Proceedings of the Symposium on the Purposeful Jettison of Cargo

PART III:
CONSIDERATIONS IN MAKING TIME-CRITICAL DECISIONS



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Purposeful Jettison of Petroleum Cargo Proceedings of the Symposium on the Purposeful Jettison of Cargo PART III: CONSIDERATIONS IN MAKING TIME-CRITICAL DECISIONS

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Purposeful Jettison of Petroleum Cargo DECISION FRAMEWORK: A SCENARIOFOR DECIDING WHETHERTO JETTISON CARGO Captain Kenneth Fullwood I think it true to say that no one with any knowledge of ships and Archimedes' principle would question that one way, and often the only way, to float a stranded ship is to make her lighter by removing some of the cargo. The problem arises when the ship happens to be a loaded oil tanker and there is no time to obtain another vessel to receive the cargo. To focus on the question of whether to deliberately discharge a relatively small quantity of oil into the environment, and by so doing to avoid the eventual release of a much larger quantity, I developed the following horror story. I rather like sea stories, but not this one. The possibility of the particular set of circumstances described in our story coming together like this is very remote. I should point out, however, that 80 percent of accidents can be traced to human error and are seldom due to a single factor. It is almost always the cumulative effect of a series of unique events which finally trigger a disaster. An 80,000-ton tanker is enroute from Mexico to a refinery on the Delaware River with a cargo of 78,500 tons of Isthmus crude oil. The ship is at a draft of 40 feet and making a speed of 15 knots. The captain had been plotting the track of a hurricane which was centered about 430 miles away, just ahead of the starboard beam and heading west at 12 knots. The storm was guided by a very large and stable ridge of high pressure stretching from Tennessee, through Ohio, northeast to Quebec, Nova Scotia, and Newfoundland. It was expected to cross the coast near Wilmington, North Carolina. The captain decided to continue his voyage to the Delaware, expecting to pass 350 miles ahead of the hurricane. He made the first human error in our story by deciding to increase his distance from the hurricane by setting his course closer to Cape Hatteras than he normally would have done. This was unnecessary and based on emotion, but nevertheless he did it. Shortly after course was changed to pass closer to Cape Hatteras, the gyro compass developed a mechanical problem, which resulted in the ship steering to the west of her set course. This was followed by more human errors when the officer of the watch failed to observe that the ship was straying from her set track, and again when he failed to notice that Diamond Shoal light and the R2 buoy were on the wrong side of the ship. The ship ran onto the shoal at 15 knots and came to rest with 80 percent of her length resting on the sand. The shoal is soft sand, and although the bottom plating may have been set up, there were no leaks. The power plant was not damaged, and the captain tried unsuccessfully to back the ship off using her engine. The wind by this time was in the northeast at 20 knots, and the center of the hurricane was still some 300 miles away to the east. Figures 1, 2, and 3 show the

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Purposeful Jettison of Petroleum Cargo FIGURE 1. Track of ship.

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Purposeful Jettison of Petroleum Cargo FIGURE 2. Track of ship and hurricane.

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Purposeful Jettison of Petroleum Cargo FIGURE 4. Area of grounding.

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Purposeful Jettison of Petroleum Cargo planned and actual tracks of the ship and the hurricane and the area where the ship grounded. The captain promptly notified the United States Coast Guard, the owner, and his agents in Philadelphia of the situation. Measures to provide assistance were immediately put in hand. The Coast Guard strike team was dispatched, a salvor was engaged, the owner dispatched technical experts from his shore staff while at the same time placing his classification society on standby to make stress calculations, should this be required. It transpired that it would take 16 hours to get a tug and barge to arrive from Norfolk to offload cargo from the stranded vessel. A light tug could be there in 13 hours. This was the shortest time in which a lightering vessel or a tug could be on scene. Based on data in their files and sounding information from the captain, the owner's technical experts and the class society naval architects calculated that the vessel could not be refloated by internal transfer of cargo. To refloat, displacement must be reduced to allow the vessel to rise bodily. It was determined that discharging 2,000 tons of cargo from No. 3 Tank would enable the vessel to back off the shoal under her own power. Four hours after the vessel grounded, the center of the hurricane was 250 miles away and still heading west at a speed of 12 knots. The wind was from the east-northeast at 25 knots and increasing. The salvage master and the USCG strike team had been placed onboard by helicopter. At about this time, the class society naval architects and the owner's technical staff reached the conclusion that unless 2,000 tons were pumped overboard from No. 3 cargo tank within the next few hours, the ship would be driven further onto the shoal and break up as the force of winds and waves increase with the approach of the storm. Large violent and confused seas were forecast for the area off Cape Hatteras. The possibility of ballasting the vessel down was considered, but it was determined that she would be unable to survive the pounding of the hurricane-generated seas. The situation now exists, eight hours after the grounding with the wind at 30 knots from the east-northeast and freshening and large seas building, where immediate action in deliberately discharging 2,000 tons of crude oil into the sea will save the ship and prevent the eventual discharge into the sea of a further 76,500 tons of crude oil. Lightening into another vessel is not possible because of deteriorating weather conditions. Further delay will result in the ship being damaged beyond the point where she and her cargo can be saved. The wind speed is expected to increase to 45 knots in the next 8 hours and then increase further, eventually reaching 65 knots around the time of the closest approach of the eye of the hurricane. The hurricane is forecast to stall over the coast of North Carolina and weaken slowly. This will result in initially strong but diminishing winds from the east for several days. All oil discharged either by jettison or due to the vessel breaking up is expected to reach shore. Figure 4 shows what would happen if 2,000 tons of crude oil were to be discharged deliberately-jettisoned-in order to refloat the ship. Figure 5 shows the jettisoned 2,000 tons of cargo, on a chart covering a much larger area, with the potential full cargo spill of 78,500 tons superimposed on it. The superimposing of the 2,000 tons and the 78,500 tons on the charts was not done on a particularly scientific basis, but the point is that the voluntary discharge in the jettison case releases 2.5 percent of the potential involuntary discharge when the ship breaks up.

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Purposeful Jettison of Petroleum Cargo FIGURE 4. Two-thousand tons spilled.

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Purposeful Jettison of Petroleum Cargo FIGURE 5 Seventy-eight thousand five hundred tons spilled.

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Purposeful Jettison of Petroleum Cargo Presumably, from about four hours after the grounding, when a full assessment of the situation had been made, the idea of jettisoning 2,000 tons of crude oil had been under active consideration by all of the interested parties which, in addition to federal and state representatives, would hopefully include the shipowner and his P&I Club. A decision tree (Figure 6) may assist those stressed individuals in their unenviable task of answer the question ''to jettison or not to jettison?" Before that, at least, 64-million-dollar question is answered, several other questions should be asked: Is the hull intact? If the answer is no, then there may be no point in jettisoning, but this is not necessarily the case, so we should look further. In any case, arrangements must made to handle the impacts of oil spills from the breached tanks. Is the vessel's power plant operative? If the answer is no, send for a tug. Jettison may still help, although in our scenario we know a tug cannot get there in time. Is the vessel hard aground? The answer to that question seems like a given, or we wouldn't be here. A word of caution on the box labeled "maneuver to refloat vessel"-this is very often not the right thing to do, and it can make matters much worse. However, our ship is on soft sand and in this case it is a proper course of action. If she were on a rock ledge, it usually would not be. Can the vessel float free with internal cargo transfer? Often this would be the case. If the answer is yes, go ahead and do it and forget about the jettison question. Are lightering assets available? If they are, use them; don't jettison. Or rather, use them provided they can operate in the current and the projected environmental conditions. Will the ship break up in the weather? If the answer is "no," we don't have a problem. If the answer is "yes," take one step further toward the jettison decision. Will cargo loss affect a sensitive environment? Based on real life incidents, I have to believe that the answer to this question is very subjective. In someone's view, a particular environment will always be sensitive. As a realist, I find it hard to imagine any environment that would not suffer from having 80,000 tons of crude oil dumped onto it. Is jettisoning allowed? If the answer is "yes," go ahead and jettison. If "no," prepare to receive 78,500 tons of crude oil on the Carolina beaches and in the sounds. I hope this scenario and the proposed decision process will provide the basis to determine if a jettison decision could ever be the right decision; and if it could, how do you reach that conclusion. Captain Kenneth Fullwood is Manager of Maritime Relations, Environmental Affairs, Safety, and Nautical Services for Mobil Shipping & Transportation Co. Captain Fullwood is a master mariner with 39 years of experience in the tanker industry.

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Purposeful Jettison of Petroleum Cargo FIGURE 6. Decision tree.

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Purposeful Jettison of Petroleum Cargo THE ON-SCENE COORDINATORAS DECISION MARKER Captain Donald S. Jensen There are two roles I could assume in addressing this problem:1 (1) Commander, National Strike Force (NSF) and (2) Commanding Officer, Marine Safety Office (MSO), Hampton Roads, Virginia. As Commander, NSF, my role would be that of technical and environmental response adviser to the federal on-scene coordinator (OSC). As CO, MSO Hampton Roads, I would be the federal OSC and, in addition to the technical and environmental aspects, would have to address the political aspects as well. Since the OSC role is more challenging, I will assume that role. In this situation, there is a hurricane coming. A captain of the port has a lot of work to do to get a port ready, and he doesn't need a tanker grounding on top of the job he would normally face with a hurricane coming. I was captain of the port in Providence, Rhode Island, in 1984 to 1988. During that time, Hurricane Gloria came through in the fall of 1985. It was the first major storm that had come through in a number of years. First, I was concerned with the safety of my crew and their families. I was also concerned about the safety of my equipment and boats-I had to be sure they would be able to survey the damage after the storm passed-and about the safety and security of the port. I spent time calling the agents and checking the anchorages to make sure that any vessels at anchor got underway or came alongside and doubled up their mooring lines or whatever they needed to do to secure themselves. The purposeful jettison of cargo is a radical response technique, a last resort to be employed only after all conventional alternatives have been carefully considered. It is by nature very controversial in that, in attempting to prevent a major spill and destruction of a vessel, it creates a pollution event in the process. If faced with, and based solely on the parameters of, this scenario, as federal OSC I would advocate and recommend the jettisoning of 1,700 tons of cargo to permit the vessel to refloat and get underway to the Northeast to escape the full impact of the approaching hurricane. In arriving at my decision, I would consider several criteria: Time. to make decision. I would want to delay my decision (consistent with other criteria) as long as possible to gather the most data possible and make the most informed decision. In this case, there are only two to four hours in which to make this decision. Weather forecast. I would determine the tide and current patterns at the scene as well as projected weather patterns for the area. In this case, the approaching hurricane makes these criteria of paramount importance. 1   The views expressed in this paper are the author's alone, and should not be construed to reflect the views of the United States Coast Guard, the Department of Transportation or any government entity.

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Purposeful Jettison of Petroleum Cargo THE SALVAGE ENGINEER'S PERSPECTIVE Jack Kalro For a salvage engineer who is asked to give a technical analysis of a situation, the option of being able to jettison cargo is a very practical one. To seriously curtail his liberty by restricting the use of this option is like tying up his hands and telling him to stop. When the salvage engineer comes to a scene, he or she and often doesn't have many facts as to the exact condition of the vessel, the weather conditions, lay of the land, and so on. For this panel discussion I presumed that the only facts available to the salvor and salvage engineer are the ones presented in Captain Fullwood's scenario. Pending further acquisition of data, what would be my gut reaction to this scene as a salvage engineer? How would I tackle the situation? What would be the recommendation? To recommend jettisoning of the cargo, four conditions need to be prevalent: The vessel must be in imminent danger of breaking up. Mr. Gale stated he was not really sure that the vessel was in danger of breaking up. Given that it is on sandy bottom and is grounded over 45 percent of its length, I believe it is in a fairly safe condition. It is uniformly supported, although its stability is lower because of the ground reaction. The substrate supporting the vessel would prevent it from capsizing or turning on its side. My conclusion would be that the vessel is not in imminent danger of breaking up during this scenario. There should be no other possible way of discharging cargo in the time available. In this scenario, it would take 16 hours for a lightering barge to come alongside to discharge the cargo. However, we haven't looked at other unconventional means of lightering the cargo. What if you could bring in a deck barge, or a hopper barge, or an offshore supply vessel? There are several of these vessels within four or five hours of Cape Hatteras. They could be brought alongside and pumps and hoses could be used to offload the cargo into other vessels. The jettisoning of a small amount of cargo would save the remaining cargo, thereby preventing a large disaster. For an 80,000-ton tanker aground by about five feet, we would need to discharge more than 2,000 tons of cargo (this assumption is based on normal tankers because the scenario doesn't outline what kind of tanker it is). I believe 2,000 tons would be a very small amount, and you would probably need to jettison a much larger volume, about 4,000 tons of cargo.

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Purposeful Jettison of Petroleum Cargo  All other possible solutions, however remote, must have been exhausted. Have all possible solutions been considered? My gut reaction upon arriving on the scene would be that you need to gather more data before you can come to any kind of conclusion that jettisoning would be the proper means of salvaging the vessel. Given that, I would like to point out that the salvor does his job based on modeling the technical aspects and legal consequences of his actions. For instance, what are the liabilities involved by jettisoning cargo? The speakers on the first panel of this symposium gave different viewpoints on the legal aspects of OPA 90. The final conclusions that may be reached about legal liability will influence the salvage engineer's and salvor's decision. One thing that was not discussed is the liability of the government if it does not direct the salvor to jettison the cargo when that is the optimum solution, or does not allow jettisoning, or does not give permission to jettison, as was the case in Argo Merchant. Jack Kalro is a naval architect with Diversified Technologies in Alexandria, Virginia. He has been working exclusively as a salvage engineer since 1983. He has a bachelor of science degree in engineering and naval architecture and a master's degree in engineering mechanics.

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Purposeful Jettison of Petroleum Cargo THE STATE PERSPECTIVE Peter Bontadelli Intentional jettisoning may or may not be the realistic scenario that we are facing relative to liability. Many possible actions outlined at this symposium, such as pumping out the water from the engine room, would likely put this vessel in almost identical legal positions. Therefore, the issue is one of adding a degree of pollution to the ocean in an attempt to refloat or minimize an even larger impact. While the scenario may or may not be highly realistic, the issues and checklist that you need to go through relative to making that decision, and the legal impediments that need to be overcome, are very real. Federal on-scene coordinators and those of us who have similar responsibilities face these same issues in light of OPA 90. The biggest problem is the availability of data for decision making. That problem was recognized during the negotiated regulatory process, which raised several major issues. First, any vessel functioning within U.S. waters must have a contingency plan. In that process, some specific information that is not now generally available must be offered and made available. Significant vessel calculation, or stability calculation data, must now be available. I hope this is one of your own tankers so that you have the data. A vessel under charter might not have such information readily available. Another issue is whether the information needed by the salvor and decision makers is reliable. Identification of lightering equipment within specified time frames based on a distance from shore is now going to be required in contingency planning. The contingency planning process specifies that you must be able to show that you have identified, although not yet contracted for (contracting is about five years off, according to the Coast Guard's current program), salvage capability of delivering pumps, fenders, and reasonably being able to identify a lightering vessel within 12 hours if you operate within 12 miles of shore, within 18 hours if you operate within 50 miles, and within 36 hours if you operate beyond 50 miles. That process would help answer questions about overall U.S. salvage capability, which may not be available for the scenario we are discussing today. We need reliable information on the environmental consequences to the area of grounding. That, too, may not always be available. Much of the information, even on the California coastline, is based on NOAA surveys that are 10 to 15 years old or older in many instances. The state of California has recently completed a significant mapping of its coastline. However, even this effort is largely geomorphological and does not include all identifiable environmental data. From my preliminary review of the location of the grounding under discussion it appears that this is largely a sandy beach. From a cleanup perspective, it is a much better option than many other types of substrate. It is clear that if we must weigh the merits of loss, which is what we are doing from an environmental perspective, the decision-making process should be the same as that used for dispersants. A NOAA

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Purposeful Jettison of Petroleum Cargo checklist or similar program must be available for use by on-scene coordinators and others as a preliminary guide. A decision must be able to be made quickly, the information must be clearly available, and there must be a reasonable likelihood of success. The key ultimately gets down to the likelihood of success. Will the vessel float once free, or will we create a bigger problem with an intentional discharge, only to put ourselves at risk of the vessel breaking up anyway. If that is the case, the situation will intensify from single to double jeopardy. Ultimately, somebody has to make the call. If I had a panel to provide the type of information I have heard at this symposium, the answer would be an easy ''no," because the likelihood of success is unclear. If, on the other hand, all panel members reviewed the available data and said "yes, it will stabilize; yes, it is a better alternative," the decision, again, would be relatively easy. Unfortunately, most of the time, the answers will probably be somewhere in between. At that point, the on-scene coordinator, in consultation with the state, must make a decision. They will rely on information from the following people: The salvor. Frequently screened from decision makers by the owner of the vessel or others who make the calls and are part of the unified command system. Owner/operator. Usually has a clearcut representative in a unified command, assuming that the approach recommended by the area planning processes is ultimately put in place. P&I clubs. Most likely to have a significant amount of input along with legal counsel from the standpoint of the owner of the vessel, far more likely to be frankly available than governmental legal advice at that time. The federal on-scene coordinator. Unfortunately, not all federal on-scene coordinators have the same experience and background The same is true for state officials. The regional response team. This is a functioning viable body to provide input at the time of an incident. Have they looked at scenarios such as this one? Have such issues as dispersant use, jettison, and so on been fully explored? From my standpoint, the answer would be not to jettison because I do not have clearcut legal authority to do so. However, if the National Contingency Plan is amended to create the potential for authorization (this would require the blessings of the Environmental Protection Agency and the Coast Guard), and assuming that a national pollution discharge permit that could be reviewed in advance is available from a state board, blanket permitting authority may be available under the new act for limited discharges resulting from mechanical pickup under the new act. There is some question as to whether that same type of permit still may be required. If such legal issues are resolved in favor of the on-scene coordinator and/or state authority holding those permits and if the area committee has gone through the review process with input from federal, state, and local government agencies, then a quick decision could possibly be made. The area planning process will not be that far

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Purposeful Jettison of Petroleum Cargo along for several years under the best of circumstances, however. The plans available in July 1993 will be a first draft. We will have preliminarily covered the issues. The major legal issues have yet to receive substantive input from Washington, which would be required along with input from the states. California has taken an additional step. We have already contacted the state water board, much the same as we have for dispersants, and specifically asked for a blanket discharge permit for maritime emergencies. The federal government, however, has told the state that this is probably not covered by the Clean Water Act. It also indicated that in the event of an incident, a waiver might be granted by a regional board, in the event that an ongoing or additional pollution discharge is not likely to ensue. Hence, the state received an equivocal answer. The federal government determined it was best to wait for the input of this particular symposium before making a final decision. Assuming, then, that we have gotten through some of these questions, at some point a policy call must be made. Absent that, the answer today is no. I am hopeful that the Marine Salvage Committee, with input from this symposium's deliberations, might provide guidance to the Coast Guard, the Environmental Protection Agency, and others about what elements of the National Contingency Plan should be scrutinized to formulate the checklist of minimum alternatives that must be reviewed prior to making a jettison decision. Peter Bontadelli is administrator of the Office of Oil Prevention and Response and Californians on-scene coordinator for all spills of 100,000 gallons or greater. He is the former director of the California Department of Fish and Game.

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Purposeful Jettison of Petroleum Cargo DISCUSSION: QUESTIONSAND COMMENTS ADDRESSEDTOTHE PANELONTHE DECISION-MAKING FRAMEWORK Following presentations, the panel members entertained questions from the symposium attendees. Participants are identified where possible. The discussion session was moderated by John Witte. MR. WITTE: Captain Fullwood, you asked for a minute? CAPTIN FULLWOOD: Some speakers have inappropriately critiqued the scenario. The goal was to put a ship on the beach on the east coast of the United States where you could justify a jettison situation. It was very difficult because almost everything we looked at said the prevailing winds and the current, are going to take the oil well offshore, across the Atlantic Ocean, where it would not do any harm—just like the Argo Merchant. You have to have a series of errors to have a major accident. That is why the captain didn't put the wind on his port quarter and do the sensible thing. The occasions when you will have to make the decision to jettison cargo will be very few and far between. There is no question about that. To get a realistic situation, this is about the best we could do. The shoal we picked is a 35-foot shoal. If she had gone head on to it, she would have grounded 5 feet. In fact, we found she could slip around to the side of the shoal and would probably be aground about 18 inches. In this case, jettisoning 2,000 tons would float her and a bit of hurricane surge would lift her the rest of the way. MR. WITTE: Peter, you indicated that as opposed to spill response, the current regulations with regard to OPA 90 and salvage and firefighting, really only acquire teeth after some five years. Why is that and what might the circumstances be in the future? MR. BONTADELLI: Based on preliminary data, it was concluded that there was probably not sufficient salvage capability within the United States to be able to require it at this time. Therefore, a five-year window was created because that is the next point at which federal plans would be due and filable under OPA 90. That is my reading of it. The issue of identification is to help in the ultimate evaluation of what is available now, to see if industry can begin to focus on those questions and determine what needs to be done. Admiral Henn said it well this morning—anyone who thinks that within five years there will not be a requirement is not correctly reading the intent of the Coast Guard, at least as of this point. Perhaps it could be done more quickly, since we are only with interim final regulations and the final regulations are yet to be put on the street. MR. WITTE: I have a follow up to that. What would be the state of spill response today if the Coast Guard took the same attitude in the regulations for spill response that they did with salvage? Would there be a Marine Spill Response

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Purposeful Jettison of Petroleum Cargo Corporation today? Does that argument fail when comparing spill response to salvage? MR. BONTADELLI: Yes. MR. DRISCOLL: We also advocated that the same rules be implemented for salvors as for oil spill responses. The salvor would be contracted for, identified, and provided by contract. We had some resistance at that meeting from the vessel owners. I think this was a compromise. MR. BONTADELLI: Quite honestly, the decision was made that the regulations for spill response equipment were achievable at the current time by stretching and pushing available resources. The same level of comfort was not there for salvage. The 12-, 18-, and 36-hour thought process and positioning of pumps, etc. was thought to be a better alternative and more rapidly available than having salvage capability. Hence, those were the items that were used. Frankly, there will be a time when, as I read the statute, there must be a requirement for salvage and fire fighting to be in place. Even though some salvage could reasonably be put together, firefighting is a far greater concern, from my evaluation of this in California. I am not sure we could get there overnight. JAMES STILLWAGGON, MACKINNON SEARLE CONSORTIUM LTD.: This is an exercise in preaching to the choir. This choir came here today to find out what note they should sing. I have been a pilot for 32 years and I would like to take Ken Fullwood's ship up a little farther. He has a pilot onboard. As you know, as a pilot I am not responsible for anything that happens, I am there as a servant of the vessel. Let's pretend this vessel is going around Sandy Hook Point and there is a place where I change course from 281 to 242, and for some reason I might be thinking of something other than the job, and the ship goes aground on Flynn Knoll. It is a hard bottom. Pretend also that when the ship goes aground the pilot suggests to the captain ''maybe we ought to dump some of that stuff out of number one or two forward and back off." Pretend also that the New Jersey Marine Police haven't gotten onboard yet. [USCG] Captain Jensen comes on board and we say, "give us five minutes, we will dump out of number two, back her off, and away we go." Being a good-hearted fellow, he says, "let's go." In the case of the Argo Merchant, they knew where the oil was going because the wind was offshore and the young Coast Guard fellow who was up there was quoted as saying, "if the wind remains off shore, this is Ireland's problem." In my scenario, we have Captain Jensen doing the right thing. We have the pilot giving his advice. We have the captain accepting it. And we dump a little bit of oil overboard. What is to prevent the state of New Jersey from picking on Captain Jensen and suing him personally? I think it was Mr. Berns who said, "when you come down to it, somebody is going to be sued and it is going to be whoever caused the accident." My scenario sees the state of New Jersey suing the Coast Guard. MR. WITTE: Does anyone on the panel have any thoughts with regard to that—New Jersey's Marine Police decide to sue the United States Coast Guard? MR. BONTADELLI: Effectively, most states have provisions within their statutes that require that state programs not be in conflict with the National Contingency Plan. From review of the data, the legal papers, everything I have heard today, something along that line is probably going to be an initial first step. If the area plans are put in place, which are required by statute to be consistent with the National Contingency Plan, we will probably begin to create a basis whereby the state and federal government are not in direct conflict.

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Purposeful Jettison of Petroleum Cargo The area planning process is an attempt, federally, to ensure that the consultation mechanism required by the statute is applied both in advance and available through the unified command at the time of an incident. Failure to have those mechanisms working correctly may create the type of a countersuit scenario that you discussed. There is probably no guarantee against someone filing a lawsuit. In today's litigious society, that is likely to be a consequence of all or any action. ROBERT NICHOLAS, EXXON SHIPPING COMPANY: More important are the criminal violations. Because you were on the ship with the captain, that is very likely to happen. MR. STILLWAGGON: That is true. They took the chief mate off in handcuffs and he was standing 500 feet away from the command position on the ship which went aground. My point is to see where, if you had that side of the room filled with Congressmen and this side filled with real people, we know that there will be a law eventually to do away with OPA 90 or at least clean it up a little. But don't talk to the sailors about that. Talk to lawmakers and tell them what we know about this business. Congressmen from Iowa and Kansas and those places are the ones who are voting on ship bottoms, double bottoms. MR. WITTE: I suspect they have a right to do that, don't they. MR. STILLWAGGON: Like Voltaire, I will give them their right to talk, but my scenario just changes Ken Fullwood's a little in that it brings it in closer to a situation in which the oil is definitely going up on the Jersey coast. MR. WITTE: I think there are a lot of things that have to be worked out with OPA 90, but the suggestion that OPA 90 is going to go away is not very realistic. It is here. It is here to stay. My suggestion is that we be positive and try to work within that framework. CAPTAIN RICHARD FISKE, U.S. NAVY SUPERVISOR OF SALVAGE: I appreciate that jettisoning is a choice of absolutely last resort. As I said in my remarks, the issue is not so much what will be done or what will be accomplished, but that provision be made in law or regulation to enable the on-scene coordinator to make the decision to grant permission in sufficient time to be effective. SIDNEY SHAW, MACKINNON SEARLE CONSORTIUM LTD.: I would like to raise a broader question. If we look historically at what containment and mechanical recovery have done in any number of casualties, you can argue whether the number is one percent, ten percent, or fifteen percent. I think the Office of Technology Assessment did a study and maybe they were in the 10 to 15 percent [range]. If we look back at the Amoco Cadiz, 80 percent of the cargo was lightered off and removed. On the Aegean Sea in December 1992, eight out of nine tanks were in the forward section that broke off and sank. The salvors removed better than two million gallons out of the one remaining tank in the after section, plus 400,000 gallons of bunkers. To say that the regulations require booms and skimmers because that is achievable today and not come down harder on what has proven time and time again to be a more effective means of not allowing the oil to get into the sea is begging the question. It looks good on television, it looks good on the front page, but are we truly being effective? The Norwegians, apparently, are talking seriously about stationing tugs. We have an accident at Hatteras and, we say in the scenario, we can't get a boat in there to put the cargo in. Are we being negligent by saying in five years we will have something more than we have today? Two years ago we didn't have the Marine Spill Response Corporation (MSRC). MSRC has now spent—pick a number—$800 million,

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Purposeful Jettison of Petroleum Cargo $1 billion—but they do not have the capability or in their mission statement lightering, firefighting, rescue towing, those things which have proven, time and time again, to be effective. Where have we gotten off course? MR. WITTE: Perhaps successful salvage does not raise any publicity. Spills always do. And politicians pass laws. Any other questions? CHARLES MACLIN, GALLAGHER MARINE SYSTEMS, INC.: People are under the impression that oil is the only thing we are talking about jettisoning. Remarks made earlier in this symposium are still applicable. Everyone in this room who has had anything to do with salvage has probably jettisoned cargo of one kind or another sometime—and it may not be oil. It can be grain full of rats, it can be clay on some atoll over in Hawaii. But are you going to get permission to do it? The permission process ought to be established no matter what the cargo is. Whether the scenario is realistic or not, we are going to have to either jettison oily water out of machinery, or grain or automobiles or something out of the hold. PHILIP. BERNS, U.S. DEPARTMENT OF JUSTICE: Before OPA existed, the liability under the Clean Water Act for jettisoning existed. So, it sounds like the people here are saying for the first time, OPA has created a liability. What it really comes down to is, are we really talking about the liability under OPA for jettisoning? Or are we talking about potential exposure for federal liability? MR. WITTE: We are talking about both aren't we? We are talking about criminal liability, as well as what the existing law is, not only OPA 90. MR. BERNS: You have the existing Federal Clean Water Act. But I think the stuff they are facing now is a higher penalty. That is the new consequence. ROGER VAN DUZER, SHELL OIL COMPANY: One area that disappointed me on all the decision tree elements is that no one talked about the time required to get the crew off that ship. We are all doing this as a real problem. If we are playing with somebody's health, then you have a margin for a hurricane coming and you have to get the crew off. Interestingly enough, that didn't come into it. It was just a light comment, "we have only got X amount of time." But you have got to put a margin in for the people when we get into these situations. MR. WITTE: That is an excellent point. MR. NICHOLAS: If you are going to promote salvage and promote response capabilities, then there ought to be some mechanism in that act that will give those responders more immunity. FRED BURGESS, LE BOEUF, LAMB, LEIBY, AND MACRAE: It seems to me the difference is that we are talking about not just any costs, we are talking about damages. There hasn't been an incentive for the states to go out and legislate. So, it seems to me that there is a difference and the difference is that the liability may be very high and unsure. So the question is going to get back to, if I am looking at liability and I am liable, can I get the coverage that I need to have? WILLIAM GRAY, SKAARUP OIL CORPORATION: Pete Bontadelli alluded to the fact that the decision not to have to precontract for salvage and firefighting capability came out of the Coast Guard's negotiated rulemaking for vessel contingency plans. Is this a recognition that you cannot force people to do things that cannot be done because those capabilities don't exist in the way we want? I would like this to be addressed. I sat through reg neg, participated in it, and many of us from the industry side said OPA missed the fact that there are other types of accidents than groundings. It is amazing that $1 billion is being spent [on MSRC]

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Purposeful Jettison of Petroleum Cargo without any towing capability, without any firefighting capability, without any, shall we say, salvage capability. These are things that I hope this committee is going to bring to light. The salvage working group in Europe has very clearly made the point the marine casualty record worldwide has improved enough that we don't have the capability that we need to do some of these things. I would hope this committee would agree with that proposition and feel that is the proposition we have to work on. JERRY ASPLAND, ARCO MARINE, INC.: It is interesting that the people who are going to have to make the decisions and the people who are going to have to decide which way we are going to do it will probably end up with people like myself. I resent the comment about MSRC. That was put together for a specific reason. So, it wasn't addressed. I don't think it was their fault. Mr. Pilot, I don't appreciate what you had to say because, quite frankly, if your organizations did as much in training as they should be doing, we might not have as many accidents. We have been here all day and at the end of the month we are all going to go to Florida. We are all going to listen to more papers on oil spill cleanup. When are we going to sit down and talk about prevention? And prevention comes down to one thing—people. When we decide that we are going to talk about people and properly training people, properly selecting people for these ships, we will make it much much safer. We cannot, in any way, prevent accidents. So, let's all start right now. It is not a zero sum game. We have to finally decide to talk about people. I happen to like this conference. The captain brought it up because he had a simple question. How can we go about jettisoning if, in fact, we can. That is what we ought to focus on. BARRY CHAMBERS, CLEAN AMERICA, INC.: I had the good fortune or misfortune of being the salvage officer on the Argo Merchant and I sat through all of this decision-making process. I guess I can say simply that if we had it to do over, we would do it exactly the same way. We chose not to jettison, primarily because of the social, economic, political side, not the practical side. There was no doubt at all. All of the pieces were in place. All the questions that have been posed today were asked during that incident. Not a single one have I heard that was missed during the Argo Merchant—whether or not the lightering capability is in place, whether or not barges can be there, whether or not the technical expertise is available, what will happen to the ship if she refloats. All those elements were answered and everybody felt comfortable with the decision. But in reality, the decision was more of a constituency problem than it was a practical issue with regard to the vessel itself. We could have, at any time, discharged enough cargo to let that fellow get off that shoal. One of the interesting elements of the conversation today is that there is no such thing as a comfortable place at sea to set a ship—whether nestled on sand or hard ground. A ship is designed to float. The minute it goes aground, you are in deep hockey, and it goes from bad to worse from that point on. I honestly believe that jettisoning has a place. Personally, I would like to have jettisoned at the Argo Merchant. That was my input. But I learned in later years from my experience in state government and private industry that it is not a simple question of the practicality of jettisoning and bringing a ship off the shoal and making her safe. There are many other issues that make such a situation considerably more complicated. So what needs to be done? I am on an area committee and I am chairing the scenario writing. We do need a mechanism. We need a mechanism for making the

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Purposeful Jettison of Petroleum Cargo decision for jettisoning, for dispersing, and for firefighting. As long as that mechanism is in place and people can address it through that decision-making process, you can put it behind you early in the incident and move on. You then have relieved your conscience. You have relieved your Monday morning quarterbacks who are going to look at the scenario after it is over and say these people either did or did not consider the event. So, if the decision-making process is developed and in place ahead of the incident, we are ahead of the game. MR. BERNS: I just wanted to let you know that in the Exxon Valdez situation, the Exxon Baton Rouge was coming up Prince William Sound. She was instructed and authorized by the Coast Guard (no RRT input, et cetera) to drop the slots and ballast that would contain some oil so that she would be empty to go alongside to lighter the Exxon Valdez. There has never been an action brought on that. There is no intent of action being brought on that. And there is no way that is a jettisoning. MR. WITTE: I would make one comment. I was onboard the Argo Merchant , and perhaps enough time has passed for this comment. There was no question in my mind that the owner wanted a total loss. What happened there could not happen today. The vessel could have been saved.