Am I EPA, USCG, or PHMSA Regulated? - (OPA90 Jurisdictions) – Revisited
John K. Carroll III
Associate Managing Director at Witt O'Brien's, LLC, Part of the Ambipar Group
(This article was written without AI tools, i.e., ChatGPT.)
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Several years ago, I wrote an article titled, Am I EPA, USCG, or PHMSA Regulated: 2020 (OPA90 Jurisdictional Conversation)? The article includes 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). (The full article, slightly edited, is included below.)
Of late, I have had several conversations with companies working through similar situations, so I thought it was an excellent time to dust the article off and repost it.
To help clarify these complicated conversations, I have provided some real-world scenarios based on work we’ve done with various companies. The first scenario below was once a rare occurrence, and the response by the agencies in the end was entirely new. In all fairness, it was noted at the time that the scenario's outcome was something they had only recently concluded. A good thing for industry, given this situation, has become more prevalent.
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Scenario: A marine terminal connected to a large facility that receives products from and pushes them to vessels and barges. The pipelines leaving this marine transfer area are connected to onsite tanks. Some also connect to a PHMSA pipeline that connects to a second facility approximately two miles away.
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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.
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The company’s concern was that tanks at the second terminal were managed under a separate group within the company, and there are clear delineations where the two internal cost centers take ownership. This division happens where the marine facility’s pipelines connect to an already regulated PHMSA pipeline.
The issue is that under the USCG definition, USCG has jurisdiction up until the first valve in a tank farm’s secondary containment. (There’s 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 also becomes subject to EPA regulation. Remember the old rule of thumb -- if there are more than two modes of transportation as classified under the regulations, a tank becomes subject to PHMSA and EPA. To make the issue even more challenging, the local USCG unit had said they were fine calling the manifold where these two pipelines connected the end of their jurisdiction.
In this scenario, ?the EPA maintained that the USCG could respond as they’d like, but they would 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 types of pipelines. Each agency must agree to any deviation before one can stray from the rule.
With these concerns in hand and the facility facts summarized, a formal inquiry was made with the EPA. After several phone calls and emails, the response from the EPA was,” Yes, the manifold could be the terminus of the USCG.”, making the EPA part of the conversation moot. This response was surprising but understandable. More importantly, it was a decision that was consistent with what the industry is doing now in several areas.
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 critical). As such, the EPA didn’t need to get involved. If the pipeline had gone strictly to tanks across the road, the scenarios noted below would likely be applicable. EPA said their concern was related to whether or not the asset was covered compliantly by another agency. As the USCG terminus was located within a more extensive PHMSA main line supporting numerous Gulf Coast terminals, the EPA didn’t need to carry authority over to one of the other locations. The PHMSA line had 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.
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Original Article (slightly edited)
Am I EPA, USCG, or PHMSA Regulated:2020 (OPA90 Jurisdictional Conversation)?
I have written on today’s topics several times while covering various scenarios to help industry tackle the unfortunately muddy waters of 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 about which agency owns certain parts of their property. The main driver for these conversations has been the fact that PHMSA, EPA, and USCG haven’t been consistent in their answers over the years – even though the rules have not changed. This lack of consistency has given companies the understanding that something they did at another site would be fine at the next spot, even if the rule says otherwise. It goes to the old adage, “Why reinvent the wheel?”
Please note that this week’s article does not cover every scenario and is not meant to be the deciding factor in a final determination. It is intended to highlight some of the confusion and provide tools to help move your conversation forward. Furthermore, this is an intermediate-level conversation, and it is focused on midstream and downstream operations. If you need some actual assistance, do not hesitate to contact me (contact details below).
I have included a handful of hyperlinks referencing content with heavy regulatory citations.
As the oil industry continues to mature and reinvent new ways of doing business, and as land becomes scarcer, determining whether you are under or partially under PHMSA, the EPA, or the USCG jurisdictional authority under OPA90 is getting more and more difficult in some situations.
This is because when these rules were written, much of what we are doing now was never conceived. Put these three (3) agencies’ versions of OPA90 side-by-side, and you have a massive number of regulatory requirements to contend with, and it’s impossible to capture every situation.
Before diving too deep, here’s what the different agencies say regarding what they have jurisdiction over. Keep in mind that a facility’s structure can muddy this very quickly.
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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.
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EPA is based on regulated tanks tied to the Spill Prevention, Control, and Countermeasure (SPCC) rule. If the SPCC rule regulates your facility, then so are applicable tanks found at a facility. EPA’s SPCC applicability is a large discussion that can be found here.
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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 are a lot of variables that can change the conversations below. These are solely presented to represent examples of how complicated these conversations can get.
USCG jurisdiction is a straightforward determination. How and where do you determine jurisdiction based on the above rule? Some companies have their first valve in the actual tank farm containment, so without question, it brings the pipeline from the dock to that point under the USCG. This can get interesting when a facility is physically some distance from its dock. Oftentimes, companies will have manifold structures at their docks that are within a containment structure. Adding confusion, in some cases, USCG field inspectors have said that they are fine considering the dock manifold inside the containment the end of their jurisdiction. On the other hand, EPA and USCG, in their own rules, outside of a formal approved variance, consider the first valve within the tank farm's secondary containment. To ensure there’s no confusion, the EPA considers that their jurisdiction starts at the first actual valve in the tank farm secondary containment. This may result in a 40-yard USCG dock line or, in some cases, a line spanning a very long distance, as noted in this example. (We’ve seen over 11 miles). EPA has repeated that they do not have authority over pipelines from a dock to the first valve in a tank farm containment. Thus, they cannot regulate them.
In general, companies' most significant concern with the scenario above comes from the pipeline testing requirements required under the USCG rule. However, the USCG has published guidance to allow for alternatives to this testing for cases like this. Read this article for more details on this: USCG Alternatives to Pipe Testing and Transfers – OPA90 Discussion
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 one? No. The facility has no truck or rail doing any sort of loading/unloading at their tank farm, so they believe their entire operation after the dock manifold is PHMSA-regulated only. Is it? Again, no, because unless one has an approved variance, the first valve from the dock is still considered the first valve within the tank farm secondary containment. Thus, the two-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 transfers or receives product from any source other than a PHMSA pipeline, it also becomes subject to the EPA (see the 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:
A 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 jurisdiction only. However, add a rack or transfer area - no matter the frequency of their use - and 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.
If you do not have a cut-and-dry facility design, I will leave you with one last thought. If you have a dock that transfers product to tank a farm, check with both EPA and USCG before finalizing jurisdictional activities, and don’t rely solely on one agency's determination. Likewise, if you have PHMSA activities, call them as well. Remember, agencies specialize in their rules and generally can only 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 that one agency can’t speak for another agency, so all possible parties must be engaged if unclear.
Important MOUs and Jurisdictional Tools
Additional reads:
For a complete listing of archived articles and compliance insights, click here. Past articles cover training requirements, clarification of additional unclear elements within the above rules, and more.
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We are here to help solve your compliance questions and challenges. If you need compliance assistance or have questions, please email John K. Carroll III ([email protected]), Associate Managing Director – Compliance Services, or call +1 954-625-9373.
Witt O’Brien’s:
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Personal Note: Struggling with suicidal thoughts or know someone who is displaying worrisome characteristics? If yes, the American Foundation for Suicide Prevention (AFSP) has excellent resources to help: a crisis hotline (simply call/text 988), a counselor directory, resources to navigate, etc. Click here to go to their website.
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