Some Thoughts On Implementing The IOA Guidelines Within An OPA 90 Framework

1. 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, 2014 - Westin Hotel, Savannah, Georgia

2. 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

3. 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

4. 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

5. 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

6. 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)

7. 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

8. 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

9. 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”

10. 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 8.7-8.10 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

11. Using the OSLTF in the IOA Coordination Process • Five Mechanism Funding and Procurement Model <type>;<funds source>; <procurement vehicle> • 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

12. 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 10.13 – 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 10.17 – Daily cost tracking vital; e.g. CG FOSCRs

13. 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

14. 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 <insert favorite country ‘s name here>’s magnificent <insert name of equipment here>?” question.