In response to the Exxon Valdez oil spill, Congress enacted the Oil Pollution Act of 1990 (“OPA90”). OPA90 imposed various requirements to prevent and respond to future disastrous oil spills. Among those requirements is the preparation and submission of oil spill response plans for all tank vessels and for certain oil-handling facilities.
An owner or operator who is required to submit a response plan must, among other things, identify the personnel and equipment necessary to remove, to the maximum extent practicable, a worst case discharge and to mitigate or prevent a substantial threat of such a discharge. The magnitude of the investment, however, in oil recovery equipment, storage and disposal capacity, and training personnel to remove discharges, in all foreseeable locations and operating environments, can be enormous. And the system for assembling, mobilizing, and controlling these resources is extremely complex. But to meet OPA90’s statutory requirements, each response plan must identify the means for accomplishing these tasks.
There is, however, an important tool an owner or operator can use to help meet these costly and time-consuming statutory requirements. In response to the regulatory requirements established by OPA 90, the Oil Spill Removal Organization (“OSRO”) classification process was developed to facilitate the preparation of vessel and facility response plans. If an oil spill removal contractor has been evaluated by the U.S. Coast Guard, and its capability is equal to or exceeds the response capability needed by the owner or operator, the response plan may identify only the OSRO, and need not list all of the information about response personnel and equipment. By listing a Coast Guard classified OSRO in a response plan, the plan holder is exempted from providing and updating extensive lists of response resources.
The OSRO classification process provides standard guidelines by which the Coast Guard and plan developers can evaluate an OSRO’s potential to respond to and recover oil spills of various sizes. OSROs may receive classifications for different spill sizes occurring in different types of operating areas (e.g., rivers/ canals, near shore, offshore, or open ocean). Classifications are based upon minimum equipment amounts and response time standards outlined in the Coast Guard’s OSRO Classification Guidelines. The Coast Guard’s National Strike Force maintains the OPA90 mandated Response Resource Inventory, a centralized database listing national and international spill response capabilities and each OSRO’s classification information along with its other response resource data.
The use of an OSRO, either classified or not classified, does not relieve an owner or operator of its statutory responsibility to effectively and promptly remove spilled oil from the environment. Moreover, use of the OSRO classification program is completely voluntary and does not relieve a plan holder of its responsibility to determine whether an OSRO will meet specific planned response needs as required by federal regulations. Its purpose is to assist oil-handling facilities and vessels in writing spill response plans. Although the classification program is only a planning tool and does not guarantee the performance of an OSRO, it does provide a helpful measurement of the OSRO’s capability using such variables as the amount and type of the OSRO’s equipment, its geographic location, and the OSRO’s degree of control over its response resources (whether the resources are owned or contracted).
An OSRO that does not have a Coast Guard classification may still be employed by a plan holder and may be listed in the response plan, but it must be listed along with its entire emergency response resource inventory. Thus, the regulatory benefit of the classification program is lost when using a nonclassified OSRO. Also, in many cases, it is probably fair to presume that where an OSRO does not have a classification, it is because its containment, recovery, or storage resources are insufficient to meet the requirements for responding to oil spills of certain sizes or in certain locations.
A plan holder that cannot demonstrate that its OSRO can meet the planning standards for its specific operating sites may be subject to Coast Guard enforcement action, which can include civil penalties or a suspension of operations until the plan is in compliance. In such cases, a plan holder may be required to contract in advance with more than one OSRO to meet its specific response plan requirements. Thus, in preparing its response plan, an owner or operator must carefully consider potential oil volumes and response times and ensure its designated response resources are adequate.