(4) Failure to require retrofit of segregated ballast capacity; and

(5) Failure to distinguish between coastwise and foreign trade.

In light of the failure of the Coast Guard properly to implement the Act, the Environmental Groups believe that its original objectives and requirements should be restated in terms clear to the Coast Guard:

(1) The Act should state that use of 'best available pollution prevention technology" is mandated.

(2) The Act should state that U.S. standards must be applied unless international standards are of equal or greater stringency.

(3) The Act should state that distinctions between coastwise and foreign trade are authorized.

(4) The Act should expressly state that it is not preemptive of state law. (5) The Act should explicitly reject grandfathering except when undue economic hardship would occur and not be outweighed by environmental benefits. (6) The Act should mandate specific design and construction standards.

I am Eldon Greenberg of the Center for Law and Social Policy, a public interest law firm in Washington, D.C. I appreciate the invitation to appear before the Committee today to provide the views of nine national environmental organizations-the Natural Resources Defense Council ("NRDC"), the Sierra Club, The Wilderness Society ("Wilderness"), the National Wildlife Federation ("NWF"), the Environmental Defense Fund ("EDF"), the National Parks and Conservation Association ("NPCA"), Friends of the Earth ("FOE"), the National Audubon Society ("Audubon") and the Environmental Policy Center ("EPC") (collectively the "Environmental Groups")-with respect to the implementation of the Ports and Waterways Safety Act of 1972, Pub. L. 92-340 (the "Act"). I am counsel to all the Environmental Groups except Audubon and EPC in a lawsuit challenging the adequacy of regulations issued under Title II of the Act. While Audubon and EPC are not parties to such suit, I have represented them on other matters relating to the implementation of the Act, and they have asked to be associated with the views I express today.

The Environmental Groups are all organizations deeply concerned about the preservation annd protection of the marine and coastal environment. With the exception of EPC, which is an independent, privately financed group located in Washington, D.C., which provides policy analysis and research assistance to state and local environmental organizations, all are non-profit membership organizations. Their combined membership exceeds 2,500,000 persons throughout the United States and abroad.1

The Environmental Groups have been intimately involved in development and administration of the Act since its inception 2 and, in particular have been concerned with Title II, which will be the focus of my testimony this morning. The hsitory of their involvement has been one of increasing disillusion, and has led from positive approval of initial Coast Guard proposals in 1973 to two lawsuits in the past year, the first on behalf of all the groups but EPC, challenging the

1 NRDC, whose principal office is at 15 West 44th Street, New York, New York 10035, and which has additional offices in Washington, D.C. and Palo Alto, California, has a membership of approximately 22,000 persons. The Sierra Club, whose principal place of business is at 530 Bush Street, San Francisco, California, 94104, has a membership of approximately 156,000 persons. Wilderness which has its principal office at 1901 Pennsylvania Avenue, N.W., Washington, D.C. 20006 and a field office in Denver, Colorado, has membership of approximately 90,000 persons. NWF, whose principal place of business is at 1416 16th Street, N.W., Washington, D.C. 20036, is composed of associate members and members of state affiliate member organizations, comprising over 2,000,000 persons. EDF, whose principal place of business is 162 Old Town Road, East Setauket, New York 11733, and which has additional offices in New York City, Washington, D.C., Denver, Colorado and Berkeley, California, has a membership of approximately 58,000 persons and a 700 member Scientists' Advisory Committee. NPCA, whose principal office is 1701 18th Street, N.W., Washington, D.C. 2009, has a membership of approximately 45,000 persons. FOE, whose principal place of business is 529 Commercial Street, San Francisco, California 94111, has a membership of 20,000 persons. Audubon, which has its principal office at 950 Third Avenue, New York, New York 10022, has a membership of more than 340,000 persons. EPC's principal place of business is at 324 C Street, S.E., Washington, D.C. 20003.

2 With the permission of the Chairman, I would like to attach for inclusion in the record the following comments submitted in the public proceedings which have taken place ot date under Title II to the Act: (a) Letter, dated March 15, 1973, regarding CGS 72-245P, attached hereto as Exhibit 1; (b) Letter, dated August 6, 1973, with regard to withdrawal of the above-mentioned proposal, attached hereto as Exhibit 2; (c) Letter, dated August 19, 1974, concerning CGD 74-32 and CGD 74-77, attached hereto as Exhibit 3; (d) Testimony, presented on May 21, 1975, with respect to CGD 74-127, together with a letter of December 6, 1974, concerning the same proposal, attached hereto as Exhibit 4; and (e) Letter, dated November 12, 1975, concerning CGD 75-201, attached hereto as Exhibit 5.

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failure of the Coast Guard to issue regulations by the statutorily required dates (NRDC, et al, v. Coleman, et al., Civil Action No. 75-0859, D.D.C),3 and the second, on behalf of all the groups but EPC and Audubon, challenging the regulations as ultimately issued (NRDC, et al. v. Coleman, et al., Civil Action No. 76-0181, D.D.C.).1

Some three and a half years after passage of the Act, its promise has not been realized. This Committee's Report on the Act, S. Rep. No. 92-724, 92 Cong., 2d Sess. 1972 U.S. Code, Cong. & Adm. News 2766 (hereinafter cited as the "Senate Report") sets out in as explicit terms as possible the Congressional objective that the Coast Guard 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 (46 C.F.R. §32.53), and incorporation of segregated ballast on new, large oil tankers (33 C.F.R. §157.09), there has not been a single major design and construction_innovation promulgated under the Act. Obviously, something has gone awry. In the remainder of this testimony, I will seek to identify some defects in the process of developing rules under the Act which has led to this result and to identify some defects in the substance of the rules themselves. I will then proceed to make some recommendations designed to ensure that the original mandate of the Act is met.

I. DEFECTS IN THE PROCESS OF IMPLEMENTATION OF THE ACT

At least three fundamental defects can be identified with the Coast Guard's implementation 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 its final regulatory package; and its total reliance on the Intergovernmental Maritime Consulative Organization ("IMCO") for the standards ultimately promulgated.

(A) Delay in promulgating rules

The Coast Guard's persistent delay in promulgating rules and regulations under the Act has been nothing if not unconscionable. And, particularly because the Coast Guard has determined not to apply major design and construction requirements retroactively, the delay has been disastrous in terms of the real impact of such requirements.

The Act, as this Committee is well aware, estabished a precise time table for its implementation. Under Subsection 201(7), as amended by Section 401 of the Trans-Alaska Pipeline Act of 1973, rules and regulations were to be made effective for oil tankers in foreign trade between January 1, 1974, and January 1, 1976, and for oil tankers in coastwise trade not later than June 30, 1974. The legislative history of the Act is replete with indications of the importance which Congress attached to these statutory deadlines. See, e.g., Senate Report at 2788 ("It is anticipated that the Secretary will act as expeditiously as practicable in this area, assigning it to urgent priority which it requires"); 119 Cong. Rec. 22837 (July 9, 1973) (Statement of Senator Magnuson) (acceleration of application date "basic to the marine leg of the Alaskan system").

Despite the intent of Congress, it was not until June 28, 1974, just two days prior to the statutory deadline for the effective date of final rules and regulations covering oil tankers in domestic trade, that the Coast Guard even published proposed rules in this area. Further, although the period for public comment on such public rules expired on August 19, 1974, final rules were not published until October 1975, some 15 months later, and, even then, the Coast Guard has still not made up its mind concerning one of the most critical parts of the proposed 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 United States navigable waters. Yet, more than two

3 A copy of the Complaint is attached hereto as Exhibit 6. A copy of the Complaint is attached hereto as Exhibit 7.

years has now passed-indeed, the statutory deadline for the effective date of such rules is already two months behind us-and the Coast Guard has yet to propose a single rule applicable to tankers in U.S.-foreign trade.

The effect of this delay is far from hypothetical. While the Coast Guard 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 Coast Guard 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.

(B) Reliance on an illegal, Industry Dominated Advisory Committee

Perhaps the most controversial issue dealt with by the Coast Guard 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 industy advisory committee.

After the close of the formal comment period on rules originally proposed in June of 1974, the Coast Guard 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 non-governmental 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. Each member of the group voted his preference for particular designs-this was not exactly a scientific exercise-and not surprisingly, the group's recommendations were negative as regards double bottoms or double hulls.

While the Coast Guard ultimately put the recommendations of the study group in the form of a proposed rule and solicited public comment thereon, and while the final rule for "allocation of segregated ballast space" published by the Coast Guard on January 8, 1976 (41 Fed. Reg. 1479) modifies such recommendations in some respects, nonetheless the study group's recommendations were essentially adopted by the Coast Guard. The Federal Register notice concerning the final rules itself states that they are "not substantively different . . . from the previously proposed rules" recommended by the study group.

The Coast Guard's development of its "alternative" to double bottoms behind closed doors through collaboration with the affected industry, and to the exclusion of other interested parties, necessarily casts doubt upon the validity of the final rules themselves. It further reveals the extent to which the Coast Guard has not appreciated the necessity of involving all elements of the affected public in an open decisionmaking process.

(C) Reliance upon IMCO standards

As I noted earlier, the Coast Guard has not promulgated a single standard which has not already been agreed to internationally under the auspices of IMCO. The Act, in other words, 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. And, despite the fact that no international agreement precludes the United States from establishing additional, more stringent standards for oil tankers entering its navigable waters, the Coast Guard for political, not technical reasons, has declined to do so.

The extent of the Coast Guard's devotion to solutions arrived at through IMCO is reflected in its Final Environmental Impact Statement on Regulations for Tank Vessels Engaged in the Carriage of Oil in Domestic Trade: Protection of the Marine Environment (August 1975) (the "EIS"). The EIS basically reads like a brief for the 1973 IMCO Convention, rather than an objective analysis of how best to protect marine and coastal environment of the United States. The first ten pages of the EIS almost entirely focus on why the United States must support the 1973 IMCO Convention. Aņd, every single alternative

is rejected because, inter alia, the 1973 IMCO Convention does not provide for it. See EIS at 60-62.

In sum, the primary basis for determining whether or not particular standards should be included in regulations has been whether such standards were provided for in an international agreement rather than whether such standards would provide for the best possible protection of our navigable waters. The ostensible justification for this approach is that a "cooperative international effort" to oil pollution control is essential and that U.S. leadership in this effort is linked to a decision not to go beyond the requirements of the 1973 IMCO Convention. But, except to set out wholly speculative disadvantages, e.g., "loss of foreign trade," "adverse effects on foreign relations," EIS at 7, the Coast Guard has never coherently articulated why a cooperative effort would falter if the United States adopted independent standards for its own navigable waters or how our leadership would be adversely affected by such action. In any event, we believe that the Coast Guard's approach is unsound and can only result in inadequate environmental protection. Indeed, the Coast Guard is doing precisely what this Committee stated it must not: it is sacrificing environmental protection on the altar of the principle of international regulation. Senate Report at 2783, 2788.

II. DEFECTS IN THE RULES PROMULGATED UNDER THE ACT

It is not my purpose this morning to spell out in detail the various deficiencies which the Environmental Groups believe inhere in the rules promulgated to date by the Coast Guard under Title II of the Act. Because the final rules in virtually all respects have remained unchanged from those orginally proposed, we believe that our views are well set out in the comments which were submitted in the rulemaking proceedings themselves and which are attached as exhibits to this written statement. Nonetheless, I believe it would be helpful for the Committee if I briefed it with regard to the violations of law which are the particular subject matter of the lawsuit which is now pending in the District Court here. (A) Failure to mandate standards to improve oil tanker maneuvering and stopping ability

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Section 207 (A) of Title II specifically provides that the Coast Guard shall develop standards "to improve vessel maneuvering and stopping ability Oil tanker maneuvering and stopping ability was a central concern of this Committee in 1972. See Senate Report at 2778-2779, 2787. Yet, despite the mandate of the Act, and despite the availability of technology which would provide an acknowledged improvement in oil tanker maneuvering and stopping ability, the Coast Guard has not promulgated a single regulation in this area.

The Coast Guard's justification for its failure to act is that accidents are not just a function of maneuverability and stopping ability, but of a variety of factors, all of which affect "controllability." It is obvious, however, that to define the problem in terms of "controllability," does not suffice to relieve the Coast Guard of the statutory responsibility of improving maneuvering and stopping ability. Many factors bear, for example, on whether an automobile accident may occur, but because drivers don't pay attention to the road or because weather conditions may be bad or because road signs don't give adequate warning, is not adequate justification to ignore brake and steering systems. (B) Failure to establish personnel standards

Despite the fact that the Coast Guard justifies its decision not to issue comprehensive design and construction standards, in part, on the grounds that human error is a more significant factor in causing tanker accidents, nonetheless, the agency has issued no regulations to improve crew training and qualifications. Section 201 (3) of Title II specifically requires the Coast Guard to establish such "rules and regulations as may be necessary with respect to the requirements of the manning of such vessels [oil tankers] and the duties and qualifications of the officers and crew thereof. . . ." These regulations must be issued quite independently of whether any international treaty, convention or agreement addresses similar topics. Yet, the Coast Guard's justification for not taking action in this area is that "additional progress toward achieving international agreement on (such) standards is needed before regulations can be proposed," EIS at 61, even though the conference at which such issues are scheduled to be considered will not even take place until 1978. This is really turning the Act on its head. Even assuming that standards in the area of crew training and qualification were related in some way to the achievement

of international agreement, nonetheless the scheme of the Act requires that the United States propose rules independently and submit them to international forums for approval and action, not sit back and wait for international action before even proposing our own rules.

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

Despite overwhelming support from environmental groups and concerned coastal states such as the States of Alaska and Washington, double bottoms, which would reduce outflows from groundings, have not been mandated by the Coast Guard, and, instead, the Coast Guard has adopted the concept of allocation of segregated ballast capacity as "defensive space." From a legal standpoint, there are at least three defects in the Coast Guard's approach: (1) it only applies to new oil tankers larger than 70,000 deadweight tons, and, thus, smaller oil tankers, which commonly enter narrow, shallow, crowded and environmentally sensitive coastal waterways, and which often carry oil products which may be more toxic to marine life than crude oil, have to meet no hull protection requirements whatsoever; (ii) it in no way requires environmentally optimal designs be adopted; and (iii) it delegates final design choice entirely to the regulated industry which, one must presume, will make its judgments for economic rather than environmental reasons.

(D) Failure to require retrofit of segregated ballast capacity

The most important innovation in the Coast Guard's regulations is a requirement of "segregated ballast capacity" to reduce operational outflows. However, this requirement does not apply to "existing vessels," a category defined to include not only those vessels which are currently in service, but all those on order or under construction as of December 31, 1974, and which will be delivered prior to December 31, 1977. In other words, although this Committee was particularly concerned about the counterproductive implications of "grandfather rights," see Senate Report at 2786-2787, and although retrofit for segregated ballast might be accomplished for as low a cost as several hundred thousand dollars per tanker and phased over a period of several years to avoid disruption of service, the Coast Guard ignored these considerations and established an absolute grandfather clause for perhaps the most critical piece of its entire regulatory package. The effect of doing so, as I noted earlier, is particularly devastating, since the prospects for new tanker construction over the next 10 years are dim.5 The failure to require retrofiting of segregated ballast capacity thus essentially nullifies the beneficial effect of the rule itself.

(E) Failure to distinguish between coastwise and foreign trade

While the Act distinguishes between oil tankers engaged in "foreign trade" and oil tankers engaged in "coastwise trade," inter alia, in terms of the dates of application of the statutory standards, and while it contains no provision requiring the application of identical standards to oil tankers engaged in "foreign trade" and oil tankers engaged in "coastwise trade," nonetheless, the Coast Guard has determined that it is "legally obligated" to apply the same standards in both trades. The effect of the Coast Guard's conclusion is to apply what even it admits are standards which provide "considerably less" pollution protection for coastwise trade that would otherwise be desirable and feasible. EIS at 3. This result runs counter to the intent of Congress in amending the Act in 1973, and amounts to an unjustifiable repudiation of the representations repeatedly made to Congress and the public in connection with the consideration of the Trans-Alaska Pipeline Act, namely, that tankers carrying oil from Alaska to West Coast ports would be built to the most stringent possible environmental standards.

III. RECOMMENDATIONS FOR CONGRESSIONAL ACTION

The Environmental Groups continue to 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

5 Exxon Corporation, for example, has estimated that existing tonnage of mediumsized tankers and super-sized tankers already exceeds both current and forecasted requirements over the next 10 years, and even if not a single new order is placed, substantial excess capacity will exist throuh 1985. See Mueller, The WorldWide Need for Tankers (Paper presented at the Seatrade Conference Money and Ships, London, March 18, 1975).