What is an ERAP under EPA’s and USCG’s FRP Rules? – Revisited

(This article was written without AI tools, i.e., ChatGPT.)

Today’s article revisits a topic I’ve addressed in the past because we continue to see the Emergency Response Action Plan (ERAP) requirement misunderstood and not managed correctly in many response plans. In fact, Witt O’Brien’s has picked up three new clients this year that have had issues with ERAPs in their Environmental Protection Agency (EPA) audits. Below is a snapshot from one of these audits.

Under the Oil Pollution Act of 1990 (OPA90) several agencies have authority. Three of these are the Pipeline and Hazardous Materials Safety Administration (PHMSA), the EPA, and the United States Coast Guard (USCG). As many companies have operations that fall under one, two, or even all three agencies, the requirements can be overwhelming. Not surprisingly, it’s common for companies to miss various key requirements or misinterpret them.

To clarify the ERAP requirement, let’s look at what the rules say.

EPA

Subpart D—Response Requirements

§112.20 Facility response plans.

(1) Emergency response action plan. The response plan shall include an emergency response action plan in the format specified in paragraphs (h)(1)(i) through (viii) of this section that is maintained in the front of the response plan, or as a separate document accompanying the response plan, and that includes the following information:

(i) The identity and telephone number of a qualified individual having full authority, including contracting authority, to implement removal actions;

(ii) The identity of individuals or organizations to be contacted in the event of a discharge so that immediate communications between the qualified individual identified in paragraph (h)(1) of this section and the appropriate Federal officials and the persons providing response personnel and equipment can be ensured;

(iii) A description of information to pass to response personnel in the event of a reportable discharge;

(iv) A description of the facility's response equipment and its location;

(v) A description of response personnel capabilities, including the duties of persons at the facility during a response action and their response times and qualifications;

(vi) Plans for evacuation of the facility and a reference to community evacuation plans, as appropriate;

(vii) A description of immediate measures to secure the source of the discharge, and to provide adequate containment and drainage of discharged oil; and

(viii) A diagram of the facility.

USCG

§154.1030 General response plan contents.

(2) Emergency response action plan:

(i) Notification procedures.

(ii) Facility's spill mitigation procedures.

(iii) Facility's response activities.

(iv) Fish and wildlife and sensitive environments.

(v) Disposal plan.

§154.1035 Specific requirements for facilities that could reasonably be expected to cause significant and substantial harm to the environment.

Omitted here, as a very long detailed explanation of what is required from above.

PHMSA

---- PART 194—RESPONSE PLANS FOR ONSHORE OIL PIPELINES

You may ask why PHMSA is blank. The reason is that under PHMSA’s part of OPA90, there is no ERAP requirement. Mainly because PHMSA Oil Spill Response Plans (OSRP) have what are referred to as “response zones,” and these closely follow the intent of an ERAP; however, they are less prescriptive than the EPA and USCG plans.

To explain this further, an ERAP is not a rule by itself, a unique plan, a one-off unique section, or a document that contains different information than the core of the Facility Response Plan (FRP) to which it is affiliated. It is not a standalone plan done in a void. We often receive requests for proposals for an FRP and an ERAP, or an ERAP and an Integrated Contingency Plan (ICP). Again, these are just one document.

A good way to describe the ERAP is that it is like your old high school Cliff Notes. It’s a summary that is dictated by the rules of the core plan and focuses on the initial hours of a response that contain the tactical details to react accordingly. You want to ensure that you don’t include unique information within the ERAP since it must MIRROR the core plan.

The ERAP can accommodate both agencies, USCG and EPA. Be mindful, however, that the USCG has more requirements than the EPA, so if you’re using the ERAP to facilitate both agency requirements, make sure you note these differences. These are, primarily, the USGC’s requirements to include the disposal plan and fish and wildlife and sensitive environments documentation.

Many companies get into trouble with plan approvals/reviews when they don’t mirror the core plan content in the ERAP. The USCG states for contacts though: (1) Notification procedures. (i) This subsection must contain a prioritized list identifying the person(s), including name, telephone number, and their role in the plan, to be notified of a discharge or substantial threat of a discharge of oil. The telephone number need not be provided if it is listed separately in the list of contacts required in the plan. … However, in all my years of writing plans, the USCG has always said they want things mirrored in the ERAP and not simply referenced.

The theory, which makes sense, is that you could simply grab the ERAP and use it as an independent document instead of lugging around an FRP, which can be 500+ pages, versus the 60-100 pages in a typical ERAP. Remember, FRPs contain contracts, high-level research, and training requirements, which are not relevant to responding (but require more preparation). ?The ERAP on the other hand is purely the tactical portions that have been consolidated into one streamlined section.

EPA doesn’t get too particular about the overall format if you have included what is required. However, it is not uncommon to get requests from the USCG to ensure your ERAP flows per their rule. Best advice: copy the rules’ prescribed orders. If you’ve been in the OPA90 world for a while, you’ve probably thought on more than one occasion that the information in an ERAP is not always completely relevant. You won’t get in trouble if you add information, as long as it’s mirrored in the core plan, and you haven’t missed the rule requirements. It is reasonable to make the information applicable to your organization.

I’ll address the level of detail required, and offer thoughts on building out your ERAP in a future article. Below are some basic Dos and Don’ts:

• Don’t create a cross reference and point to where the required elements can be found within the core plan – it must be a standalone section/document.
• Don’t add anything that is not found in the core plan. You must mirror the core plan (with a slimmed-down version).
• Don’t neglect to develop an ERAP.
• Don’t treat it like a different plan/rule and give ownership to different people for maintaining the document. Updates to the ERAP must be done concurrently with any changes made in the core plan.
• It’s okay to put the ERAP in a separate binder if it mirrors the core plan. It’s actually smarter, as you will have a more manageable plan to use during an incident.
• It is okay to use different colored paper for the ERAP in the front of the plan. This makes it stand out when needed for an incident.
• It is okay to print double-sided. Doing so will make the ERAP more manageable/compact during an incident.
• It is okay to put the ERAP in the back of the plan assuming it follows the guidance above.

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

We are here to help solve your compliance questions and challenges. If you need compliance assistance or have a question, please email John K. Carroll III ([email protected]), Associate Managing Director – Compliance Services, or call +1 954-625-9373.

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