Tanker Spills and Preserving OPA 90 Experience

Rik van Hemmen, Contributor

Rik van Hemmen is the President of Martin & Ottaway...

October 13, 2023

The maritime industry has seen a very long sequence of environmental regulations since the first implementation of MARPOL in the early 1970’s. All of these regulations have very much benefitted the ocean environment and also our industry to some degree. One of those regulations, OPA90, has had an outsized effect to an extent that it may no longer be as effective as it was in recent years due to its own success.

Tanker oil spills in the United States have become so rare that people with actual U.S. response experience are now reaching retirement age without a new cadre of responders with actual spill response experience taking their place.

OPA90 was a unique law that not only existed to reduce a problem, but also resulted in regulations that improved the ability to respond to a problem when it occurs. There have been other regulatory attempts like this such as FEMA, but OPA90 both reduced the problem and created a very effective system of dealing with the problems when they occurred.

This effectiveness relates to the unique combination of participants in an OPA90 response, which forces commercial interests to deal with the problem under government oversight, and with the threat of possible federalization if the commercial response is inadequate. This is quite different from a FEMA response which may have commercial contractors, but no commercial responsibility for the response.

OPA90 creates an interesting situation where both commercial interests and government interests try to achieve the best possible outcome. At first glance the best possible outcomes may not be the same, since the commercial interest wants to spend as little as possible, while the government wants to achieve the highest level of public approval. However, in an actual disaster scenario, these goals align as long as the stakeholders know how to cooperate.

One may wonder why a government supervisor may be interested in spending as little as possible, but in disaster response the cost of the response is directly related to the duration of the response, and governments strongly benefit by fixing a disaster as quickly possible. Similarly, a well-run commercial interest never ignores the public’s response.

In creating the regulation, the USCG built a response infrastructure that is known as the Unified Command System. That UCS approach was not new, but with OPA90 it first introduced a large-scale catastrophe response system where commercial entities were responsible for the response with government entities providing an oversight function.

Since this approach was new, it took a fair amount of time for all stakeholders to find their place and, most importantly, to establish decision making routines that were most effective in achieving the fastest possible results.

In having lived through the creation of, and improvements to the system, I well remember strange oversights or decision-making failures in the Unified Command System that received careful review after each OPA90 incident.

These were lessons learned, and while they were generally recorded, humanity is bound to repeat mistakes when humans with specific knowledge depart the scene.

I was not involved in the command structure of the Deepwater Horizon, but well remember watching a press conference where the participants were making basic presentation and responsibility mistakes that had been learned in earlier OPA90 responses, but apparently were not known to the Unified Command for the Deepwater Horizon.

Some of those were technical mistakes, but more often they were strategic, tactical, leadership, communication, or decision making (game theory) mistakes and many quite basic.

For rapidly developing, technically uncertain problems such as oil spills, salvage situations, or major technology failures there is a set of Ground Rules that applies almost universally, and when these Ground Rules are absorbed and applied in rapidly developing scenarios, they become second nature and massively increase response effectiveness, both at an individual stakeholder level and at the combined level.

There is no space for a full explanation of these Ground Rules in this column, but the entire package of Ground Rules, including explanations, is probably no larger than the size of a Broadway playbill and it makes sense to at least collect them. Even more importantly they should be exercised and passed on to the next generation if we want to preserve our national ability to respond to disasters.

To provide some insight into the type of Ground Rules that have come from OPA90 experience let me provide a few examples:

A response that is too large is as ineffective as a response that is too small.
Stage, but only deploy as needed.
Never reject conflicting data, instead integrate it in the response and then evaluate.
Never commit to one technical response, always have a Plan B ready.
Colorful story telling is incredibly effective in decision making training.
Manage and update your risks continually.
On technical disasters the truth is very hard to hide.
Oversight does not mean making a reasonable response more complicated or burdensome.

These sample Ground Rules require further explanation in the training setting and have underlying experiences and war stories that are fun (or sometimes horrifying) to relate to the next generation.

If these Ground Rules are not fully absorbed by all stakeholders, it can result in frustrations that result in response delays. For example, the last above noted Ground Rule; “Oversight does not mean making a reasonable response more complicated or burdensome” is often violated in smaller disasters such as non-spill minor salvage responses where government oversight is required.

This results in an undesirable effect. A reputable salvage company prepares a salvage plan that is reasonable and realistic and that can be immediately implemented. The plan is sent for review, but the plan reviewer wants to show that they have the power and knowledge to insert their opinions and provides additional requirements. This then results in further discussions and, once agreement on those further requirements has been achieved, the need for the salvor to bring in the resources to meet the additional requirements.

This then results in a delay in the response, additional costs, and the appearance of response ineffectiveness to the public due to delays. Moreover, it raises many additional issues such as: Is the government reviewer really more capable in designing salvage plans than the reputable salvor? If the salvor needs to add additional requirements after government review, is that salvor really capable of performing the work? Or is the salvor actually purposely simplifying their plan, taking into account that government reviewers will feel compelled to add additional requirements regardless of the viability of the plan anyway?

There are no villains in that scenario, each stakeholder is simply functioning to the best of their ability and responding to their fear of the unknown. However, when all stakeholders have a deeper knowledge of that dynamic, they can adjust their actions to create a more effective approach and that is where mutual training comes in.

These, and many other conceptual OPA90 issues, are being discussed and evaluated in the OPA90 Forum, an industry group of stakeholders that is interested in perpetuating the public benefits of OPA90.

The organization is still in its early stages, but it may be of benefit to stay in touch with OPA90 Forum if at some time in the undefined future one may be faced with having to come up with rapid and efficient solutions to commercial disasters.

For each column I write, MREN has agreed to make a small donation to an organization of my choice. For this column I nominate New Jersey Marine Mammal Stranding Center. Almost 50 years and thousands of turtle, seal, and dolphin rescues later, we can forgive them for confusing reptiles with mammals.