The USCG published proposed rules (NRPM)
in the Federal Register on March 31, 2000 for Facility Response Plans for
hazardous substances (chemicals) in accordance with the Clean Water Act (CWA),
amendments in the Oil Pollution Act of 1990 (OPA’90) amendments. The proposed
rule for vessels were published in the Federal Register one year before
and caused quite stir.
This proposal seems to have a more
moderate tone and is more sensitive to the differences between chemicals and
oil. The proposal for vessels seemed to attempt to treat oil and chemicals
the same way. The March 1999 proposal for vessels seemed much more alarming.
The $64 question remains: Has the Coast Guard put together a package that is
responsive to industry and public needs or does it just appear on the surface
to be responsive and underneath being the same high handed arrogance?
My suspicion is that both are true. The
proposal has been softened somewhat but still has a harsh underpinning.
The list of chemicals included in the
proposal is limited to those hazardous materials listed in the CWA and in
regulations at 40 CFR Part 116.6. This list includes most if not all of the
seriously dangerous chemicals. The Coast Guard was under pressure to broaden
the list but determined that they could not because of limits in the law.
Jurisdiction of transfer operations for
oil are based upon the capacity of the vessel as well as the means of
transfer. Under this proposal, jurisdiction is based upon means of transfer
alone without regard to capacity of the vessel or even quantity transferred.
Basically any transfer to or from a tank while the tank is on board a vessel
is considered a bulk transfer and makes this proposed rule applicable. The
Coast Guard believes (and rightly so) that small quantities of these cargoes
spilled can still be toxic to people and the environment.
A curious issue that the USCG raises
involves shipments of CWA chemicals that are mixtures with other substances
not on the CWA list.
Chlorine is a deadly chemical, but it is
also used in drinking water and swimming pools. Taken to the extreme that
could make transfers of chlorinated drinking water subject to the planning
requirements of this proposal. As a consequence and other similar mixture
issues the USCG proposes that only mixtures that contain 10% or more by weight
of a single CWA chemical would be subject to the planning requirements.
The term “adverse weather” is defined
unusually. Everyone knows what adverse weather is: Rain, high wind,
hurricanes, etc. In this proposal “adverse weather” means those environmental
conditions that magnify the risk when a hazardous substance discharge occurs
and must be considered when identifying response resources in a response
plan. This seems extremely foolish because it presupposes that people will
know what environmental conditions will exacerbate the incident and will lead
to a great deal of confusion. They need to use a different term for
reasonable people to understand what they are talking about.
The substantive part of the proposal
seems much a kin to last years proposed rules for vessels. The risk
based decision support is still required. This section must identify,
evaluate and control the risks to human health and the environment following a
hazardous substance incident. The real problem with this requirement is that
the risk decision support systems will be reviewed and approved by the USCG.
If it contains any errors that may not be apparent in the unpressured plan
writing and approval environment will the USCG and other government officials
allow process modification stat? This could be an extremely serious
oversight. The proposal indicated that the risk support system may take the
form of a decision tree, an automated decision support system or any other
format that meets the elements. It is clear that the Coast Guard is
attempting to remove the need for experts to handle spills. Part of the
problem is that it is not the true experts in chemical response that write
response plans. It is basically administrators. I’m not sure that I want to
rely on a USCG approved decision support system created by an administrator.
It is probable that the USCG does not see the trap that they are setting for
us.
One of the serious problems with this
regulatory effort is similar to other of the USCG’s maritime regulatory
projects. The USCG establishes high training standards for commercial
personnel involved in various activities such as chemical response and then
judges the training of professionals engaged in activities that they have been
performing commercially for years. USCG officials without similar
accreditation judge, second-guess and countermand actions of professionally
qualified individuals.
In the instant case the USCG is proposing
that the Qualified Individual (QI) receive certain minimal training (which is
a good thing – at least in general). The proposed training includes “Incident
Commander” under the HAZWOPER system. This position has certain moral and
legal responsibilities under that system. The USCG routinely rules on how the
HAZWOPER rules are to be interpreted during marine incidents and response
efforts carried out, often overriding the “Incident Commander.” Such actions
are not based upon training or qualification but rather their assigned
position.
Chemical response is a serious business.
Only highly qualified professionals should be involved. For over half a
century, we have seen the USCG regulate the maritime with often unqualified
personnel. Every time a Coast Guard inspector or manager becomes competent in
his job, he is reassigned.
Chemical response efforts cannot be
staffed by trainees. Is the USCG prepared to dedicate the responses necessary
to keep every MSO and every District office staffed with professional
qualified individuals or will they use trainees as they have always done. in
the past.
This is dangerous stuff. Does the USCG
have the budget and the will to adequately train its personnel or will it be
more of the same with industry bearing the brunt of lack of USCG focus on the
issues.
Under the OPA’90 USCG (or EPA) is
directly in charge of oil and chemical spills. Why do they not then
adequately train their personnel?
Only time will tell.
