OPA ’90 is just the first layer

Complying with the Oil Pollution Act of 1990 is only the first step vessel owners and operators must take to meet oil pollution regulation requirements. 

While OPA ‘90 preempts state law in certain areas, it allows states to impose additional response, liability, and financial guarantee requirements. Many states have passed requirements that are more stringent than OPA ‘90. As states continue to pass their own laws for spill response and financial responsibility, vessels are faced with an increasingly complex patchwork of statutory requirements. 

For example, Massachusetts recently passed a comprehensive statute that addresses oil spill prevention and response as a result of last year’s Buzzards Bay spill. The legislation increases the penalties for spills, implements local navigational rules, mandates the use of a vessel traffic scheme and escort tugs in certain areas, and establishes a 2-cents-per-barrel fee on oil receipts to establish a $10 million fund for state and local spill response. 

Additionally, due to the spill, proof of financial responsibility is now required for vessels that carry oil and hazardous cargo in Massachusetts.

The law was effective immediately without an opportunity for the Massachusetts Department of Environmental Protection to issue regulations. (The DEP has issued an interim guidance, which can be found at www.WQIS.com/guidance.)

The barge and tanker industries and the U.S. Coast Guard are questioning the Massachusetts legislation. They believe OPA ‘90 preempts provisions addressing requirements for tug escorts, drug testing for mariners, and manning and watchstanding. In a letter to Massachusetts Gov. Mitt Romney, the Coast Guard expressed concerns about “redundancy and overlapping regulation.” 

State oil pollution requirements have a big impact on vessel operations  due to the number of separate regulations that must be complied with and the potential penalties. As of now, operators face a period of uncertainty when operating in Massachusetts’s waters, especially since some of the provisions of the state’s legislation may by challenged in court. 

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