The national advocate for the tugboat, towboat and barge industry.
Atlantic Region Annual Meeting
Special Session
February 4, 2010
One Ocean Resort Hotel & Spa
One Ocean Boulevard
Atlantic Beach, FL
Table of Contents
Agenda 3
Special Session Issues 5
Vessel General Permit 6
Letter to Chairman Oberstar and Ranking Member LoBiondo 7
Updated 401 Certification Matrix 10
AWO Newsletter Story: Ballast Water NPRM 14
Massachusetts Litigation 15
AWO Newsletter: Buzzards Bay Oil Spill Bill 16
AWO Letter to Hon. Deval Patrick 17
Coast Guard Letter to Hon. Deval Patrick 19
MA Congressional Delegation Letter 22
Secretary Napolitano Letter to Hon. Barney Frank 23
Biographies 24
RADM James A. Watson 25
Notes Page 26
Atlantic Region Annual Meeting
Special Session - February 4, 2010
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AGENDA
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The American Waterways Operators
Atlantic Region Annual Meeting
Special Session
One Ocean Resort and Spa
Atlantic Beach, FL
February 4, 2010
2:00 p.m. – 5:00 p.m.
Call to Order
Mr. Jeffrey Parker, Allied Transportation Company
Safety Briefing
Mr. Jeffrey Parker, Allied Transportation Company
Northwestern University Anchor Sleep/Nap Sleep Research
Ms. Jennifer A. Carpenter, The American Waterways Operators
Vessel Discharges: Recent Developments and Next Steps
Ms. Jennifer A. Carpenter, The American Waterways Operators
Open Discussion
Mr. Buckley McAllister, McAllister Towing
Massachusetts Litigation: Update and Discussion
Ms. Nicole E. deSibour, The American Waterways Operators
Keynote Speaker
RADM James A. Watson, LANTAREA
Adjournment
Mr. Jeffrey Parker, Allied Transportation Company
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SPECIAL SESSION ISSUES
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VESSEL GENERAL PERMIT
Letter to Chairman Oberstar and
Ranking Member LoBiondo
Updated 401 Certification Matrix
AWO Newsletter Story: Ballast Water NPRM
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November 30, 2009
The Hon. James L. Oberstar The Hon. Frank LoBiondo
Chairman Ranking Member
Committee on Transportation and Infrastructure Subcommittee on Coast Guard and
U.S. House of Representatives Maritime Transportation
Washington, D.C. 20515 U.S. House of Representatives
Washington, D.C. 20515
Dear Chairman Oberstar and Congressman LoBiondo:
The undersigned organizations represent U.S. and international vessel owners and operators,
industries that rely on marine vessels to transport essential cargoes in domestic and international
commerce, and labor unions representing the men and women whose work keeps this vital segment
of our economy moving. Together, we want to strongly urge you to continue to work together in a
bipartisan manner to pass legislation that will provide a uniform national approach to regulate vessel
discharges.
We were very encouraged and gratified by your October 21 colloquy during floor debate on H.R.
3619, the Coast Guard and Maritime Transportation Act, and your commitment to leading the
development of a solution to an issue with critical implications for the environment and for the
nation’s economy. We thank both of you for the open demonstration of willingness to come together
on this matter. We believe more must be done.
Simply put, the current statutory framework – in which the Coast Guard regulates ballast water under
the National Invasive Species Act, EPA regulates ballast water and other vessel discharges under the
Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) permit program, and
some two dozen states have established their own requirements for ballast water and other vessel
discharges because neither NISA nor the NPDES program preempts such a patchwork – is untenable.
The absence of a uniform national framework for regulating vessel discharges places maritime safety
at risk, undermines the efficiency of our nation’s transportation system, and does not protect the
environment in the most effective and efficient way possible.
We commend you for your leadership in demonstrating a common desire to seek a solution to this
unacceptable situation. We would like to offer our services to work with you to secure strong,
bipartisan legislation that will solve this untenable predicament.
Thank you for your consideration of our offer.
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The Hon. James L. Oberstar
The Hon. Frank LoBiondo
November 30, 2009
Page 2
Sincerely,
Thomas A. Allegretti Thomas Bethel
President & CEO President
The American Waterways Operators American Maritime Officers
Captain Timothy Brown Joseph J. Cox
President President & CEO
International Organization of Masters, Mates & Pilots Chamber of Shipping of America
Terry Dale Thomas Danjczek
President & CEO President
Cruise Lines International Association Steel Manufacturers Association
Matt Dwyer Jack Gerard
Director of Legislative Affairs President and Chief Executive Officer
American Maritime Congress American Petroleum Institute
John R. Groundwater James L. Henry
Executive Director President and Chairman of the Board
Passenger Vessel Association Transportation Institute
Don Keefe Kendell Keith
President President
Marine Engineers’ Beneficial Association National Grain and Feed Association
Christopher L. Koch Kurt Nagle
President & CEO President & CEO
World Shipping Council American Association of Port Authorities
Brenda Otterson C. James Patti
Legislative Consultant President
American Maritime Officers Service Maritime Institute for Research and
Industrial Development (MIRAID)
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The Hon. James L. Oberstar
The Hon. Frank LoBiondo
November 30, 2009
Page 3
Brian T. Petty Mike Sacco
Senior Vice President-Government Affairs President
International Association of Drilling Contractors Seafarers International Union
Joe Sparano Peter Swift
President Managing Director
Western States Petroleum Association Intertanko
James H. I . Weakley Ken Wells
President President
Lake Carriers’ Association Offshore Marine Service Association
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State 401 Certifications December 2009
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Tier 1 State Problematic Amendments AWO Plan Current/ Recent AWO
Actions Relevant Department
Point of Contact
Massachusetts Prohibition on the discharge of untreated graywater within 3 nm for vessels over 400 gt. Because the VGP uses ITC tonnage, this could affect some of our members
NDS to confirm that most operators do not have an issue with this. If members do have a concern, AWO to work with PVA to discuss concerns with state
JAL will reach out to Constellation and JAC will reach to Ed Welsh
Dept. of Env. Protection
Todd Callaghan/ Paul Hogan
New York BW exchange and saltwater flushing; BW treatment (IMO x 100) by 2012/2013; no graywater discharge after 2012
Try to get extension requests by 6/10/10 if vessels can’t comply
JAC/MVM to touch base with coalition to see what they’re doing on New York
Dept. of Env. Conservation
Frank Zagorski
Ohio Vessels not operating exclusively in Great Lakes: BW treatment (IMO standard) by 2012/2016; discharges of sea ballast can’t contain harmful substances
Great Lakes States Strategy LMM will ask state to clarify that this does not affect inland river vessels
Ohio EPA Eric Nygaard
Pennsylvania BW exchange; BW treatment by 2012 (IMO standards) and 2016 (CA standard)
Try to remove provisions State has requested removal of problematic provisions and, in the meantime, granted exemption from treatment requirement to vessels that applied
Dept. of Env. Protection
Ron Furlan, Christopher Whiteash
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State 401 Certifications December 2009
Page 2 of 4
Tier 2
State Problematic Amendments AWO Plan Current/ Recent AWO Actions
Relevant Department
Point of Contact
Idaho No graywater discharge in certain northern counties
Look to take off list if Tidewater is only company that goes there
JAL will confirm with Tidewater that it is OK to take ID off of list
Dept. of Env. Quality
Barry Burnell
Indiana The IN BW discharge requirements apply only to oceangoing vessels operating in the IN portion of Lake Michigan.
Make sure this is true LMM will confirm if this is true
Dept. of Env. Management
David Carr
Kansas Waters must be free of “solid materials”
Not a priority because of limited vessel traffic
Discovered that “solid materials” only include coal and grain if they are “dumped in the water”; LMM will reach out to KS operators on their thoughts
Dept. of Health and Environment
Michael Tate
Maine No discharge in class SA waters Find out from members if this is problematic
NdS will look into this state further, MVM will provide previous research
Dept. of Env. Protection
Pamela Parker
Michigan Graywater discharges prohibited; The prohibition already exists as part of MI law
Don’t want to draw state’s attention to members’ lack of compliance with existing law.
LMM will get information from the 6 members who operate in MI.
Dept. of Env. Quality
Gerry Saalfeld
Minnesota Comply with state BW permit: treatment (IMO standard) by 2012/2016 for vessels operating in the MN portion of Lake Superior.
Find out if this is a problem for our members
LMM will check with Gregg Thauvette
Pollution Control Agency
Mary Jean Fenske
Missouri State officials allowed to inspect vessels for compliance
Find out if state officials plan on boarding
If they plan to board, LMM will ask them not to since the MOU is coming out
Dept. of Natural Resources
Carrie Schulte
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State 401 Certifications December 2009
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State Problematic Amendments AWO Plan Current/ Recent AWO Actions
Relevant Department
Point of Contact
Nebraska No graywater discharge is allowed into the Lewis and Clark Lake above the dam at Yankton.
Believe that this does not impact AWO members
LMM will confirm where water is, and then take it off the list
Dept. of Env. Quality
Terry Hickman
Tier 3
State Problematic Amendments AWO Plan Current/ Recent AWO
Actions Relevant Department
Point of Contact
California Problematic certification provisions removed, but continued problem due to state actions and loose coalition partners (tank industry) wanting to do study. CA looking at regional permit (has loose buy in from Pacific Region); doesn’t think they have to seek EPA permission to write own permit; sharing info with WA; CA and WA think they can charge fees before 5 years are up for managing permit
JAL will stay involved with state actions
State Water Resources Control Board
Dominic Gregorio
Connecticut No graywater discharge after 1/1/12
Any national standard would include this prohibition
JAC to notify members during Convention that any national standard would include this prohibition (not sure if this happened)
Dept. of Env. Protection
Rick Huntley
Illinois Problematic certification provisions removed, but when permit reopens, may re-add graywater discharge prohibition
Notify members of this possibility
EPA Alan Keller, Sanjay Sofat
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State 401 Certifications December 2009
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State Problematic Amendments AWO Plan Current/ Recent AWO Actions
Relevant Department
Point of Contact
New Jersey Problematic certification provisions removed, but when permit reopens, may re-add graywater discharge prohibition
Notify members of this possibility
Dept. of Env. Protection
Debra Hammond
Oregon State plans on conducting boardings to enforce compliance with VGP
Guidance published stating that states will work with USCG on enforcement and boardings
JAL will continue to monitor situation
Dept. of Environ. Quality
N/A
Washington State plans on conducting boardings to enforce compliance with VGP
Guidance published stating that states will work with USCG on enforcement and boardings
JAL will continue to monitor situation
Dept. of Ecology
N/A
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Ballast Water Treatment Not Warranted for Domestic Tugs and Barges, AWO Says
December 18, 2009
The record for the U.S. Coast Guard’s notice of proposed rulemaking (NPRM) on ballast water discharge standards does not support the application of treatment standards to tugboats, towboats and barges operating exclusively in U.S. waters, AWO told the agency in written comments filed December 4. The rulemaking record does not even discuss the NPRM’s two-tiered approach to ballast water standards, AWO asserted, and is based on the inaccurate assumption that vessels under 100 feet in length, vessels operating on rivers, and tugboats towing astern generally do not carry ballast water and will not be affected by the NPRM. Elaborating on its testimony during the September 8 public hearing in Washington, D.C., AWO urged the Coast Guard to refrain from requiring ballast water treatment on towing vessels and barges in the domestic trade because the record does not supply any evidence that such vessels have contributed to the transfer of invasive species in U.S. waters. AWO also argued that the National Invasive Species Act provides no authority for the Coast Guard to require ballast water treatment systems on vessels that have not operated beyond the Exclusive Economic Zone. AWO’s comprehensive comments to the Coast Guard also urged the agency to:
• Play a lead role in encouraging the Obama Administration to support a uniform federal statutory framework for the regulation of ballast water and other vessel discharges;
• Ensure that the rulemaking record is complete and accurate, following all required procedural steps and reflecting accurate assumptions about the affected vessel population, before proceeding to finalize the proposed regulations;
• Refrain from requiring treatment standards on towing vessels and barges in the U.S. domestic trade. Not only have such vessels not been proven to transport invasive species, but it has not been shown that installing treatment systems on barges and towing vessels is possible or cost-effective.
• Exempt from the proposed requirements other vessels that do not pose a risk of transferring invasive species, such as those using municipal or commercial water for ballast, vessels that do not discharge ballast water in U.S. waters, and vessels that only take on and discharge ballast water in a single Captain of the Port (COTP) zone;
• Eliminate the two-tier discharge standard or, alternatively, provide that a vessel installing a treatment system that complies with the Phase I standard will not be required to replace that system if and when a Phase II standard is implemented; and,
• Conduct a robust and comprehensive practicability review prior to requiring ballast water treatment systems on any class of vessels.
To read AWO’s comments to the docket, please click here. For more information, please contact Jennifer Carpenter or Mary McCarthy at (703) 841-9300, extensions 260 or 254, respectively, or via email at [email protected] or [email protected].
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MASSACHUSETTS LITIGATION
AWO Newsletter: Buzzards Bay Oil Spill
Bill
AWO Letter to Hon. Deval Patrick
Coast Guard Letter to Hon. Deval Patrick
AWO Newsletter: MA Congressional
Delegation Letter
Secretary Napolitano Letter to Hon.
Barry Frank
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Buzzards Bay Oil Spill Bill Signed into Law by Governor Despite Unconstitutionality:
Law to Take Effect Immediately September 25, 2009
On September 24, Massachusetts Governor Deval Patrick signed HB 4247, “An Act Preventing Oil Spills in Buzzards Bay,” despite having had its unconstitutional provisions brought to his attention by AWO and the U.S. Coast Guard. Chief among AWO’s concerns with the new law is a requirement that the Massachusetts Department of Environmental Protection dispatch a state-provided tug escort for unaccompanied tank vessels carrying 6,000 or more barrels of oil through Buzzards Bay. The Coast Guard specifically preempted any “non-Coast Guard schemes relating to vessel routing, manning, and tug escort requirements in Buzzards Bay” through its 2007 Regulated Navigation Area. Additionally, the U.S. District Court has consistently affirmed, in U.S. v. Massachusetts, the Coast Guard’s federal preemptive authority to regulate vessel transits in interstate commerce. As such, passage of this bill into law introduces a significant constitutional conflict. As reported in the July 6 edition of the AWO Letter, both legislative chambers passed a version of this bill in June, numbered HB 4119. Before sending the bill to Governor Deval Patrick’s desk, however, a Conference Committee was formed to resolve differences in the House and Senate versions of the bill. The Committee, composed of members from both chambers, largely left the House version of the bill intact during its deliberations, although HB 4247’s preamble stated that its provisions would take effect immediately upon Governor Patrick’s signature. To read the bill’s Conference Report, please click here. AWO submitted a letter to the Governor on September 18, urging him to veto it upon arrival at his office. To read this letter, please click here. The Coast Guard similarly wrote a compelling letter to Governor Patrick expressing concerns with HB 4247. (The Coast Guard letter is attached to the back of the AWO Letter). AWO worked with members of the Governor’s staff to reiterate the policy and constitutional flaws of HB 4247. AWO will review its available legal options now that the bill has become law. For further questions about this issue, please contact Nicole de Sibour at (703) 841-9300, extension 292, or via email at [email protected].
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The Tugboat, Towboat and Barge Industry Association
September 18, 2009 The Hon. Deval Patrick Office of the Governor Massachusetts State House Room 280 Boston, MA 02133 RE: Veto of HB 4119 Dear Governor Patrick: The American Waterways Operators (AWO) is the national trade association representing the inland and coastal tugboat, towboat, and barge industry. The industry safely and efficiently moves over 800 million tons of cargo each year, including most of New England’s home heating oil and gasoline. AWO appreciates this opportunity to voice its objection to the conference report of HB 4119, “An Act Preventing Oil Spills in Buzzards Bay.” We respectfully urge you to veto this unconstitutional and ill-advised bill for several reasons. First, the bill includes a provision requiring the Massachusetts Department of Environmental Protection (MassDEP) to “dispatch a state-provided tugboat escort” if an operator decides to enter Buzzards Bay unaccompanied by an escort of his/her own. The U.S. District Court for the District of Massachusetts confirmed in U.S. v. Massachusetts (2008) that providing or requiring a tug escort is an exclusive federal responsibility. In that case, the Magistrate Judge issued, on July 29, 2009, a recommended ruling in favor of the United States and in support of the earlier court issued preliminary injunction against state tug escort requirements for Buzzards Bay that the Commonwealth had passed into law in 2003. Signing HB 4119 into law would result in yet another constitutional challenge and further litigation — litigation that would only serve to reaffirm what the courts have already clearly affirmed is the U.S. Coast Guard’s clear authority to regulate interstate commerce. As the outcome of that case reinforces, the authority to regulate issues of vessel safety, vessel operations and navigation belongs exclusively to the Coast Guard. The Coast Guard acted on this authority in August 2007 when it promulgated special rules for tank vessels transiting Buzzards Bay through its Regulated Navigation Area (RNA) for the First Coast Guard District. Included in these rules is a requirement that vessels not enter or get underway in the area of Buzzards Bay without first notifying the Vessel Movement Reporting System Center. The RNA also requires a tug escort to accompany all single hull tank barges carrying 5,000 or more barrels of oil while transiting the bay. The Coast Guard RNA provides guidance to all private and public entities in its accompanying federalism statement by stating that any “non-Coast Guard schemes relating to vessel routing, manning, and tug escort requirements in Buzzards Bay are preempted.” The District Court decision in U.S. v. Massachusetts subsequently confirmed that the Coast Guard has the exclusive constitutional authority to regulate such matters.
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The Hon. Deval Patrick September 18, 2009 Page 2
Second, the requirement of HB 4119 that the owner or operator of a tank vessel “may notify” MassDEP within 24 hours of entering Buzzards Bay is problematic. As referenced above, the 2007 RNA contains a notification component. On a practical level, the 24-hour notification regulation places dangerous and unreasonable requirements on vessel operators. The reality of navigating through Buzzards Bay is such that it is unlikely that an operator can realistically report intent to traverse that far in advance. Because of weather and the geography of the bay, the decision on a route of travel cannot always be made one day ahead of time. Therefore, putting into place such a requirement, particularly with treble penalties for failure to comply as high as $750,000 per day for a first incident and double that for a second offense, could force vessels to avoid navigating through Buzzards Bay and choose, instead, to transit into the Atlantic Ocean around Cape Cod. This option increases the risk of navigation. Third, the provision in HB 4119 requiring that state pilots report “all near and actual navigational incidents that could potentially lead to an oil spill” to MassDEP introduces a level of subjectivity that is inappropriate for a law enforcement function. For example, defining a “near” incident is open to widely varying levels of interpretation, most likely among state pilots themselves. One could certainly argue that, in some cases, preventing a “near” incident from developing into an “actual” incident is cause for commendation, not censure. Moreover, as the bill calls for the public recording of all near incidents without any opportunity for the operator of the vessel to explain his or her version of events, vessel owners and operators are likely to be unfairly stigmatized for incidents over which they had no control. Finally, we emphasize that the tugboat, towboat and barge industry takes safety and environmental protection very seriously. The members of AWO have embraced safety and environmental standards that exceed those required by the federal government. All members of AWO must comply with the Responsible Carrier Program (RCP), a safety management system for tugboats, towboats, and barges, as a condition of association membership. The RCP is an award-winning program that has been recognized as a safety standard by the Coast Guard and state governments across the country. The governments of Washington and California, for example, have referenced the RCP in their state regulations. Moreover, in 2003, AWO urged the Coast Guard to request the authority from Congress to make the towing industry’s vessels subject to federal inspection, an action that helped lead to the passage of the Coast Guard and Maritime Transportation Act of 2004. This bill authorized the Coast Guard to establish an inspection program for towing vessels and to require towing vessels to have a safety management system, as recommended by the National Transportation Safety Board. The assumption, embedded in the text of HB 4119, that the tugboat and barge industry is unsupervised and unsafe is simply not accurate. AWO shares your goals of having waterborne commerce and environmental stewardship exist simultaneously, and we hope to work with you to preserve their co-existence in the Commonwealth. For the reasons stated above, we believe that HB 4119 should not become law and should be vetoed. Thank you for your consideration of these very serious concerns. I will follow up with your staff on Monday, but can be reached at 703-841-9300 ext. 250 in the interim should you or your staff have any questions. Sincerely, Thomas A. Allegretti
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MA Congressmen Urge Coast Guard
to Not Oppose Buzzards Bay Oil Spill Law Despite Unconstitutionality
November 20, 2009
On November 5, several Members of the Massachusetts Congressional Delegation submitted a letter to the leaders of the U.S. Coast Guard and the U.S. Department of Homeland Security urging that they not challenge the newly signed Massachusetts law HB 4247, “An Act Preventing Oil Spills in Buzzards Bay,” despite its unconstitutional provisions. AWO actively opposed passage of this law, as it requires the Massachusetts Department of Environmental Protection to dispatch a state-provided tug escort for unaccompanied tank vessels carrying 6,000 or more barrels of oil through Buzzards Bay. This conflicts with the Coast Guard's 2007 Regulated Navigation Area (RNA) that specifically preempts any “non-Coast Guard schemes relating to vessel routing, manning, and tug escort requirements in Buzzards Bay.” The Coast Guard and AWO also sent letters to Governor Deval Patrick (D-MA) expressing significant concerns regarding HB 4247, urging him to veto the legislation; however, he ultimately signed the bill. The letter signed by U.S. Senators John F. Kerry (D-MA) and Paul G. Kirk, (D-MA) and U.S. Representatives Barney Frank (D-MA), James P. McGovern (D-MA) and William D. Delahunt (D-MA), states "We request that the Coast Guard respect Massachusetts' right to implement these appropriate safeguards that are inarguably within the state's jurisdiction, and we strongly urge the Coast Guard to take no legal action against the commonwealth." However, as the U.S. District Court Magistrate Judge’s recommended ruling has already affirmed in U.S. v. Massachusetts, the Coast Guard’s federal authority is preemptive in the regulation of vessel transits in interstate commerce. As such, passage of this law introduces a significant constitutional conflict. To read AWO's letter to Governor Deval Patrick, please click here. To read the Coast Guard's letter to Governor Patrick, please refer to the September 25 edition of the AWOL Letter by clicking here. For further questions about this issue, please contact Nicole deSibour at (703) 841-9300, extension 292, or via email at [email protected].
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BIOGRAPHIES
RADM James A. Watson
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Rear Admiral James A. Watson IV, USCG
Rear Admiral James Watson is currently Director of Operations, Coast Guard Atlantic Area. His previous assignment was Director of Prevention Policy for Marine Safety, Security and Stewardship, Coast Guard Headquarters, Washington DC. Previous to this assignment he served as Chief of Staff of the Seventh Coast Guard District in Miami FL and Chief, Office of Budget and Programs, Coast Guard Headquarters. Prior field assignments include: Commanding Officer Marine Safety Office Miami (2001-2004), Commanding Officer Marine Safety Office San Diego (1995-1998), Executive Officer Marine Safety Office Savannah (1992-1995), Chief of Port Operations Marine Safety Office Puget Sound (1989-1992), and Engineering Officer USCGC Bibb (1978-1980). Headquarters staff assignments have included: Program Reviewer - Office of Budget and Programs (1998-2000), Staff Naval Architect - USCG Marine Safety Center (1986-1989), Staff Engineer – Marine Technical and Hazardous Materials Division (1980-1983). Rear Admiral Watson graduated from the Coast Guard Academy in 1978 with a Bachelors of Science Degree in Marine Engineering. In 1985 he earned two Master of Science degrees in Mechanical Engineering and Naval Architecture from University of Michigan. In 2001 he graduated from Industrial Collage of the Armed Forces with a master’s degree in Strategic Studies. Rear Admiral Watson has been a member of the Society of Naval Architects and Marine Engineers since 1978. He was recognized as the S.E. United States Propeller Club Person of the Year in 2004. His personal military awards include three Legion of Merit, two Meritorious Service, and six Coast Guard Commendation Medals.
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Atlantic Region Annual Meeting
Special Session - February 4, 2010
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