Do I have one or two exercises under PREP if EPA and USCG regulate me? - OPA90
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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Companies face many requirements under the Oil Pollution Act of 1990 (OPA90), along with a good deal of confusion. The latter has kept me busy writing articles to offer guidance since 2016. One item that prompts a lot of questions is the National Preparedness for Response Exercise Program (PREP) requirements under OPA90; in particular regarding PREP requirements when a facility is under the jurisdiction of both the Environmental Protection Agency (EPA) and the United States Coast Guard (USCG).
The requirement to conduct annual Incident Management Team (IMT) Exercises is particularly confounding because both EPA and USCG require them as part of the Triannual Exercise program. Under this program, over the course of three years, plan holders are required to conduct a small (EPA)/average most probable discharge (USCG), medium (EPA)/maximum most probable discharge (USCG), and a worst-case discharge exercises. This means that each year, based on your Facility Response Plan (FRP), you must conduct an exercise from one of the three scenario types, and by year three, all three scenario types have to be exercised.
This gets confusing, as EPA and USCG have different criteria for the exercise scenarios. EPA, for instance, uses the facility’s largest tank (in most cases) for the worst case. In contrast, the USCG uses a formula to determine their worst case based on oil transfers over a dock.
Does this mean plan holders have to do two exercises? The short answer is no.
PREP clarifies this here:
2.3.4 Incident Management Team Exercises
For USCG, EPA, PHMSA, and BSEE-regulated plan holders, the owner or operator identifies an IMT in the response plan. The IMT conducts an annual exercise, in accordance with the PREP Guidelines. The response plan is used in the exercise to ensure that the IMT is familiar with the plan and is able to use it effectively to conduct a response, including all response countermeasures described in the plan. For any chemical or biological countermeasure or insitu burning cited in the response plan, the IMT must demonstrate the ability to prepare and submit a request, usage, and monitoring plan. Each specific countermeasure listed in the plan will be exercised during the triennial cycle. At least one IMT exercise in a triennial cycle must involve a WCD scenario. The exercise design team may use alternative WCD scenarios that are representative of a worst-case scenario (e.g., exercise of a pipeline line segment WCD) for environmental impact purposes. One or more plan holder representatives must participate in each exercise.
2.3.9 Special Considerations
2.3.9.2 Complexes
Complexes are facilities that must meet the requirements of more than one federal agency. For example, a facility that has oil storage tanks, a pipeline, and a waterfront oil transfer dock is considered to be a complex since it must meet the requirements of EPA, PHMSA, and the USCG.
Complexes would only be required to conduct one exercise to meet all agency requirements for that particular type of exercise. For example, if a quarterly notification exercise is required by all three agencies regulating the complex, one notification exercise per quarter would satisfy the requirements for all three regulatory agencies.
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As you can see, under PREP, plan holders that fall under the jurisdiction of multiple regulating agencies can conduct a single activity if the requirements are the same for both agencies. Since both the EPA and USCG require Annual IMT Exercises for one of three plan holder release scenarios, plan holders can pick one and get credit for both agency requirements. (Refer to the PREP document linked above for specific PREP requirements for IMT exercises.)
I typically advise clients to look at this as a six-year program, and cycle through one of each of the agency’s release scenarios throughout the six year period. This is particularly important for the worst-case discharge scenarios, as the mechanics for response and overall type of incident will be drastically different: i.e., tank release and containment failure versus significant catastrophe at a dock.
Two important notes: the EPA requires records for five years, while USCG only requires records for three years; and this exercise can be satisfied if an actual incident has occurred, and if it is appropriately documented.
Plan holders must ensure their FRPs clearly define this instance, maintain required documentation, and ensure all PREP requirements are sufficiently met to avoid compliance issues. Only focusing on one agency’s particular spill scenario requirements will limit training and response practice for all relevant scenarios you will possibly face.
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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.
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.
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