NVIC 01-07: OSRO resource movements during significant pollution events

Commandant 2100 Second Street, S.W. United States Coast Guard Washington, DC 20593-0001 Staff Symbol: CG-3PCV-1 Phone: (202) 272-1226 Fax: (202) 372-1917 Email: Robert.L.Smith@uscg.mil JANUARY 23 2007 COMDTPUB P167004A NVIC 01-07 NAVIGATION AND VESSEL INSPECTION CIRCULAR (NVIC) 01-07 Subj: GUIDANCE ON VESSEL AND FACILITY RESPONSE PLANS IN RELATION TO OIL SPILL REMOVAL ORGANIZATION (OSRO) RESOURCE MOVEMENTS DURING SIGNIFICANT POLLUTION EVENTS

Guidance on vessel and facility response plans in relation to Oil Spill Removal Organization (OSRO) resource movements during significant pollution events. — PURPOSE. This document provides guidance to Coast Guard units, vessel and facility plan

holders, Oil Spill Removal Organizations (OSROs), and other members of the public in connection with spill removal resource movements after an oil spill associated with a significant pollution event such as a Spill of National Significance (SONS) or an Incident of National Significance (INS).

Guidance on vessel and facility response plans in relation to Oil Spill Removal Organization (OSRO) resource movements during significant pollution events. — DIRECTIVES AFFECTED. None

DIRECTIVES AFFECTED. None

Guidance on vessel and facility response plans in relation to Oil Spill Removal Organization (OSRO) resource movements during significant pollution events. — ACTION.

a. Captains of the Port (COTPs) and Officers in Charge, Marine Inspection (OCMIs) are encouraged to bring this guidance to the attention of the maritime industry within their area of responsibility. b. This NVIC is available on the World Wide Web at www.uscg.mil/hq/g-m/nvic/. Within the Coast Guard, it will be distributed by electronic means only. DISTRIBUTION – SDL No.139 a b c d e f g h I j k l m n o p q r s t u v w x y z A B 8 * 5 26 1 2 34 C * * D 1 2 1* 1* 1* E 2 * F 1 G H NON-STANDARD DISTRIBUTION: (See page 6) NAVIGATION AND VESSEL INSPECTION CIRCULAR 01-07

Guidance on vessel and facility response plans in relation to Oil Spill Removal Organization (OSRO) resource movements during significant pollution events. — BACKGROUND.

a. A major feature of the National Response System under the Federal Water Pollution Control Act (FWPCA) is the requirement that owners or operators of certain facilities and vessels have approved response plans that identify and ensure the availability of personnel and equipment, by contract or other approved means, to remove to the maximum extent practicable a worse case discharge or to mitigate or prevent a substantial threat of such a discharge. b. Following Hurricanes Katrina and Rita, vessel owners were concerned whether they would be in compliance with statutory and regulatory oil spill response plan requirements if they were to remain in operation while contracted OSROs were responding to spills and thus unable to provide full coverage to meet Average Most Probable Discharge (AMPD), Maximum Most Probable Discharge (MMPD) and Worst Case Discharge (WCD) provisions of their vessel response plans. Some vessel owners and operators took the position that continuing to conduct operations was an unacceptable risk and began to cease operations. This threatened to reduce critical petroleum transportation in the Gulf of Mexico; a significant national concern. c. Based on concerns over limited OSRO ability to fulfill pre-existing spill response agreements after Hurricanes Katrina and Rita, vessel owners submitted to the Coast Guard requests for relief from response plan requirements. In response, the Coast Guard accepted temporary amendments to vessel response plans. Following the emergency, a Coast Guard- Industry workgroup was established to review lessons learned and to explore ways to improve the process for approving departures from established plans during extra-ordinary circumstances.

Guidance on vessel and facility response plans in relation to Oil Spill Removal Organization (OSRO) resource movements during significant pollution events. — DISCUSSION.

a.

General.

The FWPCA requires that a response plan “identify, and ensure by contract or other means approved by the President the availability of, private personnel and equipment necessary to remove to the maximum extent practicable a worst case discharge (including a discharge resulting from fire or explosion), and to mitigate or prevent a substantial threat of such a discharge,” (33 USC § 1321(j)(5)(D)(iii)).

When response plan requirements were implemented as mandated by the Oil Pollution Act of 1990, the final rule established three levels of response coverage to address the FWPCA statute.

Specific response resources and arrival times for worst case discharge (WCD), maximum most probable discharge (MMPD) and average most probable discharge (AMPD) scenarios were promulgated in 33 CFR § 154 Subpart F (Facilities) and § 155 Subpart D (Tank Vessels).

Owners or operators of vessels and facilities are required to ensure to the Coast Guard, by contract or other approved means, the availability of WCD, MMPD and AMPD response resources.

In the event of a significant national or regional pollution incident, these planned for response resources may be deployed away from the COTP zone in which they are normally assigned.

Depending upon how these response resources are relied upon by planholders, (WCD, MMPD or NAVIGATION AND VESSEL INSPECTION CIRCULAR 01-07 AMPD) there are important planning distinctions that should be understood by all and which are discussed below.

As experienced with the aftermath of Hurricanes Katrina and Rita in the summer and fall of 2005, the maritime industry may experience problems with the “availability” of these response resources.

The Coast Guard is committed to taking a flexible approach to compliance in these circumstances that will enable commerce to continue, while meeting the mandates of OPA 90.

Considerations in exercising flexibility include: i.

Planning vs.

Performance Standards.

A plan holder must ensure by contract or other approved means that response resources are available to respond, however, the response criteria specified in the regulations (e.g., quantities of response resources and their arrival times) are planning criteria, not performance standards, and are based on assumptions that may not exist during an actual oil spill incident, 33 CFR § 154.1010 and 155.1010.

Compliance with the regulations is based upon whether a covered response plan ensures that adequate response resources are available, not on whether the actual performance of those response resources after a spill meets specified arrival times or other planning criteria.

Failure to meet specified criteria during an actual spill response does not necessarily mean that the planning requirements of the FWPCA and regulations were not met.

The Coast Guard will exercise its enforcement discretion in light of all facts and circumstances. ii.

Federal Direction and Monitoring.

In certain circumstances, the Coast Guard may assist in the allocation of response resources to multiple discharges or threatened discharges.

The FWPCA specifically authorizes the President to remove or arrange for the removal of a discharge and direct or monitor all Federal, State and private actions to remove a discharge (33 USC § 1321(c)(1)(B)). iii.

Exemptions Authorized.

If warranted, the U.S.

Coast Guard will give consideration to requests for temporary exemptions from specific response plan requirements on a case-by-case basis as authorized by 33 CFR § 154.108 and § 155.130 where: a. compliance with a specific requirement is economically or physically impractical; b. no alternative procedures, methods, or equipment standards exist that would provide an equivalent level of protection from pollution; and c. the likelihood of discharges occurring as a result of the exemption is minimal. b.

Worst Case Discharge (WCD).

A WCD is defined as, “a discharge in adverse weather conditions of a vessel’s entire oil cargo (33 CFR § 155.1020) or the largest foreseeable discharge of a facility in adverse weather conditions (33 CFR § 154.1029).

The WCD planning requirement set forth in the FWPCA and implementing regulations states that a response plan must “identify, and ensure by contract or other means approved by the President the availability of, private personnel and equipment necessary to remove to the maximum extent practicable a worst case discharge (including a discharge resulting from fire or explosion), and to mitigate or prevent a substantial threat of such a discharge” (33 USC § 1321(j)(5)(D)(iii), 33 CFR § 155.1050(f), and § 155.1052).

NAVIGATION AND VESSEL INSPECTION CIRCULAR 01-07 i.

Availability.

There is no requirement that the equipment identified in a response plan to respond to a worst case discharge must remain within the specific Captain of the Port (COTP) Area as specified in the response plan.

However, the resources necessary to respond to a worst case discharge must be available to meet the response times for the applicable geographic area(s), unless exempted under 33 CFR § 154.108 and § 155.130. ii.

Short Notice Plan Amendments.

During response operations associated with significant pollution events such as a SONS or INS, the Coast Guard may consider requests for WCD requirement relief similar to those provided following Hurricanes Katrina and Rita (described above).

Specifically, that the U.S.

Coast Guard facilitated temporary amendments to response plans without applying the 30 day advance submission requirement of 33 CFR § 155.1070(d) or § 154.1065(b), provided proposed amendments were submitted in writing. iii.

Secondary or Cascading1 Resources.

If planned–for WCD response resources are not available, or have traveled beyond the required response times, secondary or cascading resources may be relied upon if approved by the Coast Guard.

This may mean compliance with any one of the alternatives provided within the definition of contract or other approved means.

(33 CFR § 154.1028 and § 155.1020).

The WCD planning requirement may be met through a number of means as referenced above, and the Coast Guard will exercise discretion in implementation and enforcement of the requirements commensurate with the circumstances (as it did following Hurricanes Katrina and Rita).

There are permissible alternatives to signing formal contracts with OSROs (33 CFR § 154.1028 and § 155.1020).

As long as: the required response equipment has been readily identified; the resource provider has agreed and intends to commit its resources in the event of a response; the availability of these response resources can be verified by the Coast Guard; and the agreement is referenced in the response plan.

The Coast Guard may deem such an arrangement to be consistent with the FWPCA language “other means approved by the President”

(58 FR 7376, 5 February 1993). c. Maximum Most Probable Discharge (MMPD). For a vessel, MMPD means, “a discharge of 2,500 bbls of oil for vessels with a cargo capacity equal to or greater than 25,000 bbls or 10 percent of the cargo capacity, (33 CFR § 155.1020). For facilities, MMPD means, “a discharge of the lesser of 1,200 bbls or 10 percent of the volume of a worst case discharge

(33 CFR § 154.1020).

The MMPD planning requirement set forth in the regulations states that the owner or operator of a vessel or facility must identify in the response plan and ensure the availability of, through contract or other approved means, the response resources necessary to respond to a discharge up to a vessel or facility’s MMPD. i.

Required COTP Notification for Vessels.

During the rulemaking establishing the implementing regulations for vessel response plans, “[t]hirty-five comments were submitted concerned with the vessel owner's or operator’s potential liability if the 1 A “cascade” plan contains an OSRO’s strategy to meet planning arrival times and the availability of response resources for dependent plan holders due to the deployment of response resources.

NAVIGATION AND VESSEL INSPECTION CIRCULAR 01-07 Coast Guard “directed” response resources to another spill.” In response to those comments, the preamble explained that required [WCD] resources must be capable of meeting the planned arrival times, but may be located in an adjacent COTP zone.

It noted that, as to the lesser regulatory “maximum most probable discharge” planning requirements under 33 CFR § 155.1050(e), the COTP must be notified when response resources are not capable of meeting planned arrival times.

If the COTP is notified, a response plan will remain valid and the Coast Guard will not require a plan holder to identify alternate sources of MMPD spill response capability within their plan, but cautioned that: “…it may be prudent for a vessel owner or operator to plan for alternate sources of spill response capability with a response resource identified in the plan.

We cannot exclude owners or operators from their statutory responsibility to clean up a spill or from potential liability if their identified resources are unavailable.” (58 FR 7376, 5 February 1993). ii.

Facilities.

The COTP may determine that mobilizing MMPD response resources to an area beyond the response times required invalidates the response plan.

In this event, the COTP may impose additional operational restrictions (e.g., limitations on the number of transfers at a facility) or, at the COTP’s discretion, may operate with temporarily modified response plan development and evaluation criteria (e.g., modified response times, alternate response resources, etc.), 33 CFR § 154.1045(d)(4). d.

Average Most Probable Discharge (AMPD).

For a vessel, AMPD means “the lesser of 50 bbls of oil or 1 percent of the cargo from the vessel during cargo transfer operations to or from the vessel.” For a facility, AMPD means “a discharge of the lesser of 50 bbls or 1 percent of the volume of the worst case discharge.” (33 CFR § 154.1020 and § 155.1020).

The AMPD planning regulations set forth planning standards for the owner or operator of a vessel or facility to meet response times and to ensure the availability of, through contract or other approved means, the response resources necessary to respond to a discharge up to a vessel or facility’s AMPD. i.

Different by Design.

For vessels and facilities, as opposed to the required WCD or MMPD coverages, AMPD coverage is normally arranged for just prior to when a cargo transfer is taking place.

For vessels, the regulations allow for the switching of an AMPD provider on a case-by-case basis without formal notification to the Coast Guard (33 CFR § 155.1070(c)(5)).

For facilities, a formal COTP notification and response plan amendment is required when changing AMPD providers.

When routine AMPD response resources are moved in response to a significant spill event, it is anticipated that plan holders identify and ensure by contract or other approved means, alternate AMPD resource providers. ii.

Possible Exemptions.

During response operations associated with significant pollution events such as a SONS or INS, the Coast Guard may consider requests for AMPD requirement relief similar to those provided following Hurricanes Katrina and NAVIGATION AND VESSEL INSPECTION CIRCULAR 01-07 Rita, assuming that local AMPD response resources are not available.

Specifically, the U.S.

Coast Guard would consider requests for temporary exemptions from equipment and response time requirements as authorized by 33 CFR § 154.108 and § 155.130, provided proposed amendments were submitted in writing (See paragraph 5.a.iii on this NVIC). e.

OSRO Availability.

The Coast Guard expects that OSRO will honor their contracts or commitments to plan holders.

In general, most OSROs we communicated with indicated they would do this by calling on additional response resources or strategically moving their own resources from other locations.

As noted above, the Coast Guard intends to allow the flexibility to substitute planned resources with equivalent capability, in exigent circumstances. f.

Action Based Process for Response Plan Stakeholders.

Enclosure 1 to this NVIC provides an action based process guide for response stakeholders to follow after a significant pollution incident has occurred.

In particular, this guide provides the Coast Guard, plan holders and OSROs with information for ensuring the availability of response resources after a SONS or INS despite the fact that a respective OSRO may dispatch a large amount of response resources to a discharge for one of its plan holders.

Guidance on vessel and facility response plans in relation to Oil Spill Removal Organization (OSRO) resource movements during significant pollution events. — DISCLAIMER. This document provides guidance to Coast Guard units, vessel and facility

plan holders, OSROs, and other members of the public in connection with spill removal resource movements after an oil spill associated with a significant pollution event. The guidance is not a substitute for applicable legal requirements nor is it a regulation. It is not intended to and does not impose legally binding requirements on the Coast Guard or any other entity. Rear Admiral, U.S. Coast Guard Assistant Commandant for Prevention Encl: (1) Action Based Process Guidance for Response Plans following a SONS or INS. Non-Standard Distribution: D:1 CG Liaison Officer COMSC (Code N-7) CG Liaison Officer RSPA (DHM-22) CG Liaison Officer American Samoa CG Advisor NWC, CG Advisor Panama Canal Commission CG Liaison Officer\JUSMAGPHIL CG Liaison Officer (IMO) London CG Consultant (IMO/SAID) Caribbean NAVIGATION AND VESSEL INSPECTION CIRCULAR 01-07 CG Liaison World Maritime University CG Liaison Officer to Recognized and Authorized Classification Societies U.S. Naval Forces Central Command (1) DOJ Torts Branch (Washington, DC; New York; San Francisco only) (1) MARAD (MAR-600) (5) MARAD (MAR-630) (5) NOAA Fleet Inspector (1) World Maritime University (2) CG Liaison, U.S. Merchant Marine Academy, Kings Point, NY (1)