From the executive director: EPA’s temporary policy limits inspections and enforcement actions

Donna Schantz
Photo of Donna Schantz
Donna Schantz

By Donna Schantz
Executive Director

In March, the U.S. Environmental Protection Agency issued a temporary policy on how to handle enforcement and compliance during the COVID-19 pandemic. An April letter clarified that the policy was not intended to absolve companies of responsibility, but to allow flexibility for regulators to adapt to the unique situations presented by the pandemic.

The EPA published remarks from public officials and stakeholders in support of the temporary policy, including remarks from Jason Brune, the commissioner of the Alaska Department of Environmental Conservation, or ADEC. The commissioner’s remarks are concerning, especially the reference to regulatory bodies, including ADEC and other state and federal agencies, seeking out “gotcha” moments in the course of their duty to enforce safety requirements.

In an April 24 letter to ADEC, the Council requested a commitment that all reasonable actions to prevent accidents from occurring would be taken. The Council also requested that any temporary policies such as this one be lifted as soon as the emergency declaration has ended.

Inspections are not ‘gotcha’ moments

The Council does not believe that regulatory oversight, including monitoring, inspecting, and reporting on industry operations, are punitive ‘gotcha’ moments. We also do not think that regulatory bodies seek to unnecessarily penalize industry during normal circumstances, let alone during an emergency such as the COVID-19 pandemic.

Quote from Jason Brune: “The regulated community needs certainty that it will not fall prey to punitive ‘gotcha’ moments during this pandemic. Limiting inspections at this time is prudent as we do not want staff to be unintentional vectors for the virus to rural parts of our state that are ill-prepared to treat sick patients.”
Source: What They Are Saying: Public Officials and Stakeholders Voice Support for EPA’s Discretion Policy for COVID-19 Pandemic

Given the extreme stresses resulting from this crisis, careful consideration should be given to how issues are characterized. The Council recognizes that regulators’ discretion is necessary during these unprecedented times, however regulatory enforcement must continue, as clarified by the EPA in April.

As state and federal agencies are stretched to their maximum capabilities, the Council’s role becomes increasingly more important. These new limits on inspections are added to the many stressors already impacting the system in Prince William  Sound, such as complications related to the pandemic, the recent oil spill from the Valdez Marine Terminal, the low price of oil, and reduced budgets and staffing levels, all of which could result in diminished safeguards for oil spill prevention and response. The suggestion that the department is limiting inspections can lead to complacency for both industry and regulatory agencies, transferring the risk to the public, and increasing the possibility of a major oil spill.

The safety of personnel must be the first priority. However, regulatory agencies cannot back off from their oil spill prevention responsibilities at this critical time in Alaska’s history.

Link to ADEC guidance: COVID-19 caused Non-Compliance Concerns, No Action Assurance Memorandum

 

Transparency is the foundation of public trust

Donna Schantz

By Donna Schantz
Executive Director

Public trust in our oil spill prevention and response system took many years to rebuild after the 1989 Exxon Valdez oil spill. It took a commitment to transparency, listening, and engaging stakeholders in developing and maintaining the system of safeguards for the Valdez Marine Terminal and associated tankers that we have today.

Photo of Donna Schantz
Donna Schantz

This system is now widely regarded as one of the best in the world. Strong State of Alaska statutes and regulations have supported this robust system. The lack of significant spills in Prince William Sound over the last 30 years indicates the effectiveness of industry meeting or exceeding regulatory requirements.

Trust in the system is at risk

Over the past few years, the Council has been seeing a steady erosion in regulatory oversight, staffing, funding, and coordination among many of the federal and state agencies responsible for enforcing strong laws and regulations. This alarming erosion has already started to reduce public trust in our prevention and response system.

In enacting the Oil Pollution Act of 1990, Congress determined that only when local citizens are involved in oil transport will the trust develop that is necessary to change the system from confrontation to consensus, and so the Act called for creation of citizen councils. Our Council is a unique partner for industry and regulators, giving them a platform to provide information, answer questions, listen to stakeholders, and cultivate the long-term relationships that are necessary to establish public trust.

While the Council has had disagreements with industry over the years, there have been numerous examples of industry, regulators, and citizens working cooperatively and collaboratively to find solutions. The success of these collaborative processes has been founded upon the transparent sharing of technical and scientific information; stakeholders felt informed, heard, and included in the process, resulting in trust and acceptance of the results.

However, an effort is currently underway to reform current oil spill regulations and statutes, reportedly to make them less burdensome on industry. We have seen a shift in philosophy among some decision makers that the details in the oil spill prevention and response contingency plans, and the regulations that guide them, are unnecessary and distracting. However, there is a lack of clear information on what is problematic.

It is unreasonable to claim now, decades later, that existing requirements are too onerous on industry. Industry has demonstrated a commitment to the environment through safer operations, implementing new technologies, and integrating lessons learned. Alyeska Pipeline Service Company and the Trans Alaska Pipeline System tanker operators have worked with regulators and citizens for 30 years to continuously improve the system and operate profitably. Any perceived financial burden to industry should be weighed against the devastation and enormous burden another major oil spill would place on the people, fish, wildlife, and environment of our region.

It appears that some may not fully understand or appreciate the legacy they have been entrusted to protect. Without transparency about what direction this potential regulatory reform may be going, it is difficult for those with historical knowledge, like the Council, to respond and advise.

Transparency is the antidote to mistrust

The Alaska Oil Spill Commission found that starting in 1981 there was a dramatic decline in regulatory oversight, and that decline contributed to the Exxon Valdez oil spill. An official recommendation to the Alaska legislature after the 1989 Exxon Valdez oil spill was, “The nation and the state need strong, alert regulatory agencies fully funded to scrutinize and safeguard the shipment of oil.”

As those who experienced firsthand the devastation of the 1989 spill are retiring or are no longer with us, the Council has increasingly become a repository of the knowledge and lessons from that disaster.

We hope that any movement towards regulatory changes will include a thorough public input process with adequate time for information to be shared, reviewed, and commented on. Only through active citizen engagement and community relationship building can public trust in the oil spill prevention and response system be upheld.

The Council will do everything possible to make sure the safeguards put in place over the past 30 years are not weakened, and to protect the region’s stakeholders who would be most impacted by another catastrophic spill. The Council was created for this role, in anticipation of the time when enough of the memory of Exxon Valdez oil spill had faded such that the robust system put in place to prevent an accident like that from ever happening again begins to look overbearing and burdensome. The Council continues to raise awareness and provide reasonable and justified resistance to regulatory and statutory changes that could weaken existing protections.

Strong regulations are a result of hard lessons

Donna Schantz
Donna Schantz

By Donna Schantz
Executive Director

The oil spill prevention and response system created for the Valdez Marine Terminal and associated tankers after the 1989 Exxon Valdez oil spill is one of the best in the world. Alyeska Pipeline Service Company and the Trans Alaska Pipeline System tanker operators have worked with regulators and citizens to continuously improve the system over the years. Industry safety records, coupled with the lack of significant spills in the past 30 years, point to the success of industry working within the current system. Credit is also due to the foresight of Congress for enacting the Oil Pollution Act of 1990, which included the creation of the citizen councils, and to the State of Alaska for implementing strong statutes and regulations. The Joint Pipeline Office was created in 1990 to coordinate efforts of the 13 different state and federal regulatory agencies with oversight responsibilities at the Valdez Marine Terminal.

One only needs to compare the prevention and response capabilities prior to 1989 to what is in place today to recognize the vast improvements that have been made. While the Council has had disagreements with industry over the years, there have been numerous examples of industry, regulators, and citizens working cooperatively and collaboratively to find solutions.

“The notion that safety can be ensured in the shipping industry  through self-regulation has proved false and should be abandoned as a premise for policy. Alert regulatory agencies, subject to continuous public oversight, are needed to enforce laws governing the safe shipment of oil.”

– Alaska Oil Spill Commission Report (1990) The Wreck of the Exxon Valdez: Implications for Safe Transportation of Oil.

Over the past few years the Council has been seeing a steady erosion in regulatory oversight, staffing, funding, and coordination among many of the federal and state agencies responsible for enforcing the strong laws and regulations. Agency budgets have been reduced, and personnel are being tasked with doing more with fewer resources. The Council wants to do everything possible to make sure the safeguards put in place over the past 30 years are not weakened.

Many of the people who worked so hard after the 1989 Exxon Valdez oil spill to make sure strong requirements were enacted are no longer with us or involved in the process. With the passage of time, we are losing historical knowledge and the lessons learned from those who experienced firsthand the devastation of the spill and who understood the importance of implementing strong requirements to make sure past mistakes are not repeated.

With this loss of understanding there is a shift in philosophy among some decision makers that the details in the oil spill prevention and response contingency plans, and the regulations that guide them, are unnecessary and distracting. Some of the details in the contingency plans have already been weakened or removed, and an effort to reform current oil spill regulations to make them less burdensome on industry is underway. It appears that some may not fully understand or appreciate the legacy they have been entrusted to protect.

After the 1989 Exxon Valdez oil spill, the Alaska legislature created the Alaska Oil Spill Commission to study the event and propose changes that would minimize chances for recurrence of a similar disaster. One of their recommendations was that, “The nation and the state need strong, alert regulatory agencies fully funded to scrutinize and safeguard the shipment of oil.” The Commission found that starting in 1981 there was a dramatic decline in regulatory oversight that contributed to the spill.

Industry has been able to meet or exceed current regulatory requirements and has demonstrated a commitment to the environment through safer operations. New technologies and improvements based on lessons learned have been added to the system in Prince William Sound to further enhance preparedness. Most of these reforms are costly, yet it is unreasonable to claim now, decades later, that existing requirements are too onerous on industry. Any perceived financial burden to industry should be weighed against the devastation and enormous burden another major oil spill would place on the people, fish, wildlife, and environment of our region.

The State of Alaska should take pride in the world-class oil spill prevention and response system created for crude oil storage and transportation in Prince William Sound. Maintaining this high level of vigilance is of paramount importance to keeping oil transportation safe. The Council continues to raise awareness and provide reasonable and justified resistance to changes that could weaken existing protections to avoid sliding back into complacency.

To find out more about the history and legislative  intent of Alaska’s strong  standards, read the Council’s August 2018 report:

  • Alaska's Oil Spill Response Planning Standard - History And Legislative Intent | August 1, 2018 | File size: 5.6 MB | Author: Nuka Research

  • Thirty years later, Council continues mission to combat complacency

    Donna Schantz

    By Donna Schantz
    Executive Director

    On March 24, 1989, the Exxon Valdez ran aground on Bligh Reef and spilled an estimated 11 million gallons of crude oil. Congress determined that complacency on the part of industry and government was a contributing factor in the accident and they mandated citizen involvement in the oversight of crude oil terminals and tankers. For the past 30 years, the Council has filled this role for Prince William Sound and its downstream communities, advocating for environmental safeguards to prevent oil spills and a strong response system should prevention measures fail.

    Improvements since 1989

    Measures developed with Council participation since 1989 represent vast improvements in oil spill prevention and response. We have double-hull tankers, high-performance escort tugs, a much-improved workforce, state-of-the art equipment for recovering oil, and a fleet of over 400 trained fishing vessels and crews ready to respond promptly to an oil spill. We also have improved communications between the oil industry and the state and federal governments, and more oil spill clean-up equipment than probably any other U.S. port. This has taken considerable effort on the part of industry, regulators, the Council, and other members of the public.

    Some recent examples of improvements include new purpose-built tugs and oil spill response barges that came on line with the marine services transition in 2018, and new technology that allows pipelines at the Valdez Marine Terminal to be internally inspected, which had not been done since start-up over 40 years ago.

    Read moreThirty years later, Council continues mission to combat complacency

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