Op-Ed: A Close Look at Proposed Changes to OPA 90 Salvage Regulations

I read with interest the recent Op-Ed by Joseph E. Farrell, III in The Maritime Executive entitled “New Bill Will Make It Impossible to Change OPA 90 Salvors." My interest sprang primarily from my previous role, when I was on active duty in the U.S, Coast Guard in leading the talented and hard-working staff charged with implementing OPA 90 for the service. Among the many regulatory projects, we undertook was the implementation of the vessel response plan (VRP) requirements.

Secondarily, I serve as the Treasurer of the OPA 90 Forum, Inc., an all-volunteer non-profit organization established to preserve and enhance the intent of the Oil Pollution Act of 1990 (OPA 90). As a non-profit, the Forum shares information regarding OPA 90 (including with Congress), but does not lobby.

The bill about which Mr. Farrell writes, H.R. 6865, Coast Guard Authorization Act of 2022, includes Section 401: Restriction on Changing Salvors. If enacted into law in its present form, it will limit deviation to the use of a new salvor in an active marine spill response to an entity that meets the standards of OPA 90 as were met by the pre-approved salvor. The draft contract between the responsible party and the proposed salvor, including the time and materials provisions, would have to be reviewed and approved by the Coast Guard in advance so that any change in SMFF service providers will be as seamless as possible. The legislation would also require that Congress be provided, after the fact, with a report describing the deviation and an explanation of how such a deviation is founded in sound principles that are not contrary to the intent of OPA 90 - that being a robust and rapid response based on pre-planning.

I personally had no knowledge of this proposed legislation until after it was approved by the House Committee on Transportation and Infrastructure on March 2, 2022. As an officer of the OPA 90 Forum, I can also state that the Forum had no role in any effort nor knowledge of its undertaking regarding the proposed legislation.

Mr. Farrell asserts: “This section’s proposed change to OPA 90 would make it impossible to change a salvor during a project in U.S. waters.” By “project” I assume he means a response to a marine casualty involving a discharge or the substantial threat of a discharge of oil or a hazardous substance into the waters of the United States. Mr. Farrell’s assertion is inconsistent with the plain words of the proposed legislation, which only says that any replacement salvor must meet the same criteria as the previously contracted and USCG-approved salvor met.

Mr. Farrell states that Donjon-SMIT, after the court ruled against it in litigation against the Coast Guard, “went on to start the OPA 90 Forum, a group with a similar stated vision as the American Salvage Association." Neither Donjon nor SMIT were founding members of the Forum, both joining much later. The stated vision of the OPA 90 Forum follows:

Our vision is to preserve and enhance the intent of the Oil Pollution Act of 1990 (OPA 90). 

While the ASA may have a vision, it is not stated as such on the Association’s website. The ASA is a trade association and lobbies for or against proposals that might affect its members, as trade associations do. It is also an international organization, representing segments of the salvage industry throughout North America, South America, and the Caribbean.

The OPA 90 Forum is a non-profit that does not lobby, but educates with respect to the preservation and enhancement of the intent of OPA 90. It does not take positions on current or proposed legislation or regulations that might have an impact on the intent of OPA 90.  The Forum may provide comment, clarification, and information regarding such impact.

Mr. Farrell asserts that this proposal would “guarantee” that a salvor stays on the project until the project is completed unless the Coast Guard determines that the salvor has failed to satisfy the VRP and the National Contingency Plan (NCP). That is not the standard for deviation from the VRP. The standard is provided in the so-called Chafee Amendment, as follows:

the owner or operator may deviate from the applicable response plan if the President or the Federal On-Scene Coordinator determines that deviation from the response plan would provide for a more expeditious or effective response to the spill or mitigation of its environmental effects. 33 U.S.C. § 1321(c)(3)(B),

The proposed legislation would not change that standard.

The argument then transitions to a bald statement that there are no criteria for the successful outcome of a salvage operation. However, the standard for a successful outcome is that the responsible party remove to the maximum extent practicable a discharge of oil or hazardous substance into waters of the United States and mitigate or prevent a substantial threat of such a discharge. 33 U.S.C. § 1321(j)(5)(D)(iii). The Federal On-Scene Coordinator (FOSC), invariably the USCG for vessel spill response, has full authority to determine when that criteria has been met.

The argument then switches to an extended discussion of wreck removal and how the responsible party is forced into utilizing the VRP-designated salvor as the entity responsible for wreck removal. This is not true. OPA 90 and the implementing regulations and policies do not equate salvage and wreck removal. History provides an excellent example. In 1999 the bulk carrier New Carissa grounded on the beach near Coos Bay, Oregon. A large-scale and expensive response operation commenced under the direction of the FOSC. After most of the bunkers (fuel oil) was removed, the responsible party petitioned the FOSC to authorize the termination of the spill response. The FOSC declined, noting that the remains of the vessel still had fuel and lube oil on board, thus presenting a threat to the marine environment. Some months later, once all the pollutants onboard the remains of the vessel had been removed, the FOSC terminated the spill response. The responsible party and the State of Oregon eventually negotiated a wreck removal plan to resolve allegations of trespass and nuisance, without federal involvement.

The OPA 90 Forum has not taken a position on the proposed statutory amendment, nor will it. Likewise, I am not taking a position on the proposal. However, the Forum is available to advise on the impact to the intent of OPA 90 of this or similar legislation if requested. Whatever the resolution of this issue might be, I trust that it will be informed and thoughtful.

Dennis Bryant is Principal of Bryant's Maritime Consulting and has many years’ experience in the field of maritime regulations. After graduating from the US Coast Guard Academy in 1968, he served 27 years active duty with the Coast Guard, retiring with the rank of Captain in 1995. For three years, he supervised the largest rulemaking project in Coast Guard history to that date: implementation of the Oil Pollution Act of 1990 (OPA 90). In 1995, Bryant joined the admiralty law firm of Haight Gardner Poor & Havens, specializing in the government regulation of ships.