred. I
have worked with the Coast Guard on studies to improve oil detection
through the use of laser fluorosensor technologies. Better detection of
submerged and floating oil can improve spill response and reduce
damages. Booming in fast-water conditions requires special techniques
that can be applied by skilled responders. We need to continue to fund
research and development efforts of the U.S. Coast Guard and others. We
have the best spill response testing facility at OHMSETT in New Jersey
and many excellent researchers and practitioners to learn from.
Lastly, I think we have an opportunity and responsibility for
public education. The public has unrealistic expectations of what spill
responders and officials can do to magically erase the oil that has
spilled. The oil is on the water. The oil is on the birds. It is
unfortunate, but rather than pointing accusatory fingers at officials,
we need to work together to educate the public about realistic
expectations when a spill does occur and get their support rather than
animosity. There is no time to be looking for ``good guys'' and ``bad
guys''. We need public support in continuing to fund spill prevention,
preparedness, and response efforts. We need to make the public
understand that rational, scientifically-based decision-making and
planning is required to reduce the likelihood of future spills from
non-tank vessels or any source and to respond effectively when they do
occur. We are all in this together.
Thank you for your time.
Senator Cantwell. Mr. Cooper, thank you for being here.
STATEMENT OF HON. MIKE COOPER, CHAIRMAN, WASHINGTON STATE OIL
SPILL ADVISORY COUNCIL
Mr. Cooper. Thank you. Thank you, Madam Chair and Senator
Snowe for conducting this hearing, and for inviting me to come
and testify. I am Mike Cooper, Chairman of the Washington State
Oil Spill Advisory Council. I am pleased to be here today on
behalf of the people of the State of Washington to talk to you
about this very important issue. I have submitted written
testimony, and I would like it to be included in the record.
The Oil Spill Advisory Council's goal is to act as a
mechanism to foster a long-term partnership and consensus
between communities, government, and industry. Governor
Gregoire noted earlier this year that, to prevent oil spills,
it is important for the public to be engaged and involved. Only
if public engagement continues can we battle complacency. I
encourage Congress to support the work of citizen advisory
councils like those in Washington and Alaska.
It is important to note that the Council's enabling
legislation, signed by the Governor, invited Washington tribes
to participate, and they do. However, we do recognize that, as
a State-created entity, we cannot stand and speak for the
tribes because of the very unique government-to-government
relationship they have with the Federal Government and the
state government.
Washington's marine resources are unique. Puget Sound, the
Strait of Juan de Fuca, the Pacific coastline, and the Columbia
River each have very unique economic and environmental value.
We must do everything humanly possible to maintain that value,
both for our economy and for our environment. Washington's
waterways, specifically Puget Sound, are unique in that we have
23 ferry routes crisscrossing the traffic lanes that are used
by cargo vessels--23 ferry routes in addition to the 6,000
transits you've already heard about create 167,000 transits a
year across the shipping lanes.
Today, I want to talk a little bit about a few of the
things that I think that Congress can do, that we could
recommend and move forward on, that will really help this
issue, specifically for cargo vessels. First, I think it's
important that the Congress think about delegating authority to
capable states, like Washington, to conduct vessel inspections,
investigations, and enforce Federal regulations, and to review
and improve vessel and facility contingency plans.
Second, you've already heard about the double hull issue. I
think it's important for us to move forward on the issue of
putting double-hulled fuel tanks on cargo vessels. Third, I
think it's important for Washington State, in particular, for
Congress to have the Coast Guard move the high-volume port line
from Port Angeles, Washington to the entrance of the Strait of
Juan de Fuca.
This would enable the Coast Guard to have additional rules
in place to protect the 60 miles of coastline from Port
Angeles, Washington out to Cape Flattery. Every other high-
volume port line in the country has its line at the entrance to
the waterway, not 60 miles inland as is the case in Washington
State.
And finally, Congress could extend the restrictions in the
Area To Be Avoided around the Pacific Coast Marine Sanctuary to
nontank vessels. The Olympic Coast National Marine Sanctuary is
one of our nation's most treasured maritime and marine areas.
Its mission is to protect the sanctuary and ensure that future
generations are able to use it and enjoy it. By extending the
Area To Be Avoided to cargo vessels, and not just oil vessels,
I think we would go a long way to protecting that sanctuary and
to preventing potential spills in the sanctuary.
I would like to close by stressing the importance of all
levels of government working together to solve this very
important challenge before us. The Federal, state, tribal, and
local governments need to work with important stakeholder
groups like the oil and cargo industry, as well as the
environmental community and our local ports, to solve this
issue. Thank you very much. I'd be happy to answer questions.
[The prepared statement of Mr. Cooper follows:]
Prepared Statement of Hon. Mike Cooper, Chairman, Washington State Oil
Spill Advisory Council
I. Introduction
Good morning, Madam Chair and members of the Committee. I am Mike
Cooper, Chairman of the Washington State Oil Spill Advisory Council.
Thank you for inviting me to testify. I am pleased to appear before you
today on behalf of the Council and the State of Washington. Also, I
wish to thank the Chair for her continuing leadership to protect
Washington State from the risk of oil spills. Particularly I wish to
thank the Senator for her efforts to assure that the Neah Bay tug
remains on stand-by protecting our outer coast and the Strait of Juan
de Fuca from the perils of drift landings.
The mission of the Council is to maintain Washington's vigilance in
preventing oil spills in marine and navigable waters, by ensuring an
emphasis on oil spill prevention while also recognizing the importance
of improving spill preparedness and response. The Council's goal is to
act as a mechanism to foster a long-term partnership and consensus
between communities, government, and industry. The Council operates by
consensus, even on the difficult issues. To date, it has not been
necessary for the Council to avail itself of its statutory
authorization allowing nine members to call for a majority vote.
It is important to note: Through the Council's organic legislation
and as implemented by Governor Christine Gregoire, Washington State
invited Washington tribal governments to participate on the Council.
And they do participate. However, we do recognize that the Council, as
a State-created entity, can not stand in for the tribes, as they are
resource trustees with whom the Federal Government has a direct
relationship. Additionally, we recognize that the tribes should be
invited as a sovereign to work with the state and Federal governments
on these important natural resources issues.
In light of the growing oil spill risks from commercial cargo
vessels, I will limit my testimony to the regulation of these vessels.
My intention with my testimony is to generally represent the various
governmental and citizen interests of Washington. There was not
sufficient time for the Council to come to consensus over my remarks.
We will have a meeting in January 2008, however. Our agenda will
include an action item to discuss my testimony and to provide some
follow up from the Council on my testimony.
One thing I know we all agree upon is the value of citizen advisory
councils. As Governor Gregoire noted earlier this year, to prevent oil
spills it is important for the public to be engaged and involved; only
if public engagement continues can we battle complacency. The Council
encourages Congress to support the work of citizen advisory councils
like those in Alaska and Washington. These bodies play a vital role in
ensuring vigilance in oil spill prevention, response, and remediation.
Members of Washington's Oil Spill Advisory Council not only live and
breathe in and among the fragile Puget Sound, but they also are vested
in the success of our local economy. For this reason, citizen bodies
are very well suited to spotlight problem areas and to effectuate
needed change.
The issue before the Subcommittee is how to better regulate non-
tank vessels. In Washington, we understand the urgency of grappling
with this issue, particularly in light of the significant spill from a
cargo vessel into San Francisco Bay on November 7 of this year. This
was a spill caused when a container ship sideswiped the stationary Bay
Bridge. The vessel spilled 58,000 gallons of fuel oil, blackening the
coastline and wildlife, shutting down the fishing industry, and
requiring an expensive mop-up operation.
II. Risk from Cargo Vessels in Puget Sound
A. Washington's Waters Are Unique
Washington's marine resources are unique in their geographic
characteristics, their rare beauty, for the bounty they provide--and
for their fragility. Puget Sound is a shimmering estuary with oysters,
clams, and soul stirring views for the nearly four million people who
live near its waters. The Strait of Juan de Fuca is a rushing narrow
waterway that carries the tides in and out of Puget Sound and acts as
our country's natural border between its western most portion and
Canada. Washington's Pacific Coastline boasts rugged and rocky
coastlines, a part of which includes the federally protect Olympia
Coast Marine Sanctuary.
But Washington's waters also are in peril. For example, State
studies show that just beneath the shimmering surface of Puget Sound
lies a sick and dying water body. Further, the region's two keystone
marine species--the orca whale and the salmon--are listed under the
Federal Endangered Species Act. It is said that the region's
populations of the orca whale are so fragile that they are only one
large oil spill away from extinction.
We must do everything humanly possible to ensure that Washington's
coastal and marine environments and navigable waters continue to be a
source of beauty, recreation, health, ecological integrity, food
production, and economic betterment for Washington citizens. We need
Congress to help.
B. Puget Sound Bears Unique Risks Due to Passenger Ferry and Commercial
Vessel Interactions
Washington is unique in that a very large number passenger ferries
crisscross through the traffic lanes in which large cargo vessels are
required to travel. Washington has the largest car passenger fleet in
the Nation. As population grows, the number of ferry transits will
increase. As cargo vessel grow larger and the number of cargo vessel
transits increase, so too will the risk of them negatively interacting
with an increasingly active ferry fleet.
Cargo vessels are growing in both size and number in Washington.
These vessels encounter passenger ferries zipping around the Sound
taking Washington citizens to and fro. This poses a growing risk of oil
being spilled in Washington's waters from cargo vessels.
A growing number of cargo vessels are transiting more frequently in
Washington's waters. In 2006, there were over 6,000 cargo and passenger
vessel that engaged in ``entering transits'' in Washington. This number
jumps to over 12,000 when considering that most cargo vessels entering
Puget Sound must leave through the Strait of Juan de Fuca. In Puget
Sound alone, there were over 2,000 cargo and passenger vessel transits.
Again, when one considers that these vessels must leave Puget Sound,
this number jumps to over 4,000 trips. These transits happen in
conjunction with 23 public passenger ferry routes that, in 2006, had
over 167,000 transits made through them across the commercial vessel
traffic lanes.\1\ As cargo vessels grow bigger and increase their
transit numbers, the risk posed by interactions between cargo vessels
and passenger ferries will increase. And, of course, this is
complicated by a very high volume of recreational boater traffic, which
exists due to Washington's popularity with recreational boaters and
fishers.
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\1\ Washington's Vessel Entries and Transits for Washington Waters,
VEAT 2006, WDOE Publication 07-08-005.
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C. Risk From Cargo Vessels Currently Exist and Will Continue to Grow
Cargo vessels have a history of having dangerous mishaps in
Washington's waters. After a review of Washington vessel incident data,
the Washington Department of Ecology concluded that:
Cargo and passenger vessel casualty and near-miss rate trend
is downward, but the spill rate trend is flat.
The overall downward trends should be viewed in light of
other indicators that show there are generally longer periods
of time between spills to marine waters--especially large
spills.
Ongoing efforts by Ecology, the Coast Guard, maritime
industry, tribes, and public advocacy groups appear to be
pushing most spill and incident rates downward in Washington
State. However, maintaining the downward trend will require
focused on-going efforts. Also, Ecology specifically believes
non-tank vessels need to be regulated to a much higher standard
than exists today.
Projections show that cargo vessels will grow in both size and in
number. In 1999, the U.S. Coast Guard reported that over 65 percent of
the vessels above 300 gross tons (GT) that transited the Strait of Juan
de Fuca were container ships and bulk carriers.\2\ The Coast Guard
report also noted that Puget Sound waterborne commerce is becoming
increasingly dominated by container traffic--over 75 percent of the
tonnage moved through the Port of Seattle is not in containers, with
break bulk traffic, including paper and pulp, moved through Tacoma and
surrounding ports.\3\ Movements of dry cargo are predicted by the Coast
Guard study to increase by 3.6 percent per year through 2025.\4\ Thus,
by 2025, it is expected that bulk carrier and containership transits
will increase from 7,513 transits in 2000 to over 12,425 transits in
2025. Additionally, these ships will get much larger. The 1999 Coast
Guard report noted that in 1997 27 percent of container ships were less
than 2,500 TEU and that 36.7 percent were 2,500 to 4,000 TEUs, with
36.1 percent being greater than 4,000 TEUs. The report noted that the
first of the large 6,000 TEU container ships were delivered in 1996,
and more than thirty 4,500 plus TEU container ships were delivered
through 1999. The study projects that by 2025, that only 30 percent of
the container fleet will be comprised of vessels under 4,000 TEU, with
70 percent of the fleet being comprised of vessels over 4,000 TEU.\5\
---------------------------------------------------------------------------
\2\ Regulatory Assessment, Use of Tugs to Protect Against Oil
Spills in the Puget Sound Area, p. 7, U.S. Coast Guard, Report No.
9522-02, November 15, 1999.
\3\ Regulatory Assessment, p. 13, November 15, 1999.
\4\ Regulatory Assessment, p. 18.
\5\ Regulatory Assessment, p. 1-20.
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Naturally, the bunker fuel carried increases with the size of the
ship. Thus, the Coast Guard reported that gallons of oil transported as
bunker in cargo vessels (bulk liquid carriers, bulk carriers, container
ships, and vehicle carriers) would increase from 78,385,168 gallons in
2000 to over 143,405,063 gallons per year in 2025. This is a transit
increase of about 160 percent and an increase of oil transported by
cargo vessels of about 180 percent.\6\ While this may not have quite
the ``wow factor'' as what is predicted to be carried by oil tank
vessels, this oil transport presents a serious and significant risk.
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\6\ Regulatory Assessment, p. 19-20.
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D. Global Climate Change Will Worsen Existing Risk
As human-induced climate change inevitably worsens, there will be
more random and serious weather events. For example, this past December
3, Seattle experienced its second rainiest day on record. First place
goes to a rainy day in very recent history--2003. Now that we can
predict that the 100-year storm will come much more frequently, weather
related vessel incidents may increase accordingly. As an example of
this, on December 3, the KAUAI, a 720-foot container ship sailing near
Cape Flattery, Washington was suddenly smashed by a large ocean swell.
The waves broke out the wheelhouse windows, damaged electronic systems
and knocked out the ship's primary steering system.
Disaster was averted, however. The vessel did not drift onto the
rocks and spill oil because the state-funded Neah Bay rescue tug
launched to save the stranded cargo vessel. This was the tug's thirty-
fourth save since it was put on stand-by status in 1999. Its thirty-
fifth save came days later on December 12 when it saved the NA HOKU, a
105-foot tug towing a fuel barge containing more than two million
gallons of diesel fuel and about a half million gallons of gasoline.
The tug was headed down Washington's outer coast when its primary
electrical generator engine failed about 12.5 miles west of Cape
Flattery. As storm events gain strength and frequency, it is paramount
to have a tug that intervenes to prevent groundings when vessels are
disabled or have reduced maneuverability or propulsion capability while
transporting oil and other cargo along the Pacific coast and through
the Strait of Juan de Fuca.
III. Options for Reducing Risk from Cargo Vessels
A. Introduction
Seeing strong Federal regulations put into place at the Federal
level is extremely important to the Council and the State of
Washington, particularly in areas in which states are limited in their
ability to prevent oil spills from underway vessels engaged in
commerce.\7\
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\7\ United States v. Locke, 529 U.S. 89, 120 S. Ct. 135 (2000).
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There are several very real changes Congress could make to enhance
prevention of oil spills from non-tank vessels.
First, Congress could work to enhance Federal and state
collaboration to prevent oil spills, including changing Coast Guard and
state dynamics and authorities. For example, Congress could delegate
authority to capable states like Washington to conduct vessel
inspections, conduct investigations, and enforce Federal regulations,
and to review and approve vessel and facility contingency plans.
Second, Congress could federally apply Washington's Voluntary Best
Achievable Protection Standards to non-tank vessels.
Third, Congress could require that cargo vessels be redesigned so
that their bunker fuel tanks are not so vulnerable to injury and
leakage.
Fourth, Congress could require that the Coast Guard complete the
``Salvage Rule'' and also extend it to non-tank vessels.
Fifth, Congress could relocate the high-volume port line to the
entrance of the Strait of Juan de Fuca.
Sixth, Congress could extend restrictions in the Area To Be Avoided
around the Pacific Coast Marine Sanctuary to non-tank vessels (not just
oil cargo vessels) and expand the definition of ``carrying cargo'' to
include tank oil ``clingage.''
Last, Congress could implement Federal non-tank vessel contingency
planning requirements and recognize state accepted ``umbrella'' plans.
B. Enhanced Federal and State Collaboration to Prevent Oil Spills;
Changes to Coast Guard and State Interactions and Authorities
The State of Washington, through the State Department of Ecology,
has a positive and strong partnership with the Coast Guard. This
relationship was affirmed and reinforced earlier this year at an oil
spill summit between Governor Gregoire and Admiral Houck, Commander of
the Thirteenth District of the U.S. Coast Guard. But, we acknowledge
there is still work to be done. The following are recommendations for
continued improvements as they relate to non-tank vessels.
Again, these recommendations have not been vetted through the
Council, which will take these issues up at its January meeting. While
certain industries may not fully agree with these recommendations, most
of the stakeholder groups represented by the Council would agree. Also,
the State Department of Ecology agrees.
Delegate Authority to Capable States Like Washington
The Washington Department of Ecology and the Oil Spill Advisory
Council maintain that one way to optimize Federal and state resources
would be for Congress to direct the Coast Guard to delegate authority
to capable states to perform several functions: conduct vessel
inspections, conduct investigations and enforce Federal regulations,
and to review and approve vessel and facility contingency plans.
Review and Approve Vessel and Facility Contingency Plans
The Washington Department of Ecology has reviewed and approved non-
tank, tank vessel, and facility contingency plans for over thirteen
years. Washington regulators have a long history of implementing a
rigorous plan review and drill program. Ecology's plan review staff
members are recognized nationally as leaders. This reputation is based
on local knowledge and relationships built with communities, industry,
Federal, state and local agencies, and tribal nations.
The Federal Government has only recently begun to require
contingency plans from non-tank vessels. All tank and non-tank vessel
contingency plan reviews are centralized by the Coast Guard to ensure
consistency in applying standards. Copies of the plans are maintained
at the Coast Guard's Headquarter offices in Washington, D.C., rather
than in local Captain of the Port offices. Yet, any spill that occurs
is going to have a local impact and any response will typically be
managed by local state and Federal officials, using local Area
Contingency Plans.
Delegating authority for qualified and experienced state personnel
to conduct these activities would maximize efficiency and effectiveness
of both agencies' resources and provide a strong unified approach for
responding to spills in Washington waters. Further, it would enhance
mutual respect and collaboration between state and Federal safety
professionals, and would reduce duplication of efforts where agencies
have concurrent jurisdiction or areas of mutual interests.
Vessel Inspections and Delegation to Investigate Violations of and
Enforce Coast Guard Regulations
The Washington Department of Ecology has a staff of trained and
experienced mariners who board tank vessels through a program called
the Voluntary Best Achievable Protection Program (BBAP). This program
was put into place after U.S. v. Locke as a way for the state to
continue to provide oil spill prevention services for underway tank
vessels. The program has been enormously successful.
Through the VBAP program, Ecology inspectors board participating
tank vessels and conduct inspections to determine whether VBAP
standards are being met. Simultaneously, inspectors are able to
determine if the vessels are compliant with Coast Guard regulations. In
this way, Ecology inspectors can act as the Coast Guard's eyes and
ears.
Ecology's experience has been that vessel crews see Ecology staff
as mentors who provide education regarding what is expected in
Washington waters under applicable law. The experienced Ecology
inspectors are seen as equals--as experienced mariners, many of whom
have lived and worked in Washington's waters for years, even decades.
This augments Coast Guard activities, many of which are performed by
staff rotating into a Washington assignment from a different area or
from the Coast Guard Academy. Having state inspectors board
participating vessels is of enormous benefit. Education conducted by
state inspectors has increased crew ``situational awareness,'' which is
often a key to preventing incidents that lead to oil spills.
It makes sense to expand the role of this trusted and capable
resource to include inspecting both tank and non-tank vessels and
conducting investigations to determine compliance with Coast Guard
Rules. It also would seem logical to extend this authority to allowing
capable states to assist with enforcement of Federal Coast Guard
regulations on both tank and non-tank vessels.
C. Federally Apply Washington's Voluntary Best Achievable Protection
(VBAP)
Standards to Non-tank Vessels
Many of Washington's thirty-one VBAP standards for tankers already
have been incorporated into Federal and international standards.
Insofar as these standards have not been extended to non-tank vessels,
it is logical to extend them. Washington's VBAP standards include, but
are not limited to, navigation watch, bridge-watch composition, bridge
resource management, voyage planning, refresher training, drug and
alcohol policies, personnel evaluation system, work hours, language
proficiency, record keeping, and preventative maintenance
documentation. These standards are geared toward preventing incidents
while underway that could lead to oil spills in marine waters.
Cargo vessels are growing appreciably in their size and in the
amount of bunker they will hold. Therefore, taking measures to reduce
incidents that could result in bunker fuel entering marine waters is a
sound risk reduction strategy.
D. Vessel Design; Double Hull Bunker Tanks on Cargo Vessels
Just as Federal law no longer allows tankers to be constructed
without a double hull in order to protect oil cargo, neither should
vessels be constructed with unprotected bunker tanks. Current
regulatory requirements permit fuel tanks to be arranged outside of the
cargo block region and to be located adjacent to the shell. This was an
issue with the COSCO BUSAN that ``scraped'' the side of the San
Francisco Bay Bridge and instantly lost 58,000 gallons of bunker.
E. Complete and Extend the Coast Guard Salvage and Firefighting Rule
for Vessel Contingency Planning
The Federal Water Pollution Control Act, as amended by the Oil
Pollution Act of 1990, mandated that the Coast Guard issue regulations
to improve response capabilities from tank vessels and minimize the
impact of oil spills from these vessels. The Coast Guard promulgated a
rule in 1993 that required salvage and marine firefighting resources in
vessel oil spill response plans for tank vessels. This rule should be
finalized and also extended to cargo vessels.
The Coast Guard's 1993 rule did not set forth specific requirements
because salvage and marine firefighting response resource requirements
were viewed as unique to each vessel. The CG intended to rely on plan
holders to prudently identify contractor resources to meet their needs.
The CG thought that significant benefits of a quick and effective
salvage and marine firefighting response would be sufficient incentive
for industry to develop salvage and firefighting capabilities similar
to the development of oil spill removal organizations. Also, the Coast
Guard mandated no specific response times due to concerns over the
capacity of these resources that existed in the United States. Yet,
under the 1993 rule, response plans submitted for approval after 1998
(by owners or operators of tank vessels carrying groups I through V
petroleum oil as a primary cargo) had to identify a salvage company
with expertise and equipment and a company with firefighting capability
that could be deployed to a port nearest to the vessel's operating area
within 24 hours of notification or discovery of a discharge.
In 1997, the CG became aware that anticipated salvage and marine
firefighting capability development was not occurring. Instead, there
was disagreement among plan holders, salvage and marine firefighting
contractors, marine associations, public agencies, and other
stakeholder regarding what constituted adequate salvage and marine
firefighting resources. There was also concern over the ability to meet
the 24-hour requirement. So, the Coast Guard delayed implementation of
the 1998 requirement. In 2001, the Coast Guard suspended the rule
again, saying the suspension would be lifted in 2004.
In 2002, the Coast Guard issued a notice of proposed rulemaking to
amend the 1993 rule in light of stakeholder meetings that occurred. The
proposed rule provided that plan holders of a vessel carrying groups I
through V of petroleum oil as primary cargo would need to identify, in
their plans, a salvage and marine firefighting resources provider(s)
that performs the specific salvage and marine firefighting services
identified in a proposed table. The CG said that the proposed table
provided the specificity that was previously lacking while still
maintaining flexibility for each vessel. Focusing on services, versus
specific equipment, was deemed to be more practical for the plan
holder, since the amount and type would vary depending on the vessel's
characteristics and the operating environment.
This proposed rule generated many comments of many different
perspectives. The rule was never finalized. Instead, just before the
1993 rule's suspension was to end in 2004, the Coast Guard issued a
notice stating it would suspend the rule for another 3 years until
2007. Then in 2004, the Coast Guard issued another 3 year suspension
and the new date for the suspension to end is in 2009.
Congress should consider directing the Coast Guard to finish this
rule, incorporate the changes suggested by the Pacific States/British
Columbia Oil Spill Task Force, and extend the rule to non-tank vessels.
F. Relocate the High-Volume Port Line to the Entrance of the Strait of
Juan de Fuca
The Department of Ecology finds that the high-volume port line,
currently located at Port Angeles, should be moved to the entrance of
the Strait of Juan de Fuca.
The Coast Guard's oil spill response planning requirements apply
(or do not apply) to an area based on whether the area is east or west
of the high-volume port line that currently is established in an
alignment from Port Angeles, Washington to Vancouver Island, Canada. As
a result of this, response equipment is not required to be pre-staged
close to Washington's outer coast. Staging equipment only in this
eastern area increases the time it will take to mount an effective
response to a spill event on the outer coast.
Puget Sound is a high-volume port and, therefore, merits more
response equipment being available in the event of a spill. The Strait
of Juan de Fuca is the only commercial vessel traffic highway through
which vessels traveling into Puget Sound proceed. Yet, having the high-
volume port line established at Port Angeles, rather than at Strait's
entrance, denies much of this high volume vessel highway the same
response equipment protections that are available east of Port Angeles.
High-volume port lines for all other ports in the country are
located at the entrances to main water bodies, not sixty miles inside
as in the case of Washington. Similarly situated areas should be
treated similarly.
The State of Washington is concerned that Washington's coastline is
not adequately protected on the basis of the current high-volume port
line location. The eventual Federal requirement for a marine salvage
response capability is also expected to be based on this high-volume
port line. The State is very concerned that this may jeopardize a
timely rescue/response action off of our pristine coastline. We urge
Congress to shift this critical response benchmark to the entrance of
the Strait of Juan de Fuca.
G. Extend the Pacific Coast Marine Sanctuary Area to Be Avoided to
Include Non-Tank Vessels (Not Just Oil Carrying Tank Vessels)
and Expand Definition of ``Carrying Cargo'' To Include Tank Oil
``Clingage''
The Olympic Coast National Marine Sanctuary is one of our Nation's
most treasured marine areas. Its mission is to protect the sanctuary
and ensure that future generations are able to use and enjoy it. That
means that managing the sanctuary to both conserve its resources and
encourage uses that are compatible with conservation. To this end, the
Area To Be Avoided was created by the International Maritime
Organization. The ATBA standard is that ``all ships and barges carrying
cargoes of oil or hazardous materials'' will not enter the ATBA.
Recently, the Oil Spill Advisory Council wrote a letter to the
NOAA's Olympic Coast Marine Sanctuary questioning why vessels with
hundreds or thousands of gallons of oil ``clingage'' inside their tanks
are not considered to be ``carrying cargo,'' and thus required to stay
outside of the ATBA. The Council asked that the Sanctuary revisit its
interpretation of ``carrying cargo'' and make a determination about
whether oil carrying ships and barges that are mostly empty should be
considered empty and not carrying cargo, or whether they should be
considered mostly empty and carrying some cargo.
Unfortunately, the Sanctuary responded that it feels constrained by
the ATBA language and that it will continue to consider vessels that
have only residual product in their holds as not ``carrying cargo,''
and thus not having to stay out of the Sanctuary's ATBA.
The Council asks that Congress act to change this. The Council has
learned from the Washington Department of Ecology (Ecology) that oil-
carrying vessels that have been ``emptied'' actually contain at least
several hundred gallons of oil onboard, and are more likely to contain
several thousand gallons of oil ``residue.'' We have even learned that
one vessel that had its tanks cleaned and certified to be gas-free was
still carrying 15,000 gallons of diesel when it landed on the rocks.
The Council has learned that if an incident involving a vessel
carrying thousands of gallons of oil, or even hundreds of gallons of
oil, resulted in a release of that oil to the environment, serious
environmental and economic harm would almost certainly result. There
are scenarios where the release of this residue oil could cost the
State of Washington millions and millions of dollars.
True, the severity of any oil related incident depends on factors
such as the type of oil released, where the oil is spilled, whether
weather conditions are conducive to containment and recovery, and the
sensitivity of impacted habitats and resources. However, it goes
without saying that hundreds or many thousands of gallons of oil
released into the environment would not be an insignificant event,
especially in an area where the precautionary principle is being
implemented as the IMO deemed it to be ``exceptionally important to
avoid casualties.''
Additionally, preventing huge cargo vessels with many thousands of
gallons of oil as bunker to transit through the ATBA is not consistent
with the goals of the ATBA or the Sanctuary. Therefore, Congress should
expand the ATBA to include non-tank vessels that are simply transiting
through the ATBA without any real need to be there (such as fishing
vessels who are actively fishing inside the sanctuary).
H. Vessel Response Plans for Non-Tank Vessels
Federal regulations for non-tank vessel contingency plans should be
finalized without further delay and aggressively implemented. In
addition, Congress should recognize state accepted planning standards
that increase response effectiveness.
Many states, including Washington and Oregon, have adopted an
``umbrella'' approach for non tank vessel planning, approving a single
plan that covers large classes of vessels. The state believes the
Federal rules should fully recognize state accepted umbrella plans that
are locally designed. They are more cost-effective for industry and
ensure the local first-response capability is aggressively launched in
the event of a spill. This approach is also able to provide a smooth
transition to any longer-term response organization without
compromising Federal or international standards. This can be
accomplished by delegation of authority to authorized states.
I. Impose Additional Speed Limits in Vessel Traffic Lanes; Enforce With
Civil and Criminal Penalties
The pilot maneuvering the COSCO BUSAN was speeding. Had he not
been, he possibly could have averted the vessel away from the bridge.
The pilot apparently had a history of being careless and going too
fast. Had there already been in place enforceable speed limits that
could form the basis for fining companies and for taking away the
license of a pilot or a master, it is quite possible that the COSCO
BUSAN pilot would not have been ``behind the wheel.''
The larger the vessel, the longer it takes to stop. Cargo ships
often take miles to slow down and stop. The difference in being able to
avert disaster or not, could be as little as one knot. Therefore, it is
important to slow down vessel traffic and to enforce vessel speed
limits, just like we do on our Nation's highways. Indeed, it is even
more important given that one ``boat wreck'' can ``wipe out'' an entire
community, its culture, and its economy. Congress could impose these
speed limitations and couple them with strong Coast Guard enforcement.
IV. Conclusion
I would like close by stressing how vitally important it is for all
levels of government to work together to solve these issues--for the
Federal Government to work with state, tribal, and local governments to
assure that while we pursue the interests of commerce, we do not do so
at the expense of other things that are so dearly important to our
culture, our local communities, and our general well being.
Thank you for inviting me to testify before the Senate Commerce
Committee. I would be happy to answer any questions you have.
Senator Cantwell. Thank you, Mr. Cooper. Mr. Deaver,
welcome, and thank you for being here.
STATEMENT OF WILLIAM G. DEAVER, PRESIDENT AND COO, TOTEM OCEAN
TRAILER EXPRESS, INC.
Mr. Deaver. Thank you very much, Madam Chair. Thank you,
Madam Chairman and Ranking Member Snowe. I am William Gary
Deaver, Bill, President of Totem Ocean Trailer Express. And I
want to thank you for the opportunity to express my company's
views on this matter.
Totem Ocean Trailer Express, or TOTE, is a Jones Act
carrier transporting cargo between Tacoma, Washington and
Anchorage, Alaska. Since 1975, we have been serving the people
of Alaska by transporting the things that Alaskans eat, wear,
and use. We have 170 shore-based employees and provide direct
and indirect jobs for an additional 525 individuals onboard our
vessels, as stevedores, truck drivers, warehouse operators, and
others. Together, we have served the Alaska trade consistently,
efficiently, and without a significant oil spill for 32 years.
We currently operate two new vessels that were built at
NASSCO's shipyard in San Diego and were delivered in 2003.
Madam Chairman, TOTE believes that prevention is better
than cleanup, and we have designed our ships with our operating
systems to prevent oil spills. Our ships were designed to
minimize the risk of oil spills, such as the recent tragedy in
San Francisco. Specifically, TOTE's ships carry their fuel in
tanks that are approximately eight feet inside the sides of the
outer hull; in other words, an object has to penetrate the side
of the ship by more than eight feet in order to rupture the
fuel tank.
Moreover, the tanks themselves have double bottoms, and are
elevated more than ten feet above the bottom of the hull,
thereby offering similar safety in the event of a grounding.
The tanks themselves are vertical, instead of being parallel to
the waterline as is traditionally the case. This is a very
crucial safety factor. The fuel tanks are approximately 20 feet
wide; hence, only about 20-foot-wide band of the ship's 839-
foot length is vulnerable. There is no fuel tank behind the
other 819 feet of the ship's sides.
The combination of the set-back from the outer hull and the
vertical orientation of the fuel tanks means that to breach the
fuel tank an object would have to penetrate the hull by more
than eight feet, and the penetration would have to occur within
a 20-foot band, which is less than one-fortieth of the ship's
length. In other words, even a collision that penetrated the
hull by more than eight feet would not damage the fuel tanks if
the collision occurred on the other thirty-nine fortieths of
the ship's length.
In addition, TOTE's vessels incorporate numerous other
elements that reduce the risk of oil pollution and other
environmental hazards, such as: we have three separate radar
systems on each vessel; we have redundant oily water separators
on each vessel, ensuring that gray water discharge from the
vessel is 98 percent pure; each vessel operates with twin
electric screws with four main and two auxiliary diesel
generators with diesel electric; twin rudders; airspace stern
tube sealing system that prevents lubricant leaks; and a self-
containing ballast system to prevent the spread of invasive
species through ballast discharge.
These design elements went beyond what was legally
required, and they were expensive. We estimate that we spent
approximately $15 million per ship for system redundancies and
environmental enhancements that were not legally required. But
TOTE's people and our operating practices are at least as
important as preventing oil spills as the vessel design.
First, as a Jones Act carrier, our ships are crewed by
Americans. Therefore, language and communication problems are
minimized when the Master, crew, and pilot speak a common
language. Moreover, our crews are highly trained, experienced,
and well-qualified to operate our vessels safely and in an
environmentally sound manner. All of us take immense pride in
TOTE's commitment to environmentally sound vessel design
features and our operating safety processes.
The main terminals in both Alaska and Washington State were
certified ISO-14001:2004, which is Environmental Management
System compliant this past June for all the facilities and all
the loading and unloading cargo and equipment to and from the
vessels. In addition, each of our ships enters and leaves Puget
Sound and Cook Inlet approximately 50 times per year. Our
Masters have all been with TOTE for at least 15 years. They
know their crews, they know the waters, they know the pilots.
The pilots know the ships, they know the Masters, and of
course, they know the waters.
In Alaska, for example, TOTE contracts with pilots who ride
the ships fulltime from Tacoma to Anchorage and back, thereby
eliminating the risk and uncertainty of having to take on a
pilot in stormy Cook Inlet in the darkness of an Alaskan
winter. We believe that these measures, which we have taken
voluntarily, are the best, most proactive ways to minimize the
risk of oil spills and other environmental safety hazards in
our industry. Thank you for this opportunity to express our
views.
[The prepared statement of Mr. Deaver follows:]
Prepared Statement of William G. Deaver, President and COO,
Totem Ocean Trailer Express, Inc.
Madam Chairman and members of the Subcommittee, I am William G.
Deaver, President of Totem Ocean Trailer Express, Inc. I want to thank
you for this opportunity to express my company's views on this matter.
Totem Ocean Trailer Express, or TOTE, is a Jones Act carrier
transporting cargo between Tacoma, Washington and Anchorage, Alaska.
Since 1975, we have been serving the people of Alaska by transporting
the things that Alaskans eat, wear, and use. We have 170 shore based
employees and provide direct and indirect jobs for an additional 525
individuals onboard our vessels, as stevedores, truck drivers,
warehouse operators and others. Together, we have served the Alaska
trade consistently, efficiently, and without a significant oil spill
for thirty-two years. We currently operate two new vessels that were
built at NASSCO's shipyard in San Diego and were delivered in 2003.
Madam Chairman, TOTE believes that prevention is better than clean-
up and we have designed our ships and our operating systems to prevent
oil spills.
Our ships were designed to minimize the risk of oil spills such as
the recent tragedy in San Francisco Bay. Specifically, TOTE's ships
carry their fuel in tanks that are approximately 8 feet from the sides
of the ship's outer hull. In other words, an object would have to
penetrate the ship's side more than 8 feet in order to rupture the fuel
tank. Moreover, the tanks themselves have double bottoms and are
elevated more than ten feet above the bottom of the hull, thereby
offering similar safety in the event of a grounding.
The tanks themselves are vertical, instead of being parallel to the
water line as is traditionally the case. This is a crucial safety
factor. The fuel tanks are approximately 20 feet wide. Hence only about
a 20-foot wide band of the ship's 839-foot length is vulnerable; there
are no fuel tanks behind the other 819 feet of the ship's sides. The
combination of the set-back from the outer hull and the vertical
orientation of the fuel tanks means that to breach the fuel tank an
object would have to penetrate the hull by more than 8 feet and the
penetration would have to occur within a 20-foot band, which is less
than one-fortieth of the ship's length. In other words, even a
collision that penetrated the hull by more than 8 feet would not damage
the fuel tanks if the collision occurred on the other thirty-nine
fortieths of the ship's length.
In addition, TOTE's vessels incorporate numerous other elements
that reduce the risk of oil pollution and other environmental hazards,
for example:
Three separate radar systems;
Redundant oily water separators ensure that our grey water
discharge is 98 percent pure;
Twin electric screws with four main and two auxiliary diesel
generators;
Twin rudders;
Airspace stern tube sealing system that prevents lubricant
leakage; and
Self-contained ballast system to prevent the spread of
invasive species through ballast discharge.
These design elements went beyond what was legally required, and
they were expensive. We estimate that we spent approximately $15
million per ship for system redundancies and environmental enhancements
that were not legally required.
But TOTE's people and our operating practices are at least as
important in preventing oil spills as the vessel design. First, as a
Jones Act carrier, our ships are crewed by Americans. Language and
communication problems are minimized when the Master, crew, and pilot
speak a common language. Moreover, our crews are highly trained,
experienced and well-qualified to operate our vessels safely and in an
environmentally sound manner. All of us take immense pride in TOTE's
commitment to environmentally sound vessel design features and our
operating safety processes. The main facilities in both Alaska and
Washington State were certified ISO-14001:2004 (Environmental
Management Systems) compliant this past June for all facilities and the
loading and unloading of cargo and equipment to and from our vessels.
In addition, each of our ships enters and leaves Puget Sound and
Cook Inlet approximately fifty times per year. Our Masters have all
been with TOTE for at least 15 years. They know their crews, they know
the waters and they know the pilots. The pilots know the ships, they
know the Masters, and of course they know the waters. In Alaska, for
example, TOTE contracts with pilots who ride the ship full time from
Tacoma to Anchorage and back, thereby eliminating the risk and
uncertainty of having to take on a pilot in stormy Cook Inlet in the
darkness of an Alaskan winter.
We believe these measures, which we have taken voluntarily, are the
best, most pro-active ways to minimize the risk of oil spills and other
environmental and safety hazards in our industry. Thank you for this
opportunity to express our views.
Senator Cantwell. Thank you, Mr. Deaver. And I want to
thank all the panelists who are--the second panel seems to be
focused a little more on the prevention issue, not that
colleagues here didn't want to know a lot about where we are on
this rulemaking and response plans and things of that nature.
But if I could follow on this line of prevention, and ask each
of you about where you really think we are, in context of--I
guess you could just say a grade, if you will, in the context
of prevention.
We have prevention, we have preparedness, and we have
response plans. And I think we all know how expensive the
response plans are. So I'm just trying to get a sense of where
you--how much Mr. Deaver there is showing a stellar response, I
guess I would say. It sounds like you may be the leader of the
industry. But I want to hear from Dr. Etkin and Mr. Cooper, as
well, on how much more you think we need or can be doing on
preparedness. If you had to give us a grade today, what would
you give us, and what else do you think we need to be doing?
Dr. Etkin. A grade on preparedness?
Senator Cantwell. Yes.
Dr. Etkin. I'd probably give us a C. I think that because
we've had fewer spills, I think there are fewer people who were
well-trained to respond. Many of the old-school response people
who are involved in some of the larger spills are retiring now.
They tell me that there are many people who are spill
responders who have never actually been to a really big spill.
And I think that's a concern.
I think we need to increase our preparedness in terms of
the amount of equipment that we have available, and we need to
train and position that equipment in a way that we can get out
there more quickly, because, as I've shown many times in
trajectory modeling and other studies, that the more quickly
you get out there to respond, the better you are in terms of
reducing damages and the spread of the oil. That's certainly an
issue that merits attention.
In terms of prevention, I think we're doing better in the
U.S. than elsewhere. I've done some work on the international
front, and I see that we tend to have a better class of vessels
coming into U.S. waters, particularly with regard to the
Certificate of Financial Responsibility. Ship owners are afraid
to come into U.S. waters, because they're afraid of the
liability limits, they're afraid of natural resource damages
assessments, which is something that does not exist outside the
United States. So there certainly is that to consider.
But I think we need to carefully examine those liabilities,
and then we can see that we really recover all of the costs of
the spill.
Senator Cantwell. Thank you. Mr. Cooper? And really, I'm
focusing on--Dr. Etkin, I believe that you said it--about
working together and being positive. What we need to understand
is how much more is out there in the area of preparedness, and
I want to make sure--I'm thrilled that you seem to be doing a
lot of work in this particular area. If you help us understand
where we are and how much better we can do?
Mr. Cooper. In Washington State, I think, in particular, in
the preparedness area, we've come a long way, largely because
of some actions that have been taken by the Governor and the
State Legislature over the last two or 3 years in requiring
plans for--requiring pre-booming and requiring plans for
bunkering--for pre-booming during bunkering, and requiring
better contingency plans and things like that at the state
level.
I think we've got a long ways to go. We could do many more
things. There are some people who think that, for example, the
tug escort requirements in the Strait of Juan de Fuca could be
a little bit stricter. There are some who believe that we need,
as I mentioned, that we need to push harder on the double hull
issue. One of the things that I see in Puget Sound, in
particular, and on the outer coast, is the increased traffic of
barges and tugs carrying fuel, something that we haven't spent
a lot of time talking about.
So we're probably in very, very good shape in Washington,
but we can always do more. The other thing I would note is the
Memorandum of Agreement that the state signed with the Coast
Guard and how we're going to jointly manage the waterways for
prevention and preparedness. So, I'd say nationally we're a C.
I'd like to believe that in Washington State we're a B or a B+
in many of those areas. But we're not perfect.
Senator Cantwell. Thank you. Mr. Deaver?
Mr. Deaver. I would give us a C-. I think that industry can
continue to do more. We have a carrier in Evergreen Maritime,
out of the Republic of China, that have come up--there are
vessels now that have the vertical fuel tanks, similar to what
TOTE has put in, which I think is a very positive step, and
those ships are culling on the West Coast. So I think that that
is a very positive step, but I think that industry can continue
to do more.
Senator Cantwell. Mr. Deaver, why did TOTE respond so
aggressively to the development of vessels that met these
prevention techniques that have been so helpful, and having
that stellar record for so many years?
Mr. Deaver. We looked at the vessel assets that we were
building, and we said that these vessels will be in operation
for up to and exceeding 40 years. And we were looking over the
horizon as to what the regulations might be, or how we would
really want to treat the waters that we live and work in. So we
voluntarily took the measures, because we said it was simply
the right thing to do in the environment that we work.
Senator Cantwell. So how many other companies have vessels,
such as TOTE, with tanks in the center of the ship, well
protected from possible eruption from collision and other
activities?
Mr. Deaver. The only ones that I'm really aware of are the
new Evergreen ships that have come out, but I'm not totally
aware of that. But the industry, I believe, will begin to
migrate to that vertical-type tank within these ships?
Senator Cantwell. They will do so on their own or--is there
an economic benefit for doing that?
Mr. Deaver. I think that there is a benefit environmentally
in being able to say that they have taken the steps to mitigate
spills. But economically, I don't know that that could be said
at this point.
Senator Cantwell. So your company looked at it over a 40-
year period and just decided that this is the right thing to
do.
Mr. Deaver. It is the right thing to do.
Senator Cantwell. Thank you. Senator Snowe?
Senator Snowe. Yes. Thank you, Madam Chair. Dr. Etkin, I
know it's important to move forward, but what are the lessons
learned from what happened with COSCO BUSAN? What were your
impressions of the Coast Guard's response, and where we could
make improvements? Obviously, there are a number of issues that
emerged from that incident, including the lack of timeliness on
the part of the Coast Guard and notifying local officials other
than the Coast Guard itself being notified about the magnitude
and dimensions of the oil spill from 142 to 58,000 gallons.
Obviously there are a number of issues that we are going to
have to address, and so will the Coast Guard. In your
observations, in fact, I'd like to get any of the impressions
from the panel, what are the lessons learned? What would you
recommend to us on the basis that you've been able to discern
from this incident, and that we should do better?
Dr. Etkin. Well, I actually have had the opportunity to go
to San Francisco recently. I did see the oiled shorelines and I
spoke directly to some of the Coast Guard people and other
responders who were involved in this spill, because I was
involved in working on efforts of prevention and response with
California Fish and Game. I don't know enough about the
specifics of the incident to comment too specifically on that.
I'm concerned about saying anything more.
I do collect case histories of spills, and analyze them
after the fact, and this would be one of the spills that I will
have to look at in terms of lessons learned. But just offhand,
certainly, the delay in response contributed greatly to
allowing that oil to spread so far throughout the bay. I know
that there are very, very challenging currents in San Francisco
Bay. I've done some modeling with those currents, some
trajectory models, and you see that it really is a challenge to
do on-water oil recovery in this environment.
But that being said, there was a remarkable--I think you
had mentioned this earlier--a remarkable oil recovery rate. I
was told there was about 36 percent, which is actually a very
high rate. It doesn't sound very high, but with regard to on-
water oil recovery, mechanical oil recovery, it is relatively
high. So somebody was doing something right there, but I think
that the delay in notification was an issue. And certainly, I
had gotten an initial notice that there were 130 gallons that
were spilled, and I didn't think much of it.
I received these notifications myself, and I was thinking,
``Oh, OK. Well, I'll just chalk that up to one of the smaller
ones.'' Then I heard that it was so much larger, and I did hear
that the oil must have spilled very, very quickly from that
size of a gash. Obviously, the oil doesn't just slowly release.
I don't know what happened, and certainly that should be
investigated, because that delay absolutely contributed to the
spread of the oil.
Senator Snowe. Do you think the 36 percent recovery rate is
the best we could expect? In other words, it's very difficult
to increase that amount of recovery?
Dr. Etkin. I'm sorry to say that that is probably true.
Except in very unusual circumstances, where you're in very
calm, sheltered waters, or where you have a pre-boomed vessel
that happens to have a spill during oil transfer operations.
You can sometimes get oil recovery 75 percent or even higher in
those sorts of circumstances. But on-water recovery, when
you're trying to boom it, contain it, and skim it, very rarely
more than 10 to 25 percent, so it's actually remarkable that it
was 36 percent.
Although I suspect that some of that oil that they included
in that count was what was recovered from the shoreline, so I
would take that with a grain of salt.
Senator Snowe. Do you think the Coast Guard's Response
Program is robust enough to address this with nontanker
vessels, since they represent about a third of the----
Dr. Etkin. Well, I think a spill is a spill, regardless of
the source, and certainly there are all kinds of spills from
all sorts of sources and facilities we handle. I think that the
Coast Guard's Strike Force Team and, in general, the Regional
Response Teams, these are very highly trained people who know
what they're doing. And I think that there are probably ways
which they could work better with some of the oil spill removal
organizations and private entities that are hired by the
responsible party. There are probably communication issues and
jurisdiction issues.
Senator Snowe. Yes. One of the issues was using volunteers.
There were so many available at the time, and they weren't
integrated in the process early on, and that's one of the other
issues.
Dr. Etkin. Yes. My sister was one of those people who were
there as a volunteer. I know that many people were sorely
disappointed that they could not do something. I think there
needs to be a way to bring people into the process, because
there are a lot of very motivated people who want to help.
Senator Snowe. Mr. Cooper, do you have any impressions? I
know you were suggesting we should create or delegate one of
the authorities that is already vested in the Coast Guard to
state authorities, whether it's for inspections, regulations,
or conducting investigations. Do you think that's possible for
states to have adequate resources to assume financial
responsibilities? Even if preferable, as well, to have a
central authority, one who creates a consistency from one
agency, such as the Coast Guard, to oversee all of those
responsibilities?
Mr. Cooper. I think if we're going to do that kind of
delegation, it's important to know that we have a capable
state. And that's why I chose that word in my testimony. A
capable state, like I believe Washington State is, where we
have people in the Department of Ecology that are well-trained
mariners that actually do inspections with the Coast Guard now,
and in some cases do some of the inspections, as a part of the
Memorandum of Agreement between the State and Federal
Government, on oil tank vessels.
And I think that the first thing that would have to happen
is the Coast Guard would have to ensure that the state had the
policies and the training and the personnel in place to do
those inspections for them, under the authority of the Coast
Guard. But without that training at the State level, I don't
think it's practical to pass it on if the state doesn't have
the resources to be able to do it.
Senator Snowe. Yes. Do you think you could establish a
level of consistency with respect to the inspections, for
example, in enforcement? If you were to delegate it to, say,
certain states that have the capabilities?
Mr. Cooper. The assumption would be that the states would
do the inspections consistent with the Coast Guard standards,
and that it would be actually acting as an arm of the Coast
Guard.
Senator Snowe. Yes. Do you have any views about the COSCO
BUSAN in any way from your vantage point?
Mr. Cooper. I haven't looked at the information yet. The
reports are just starting to come out. The Oil Spill Advisory
Council is looking forward to more extensive briefings on the
lessons learned as the complete report comes out. I will say
that the volunteer issue is an issue that came up in
Washington, following the very small oil spill on the tip of
Vashon Island, in an area called Dalco Passage, and we've been
working hard in our advisory capacity at the Department of
Ecology to try to figure out how to train volunteers.
And one of the issues that consistently comes up, both in
the Coast Guard and from the Department of Ecology, is what
level of HAZWOPER training do those people need to have to be
able to respond as volunteers? Now, I know there are people,
perhaps some in this room, who responded as volunteers to the
TENYO MARU spill on the Washington Coast, and perhaps at the
EXXON VALDEZ spill in Alaska, as volunteers were used there. So
the question is--how do you include organized groups of
volunteers? I think it's very, very important to include the
community.
We have caches of equipment now at the local government
level in Washington. The Legislature made an appropriation, and
we actually have local fire departments and local port
districts that have small caches of booms so that they can
respond instantly and without waiting for the longer response
time, and I think the response time is one of the things that's
going to come out as a very critical issue after that spill.
In my other life as a firefighter, where you put equipment
and how fast you respond had a lot to do with whether or not
the house burned down, and I think that type of logic needs to
be applied to spill response. We need to shorten response
times, and we need to get trained personnel, boom, and
equipment more strategically located around areas like, in our
state, Puget Sound, or in California, the San Francisco Bay, so
that the equipment can get to the scene a lot faster.
Senator Snowe. Maybe incorporating drills for volunteers. A
lot of our local counties have volunteer fire departments, for
example, and emergency personnel. Maybe that's another way of
doing that, incorporating the drills so you have that pattern
of response, and it happens intuitively, based on the
experience in those drills. Since obviously people were
standing by and waiting to help, and they were frustrated
because they weren't able to as the spill got worse. It's an
interesting point. We really have to draw from our experience
and discern in what ways we can improve. Thank you.
Mr. Deaver, finally, obviously, your company has a very
impressive track record, and you've taken a very proactive,
aggressive approach to prevention. It really is, when you think
about the amount of money your company has invested to ensure
and guard against oil spill risks. Did you have any views
about, for example, the Coast Guard's response? Some are
suggesting we should increase their authority with respect to
monitoring the transit of vessels in and out of port, in terms
of their direction or their speed, to have the Coast Guard
watches be more involved in vessel monitoring the trafficking
of vessels coming into the port.
Mr. Deaver. With the VTS system in an area like San
Francisco Bay, I think that it would be very difficult to have
someone in the VTS office giving directions, settings for the
best level of speed, on an ongoing basis, let's say as an air
traffic controller does with airplanes. That is left normally
to the pilot and to the captain. And I have read a lot about
the incident in San Francisco, and the questions that I would
really have there would also come as to what is the real
liability and responsibility of the pilot and the Master in the
incident. Because I think that that has to be really clearly
identified going forward. So it's more of a question.
Senator Snowe. Thank you. Thank you, Madam Chair.
Senator Cantwell. Thank you, Senator Snowe. And to follow
up on that, Mr. Deaver, and to our other panelists, because
we've really talked about on the prevention side, what were
some of the key issues in which we needed to spend more time
on. And that is in thinking about our prevention efforts.
And I don't know if you could comment on, in general--I'm
not talking about this specific incident in San Francisco Bay--
but human error, communications systems, and weather. If you
could--Mr. Deaver, you mentioned that you had a three-radar
system, and I'm assuming that you use that, and probably pretty
aggressively in avoiding weather issues and staying out of
particularly challenging times and particularly challenging
areas. But of those issues, or any other ones, where do you
think we need to be spending more time on prevention?
Mr. Deaver. I think it's really in the management
processes, generally, within the companies. The vessel
construction, and putting internal tanks in vessels, will take
a long period of time. There has been a tremendous number of
new-built container ships in the last, let's say, 5 years, that
I believe almost all of the tanks are bottom tanks onboard
those vessels. So I think it's really in the management
processes, and I think that clearly there has to be good
language skills onboard the vessel at the time that it's
transiting U.S. waters.
Senator Cantwell. Are you saying that's a significant
problem today or----
Mr. Deaver. I would ask that question going forward. I
don't know. I mean, TOTE is an American-owned company,
American-crewed, English obviously is the language. But I think
that that is a question when you get into many of the
international arrivals into the United States.
Senator Cantwell. Mr. Cooper?
Mr. Cooper. As Mr. Deaver stated, I think management
practices really need to be focused on as part of the human
error question. Oftentimes, and one of the things we're
finding, we're doing a root cause analysis right now, and we're
discovering that the Coast Guard and the State Department of
Ecology's recordkeeping is not the same, or historically has
not been the same.
It's better now. But, oftentimes, things get called human
error, but when you break down the subsets you find out it's
because a company didn't have a policy or didn't have crew
training, or had a management practice that needed to be
addressed. So I think you need to break it down and talk about
where the human error originates. What causes a human being to
make a mistake? Were they tired? Were they not trained? Was
there a policy that wasn't in place? But I think, in
particular, in Washington----
Senator Cantwell. Do you suggest we follow that up with
better rulemaking on that?
Mr. Cooper. If rulemaking is not in place that addresses
those issues, it probably should be.
Senator Cantwell. OK, thank you. I'm sorry--were you going
to add something else?
Mr. Cooper. Well, I was just going to very briefly talk
about the weather. I think, in particular, in Washington,
weather is something you need to be paying attention to in the
coastal areas where wind and storms are factors. There's a lot
of debate going on right now in the state about whether or not
tankers should be transferring their cargo when the weather is
too--even in Bellingham and Port Angeles--when the weather is
too bad for them to boom that vessel.
There's probably going to be a question about whether or
not the state is preempted from making that decision, and so I
think weather is probably something that should be looked at,
as well, and rulemaking around when you can transfer fuel and
when you cannot transfer fuel, and when is it too rough for
those vessels to be transiting in and out, especially in narrow
waterways.
Senator Cantwell. Thank you. Dr. Etkin?
Dr. Etkin. Actually, I was involved in the study on
currents and prepositioning of the booms in Washington State,
and looked at areas where the currents at all times or most
times were going to be too high to actually effectively be able
to contain the oil. From this data, the State can then look at
that and decide, well, should we say that we can't do any oil
transfers in these locations, or do we need to take into
account the current and weather conditions at the time? I think
that's an important thing.
Certainly, weather is an issue, and fog. I've been to San
Francisco enough to know that fog occurs a lot in San
Francisco. And this is something that needs to be factored in.
We need to look at ways in which one can navigate in fog. And I
don't know--I'm not knowledgeable enough to know myself how
we're going to do that, but it certainly is an issue that
should be looked at. That seems obvious. But human error has
been shown to be a factor in a lot of spills, and certainly
what always comes to my mind is the JULIE ANNE spill in the
Fore River in Portland, Maine, where the pilots ordered a
``hard right'' and hit the bridge. That was quite a mess up
there.
That's an obvious example, but there are certainly a lot of
human error factors that come into play, and maybe in very
small ways. And it's important that we actually look at this,
and there are people who are actually studying this type of
thing. I think more attention needs to be paid to that, and
then look, what is it that caused the problem? Is it that the
crews are tired or not well-trained? And based on what we find
are the real root causes, that's where there should be
guidelines or regulations put in place.
Senator Cantwell. Well, I want to thank the panel very much
for your testimony today, and your continued work in this area.
And I want to thank the Vice Chair, Senator Snowe, for
attending this hearing. Our Committee meeting is adjourned.
[Whereupon, at 5:09 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Ben Johnson, Jr., Chairman, Makah Tribal Council
Chairman Senator Cantwell and distinguish members of the
Subcommittee:
Thank you for the opportunity to provide written testimony to the
hearing record from a sovereign tribal government perspective.
I. Summary
While the 58,000 gallon spill caused by the freighter COSCO BUSAN
in San Francisco Bay last month provided impetus for this hearing, it
is important to also note that since that time over 4.5 million gallons
of oil have spilled into the world's oceans from three tanker incidents
in the Black Sea, South Korea and North Sea. We are grateful for
Senator Cantwell's leadership on this Subcommittee to help minimize the
risk of hazardous spills and offer the following comments to that end.
Cargo freighters comprise the majority of traffic that transits through
our Usual and Accustomed (U and A) treaty reserved ocean area making
them the most likely source of a spill. It is also important to
understand that oil tankers and oil barges pose the risk of the
largest, most damaging spills to the marine environment and our
traditional way of life. My tribe has witnessed firsthand the rapid
growth in the size of the cargo and passenger vessels that transit our
treaty-protected waters. We realize this increase in size makes them
more vulnerable to the forces of the wind and potential sources of
bigger spills. We understand that that the General Accounting Office
(GAO) has found that over the past 16 years oil tankers and barges
comprised just under half of the 51 major oil spills in the Nation and
that the cost of a spill can be greatly increased in remote,
environmentally sensitive areas like ours where the shipping lanes come
close to shore. Our treaty-protected resources do not distinguish
between the sources of oil that cause damage upon the event of a spill.
We call on Congress to help us to develop the capacity to assure state
and Federal rulemaking incorporate tribal treaty interests. In
particular we ask that the Coast Guard adequately completes the Salvage
and Firefighting rule of OPA 90; requires vessel response plans for non
tank vessels; and raises the liability cap for all vessels, especially
oil barges, to keep up with the consumer price index. Finally we
strongly recommend passage of the Coast Guard Authorization Act of 2008
with the Neah Bay tug and tribal consultation provisions in place.
II. Introduction
In 1855, the Makah Indian Tribe signed a treaty with the U.S.
Government that reserved land adjoining the Strait of Juan de Fuca and
Olympic Coast in Washington State for the tribe's use and occupation.
The terms and conditions of the treaty reserve the right of taking
fish, whale, and seal at our usual and accustomed grounds and stations.
The Makah treaty area extends out approximately 45 miles west into the
Pacific Ocean and 70 miles eastward into the Strait of Juan de Fuca
from Neah Bay, Washington.
The major center of population on the Makah Indian Reservation is
Neah Bay, home to a strategically located port situated on the Strait
of Juan de Fuca, facing Vancouver Island, British Columbia, Canada.
Neah Bay is the only accessible port on the outer Washington coast
north of Grays Harbor, located in the southwestern portion of the
state, on a year round basis. The Makah Tribal government, tribal
treaty commercial fishing and non-treaty sports and commercial fishing,
the timber industry and tourism support the local economy. The isolated
location and natural beauty of the Makah Indian Reservation attracts
thousands of people each year. Visitor surveys document that a large
number of people come to the Makah Reservation exclusively to visit the
Makah Cultural and Research Center. Visitors also enjoy hiking the Cape
Flattery and Shi Shi Beach trails, also to bird watch, whale watch,
kayak, surf, dive and stroll on our pristine beaches.
Makah people are a maritime people who have historically depended
upon the wealth of the sea for the majority of our food. Our diet
includes sea mammals, and a numerous variety of fish, shellfish, and
crustaceans. The Makah Tribe is the only tribe in the United States
whose treaty reserved rights includes whaling; historically whale
blubber and oil was a mainstay of our diet.
The ocean still plays an essential role in the economy and diet of
Makah people to this day. A unique Makah cultural perspective comes
directly from the proximity to the ocean, rivers and lakes and the vast
resources our marine environment contains. The Makah people are able to
continue to exercise our traditional cultural practices by maintaining
a basic and intrinsic relationship to our maritime environment.
Until historic times the Makah Indian Tribe was composed of five
principal winter villages. The pre-historic population of the Makah is
estimated to have been approximately 4,000 people, about double what it
is today. The Makah Tribe has viewed access to the marine environment
and our marine resources as an inherent sovereign right from time
immemorial.
III. Oil Spill Risk
One hundred and fifty years after we signed our treaty with the
U.S. Government, the Strait of Juan de Fuca has become a primary
waterway route for oil tankers, cargo and passenger vessels bound to
port facilities in Washington and British Columbia. Being the ``People
of the Cape'' and been situated in the northwest most corner of the
contiguous United States, we understand our exposure to oil spill risk
is high. The Makah have the largest combined ocean fisheries of any
federally recognized Indian Tribe in the United States. Our Usual and
Accustomed (U&A) marine treaty area is located at the crossroads of the
Strait of Juan de Fuca and the Pacific Ocean. This places us at the
entrance to a U.S. High-Volume Port Complex, Canada's largest port and
the world's third largest Naval complex. The Olympic Coast National
Marine Sanctuary, the Olympic National Park, a National Fish Hatchery
and a National Wildlife Refuge are adjacent to or part of our treaty
area. The Makah Tribal Council (MTC) recognizes the importance of
protecting these national treasures and is fully committed to do our
part to improve the standards of protection against negative impacts to
our shared environment.
These unique circumstances combined with our experience as serving
as a ``Resource Trustee'' in addressing the impacts of the 4 largest
persistent oil spills in Washington State history (General Meiggs,
2,300,000 gallons in 1972; ARCO Anchorage, 239,000 gallons in 1985;
Nestucca, 231,000 gallons in 1988, TENYO MARU, 400,000 gallons in 1991)
totaling approximately 3 million gallons of oil spilled on our natural
and cultural resources afford us strong standing in this discussion.
The probability of another major oil spill is high in our area as
the volume of trade is expected to triple in the next 15 to 20 years.
Yet due to rulemakings that have not adequately considered our treaty
reserved rights, the western portion of the Strait of Juan de Fuca and
the outer Washington Coast do not receive the same levels of protection
from oil spills that the rest of the Washington State waters are
afforded. For example the placement of the High-Volume Port Line 70
miles east from the entrance to the Strait of Juan de Fuca means there
is less oil spill response equipment and personnel stationed adjacent
to the high seas. In addition, the fact that pilots do not board ships
until Port Angeles, WA, means captains with varying degrees of
familiarity with our waters and the English language transit without
assistance. This is particularly concerning as our region increasingly
relies on foreign sources for our oil and trade.
According to Washington State Department of Ecology (DOE) data for
2006, 3,559 individual vessels made 18,977 transits through Washington
waters bound to and from ports in Washington, Oregon and British
Columbia. Cargo and Passenger vessels comprised 65 percent of the
transits and 88 percent of the vessels making those calls. Oil tankers
and barges comprised 33 percent of the transits and 10 percent of the
vessels. Commercial fishing vessels made the balance of the transits.
Ecology's data also indicates that the cargo and passenger vessels
likelihood of having an incident, near miss or spill is proportional to
their frequency of transit for they comprised 63 percent of the
incidents and spills in 2006 and 65 percent of the traffic. However,
they pose a greater challenge to the Coast Guard's inspection program
because they comprise 88 percent of the individual vessels making
transits through Washington waters in 2006. Preliminary results from
the most comprehensive vessel traffic risk assessment done to date for
the British Petroleum Cherry Point Environmental Impact Statement
suggest that tank vessels have a higher rate of incidences than non
tank vessels when you control for their frequency of transit, but cargo
and passenger vessels occur twice as prevalent along our waterways.
While oil tankers continue to pose the risk of the largest
catastrophic spill, freighters clearly are the more likely source of a
spill. This point is further clarified by the fact that the State
funded Emergency Response Tug, stationed in our port of Neah Bay during
the winter months since 1999, has responded to 21 cargo and passenger
vessels (58 percent), 10 tank vessels (28 percent) and 5 fishing
vessels (14 percent) to date. When it comes to needing tug assistance
it appears to be based on the proportion of the vessel type calling on
our waters with freighters being twice as likely to need assistance as
compared with tank vessels.
Being the homeport for the Navy's third largest port complex means
that commercial vessels are not our only source of risk. On August 4,
2006 the USS NEVADA, a Navy Trident submarine based at Naval Base
Kitsap-Bangor severed the towline of the tug PHYLLIS DUNLAP and its
barge at the entrance to the Strait of Juan de Fuca. The tug PHYLLIS
DUNLAP was transiting with two empty barges when the incident took
place. This incident is very similar to one that occurred off of Cape
Flattery in October 2003 when the U.S. Navy sub TOPEKA separated an
empty oil barge from its tow underscoring our diversity of risks.
Despite the fact that the Navy's Supervisor of Salvage has tremendous
expertise and equipment to respond to such incidents none of those
assets are stockpiled in the Pacific Northwest.
The Makah Tribe is currently contracted by oil spill response
organizations as first responders. The newly revised Washington State
Oil Spill Contingency Plan Rule (173-182 WAC) identifies the
establishment of Neah Bay as a primary response/staging area. This
action is supported by the mutual effort between the State of
Washington DOE and the MTC to identify the needed infrastructure
improvements to the Port of Neah Bay facilities to accommodate the
equipment staging requirements as well as expanding the role of tribal
members as first responders.
In the Consent Decree of the EXXON VALDEZ Oil Spill it was
determined that the lack of strategically located ports around Prince
William Sound with appropriate caches of equipment significantly
limited the effectiveness of the response.
IV. Addressing the Risk
It is an unfortunate fact that most maritime safety advances are
made in response to major accidents. The last most significant event
was the EXXON VALDEZ of 1989 after which Congress passed OPA 90. This
comprehensive overhaul of our Nation's oil spill policies directed the
Coast Guard to implemented the Salvage and Firefighting provisions of
OPA 90. In support of the OPA 90 mandates the National Academy of
Science has repeatedly found the U.S. Salvage posture to be far from
adequate.\1\ The grounding and break up of the bulk carrier NEW CARISSA
along the Oregon Coast magnified our inability to muster an appropriate
salvage response.\2\ We believe these examples serve as ample
motivation for the Coast Guard to complete the rulemaking called for by
Congress in OPA 90. Post-9/11 the Transportation Research Board has
found salvage capacities to be even more critical to respond to a
terrorist attack.\3\
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\1\ 1994 NAS Reassessment of the Marine Salvage Posture of the
United States.
\2\ ``Crisis on the Coast'' Federal On Scene Coordinator's Report
and Assessment of M/V NEW CARISSA Oil Spill Response CAPT M. Hall, USCG
MSO Portland, June 1999.
\3\ TRB 2003. Marine Salvage Capabilities Responding to Terrorist
Attacks in U.S. Ports--Actions to Improve Readiness.
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The following is an accounting of the Coast Guard's rulemaking
actions. On May 10, 2002 the Coast Guard published a Notice of Proposed
Rulemaking (NPRM) entitled ``Salvage and Marine Firefighting
Requirements; Vessel Response Plans for Oil; Proposed Rule,'' which
addressed requirements in 33 CFR Part 155 for vessel owners/operators
of vessels carrying Groups I through V petroleum oil as a primary cargo
to identify and ensure availability of salvage and marine firefighting
resources. This rulemaking, previously in the Office of Response (G-
MOR), has moved to the Office of Vessel Activities (CG-543). All
comments have been addressed and incorporated in the Final Rule for
Salvage and Marine Firefighting Requirements; Vessel Response Plans for
Oil.
On January 23, 2004, a notice of suspension was published in the
Federal Register, suspending the 24-hour requirement scheduled to
become effective on February 12, 2004, until February 12, 2007 (69 FR
3236). The Coast Guard has extend this suspension period for another 2
years to allow it to complete the rulemaking that will revise the
salvage and marine firefighting requirements. This extension is
effective as of February 12, 2007. Termination of the suspension will
be on February 12, 2009. The Final Rule is currently in its final
review at USCG Headquarters. In this final review, due to the age of
this rulemaking, it was determined that the Salvage & Marine
Firefighting rule is required to undergo an economic and regulatory
analysis before final USCG approval. After clearance at USCG
Headquarters, the rulemaking will then be submitted to the Department
of Homeland Security and then the U.S. Executive Office of Management
and Budget (OMB) for approval. It is anticipated that this Final Rule
will be published in 2008. LCDR Reed Kohberger is the point person, G-
5232 (202-372-1471).
In our February 15, 2006 comment letter to the U.S. Coast Guard
Salvage and Marine Firefighting Rule (USCG-1998-3417) we requested a
government-to-government consultation with Coast Guard HQ to discuss
how our treaty interests were being left out of the rulemaking. An
initial meeting with USCG Headquarters staff took in Neah Bay on June
1, 2006 which resulted in an invitation for the MTC to meet with senior
staff at Coast Guard headquarters in Washington, D.C. to further
discuss the formal inclusion of tribal treaty interests in the proposed
rulemaking. During our meeting we agreed with the Coast Guard that
there isn't a ``Coordination and Consultation'' policy currently
established in the Department of Homeland Security and therefore the
Coast Guard. The lack of a Tribal Consultation Policy makes it
problematic to not only formally consult with Indian tribal governments
but also to formally represent tribal interests in their rulemaking. We
pointed out that we also wanted to work with Coast Guard Headquarters
to assure the associated NEPA review process to the rulemaking be
completed in a manner that incorporates treaty interests. We further
pointed out the inclusion of treaty interests in the NEPA action could
serve as a tool to assist the Coast Guard in continuing to develop the
formal recognition of their trust responsibility to the Makah Tribal
governments in mitigating the risk posed by the transportation of oil
and cargo through the Makah Tribe's marine treaty area.
The formal inclusion of tribal cultural and resource values into
the cost benefit analysis applied to the OPA 90 Marine Salvage and
Firefighting proposed rulemaking would not only provide a thorough
representation of resources at risk but would also allow for more
effective oil spill prevention and response strategies be implemented
by Federal, state and tribal governments. The MTC has maintained as a
fundamental treaty right requirement, the need to integrate tribal
cultural and resource values into any cost-benefit analyses, regulatory
assessment and damage assessment model or any action the USCG is
involved with that impacts our treaty rights. In doing so the USCG
would began to lay the foundation work toward satisfying their Trust
Responsibility to the Makah Tribal Council.
In regard to the OPA 90 Marine Salvage and Firefighting Proposed
Rulemaking, it is clear to the MTC that the cost effectiveness of such
evaluations has only considered the cost of compliance with the rule as
the cost of not spilling (BNSR: barrels of oil not spilled or spilled
and removed from the environment). The cost to the marine environment
or those dependent on it for their cultural or economic livelihood is
not considered. Similarly, the Coast Guard's establishment of the High-
Volume Port Line (and associated spill response equipment) 70 miles
east from the open ocean is another example of how our treaty interests
not being appropriately considered.
The MTC believes in order for the USCG to adequately address our
treaty interests and their Trust Responsibility to the MTC, both of
which were excluded from the OPA 90 Programmatic Regulatory Assessment
used to select the preferred alternative in the Salvage and
Firefighting Rule, a permanent multi-mission tug should be stationed in
Neah Bay. The State of Washington funded rescue tug that has seasonally
protected our waters since 1999 has provided assistance to 36 vessels
to date, two in just the past month. This more than exemplifies its
value to the maritime community and underscores their need to
underwrite its expense that is minor as compared to the cost of
spilling on treaty protected resources and State of Washington waters.
It is also imperative that the Coast Guard assures the liability limits
keep up with the consumer price index.
The MTC supports laying the ground work for the oil industry to
station a permanent multi-mission tug at Neah Bay, WA as part of this
rule and we strongly recommend further that the Coast Guard use it's
regulatory authority to have the cargo and passenger vessels assume
their share of financial responsibility to support the stationing of
the tug with the implementation of the non-tank rule. We join
Washington State Governor Gregoire in urging the Congress to pass the
Coast Guard Authorization bill of 2008 to resolve this matter in a
timely fashion.
Vessel Response Plans: Non-Tank Vessels. The Coast Guard
Authorization Act signed by the President on August 9, 2004, requires
``nontank vessels'' to submit response plans by August 9, 2005. ``Non-
tank vessels'' are vessels of 400 gross tons and above which use oil
for propulsion. NVIC No. 01-05 was signed and published on February 4,
2005 to provide interim guidance to industry for the development and
review of non-tank vessel response plans. On June 24, 2005, the Coast
Guard published a Notice and Request for Comment in the Federal
Register. On February 23, 2006, the USCG published a Notice of
Availability to the public indicating that Navigation and Inspection
Circular No. 01-05 was updated and reissued as NVIC 01-05 Change 1.
This update was in response to questions and comments received from the
maritime industry. This rulemaking, previously in the Office of
Response (G-MOR), has moved to the Office of Vessel Activities (CG-
543). The President signed the Coast Guard and Maritime Transportation
Act of 2006 on July 11, 2006. Section 608 of the CGMTA 2006 contained
provisions to further amend the FWPCA with regard to applicability
standards for nontank vessels.
The Coast Guard is anticipating a 2008 release of the Notice of
Proposed Rule Making with public hearings to be held in various parts
of the U.S. The Final Rule is projected to be published in 2010. To
date, the Coast Guard has received 2,186 nontank vessel response plans
covering 12,075 vessels. LCDR Rob Smith is the project officer CG-5431
(202-3721226).
It is essential that Congress assure that the Coast Guard complete
this rulemaking in a more timely basis than proposed by the Coast
Guard, so that the public can be assured that tank and non-tank vessels
have response plans that are adequate to protect against the maximum
sized spill they can create. It is also imperative that the Coast Guard
recognizes legitimate umbrella plans that have been rigorously drilled
and which may cover many non-tank vessels calling on a particular
waterway instead of requiring each vessel to have to submit their own
plan. This could significantly streamline the rulemaking process.
V. Conclusion
During the past few years, the Makah Tribal Council has dedicated a
great deal of tribal assets toward incorporating treaty cultural and
resource protection interests into Federal and state oil spill
prevention, preparedness and response regulations. Our efforts thus far
have heightened the government-to-government oil pollution policy
concerns of the treaty tribes in Washington State, where there is not a
single mile of coastline that is not covered within the treaty-defined
area of one of the treaty tribes. The fact that the Coast Guard has not
developed formal protocols for consultation with tribal governments has
hampered our oil pollution efforts in the Northwest.
We strongly believe adequate standards of oil spill protection
along the outer Washington coast cannot be fully achieved without the
participation of the affected Indian Tribal governments. Without a
meaningful and formal government-to-government coordination and
consultation process in place to address oil pollution issues neither
the Federal Government or the Makah Tribal Council can effectively meet
their mutual trust responsibility to protect our natural resources. The
Makah Tribal Council views the development of a formal consultation
process with the USCG as a fundamental and efficient means to wed the
Public Trust Doctrine, which the Federal Government is pledged to
uphold, to the Federal Trust Responsibility to protect treaty reserved
rights with the Makah Indian Tribe, which the Federal Government is
obliged to uphold.
It is our genuine hope that we are able to formalize a vital
working relationship with the U.S. Coast Guard to address these
essential treaty resource and environmental protection goals. We join
Washington State Governor Christine Gregoire in strongly urging your
support to maintain the Chairman Senator Cantwell's oil spill
provisions in the FY 2008 Coast Guard Authorization Bill.
The MTC would like to thank you for your leadership and continued
vigilance regarding marine transportation safety in Washington State
and the Nation.
______
Matson Navigation Company
Oakland, CA, January 24, 2008
Hon. Maria Cantwell,
Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard,
Senate Committee on Commerce, Science, and Transportation,
U.S. Senate,
Washington, DC.
Madam Chairman:
On December 18, 2007 your Subcommittee on Oceans, Atmosphere,
Fisheries, and Coast Guard held a hearing on ``Oil Spills from Non-tank
Vessels''. Matson Navigation Company is a 125 year-old ocean shipping
company that today operates 13 Jones Act vessels engaged In the
carriage of container and RO/RO cargo between the U.S. Pacific Coast
and Hawaii, Guam, and Asia. Our West Coast terminals are located in
Seattle, Oakland, and Long Beach. For many years, Matson has been
deeply involved in the development and implementation of ship
operational procedures and designs that minimize the discharge of oil
into the marine environment. We commend you for holding this hearing
and pledge the availability of Matson's knowledgeable ship operations
personnel to assist the Subcommittee in developing useful
recommendations for lowering the risk of oil spills in the marine
environment.
We wish, however, to correct the record regarding a statement that
was introduced at the hearing concerning a Matson vessel. More
specifically, after describing heavy weather damage to the Matson
container ship SS KAUAI that occurred on December 3, 2007 off the
Washington State coastline, the Washington Oil Spill Advisory Council
stated that ``The vessel did not drift onto the rocks and spill oil
because the state-funded Neah Bay rescue tug launched to save the
stranded cargo vessel.'' The facts are that after departing Seattle,
the SS KAUAI was struck by a series of extremely high 60 foot waves
near Cape Flattery, Washington, that broke out six bridge windows, and
damaged several pieces of bridge navigation equipment, including the
primary steering system. As a result, the Master made a decision to
return to Seattle for repairs and to allow the passing of an intense NW
storm. The important point here is that the SS KAUAI made the return to
Seattle of over 100 nautical miles under its own power and using a
back-up, redundant steering system that is standard equipment on all
Matson oceangoing vessels and, Indeed, is required for all U.S.
registered ships. At no time was the SS Kauai adrift or stranded or
mechanically unable to maintain course and speed, although this Intense
storm obviously presented severe operational challenges.
It is not our purpose here to question the important role of the
Neah Bay rescue tug or the good intentions of the knowledgeable
witnesses who took the time and effort to testify at your December 18th
hearing. Matson simply wants to set the record straight on a point that
reflects directly on our ship operations and, therefore, on the core of
our organization. We have operated oceangoing ships in the Pacific
longer than any other American shipping company, and take great pride
in our ability to do so extremely well.
Thank you for taking these comments into consideration.
Sincerely,
Ronald J. Forest,
Senior Vice President Operations.
cc: P.M. Grill
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Admiral Thad W. Allen
Question 1. Is the Coast Guard actively enforcing vessel response
plans for non-tank vessels?
Answer. Please see the below text from the Coast Guard letter of
January 14, 2008 to Senator Ted Stevens, which addresses this issue. A
copy of this letter was also provided to your office and to Senators
Snowe and Inouye.
Dear Senator Stevens,
I am writing to advise you of the need to correct my testimony from
the December 18, 2007, hearing pertaining to oil spills from non-tank
vessels. During the hearing, you questioned me about the number of non-
tank vessels which have yet to submit response plans. I indicated that
any non-tank vessel calling on a U.S. port is required to have a Non-
tank Vessel Response Plan (NTVRP). I further added that vessels without
such plans are not permitted to call on U.S. ports; I have since
learned that this is incorrect. Specifically, there are instances where
both U.S. and foreign-flagged non-tank vessels have entered and
operated in the United States without a Coast Guard-reviewed NTVRP.
Absent the effect of a formal rule to implement the NTVRP required
by the Coast Guard Maritime Transportation Act of 2004 (MTA), as
amended in 2006, the fully enforceable requirement is the international
standard required under MARPOL Annex I. Annex I requires that non-tank
vessels over 400 gross tons have an approved Shipboard Oil Pollution
Emergency Plan (SOPEP).
The Coast Guard ensures vessels possess valid SOPEPs during Port
State Control examination and domestic inspections. However, these
standards are not as detailed and rigorous as those required by MTA. In
the case of M/V COSCO BUSAN, both the MTA-required NTVRP and
international SOPEP requirements were met.
I have initiated a review of the interim guidance provided to our
field commanders following the passage of MTA, the effectiveness of
that guidance, and a more accurate determination of the compliance
rate. I am accountable to ensure the statutory NTVRP requirement is met
and will take appropriate action. I am available to provide a more
comprehensive brief upon your return from holiday recess.
Thank you for your leadership on this important national issue. The
Coast Guard is committed to protecting the environment through
prevention and stands ready to answer any questions you may have. You
can reach me through my Senate Liaison Office. Identical letters have
been sent to Senator Cantwell, Senator Snowe, and Senator Inouye.
Question 2a. What steps has the Coast Guard taken to ensure the
solvency of the Oil Spill Liability Trust Fund?
Answer. Oil Spill Liability Trust Fund (OSLTF) solvency concerns
were addressed by Congress when it enacted the Energy Policy Act of
2005. That Act included a provision reinstating the tax on oil which
had lapsed in 1994. Treasury reports and estimates now show OSLTF
annual tax revenue of $250-$300 million. The OSLTF has a current
balance of $988M which includes approximately $79 million available for
Federal response. The OSLTF balance is expected to continue to increase
to approximately $2 billion by FY 2014 and then begin to decline again
after FY 2014 when the tax sunsets.
Question 2b. Why doesn't the Coast Guard track the amount of money
responsible parties expend in cleaning up oil spills?
Answer. The Federal focus is on the adequacy of responsible party
clean up activities and not the cost of those activities. For many of
the thousands of incidents reported annually, responsible parties are
able to clean up their spills with little or no Federal involvement.
For incidents where Federal authorities manage the overall response,
only summary cost data is captured as it reflects the RP's effort and
progress associated with a complete clean up. Responsible parties are,
however, required to report detailed response cost documentation when
presenting a claim for reimbursement from the OSLTF under the
provisions of the Oil Pollution Act of 1990 (OPA).
Question 2c. How do you know if the private sector is paying its
``fair share'' if the Coast Guard is not tracking private sector costs
of an incident?
Answer. Under OPA Title I a responsible party that does not clean
up the oil spill solely through its own efforts is strictly liable for
the Federal, state and private party clean up costs. If the responsible
party does not pay or settle those costs the OSLTF is available to pay
claimants and the Coast Guard will seek recourse as appropriate against
the responsible party for all Federal removal costs and damages,
including any claims paid. The responsible party's ``share'' will also
be affected by other circumstances, including whether the applicable
OPA liability limit applies or liability is unlimited; whether one of
the OPA narrow defenses to liability applies (i.e., solely caused by
acts of god, war or third party); and/or the responsible party's
ability to pay its liability.
Question 3a. Many have expressed concern that the response to the
San Francisco oil spill was not as effective as it should have been--
despite the fact that San Francisco recently had a major ``Safe Seas''
drill. How would you rate the response to the San Francisco oil spill?
Answer. The response to the M/V COSCO BUSAN oil spill provided
important lessons-learned for the Coast Guard. The deployment of
equipment exceeded state and Federal requirements for on-water recovery
capability and enabled a greater than average oil recovery.
Nonetheless, there is opportunity for improvement in preparedness and
response coordination activities.
The Coast Guard chartered an Incident Specific Preparedness Review
(ISPR) on November 14, 2007 to review the strengths and weaknesses of
the San Francisco Bay Area Contingency Plan and to analyze the
effectiveness of the Unified Command response to the COSCO BUSAN oil
spill. The report includes approximately 100 lessons-learned and 128
recommendations to improve preparedness and response in the San
Francisco Bay area. The recommendations fall into several broad
categories including exercises and drills, area contingency planning,
training, initial actions and unified command. A more detailed review
is on-going to determine which findings, recommendations, and other
report information should be forwarded to various departments,
branches, and field units in the Coast Guard or other agencies for
action to produce positive, effective, preparedness improvements that
will benefit the San Francisco Bay region and the Nation as a whole.
Question 3b. If the response was lacking despite the recent Safe
Seas drill, what does that mean? Are we so woefully under-prepared that
even a Safe Seas drill could not guarantee an effective response?
Answer. The Safe Seas and other drills are designed to test and
renew working relationships while providing feedback on the
effectiveness of response. Safe Seas was a successful drill in that it
improved interagency coordination and preparedness for response. The
drill also identified lessons-learned for use among the spill response
community. With respect to the M/V COSCO BUSAN response, we will review
the recommendations of the ISPR as noted above.
Question 4a. How often does the Coast Guard conduct drills on oil
spill response?
Answer. The requirement for exercises and drills on oil spill
response are established in the National Preparedness for Response
Exercise Program (PREP) Guidelines, August 2002. These exercises
typically include responsible parties and their contractors. The
exercise requirements apply to each of the Area Committees. In some
cases, a Coast Guard Sector may have more than one Area Committee. The
PREP guidelines call for each Area Committee to conduct annually:
four--Notification Exercises per Area Contingency Plan (ACP), one--Area
Equipment Deployment Exercise per ACP, one--Area Spill Management Team
``Table-top'' exercise, and one--Government/Industry Led Full-Scale
Exercise (FSE) (triennially). On average, nationwide, the PREP
Guidelines call for 4-6 governmental FSEs led by the government per
year. Each Federal on Scene Commander (FOSC) and/or Captain of the Port
(COTP) can conduct up to four discretionary Government-Initiated
Unannounced Exercises per area per year.
Question 4b. Do these drills include responsible parties and their
contractors?
Answer. Yes, these drills normally involve responsible parties,
contractors, and other parties.
Question 4c. How do these drills and preparations vary
geographically? Do they happen regularly in all regions?
Answer. Coast Guard oil spill exercise regulations, the PREP
Guidelines, and other Coast Guard-led oil spill preparedness efforts
apply nationally. The Coast Guard strives for uniform enforcement and
preparedness efforts across all geographic regions.
Question 4d. What geographic regions are strongest in this regard?
Which are the weakest?
Answer. As described above, the Coast Guard's exercise and planning
activities are national, and all areas of the country are given equal
standing. The primary components of this system include the National
Response Framework, the National Contingency Plan, the National
Preparedness for Response Exercise Program (PREP) Guidelines, and Coast
Guard regulations that apply uniformly to all geographic areas of the
country. Through these programs, the Coast Guard strives to establish
and maintain a consistently high level of preparedness across the
country.
Question 4e. Do you consider the San Francisco area to be among the
strongest and most well-prepared regions to respond to oil spills?
Answer. While the Coast Guard leads oil spill preparedness efforts
in the coastal area as described above, many other agencies and
organizations contribute to the effort. While the Coast Guard does not
specifically rank oil spill preparedness between geographic areas, the
San Francisco area benefits from the skill of agencies such as CA OSPR,
and the enthusiasm of its local citizens and non-government
organizations is especially distinguishing.
Question 5. Recently, I've been hearing from constituents who are
concerned that the Coast Guard is falling behind in its traditional
missions. What should I tell my constituents who have concerns that the
Coast Guard is no longer providing the level of service on traditional
missions as it once did?
Answer. The public should know the Coast Guard is a multi-mission
service and on duty 24/7. We continue to meet our many responsibilities
by balancing risk and resources against competing mission requirements.
We assess risk and assign assets with a view to our highest priority,
the safety of citizens. The Coast Guard ensures the safe operation and
navigation of some 20,000 U.S. and foreign-flagged vessels. We conduct
over 70,000 domestic vessel inspections and 10,000 port state control
inspections each year to safeguard maritime commerce, international
trade and supply chain security. We also conduct 14,000 casualty,
suspension and revocation, and civil penalty cases annually to prevent
maritime disasters.
Additionally, many of the resources, competencies and authorities
needed to assure security are the same needed to enhance maritime
safety and other traditional missions. As we refine our risk protocols
and build additional interagency and civil/military partnerships, the
Coast Guard is better able to balance resource and mission
requirements. Moreover, the Coast Guard is taking significant
organizational steps to improve local preparedness and response, and
moving aggressively to ensure we have the right mix of assets and
authorities to provide in place the level of service the American
public expects and requires.
Question 6. What portion of the Coast Guard's budget is devoted to
oil spill prevention and response? Has oil spill prevention and
response experienced a decrease in funding and/or staffing in the Coast
Guard since 9/11? What are the implications of this? Is it possible
that we won't realize the full impact of this until a major spill
happens and it is too late?
Answer. Oil spill prevention and response is accomplished through
the Coast Guard's extensive authorities, and layered prevention and
response capabilities. Spill prevention and response is a major
component of the Coast Guard's Marine Safety, Aids to Navigation, and
Marine Environmental Protection missions, which collectively represent
28 percent percent of the Coast Guard's operating budget.
The Coast Guard's prevention and response model is based on all
hazards-all threats. As such, resources allocated to prevention and
response may be called upon by field commanders for other response
efforts as warranted. We are seeking to grow the Marine Safety Program
in FY09. Specifically, the FY 2009 President's budget requests an
additional $20M and 276 FTE exclusively for the Coast Guard's Marine
Safety Program.
Moreover, the recent COSCO BUSAN and associated Incident Specific
Preparedness Review (ISPR), in addition to annual reviews of Area
Contingency plans, provide for case by case and continuous review of
the Coast Guard, inter-agency, and stakeholder response capacity. We
will institutionalize lessons-learned from the ISPR to improve future
efforts.
Question 7. How does the rotation of Coast Guard personnel impact
oil spill preparedness and response?
Answer. The rotation of active duty Coast Guard personnel enhances
oil spill preparedness and response by promoting the sharing and
dissemination of knowledge and experience among Coast Guard Commands.
As personnel transfer into new commands they spread skills and
experiences they have developed from other units across the service.
The continuing exercises and drills on oil spill responses prepare,
maintain, and ensure rotating CG personnel have the expertise,
knowledge, and leadership for diverse assignments and major responses.
This knowledge and experience is shared throughout the Coast Guard.
This system, in combination with permanent Coast Guard civilian
positions in each region, ensures continuity with an infusion of
diverse spill response experience.
Question 8. Could you please explain the powers and limitations
that the Coast Guard has in directing vessels, vessel traffic, and
vessel movement--particularly in times of emergency. Can the Coast
Guard give orders to a vessel in the same way that the FAA can give
orders to planes?
Answer. The Coast Guard may exercise authority granted to it by the
Ports and Waterways Safety Act (33 U.S.C. 1221 et. seq.) to issue
orders to vessels it considers necessary in the interest of marine or
navigational safety. This authority may be similar to the type of
authority that the FAA enjoys for issuing orders to aircraft. In
certain ports, many large commercial vessels must participate in a
Vessel Traffic Service (VTS) that is monitored and operated by the
Coast Guard. Unlike the FAA, a VTS does not regularly issue particular
vessel navigation orders because of the nature of the marine
environment and the unique factors that must be considered in order to
safely navigate a large commercial vessel. These factors are different
than those faced by the FAA. For instance, not all commercial vessels
carry, or are required to carry, transponders and only vessels of a
particular type are required to check-in and use VTS services. Indeed,
there are numerous smaller vessels that are not required to be VTS
users, may not carry transponders, and consequently the VTS may not
have a full operational picture of the activities of those vessels.
Accordingly, when large commercial vessels are navigating within a
VTS area, it is incumbent on them to rely on typical safe navigation
techniques such as keeping a proper and constant visual look-out,
listening for other vessels' sound signals, and monitoring ship surface
radar for other marine traffic. As such, when a large commercial vessel
maneuvers, it will be able to take into account the variety of factors
posed by other marine traffic. More important, it is critical to
recognize that each vessel has unique handling characteristics that
will react differently based on the ever changing dynamics of the
marine environment. Tide, current, wind, time of day and vessel
operational capabilities will all be evaluated by the vessel operator
in order to determine the exact rudder, engine and other commands that
are necessary for proper navigation. Even though the Coast Guard has
authority to issue particular vessel orders, the Service exercises
significant restraint in doing so in recognition of the fact that the
vessel operator may have greater situational awareness because of their
familiarity with the ship and positioning on its bridge. In essence,
the FAA issues orders within a more regulated, controlled, and
predictable operational picture than is available in the marine
environment.
Question 9. Would a more FAA-like set of powers for the Coast Guard
help to avoid oil spills and vessel collisions in the future? What
would be the advantages and disadvantages of such powers? What would
the implications be for the maritime industry? For the Coast Guard?
Would such a setup even be feasible in the maritime world?
Answer. No, an FAA-like power structure is not optimal for the
marine environment. The Coast Guard has extensive authorities, such as
the Ports and Waterways Safety Act (33 U.S.C. 1221 et. seq.) for
controlling vessel traffic and prevention of oil spills. These
authorities are similar to those of the FAA for aviation.
It is unknown if any technology exists that would allow the same
level of surveillance of waters that air traffic control has of the air
and if any risk reduction would be realized. Of particular concern with
such a program would be how it could account for the unique hazards and
demands of maritime navigation safety which are largely informed by
information received on the bridge of the ship, including from visual
lookouts, listening for sound signals from other vessels, and
monitoring ship surface radar for other marine traffic.
Moreover, the regulations required to mandate participation in the
Vessel Traffic Service by every vessel, from the smallest kayak to the
largest container ship, are unlikely to be implemented without
substantial resistance from every sector of the maritime community.
This action would present an enormous shift in the exercise of vessel
traffic management authority and a huge investment in an unprecedented
program. Therefore, implementation and enforcement of such an FAA-like
regulatory structure would be an enormous task and is viewed as an
unfeasible option.
Question 10. Most of the time, state and Federal pilots can rely
upon the equipment onboard the ship to steer the vessel safely. On rare
occasions, however, the equipment is not reliable. Should pilots have
laptops that would allow them to link to an independent source of
navigation information while piloting ships? Wouldn't this help reduce
possible accidents and spills? Isn't it just common sense to have an
independent, backup source of information available just in case?
Answer. This is an active topic of discussion among vessel
operators, pilots associations, international organizations, and the
U.S. Coast Guard. There are perceived advantages and disadvantages of
pilot carry-aboard equipment, such as laptop computers. Advantages of
pilot carry-aboard equipment include pilot familiarity and
configuration particular to a given waterway. However, while laptops do
provide these benefits, their use tends to reduce participation in the
actual navigation process by the vessel's Bridge Management Team.
Reducing the role of the ship's crew in directing the movement of the
vessel places the pilot in the position of being a single point of
failure and thus has the potential for reducing overall safety.
The International Convention for the Safety of Life at Sea (SOLAS)
contains comprehensive requirements for the navigation equipment to be
fitted on ships. The Convention is amended periodically as new
technology is developed. Coast Guard regulations require that SOLAS
vessels have a ``Pilot Plug'' installed so that those pilots who wish
to use a carry aboard system may have access to the ship's Automatic
Identification System and its navigation sensors.
For a pilot carry-aboard laptop to be a useful tool, it would have
to be designed and certified to standards on par with the standards for
navigation equipment already fitted on the ship. Anything less could
increase the risk of a casualty. Nevertheless, such pilot carry-aboard
equipment could help reduce possible accidents and spills as long as it
did not adversely impact coordination among the Bridge Management Team.
Question 11. The navigational equipment on vessels can vary
substantially--wouldn't a standardized suite of equipment among all
vessels help to prevent accidents in the future?
Answer. Navigation equipment on ships subject to the International
Convention for the Safety of Life at Sea (SOLAS) must meet specific
international standards. For instance, all radars must meet the
International Maritime Organization (IMO) radar performance standards
and the International Electrotechnical Commission (IEC) technical and
testing standards for radar. The only way the equipment can differ is
in added features offered by individual manufacturers. This allows ship
owners to choose equipment that is built to a firm standard but also
having additional capabilities that are of use in their ships'
operating environment. Because of this international performance
regime, SOLAS ships do have standardized equipment suites that only
vary to the degree manufacturers enhance the basic equipment. However,
manufacturers, ship-owners and vessel operators are considering
development of a proposal for a standardized mode of operation that all
manufacturers could incorporate into their system designs along with
their individually added features.
Question 12. Do you believe that vessel operators should function
under a single common language? Isn't language sometimes a barrier that
can increase the risk of miscommunications and accidents?
Answer. Yes. The U.S. Coast Guard recognizes the importance of safe
bridge-to-bridge and bridge-to-shore communications using a single
common language. Contained at section 160.113 of title 33 of the Code
of Federal Regulations is a rule promulgated pursuant to the authority
of the Ports and Tanker Safety Act that requires all tank ships
underway in U.S. waters to operate with at least one licensed deck
officer who is capable of communicating in English.
The International Maritime Organization and its Member States have
recognized the importance of communications using a single common
language as evident in Chapter V, Regulation 15 of the International
Convention for the Safety of Life at Sea (SOLAS), which requires every
ship subject to SOLAS to designate a working language that all crew
members are able to understand and use to ensure effective crew
performance. SOLAS also requires that all ships subject to SOLAS use
English as the working language for bridge-to-bridge and bridge-to-
shore safety communications and for communications between the pilot
and bridge watchkeeping personnel, as well.
The International Convention on Standards of Training,
Certification and Watchkeeping for Seafarers, 1978 as amended (STCW
Convention), requires all officers in charge of a navigational watch to
demonstrate adequate knowledge of English using the Standard Marine
Communication Phrases (SCMP) published by the International Maritime
Organization. SMCP provides a simplified and easily understood version
of maritime English. The STCW Convention also requires all officers in
charge of an engineering watch to demonstrate adequate knowledge in
English to enable the officer to use engineering publications and to
perform engineering duties.
During Coast Guard inspections of commercial vessels, Coast Guard
personnel ensure that ships fulfill these requirements.
Question 13. While all federally-licensed pilots receive the same
training, many pilots consider the most substantial part of their
training to be the state training they receive in addition to the
training for their Federal license. Yet, standards and training at the
state level can vary substantially. Are some states and regions more
vulnerable because of their state piloting license requirements? Is
there a need for more stringent requirements for a Federal pilots
license?
Answer. The Coast Guard has no information to suggest that any
particular state has piloting license requirements that make it ``more
vulnerable'' than any other state. The authority for states to regulate
pilots is addressed in 46 U.S.C. Chapter 85. The Coast Guard does not
interfere with this authority, and we do not interject into the
piloting licensing requirements of the individual states.
The Coast Guard does not have any information to suggest there is a
need for ``more stringent'' requirements for Federal pilots licenses.
The requirements for Federal pilots licenses are established in statute
(46 U.S.C. 7101(e)) and specified in 46 CFR Part 10, Subpart G. The
requirements include, as applicable: service requirements, route
familiarization requirements, examination requirements, annual physical
examination requirements, tonnage requirements and requirements for
maintaining current knowledge of waters to be navigated.
Finally, it is important to note the limitations of when an
individual is actually ``acting under the authority'' of a Federal
pilot license. In accordance with 46 U.S.C. 8501 and 46 CFR 15.812 ,
only U.S. flag vessels not sailing on register may require a Federal
pilot (or an individual qualified to ``serve as'' a pilot). U.S. flag
vessels sailing on register (e.g., to/from a foreign port), and all
foreign flag vessels, do not require Federal pilotage.
Question 14. I understand that after several large non-tank vessel
accidents, including the SELENDANG AYU in Alaska, and the NEW CARISSA
in Oregon, that the wrecks were not fully removed. How can we allow a
shipping company to leave their wreckage on the shoreline?
Answer. In general, once the Federal On-Scene Coordinator
determines the threat of pollution has been mitigated and/or the
situation no longer poses the threat of pollution, clean-up required by
the National Contingency plan will cease and further removal actions
are the responsibility of the responsible party. By law the Coast Guard
is responsible for pollution response and only under certain conditions
would get involved in a vessel's salvage. Generally, the vessel's owner
is responsible for salvage.
Coast Guard authority to conduct and direct pollution response
actions is derived from the Federal Waters Pollution Control Act/Clean
Water Act and other legislation. This authority does not extend to the
removal of wrecks once the threat of the associated oil spill and/or
hazardous material release has been mitigated. At that point, the
vessel is the responsibility of the vessel's owner. In some cases, a
Federal On-Scene Coordinator may determine an abandoned vessel
represents an ongoing threat because it is likely to become an illegal
dump site. In these cases, the Coast Guard may direct or take action to
remove the vessel.
The Coast Guard works with the affected state, the U.S. Army Corps
of Engineers (USACE), National Oceanic and Atmospheric Administration
(NOAA), and other appropriate agencies to assess the threats such
vessels may pose. In particular, the Coast Guard works with NOAA to
prioritize abandoned vessels through their Abandoned Vessel Program,
which prioritizes abandoned vessel removal based on impact to
``sensitive areas'' and available Federal funds.
Question 15a. Washington State recently completed the response to
the wreck of the S.S. CATALA. This vessel ran aground in 1965, but only
recently was the wreck cleaned of fuel oil. I understand that over
34,000 gallons of fuel was removed, preventing contamination of the
adjacent state park. Are there other wrecks that we should proactively
be responding to before oil is spilled?
Answer. There are a number of wrecks in U.S. waters which may
contain oil or hazardous materials, but they may not necessarily pose
an immediate risk. For instance, the USS ARIZONA is known to have fuel
onboard but studies indicate it does not pose an immediate risk to the
environment. Identifying all such vessels within the U.S. exclusive
economic zones and assessing their potential for additional pollution
would require significant interagency effort and resources.
Presently, the Coast Guard supports a National Oceanographic and
Atmospheric Administration (NOAA) initiative which identifies and
prioritizes wrecks located within marine sanctuaries. When the Coast
Guard becomes aware of such vessels, they are assessed and mitigated as
possible.
Question 15b. Does the Federal Oil Spill fund cover these kinds of
incidents?
Answer. Yes. The OSTLF will generally cover the cost of removing
fuel from abandoned vessels if the Federal On-Scene Coordinator (FOSC)
determines a wreck poses a substantial threat of pollution to U.S.
waters and if a responsible party cannot be identified.
Question 16. Has the government of South Korea requested technical
assistance from the U.S. Coast Guard in its response to the recent
major oil spill in that country? If so, how are you providing
assistance? What is the U.S. Coast Guard's involvement and how long do
we anticipate that involvement to continue?
Answer. On December 10, 2007, the U.S. Coast Guard made an offer of
technical assistance to the Korean Coast Guard (KCG) following the oil
spill which occurred after a barge collided with the M/V HEBEI SPIRIT
on December 8, 2007. On December 12, the KCG accepted the U.S. Coast
Guard's offer. On December 13, the U.S. Technical Assist Team (TAT)
arrived in Korea; the TAT consisted of three members of the Pacific
Strike Team and one Scientific Support Coordinator from NOAA. The U.S.
Coast Guard and NOAA team assisted the KCG with their response
priorities, which included protection of natural resources including
the fishing industry, the migratory bird population, and tourist
beaches. The TAT worked closely with other international teams (i.e.,
Ministry of Maritime Affairs and Fisheries, the Korean Oceanographic
Research and Development Institute, and the KCG to provide an
evaluation of the overall effectiveness and management of the oil spill
response.) Additionally, the TAT assisted KCG in press conference
preparation. The TAT departed Korea on December 22, 2007.
Question 17. What is the most appropriate, safe, and helpful role
for volunteers in the wake of a major oil spill like the one that just
occurred in San Francisco? What training is required in order for
volunteers to participate in post-spill cleanup activities?
In the wake of a major spill, citizens often want desperately to
help in any way they can, even when this might be a logistical
nightmare. What is the best way to accomplish this when oil cleanup
often involves dealing with hazardous materials that require extensive
training to handle?
Answer. The best role for volunteers in the wake of an oil spill is
through pre-existing non-government organizations such as the
International Bird Rescue Research Center and Tri-State Bird Rescue.
These and similar organizations provide training on how to rescue and
rehabilitate oiled wildlife, and have contributed to the success of
many oil spill response efforts.
Use of previously untrained volunteers in an oil spill response
operation poses many challenges. Safety requirements, such as Hazardous
Waste Operations and Emergency Response (HAZWOPER) certification,
generally require a minimum of 8-24 hours of training before an
individual can safely work in or near the hazardous environment of an
oil spill. Even with this initial safety training completed, volunteer
responders must receive additional training and direction to
effectively participate in response operation. The Coast Guard National
Response Team is developing guidelines on how to best incorporate
volunteers into an oil spill operation and enhance citizen preparation
throughout the country.
Question 18. The `Great Circle Route' is a main trade route between
the U.S. West Coast and Asia. Vessels leave ports on the West Coast and
cut through the Aleutian Islands in Alaska en route to ports in China
and Japan. There have been a number of spills in Alaska from vessels on
this route. In 2004, the 738-foot SELENDANG AYU broke apart spilling
330,000 gallons of heavy oil and spilling its entire cargo of soybeans.
That voyage originated in Seattle. Last year the 654 foot COUGAR ACE
nearly capsized and sank. It was loaded with 142,000 gallons of fuel
and 4,800 automobiles and was heading to Portland, OR. Only heroic
salvage efforts kept the vessel afloat. One salvor died. Has a risk
assessment been completed for this area? What is being done to improve
vessel traffic safety?
Answer. A Ports and Waterways Safety Assessment (PAWSA) was
completed for the Aleutian Islands in 2006. PAWSA is a rudimentary risk
assessment process that gathers and evaluates expert opinion on the
navigation risk character of a waterway. It resulted in several
recommendations to improve vessel traffic safety, including enhanced
vessel tracking, improved meteorological information and updated
navigational information. The Coast Guard continues to work with
stakeholders in the area to evaluate and implement the recommended
improvements. The Coast Guard has contracted with the Marine Board of
the National Academy of Sciences to design a comprehensive risk
assessment process specifically targeted for the Aleutian Chain and
ships on a great circle transit. This initial study is expected to be
completed by May 2008. The actual assessment will then be completed
through a competitive contractual effort.
Additionally, the Coast Guard has an Automatic Identification
System (AIS) tracking receiver in the Unimak Pass region to track
vessels equipped with AIS. The Coast Guard is also helping to lead
international efforts for implementation of Long Range Identification
and Tracking, which would allow the monitoring of vessels transiting
the great circle route. The PAWSA recommendations and enhanced tracking
will help improve vessel traffic safety along this great circle route.
______
Response to Written Questions Submitted by Hon. John F. Kerry to
Admiral Thad W. Allen
Question. The State of Massachusetts passed the Oil Spill
Prevention Act of 2004 to help protect it's waterways, but the Coast
Guard continues to challenge this law in court. In several other States
the Coast Guard did not challenge similar legislation. There have been
several serious oil spills in Buzzards Bay. Why does the Coast Guard
not allow Buzzards Bay to manage its own environmental protection
activities?
Answer. As a preliminary matter, the Federal Government's current
challenge concerns only two provisions of the Massachusetts law. The
other provisions are either unchallenged or the Federal district court
judge's opinion holding the provisions unconstitutional was not
appealed by the state. The two provisions that remain subject to the
litigation are Massachusetts' requirement for a tug escort for double
hull tank vessels, and a provision requiring certain manning on tank
vessels. The Coast Guard cannot comment on that litigation; all
questions with respect to it must be referred to the Department of
Justice.
However, in addition to the explanation that is contained in the
rulemakings document published in the Federal Register at 72 FR 50052,
the following information explains the Regulated Navigation Area (RNA)
in Buzzards Bay and why the Massachusetts rules are in conflict.
In August 2007, the First Coast Guard District published amendments
to an existing RNA that includes Buzzards Bay. The rule accomplishes
four objectives:
(1) It requires tug escorts for single-hull tankers transiting
Buzzards Bay and carrying 5,000 or more barrels of oil or other
hazardous material.
(2) It requires a federally licensed pilot, in addition to the
crew, to be onboard the primary tug during the transit.
(3) It maintains the recommended route for tankers as
``recommended'' vice mandatory to allow mariners maximum
flexibility in the event of unusual circumstances; and
(4) It establishes a vessel movement reporting system to better
track and monitor tanker movements in the Bay.
The Commonwealth of Massachusetts' rule, currently being challenged
in Federal court, requires tug escorts and state licensed pilots for
double-hulled tankers, as well. During the rulemaking process, the
State asked that the Coast Guard adopt the same provisions in the State
rule as a part of the Federal rule. After careful consideration, the
Coast Guard rejected the State's proposal, for the following reasons:
1. As stated in the preamble to the Final Rule, the Coast Guard
believes that double hulls provide a sufficient margin of
safety for tankers transiting Buzzards Bay. The bottom
characteristics of the Bay are primarily rocky--a condition
double hulls are designed to protect against. The State has
repeatedly cited a situation in the Gulf of Mexico where a
double-hulled tanker was involved in a spill as justification
for a tug escort for double hull tank vessels. However, the
Gulf of Mexico incident presented a unique set of facts--a
tanker struck a submerged, uncharted oil platform that sank
during Hurricane Rita. These facts are unlikely to be repeated
in Buzzards Bay.
2. As Rear Admiral Sullivan, the Coast Guard First District
Commander, stated when the final rules were published, the
Coast Guard is seeking opportunities to create economic
incentives for shippers to use double hull tankers (or stated
conversely, to discourage the use of single hull tank vessels).
The State's rule, by requiring tug escorts of both single and
double hull tank vessels, removes that incentive. Prior to the
B-120 spill in 2003, approximately 20 percent of tanker
transits through Buzzards Bay were in double hull tankers. In
2005, that percentage rose to nearly 58 percent, and has
remained relatively constant at that level. The Coast Guard
seeks to increase that percentage; our regulatory choice (which
creates an economic disincentive to use single hull tank
barges) is one method of accomplishing that goal. By Federal
statute, single hull tankers will be largely phased out in the
United States by 2015. The Coast Guard has no authority to
accelerate that timetable. In contrast, the international
phase-out will be largely complete by 2010. Without double hull
incentives in certain sensitive areas like Estuaries of
National Significance (Buzzards Bay is so designated), use of
single hull tankers might conceivably increase.
3. It has long been the Coast Guard's position that consistent,
uniform national and international regulation is the most
effective method to ensure navigation safety and protection of
the marine environment. The majority of maritime accidents are
caused by human error, and a confused mariner is an unsafe
mariner. Conflicting Federal and state regulations can create
such confusion. The Coast Guard wants mariners to concentrate
on navigating safely, not on whether a state rule or a Federal
rule applies in a certain waterway.
RNA's, such as the one covering Buzzards Bay, are created under the
authority of the Ports and Waterways Safety Act of 1972, as amended.
That statute requires the Coast Guard to consult and work closely with
affected states before promulgating any new rules regulating vessel
traffic. The Coast Guard takes that mandate very seriously, as
interaction with our State and local partners is a crucial component of
developing sound, sensible rules. In the case of the Buzzards Bay rule,
the Coast Guard coordinated closely with State and local governments
through briefings, public hearings and by giving the Commonwealth of
Massachusetts and several cities and towns formal consultative status
during the rulemaking process. In the final analysis, our nation, as
evident in the Federalist Papers and in numerous subsequent
Congressional and Supreme Court actions, has long recognized the need
to ultimately speak with one voice on maritime matters. The actions of
the Coast Guard throughout this rulemaking process have been consistent
with those objectives, while always keeping in mind the value and
importance of input from all stakeholders.
As for tug escort rules elsewhere, San Francisco Bay, Prince
William Sound and Puget Sound are the only other places where there are
tug escort rules for tankers. The conditions in those places, as well
as the statutory and regulatory history for their creation, are
sufficiently distinct that they should not be compared to Buzzard's Bay
to determine what requirements should exist in Buzzard's Bay. For
example, in San Francisco, there are no Federal tug escort rules with
which the State of California's rule might conflict, and no indication
that there is a need for any Federal tug escort regulation. In Prince
William Sound, the rules are statutorily mandated as part of Oil
Pollution Act of 1990. In Puget Sound, the tank vessels requiring
escort serve only ports in the State of Washington, whereas in Buzzards
Bay they serve several states (Rhode Island, Connecticut, New York, New
Hampshire and Maine) in addition to Massachusetts, and thus further
supports the need for Federal uniformity. Additionally, the law
established by the Supreme Court in U.S. v. Locke in 2000, strengthened
and clarified how Federal rules applicable to vessel regulation preempt
State rules. This strengthened Federal preemption regime for vessel
regulation was not as clear when the Puget Sound rules were adopted in
1994.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Susan A. Fleming
Question 1. Right now a single-hulled tanker has a limit of $3,000
per gross ton, while freighters are only $950 per gross ton. Do you
think that tank and non-tank vessels should have comparable liability
limits?
Answer. The liability limits for non-tank vessels and tank barges'
liability limits should be more commensurate with their historic spill
costs, and as such, in our September 2007 report, we recommended that
the limits be adjusted based on our analysis of major oil spills.
Specifically, we found that for certain vessel types, such as tank
barges, current liability limits appear disproportionately low relative
to their historic spill costs--and as a result, the Oil Spill Liability
Trust Fund (Fund) may continue to pay tens of millions for spills that
exceed the responsible parties' limits of liability. We also found that
liability limits have not been routinely adjusted for significant
changes in inflation--resulting in the Fund being exposed to about $39
million in liability claims for the 51 major spills between 1990 and
2006 that could have been saved if the limits had been adjusted for
inflation. Based on these findings, we recommended that (1) the Coast
Guard determine whether and how liability limits should be changed, by
vessel type, and make recommendations about these changes to the
Congress and (2) adjust the limits of liability for vessels every 3
years to reflect changes in inflation, as appropriate.
I should note that spills in which the costs exceed the limit of
liability are rare (42 since the enactment of Oil Pollution Act of
1990, according to the Coast Guard). However, when they do occur, they
can be expensive and very costly to the Federal Government. Thus, we
believe adjustments are warranted.
Question 2. How would you describe the current fiscal condition of
the Oil Spill Liability Trust Fund?
Answer. We did not evaluate the fiscal condition of the Fund. At
the end of Fiscal Year 2006, however, the balance of the Fund was about
$604 million, which is well below its peak of $1.2 billion in 2000.
With the reinstatement of the barrel tax in April 2006, the National
Pollution Funds Center anticipates that the Fund will be able to cover
its projected noncatastrophic liabilities. However, there are other
potential challenges that could affect the Fund's condition and place
it at risk, such as additional natural resource damage claims that
could be made on spills that have already been cleaned up, potential
response costs and damage claims from previously sunken vessels that
may discharge oil in the future, and spills that may occur without an
identifiable source, and therefore, no responsible party to pay for
response costs and damage claims. Furthermore, because the current
liability limits appear disproportionately low relative to their
historic spill costs for some vessels, the Fund may continue to pay
tens of millions for spills that exceed the responsible parties' limits
of liability.
Question 3. How much of the Trust Fund is devoted to drills and
exercises to prepare for oil spill response?
Answer. Our 2007 report did not examine the amount of Fund
expenditures used for drills and exercises to prepare for oil spill
response. However, I would note that in our bodies of work, such as on
homeland security issues, we have identified drills and exercises as an
important component in preparedness efforts. Based on previous GAO
work, we also know that the Coast Guard also has an exercise program--
known as the Spills of National Significance exercise program--to test
national level response capabilities. This program is focused on
exercising the entire response system at the local, regional and
national level using large-scale, high probability oil and hazardous
material incidents that result from unintentional causes such as
maritime accidents or natural disasters. A recent program exercise, in
June 2007, tested the response and recovery to an oil and hazardous
materials release in the wake of a large scale earthquake in the
Mississippi and Ohio River valleys. According to Coast Guard officials,
there was a multi-agency oil spill response exercise, called Safe Seas,
held in the San Francisco area in August 2006.
Question 4. Spills are infrequent, but the public demands a swift
and effective response and prompt restoration. Yes or no: are
sufficient resources being spent on training and preparedness so that
when spills happen the agencies are ready to respond?
Answer. Our 2007 report did not examine the resources spent on the
Coast Guard's training and preparedness efforts, so we do not know the
extent to which sufficient resources are being spent on training and
preparing for spills. However, I would note that in our bodies of work,
such as on homeland security issues, we have identified drills and
exercises as an important component in preparedness efforts. But, as we
heard from agency and private-sector officials, no two oil spills are
the same and each presents challenges that are different than any other
spill.
Question 5. Despite the fact that oil spills occur on a regular
basis throughout the United States, I understand that we do not have a
complete understanding of how to most efficiently respond to these
events. Is additional research in this field needed? If so, are there
any areas of high priority?
Answer. Our 2007 report did not examine the efficiency of spill
response. As we heard from industry experts and agency officials, no
two oil spills are the same and each presents challenges that are
different than any other spill. Some private sector officials we spoke
with, however, cited two challenges facing spill response efforts.
First, Coast Guard officials are increasingly inexperienced in handling
spill response, in part because the Coast Guard's mission has been
increased to include homeland security initiatives. This is a concern
because poor decision-making during a spill response could lead to the
deployment of unnecessary response equipment, or worse, not enough
equipment to respond to a spill. Second, some private-sector officials
stated that spill response companies, in general, have less experience
in dealing with spill response and the local geography of an area
affected by the spill. The geography can be critical to determining
which spill response techniques are most effective in a given area.
They attributed the limited experience to the overall decline in the
number of spills in recent years.
Question 6. NOAA has a critical role in preparing for and
responding to oil spills. Why does the Department of the Interior and
the Environmental Protection Agency receive an annual appropriation
from the Oil Spill Liability Trust Fund (OSLTF) and NOAA does not?
Answer. Our 2007 report did not examine the level of annual
appropriations from the Oil Spill Liability Trust Fund to individual
Federal agencies, nor how those agencies use the appropriations.
However, we reported that between 1990 and 2006, approximately 61
percent of the Oil Spill Liability Trust Fund expenditures went to
Federal appropriations. The U.S. Coast Guard received the most
appropriations from the Fund, followed by the Environmental Protection
Agency, Federal research and other programs, and the Department of the
Interior.*
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\*\ Federal research and other programs include appropriations to
Department of Transportation, the Denali Commission, and the Oil Spill
Recovery Institute. The Department of Treasury and the Army Corps of
Engineers have received appropriations, but these account for about
0.10 percent of Fund expenditures.
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______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Dagmar Schmidt Etkin, Ph.D.
Question 1. The rescue tug at Neah Bay, Washington, has rescued
several ships in distress in the past several weeks. These include a
720 foot container ship on December 3rd, and an oil tanker barge on
December 11. The engines of the vessel towing the oil barge went out,
and the barge was left floating adrift toward shore. With 2 million
gallons of diesel and 500,000 gallons of gasoline in the barge, a
grounding and spill would have been disastrous.
What kinds of environmental impacts would have resulted from
a spill if the rescue tug had not been there?
Can you quantify the costs that were potentially averted by
the rescue of these two vessels?
What would be the costs of a major spill of crude oil or
bunker fuel?
In light of the numerous saves the Neah Bay tug has made,
isn't it clear that this is a good return on investment for oil
spill prevention?
Answer. The Neah Bay rescue tug has been credited with 37 responses
since 1999, including two this past December. In the 11 December 2007
Towing Vessel NA HOKU-T/B NOHO HELE incident,\1\ there could have been
significant impacts from the spillage of 2,016,000 gallons of diesel
fuel and 462,000 gallons of gasoline. The spillage of these volumes of
oil, or even a portion of that oil, could have caused significant
environmental and socioeconomic impacts. With the westerly wind and
currents in that area, the oil would have impacted the Olympic Coast
National Marine Sanctuary and coastal areas. Diesel fuel and gasoline
are relatively non-persistent and would not have caused significant
visible coastal oiling, but these oils are extremely toxic. Due to the
location of the spill, the sea conditions, and the nature of the
spilled oil, it would have been very difficult to mount a successful
spill response to mitigate any damages, though resources would likely
have been expended to attempt this. A shoreline response in the form of
damage surveys would likely have ensued. Extrapolating from various
modeling studies conducted for the Washington Department of Ecology,\2\
the oil would likely have spread over several hundred square miles.
While the costs would vary based on the exact impacts of the oils and
conditions at the time of the incident, the response costs, natural
resource damages, and socioeconomic impacts could easily have topped
hundreds of millions of dollars if not $1 billion. Impacts would have
included fish mortality, subsistence fishing impacts,\3\ commercial
fishing losses, mortality in diving birds, and damage to sensitive
marine ecosystems in the designated Olympic National Marine Sanctuary
and adjoining areas.
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\1\ The 105-foot towing vessel NA HOKU, towing the single-hulled
barge NOHO HELE, suffered electrical power generator failures thirteen
miles off the Washington coast while en route to Portland, Oregon, from
Port Angeles, Washington, in the vicinity of the Olympic Coast National
Marine Sanctuary. The T/B NOHO HELE was laden with 2,016,000 gallons of
diesel fuel and 462,000 gallons of gasoline. Seas were 8-10 feet and
winds were westerly at 20-30 knots.
\2\ French-McCay, D., J. Rowe, N.Whittier, S. Sankaranarayanan,
D.S. Etkin, and L. Pilkey-Jarvis. 2005. Evaluation of the consequences
of various response options using modeling of fate, effects and NRDA
costs of oil spills into Washington waters. Proceedings of 2005
International Oil Spill Conference: 467-473. Etkin, D.S., D. French-
McCay, J. Rowe, N. Whittier, S. Sankaranarayanan, and L. Pilkey-Jarvis.
2005. Modeling impacts of response method and capability on oil spill
costs and damages for Washington State spill scenarios. Proceedings of
2005 International Oil Spill Conference: 457-462. Etkin, D.S. 2004a.
Response Cost Modeling For Washington State Oil Spill Scenarios.
Prepared by Environmental Research Consulting, Cortlandt Manor, NY, for
Washington Department of Ecology, Olympia, WA. Contract No. C040018. 56
pp. 30 June 2004. Etkin, D.S. 2004b. Socioeconomic Cost Modeling For
Washington State Oil Spill Scenarios. Prepared by Environmental
Research Consulting, Cortlandt Manor, NY, for Washington Department of
Ecology, Olympia, WA. Contract No. C040018. 83 pp. 21 July 2004.
\3\ Tribal nations of Washington State are highly dependent on fish
and shellfish caught in Washington waters and on Washington shorelines
for basic nutritional needs. Young children deprived of protein in
their formative years can have life-long impairments.
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The 3 December 2007 rescue of the container ship KAUAI \4\ likely
averted the spillage of as much as a million gallons of bunker fuel. A
spillage of this much persistent oil would likely have caused
significant impacts. Bunker fuel would likely have coated a significant
length of shoreline with fresh oil or with tar balls along both the
Washington and Oregon coasts. Depending on conditions at the time of
the spill, shoreline impacts could have been significant requiring a
long-term cleanup effort. The spillage of this much bunker fuel would
likely have had significant impacts on birds and marine mammals. Costs
for a spill of this type could easily have reached topped hundreds of
millions of dollars if not $1 billion mark.
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\4\ On 3 December 2007, the 720-foot container ship KAUAI outbound
from Seattle, Washington, to Oakland, California, encountered a storm
with 60-foot waves and 64-knot winds 90 miles west of the entrance to
the Columbia River. The vessel sustained damage and required escort
back to the Strait of Juan de Fuca for repairs.
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A major spill of crude oil from a large tanker would most likely
result in costs of tens of billions of dollars depending on the
circumstances surrounding the spill. Impacts of crude oil spills in
Washington waters would include commercial and subsistence fishing
losses, significant environmental and natural resource damages, tourism
losses, and impacts to private and state property. In addition, there
are likely to be significant social impacts. The demoralizing social
and psychological impacts of a major spill incident are difficult to
measure, but have clearly been demonstrated in studies conducted in the
wake of the EXXON VALDEZ spill.
The Neah Bay rescue tug program has clearly demonstrated that it
can avert potential environmental disasters and help in the protection
of Washington, Oregon, and Canadian waters and shorelines. As such, it
represents a good return on investment.
Question 2. I understand that prompt and effective salvage is
important for preventing and minimizing spills. Keeping oil on the ship
and keeping it from sinking is critical to protecting the environment.
Have you studied this issue of the benefits of salvage? Isn't this a
clear example of how investing in prevention can far outweigh the costs
of disaster?
Answer. Logically, the order of preference with regard to
preventing damage from oil spills is: prevention of accidents and
actions that can result in vessel damage and spillage, reducing the
magnitude of spillage at the source, preventing the spread of the oil
with a high level of response preparedness, protecting the most
sensitive resources, and, last, doing a thorough job cleaning up the
oil. Short of preventing the spill in the first place, effective
salvage measures are the best ways to control the magnitude of an oil
spill. Stabilizing the vessel, controlling the spillage of oil at its
source, and reducing the amount of oil released to the environment are
the next best ways to averting significant damages. Trained salvage
teams can often significantly reduce the impacts of a spill and turn
what could have been a significant incident into a relatively minor
manageable incident.
To the best of my knowledge there has been no rigorous cost-benefit
analysis of salvage as a means to reduce oil spillage that has been
conducted, though it would certainly be possible to do this.\5\ The
benefits of salvage have been described in a paper presented at the
2003 International Oil Spill Conference \6\ for which I provided spill
data and analyses. In this report, data from the International Salvage
Union (ISU) indicated that in the year 2000, 310 salvage rescue efforts
averted the spillage of enough oil to represent 11 spills the size of
the EXXON VALDEZ. This represents roughly $60-$100 billion in averted
damages in that year alone. Clearly, investing in salvage capabilities
is an important part of preventing significant environmental damages. A
more detailed analysis would more clearly elucidate the benefits of
salvage.
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\5\ I would recommend an approach that would include an analysis of
salvage efforts that have been documented and modeling the spillage
that might have occurred without salvage efforts and then estimating
the costs with and without the benefits of salvage. I conducted a
similar study for the U.S. Environmental Protection Agency in which the
numbers of spill incidents with and without the various prevention
programs were compared and costs that were ``averted'' with the
implementation of prevention measures were estimated to determine the
benefits of the prevention measures. See Etkin, D.S. 2004. Modeling oil
spill response and damage costs. Proceedings of 5th Biennial Freshwater
Spills Symp. Etkin, D.S. 2004. Twenty-year trend analysis of oil spills
in EPA jurisdiction. Proceedings of 5th Biennial Freshwater Spills
Symposium. Another study was conducted for the U.S. Coast Guard with
regard to the benefits of various spill response technologies. Etkin,
D.S. and P. Tebeau, P. 2003. Assessing progress and benefits of oil
spill response technology development since EXXON VALDEZ. Proceedings
of 2003 International Oil Spill Conference: pp. 843-850.
\6\ Lentz, S.A., and F. Felleman. 2003. Oil spill prevention: A
proactive approach. Proceedings of the 2003 International Oil Spill
Conference: pp. 3-27.
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Question 3. Currently liability limits makes a distinction between
tank and non-tank vessels, and for tank vessels, whether they have
single or double hulls. If the U.S. were to adjust liability limits for
vessels, what other factors should be considered? Should non-tank
vessels get a break for having protectively located fuel tanks?
Answer. Logically, since the liability limits are related to the
risk of an oil spill--and risk is the product of the probability of
having an incident times the consequences or impact of the incident--
these limits should take into account both sides of the risk equation.
In other words, the limits are designed to anticipate potential costs
and impacts from spill incident as well as the probability that the
incident will happen in the first place.\7\
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\7\ All of this is analogous to the ways in which automobile
insurance rates are determined. While the procedures vary from state to
state, there are general principles of setting the insurance rates
based on driver characteristics (age, experience, and driving history),
automobile type (including safety features), and location of driving.
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From the standpoint of potential impacts and consequences of a
spill, the liability limits should be based on the amount of oil and
the type of oil that is carried by the vessels, whether they are tank
vessels or non-tank vessels. The amount of oil factor can easily be
applied by having a liability limit that is tied to the size of the
vessel.\8\ The type of oil could also determine the costs that might be
incurred. A heavier oil would tend to be more expensive with regard to
cleanup and damages than a lighter non-persistent oil.\9\ Rightly, the
locations in which the vessels are traveling should also be taken into
account in that the consequences of a spill are highly contingent on
the location in which the spill occurs. To some extent this location
factor is already taken into account with regard to the higher
financial responsibility requirements in U.S. waters compared to non-
U.S. waters. States are also given the right as per the Oil Pollution
Act of 1990 of setting their own liability limits, including unlimited
liability.\10\
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\8\ There needs to be a certain minimum liability amount in that
any spill of a commercial vessel of at least 300 GRT will have a
certain cost due to the logistics of response.
\9\ In fact, on the international front, there is no liability
convention for non-persistent oils (including diesel). For a discussion
of persistent vs. non-persistent oils see: Davis, B., D.S. Etkin, M.
Landry, and K. Watts. 2004. Determination of oil persistence: A
historical perspective. Proceedings of Fifth Biennial Freshwater Spills
Symposium.
\10\ The following states have unlimited liability for cleanup
costs and other damages: Alabama, Alaska, California, Connecticut,
Georgia, Hawaii, Maine, Maryland, Massachusetts, Mississippi, New
Hampshire, New Jersey, Oregon, Pennsylvania, Rhode Island, South
Carolina, Virginia, and Washington.
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The probability of having a spill is dependent on a variety of
factors, including the structural integrity of the vessel, the location
in which the vessel transits, the skills of the pilot, captain, and
vessel crew, and other variable factors, such as weather. Since most of
these probability factors change from trip to trip, it is difficult to
assign a particular adjustment to the vessel with regard to its
liability limits. While the structural integrity of the vessel can vary
over the lifetime of a vessel and will be dependent on maintenance and
passing various inspections, the design of the vessel with regard to
the protection of the oil cargo and/or fuel is not variable from one
trip to the next. Since it is well established that the protection of
oil cargo and fuel tanks with secondary hulls or protective locations
\11\ reduces the probability of spillage and can reduce the amount of
spillage when a breach does occur, the presence or absence of the
double hulls or double fuel tanks should be taken into account in
establishing liability limits.
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\11\ Michel, K., and T. Winslow. 2000. Cargo ship bunker tanks:
Designing to mitigate oil spills. SNAME Marine Technology, October
2000.
Question 4. I understand from GAO that large spills from tank
barges often exceed the liability limits. Does it make sense to lump
barges and tankers together, or should we have separate liability
limits for tank barges?
Answer. Tank barges often carry two million gallons of oil, which
can be a significant amount in the event of a spill. Significant
damages have resulted from spills from tank barges.\12\ As mentioned
earlier, liability limits should be based on the risk of spillage with
regard to the amount of and type of oil carried, as well as the
probability that such a spill would occur in the first place. In this
respect, there are likely to be differences between tank ships and tank
barges.
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\12\ Two notorious examples include: the 1994 T/B MORRIS J. BERMAN
spill of 750,000 gallons of No. 6 (Bunker C) fuel oil in Puerto Rico,
which resulted in $124 million in costs; and the 1996 T/B NORTH CAPE
spill of 828,000 gallons of diesel fuel in Rhode Island that resulted
in $190 million in costs.
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While I have not yet undertaken such an analysis, it would be
fairly straight-forward to examine the differences in risk from tank
barges vs. Tankers (tank ships) with regard to the probability of
spillage given an accident (differentiating between single- and double-
hulls) and the relative amount of cargo that is spilled in the event of
an accidental grounding, collision, or allusion. This analysis, which
could be conducted fairly quickly, could determine whether it really
makes sense to treat tank barges and tank ships differently with regard
to liability limits and financial responsibility requirements.
Question 5. In your testimony you said that there has never been a
worst-case discharge from a large vessel in the U.S. I understand that
the COSCO BUSAN only spilled about 5 percent of its fuel oil, and the
EXXON VALDEZ only spilled about 20 percent of its cargo. Yet both
incidents swamped the local capacity to respond. Despite assurances the
response was `all hands on deck,' we still did not manage to prevent
oil from reaching shore and wreaking untold environmental damage.
Are the worst-case plans realistic?
What kinds of costs might be anticipated from a truly worst
case non-tank vessel spill?
Answer. A spill of any magnitude is likely to quickly overwhelm
local resources in that everything that is available locally will
likely be brought in at the request of the Federal On-Scene Coordinator
in conjunction with the responsible party's representatives. A tiered
response in which cascades of resources from local equipment/personnel
caches, and then from regional and national resources will be brought
in. In some cases, international assistance may even come into play.
When the EXXON VALDEZ spill occurred in 1989, our response
organizations and the general response infrastructure were ill-prepared
to deal with the magnitude of the response required. Contingency plans
at the time were ill-conceived and inadequate and response resources
were not appropriately ready.\13\ Since that time, there have been
significant improvements in our response infrastructure and readiness.
The U.S. Coast Guard has implemented a systematic certification of oil
spill removal organizations (OSROs) with inspections and increased the
response requirements with regard to response capability standards and
the timing of responses. But, the fact that with even a relatively
small spill such as the M/V COSCO BUSAN incident in San Francisco Bay
in November 2007 our response capabilities were overwhelmed and
disorganized demonstrates that we still have far to go. OSRO owners
express that they have difficulties maintaining preparedness with the
decrease in the number of incidents \14\ and that any increases in
requirements for increased preparedness with regard to the amount of
equipment and personnel or the rapidity of the response will likely tax
the existing infrastructure. The U.S. Coast Guard's response
requirements are wholly inadequate to respond to anything but a
moderate-sized spill.\15\ The standards are not even designed to deal
with spills of a worst-case discharge.\16\
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\13\ Etkin, D.S. 1990. Oil Spill Contingency Planning, Cutter Info.
Corp., Arlington, MA, 116 pp.
\14\ Usher, D. 2003. How response contractors are remaining
vigilant and viable despite the downward trend in oil spills.
Proceedings of the 2003 International Oil Spill Conference: pp. 809-
811.
\15\ A study I conducted for the Washington Department of Ecology
showed that the state's higher response standard would significantly
reduce the costs and damages of an oil spill over the Federal (U.S.
Coast Guard) standards. Etkin, D.S., D. French-McCay, J. Rowe, N.
Whittier, S. Sankaranarayanan, and L. Pilkey-Jarvis. 2005. Modeling
impacts of response method and capability on oil spill costs and
damages for Washington State spill scenarios. Proceedings of 2005
International Oil Spill Conference: 457-462.
\16\ The highest level of required response capability (after 3
days) is about 500,000 gallons of oil removal per day. This would mean
that it would theoretically take 160 days to completely remove the oil
from an 80-million gallon spill.
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If there were to be a worst-case discharge from a fully-laden
tanker,\17\ this could amount to a spill of 80 million gallons of crude
oil. The response requirements would depend on the location, but if
this type of incident were to occur in a coastal area, there would
likely be a massive response with all local, regional, and national
resources being brought to the scene over the course of several days.
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\17\ Crude oil tankers tend to be larger than product tankers. A
fully-laden product tanker (e.g., one with No. 2 diesel oil ) would
likely hold less than half this amount.
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It would be extremely difficult for there to be any kind of
effective on-water spill response with mechanical containment and
recovery. The best outcome with such methods might be a recovery of 10-
20 percent of the spilled oil, though with such a large spill, the
results may be even more disappointing as the spread of the oil would
quickly make it difficult to contain and remove the oil. Unless the use
of chemical dispersants \18\ was to be approved, the response will
likely be largely shoreline cleanup. The shoreline impacts would likely
reach hundreds of miles. The response would take many months or even
years to complete.
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\18\ Chemical dispersants are akin to detergents that are applied
to the spilled oil on the water surface to chemically and physically
break the oil down into smaller droplets that can be dispersed and
diluted with wave action. This methodology is applied in many non-U.S.
spills to dramatically reduce shoreline oiling. It is the first-order
of response in many parts of the world, but, because of concerns about
the potential toxicity of the dispersed oil and the dispersant
chemicals themselves, it is generally not used in U.S. waters. There
are certainly limitations in their use in nearshore waters because of
the lack of physical mixing in shallower waters. The U.S. Coast Guard
has designated certain areas of pre-approval in U.S. waters,
principally away from nearshore areas and other sensitive locations.
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If there were to be a worst-case discharge from a fully-laden
tanker, the costs could be astronomical. Again, the exact costs would
depend on oil type, weather conditions, and, most importantly,
location.\19\ Since there never has been a worst-case tanker discharge
in U.S. waters and examples from outside the U.S. are not relevant for
cost-estimation purposes,\20\ it is necessary to model hypothetical
spills to estimate the costs of a worst-case discharge. While this
exercise has not been specifically addressed on a national level, there
are some examples of modeling from which one could extrapolate the
costs of a worst-case discharge.\21\ Modeling of hypothetical spills of
80 million gallons indicates that cleanup response costs alone could
easily reach $15 billion.\22\ Socioeconomic and natural resource
damages could add several hundred million to billions of dollars on top
of this. Clearly, no existing liability limit for tankers covers these
levels of costs.
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\19\ The location of the spill would determine the sensitive
resources at risk, as well as the degree of cleanliness (known as the
``how clean is clean'' factor ) required by the local communities and
authorities. Generally, the more sensitive resources, such as wetlands,
require the most expensive cleanup operations because they are both
sensitive to the impacts of the oil and to the impacts of the response
operations (e.g., people and equipment trampling through the marsh).
\20\ The costs of non-U.S. spills tend to be considerably lower
than those in the U.S. due to the relatively low liability limits set
in international conventions (Civil Liability and International Oil
Pollution Compensation Fund Conventions) to which the U.S. is not
party. The standards of ``cleanliness'' after a spill are also usually
lower than is norm in the U.S. There is currently no compensation for
environmental or natural resource damages in non-U.S. spills. In many
cases, the more effective and less expensive chemical dispersant
strategy is applied. This tends to significantly reduce the amount of
shoreline oiling. All of these factors make non-U.S. spills essentially
irrelevant for cost estimations of U.S. spills.
\21\ A more rigorous modeling analysis of a variety of hypothetical
worst-case discharges would be required for a more definitive answer to
this question. This has not been done to date.
\22\ Based on modeling work I conducted for National Academy of
Sciences Transportation Research Board (National Research Council
Committee for Evaluating Double Hull Tanker Design Alternatives. 2001.
Environmental Performance of Tanker Designs in Collision and Grounding:
Method for Comparison. Special Report 259. National Academy Press,
Washington, D.C. 136 pp. plus appendices on CD-ROM.)
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A worst-case discharge from a non-tank vessel would be considerably
smaller, perhaps two million gallons of heavy fuel oil. The costs for
this type of spill could easily reach $1 billion in spill response
costs and more in natural resource and socioeconomic damages.
Overall, in the case of a very large spill or worst-case discharge,
there will be a prolonged response, astronomical costs, and
environmental, social, and socioeconomic impacts that may be felt for
many years or perhaps decades. Because each spill situation is so
different, it is extremely difficult to precisely plan an appropriate
response or to accurately predict outcomes. It may not really be
possible to anticipate every contingency. But, there are many ``lessons
learned'' that can be derived from past spill experiences here in the
U.S. as well as from incidents outside the U.S. Post-mortem studies of
spill responses often show a lack of coordination amongst key players,
strategic errors, and miscommunication. The difference between a well-
executed spill response and a poorly-executed effort can mean a
considerable difference in impacts and costs. For example, in one spill
in Maryland (138,600 gallons of heavy fuel oil), costs (and
environmental damages) were shown to be at least 60 percent higher than
they would have been had responders followed the directions of the on-
scene coordinator.\23\
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\23\ Etkin, D.S., D. French-McCay, and J. Rowe. 2006. Modeling to
evaluate effectiveness of variations in spill response strategy.
Proceedings of 29th Arctic and Marine Oilspill Program Technical
Seminar: 879-892. Etkin, D.S., D. French-McCay, and J. Rowe. 2006. Use
of trajectory modeling to analyze variations on the response strategies
for inland spills. Proceedings of 2006 Freshwater Spills Symposium.
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The keys to a successful response and mitigating damages to the
greatest extent possible are rapidity of the response with well-trained
personnel and well-maintained equipment, and good strategic decision-
making based on sound scientific and technical information. A thorough
understanding of the behavior of oil under different conditions, pre-
planning and exercising of contingency plans including the Incident
Command System, prioritization of sensitive resources at risk (for
protection), and informed use of technological equipment and resources
to locate oil and predict its movement will increase the likelihood of
success and minimize or reduce damages. Funding of key studies and
those agencies that are involved in spill response (e.g., U.S. Coast
Guard, EPA, and NOAA) will help in this regard. When the ``horse is out
of the barn'' (i.e., the oil has spilled), time is of essence. Each
hour that passes allows the oil to spread further on the water surface,
decreasing the likelihood of successful removal and increasing the
breadth of damages. There are many extremely knowledgeable and talented
individuals and organizations involved in spill response. We need to
continue to tap this expertise and continue to train a new generation
of experts for the future. This will require funding at the Federal and
state levels, as well as from industry.
Question 6. A large amount of money is spent on oil spills once
they occur, but are we spending enough on prevention activities? For
example, after the SELENDANG AYU and COUGAR ACE incidents in Alaska,
there were calls for improvements to vessel traffic in the Aleutian
Islands, but funding for conducting a navigation risk assessment was
hard to come by.
Answer. Oil spill response--when conducted in the thorough manner
expected by a public that is concerned about environmental protection
and restoration--is very expensive, because of the large amount of
trained labor, specialized equipment, logistical arrangements,
hazardous material disposal, and monitoring required. In addition, the
costs to restore and rehabilitate a damaged environment and to
compensate socioeconomic damages can be exceedingly high, depending on
the specific circumstances of the spill. Rehabilitation of damaged
environmental habitats can take years or decades. Once a spill has
occurred, these costs and damages are inevitable. There are few things
that can be done to significantly reduce costs and damages. Because of
the high costs involved, prevention is the best way to mitigate these
costs and damages.
Analyses of vessel-sourced spill incidents often indicate that
human error and navigational errors in high-vessel traffic areas are at
the root of most of the larger spill incidents (i.e., those involving
collisions, allusions,\24\ and groundings). Navigational risk
assessment studies, such as those that have been conducted in the Puget
Sound,\25\ can help in developing better vessel traffic control
systems, improving navigational information for vessel operators, and
determine the best locations for rescue tugs and spill response
equipment. These types of studies are complex, when done well, and
require significant funding. But, funding for these types of studies is
essential. The implementation of recommended changes in navigational
practices and other regulations to improve vessel safety that result
from these studies, can significantly reduce the incidence of spills
and the devastating costs and impacts that result. A study that I
conducted for the Washington Department of Ecology \26\ showed that the
investing in prevention measures to reduce vessel spills can
significantly reduce the incidence of spills from tank vessels and non-
tank vessels. Clearly, investing in spill prevention and investing in
the studies that make for informed decisions in spill prevention makes
good sense.
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\24\ An allusion occurs when a moving object strikes a stationary
object, as when a ship hits a pier.
\25\ Herbert Engineering Corp. and Designers & Planners, 1999. Use
of Tugs to Protect Against Oil Spills in the Puget Sound Area. U.S.
Coast Guard Report 9522-001, November 1999. Glosten Associates, Inc.,
and Environmental Research Consulting. 2004. Study of Tug Escorts in
Puget Sound. Prepared for Washington Department of Ecology, Olympia,
Washington. Contract No. ECY0414. 135 pp.
\26\ Etkin, D.S., and J. Neel. 2001. Investing in spill
prevention--Has it reduced vessel spills and accidents in Washington
State? Proceedings of 2001 International Oil Spill Conference: 47-56.
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______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Hon. Mike Cooper
Question 1. The rescue tug at Neah Bay, Washington, has rescued
several ships in distress in the past several weeks. These include a
720 foot container ship on December 3rd, and an oil tanker barge on
December 11. The engines of the vessel towing the oil barge went out,
and the barge was left floating adrift toward shore. With 2 million
gallons of diesel and 500,000 gallons of gasoline in the barge, a
grounding and spill would have been disastrous. From your perspective,
what would have been the impact on Washington State if one of these
vessels had not been saved by the rescue tug and there had been a
catastrophic oil spill? In light of the numerous saves the Neah Bay tug
has made, isn't it clear that this is a good return on investment for
oil spill prevention? Do you believe a rescue tug at Neah Bay is a
necessary preventative investment?
Answer. You ask what would have been the impact on Washington State
had one of these vessels not been saved by the rescue tug and there had
been a catastrophic oil spill?
While there is no definitive answer to your question, experts
calculate, at a minimum, that significant oil spills in Washington
waters could result in hundreds of millions, if not billions, of
dollars of socioeconomic impacts.
Yet, this estimate does not incorporate a spill's impact on the
longer-term quality of life, psychological impacts, and spiritual
values.
Neither does it take into consideration the ability of a damaged
natural environment to provide us with valuable ecosystem services.
Socioeconomic Costs
An oil spill can have serious socioeconomic impacts. There are
several good reports on this topic by Environmental Research Consulting
that are incorporated by reference:
Regulatory Analyses for Economical and Environmental Impact
for U.S. Coast Guard (U.S. Coast Guard) (2005).
Oil Spill Response, Socioeconomic, and Environmental Cost-
Benefit Analysis (WA Dept. Ecology): (2003-ongoing);
Socioeconomic Cost Modeling for Washington State Oil Spill
Scenarios: Part II (2005).
The second cited report provides the following view on
socioeconomic damages to Washington State in the event of a large
spill.
An oil spill can have serious socioeconomic impacts on the affected
region, local communities, residents, the state, and the Federal
Government. These impacts include damages to real and personal
property, loss of use of natural resources (parks and recreation
areas), and loss of income and expenses (fishing, tourism, recreation,
shipping and other commerce). As a major shipping port and tourist and
recreation area, Puget Sound and the Columbia River are particularly
vulnerable to socioeconomic impacts from oil spills. Reduction in
tourism, commercial fishing, and blocking the shipping port could have
widespread impacts. There can also be serious impacts on the Tribal
Nations, particularly with respect to subsistence fishing. In the case
of an oil spill, the Oil Pollution Act of 1990 allows the Federal
Government to collect from responsible parties socioeconomic costs
including:
Loss of natural resources (lost-use);
Losses for destruction of real/personal property;
Losses of subsistence use of natural resources;
Net loss of taxes/fees/net profit due to injury,
destruction/loss of real/personal property or natural
resources;
Loss of profits or earning capacity due to damage to real/
personal property or natural resources (e.g., fish); and
Governmental costs for providing increased or additional
public services during or after removal activities.
In addition to the costs that the Federal and state government
authorities can collect, there are also possible third-party damage
suits that can ensue. Successful damage suits in past oil spill
incidents have included payments for:
Out-of-pocket costs relating to removal of oil or
restoration of impacted property;
Economic losses, including lost revenues and profits due to
lost tourism or business opportunities;
Cost of repair/replacement of physical property damaged by a
spill (e.g., fishing nets, docks);
Loss of revenues from decreased fishing resource;
Increased cost of fishing due to necessity of fishing in
different locations;
Damages to real property, including potential damage to
market values of properties ``stigmatized'' by an oil spill;
Possible replacement of natural resources irretrievably
oiled by the creation of new natural resources;
Losses by sport fishermen incurred as result of curtailment
of fishing; and
Subsistence losses to American Natives.
Socioeconomic costs are based on the real and perceived impacts,
which are related to the degree of oiling, the oil type and
persistence, the degree to which cleanup operations can mitigate the
oil impacts, and the time of the impact.
This demonstrates that significant oil spills in Washington waters
could result in hundreds of millions, if not billions, of dollars of
socioeconomic impacts.
Oil spills in the state could involve significant impacts to
commercial fishing, tribal nations, subsistence fishing, ports,
tourism, wildlife viewing, hunting, and other resources that are
important to the state. But measuring these values is always difficult
and often involves a variety of assumptions. Additionally, this measure
does not include other spill impacts, such as long-term quality of
life, psychological impacts, and spiritual values.
Additionally, standard economic damage calculations do not include
the loss to society of ecosystem services. Modern economic thinking,
however, is beginning to incorporate this loss into damages
calculations. When portions of the commons that belong to all humanity
are lost--for example if a large spill caused the extinction of the
Orca whale--the ecosystem services provided by those resources are no
longer available to humanity.
The Cost of Lost Ecosystem Services
An oil spill would damage the environment's ability to provide us
with valuable ecosystem services.
Generally speaking, ecosystem services include provisioning, such
as the production of food and water; regulating, such as the control of
climate and disease; supporting, such as nutrient cycles and crop
pollination; cultural, such as spiritual and recreational benefits; and
preserving, which includes guarding against uncertainty through the
maintenance of diversity. Wikipedia. The services of ecological systems
and the natural capital stocks that produce them are critical to the
way the Earth's life-support systems function. These directly and
indirectly contribute to human welfare and represent part of the total
economic value of the planet. Economic Reasons for Conserving Wild
Nature, Andrew Balmford, et al., Science Magazine, Vol. 297, August 9,
2002 (attached* and incorporated by reference).
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* This article is retained in the Committee's files.
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Coastal systems, including estuaries, coastal wetlands, river
deltas and coastal shelves, are particularly rich in ecosystem goods
and services. They provide widely ranging and highly valued resources
that include fisheries, open spaces, wildlife habitat, nutrient
cycling, and recreational opportunities. Integrated Assessment and
Valuation of Ecosystem Goods and Services provided by Coastal Systems,
Matthew A. Wilson, et al. (attached* and incorporated by reference).
They also provide climate regulation and soil formation. Balmford,
supra.
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* This report is retained in the Committee's files.
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Economists are working to develop better frameworks for assessing
and valuing the goods and services provided by coastal systems. See
e.g.: Wilson, supra. Experts have estimated that a large-scale oil
spill in Washington would cause socioeconomic damages in the ``hundreds
of millions, if not billions'' of dollars. If we add to this the loss
of ecosystem services, the damages exponentially increase.
TENYO MARU Spill--a Reference Point
In 1991, the Japanese fish processing vessel TENYO MARU was
involved in a collision 20 miles west of Cape Flattery. It sank at the
point of collision in 90 fathoms of water with a reported 475,000
gallons of oil onboard. It initially leaked a large amount of oil and
undetermined amounts were reported leaking for more than a month after
the collision. Beaches were fouled from Vancouver Island, British
Columbia to northern Oregon.
While impacts were scattered along the entire Washington State
shoreline and the northern beaches of Oregon, the heaviest oiling
occurred along the Makah Indian Reservation and the Olympic National
Park shoreline. A large number of birds, including Common Murres,
federally-threatened Marbled Murrelets, auklets, Tufted Puffins and
Pigeon Guillemots were killed. Kelp beds had substantial amounts of oil
in them for weeks.
The U.S. Fish and Wildlife Service (USFWS), the State of
Washington, and the Makah Indian Tribe were responsible for the care of
impacted wildlife and, along with the National Oceanic and Atmospheric
Administration (NOAA) documented the injuries to natural resources.
These parties formed a Trustee Committee that was responsible for
planning, designing, constructing, and implementing restoration
projects to compensate the public for the losses as a result of the oil
spill.
The natural resources damages assessment performed by the trustees
was done under the Oil Pollution Act of 1990 (OPA) and its accompanying
Natural Resource Damage Assessment and Restoration (NRDAR) process. The
goal of OPA is to make the environment and the public whole for
injuries to natural resources and services resulting from an incident
involving a discharge of oil. Through this process, the Trustees work
to return the injured natural resources and services to a pre-incident
condition and to compensate the public for their losses.
Importantly, the NRDA process excludes any assessment of the loss
of ecosystem services. Rather, as the natural resources damages
settlement for the TENYO MARU shows, the trustees come up with a list
of restoration projects needed in light of the spill. Then the trustees
attempt to collect the costs for performing those projects from the
spiller.
For example, to settle the trustees' claims for the TENYO MARU
accident, defendants agreed to pay approximately $5.2 million to
restore, rehabilitate, replace, or acquire the equivalent of natural
resources injured by the oil discharge. This was in addition to
$500,000 to pay a civil penalty assessed by the U.S. Coast Guard,
$3,000,000 to reimburse oil removal costs, $340,028 to reimburse damage
assessment costs incurred by the Trustees, for a total settlement cost
of $9 million (over and above approximately $2.4 million in removal
costs previously paid).
The $5.2 million dollar portion paid for the following projects:
(1) permanent protection of Marbled Murrelet habitat and reduction of
river silt to the marine ecosystem, (2) terrestrial Marbled Murrelet
surveys to protect forested habitat through the identification of
nesting locations, (3) restoration of Common Murre colonies in Copalis
National Wildlife Refuge, (4) emergency towing vessel at entrance to
the Strait of Juan de Fuca, and (5) producing publications, signs, and
brochures. http://www.fws.gov/westwafwo/contaminants/
Final%20Tenyo%20sum%20.pdf.
This settlement is significant--$5.2 million. Yet it does not
represent the whole picture on damages from the TENYO MARU spill to
Washington State. First, it was the product of a legal settlement.
Second, not all types of damages, such as loss of ecosystem services,
were considered. Yet, the natural resources damages assessment for the
TENYO MARU spill does seem to serve as a good reference in thinking
about how badly a large oil spill could damage Washington State.
You ask, in light of the numerous saves the Neah Bay tug has made,
isn't it clear that this is a good return on investment for oil spill
prevention? You further ask, do you believe a rescue tug at Neah Bay is
a necessary preventative investment?
The Neah Bay tug is, without a doubt, a great investment in
Washington State. It's like spending pennies to get millions of
dollars. In the fall of 2006, the Oil Spill Advisory Council estimated
that providing enhanced year-round coverage with the Neah Bay tug would
cost about $11 million. This cost, even calculated over one-hundred
years, pales in comparison to the damages that one catastrophic spill
would have on Washington State. I most definitely believe the Neah Bay
tug is a necessary investment in our state.
Question 2. Do you feel that the Coast Guard devotes adequate time
and resources to oil spill prevention and response?
Answer. I very much wish the answer were yes. However, I do not
believe that it is. I do not believe the United State's Coast Guard
devotes enough time to spill prevention and response. This, of course,
is not a function of the men and women who serve our country in the
Coast Guard being undedicated, uncommitted, or untalented. I believe
the contrary to be true.
However, the Coast Guard is a multi-mission agency. Oil Spill
Advisory Council staff have spoken with Coast Guard staff who espouse a
commitment to a mission, not only to protect the environment and
enhance marine safety, but also to facilitate the free flow of
interstate commerce. In addition, Congress recently brought the Coast
Guard under the rubric of the Department of Homeland Security.
Therefore, the vast majority of the Coast Guard's resources and focus
is on preventing terrorism.
It is possible that, if Congress provides the Coast Guard with more
resources and refocuses the Coast Guard's attention on natural resource
protection, the Coast Guard would begin to devote more time and
resources to oil spill prevention and response.
Question 3. One of the goals of the citizen's advisory council is
to promote public engagement. What do you think the roles of volunteers
should be during spills?
Answer. There is a role for the public to play in cleaning up oil
spills. When an oil spill fouls our local community, our local
resources, and our local natural environments, local people feel an
overwhelming urge to do something. If properly prepared and organized,
local people who are desperate to help can become an invaluable cleanup
resource.
If it can be done safely, local volunteers familiar with local
waters could participate in oil spill assessment and response.
Volunteers can prepare beaches to get oiled by picking up debris and
standard beach litter that would collect oil and have to be sent to the
hazardous landfill. Volunteers also can participate in limited and
supervised beach cleanup. They can also participate in the response to
oiled wildlife--including hazing, search and collection, processing and
care, tracking and release.
We have seen from the COSCO BUSAN spill in San Francisco that we
must greatly improve our efforts around volunteer coordination. The
Coast Guard recently released a lessons learned report of the San
Francisco spill called Incident Specific Preparedness Review (ISPR), M/
V COSCO BUSAN Oil Spill in San Francisco Bay, Report On Initial
Response Phase, January 11, 2008 (http://www.uscgsan
francisco.com/posted/823/CoscoBusanISPRFinal.190115.pdf).
Observations
The San Francisco Bay area public is interested in volunteering for
oil spill cleanup but there is not an active pre-training program for
oil spill response. California OSHA and Environmental Protection Agency
regulations require minimum training before responders can enter the
oil spill collection areas to avoid exposure to hazards. Both Coast
Guard publications and the Area Contingency Plan (ACP) discourage the
use of convergent volunteers for cleaning up oil. The ACP states that
``Volunteers will not be utilized to work directly in the recovery of
oil. Volunteers will not be assigned to work in areas where there is a
known or a potential health hazard due to chemical exposure such as oil
recovery, etc.'' However, the ACP does say that trained volunteers may
pick up tarballs.
It was reported and confirmed that the issue of convergent
volunteers wishing to clean up oil (as opposed to oiled wildlife) had
never arisen in the 17 years since OPA 90 was enacted. Accordingly,
there was no program in place to conduct required HAZWOPER training of
volunteers for this purpose in advance of the spill, other than
training with respect to oiled wildlife. The Unified Command (UC) was
playing ``catch-up'' trying to find training protocols and address a
difficult situation on the spot. The UC was completely taken by
surprise, unprepared, and ill-equipped to deal with the outpouring of
convergent volunteers willing to help pick up oil off of beaches, and
the local government entities who supported them. With no volunteer
training protocols or materials in place, agencies were forced to pull
together training materials and protocols during the spill response
itself, taking time away from other duties.
A lack of planning for a convergent volunteer program, and a
general lack of attention to convergent volunteers, resulted in long
and frustrating delays that impacted the response overall. Establishing
a training program for volunteers during an incident is challenging and
impacts the ability for the UC to adequately assess available resources
and conduct normal operations.
Recommendations
The Coast Guard recommends:
Government use models such as the California Oil Wildlife
Care Network (OWCN) volunteer program to develop an organized
volunteer program.
Planners develop a uniform approach to the use of convergent
volunteers for oil spill response, consistent with local needs,
to reflect the use of these volunteers in response operations.
The National Response Team develop generic guidance for ACP
committees to develop convergent volunteer sections in local
ACPs.
Planners integrate trained, experienced organizations into
the ACP and drills to assist with volunteer coordination and to
be an outlet for volunteer interest.
Update the ACP (and other state and Federal safety policies/
regulations accordingly) to provide a process and protocols for
convergent volunteers to assist with some beach cleanup (e.g.,
who's responsible for volunteer coordination, how the
volunteers can and cannot be used, liability, training venues,
etc.).
Volunteer management be staffed at UC in accordance with the
ACP and address the issue of convergent volunteers.
Integrate trained, experienced organizations into the ACP
planning process and oil spill drills to assist with volunteer
coordination and to be an outlet for volunteer interest.
It is noteworthy that the Coast Guard praised California's ability
to effectively mobilize volunteers to clean up oiled wildlife. This is
noteworthy because California maintains a well-funded, well-organized,
and award-winning oiled wildlife care network, which is un-paralleled
in any other state. Thus, a spill in another state would predictably
have similar problems to the general use of volunteers.
This indicates that we need to make great improvements in
developing and maintaining programs to develop and manage a base of
trained volunteers and integrate this program into the Unified Command.
We have heard from our own Washington Department of Ecology that
efforts to recruit and maintain volunteer base seem unsustainable.
People who volunteer to become trained often lose interest and fade
away. This indicates to me that we have to work harder at doing
outreach and education. We need to dedicate more resources to educating
citizens about the sources and causes of spills and about the
socioeconomic ramifications of spills, both large and small. We need to
build community around participating in a corps of volunteers that will
spring into action when a spill occurs.
This effort would not need to be limited to interested individuals.
Targeted outreach to professional and volunteer fire departments,
Rotary Clubs, and other nongovernmental organizations could be very
successful.
Too often, however, agencies have budgets and staff and conflicting
mandates. These agencies, must make tough choices of the allocation of
tight resources. Therefore, these agencies have not placed an emphasis
on developing coordinated and robust volunteer coordination and
education programs. The result is that both the Coast Guard and
Washington State have a great deal of room for making improvements in
the way they work together to recruit, train, mobilize, and coordinate
volunteers.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
William G. Deaver
Question 1. Mr. Deaver, I understand your ships have a number of
design features and safety standards that are well above and beyond the
requirements. Your company has clearly made a conscious decision to
invest in oil pollution prevention. What are the benefits that your
business is seeing as a result of your investments in oil pollution
prevention?
Answer. TOTE invested approximately $15,000,000 per vessel in
additional safety features and redundancies that will help prevent
vessel incidents and spills in the years ahead. Clearly, our investment
is one that will last the 40+ year life of our vessel assets, however,
any attempt to quantify the return on invested capital for an event
which hopefully will never occur is too difficult to estimate. What we
do know is that if it is even a close call, we would rather err on the
side of doing too much on prevention, rather than too little.
Uncompromising reliability adds enough value to our customers business
that it results in lower future costs to maintain that customer and can
create enough value to charge more for our service than a low
reliability carrier. The major benefits derived to date are that of a
``state of the industry safety record'', and customer, public, and
industry recognition that our enhancements are a positive step forward
in designing and operating environmentally friendly vessels in future
years. TOTE owners and employees live and work in the Puget Sound and
Cook Inlet regions and our commitment is to keep our environment as
pristine and as natural as possible. Bottom line, it was the right
investment for us to make in the communities and environment where we
live and work.
Question 2. What can be done to encourage other shipping companies
to voluntarily do the same?
Answer. Seminars and conferences will clearly communicate the need
for change and enhancements. We are much more in favor of ``the carrot
than the stick'', however, when it comes to incentivizing companies to
make capital and operating decisions with respect to their vessels.
These incentives can take a variety of forms on the investment side,
tax credits or some other form of a one time financial incentive that
would motivate companies to modify their existing vessels. There are
operating cost incentives such as an exemption from ``rescue tug''
payment fees which could motivate modifications to existing vessels, or
new build enhancements. Generally, modifications would be very
expensive and it would involve thousands of vessels, not hundreds. The
``prevention'' dollars are significant, and world-wide ship yards and
vessel owners need direction as to what is acceptable to the United
States. The United States needs to work very closely with the
International Maritime Organization (IMO) for the creation of new rules
and regulations that meet our needs.
Question 3. Mr. Deaver, this past January the containership MSC
NAPOLI, was damaged in a storm and then intentionally grounded in the
English Channel to keep from sinking. The vessel was only slightly
smaller than the COSCO BUSAN. Many of the containers were lost at sea
and debris was spread for miles. Does TOTE have a contingency for such
a scenario?
Answer. TOTE's contingency plans primarily rest with the securement
systems we have on our Ro-Ro vessel which are quite different than a
conventional container vessel. Each trailer or container on a chassis
that is carried on a TOTE Ro-Ro vessel are secured through the use of a
patented ``Rolox'' box that secures the trailers ``5th wheel'' to the
deck of the vessel, and either 2 or 4 chains and binders are used to
further secure the trailer depending on the stow of the trailer on the
vessel and anticipated weather conditions. We experience severe weather
conditions in the Gulf of Alaska resulting in vessel rolls as severe as
45 degrees, thus requiring our ``redundancy'' securement system. The
redundant vessel propulsion and navigation systems provide a
significant safety margin should one of the main generators, motors, or
rudders fail at a critical time; we have 6 diesel electric generators,
two electric propulsion motors, and twin rudders. The loss of all power
at any given time is extremely unlikely.
Question 4. Mr. Deaver, I understand that your ships have a number
of design features and safety standards that are well above and beyond
the requirements. It is refreshing to hear about such stories. How can
we bring other ships including foreign flagged vessels up to the
standards?
Answer. We need very strict regulations from the International
Maritime Organization (IMO) that address the issues that we have
discussed, supported by Federal regulations. Voluntary compliance will
most likely not achieve our national goals in the near future, thus we
need either incredibly high penalties and fines for spills that will
force the carriers to comply, or IMO and Federal regulations that
dictate the minimum requirements for vessels calling U.S. ports.
Requiring carriers to comply should not become a marketplace
competitive issue as all carrier would be required to comply, thus all
would have an expense issue that they would need to pass through in the
marketplace.
Question 5. Is it cost effective to upgrade vessels, or do we need
to wait for the next generation of vessels to be built?
Answer. I do not believe there is a simple answer to this question
as there are hundreds of classes of vessels, some new, and some old.
What might be cost effective for one vessel, might not be cost
effective for another vessel of a different type, or age. Thousands of
vessels would need to be modified and it would take many years to
accomplish the required upgrades. It would be very expensive to modify
many of the existing vessels, but It would be a good question to pose
to the International Maritime Organization once new standards are
established.
Question 6. Mr. Deaver, TOTE Shipping use vessels that carry roll-
on/roll-off cargo. How is this different than a typical container ship?
Answer. TOTE's business model requires us to be in port for less
than 12 hours based on the sea mile distance between Anchorage, AK, and
Tacoma, WA and our need to turn the vessel in 7 days. Our cargo
trailers require wheels as they are driven on and off the vessel,
whereas a container ship operation leaves the wheels, or chassis in
port. The containers are lifted on and off the vessels by large gantry
cranes, and are stowed in either cells below deck, or staked on deck.
The containers above deck are generally secured through lashing cables
and rods, or in stacking frames on some vessels. Our Ro-Ro trailers are
secured with our Rolox box, and chains and binders. Our Ro-Ro operation
is a very efficient and fast operation, allowing us to minimize our
port time.
Question 7. Are oils and hazardous materials carried in Ro-Ro
tanks?
Answer. During 2007, TOTE carrier in excess of 57,000 FEU (forty
foot equivalents) of cargo to Alaska and we carried 8 20-foot ISO tanks
of lube oil, and 26 other tank loads of hazardous materials. These
tanks are always secured with 4 chains and binders and we have not had
issues with the carriage of tanks through the years.