Chapter 251, Acts of 2004, "An Act Relative to Oil Spill Prevention and Response in Buzzards Bay and Other Harbors and Bays of the Commonwealth" (the "Oil Spill Act" or "Act"), was signed into law by Governor Romney on August 4, 2004. The Act went into effect immediately as an emergency law. An electronic version of the Act is found at http://mass.gov/legis/laws/seslaw04/sl040251.htm. The Act was amended by Chapter 268 of the Acts of 2008 and Chapter 101 of the Acts of 2009.
The Fact Sheet includes relevant contact information and related resources. No one should rely on this Fact Sheet as legal advice. Please review the Act and seek professional advice, as needed, to ensure that you have the information and advice necessary to fully understand and comply with this new law.
In order to comply with the Act today, you need to take the following actions:
1. Financial Assurance. For vessels in or entering MA waters for the purpose of transporting, discharging or receiving a cargo of oil, hazardous material, or hazardous waste, you need to:
- Provide a certificate of financial assurance to DEP in the amount of at least 1 billion dollars. Vessels with a capacity of less than 6,000 barrels are required to provide a certificate in the amount of 5 million dollars. A certificate of financial assurance must be demonstrated by evidence of insurance, surety bond, letter of credit, qualifications as a self-insurer or any combination thereof, or by other evidence of financial assurance approved by DEP. The Act also creates an incentive to use double hull vessels and/or maintain a good safety record and safety equipment by authorizing DEP to allow financial assurance in a lower amount based on these types of criteria.
- The required certificate must be sent to DEP at the following address:
Department of Environmental Protection
One Winter Street, 3rd Floor
Boston, MA 02108
- Post a copy of the financial assurance certificate on the vessel.
2. Compliance with Federal Double Hull Requirements. Please be aware that any vessel that is not in compliance with the time schedules and requirements relating to double hulls set forth in the federal Oil Pollution Prevention, Response, Liability and Compensation Act of 1990 is now prohibited from docking, loading or unloading at any marine terminal in MA.
3. Penalties. The Act increases the civil penalties for violations of Chapter 21, including for discharges of pollutants such as oil, from $25,000 to $50,000 per day, and provides that any persons who violate the new alcohol/drug testing requirements or the recommended travel route requirements in Chapter 21M are subject to civil penalties of $10,000 and $25,000 per day respectively. In addition, the Act increases the civil and criminal penalties in the new sections of Chapter 21L, establishing graduated civil and criminal penalties for negligent and knowing or reckless environmental violations that cause serious bodily injury or cause substantial risk of damage to natural resources or property.
The following provisions of the Act are not immediately applicable, either by operation of the law itself or because the necessary regulatory or administrative actions have not yet been taken:
1. Oil Spill Response and Prevention Fee. The Commissioner of DEP is required to set a "uniform oil spill response and prevention fee" of not less than 2 cents for each barrel of petroleum product or crude oil, unless the Commissioner finds that a lesser fee will cause the fund to reach 10 million dollars within 6 months. The Commissioner has determined that a lesser fee will not cause the above limit to be reached within 6 months and, consequently, he will formally set the fee at 2 cents per barrel in the near future. The fee applies to the person owning the petroleum products at the time such products are received at a marine terminal in MA by means of a vessel from a point of origin outside of MA.
2. Establishment of a Vessel Traffic Service ("VTS") System. Section 2 of Chapter 21M provides that by January 1, 2006, the Commissioner of DEP shall negotiate an agreement with the Coast Guard, the Army Corp of Engineers and the MA Pilot Commissioner and other appropriate port agencies or other appropriate organizations for a "vessel traffic service system" ("VTS") to protect Buzzards Bay (and other MA bays and harbors when recommended by the Coast Guard or recommended by the Commissioner of DEP and approved by the Coast Guard). If the Commissioner is unable to reach agreement by the above date, DEP is directed to develop a VTS plan in consultation with the above parties. DEP's implementation of the VTS system is subject to available funding and the enactment of a related fee system.
- The purpose of the VTS is to aid navigation by providing satellite tracking, radar, or other information regarding ship locations and traffic to prevent collisions and groundings.
- Once implemented, covered vessels will need to report relevant information to the VTS monitor, including information such as the vessel's name, call sign, location, course, speed, destination, estimated time of arrival and any impairments to operation or navigation of the vessel. While in a VTS area covered vessels will need to maintain continuous radio contact with the VTS monitor, respond promptly when hailed by the VTS monitor and comply with all VTS measures established by the commissioner.