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Coast Guard barge rules would dilute rigid R.I. law
By PETER B. LORD
Journal-Bulletin Staff Writer
PROVIDENCE
The proposed rules "would not prevent another North Cape - type oil spill," says U.S. Attorney Sheldon Whitehouse.
Ever since the barge North Cape spilled its oil on Moonstone Beach two years ago, Rhode Islanders have been waiting for the U.S. Coast Guard to enact tough new safety rules to ensure such spills don't happen again.
Yesterday it was learned that the Coast Guard has proposed new standards -- so quietly that almost no one in Rhode Island noticed, and so lenient, experts say, that the Scandia and North Cape could sail tomorrow with few changes in safety equipment.
The new rules are weaker than the state law passed in 1996, weaker than the safety measures recommended last year by a regional study commission and far weaker than the standards held by a federal judge in Rhode Island two weeks ago when she fined the North Cape's owners $9.5 million for various criminal acts related to the spill.
U.S. Attorney Sheldon Whitehouse; state Sen. Charles J. Fogarty; Save the Bay; and Trudy Coxe, secretary of environmental affairs in Massachusetts, have all submitted strong objections.
Fogarty complained that the weaker federal rules specifically supersede the tough state law and he asked the Coast Guard to consider holding a public hearing.
Whitehouse warned that the standard of care imposed by the new rules is so low, that based on the North Cape criminal case, anyone who "follows them to the letter and does nothing more, may still be found guilty of criminal negligence."
"The regulations, as proposed, would not prevent another North Cape - type oil spill," Whitehouse said in a statement to the Coast Guard's Marine Safety Council.
Dennis Nixon, a professor of marine affairs at the University of Rhode Island who just completed a 102-page analysis of all the regulatory reactions to the spill for a law journal, concluded yesterday that the Coast Guard has once again been overly influenced by the towing industry.
"This is yet another backpedal by the Coast Guard," Nixon said.
Coast Guard officials yesterday declined to respond specifically to the complaints.
Lt. Patrick J. DeShon, speaking from Coast Guard headquarters in Washington, acknowledged that objections have been received and are under review. He also said the Coast Guard would decide by next week whether to reopen the public comment period on the rules, which ended Jan. 5.
THE RULES were written in response to legislation authored by Sen. John H. Chafee after the spill, which took place in sight of his beach house. Chafee's bill called on the Coast Guard to set new safety standards.
But last night, Chafee's spokesman, Nicholas Graham, said the senator's staff did not comment on the rules, nor did it hear any complaints from constituents. He said the staff contacted the Coast Guard yesterday and asked for a briefing.
"We still consider this a step in the right direction," Graham said.
The spill occurred when the tug Scandia caught fire during a fierce winter storm and lost power. The crew abandoned ship. But with help from the Coast Guard, crewmen were placed on the barge North Cape to try to set the anchor, which was strapped to the deck. When they failed, both vessels were washed up on Moonstone Beach.
The two-year anniversary of the spill was Monday night.
The National Transportation Safety Board still hasn't released its final report on the spill.
But two weeks ago, U.S. District Judge Mary M. Lisi ordered Eklof Marine Corp., owner of the tug and barge, to pay $9.5 million in criminal fines and penalties for the spill, Rhode Island's worst.
She found Eklof officials guilty of negligence, based on findings by the Justice Department that they didn't have an operable anchor -- the windlass had been removed for repairs -- and they didn't have adequate firefighting equipment. All they had were two handheld extinguishers and two canisters of carbon dioxide that couldn't be used because they were inside the burning engine room.
JUST MONTHS after the spill, the Rhode Island General Assembly conducted its own investigation into the contributing safety problems and enacted a bill that would require all oil barges to have crews, operable anchors or barge retrieval systems, and automated fire-suppression systems. It also required that, starting in 2001, all barges have double hulls or additional escort tugs during bad weather.
The tug and barge industry strongly objected to the state law and supported creation of a regional team including the Coast Guard, barge operators, state officials and environmental leaders to consider regional rules.
The regional group didn't support manned barges. But it did recommend anchoring and retrieval requirements similar to the state law. It also supported beefed-up navigation equipment and improved communications.
In 1997, the General Assembly passed a new version of its bill that followed the regional recommendations by dropping requirements for tug escorts and crews, but still included some of the toughest safety measures in the country.
The barge industry objected, saying states should wait for the Coast Guard to pass national standards.
On Oct. 6, 1997, the Coast Guard's proposed rules were published in the Federal Register. They didn't trigger much attention in Rhode Island. Nixon, studying the rule-making process, missed the announcement for months. Save the Bay didn't know about them until near the end of the year, and then alerted Fogarty the next day.
Under the new rules, extensive fire-suppression systems would only be required on new vessels; existing vessels would be exempt.
The rules would mandate anchors only on manned barges. Unmanned barges would not need an anchor, but they would carry an extra tow wire so they could be retrieved if the primary tow line parts.
THE BARGE INDUSTRY likes the new rules.
"Our general perspective on them was, `Good job, Coast Guard,' " said Jennifer Kelly, vice president of government affairs for the American Waterways Association.
She said Rhode Islanders should remember that the new rules are for tugs and barges around the country, and many of them face problems that are different from those on the East Coast.
For instance, West Coast waters are deeper, she said, so anchors wouldn't help in many places. Also, she said, fewer safety measures are probably necessary for a tug pushing a barge filled with dry cargo on the Mississippi River.
She said she believes East Coast operators will voluntarily operate by higher standards.
Nixon acknowledges that much of the industry does operate safely. But rules are needed to "catch the weak players."
He said Rhode Island legislators should take credit for instigating tough new safety measures locally. And the battle over the national standards is far from over.
"The state's official seal is an anchor. It was incomprehensible to this historic maritime community that federal law allowed barges like the North Cape to traverse our waters without one," Nixon wrote in an article set to appear this spring in the Ocean and Coastal Law Journal of the University of Maine.
"Despite claims that any effort to regulate marine safety was preempted by federal law, and despite threats that a state law might lead to an oil embargo, Rhode Island passed one of the toughest barge safety laws in the country.
"The real legacy of the North Cape oil spill is that rules of any kind are under review," Nixon said in his report. "Whether it occurs through state and federal law or a combination of both does not really matter in the long run. The process of creating a safer operational environment has begun, and it took the tragic loss of the North Cape for that to happen."
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