PHMSA’s oil spill response regulations have been subject to increased scrutiny by Congress, the NTSB and citizen groups since the 2010 Deepwater Horizon and Marshall, Michigan incidents. The National Academy of Sciences (NAS) recently published a diluted bitumen study which concludes that while diluted bitumen does not pose an increased risk in transportation, it behaves differently than lighter crude oils following a spill. As a result, NAS made recommendations to various federal agencies with oil spill response oversight and oil pipeline operators to ensure adequate responses to spills of diluted bitumen. In response, PHMSA announced that it will convene a public workshop on April 12, 2016 on these and other oil spill response planning issues covered by its pipeline regulations (Part 194) and rail and motor carrier regulations (Part 130).
Required by Congress’ 2014 appropriations bill, the NAS study was performed as a follow-up to its 2013 study (required by the 2011 amendments to the Pipeline Safety Act) which found that there was no evidence of any causes of pipeline failure that were unique to the transportation of diluted bitumen. In support of NAS’s conclusion that diluted bitumen behaves differently than lighter crude oils following a spill, it presented recommendations to: (1) PHMSA, EPA, the Coast Guard, and the oil industry on improvements for oil spill response; (2) the Coast Guard’s on its classification system; (3) the National Oceanic and Atmospheric Administration (NOAA) on advance predictive modeling; (4) PHMSA, EPA, the Coast Guard, and NOAA on improved inter-agency coordination; and (5) EPA on developing a standard for quantifying adhesion.
In light of the above, PHMSA’s April 12, 2016 public workshop will focus on harmonizing PHMSA regulations with EPA, Coast Guard, and NOAA regulations and practical ways for operators to improve their oil spill response plans (also referred to as facility response plans). In addition, the Agency’s notice acknowledges that the industry has requested “greater direction and regulatory interpretation” with respect to its oil spill response regulations and that those regulations “do not fully align with the regulations of other federal agencies” with jurisdiction under the Oil Pollution Act (33 U.S.C. § 1321(j)(5)). The workshop will be open to members of the public and it will be available by webcast.
As referenced by Administrator Dominguez earlier this month, the Agency is also planning to issue an advisory bulletin to highlight the findings of the NAS diluted bitumen study and to suggest voluntary improvements for operators to address the recommendations. In addition, PHMSA has committed to working with the National Response Team and the Interagency Coordinating Committee on Oil Pollution Research to advance the NAS recommendations and continued coordination with the American Petroleum Institute’s Spill Advisory Committee, Spill Control Association of America, and other industry organizations to improve oil spill response planning and preparedness.
Meanwhile, the National Wildlife Federation (NWF) recently threatened to sue PHMSA related to compliance with its obligations under with the National Policy Act, the Endangered Species Act, and its authority under the Oil Pollution Act in approving Enbridge’s Facility Response Plan (FRP) for inland offshore sections of Line 5 (through the Straits of Mackinac and the St. Clair River). The NWF has threatened to file suit unless PHMSA formally revokes it approval of the FRP for those portions of pipeline by April 22, 2016. This is the second time that the NWF has threatened to sue PHMSA for its approval of a FRP those portions of Line 5, with the first notice of intent and eventual lawsuit alleging failure to take a nondiscretionary action required by the Oil Pollution Act and Executive Order 12777, which is pending in the Eastern District of Michigan.