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Sunday, April 22, 2018

CALIFORNIA UNNANNOUNCED DRILLS

For several months the State of California has indicated that it will commence a programme of unannounced drills to test the adequacy of vessel contingency plans and response assets.  On 25 April 2001 the State's Office of Spill Prevention and Response issued what it represents are "final" Guidelines and Objectives for the drill programme.  INTERTANKO has been actively engaged in efforts to dissuade the State from initiating this programme based on concerns about costs, responsibility of QIs and OSROs, the negative logistics of use of response assets in drill contexts, concerns about the safety of vessels and cargoes during transfer operations, and the vagueness of the relationship between state and federal requirements as they relate to response planning.

Despite these objections, our legal advisors have consistently reported that personnel within OSPR seem determined to commence unannounced drills at the earliest opportunity.  INTERTANKO’s efforts to date appear to have slowed the process of adopting final guidelines and have resulted in some narrowing of the State's proposed requirements,  However, our assessment remains that California officials feel compelled to conduct visible, active drilling of vessel response capability despite concerns raised by INTERTANKO and others.  We therefore repeat earlier advice that INTERTANKO members alert masters and officers to the possibility of unannounced drills during transfer operations at California facilities and that there be active communications between members and their QIs and OSROs on this issue.

While we believe it likely that at least one or two drills will be staged in the coming weeks, our US representatives have received indications over that past two days that US federal authorities may be taking an interest in the matter.  Our lawyers have advised that the Supreme Court's ruling in INTERTANKO v. Locke appears to have undermined any claim by the individual states of the United States that they have a right to regulate spill response, that subject being a matter of preeminent federal concern.  This view is a departure from the traditional assumptions in the U.S. that response planning is a shared state/federal responsibility.  While this view runs counter to past practice in the US, we are advised that it stands on sound analytical foundations.

We are advised that federal authorities are attempting to engage the State officials in a dialogue on whether the legitimate interests of the two levels of government can be accommodated.  Of course, INTERTANKO’s preferred outcome is that the States withdraw entirely from this field.  It appears to us that differential state approaches to response planning are beginning to have measurable negative consequences for INTERTANKO members.  However, as a matter of near-term practical result, we are hopeful that federal involvement in State planning exercises will forestall major sources of cost and confusion for vessel planholders and will protect the overall national response system that was set up by the U.S. Oil Pollution Act of 1990.  Any disciplined federal involvement in what is apparently becoming unbounded State enthusiasm for dreaming up exercises for vessel owners, their QIs and their OSROs would be an improvement over the present situation.

While federal interest may even stimulate California to assert its authority, we view indications of federal interest, however belated, to be a positive development. In the meantime, INTERTANKO’s US representatives have been instructed to press the State aggressively in an effort to convey the wisdom of avoiding situations that burden national response assets and the industry without any gain in environmental protection.  We will continue to report as developments warrant. For comments and questions please contact Svein Ringbakken (LegalandDocumentary@intertanko.com )