Page 73: of Maritime Reporter Magazine (March 1997)

LEGISLATIVE UPDATE

A Year Of NRDAs

Working Within NOAA's Framework by Bridget Murphy, senior editor

Already notorious for its role as the host of foot- ball's Heisman Trophy ceremonies, New York City's

Downtown Athletic Club is also developing a side- line reputation for bringing together maritime heavies for environmental legislation debates.

Tempers first flared at the club in February 1996 during a discussion of natural resource damage assessment (NRDA) guidelines at a post -North

Cape oil spill conference. In early 1997, industry and government officials convened — once again under the auspices of the Maritime Association of the Port of NY/NJ — to sort through a year's worth of experience gleaned from the application of the

National Oceanic and Atmospheric

Administration's (NOAA's) infant guidelines under

OPA 90 (Oil Pollution Act of 1990).

For those that need reminding, NRDA guidelines function in the restoration, rehabilitation, replace- ment or acquisition of equivalent natural resources and services in oil spill disaster areas. Spills char- acterized by NRDA involvement last year occurred in Point Judith, R.I., after North Cape operations went awry and the ship leaked home heating oil into icy waters offshore New England, and in

Portland, Maine, in the wake of the Julie N spill.

While efforts to amend OPA 90 in the congres- sional arena have not posed a serious challenge to

NRDA guidelines as currently read, the regulations are scheduled to be reviewed by the U.S. Circuit

Court of Appeals, most likely in June. This review was prompted by a petition filed by a group of marine insurers last April which said that the dam- age assessment guidelines are vague, unscientific and could result in R.P.s (responsible parties) being held accountable for costs not directly related to restoration or assessment of spill areas.

The Players

While the NRDA panel assembled at the podium, 1996-97 conference delegates shared an uncanny sense of deja vu as NOAA's Terry Garcia, former general counsel and current acting deputy admin- istrator and assistant secretary of Commerce for

Oceans and Atmosphere; Richard Hobbie, III, president of Water Quality Insurance Syndicate; and Mark Barash from the Department of the

Interior Solicitor General's office, took their places.

Marilyn Lytle, counsel for the NRDA marine insurance petitioners, was also present among dis- tinguished audience members.

To the collective relief of all in attendance, panel members avoided a rehash of last year's mudsling- ing forum and instead addressed the practical ram- ifications of working with NRDA. With the final

NRDA rule published just days before the confer- ence, Mr. Garcia made a point of encouraging industry to collaborate with the government in its role as an environmental trustee. "The goal of

NOAA is to expedite restoration, reduce costs and avoid costly litigation," said NOAA's acting deputy administrator. He stressed that companies should

March, 1997 emphasize pre-spill planning methodology, and attested to the fact that MOUs (memo- randums of understanding) were helpful in managing time and scaling back financial costs incurred during 1996 spills.

In a spirited dialogue, Mr. Hobbie approached the problems of NRDA in an orga- nized manner, in contrast to his self-acknowl- eged anti-NRDA rantings of a year ago. He reiterated his conviction that the guidelines violate OPA 90's double recovery clause, adding that R.P.s have the potential to "get burned" by both federal and state govern- ments after spills. "It is not uncommon in the maritime world for a spill to affect more than one state," said the marine insurance execu- tive, who further explained that since NRDA rules are "unquantifiable," even NOAA's rea- sonable officials could not fairly enforce guidelines which are unprofessional in con- tent.

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