Some Thoughts On Implementing The IOA Guidelines Within An OPA 90 Framework Greg Buie, National Pollution Funds Center Post- IOSC Ad Hoc IOA Meeting May 9, Westin Hotel, Savannah, Georgia

Discussion Outline  U.S. Response System Overview  U.S Liability and Compensation Regime  Federalism and Spill Response in the U. S.  Role of FOSC  Role of the State  Role of the Spiller  Tying it all to the IOA Guidelines from a U.S. CWA/OPA 90 Response Perspective

OPA/OSLTF v. CLC/IOPCF CLC/IOPCF  Compensation for damage caused by spills from oil tankers  Strict liability for ship owners up to express limits  IOPCF available when ship owner does not pay  IOPCF funded by contributions from persons receiving oil in member states OPA/OSLTF  Removal costs & damages caused by discharge of oil, from vessels & facilities, to US waters  Strict liability of responsible parties with compulsory insurance for vessels greater than 300 GT  OSLTF available to fund government response and to pay removal costs and damage claims when responsible party does not pay  OSLTF financed from tax on domestic crude oil production & foreign petroleum imports.  US States may enact additional liability provisions

Response Model in the United States  The Responsible Party  Prevents  Prepares  Responds  Pays  “Polluter Pays” is foundational in OPA  Evidence of Financial Responsibility required to operate

Response Model in the United States  The Responsible Party  Responds  Pays  “Polluter Pays” foundational in OPA  Evidence of Financial Responsibility required to operate  BUT -  When the Limit of Liability is reached, the spiller can withdraw form the response  Result is full Federalization of the response

Response Model in the United States  The FOSC can “monitor” the spiller’s response, or  The FOSC can “direct” all response actions, if the spill particularly bad. See 33 USC 1321(c)(2)(A)  Clean Water Act response authority under 1321(c) contemplates two tiers of oil spills  Most IOA scenarios will arise from a spill of such a character and nature that the FOSC is directing all action, Federal, State, Responsible Party per 1321(c)(2)(A)

Implementing the IOA Coordination Process  IOA process, when invoked, should be  Executed within Unified Command framework  Executed with consensus of Unified Commanders, to the extent possible  Executed based on operational need, not political or diplomatic exigencies  The Unified Commanders should be aware of the five basic mechanisms of IOA coordination and employ the ones that make sense for situation at hand

Implementing the IOA Coordination Process  The five mechanisms of coordination  Provide a high level of flexibility  Permit the RP and Underwriters to procure resources to the maximum extent possible and control costs  Recognizes that some resources are only available to Unified Commanders on a Government-to-Government basis  Recognize and provide a mechanism for addressing political and diplomatic exigencies

Using the OSLTF in the IOA Coordination Process  The OSLTF is a fund of first resort and a fund of last resort  First resort example – staffing of IOA units at ICP and HQ  First resort example – funding a reimbursable agreement for use of a government-owned and operated oil spill surveillance aircraft  OSLTF is only available in the framework of “OPA compensable costs” that are “consistent with the National Contingency Plan”

Using the OSLTF in the IOA Coordination Process  Many elements of the IOA Guidelines can be funded by the OSLTF  Section 8.1 Best Practices  Key point – the OSLTF will only fund what the FOSC authorizes  Section 8.4 Staffing for IOA evaluation unit  Sections IOA coordination process details  Section 8.11 Technical expertise  Section 8.14 “Cradle to grave” documentation of how the process was executed and the decisions that were made

Using the OSLTF in the IOA Coordination Process  Five Mechanism Funding and Procurement Model ; ;  1. Gov. – Gov.; OSLTF; Reimbursable agreement (e.g. PRFA)  2. Priv. – Priv.; RP/Underwriter; Contract  3. Priv. – Gov.; RP/Underwriter; Contract  4. Priv. thru Gov. – Gov.; RP/Underwriter; Reimbursable agreement with commercial contract overlay  5. Regional Orgs; OSLTF; standard Reg. Org. protocols

Using the OSLTF in the IOA Coordination Process  Section 10 Customs, Legal, and Financial Issues  Sections 10.3 and 10.4 – Pre-planning  Vital to the process; but not OSLTF fundable  Section 10.5 – ATA Carnets – Never heard of this; associated cost like surety possibly fundable; need to learn more  Section – Compensation – concur w/need for clear terms & conditions for addressing damage; OPA claims process could possibly be invoked in some situations, may be less ideal than commercial contract T&Cs  Section – Daily cost tracking vital; e.g. CG FOSCRs

Future Actions  Detailed Preplanning  Identify some key assets that we “know” we would use in the U.S. in a IOA scenario  Dash 8 aircraft  Certain specialized salvage and response vessels  Skimming systems  Specialized international response personnel (wildlife rehab, SCAT, marine firefighters etc.  Explore the concept of international PRFAs  Conduct IOA TTXs  Identify countries and organizations that can contract directly with RPs

Future Actions  Detailed Preplanning  Develop a strategy for publicizing the IOA protocols  Senior government officials, diplomatic community  Public stakeholders, NGOs, advocacy groups  Avoid the “Why didn’t they use the ’s magnificent ?” question.