Oil Pollution Prevention; Non-Transportation-Related Onshore Facilities; Final Rule ENVIRONMENTAL PROTECTION AGENCY

SUMMARY: This rule amends the Oil Pollution Prevention regulation,

promulgated under the Clean Water Act for transportation-related

onshore and offshore facilities. The revision incorporates new

requirements added by the Oil Pollution Act of 1990 that direct certain

facility owners and operators to prepare plans for responding to a

worst case discharge of oil and to a substantial threat of such a

discharge. Requirements to plan for a small and medium discharge of

oil, as appropriate, are also added by this revision.

EFFECTIVE DATE: August 30, 1994.

ADDRESSES: The official record for this rulemaking is located in the

Superfund Docket, Room M2615 at the U.S. Environmental Protection

Agency, 401 M Street SW., Washington, DC 20460 [Docket Number SPCC-2P].

The docket is available for inspection between 9 a.m. and 4 p.m.,

Monday through Friday, excluding Federal holidays. Appointments to

review the docket can be made by calling 202-260-3046. The public may

copy a maximum of 266 pages from any regulatory docket at no cost. If

the number of pages copied exceeds 266, however, a charge of 15 cents

will be incurred for each additional page, plus a $25.00 administrative

fee.

FOR FURTHER INFORMATION CONTACT: Bobbie Lively-Diebold, Oil Pollution

Response and Abatement Branch, Emergency Response Division (5202G),

U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460 at 703-356-8774; the ERNS/SPCC Information line at 202-260-2342;

or the RCRA/Superfund Hotline at 800-424-9346 (in the Washington, DC

metropolitan area, 703-412-9810). The Telecommunications Device for the

Deaf (TDD) Hotline number is 800-553-7672 (in the Washington, DC

metropolitan area, 703-412-3323).

SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in

the following outline:

I. Introduction

A. Statutory Authority

B. The Oil Pollution Act of 1990

C. Background of the Rulemaking

II. Summary of Revisions to the Oil Pollution Prevention Regulation

A. Summary of Approach to Implementing Facility Response Plan

Requirements

B. Response to Major Issues Raised by Commenters

C. Section-by-Section Analysis

III. Regulatory Analyses

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Display of OMB Control Numbers

I. Introduction

A. Statutory Authority

Section 4202(a)(6) of the Oil Pollution Act of 1990 (OPA), Public

Law 101-380, amends section 311(j) of the Federal Water Pollution

Control Act, also known as the Clean Water Act (CWA), and under CWA

section 311(j)(5) (See 33 U.S.C. 1321(j)(5)) directs the President to

issue regulations that require owners or operators of tank vessels,

offshore facilities, and certain onshore facilities to prepare and

submit to the President plans for, among other things, responding, to

the maximum extent practicable, to a worst case discharge of oil and to

a substantial threat of such a discharge.

Section 311(j)(1)(C) of the CWA authorizes the President to issue

regulations establishing procedures, methods, equipment, and other

requirements to prevent discharges of oil from vessels and facilities

and to contain such discharges. (See 33 U.S.C. 1321(j)(1)(C).) The

President has delegated the authority to regulate non-transportation-

related onshore facilities under sections 311(j)(1)(C) and 311(j)(5) of

the CWA to the U.S. Environmental Protection Agency (EPA or the

Agency). (See Executive Order (E.O.) 12777, section 2(b)(1), 56 FR

54757 (October 22, 1991), superseding E.O. 11735, 38 FR 21243.) By this

same E.O., the President has delegated similar authority over

transportation-related onshore facilities, deepwater ports, and vessels

to the U.S. Department of Transportation (DOT), and authority over

other offshore facilities, including associated pipelines, to the U.S.

Department of the Interior (DOI). A Memorandum of Understanding (MOU)

among EPA, DOI, and DOT effective February 3, 1994, has redelegated the

responsibility to regulate certain offshore facilities located in and

along the Great Lakes, rivers, coastal wetlands, and the Gulf Coast

barrier islands from DOI to EPA. (See E.O. 12777 Sec. 2(i) regarding

authority to redelegate.) The MOU is included as Appendix B to 40 CFR

part 112. An MOU between the Secretary of Transportation and the EPA

Administrator, dated November 24, 1971 (36 FR 24080, December 18,

1971), establishes the definitions of non-transportation-related

facilities and transportation-related facilities. The definitions from

the MOU are currently included in Appendix A to 40 CFR part 112.

B. The Oil Pollution Act of 1990

The OPA (Public Law 101-380, 104 Stat. 484) was enacted to expand

prevention and preparedness activities, improve response capabilities,

ensure that shippers and oil companies pay the costs of spills that do

occur, provide an additional economic incentive to prevent spills

through increased penalties and enhanced enforcement, establish an

expanded research and development program, and establish a new Oil

Spill Liability Trust Fund, administered by the U.S. Coast Guard

(USCG). As provided in sections 2002(b), 2003, and 2004 of the OPA, the

new Fund replaces the fund originally established under section 311(k)

of the CWA and other oil pollution funds.

Section 4202(a) of the OPA amends CWA section 311(j) to require

regulations for owners or operators of facilities to prepare and submit

``a plan for responding, to the maximum extent practicable, to a worst

case discharge, and to a substantial threat of such a discharge, of oil

or a hazardous substance.'' This requirement applies to all offshore

facilities and any onshore facility that, ``because of its location,

could reasonably be expected to cause substantial harm to the

environment by discharging into or on the navigable waters, adjoining

shorelines, or the exclusive economic zone'' (``substantial harm

facilities''). As stated in the February 17, 1993 proposed rule (58 FR

8824), this rulemaking addresses only plans for responding to

discharges of oil.

Under CWA and the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), the United States has

developed a National Oil and Hazardous Substances Pollution Contingency

Plan (NCP) (40 CFR part 300) and has established Area Committees to

develop Area Contingency Plans (ACPs) as elements of a comprehensive

oil and hazardous substance spill response system. As amended by the

OPA, CWA section 311(j)(5)(C) sets forth certain minimum requirements

for facility response plans. The plans must:

Be consistent with the requirements of the NCP and ACPs;

Identify the qualified individual having full authority to

implement removal actions, and require immediate communications between

that individual and the appropriate Federal official and the persons

providing removal personnel and equipment;

Identify and ensure by contract or other approved means

the availability of private personnel and equipment necessary to

remove, to the maximum extent practicable, a worst case discharge

(including a discharge resulting from fire or explosion), and to

mitigate or prevent a substantial threat of such a discharge;

Describe the training, equipment testing, periodic

unannounced drills, and response actions of persons at the facility, to

be carried out under the plan to ensure the safety of the facility and

to mitigate or prevent a discharge or the substantial threat of a

discharge; and

Be updated periodically.

Under section 311(j)(5)(D), additional review and approval

provisions apply to response plans prepared for offshore facilities and

for onshore facilities that, because of their location, ``could

reasonably be expected to cause significant and substantial harm to the

environment by discharging into or on the navigable waters or adjoining

shorelines or the exclusive economic zone'' (emphasis added)

(``significant and substantial harm facilities''). Under authority

delegated in E.O. 12777, EPA is responsible for the following

activities for each of these response plans at non-transportation-

related onshore facilities:

Promptly reviewing the response plan;

Requiring amendments to any plan that does not meet the

section 311(j)(5) requirements;

Approving any plan that meets these requirements; and

Reviewing each plan periodically thereafter.

The CWA and the OPA require that owners or operators of

``substantial harm facilities'' submit their response plans to EPA (as

delegated by the President in E.O. 12777) by February 18, 1993, or stop

handling, storing, or transporting oil. In addition, under CWA section

311(j)(5) and OPA section 4202(b)(4), a facility required to prepare

and submit a response plan under the OPA may not handle, store, or

transport oil after August 18, 1993 unless: (1) in the case of a

facility for which a plan is reviewed by EPA, the plan has been

approved by EPA; and (2) the facility is operating in compliance with

the plan. The statute provides that a ``significant and substantial

harm facility'' may be allowed to operate without an approved response

plan for up to two years after the facility submits a plan for review

(no later than February 18, 1995), if the owner or operator certifies

that he or she has ensured by contract or other approved means the

availability of private personnel and equipment necessary to respond,

to the maximum extent practicable, to a worst case discharge of oil, or

a substantial threat of such a discharge. Owners or operators of

``substantial harm facilities'' are not required to have their plans

approved by EPA, but, are required to operate in compliance with their

plans after August 18, 1993.

Under the OPA, facility owners or operators who fail to comply with

section 311(j) requirements are subject to new administrative penalties

and more stringent judicial penalties than those imposed previously

under the CWA. Section 4301(b) of the OPA amends CWA section 311(b) to

authorize a civil judicial penalty of $25,000 per day of violation for

failure to comply with regulations under CWA section 311(j). In

addition to these civil penalties, OPA section 4301(b) amends CWA

section 311(b) to authorize administrative penalties for failure to

comply with section 311(j) regulations of up to $10,000 per violation,

not to exceed $25,000 for Class I penalties, and up to $10,000 per day

per violation, not to exceed $125,000 for Class II penalties. The

differences between ``Class I'' and ``Class II'' administrative

penalties are the amounts of the potential penalties and the hearing

procedures used (for instance, Class II procedures will generally

ensure the owner or operator a more extensive opportunity to be heard

through the proceedings). These revised penalty provisions are

applicable to violations occurring after the August 18, 1990, enactment

of the OPA. Violations occurring before enactment of the OPA remain

subject to penalty provisions originally set forth in CWA section 311.

C. Background of the Rulemaking

Jurisdictional Issues

Although the issue was not raised specifically in the proposed

rule, the question of clarifying jurisdiction is a pervasive issue in

this rulemaking, because there are a number of regulatory agencies with

OPA authority over the same or similar entities.

By E.O. 12777, the President delegated certain OPA authorities to

EPA, DOI, and DOT. By terms of the E.O., EPA must develop response plan

regulations for onshore non-transportation-related facilities, while

the Minerals Management Service (MMS) in DOI is granted similar

authority for offshore non-transportation-related facilities. The USCG

must develop requirements for vessels and offshore transportation-

related facilities, and the Research and Special Programs

Administration (RSPA) has responsibility for onshore pipelines and

rolling stock. (The USCG and RSPA are agencies in DOT.)

As it applies to the CWA, the term ``offshore facility'' means any

facility of any kind located in, on, or under any of the navigable

waters of the United States, and any facility of any kind that is

subject to the jurisdiction of the United States and is located in, on,

or under any other waters, other than a vessel or a public vessel. (See

CWA section 311(a)(ii).) The combined effect of this definition and the

delegations under E.O. 12777 gives DOI (MMS) responsibility for non-

transportation-related fixed offshore facilities in inland lakes and

rivers. (See E.O. Sec. 2(b)(3).)

However, EPA, DOI-MMS, and DOT have agreed that EPA responsibility

should extend to these non-transportation-related fixed offshore

facilities in inland lakes and rivers, because EPA has the expertise to

provide oversight of facility functions, and because the maintenance of

continuity in oversight will facilitate compliance for the regulated

community. Under Sec. 2(i) of E.O. 12777, the President authorized EPA,

DOI, and DOT to redelegate any of their responsibilities under the OPA

to the head of any Executive department or agency with the consent of

the agency head. The Secretaries of DOI and DOT, and the Administrator

of EPA signed an MOU on February 3, 1994, that gives to EPA

jurisdiction all non-transportation-related fixed facilities located

landward of the ``coast line.'' For purposes of the MOU, the term

``coast line'' is defined as in the Submerged Land Act (43 U.S.C.

1301(c)) to mean ``the line of ordinary low water along that portion of

the coast that is in direct contact with the open sea and the line

marking the seaward limit of inland waters.'' MMS has prepared detailed

charts that reflect the position of the ``coast line'' and can be

contacted for additional information on the status of a particular

facility.

EPA does not address response plan requirements for non-

transportation- related fixed offshore facilities in this final rule,

but will do so under a separate rulemaking. However, because EPA now

has jurisdictional responsibility over such facilities, response plans

for these facilities must be submitted to EPA rather than to MMS. Until

EPA promulgates a rule for non-transportation-related fixed offshore

facilities formerly under MMS authority, the Agency will review

response plans for these facilities under the OPA statutory criteria.

Until such a rule is promulgated, these facilities should look to this

final rule as guidance.

Coordination with Other Federal Programs

Federal and State Government Coordination Efforts. EPA and other

Federal agencies with jurisdiction under the OPA and E.O. 12777

(including the USCG, the Office of Pipeline Safety in RSPA, and MMS)

met during the development of this rule to create an implementation

strategy that minimizes duplication wherever practicable and recognizes

State oil pollution prevention and response programs. The Agency also

participated in a workgroup with representatives from the National

Oceanic and Atmospheric Administration (NOAA), the Fish and Wildlife

Service, the National Park Service, and other Federal agencies. These

meetings and workgroup sessions were held to develop a consistent

approach among Federal agencies and between Federal and State

governments for oil response planning, and to develop guidelines and

evaluation criteria for drills/exercises and training conducted to meet

the OPA requirements and for identification of ``environmentally

sensitive areas'' (now ``fish and wildlife and sensitive

environments'').\1\ These meetings were held at various times from

January 1993 to January 1994.

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\1\The term ``environmentally sensitive areas'' has been changed

to the term ``fish and wildlife and sensitive environments''

throughout this preamble and the final rule to be consistent with

the terminology used in proposed revisions to the NCP (See 58 FR

54702) that implement OPA requirements. The terms have the same

meaning and the change is not meant to imply an expansion in the

types of areas identified for protection under the OPA.

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One of the critical outgrowths of these efforts was the development

of a consistent approach to regulate ``complexes.'' (A complex is a

facility with a combination of transportation-related and non-

transportation-related components, e.g., a marine transfer facility

with aboveground storage tanks.) A complex is subject to the

jurisdiction of more than one Federal agency under the President's

delegation implementing section 311(j) of the CWA. Among the ways EPA

has reduced the complexity of planning requirements for these

facilities is to better align EPA's Appendix E (Appendix F in the

proposed rule renamed in this final rule as ``Determination and

Evaluation of Required Response Resources for Facility Response

Plans'') with USCG response resource rules developed for marine

transfer facilities (February 5, 1993, 58 FR 7330). (A complete

discussion of Appendix E appears later in this preamble.) For non-

transportation-related facilities that handle or store non-petroleum

oils, EPA also has adopted an approach similar to the USCG's regulatory

approach for response equipment strategies (58 FR 7362).

The coordination efforts resulted in several key decisions which

are described below and discussed in greater depth later in this

preamble. A common theme of discussion among agency representatives was

the need to facilitate the regulated community's efforts to implement

multiple sets of response planning requirements. EPA emphasizes that it

will accept a response plan prepared to meet State or other Federal

requirements as long as the plan meets the requirements of this final

rule and is appropriately cross-referenced. In response to the need to

provide owners or operators with additional direction on conducting

drills/exercises to meet the OPA requirements, the National

Preparedness for Response Exercise Program (PREP) was developed through

a joint effort of the Federal agencies implementing OPA response plan

regulations with involvement from other Federal representatives (e.g.,

natural resource trustees), State agencies, members of the regulated

community, and oil spill response organizations. These efforts resulted

in the creation of guidelines to assist owners or operators in

following the PREP. EPA references, as guidance, PREP guidelines at

Sec. 112.21 of today's final rule. The PREP draft guidelines are

available from Petty Officer Daniel Caras at (202) 267-6570 or fax 267-

4085/4065. (See Appendix E to this part, section 10, for availability).

The USCG has developed similar guidance for training, and EPA

references these training guidelines at Sec. 112.21 of today's final

rule, indicating that following these guidelines (or demonstrating a

comparable program) is an acceptable means to satisfy the OPA

requirement to describe training.

Another interagency effort that resulted in a coordinated approach

to develop response plan requirements involved the identification of

fish and wildlife and sensitive environments. The Federal agencies

implementing OPA regulations contributed to the development of a

guidance document prepared by the natural resource trustees to assist

owners or operators in identifying fish and wildlife and sensitive

environments for the evaluation of the substantial harm criteria and

for the development of a response plan, if required. Although EPA has

removed the proposed Appendix D that covered this subject, facility

owners and operators still must consider fish and wildlife and

sensitive environments. EPA refers facility owners or operators to

Appendices I, II, and III of the ``Guidance for Facility and Vessel

Response Plans: Fish and Wildlife and Sensitive Environments''

published by NOAA within the Department of Commerce (DOC) in the

Federal Register at 59 FR 14714, March 29, 1994. This document will

provide guidance on fish and wildlife and sensitive environments until

geographic-specific annexes of ACPs are fully developed. (See the

discussion of ACPs later in this preamble.) Owners or operators are

encouraged to contact the appropriate Area Committee, EPA Regional

office (inland areas), USCG Captain of the Port (coastal areas), or

natural resource agencies listed in the DOC/NOAA Guidance for

information on fish and wildlife and sensitive environments as it

becomes available.

A final critical area where Federal agencies implementing the OPA

reached agreement was the review of response plans. For response

purposes, the NCP divides the United States into inland and coastal

zones, with EPA responsible for providing On-Scene Coordinators (OSCs)

for the inland zone, and the USCG responsible for providing OSCs for

the coastal zone. EPA will provide an opportunity for designated USCG

OSCs to review and comment on response plans for non-transportation-

related onshore facilities subject to 40 CFR part 112, and

geographically located in the coastal zone. For facilities subject to

40 CFR part 112, EPA will maintain the responsibility for final

approval of the response plan; however, the Regional Administrator (RA)

will consider any USCG OSC objection to a response plan and attempt to

resolve any issues through interagency discussions.

The NCP and ACPs. Section 311(j)(5)(C) of the CWA requires that

facility response plans be consistent with the requirements of the NCP

and ACPs. The NCP provides the general organizational structure and

procedures for addressing discharges of oil and hazardous substances

under the CWA, as well as releases of hazardous substances, pollutants,

and contaminants under CERCLA. Among other things, the NCP specifies

responsibilities among Federal, State, and local governments; describes

resources available for response; summarizes State and local emergency

planning requirements under the Emergency Planning and Community Right-

to-Know Act (EPCRA or SARA Title III); and establishes procedures for

undertaking removal actions under the CWA. Until a revised NCP is

published, as mandated under OPA section 4201(c), facility response

plans should be consistent with the current NCP and, if necessary,

revised to be consistent with the pending NCP revisions when they are

promulgated. (Revisions to the NCP were proposed on October 22, 1993,

at 58 FR 54702.)

ACPs are mandated under CWA section 311(j)(4) and prepared by Area

Committees comprised of members appointed by the President from

qualified personnel of Federal, State, and local agencies. When

implemented in conjunction with other elements of the NCP, ACPs must be

adequate to remove a worst case discharge from a facility operating in

or near the area covered by the plan. ACPs cover discharges affecting

all U.S. waters and adjoining shorelines. EPA and the USCG are

responsible for establishing Area Committees for the inland and coastal

zones, respectively. In the inland Regions, ACPs have been completed

and approved by EPA. The ACP process, however, is dynamic, and Area

Committees will continue to refine the ACPs to provide more detailed

information on protection priorities, develop protection strategies,

and identify appropriate cleanup strategies for inland areas. Area

Committees have the option to further subdivide their areas into

smaller, geographically distinct subareas and develop geographic-

specific annexes for these subareas. Members of the public may

contribute to the ACP refinement process through involvement with Area

Committees in the development of geographic-specific annexes.

Resource Conservation and Recovery Act (RCRA). EPA regulations in

Subpart D of 40 CFR part 264, and Subpart D of 40 CFR part 265

promulgated under RCRA, require owners and operators of hazardous waste

facilities to develop facility-specific contingency plans. The plans

must include response procedures; a list of each person qualified to

act as a facility emergency coordinator; a list of all emergency

equipment and, when required, decontamination equipment at the

facility; evacuation plans, when evacuation could be necessary; and

arrangements agreed to by local police departments, fire departments,

hospitals, contractors, and State and local emergency response teams to

coordinate emergency services. In addition, newly promulgated 40 CFR

part 279 establishes facility-specific contingency planning and

emergency procedure requirements for used oil at reprocessing and

refining facilities. To avoid duplication of effort, owners or

operators of facilities subject to the regulations in 40 CFR parts 264,

265, and 279 may incorporate these RCRA provisions and the response

planning requirements of other applicable Federal regulations into

their facility response plans.

EPCRA. Among other things, EPCRA requires local emergency planning

committees (LEPCs) to develop local emergency response plans for their

community and review them at least annually. Under EPCRA, the owner or

operator of a facility where a listed ``extremely hazardous substance''

is present in an amount in excess of the threshold planning quantity

must notify the State emergency response commission (SERC). In

addition, upon request of the LEPC, the owner or operator must provide

the LEPC with any information necessary to develop and implement the

local emergency response plan. Because of the requirement that certain

facilities participate in emergency planning under EPCRA, some overlap

may exist with response plan requirements outlined in today's rule.

The OPA Conference Report states that OPA facility response plans

should be consistent with plans prepared under other programs, and that

any information developed under section 311(j) should be made available

to SERCs and LEPCs. (See OPA Conference Report, H.R. Rep. No. 101-653,

101st Cong., 2d Sess. 1990 at p. 151.) Therefore, a facility response

plan should be consistent with the local emergency response plan for

the community in which the facility is located, and to ensure such

consistency, facility owners or operators should review the appropriate

local emergency response plan. In addition, upon request of the LEPC or

SERC, the facility should provide a copy of the facility response plan.

Clean Air Act. Under section 112(r) of the Clean Air Act (CAA), as

amended in 1990, EPA is to promulgate risk management program

regulations for the prevention and detection of accidental releases and

for responses to such releases, including requirements for a risk

management plan (RMP) for chemical accidental release prevention. The

regulation listing the covered chemicals and threshold quantities was

published in the Federal Register on January 31, 1994 (59 FR 4478). The

proposed rule for the risk management program was published in the

Federal Register on October 20, 1993 (58 FR 54190).

Regulated facilities are required to do three things: register with

EPA; develop and implement a risk management program that includes a

hazard assessment, a prevention program, and an emergency response

program; and develop and submit an RMP to the Chemical Safety and

Hazard Investigation Board, the implementing agency, the SERC, and the

LEPC. The RMP is to be made available to the public.

EPA anticipates that facilities affected by both regulations can

prepare one response plan that meets the Oil Pollution Act requirements

for oil and the CAA requirements for chemicals.

Prevention Technical Requirements

EPA's proposed rule for the facility response plan rulemaking

contained certain provisions related to aspects of 40 CFR part 112 that

did not address the OPA facility response plan requirements. EPA has

decided not to include these provisions in today's final rule. These

provisions are more closely related to the 40 CFR part 112 revisions

proposed on October 22, 1991 (56 FR 54612), and will be finalized when

that proposal is finalized. The proposed provisions not included in

today's final rule are as follows:

Sec. 112.1(d)(4)--Reiterating that Underground Storage

Tanks are to be Marked on Diagrams;

Sec. 112.1(g)--Regional Administrator Authority to Require

SPCC Plan Preparation;

Sec. 112.2--Definitions of ``Alteration'' and ``Repair'';

Sec. 112.4(d)--Amendment of SPCC Plan by Regional

Administrator;

Sec. 112.7(a)(2)--Submission of SPCC Plans for Waiver of

Technical Requirements;

Sec. 112.7(d)--Requirement to Prepare a Contingency Plan

When the Installation of Secondary Containment Structures is not

Practicable;

Sec. 112.7(f)--Prevention Training; and

Sec. 112.7(i)/Appendix H--Ensuring Against Brittle

Fracture.

Only proposed changes to Secs. 112.2 (except for the definitions of

``alteration'' and ``repair'') and 112.20, and the addition of

Sec. 112.21 are included in today's final rule. The content of

Sec. 112.21 is adapted from Sec. 112.7 of the proposed rule which

addressed training and drills/exercises for both prevention and

response.

II. Summary of Revisions to the Oil Pollution Prevention Regulation

This section provides a summary of the response planning provisions

included in today's final rule. Section II.A provides a brief summary

of the overall approach to implementation of response plan

requirements. In Section II.B, EPA summarizes and responds to major

issues raised by the public during the comment period. Finally, Section

II.C provides a section-by-section discussion of changes from the

proposed rule to the final rule.

A. Summary of Approach to Implementing Facility Response Plan

Requirements

EPA is finalizing an approach for identifying facilities subject to

response planning requirements similar to that outlined in the proposed

rule. Only owners or operators of ``substantial harm facilities'' are

required to prepare and submit plans. EPA will approve only those plans

submitted for ``significant and substantial harm facilities.'' Risk-

based factors for evaluating the potential to cause substantial harm

and significant and substantial harm are established in Sec. 112.20(f)

of today's rule and include: type of transfer operation; oil storage

capacity; lack of secondary containment; proximity to fish and wildlife

and sensitive environments (described as ``environmentally sensitive

areas'' in the proposal), navigable waters, and drinking water intakes;

spill history; age of oil storage tanks; and other facility-specific

and Region-specific information.

There are two methods by which an onshore facility may be

determined to be a ``substantial harm facility.'' The first involves

the use of substantial harm criteria provided in Sec. 112.20(f)(1) and

in the flowchart in Appendix C to 40 CFR part 112 by owners or

operators to identify ``substantial harm facilities.'' The second

provides each RA the authority to determine whether any facility

subject to the Oil Pollution Prevention regulation is a ``substantial

harm facility'' based on the specific criteria in Sec. 112.20(f)(1),

the factors in Sec. 112.20(f)(2)(A)-(F), or other site-specific

characteristics and environmental factors that may be relevant under

Sec. 112.20(f)(2)(G). In applying these factors, the RA may seek input

on specific facilities from other agencies such as the USCG and natural

resource trustee agencies. The RA also may consider petitions from the

public to determine whether a facility is a ``substantial harm

facility.''

To determine whether an onshore facility could be a ``significant

and substantial harm facility,'' the RA will consider the substantial

harm criteria in Sec. 112.20(f)(2) as well as additional factors in

Sec. 112.20(f)(3), including site-specific information such as local

impacts on public health.

In today's final rule, facility owners or operators are provided

with a process to appeal the substantial harm and significant and

substantial harm determinations or the RA's decision not to approve a

response plan for which approval is required.

Finally, under Sec. 112.20(e), owners or operators who are not

required to submit plans must maintain onsite at the facility a signed

certification form, which indicates that the facility has been

determined by the facility owner or operator not to meet the criteria

in Sec. 112.20(f)(1).

Discussion of Response Plans

Those facility owners or operators who submit plans must include a

signed response plan cover sheet (as provided in 40 CFR part 112,

Appendix F, Attachment F-1), which indicates that the information

contained in the plan is accurate, and that gives a basic summary of

facility information, including the results of the substantial harm

determination.

The required elements for response planning in Sec. 112.20(h) of

this rule are designed to direct a facility owner or operator in

gathering the information needed to prepare a response plan. The

response plan elements address requirements under CWA section 311(j)(5)

(as amended by the OPA), including requirements for response training

and participation in response drills/exercises. Appendix F to the rule

includes a model response plan that further describes the required

elements in Sec. 112.20(h). The majority of elements in the model plan

are taken directly from Sec. 112.20(h) or are logical extensions of the

general requirements in Sec. 112.20(h) and are therefore requirements

prefaced by use of the word ``must'' or ``shall.'' EPA recognizes that

certain other elements may not be applicable in all cases. To provide

flexibility for facilities with unique circumstances, certain elements

are prefaced by use of the words ``shall, as appropriate'' or are

modified by use of the words ``or an equivalent.'' Finally, other

elements are presented as recommendations and are prefaced by use of

the word ``may.''

As discussed previously in this preamble, the requirements in

Sec. 112.20(h) and the model response plan in Appendix F do not

preclude the use of a preexisting response plan. Owners or operators

may submit a plan prepared to meet other Federal or State requirements,

as long as the elements in Sec. 112.20 are addressed (including the

requirement for an emergency response action plan), and a cross-

reference to the model response plan is provided.

Under today's rule, owners or operators of ``substantial harm

facilities'' must prepare plans to respond to a worst case discharge,

and small and medium discharges as appropriate. Such response planning

by facilities will help ensure protection of public health and welfare

and the environment by facilitating effective response to discharges to

navigable waters or adjoining shorelines. The requirement to plan for

several different spill sizes is consistent with other agencies' (such

as the USCG's) implementation of OPA response planning requirements.

For example, the average most probable discharge and the maximum most

probable discharge under the USCG interim final rule set out the same

values in barrels as EPA sets out in gallons for small and medium

spills (58 FR 7358, February 5, 1993). EPA is authorized to require

owners or operators to plan for small and medium discharges by

Sec. 311(j)(1)(C) of the CWA.

OPA section 4201(b) (CWA section 311(a)(24)) defines ``worst case

discharge'' for a facility as the largest foreseeable discharge in

adverse weather conditions. The OPA Conference Report indicates that

facility owners or operators are expected to prepare plans for

responding to discharges that are worse than either the largest spill

to date at the facility or the maximum probable spill for that facility

type. (See H.R. Rep. No. 101-653, 101st Cong., 2d Sess. 1990 at pp.

149-150.) Today, EPA finalizes a requirement for a facility's worst

case discharge planning amount based on the capacity of the largest

single tank within a secondary containment area, or the combined

capacity of a group of aboveground tanks permanently manifolded

together within a common secondary containment area lacking internal

subdivisions, whichever is greater; plus an additional quantity based

on lack of secondary containment, as appropriate. (For facilities that

lack secondary containment for all tanks, the worst case discharge

would be the total storage capacity at the facility.) Production

facilities would also need to consider production volumes. Single tank

facilities are allowed to reduce the worst case discharge volume for

the presence of adequate secondary containment.

EPA has provided worksheets in Appendix D, which owners or

operators of storage and production facilities are required to use in

the calculation of worst case discharge amounts. For complexes, the

worst case discharge volume is the larger of the amounts calculated for

each component of the facility regulated by a different agency using

procedures contained in the respective regulations. EPA requires that

owners or operators of complexes (a complex is a facility with a

combination of transportation-related and non-transportation-related

components, e.g., a marine transfer facility with aboveground storage

tanks) plan for the single largest worst case discharge at the

facility. To facilitate this process, EPA has modified Appendix E as

described in Section II.B of this preamble to be consistent with the

USCG's ``Guidelines for Determining and Evaluating Required Response

Resources for Facility Response Plans.''

In addition to planning for a worst case discharge, under proposed

Sec. 112.20, facility owners and operators are required to plan for (1)

a small spill, defined as any spill volume less than or equal to 2,100

gallons, provided that this amount is less than the worst case

discharge amount; and (2) a medium spill, defined as any spill volume

greater than 2,100 gallons, and less than or equal to 36,000 gallons or

10 percent of the capacity of the largest tank at the facility,

whichever is less, provided that this amount is less than the worst

case discharge amount. For facilities where the worst case discharge is

a medium spill, the owner or operator is required to plan for two

amounts, a worst case spill and a small spill. For facilities where the

worst case discharge is a small spill, the owner or operator must plan

only for a worst case discharge.

For medium spills at complexes, the owner or operator must first

determine a medium spill volume for the transportation-related and non-

transportation-related components at the facility. (The USCG's term

``maximum most probable discharge'' is generally equivalent to a medium

spill. See 58 FR 7354.) The owner or operator must then compare the

medium planning amounts for each component of the facility. Following

this comparison, the owner or operator must select the larger of the

quantities as the medium planning amount for the overall facility. A

similar procedure must be followed for a small spill. (The USCG's term

``average most probable discharge'' is generally equivalent to a small

spill. See 58 FR 7353.) EPA requires that owners or operators of

complexes plan for a single small and medium spill at the facility in

accordance with the requirements in Appendix E.

Equipment Requirements

In Appendix E to today's rule, EPA establishes requirements to

determine for planning purposes the quantity of resources and response

times necessary to respond to the ``maximum extent practicable'' to a

worst case discharge, and to other discharges, as appropriate. The

requirements were adapted from similar requirements developed by the

USCG for vessel response plans and facility response plans for marine

transportation-related onshore facilities. These procedures recognize

practical and technical limits on response capabilities that an

individual facility owner or operator can provide in advance and on

response times for resources to arrive on scene. To address these

limitations, Appendix E establishes operability criteria for oil

response resources and caps on response resources that facility owners

or operators must identify and ensure the availability of, through

contract or other approved means. The caps reflect an estimate of the

response capability at a given facility that is considered a practical

target to be met by 1993 and beyond.

Appendix E (Appendix F in the proposed rule) has been renamed

``Determination and Evaluation of Required Response Resources for

Facility Response Plans.'' EPA made this change to clarify that

facility owners and operators must use this appendix to determine

whether they have appropriate and adequate amounts of resources to meet

the planning requirements in this final rule. In this appendix, EPA has

substituted the words ``shall'' or ``shall, as appropriate'' for the

word ``should'' to clarify whether the requirements are mandatory,

regardless of the circumstances. The phrase ``shall, as appropriate''

is consistent with EPA's intent in the proposal to provide owners or

operators flexibility for facilities with unique circumstances. As

required at Sec. 112.20(h)(3)(i), in cases where it is not appropriate

to follow part of Appendix E to identify response resources to meet the

facility response plan requirements, owners or operators must clearly

demonstrate in the plan why use of Appendix E is not appropriate at the

facility and make comparable arrangements for response resources.

Section 311(j)(5)(C)(iii) of the CWA requires the facility response

plan to identify and ensure the availability, by contracts or other

means approved by the President (as delegated to EPA), of private

personnel and equipment necessary to respond to the maximum extent

practicable, to a worst case discharge. For the purposes of today's

rule, ``contract or other approved means'' is defined in Sec. 112.2 of

today's final rule as:

A written contractual agreement with an Oil Spill Removal

Organization (OSRO(s)). The agreement must identify and ensure the

availability of the necessary personnel and equipment within

appropriate response times; and/or

Written certification that the necessary personnel and

equipment resources, owned or operated by the facility owner or

operator, are available to respond to a discharge within appropriate

response times; and/or

Active membership in a local or regional OSRO(s), which

has identified and ensures adequate access, through membership, to

necessary personnel and equipment within appropriate response times in

the specified geographic areas; and/or

Other specific arrangements approved by the RA upon

request of the owner or operator.

If the owner or operator plans to rely on facility-owned equipment

to satisfy the requirement at Sec. 112.20(h)(3) to identify and ensure

the availability of response resources, then equipment inventories must

be provided. When relying on other arrangements, evidence of contracts

or approved means must be included in the response plan so that the

availability of resources can be verified during plan review. It is not

necessary to list specific quantities of equipment in the facility

response plan when listing a USCG-classified OSRO(s) that has

sufficient removal capacity to recover up to the rate indicated by the

associated caps. (See Section II.B of this preamble for additional

discussion on this issue.)

Final Rule Application to Affected Facilities

The following paragraphs present EPA's approach to implement the

response plan requirements of OPA and of this final rule. Section

112.20(a) of the rule has been revised to reflect this approach.

The Agency proposed in the February 17, 1993 Federal Register (58

FR 8824) its facility response plan rule for non-transportation-related

onshore facilities under its jurisdiction. Before this publication, EPA

made available outreach materials describing its basic approach for

implementation of the OPA response plan requirements to allow facility

owners or operators the opportunity to prepare and submit response

plans by the February 18, 1993, OPA deadline. EPA received over 4,500

plans from owners or operators of facilities that met the criteria to

be a ``substantial harm facility.'' EPA Regional personnel have

identified the subset of ``significant and substantial harm

facilities'' from those facilities that submitted response plans by

February 18, 1993 and, as appropriate, issued authorizations to these

facilities to continue to operate after August 18, 1993, based on a

review of a facility's certification of response resources. These plans

will be reviewed and, if appropriate, approved under the OPA statutory

requirements by February 18, 1995. For inadequate plans submitted

before the February 18, 1993 statutory deadline, RAs may notify

facility owners or operators that additional information or plan

revisions are necessary in advance of February 18, 1995, for plan

approval.

To recognize the compliance efforts of owners or operators of those

facilities in existence on or before February 18, 1993 who submitted

response plans to meet the OPA requirements by the statutory deadline,

EPA will allow them until February 18, 1995 to revise their response

plan, if necessary, to satisfy the requirements of this rule and

resubmit their plans (or updated portions) to the RA. (See

Sec. 112.20(a)(1)(i).) The revised plans for ``significant and

substantial harm facilities'' will be reviewed periodically thereafter

on a schedule established by the RA provided that the period between

plan reviews does not exceed five years. (See Sec. 112.20(c)(4).) RAs

may institute a process by which such plan reviews are staggered so

that not all plans will need to be reapproved in the same year.

Owners or operators of existing facilities that were in operation

on or before February 18, 1993 who failed to submit a facility response

plan to meet the OPA requirements by February 18, 1993 must submit a

response plan that meets the requirements of this rule to the RA by the

effective date of the final rule. (See Sec. 112.20(a)(1)(ii).) EPA

recognizes that such facilities may have prepared and submitted to the

RA some form of a response plan after the statutory deadline. Owners or

operators may submit revised portions of the plan to bring the plan

into compliance with the final rule requirements. Plans for

``significant and substantial harm facilities'' will be reviewed for

initial approval by RAs within a reasonable time. Such plans will be

reviewed periodically thereafter on a schedule established by the RA

provided that the period between plan reviews does not exceed five

years. RAs may choose to stagger such plan reviews.

Owners or operators of facilities that commenced operations after

February 18, 1993 but before the effective date of this final rule must

submit a response plan that meets the requirements of this final rule

to the RA by its effective date. EPA recognizes that such facilities

may have prepared and submitted some form of a response plan to the RA

prior to the publication of this rule. Owners or operator may submit

revised portions of the plan to bring the plan into compliance with the

final rule requirements. (See Sec. 112.20(a)(2)(i).) RAs will review

plans for ``significant and substantial harm facilities'' for initial

approval within a reasonable time. The plans will then be placed on the

Region's review cycle as described in the preceding paragraphs.

The Agency recognizes that identification of ``substantial harm

facilities'' will continue to occur as new facilities come on-line and

existing facilities newly meet the criteria for substantial harm as a

result of a change in operations or site characteristics. EPA is

requiring in Sec. 112.20(a)(2)(ii) and (iii) that: (1) newly

constructed facilities (facilities that come into existence after the

effective date of the final rule) that meet the applicability criteria

must prepare and submit a response plan in accordance with the final

rule prior to the start of operations (adjustments to the response plan

to reflect changes that occur at the facility during the start-up phase

of operations must be submitted to the Regional Administrator after an

operational trial period of 60 days); and (2) existing facilities that

become subject to the response plan requirements as the result of a

planned change in operations (after the effective date of the final

rule) must prepare and submit a response plan in accordance with the

final rule prior to the implementation of changes at the facility. RAs

will review plans submitted for such newly designated ``substantial

harm facilities'' to determine if a facility is a ``significant and

substantial harm facility.'' RAs will review for approval plans for

``significant and substantial harm facilities'' within a reasonable

time and then place the plans on the Region's review cycle as discussed

previously.

An existing facility, however, may become subject to the response

plan requirements through one or a combination of unplanned events,

such as a reportable spill or the identification of fish and wildlife

and sensitive environments adjacent to the site during the ACP

refinement process. In the event of such an unplanned change, the owner

or operator is required to prepare and submit a response plan to the RA

within six months of when the change occurs (See

Sec. 112.20(a)(2)(iv).) The Agency believes that allowing six months

from when a change caused by an unplanned event occurs to prepare and

submit a plan is reasonable.

Under Sec. 112.20(g)(2), facility owners or operators are required

to review appropriate sections of the NCP and ACP annually and revise

their response plans accordingly. In addition, Sec. 112.20(d)(1)

requires the owner or operator of a facility for which a response plan

is required to resubmit relevant portions of the plan within 60 days of

each material change in the plan. For ``substantial harm facilities,''

Regions will review such changes to determine if the facility should be

reclassified as a ``significant and substantial harm facility.'' For

``significant and substantial harm facilities,'' the Regions will

review such changes for approval as described in Sec. 112.20(d)(4).

B. Response to Major Issues Raised by Commenters

A total of 1282 comments were received on the proposed rule. The

majority of these comments were one-page form letters from members of,

and on behalf of, numerous environmental professional groups and

addressed the issue of whether certification of response plans by an

independent party was appropriate. A document entitled ``Response to

Comments Document for the Facility Response Plan Rulemaking'' that

summarizes and provides responses to all comments received on the

proposed rule is available in the public docket. The major issues

raised by the commenters and the Agency's responses are described in

this section.

Option One vs. Option Two

In the preamble to the proposed rule, the Agency discussed two

options for identifying facilities subject to facility response plan

requirements under this rulemaking. In the proposed rule, EPA proposed

the first option, but requested comment on the merits of both options.

The two alternatives are outlined briefly in the next paragraph.

Under Option 1, EPA proposed to require under CWA sections

311(j)(5) and 311(j)(1)(C) that: (1) the owner or operator of a

``substantial harm facility'' prepare and submit a response plan, and

(2) ``significant and substantial harm facilities'' have their plans

promptly reviewed for approval by EPA. Criteria provided in

Sec. 112.20(f)(1) coupled with RA determinations would be used to

identify ``substantial harm facilities'' and a subset of ``significant

and substantial harm facilities.''

EPA's second approach was also based on the authority contained in

CWA sections 311(j) (1) and (5). Under Option 2, all facilities

regulated under 40 CFR part 112 would be required to prepare facility

response plans; certain small, low-risk facilities with secondary

containment structures would be allowed to prepare an abridged version

of a response plan. Only ``substantial harm facilities'' would only be

required to submit plans to EPA. ``Significant and substantial harm

facilities'' would submit plans to EPA and have their plans reviewed

and approved.

The Agency received numerous comments on the two options, with the

vast majority favoring Option 1. Supporters of Option 1 stated that

Option 2 would create too great a burden on facilities and EPA, in

relation to the relatively low environmental benefits derived from

planning. Commenters representing small, lower-risk facilities

expressed concern that being required to prepare response plans would

impose unnecessary financial burdens. In addition, commenters felt that

40 CFR part 112 was sufficiently protective of the environment for non-

substantial-harm facilities. A small number of commenters representing

both industry and environmental groups supported Option 2, stating that

it most closely reflected the mandates of the OPA and that it would

provide a more comprehensive emergency response planning network.

In today's final rule, EPA finalizes Option 1. The Agency believes

that this option targets high-risk facilities in a cost effective

manner that is nevertheless protective of the environment. Owners or

operators of facilities covered by the Oil Pollution Prevention

regulation must evaluate their facilities against a series of

substantial harm screening criteria. Although EPA encourages all oil

storage facilities under its jurisdiction to prepare oil spill response

plans, owners or operators of those facilities not meeting the criteria

provided in Sec. 112.20(f)(1) are only required to prepare a facility

response plan if the RA independently determines that the facility is a

``substantial harm facility.'' Because of the size and diversity of the

regulated community under EPA's jurisdiction pursuant to the OPA and

the tight timeframe established by the OPA, EPA is implementing a

substantial harm selection process with two components (i.e., published

criteria and an RA determination). The published criteria are designed

to capture the vast majority of ``substantial harm facilities.'' To

simplify the process, EPA developed specific selection criteria to be

applied in a consistent manner by all owners and operators.

Nevertheless, EPA believes that there are facilities that do not meet

the criteria in Sec. 112.20(f)(1), but may, due to facility-specific or

location-specific circumstances, pose sufficient risk to the

environment to be designated as ``substantial harm facilities.''

Accordingly, RAs, as the designated representatives of EPA, are granted

authority to designate a facility on a case-by-case basis as a

``substantial harm facility.''

Substantial Harm Criteria

As required by Sec. 112.20(f)(1) and the flowchart in Appendix C to

40 CFR part 112, a facility is a ``substantial harm facility'' if

either of the following two criteria are met:

(1) The facility transfers oil over water to or from vessels and

has a total oil storage capacity greater than or equal to 42,000

gallons; or

(2) The facility's total oil storage capacity is greater than or

equal to 1 million gallons, and one or more of the following is true:

The facility does not have secondary containment for each

aboveground storage area sufficiently large to contain the capacity of

the largest aboveground storage tank within each storage area plus

sufficient freeboard to allow for precipitation;

The facility is located at a distance (as calculated using

the appropriate formula in Appendix C or a comparable formula) such

that a discharge from the facility could cause injury to fish and

wildlife and sensitive environments;

The facility is located at a distance (as calculated using

the appropriate formula in Appendix C or a comparable formula) such

that a discharge from the facility would shut down operations at a

public drinking water intake; or

The facility has had a reportable spill greater than or

equal to 10,000 gallons within the last 5 years.

A number of commenters suggested that EPA is attempting to regulate

transportation-related facilities that are covered by USCG regulations.

Several of these commenters stated that EPA's approach would result in

redundant and conflicting regulations for such facilities.

The Agency considered these comments and decided to retain the

over-water transfers criterion (Sec. 112.20(f)(1)(i)). The criterion

was designed to identify as posing a risk of substantial harm to the

environment those facilities that store oil above a certain quantity

located in close proximity to navigable waters. EPA is not attempting

to regulate marine transfer operations. In 40 CFR 112.1, EPA clearly

explains which facilities fall under its authority. The section states

that EPA jurisdiction does not extend to transportation-related

facilities. The Agency has the authority, however, to regulate the non-

transportation-related storage component of facilities that may have a

marine transfer component.

Several commenters indicated that the 42,000 gallon cutoff for

transfers over-water is appropriate. Other commenters questioned the

potential of a 42,000 gallon spill to cause substantial harm to the

environment.

EPA has decided that non-transportation-related storage components

of complexes should be regulated at a lower capacity threshold than

storage facilities without an over-water transfer component (i.e.,

42,000 gallons versus 1 million gallons), because the location of over-

water transfer facilities poses a higher risk to navigable waters.

Spills at such facilities are more likely to reach navigable waters

than spills from facilities located further from navigable waters.

Also, it is likely that a higher percentage of the total amount

released will reach navigable waters at a facility directly adjacent to

navigable waters than at a facility located further away. Data indicate

that for oil discharges above 42,000 gallons, the number of incidents

with reported effects including fishkills, wildlife damage, or fire is

greater than for oil discharges below 42,000 gallons. At the 0.01 level

of significance, the size of the release is related to the occurrence

of reported effects. For certain release size thresholds other than

42,000 gallons, however, a similar statistically significant

relationship could not be shown.\2\

---------------------------------------------------------------------------

\2\Study prepared for EPA titled ``Analysis of Data Relating to

Facility Size, Oil Discharges, and Environmental Effects.''

Available for inspection in the Superfund Docket, Room M2615, at the

U.S. Environmental Protection Agency, 401 M Street, SW., Washington,

DC 20460.

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EPA requested comment in the proposed rule on the appropriateness

of the use of a proposed 1 million gallon or a 200,000 gallon size cut-

off for total storage capacity to determine a threshold for substantial

harm. (See Sec. 112.20(f)(1)(ii).)

The Agency received numerous comments suggesting that the 1 million

gallon cutoff was appropriate. A smaller number of commenters including

other Federal government agencies and environmental associations,

indicated that the size cut-off for substantial harm should be 200,000

gallons or lower. Advocates for a lower cut-off contended that small

facilities with a high throughput may have a higher potential to cause

substantial harm than large facilities with low throughput. These

commenters also suggested that the OPA Conference Report indicated that

the requirement to prepare and submit response plans should be applied

broadly, because even small discharges from an onshore facility could

result in substantial harm under certain circumstances.

Although EPA recognizes that large storage capacity is a

substantial harm risk factor, the Agency also recognizes that the

intent of OPA was not to exclude certain smaller facilities, such as

those near public drinking water intakes or fish and wildlife and

sensitive environments, from consideration as having the potential to

cause substantial harm. EPA intends that the RA determination process

be used to identify additional high-risk facilities that do not meet

the criteria in Sec. 112.20(f)(1) although nonetheless pose substantial

harm.

The Agency decided to identify certain high-risk facilities that

pose a threat of substantial harm because of their size in combination

with facility- specific characteristics (i.e., secondary containment

and spill history) or location-specific (i.e., proximity to fish and

wildlife and sensitive environments and public drinking water intakes).

The largest oil spills, which could pose the greatest risk to the

environment, occur at large facilities. Data on the effects of spills

from aboveground storage tanks indicate that when larger quantities of

oil are discharged, fish and wildlife damage, off-site soil pollution,

and property damage are greater than for smaller discharges.\3\ The

Agency believes that regulatory coverage and protection of the

environment will be ensured, since facilities that are smaller than 1

million gallons, but that could cause substantial harm because of their

proximity to navigable waters or fish and wildlife and sensitive

environments, could be selected under the RA's authority to require a

facility to submit a response plan, regardless of whether the facility

meets the criteria in Sec. 112.20(f)(1) (although the RA considers

these factors as part of the determination).

---------------------------------------------------------------------------

\3\Ibid.

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In addition, several commenters suggested that the average oil

storage inventory of a facility should be used instead of capacity to

determine the oil storage threshold for substantial harm. Commenters

indicated that the normal amount of oil stored at a facility is often

less than the total capacity, because facilities are overdesigned to

meet seasonal demands. Commenters also contended that tanks dedicated

for standby service and tanks not in service should not be counted in

determining a facility's capacity, and that certification methods could

be employed to ensure that excess capacity is not being used.

In today's final rule, EPA retains capacity rather than inventory

as the basis for assessing risk to the environment. The decision was

based largely on the fact that substantial harm determinations using

inventory would be difficult or impossible to enforce and might not

accurately reflect the true worst case for the facility. EPA would be

unable to inspect facilities often enough to ensure that their

inventory is actually below the substantial harm threshold. Moreover,

owners or operators would likely find it difficult to constantly track

inventory to ensure that changes in inventory did not trigger

additional regulatory requirements and at some time the tank could be

filled to capacity. In addition, there is a need to maintain

consistency in the Oil Pollution Prevention regulation, and the

original regulation uses storage capacity for threshold determinations

instead of using inventory. However, EPA has proposed in a separate

rulemaking published on October 22, 1991 (58 FR 54612), to allow owners

or operators to exclude permanently closed tanks (as defined in

Sec. 112.2 of the proposed rule published on October 22, 1991) from the

total capacity of the facility for the purposes of the Oil Pollution

Prevention regulation. If these changes are finalized, permanently

closed tanks would not have to be considered in the substantial harm

evaluation.

Several commenters argued that the 10,000 gallon reportable spill

criterion (proposed at Sec. 112.20(f)(ii)(D), 58 FR 8849) should be

modified to allow a facility owner the opportunity to petition the RA

for exclusion based upon modifications to the facility or to its spill

prevention procedures made after the release.

EPA agrees that continuous improvements in spill prevention

procedures are important and that owners and operators that have

significantly upgraded their facility within five years of a spill

greater than or equal to 10,000 gallons (by replacing tanks or adding

secondary containment, for example) should be allowed to request

exclusion from the substantial harm category.

The Agency includes a two-stage appeals process in Sec. 112.20(i)

of today's rule. The appeals process allows an owner or operator to

petition the RA to remove a facility from the category of substantial

harm because of improvements at the facility that lead to greatly

reduced risk to the environment. The appeals process is discussed in

greater detail in the ``Appeals Process'' section of this preamble. Of

course, even if a facility obtains relief through appeal, the RA still

retains authority to require a Plan, under Sec. 112.20(b) should the

circumstances on which the relief was granted change in the future.

In the proposed rule, EPA provided formulas in Appendix C for

owners or operators to determine appropriate distances to fish and

wildlife and sensitive environments and drinking water intakes for

purposes of evaluating the substantial harm criterion. EPA also

proposed to allow the use of an alternative formula acceptable to the

RA. EPA solicited data and comments on the appropriateness of the

distance calculations in Appendix C for inland areas.

Several commenters supported the overall approach of using a

calculated distance to define proximity. However, numerous commenters

indicated that the formulas used to calculate the planning distances in

Appendix C are too complex, cumbersome, or impracticable for general

use.

The Agency does not agree. The planning distance formulas proposed

in Appendix C are appropriate based on an evaluation of engineering

principles and input from an interagency technical workgroup that

included representatives from the Natural Resource Trustee agencies, as

well the agencies responsible for measuring river height and flow. The

Agency's primary goal was to provide a series of formulas that were

technically supportable. EPA has provided the least complex formulas

that are still technically supportable. Moreover, EPA allows owners or

operators to use comparable formulas to calculate appropriate distances

provided that the formula is acceptable to the RA and they send

supporting documentation on the reliability and analytical soundness of

the formulas (see Sec. 112.20(a)(3)).

Several commenters noted that the formulas proposed in Appendix C

did not account for tides, currents, wind direction, and other weather-

dependent flow rates. One commenter recommended that EPA use the USCG

planning distances for discharges into tidal waters. To more accurately

account for the range of movement of spilled oil in certain aquatic

environments, EPA includes in Appendix C of today's final rule a

section on oil transport in tidal influence areas as a separate type of

calculation. EPA adopts the tidal influence area criteria from the

USCG's interim final rule for Marine Transportation-Related (MTR)

Facilities (58 FR 7358, February 5, 1993).

Some commenters stated that the proposed response times in Table 3

of Appendix C for calculating the planning distances were inappropriate

and would overpredict the area of the spill. Some commenters noted that

actual response times could be considerably faster than those proposed

because some facilities have their own response resources. Conversely,

one commenter expressed concern that the response times are too short

and do not account for adverse weather conditions or phased planning

required for certain discharges. Other commenters noted that the

proposed response times in Table 3 of Appendix C were inconsistent with

the response times listed in Appendix F of the proposed rule for

determining response resources for a worst case discharge and should be

changed. No data were provided by commenters to support alternative

response times for use in the distance calculations.

In today's rule, to clarify the information presented, EPA

reformats Table 3 of Appendix C. EPA used the same geographic areas for

facility location (i.e., higher volume port area, Great Lakes, and all

other river and canal, inland, and nearshore areas) as those specified

in the equipment appendix (Appendix E) to maintain consistency between

different sections of the regulation and because the facility location

directly impacts the arrival time of response resources.

The specified time intervals in Table 3 of Appendix C are to be

used only to aid in the determination of whether a facility is a

``substantial harm facility.'' Once it is determined that a plan must

be developed for the facility, the owner or operator would consult

Appendix E to determine appropriate resource levels and response times.

The specified time intervals in Table 3 of Appendix C are less than the

Tier 1 response times specified in Appendix E for the corresponding

operating areas, because EPA assumes that, for purposes of determining

whether a facility is a ``substantial harm facility,'' no response

planning has been done. This conservative assumption is only used for

screening purposes and is not used for other aspects of the rulemaking.

Owners or operators are reminded that EPA has included at

Sec. 112.20(i) of the final rule an appeals process for, among other

things, the determination of substantial harm.

EPA believes that these times accurately estimate the times needed

to respond to spills from EPA-regulated facilities that have not pre-

planned their response to spills (i.e., a facility owner or operator

who has not pre-planned response activities would be able to contact a

local spill response company, coordinate response actions, and deploy

resources within 15 or 27 hours following discovery of the spill,

depending on facility location). In general, facilities located in

higher volume port areas have a higher density of response contractors

and resources nearby. Therefore, EPA estimated a shorter time interval

for these facilities compared with facilities located in all other

operating areas.

One commenter noted an inaccuracy in the formula proposed in

Attachment C-III of Appendix C of the proposed rule, Oil Transport on

Still Water, (which converts an oil discharge volume into a surface

area), when the volume of the spilled oil is converted to units other

than cubic meters. In Attachment C-III of Appendix C of today's rule,

EPA incorporates a conversion factor into the formula to address the

inaccuracy by allowing facility owners and operators to directly input

the worst case discharge volume in gallons and to obtain a spill

surface area in square feet.

EPA requested comment on the appropriateness of using specified

distances to environmentally sensitive areas (fish and wildlife and

sensitive environments) in the substantial harm criterion. Many

commenters suggested that EPA allow a facility owner or operator to use

alternative methods or set distances to determine the appropriate

distance from the facility for screening purposes. In today's rule, the

Agency allows the use of formulas comparable to the Appendix C formula

to calculate the planning distance to fish and wildlife and sensitive

environments or public drinking water intakes (see Sec. 112.20(a)(3)

and Sec. 112.20(f)(i) (B) and (C)), provided that facility owners and

operators attach documentation to the response plan cover sheet on the

reliability and analytical soundness of the comparable formula. EPA

believes that calculating a planning distance using the formulas in

Appendix C is more appropriate than using set distances to fish and

wildlife and sensitive environments, because of the wide variety of

site-specific conditions that may surround a particular facility and

the various flow characteristics of water bodies.

In Sec. 112.2 of the proposed rule, EPA defined ``injury'' as ``a

measurable adverse change, either long- or short-term, in the chemical

or physical quality or the viability of a natural resource resulting

either directly or indirectly from exposure to a discharge of oil, or

exposure to a product of reactions resulting from a discharge of oil.''

This definition is adopted from the Natural Resource Damage Assessments

(NRDA) rule at 43 CFR 11.14(v) to assist facility owners and operators

and RAs to determine whether a facility is located at a distance from

fish and wildlife and sensitive environments such that an oil spill

will cause ``injury.'' The Agency requested comment on the

appropriateness of defining ``injury'' in such a manner.

Several commenters stated that the definition of ``injury'' was so

broad that it would include almost every facility that stores greater

than or equal to one million gallons of oil and would result in

excessive regulation, economic burden, and unnecessary lawsuits.

Several commenters stated that EPA should limit the definition of

``injury'' so that facility owners and operators would only have to

consider the potential to cause substantial harm, rather than the

potential to cause any harm. Some commenters supported EPA's choice to

incorporate a definition of ``injury'' that was already promulgated

under other regulatory programs.

The Agency carefully considered comments on the definition of

``injury'' and consulted with NOAA and other Natural Resource Trustees

agencies as to the merits of using an alternative definition. EPA

maintains that the definition of ``injury'' is appropriate to assess

substantial harm based on the extensive experience of Natural Resource

Trustees in conducting evaluations of oil spill impacts on natural

resources. Federal officials authorized by the President and the

authorized representatives of Indian tribes and State and foreign

governments act as public trustees to recover damages to natural

resources under their trusteeship. Under the NCP, each trustee has

responsibilities for protection of resources; mitigation and assessment

of damage; and restoration, rehabilitation, replacement, or acquisition

of resources equivalent to those affected. Because of the need to

maintain consistency with the NCP, the Agency believes it is

appropriate to use the definition of injury as established by the

Natural Resource Trustees for this rule. In the preamble to the NRDA

final rule (51 FR 27706), DOI indicates that the injury definition does

not measure insignificant changes and that the definition relies on

changes that have been demonstrated to adversely impact the resources

in question, or services provided by those resources. EPA notes that

there is nothing in the definition of ``injury'' that refers to the

term harm (or substantial harm), and that the term ``injury'' is not

equivalent to these terms. The potential for a spill to cause any

injury to a fish and wildlife and sensitive environment coupled with a

total oil storage capacity of greater than or equal to 1 million

gallons forms one of the substantial harm criteria. The criterion is

designed as an indicator of the potential for a discharge from a

facility to cause substantial harm to the environment.

The Agency requested comment on whether private drinking water

supplies should be included in the criteria for determination of

substantial harm. Some commenters supported the same treatment for

private water intakes as for public water supplies if the private

drinking water supplies are surface water intakes rather than

groundwater wells. One commenter recommended that the RA consider

private drinking water intakes in the determination of significant and

substantial harm. Conversely, several commenters opposed the use of

proximity to private drinking water intakes as a criterion for the

substantial harm determination because most private drinking water

intakes use groundwater. These commenters stated that such private

intakes would be difficult to identify and locate. Two commenters

suggested that EPA should define public drinking water intakes based on

the definition of ``public water systems'' at 40 CFR 143.2(c) which

excludes private water intakes.

EPA agrees with the commenters that most private drinking water

intakes are difficult to identify and that most use groundwater. In

today's rule, EPA does not include proximity to private drinking water

intakes as a criterion for use by owners or operators to identify

whether their facility is a ``substantial harm facility.'' The RA,

however, may consider a facility's proximity to private drinking water

intakes in the determination of substantial harm or significant and

substantial harm. In Appendix C to today's rule, EPA clarifies that

public drinking water intakes are analogous to ``public water systems''

as defined at 40 CFR 143.2.

Several commenters opposed the requirements to calculate a planning

distance to determine substantial harm if a facility has adequate

secondary containment. Some commenters stated that the planning

distance calculations should reflect the presence of secondary and

tertiary containment and give credit for flow reduction measures and

inspection programs. The Conference Report states that in defining a

worst case discharge as the largest foreseeable discharge at a

facility, Congress intended to describe a spill that is worse than

either the largest spill to date or the maximum probable spill for the

facility type. (Conference Report No. 101-653, p. 147.) EPA interprets

this language to mean that facility response plans should address cases

where prevention measures could fail. Indeed, as detailed in the

Technical Background Document\4\ supporting this rulemaking, in some

cases, containment systems fail resulting in the discharge of oil to

surface waters. Therefore, EPA maintains that proximity to fish and

wildlife and sensitive environments and drinking water intakes must be

considered despite the presence of secondary containment. This is an

example of EPA's long established policy set forth in

Sec. 112.1(d)(1)(i), that the determination of proximity ``shall be

based solely upon a consideration of the geographical, locational

aspects of the facility (such as proximity to navigable waters or

adjoining shorelines, land contour, drainage, etc.) and shall exclude

consideration of manmade features such as dikes . . .'' It is also

consistent with the statutory definition of worst case discharge for

vessels, which includes the entire cargo tank capacity, whether or not

the vessel has a double hull or other spill prevention measures.

---------------------------------------------------------------------------

\4\The Technical Background Document to Support the

Implementation of the OPA Response Plan Requirements, U.S. EPA,

February 1993. Available for inspection in the Superfund Docket,

room M2615, at the U.S. Environmental Protection Agency, 401 M

Street, SW., Washington, DC 20460.

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RA Determination

Several commenters indicated their support for the provision in the

proposed rule that states factors that the RA may use

(Sec. 112.20(f)(2)) to determine whether a facility is a ``substantial

harm facility'' irrespective of the substantial harm criteria in

Sec. 112.20(f)(1). One of these commenters suggested that this

authority provides a system of checks and balances that should ensure

that all facilities subject to the regulation will be required to

comply. Other commenters expressed concern that the authority granted

to the RA in Sec. 112.20(b)(1) provides the RA with too much discretion

in determining whether a facility is a ``substantial harm facility.''

Some of these commenters suggested that the criteria used by the RA

should be objective and consistent with the criteria used by owners or

operators, and expressed confusion about the RA's authority to use

``other site-specific characteristics or environmental factors'' to

select facilities. One commenter indicated that, as proposed, the RA

would not be required to look at the relationship of the specified

criteria provided in Sec. 112.20(f)(1) (e.g., the RA may consider that

one criterion is enough to require a response plan to be submitted).

One commenter felt that there is insufficient justification in the

proposed rule for allowing the RA to select facilities that do not meet

the criteria in Sec. 112.20(f)(1).

EPA recognizes that RAs possess unique knowledge of Region-specific

considerations that may have a bearing on whether to identify a

facility as a ``substantial harm facility.'' This RA authority is

necessary, because the OPA through E.O. 12777 directs EPA ultimately to

determine which facilities are ``substantial harm facilities'' and

``significant and substantial harm facilities.'' As such, EPA retains

the RA determination component of substantial harm selection in the

final rule. In Sec. 112.20(b)(1), EPA clarifies that if such a

determination is made, the Regional Administrator shall notify the

facility owner or operator in writing and shall provide a basis for the

determination. Further, EPA notes that an appeals process is included

to allow owners or operators the opportunity to challenge the RA's

determination.

EPA is developing a guidance document to assist the RA with the

identification of ``substantial harm facilities.'' This guidance would

outline specific screening procedures for use by RAs and will foster

consistency in the way the substantial harm factors are applied.

Further, RAs may use ``Guidance for Facility and Vessel Response Plans:

Fish and Wildlife and Sensitive Environments'' (see Appendix E to this

part, section 10, for availability) and information from the ACPs, when

available, to identify fish and wildlife and sensitive environments as

part of the substantial harm determination process.

Public Petitions

Section 112.20(f)(2)(ii) allows any person who believes that a

facility may be a ``substantial harm facility'' to provide information

to the RA through a petition for his or her use in determining whether

the facility should be required to prepare and submit a response plan.

This petition must include a discussion of how the substantial harm

factors in Sec. 112.20(f)(2)(i) apply to the facility.

Commenters in favor of allowing the public to have input in the

determination of whether a facility is a ``substantial harm facility''

argued that the public should play a larger role in the selection and

review process. However, many of these commenters argued that the

proposed procedures are too burdensome for petitioners and that the

facility owner or operator should have the responsibility to provide

the necessary information. Commenters against allowing public petitions

felt that the public petition process would be burdensome to EPA and

the regulated community. Some commenters argued that the public does

not have enough information to participate in the process.

In today's final rule, EPA establishes a process to allow the

public the opportunity to provide input on a voluntary basis and

welcomes such involvement. The Agency has decided to broaden the

language in Sec. 112.20(f)(2)(ii) from the proposed rule to clarify

that other government agencies in addition to the public may provide

information to RAs for the determination of substantial harm and that

the RA shall consider such petitions and respond in an appropriate

amount of time. The Agency believes that information provided by the

public and other government agencies will assist rather than burden the

RA. However, reviewing non-transportation- related facilities' response

plans for approval is a governmental function delegated to EPA.

EPA wishes to clarify that it is not necessary for petitioners to

determine quantitatively whether the facility meets one of the specific

criteria in Sec. 112.20(f)(1), but rather to provide a reasonable

basis, from the factors in Sec. 112.20(f)(2)(i), for asserting that the

facility may pose a risk to the environment. A petition that fails to

document the reasons why a facility should be classified as a

``substantial harm facility'' (e.g., the facility is near a drinking

water supply or a priority sensitive environment listed in an ACP, the

facility has a history of frequent spills or poor maintenance, etc.)

may not be considered by the RA. However, petitioners would not have to

provide detailed analyses and calculations. Other avenues of

participation for the public in the response planning process include

involvement in the ACP development process or participation in the

LEPC.

Determination of Significant and Substantial Harm

As discussed in Section II.A of this preamble, RAs will review

submitted plans to identify facilities that are ``significant and

substantial harm facilities'' using the substantial harm factors set

out in Sec. 112.20(f)(2), and additional significant and substantial

harm factors in Sec. 112.20(f)(3).

Several commenters supported the proposed factors to determine

significant and substantial harm, indicating that EPA's use of risk-

based screening criteria for substantial harm and significant and

substantial harm determinations would reduce the prospect of excessive

regulation for those facilities that do not pose a significant risk.

Others indicated that EPA should define more clearly the criteria that

the RA would use to determine significant and substantial harm to help

ensure consistent application of the criteria both within an EPA Region

and across EPA Regions. Several commenters suggested that EPA develop a

screening mechanism that would provide the RA with some concrete

guidelines to follow but still allow some latitude to exercise his or

her expert judgment.

EPA Headquarters has provided written guidance\5\ to Regional

personnel to assist them to determine which facilities are

``significant and substantial harm facilities.'' The guidance provides

a series of screens and instructions on how to evaluate the risk

factors included at Sec. 112.20(f)(3) of today's rule. In general, the

screens provide various combinations of the risk factors that indicate

increased levels of risk posed by a particular facility. For example, a

facility that has an oil storage capacity greater than 1 million

gallons and meets more than one of the risk-based criteria described in

Sec. 112.20(f)(1)(ii) (A) through (D) would be a ``significant and

substantial harm facility.'' The guidance document will help ensure a

greater degree of consistency in Regional determinations of

``significant and substantial harm facilities,'' but preserves the RA's

ability to make case-by-case determinations based on unique facility-

or location-specific concerns.

---------------------------------------------------------------------------

\5\``Interim Guidance for the Determination of Significant and

Substantial Harm,'' U.S. EPA, June 15, 1993. Available for

inspection in the Superfund Docket, Room M2615, at the U.S.

Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460.

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One commenter noted that EPA and the USCG chose different

approaches for separating ``substantial harm facilities'' and

``significant and substantial harm facilities.'' The commenter said

that EPA's case-by-case determination of significant and substantial

harm is more subjective than the USCG's, and has the potential for

treating facility owners unequally.

EPA believes that its approach to determine substantial harm and

significant and substantial harm is consistent with the OPA and does

not diverge from the USCG's approach. The agencies' approaches are

parallel in that each accounts for the higher risk of harm associated

with transfers of high volumes of oil over water (i.e., at locations

adjacent to navigable waters). Because EPA regulates a larger and more

diverse universe of facilities than the USCG, it would be difficult to

publish a few general criteria that include the majority of high-risk

facilities without also including many low-risk facilities. Therefore,

as discussed previously, EPA decided to implement a substantial harm

selection process with two components (i.e., published criteria and an

RA determination). The OPA Conference Report explicitly states that

significant and substantial harm criteria should include, at a minimum,

oil storage capacity, location of fish and wildlife and sensitive

environments, and location of potable water supplies. (H.R. Rep. No.

101-653, 101st Cong., 2d Sess. 1991 at p. 150.) These criteria are

among the elements the RAs may consider, as set forth in

Secs. 112.20(f) (1) and (2) in making the significant and substantial

harm determination. Further, where the Conference Report states that

the criteria should not result in selection of facilities based solely

on the size or age of storage tanks (See H.R. Rep. No. 101-653, 101st

Cong., 2d Sess. 1990 at p. 150), it implies that these may be among the

criteria. EPA does not agree that its case-by-case approach to identify

a ``significant and substantial harm facility'' is overly subjective.

As previously discussed, EPA has provided written guidance to Regions

on the determination of significant and substantial harm to promote a

more objective and consistent approach across all EPA Regions.

As the President's designee for regulating non-transportation-

related onshore facilities, EPA has decided that Region-specific and

facility-specific information is relevant in the determination of

significant and substantial harm, because these elements may vary

materially between Regions and facilities. For example, some facilities

may be located on karst or unstable terrain because of the presence of

underground streams or fault lines while other facilities are situated

on more stable terrain where the risk of discharge may be lower.

Some commenters argued that the RA should review and approve plans

submitted by ``substantial harm facilities.'' They indicated that

without such approval, these plans are likely to vary widely in their

capacity to assure adequate response, and may even propose

inappropriate use of dispersants or other treatment technologies.

EPA agrees that a review of plans from ``substantial harm

facilities'' may be desirable. The OPA legislative history indicates

that criteria should be developed to select for review and approval

plans for onshore facilities that could cause both significant and

substantial harm. (See H.R. Rep. No. 101-653, 101st Cong., 2d Sess.

1990 at p. 150.) Congress expected that only some proportion of all

submitted onshore facility response plans would be reviewed and

approved. The highest priority for EPA's use of limited resources must

be directed to those facilities on which Congress has focused. The

Agency has and will continue to undertake a limited review of all plans

to identify ``significant and substantial harm facilities.''

Submission and Resubmission Process

In Secs. 112.20(a)(2)(ii) and (iii) of the proposed rule, EPA

proposed that newly constructed or modified facilities, which become

subject to the response plan requirements, must prepare and submit a

response plan prior to the start of operations of the new facility or

modified portions of the facility. For unplanned changes that result in

a facility meeting the substantial harm screening criteria, EPA

proposed to allow the facility owner or operator six months to prepare

and submit a response plan. Several commenters urged EPA to give owners

and operators time following completion of construction or modification

to prepare and submit a response plan to EPA (implying that operations

should be allowed to proceed before submission of the response plan).

Most commenters felt that the six-month time period was sufficient for

submitting a facility response plan after unplanned changes.

EPA does not require owners or operators to prepare and submit a

plan before beginning or completing construction, but prior to the

handling, storing, or transporting of oil. An owner or operator can

prepare a plan during the construction phase, and complete and submit

it before the facility is ready to come on line. EPA recognizes that

changes to a facility's operations are common during the start-up phase

of a new facility or new component of a facility. As stated in the

proposed rule preamble (58 FR 8829), adjustments to the response plan

can be made and submitted to the Agency after an operational trial

period of 60 days. In today's final rule, the Agency adds this

recommendation as a requirement at Sec. 112.20(a)(2)(ii) and (iii)

(Sec. 112.20(a)(2)(i)(B) and (C) of the proposed rule) and clarifies

that adjustments to the plan to reflect changes that occur at the

facility during the start-up phase must be submitted after an

operational trial period of 60 days. EPA believes that this revision

will ensure that the information contained in the plan is reflective of

the normal operating conditions at the facility.

Section 311(j)(5)(C) of the CWA states that facility response plans

must be updated periodically, and under section 311(j)(5)(D), EPA (as

the President's delegatee) is required to review periodically, and, if

appropriate, approve each plan for a ``significant and substantial harm

facility.'' In Sec. 112.20(g), the proposed rule provided that owners

or operators must review relevant portions of the NCP and applicable

ACP annually and revise the response plan to ensure consistency with

these plans. Section 112.20(g) of the proposed rule also proposed to

require owners or operators to update their plans periodically when

changes at the facility warrant such updates. In Sec. 112.20(c), the

proposed rule stated that the RA would review periodically response

plans for ``significant and substantial harm facilities.'' No other

specific time periods for plan review were proposed, but in the

preamble EPA solicited comments on how frequently the RA should review

approved response plans.

Several commenters suggested that the rule should provide definite

time periods for plan review, and some supported annual plan review by

each facility. Many commenters had an opinion about the frequency of

review of approved plans by the RA. Some supported a three-year time

period, but the majority preferred five years. A few commenters

expressed concern that specific reevaluation and reapproval intervals

were not part of the proposed rule.

As described in the proposed rule, the owner or operator of a

``substantial harm facility'' must review the NCP and the ACP annually

and revise the plan, if necessary, to be consistent with these

documents. (See Sec. 112.20(g)(2).) To clarify other review

requirements, EPA has reorganized Sec. 112.20(g) by removing the

requirement for periodic review and update of the plan from paragraph

(g)(1) and moving it to new paragraph (g)(3). In Sec. 112.20(c) of the

final rule, EPA revises paragraph (c)(4) to indicate that approved

plans will be reviewed by the RA periodically on a schedule established

by the RA provided that the period between plan reviews does not exceed

five years. As discussed previously, RAs may choose to stagger such

reviews to facilitate the review process. This five-year time period is

consistent with the USCG interim final rule for MTR facilities. (See 33

CFR part 154.) Within the five-year period, EPA will undertake a full

reevaluation of the plan and, if necessary, require amendments. With

regard to commenters' concerns that specific review intervals were not

identified in the proposal, periodic review is expressly required by

OPA, and EPA requested comment on what review interval would be

appropriate (See 58 FR 8828).

Proposed Sec. 112.20(d) would require owners or operators of

``significant and substantial harm facilities'' to revise and resubmit

the plan for approval within 60 days of each material change at the

facility. EPA revises Sec. 112.20(d)(1) to indicate that owners or

operators of all facilities for which a response plan is required

(``substantial harm facilities'' and ``significant and substantial harm

facilities'') must revise the plan (and resubmit relevant portions to

the RA) when there are facility changes that materially may affect the

response to a worst case discharge. This change is necessary to ensure

that EPA receives the necessary information to determine if

``substantial harm facilities'' undergo changes that could lead to

their being designated as ``significant and substantial harm

facilities.'' The requirement for the RA to review for approval changes

to plans for ``significant and substantial harm facilities'' that was

proposed at Sec. 112.20(d)(1) has been moved to new Sec. 112.20(d)(4).

Some commenters supported the 60-day time period, some thought it was

too short, and others thought it was too long. One commenter pointed

out that proposed Sec. 112.20(d)(2) implied that material changes must

be approved prior to being made. A few commenters requested

clarification on which material changes trigger resubmission, and two

commenters opposed resubmitting the entire plan, rather than a plan

amendment. EPA requested comments on the proposal in Sec. 112.20(d)(2)

that owners and operators must submit changes to the emergency

notification list to the RA as these changes occur, without

resubmitting the plan for approval. Some commenters supported the

proposal and others opposed it as an unnecessary burden.

As stated in the preamble to the proposed rule, a material change

is one that could affect the adequacy of a facility's response

capabilities. The material changes listed in the final rule are not

inclusive, but are similar to those in the USCG regulations at 33 CFR

154.1065 for revisions that must be submitted by a MTR facility for

inclusion in an existing plan or for approval. Because of the scope of

facilities that EPA regulates, it is difficult to provide a definitive

list of all material changes that would be appropriate for regulated

facilities under all circumstances. EPA's intent in including those

changes listed in Sec. 112.20(d)(1)(i) through (iv) is to describe

those types of changes that are so significant in nature that they

should trigger revision of the response plan and submission of the new

information to EPA for review.

EPA clarifies in Sec. 112.20(d) (1) and (2) that a change in the

identity of an OSRO(s) is a material change requiring approval only if

it results in a material change in support capabilities. However, a

copy of any such change must be provided to the RA. Paragraph (d)(1)(v)

specifies that any other changes that materially affect implementation

of the response plan would trigger submission. This requirement allows

the RA discretion to determine on a site-specific basis what changes

may require submission because they materially affect implementation of

the facility's response plan. The purpose of proposed Sec. 112.20(d)(2)

was to clarify that certain changes, such as revised names or telephone

numbers, do not require RA approval but must be included in updating

the plan. To avoid confusion, the word ``prior'' has been removed in

the final rule. EPA does not intend minor changes to facility

operations (e.g., small fluctuations in the number of product

transfers) or response planning procedures (e.g., changes in the

internal alerting procedures) to trigger submission.

The 60-day time period for submitting revised portions of the plan

as a result of a material change is retained in the final rule. EPA

believes the 60-day time period is reasonable and is consistent with

the intent of the OPA, while giving facility owners or operators

flexibility to comply with the response plan requirements in a timely

manner. Furthermore, to ease the burden on facility owners or

operators, EPA revises Sec. 112.20(d)(1) in the final rule to indicate

that the owner or operator must submit only relevant portions of the

plan (i.e., those portions that were revised to reflect the material

change) and not the entire response plan. This change will facilitate

the process to revise and submit required information within 60 days of

the change. RAs will review submitted information for approval and

notify owners or operators within a reasonable time if the plan

amendments are unacceptable.

Appeals Process

In the proposed rule, the Agency requested comment on allowing the

owner or operator to participate in and appeal the RA's determination

of substantial harm and significant and substantial harm, and the

disapproval of a facility response plan.

Several commenters were concerned that lack of an appeals process

would deprive facility owners or operators of their due process. Many

commenters supported a formal appeals process, while others stated that

an exchange of information before an appeal would assist the RA in

making a final determination. Others preferred a combined appeals

process, with the first stage of an appeal involving an informal

exchange of information followed, if necessary, by a formal appeals

process (such as described in Sec. 112.4(f)) to ensure due process.

Several commenters requested a process by which a facility could be

removed from the category of substantial harm or significant and

substantial harm because of improvements at the facility that lead to

reduced risk to the environment.

EPA recognizes the importance of allowing facility owner or

operators to present relevant information, and therefore includes in

Sec. 112.20(i) of today's final rule a two-part appeals process. The

first stage allows a facility owner or operator to submit to the RA a

request for reconsideration that includes information and data to

support the request. The RA would evaluate the submitted information

and reach a decision on the facility's risk classification or the

status of plan approval (including whether changes to a facility's

worst case discharge planning volume are necessary for approval) as

rapidly as possible. EPA expects that the request for reconsideration

process will be the primary mechanism to address disputes over EPA

decisions. However, a follow-up process will also be available for

appeal of the RA's determination to the Administrator of EPA using

procedures similar to those in Sec. 112.4(f).

The appeals processes described in the preceding paragraph are also

available to owners or operators of facilities that have been

classified as substantial harm or significant and substantial harm for

some time and who believe that, because of an unplanned event (e.g., a

significant change to the ACP's list of protection priorities) or

improvements at the facility (e.g., construction of adequate secondary

containment or an improved spill history), the facility now poses a

lower risk of harm to the environment.

Certification of Non-Substantial Harm

EPA proposed in Sec. 112.20(e) to require that owners or operators

of those regulated facilities not submitting response plans complete

and maintain at the facility, with the SPCC Plan, a certification form

that indicates that the facility was determined by the owner or

operator not to be a ``substantial harm facility'' as indicated by the

flowchart contained in Appendix C.

Several commenters supported EPA's proposal to allow facilities to

self- certify when they do not meet the criteria for substantial harm

and agreed that submission of the form to EPA was unnecessary. However,

other commenters were concerned that there is no outside review or

verification of a facility owner's or operator's evaluation of the

substantial harm criteria. Those commenters suggested that the rule be

amended to require officials from EPA or some other agency (e.g., the

State water pollution control agency, the SERC, the LEPCs, or the

natural resource management agencies) review determinations and

calculations made by facility owners or operators who have not

submitted facility response plans. Others requested that EPA provide

more assistance to ensure that certification is done properly (e.g., a

hotline or guidance manual). Several commenters indicated that

completing the form was burdensome, especially to small facilities, and

questioned the benefits of completing and maintaining the form.

Today, EPA finalizes at Sec. 112.20(e) the requirement to complete

and maintain a certification form as it was proposed in the proposed

rule. EPA maintains that it is not necessary to submit the form to the

RA or other government officials. EPA believes that the certification

form does not involve a major effort to complete and has value as an

enforcement tool and as a record of awareness of response planning

requirements. Facility owners or operators can, if necessary, consult

with appropriate Regional personnel or the SPCC Information Line (202-

260-2342) for additional information on evaluating the criteria in

Sec. 112.20(f)(1) and completing accompanying certification form.

Agency agrees that verification of a facility's determination may

sometimes be appropriate. EPA anticipates that during facility

inspections, Regional personnel will review the certification form and

other information for facilities without a response plan.

Model Response Plan

Today, EPA finalizes the model response plan in Appendix F (which

has been relabeled from the proposed rule where it was called Appendix

G) with a series of minor changes. These changes are to clarify certain

provisions, improve the organization of the model plan, and ensure

greater consistency with the response plan rules of other Federal

agencies.

In the proposed rule, EPA proposed that owners or operators

identify and describe the duties of the facility's ``emergency response

coordinator'' in the facility response plan. This person was to be the

``qualified individual'' required by section 311(j) of the CWA, and

would have full authority, including contracting authority, to

implement removal actions. Proposed Sec. 112.20(h)(3)(ix) set out the

duties of the emergency response coordinator. The USCG's interim final

rule (58 FR 7330, February 5, 1993) requires the owner or operator to

name a ``qualified individual'' who has the duties of EPA's ``emergency

response coordinator.'' Several commenters suggested EPA and the USCG

adopt uniform terms in their final rules for identifying this

individual. One commenter specifically suggested that EPA replace

``emergency response coordinator'' with the USCG's term, ``qualified

individual.''

EPA agrees, and has changed the term ``emergency response

coordinator'' wherever it appears in today's rule to ``qualified

individual.'' Although EPA is not amending the necessary qualifications

or description of duties for the qualified individual, the Agency

stresses that the qualified individual should be able to respond

immediately (i.e., within 2 hours) to a spill at the facility.

In section 1.1 of Appendix G of the proposed rule (Appendix F in

the final rule), the Agency indicated the Emergency Response Action

Plan (ERAP) shall include a description of immediate actions, and

referenced section 1.7 of the model plan. Several commenters requested

clarification on what should be described in this section. To clarify

what constitutes a description of immediate actions, EPA has changed

the reference for immediate actions to section 1.7.1, which focuses on

the implementation of response actions. For the purpose of the ERAP,

immediate actions include, at a minimum: (1) Stopping the flow of

spilled material (e.g., securing pumps, closing valves); (2) warning

personnel; (3) shutting off ignition sources (e.g., motors, electrical

circuits, open flames); (4) initiating containment; (5) notifying the

National Response Center; and (6) notifying appropriate State and local

officials. A sample form for describing immediate actions in the plan

is also included in Appendix F.

In Sec. 112.20(h)(3)(vii) of the proposed rule, EPA proposed to

require facility owners or operators to include plans for evacuation of

facilities and surrounding communities to ensure the safety of

individuals that are at high risk in the event of a spill or other

release (this information was also to be included in the emergency

response action plan). Several commenters stated that requiring

facilities to assume primary responsibility for the development of

evacuation plans for the surrounding community is unreasonable. These

commenters stated that Federal, State, and local agencies, which have

expertise in emergency evacuation, are responsible for the preparation

and implementation of community evacuation plans.

EPA does not intend for facilities to develop community evacuation

plans, but any plans affecting the area surrounding the facility must

be referenced in the response plan. Sections 112.20 (h)(1)(vi) and

(h)(3)(vii) are revised to clarify the requirement to reference

community evacuation plans. Facility owners or operators should contact

the Fire Department and LEPC to assure coordination with existing

community evacuation plans.

In section 1.4.3 of proposed Appendix G (Appendix F in this final

rule), EPA recommended that facility owners or operators complete a

quantitative analysis of spill potential to aid in developing discharge

scenarios and response techniques, and consider factors such as tank

age, spill history, horizontal range of a potential spill, and

vulnerability to natural disasters. Several commenters stated that the

analysis was unnecessary and burdensome, and requested guidance about

the level of effort the Agency expects to be expended to analyze a

facility's spill potential (e.g., tank by tank evaluation, general site

study).

In response to commenters' concerns, EPA has reworded section 1.4.3

of the appendix by deleting the word ``quantitative'' from the

description of the spill probability analysis. This should decrease the

burden on the regulated community by giving facility owners and

operators the flexibility to determine what factors to consider and

allowing them to perform a more general analysis, including

quantitative and/or qualitative factors, using the information in

section 1.4.3 of the model plan as a guide.

In section 1.8 of Appendix G of the proposed rule, EPA proposed to

require facilities to maintain training and meeting logs in the

response plan to aid facility owners, operators, and employees in spill

prevention awareness and response requirements. Several commenters

stated that including logs within the response plan would detract from

their effectiveness. In response to these commenters' concerns, the

Agency indicates in Sec. 112.20(h)(8)(iv) and in Appendix F of the

final rule that logs may be included in the facility response plan or

kept as an annex to the plan.

To facilitate the review of response plans for complexes, EPA

requires in today's final rule that the owner or operator of a complex

identify, on the facility diagram submitted with the response plan, the

interface between portions of the complex that are regulated by

different agencies. (See section 1.9 of Appendix F.) EPA requires this

interface to be consistent with the USCG's interim final rule for MTR

facilities.

Facility Response Plan Certification

In Section III.G of the preamble to the proposed rule, EPA

requested comment on a requirement for certification by a Registered

Professional Engineer (PE) for certain portions of the response plan,

such as determination of worst case discharge. EPA also solicited

comment on which professions may be suitable to evaluate and certify

the contents of the response plan if EPA determines a certification

requirement is appropriate. In particular, the Agency requested comment

on the suitability of Certified Hazardous Materials Managers to perform

the plan certification function.

The Agency received many comments on the issue of certification of

response plans. In general, commenters expressed support for the

rulemaking effort and the certification provision, and sought EPA's

consideration on the suitability of different professions to review and

approve response plans. Among the remaining commenters (those not

affiliated with an environmental professional organization), almost

two-thirds felt that certification was unnecessary and cited cost, PE's

unfamiliarity with the facility, and EPA review as the major reasons

for their opposition. Some commenters indicated that, at most,

certification should be limited to construction or structural aspects

of the facility described in the response plan, because oil spill

response training and knowledge is not widespread among many

environmental professionals. Others said they would favor certification

only if an in-house employee could perform the function. In addition,

many commenters who supported the certification provision requested

that EPA develop uniform standards for certifying, ranking, and

approving the use of different types of environmental professionals.

The Agency considered these comments and has decided not to require

plan certification by an outside professional in the final rule.

Facility response plans from ``significant and substantial harm

facilities'' are already subject to review and approval by EPA. In

addition, facility owners and operators are required to certify (on the

cover sheet in Appendix F) that the information contained in the plan

is accurate. EPA believes that this certification will be sufficient to

ensure accurate and comprehensive implementation of the response plan

requirements and that additional certification would be unnecessary and

burdensome to the regulated community. This approach is consistent with

the approaches taken by RSPA and the USCG in implementing facility

response plan requirements.

Contract or Other Approved Means

In Sec. 112.2 of the proposed rule, EPA defined ``contracts or

other approved means'' to include written contractual agreements with

an OSRO(s), written certifications, active membership in an OSRO, and

other specific arrangements approved by the RA. EPA's intent in

including the fourth option was to allow the RA discretion to accept

alternate arrangements not covered by the first three mechanisms that

would also satisfy the OPA requirement to ensure the availability of

private personnel and equipment necessary to respond, to the maximum

extent practicable, to a worst case discharge.

The comments addressing this issue were mixed. Commenters, in

general, requested that EPA's definition more closely mirror the

definition used in the USCG's interim final rule for MTR facilities.

(See 33 CFR 154.1028.) Some commenters requested that EPA adopt, in

addition to the proposed language, several additional methods that the

USCG included in its definition. One method provides an alternative for

use by all MTR facilities to ensure the availability of response

resources. The method requires a document that identifies the resources

of the OSRO(s) capable of being provided within stipulated response

times in the specific geographic area; includes the parties'

acknowledgement that the OSRO(s) will commit the resources in the event

of a required response; allows the USCG to verify the availability of

documented resources; and is referenced in the response plan. Another

USCG method, acceptable for ``substantial harm facilities'' and MTR

facilities that handle, store, or transport Group 5 persistent oils and

non-petroleum oils, permits the identification of an OSRO(s) and

resources willing to respond within stipulated response times in the

specified geographic area. This method does not require a contract

between the facility and OSRO(s), but requires the OSRO(s) to supply a

letter to the facility stating its willingness to respond to a

discharge at the facility and that it has the specified resources.

Commenters explained their preference for these two methods to ensure

consistency with the USCG's interim final rule for MTR facilities,

avoid different procedures for complexes, address small contractor

financial concerns, and reduce confusion among the regulatory agencies

reviewing plans to ensure response contractor capabilities.

Several commenters supported EPA's proposed definition citing its

greater simplicity and flexibility; however, these commenters stressed

that the RA be granted broad flexibility in exercising his or her

authority to determine appropriate ``other approved means.''

In today's final rule, the definition of ``contract or other

approved means'' has been revised to replace the term ``response

contractor'' with the term ``oil spill removal organization(s)'' to

match the USCG's language. For clarification, EPA also adds a

definition for ``oil spill removal organization'' in Sec. 112.2 of

today's rule. The definition is similar to that used in the USCG's

interim final rule for MTR facilities. An OSRO is defined as an entity

that provides response resources, and includes any for-profit or not-

for-profit contractor, cooperative, or in-house response resources that

have been established in a geographic area to provide required response

resources. These changes do not alter the meaning of the term

``contract or other approved means'' as originally proposed. The EPA

definition includes four means that owners or operators can use to

ensure the availability of required response resources. The first is a

written contract with an OSRO(s) (i.e., a response contractor). The

second is for the facility owner or operator to provide and operate

facility-owned equipment. The third is active membership in an OSRO(s)

(i.e., a local or Regional oil spill response cooperative).

Finally, EPA's fourth means has the flexibility inherent in the

USCG's previously referenced methods in that it allows all regulated

facilities to propose other means of demonstrating adequate response

capability, subject to approval by the appropriate RA. Among the kinds

of instruments which an RA might find a sufficient means of ensuring

availability of required resources is a document that incorporates the

elements set out in the USCG's interim final rule for MTR facilities at

33 CFR 154.1028(a)(4) (i) through (iii). For example, an RA might find

a document sufficient to ensure availability if it identified the

response resources being provided by the OSRO(s); set out the parties'

acknowledgement that the OSRO(s) intends to commit the resources in the

event of a response; permitted EPA to verify the availability of

resources through tests, inspection, and drills/exercises; and is

referenced in the response plan.

Maximum Extent Practicable

The OPA requires that a facility response plan be developed to

respond to the maximum extent practicable, to a worst case discharge of

oil. The Conference Report states that to determine maximum extent

practicable, the President should ``consider the technological

limitations associated with oil spill removal, and the practical and

technical limits of the spill response capabilities of individual

owners and operators.'' (H.R. Rep. No. 101-653, 101st Cong., 2d Sess.

1991 at p. 150.)

In Sec. 112.2 of the proposed rule, EPA proposed to define

``maximum extent practicable'' as ``the limitations used to determine

oil spill planning resources and response times for on-water recovery,

shoreline protection, and cleanup for worst case discharges from

onshore non-transportation-related facilities in adverse weather. The

appropriate limitations for such planning are available technology and

the practical and technical limits on an individual facility owner or

operator.''

Numerous commenters objected to EPA's definition. Many of the

commenters argued that EPA did not consider economic limits in defining

maximum extent practicable, and that Congress intended for EPA to

evaluate costs and other economic considerations in defining the term.

Two commenters suggested that EPA amend the term to include the word

``economic.'' Another commenter stated that Congress intended for the

Agency to apply the concept based on what is technologically and

economically feasible for an individual owner or operator, and EPA was

remiss in failing to engage the industry in a discussion of costs from

the industry's perspective. This last point, they argued, was

compounding the USCG's failure to engage the industry in a ``full-blown

discussion of costs'' during its Negotiated Rulemaking on the vessel

oil response plan rule. The commenter argued further that in

determining ``maximum extent practicable'' for owners and operators,

EPA was required to factor in public response resources.

One commenter said that there are so few oil spill response

organizations available that the demand for their services to meet

worst case discharge planning volumes would place an undue financial

burden on facility owners and operators who must procure those

services. Another commenter suggested a revision to the definition to

delegate authority to the RA to decide what ``maximum extent

practicable'' means. Some said that EPA should revise the definition to

make it more consistent with the USCG's.

EPA has factored costs into the definition of maximum extent

practicable through procedures contained in Appendix E to today's rule

to be used by owners or operators to determine appropriate levels of

response resources. (As discussed later in this preamble, the

requirements in Appendix E were prepared from a similar set of

instructions developed by the USCG.) For example, in determining what

is ``practicable,'' Appendix E sets caps for the facility on the amount

of response resources for which a facility owner or operator must

contract or ensure by other approved means. These caps reflect the

limits of currently available technology and private removal

capabilities, and will be adjusted upward to reflect anticipated

increases in private removal capabilities through the year 2003.

Appendix E also includes tiered arrival times for response resources so

that a facility owner or operator does not have to plan for all

required resources to be located at the facility or in its immediate

area.

With regard to the involvement of Federal response resources in

determining maximum extent practicable, EPA notes that a major

objective of the OPA amendments to section 311(j)(5) of the CWA is to

create a system in which private parties supply the bulk of response

resources needed for an oil spill response in a given area. A worst

case discharge will likely require the use of both public and private

resources. However, section 311(j)(5)(C)(iii) states specifically that

a facility owner or operator must identify and ensure by contract or

other approved means the availability of private personnel and

equipment necessary to remove to the maximum extent practicable a worst

case discharge. EPA cannot, in defining ``maximum extent practicable,''

abrogate this statutory requirement.

In response to the comment that the rule will benefit response

contractors at great cost to owners and operators, EPA notes that the

statute requires owners and operators to ensure the availability of

private resources. In setting out four ways to ensure availability

(only one of which is a written contractual agreement), EPA has

attempted to give private parties the maximum possible flexibility to

construct arrangements to meet this statutory objective.

EPA agrees with the commenters who suggested that the definition of

maximum extent practicable be made more consistent with the USCG's and

that the RA have the ability to evaluate ``maximum extent practicable''

in a given Region. Therefore, in Sec. 112.2 of the final rule, the

definition of ``maximum extent practicable'' is revised to be more

consistent with the USCG's and to include a provision on RA authority.

Other Definitional Changes

Commenters suggested that EPA and the USCG should better coordinate

certain parts of their respective regulations to allow complexes to

follow a single set of requirements. As discussed in Section I.C of

this preamble, EPA and the USCG participated in a series of cross-

agency meetings to facilitate consistency in response plan

requirements. In today's final rule, EPA has revised the definitions of

``adverse weather'' and ``contracts or other approved means'' in

Sec. 112.2 of the rule; added a definition of ``oil spill removal

organization'' in Sec. 112.2 of the rule; and revised ``Great Lakes,''

``higher volume port area,'' and ``inland area'' in Appendix C of the

rule to more closely follow the USCG's definitions in its interim final

rule for MTR facilities. In addition, EPA adds to Appendix E

definitions for the terms ``nearshore,'' ``ocean,'' ``operating area,''

and ``operating environment,'' also adopted from the USCG's interim

final rule for MTR facilities. These revisions are conforming changes

and are for the most part non-substantive. A summary of the changes

follows. (The definitions of ``contracts or other approved means'' and

``oil spill removal organization'' are discussed elsewhere in this

preamble.)

The definition of ``adverse weather'' is revised to

include references to weather conditions such as wave height, ice

conditions, temperatures, weather-related visibility, and currents

within the area in which the equipment is to function. These changes

result in an expanded definition of ``adverse weather'' that is as

consistent as possible with the USCG definition of the same term, that

incorporates relevant weather conditions which contribute to adverse

weather, and that maintains a standard against which to evaluate

weather conditions.

A definition of ``oil spill removal organization'' (OSRO)

has been added, because this term is included in the definition of

``contract or other approved means.''

The definition of ``Great Lakes'' is revised to match the

USCG's definition.

The definition of ``higher volume port area'' was revised

to add several port areas contained in the USCG's definition.

The definition of ``inland area'' was changed to remove

rivers and canals from the water bodies that are excluded in the USCG's

definition.

The definition of ``nearshore'' was added to ensure

greater consistency with the USCG's interim final rule for MTR

facilities and facilitate the use of Appendix E.

The definition of ``ocean'' as it applies to facilities in

EPA's jurisdiction was added to be consistent with the USCG's interim

final rule for MTR facilities and facilitate the use of Appendix E.

``Ocean'' describes the operating environment normally found in

nearshore areas.

The definition of ``operating area'' was added to be

consistent with the USCG's interim final rule for MTR facilities and

facilitate the use of Appendix E. ``Operating area'' means the

geographic location in which a facility is handling, storing, or

transporting oil. The four operating areas applicable to EPA's

jurisdiction are Rivers and Canals, Inland Areas, Nearshore, and Great

Lakes. The operating area classification may not be changed by the OSC

and the boundaries of each area are specified in their definition.

The definition of ``operating environment'' was added to

be consistent with the USCG's interim final rule for MTR facilities and

facilitate the use of Appendix E. ``Operating environment'' means the

conditions in which the response equipment is designed to function. The

four operating environments are Rivers and Canals, Inland Areas, Great

Lakes, and Oceans. The OSC may reclassify a specific body of water in

the ACP to better reflect conditions expected to be encountered in an

operating area during response activities.\6\

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\6\The conditions present in each operating environment (i.e.,

significant wave height and sea state) are listed in Table 1 of

Appendix E and will normally be conditions present in each

corresponding operating area. For example, an owner or operator

whose facility is located on a river (i.e., the Rivers and Canals

operating area) will normally have to plan to respond to a spill

using equipment capable of functioning in the Rivers and Canals

operating environment, (i.e., the conditions described by a

significant wave height of less than or equal to 1 foot or a sea

state of 1). The Ocean operating environment normally describes the

conditions present in the Nearshore operating area (i.e.,

significant wave height of less than or equal to 6 feet and a sea

state between 3 and 4). While the OSC can not change the operating

area, he or she may change the operating environment for a given

location if it is determined that the new operating environment

better describes the conditions present at that location. Any

reclassification of a specific location must be done in the

appropriate ACP.

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These changes should eliminate confusion on the part of owners or

operators of complexes in complying with the response plan requirements

contained in today's rule, and facilitate the development of a single

plan with separate sections addressing each component of a complex

regulated by more than one agency.

Equipment Requirements

In Appendix F to the proposed rule (Appendix E in this final rule),

EPA provided methodologies to assist facility owners and operators in

determining the types and amounts of equipment and response times that

are needed to respond to spills of a given size. As discussed

previously, the methodologies were prepared from similar instructions

developed by the USCG and adapted to reflect the type and location of

facilities that EPA regulates. The Agency requested comment on the

procedures contained in Appendix F of the proposed rule for the

determination and evaluation of required response resources. In

addition, EPA solicited comment on whether the methodologies are

appropriate for planning for inland spills by owners or operators of

non-transportation-related onshore facilities.

Numerous comments were received on proposed Appendix F (Appendix E

in this final rule). In general, commenters requested that EPA and the

USCG work toward facilitating a greater degree of consistency in their

respective sets of equipment requirements. As discussed previously, a

series of cross-agency meetings were conducted to resolve differences

between the approaches taken by the various Federal agencies

implementing OPA requirements.

For reasons discussed earlier in this preamble, proposed Appendix F

has been renamed and relettered as Appendix E of today's final rule and

the mandatory nature of certain requirements has been clarified while

preserving flexibility for facilities with unique circumstances. Other

changes (including the definitional changes already discussed) have

been made to ensure consistency with Appendix C of the USCG's interim

final rule for MTR facilities. Consistency between the rulemakings will

help the regulated community to develop and implement response plans

efficiently. A discussion of the major issues raised by commenters on

the equipment appendix follows.

In the table in section 5.3 of the appendix, tiered response times

for facilities in the Great Lakes operating area were grouped with the

response times for the Higher Volume Port operating areas. Commenters

stated that EPA's tiered response times should match those used by the

USCG. To maintain consistency with the USCG, EPA has changed the Table

in section 5.3 of Appendix E. The Great Lakes have been grouped with

all other rivers, inland, and nearshore areas into Tiers 1, 2, and 3

with response times of 12, 36, and 60 hours, respectively. Conforming

changes are also included in section 7.2.3 of Appendix E.

Because of the frequency of spills to shallow waters and the need

for specialized recovery devices in these environments, EPA adds

section 5.6 to Appendix E. This section was adopted from the USCG's

interim final rule for MTR facilities and requires facility owners or

operators to ensure that resources are available for shallow water

response activities. The provisions indicate that at least 20 percent

of the on-water response equipment should be identified for operating

in water 6 feet deep or less.

In the proposed rule, EPA proposed that owners or operators

consider four groups of oil (the heavier oils were included in the

Group 4 oils) when evaluating response resources. Commenters stated

that EPA should adopt a separate category for oils with a specific

gravity greater than or equal to 1.0 and provide appropriate guidelines

to determine response resources for discharges of such oils. In today's

rule, EPA adds a category for Group 5 oils to the definition of

``persistent oils.'' Group 5 oils are oils with a specific gravity of

greater than or equal to 1.0. Because Group 5 oils sink or remain

suspended beneath the water's surface, the resources and techniques

that needed to respond to discharges of these types of oils are

different from those used to respond to discharges of oils that float

on water. Response resource requirements and the specific conditions

that owners and operators need to consider when planning to respond to

discharges of Group 5 oils are added in section 7.6 of Appendix E. To

ensure adequate response resource planning, EPA clarifies in section

7.2.2 of Appendix E that, in order to identify the required amount of

response equipment, facilities handling, storing, or transporting some

combination of Group 1 through 4 oils (e.g., a Group 1 oil and a Group

3 oil) must do separate calculations using the worksheet in Attachment

E-1 for each oil group on site except for those oil groups that

constitute 10 percent or less by volume of the total storage capacity

at the facility. Owners or operators must then select the oil group

that results in the largest on-water recovery volume to plan for the

amount of response resources for a worst case discharge. (Group 5 oils

should be addressed separately using the separate procedures to

determine response resources that are contained in Appendix E.)

In the proposed rule, EPA proposed that owners or operators of

facilities that handle, store, or transport, non-petroleum oils

calculate an amount of response equipment by grouping all non-petroleum

oils as Group 4 oils and using the associated emulsification factors

and other parameters listed in the tables of Appendix F of the proposed

rule. Some commenters suggested that EPA establish separate response

plan requirements and selection criteria for owners or operators of

facilities that handle, store, or transport non-petroleum oils. These

commenters argued that fundamental chemical and physical differences

between petroleum and non-petroleum oils indicate the necessity for

different response techniques and equipment. Two of the commenters

stated that USCG regulations create separate response plan development

and evaluation criteria for non-petroleum oils, and one commenter

recommended that EPA adopt the USCG criteria. Some commenters stated

that for the purposes of this rulemaking, the term ``oil'' should

exclude non-petroleum oils.

EPA has determined that for the purposes of section 311(j)

planning, the OPA includes non-petroleum oils. The Agency notes that

the definition of ``oil'' in the Clean Water Act includes oil of any

kind, and that EPA uses this broad definition in 40 CFR part 110,

Discharge of Oil.

EPA agrees with commenters that certain equipment and strategies

used for petroleum oil spills may be inappropriate for non-petroleum

oil. The Agency further agrees that making its regulations match the

USCG's as nearly as practicable will reduce the prospects for confusion

among facility owners or operators--especially owners or operators of

complexes. Reducing confusion, in turn, increases compliance at the

least possible cost and expedites the development of a national oil

response planning program. Therefore, the Agency has decided to adapt

for non-transportation-related facilities under EPA jurisdiction, the

USCG approach to determine response resources for non-petroleum oils.

This adaptation means that in calculating required response

resources for non-petroleum facilities, an owner or operator will not

use emulsification or evaporation factors in Table 3 of Appendix E.

Rather, these facility owners or operators must: (1) Show procedures

and strategies for responding to the maximum extent practicable to a

worst case discharge; (2) show sources of equipment and supplies

necessary to locate, recover, and mitigate discharges; (3) demonstrate

that the equipment identified will work in the conditions expected in

the relevant geographic areas, and respond within the required times

(according to Table 1 of Appendix E); and (4) ensure the availability

of required resources by contract or other approved means. At such time

as there are results from research on such factors as emulsification or

evaporation of non-petroleum oil, additional changes may be made to the

rule for response resources for response planning for non-petroleum oil

facilities. Section 7.7 has been added to Appendix E to reflect these

changes.

Several commenters noted that the statutory definition of oil

includes a wide variety of oils, such as petroleum oils and non-

petroleum oils that can affect the environment by a variety of

mechanisms. Response strategies associated with non-petroleum oils may

differ from those associated with petroleum oils. Therefore, EPA is

providing these definitions to assist owners or operators in

distinguishing between oil types.

Petroleum oil means petroleum in any form including crude

oil, fuel oil, mineral oil, sludge, oil refuse, and refined products.

Non-petroleum oil means oil of any kind that is not

petroleum-based. It includes animal fat, vegetable oil, and other non-

petroleum oil.

Animal fat means a non-petroleum oil, fat, or grease

derived from animal oils not specifically identified elsewhere.

Vegetable oil means a non-petroleum oil or fat derived

from plant seeds, nuts, kernels or fruits not specifically identified

elsewhere.

Other non-petroleum oil means a non-petroleum oil of any

kind that is not generally an animal fat or vegetable oil.

Additional changes made to the equipment requirements to match the

USCG's requirements are as follows:

Section 2.3.1 is added. This section indicates that the RA

may require owners or operators to identify in the facility response

plan boom that meets the boom criteria in Table 1 of Appendix E. If

documentation that the boom meets the Table 1 criteria is unavailable,

the RA may require that the boom be tested in accordance with ASTM

standards.

The on-water speed for determining the travel time to the

site of the discharge was adjusted from 10 knots to 5 knots in section

2.6 of Appendix E.

A provision was added to section 3.3.1 of Appendix E for

complexes with a marine transfer component to provide an amount of boom

that is equal to two times the length of the largest vessel that

transfers oil at the facility or 1,000 feet, whichever is greater. For

complexes, the non-transportation-related portion of the facility

response plan need not include reference to boom length if it is

already referenced in the MTR portion of the facility response plan.

Language was added to section 5.4 of Appendix E to

indicate that facility owners or operators whose planning volume

exceeds the caps in Table 5 of Appendix E must identify sources of

additional equipment; and clarify that facility owners or operators who

have identified USCG-classified OSROs are not required to list specific

quantities of available equipment in their response plan.

A provision was added to section 6.2 of Appendix E to

allow the RA to assign lower efficiency factors to equipment when

warranted.

A provision was added to section 6.3 of Appendix E to

allow the facility owner or operator to use equivalent tests of

effective daily recovery rates when approved by EPA.

Section 6.4 has been renumbered to 6.3.2 and provisions

added for RA determination of acceptable alternative efficiency factors

and effective daily recovery capacity.

Sections 7.4, 7.6.3, and 7.7.5 are added to clarify that

owners or operators must identify firefighting resources in addressing

response resources under the plan.

Criteria for containment boom in the ocean operating

environment were added to Table 1 of Appendix E.

EPA considered whether to adopt language in Appendix E to address

the use of dispersants and in-situ burning. Some commenters suggested

that the Agency address these response measures using Section 8 of the

USCG's Appendix C as a model. In today's final rule, EPA has included

some information from Section 8 of the USCG's Appendix C to address the

use of dispersants listed on the NCP Product Schedule. Use of

dispersants during spill response will be based on the provisions of

the NCP\7\ and applicable ACP. The USCG permits a limited offset

against required response resources if the use of dispersants or in-

situ burning is part of the response strategy. EPA will not include

such an offset for non-transportation-related facilities for two

reasons. To date, the ACPs do not allow use of dispersants in inland

waters and a facility under EPA jurisdiction in a coastal area cannot

use dispersants given the shallow water depth.

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\7\Facility owners or operators may call the NCP Hotline at 202

260-2343 for information on the current NCP Product Schedule.

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Verification of Response Capability

In the preamble to the proposed rule, EPA stated that it may use

various methods (including an OSRO certification or approval program)

during the plan review process to evaluate the availability and

adequacy of personnel and equipment to respond to a worst case

discharge, to the maximum extent practicable. The Agency has reviewed

the USCG OSRO classification process. This is a voluntary process

whereby OSROs can submit a description of their resources and

capabilities to the USCG National Strike Force Coordination Center and

be evaluated for classification according to their capabilities. This

process assists vessel and facility owners trying to locate appropriate

resources, and simplifies the planning process by allowing these owners

(who identify an OSRO(s) to meet response resource requirements) simply

to list the OSRO(s) and its classification in the response plan, rather

than list equipment recovery, containment, and storage resources in the

plan. The Agency specifically requested comments on the criteria to

evaluate OSRO agreements, a mechanism for approving OSROs, and the

advisability of establishing an OSRO approval process.

Most commenters agreed that EPA should establish its own OSRO

classification process or use the USCG's classification process to

streamline the development of facility response plans. Many of these

commenters agreed that EPA should coordinate with the USCG in planning

such a program, if it is to be different from the USCG's classification

process. Several commenters specifically mentioned that details of

response resources should not be required within the response plans.

These commenters felt that this information would distract from the

emergency purpose of the document. A few commenters offered additional

criteria to be used in the evaluation of response resources. In

dissent, some commenters requested a ``standardization approach'' using

performance criteria instead of a classification process.

EPA is not implementing a new OSRO classification program at this

time. Facility owners or operators can rely on the USCG OSRO

classification process or other appropriate OSRO evaluation programs in

place at the State level for defined geographic areas (e.g., State of

Washington) to identify in the plan resources to respond to a worst

case discharge, to the maximum extent practicable. However, where the

provider of response resources is not a USCG-classified OSRO (or State-

evaluated OSRO), RAs have the option to perform their own evaluation or

verification to ensure that equipment is available and is in proper

condition. In this evaluation, the RA may consider several factors

including: the proximity of response resources to the facility; the

adequacy of equipment and personnel resources; the OSRO's past

performance and safety record; the number of additional facilities the

OSRO has agreed to support; knowledge of state-of-the-art response

techniques; knowledge of local fish and wildlife and sensitive

environments and the ACP; the adequacy of the incident command

structure; record-keeping practices for personnel safety equipment; and

proficiency in spill management. This evaluation may involve visiting

such organizations to determine whether equipment is available and in

good working order. Facility owners or operators also should consider

such factors when they evaluate the capabilities of an OSRO(s) to be

listed in the response plan. RAs also may evaluate an OSRO's

capabilities (including the facility owner's equipment and response

resources when this is the case) during PREP area drills/exercises. EPA

chose not to adopt a specific classification program of its own to

avoid an additional step in the process to prepare and review facility

response plans.

Fish and Wildlife and Sensitive Environments

EPA has identified proximity to fish and wildlife and sensitive

environments as a factor in the substantial harm determination. EPA

intended for owners or operators to use Appendix D of the proposed rule

as interim guidance for the identification of environmentally sensitive

areas until ACPs were available. Several commenters urged EPA to allow

facility owners or operators to use the NCP or ACPs for the

identification of environmentally sensitive areas. Other commenters

stated that the definition of ``environmentally sensitive areas'' was

too broad, making it difficult to use in the determination of

substantial harm. Some commenters objected to the listing of particular

areas (e.g., wetlands, national monuments) as sensitive, while others

requested that additional areas (e.g., water intakes for electric

utilities and municipalities, National and State parks, and National

forests) be included in the definition of sensitive environments.

As discussed previously, EPA does not include proposed Appendix D

in this final rule. To serve the purpose of proposed Appendix D (i.e.,

to guide owners or operators in identifying fish and wildlife and

sensitive environments), EPA adds a general definition of ``fish and

wildlife and sensitive environments'' at Sec. 112.2 of the final rule

and references certain documents for further information. The

definition, adapted from the text of proposed Appendix D, reads as

follows: ``areas that may be identified by either their legal

designation or by evaluations of Area Committees (for planning) or

members of the Federal On-Scene Coordinators spill response structure

(during responses). These areas may include wetlands, National and

State parks, critical habitats for endangered/threatened species,

wilderness and natural resource areas, marine sanctuaries and estuarine

reserves, conservation areas, preserves, wildlife areas, wildlife

refuges, wild and scenic rivers, recreational areas, national forests,

Federal and State lands that are research national areas, heritage

program areas, land trust areas, and historical and archeological sites

and parks. These areas may also include unique habitats such as:

aquaculture sites and agricultural surface water intakes, bird nesting

areas, critical biological resource areas, designated migratory routes,

and designated seasonal habitats.'' To help facility owners or

operators better address required fish and wildlife and sensitive

environments concerns, EPA contributed to a governmental committee

formed by various Federal agencies to develop a consistent definition

of fish and wildlife and sensitive environments. The committee was made

up of representatives from various Natural Resource Trustee agencies

and from the agencies with OPA response plan authority. After

considering comments on the EPA's proposed rule, the committee

developed an interagency guidance document based on the information

contained in Appendix D of the proposed rule. The introductory text has

been expanded to explain in more detail some environmental sensitivity

issues, and address the substance of the public comments that EPA and

the USCG received on this subject. To ensure more comprehensive

response planning and to better protect fish and wildlife and sensitive

environments, Attachment D-IV (``Vulnerability of Aquatic Ecosystems'')

and Attachment D-V (``Vulnerability Scale of Aquatic Habitats Impacted

by Oil Spills'') of proposed Appendix D have been replaced by Appendix

IV (``Sensitive Biological and Human-Use Resources'') and Appendix V

(``Ranking of Shoreline Habitats Impacted by Oil Spills''),

respectively in the DOC/NOAA guidance.

In addition, other environmental areas were added to those listed

in Appendix D, Attachment D-I (``Responsible Federal Agencies for

Specific Environmental Resources''), such as the National Forest

System, Areas of Critical Environmental Concern, and cultural

resources. This guidance also contains additional mailing addresses and

phone numbers of government offices where facility owners or operators

may obtain additional information. The document titled, ``Guidance for

Facility and Vessel Response Plans: Fish and Wildlife and Sensitive

Environments,'' was published in the Federal Register by DOC/NOAA at 59

FR 14714, March 29, 1994. In today's rule, EPA has removed the

Environmentally Sensitive Areas appendix that was proposed in the

proposed rule and references to the appendix contained in proposed

Sec. 112.20. EPA refers facility owners and operators to Appendices I,

II, and III of DOC/NOAA's guidance for guidance to identify fish and

wildlife and sensitive environments until geographic-specific annexes

to the ACPs are refined to the point where they address fish and

wildlife and sensitive environments concerns in detail. As discussed

previously, in the inland zone (as defined in 40 CFR 300.5), ACPs have

been developed and will undergo continuous refinement. Facility owners

or operators may contact the appropriate Regional office for fish and

wildlife and sensitive environments information as it becomes

available.

Worst Case Discharge

Under Sec. 112.20(h)(5) of the proposed rule, owners or operators

who must prepare a facility response plan under Sec. 112.20 must

calculate a worst case discharge quantity as described in proposed

Appendix E. (Appendix E has been relabeled as Appendix D in today's

final rule.) This worst case discharge scenario, in turn, directly

influences the quantity of spill response resources that must be

available to the facility, as outlined in Appendix D. In the proposed

rule, the determination of the worst case discharge volume is based on

the facility's oil storage capacity, with additional factors taken into

account for multiple-tank facilities with secondary containment or

adjacent to navigable waters. EPA requested comments on allowing a

reduction in the worst case discharge planning amount for facilities

with adequate secondary containment in place.

One commenter stated that no reduction should be allowed for

secondary containment, because oil spills frequently occur during

transfer operations that take place outside of secondary containment.

The commenter added that, even for those spills that occur within

contained areas, a worst case discharge scenario should assume some

failure of containment systems (as has happened historically in spills

from facilities with secondary containment). Numerous commenters

requested that EPA grant credit for secondary containment in the

formula to calculate a facility's worst case discharge, thereby

reducing the amount of response resources for which the facility would

need to plan. Many of these commenters generally supported credit for

secondary containment, because containment will reduce the quantity of

a spill that escapes from the facility and impacts the environment.

Other commenters argued that credit for secondary containment would

provide an incentive to the regulated community to enhance facility

spill prevention systems, while others contended that the probability

of both the tank and its secondary containment failing simultaneously

is extremely small.

In response to commenters' concerns, EPA has modified Appendix D to

allow a 20 percent reduction in the worst case discharge amount at

single-tank facilities for the presence of adequate secondary

containment (i.e., containment equal to 100 percent of tank capacity

plus sufficient freeboard for precipitation). The amount of this

percentage reduction is based on an analysis of the percentage of

released oil reaching navigable waters in the historical spill record

from EPA's Emergency Response Notification System database.\8\ EPA

believes that the data do not support granting a larger credit, nor do

they show that a smaller credit should be established. Historical data

illustrate that secondary containment is not always completely

effective, due to wave effects, breaches in containment walls, or

operator error (such as an open secondary containment drainage valve).

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\8\The Technical Background Document to Support the

Implementation of the OPA Response Plan Requirements, U.S. EPA,

February 1993. Available for inspection in the Superfund Docket,

room M2615, at the U.S. Environmental Protection Agency, 401 M

Street, SW., Washington, DC 20460.

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With respect to multiple-tank facilities, EPA notes that it is

finalizing the proposed credit for secondary containment at these

facilities. As in the proposed rule, the calculation method in the

final rule focuses on the oil storage capacity of the largest tank

within a secondary containment area or a group of tanks permanently

manifolded together within a common secondary containment area as a

planning amount for the worst case discharge. This amount reflects a

credit for secondary containment resulting in a lesser planning amount

than the capacity of all tanks within secondary containment or the

capacity of all tanks at the facility. Facilities that lack secondary

containment would therefore be required to include the capacity of all

storage tanks without secondary containment in their worst case

discharge volume, while those facilities with credit for secondary

containment would only need to consider the capacity of the largest

tank or group of tanks within a single secondary containment area. As

such, the presence of secondary containment leads to a significant

credit that reduces the worst case discharge planning amount and the

associated response resource requirements.

Numerous commenters requested that EPA grant credit for facility

spill prevention measures and practices (other than secondary

containment) in the calculation of the worst case discharge. Specific

preventive measures mentioned by commenters include tertiary

containment, conformance with American Petroleum Institute tank

standards, automatic shutdown systems, high-level alarms, corrosion

protection, and hydrostatic testing. Many commenters generally

supported credit for specific preventive measures because of the

capacity of such measures to reduce spill size or spill migration. Many

commenters also argued that credit for other spill prevention measures

would provide incentives to the regulated community to enhance spill

prevention systems. Owners or operators would implement such measures

to decrease the worst case discharge volume, and thus, decrease

necessary expenditures for planning and response resources.

In today's final rule, EPA retains the credit for secondary

containment at the facility, but does not provide additional credits to

facilities for the presence of such preventive measures in the

calculation of the worst case discharge. Although EPA encourages

facilities to implement additional preventive measures such as those

cited by the commenters, the Agency believes that the effects of these

measures on the size and impact of a potential spill are not readily

quantifiable, nor as easily supported with historical spill evidence,

as those of secondary containment. In addition, the Agency believes

that granting credit for these prevention measures likely would require

a more detailed verification and inspection process than would granting

credit for secondary containment. Further, Congress' intent was that

planning reflect the worst case discharge, and that the private sector

be encouraged to increase its spill response capability.

In the calculation of a worst case discharge, EPA proposed to

require multiple-tank facilities with secondary containment for which

the nearest opportunity for discharge (i.e., storage tank, piping, or

flowline) is adjacent to navigable water, to incorporate an additional

10 percent factor in the calculation of the worst case discharge

quantity. (See Parts A3 and B3 of Appendix E of the proposed rule.) The

Agency proposed the 10 percent distinction in the calculation of a

worst case discharge volume between multiple-tank facilities adjacent

to navigable waters and those not adjacent to navigable waters as a

safety factor to address the potential for releases from multiple

tanks.

Many commenters opposed the use of a 110 percent planning volume

for facilities located adjacent to navigable water, because a facility

could not discharge more than 100 percent of its capacity. Some

commenters apparently did not realize that the provision only applied

to multiple-tank facilities, and argued that the 110 percent planning

volume factor should be eliminated because it is impossible for a

single tank to discharge more than 100 percent of its capacity.

EPA has considered these comments and has decided to eliminate

consideration of a facility's location adjacent to navigable waters

from the calculation of the worst case discharge. Adding an additional

10 percent to the planning volume is unnecessary, because the

emulsification table in Appendix E will account for removing material

in excess of tank capacity for all petroleum facilities for which an

owner or operator must plan under this rule. There is no need to impose

an additional cost burden on multiple-tank facility owners and

operators for proximity to navigable waters. In Appendix D of today's

final rule, the worksheets have been changed accordingly; this change

will simplify the calculation and reduce confusion in the regulated

community.

Several commenters requested that EPA clarify its definition of

``permanently manifolded tanks'' used in the calculation of a worst

case discharge volume. Several commenters expressed confusion about

whether permanently manifolded tanks connected by piping systems with

valves that are normally shut, and permanently manifolded tanks that

are separated by internal divisions in the secondary containment area,

are considered separate tanks for purposes of the worst case discharge

calculation.

The proposed definition of ``permanently manifolded tanks''

indicated that such systems were to be considered as separate tanks for

the worst case discharge calculation. However, to better clarify EPA's

intent, the definition of ``permanently manifolded tanks'' has been

modified slightly in Appendix D of the final rule. The changes make it

clear that within a common secondar

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