This chapter addresses the fourth component of the committee’s statement of task to “make a determination as to whether the differences between the environmental properties of diluted bitumen and those of other crude oils warrant modifications to the regulations governing spill response plans, spill preparedness, or cleanup.” The first section of this chapter provides an overview of the federal framework for spill response planning, preparedness, and response. The second section examines how well this framework accounts for the unique characteristics of diluted bitumen and where improvements are warranted to improve its effectiveness. The chapter concludes that, in light of the committee’s findings regarding the differences between diluted bitumen and commonly transported crude oils, modifications to the current regulatory framework are needed to better account for the unique characteristics of diluted bitumen.
In 1968, problems faced by officials responding to a large spill of oil from the tanker Torrey Canyon off the coast of England heightened awareness of the importance of effective spill planning.103 That incident and later spills spurred recognition that the U.S. needed a coordinated approach to cope with potential spills in U.S. waters. Ultimately, a comprehensive system of spill reporting, containment, and cleanup was developed and codified in the National Oil and Hazardous Substances Pollution Contingency Plan, more commonly called the National Contingency
Plan (NCP). The NCP,103 issued under the authority of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),104 provides a multiagency federal blueprint for responding to oil spills and to releases of other hazardous substances.
Congress has broadened the scope of the NCP since its inception. A major milestone was the Oil Pollution Act of 1990 (OPA 90).105 Enacted in the wake of the Exxon Valdez spill, OPA 90 expanded reporting, planning, and response requirements for oil spills, prompting extensive revisions of the NCP that were finalized in 1994.
Under the NCP, the planning and response process has several elements that are implemented at the pipeline or facility level and through national, regional, and area planning mechanisms. Figure 6-1 provides an overview of these elements and how they interact. Under ideal circumstances, planning at the pipeline or facility level should not occur in isolation, but as part of an integrated system that involves multiple governmental entities and the public.
FIGURE 6-1 The relationship among the various levels of oil and hazardous materials response plans under and related to the U.S. National Contingency Plan.
SOURCE: Adapted from U.S. Environmental Protection Agency106
The National Response Team (NRT)107 is responsible for broad coordination and oversight of preparedness, planning, and response across the federal government. The U.S. Environmental Protection Agency (USEPA) and the U.S. Coast Guard (USCG) serve as chair and vice chair respectively, of the NRT. All federal agencies with some involvement in planning and response are members.
There are 13 Regional Response Teams (RRTs)108 in the United States, each representing a particular geographic region (including the Caribbean and the Pacific Basin). RRTs are composed of representatives from field offices of the federal agencies that make up the NRT, tribal nations, and representatives of state government. The major responsibilities of RRTs include response, planning, training, and coordination. Regional Contingency Plans are established by RRTs to ensure that the roles of federal and state agencies during an actual incident are clear, and also to identify resources that are available from each federal agency and state within their regions, including equipment, guidance, training, and technical expertise, for dealing with chemical releases or oil spills.
An Area Contingency Plan (ACP)109 is a reference document prepared for the use of all agencies engaged in responding to environmental emergencies in a defined geographic area. ACPs are generally initiated by RRTs and can be developed based on geographic features and jurisdictional boundaries. Within the boundary of an ACP, subareas with unique circumstances that warrant tailored response strategies can also be defined. ACPs are designed to ensure that all responders have access to essential area-specific information and to promote interagency coordination as a means of improving the effectiveness of responses. Among other things, ACPs are a potential vehicle for identifying in advance spill scenarios that may damage areas that are environmentally sensitive or of special economic or cultural importance. ACPs can also pinpoint high-risk locations such as fixed facilities or pipelines. This can lead to developing response strategies that are effective in mitigating or preventing a substantial threat of discharge and ensuring that adequate resources (personnel, equipment, and supplies) are available for response to spills and releases with potential for serious environmental or other consequences.
A Facility Response Plan (FRP) demonstrates a facility’s preparedness to respond to a worst case oil discharge. Under the Clean Water Act,110 as amended by OPA 90, preparation and submission of FRPs are generally required for land-based facilities that store and use oil, and for pipelines and vessels transporting oil if spills from these entities can reasonably be expected to cause “substantial harm”111 to the environment, for example, by discharging oil into or on U.S. navigable waters.
Under the original terms of Presidential Executive Order 12777 issued in 1991,112 and subsequent updates, responsibility for spill response planning is divided among four agencies—the Pipeline and Hazardous Materials Safety Administration (PHMSA), the USEPA, the USCG, and the Bureau of Safety and Environmental Enforcement (BSEE):
- PHMSA has responsibility for overseeing preparation and approval of response plans for spills from onshore pipelines.
- USEPA reviews and approves response plans for spills from non-transportation-related onshore facilities.
- USCG performs these functions for vessels and onshore marine facilities.
- BSEE in the U.S. Department of Interior oversees spill response planning for offshore facilities.
Some facilities fall under the jurisdiction of two or more federal agencies and must meet multiple requirements. For example, a complex may have a transportation-related transfer area regulated by USCG, a pipeline regulated by PHMSA, and a non-transportation-related oil storage area regulated by USEPA.
Significantly, the allocation of responsibility for responding to oil spills is different from the allocation of responsibility to oversee response planning. Authority for cleanup and response actions for all onshore oil spills is shared by USEPA and USCG. USCG leads responses to spills in the coastal zones and the Great Lakes, whereas USEPA has the lead for inland oil spills. However, while overseeing planning for spills from pipelines, PHMSA plays no role in the response to such spills, for which USEPA and USCG are responsible.
The response planning requirements applicable to operators of onshore pipelines are set forth in PHMSA’s Part 194 regulations,113 adopted in 1993 following passage of OPA 90. Under these regulations, each response plan must include procedures and a list of resources for
responding to a Worst Case Discharge and to a substantial threat of such a discharge. To comply with this requirement, an operator is permitted to incorporate by reference into the response plan the appropriate procedures from its manual for operations, maintenance, and emergencies. Plans must be consistent with the NCP and the applicable ACP and must (i) determine the Worst Case Discharge for each of the operator’s response zones; (ii) provide procedures and a list of resources for responding to a Worst Case Discharge and a substantial threat of such a discharge; (iii) ensure, by contract or otherwise, the availability of equipment and other response resources sufficient to address a Worst Case Discharge within the specified time limits; (iv) identify environmentally and economically sensitive areas; (v) designate the qualified individuals responsible for implementing the plan within each response zone; (vi) describe responsibilities of the operator and of relevant agencies in the event of a discharge and in mitigating or preventing a substantial threat of a discharge; and (vii) establish procedures for testing of equipment, training, drills, and other measures to ensure that the plan will be effectively implemented in the event of a spill.
Under Part 194, response plans must be updated immediately to address new or different operating conditions or information and resubmitted to PHMSA within 30 days. In addition, most plans must be revised and resubmitted every 5 years.
As part of their integrity management programs under PHMSA’s Part 195 regulations,114 pipeline operators must determine if a release from a pipeline segment could impact high consequence areas (HCAs). Identification of HCAs for hazardous liquid pipelines focuses on populated areas, drinking water sources, and unusually sensitive ecological resources, defined as follows:
- Populated areas include both high-population areas (called “urbanized areas” by the U.S. Census Bureau) and other populated areas (referred to by the Census Bureau as a “designated place”).
- Drinking water sources include surface water or wells where a secondary source of water supply is not available. The land area in which spilled hazardous liquid could affect a water supply is also treated as an HCA.
- Unusually sensitive ecological areas include locations where critically imperiled species can be found, areas where multiple examples of federally listed threatened and endangered species are found, and areas where migratory waterbirds concentrate.
The purpose of identifying HCAs under Part 195 is to focus attention on pipeline maintenance, corrosion prevention, and other safeguards of
pipeline integrity in areas where spills could have high impacts. Identification of HCAs is not intended to strengthen spill response plans under Part 194 although it clearly has value in designating environmentally and economically sensitive areas during preparation of response plans.
There are a number of areas where the current regulatory framework is not effectively addressing the potential environmental impacts of spills of diluted bitumen. This section reviews these shortcomings and highlights opportunities for the responsible agencies to improve their policies and procedures.
Because spills have unpredictable consequences and each spill is unique, spill response plans are an important starting point for effective response actions but do not provide an exact step-by-step protocol for responding to any specific incident. Nonetheless, while midcourse corrections and adjustments are unavoidable after a spill occurs, a good response plan forces facilities to rigorously assess in advance where spills might occur and what response strategies and resources must be in place to maximize an effective response. A good response plan also provides a means for communication and joint decision making among all the relevant entities and affected members of the public in advance of and during response to a spill. This communication in turn enables informed and effective collaboration and timely public engagement when a spill occurs. For this reason, there is a focus not just on response plans in isolation but has examined the relationship between plans and other aspects of the planning and response process. Similarly, it has looked not only at the role of PHMSA but at the interactions of the key agencies within the federal response structure.
Roughly 400 pipeline response plans have been approved by PHMSA. The agency presently has approximately five members of its staff engaged in plan review, a more than doubling of its previous level. PHMSA’s review of response plans is conducted in its Washington, DC, headquarters, with little or no involvement by its field staff. USEPA and USCG, by contrast, generally review plans for facilities within their jurisdictions in their regional offices. This enables staff members with relevant, hands-on cleanup experience and familiarity with the environments of the region to advise their colleagues who are reviewing the plans. In some USEPA offices, On-Scene Coordinators (OSCs) actually conduct the reviews them-
selves. When this occurs, the involvement of field staff familiar with the pipelines or industrial facilities and with HCAs within a region makes it more likely that the plan will identify and anticipate the greatest threats resulting from a spill.
At PHMSA, the review of plans is focused on completeness, using the Part 194 regulations as a checklist to ensure that all necessary components are present. Assuming the plan is complete, PHMSA’s long-standing position is that it is legally obligated to approve the plan, and that it has no discretion to evaluate its likely adequacy and effectiveness or to recommend improvements. By contrast, USEPA and USCG review plans in two stages, the first focusing on completeness and the second on adequacy. As a result, reviewers from these agencies would be more likely to identify elements of a plan that may not be adequate when implemented for particular types of oils or in specific areas, and to request improvements.
Response plans submitted to PHMSA vary considerably in length and level of detail, based on the philosophy and goals of the particular pipeline operator. PHMSA takes no position on the length and detail of plans, providing they satisfy the minimum requirements of Part 194.
These aspects of the process at PHMSA make it unlikely that plans for pipelines that may transport diluted bitumen will be reviewed to assess whether they fully reflect planning needs relative to the properties of the diluted bitumen, the resources and expertise necessary to deal with spills of diluted bitumen, and the possible impacts of these spills on environmentally sensitive areas. A review process with a greater focus on adequacy and more interaction with regional response experts would create stronger incentives for plans to anticipate and include strategies for addressing the challenges posed by spills of diluted bitumen.
As noted above, unlike USEPA and USCG, PHMSA plays no role in coordinating or implementing actions taken in response to spills from pipelines. Thus, while PHMSA oversees development of plans and has some ability to enforce requirements pertaining to those plans, the measures actually necessary to address spills when they occur are outside its jurisdiction. This means that PHMSA is not in a position to bring to bear the lessons and experience from spill mitigation and response in its oversight and strengthening of planning. For example, PHMSA’s minimal presence in the response to the spill in Marshall, MI (Box 3-1), limited its opportunity to learn key lessons from USEPA OSCs and other responders who encountered unanticipated cleanup challenges presented by diluted bitumen and its weathered residues.
The Part 194 regulations allow, but do not require, PHMSA to consult with USEPA and USCG during the review of response plans.113 The normal practice is not to engage these other agencies during these reviews, although the Enbridge response plans were informally shared
with USEPA following the Marshall, MI spill. Routine involvement of USCG and USEPA personnel in reviews by PHMSA would increase the likelihood that plans realistically anticipate pipeline and area-specific challenges, including those presented uniquely by diluted bitumen.
Area Contingency Plans augment facility response plans by enabling responsible officials from the relevant federal agencies to prioritize the greatest threats resulting from spills and releases within the area. Additionally, they facilitate development of strategies and identification of resource needs for mitigating environmental impacts resulting from these events. While USEPA and USCG are actively involved in the ACP process, participation by PHMSA is more limited, reflecting its lack of a direct role in managing response activities as well as its constrained resources. When PHMSA does participate, it is typically represented by regional staff and not by the headquarters team responsible for review and approval of plans.
The ACP process provides a vehicle for focusing attention on the challenges associated with particular types of crude oil such as diluted bitumen, the ecosystems and resources at risk from spills of these products, and the adjustments in response strategies necessary to mitigate environmental impacts. However, ACPs could do more to take advantage of this opportunity. ACPs often include Geographic Response Plans that identify and prioritize sensitive areas for protection, and some of them include site-specific protection strategies. However, nearly all of these plans were developed to respond to floating oil, and many have not been updated for years.115 Because of the increased risks to water-column and benthic resources, there is a need to revise these plans to address spills of oils that have the potential to submerge or sink.
Under Part 194, plans must identify environmentally sensitive areas that could be affected by a pipeline spill.113 PHMSA does not examine the completeness of this portion of a plan. The identification of such areas could point to water bodies and related ecosystems where the potential for diluted bitumen or its residues to sink and attach to sediments would be greatest and could also describe the related ecological consequences and cleanup challenges. A second concern is whether pipeline operators fully integrate HCAs (declared under Part 195 integrity management programs) with the description of sensitive areas in Part 194 plans, and whether either set of regulations is focusing attention on the specific risks posed to HCAs by different types of crude oils. Fuller collaboration between PHMSA and other agencies through the ACP process would pro-
vide the input to PHMSA and pipeline operators necessary to strengthen and focus these elements of response plans.
The Part 194 regulations require response plans to specify the type of oil transported by the pipeline.113 In practice, however, operators generally meet this requirement by a generic description such as “crude oil” and PHMSA does not request greater specificity. Thus, the response plan will not indicate whether the pipeline is handling diluted bitumen and, if so, the source of the bitumen, the nature of the diluent, and physical properties such as density and viscosity. Such information is of great and immediate value to the response team addressing a spill. In the initial days of the diluted bitumen spill in Marshall, MI, confusion about the nature of the crude spilled and its relevant properties delayed an effective response because the team did not foresee the consequences of weathering and the resulting potential for residues of the diluted bitumen to submerge.
In addition to the response plan itself, the Safety Data Sheet (SDS) submitted by the pipeline operator is potentially a vehicle for identifying the type of crude oil and its properties. In conjunction with the plan and other information sources, a detailed SDS containing the pertinent information would assist responders setting near-term priorities directly following a spill of diluted bitumen. It would also assist the public in understanding the nature and consequences of the spill. The Part 194 regulations recommend but do not require that response plans include SDSs for the crude oil being transported by the pipeline section.113 As a result, the adequacy of the SDS is not a required focus of the plan approval process by PHMSA and, in some cases, the agency may never receive the operator’s SDS. SDSs found in pipeline spill response plans are typically generic and do not identify and differentiate specific crude oils and their properties. At present, however, there is no mechanism at PHMSA to require more informative SDSs.
Accurate and specific information identifying the product being transported and its properties must be readily available to responders and affected members of the public at the time of a spill. A more detailed response plan and SDS, along with additional steps to provide analytical data for the crude as soon as possible after the spill occurs, can help meet this need.
Relative to the PHMSA Part 194 process, the USCG plan-review framework is more focused on differentiating between types of crude oil.114 USCG requires vessel operators to classify the crudes they are
transporting based on gradations defined by specific gravity. Under this scheme, crude oils are assigned to one of five groups. Group II-IV oils are generally positively buoyant; Group V covers oils that are generally negatively buoyant (specific gravity equal to or greater than 1.0). The status of diluted bitumen under this scheme is ambiguous because as transported its specific gravity is below 1.0 but, after weathering, its specific gravity could approach or increase above this level. USCG is considering whether adjustments should be made to its classification system to more precisely address diluted bitumen. The present system is imperfect but provides a better mechanism for identifying the type of crude being transported than the generic descriptor used in plans submitted to PHMSA. If improved, the Coast Guard system might be adopted by PHMSA and other agencies as a uniform approach for classifying crude oils for spill response and planning purposes.
The USCG classification system plays an important role in its system for certifying Oil Spill Removal Organizations (OSROs), who contract with pipeline or facility operators to provide response resources and expertise on their behalf in the event of a spill. USCG certifies OSROs based on a policy document called the OSRO Classification Guidelines.116 Certification is voluntary under the OSRO Classification Guidelines but OSROs often seek certification because reliance on a certified OSRO streamlines the level of detail required in response plans. The intent of the OSRO Classification Guidelines is to assess the OSRO’s capabilities based on the type of oil it expects to address during a spill. Although USCG recognizes that floating and nonfloating oils (based on API gravity) require different equipment, the currently used (2013) OSRO Classification Guidelines do not specify the different response resources necessary to respond to nonfloating oils that may become nonfloating during weathering, nor do they address diluted bitumen specifically.i
The Part 194 regulations allow pipeline operators to designate OSROs certified under the USCG OSRO Classification Guidelines to carry out response activities on their behalf. In practice, however, PHMSA does not review the OSRO’s qualifications and capabilities beyond confirming that it has been certified by USCG for “Worst Case Discharge-1, Rivers and Streams.” As a result, there is no independent inquiry into whether the OSRO has the expertise and resources to handle particular types of crudes such as diluted bitumen. If PHMSA instituted a qualitative plan
i As of the finalization of this report, the USCG is currently working on a classification for potentially nonfloating oils (Group IV) to include in the next release of its OSRO Guidelines.
review process instead of its present checklist approach, it would be able to confirm that the OSRO is in fact qualified for cleanups of the specific crude being transported by the pipeline. This would be helpful to ensure that, through the OSRO or otherwise, the pipeline operator has put in place response resources that are adequate to address spills of nonfloating oils such as diluted bitumen.
The combination of improved OSRO Classification Guidelines, greater specificity in identifying crudes oils in PHMSA-required plans, and more review of the adequacy of these plans could lead to a closer examination of the qualifications of OSROs identified in those plans to address unique characteristics of crude oils like diluted bitumen.
The Part 194 regulations provide for updating of response plans at 5-year intervals and within 30 days where necessary to address new or different operating conditions or information. Following PHMSA’s renewed enforcement authority in their 2011 reauthorization bill and in the aftermath of the Marshall, MI spill, PHMSA reviewed all response plans between 2012 and 2014. Based on the currently used review protocol, only a handful of the more than 400 plans required substantial revisions. In hindsight, this would have been a useful opportunity to require pipelines transporting diluted bitumen to strengthen their plans. Present response plans dealing with aquatic environments focus on floating oil and do not address residues that submerge or sink. Updated plans could incorporate new technologies and methods, or faster response times, which are important for efficient response to spills of diluted bitumen.
An important element of spill preparedness is announced and unannounced “exercising” of response plans to determine how well they work in practice and to identify vulnerabilities and opportunities for improvement. It does not appear that these exercises (which involve to varying degrees USEPA, USCG, and PHMSA) have systematically simulated the unique challenges presented by spills of diluted bitumen. Announced and unannounced plan exercises need to devote greater attention to scenarios involving spills of diluted bitumen in order to increase readiness and capability to respond to diluted bitumen spills.
The current system for response planning, preparedness, and mitigation is geared to the properties, behavior in the environment, and response challenges of commonly transported light and medium crude oils. Thus, the focus is on preparing for spills of oil that float on the surface. Spills of diluted bitumen raise different issues because of the greater density that the product acquires as the diluent evaporates. This leads to the potential, depending on environmental conditions, for the diluted bitumen residues to aggregate with particles in the water column and submerge or sink to the bottom of the water body. Different strategies, expertise, and response capabilities are needed to effectively address this spill scenario. However, the current relevant U.S. regulations and agency practices do not capture the unique properties of diluted bitumen or encourage effective planning for spills of that product.
The PHMSA Part 194 regulations are critical to the preparation of thoughtful and effective response plans but, in their current form, do not focus pipeline operators on the properties of diluted bitumen and the associated response challenges or provide the information necessary for responders to address spills of diluted bitumen. Shortcomings of the regulations include the absence of any requirement to identify the type of crude oil being transported and its properties, to describe how ecologically sensitive areas might be impacted by spills of diluted bitumen, and to demonstrate that response strategies, resources, and capabilities are in place for effective responses to spills of diluted bitumen.
These weaknesses are compounded by PHMSA’s reliance simply on a checklist approach to review plans, in contrast to focusing on the adequacy and effectiveness of plans, as is the case with reviews by USCG and USEPA. PHMSA also does not regularly consult with these agencies during plan reviews, despite their hands-on experience with spill response and knowledge of local conditions that could contribute to informed judgments about the adequacy of a plan. PHMSA has further been slow to require updates of plans, thus missing an opportunity for incorporating new information about the properties and environmental behavior of diluted bitumen in plans and enhancing their effectiveness.
The response plan is only one element in the overall federal system of preparedness and response. Other aspects of this system also need to address for the challenges imposed by diluted bitumen and to improve readiness. For example, a greater focus on diluted bitumen in area contingency planning, with PHMSA playing a more active role in the process, may help address this challenge. In addition, a uniform nomenclature system used by all agencies would help in the differentiation of diluted bitumen from other crudes.