April 1999     

Last Dance Congratulations, Erich Pedestrian Safety NALSA SABER Graduation Pledge Seven-Year Reflection Small Claims and Cinnamon Rolls Church of the Earth Y2K Nuclear Threat Tribal Members Speak INS Are Thought Police In re Robin E. LOVE, Debtor Selected Crime Beat Reports Living Large: Downtown Haiku Variations The Light William Stafford perspective Spring Wave Poetry Notes

Within six weeks of the ten-year anniversary of the grounding of the Exxon Valdez in the pristine waters of Prince William Sound, Alaska,¹ the environment took another pounding at the expense of the New Carissa. The ship grounded itself on a sand bar outside of Coos Bay, Oregon, on February 4, 1999, and was grounded again on March 2, 1999, at Alsea Bay, Oregon.²

In the wake of the spill of the Exxon Valdez, Congress passed the Oil Pollution Act of 1990 (OPA 90).³ OPA 90 sets forth an extensive liability scheme that is designed to ensure that, in the event of a spill or release of oil or other hazardous substance, the responsible parties are liable for the removal costs and damages that result from the incident. A responsible party includes an owner, operator, or demise charterer of a vessel.⁴ A responsible party may be liable for removal costs and damages to natural resources, real or personal property, subsistence use, revenues, profits and earning capacity, and public services.⁵

Section 1006 of OPA 90 directs the President to appoint trustees to conduct natural resource damages assessments (NRDAs) and develop and implement plans to restore, rehabilitate, or replace damaged natural resources.⁶ This section also allows for natural resource trustees to acquire equivalent natural resources. Trustees may be designated officials of the federal government, a state, an Indian tribe, or a foreign nation, if applicable. Natural resource trustees are directed to act "on behalf of the public" and to provide adequate opportunities for public notice and comment on all plans to be developed and implemented.⁷ Authority to recover for damages to natural resources also stems from section 311 of the Clean Water Act (CWA)⁸ and section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).⁹

Under section 311 of the CWA, federal and state agencies with diverse jurisdictions and missions are directed to combine their response and planning efforts in the event of an oil spill or release of another hazardous substance under the aegis of a National Contingency Plan¹⁰ or an Area Contingency Plan.¹¹ An Area Contingency Plan must provide for "efficient, coordinated, and effective action to minimize damage from oil and hazardous substance discharges."¹² In so doing, an Area Contingency Plan assigns duties and responsibilities to various federal and state agencies, provides for maintenance of necessary equipment and supplies, and establishes Coast Guard strike teams with specialized training in oil and hazardous substance control. In addition, an Area Contingency Plan is supposed to provide for surveillance and notice systems to detect oil spills as early as possible. Further, an Area Contingency Plan is to provide for a specific fish and wildlife response plan, developed with the advice of expert agencies, to minimize disruptions to fish and wildlife and their habitat.¹³

An Area Contingency Plan is further broken down into Geographic Response Plans (GRPs), which map out a specific location within an area and identify particular responses and areas that need protection. The operative GRP for the New Carissa incident was the Coos Bay GRP.¹⁴ Geographic Response Plans are used during the emergent phase of a spill, which lasts from the time a spill occurs until the Coast Guard Unified Command is operating and/or the spill has been contained and cleaned up. A GRP serves as primary standing orders for federal and state on-scene coordinators during the emergent phase of the spill. A GRP provides standardized response language to which all agencies have previously agreed and have incorporated into their personnel training, an inventory of available response equipment in the immediate vicinity, a geographic description of the area, a reference map, general protection and collection strategies (which must be modified to specifically address any single incident), shoreline countermeasures to be taken, sensitive resource and wildlife restrictions information, and logistical information for the area.

Corey Buria, Itsaso Olaizola, Alex West, and Daniela Grisch, having secured press passes, ride on a tarp-covered bus to the wreck of the New Carissa. Photo by Josh Arnold

The wreck of the New Carissa on the shore at Coos Bay. The bow section (on left) pivots on a sandbar close to the beach, as the smaller stern section settles into the sand (on right) further offshore. Photo by Josh Arnold

Under this authority, the U.S. Coast Guard, the Oregon Department of Environmental Quality, and the ship’s owner direct response operations as the command team of the Incident Response System (ICS). The ICS was developed in the early 1990s as a way of quickly and efficiently mobilizing state and federal resources to combat forest fires in California. The great benefit of the ICS concept is that the general structure of an ICS is not subject specific, but can be applied to any situation where multiple agencies must coordinate their action and resources to respond to a particularized incident. Due to its diverse applicability, the ICS system is used in some form to coordinate diverse actions such as military operations or responses to natural disasters, such as an earthquake or hurricane.

Under the ICS, the U.S. Coast Guard, the Oregon Department of Environmental Quality, and the salvage operator were able to quickly and efficiently coordinate their responses to the New Carissa. Personnel involved at the scene of the beaching knew their pre-defined roles, employed common terms when communicating with each other, and could rely on pre-determined personnel and agencies to perform their tasks according to the Coos Bay GRP.

Despite the framework already in place to respond to incidents like the New Carissa, each specific incident presents a set of circumstances and conditions that have never been dealt with before. Like a new client who comes into your office, no factual situation is ever completely the same as a previous situation. The response to the New Carissa was heavily influenced by these unforeseen and challenging variables.

Among the factors that played a significant role in the response were the weather, which provided gale force winds and 40- to 60-foot surf. This weather played a role in the cause of the grounding in the first place by pounding the New Carissa and breaking the ship in two. Stormy seas prevented another ship from approaching the New Carissa to pump oil on board. A lack of oxygen available in the cargo holds limited the effectiveness of the demolitions used. These severe storm factors also played a role in the few minor injuries to members of the response team and limited the available avenues for response to the incident.

Oil storage tanks on the sand dunes at Coos Bay. Photo by Josh Arnold

Another significant factor was the specific location of the spill, which was on the North Spit of the Oregon Dunes National Recreational Area, home to fragile grasslands that provide habitat to an endangered species of bird, the Western snowy plover.¹⁵ Another, the marbled murrelet, which is listed as threatened under the Endangered Species Act, makes its home in the area.¹⁶ The response team had to take special precautions to minimize its impact to the surrounding flora and fauna of the North Spit.

The size of the New Carissa itself was another factor that challenged the response team. As stated earlier, the New Carissa was over 639 feet long before it broke in two. The New Carissa carried over 400,000 gallons of fuel oil, which was necessary for crossing the Pacific Ocean and delivering its stock to Japan. This immense amount of fuel oil created the potential for a major environmental disaster and forced the response team to consider ways of disposing of an extremely large amount of hazardous substance as quickly as possible.

The ultimate irony of the efforts to respond to the New Carissa was that everything that could be planned ahead of time was planned ahead of time. The factors that could be determined on a hypothetical, pre-incident basis were already determined, and these factors provided the response team with valuable training and experience. However, stochastic variables, or x-factors, wreaked havoc on both the New Carissa and the salvage attempts. Nowhere was this more evident than with the tow line, which was flown in from the Netherlands specifically for towing the New Carissa to its watery grave. First, the idea that no appropriate tow line could be found in the Pacific Northwest is questionable, and that one could not be found anywhere in the United States or Canada seems impossible. The severing of this tow rope in the high seas was the most Kafkaesque element of the entire saga.

Furthermore, the Sea Victory is an able tug, rumored to have enough power to tow an aircraft carrier. But why was a decision made to employ the Sea Victory alone in removing the New Carissa from the coast? Why were no other ships called in to assist the Sea Victory? As time told, this was a mistake fatal to the mission.

The true nature of an emergency is an event that is unforeseen and for which no plan exists. Although the authority to respond to an event such as the New Carissa provides for a coordinated and efficient response, no laws or amount of planning can take every possible contingency into account. Each new situation provides unique circumstances and challenges to minimizing harmful impacts to the surrounding area.

Up close with the bow section of the New Carissa.     Photo by Josh Arnold

In the case of the New Carissa, and with most oil spills, there were no good options in responding to the threat posed by the impacts. Tested and available responses to oil spills, such as applying dispersants or attempting a burning, would have presented their own harmful environmental effects. Inevitably, each additional incident brings irreparable harm to an immediate area and has long-term effects on an entire region.

Rather than responding to incidents such as the New Carissa disaster, we should be preventing them from happening in the first place. This may mean more stringent controls on pilot and crew qualifications and staffing, and more funds provided to regulatory agencies to oversee and enforce these controls. Ultimately, however, the responsibility is on each of us to reduce the demand and need for international shipping. In so doing, each of us should look at the implications of our own lifestyles and weigh the benefits of goods shipped by freighters against the risks of environmental disasters.

² A chronology of the New Carissa incident follows. On February 4, 1999, the 639-foot New Carissa ran aground approximately one mile north of the entrance to Coos Bay, Oregon. The ship was set to enter Coos Bay to ferry a load of wood chips to Japan. The initial spill released approximately 70,000 gallons of oil onto the shore of the pristine Oregon Dunes National Recreation Area on the North Spit of the entrance to Coos Bay. The Unified Command, under the Coos Bay Geographic Response Plan, responded to the spill. About a week after the ship ran aground, Navy demolition experts attempted to burn fuel on board with the use of explosives and napalm to circumvent a wholesale release onto the coast. The immense fire resulted in burning approximately 400,000 gallons of the heavy fuel oil on board, but also weakened the hull of the New Carissa. Approximately 135,000 gallons were left unburned. The weakened hull was unable to withstand gale force winds and 40 to 60-foot high surf, which tore the New Carissa into two sections: a 420-foot bow section and a 220-foot stern section. On February 18, 1999, approximately two weeks after the Carissa's initial beaching, the Unified Command took advantage of a break in the storm to set up a pumping operation in order to attempt retrieval of the remainder of the fuel oil on board the ship. The pumping operation achieved mixed results. It mostly recovered seawater that had penetrated the hull of the ship rather than the molasses/bubble-gummy fuel oil that remained in the hulls of the ship. During this time, a specialized one-mile tow rope was being flown in from the Netherlands for use in an attempt to tow the bow section of the New Carissa to sea and then bury it under 9000 feet of international waters. The rope was flown into Seattle/Tacoma International Airport in Washington and trucked down to Coos Bay, Oregon. Upon its arrival, the rope was attached to the tug Sea Victory, based out of Astoria, Oregon. The Sea Victory pulled the bow section for two days, and at high tide on March 1, 1999, the bow section was successfully removed from the beach. The ship was towed for 40 to 50 miles, when, in heavy seas and winds during the evening of March 2, 1999, the mile-long tow line snapped. The bow section of the New Carissa was carried approximately 80 miles north of Coos Bay and came ashore once again at a sand bar near Patterson Beach State Park, at the south entrance to Alsea Bay, near Waldport, Oregon. The Unified Command was reassembled at Waldport. After recovering and re-attaching the tow line, the bow section was successfully towed 320 miles out to its ocean grave. The bizarre odyssey does not end there, however. After 400 pounds of directional explosives set into place by United States Navy demolitions experts failed to sink the bow section, a Navy Destroyer, the USS David R. Ray, fired 69 rounds from one of its Mark 45 deck guns. However, the bow section of the New Carissa was still afloat. Finally, on March 11, 1999, a Los Angeles-class nuclear attack submarine, the USS Bremerton, fired a Mark 48 torpedo that sent the bow section on its way to an eventual depth of approximately 10,866 feet to the Tufts Abyssal Plain. The eventual sinking of the bow section of the New Carissa prompted Oregon Governor John A. Kitzhaber to proclaim March 11, 1999 as "Two-thirds of the New Carissa at the Bottom of the Ocean Day." The stern section of the New Carissa remains submerged in the surf off of Coos Bay.

³ 33 U.S.C. §§ 2701-2761 (1994).

⁴ Id. § 2701(32)(A).

⁵ Id. § 2702.

⁶ Id. § 2706(b).

⁷ Id. § 2706(5).

⁸ Federal Water Pollution Control Act, 33 U.S.C. § 1321 (1994).

⁹ Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9607 (1994).

¹⁰ A National Contingency Plan is part of the National Response System, which includes a National Response Unit designed to oversee and respond to all discharge incidents; Coast Guard Direct Response Groups (regional personnel and equipment stationed in a region for the purpose of responding to a discharge incident); Area Committees and Area Contingency Plans; and tank vessel and facility response plans, prepared by the individual vessel or facility to implement removal or preventative actions in the event of a discharge incident. 33 U.S.C. § 1321(j) (1994).

¹¹ An Area Contingency Plan is a localized version of a National Contingency Plan. The Northwest Area Committee developed and implemented the Area Contingency Plan for the Pacific Northwest. The Northwest Area Committee is a joint response planning committee comprised of the United States Coast Guard Marine Safety Offices of Portland, Oregon and Puget Sound, Washington; Region Ten of the United States Environmental Protection Agency; the Washington Department of Ecology; the Oregon Department of Environmental Quality; and the Idaho State Emergency Response Commission. An Area Contingency Plan shall contain adequate plans to remove a worst case discharge and to mitigate or prevent a substantial threat of such discharge; describe the area covered by the plan, including areas of special economic or environmental importance that may be damaged by a discharge; include a detailed description of the responsibilities of an owner or operator and of federal, state, and local agencies in removing a discharge and in mitigating or preventing a substantial threat of a discharge; include a listing of the equipment and personnel available to authorities to ensure effective and immediate removal of a discharge, and to ensure mitigation or prevention of a substantial threat of a discharge; provide a list of local scientists with expertise in the environmental effects of spills in the area; and must be updated periodically by the Area Committee. Id. §§ 1321(d), 1321(j)(4). To find out more about the Northwest Area Committee, visit <http://www.webcom.com/~d13www/cgunits/mso/nwac.html>.

¹² 33 U.S.C. § 1321(d) (1994).

¹³ Id. § 1321(d)(2)(M)).

¹⁴ The Coos Bay GRP was developed by the United States Coast Guard Marine Safety Office, Portland, Oregon; the United States Environmental Protection Agency, Region Ten; and the Oregon Department of Environmental Quality. The Coos Bay GRP was developed in August 1995 and revised in June 1996. For complete access to the text of the Coos Bay GRP, visit <http://www.uscg.mil/d13/units/msopuget/coosbay/coosbay.html>.

¹⁵ Birdwatchers have counted only 97 adult Western snowy plovers in Oregon. At least 26 snowy plovers have been spotted with oil on them, although none had been found dead. 14 were captured and put in rehabilitation.

¹⁶ At least one marbled murrelet was found dead in the area. Another 46 dead birds of various species, 26 with obvious signs of oil, were found in the area.