FAQ

18 AAC 75, Article 4 Updated Provisions Frequently Asked Questions on Implementation

We also recommend you watch the training videos posted on the Article 4 Project Implementation webpage. The training videos may offer greater depth and detail and cover additional topics.

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When are the Article 4 updated provisions effective?

The regulation is effective on February 5, 2023. A transition period with delayed implementation for specific requirements is detailed in a new section, 18 AAC 75.402. Questions concerning the transition period are addressed below, and additional information is available in our training video 2023 Article 4 Regulations Update “Implementation Timeline: Transition provision at 18 AAC 75.402” linked to this webpage

Provisions not included in section 18 AAC 75.402 do not have delayed implementation periods. They are effective on February 5, 2022. Some examples include:

ODPCP Notifications ListServ notifications for minor amendments under 18 AAC 75.408(d)(3) and 18 AAC 75.415(h).
Oil Discharge Prevention and Contingency Plan content and approval criteria have been combined to minimize confusion and ensure clarity for plan applicants and plan reviewers.
Routine plan updates must be submitted not later than 10 working days (formerly 5 days) under 18 AAC 75.415(b)
Review procedure for determining whether an amendment is submitted as minor will be reviewed as major under 18 AAC 75.415(f)
New procedures for amendments to add an aboveground storage tank with a 10,000 gallon or greater capacity under 18 AAC 75.415(i)
Option to suspend the requirement to submit a monthly log when no fuel transfer operations will occur under 18 AAC 75.465(b)
Updated provisions in 18 AAC 75.480
Updated exercise requirements in 18 AAC 75.485

What has changed since the November 1, 2021 public notice version?

The regulation has been modified since the public notice version dated November 1, 2022.

Changes are in response to public comments, input from the Department of Law, and work with subject matter experts from SPAR staff. Most of the revisions reflect improved clarity, better technical writing, removal of unintended duplications, and improved structure. See the Response to Public Comment Summary available on this page.

In response to public comments, there are several important revisions in the Article 4 update, including:

Added a new section, 18 AAC 75.402, that outlines a 180-day transition phase to ensure recent plan applications and applications submitted during the transition phase are subject to content and review requirements based on the application submittal date. See below “When do I have to update my plan?” for additional explanation;
Added a provision that applicants may submit their plan applications at any point after they have completed the consultation with the department required in 18 AAC 75.405(b);
Retained the current requirements for who may sign a plan application under 18 AAC 75.408(b) instead of the proposed change;
Removed the requirement for exploration and production facilities to have their Well Blowout Contingency Plans approved by the Alaska Oil and Gas Conservation Commission;
Adopted the Wildlife Protection Guidelines for Oil Spill Response in Alaska by reference;
Clarified documents that must be available for inspection at regulated facilities;
Removed the requirement for oil terminal facilities to maintain verification logs for five years;

When do I have to update my plan? How does the transition period work?

18 AAC 75.402 – Outlines Delayed Implementation Dates for Some Plan Applications and Content Requirements.The purpose of this new section is to codify delayed implementation dates to ensure plan applicants and current plan holders have sufficient time to comply with the revised regulatory provisions. The following questions and answers address common questions.

What if I submitted my plan application before the new regulations are effective? Do I have to resubmit it? Can it be “grandfathered” in?

All plan applications currently in review or submitted before February 5, 2023, will be reviewed under the current regulations in Article 4, the regulations that are effective on February 4, 2023. You do not need to resubmit your application.

How will DEC manage applications for new plan, plan renewal, and major amendment applications submitted between February 5, 2023 – August 3, 2023?

New plan, plan renewal, and major amendment applications submitted from February 5, 2023 through August 3, 2023 (the transition period) will be reviewed under current regulations, i.e., the regulations that are effective on February 4, 2023. During this period, plan applicants may instead request that the department review their applications under the new regulations – i.e., the regulations in effect on and after February 5, 2023. If a plan application is reviewed under the new regulation, it must comply with all provisions of the update.

How will DEC manage applications for minor amendments, routine updates, or amendments to add vessels to approved plans?

There is no delayed effective date for minor amendments, routine updates, or vessel additions to approved plans. All minor amendments, routine updates, and vessel addition amendments submitted on or after February 5, 2023, must comply with the provisions of the updated Article 4 requirements.

How will DEC manage plan applications starting on August 4, after the delayed effective date provisions?

All plan applications of any type submitted on or after August 4, 2023, must be in full compliance with the Article 4 regulations that are effective on February 5, 2023.

I know there are new or different requirements for some parts of my approved plan. Do I need to submit a plan amendment to comply with updated Article 4 provisions before my scheduled plan renewal date?

If your plan is approved before February 5, 2023, or if your new or renewal plan application is submitted prior to August 4, 2023, you do not need to submit amendments to comply with specific provisions of Article 4 until the expiration date on the plan approval certificate. These specific provisions are detailed in 18 AAC 75.402(d)(2) as follows:

These specific provisions are detailed in 18 AAC 75.402(d)(2) as follows:

18 AAC 75.402(d)(2)(A). For plan holders that intend to request permission to decant during a real spill event, procedures for decanting [18 AAC 75.449(a)(6)(L)]
18 AAC 75.402(d)(2)(B). For all plan holders, wildlife protection, recovery, disposal, rehabilitation, and release procedures and methods that demonstrate the best practices and recommendations from the Alaska Regional Response Team Wildlife Protection Guidelines for Oil Spill Response in Alaska. [18 AAC 75.449(a)(6)(M)]
18 AAC 75.402(d)(2)(C). For plans that proposed to use nonmechanical response options, inclusion of specific procedures, methods, and resources to protect environmentally sensitive areas and areas of public concern and to protect the public from adverse effects of the response option. [18 AAC 75.449(a)(8)(D)]
18 AAC 75.402(d)(2)(D). Include representation of distance and gradients to surface waters for regulated land-based operations. [18 AAC 75.449(a)(9)(B)]
18 AAC 75.402(d)(2)(E). Locate the currently required general procedures for responding to the greatest possible discharge that could occur at the regulated facility immediately following the response planning standard scenario(s) required to be included in Part 1 of the plan. [18 AAC 75.449(a)(10)]
18 AAC 75.402(d)(2)(F). For oil terminal, exploration, and production facility plans, add piping diagrams showing all facility oil piping, including location of valves. [18 AAC 75,451(b)(7)]
18 AAC 75.402(d)(2)(G). For a transmission pipeline, add a pipeline diagram that includes the location of all mainline valves, pumping units, and other appurtenances connected to the pipeline. [18 AAC 75.451(b)(8)]
18 AAC 75.402(d)(2)(H). Incorporate the new effective daily oil recovery capacity formula for each skimming system as outlined in 18 AAC 75.451(h)(3).
18 AAC 75.402(d)(2)(I). Use the formula in 18 AAC 75.451(h)(4)(B) to determine the necessary temporary storage capacity. Note, the regulation at 18 AAC 75.402(d)(2)(I) contains a technical error that refers to 18 AAC 75.451(h)(4)(A). The correct reference is 18 AAC 75.451(h)(4)(B).
18 AAC 75.402(d)(2)(J). Include the estimate of the percentage of the applicable response planning standard that will reach open water in Section 5 of the plan. [18 AAC 75.453(3)]

What if I want my plan to be reviewed under the revised regulations, even if I submit it during the 180-day transition timeframe?

Let department staff know you would like to have your plan application reviewed under the revised regulations, and we will do so.

My proof of financial responsibility application is under a different applicant name than my plan application. How long do I have to comply with the new requirement for the applications to be submitted by the same person?

Applicants must comply with new regulations under 18 AAC 75.400(j) not later than February 4, 2024.

I have an approved vessel plan, but my application is not made by the person with primary operational control of the vessel as defined in the new regulation at 18 AAC 75.990(203). How long do I have to revise the application to comply with 18 AAC 75.400(a)(2)?

If a vessel application for an approved plan was not made by the person with primary operational control as defined in the new definition at 18 AAC 75.990(203), the application must be revised to comply with new regulations under 18 AAC 75.400(a)(2) not later than February 4, 2024.

If I have multiple facilities covered in my plan, do the provisions in 18 AAC 75.485 require an operations-based exercise for each facility every plan cycle?

For ODPCPs, no. The provisions under 18 AAC 75.485 are for each approved plan, not for each facility in the plan. The requirement is for each plan, not for each covered facility under a single plan.

For Streamlined Plans, yes. The provisions under 18 AAC 75.485 are for each noncrude oil tank vessel of barge with a streamlined plan. The requirement is for each vessel, regardless of how many noncrude oil tank vessels or barges are included in the approved Streamlined Plan.

18 AAC 75.485 does not include exercise requirements for Nontank Vessels. Exercise requirements for Nontank Vessels are covered under 18 AAC 75, Article 5, and they have not changed.

What vessels are affected by the amendment at 18 AAC 75.432(b), which states "For vessels operating as oil terminal facilities, the response planning standard is based on the entire storage capacity of the vessel?"

Vessels operating as oil terminal facilities are those vessels that are classified a vessel operating as an oil terminal facility under 18 AAC 75.280. This applies specifically to vessels < 400 GRT that conduct ship-to-ship transfers in state waters. Nontank vessels that have a total capacity greater than oil terminal facility exemption levels under AS 46.04.050 and conduct ship-to-ship transfers should request classification as an oil terminal facility under 18 AAC 75.280. 18 AAC 75.432(b) does not apply to regulated tank vessels and regulated oil barges that operate under an approved oil discharge prevention and contingency plan.

If I need to submit a major amendment to comply with one of the ten provisions identified in 18 AAC 75.402(d)(2) (see FAQ #8) to accommodate operational needs prior to my plan renewal date, am I required to update all of the other listed provisions at the same time?

No, if a plan holder chooses to update one of the provisions identified in 18 AAC 75.402(d)(2), it is not necessary to amend the plan for all ten provisions as part of the same amendment package. The rest may be deferred until the scheduled plan renewal submitted on or after August 4, 2023, unless operational needs require additional amendments prior to renewal. However, if a related provision is impacted by the amendment, it should be updated concurrently.

Please clarify if all plan applications submitted on or after August 4, 2023 must comply with regulations that are effective on February 5, 2023 – New plan, plan renewal, major amendment, minor amendment, and routine update applications.

That is correct. The application submission date determines whether the plan holder must follow the regulations effective on February 4, 2023, or those effective on February 5, 2023. For example:

No matter what type of application is submitted or after August 4, 2023, the application package must be fully compliant with the regulations that are effective on February 5, 2023.
If a major plan amendment application is submitted on or after August 4, 2023, the content of the amendment must be compliant with the updated regulations.
It is not necessary to update the components of the approved ODPCP identified in 18 AAC 75.402(d)(2) until the plan’s scheduled renewal application submission or when operational changes necessitate further amendments prior to renewal.

If, for example, a plan holder submits a minor amendment application to add a regulated 15,000 tank to an ODPCP after February 5, 2023, does the amendment need to include information on all 1,000 gallon – 10,000 gallon oil tanks as well?

The regulation at 18 AAC 75.451(b)(2) – a new regulation – requires plan holders to include certain information on each oil storage tank with a storage capacity of 1,000 gallons and greater but equal to or less than 10,000 gallons. The information required by this regulation has been required to be in an oil discharge prevention and contingency plan since Guidance OPC 92-6 was published on April 16, 1992. Since December 2016, it has also been included in the Oil Discharge Prevention and Contingency Plan Application Package and Review Guidance Document. The information should be in all currently approved ODPCPs that have tanks of that size range at a regulated facility. Now that the requirement has been incorporated into regulation, Guidance OPC 92-6 will be rescinded.

In this example, while you are adding a regulated tank to the plan, it is a really good time to also add the required information about storage tanks that should have been in the plan when it was approved. Adding the information on tanks with capacity between 1,000 gallons and 10,000 gallons currently located at a regulated facility would not meet the criteria for a major amendment. Note, these tanks should have already been included in the facility storage capacity determination (18 AAC 75.990).

I want to submit a plan renewal application before 8/4/2023, and I want DEC to use the plan content requirements in regulations effective on 2/4/2023. I also want DEC to use the application and review timelines and processes in the regulations that are effective on 2/5/2023. Is that okay?

No. If a plan holder submits a plan renewal application before August 4, 2023, the department will review it under regulations in effect on February 4, 2023. The content requirements and review process will be under the regulations in effect on February 4, 2023. If the applicant wants the plan renewal application to be reviewed using the regulations in effect on February 5, 2023, the renewal application package must comply with all content requirements of the regulations in effect on February 5, 2023.

I applied for and obtained an alternate skimmer efficiency rating from DEC in the past. Is that approval still valid? Do I need to apply for it again? My response strategies and tactics that the skimmer efficiency rating was granted for have not changed.

If you submitted an ADEC Request for Skimmer System Efficiency Evaluation, and the department observed the associated tests and issued an approval for a skimmer system, the approval stands. You do not need to reapply for an identical skimmer system efficiency evaluation for each plan renewal cycle. However, please note:

Approvals are granted for specific skimmer systems. If components of the skimmer system have changed since the approval was issued, you must request a new evaluation as required under 18 AAC 75.451(h)(4)(B)(iii). The evaluation should be done when the system changes, not when the oil discharge prevention and contingency plan renewal application is submitted.
An approval is limited to the system specified in your approval letter, and the approval does not cover other skimmer systems, including systems where the same skimmer is used in a different system configuration that was not specified in the approval letter.

Question about 18 AAC 75.451(d), which requires contact information for command system personnel to be included in the plan: I am preparing the detailed personnel contact information required by 18 AAC 75.451(d). Which position information can go into a separate document and which information must be in Part 3 of the ODPCP?

The regulation at 18 AAC 75.451(d) requires that detailed personnel contact information for the Qualified Individual(s) be located in the ODPCP. Contact information for personnel filling the other command system roles and persons responsible for making spill notifications may be included in a separate document.

Question about 18 AAC 75.451(d), which requires contact information for command system personnel to be included in the plan: I would like to include detailed personnel contact information only for the incident command system leaders and the person that makes spill notifications. Is that okay?

No, that is not adequate. Regulations at 18 AAC 75.451(d) state contact information is required for “persons filling positions in the command system.” Personnel contact information is not limited to Section Chiefs and key command positions. The requirement includes all personnel assigned to positions in the command system, including all section personnel and unit personnel for the 48 or 72-hour RPS scenario timeline, as applicable. Detailed contact information for personnel responsible for making spill notifications under 18 AAC 75.449(a)(2) must also be listed in the ODPCP or the separate personnel contact document. Likewise, contact information for each government agency contact (state, federal, local) that must be notified when a discharge occurs, and for groups that will potentially be impacted by the plan RPS scenario, must be included in the ODPCP or in the separate contact information document. Please note, if your RPS scenario includes 24-hour operations, you will need to include names and contact information for all personnel that will fill command system positions for each operational cycle.

Question about 18 AAC 75.451(d), which requires contact information for command system personnel to be included in the plan: For 18 AAC 75.451(b), what is “detailed contact information?”

“Detailed contact information” is information that is reasonably necessary for 24-hour contact, such the means of contacting a responder during working hours and a home phone number or a 24-hour cell phone number. Personnel should also be identified by company affiliation, whether the plan holder, primary response action contactor, incident management team contractor or other support contractor.

Question about 18 AAC 75.451(d), which requires contact information for command system personnel to be included in the plan: Regulations at 18 AAC 75.451(d) say that personnel contact information for command system personnel and spill notification personnel must be maintained and updated in real time. It also says I have to provide an updated document to the department on a quarterly basis. Which is it?

All plan holders are responsible for maintaining accurate and updated contact information for command system personnel and spill notification personnel in real time. However, to reduce paperwork burden, the regulation allows the plan holder to provide updated personnel contact information to the department (in the plan or in a separate document as noted in the first question on this topic) on a at least a quarterly basis if changes occur (rather than every time a change occurs). An exception is that changes in Qualified Individuals or their contact information must be revised in the ODPCP via routine update [18 AAC 75.415(c)] within 10 working days of the change.

I have questions about 18 AAC 75.449(a)(10), which requires the plan to include general procedures to be followed in responding to the greatest possible discharge that could occur at the immediately following the response planning standard scenario(s).

Requirements related to “greatest possible discharge” are located at 18 AAC 75.430(a), 448(b), 449(a)(10), 451(l). 402(d)(2)(E) specifies a delayed implementation timeline for the requirement to locate the information specified in 449(a)(10) directly after the scenarios. FAQs#24-28 have more information about this requirement.

About 18 AAC 75.449(a)(10): Is this requirement new?

The requirement to plan for the greatest possible discharge is not new. The requirement at 18 AAC 75.430(a) that “Notwithstanding the response planning standards set out in 18 AAC 75.430 - 18 AAC 75.442, the plan must demonstrate the general procedures to clean up a discharge of any size, including the greatest possible discharge that could occur, subject to the provisions of AS 46.04.020 and AS 46.09.020.” has not changed. The requirement at 449(a)(10) for the plan to include general procedures to respond to a “greatest possible discharge” was formerly found 18 AAC 75.445(b), where it was phrased as “maximum possible discharge”. For clarity and consistency with the language used in 18 AAC 75.430, the phrase “maximum possible discharge” was changed to “greatest possible discharge.”

About 18 AAC 75.449(a)(10): Is “greatest possible discharge” defined? Is it related to the RPS?

The department has chosen not to define “greatest possible discharge.” “Greatest possible discharge” should be interpreted as plain language and will be dependent on local factors at each facility. It is also distinct from the realistic maximum oil discharge (RMOD) defined at AS 46.04.030(r)(3) and from “response planning standard volume.” General procedures for responding to the greatest possible discharge volume should not be confused with the specific response scenario requirements.

About 18 AAC 75.449(a)(10): Does this mean that I need to more response resources? Do I need to change my scenarios?

No, this requirement should not be part of the scenarios that address response to a spill of the RPS volume. There is no additional equipment required; 449(a)(10) only requires a description of general procedures, and 451(l) requires a list of resources in addition to those maintained by the plan holder or available under contract to meet the applicable response planning standard for that facility or operation, that may be used in responding to the greatest possible discharge. These may, for example, include resources located out-of-state, or available through mutual aid agreements with other organizations.

About 18 AAC 75.449(a)(10): How do I make sure my plan meets this requirement? Can you give me an example of how to include this in my plan?

The regulation does not specify the format for the requirement at 18 AAC 75.449(a)(10); it should be a format that makes sense for your facility. The department suggests plan holders consider plausible catastrophic causes of releases, such as (but not limited to) earthquakes, vessel allisions or groundings, landslides, lahars, or storm events. A reasonable length for this section is expected to be a page or two that describes the release and the general procedures for response. It should focus on procedures and resources beyond those described in the scenarios.

About 18 AAC 75.449(a)(10): Is this the same as the federal requirement to plan for a “worst case discharge”?

The federal requirement to plan for a “worst case discharge” is limited by the definition of “worst case discharge” given in the federal regulation. Events described under this definition may not be the maximum possible discharge; the department encourages the plan applicant to think broadly about realistic events that may cause a “greatest possible discharge”. If the plan applicant believes the “worst case discharge” is also representative of the greatest possible discharge and wishes to use plan content relating to the “worst case discharge” to satisfy the requirements to satisfy the requirement at 449(a)(10), this must be made clear in the plan.

Does the facility oil piping diagram required by 18 AAC 75.451 need to include facility oil piping that has been removed from service under 18 AAC 75.080(o)?

No. facility oil piping removed from service by meeting the requirements under 18 AAC 75.080(o) is not included in the facility oil piping diagram.

Does all piping at a facility have to be included in the piping diagram required under 18 AAC 75.451(b)(7)?

No, only facility oil piping is required to be included in the facility oil piping diagram required under 18 AAC 75.451(b)(7). “Facility oil piping” is defined in regulation at 18 AAC 75.990, and it is a subset of all the piping that may be present at a regulated facility.

How should a facility oil piping diagram look? Does it mean a full set of as-built construction drawings? Require a registered engineer stamp? Does it need to be to scale? Can it be a hand-written “back of the napkin” sketch?

A facility oil piping diagram is a diagram that clearly shows the origination and termination of facility oil piping in a schematic format. The diagram will show facility oil piping and each valve location using standard valve and flow direction symbols. The facility oil piping diagram is not an as-built drawing. A stamp by a registered engineer is not required. The diagram is not required to be to scale. Examples of facility oil piping diagrams that most plan holders already have available include: the inspection isometric drawing of piping circuits that is recommended as part of an API Standard 570 inspection report or a Piping and Instrumentation Diagram (P&ID) or a standard piping diagram or schematic used by facilities to ensure all facility oil piping segments are included in the required inspection and maintenance program in 18 AAC 75.080((j). If a facility does not have this information already included in their records for compliance with 18 AAC 75.080 maintenance and inspection requirements, it can readily be developed using commonly available word processing software or other drawing tool software that allows creation of simple diagrams. Facility oil piping diagrams may not be hand-written “back of the napkin” sketches.

I believe the facility oil piping diagrams for my regulated facility will create a security risk if they are made public. How can this concern be addressed so that we achieve compliance with the requirements in 18 AAC 75.451(b)(7) and ensure facility security?

In Alaska, state records are open to inspection by the public. There is a statutory exception in the state’s public records law at AS 40.25.120(a)(10) for records that concern security planning. A plan applicant should consider the entirety of AS 40.25.120(a)(10) to determine whether it is reasonable to consider the facility oil piping diagram, or part of it, will be eligible for exemption from the public records rules. If a request is made to redact a portion of a public oil discharge prevention and contingency plan, the department will review the request and make a determination on redaction prior to initiating a public review of the material or, if the material subject to the request is for a minor plan amendment, prior to distributing or publishing the minor amendment on the department website. Please note that many current oil discharge prevention and contingency plans contain facility oil piping diagrams without exception under public records statutes.

I want to amend my plan to add an aboveground oil storage tank to be used on a temporary basis under the new provision at 18 AAC 75.415(i). What do I need to include in my application?

The plan must include the information required by 18 AAC 75.451(b)(1) and (5), which includes information about the tank and a description of procedures for transferring oil. The applicant must also provide information that demonstrates that applicable requirements in 18 AAC 75.066 and 18 AAC 75.075 have been met. Finally, the applicant must provide the dates during which the tank is to be located at the facility (and is not out of service). If the tank is to be located at the facility for 12 or more consecutive months, the plan holder may not add the tank under the provision at 18 AAC 75.415(i); the plan holder must instead amend their plan to include the tank on a non-temporary basis. As a reminder, “temporary basis” is defined in 18 AAC 75.489.

There is a citation error in 18 AAC 75.451(h)(2)?

The regulation should read: “…within a 24-hour period unless an analysis conducted under (4)(B)(iii) of this subsection demonstrates that another effective daily oil recovery capacity is appropriate;…”. This clause is referring to the process for obtaining department approval of alternate skimmer oil efficiency rates, as described under 18 AAC 75.451(h)(4)(B)(iii). The incorrect citation, “(4)(C) of this subsection,” does not exist. The department is working to correct this error.

Can a BSEE or other federal government initiated unannounced exercises (GIUE) count as a DEC 485 exercise?

Yes

Federal GIUE’s most seamlessly fit under the DEC 485(b)(1)(B) category of exercise for the 1 exercise DEC may call annually in addition to the new 485 (b)(1)(A) minimum requirement. Requirements for a GIUE to count as a 485(b)(1)(B) exercise include:
- That the exercise be operations-based
- DEC’s participation in the planning and evaluation of the exercise
- Exercise follows the procedures described in the DEC’s Exercise Manual
Federal GIUE’s may also count under the DEC 485(b)(1)(A) category of exercise for the new minimum requirement of 1 exercise in each 5-year plan approval cycle. The 485(b)(1)(A) exercise is to be conducted by the plan holder in coordination with the department. Requirements for a federal GIUE to count as a 485(b)(1)(A) exercise include:
- Plan holder agreeing to a GIUE approach for meeting their 485(b)(1)(A) requirement
- Since it’s an unannounced exercise, the exercise would require a trusted agent from the plan holder to participate in the planning and evaluation of the exercise
- The federal government agency conducting the GIUE, would have to agree to allowing a trusted agent from the plan holder to participate in the planning and evaluation of the exercise
- And as is standard for all 485 exercises: The exercise would need to be:
  - Operations-based
  - Include DEC’s participation in planning and evaluation
  - Follow the procedures in DEC’s exercise manual