Tank Vessel and Facility Response Plan Changes Adopted by the Coast Guard – Finally

September 2009 (No. 19)

Maritime Developments Advisory

New Development

On August 31, 2009, the U.S. Coast Guard issued a final rule, effective September 30, 2009, updating its regulations relating to oil spill removal requirements for tank vessel and marine transportation related facility response plans. See http://edocket.access.gpo.gov/2009/pdf/E9-20311.pdf. In addition, the Coast Guard announced it was delaying the compliance date for updating vessel response plans (VRPs), as required by the Salvage and Marine Firefighting final rule, to February 22, 2011 to coincide with the requirement for plan holders to resubmit response plans pursuant to this final rule.

Background

On October 11, 2002 the Coast Guard published a Notice of Proposed Rulemaking (NPRM) proposing changes to on-water oil removal equipment requirements for tank vessel and facility response plans. The NPRM described five alternatives. One alternative was “no action;” the other four alternatives included various options involving On-Water Mechanical Recovery, Dispersants, In-situ Burning (ISB), and Oil Spill Aerial Tracking. After nearly seven years, the Coast Guard has finalized the rule.

On December 31, 2008, the Coast Guard published the Salvage and Marine Firefighting final rule, amending the VRP salvage and marine firefighting requirements for tank vessels carrying oil as cargo. The revisions clarified the salvage and marine firefighting services that must be identified in VRPs and established new response plan requirements for each of the required salvage and marine firefighting services. The compliance date to meet these requirements was originally June 1, 2010.

New Requirements

  • Mechanical Recovery: The Coast Guard concluded that an increase in mechanical recovery equipment requirements is unjustified at this time. It is important to note, however, that this final rule eliminates the option for a mechanical recovery equipment “credit” in the amount of 25% for maintaining certain dispersants capability. This effectively increases mechanical recovery equipment requirements for plan holders previously relying on dispersants as an offset. The Coast Guard noted it would continue to assess the need to increase mechanical recovery requirements.
  • Dispersants: Dispersant equipment is only required in areas where it has been pre-determined that dispersants would be a viable oil spill mitigation technique and pre-authorizations have been established. Previously (but no more), with regard to dispersants for facilities located in an areas with pre-authorization, a mechanical recovery equipment credit for up to 25% could be obtained for certain persistent oils. Under this final rule, in the simplest terms, facilities handling certain persistent oils in areas with pre-authorization must now ensure, through contract or other approved means, the availability of dispersant response resources and the commencement of dispersant-application operations within 7 hours of the decision by the Federal On-Scene Coordinator. Dispersant response resources include: (1) sufficient volumes of dispersants to meet specified regulatory requirements, (2) dispersant application platforms and systems sufficient to meet planning standards, and (3) trained personnel.
    Similarly, vessels transporting certain persistent oils in areas where dispersants are pre-authorized must now ensure, through contract or other approved means, dispersant-related response resources meeting new dispersant planning standards, including appropriately trained dispersant-application personnel. The dispersant resources must include the identification of each primary dispersant staging site used by each dispersant-application platform and the corresponding distance to the associated stockpile. As an alternative, the planholder may cite an Oil Spill Removal Organization (OSRO) in lieu of providing the specific information in its response plan if the OSRO has been evaluated by the Coast Guard to meet these new dispersant requirements.
  • In-Situ Burning: The Coast Guard decided not to include ISB or burn credits against mechanical recovery equipment requirements proposed in the NPRM. Thus, ISB is eliminated from the regulatory scheme. According to the Coast Guard, comparison of the high cost of ISB equipment versus the minimal applicability of ISB justified removing ISB from the regulatory scheme. Furthermore, the Coast Guard noted the ISB pre-authorizations provide sufficient incentives to encourage planholders to stockpile ISB equipment in certain areas without requiring it in the regulations.
  • Aerial Tracking: The Coast Guard concluded that aerial tracking is necessary and appropriate to ensure efficient response actions. Under this final rule, aerial tracking resources must be capable of arriving on scene in advance of the arrival of response resources identified in a plan for Tiers 1, 2, and 3 Worst Case Discharge response times and for a distance of 50 miles or more from shore. Aerial tracking resources must include: (1) appropriately located aircraft and people to meet response times, (2) sufficient number of aircraft, pilots, and trained surveillance personnel to support oil spill response operations commencing from assessment and capable of coordinating on-scene cleanup operations, and (3) the capability of supporting oil spill removal operations continuously for three 10-hour operational periods during the initial 72 hours of the discharge.

Delay in Implementation of Salvage and Firefighting Requirements

The implementation date for incorporating salvage and firefighting requirements into VRPs was extended from June 1, 2010 to February 22, 2011, consistent with the requirements of this final rule, so that plan holders are not required to update their VRPs twice within a 12-month period.

Conclusions and Recommendations

Affected plan holders should review the final rule and take all necessary measures to ensure that an updated response plan is submitted by February 22, 2011 to comply with the updated response planning requirements under the final rule.

Notice: The purpose of this Maritime Developments Advisory is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy and completeness of which cannot be assured. The Advisory should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.

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