By Sarah Y. Dicharry and Robert E. Holden
In August 2012, the Bureau of Safety and Environmental Enforcement (“BSEE”) published a Notice to Lessees (“NTL”) seeking to clarify a number of ambiguities regarding BSEE’s interpretation and application of the Oil Pollution Act (“OPA”) regulations that require offshore lessees to prepare and submit regional Oil Spill Response Plans (“OSRPs”). United States Dep’t of the Interior Bureau of Safety and Environmental Enforcement, GUIDANCE TO OWNERS AND OPERATORS OF OFFSHORE FACILITIES SEAWARD OF THE COAST LINE CONCERNING REGIONAL OIL SPILL RESPONSE PLANS, NTL No. 2012-N06 (2012), [hereinafter NTL 2012-N06]. With this NTL, BSEE seeks to clarify the OPA requirements for OSRPs and encourage lessees to include inventive and flexible response techniques in their OSRPs. Many of the clarifications are based on lessons learned from the Deepwater Horizon incident. To further BSEE’s goals, the NTL provides lessees with instructions for preparing their OSRPs, which are presented in an outline suggesting the organization and contents of OSRPs. While BSEE claims that compliance with the NTL’s instructions is not required for OSRP approval, BSEE strongly recommends compliance and indicates that its review of OSRPs will follow the guidelines established by the NTL.
Among other significant clarifications that BSEE makes in the NTL, the changes relating to the information that operators must include in the “Emergency Response Plan” section of their OSRPs are particularly important. For instance, the regulations require that the Emergency Response Plan identify a qualified individual who has “full authority to implement removal actions. . . .” 30 CFR 254.23. The NTL emphasizes that authority over “removal actions” must specifically include the authority to deploy “surface and subsea containment resources.” NTL 2012 N-06, 3. To demonstrate that a qualified individual listed in the OSRP can adequately respond to a Worst Case Discharge (“WCD”) scenario, the OSRP now must identify the response resources available, including personnel, materials, equipment, and support vessels. Also, 30 CFR 254.23(g) requires that, in the information submitted regarding the Emergency Response Plan, the operator identify procedures that will be used in the event of an actual or threatened spill, which must include “the methods to monitor and predict spill movement.” 30 CFR 254.23(g)(2). The NTL clarifies that “when identifying adequate provisions for monitoring the movement of a spill, you should use the distance of facilities farthest from shore.” NTL 2012 N-06, 5.
In the NTL, BSEE also makes some more minute clarifications in significant areas, including the calculation of WCD scenarios. For instance, 30 CFR 254.26 requires that the WCD discharge scenario be calculated according to the criteria in section 254.47. Section 254.47(a) requires that for “an oil production platform facility, the size of your worst case discharge scenario is the sum” of the factors listed in that section. The NTL provides, “[i]f the WCD scenario is an oil discharge from an oil production facility, calculate the initial volume of the WCD in accordance with the requirements of § 254.47(a).” NTL 2012-N06, at 28 (emphasis added). The NTL goes on to state, “[i]f operating from a production platform, also include the volume of all storage tanks and flowlines, and the volume of oil calculated to leak from a break in any pipelines connected to the facility.” Id. at 28-29 (emphasis added). Thus, for oil production facilities other than platforms, the NTL is consistent with the regulation; however for oil production platform facilities, the NTL seemingly includes additional requirements for calculating the WCD scenario oil volume. Also, Regarding its review of WCD scenarios in OSRPs, BSEE emphasizes that it will now evaluate not only the Effective Daily Recovery Capacity for particular equipment identified in the OSRP but also the availability of other technologies that could effectively respond to WCD scenarios. Further, while the regulations require that a WCD scenario response plan support a spill lasting up to thirty days, BSEE now strongly encourages that lessees identify supplies and materials that can sufficiently respond to a spill lasting longer than thirty days.
After a lessee submits an OSRP, BSEE’s Oil Spill Response Division analyzes the OSRP and determines whether or not it is sufficient to rectify the anticipated WCD scenarios identified therein. After BSEE approves an OSRP, the lessee is responsible for reviewing it every two years. If modifications are made after review, then lessees must submit the modifications to BSEE. Specifically, if a modification results in alteration of a regional OSRP, then the lessee must submit the revision within fifteen days of the change. If no modifications are made after review, then lessees must submit a writing to BSEE indicating that no changes were made.