Update on Massachusetts oil spill response legislation

The American Waterways Operators (AWO) and INTERTANKO have been active after the Massachusetts Governor Mitt Romney on 4 August 2004 signed into law the Oil Spill Response Bill with specific State requirements for ships carrying petroleum products in State waters (see Weekly NEWS No 31 and 32).

AWO, INTERTANKO, and the U.S. Coast Guard previously advised Massachusetts officials that this legislation had several constitutional problems, according to the U.S. Supreme Court ruling in the previous landmark case of INTERTANKO versus the State of Washington. Following joint agreements, INTERTANKO and AWO have been pressing for Federal intervention with the State to assert the supremacy of Federal regulation, in accordance with the INTERTANKO/Washington ruling.

The only other alternative is that the industry itself contemplates initiating litigation to declare the Massachusetts provisions unconstitutional.

To date, AWO and INTERTANKO have instructed their Counsel, Jonathan Benner of Troutman and Sanders, to ask the Massachusetts Attorney General to instruct the State Department of Environmental Protection to delay enforcement of the provisions until the federal/state jurisdiction issues can be worked out. This was conveyed in a letter sent by Troutman and Sanders on 17 August 2004. An answer from the Attorney General office is expected imminently.

To the best of our knowledge, there has been no further activity by State agencies to enforce the provisions of the act. We are told that AWO members who are operating in Massachusetts waters are taking measures to comply with the provisions as they understand them while awaiting further clarification of the status of the new law. So far, the State DEP has posted on its web site guidance for maritime operators http://mass.gov/dep/bwsc/spillact.htm. that treats the provisions as effective immediately.

As part of our strategy, we had a meeting with Rear Admiral John Crowley, Judge Advocate General of the Coast Guard, to urge the U.S. Coast Guard to intervene with Massachusetts authorities. RAdm. Crowley indicated that the USCG finds the provisions of the Massachusetts law to be unconstitutional. However, there was no indication as to whether or not the Coast Guard intends to sue the State. An alternative which the Coast Guard might contemplate is to issue an Advanced Notice of Proposed Rulemaking (ANPRM) covering matters affecting the regional rulemaking and containing a strong federalist statement. However, AWO and INTERTANKO do not believe that an ANPRM will address this issue entirely and properly.

The next steps are meetings with RAdm. Gilmour on 10 September 2004 and, if appropriate and necessary, with the USCG Commandant Admiral Collins. AWO and INTERTANKO will do everything they can to pursue their main objective of convincing the Coast Guard to take the initiative and reassert control over provisions of the Massachusetts new requirements which are in breach of the Coast Guard’s own prerogatives.

In order to better prepare and back up our arguments, members’ assistance is necessary and would be greatly appreciated. We would be interested to learn of:

- the costs for the use of state pilots in Massachusetts

- the costs for tug escorts

- whether your tankers used state pilots and/or tug escorts before August 2004 or not

- your estimate of any additional operational costs for compliance with the new regulation.

Contact: Dragos Rauta