One-Hour and Two-Hour Equipment Needs Under EPA’s OPA90 Rule: A Topic Revisited

Today’s topic is one that has popped up more times this year than I have fingers. While there hasn’t been a change in the rule, there is much confusion surrounding the one-hour and two-hour equipment needs. Even though today’s conversation does not relate directly to the pandemic and other recent national events, this topic does serve as a good time to remind industry that disasters of all types do happen, and we must be prepared both from a regulatory standpoint while bearing in mind what is best for the environment.

Let’s dig in and kick off today’s conversation. Are you an inland facility that is subject to the Oil Pollution of Act of 1990 (OPA90) under the Environmental Protection Agency’s (EPA) jurisdiction? Of note, today’s topic is specifically related to the EPA’s portion of OPA90 requirements. If you are subject to OPA90 under the EPA, then you must have a Facility Response Plan (FRP). Not sure if you need one or uncertain what I’m talking about? Click here to learn more.

I’ve used the five questions below in several recent articles. While reading through the questions, think about them in relation to the past several years and you will likely take note of the tremendous changes in many aspects of the industry.

• Do you have the same workforce you did last year?
• Do you have the same consultants supporting you?
• Do you have the same amount of money in your budget to manage your programs?
• Do you have the same policies and procedures as you did last year?
• When is the last time you honestly reviewed your plans top-down?

Not all are applicable today, but you must be cognizant of all the new variables that have arisen since 2020, and how they impact your planning.

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The main purpose of OPA90 is to protect the environment, mainly navigable waters, from oil spills. OPA90 has numerous requirements for training, exercises, and most importantly, how you are mandated to respond should an incident occur. One component of incident response is how much equipment must be on sight within the first and second hours of any incident.  

There are other requirements beyond this as it relates to equipment, however, it’s these first two tiers that often cause confusion and are what I’ll focus on today. In general, for those that have marine terminals, the United States Coast Guard’s (USCG) requirements are the same, take note of 3.3.1 below for vessels, however.

First, what does the rule say?

3.0  Determining Response Resources Required for Small Discharges—Petroleum Oils and Non-Petroleum Oils Other Than Animal Fats and Vegetable Oils

3.3  The response resources shall, as appropriate, include:

3.3.1  One thousand feet of containment boom (or, for complexes with marine transfer components, 1,000 feet of containment boom or two times the length of the largest vessel that regularly conducts oil transfers to or from the facility, whichever is greater), and a means of deploying it within 1 hour of the discovery of a discharge;

3.3.2  Oil recovery devices with an effective daily recovery capacity equal to the amount of oil discharged in a small discharge or greater which is available at the facility within 2 hours of the detection of an oil discharge; and

3.3.3  Oil storage capacity for recovered oily material indicated in section 12.2 of this appendix.

At face value this is easy; facilities have two (2) options: 1) Contract an Oil Spill Removal Organization (OSRO) to do this, or 2) buy one’s own equipment.

To learn more about what an OSRO is, read my past article.

Most facilities choose option one. However, it is not always feasible to find a company that can truly meet the one-hour requirement. For inland operations, it can be hard to find someone within 24 hours away, let alone two hours away.

Need help selecting an OSRO, here’s a past article I wrote to help navigate this: Deciphering what OSRO is needed for your OPA90 plan.

Here’s where option one usually runs into an issue: Being deployed in one hour means the boom is hitting the ground, not simply arriving on site. Many companies fail this requirement, as their OSROs can be onsite within this time, but not actually have boom in the water that quickly.  Moreover, COVID-19 has impacted response times due to personnel shortages and the ever-shrinking OSRO locations.

During Government Initiated Unannounced Exercises (GIUE) (read more here), the EPA generally tests this capability. Therefore, Witt O’Brien’s always stresses to our clients that they test their contractor’s ability to meet this timing requirement, especially now, during the COVID-19 pandemic, and given it’s the operator who in the end is accountable. If you can meet the one-hour requirement, the two-hour requirement shouldn’t be an issue.

Note, not explicitly written in the rule – the EPA as it relates to inland operations will “as appropriate” accept in some cases other means of containment. Alternative strategies may be more appropriate for inland facilities where spill pathways could be a dry drainage pathway or tributary. For example, alternatives include but are not limited to:

• underflow dams,
• temporary containment dams (soil), or
• inflatable diaphragms.

As FRPs are submitted for review, these alternatives may or may not be approved when the EPA reviews the FRP submittal, so use this approach prudently. I would also highly recommend engaging with your EPA Region’s FRP Coordinator to ensure approval.

The two-hour requirement translates to being able to recover a minimum of 50 barrels of oil a day. You must have the appropriate equipment to remove oil from the surface and store it, e.g., a vacuum truck or skimmer along with a portable tank. It is acceptable if you choose to purchase equipment, which, in some cases is the only option. However, you are required to train your personnel on equipment usage and any related Occupational Safety and Health Administration (OSHA) HAZWOPER standards, as well as deploy the equipment semi-annually per the National Preparedness for Response Exercise Program (PREP) requirements.

So, there you go, the requirements are not too complicated – it’s more an exercise to determine what works best for your operations, and, afterward, ensuring your organization follows the strict requirements set forth.

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 just have a question? Please email John K. Carroll III (jcarroll@wittobriens.com) Associate Managing Director – Compliance Services or call at +1 281-320-9796.

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