Am I EPA, USCG, or PHMSA Regulated: An Interesting New Scenario (OPA90 Jurisdictional)? – Update Article

Not too long ago I wrote an article titled, Am I EPA, USCG, or PHMSA Regulated:2020 (OPA90 Jurisdictional Conversation)?, which I have included in its entirety below. In it I provided several examples to help clarify the complex Oil Pollution Act of 1990 (OPA90) jurisdictional conversations between the Pipeline and Hazardous Materials Safety Administration (PHMSA), the Environmental Protection Agency (EPA) and the United States Coast Guard (USCG). Today’s scenario is not one I’ve seen regularly, moreover, the response by the agencies in the end was entirely new. In all fairness, it was noted the outcome was something they had only recently come to a conclusion on. A good thing for industry as a whole given this type of situation has become more prevalent.

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The Scenario: Marine terminal connected to a large facility that receives and pushes products to and from vessel and barges. The pipelines leaving this marine transfer area are connected to tanks onsite as well as some connecting to an PHMSA pipeline that connects to a second facility approximately two miles away.

Important Definition: USCG - Marine transportation-related facility (MTR facility) means any onshore facility or segment of a complex regulated under section 311(j) of the Federal Water Pollution Control Act (FWPCA) by two or more Federal agencies, including piping and any structure used or intended to be used to transfer oil to or from a vessel, subject to regulation under this part and any deepwater port subject to regulation under part 150 of this chapter. For a facility or segment of a complex regulated by two or more Federal agencies under section 311(j) of the FWPCA, the MTR portion of the complex extends from the facility oil transfer system's connection with the vessel to the first valve inside the secondary containment surrounding tanks in the non-transportation-related portion of the facility or, in the absence of secondary containment, to the valve or manifold adjacent to the tanks comprising the non-transportation-related portion of the facility, unless another location has otherwise been agreed to by the COTP and the appropriate Federal official.

The company’s concern: tanks at the second terminal are managed under a separate group within their company and they have clear divides where the two internal cost centers take ownership. This divide happens where the marine facility’s pipelines connect to an already regulated PHMSA pipeline.

The issue, under the USCG definition: the USCG has jurisdiction up until the first valve in a tank farm’s secondary containment (no mention of a PHMSA pipeline). Thus, as USCG can’t regulate tanks, and the receiving tank is also a breakout tank, the tank across the street then becomes subject to EPA too. Remember the old rule of thumb -- if there’s more than two modes of transportation as classified under the regulations a tank becomes subject to PHMSA and EPA. Making the issue even more challenging, the local USCG unit had said they were fine calling the manifold where these two pipelines connected be the end of their jurisdiction, USCG.

However, to date, the EPA maintains that the USCG may respond as they’d like; however, the agency will go by the rule. Due to their jurisdictional limitations, the first valve in the tank farm containment must be upheld as they can’t regulate these type of pipelines. Each agency must agree to any deviation before one can stray from the rule.

With the concerns in hand, along with the facts of the facility summarized, a formal inquiry was made with the EPA. After several phone calls and emails, the response back from the EPA was surprising, but understandable. More importantly, a decision that was consistent with what industry is doing now in several areas. The answer: yes, the manifold could be the terminus of the USCG, thus making the EPA part of the conversation moot.

Important Facts: There are several details about the property I intentionally left off to help carry the conversation forward and, also, they came out toward the end of the overall conversation. The key driver for the EPA’s conclusion was that the PHMSA line connected to numerous other facilities and was already regulated by PHMSA (multiple locations being very important).

As such, EPA didn’t need to get involved. If the pipeline had simply gone strictly to tanks across the road the scenarios noted below would likely be applicable. EPA noted their concern was related to whether or not the asset was covered compliantly by another agency. As the USCG terminus was located within a larger PHMSA main line supporting numerous gulf coast terminals EPA didn’t need to carry authority over to one of the other locations: PHMSA’s line has an approved PHMSA oil spill response plan (OSRP).

As I always remind my clients and peers, one answer never fits all and regulations don’t always capture one hundred percent of every scenario. Therefore, keep asking the right questions and don’t make blanket statements or conclusions.

Original Article: Am I EPA, USCG, or PHMSA Regulated:2020 (OPA90 Jurisdictional Conversation)?

I have written on today’s topics several times over the years while covering various scenarios to help industry tackle these unfortunately muddy waters, Oil Pollution Act of 1990 (OPA90) jurisdictional divides. This week’s article was inspired by two clients we have been assisting with response plan updates over the past couple of months. With both, there have been some very long detailed conversations on which agency owns certain parts of their properties. The main driver for these conversations has been – though the rules haven’t changed – the Pipeline and Hazardous Materials Safety Administration (PHMSA), the Environmental Protection Agency (EPA) and the United States Coast Guard (USCG), haven’t been consistent on their answers over the years. Whereby, giving companies the understanding what they did somewhere else would be fine in the next spot, even if the rule says otherwise. Goes to the old adage, “Why reinvent the wheel?”.

Please note, this week’s article does not cover every scenario, and is not meant to be the deciding factor to a final determination. It is intended to highlight some of the confusion and provide tools to help move your conversation forward. Furthermore, this an intermediate level conversation and it is focused on midstream and downstream operations. If you’re needing some actual assistance, do not hesitate to contact me (contact details below).

I have included a handful of hyperlinks as a reference to content with heavy regulatory citations.

As the oil industry continues to mature, reinvent new ways of doing business, and land becoming scarcer, determining whether one is under or partially under PHMSA the EPA or the USCG jurisdictional authority under OPA90 is getting more and more difficult in some situations. Why is that? When these rules were written, a lot of what we are doing now was never conceived. Put these three (3) agencies’ versions of OPA90 side-by-side and one has a massive number of regulatory requirements to contend with, though it’s impossible to capture every situation.

Before diving too deep, here’s what the different agencies say regarding what they have jurisdiction over; however, as many know, facilities’ structure can muddy this very quickly.

USCG - Marine transportation-related facility (MTR facility) means any onshore facility or segment of a complex regulated under section 311(j) of the Federal Water Pollution Control Act (FWPCA) by two or more Federal agencies, including piping and any structure used or intended to be used to transfer oil to or from a vessel, subject to regulation under this part and any deepwater port subject to regulation under part 150 of this chapter. For a facility or segment of a complex regulated by two or more Federal agencies under section 311(j) of the FWPCA, the MTR portion of the complex extends from the facility oil transfer system's connection with the vessel to the first valve inside the secondary containment surrounding tanks in the non-transportation-related portion of the facility or, in the absence of secondary containment, to the valve or manifold adjacent to the tanks comprising the non-transportation-related portion of the facility, unless another location has otherwise been agreed to by the COTP and the appropriate Federal official.

EPA is based on regulated tanks that are tied to the Spill Prevention, Control, and Countermeasure (SPCC) rule. If one is regulated by the SPCC rule, then so are applicable tanks. EPA’s SPCC applicability is a large discussion that can be found here.

For details on the EPA’s OPA90 applicability, read here.

PHMSA’s OPA90 rule, as with the EPA’s, has multiple determining factors before a pipeline or breakout tank is regulated. For details on what these are, read here.

Scenarios Based on Actual Examples To-Date:

Disclaimer, there’s a lot of variables that can change the below conversations. These are solely presented to represent examples of how complicated these conversations can get.

USCG jurisdiction is an easy determination – how and where do you determine this based on the above? Some companies have their first valve in the actual tank farm containment, so without question, that brings the pipeline from the dock to that point under the USCG. This can get interesting when a facility is physically some distance from their dock. Often times, companies will have manifold structures at their docks that are within a containment structure. Adding confusion, in some cases, the USCG (field inspectors) has said that they are fine considering the dock manifold inside containment the first valve; thus, the end of their jurisdiction. However, EPA and USCG in their own rules, outside of a formal approved variance, consider the first valve within the tank farm secondary containment. In order to ensure there’s no confusion here, EPA considers their jurisdiction at the first true valve in the tank farm secondary containment, so that may result in a 40-yard USCG dock line, or in some cases over a very long distance as noted in this example (we’ve seen over 11 miles). EPA has repeated frequently they do not have authority over pipelines from a dock to the first valve in a tank farm containment, thus, they cannot regulate them.

Here is another in-depth article on USCG and EPA jurisdictions: Where does USCG lose jurisdiction at a “Complex Facility” with EPA?

An interesting but similar scenario:

A facility is located 2 miles from a dock they own, and company A considers the pipeline leaving the dock manifold structure at the dock a PHMSA pipeline. Is it? No. Why, you ask? One more twist here first, facility has no truck or rail loading/unloading of any sort at their tank farm, so they believe their entire operation after the dock manifold is PHMSA regulated only. Is it? Again, no. Here’s why these can get very interesting. The first valve from the dock is still considered as the first valve within the tank farm secondary containment as noted above, unless one has an approved variance. Thus, the two (2)-mile pipeline is regulated by the USCG not PHMSA. Though the tank farm has no rail or truck transfers, the tanks receiving product from the dock, which in this case are also connected to the facility’s trunk line (under PHMSA), now have what is referred to as “two modes of transportation.” As such, these particular tanks are both EPA and PHMSA. Once a breakout tank is used to transfer or receive product from any source other than from a PHMSA pipeline it becomes subject to EPA too (see last example from the EPA’s jurisdiction presentation below). So, under this scenario, the facility falls under PHMSA, USCG, and EPA. Not all tanks will be considered EPA if they don’t all connect to the dock, just the ones that are. As we say, yippee!

Here’s one final scenario to show today’s conversation complexity:

PHMSA pipeline comes into a tank farm, and the tank the product that enters is pushed back out to another PHMSA pipeline. This is PHMSA only. However, add a rack or transfer area - no matter the frequency of their use - it’s now an EPA and PHSMA tank, excluding maintenance and other similar activities.

Here is another more detailed article on PHMSA and EPA jurisdictions: EPA or PHMSA: Who gains jurisdiction when a Complex Facility falls under both?

There you have it! There are a lot of variations to these and more I have not addressed. If you read the EPA’s 2013 document below, you’ll find even more examples depicted with diagrams. As I previously noted, this article is more to help shed some light on the overall topic, as it’s not black and white, and will hopefully help you with your determinations or possibly shed some light on areas you may have identified incorrectly.

I leave you with one last note if you do not have a cut and dry facility design. If you have a dock that transfers product to tank a farm, check with both EPA and USCG prior to finalizing jurisdictional activities and don’t rely solely on one agencies determination. Same if you have PHMSA activities, call them as well. Remember, agencies specialize in their rules, and generally only can speak to surface level issues on other agencies rules. If you don’t want to ask them directly, utilize your consultants, as generally we all have very good agency connections. Lastly, remember, one agency can’t speak for another agency, so all possible parties must be engaged with if unclear.

Important MOUs and Jurisdictional Tools

1994 Memorandum of Understanding Among the Secretary of DOT, DOI, and EPA

2000 Agreement Between DOT and EPA to Clarify Jurisdictional Issues

EPA Jurisdiction at Complexes, August 2013

PHMSA Interstate vs. Intrastate Letter:

For a complete listing of archived blogs and compliance insights, click here. Past blogs cover training requirements, clarification on additional confusing elements within the above rules, and much more.

We are here to help solve your compliance questions and challenges. Need some compliance assistance, or just have a question? Please email John K. Carroll III ([email protected]) Associate Managing Director – Compliance Services or call at +1 281-320-9796.

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