Oil Spill Response Plans

1. Oil Spill Response Plans A History Lesson PHMSA Review and Approval Alan Mayberry July 12, 2012

2. What Law Requires Oil Spill Response Plans? • Plans are required by the Federal Water Pollution Control Act, as amended by the Oil Pollution Act of 1990 - The Clean Water Act (CWA) • PHMSA reviews oil spill response plans for Onshore Oil Pipelines • U.S. Coast Guard reviews oil spill response plans for vessels and onshore marine facilities • U.S. EPA reviews oil spill response plans for non-transportation-related onshore facilities • U.S. DOI / Bureau of Safety and Environmental Enforcement reviews plans for offshore facilities

3. What does the Clean Water Act* Require? • CWA assigned several oil spill related activities to the President • Oversight of oil handlers (Storage, transport, or use) • Regulations that establish Spill Plan Requirements • Spill Plan Review and Approval • Compliance and Enforcement procedures • Conduct Spill Response Drills, including unannounced • Response Equipment Inspections *Federal Water Pollution Control Act of 1972

4. How are these requirements of the CWA carried out? • The CWA is silent about which agency/ies should perform spill prevention and response duties. • Executive Order 12777 of 1991 ordered DOT/ PHMSA to: • Promulgate regulations requiring operators to submit response plans • Review and approve (qualified) spill response plans for onshore oil pipelines

5. How are these requirements of the CWA carried out? EO 12777, as amended by EO 13826, assigns the following duties to the Coast Guard: • conduct oil spill exercises • inspect spill containment booms and removal equipment. • coordinate with other Departments and Agencies to minimize the burden on its regulated industry.

6. PHMSA Spill Response Plan Activity History • In the first years of plan review, two Federal employee managers managed contractors, who performed: • Technical Plan Review- ensuring plans contained all required elements • Spill drill design and evaluation • After 2005, contractors were no longer used • PHMSA FTEs undertook plan review, approval, and record keeping functions • PHMSA decided to discontinue discretionary spill drills

7. What must be in a Spill Response Plan? • The plan must: • Certify consistency with requirements of the National and Area Contingency Plans, • Identify the qualified individual (QI) with full authority to implement remove actions, and require communications between the QI and appropriate Federal official, • Identify and ensure the availability of private personnel and equipment necessary to remove a worst case discharge, and to mitigate a substantial threat of such a discharge,

8. What must be in a Spill Response Plan? • The plan must describe: • training, • equipment testing, • periodic unannounced drills, and • response actions of facility personnel to mitigate or prevent the discharge, or the substantial threat of a discharge. • The plan must: • Be updated periodically, and resubmitted after each significant change.

9. What review does PHMSA perform? • Plans for facilities that could leak oil and cause significant and substantial harm to the environment must be submitted for review • For plans submitted by onshore oil pipeline operators, PHMSA will: • Review these plans promptly, • Require amendments to any plan that does not meet the requirements, • Review each plan when resubmitted for review.

10. The CWA and Part 194 do not provide discretion for plan approval. • The CWA states that the approving official, “shall . . . approve any plan that meets the requirements” of 33 USC 1321. (Requirements identified in slides 7 and 8.) • 49 CFR § 194.119(d) states, “… OPS will approve the response plan if OPS determines that the response plan meets all requirements of this part.” • If required elements are not present, PHMSA cannot approve the plan. 49 CFR § 194.119(b). • Once PHMSA identifies each required element, PHMSA must approve the plan.

11. Facilities must await PHMSA plan approval prior to beginning operations • An oil handling facility that could cause significant and substantial harm to the environment: • May not handle, store, or transport oil unless its plan has been reviewed and approved, • Must operate in compliance with the plan. • An operator may operate a pipeline while awaiting approval of a submitted response plan for up to 2 years IF the operator certifies the availability of private personnel and equipment necessary to respond to a worst case discharge or a substantial threat of such a discharge. 49 CFR §§ 194.7 and 194.119(e).

12. What else does the CWA require to prevent releases of oil into U.S. waters? • Periodic inspection of containment booms, skimmers, and equipment to remove discharges • Periodic drills of removal capability, without prior notice • Executive Orders 12777 and 13826 assigned these duties to the Secretary of DHS (U.S. Coast Guard).

13. PHMSA has cooperated with other 12777 Agencies to reduce burden • These efforts have aligned all of the agency requirements, and minimized the burden for operators under more than one agency’s regulations • Preparedness for Response Exercise Program (PREP) • Common Operator oil spill response exercise requirements • Credit granted across agencies when drills or real spills are managed and properly documented • The “One-Plan” Integrated Plan • Common formatting and content across all agencies

14. Lessons Learned • Marshall, MI Incident demonstrated the need for • Enhanced interagency coordination and communications • Improvement of PHMSA’s plan review process and procedures • Differences among 12777 agencies requirements may have affected some aspects of incident management • Need better means to share plan information with responders during incidents

15. Actions Taken Since Marshall • PHMSA: • More staff now designated for plan-review activities • Initiated An Internal Audit of plan-review activities (requested last year and commenced last month) • Designed and conducted a high-level table top oil spill drill involving the Office of the Secretary • Participating in an interagency revision of the PREP Guidelines

16. Actions Taken Since Marshall • PHMSA: • Developed secure, electronic means to pass Plan Content to FOSC and incident personnel • Met with Senior USCG officials and established an interagency coordination group • Joined a USCG / DOI BOEMRE* workgroup to improve plan content review and utility * Workgroup dealt with interagency plan issues

17. PHMSA is changing its review process • Recognized need for more resources in 2010 • Requested addition eight inspectors (FY12) for oil-spill related duties • Not approved by Congress • PHMSA wishes to integrate spill response plan review with the other inspection activities performed by regions • Reassessed all existing plans

18. PHMSA is changing its review process • PHMSA issued an Advisory Bulletin to operators to ensure response resources during the Deepwater Horizon incident. Many operators responded with revised plans. • PHMSA has revised its plan review criteria and procedures. • PHMSA is integrating operator’s compliance officials into the plan review process in addition to the plan preparer. • PHMSA now considers an operator’s incident and accident history in context with that plan review, • PHMSA is doubling its participation in Operator drills and will incorporate findings into the plan review process.

19. Path Forward • PHMSA will: • Examine NTSB response plan findings and recommendations. • Continue improvement of plan review practices. • Consider if better alignment with EPA and USCG plan standards is needed. • Better integrate oil spill plan responsibilities and Pipeline Safety Inspection Program.