Tank Vessel Chemical Spill Rules Proposed by USCG

(July 1999)

We all know OPA 1990 contained directions to EPA and the USCG concerning incident response planning and handling with respect to oil. Many of us forget the Act contained similar requirements for chemical incidents. The major difference between the two was oil pollution planning requirements were to be completed by EPA and the USCG within a specified time.

There were no such time-directed response planning requirements concerning chemical incidents within the Act.

Initially, in 1990, the USCG took the lead on oil spill response planning and EPA was to take the lead on chemical response planning. For some reason, EPA was unable to move forward and develop effective rules for chemical response plan incident planning. As the rulemaking process was winding down with respect to the oil pollution part of the act, the USCG determined to initiate the chemical planning.

In May of 1996, the USCG published an Advance Notice of Proposed Rulemaking (ANPRM) initiating the regulatory process as more or less a culmination of the USCG efforts to finally resolve the issue. This was a preliminary Notice intended to initiate responses from industry concerning how the USCG viewed the problem.

Recently, on March 22, 1999, the USCG published a Notice of Proposed Rulemaking (NRPM) for tank vessels. There will be another separate rulemaking for facilities. These proposed rules represent the USCG's best opinion as to how these chemical response rules should look in final form.

Notable in this proposal is the USCG's restraint in not selecting the broadest possible range of chemicals to be included. Under some of the various regulatory definitions a hazardous material can be defined is virtually anything that is not distilled water. This proposal limits the chemicals to those substances designated as hazardous substances under the Federal Water Pollution Control Act (FWPCA) also called the Clean Water Act (CWA). These 175 odd substances are listed in 40 CFR 116.4.

In general terms these hazardous materials generally have real hazards associated with them. Applicability of the proposed rule is as one might expect: All U.S. flag tank vessels and any foreign tank vessel operating in the U.S. navigable waters. If they carry (for U.S. vessels, it is authorized to carry) any of the listed hazardous substances, they must have an approved plan. These proposed rules are very similar to the existing oil response plan requirements with a few new additions that came out of OPA '90.

Isn't it odd how we continue to allow thousands of tons of heavy metal laden dirty oil from automobiles to pour onto our streets and percolate through our environment, but rule a sheen generated by a vessel is heinous? Is there a continuing crisis of marine chemical spills? Could it be this proposal is over-regulating a little bit?

Qualified Individuals (QIs) are used in this proposal. It is not assumed he is the same QI that would be used in the event of an oil spill. The proposed rules also address an Incident Commander that may or may not be the QI. The Incident Commander is required to be at the scene (command post) and in charge. The Incident Commander has certain training requirements.

The NPRM requires a plan have private (non-government) response resources available by contract or other "approved means" to respond to a worst case hazardous substance discharge or threat of such discharge. The proposal includes a mandatory requirement that certain individuals with certain specific technical specialties be available on a 24 hour a day basis to be integrated into the spill management team on an as needed basis.

These include:

	Product Specialist
	Toxicologist
	Certified Marine Chemist
	Chemist or Chemical Engineer
	Certified Industrial Hygienist.

While this sounds like overkill, it is conceivable one, or several, of these individuals could be of great value on almost every incident. It cannot be imagined they would all be needed on the same incident.

Probably the most serious new requirement (although possibly not the most expensive) is the requirement each plan contain a Risk Based Decision Support Process.

"This section of your plan must outline processes which will help responders make decisions relating to the identification, evaluation, and control of risks to human health and the environment following a hazardous substance discharge. These outlined processes do not need to be scenario specific, but can be generic in nature. This section of the plan may take the form of a decision tree, an automated decision support system, or any other format that meets the elements described… " and include:

	Risk Identification
	Risk Evaluation
	Risk Control
	Risk Communication

The words are individually understandable, but the overall meaning may escape many.

The USCG had a "Technical Report, Study Written Analysis" prepared and included as part of this regulatory docket. The 692-page report goes into great detail concerning various risks. The USCG wants each transporter to develop a decision support process individually.

It seems quite clear the USCG knows (or should know) what it will accept today. To require individual transporters to individually develop this decision support process seems highly unfair, at best.

Since it is to be applied nationwide, to avoid a great deal of wasted effort and money by industry, the principal version should be generated by the USCG and published by them. By not publishing what they believe to be an appropriate process they will force each company to develop the expertise to develop a decision process the USCG believes to be appropriate.

The USCG views on the subject are never presented to the general public as the USCG opinion of how it should be done as is normally required by the Administrative Procedures Act. This sounds like a way to make sure that the USCG gets what they want and not subject their views to a public rulemaking process. This requirement for the individual development and submission of individual decision support processes provides the USCG with an opportunity to micromanage all manner of industry responses to maritime incidents because of what they require to be submitted in order to obtain approval.

In other words, if they don't submit what the USCG will approve, chemical transporters cannot do business and jobs are lost. It does not matter if the requirement is stated in the rules or simply a matter of policy.

I do not believe it is USCG's intention to be unfair, but it is. I am convinced the way the USCG has proposed the approval of decision support processes has the potential to do great harm to industry and generate tremendous costs.

Well-intentioned bureaucrats often not at the scene or not in possession of adequate knowledge about the specific chemicals or appropriate responses can dictate their views concerning how they believe chemical incidents should be handled.

Every chemical transporter needs to get involved with this project in order to protect their interests.