Should I separate my USCG and EPA FRPs? – OPA90 Discussion

Today’s article will be short; however, interestingly enough, a topic I’ve encountered several times since December – as well as something I’ve seen from time to time over the years. Today’s question revolves around the development of Facility Response Plans (FRP) as required under the Oil Pollution Act of 1990 (OPA90) for the United States Coast Guard (USCG) and Environmental Protection Agency (EPA). To answer our headline question, personally, after 22 years of experience say, “no, they should be kept in one plan.” However, this is my opinion, as there is no rule that requires this. That said, let me explain my reasoning and give a little background to this topic.

Why do companies keep these two requirements separate?

There are several reasons for this:

• Some have the mindset of keeping all regulatory plans separate, especially in the cases with documents like these where they are submitted to the agencies, to ensure each agency only has to review (access) their regulatory requirements.
• In some cases, the local USCG Facilities group has requested these be kept separate (though nothing in the rule states one must do that).
• Marine operations are a new operation for a facility, so the company feels since they already have an approved EPA FRP, they should develop a new plan for the USCG (mainly done to “not rock the boat” on an already approved plan).
• Companies use different consultants for each program, and each consultant subsequently focuses only on their contracted scope.

Why do I disagree with separating these two regulations?

First, let’s address the bullets in order of above:

• Most agencies don’t care what you have in your plan if it meets their requirements – and they don’t have authority to comment/review requirements pertaining to another agency. So, suppose you have an excellent cross-reference (Regulatory crosswalk to where each part of the regulation is found in your plan.). In this case, agency reviewers will easily audit your plan against their set of requirements; thus, what’s there beyond their scope is mute.
• This one is tricky, as no one wants to get on the bad side of an agency, especially one like the USCG, which comes out to facilities often. Generally, though, we only see this request when a plan is done poorly. In these cases, the USCG wants to keep it simple and mandates it follows the flow of their rule verbatim. In some cases, there’s just a very young petty officer who doesn’t know any better, so having a cordial meeting with them, and in some cases with the ranking officer, helps bridge this – we’ve never had a problem with this.
• Like bullet one, if the document has a good cross-reference, this concern is mute. One should focus on making sure the combined plan is well laid out and fully cross-referenced.
• I have to be careful with this, the consultant industry is heavily based on relationships, so I understand why companies do this. However, certain regulations should be kept together, and others separate. For instance, air should never be included in one of these documents. However, Hazard Contingency Plan requirements should be included in the FRP, as there are a lot of overlapping requirements. More importantly, if you have two different people working on similar documents, there is a high risk of contractionary language and/or things being completely overlooked.?

My logic for saying one should combine: Both sets of regulations require one to address the below, so keeping separate documents, tables, and lists causes issues during updates, as one now must touch two separate documents.

• External and internal contact resources
• Oil Spill Removal Organization (OSRO) contracts
• Discuss training and ICS
• Diagrams
• Response tactics
• Environmental Sensitivity Maps (EMS)
• Descriptions of facility and activities
• Etc.

I wrote a similar article several months back which further addresses how these regulations are very similar: Doesn’t my USCG FRP cover me for EPA’s requirements, and vice versa?

As there are so many similarities, it makes more sense to leverage one document to address these similarities to minimize errors as well as efforts when things change. Yes, there are differences like paperwork retention, discharge discussions, etc., but these are easily fleshed out in one’s FRP.

Additionally, in most cases, a large incident at a marine facility will impact both EPA’s and USCG’s jurisdictional areas, so it doesn’t make sense to have two response plans, which in theory are pretty much identical. ?Again, as noted above, having separate documents, especially if developed by different consultants, can land one with different and/or contradicting response tactics.

Another important consideration is the National Preparedness for Response Exercise Program (PREP) requirements. Both USCG and EPA have virtually identical requirements here. Additionally, personnel training under the two programs is the same concerning HAZWOPER and facility familiarization. As such, keeping these in separate binders adds more paperwork and increases the likelihood of missing something.

Bottom line, I am with the mindset of keeping things simple for one’s facility operators. Their focus is to keep the facility operational, and keeping up with these programs can be taxing, so one should work on making things easier where one can work for them. Having these documents combined makes keeping up with required up-keeps simpler as spelled out in one plan, and it helps with updates as only one document must be maintained. More importantly, it minimizes errors by keeping documents/requirements housed in one document.

I’m sure some of you have different opinions about this conversation, so, if you do, please share your thoughts below in the comments. However, today’s conversation is just my opinion on the matter.

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 have a question? Please email John K. Carroll III ([email protected]) Associate Managing Director – Compliance Services or call +1 281-320-9796.

Witt O’Brien’s:

• To learn more about Witt O'Brien's breadth of services, please visit our website.
• Follow Witt O’Brien’s on LinkedIn and stay informed on important updates.