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2 2005 INTERNATIONAL OIL SPILL CONFERENCE ment, restoration and emergency restoration of natural resources injured by oil spills. Specific guidance for developing such NRD claims can be found on the NPFC NRD Claims Division website at: www.uscg.mil/hq/npfc/nrd.htm . Often these NRD claims involve mystery spills (i.e., spills in which no responsible party has been identified), adding complexity to both claim development and adjudication since spilled source oil characterization, source verification and cost recovery directly from the responsible party are often not feasible. These mystery spills should not be ignored, since it is the intent of the Oil Pollution Act 1990 to allow claims to be adjudicated against the OSLTF even if no responsible party can be identified. This paper describes technical challenges presented to trustees and NPFC by mystery spill claim development and adjudication, respectively, using the Fort Lauderdale Mystery Spill (FLMS) as a case study, and also describes the larger implications to other trustees contemplating the submission of NRD claims based on mystery spills. MYSTERY SPILLS AND NATURAL RESOURCE DAMAGE CLAIMS Mystery spills in the United States comprise a significant fraction of OPA spill incidents. Based on petroleum spills reported to the United States Coast Guard for the years 1991-2001 (using U.S. Coast Guard’s Marine Safety Information System and Marine Investigations Module reporting systems), approximately 1 in every 5 spills was from an unknown (mystery) source (USCG, 2004). Many of these mystery spills are of small size (i.e., less than 100 gallons). However, some of these spills, such as the Fort Lauderdale Mystery Spill described below can be of a spill volume that can cause significant environmental impacts. Moreover, since these spill are OPA incidents, it is incumbent upon federal, state and tribal trustees to assess and restore injuries to natural resources resulting from these incidents. Mystery oil spills present numerous challenges with respect to developing and adjudicating natural resource damage claims. For example, since the responsible party is unknown, there is often little known regarding the details surrounding the actual spill of oil since these incidents often go unobserved, and are only responded to once they are reported by a third party. Thus, important information about the spill is unknown—e.g., was it a prolonged or instantaneous spill incident? Where did the spill occur? What was the volume of the spill? What petroleum products actually spilled and what was the chemical composition of the spilled material(s)? What were the meteorological conditions at the time of the unknown spill? Such unknown information can have a material impact on determining and quantifying the nature, degree and extent of injuries to natural resources; which, in turn, can impact the magnitude (and costs) of restoration projects proposed to address these injuries in NRD claims. These factors present challenges to trustee claimants developing NRD claims based on mystery spills. Because parties responsible for mystery spill incidents are unknown, these claims go to NPFC NRD Claims Division for adjudication and funding. Factors making a mystery spill NRD claim challenging for a claimant to develop are often the same ones that make adjudication actions difficult for NPFC. Accordingly, NPFC works with claimants to understand and clarify challenging mystery spill claim issues and to understand the rationale behind assumptions and assertions made in the claim. NPFC’s consistent, thorough and coordinated claim adjudication process effectively serves the needs of claimants, OSLTF fiduciary requirements of NPFC, and the trust resources to be assessed and restored. An example of such a mystery spill claim and corresponding NPFC adjudication action is provided below. FORT LAUDERDALE MYSTERY SPILL: A NRD CLAIM CASE STUDY Incident: On Tuesday morning, August 8, 2000, oil tar balls and oil mats were observed on beaches in the area of Fort Lauderdale, Florida. Within the next few days, approximately 32 Km (20 miles) of high-use recreational beaches and nearshore areas, from North Miami Beach northward to near Pompano Beach (primarily Broward County beaches), were oiled and required shoreline treatment. Despite a concerted effort to identify the source and responsible party for the incident, the origin of the oil remains unknown (NOAA and FDEP, 2002). Hence, the U.S. Coast Guard classified this spill as a mystery spill. Natural resource trustees for this incident, the National Oceanic and Atmospheric Administration (NOAA) and the Florida Department of Environmental Protection (FDEP), estimated the amount of oil stranded on the shoreline to be approximately 15,000 gallons (Zengel, 2000; NOAA and FDEP, 2002). NOAA and FDEP were parties to the natural resource damage claim (i.e., the “claimants”). This claim was submitted to the NPFC since no responsible party was identified. Observed Impacts: Within a few days of the August 8, 2000 spill, oil tar balls and oil mats contamination of high beach value shoreline resulted in lower beach attendance at a number of beaches. The greatest recreational impacts occurred at Fort Lauderdale Beach, John U. Lloyd Beach State Park, Dania Beach and Hollywood Beach. Each of these beaches was closed to swimming on August 8 and 9, 2000 (NOAA and FDEP, 2002). No fish or invertebrate kills were observed throughout the area following the incident. Though sea turtles were hatching on area beaches at the time of the incident, only one dead oiled hatchling turtle was observed washed up on a beach (South Florida Sun-Sentinel, August 11, 2000a). Several pelicans were observed oiled at Dania Beach (South Florida Sun Sentinel, August 10, 2000) but were not recovered due to their continued flight capability. However, four oilcontaminated birds (two pelicans, one mockingbird and a pigeon) were retrieved and sent to the Wildlife Care Center for rehabilitation (South Florida Sun Sentinel, August 11, 2000b). Mystery Spill NRD Claim Development Issues to Address: In order to develop the FLMS NRD claim for submission to NPFC for payment, the NRD claimants (NOAA and FDEP) were required to not only conduct normal NRDA activities (i.e., injury assessment and restoration plan development) but also address the suite of unknowns surrounding this mystery spill, which are central to the conduct of a defensible injury assessment (e.g., defining spill scenario, source oil composition and toxicity, etc.). Though there were a plethora of issues that required addressing in FLMS, we present a few here for illustrative purposes. Spill Scenario Development: Using oil spill (SIMAP) modeling and local shipping traffic practices as forensic tools to help address these issues, the trustees concluded that the oil was likely discharged from an area near the western edge of the Gulf Stream sometime during darkness the evening or morning prior to it being reported on the beach on Aug. 8, 2000. This is based on: the backtracking of the oil from the oiled beaches using SIMAP modeled spill hindcasting techniques; the likelihood that the spiller would have released the oil after dark on 7 August (since it was not reported as seen until morning on 8 August); and the practice of northbound ship traffic traveling in the Gulf Stream (French McCay et al., 2001). Source Oil Composition: Source oil classification was based on the collection and analysis of a tarballs that washed ashore. Tar balls collected from the beach contained a total polyaromatic hydrocarbon (PAH) content of 200 ppb of total PAH (= 0.00002%), based on tarball sample 2N0222-01 (LSU, 10 August 2000 memo). Thus, the oil was highly weathered when it came ashore. In addition to tarballs washed ashore, black oil was observed floating on the water. The spill occurred at 29°C. At this
warm temperature, most evaporation of volatile and certain semivolatile constituents—such as monoaromatic hydrocarbons (MAH) and certain lower molecular weight PAH—occurred within the first 16 hours of the spill incident. Due to warm ambient air and water temperatures, it is likely that oil weathering proceeded rapidly and that the oil contained significant PAH concentrations at the time of the spill (French McCay et al., 2001). Trustees characterized the spilled oil as an Intermediate Fuel Oil (IFO), sometimes referred as a Number 5 Fuel Oil. Since the percentage of semivolatile and volatile polyaromatic hydrocarbons (PAH) and monoaromatic hydrocarbons (MAH) have a material effect on toxicity in the SIMAP model used to determine impacts to biota in the FLMS claim, claimants needed to determine more specifically the concentrations of these constituents, especially the PAHs. Because a source oil sample was not available to provide a more quantitative PAH analysis for a No. 5 (intermediate) fuel oil, claimants used a surrogate PAH fraction as determined from a recent spill of a mix of No. 6 and No. 2 fuel from the PEPCO pipeline in Maryland (into the Patuxent River, April 2000). That source oil contained 3.3% PAH with log(Kow)≤5.6, which are the acutely toxic components (French McCay et al., 2001). Thus, a PAH content of 3.3% was used in the FLMS model runs. Spill Volume: The monoaromatic oil components (benzenes, xylenes and toluenes also known as BTEX) were not measured in the source oil for either FLMS or the PEPCO spill, but are assumed to have negligible impact on water column organisms because of its high volatility (French McCay et al., 2001). The oil volume that came ashorewas estimated by Zengel (2000) to be approximately 15,000 gallons based on observations of amount of oil on each beach segment. Zengel’s estimates were corrected for the volatile and semi-volatile content (3.3% PAH + 23.4% other volatile hydrocarbons), resulting in a volume estimate of 20,456 gallons. Assuming the Gulf Stream velocity estimated by NOAA NRDA personnel on scene during the clean-up and using wind data for the days preceding the oil stranding, the discharge location was likely southeast of the most heavily oiled beaches. The oil would have crossed the west edge of the Gulf Stream at midnight, and then come ashore between 0800 and noon on 8 August. Thus, the likely spill occurred between 1900 and 2300 on 7 August. This range of spill times was run with the model to determine the sensitivity of the injury results to the assumed spill time. The spill was assumed to occur continuously over 1 hour along a straight track line (French McCay et al., 2001). To determine impacts to biological assemblages present within the area of modeled impact, the SIMAP model was run using the biological assemblage database from the Natural Resource Damage Assessment Model for Coastal and Marine Environments, NRDAM/CME for this portion of coastal Florida (ASA, 1996). Fort Lauderdale Mystery Spill NRD Claim: The trustees determined and quantified injuries in four main categories: 1) recreational beaches, 2) sea turtles, 3) water column injuries to fish and invertebrates, and 4) seabirds. Based on this work, the trustees claimed that the mystery spill incident caused the loss of public beach use and significantly injured sea turtles, fish and invertebrates, and seabirds. The trustees used restoration costs as the measure of damages for injuries to the ecological resources (i.e., “service-to-service” scaling approach). These costs include the costs to design, permit, construct, and monitor the restoration projects. Injuries and losses to the use of public beaches were more cost-effectively quantified in terms of lost value to resource users. For this category of injury, the trustees proposed to conduct restoration actions by using recovered funds to provide replacement services to resource users—i.e., “value-to-cost” scaling approach (Conner and Wieczynski, 2003). A listing of determined injuries and proposed restoration projects, including respective costs, to compensate for these injuries is provided in Table 1. NATURAL RESOURCE DAMAGE ASSESSMENT 3 Challenges in Adjudicating a Mystery Spill Claim: The NPFC NRD Claims Division is tasked with two major functions: 1) paying claims for natural resource damages that comply with Oil Pollution Act of 1990 (et seq.), and applicable state and federal laws such as NEPA, the damage assessment regulations at 15 CFR 990 and the Coast Guard’s claim regulations at 33 CFR 136; and 2) exercising a fiduciary responsibility to the source of claim funding, the OSLTF. Accordingly, the NPFC pays for, inter alia, reasonable assessment costs and the costs required to implement a restoration plan that restores, rehabilitates, replaces, or acquires the equivalent natural resources injured by an oil spill. Functionally, it is the job of the NRD Claims Division to evaluate submitted natural resource damage claims to verify that claimed assessment costs are reasonable and a submitted restoration plan complies with these state and federal requirements. Because claims must comply with OPA -and other- regulatory and statutory requirements, claim adjudicatory actions by NPFC must be consistently applied to all NRD claims. Such consistent evaluation/verification efforts are uniquely challenging when adjudicating mystery spill natural resource damage claims where much of the basic spill information (e.g., responsible party identification, spill scenario and oil composition), having a material affect on spill impacts and claimed costs, is not known. However, federal, state and tribal trustees of natural resources, as well as the NPFC (having NRD claim adjudication authority) are mandated under OPA to address natural resource damages resulting from oil spills, including mystery oil spills, despite this lack of critical information. To comply with this mandate, trustees are forced to construct “best guess” estimates regarding spill scenario, fate and effect details when developing mystery spill NRD claims. Correspondingly, NPFC must evaluate the reasonableness of these derived spill fate and effects approximations, as well as corresponding restoration plans to compensate for these injuries, to determine whether such NRD claims should be paid or not. What does NPFC require in mystery spill NRD claims to effect claim verification when field-derived data supporting the claim are lacking? The answer lies in the provision of technically defensible rationales that support trustees’ claim. The more supporting rationale (grounded in science, economics and engineering) and reasonable explanation supplied by a NRD claimant to NPFC, the more straightforward—and successful—the claim adjudication process is likely to be. For example, in the FLMS NRD claim, NPFC found the underlying basis (rationale) for the spill scenario to be reasonable; i.e., based on a reasonably implemented application of SIMAP, a peer reviewed and commonly used spill fate and effects model. Conversely, NPFC found that the use of PEPCO IFO as a surrogate for PAH composition, a major driver in modeled oil toxicity in the SIMAP model and, thus, a critical modeling datum input, was not well supported in the claim or in the modeling report found in the Administrative Record. Hence, NPFC researched the relative PAH characteristics of 25 comparable intermediate fuel oils and found that the use of the PEPCO/No. 5 fuel oil, with a 3.3% PAH fraction was reasonable, and fell well within the range of these highly variable types of fuel oils, as did the 23.4% volatile aromatic (BTEX) fraction. Further, NPFC found that the trustees reasonably scaled restoration projects and that the capability of most of the projects to restore injured resources was well supported in the claim with a clear rationale for most of these projects provided. However, for bird restoration, NPFC questioned whether concomitant benefits existed for the mangrove restoration project to restore lost bird resources as well as lost water column resources. The major seabird species predicted by modeling as impacted by this incident included double-crested cormorants and, to a lesser extent, pelicans. Specifically, mangrove habitat provides nesting habitat for these, and other, seabird species. NPFC considered if mangrove habitat creation proposed for restoration of water
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