Lawsuit update - August 28, 2008

Following the issuance of new federal regulations, described below, the United States again asked the District Court to enjoin the enforcement of the personnel and manning requirements and the tug escort provisions of the Oil Spill Act. 

On August 27, 2008, the District Court issued a preliminary injunction that prevents Massachusetts from enforcing the personnel and manning requirements and the tug escort provisions, pending resolution of the District Court proceedings.  As the injunction relates to tug escort provisions, it enjoins Massachusetts from enforcing the provisions only in Buzzards Bay.  The escort provisions remain in full force and effect in Vineyard Sound and Mount Hope Bay.  Moreover, last November 28, 2007, the United States and the Shipping Industry claimants agreed to dismiss their challenges to the Oil Spill Act's certificate of financial assurance requirements and these requirements therefore remain in full force and effect as well.

Lawsuit update - December 19, 2007

On November 28, 2007, new regulations issued by the United States Coast Guard for Buzzards Bay became effective.   Regulated Navigation Area; Buzzards Bay, MA; Navigable Waterways Within the First Coast Guard District, 72 Fed. Reg. 50,052 (Aug. 30, 2007) (to be codified at 33 C.F.R. s. 165.100).  The new federal regulations require tugboat escorts only for all single hulled tank barges carrying 5,000 or more barrels of oil or other hazardous material through Buzzards Bay.  The new regulations also require a federally licensed pilot, who is not a member of the crew, to direct and control a vessel towing a single hulled tank barge carrying 5,000 or more barrels of oil through Buzzards Bay, and establish a Vessel Movement Reporting System.

Lawsuit update

In January 2005, the United States brought suit in U.S. District Court claiming that the following provisions of the Massachusetts Oil Spill Act are preempted by Federal law: state pilotage requirements, personnel and manning requirements, tank vessel design requirements, drug and alcohol testing provisions, tugboat escort provisions, mandatory vessel routing requirements, and the certificate of financial assurance requirement. In 2006, the District Court held that the challenged provisions of the Oil Spill Act were preempted and unconstitutional under the Supremacy Clause of the U.S. Constitution. The District Court permanently enjoined Massachusetts from enforcing those seven provisions.

Massachusetts appealed the District Court decision. In June 2007, the U.S. Court of Appeals for the First Circuit found that the District Court erred in concluding that Federal law preempted the Oil Spill Act, and erred in entering a permanent injunction.  On August 20, 2007, the First Circuit Court issued a mandate lifting the permanent injunction, pending further District Court proceedings, as the injunction relates to three provisions: personnel and manning requirements; tug escort provisions; and the certificate of financial assurance requirement.

The personnel and manning requirements, tug escort provisions, and certificate of financial assurance requirements are therefore in force as of August 20, 2007.

Statute and Regulations

Chapter 268 of the Acts of 2008

An Act Further Protecting Buzzard's Bay
Mass General Court Web Site

Chapter 251 of the Acts of 2004: An Act Relative to Oil Spill Prevention and Response in Buzzards Bay and Other Harbors and Bays of the Commonwealth

The bill was signed into law by Governor Romney on August 4, 2004 and amended on December 30, 2004. The Act, which establishes a new General Laws Chapter 21M and amends several other existing general laws, went into effect immediately as an emergency law.
Web site
Amendment document:
MS Word 30 KB | PDF 20 KB

Final 2008 Amendments to 314 CMR 19.00: Oil Spill Prevention and Response

April 2009
This regulation finalizes provisions first filed as emergency regulations (effective February 12, 2009) to implement c. 268 of the Acts of 2008, also referred to as the "Oil Spill Act."  It contains provisions for the 24-hour notification by vessels prior to transiting Buzzards Bay, and state pilot services.   This regulation was published in Massachusetts Register No. 1129 on May 1, 2009. Public hearings were held on March 30 and 31, 2009, and public comment closed on April 10, 2009.  A response to public comment is provided. Note:  MassDEP did not finalize provisions contained in the 2008 emergency regulations related to the rescue tug services (see "redlined" document for changes from the emergency to final regulation).  The legislature is considering changes to the Oil Spill Act relative to tug services.

314 CMR 19.00
MS Word 59 KB | PDF 28 KB

Redlined version
MS Word 69 KB | PDF 55 KB

Response to public comment
MS Word 58 KB | PDF 24 KB