Amidst public scrutiny regarding onshore oil pipeline facility response plans (FRPs) and an outstanding statutory mandate to make those plans public, PHMSA issued an Advisory Bulletin regarding FRP requirements at 49 CFR Part 194.  In the Advisory, PHMSA confirms that it will make FRPs publicly available and recommends that operators consider U.S. Coast Guard (USCG) oil spill response regulations when complying with Part 194.

Under the Oil Pollution Act of 1990, operators of certain pipeline facilities must submit FRPs to PHMSA and update them every 5 years and/or when new or different operating conditions impact the plan’s implementation.  In 2012, Congress required PHMSA to make FRPs available to the public.  One year later, a public citizen group filed suit to require the Agency to provide those plans; the suit is currently pending before the D.C. District Court.  See prior pipelinelaw practice pointer and alert.  PHMSA’s Advisory confirms that it will post approved FRPs on its website, subject to redactions of sensitive information in the plans.

More generally, the Advisory reminds operators of the circumstances surrounding the 2010 rupture of an Enbridge pipeline in Marshall, Michigan.  In its investigation of the accident, NTSB noted that Enbridge had underestimated the response resources required for a worst case discharge and identified the Company’s deficient FRP as contributing factor to the severity of environmental damage caused by the spill.  As a result, the PHMSA Advisory recommends that when updating their FRPs, operators review relevant USCG regulations to confirm that they have identified and secured sufficient response resources.  Specifically, PHMSA recommends:  (1) following the USCG regulations for calculating a worst case discharge (33 CFR Part 154 Section 7, Appendix C; also referenced as guidance at Part 194, Appendix A) and (2) using USCG-classified oil spill response organizations (OSROs).  For operators that contract with OSROs, the FRP need not describe response resources or relevant equipment maintenance programs.  In contrast, for operators that contract with non-OSROs PHMSA will rely on USCG regulations to confirm the adequacy of FRP response resources.

In conjunction with its Enbridge investigation, NTSB also recommended that PHMSA amend 49 CFR Part 194 to harmonize those regulations with USCG and EPA requirements to ensure that operators have adequate resources to respond to worst case discharges.  PHMSA has yet to respond to this recommendation with any rulemaking, but the Agency’s Advisory clearly signals an increasing reliance on USCG regulations for oil spill response planning.  Further, the 2010 BP Deep Water Horizon incident demonstrated to both the industry and PHMSA that some OSRO contractors may be overcommitted.  For that reason, operators should consider confirming that their OSRO contractor has sufficient resources to respond to multiple oil spills.