Oil Discharge Prevention and Contingency Plan Regulations Update: Frequently Asked Questions

These are questions from the public and the department’s responses. Questions received 10 days or more before the public comment period closes will be responded to and posted on this webpage.

Substantially similar questions have been and will be aggregated:

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Why is this change being proposed?

The goals of the proposed regulation changes are to ensure alignment with statutory authorities for Oil Discharge Prevention and Contingency Plans under AS 46.04, streamline and clarify regulations, and reduce time and cost burdens for applicants without compromising environmental protection.
These changes are based on input received from Public Scoping in 2019 and 2020 and on department staff recommendations on regulations that are unclear or inconsistently applied.
Communication methods, records requirements, requirements for submitting plans, and public notice requirements have been modernized to reflect current technology.
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.
Where appropriate, the department has incorporated guidance document direction into the regulations to minimize the need for policy documents outside of regulation.
Editorial changes were made to reflect current regulations drafting standards.

How many existing plans will this proposal affect?

There are 131 active contingency plans as of October 20, 2021, representing approximately 77 plan holders, excluding Nontank Vessel plans. All plan holders except Nontank Vessel plan holders will be affected.

Would additional operators who do not currently have a plan be required to apply for one?

The proposed regulation changes do not add new classes of regulated facilities.

Will comments submitted on the proposed regulations be available for anyone to read?

Yes, the full contents of all submitted comments are considered public records and will be posted online in full in near real-time during the public comment period.

What is an “operations-based exercise” in 18 AAC 75.485?

We have defined “operations-based exercise” on page 11 of the department’s Oil Spill Response Exercise Guidance, implemented in 2018 and available at Manuals and Guidance Documents. We have proposed to adopt by reference an updated version of this document, retitled Oil Spill Response Exercise Manual, as part of this regulations update, available for review on the project page Oil Discharge Prevention and Contingency Plan Regulations Update. The definition of operations-based exercises is not changed.

Is this a current requirement in 18 AAC 75.485 for exercises?

Currently, 18 AAC 75.485 oil discharge exercises are expected to be operations-based. The proposed regulations maintain this requirement.

Are the exercises referenced in 18 AAC 75.485(a)(1)(A) and (B) different?

The department does not intend to draw a distinction between the type of exercises in 18 AAC 75.485(a)(1)(A) and 18 AAC 75.485(a)(1)(B). We welcome your comments.

Will the number and frequency of oil discharge exercises for each plan holder change based on the proposed changes to 18 AAC 75.485?

There is currently no minimum number of oil discharge exercises required for plan holders. The proposed regulations establish a minimum frequency for operations-based exercises for all plan holders. Streamlined plan holders will be required to conduct and self-certify one operations-based exercise each year. For all other plan holders, ADEC will conduct a minimum of one operations-based exercise within each 5-year period. ADEC may conduct one additional operations-based exercise for all plan holders each year. If a plan holder does not adequately execute the plan during a required exercise, ADEC may conduct additional exercises. The proposed regulations do not restrict the number or type of exercises that a plan holder may conduct in addition to the proposed minimums. We welcome your comments.

What do the style and font changes in the proposed amendment mean?

The style and capitalization differences in the text show where regulatory changes are proposed. Please see pages 1-2 of the 18 AAC 75 – Oil and Other Hazardous Substances Pollution Control Proposed Regulation Amendments for an explanation of the regulatory numbering system and an explanation of how changes are highlighted. Oil Discharge Prevention and Contingency Plan Regulations Update

An expanded description of the way current, proposed, removed, or new regulatory language follows here:

Bolded and underlined text is for new language proposed for Article 4.
[TEXT IN BRACKETS] shows text that that will be removed from Article 4.
When entire sections, subsections, paragraphs, or sub-paragraphs are proposed to be repealed, the lead-in line states the citation and “repealed.” In most cases, this lead-in line is followed by the repealed text in [BRACKETS].
If a section, subsection, paragraph, or subparagraph is proposed to be repealed and readopted, the lead-in line reads “repealed and readopted to read.” The proposed readopted text follows in standard text regulatory format; it is neither bolded nor underlined. Again, the repealed text follows in [BRACKETS].
Sections, subsections, paragraphs or subparagraphs are “repealed and readopted” when the requirements for the same subject are modified or the structure and flow of the proposed changes would make it difficult to follow the text using the standard bold underline and [BRACKET] format.
For this proposed amendment, the only time repealed sections are not captured in [BRACKETS] is when the sections are very lengthy and would make it difficult to identify where modifications have been proposed in new sections.
When the changes to a section, subsection, paragraph, or subparagraph extend beyond the current subject matter, a new unique section, subsection, paragraph, or subparagraph number is required. Old citation numbers may not be reused.

How can I tell what has changed in 18 AAC 74.425, Oil discharge prevention and contingency plan contents and 18 AAC 75.445, Oil discharge prevention and contingency plan approval criteria since both sections are repealed?

The contents of the current 18 AAC 75.425 and 18 AAC 75.445 have been combined to better align plan content requirements and approval criteria and to eliminate the appearance of two separate sets of oil discharge prevention and contingency plan requirements. The following new sections are proposed to reflect this combination:

New 18 AAC 75.448 – Oil discharge prevention and contingency plan general content and approval criteria
New 18 AAC 75.449 – Part 1 – Oil discharge prevention and contingency plan, Response Action Plan
New 18 AAC 75.450 – Part 2 – Oil discharge prevention and contingency plan, Prevention Plan
New 18 AAC 75.451 – Part 3 – Oil discharge prevention and contingency plan, Supplemental Information
New 18 AAC 75.452 – Part 4 – Oil discharge prevention and contingency plan, Best Available Technology Review, and
New 18 AAC 75.453 – Part 5 – Oil discharge prevention and contingency plan, Response Planning Standard

In addition to combining the plan contents and approval criteria requirements, some additional revisions are proposed. The Public Notice is the best place to identify where changes to the contingency plan content or approval criteria is proposed.

The Public Notice is located on this project webpage at Oil Discharge Prevention and Contingency Plan Regulations Update. It identifies key proposed changes within each of the proposed new sections. For example, Public Notice bulletin number (14) notes that the proposed 18 AAC 75.449 – Response Action Plan adds specificity for “contact information requirements, response scenario contents and approval criteria, fire control planning information, description of equipment used in surveillance and tracking of discharged oil, information for procedures to transfer recovered oil held in temporary storage, decanting planning and approval, use of the Alaska Regional Response Team Wildlife Protection Guidelines for Oil Spills in Alaska as a reference, criteria for requiring additional response strategies in the scenario, requirements for information about blowout contingency plans, and response scenarios for typical summer and winter conditions.” We welcome your comments.

Does the department plan to provide a redlined or side-by-side version of the current and proposed plans?

We have not provided a redlined version or side-by-side version of the current and proposed amendments. With the exception of the new sections combining the content of 18 AAC 74.425 and 18 AAC 74.445, the repealed text is included in the proposed revisions. The repealed text for those two sections is lengthy, and including it in [BRACKET] format would not allow the reader to compare between the repealed sections and the proposed new sections. We think either a redline or side-by-side version of the repealed sections and the six new sections would be less helpful than looking at the current version online aside the proposed amendment.

We included a link to the current Article 4 regulations Regulations on page 2 of the Proposed Amendment to assist the reader in comparing the proposed regulatory changes. This approach aligns with standards for public notice for proposed regulation changes, and it is an effective approach for identifying the proposed revisions in the merged plan content and approval criteria for contingency plan requirements in Part 1 – Response Action Plan; Part 2 – Prevention Plan; Part 3 – Supplemental Information; Part 4- Best Available Technology; and Part 5 – Response Planning Standard.

Please note that all sections of Article 4, including the new proposed sections listed above, include language, grammar, and other changes required to align with the State of Alaska Drafting Manual for Administrative Regulations Drafting Manual. These changes are intended to provide clarity rather than reflect substantive revisions. We welcome your comments.

Why were exemptions for natural gas exploration, production and natural gas terminal facilities removed from 18 AAC 75.400(f) and (g)?

The State of Alaska Drafting Manual for Administrative Regulations instructs regulation writers not to paraphrase or restate statutes.

Current regulations at 18 AAC 75.400(f) and 18 AAC 75.400(g) include incomplete paraphrases of a statutory exemptions found in AS 46.04.050(b) and AS 46.04.050(c) respectively. Therefore, we propose to repeal 18 AAC 75.400(f) and (g).

Repealing 18 AAC 75.400(f) and (g) does not remove or impact the exemptions as provided in statute.

The proposed regulation at 18 AAC 75.480(d) reads “During a facility inspection under this section, the department may obtain samples of suspected contaminated materials for purposes of compliance verification with 18 AAC 75.400 - 18 AAC 75.496.” Is the reference to 18 AAC 75.400 – 18 AAC 75.496 accurate? How does sample collection and analysis relate to verification of the ODPCP? If the department collects samples, which protocols will be used and who will pay for analysis? Is proposed 75.480(d) related to requirements in 18 AAC 75, Article 3?

As described in 18 AAC 75.480(a), the department may conduct inspections to verify compliance with AS 46.04.030, AS 46.04.055, and 18 AAC 75.400 - 18 AAC 75.496. The reference to 18 AAC 75.400 – 18 AAC 75.496 in 18 AAC 75.480(d) is correct. In 18 AAC 75.480(d), the department is describing our authority to collect samples of materials for analysis and verification as part of a facility inspection when an observed potential plan violation appears to be resulting in contamination or degradation of materials. The proposal does not create new standards or establish new cost elements. The proposed regulation is not associated with regulations in 18 AAC 75, Article 3. We welcome your comments.

Do the proposed regulations eliminate classes of vessels or owners from requirements to have an approved oil discharge prevention and contingency plan to operate in Alaska? If so, what are those classes of vessels that are currently regulated and will no longer been regulated under this proposal?

The proposed regulations do not exempt currently regulated classes of vessels or owners from the requirement to have an approved oil discharge prevention and contingency plan. The proposed regulation at 18 AAC 75.400(a) outlines which persons must apply for an oil discharge prevention and contingency plan as well as which persons may instead apply for a streamlined plan. We welcome your comments.

After the regulations are promulgated, will the department provide a timeline for plan holders to amend their plans due to changes with the regulatory numbering and reference scheme, including repealing 18 AAC 75.425 and 18 AAC 75.445 and creating 18 AAC 75.448 - .453? What about possible substantive changes that may be required to comply with other regulation revisions?

Effective dates are subject to Alaska Statute 44.62.180. Under this statute, this regulation would become effective on the 30th day after filing by the Lieutenant Governor, unless the department prescribes a later effective date. The language in the current proposed amendment does not include specific provisions for delayed effective dates, but this does not prevent the department from specifying an effective date later than 30 days after the regulation is filed. The department commonly incorporates delayed effective dates or policies that allow time for the regulated community to achieve compliance with the new regulations. We intend to ensure a reasonable plan amendment timeline. We welcome your comments.

Please define “vessel operation as an oil terminal facility.” What is the purpose for amending 18 AAC 432(b) to include the language “For vessels operating as oil terminal facilities, the response planning standard is based on the entire storage capacity of the vessel”?

The definition of “vessel operating as oil terminal facility” is given in Alaska Statute 46.04.900(14), as follows: “oil terminal facility” means an onshore or offshore facility of any kind, and related appurtenances, including a deepwater port, bulk storage facility, or marina, located in, on, or under the surface of the land or waters of the state, including tide and submerged land, that is used for the purpose of transferring, processing, refining, or storing oil; a vessel, other than a nontank vessel, is considered an oil terminal facility only when it is used to make a ship-to-ship transfer of oil, and when it is traveling between the place of the ship-to-ship transfer of oil and an oil terminal facility;” As defined in statutes, there are specific operations that determine when a vessel is considered an oil terminal facility. The purpose of the addition to 18 AAC 75.432(b) is to clarify that vessels operating as oil terminal facilities are required to meet oil terminal facility response planning standards. We welcome your comments on this proposal.

How does the proposed addition to 18 AAC 75.432(d)(5)(A) impact the eligibility for prevention credits for cathodic protection systems in secondary containment at oil terminal facilities? If the department granted a waiver for cathodic protection systems required for tanks due to low soil corrosivity in the past, are they eligible for the 10% response planning standard prevention credit provided in the current and proposed regulations at 18 AAC 75.432(d)(5)(A)?

The regulation revision is intended to clarify that the potential reduction (prevention credit) to the response planning standard for an oil terminal facility offered in 18 AAC 75.432(d)(5)(A) is because of the added protection to the aboveground oil storage tanks and facility oil piping located within the facility’s secondary containment system, rather than for protection of the secondary containment system itself. If the aboveground oil storage tanks and facility oil piping located in secondary containment at a regulated facility are not protected by a cathodic protection system, the plan holder is not eligible for the prevention credit identified in 18 AAC 75.432(d)(5)(A). We welcome your comments.

What does the term “maximum possible discharge” mean as written in 18 AAC.75.449(a)? Are “general procedures” to respond to a maximum possible discharge the same as the response scenario required under 18 AAC 75.449(a)(6)?

Current regulations require general procedures to respond to a facility or operation’s maximum possible discharge as approval criteria for the department in 18 AAC 75.445(b). Over the years, multiple questions have been asked about where those procedures should be located in the plan. This proposal clarifies the location for general procedures to respond to the facility or operation’s maximum possible discharge is in Part 1, Response Action Plan, immediately following the scenario or scenarios required by 18 AAC 75.449(a)(6). See proposed 18 AAC 75.449(a)(10). Also, the department has not proposed to change the regulation at 18 AAC 75.430(a) that requires general procedures to be included in the plan: 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. We welcome your comments.

Please clarify what is meant by “additional response strategies to demonstrate alternative strategies for anticipated receiving environments and seasonal conditions” in 18 AAC 449(a)(6)(O)?

The full text of the proposed regulation at 18 AAC 175.449(a)(5)(O) reads “additional response strategies to demonstrate alternative strategies for anticipated receiving environments and seasonal conditions, including time of year, spills of varying source and size, and weather limitations.” For example, a facility that has more than one type of receiving environment, such as a coastal facility where there is risk of spills to a wetland as well as open water, must include response strategies for both environments, even if the response scenario focuses on a spill to one of those environments. We have not included a specific format for presenting the additional response strategies. Depending on the specifics of the facility or operation, one or more additional response scenarios may be needed, or possibly simple addendums to the response planning standard scenario would suffice. We welcome your comments.