Much Ado About Tug Escorts in Buzzards Bay

By BECKY W. EVANS (reporter.evans@gmail.com)

The view of Buzzards Bay from Round Hill Beach in Dartmouth.

BOSTON– In the two weeks since new oil spill prevention rules went into effect, Massachusetts has dispatched four tugboats to shadow oil barges traveling through Buzzards Bay. A fifth so-called “tug escort” is scheduled for today, said Edmund Coletta, spokesman for the state Department of Environmental Protection.

“There is no indication that any ships are transiting without calling us at this point,” he said.

Coletta said the tug escorts, which were designed to protect the sensitive bay from oil spill disasters such as the Bouchard 120 spill, will continue as scheduled despite a lawsuit that members of the oil transport industry filed Wednesday against Massachusetts Governor Deval Patrick and DEP Commissioner Laurie Burt.

“We have gotten a copy of the lawsuit … and are still reviewing it,” Coletta said.

In the civil lawsuit, the plaintiffs argue that the state’s rules for tug escorts and state-licensed pilots, as described under the state’s 2009 Oil Spill Act, are “invalid” because they conflict with federal law. The five plaintiffs include American Waterways Operators, International Association of Independent Tanker Owners, Chamber of Shipping of America, International Chamber of Shipping, and International Group of P&I Clubs.

“The 2009 Oil Spill Act impermissibly seeks to establish an overlapping
and competing legal regime with its imposition of operating and manning requirements on foreign and domestic tank vessels operating in Massachusetts waters,” according to the complaint filed in U.S. District Court.

American Waterways Operators and the U.S. government used the same legal argument in 2005 when they challenged parts of Massachusetts’ 2004 Oil Spill Act, separate from the 2009 law. After more than five years of courtroom battles, the case ended a week ago when  federal judge Douglas P. Woodlock issued a permanent injunction preventing Massachusetts from enforcing the tug escort and state-licensed pilot provisions of the 2004 law.

“In the final analysis, the law of preemption … leaves the last word under Federal law regarding the formulation of regulations to control vessel
traffic, to enhance vessel safety and to decrease environmental
hazards in Buzzards Bay to the Coast Guard,” Woodlock wrote in his decision.

The Massachusetts Attorney General’s Office “is still reviewing the ruling and exploring all of our options, including whether to appeal the decision,” said spokeswoman Jill Butterworth.  She said an appeal would have to be filed within 60 days of the judgment.

The ruling has no impact on the state’s current rules for tug escorts and state-licensed pilots, Coletta said.

While the lawsuit pertaining to the 2004 act was being fought in court, Massachusetts legislators set to work crafting a new law that would provide the same protections for Buzzards Bay. The resulting law, known as “An Act Preventing Oil Spills in Buzzards Bay,” was signed by Gov. Patrick on Sept. 24, 2009.

The 2009 law differs from the 2004 act in that the provision and cost of tug escorts and state-licensed pilots falls to the state, rather than the oil transport companies. The system is designed to be voluntary, rather than mandatory. Companies are encouraged to give the state 24-hour notice that they will be sending a barge through Buzzards Bay. If they do not give notice, they will face triple the fines in the event of an oil spill.

The new rules have taken effect in recent weeks. On March 1, the DEP began dispatching state-licensed pilots, who have knowledge of the narrow bay, to operate tugs towing double-hulled oil barges. On March 29, the state began sending tug escorts to shadow double-hulled barges carrying 6,000 barrels or more of oil.

Tug escorts aim to provide a quick response in the event of an emergency. If a tug was nearby when the Bouchard 120 barge drifted out of the Buzzards Bay shipping lanes on April 27, 2003, it could have kept the barge from running aground and spilling up to 100,000 gallons of oil, said Mark Rasmussen, director of the Coalition for Buzzards Bay, an advocacy group.

On April 1, the state increased the Oil Spill Trust Fund’s per-barrel oil fee from 2 cents to 5 cents. The fee is charged to companies who offload oil in Massachusetts. The fund will pay for the $5,000 tug escorts and the state-licensed pilots, the cost of which Coletta did not know. McAllister Towing of Narragansett Bay won the tug escort contract through a competitive bid process. State pilots are assigned by a district pilot commissioner.

Rasmussen was not surprised when the new rules were met with a lawsuit brought by the oil transportation industry.

“Unfortunately, it seems to be general operating procedure for American Waterways Operators to challenge anything individual states do to try to protect their waters,” he said.

But Rasmussen, whose organization joined the state as a co-defendant in the 2004 Oil Spill Act lawsuit, doesn’t think oil transporters will win their case this time.

“All this law does is say, ‘Call ahead and tell us your coming,'” he said. “I think they will have a very hard case trying to convince a judge that that’s an unreasonable request by the state of Massachusetts, for an industry that poses so much risk to our coast.”

Rasmussen added that it is telling that the U.S. government has not joined the industry as a plaintiff as it did in the first lawsuit.

“This time it is the industry by themselves,” he said.

The Coalition for Buzzards Bay will consider in the coming weeks whether it will join the lawsuit as a co-defendant, Rasmussen said.

Court documents show that the case has been assigned to the same judge who issued the ruling in the first lawsuit.

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