Nassau County, NY, which borders both the Long Island Sound and the Atlantic Ocean, has long had a “Fire Prevention Ordinance” (No. 56-1962). Among other things, the Ordinance requires that floating containment booms be placed around barges or other vessels prior to commencing the discharge of any “flammable or combustible liquid.” During a chance conversation in the summer of 2001 with Hank Meyerhoefer, a local terminal superintendent, I learned (somewhat to my surprise) that the Ordinance makes NO EXCEPTION for gasoline transfers! This is at odds with conventional wisdom, which holds that spilled gasoline will be far less hazardous if it is allowed to disperse over a wider area and evaporate quickly rather than remain concentrated in the immediate vicinity of the vessel and terminal. Although booming during transfer of non-volatile products like kerosene and diesel fuel makes sense, in the case of volatile products such as gasoline it is risky. As Walter Nadolny, a former tanker chief mate and marine safety expert, wrote in response to a query I posted on a maritime chat network in October 2002: “Booming a gasoline transfer is akin to making a bomb.” The five or six others who responded to my informal poll, all of whom had extensive tanker-mate experience, were in general agreement (although none used quite so colorful a metaphor as Mr. Nadolny’s).

On August 7, 2001, shortly after my conversation with Mr. Meyerhoefer, I wrote to Craig Johnson, the county legislator for my district (click here for a copy of my letter, with attached excerpts from the Ordinance). Mr. Johnson eventually wrote back to me (click here for that letter) informing me that he had referred the matter to Tom Suozzi, the County Executive, for his input. Mr. Suozzi in turn wrote to me (click here for letter) informing me that he had referred the matter to Thomas Tilley, the County Fire Marshal, who took the position that booming gasoline barges was justifiable in County waters because of the proximity of terminals to other facilities, including homes. Mr. Tilley certainly raised some valid counterarguments, but he appears to have been under the impression that the courts fully approved of the Ordinance in a 1975 case. Click here for a copy of Mr. Tilley’s letter to me. (His mention of the case is on the second page.)

However, I did some legal research, and found the 1975 case, People v. Texaco, Inc., to which Mr. Tilley had referred. The case was a criminal proceeding in the Nassau County District Court. Texaco had been cited for violating the Ordinance, and faced a fine for having transferred gasoline without having the required containment boom in place. The company, apparently more concerned about personnel safety than the fine (which must have been far less than the legal fees they paid to “fight the ticket”) argued that the booming requirement was actually harmful and dangerous in the case of gasoline and was therefore an “unconstitutional exercise of the police power in that it does not further the interest of the public welfare.” After a full trial and consideration of all the arguments by both sides, Judge Henry J. Kalinowski decided that it was not his province to rewrite the Ordinance to create an exception for gasoline transfers, but he did write in his opinion: “Without question the confinement of gasoline places the barge and the dock area in greater peril.” Click here for an excerpt from the case, including the portions quoted above and below.

The Judge also quoted from a 1974 letter from the Nassau County Fire Marshal to a Coast Guard Port Captain, in which the Fire Marshal had written: “I was in agreement with Commander Kneip [of the Coast Guard] that in open water a dispersement of the gasoline would result in rapid evaporation and would lessen the hazard, but I must explain that until such time that I receive a written directive [from the County] in support of this position, I have no alternative but to require compliance with the Ordinance.” At the end of his opinion, Judge Kalinowski wrote: “The Court believes that the Ordinance needs review and revision, and on this record the need to boom gasoline barges is debatable.” But because the Judge felt it was not his place to rewrite the Ordinance, he found Texaco guilty of violating it, and ordered the imposition of a fine.

It appears that, in the nearly thirty-five years since Nassau County District Court Judge Kalinowski strongly suggested “review and revision” of the Ordinance, an amendment that would create an exception to the booming requirement for gasoline has yet to be introduced before the Nassau County Legislature. The Legislature ought at least get around to considering the potential harm to barge and terminal personnel of requiring booming of gasoline transfers, given that confining a spill close to the vessel may cause catastrophic loss of life and property in the event of accidental ignition. While it may be true that allowing the gasoline to disperse may also create a risk some distance away, the thinning of the surface layer and the rapid evaporation of gasoline would probably make the risk and gravity of harm in that situation far less overall than would be the case if the gasoline were contained by a boom, as is still required by Nassau County. Weighing these competing concerns, obtaining information and guidance from experts, and making an informed decision, is the Legislature’s duty. Even if a considered decision is made to keep the Ordinance as it is after weighing all the risks, that is better than no consideration at all. After all, lives are at stake.