OPA 90 Hazardous Substance List expansion proposed in 2003 Coast Guard Authorization Act

The Coast Guard Authorization Act of 2003 includes within its text a proposal to increase the number of chemical cargoes subject to vessel and facility response plan requirements.

The current list of hazardous substances currently covered by these requirements will be expanded to parallel international requirements. This proposal has not yet been introduced in Congress.

The Oil Pollution Act of 1990 (OPA 90) requires owners and operators of tank vessels and facilities to prepare response plans for responding, to the maximum extent practicable, to a worst case discharge, or a substantial threat of such discharge, of oil or a hazardous substance. Current regulations do not apply to owners and operators of non-tank vessels, and are limited to hazardous substances under the Federal Water Pollution Control Act ("FWPCA") also known as the Clean Water Act. The Coast Guard has yet to publish a final rule for hazardous substance response planning requirements for either facilities or vessels. The comment period for the Notice of Proposed Rulemaking (NPRM) closed in late 1999.

In a December 1999 Response to the OPA 90 Hazardous Substance Response Plan (HSRP) Docket INTERTANKO requested that the US Coast Guard consider harmonisation with regulations under Annex II of the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78). In its formal submission to the docket INTERTANKO stated:

“This rule regulates a very narrow list of chemicals, called Hazardous Substances (HS), and designated by the Environmental Protection Agency (EPA) under the Federal Water Pollution Control Act (FWPCA). This list of HS contains as few as 83 which may be carried in bulk as cargo. Conversely, MARPOL, Annex II lists over 650 Noxious Liquid Substances (NLS) carried in bulk as cargo. A newly adopted Regulation 16 to Annex II to MARPOL will require emergency plans for the entire list of NLS and not just those few chemicals designated as HS. “

Enactment of the Coast Guard Authorization Act of 2003 would authorize the Coast Guard to issue regulations to expand the current list of hazardous substances for which they may require response plans to other marine chemical cargoes beyond those currently listed under the FWPCA. The Coast Guard Authorization Act of 2003 would expand the group of chemical cargoes for which the Coast Guard may require response plans under OPA 90 by including in that group the Noxious Liquid Substances ("NLSs") regulated under Annex II of MARPOL 73/78. This discrepancy over “lists” has been a major obstacle to progress in this rulemaking.

Just as INTERTANKO requested in its 1999 comments, the 2003 Act aims to harmonize the domestic list of regulated bulk cargoes with the internationally maintained NLS list. The proposed legislation would not mandate, but would authorize, the Coast Guard to issue regulations to require an owner or operator of a tank vessel, non-tank vessel, or facility to prepare a response plan for responding to the maximum extent practicable, to a worst case discharge, or a substantial threat of such discharge, of a NLS.

Enactment of this proposal would also authorize the Coast Guard to require owners and operators of tank vessels, non-tank vessels, and facilities that handle NLS cargoes that are currently not regulated under the FWPCA to prepare response plans for such cargoes.

Contact: Dragos Rautaor Margaret Doyle