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There are standard safety features such as double bottoms, twin screws and rudders, bow thrusters, et cetera, that should be implemented by the USCG uniformly in all waterborne transport of oil products. Other more stringent standards, tailored to local, unique conditions may be promulgated by the States.

We believe that this is a State's legitimate right, to protect the health and welfare of their citizens. But the need for local control might be lessened, although not eliminated, if the USCG recognizes that their first obligation under this law is to protect our marine resources. We urge Congress to take whatever additional steps are necessary to insure that oil tanker construction standards and operational procedures are upgraded. We have waited for 3 years and frankly, we and other coastal States are getting very impatient.

The CHAIRMAN. Well, you are now critical of Congress.

Mr. LYNETTE. No; I am referring now to the lack of implementation of the act. We feel they need a shove by Congress.

The CHAIRMAN. I think this committee has done a remarkable job leading toward the objectives that you talk about, much better than I even thought we would get through.

Mr. LYNETTE. We concur in that completely, and I don't want my previous statement to be construed in that manner.

The CHAIRMAN. I agree with you. Let's put it this way: we must do more than we are doing; I hope some of this shakes out where we can get something done to reduce the possibility of these things occurring.

We have an unusual, peculiar situation in Puget Sound because of the length and breadth of the sound and the strong tides rushing down to the southern end of the sound. You get an oilspill up near Whidby Island or in that passageway there, and the tide is coming in, you would be a long, long time shoveling out.

Maybe the State legislature wouldn't even be there down at the southern end. And I am glad you pointed out that it isn't only the oil people or the operators or the Federal Government, but the people in Puget Sound have an interest in this also.

I happen to live on Puget Sound and I don't want an oilspill over there. But that isn't only selfish. I want it for everybody. .

But we are working on it. We are doing a pretty good job, I think. And I hope that when we come to a discussion of possible amendments to strengthen the act you people will have some suggestions for us.

All right. We will now hear from Mr. Greenberg.
Mr. GREENBERG. Thank you.

Coming, as I do, at the end of a very long day of hearing, I will try to be as brief as possible.

The CHAIRMAN. We will put your entire statement in the record. You may go ahead.

Mr. GREENBERG. Thank you, Mr. Chairman.

We have been involved with the implementation of the act since its inception in 1972. We believe that the act sets out in as explicit terms as possible the congressional objective that the USCG move rapidly to establish meaningful new standards to improve the design, construction, and operation of oil tankers. Yet today, all that we

have in place are certain minimal standards for oil tankers engaged in coastwise trade. These standards are based in entirety on compromise international rules, and with the exception of rules and regulations requiring incorporation of inert gas systems on new, large oil tankers and incorporation of segregated ballast on new, large oil tankers, there has not been a single major design and contruction innovation promulgated under the act.

At least three fundamental defects can be identified with respect to the USCG's implemenation of title II of the act: Its failure to comply with statutory deadlines; its reliance upon an illegally constituted, industry-dominated advisory committee for the substance of a critical part of its final regulatory package; and its total reliance on the Intergovernmental Maritime Consultative Organization for standards ultimately promulgated.

Despite the intent of Congress, it was not until June 28, 1974, just 2 days prior to the statutory deadline for the effective date of final rules and regulations covering oil tankers in domestic trade, that the USCG even published proposed rules in this area.

Further, although the period for public comment on such rules expired on August 19, 1974, final rules were not published until October 1975, some 15 months later, and even then, the USCG had still not made up its mind concerning one of the most critical parts of the proposed regulatory package, namely, whether oil tankers should be constructed with double bottoms. This issue was not resolved until January 1976, a full year and a half after the effective date mandated by Congress.

The delay on the domestic side has been matched by the delay on the foreign side. Once the International Convention for the Prevention of Pollution from Ships, 1973—the “1973 IMCO Convention" was signed in November 1973, one might have expected immediate action to establish standards across the board for oil tankers entering U.S. navigable waters. Yet today, standards for tankers in foreign trade have not even been proposed.

The effect of this delay is far from hypothetical. While the USCG dallied, literally hundreds of new oil tankers were ordered. But the tanker boom of the early 1970's has now gone bust, and it is unlikely that many new tankers will be ordered through the mid 1980's. Thus, insofar as the USCG has chosen not to make major design and construction requirements retroactive, its delay has effectively exempted this new tanker fleet from meaningful standards and virtually ensured that its design and construction requirements are little more than dead letters.

Perhaps the most controversial issue dealt with by the USCG over the past three and a half years has been whether oil tankers should or should not be fitted with double bottoms. The process by which the concept of a mandatory double bottom requirement was ultimately rejected entailed the constitution of and reliance upon an illegally constituted industry advisory committee.

After the close of the formal comment period on rules originally proposed in June of 1974, the USCG organized a study group to evaluate “tanker design concepts with the prospect of using defensive placement of the segregated ballast capacity.” That study group,


although it surely constituted an advisory committee within the meaning of the Federal Advisory Committee Act, was established without public notice and met without public notice in sessions closed to the public.

Every single nongovermental member of the group was associated with the U.S. oil or shipping industry. The Chairman of the group was a noted and vocal opponent of any mandatory double bottom or double hull rule, as were several other members. No proponent of mandatory double bottoms or double hulls was included in its membership, and not a single representative of the environmental community was asked or permitted to participate in its deliberations. Not surprisingly, the group did not recommend adoption of a mandatory double bottom or double hull requirement.

Yet, the USCG essentially adopted the recommendation of the study group, even though the process necessarily casts doubt on its validity.

Finally, the Act is not being utilized as an engine for reform, as its sponsors intended it to be, but merely as a vehicle for implementing previously agreed upon international solutions. The USCG has rejected every alternative not included in the 1973 IMCO Convention; we believe this approach is unsound and can only result in inadequate environmental protection.

The CHAIRMAN. You say that indeed the USCG is doing just what the Committee stated it must not do, and you quote the Senate Report.

Mr. GREENBERG. Yes, sir. I believe the USCG is not following the mandate of the Act in this regard.

Now, what about the rules promulgated today? The environmental groups have a number of objections to those rules. I would like to focus on five which are the subject of the lawsuit now pending in Federal Court here.

First of all: The Act says that the USCG should mandate standards to improve vessel maneuvering and stopping ability. Three and a half years later we don't have a single standard to improve vessel maneuvering and stopping ability; we don't have standards in terms of performance and we don't have standards in terms of design features.

Second: Although the USCG has stated that personnel failure is a major problem in the area of tanker accidents, we don't have a single new standard for personnel or for training of personnel on board vessels, and the Coast Guard's justification for not coming up with those standards is that we have to wait for "progress towards achieving international agreement before standards can even be proposed."

My understanding is that there is not even an international conference on this issue scheduled to be held until 1978. That is turning the Act on its head.

Third: There has been a failure to mandate adequate standards to reduce cargo loss following accidents. One salient point that can be made is that even the rules for allocation of segregated ballast space only apply to new large vessels, vessels larger than 70,000 tons which are contracted for or ordered after a certain date. They don't apply

at all to the smaller vessels which are trading in and out of our harbors. Further, the rules as promulgated by the USCG on January 8 essentially delegate final design choice to the regulated industry and do not ensure that optimal designs are adopted.

Fourth: There has been no requirement for the retrofit of segregated ballast capacity. The segregated ballast requirement is one of the most important innovations in the USCG's entire regulatory package. In the absence of a retrofit requirement, however, it is not going to have any effect because new tankers just will not be built. The effect of grandfathering the existing fleet is to nullify the segregated requirement.

Fifth: The USCG regulations, as adopted today, fail to distinguish between coastwise and foreign trade. The USCG says it is obligated to apply the same standards. That result, in my view and indeed as admitted by the USCG, results in considerably less pollution control for coast wise trade than might otherwise be desirable and feasible.

Mr. Chairman, the environmental groups believe that the Act in its current form if properly implemented is sufficient to achieve its purposes. Indeed, it is one of the best pieces of environmental legislation produced by Congress over the half dozen years.

Nonetheless, we don't believe that it has been properly implemented, and thus we have several recommendations to make which we believe would help ensure that the original intent of Congress is fulfilled.

First: Although we believe the Act now contains an implicit best available pollution prevention technology” standard, the USCG has taken the opposite position. It has stated that Title II does not require application of best available pollution prevention technology, An amendment specifically stating the statutory standard would thus be appropriate.

Second: The Act should state that U.S. standards must be applied unless international standards are of an equal or greater stringency. Here again I believe that's the original intent of Congress back in 1972 and the Act establishes the unique scheme to relate U.S. standards to international standards. But what we have seen instead has been a total reliance upon international standards rather than vigorous independent action to develop our own standards.

Third: The Act should state the distinctions between coastwise and foreign trade are authorized. That distinction should not be an excuse for providing anything less than adequate standards for foreign trade, but nonetheless, it would help ensure the particularly sensitive coastal trades are adequately protected.

Fourth: The Act should state that it is not preemptive of State law; and here I fully concur with the statement made by Mr. Lynette earlier. I don't believe the act is preemptive, but the Washington State law is now being challenged by ARCO and thus an amendment to this effect would seem appropriate.

Fifth: The act should reject grandfathering except when undue economic hardship would occur and when that hardship would not be outweighed by environmental benefits.

Six: We believe that the act should mandate specific design construction standards. Short of laying down technical requirements, rarely has Congress drawn up such a clear roadmap for administrative agencies to follow. Nonetheless, a judgment has been made at the administrative agency level that changes in the design and construction may not represent a desirable way to go about achieving solutions to the tanker pollution problem. Thus, it seems appropriate to us for Congress to establish basic environmental design requirements.

Mr. Chairman, in sum, despite the bright promise of the act, we have not in 31/2 years come anywhere near as far as I believe we should have, and we urge this committee to take vigorous action to insure that the original intent of Congress is met.

Thank you.
The CHAIRMAN. Thank you.

And I would like to discuss your statement a little more, but we do have to get out of this room.

I think you have made a contribution as to what we should do and what we should be looking for.

Mr. GREENBERG. Thank you, sir.

The CHAIRMAN. I agree with you in a general way. There has been too much delay, delay about everything, and based upon the fact that a great number of people do feel—and I give them credit for feeling this way—that the design is not the answer to this pollution problem, some think this and some think that, this may have been causing all the delay. I don't know.

We thank you very much, Mr. Greenberg. We appreciate your testimony.

Mr. GREENBERG. Thank you. [The statement follows:



In the following testimony, the Natural Resources Defense Council, Sierra Club, Wilderness Society, National Wildlife Federation, Environmental Defense Fund, National Parks and Conservation Association, Friends of the Earth, National Audubon Society, and Environmental Policy Center (collectively the “Environmental Groups") set forth their views with regard to the implementation of the Ports and Waterways Safety Act of 1972.

With regard to the process by which the rules promulgated to date have been developed, the Environmental Groups identify three fundamental defects :

(1) Persistent delay in promulgation of regulations ;

(2) Reliance on an illegal, industry dominated advisory committee in connection with the rejection of mandatory double bottom or double hull designs; and

(3) Exclusive reliance upon standards agreed to internationally under the auspices of the Intergovernmental Maritime Consultative Organization.

With regard to the substance of rules and regulations promulgated to date, the Environmental Groups identify five violations of law which are currently being challenged in court:

(1) Failure to mandate standards to improve oil tanker maneuvering and stopping ability;

(2) Failure to establish personnel standards;

(3) Failure to mandate adequate standards to reduce cargo loss following accident;

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