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INSIGHTS: GOVERNMENT UPDATE n August 18, 1990, the Oil Pollution Act of damage. On 9 January 2011, the small chemical tanker 1990 (OPA 90) was enacted into law. Sec- Seiyo capsized and sank off Sado Island, Japan, spill- tion 4202 of that Act amended the Federal ing approximately 1,000 tons of vinyl acetate mono-
OWater Pollution Control Act (FWPCA or mer. The chief engineer died in the casualty and the
Clean Water Act) to require tank vessels and marine master went missing and is presumed dead. On 8 Janu- transportation-related facilities to prepare and submit to ary 2019, the chemical tanker Aulac Fortune suffered the US Coast Guard plans for responding, to the maxi- an explosion and ? re off Lamma Island, Hong Kong, mum extent practicable, to a worse case discharge, and apparently due to the accumulation of ? ammable gas in to a substantial threat of such a discharge, of oil or a a cargo tank. The explosion could be heard up to 20 km hazardous substance carried in bulk as cargo. The only away. Of the 25 crew members, one died, and another real difference between the requirements regarding went missing and is presumed dead. oil and hazardous substances was that a hard deadline The lesson to be learned is that marine transportation was mandated for oil spill response plans, while there casualties involving chemical tankers are few in num- was no deadline for hazardous substance spill response ber, but have the potential for high consequences.
plans. The chemical transportation sector has undertaken
Working diligently, the Coast Guard, the maritime a variety of measures to minimize the risk of marine industry, environmental advocacy groups, and other transportation casualties. The US Congress, though, stakeholders developed regulations for an oil spill re- was of the opinion that more needed to be done, partic- sponse regime and the required plans were submitted to ularly with regard to coordination between that industry and approved by the Coast Guard within the statutory and federal agencies such as the US Coast Guard and timeframe. Once that project was completed, the Coast the Environmental Protection Agency (EPA). Those
Guard commenced initial planning for the signi? cantly agencies have reached the conclusion that the industry more complex hazardous substance (HazSub) spill re- efforts are satisfactory.
sponse plans. This new project was more complex for On 25 June 2018, the EPA issued a notice proposing a variety of reasons. There are numerous HazSubs (see no new HazSub spill prevention and response require- 40 CFR Part 116), each with its own characteristics. ments under OPA 90. On 8 February 2019, the US
While oil and oil products are transported by numer- Coast Guard issued notices withdrawing its previously ous marine carriers and facilities (a few of which re- proposed rulemakings for HazSub spill response plans quire close supervision), HazSubs are transported by for tank vessels and marine transportation-related fa- a lesser number of marine carriers and facilities, the cilities. The Coast Guard stated in those notices that vast majority of which are highly professional. Thus, the proposed rules are no longer appropriate due to the
HazSub spills are few in number and generally of small current state of spill response in the chemical industry. quantity. That does not mean that HazSub spills never The Coast Guard avers that it remains committed to ful- occur. ? lling its OPA 90 mandate and intends to better analyze
On February 28, 2004, the chemical carrier Bow the current spill response capabilities of the chemical
Mariner, sailing approximately 45 nautical miles off the industry before conducting any further rulemaking in
Virginia coast, caught ? re and exploded while the crew this area.
was engaged in cleaning residual methyl tert butyl ether In my opinion, the EPA action is contrary to the Con- (MTBE) from cargo tank number eight starboard. The gressional mandate. The failed Coast Guard rulemak- tank vessel sank about 90 minutes later. Of the crew of ing, on the other hand, constitutes a failure of imagina- 27, only eight survived. The cargo of over three mil- tion. While the chemical industry is to be lauded for its lion gallons of ethyl alcohol was released, along with safety record, there are certain measures, required by the vessel’s fuel oil. From an environmental viewpoint, OPA 90, that appear to be missing. The law requires ethyl alcohol is not a designated HazSub and dissipates the appointment of quali? ed individuals empowered rapidly in water. Almost all chemical carriers, though, to implement spill response plans and the sharing of are frequently engaged in the carriage of HazSub and those plans with the federal government. The chemi- signi? cant volumes of HazSubs are transported through cal carriers and facilities are required to have under
US ports. contract spill response contractors (similar to OSROs)
Other chemical tanker accidents have been docu- and salvage and marine ? re? ghting (SMFF) resource mented. On 17 December 1985, a chemical tanker was providers so that response contracts do not have to be loading benzene at a chemical facility in Kurashiki, Ja- negotiated after a casualty occurs. Regular drills and pan. A Te? on ring had been inserted between a guide exercises are also required. pipe and a ? oat of a level gauge of the tanker to prevent I recommend that the Coast Guard meet with the ma- noise. The Te? on ring insulated the ? oat against the rine transportation chemical sector and determine which hull and an electrical charge accumulated. A spark was current industry measures can be considered as provid- generated, igniting benzene vapor in the headspace of ing an equivalent level of safety to measures mandated the hatch, resulting in an explosion and ? re on the ves- in OPA 90. The gaps identi? ed can then be ? lled in a sel, which spread to the pier. The tanker was towed rulemaking. This will meet the Congressional require- away from the pier. Fires on both the tanker and the ments while simultaneously improving safety, security, pier were extinguished. The tanker suffered extensive and protection of the marine environment.
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