Post EPA Workshop Guidance - ICP Timelines - EPA, USCG, PHMSA Requirements
John K. Carroll III
Associate Managing Director at Witt O'Brien's, LLC, Part of the Ambipar Group
(This article was written without AI tools, i.e., ChatGPT.)
I’ve already written an article on today’s topic: submittal requirements upon acquiring a new facility. However, since we received numerous questions about it during Witt O’Brien’s annual compliance workshop, I’m providing this update.
To fully take ownership and begin operations, companies acquiring new assets have a plethora of pre-and-post transaction due diligence requirements. This article focuses on several large plans tied to new purchases. It is not a catch-all blueprint for new ownership. State and local permits, federal permits, and other regulatory plans are also part of this requirement and must be reviewed. Beyond plans and permits, you will have training, inspections, and a host of other “fun” activities to navigate.
To frame the discussion, a key question is: “We just bought ‘ABC Terminal’ from ‘ABC Terminal Company;’ can we just use their old plans?”
The question typically deals with the Integrated Contingency Plan (ICP) acquired as part of the new purchase. In the midstream world, three regulatory bodies govern compliance: Pipeline and Hazardous Materials Safety Administration (PHMSA), Environmental Protection Agency (EPA), and United States Coast Guard (USCG). Generally, midstream operators use ICPs to house their PHMSA Oil Spill Response Plan (OSRP), EPA Spill Prevention, Control, and Countermeasure (SPCC) Plan, EPA Facility Response Plan (FRP), and USCG FRP. Sometimes, these include a USCG Dock Operational Manual (DOM). Separate from the ICP, the USCG Facility Security Plan (FSP) is also relevant to today’s topic.
All of these plans have different submission requirements, which makes the process all the more fun.
So, what are the new owner submission requirements? Below are summaries of each agency’s requirements. There may be alternatives or other exceptions, but in most cases, these timelines and actions will apply to all plans.
One important piece of advice: as soon as the acquisition is public, you should reach out to each respective agency and give them a heads-up. During these calls, you should discuss the official transition timeline and inquire if they have any special requests, which will help establish a deadline everyone knows. This goes a long way with the USCG (see the discussion below). Another critical component is that if your existing plan or plans are in bad shape, the transition time will allow you to set up a schedule to get preliminary plans with critical planning elements in place, with an acknowledgment from the respective agencies that you will edit and update the documents further and resubmit them.
PHMSA’s OSRP
PHMSA, unlike the USCG, does not require approval of your plan before operating. However, you must submit your plan to phmsa.opa90@dot.gov during or before taking ownership (it must be in place by day one). If it is too large to email, request an FTP link by emailing phmsa.opa90@dot.gov.
A common mistake among new operators is assuming that new ownership can be managed similarly to PHMSA’s significant plan revision requirement, which states: “If a new or different operating condition or information would substantially affect the implementation of a response plan, the operator must immediately modify its response plan to address such a change and, within 30 days of making such a change, submit the change to PHMSA.”
This September 2016 article discusses how PHMSA’s new management has impacted how OSRP reviews are administered and the implications on plan content. It is essential to be mindful of the article’s guidance, as simply making plan edits for new ownership and personnel, depending on the age of the OSRP, may not be enough. Additionally, as discussed below with the EPA’s FRP, these plans have a handful of additional items that must be readdressed with new ownership.
Read more at eCFR.
EPA’s SPCC Plan
EPA’s SPCC change in ownership guidance: If no change in procedures has been made, it may still be feasible to operate under the existing SPCC Plan. The information in the existing plan must be changed to reflect the new owner/company names. Changes which are non-technical changes do not require a Professional Engineer (P.E.) certification. Non-technical changes are changes which do not require the exercise of good engineering practice. If the change in ownership results in any change in the facility's operation or maintenance that materially affects the facility's potential for a discharge as described in §112.1(b), the SPCC Plan must be amended within six months and any technical amendments must be certified by a PE (40 CFR §112.5).
As stated above, you can use the existing SPCC Plan; however, in updating personnel, company name, and other disposable information, you must treat it as if it’s a “new facility” and have all these items completed on or before the new ownership takes over the facility. Over the years, I’ve heard several interpretations regarding the timing of these updates; however, as noted by Mark Howard, EPA - Office of Emergency Management (OEM) and Regulatory and Policy Development Division (RPDD), “This is a new facility, and at a minimum, all administrative edits shall be completed by day one of ownership.”
Many companies overlook this requirement to conserve costs: Suppose a company only does an administrative edit to avoid the cost of having the SPCC re-certified by a P.E. In that case, they must then fully accept all the inspection, training, and operating procedures in the existing SPCC Plan as the P.E. seal binds these actions to the company.
Additional information can be found on the EPA’s SPCC Guidance for Regional Inspectors web page.
Note, SPCC Plans are not submitted to the EPA, unless part of an ICP, so there is no plan submittal time requirement, just plan update timing.
EPA’s FRP Plan
As with the SPCC Plan, there are several faulty opinions on how to manage the EPA’s FRP submittal. Many confuse new facility requirements with the guidance on changes to the FRP (noted below), as they perceive, incorrectly, that new ownership is addressed by bullets 3 and 4. Like the SPCC Plan, this should be viewed as a new facility, and you must have an FRP submitted by day one or before the new ownership takes over to the EPA.
“For a newly constructed facility that commences operation after August 30, 1994, and is required to prepare and submit a response plan based on the criteria in paragraph (f)(1) of this section, the owner or operator shall submit the response plan, along with a completed version of the response plan cover sheet contained in appendix F to this part, to the Regional Administrator prior to the start of operations … “
EPA’s FRP guidance on change: “… You must review and update the FRP periodically to reflect changes at the facility. (See 40 CFR 112.20(g)(1), (2), and (3) for more information.) You must also submit the revised portions of the response plan within 60 days of each change that may materially affect the response to a worst-case discharge. These changes include:
A cautionary note: you must go beyond just changing the company name and resigning management approval and substantial harm certificate pages. Many overlook the requirements to secure a new Oil Spill Removal Organization (OSRO) contract, updating the Qualified Individuals (QI), confirming available response equipment, ensuring the vulnerability analysis is current, and confirming other contractors. Make sure to read the ICP carefully.
In terms of document format, EPA has gone mainly to email submittals, with some regions wanting thumb drives. For the most part, paper copies are a thing of the past. To confirm the correct format, contact one of the EPA coordinators found here.
Read more at eCFR.
Lastly, an important note on EPA FRPs: the EPA has put a heavier emphasis on certain crucial elements of FRPs, in addition to wanting to see specific areas developed a lot differently than in the past. These include diagram details, booming strategies, drainage discussions, response scenarios, firefighting foam discussions, air monitoring discussions, and other areas. You need to ensure these areas are reviewed and updated to the current expectations. Many older plans do not go into enough detail in these areas, so it is important to review these elements and update them before resubmitting your plan.
USCG’s DOM, FSP, and FRP
USCG makes things pretty straightforward, but more forethought is required to ensure you can operate a dock and transfer oil promptly, as their rules have a 60-day submittal before-operation requirement (see bolded text below). In most cases, if you call the local Captain of the Port (COTP), they will work with you on timing; as often these things get announced with little notice, and the USCG already has some knowledge of the terminal. Also, they are one of the few agencies that only accept paper submittals (some, as of 2023, have started allowing emailed documents but are limited – in most cases to file sizes under 25 MB).
Updates should be like those noted above under the EPA’s FRP requirements.
USCG DOM Requirements
a) The operator of a facility shall submit two copies of the Operations Manual to the Captain of the Port of the zone in which the facility is located.
b) Not less than 60 days prior to any transfer operation, the operator of a new facility shall submit, with the letter of intent, two copies of the Operations Manual to the Captain of the Port of the zone in which the facility is located.
c) After a facility is removed from caretaker status, not less than 30 days prior to any transfer operation the operator of that facility shall submit two copies of the Operations Manual to the COTP of the zone in which the facility is located unless the manual has been previously examined and no changes have been made since the examination.
d) If the COTP finds that the Operations Manual meets the requirements of this part and part 156 of this chapter, the COTP will return one copy of the manual to the operator marked “Examined by the Coast Guard”.
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e) If the COTP finds that the Operations Manual does not meet the requirements of this part and/or part 156 of this chapter, the COTP will return the manuals with an explanation of why it does not meet the requirements of this chapter.
f) No person may use any Operations Manual for transfer operations as required by this chapter unless the Operations Manual has been examined by the COTP.
g) The Operations Manual is voided if the facility operator:
i) Amends the Operations Manual without following the procedures in §154.320 of this part;
ii) Fails to amend the Operations Manual when required by the COTP; or
iii) Notifies the COTP in writing that the facility will be placed in caretaker status
USCG FSP Requirements
§105.410 Submission and approval.
(a) The owner or operator of each facility currently in operation must either:
(1) Submit one copy of their Facility Security Plan (FSP) for review and approval to the cognizant COTP and a letter certifying that the FSP meets applicable requirements of this part; or
(2) If intending to operate under an Approved Alternative Security Program, a letter signed by the facility owner or operator stating which approved Alternative Security Program the owner or operator intends to use.
(b) Owners or operators of facilities not in service on or before December 31, 2003, must comply with the requirements in paragraph (a) of this section 60 days prior to beginning operations.
(c) The cognizant COTP will examine each submission for compliance with this part and either:
(1) Approve it and specify any conditions of approval, returning to the submitter a letter stating its acceptance and any conditions;
(2) Return it for revision, returning a copy to the submitter with brief descriptions of the required revisions; or
(3) Disapprove it, returning a copy to the submitter with a brief statement of the reasons for disapproval.
(d) An FSP may be submitted and approved to cover more than one facility where they share similarities in design and operations, if authorized and approved by each cognizant COTP.
(e) Each facility owner or operator that submits one FSP to cover two or more facilities of similar design and operation must address facility-specific information that includes the design and operational characteristics of each facility and must complete a separate Facility Vulnerability and Security Measures Summary (Form CG-6025), in Appendix A to Part 105—Facility Vulnerability and Security Measures Summary (CG-6025), for each facility covered by the plan.
(f) A FSP that is approved by the cognizant COTP is valid for five years from the date of its approval.
AND
§105.310 Submission requirements.
(a) A completed FSA report must be submitted with the Facility Security Plan required in §105.410 of this part.
(b) A facility owner or operator may generate and submit a report that contains the Facility Security Assessment for more than one facility subject to this part, to the extent that they share similarities in design and operations, if authorized and approved by the cognizant COTP.
(c) The FSA must be reviewed and validated, and the FSA report must be updated each time the FSP is submitted for reapproval or revisions.
USCG FRP Requirements
Subpart F—Response Plans for Oil Facilities - §154.1025 - Operating restrictions and interim operating authorization - (b) No facility subject to this subpart may handle, store, or transport oil unless it is operating in full compliance with a submitted response plan. No facility categorized under §154.1015(c) as a significant and substantial harm facility may handle, store, or transport oil unless the submitted response plan has been approved by the COTP. The owner or operator of each new facility to which this subpart applies must submit a response plan meeting the requirements listed in §154.1017 not less than 60 days prior to handling, storing, or transporting oil. Where applicable, the response plan shall be submitted along with the letter of intent required under §154.110.
For a complete listing of archived articles and compliance insights, click here. Past articles cover training requirements, clarification of additional unclear elements within the above rules, and more.
We are here to help solve your compliance questions and challenges. If you need compliance assistance or have questions, please email John K. Carroll III (jcarroll@wittobriens.com), Associate Managing Director – Compliance Services, or call +1 954-625-9373.
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