What is a QI under OPA90? – 2024 Reminder
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.)
In the spirit of my first two articles this year, this week will be another reminder of a critical item under the Oil Pollution Act of 1990 (OPA90).
First two articles:
Today’s focus: “What are my Qualified Individuals’ (QI) duties?”
The answer is confusing, and as such, important to revisit. Under the OPA90, four agencies have the authority to administer their own set of regulations based on the type of operation your asset falls under:
Much of oil and gas is integrated, meaning that companies have various types of assets, e.g., pipelines, terminals, offshore platforms, and refining/production operations. If you are a program manager at a company with two or more of these integrations, planning requirements can get muddy as each agency has different requirements. Another aspect that causes confusion is when companies use the term QI across the board for all their contingency plans to keep things simple. QI is a term with no meaning in some agency requirements, i.e., the Occupational Safety and Health Administration’s (OSHA) Emergency Action Plan (EAP) requirement, which is generally combined with response plans.
Many plan writers use uniform terminology across all of their plans for consistency. This is especially true for plans that have more substance or ones that must adhere to more agency scrutiny. There is no real harm in taking on this approach, unless the plan writer doesn’t deal with regulations regularly and assumes incorrectly that certain terms required in one plan can or should be used in every other plan. For example, if a company has an oil facility that falls under the jurisdiction of the USCG, the acronym ‘QI’ is used within the planning requirements. However, ' QI' is not used if a company has an LPG facility that falls under the USCG.
So, if your company has both types of operations, it’s important not to assume that ‘QI’ is a term inherent to all of your USCG plans.
Here are some of the typical questions we often receive about the QI role:
You might be wondering why the answer to all of these questions is “maybe.” The simple answer is it all depends on what the company expects the QI role to be. At its basic level, a QI is the person (or persons) who has been given authority to fund response efforts without consulting company leadership for further authorization, and who knows how to initiate the response procedures identified in their response plan.
So, to provide a more detailed answer to the questions above:
Do I need more than one? Maybe, depending on the size of the operation. The USCG requires an alternative, but the EPA and PHMSA only require a minimum of one. Keep in mind if you only have one, it means they are on the hook, even if they’re sick or on vacation.
Do they require HAZWOPER? Maybe, if you intend for them to be actual responders. If they are just communicators, then no. Again, HAZWOPER is designed to be training for those who will be encountering/handling hazardous materials.
Are they required to know ICS? They should, but it’s not required. Again, their role will dictate what they should know. However, everyone should know basic ICS as part of a response plan, as it is what agencies are trained to know, and everyone involved else should know. Not working cohesively with agencies during a response leads to unwanted headaches.
Do they need to be onsite? Not necessarily, however, they will need to authorize funds and enact response plan procedures. The agencies prefer that they be onsite; however, many unmanned assets have area-type superintendents over them.
Do they require First Responder Training? Maybe, if you intend them to be initial responders. If they are just communicators, then no. Like the ICS training above, training is highly recommended.
Can anyone be a QI? Sure; however, they need to be able to authorize funds without permission and have knowledge of their duties as defined in the response plan.
One additional question that is a definite “yes,” is on authority to authorize funds. A QI must be granted this authority. If they don’t have it, then they are not a QI. Therefore, someone can be an Incident Commander (IC), but not a QI, as authority of funds is imperative.
Beyond their actual duties, OPA90 requires certain drills and training for QIs to go through, which are detailed in the 2016 National Preparedness for Response Exercise Program (PREP).
What do the rules say?
Qualified individual means an English-speaking representative of an operator, located in the United States, available on a 24-hour basis, with full authority to: activate and contract with required oil spill removal organization(s); activate personnel and equipment maintained by the operator; act as liaison with the OSC; and obligate any funds required to carry out all required or directed oil response activities.
The FRP regulations require facilities to prepare an emergency response action plan and identify a QI that has full authority, including contracting authority, to implement removal actions (40 CFR §112.20(h)(i)).
The relevant statute, CWA 311(j)(5)(C)(ii) requires that the plan identify the QI having full authority to implement removal actions, and require immediate communications between that individual and the appropriate federal official and the persons providing personnel and equipment pursuant to clause (iii) [Oil Spill Removal Organizations (OSRO) or first responders]. The FRP regulations at Part 112.20(h)(3)(ix) define the duties of a QI as follows:
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(a) The response plan must identify a qualified individual and at least one alternate who meet the requirements of this section. The qualified individual or alternate must be available on a 24-hour basis and be able to arrive at the facility in a reasonable time.
(b) The qualified individual and alternate must:
(1) Be located in the United States;
(2) Speak fluent English;
(3) Be familiar with the implementation of the facility response plan; and
(4) Be trained in the responsibilities of the qualified individual under the response plan.
(c) The owner or operator shall provide each qualified individual and alternate qualified individual identified in the plan with a document designating them as a qualified individual and specifying their full authority to:
(1) Activate and engage in contracting with oil spill removal organization(s);
(2) Act as a liaison with the predesignated Federal On-Scene Coordinator (OSC); and
(3) Obligate funds required to carry out response activities.
(d) The owner or operator of a facility may designate an organization to fulfill the role of the qualified individual and the alternate qualified individual. The organization must then identify a qualified individual and at least one alternate qualified individual who meet the requirements of this section. The facility owner or operator is required to list in the response plan the organization, the person identified as the qualified individual, and the person or person(s) identified as the alternate qualified individual(s).
(e) The qualified individual is not responsible for—
(1) The adequacy of response plans prepared by the owner or operator; or
(2) Contracting or obligating funds for response resources beyond the authority contained in their designation from the owner or operator of the facility.
(f) The liability of a qualified individual is considered to be in accordance with the provisions of 33 USC 1321(c)(4).
Qualified individual means an English-speaking representative of an owner or operator, located in the United States, available on a 24-hour basis, with full authority to obligate funds, carry out removal actions, and communicate with the appropriate Federal officials and the persons providing personnel and equipment in removal operations.
Last year, I wrote a similar article labeled, What is a QI Exercise?, which details the PREP requirements for one’s QIs.
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.
Witt O’Brien’s:
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Senior HSE Specialist - Plains
11moJohn, As you mention above, 33 CFR 154.1026(e)(2) states that the QI is NOT responsible for contracting or obligating funds for response resources beyond the authority contained in their designation from the owner or operator of the facility. Is the clear guidance on required amounts or the extent of the authorization mentioned herein?
Chemical Engineer at US Environmental Protection Agency (EPA)
11moThanks John for this article. Reminder to the plan holder community, QI’s are required by statute under 311(j)(5)(D)(ii) and by EPA’s FRP regulation at 40 CFR 112.20(h)(1)(ii). The 10 QI duties are outlined at 40 CFR 112.20(h)(3)(ix). I get the question about whether the QI should be onsite a lot. EPA recommends that at least one alternate QI be on site to perform the initial QI duties until relieved by the Regional QI. But the regulation does not require this. However, if the Regional QI is not on site during a GIUE, and there is no alternate QI on site, there can be coordination issues during the exercise. Of course, that’s the purpose of a GIUE, and why I call it the “final exam” for the plan holder.