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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-15404

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** July 1, 1994

## Text

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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

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.
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\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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-15404. Public record. Not legal advice.