National Oil and Hazardous Substances Pollution Contingency Plan; Final Rule ENVIRONMENTAL PROTECTION AGENCY

SUMMARY: In this rulemaking, the U.S. Environmental Protection Agency

(EPA or ``the Agency'') is promulgating revisions to the National Oil

and Hazardous Substances Pollution Contingency Plan (NCP). The Oil

Pollution Act of 1990 (OPA) amends existing provisions of the Clean

Water Act (CWA) and creates major new authorities addressing oil and,

to a lesser extent, hazardous substance spill response. The amended CWA

required the President to revise the NCP to reflect these changes. The

OPA specifies a number of revisions to the NCP that enhance and expand

upon the current framework, standards, and procedures for response. The

last revisions to the NCP were promulgated on March 8, 1990 (55 FR

8666). The proposed revisions upon which this rulemaking is based were

published on October 22, 1993 (58 FR 54702). Today's revisions affect

all NCP subparts except F (State Involvement in Hazardous Substance

Response) and I (Administrative Record for Selection of Response

Action).

EFFECTIVE DATE: October 17, 1994.

ADDRESSES: Copies of materials relevant to the rulemaking are contained

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

Agency, 401 M Street, SW., Washington, DC 20460. (Docket Number NCP-R2/

A) This docket is available for inspection between the hours of 9:00 am

and 4:00 pm, Monday through Friday, excluding federal holidays.

Appointments to review the docket may be made by calling 202-260-3046.

The public may copy a maximum 266 pages from any regulatory docket at

no cost. If the number of pages copied exceeds 266, however, a charge

of $0.15 will be incurred for each additional page, plus a $25.00

administrative fee. The docket will mail copies of materials to

requestors who are outside the Washington, DC metropolitan area.

FOR FURTHER INFORMATION CONTACT: Richard Norris, Emergency Response

Division (5202G), U.S. Environmental Protection Agency, 401 M Street,

SW., Washington, DC 20460, or call 703-603-9053.

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed

in the following outline:

I. Introduction.

II. Discussion of Selected Comments and Other Changes by

Subpart.

III. Summary of Supporting Analyses.

I. Introduction

A. Statutory Authority

Under section 311(d) of the Clean Water Act (CWA), as amended by

section 4201 of the Oil Pollution Act of 1990 (OPA), Pub. L. 101-380,

and pursuant to authority delegated by the President in Executive Order

(E.O.) No. 12777, the U.S. Environmental Protection Agency (EPA), in

consultation with the member agencies of the National Response Team

(NRT), is today promulgating revisions to the National Oil and

Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300.

Some of the major goals of the OPA that affect the NCP include

expanding prevention and preparedness activities and enhancing response

capability of the federal government.

One of the primary purposes of the NCP is to provide for efficient,

coordinated, and effective action to minimize adverse impact from oil

discharges and hazardous substance releases.1 Today's revisions

incorporate changes made by the OPA that have expanded federal removal

authority, added responsibilities for federal On-Scene Coordinators

(OSCs), and broadened coordination and preparedness planning

requirements.

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\1\Throughout the NCP, ``discharge'' also includes ``substantial

threat of discharge,'' and ``release'' also means ``threat of

release.''

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The OPA was enacted to strengthen the national response system. The

OPA provides for better coordination of spill contingency planning

among federal, state, and local authorities. The addition of the

National Strike Force Coordination Center (NSFCC), for example, is

expected to relieve equipment and personnel shortages that have

interfered with response to oil spills posing particularly significant

environmental or human health threats. Today's rule revises the NCP to

implement a strongly coordinated, multi-level national response

strategy. The national response strategy, contained primarily in

Subparts B and D of the NCP, provides the framework for notification,

communication, logistics, and responsibility for response to discharges

of oil, including worst case discharges and discharges that pose a

substantial threat to the public health or welfare of the United

States. The amended NCP further strengthens the OSC's ability to

coordinate the response on-scene and also incorporates a new OPA-

mandated level of contingency planning--Area Committees and Area

Contingency Plans (ACPs). These committees and plans are designed to

improve coordination among the national, regional, and local planning

levels and to enhance the availability of trained personnel, necessary

equipment, and scientific support that may be needed to adequately

address all discharges.

The major revisions to the NCP being promulgated today reflect OPA

revisions to CWA section 311. These changes increase Presidential

authority to direct cleanup of oil spills and hazardous substance

releases and augment preparedness and planning activities on the part

of the federal government, as well as vessel and facility owners and

operators. For example, revised CWA section 311(c) requires the

President to direct removal actions for discharges and substantial

threats of discharges posing a substantial threat to the public health

or welfare of the United States. Revised section 311(d) requires a

number of specific changes to the NCP, including the establishment of

``criteria and procedures to ensure immediate and effective Federal

identification of, and response to, a discharge, or the threat of a

discharge, that results in a substantial threat to the public health or

welfare of the United States.''

Section 311(d) also mandates the establishment of procedures and

standards for removing a worst case discharge of oil and for mitigating

or preventing a substantial threat of such a discharge. Furthermore,

this section requires the NCP to establish a fish and wildlife response

plan ``for the immediate and effective protection, rescue, and

rehabilitation of, and the minimization of risk of damage to, fish and

wildlife resources and their habitat that are harmed or that may be

jeopardized by a discharge.'' Section 311(d)(2)(G) authorizes

consideration of ``other spill mitigating devices and substances'' for

inclusion on the NCP Product Schedule, and section 311(d)(2)(L)

requires the establishment of procedures for the coordination of

activities of OSCs, Area Committees, U.S. Coast Guard (USCG) strike

teams, and District Response Groups (DRGs).

Section 311(j)(2) of the CWA requires that a national response

unit, included in today's revisions as the NSFCC, be established in

Elizabeth City, North Carolina. The NSFCC ``shall compile and maintain

a comprehensive computer list of spill removal resources, personnel,

and equipment'' and ``shall provide technical assistance'' to OSCs.

Section 311(j)(2) provides that the NSFCC will also coordinate efforts

to remove worst case discharges. Pursuant to section 311(j)(3), the

USCG must establish DRGs in each of the 10 USCG districts to provide

``technical assistance, equipment, and other resources'' to OSCs to

assist their response activities. Pursuant to CWA section 311(d)(2)(K),

OSCs must be designated for each area for which an ACP is required to

be prepared.

Section 311(j)(4) addresses the development of an expanded national

oil spill response planning system. Under this section, Area

Committees, which are composed of qualified federal, state, and local

agency personnel, are directed to develop ACPs that will address

planning and response-related issues and concerns, including removal of

worst case discharges, responsibilities of owners and operators and

government agencies in removing discharges, and procedures for

obtaining an expedited decision regarding the use of dispersants.

CWA section 311(j)(5) requires that the President issue regulations

within two years of enactment of the OPA for owners or operators of

certain vessels and facilities to prepare response plans to address,

among other matters, response to a worst case discharge to the maximum

extent practicable. These facility response plans are required to be

consistent with the NCP and with ACPs. For onshore facilities that can

cause ``significant and substantial harm'' in the event of a worst case

spill, these plans must be approved by the federal government. Pursuant

to E.O. 12777, EPA developed regulations that include the criteria for

determining which onshore, non-transportation-related facilities are to

submit response plans and which of these plans are to be reviewed and

approved by EPA, requirements for the preparation of those plans, and

criteria for EPA's review and approval of the submitted plans. The

Agency promulgated these regulations on July 1, 1994 (59 FR 34070). EPA

has developed a data base to track facility response plans. The

Department of Transportation (DOT) and the Department of the Interior

(DOI) developed similar regulations, for offshore and transportation-

related facilities, pipelines, and vessels.

B. Background of This Rulemaking

The President signed the OPA on August 18, 1990, after both houses

of Congress passed the Act unanimously. After several similar proposals

had been unsuccessful over the past 15 years, Congress enacted this

legislation partly in response to the Exxon Valdez spill and several

other incidents, including the Mega Borg and the American Trader

spills.

In a Notice of Proposed Rulemaking (NPRM) published on October 22,

1993 (58 FR 54702), EPA proposed the OPA-required revisions to the NCP.

A public meeting on the proposal was held in Seattle, Washington on

January 14, 1994. EPA received 41 comment letters during the public

comment period. A detailed Response to Comments document, providing the

Agency's response to all comments received, is included in the Docket.

II. Discussion of Selected Comments and Other Changes by Subpart

This section of the preamble provides a subpart-by-subpart and

section-by-section summary of all changes that have been made to the

proposed rule published on October 22, 1993. Some of these changes have

resulted from comments received; others have resulted from inter-agency

federal workgroup deliberations, during which it was determined that

additional clarification was needed.

This section also contains responses to selected comments received

on the proposed revisions. In addition to responses to those comments

that resulted in rule language changes, EPA has included responses to

other comments that addressed ``major'' issues and those on which the

Agency thought it was particularly important to clarify its position

for the entire regulated community. Every comment received was reviewed

and a response to all comments can be found in a comprehensive Response

to Comments document which is included in the Docket. For a complete

discussion of the proposed revisions, the majority of which are being

promulgated as final regulations by this action, the reader is referred

to the detailed preamble discussion in the October 22, 1993 NPRM (58 FR

54702).

Subpart A--Introduction

Section 300.3--Scope

One commenter suggested that, rather than stating in

Sec. 300.3(b)(6) that the NCP provides for ``designation'' of federal

trustees, it would be more appropriate to indicate that such

designation occurs through E.O. 12580. EPA agrees with the commenter's

point, but will substitute ``listing of'' for ``designation'' rather

than modify the text to discuss designation occurring through the

Executive Order, as the commenter suggests.

One commenter asked EPA to define consistency with the NCP as those

actions that are not prohibited by the NCP itself or by the express

instructions/directions of the federal OSC.

Consistency with the NCP is a phrase that is used in and key to

liability under section 107 of the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA), Pub. L. 96-510, 42

U.S.C. 9601 et seq. EPA is concerned that defining consistency in the

NCP itself could artificially and unnecessarily constrain Agency

response and enforcement actions. No definition could ever be

sufficiently precise to cover all situations; each response under the

NCP is unique in some way and every response scenario is unlikely to be

captured by a single definition. Therefore, the recommendation has not

been adopted.

Section 300.4--Abbreviations

In response to the addition of the U.S. Navy Supervisor of Salvage

(SUPSALV) elsewhere in today's final rule, ``SUPSALV'' is being added

to the list of abbreviations.

Section 300.5--Definitions

Many of the commenters raised definitional issues related to

concerns in other subparts of the proposed rule. These issues are

addressed in the context of those subparts. However, several commenters

raised concerns independent of other issues, including the following:

One commenter noted that the Federal Response Plan is

identified as being signed by 27 federal departments in the preamble,

and as having been signed by 25 departments in the definition of

Federal Response Plan. This discrepancy was due to the fact that the

Federal Response Plan was recently signed by two additional federal

departments. Thus, the correct number of signatories is 27 and

Sec. 300.5 has been modified accordingly.

Three commenters asked if each village/community

affiliated with an Indian or Eskimo tribe would qualify as an ``Indian

tribe,'' and therefore have Regional Response Team (RRT)

representation, although different villages may be of the same tribal

ancestry. ``Indian tribe,'' as defined by the OPA and the NCP, excludes

``any Alaska Native regional or village corporation.''

One commenter asked that the definition of ``Lead

administrative trustee'' be made consistent with the definition in the

National Oceanic and Atmospheric Administration (NOAA) damage

assessment regulation to clarify between two concepts that will be used

in related NOAA and USCG regulations--the lead administrative trustee

and a federal lead administrative trustee. EPA agrees with the

commenter; the NOAA damage assessment regulation definition for lead

administrative trustee will be used in the NCP.

One commenter recommended that the ``National response

system'' be defined as being composed of two distinct entities: a

planning body and a response body. Furthermore, the commenter suggested

that the incident command system be the basic response structure/

organization and members of the planning body would function as an

integral part of the incident command system as opposed to a separate

advisory group. EPA disagrees that the definition of the national

response system should be revised as recommended to reflect ``a

planning body and a response body.'' Some of the organizations referred

to by the commenter--such as the NRT and the RRTs--have

responsibilities related to both planning and response. The NRT, for

example, has responsibilities for planning and preparedness, but also

may be activated for response to oil discharges or hazardous substance

releases (see Sec. 300.110). EPA has, however, clarified Figure 1 by

dividing it into two figures (Figures 1a and 1b) to better illustrate

the response and planning processes. In addition, EPA would like to

clarify that, although the national response system meets the

requirements of 29 CFR 1910.120 concerning the use of an incident

command system, it is not the same as many of the typical incident

command systems used by states, industry, and local responders. EPA has

eliminated references to an incident command system in the definition

of national response system to avoid any confusion on this point. The

Agency also has eliminated an erroneous reference to ``IRPM'' resulting

from a typographical error.

One commenter noted that the definition of ``navigable

waters'' does not conform to the recently revised definition in 40 CFR

110.1. EPA agrees that the language should be revised to be consistent

with the current definition of the same term at 40 CFR 110.1.

Specifically, subparagraph (f) of the 40 CFR part 110 regulations

concerning wetlands provides that ``[n]avigable waters do not include

prior converted cropland'' (58 FR 45035, August 25, 1993). In this

final rule, EPA has added the appropriate language to Sec. 300.5.

One commenter outlined a decision-tree process (using a

series of yes/no questions) to clarify what is and is not ``oil.'' The

process was suggested to be used instead of the proposed NCP

definition. This decision-tree analysis would distinguish oil from

CERCLA hazardous substances and other man-made chemicals. EPA believes

that reliance on the OPA definition of oil provides the most reliable

determination of what is and is not oil. The commenter's approach,

therefore, has not been adopted.

Related to the definition of oil, one commenter asked EPA

to provide additional guidance regarding the classification of a spill

as ``oil'' or ``hazardous substances'' and the appropriate use of the

Oil Spill Liability Trust Fund (OSLTF) or CERCLA for response.

Specifically, the commenter suggested addressing two issues: (1)

appropriate response and funding for spills of statutorily defined

``oil'' which may exhibit, if tested, characteristics of a CERCLA

``hazardous substance'' in either its initial or weathered state; and

(2) response and funding where both ``oil'' and CERCLA ``hazardous

substances'' may be involved in a discharge or substantial threat of a

discharge. The commenter's concerns touch on interagency policy issues

that will be decided on a case-by-case basis between EPA and the USCG.

The Agency does not wish to limit its flexibility in such matters by

implementing the commenter's suggestions for revising the NCP.

Also related to the definition of oil, one commenter

argued that the treatment of animal fats and vegetable oils in the NCP

is inconsistent with established regulatory principles and with

available scientific data. The commenter stated that animal fats and

vegetable oils are substantially less harmful to the environment than

petroleum-based oils and suggested that the rulemaking be amended to

differentiate between types of oils and provide for a different

approach to response and removal methodologies for animal fats and

vegetable oils than that required for petroleum oil. EPA disagrees that

the treatment of animal fats and vegetable oils is inconsistent with

established regulatory principles. The Agency notes that the definition

of ``oil'' in the CWA includes oil of any kind, and that EPA uses this

broad definition in 40 CFR part 110, the Discharge of Oil rule. The

applicability of CWA section 311 regulations to non-petroleum oils,

including potentially harmful effects of animal and vegetable oil

spills, has already been discussed in the 1987 rulemaking to revise 40

CFR part 110. EPA considers certain harmful effects of non-petroleum

oil discharges to be similar to those of petroleum oils, including the

drowning of waterfowl, fishkills due to increased biological oxygen

demand, asphyxiation of benthic life, and adverse aesthetic effects (52

FR 10718).

Three commenters asked that the definition of ``On-Scene

Coordinator (OSC)'' be changed to ``Federal On-Scene Coordinator

(FOSC)'' to distinguish it from state and local OSCs. As defined, OSC

means a federal official; therefore, there is no need to modify the

terms as suggested or to refer to the OSC as the FOSC. Also, EPA has

revised the definition of OSC to delete the second mention of the term

``federal,'' for clarification. Finally, the word ``government'' has

been added to modify the phrase ``official designated by the lead

agency'' to clarify that the functions of the OSC cannot be delegated

to non-government personnel.

Two commenters stated that the definition of ``Removal

costs'' needs to be expanded to include cost recovery for hazardous

substance response incidents. The definition, taken from the statute,

clearly indicates that it is limited to ``removal costs'' as defined in

the OPA. Thus, it correctly relates only to oil spill response efforts.

Noting that the OPA imposes a number of requirements on

``Tank vessels'' and ``Facilities,'' one commenter asked that these

definitions be modified to exclude dedicated oil spill response vessels

and temporary storage tanks. The commenter also requested that the

definition of ``tank vessel'' not include temporary storage bladders

(TSBs), indicating that the Customs Service recently clarified that

TSBs used for oil cleanups are not ``vessels'' for purposes of the

``Jones Act.'' EPA does not believe there is a compelling reason to use

a definition of ``tank vessel'' or ``facility'' in the NCP that differs

from the definition in the statute. Furthermore, the Agency believes

the commenter is raising what are fundamentally vessel and facility

response plan issues more appropriately addressed in the various

response plan rules.

One commenter asked that the definition of the term

``Trustee'' be expanded to include not only foreign government

officials who may pursue claims for damages, but anyone who may have a

claim for damages. Section 1006 of the OPA designates trustees and

describes the functions to be carried out by these trustees. That

section does not envision ``anyone who may have a claim for damages''

within the range of individuals who would be designated as trustees for

purposes of pursuing claims for damages to natural resources. This does

not, however, preclude any individual from pursuing a claim for damages

other than natural resource damages.

One commenter recommended that EPA clarify the definition

of ``Worst case discharge'' to indicate more clearly that the terms and

requirements for worst case discharges apply only to discharges of oil

and not to releases of hazardous substances. The CWA definition of

worst case discharge (section 311(a)(24)) does not specify whether it

applies to only oil or to both oil and hazardous substances regulated

under the CWA. CWA section 311(d) requires the NCP to include

``procedures and standards for removing a worst case discharge of oil *

* *.'' CWA section 311(j)(5) requires tank vessel and facility response

plans addressing worst cases discharges ``of oil or a hazardous

substance.'' EPA does not want to further confuse matters by deviating

from the statutory definition. The Agency believes it is sufficiently

clear that NCP Sec. 300.324, ``Response to Worst Case Discharges,'' is

limited to oil as it is contained within subpart D, ``Operational

Response Phases for Oil Removal.''

One commenter argued that the definition of ``Worst case

discharge'' or ``largest foreseeable discharge'' should be based on

site-specific conditions or an optional default amount based on the

type of non-transportation-related facility. The commenter believes

that using options will encourage installation of additional

containment structures and ultimately reduce the frequency and size of

facility spills. EPA has chosen to rely on the definition from the OPA,

which is amenable to site-specific applications. Regarding the role of

an optional default amount, the Agency believes that this is more

appropriately addressed in vessel and facility response plan

regulations.

Subpart B--Responsibility and Organization for Response

Section 300.105--General Organization Concepts

One commenter recommended that a paragraph be added describing the

basic ``incident command system'' used by the federal government. The

commenter suggested that this would add credibility to the NCP, because

such a system has been implemented by ``the majority of progressive

states and responsible parties'' and ``the more advanced districts and

regions of the Coast Guard and EPA'' as the national standard for

organizing spill response. Another commenter agreed and stated that

this discussion should include a description of the five response

functions and the federal agencies that are likely to take the lead in

filling each function. Still another commenter stated that the

``unified command system'' structure: (1) Clarifies that one

individual, the OSC, retains ultimate decisionmaking authority; and (2)

reflects appropriate response roles for other participants such as

state OSCs, responsible parties, and private contractors.2

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\2\Several comments on sections of Subpart B other than

Sec. 300.105 also addressed the incident command system and the

unified command. Because the response presented here encompasses the

concerns raised by those comments, such comments are not presented

separately in the preamble. All individual comments and responses on

all sections of Subpart B, as well as other subparts, appear in

their entirety in the Response to Comments document.

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The commenters' recommendations emphasize the importance of

clarifying the basic framework for the response management structure in

the NCP. EPA agrees that the NCP should be revised to address this

topic more explicitly. New subparagraphs (d) and (c) have been added to

Secs. 300.105 and 300.305, respectively, and a new sentence has been

added to the end of subparagraph (d) of Sec. 300.135 describing the

response management structure as a system (e.g., a unified command

system) that brings together the functions of the federal government,

the state government, and the responsible party to achieve an effective

and efficient response, where the OSC maintains authority. (The state

government, at its discretion, may solicit local government involvement

in this structure.) EPA would like to restate that although the goal of

this structure is to reach consensus whenever possible, the OSC always

retains the authority to take all actions that he or she deems

appropriate. Area Committees will be responsible for developing

detailed response management structures for their areas based on the

broad guidelines provided in the NCP.

EPA would also like to clarify that although the national response

system meets the requirements of 29 CFR 1910.120 as an incident command

system, it is not one of the several systems currently in use by local

fire fighters around the country and separately referred to as ``the''

traditional incident command system. Most of these other response

management systems are patterned after systems developed by such

organizations as the National Fire Academy and the National Interagency

Fire Center. These systems were developed for operations where control

of resources and personnel is placed on a single incident commander.

The emphasis during oil spill response is on coordination and

cooperation, rather than on a more rigid system of command and control.

The OSC, the state/local government representatives, and the

responsible party all are involved with varying degrees of

responsibility, regardless of the size or severity of the incident. The

OSC in every case retains the authority to direct the spill response,

and must direct responses to spills that pose a substantial threat to

the public health or welfare of the United States. In many situations,

however, the OSC will choose to monitor the actions of the responsible

party and/or state/local governments and provide support and advice

where appropriate. The response management structure does not attempt

to prescribe a specific item-by-item functional description of where

particular organizations or individuals fit within a single response

structure for a given response. Developing, adopting, and implementing

a response management system, such as a unified command system, is the

responsibility of the OSC and the Area Committee, through the ACP.

The response organization in an ACP must be designed to recognize

two basic facts: (1) All key players in the response management

structure may have job responsibilities in addition to response and

preparedness, and (2) some of these responsibilities fall outside the

scope of the NCP and thus would not be subject to the response

structure described in the ACP.

Based on these facts, an area's response management system should

recognize that key players will maintain a separate internal response

management infrastructure during a response. The goal of the area's

response management system is to identify how those participating in

the response management structure can best communicate and coordinate

with each other for planning, logistics, finance, operations, and

communications to ensure effective response coordination. Because the

key players differ from area to area, Area Committees must have the

flexibility to tailor systems to their basic organization for the

specific area. It is beyond the scope of the NCP to prescribe or

endorse a particular version of incident command; to do so would be

counterproductive to the very purpose of Area Committees and ACPs.

Four commenters recommended various changes to Figure 1, ``National

Response System Concepts.'' Each of these commenters stated that the

responsible party should be included in Figure 1 because the

responsible party, along with the federal OSC and state OSC, will

operate in a triad structure in the unified command. One of the

commenters stated that Figure 1 should reflect the participation of

local governments and tribes on the RRT. This commenter stated that the

current Figure 1 ultimately will hamper the efficiency of incident

response, because it does not accurately reflect the roles of these

entities. Three commenters recommended that the unified command be

incorporated to more accurately illustrate the command structure. Two

commenters stated specifically that the figure should be revised to

show that state and local responders are accountable to the federal

OSC. One commenter suggested that two new figures be added, one showing

the organization for planning and preparedness, and the other showing

the organization for response. The same commenter also recommended

that, to minimize the complexity of the national response system,

separate figures should be created for hazardous substance (CERCLA) and

oil (CWA) responses. In addition, the commenter suggested consideration

of separate figures for EPA's inland zone and USCG's coastal zone.

In response to concerns raised by the commenters, EPA has clarified

Figure 1 depicting the national response system by dividing it into two

separate figures--one for response (Figure 1a) and the other for

planning (Figure 1b). These new figures illustrate a response

management system (e.g., a unified command system) that brings together

the functions of the Federal Government, the state government, and the

responsible party to achieve an effective and efficient response, where

the OSC maintains authority. EPA believes that Figure 1a illustrates

clearly that the OSC always retains the authority to take all actions

that he or she deems appropriate.

Footnote 2 to Figure 1b references coordination with other existing

response plans prepared under the OPA and other statutes. Information

from such industry plans should be considered by Area Committees in

developing and improving ACPs. This includes information that becomes

available from risk management plans prepared under section 112(r) of

the Clean Air Act, as well as from other federally mandated plans. EPA

believes that this information not only will be useful in developing

contingency plans, but that consideration of such information also will

help avoid unnecessary overlap and duplication of planning

requirements.

Local governments are not shown on the RRT in Figure 1b because

they participate only at the discretion of the state. Indian tribes are

not shown separately because they are included in the definition of the

term ``State'' as used in the NCP (Sec. 300.5).

With regard to the recommendations to develop separate figures for

hazardous substances and oil responses as well as for coastal zone and

inland zone responses, EPA believes that the new response and

preparedness figures present a useful summary of the national response

system that accurately reflects all of these categories of responses.

The four additional figures, therefore, are unnecessary and have not

been included.

One commenter suggested including a statement regarding the Federal

Government's oversight role in situations where the responsible party

is responding adequately. The commenter explained that the government's

response role includes oversight as well as cleanup, but that oversight

appears to have been overlooked throughout the preamble and proposed

rule.

Section 300.305(d) (formerly (c)) of the NCP provides that, except

in a case when the OSC is required to direct the response to a

discharge that may pose a substantial threat to the public health or

welfare of the United States, the OSC may allow the responsible party

to voluntarily and promptly perform removal actions, provided the OSC

determines such actions will ensure an effective and immediate removal

of the discharge or mitigation or prevention of a substantial threat of

a discharge. If the responsible party does conduct the removal, the OSC

shall ensure adequate surveillance over whatever actions are initiated.

The Agency believes that this provision provides adequate guidance

regarding the OSC's oversight role during responsible party removal

actions. Additional detail on this topic in the NCP would unnecessarily

limit the flexibility of the OSC in choosing and implementing

appropriate oversight activities.

Section 300.110--National Response Team

Seven commenters expressed concern regarding the membership and

responsibilities of the NRT. These commenters suggested that states,

responsible parties, and cleanup contractors either be represented on

the NRT or have input into response decisions.

One commenter reasoned that state representation on the NRT would

increase recognition of the state role in federal response action.

Other commenters noted that the decisions of the NRT affect the

planning, preparedness, and, ultimately, response actions of

responsible parties and that such parties have technical expertise that

could be valuable in NRT meetings. One commenter believed that the

proposed rule did not encourage the NRT to solicit input from

stakeholders. The commenter also suggested that all workgroup meetings

conducted in conjunction with NRT meetings be open to the public to

encourage improved communication on planning and response issues.

Another commenter recommended that cleanup contractors be included in

the decisionmaking committees and scientific support described in the

NCP. This commenter reasoned that federal and state government

personnel do not physically clean up spills; instead, it is the private

contractors who are hired by the responsible party or government agency

and who consequently have hands-on knowledge of and experience with

state-of-the-art cleanup techniques. Two commenters suggested that, in

contrast to the Area Committees, many of the RRT subcommittees are

completely closed to private parties.

EPA agrees that input from states and private parties helps the NRT

to function more effectively and that private party involvement with

the RRTs can have the same result. States and private parties are

encouraged to attend NRT meetings and in the case of private parties,

RRT meetings. Those who wish to attend should contact the NRT Secretary

or RRT co-chairs so that appropriate logistical arrangements can be

made. In some instances, however, attendance by states or private

parties may not be feasible or appropriate. For example, although the

meetings of the standing RRT are open, the meetings of the RRT in

executive session or as an incident-specific team are not open to

private parties because this would interfere with inherently

governmental functions. Specifically, attendance and participation by

private parties could slow certain time-critical decisions, such as

which particular federal, state or local government, or private party

resources the RRT should request to respond to a discharge or release.

Section 300.115--Regional Response Teams

Three commenters believed that local governments should not be

represented on the RRT because the RRT should not become overwhelmed by

local representatives if it is to be effective in addressing regional

issues during emergency responses. One of these commenters explained

that state representatives could coordinate with local governments and

communicate their issues to the RRT. Under Sec. 300.115, local

governments are represented directly on the RRT by the state, and local

input is coordinated through the state's representative. EPA believes

this is an efficient means of local government representation on the

RRT that does not impair the effectiveness of the RRT to address

regional issues.

Three commenters argued that RRTs should not duplicate the planning

role of the Area Committees because RRTs are not mentioned and have no

statutory basis in the OPA. One of these commenters recommended that

RRT members participate in Area Committees directly, rather than

through the RRT. One commenter suggested that the NCP ``find a real

place for the RRT within the [incident command system] structure or

consider eliminating this body.'' This commenter's major concern

appears to be that the RRT structure assumes one state agency can

represent all state and local entities, but the federal government must

be represented by 16 agencies. According to the commenter, this

seriously undermines RRT credibility at the state and local level.

EPA believes there are several significant distinctions between the

geographic responsibilities of RRTs and Area Committees that impart

unique and essential functions to the two entities. Regions are

envisioned to have multiple areas; in its planning and coordination

role, the RRT provides oversight and consistency review for areas

within a given region. This includes facilitating the process of

ensuring that Area Committees within a region are mutually supportive

and that links to extra-regional response concerns, considerations, and

capabilities are maintained. This regional/area approach allows local

area personnel to focus on specific issues such as risks, sensitive

area prioritization, and response strategies that need to be tailored

to a smaller, more manageable geographic scale.

With regard to state representation on the RRT, the purpose of

having a single representative is to make it possible for the state,

rather than the RRT itself, to resolve intra-state disagreements.

States may designate at least one alternate member to attend RRT

meetings as a way to better ensure intra-state coordination, for

example, between the state agency handling emergency response and the

environmental agency, health agency, and the State Emergency Response

Commission (SERC).

Two commenters stated that the role of the RRT during response

should be limited to providing support to the OSC, upon request, as

part of the unified command structure. The commenters argued that at no

time should a specific RRT be given an operational role in response

without placing that role in the unifying context of the incident

command system.

EPA believes that the commenters' recommendation for the RRT

members to provide response support to the OSC is already consistent

with the current national response system, when implemented during

spill cleanup operations. Although the RRT is a separate and distinct

entity with clearly defined roles, this does not bar individual RRT

members from being part of the OSC's support staff during a response.

In fact, the very structure of the RRT indicates that it may be

activated to supply individual members in support of response actions.

The two principal components of the RRT are a standing team and an

incident-specific team. The latter is formed from the standing team to

support the OSC/Remedial Project Manager (RPM) when the RRT is

activated for response to a specific discharge or release (see

Sec. 300.115(b)).

One commenter noted that Secs. 300.115(i)(6), 300.205(c)(3), and

300.210(c)(3)(iv) reference advance planning and expedited

decisionmaking for use of dispersants, surface washing agents, surface

collecting agents, burning agents, bioremediation agents, or other

chemical agents. The commenter suggested adding the following language,

consistent with Sec. 300.310(c): ``* * * and in accordance with any

applicable laws, regulations, or requirements * * *.'' The recommended

clarification has been made in Sec. 300.115(i)(6) of the final rule.

The language in Secs. 300.205(c)(3) and 300.210(c)(3)(iv) is taken

directly from the OPA and has, therefore, not been changed.

Section 300.120--On-Scene Coordinators and Remedial Project Managers:

General Responsibilities

Two commenters stated that the NCP should specify minimum

qualifications (education and experience) and training requirements for

Federal OSCs and other response personnel. The commenters reasoned that

the OSC has ultimate responsibility for the spill response effort and

therefore must have sufficient knowledge, training, and skill to

perform effectively and gain the confidence of the public and the

response community.

EPA agrees that appropriate training enables OSCs to effectively

carry out their responsibilities. In addition, the relevant Federal

agencies (EPA and USCG for oil discharges) are aware of their

responsibilities under the NCP and will put the best qualified OSC on

the job. EPA does not agree, however, that the NCP should require lead

agencies to identify minimum qualifications and training requirements

for OSCs and other response personnel. The lead agency instead should

have adequate flexibility to decide on appropriate operating procedures

that, for the particular agency, will best ensure adequately trained

OSCs and other response personnel.

One commenter recommended that Sec. 300.120(a) explicitly state

that the Federal OSC's authority is sufficient to override any

otherwise applicable Federal, State, and local requirements. The

commenter reasoned that compliance with all requirements may not be

practicable, particularly if the requirement was established without

considering the special circumstances of emergency response.

EPA does not believe that the provision suggested by the

commenter--essentially preempting all Federal and State law when the

OSC directs response to a discharge--is authorized by the OPA.

Furthermore, adding such a provision to the NCP appears to be

unnecessary. Section 311(c)(1) of the CWA, as amended by the OPA, gives

the OSC authority to ``direct or monitor all Federal, State, and

private actions to remove a discharge.'' The same provision also

authorizes the OSC to remove or arrange for the removal of a discharge

and to remove and, if necessary, destroy a vessel that is discharging.

In addition, if a discharge poses a substantial threat to the public

health or welfare of the United States, CWA section 311(c)(2), as

amended, requires the OSC to direct all Federal, State, and private

actions to remove the discharge and gives the OSC authority to carry

out the other actions mentioned in section 311(c)(1) ``without regard

to any other provision of law governing contracting procedures or

employment of personnel by the Federal Government.''

Congress explicitly provided for limited preemption only for

contracting and employment laws and this limited preemption applies

only when a discharge poses a substantial threat to the public health

or welfare of the United States. There is no express indication that

Congress intended to preempt all Federal and State requirements with

respect to other discharges.

Several commenters stated that although the Federal OSC may have

authority over the responsible party, the OSC does not have authority

to direct State or local agency actions. As mentioned above, CWA

section 311(c), as amended by the OPA, provides that the OSC ``may

direct or monitor all Federal, State, and private actions to remove a

discharge,'' and, in the case of a substantial threat to the public

health or welfare of the United States, must direct such actions. Thus,

it is clear that the OSC has the authority to direct State or private

actions.

With regard to local actions, the legislative history of the OPA

indicates that there was no intent to exclude these from the

President's authority to direct. The Conference Report states that

section 201(b) of the Senate bill amended CWA section 311(d) ``to

require the President to coordinate and direct all public and private

cleanup efforts whenever there is a substantial threat of a pollution

hazard to the public health or welfare * * *'' (emphasis added).

Section 4201 of the House bill amends CWA section 311(c)(1) to

authorize the President to ``direct the actions of all on-scene

personnel, and monitor all removal actions'' (emphasis added).

Furthermore, in discussing the new requirements to direct responses to

spills that pose a substantial threat to the public health or welfare

of the United States, the Conference Report states ``[t]his subsection

is designed to eliminate the confusion evident in recent spills where

the lack of clear delineation of command and management responsibility

impeded prompt and effective response.'' (H.R. Report No. 101-653,

101st Congress, 2d Sess., at pp. 144-46.) In light of these statements

from the Conference Report, Congress could not have intended that local

response actions be treated any differently from Federal, State, and

private response actions with regard to the President's authority to

direct.

One commenter stated that Sec. 300.120(e) should indicate that the

OSC coordinates, directs, and reviews the work of other agencies in

contingency planning and removal. The commenter asserted that proposed

Sec. 300.120 could be read to give the OSC broader responsibilities in

coordination, direction, and reviewing the work of other agencies. EPA

agrees that the OSC should not review the work of other agencies in

activities other than contingency planning and removal. Section

300.120(e) has been revised to clarify this point.

Section 300.135--Response Operations

One commenter recommended that the federal OSC's responsibilities

in a response coordinated by a state or local OSC be clarified. The

commenter stated that this should help ensure that spill response

actions are consistent with the NCP, regardless of whether there is a

federal, state, or local OSC. The commenter indicated that it has had

experience with several spills for which the federal OSC did not go on-

scene and did not access the OSLTF for removal actions. The commenter

suggested that this has interfered with removal activities that it

deemed necessary to ensure appropriate treatment of resources for which

it had trust responsibilities.

For any issues concerning a spill response, the OSC should be

contacted first, whether or not the OSC is on-scene. However, it is

important to note that the OSC is required to coordinate with the

natural resource trustees on any removal action to be taken. If

problems arise in the way these relationships are being implemented,

such problems should be resolved at the area level during the Area

Committee/area contingency planning process.

Another commenter objected to the requirement that the federal OSC

consult with the affected trustees on the appropriate removal action to

be taken if this could result in cleanup contractors missing the

``window of opportunity'' for using dispersants, burning, and

containment and removal techniques to effectively address a spill.

Section 1011 of the OPA states that ``The President shall consult

with the affected trustees designated under section 1006 on the

appropriate removal action to be taken in connection with any discharge

of oil.'' Although this responsibility has been delegated from the

President to the OSC, the language to which the commenter objects is

statutorily required by the OPA. In addition, the potential for delay

with which the commenter is concerned will be alleviated through the

preplanning that is required for the use of dispersants, burning

agents, surface washing agents, surface collecting agents,

bioremediation agents, and miscellaneous oil spill control agents (see

Sec. 300.910). Finally, it is important to note that consultation with

the trustees does not mean that the OSC must obtain the concurrence of

the trustees, although such concurrence is highly desirable. Ultimately

the OSC, consistent with Secs. 300.120 and 300.125, has the authority

to direct response efforts and coordinate all other efforts at the

scene of a discharge.

Section 300.145--Special Teams and Other Assistance Available to OSCs/

RPMs

One commenter recommended that the NOAA Scientific Support

Coordinator (SSC) be the primary technical advisor to the federal OSC

during a spill response and be the focal point for decisions regarding

``how clean is clean.'' The commenter explained that NOAA is the

federal agency with the greatest expertise on the fate, behavior, and

effects of oil and the effectiveness of countermeasures, including

ecological considerations. The commenter concluded that with so many

competing interests coming into play in a spill response, this type of

decision should be based on science, and NOAA is the appropriate player

to present recommendations to the federal OSC.

The NOAA SSCs and EPA's Environmental Response Team support the OSC

on technical/scientific matters, as described in Sec. 300.145. The OSC,

however, remains the ultimate decisionmaking authority for spill

response. While the SSCs have considerable scientific specialization

and, therefore, may be the appropriate resource to provide

recommendations to the OSC on issues regarding ``how clean is clean''

during a response action, the OSC must be the focal point for making

such decisions.

One commenter stated that proposed Secs. 300.5, 300.305, and

300.615, Appendix E Sections 1.5 and 5.5.2, and the preamble language

accompanying Sec. 300.145 convey the inaccurate impression that

trustees obtain funding to initiate a natural resource damage

assessment (NRDA) and reimbursement for injuries to natural resources

from the OSC. The commenter clarified that funding for initiation of

NRDAs may be obtained from the OPA Emergency Fund upon application by

the Federal lead administrative trustee directly to the National

Pollution Funds Center (NPFC) of the Coast Guard. The OSLTF may also be

used to pay for injury to natural resources. The commenter recommended

that the following language be added throughout the preamble, rule, and

Appendix E: ``The Federal lead administrative trustee facilitates

effective and efficient communication between the OSC and the other

Federal trustees during response operations and is responsible for

applying to the OSC for non-monetary Federal response resources on

behalf of all trustees. The Federal lead administrative trustee is also

responsible for applying to the NPFC for funding for initiation of

damage assessment and claims for injuries to natural resources.''

EPA agrees with the recommended revision, except for the phrase

``and claims,'' which is an inaccurate statement of lead administrative

trustee responsibilities. Thus, the requested revision, as modified,

has been incorporated into the preamble, Secs. 300.305 and 300.615 of

the final rule, and Section 5.5.2 of Appendix E. Language with the same

intent that varies slightly from this wording has been used in

Sec. 300.5 and Appendix E Section 1.5 so that the definition of lead

administrative trustee conforms to the proposed NOAA damage assessment

regulation (59 FR 1062, January 7, 1994) (see preamble discussion of

Sec. 300.5).

One commenter recommended that specific language describing SUPSALV

as a Special Team be added to Sec. 300.145. The language proposed by

the commenter to be added to Sec. 300.145 as new subparagraph (d)(1) is

already included in the description of the U.S. Navy in Sec. 300.175.

The remaining subparagraphs, however, provide a useful description of

SUPSALV as a Special Team and therefore have been added to

Sec. 300.145.

Section 300.150--Worker Health and Safety

One commenter recommended that the NCP clarify the applicable

Federal, State, and local roles in determining and enforcing worker

training and safety requirements, particularly in the maritime

environment where there is the greatest potential for overlapping

jurisdiction. The commenter asserted that two agencies, USCG and the

Occupational Safety and Health Administration (OSHA), potentially are

charged with enforcing worker safety requirements during spill

response. The commenter explained that it is essential that safety

training requirements be established and clearly understood so that

appropriate training can be conducted prior to an actual spill. The

commenter further stated that it is critical at the time of the spill

for one individual to assume responsibility for making decisions if

there is confusion or disagreement regarding worker safety, health, or

training.

The OSC already is the senior official in charge of worker safety,

health, and training requirements during a spill response under the

NCP. The OSC is encouraged to undertake early coordination on all

worker health and safety issues. Furthermore, the OSC in this capacity

is required to comply with all applicable OSHA regulations. The details

involved in implementing these requirements will be addressed during

the Area Committee/area contingency planning process. Thus, EPA does

not believe that the recommended additional language is necessary.

Section 300.155--Public Information and Community Relations

One commenter suggested that prompt, accurate information

dissemination to the public should be coordinated through a Joint

Information Center, an entity with functions similar to the current on-

scene news office authorized by Sec. 300.155(b). The commenter

explained that the current proposal addresses only federal government

public relations and should be expanded to include public relations

efforts of state, local, and private entities.

EPA has revised Sec. 300.155(a) to state that the OSC/RPM should

coordinate with available public affairs/community relations resources

to ensure that all appropriate interests are considered by

establishing, as appropriate, an on-scene Joint Information Center

bringing together resources from federal and state agencies and the

responsible party. Experience shows that there are some situations when

a Joint Information Center is essential to provide adequate

coordination of information to the public from federal and state

authorities during an event. In other response actions, a less formal

mechanism may be adequate. In the final analysis, it is within the

OSC's discretion to determine whether to establish a Joint Information

Center during an event. This issue should be addressed during the area

contingency planning process.

Section 300.165--OSC Reports

Two commenters questioned the appropriateness of eliminating the

requirement to prepare OSC reports. One of these commenters suggested

that if the requirement is eliminated, the pollution reports and log

books from a major spill must be transmitted to a central repository.

The commenter reasoned that records of how effectively mechanical

equipment and other spill mitigating measures performed during an

actual spill is precisely the type of information that should be

transmitted to RRTs and Area Committees for their consideration. The

other commenter stated that the final rule should clarify the purpose

of this change and how EPA intends to address after action reporting

and cost recovery.

The original purpose of the OSC report was to summarize activities

at the site and to communicate lessons learned, discuss any problems

encountered in the response, and recommend improvements that need to be

shared throughout the response community. Under the NCP, even without a

requirement to prepare an OSC report in every instance, the NRT or an

RRT can request that an OSC/RPM submit a complete report on the removal

actions taken, including the resources committed and the problems

encountered. EPA has reassessed the desirability of requiring an OSC

report for all responses to major discharges or releases and determined

that such a report will not be required automatically. The already

considerable time demands placed on the OSC have increased dramatically

with the enactment of the OPA. Preparing OSC reports is an additional

paperwork burden that is not statutorily mandated. Furthermore, most

important information contained in the OSC report--including lessons

learned in specific responses and documentation needed for after action

reporting and cost recovery--will be available from other materials

prepared by the OSC, including the pollution report and the OSC log

book. The pollution reports are kept in a central repository and are

available to the public. Additional incentive to make this information

available comes from the need to keep ACPs current and an increased

need to share lessons learned. For example, the National Preparedness

for Response Exercise Program (PREP) provides exercise guidelines

applicable to OSCs as well as industry. Many of these guidelines can be

met by aggressive evaluation of the response and lessons learned (the

essence of the OSC report). Also, PREP currently is developing a

proposal to establish a national data base for documenting lessons

learned. Both government and industry will have access to this data

base for entering data and the public will have access for retrieving

data.

Section 300.170--Federal Agency Participation

Three commenters asked that Sec. 300.170(d) be changed to require

federal agencies to report releases, rather than simply encouraging

them to do so. Section 300.170(c) states that all federal agencies are

responsible for reporting releases of hazardous substances from

facilities or vessels under their jurisdiction or control in accordance

with section 103 of CERCLA. Section 300.170(d) refers to pollutants or

contaminants; it is not a requirement of federal agencies or any other

organization or person to report releases of pollutants or contaminants

that are not defined by CERCLA as hazardous substances. EPA agrees,

however, that if a federal agency discharges oil in an amount above the

threshold quantity as defined by 40 CFR part 110, the agency is

required to report that discharge. Therefore, the language of

Sec. 300.170(d) has been revised in the final rule to indicate that

federal agencies must report discharges of oil, as required in 40 CFR

part 110.

Section 300.175--Federal Agencies: Additional Responsibilities and

Assistance

One commenter recommended that the NCP specify the oil discharge

contingency planning responsibilities of the Department of

Transportation's (DOT's) Office of Pipeline Safety, DOT's Research and

Special Programs Administration, and the DOI's Minerals Management

Service (MMS). The commenter explained that each of these entities has

issued proposed or final regulations on response planning requirements

for vessels, pipelines, and other means of transport. The commenter

further recommended that the NCP incorporate a provision that the

requirements of these federal agencies must be consistent.

The commenter's recommendations provide a more complete description

of the contingency planning responsibilities of federal agencies under

the OPA by specifying the responsibilities of DOT and MMS. Therefore,

EPA has revised Sec. 300.175, as appropriate. Regarding a ``consistency

requirement,'' CWA section 311(j), as amended, requires facility

response plans to be consistent with ACPs. EPA does not believe,

however, that this type of consistency requirement needs to be included

in the NCP, because the NCP is not the appropriate forum for

harmonizing the response planning requirements of various federal

agencies.

One commenter suggested that proposed Sec. 300.175(b)(11)(ii) could

result in resource problems, as well as potential legal and enforcement

difficulties, for OSHA. The commenter believed that the proposed

provision could be interpreted as requiring OSHA to develop and

maintain site safety plans. The commenter was especially concerned that

development and maintenance of these plans could be interpreted as

approval of the plans and that such an interpretation would make it

more difficult for OSHA to exercise its enforcement responsibilities.

EPA has revised Sec. 300.175(b)(11)(ii) to indicate that OSHA has

flexibility to provide advice and consultation on occupational safety

and health issues, as appropriate for a particular response. For

purposes of clarification, EPA would like to note that assistance

provided by OSHA may include, to the extent practicable, reviewing and

proposing improvements to site safety plans, exposure monitoring

protocols, work practices, and helping with other compliance questions.

These activities should be accomplished as a cooperative effort between

the OSC and the OSHA representative.

One commenter suggested that the description of the National

Response Center in Sec. 300.175(b)(16) be deleted because much of this

information is covered in Sec. 300.125. The commenter also noted that

the requirement in Sec. 300.175(b)(16) for notices of discharges to be

made telephonically should apply to discharges and releases. EPA agrees

and has deleted subparagraph (b)(16) of Sec. 300.175 and has revised

the relevant portion of Sec. 300.125 to read ``Notice of discharges and

releases must be made telephonically * * *.''

Several commenters recommended various editorial changes to the

responsibilities of federal agencies in Sec. 300.175. For example, one

commenter requested that the term ``Radiological Assistance

Coordinating Office'' be replaced with the term ``Radiological

Assistance Program Regional Office'' in Sec. 300.175(b)(5). Another

commenter recommended that Sec. 300.175(b)(9)(i) be revised to add the

phrase ``and other bureaus'' at the end of the description of the Fish

and Wildlife Service's responsibilities. The reason for this change is

that several bureaus of DOI have expertise in determining the effects

of oil and hazardous substances on natural resources. EPA has

incorporated these and several other editorial changes. In addition to

the changes recommended by the commenters, EPA has clarified the

description of its own scientific expertise by adding references to

human health and ecological risk assessment and by providing

information on how to access this expertise.

Section 300.180--State and Local Participation in Response

One commenter suggested that the response role of Indian tribes be

included in its own section. The commenter reasoned that although many

sections of the NCP treat Indian tribes as states, in reality, they are

trustees for natural resources belonging to or controlled by the

tribes.

Section 300.180(b) explains that Indian tribes have the opportunity

to participate as part of the response structure, as provided in the

ACP. State and Indian tribe representatives also may participate fully

in all activities of the appropriate RRT.

Furthermore, Sec. 300.305 specifically defines ``states'' to

include Indian tribes for purposes of the NCP, unless otherwise noted.

Thus, the provisions referred to by the commenter, by definition,

reflect the appropriate role of Indian tribes.

One commenter stated that the NCP should not alter the state's role

and/or title for federal or state-lead response operations. The

commenter recommended that Sec. 300.180(a) be revised to read: ``This

agency is responsible for designating the (State On-Scene Coordinator)

SOSC/RPM for federal and/or state-lead response actions, and

coordinating/communicating with any other state agencies, as

appropriate.'' The commenter reasoned that the NCP should provide more

flexibility to honor the many ACPs that are being developed and to

recognize the importance of the state in response to spills of oil or

hazardous materials.

EPA generally agrees with the sentiment expressed by the commenter.

The Agency has modified the language suggested by the commenter for

inclusion in Sec. 300.180 to read as follows: ``This agency is

responsible for designating the lead state response official for

federal and/or state-lead response actions * * *.'' The reason for

these modifications to the commenter's language is to provide the state

with maximum flexibility in establishing a title for its lead response

official, while still recognizing the important role states play in

incident response.

Another commenter recommended that the NCP encourage states to

enter into Memoranda of Understanding with the federal government to

coordinate response-related procedures and resources. Although EPA

recognizes that Memoranda of Understanding between states and the

federal government to coordinate response procedures and resources may

be beneficial, these arrangements can occur without being stipulated in

the NCP and therefore the recommended language is unnecessary.

Section 300.185--Nongovernmental Participation

One commenter stated that the NCP should require the appropriate

response role for volunteers to be mandated in ACPs. In particular, the

commenter suggested that ACPs mandate that volunteers, if used, be

directed by the federal OSC and that ACPs specify training requirements

for each response function that volunteers are permitted to perform

(e.g., clerical support, beach surveillance, logistical support,

wildlife treatment). The commenter also recommended language in the NCP

prohibiting the use of volunteers in circumstances that expose them to

contaminants above ``permissible exposure limits.''

EPA agrees with the sentiment expressed by the commenter, in

particular, the concept of using volunteers for clerical support.

However, these are implementation issues that are most appropriately

addressed at the area level, rather than in the NCP.

A different commenter requested that the NCP language place fewer

restrictions on the use of volunteers. The commenter explained that use

of volunteers should be determined by Federal and State OSCs and

responsible parties through the unified command.

EPA believes that the use of volunteers should be determined by the

OSC/RPM within the response management system that includes state

government, local government, and the responsible party. The relevant

language in Sec. 300.185 will be retained in the final rule because

this allows the OSC/RPM to consider potential legal and logistical

issues that may restrict the use of volunteers under certain

circumstances.

Two commenters objected to the statement in proposed

Sec. 300.185(a) that entities required to develop tank vessel and

facility response plans should commit sufficient resources to implement

the non-Worst Case Discharge aspects of those plans. One of the

commenters suggested that this statement be deleted and the other

commenter recommended that the term ``should'' be replaced with

``shall''.

OPA section 4202(a)(6) describes the requirement for owners and

operators of tank vessels and facilities to prepare response plans. The

OPA states that these response plans must be sufficient to respond to a

Worst Case Discharge, to the maximum extent practicable. However,

facility and vessel response plans are also required to contain certain

other provisions and information. For example, under the OPA, response

plans must: (1) be consistent with the NCP and ACPs; (2) identify a

qualified individual having full authority to implement removal

actions; and (3) describe the training, equipment testing, periodic

unannounced drills, and response actions on the vessel or at the

facility.

A regulation recently promulgated by EPA at 40 CFR part 112

implements the broad OPA requirements for onshore, non-transportation-

related facilities that, because of their location, ``could reasonably

be expected to cause substantial harm to the environment'' as a result

of discharges (59 FR 34070, July 1, 1994). Under that final rule,

owners and operators of ``substantial harm facilities'' must prepare

plans to respond to a Worst Case Discharge, and to small and medium

discharges, as appropriate. In the preamble to the facility response

plan final rule, EPA explained that the requirement to plan for several

different spill sizes (not just for Worst Case Discharges) is

consistent with the implementation of OPA response planning

requirements by other agencies, including the USCG (see 58 FR 2358,

February 5, 1993).

EPA believes that it adopted a reasonable approach in the proposed

NCP revisions by indicating that commitment of resources needed to

implement the non-worst case discharge provisions is discretionary,

rather than mandatory, because the facility response plan rulemaking

had not yet been finalized. EPA has revised the language in

Sec. 300.185 of the NCP in today's rule to reflect the fact that the

new requirements for facility response plans have now been finalized in

40 CFR part 112. The most significant change is that the term

``should'' has been changed to ``shall'', as recommended by one of the

commenters.

Subpart C--Planning and Preparedness--Overall Comments

Three commenters recommended taking greater measures to involve the

private sector, including industry, in the planning and preparedness

process and the national response system, especially in the development

of the Regional Contingency Plans (RCPs) and ACPs. One of these

commenters noted that existing law and regulations require facility and

tank vessel owners to carry out preparedness and response activities,

yet current proposed language discourages private sector input and

efforts into the national response system.

EPA believes the NCP recognizes the important contribution private

parties can and do make in the planning and response processes. For

example, with regard to planning, private parties play an essential

role in the development of local emergency response plans through their

participation on Local Emergency Planning Committees (LEPCs).

Nongovernmental participation in a response is encouraged in

Sec. 300.185 of the NCP. Furthermore, EPA encourages private entities

to participate throughout the planning process, wherever possible and

appropriate.

With regard to area contingency planning, the OPA specifies that

Area Committees are to be made up of personnel from federal, state, and

local agencies. However, EPA strongly encourages Area Committees to

solicit advice, guidance, and expertise from all appropriate sources,

including facility owners and operators, cleanup contractors, and other

qualified private entities. This position is consistent with the views

expressed in both the EPA and USCG Federal Register notices on area and

Area Committee designations.

Two commenters believed there are instances in the proposed rule

where implied responsibilities of Area Committees are not consistent

with those stated in Secs. 300.205 and 300.210. The commenters stated

that while Subpart C clearly establishes a planning role for Area

Committees, other parts of the proposal give them a more expansive

role, including training and evaluation of preparedness. The commenters

argued that these roles are outside the scope of the law and not

appropriate for Area Committees. EPA notes that response preparedness

is an ongoing process, which requires that existing systems be tested

and improved upon. The Agency, therefore, believes that the duties

granted to the Area Committees in the NCP, such as training and

evaluation of preparedness, are consistent with the OPA mandate

concerning the Area Committees' responsibilities for response planning

and preparedness.

In response to a number of comments that, in some way seek

clarification regarding the various plans described in this subpart and

their relationship to one another, EPA has prepared an additional

figure (Figure 4) for inclusion in this subpart of the NCP following

Sec. 300.205.

Section 300.200--General

One commenter suggested that an obvious omission from this section

is any reference to the tank vessel or facility plan preparer and

responsible party, and recommended that it be added to this section and

throughout the NCP. EPA agrees that discussion of these plans in

Subpart C would be helpful and has added new Secs. 300.205(f) and

300.211 in response to this comment.

Section 300.205--Planning and Coordination Structure

One commenter strongly urged the NCP to focus on the Area Committee

as the sole regional planning body because such organizations have been

functioning in an open and cooperative manner since the passage of the

OPA. The commenter also argued that planning at this level (as opposed

to the regional level) is much more efficient for very site-specific

activities, including the identification of environmentally sensitive

areas. In addition, the commenter stated, planning at this level would

make it easier for states to participate, since they would not have to

use limited travel funds to attend meetings at the regional level.

While the Agency agrees that area-level planning is critical to the

effectiveness of the national response system, EPA does not believe

that the area contingency planning structure precludes or supplants

regional planning activities. While some local issues, such as

development of certain portions of Fish and Wildlife and Sensitive

Environments Plan (FWSEP) Annexes, are best handled at the area level,

other planning issues, such as cross-area planning and preparedness

coordination, are more appropriate for the regional level. In addition,

RRTs have important response coordination responsibilities at the

regional level.

One commenter believed that state participation should be expressly

encouraged in the planning and coordination structure (i.e., Area

Committees) of the national response system and that states should be

described as full partners in the planning process. That commenter also

added that the federal government's ability to enter into Memoranda of

Understanding with states should be noted in the NCP. Memoranda of

Understanding are a useful mechanism for clarifying response resources

and minimizing potential misunderstandings or conflicts during an

incident.

EPA recognizes that states and local governments are integral parts

of the area-level planning process and are strongly encouraged to

participate in their respective Area Committees. The Agency believes

that this concept, grounded in the strong commitment to state and local

involvement found in the OPA, is clearly reflected in the NCP preamble

and rule language promulgated today. In addition, because the ACP is a

product of federal, state, and local response planning coordination,

the Agency believes that Memoranda of Understanding between the federal

government and states to accomplish this coordination are unnecessary.

One commenter asked for a better explanation for determining who is

qualified to sit on an Area Committee and the process for selecting

and, as necessary, funding the participation of committee members.

Several commenters believed that Area Committees should include the

private sector or seek input and advice from private sector entities

during the planning process. One commenter strongly recommended that

Regional Citizens' Advisory Councils (RCACs), as well as

representatives of municipal government, LEPCs, villages, and other

locally elected bodies should be specifically listed as participants on

Area Committees.

The OPA directs the President to appoint qualified personnel of

federal, state, and local agencies to the Area Committees. Thus, the

OPA does not permit private membership on Area Committees. This does

not mean, however, that EPA seeks to exclude others from participating

in the area contingency planning process. It is left to the discretion

of the Area Committees to decide how they will integrate into this

process response experts and other persons and groups with interest in

and/or responsibilities for the environmental integrity of the area.

Area Committees may establish subcommittees or workgroups as the forum

for obtaining advice and guidance from such parties.

The OPA does not specify the criteria for determining who is

``qualified'' to be on Area committees. This determination is,

therefore, left to the discretion of the Secretary of Transportation

and the EPA Administrator. Interested parties may contact the OSC for

their area, or refer to the April 24, 1992, EPA/USCG Federal Register

notice (57 FR 15198) for further information concerning Area Committees

and membership selection.

One commenter urged that the requirement for preauthorization

planning contained in Sec. 300.210(c)(4)(ii)(D) be added to the Area

Committees' responsibilities under Sec. 300.205(a)(3) and that the

requirements applicable to such plans should appear in the Area

Committee discussion. The commenter believed it is critical that the

Area Committees conduct preauthorization planning prior to an emergency

event to resolve issues of limited field data and inaccurate or

uninformed opinions by interested participants.

Another commenter stated that the proposed revisions (i.e.,

requiring both Area Committees and RRTs to approve dispersant use)

would likely discourage and impede decisions on the use of dispersants

and other spill mitigating chemical agents and devices. The commenter

recommended that the Area Committees take the lead on making the

decision, while the RRTs serve in an advisory role.

EPA proposed revisions to Secs. 300.910 and 300.210 to require that

Area Committees be actively involved in the preauthorization process

and that, as part of their planning activities, they develop

preauthorization plans that address the desirability of using

appropriate products on the Product Schedule. The Agency believes that

the language in Sec. 300.210(c)(4)(ii)(D) sufficiently addresses the

Area Committees' responsibilities to provide for preapproval plans as

part of the FWSEP Annex to the ACP. The commenter's suggested rule

language is, therefore, unnecessary.

With regard to the requirement that both the Area Committee and RRT

approve dispersant use, the Agency agrees that preauthorization of

dispersants and other spill mitigating chemical agents and devices is

critical to effective spill response planning. However, the OPA does

not grant the Area Committee the responsibility to approve a dispersant

use plan. Under the approval scheme presented in the NCP, the Area

Committee serves as an advocate for the dispersant use plan, while the

RRT decides if the plan is adequate and may address region-wide or

cross-regional issues, thereby providing a necessary forum for

dispersant use review. The Agency believes the two-step preapproval

plan process set forth in the NCP best ensures consistent dispersant

use planning while fulfilling the mandate of the OPA. It should also be

noted that, for spill situations that are not addressed by the

preauthorization plans, the OSC (with the concurrence of the EPA

representative to the RRT and, as appropriate, the concurrence of the

RRT representatives from the states with jurisdiction over the

navigable waters threatened by the release or discharge, and in

consultation with the DOC and DOI natural resource trustees, when

practicable) may authorize the use of dispersants, surface washing

agents, surface collecting agents, bioremediation agents, or

miscellaneous oil spill control agents on the oil discharge, provided

that the products are listed on the NCP Product Schedule.

New Sec. 300.205(f) relates to the addition of Sec. 300.211 and,

along with Sec. 300.211, is discussed in response to a comment on

Sec. 300.200.

New Sec. 300.205(g) was added to reference the new figure that is

discussed under the earlier section ``Subpart C Overall Comments.''

Section 300.210--Federal Contingency Plans

One commenter suggested that the NCP should recognize developments

that have occurred since the passage of the OPA and phase in or

eliminate new requirements at variance with those developments. For

example, the commenter stated, both format and substantive requirements

included in the proposed rule for ACPs may not be consistent with what

has been done to date, and compliance with these new requirements

cannot occur overnight.

Implementation of the OPA is an ongoing process involving multiple

regulations being prepared over an extended period of time. It is

virtually impossible to create a current and complete ``snapshot'' of

implementation efforts for these NCP revisions because implementation

efforts are a dynamic process. Generally, there will be a period of

time following publication in the Federal Register before new

requirements take effect. Such an approach gives the regulated

community time to come into compliance and should ameliorate much of

the commenter's concern.

Two commenters urged that the NCP require ACPs to follow the format

of the NCP and be coordinated with RCPs, indicating that close

coordination and consistency would lead to more effective emergency

response. While EPA agrees that cross-plan consistency is critical for

effective emergency response, the Agency has chosen not to discuss in

the NCP formatting issues that go beyond the substantive requirements

mandated by the OPA, in order to retain for the Area Committees the

maximum flexibility to tailor ACPs to reflect their priorities and

local conditions. It should be noted, however, that Sec. 300.210(c)(2)

of the NCP does refer to the importance of integrating plans, stating,

``[t]he ACP shall provide for a well coordinated response that is

integrated and compatible, to the greatest extent possible, with all

appropriate response plans of state, local, and non-federal entities,

and especially with Title III local emergency response plans.'' Plan

consistency is an implementation responsibility of the OSC for the

particular area. The RRT should be used as a vehicle to achieve

consistency in implementation, as provided in Sec. 300.115(a)(2).

EPA and the USCG have chosen to build upon different features of

the pre-OPA oil spill planning and response structure in preparing ACPs

for the inland and the coastal zone, respectively. EPA has generally

relied upon the RCPs to be used for response operations, while the USCG

has relied upon local contingency plans which had been prepared for

each Captain of the Port zone. Because the RCPs already include some

operational elements, the initial ACPs for the inland zone have relied

to some extent on augmentation of the RCP with OPA provisions, or on

adaptation of RCP language into a separate ACP document. Nevertheless,

some elements of the RCP, such as guidance for the development of

preauthorization plans, a description of RRT activation procedures, or

other regional/district-specific policies (including guidance for Area

Committees within their RRT zone), are better suited for inclusion in

the RCP. Other elements of the RCP, most notably, the response

operations portions, are better suited to be included in ACPs.

The relationship of the various plans prepared for emergency

response is illustrated in Figure 4, ``Relationship of Plans,''

following Sec. 300.205 of today's rule. In this figure, the operations

portions of the RCP are best represented by the ``Federal Agencies

Internal Plans'' box.

One commenter stated that ACPs should mirror the national standards

developed out of the USCG regulatory negotiation process (i.e., the

process whereby the federal government and the regulated community

formed a committee, discussed issues, and developed a report for use in

drafting a proposed rule), because the facility response plans and

vessel response plans, which are mandated under the OPA and must be

consistent with the ACPs, are already being developed under the

national standards. EPA notes that the national standards were

developed in coordination with the vessel and facility response plan

regulations and these standards are appropriate for the regulation of

vessels and facilities. However, it would be inappropriate to include

the national standards, which address the limited universe of regulated

vessels and facilities, in the NCP, which details the broader federal

response structure. The NCP must be flexible enough to encompass the

implementation approaches not only of USCG, but also of EPA, MMS, and

the Research and Special Programs Administration of the U.S. Department

of Transportation (DOT).

Two commenters strongly urged consistency across the ACPs, noting

that such consistency is particularly important for pipelines or

vessels that cross states and regions and thus are subject to the

requirements of numerous ACPs along the route. The commenters also

believed that the existing language merely restates the law and does

not provide enough information to assure such consistency, nor does the

language reflect efforts underway since the passage of the OPA. One of

the commenters provided three recommendations: (1) the NCP should

explicitly require uniformity and consistency and provide a mechanism

for resolving any inconsistencies; (2) the NRT should be responsible

for ensuring consistency among the regions; and (3) procedures should

be developed by which owners and operators of vessels and facilities

subject to a number of ACPs may petition for resolution of any

conflicts.

EPA believes that Sec. 300.115(a)(2), which gives the RRTs

responsibility for providing ``guidance to Area Committees, as

appropriate, to ensure interarea consistency and consistency of

individual ACPs with [the] Regional Contingency Plan and [the] NCP,''

is an adequate framework for providing coordination and consistency.

RRTs have been designated as the bodies responsible for interagency and

intergovernmental planning and coordination of preparedness and

response actions at the regional level. The RRTs should review ACPs in

carrying out this responsibility and, through their comments, encourage

consistency among individual plans. In addition, the NRT should

encourage consistency among regions through the issuance of guidance.

EPA disagrees that the NCP should require uniformity among ACPs.

Each ACP throughout the country will have key common elements, such as

the FWSEP Annexes, that will provide a consistent basis nationwide for

identifying resources needing to be protected during a response.

However, because the purpose of ACPs is to prepare for spill response

at the area level, Area Committees must retain maximum flexibility to

tailor ACPs to reflect their priorities and local conditions, concerns,

and capabilities.

EPA and USCG have promulgated facility and vessel response plan

rulemakings which detail the requirements placed on owners and

operators for preparing those plans. These plans are required to be

consistent with relevant ACPs. Finally, it should be noted that the

statutory requirement for plan integration is met when the Regional

Administrator (EPA) or District Commander (USCG) signs the ACP.

One commenter recommended that the USCG develop guidance to provide

better standardization of requirements for ACPs. Some specific areas

the commenter recommends as needing to be addressed in ACPs are

detailed training requirements to cover all facets of the response

(including training of volunteers) and a requirement to address the

issue of site visitors and passengers on vessels used in a response.

EPA believes that the commenter's concern is better addressed as an

implementation issue. OSHA already provides training requirements for

spill response. Area Committees can, if they choose, determine training

requirements associated with spill response activities and address any

such requirements in ACPs. The NCP is not an appropriate vehicle for

implementing these requirements.

To assure a timely decision on dispersant use, one commenter wanted

to require it ``as soon as practically possible, but in no case more

than 8 hours'' (Sec. 300.210(c)(3)(iv)). The Agency believes that

incorporating into the NCP the suggested 8-hour timeframe for decisions

on dispersant use may unnecessarily constrain flexibility for

dispersant use at the area level. EPA has instead chosen to meet the

OPA section 4202(a) requirement for the ACPs to ``describe the

procedures to be followed for obtaining an expedited decision regarding

the use of dispersants'' through preplanning. Individual Area

Committees may describe additional procedures for expedited dispersant

use. The commenter's concern, therefore, is best addressed at the area

level.

One commenter argued that response could be expedited if ACPs

expressly identified in advance those resources that will be needed in

responding to large-scale spills. Specifically, the commenter stated,

elements of the ``detailed description'' referenced in

Sec. 300.210(c)(3)(v) should be listed in the regulatory text and

include unified command requirements, health/safety/ training

requirements, forward command post sites, public information resources,

and interim and final waste disposal procedures.

Although EPA agrees that ACPs should provide for effective

emergency response structures, the Area Committees will determine the

specific details of that structure. The commenter's suggested changes

are too prescriptive and therefore have not been incorporated into the

final NCP. The Agency expects that all ACPs will be updated over time

to reflect changing emergency response structures. It should also be

noted that nothing in the NCP precludes the development of any response

management system, including a unified command structure, at the area

level.

One commenter argued that the NCP should, at a minimum, contain a

detailed description of the boundaries of the ACPs, as well as their

effective dates and procedures for obtaining a copy of each ACP. The

commenter suggested that ACPs be incorporated by reference in the NCP

and filed with the Federal Register.

Both area boundaries and ACPs are expected to change as the

national response system evolves over time. The April 24, 1992 Federal

Register notice that designates the initial areas does include area

boundaries and states that any changes to these boundaries will be

published in the Federal Register. ACPs are available for public

inspection through the EPA regions and USCG districts. These regions

and districts may be contacted by telephone for more information on

area boundaries and ACPs. Most ACPs are also available through the

National Technical Information Service (NTIS) for the cost of

reproduction. For further information, NTIS may be contacted at: 5285

Port Royal Road, Springfield, VA 22161 or by telephone at 703-487-4655.

Finally, in Sec. 300.210(c)(3), the word ``may'' has been added to

qualify the statement that equipment lists are included in ``other

relevant emergency plans.'' This change has been made to more

accurately reflect the content of those plans.

Fish and Wildlife and Sensitive Environments Plan (FWSEP) Comments

Two commenters recommended that NOAA develop a comprehensive set of

national standards for Area Committees to use in developing the FWSEP

Annexes. The Agency believes that national standards are inappropriate

for meeting the intent of the OPA. The OPA specifically requires

involvement of state and local officials in the development of area

plans, in part to incorporate local conditions, concerns, and

capabilities. National standards could restrain Area Committees from

tailoring the FWSEPs to reflect their priorities and local conditions.

As a consequence, general guidance, rather than standards, is more

appropriate and useful to the Area Committees in carrying out their

responsibilities.

One commenter was concerned about the potential for duplicative

monitoring activities carried out under multiple plans such as the NCP,

the NRDA plan, and the FWSEP, and wanted assurances that any monitoring

under the FWSEP is closely coordinated with the other plans. The

commenter also requested guidance covering the extent, frequency, and

duration of monitoring.

EPA notes that any response monitoring, including that detailed in

FWSEP Annexes to ACPs, will be developed as part of the ACP process

under the supervision of the OSC. NRDA activities are primarily focused

on data collection and injury assessment, not monitoring. However, any

monitoring conducted as part of the NRDA process should be coordinated

with the response activities to prevent duplication of effort and

effective use of resources, as stated more generally in Sec. 300.305(e)

(formerly (d)). It should also be noted that the NCP does not address

NRDA monitoring or assessment concerns. Further guidance is being

prepared by trustee agencies on an ongoing basis to assist the Area

Committees in identifying effective measures and procedures for

monitoring the efficacy of removal activities and related environmental

benefits. This guidance is focused on operational questions, not

research and NRDA requirements.

One commenter was concerned about data for the FWSEPs and suggested

that Area Committees should be required to analyze and review all

existing data and not be permitted to generate requests for duplicative

information and requirements for new fate and effects research. The

commenter also called for guidance on collecting, interpreting, and

applying data to ensure consistency in use of data and to avoid the

kind of problems that occur when data collected for one purpose may be

inappropriately used for other purposes.

The Agency expects that FWSEP development will initially consist of

collecting existing information about natural and human-use resources

in the area from local specialists. Based upon existing information,

FWSEP development would proceed from identifying to prioritizing

protection for sensitive environments, and then selecting appropriate

cleanup strategies. There is no expectation that any research

necessarily will be performed; this process is based upon analyzing

existing information.

One commenter was concerned that the proposed language could be

interpreted as allowing Area Committees to require companies to acquire

equipment for protection, rescue, and rehabilitation of fish, wildlife,

and habitat.

The intent of Sec. 300.210(c)(4)(ii)(F) is to ensure that the ACP

will identify what response capabilities will be needed to protect,

rescue, and rehabilitate fish and wildlife resources and habitat and

include a process for obtaining and using such resources in the event

of a spill. To clarify that this is a planning function, the term

``provide'' in this section has been changed to ``plan.'' Area

Committees do not have the authority to require private companies to

acquire specific response resources. The OSC, however, needs to know

what resources will be needed to protect, rescue, and rehabilitate fish

and wildlife resources and habitat in spill response and how such

resources are to be obtained and used. He or she may require use of

such resources by the responsible party during spill response. This may

include contracting with a federally permitted wildlife rescue and

rehabilitation organization, for example. Such ``additional resources''

are called for in 40 CFR part 112, Oil Pollution Prevention. In

Appendix F to part 112, for example, Section 1.7.1 requires non-

transportation-related facility response plans to address, as part of

the identification and description of response resources for small,

medium, and worst case spills, additional contracted help and access to

additional response equipment and experts.

Another commenter recommended that ACPs cover only discharges of

oil and not releases of hazardous substances and that existing language

should be revised to clarify this distinction. EPA does not, at this

time, require ACPs to address hazardous substance releases. Therefore,

the revisions recommended by the commenter are not necessary.

Nevertheless, planning for hazardous substance releases is already

addressed in the area contingency planning process, because individual

Area Committees will consider planning for such releases, as

appropriate. Additionally, EPA has provided for LEPCs and SERCs to have

input into the area contingency planning process.

The LEPC's primary responsibility is to develop an emergency

response plan for potential chemical accidents. This plan must

describe: (1) Emergency response procedures; (2) methods for

determining the occurrence of a release and the probable affected area

and population; and (3) community and industry emergency response

equipment and facilities. SERCs are responsible for supervising and

coordinating the activities of the LEPCs and for reviewing local

emergency response plans for chemical accidents. Thus, the LEPCs' and

SERCs' expertise in planning for response to chemical releases

(including releases of hazardous substances) allows the Area Committees

to effectively address hazardous substance planning issues, as

necessary.

One commenter expressed concern about the burden on federal agency

participants in developing ACPs, specifically the collection of fish

and wildlife and sensitive environments information. The commenter

requested clarification and specification of timeframes and expected

level of effort. EPA notes that Area Committees, not facility owners,

are responsible for identifying fish and wildlife resources and

sensitive environments for inclusion in the ACP. However, until the

geographic-specific annexes of the ACPs have been completed, the

facility owners and operators remain responsible for ensuring

protection of sensitive environments in their proximity for inclusion

in their facility response plans. The guidance for determining and

planning for these responsibilities on an interim basis is provided in

a Federal Register notice published on March 29, 1994 (59 FR 14713) by

the Department of Commerce (DOC)/NOAA. Ultimately, the Area Committee

deliberations and their ACPs will provide the specific information on

fish and wildlife and sensitive environments with which the facility

plans must be consistent. Because the planning process should be kept

as flexible as possible to allow for differences between areas, and

because the area contingency planning process is iterative, it would

not be appropriate for the NCP to dictate how the Area Committees

should identify fish and wildlife resources and sensitive environments.

There were a number of comments regarding sensitive areas or

environments. Two commenters suggested that such areas should be

determined on the basis of ecological risk, noting that some areas

identified as ``sensitive'' may not be ecologically sensitive, yet

other areas which do not have a ``sensitive'' designation may be at

risk ecologically. The commenters wanted Area Committees to consider

ecological value, sensitivity to oil impact, and risk of exposure when

designating sensitive areas.

The FWSEP section in the NCP was intended to provide broad, general

guidance on fish and wildlife and sensitive areas. Area Committees will

incorporate local conditions, concerns, and priorities into their

designation and prioritization of sensitive areas. Additional guidance

in the form of technical documents, such as NOAA's Shoreline

Countermeasures Manual for Temperate and Tropical Coastal Environments

and Guidelines for Developing Digital Environmental Sensitivity

Indexes, have been distributed to many Area Committees. Further

guidance is being prepared by trustee agencies on an ongoing basis.

Another commenter recommended including areas designated as

sensitive under the Coastal Zone Management Act (CZMA) or state coastal

management programs. EPA notes that CZMA-designated and/or state

coastal management program areas are expected to be identified by the

state representatives as part of development of the FWSEP Annex to the

ACP.

One commenter believed that the current definition of sensitive

areas was too vague and recommended that Area Committees be required to

identify and delineate these areas on a map. This commenter also called

for more specific guidance on defining ``sensitive areas,'' giving as

examples the need for a clear explanation of such terms as ``wetland,''

``various state lands,'' and ``biological resource area.''

The definition of sensitive areas, as described in the NCP and in

NOAA's Federal Register notice (59 FR 14713, March 29, 1994), are only

broad in the sense that they are not prohibitive. The documents that

are referenced for further information in that notice are cited only to

the extent that they are considered for identification of sensitive

areas and are not cited to limit response action selection, but rather

to focus the deliberations on sensitive areas. National guidance has

identified key components that should be considered when determining

environments sensitive to oil impacts which should facilitate

consistency in Area Committee approach.

However, it is important that the Area Committees determine what is

important for their area, incorporating local factors and priorities.

It is the Area Committees' responsibility to determine and rank

sensitive environments within their jurisdiction for the purposes of

protection priorities and cleanup measure selection as related to

spills. This may or may not include areas specifically identified by

other statutes as ``sensitive'' for other purposes. Although some Area

Committees are making use of maps to delineate fish and wildlife and

sensitive environments, it is not specified by statute. This

implementation issue is left up to the Area Committees.

Yet another commenter urged that determinations of sensitive areas

be extremely specific and have a clear scientific basis, and that each

Area Committee develop a single prioritization list. The Agency

restates that the guidance offered to the Area Committees is

intentionally broad to allow the committees to incorporate local values

and priorities (as per Sec. 300.210(c)(4) (ii)(A)). ``Wetlands'' are

referenced in the EPA final rule at 40 CFR part 112 as areas that may

be ``fish and wildlife and sensitive environments.'' Thus, Area

Committees may identify in the ACP particular wetlands in their area as

and wildlife and sensitive environments. Identification of sensitive

areas, however, is only the first step; ranking areas to be protected

is the second step, which will force discussion of those areas which

can be reasonably expected to be protected in comparison to other areas

of ``special economic or environmental importance that might be damaged

by a discharge.''

One commenter provided language and recommendations regarding

preapproval for specific countermeasures or removal actions as provided

in proposed Sec. 300.210(c)(4)(ii)(D), stating that plans should: (1)

require concurrence by EPA, state(s), and natural resource trustees;

(2) address specific contexts in which the countermeasures should and

should not be used; and (3) discuss certain factors such as potential

sources and types of oil, sensitive areas, available product and

storage locations, available equipment and trained operators, and means

for monitoring application and effectiveness. The commenter also

recommended expanding the characterization of ``sensitive areas'' to

include areas of special economic or environmental importance--not just

fish and wildlife resources or habitat.

The requirements for obtaining preapproval for use of specific

dispersants and other chemical countermeasures is covered in Subpart J

of the NCP. Repeating the state and EPA role in preapproval plans in

the FWSEP is unnecessary. Language regarding trustee concurrence in

preapproval plans for chemical countermeasures is included in

Sec. 300.210(c)(4)(ii)(D) to meet the intent of section 1011 of the

OPA, that there shall be consultation with ``the affected trustees * *

* on the appropriate removal action to be taken in connection with any

discharge of oil.'' Trustee concurrence is more appropriate than

consultation during the contingency planning phase, when there is

sufficient time to identify and resolve natural resource concerns. The

requirement for concurrence during the advance planning phase will

ensure trustee involvement in decisionmaking. This, in turn, should

ensure that operations during a removal action can be carried out

quickly and effectively because concerns that might otherwise slow the

action will have been addressed in advance. Conditioning the

consultation requirement by adding the term ``appropriate,'' as

requested by the commenter, would not meet this legal requirement.

Regarding the specific factors relating to the use of

countermeasures that the commenter requested be addressed in the FWSEP,

nearly all of the recommended language already appears in Subpart J,

Sec. 300.910(a); the rest is already in other parts of Subpart C and

agency guidance. Again, it is not the intent of the FWSEP to repeat

other sections of the NCP, in this case, Subpart J, although

Sec. 300.210(c)(4)(ii)(D) specifically references these Subpart J

requirements. The FWSEP is a tool to focus the Area Committee on

specific issues and offers flexible guidelines that will help protect

fish and wildlife, their habitat, and sensitive environments during

discharges and releases.

The clarification this commenter also requested regarding the

characterization of ``sensitive areas'' is not necessary because

Sec. 300.210(c)(3)(i) already states that the ACP shall include these

areas. Language in the preamble to the proposed rule offered several

examples of economic and environmental areas that might be included in

the annex to the ACP. The Area Committee has the information required

to evaluate properly any areas considered for designation in the ACP.

The NCP provides broad guidelines, so the Area Committee has the

flexibility to evaluate and identify these potential areas of

importance in the development of the ACP. This flexibility permits the

Area Committee to create an area-specific plan that provides for

``immediate and effective protection, rescue, and rehabilitation of,

and the minimization of risk of damage to, fish and wildlife resources

and their habitat,'' in addition to any other areas of special economic

or environmental importance which they have identified for inclusion in

the annex to the ACP.

Two other commenters argued that state trustees, not just federal

natural resource trustees, should be asked for concurrence on

countermeasure approval. EPA notes that the state representative to the

RRT, the body which has the responsibility for pre-approval for

specific countermeasures, represents all the interests of the state and

is the conduit for state concurrence.

One commenter suggested that proposed Sec. 300.210(c)(4)(ii)(G) be

amended to include the provision of ``other related fish and wildlife

permits or emergency permits to facilitate response related

activities'' as well as procedures regarding ``all response and

response training-related activities that could be construed to be a

taking, or involving'' the capture, transport, rehabilitation, or

release of wildlife.

EPA notes that, as written, the referenced section covers the fish

and wildlife permits necessary for response-related activities, as

identified by the agencies responsible for overseeing possession and

handling of fish and wildlife. This section calls for the ACP to

``provide guidance on the implementation of law enforcement

requirements included under current federal and state laws and

corresponding regulations.'' Permits other than those covered in

subparagraph (G) must be addressed on a case-by-case basis. Permits are

issued for the purpose of handling and rehabilitating wildlife

threatened or injured during a response, not to give preauthorization

for the potential ``taking'' of wildlife during response activities or

response-related training. Usually, natural resource law enforcement

agents are on-scene or readily accessible for requests for other

permits in the event of unusual response activities that might require

authorization.

Finally, in Sec. 300.210(c)(4)(ii)(F), EPA has indicated that

planning for protection, rescue, and rehabilitation of fish and

wildlife resources and habitat does not interfere with other OSC

removal operations. The reason for adding the word ``other'' is to

clarify that fish and wildlife planning activities are part of the

OSC's removal operations.

Section 300.211--OPA Facility and Vessel Response Plans

See discussion under Sec. 300.200.

Section 300.212--Area Response Drills

Seven commenters believed that the NCP should acknowledge and

reference the proposed ``National Preparedness for Response Exercise

Program (NPREP or PREP)'' and make sure that NCP language is consistent

with these proposed guidelines. Two commenters stated it was imperative

that the NCP not create any additional requirements with regard to

exercises beyond those contained in PREP.

The Agency notes that the development of the PREP proposal creates

a method for facility owners and operators and Area Committees to

satisfy all OPA drill/exercise requirements. At the same time, the

language in the NCP is merely attempting to reflect a new CWA

requirement for periodic area response drills. EPA recognizes that PREP

represents a comprehensive approach to response exercises and that

compliance with the PREP guidelines to conduct drills will be

considered adequate to meet the NCP requirements. However, although

PREP represents one method for meeting the drill/exercise requirements

in the OPA, it cannot replace the relevant NCP provisions because PREP

is voluntary rather than mandatory.

One commenter believed that the cost of area exercises should be

borne by the OSLTF. Currently, OSLTF funds are not available to pay for

area exercises. When Congress established the OPA, it authorized the

various agencies with responsibility for pollution preparedness and

response to spend funds to support participation in the national

response system. Congress did not, however, appropriate the funds to do

so. For the OSLTF to be used for exercises, Congress would have had to

appropriate money for this specific use. In the absence of this

appropriation, the various agencies are responsible for providing the

funds from within their organizations.

Section 300.215--Title III Local Emergency Response Plans

Two commenters believed that this section should require

consistency of Title III plans with the NCP, RCPs, ACPs, and state

plans, indicating that it is critical for functions to be consistent at

all levels of planning. EPA recognizes the importance of coordinating

local emergency response plans developed by LEPCs and other contingency

planning efforts. The current NCP requires that OSCs preparing plans

coordinate with LEPCs. In addition, RRTs are responsible for providing

regional consistency (Sec. 300.115(a)(2)).

OPA has added specified requirements for facilities to prepare

contingency plans as well as for Area Committees, under the direction

of an OSC, to prepare ACPs. The coordination requirements pursuant to

the Superfund Amendments and Reauthorization Act Title III and those

already in the NCP are now augmented by the need to include

coordination with the many new plans being developed under OPA. RRTs

are now responsible--through RCPs--to coordinate area planning (for

example, to ensure that pipelines crossing through several areas are

not subject to disparate requirements). Finally, the NRT--through the

NCP--coordinates the entire national response system.

ACPs should be coordinated with and, to the extent possible, be

consistent with LEPC plans and facility response plans under OPA. Of

course, LEPC plans and ACPs should recognize the role of the federal

government during emergency response, as described in the NCP.

Subpart D--Operational Response Phases for Oil Removal

Section 300.305--Phase II--Preliminary Assessment and Initiation of

Action

Several commenters sought clarification of the role/responsibility

of the responsible party to undertake a response action in the first

instance. Some commenters thought the language in Sec. 300.305(c) was

misleading when it says the OSC may allow the responsible party to

perform removal actions. Rather, these commenters suggest the

responsible party must be required/given the opportunity to immediately

undertake containment, control, and cleanup. One commenter noted that

most responsible parties already have contingency plans in place and

have the training and expertise necessary to respond immediately and

effectively. The commenter also suggested that the final rule should be

clear that if the OSC delegates to the responsible party the duty to

respond to the discharge in accordance with the NCP, then the

responsible party, as the agent of the OSC, should have the same

authority as the OSC to access the spill site to conduct the removal

without interference from other authorities.

As stated in the preamble to the proposed rule, the NCP had

provided that the OSC must make reasonable efforts to have the

responsible party take proper response actions. The proposed revision

retained as an option the possibility of allowing the responsible party

to take the lead where the OSC determines this approach will result in

immediate and effective response action. The reason for this change is

that under the amended CWA, it is clear that the OSC, rather than the

responsible party, determines the appropriate course of action for

response. Even with this change, however, the responsible party is not

absolved from responsibility for taking whatever actions are necessary

immediately upon discovery of a spill until such time as the OSC is

notified and able to determine the appropriate course of action.

As to the commenter's concerns regarding the scope of authority of

the responsible party when undertaking a response, the OSC does not

``delegate'' response authority to the responsible party. Rather, the

OSC determines whether the responsible party is capable of carrying out

fully effective response measures. If the OSC determines that such

capability exists, he or she can permit responsible party cleanup to

occur and simply provide surveillance over whatever actions are

initiated. The responsible party is not the ``agent'' of the OSC, and

EPA does not provide to the responsible party the authority granted to

the OSC to access the site for response purposes.

One commenter suggested that the NCP needs to recognize that

direction of responsible party contractors will occur through the

responsible party. The commenter stated that those contractors are at

financial risk if they take direction directly from the OSC, and filing

a claim against the OSLTF is not an adequate remedy because of delays

and uncertainty in recovering those costs.

EPA notes that OPA section 4201 clearly states that the President

(delegated to the OSC) is given the authority to ``direct or monitor

all Federal, State, and private action to remove a discharge.'' It is

the obligation of the responsible parties and their cleanup contractors

to establish a contractual relationship that provides for appropriate

rights and protection for both parties, including a cleanup scenario

where the OSC directs all private party action. Also, ACPs and facility

response plans may address aspects of this relationship and how it will

work when the OSC directs the response; the NCP is not the appropriate

place to address such relations.

Two commenters suggested that, contrary to proposed language in

Sec. 300.305(c), the OSC lacks authority to direct state and local

agency actions, but rather should/must coordinate with these parties

through the unified command system. However, the language to which the

commenters objected, that the OSC ``may direct or monitor all Federal,

State, and private actions to remove a discharge'' is taken directly

from CWA section 311(c), as amended by the OPA. Thus, EPA disagrees

that the OSC does not have the authority to direct state, local, or

private actions.

Two commenters stated that when there is an immediate threat to the

public health and safety, the local on-scene coordinator (fire chief,

emergency manager) should serve as the incident commander. This is

consistent with EPA's view of how the response management system should

work. As noted in the preamble to the proposed rule, ``the individual

in charge of an incident command system is the senior official

responding to the incident; for the national response system, this

individual is the OSC.'' At some incidents there may be a period of

time before which the OSC is in place to take charge of the response.

In such cases, it is appropriate for the senior individual who is on

site, such as the fire chief, to take charge (temporarily) as the

incident commander. Of course, the OSC always retains the authority to

choose to direct any portion of the spill response.

Another commenter suggested that inclusion of the unified command

concept would clarify that a state is not at liberty to impose more

stringent measures when a federal OSC is directing the response. EPA

disagrees with the commenter's view that a state could initiate more

stringent measures than the OSC when the latter is directing the

response. When directing a response, the OSC is more than managing the

response. He or she has specific legal authority to guide the

activities of all parties responding to a discharge, and all actions

would have to be authorized or approved by the OSC.

In addition, under OPA section 1011, in all cases it is the

President (delegated to the OSC) in consultation with governors of

affected states who determines when removal shall be considered

complete. At the same time, however, section 1011 states that a

determination that federal removal action is complete ``shall not

preclude additional removal actions under applicable State law.''

Numerous commenters thought the term ``direct'' needed greater

explanation or definition. It was suggested that doing so would clarify

the flexibility (range of authority) of the OSC in directing a response

and the differences between ``directing'' actions in the case of

substantial threats and other cleanup scenarios. One commenter

suggested that discussion of the OSC's choice to monitor a response

needed expansion, specifically to indicate that states or persons other

than the responsible party could be permitted to undertake a removal

action (provided it would be immediate and effective).

The emphasis during oil spill response is on coordination and

cooperation, rather than on a more rigid system of command and control.

The OSC, the state/local government representatives, and the

responsible party all are involved with varying degrees of

responsibility, regardless of the size or severity of the incident. The

OSC in every case retains the authority to direct the spill response,

and must direct responses to spills that pose a substantial threat to

the public health or welfare of the United States. In many situations,

however, the OSC will choose to monitor the actions of the responsible

party and/or state/local governments and provide support and advice

where appropriate. The response management structure does not and

cannot attempt to prescribe a specific item-by-item functional

description of where particular organizations or individuals fit within

a single response structure for a given response. Developing, adopting,

and implementing a response management system, such as a unified

command system, is the responsibility of the OSC and the Area

Committee, through the ACP.

One commenter suggested that the OSC should expeditiously declare

the government's elective decision to direct a response, not only

declare it in those cases where the OSC is required to direct (as

provided in proposed Sec. 300.305(c)(2)). The commenter argued that

participants in a response need to clearly understand the nature of the

federal role and that this change would help minimize confusion over

who is the ultimate decisionmaker, avoid ambiguity in planning and

implementation of response strategies, and foster consistency in

decisionmaking.

EPA does not agree with this commenter's proposal because it could

unnecessarily constrain the flexibility of the OSC. In those cases

where OSC direction is discretionary, there may be expectations that by

not declaring expeditiously that he or she will direct the response,

the OSC has foregone any opportunity to ever do so. EPA believes that

it would be counterproductive to put pressures on OSCs to make

decisions prematurely or to create expectations among other parties

that a situation is not subject to change, regardless of future events.

One commenter suggested that trustees and others are increasingly

involved in the response process, including decisionmaking, and

suggested that this involvement decreases the timeliness and

effectiveness of response efforts. Related to this, the commenter cites

legal concerns that often polarize government and responsible party

responders during major spills, and suggests that separating the damage

assessment phase in both time and agency would promote cooperation and

free exchange of information.

With regard to the commenter's concern over an increase in the

number of entities with actual or perceived roles in decisionmaking,

the Agency notes that section 1011 of the OPA requires consultation

with affected trustees on the appropriate removal action to be taken in

connection with any discharge of oil. EPA's intention is that this

consultation will take place in large part during the area contingency

planning process. In terms of information exchange among parties

involved in a response, EPA wholeheartedly supports the notion that

there should be nothing to impede cooperation and free exchange of

information to expedite the response activities. Information should, to

the maximum extent possible, flow freely between those agencies

involved in the response and those involved in the damage assessment.

In addition, it is important that the activities of the two groups be

closely coordinated, as intended by Secs. 300.305(e) (formerly (d)) and

300.615(c)(3)(ii). In today's final rule, language is added to these

two sections to reinforce the point that information collected for

damage assessment which is supportive of the response phase should be

made immediately available to the OSC to support his or her decisions.

This information flow will most likely occur through the SSC who serves

on the OSC's staff as the interface with the trustees.

Two commenters suggested that although proposed Sec. 300.305(d)

(now (e)) indicates the lead administrative trustee will act on behalf

of all trustees, this is not necessarily the case nor is it acceptable

to the states under all conditions. Related to this, one commenter

stated that the preamble language concerning the USCG's future

regulations that will detail the lead administrative trustee's

authority to access federal response resources on behalf of all

trustees is confusing. The commenter suggested that, as written, it is

unclear whether this statement refers to funding for initiation of

damage assessments or trustee access to OSC airplanes, vessels, etc.

The commenter believed the intent was to cover the former and

recommends that language be added to the NCP to that effect. EPA

believes the commenter is correct. The regulations in question will

address trustee access to the OSLTF. It should be noted, however, that

there may be situations where the OSC provides non-financial resources

to trustees to carry out their NRDA and related responsibilities. The

language of Sec. 300.305(e) (formerly (d)) is being revised to clarify

that the ``response resources'' referred to are non-monetary resources,

i.e. personnel and equipment. This is the only action taken by the lead

administrative trustee on behalf of all trustees that is called for in

this section of the rule. Providing a single point of contact between

the trustees involved in initiation and the OSC should facilitate

trustee access to response equipment and personnel by ensuring that all

trustee needs are communicated to the OSC in a coordinated manner.

One commenter stated that the proposed NCP is structured in a way

that does not ensure integration with facility response plans. EPA

believes that the commenter's concern about integrating facility

planning efforts are misdirected towards the NCP. It is the area

contingency planning process where preparedness planning on the part of

specific facilities within the area should be accounted for. The ACPs

can then be implemented in such a way as to take advantage of all

available resources.

Section 300.310--Phase III--Containment, Countermeasures, Cleanup, and

Disposal

One commenter urged that the NCP expressly recognize OSC authority

to permit the return of oil or oily water incidental to mechanical

recovery operations back into the response area. EPA believes this

practice is currently recognized as a routine and necessary part of

response operations under certain circumstances. The appropriate role

of such action should be addressed as part of the area contingency

planning process. It would be inappropriate for the NCP to address this

in any sort of across-the-board manner.

The same commenter believed that the NCP should clearly identify

the requirements that apply to waste management in an oil spill

response. EPA believes this issue should be left to RRT and ACP

guidelines and other statutes and regulations. These requirements may

change over time and are not appropriate for inclusion in the NCP.

Section 300.310(c) has been expanded from the 1990 NCP to provide

guidance on how RRT and ACP guidelines might address disposal plans for

oil spill response and certain rule language changes are being made in

today's final rule to clarify some of the specific issues RRTs and Area

Committees may wish to address.

Section 300.317--National Response Priorities

Two commenters strongly supported the adoption of the following as

national response priorities: (1) protect human life and safety; (2)

minimize environmental impacts; and (3) minimize social and economic

impacts. Three advantages are cited for these proposed priorities:

first, area planners would necessarily consider the ecological, social,

and economic consequences of their recommendations in their plans;

second, these priorities would provide a framework for the OSC to

prioritize limited resources during an emergency; and finally, spill

response decisionmaking would be streamlined because many decisions

could be made during the contingency planning process. These commenters

argued that existing priorities do not give involved parties adequate

guidance regarding the protection of environmental resources. The

commenters did not find fault with the first two priorities proposed in

the NCP, but argued that the third one (coordinated use of containment

and removal efforts) does not help responders allocate resources when

there are conflicts between aesthetic and ecological goals. They

emphasized that setting priorities that put ecologically sensitive and

important areas first is essential. One commenter suggested

supplementing the priorities proposed in the NCP with those normally

followed by response contractors: (1) provide for health and safety of

your workers and the public; (2) stay in compliance with state and

federal regulations, including minimizing exposure to liability; and

(3) protect the environment and clean up or remediate spills and

releases.

As noted in Sec. 300.317(e), ``[t]he priorities set forth in this

section are broad in nature, and should not be interpreted to preclude

the consideration of other priorities that may arise on a site-specific

basis.'' The preamble to the proposed revisions notes that the response

priorities ``are not intended to restrict the discretion of the OSC in

directing or monitoring responses to oil discharges.'' The response

priorities noted by the first two commenters reflect important concerns

that should be considered under the appropriate circumstances. EPA

believes it is in the area contingency planning process that additional

priorities should be established for subsequent application on a site-

specific basis. Also, EPA believes the specific priorities cited by the

last commenter are actually more appropriate for facility and vessel

response plans than for the NCP or even ACPs.

Two commenters argued for inclusion in the NCP of language

comparable to language in the International Convention for the

Prevention of Pollution from Ships (MARPOL) and USCG MARPOL

regulations. Specifically, the suggested language indicates that

jettisoning oil or hazardous substances is a viable option for ship

masters and salvagers, if doing so may decrease the risk of loss of

life or serious injuries, prevent the discharge of greater amounts of

oil or hazardous substances, or prevent more serious environmental

consequences than the jettison itself. Related to this, one commenter

suggested that the NCP needs to be clarified to indicate that salvagers

are ``persons'' under the CWA and not liable for removal costs or

damages that result from certain actions taken.

EPA does not believe there is any reason that the term ``person''

would be interpreted to exclude salvagers. It would be superfluous to

include such language and would encourage requests from others engaged

in spill response that the regulation afford them protection as well.

The OSC currently has authority to permit jettisoning to save the

vessel or its crew or to prevent more serious environmental damage.

Moreover, the discharge of oil or oily mixture into the navigable

waters for purposes of securing the safety of a ship or saving life at

sea is already authorized under Regulation 11 of the MARPOL protocol,

current U.S. law, and USCG regulations (33 CFR part 151).

Section 300.320--General Pattern of Response

One commenter suggested that Sec. 300.320(a)(2)(i) appears to

require notification of trustees only in the event of an actual or

potential major discharge, which is contrary to the requirements of

Sec. 300.305(d). EPA notes that, although Sec. 300.320(a)(2)(i) does

not say that the OSC needs to notify the trustees only of major

discharges, the language may be misleading. It has been revised to

reflect the commenter's concern.

Several commenters expressed concern with Sec. 300.320(a)(3)(i),

which provides the standard that the OSC will use to determine whether

the responsible party is conducting removal actions ``properly.''

First, they argue that it describes a standard that is unrealistic and

overly broad; responsible parties should only be responsible for

applying available resources in a manner designed to effectively and

immediately remove or mitigate the spill to the maximum extent

practicable. Second, the commenters believe that a decision to use

Federal resources should not cause a responsible party's efforts to be

necessarily deemed ``improper.'' They argue that the OPA intended

private and government resources to work together and the government

may have some resources simply not available to private parties. The

commenters therefore concluded that the provision in question creates a

disincentive to the use of these (government) resources.

Section 311(c)(1) of the revised CWA requires the President to

``ensure effective and immediate removal of a discharge'' in accordance

with the NCP. This authority has since been delegated to the OSC.

Because the OSC is required to ensure effective and immediate removal

of a discharge, he or she must use this test as the standard for

determining whether the responsible party removal action is being done

properly.

In addition, the authority given by the OPA to the OSC for setting

the course of response action has repercussions for the determination

of whether a private party spill response is ``proper.'' Under

Sec. 300.320(a)(3)(i) of the 1990 NCP, private party removal efforts

were deemed improper ``to the extent that Federal efforts were

necessary to minimize further or mitigate threats to public health and

welfare and the environment.'' However, the Agency understands that

this section of the NCP may unnecessarily restrict the OSC's ability to

determine whether a private party response is ``proper,'' given the

more flexible response approach detailed in the OPA. In certain

instances, the Federal Government may have response resources that are

not available or promptly available from other sources--the USCG's

special equipment for removal and salvage operations, for example--that

could aid in spill response. The Agency agrees that the use of these

resources should not necessarily determine that a responsible party

response is ``improper.'' EPA has therefore modified the language of

Sec. 300.320(a)(3)(i). Section 300.320(a)(3)(ii) also has been modified

to indicate that, if the OSC supplements responsible party resources

with government or other private resources, the responsible party

response will not be deemed improper unless specifically declared so by

the OSC. The OSC may declare that a private party response is

``improper'' if he or she determines that the cleanup is not fully

sufficient to effectively and immediately remove threats to the public

health and welfare and the environment.

One commenter suggested that the NCP (in conjunction with other

regulations, see, for example, 58 FR 7425, 33 CFR 155.1020 that

discusses worst case, maximum most probable, and average most probable

discharges) contains a multitude of discharge classifications with

attendant consequences for each category that is overly complex,

confusing, and unnecessary. With regard to the NCP, the commenter cites

discharges classified by size (major, medium, and minor), by category

(worst case discharge and spills of national significance (SONS)), and

by nature of the threat (those discharges posing a ``substantial''

threat). The commenter goes on to suggest that it is more important at

the time of a spill to characterize the spill by the level of desired

response rather than the actual amount of oil that is in the water, and

that rapidly determining the amount of oil spilled may not be possible

in many cases. The commenter recommends deletion of most discharge

classifications that do not have a statutory basis. In particular, the

commenter suggests that the major-medium-minor distinction for

classifying spills has outlived its usefulness, and that operational

demands of the response should dictate what level of coordination

occurs and what resources are requested by the OSC.

The Agency notes that the proposed revisions to the NCP built upon

the spill classification system in place prior to passage of the OPA.

New statutory requirements, as well as SONS were added. EPA believes

each of the different elements of this revised system are important to

different parties and for different purposes. Taken as a whole, the

revised system provides a combination of approaches to developing the

appropriate spill response. It retains approaches that are known and

understood in the response community, permits existing tracking and

recordkeeping mechanisms to remain in effect, and effectively

implements new OPA mandates. In large part, this system supports

planning and other non-response activities. The classification system

itself does not pre-determine the full range of actions that could be

taken in response to a spill. No further revisions are being made at

this time.

One commenter stated that the OSC should be required to designate

the response area as soon as possible after an oil spill event to

clearly define the limits of the response area because the vessel

response plan requirements state that the OSC will designate as the

response area that area in which spill response activities are

occurring. EPA believes that implementation of this commenter's

recommendation would unnecessarily constrain decisionmaking by the OSC

during the full course of an incident. As conditions change, the

response area may change. In addition, the commenter's concerns

presumably revolve around implementation of vessel and facility

response plans and carrying out activities in ``the response area''

versus outside the area. This issue should be discussed with the OSC on

a case-by-case basis and is not appropriate for inclusion in the NCP.

One commenter stated that Sec. 300.320, which suggests that

notification of states is a function of the size of a spill, is

inconsistent with Sec. 300.300(d) which requires that the OSC ensure

that the appropriate agency of a state affected by a spill be notified.

EPA has revised this section to make it clearly consistent with

Sec. 300.300(d).

Section 300.322--Response to Substantial Threats to Public Health or

Welfare of the United States

In order to clarify the latitude given to OSCs to determine which

spills pose ``substantial threats,'' several commenters recommended

that the sentence found in the preamble, ``most discharges are not

expected to be identified by the OSCs as substantial threats to public

health or welfare of the United States,'' be added to the rule language

of this section. EPA believes that the language provided on substantial

threat discharges in the preamble to the proposed rule represents

adequate guidance concerning the likely frequency of such discharges.

The Agency does not believe that it would be appropriate to limit,

through a change in the rule language, the discretionary authority of

the OSC to determine whether a discharge would result in a substantial

threat to the public health or welfare of the United States.

Section 300.323--Spills of National Significance

One commenter suggested that the intent of the preamble (that SONS

will be extremely infrequent), should be added to the rule language.

EPA believes that the language provided on SONS in the preamble to the

proposed rule represents adequate guidance concerning the frequency of

such spills. The Agency does not believe that it would be appropriate

to limit, through a change in the rule language, the discretionary

authority of the Administrator of EPA and the Commandant of the USCG to

determine whether a discharge would result in a SONS.

One commenter stated that the SONS classification is not needed at

all, arguing that a properly implemented incident command system is

able to provide response to any size spill. The commenter was concerned

that the designation of spills as SONS may be influenced by the media

or politics.

EPA believes that, during certain response situations involving

spills of extreme severity or size that have the potential to greatly

affect the public health or welfare of the United States, extraordinary

coordination of federal, state, local, and responsible party resources

may be required for containment and cleanup. In situations such as

these, coordinating resources at the national level and managing

relations among various government officials and the public requires

significant time and effort. This may divert attention away from the

actions necessary to respond to the spill itself, which, in the case of

a SONS, would likely be complicated. Furthermore, while OSCs are

thoroughly familiar with their regions or districts, they may be less

knowledgeable about areas outside their regions or districts. The OSC

in charge of responding to a spill that affects several regions,

districts, or countries may benefit from communication assistance to

identify and coordinate resources, evaluate site-specific conditions,

and assess threats to the environment.

For these reasons, EPA developed a ``strategic management''

framework designed to assist the OSC in dealing with resource

administration, government coordination, public relations, and

communication for SONS, codified in Sec. 300.323. As an important part

of the national response system, the SONS response strategies ensure

that the government will be able to respond to spills of any size or

severity. The designation of a SONS will, therefore, depend on the

presence of exigent circumstances.

With regard to Sec. 300.323(b), two commenters requested

clarification to indicate that the person named to assist the OSC is

not limited to the few roles specified and that this individual's

duties will be directed by (and not supersede the authority of) the

OSC. One commenter also suggested that the coordination at the national

level discussed in this section would best be accomplished through the

incident command system, which will serve to maintain the integrity of

the local command structure as the incident escalates.

EPA reiterates that the ``assistance'' provided by a designated

senior EPA official in support of the OSC within the SONS response

framework is intended to relieve the OSC of certain communication and

coordination burdens associated with directing response efforts. If a

spill is designated as a SONS, issues of communication and coordination

quickly take on importance at the national level. However, this

designated senior agency official is not subordinate to the OSC. This

official will simply fill the role of the OSC for specific, limited

activities related to communications and coordination, as detailed in

Sec. 300.323(b). EPA believes this approach reflects historical

practices.

Section 300.324--Response to Worst Case Discharges

Several commenters strongly suggested that this section needs to

recognize there can be many ``worst case'' discharges from small

facilities or vessels where implementation of the requirements of this

provision would not be justified or otherwise appropriate. Two

commenters suggested that paragraph (a) also include a requirement that

the discharge pose a substantial threat to public health or welfare of

the United States before the measures for responding to a worst case

discharge would be triggered. They believe this would provide the OSC

with additional latitude to activate only those measures most

appropriate to the circumstances. Alternatively, one commenter

suggested that full implementation of the ACP worst case provisions

would not be necessary for all worst case spills; another suggest

deleting the requirement to notify and use the NSFCC.

EPA notes that CWA section 311(d), as amended by the OPA, requires

the NCP to include ``procedures and standards for removing a worst case

discharge of oil and for mitigating or preventing a substantial threat

of such a discharge.'' CWA section 311(j), as amended by the OPA,

requires Area Committees to prepare an ACP for their area that, when

implemented in conjunction with the NCP, will be adequate to remove a

worst case discharge and to mitigate or prevent a substantial threat of

such a discharge. CWA section 311(j) also requires that the National

Response Unit (i.e., the NSFCC) shall coordinate use of private and

public personnel and equipment to remove a worst case discharge, and to

mitigate or prevent a substantial threat of such a discharge. Once the

OSC has determined that an oil spill is a ``worst case discharge'' the

OPA mandate concerning such discharges must be followed. Because

Secs. 300.324(a)(1) and (3) and 300.324(b) reflect the requirement of

the OPA worst case discharge-related provisions, they must be included

in the NCP.

However, EPA recognizes that proposed Sec. 300.324 has created some

confusion regarding the implementation of the worst case discharge

provisions of the ACP. These provisions are activated only when the OSC

has determined that a discharge is a worst case discharge, as specified

in the ACP. Oil spills that meet the definition of worst case discharge

specified in vessel and facility response plans, but not the ACP, would

not require activation of the worst case discharge provisions of the

ACP. In addition, the OSC is required to notify the NSFCC only of ACP-

defined worst case discharges. The rule language in Sec. 300.324 of the

NCP has been revised to reflect these clarifications.

Two commenters suggested deletion of paragraph (a)(2); they

asserted that the OSC should not have to require the responsible party

to implement their response plan, because it would be automatically

initiated by the responsible party without direction from the OSC. EPA

agrees that the responsible party is required to automatically initiate

its response plan without direction from the OSC. However, EPA is

restating this requirement in Sec. 300.324(a)(2) for clarification

purposes.

Section 300.335--Funding

One commenter noted that the preamble to the proposed rule states

that the provisions of Sec. 300.320(b)(3)(iii) are addressed in

Sec. 300.335. However, the commenter noted that former

Sec. 300.320(b)(3)(iii) addresses the actions an OSC is to take if

there is a minor discharge and that provision is not addressed in the

proposed Sec. 300.335, which deals with OSLTF funding. The Agency

recognizes that the commenter is correct; the reference to Sec. 300.335

in the preamble to the proposed rule was erroneous. The correct

reference is Sec. 300.305.

One commenter noted that section 1004 of the OPA provides

limitations to liability for discharges of oil and stated that although

Sec. 300.335 of the proposed NCP addresses funding of removal actions,

it does not reference the liability limitations described in the OPA.

The commenter recommended that a reference to these liability

limitations be included in the revised NCP. EPA does not consider the

details of OPA liability limitations to be relevant to the funding

discussion in Sec. 300.335. The purpose of Sec. 300.335 is to discuss

various scenarios for federal funding of oil spill response activities.

Therefore, the recommended change is inappropriate.

One commenter stated that the preamble notes that the NCP provides

that ``funding of a response to a discharge from a federally owned,

operated, or supervised vessel is the responsibility of the owning,

operating, or supervising agency.'' The commenter believed it would be

helpful to define or explain ``supervised,'' or add a reference to

where such explanation may be found. The commenter also noted that the

NCP incorporates the OPA definition of ``responsible party,'' which

excludes federal agencies, states, municipalities, commissions, or

political subdivisions of a state ``that as the owner transfers

possession and right to use the property to another person by lease,

assignment, or permit.'' The commenter suggested that if ``supervised''

refers to facilities excluded in the OPA definition, it should be

deleted from the NCP.

The commenter points out an apparent contradiction between

Secs. 300.5 and 300.335(e), wherein an owner appears to be liable for

funding, but may not be a ``responsible party'' under some

circumstances. To harmonize these two provisions, EPA is revising

Sec. 300.335(e) by adding to the end thereof ``if it is a responsible

party.'' Thus, an owner will be liable if that owner also falls within

the definition of ``responsible party.'' This revision clarifies that

if a vessel or facility is ``supervised'' by an agency that is excluded

from the definition of responsible party, the vessel or facility would

not be liable for funding.

In addition, EPA has deleted subparagraph (f)(1) which contained an

inaccurate statement that EPA may provide funds to begin timely

discharge removal actions. In fact, EPA has no funding to initiate oil

removal.

Subpart E--Hazardous Substance Response

Section 300.410--Removal Site Evaluation

One commenter noted that proposed Sec. 300.410(e)(1) states that

``as part of the evaluation under this section, the OSC shall determine

whether a release governed by CWA section 311(c)(2) has occurred.'' The

commenter suggested that this provision be revised to read ``CWA

section 311(c)(1), as amended by OPA section 4201(a).'' EPA agrees and

has made this change in the final rule.

Section 300.415--Removal Action

One commenter stated that the citation to CWA section 311(c)(1)(A)

in Sec. 300.415(c)(1) is incorrect and should be changed to CWA section

311(c)(1), as amended by OPA section 4201(a). EPA agrees and has made

this change in the final rule.

Subpart G--Trustees for Natural Resources

Section 300.600--Designation of Federal Trustees

Two commenters asked that the reference in the proposed rule

preamble to the trustees' responsibilities for ``mitigation and

assessment of damage'' be changed to read ``mitigation of injuries and

assessment of damage.'' One of these commenters argued that the

suggested text would be more accurate because ``damages'' is a term of

art that refers to the monetary value of injury or lost use. Two

commenters also argued that the word ``preplanning'' should be removed

from that same discussion that reads ``preplanning and coordination for

both response and damage assessment activities are specifically

required * * *'' because there is no statutory requirement for

preplanning for damage assessment activities.

EPA agrees that the cited language is not completely accurate and

suggests the following as a better statement of trustee

responsibilities: Each trustee has responsibilities for protection of

resources; assessment of damage; and restoration, rehabilitation,

replacement, or acquisition of resources equivalent to those affected.

In these roles, trustees provide advice to the OSC on environmental

issues, including appropriate removal countermeasures, that should be

considered in the ACP; provide timely recommendations to the OSC during

an incident for the application of various removal countermeasures; may

initiate a preliminary survey of the area affected by a discharge to

determine if trust resources are, or potentially may be, affected; and

carry out a damage assessment of the area in order to recover monies to

restore, rehabilitate, replace, or acquire equivalent natural

resources. Preplanning and coordination for damage assessment

activities are strongly encouraged at the regional and area levels,

both during the area and regional plan preparation and during specific

incidents when coordination must be with the predesignated OSC.

One commenter, noting the phrase ``managed or controlled'' in

Sec. 300.600(a), suggested that the word ``protection'' in the second

sentence of Sec. 300.600(b)(1) should be changed to ``control.'' EPA

agrees and has made the change in today's final rule.

The same commenter claimed the use of ``most'' to modify

``anadromous fish'' in Sec. 300.600(b)(1) is misleading and inaccurate.

EPA agrees and has made this change as well as a conforming change in

Sec. 300.600(b)(2) to delete ``certain'' before ``anadromous fish'' in

the second sentence to more accurately reflect the trusteeship of

anadromous fish.

In addition to these changes made in response to public comments,

Sec. 300.600 has been further revised to clarify that trusteeship

extends to the ecosystems supporting specific natural resources, and

that habitat is included as part of the ecosystem. This was recognized

to a degree by the current language of Sec. 300.600(b)(1), referring to

particular ``examples'' of ecosystems and habitats. The revised

language clarifies that the supporting ecosystem concept applies

generally, and was not intended to refer solely to the specific example

of marine fishery resources. In addition, the revised language reflects

that trusteeship over natural resources also extends over migratory

species and their supporting ecosystems throughout their range within

the sovereign jurisdiction of the United States, states, or tribes.

Section 300.605--State Trustees

One commenter requested that the word ``may'' in the provision

reading ``The EPA Administrator or USCG Commandant or their designee

may appoint the state lead trustee as a member of the Area Committee,''

be replaced by the word ``shall.'' The commenter stated that this

change would clarify that the lead trustee designated by the governors

shall automatically be appointed to the Area Committee.

Membership on the Area Committee is an issue within the discretion

of EPA and the USCG. EPA and USCG wish to retain this discretion and

not commit to a membership decision, in advance, in all cases. The

Agency expects, however, that the decision regarding membership of the

state lead trustee will be made by EPA or the USCG in consultation with

state representatives on the Area Committee.

For consistency with revised Sec. 300.600, the phrase ``including

their supporting ecosystems'' has been added to modify the term

``natural resources.''

Section 300.610--Indian Tribes

One commenter asked for an explanation of the conditional language

regarding ``trust restrictions on alienation'' of natural resources.

The commenter also asked EPA to clarify whether Indian tribes are

voting members of the RRT. In addition, the commenter asked whether

Indian tribes are considered ``participating agencies'' under

Sec. 300.155 to determine if Indian tribes must clear their public

statements through the federal OSC's news office.

With regard to the language regarding ``trust restrictions,'' this

term refers to land owned by an individual Indian, which has a

restricted title. That is, the land cannot be sold without the

permission of the government, generally the DOI.

Regarding the commenter's other questions about Indian tribes,

Sec. 300.305 specifically defines ``states'' to include Indian tribes

for purposes of the NCP, unless otherwise noted. Section 300.180(b)

explains that Indian tribes have the opportunity to participate as part

of the response structure, as provided in the ACP. Indian tribe

representatives also may participate fully in all activities of the

appropriate RRT.

For consistency with revised Sec. 300.600, the phrase ``including

their supporting ecosystems'' has been added to modify the term

``natural resources.''

Section 300.615--Responsibilities of Trustees

Several comments concerned the procedures governing NRDAs. One

commenter argued that response management/direction and damage

assessment should be considered separate functions, performed by

separate agencies, because of potential conflicts of interest within

agencies and among individuals in those agencies. The commenter

suggested reinforcing this division by separating, in time, spill

response from NRDA activities, just as remediation and restoration

activities are separated from removal action under CERCLA. The

commenter also stated that agencies or individuals responsible for

damage assessments should not be able to benefit from damage awards,

either through a monetary or job security incentive. The commenter

argued that such benefits were incurred by certain agencies during the

Exxon Valdez spill. The commenter suggested that the incentive for such

benefits should be removed by clearly defining the mission of

government agencies responding to spills (i.e., to minimize the

ecological impact of the spill) and by ensuring that agencies with

responsibilities for spill response share information and cooperate

fully with all parties responding to a spill. Finally, the commenter

argued that monies designated for implementing the restoration plan

should not be used for purposes unrelated to restoration, such as

funding a research institute or purchasing land.

Spill response and damage assessments are separate functions,

performed by separate agencies. At the federal level, only the USCG and

EPA are tasked with response management and direction, while only the

natural resource agencies (DOI, DOC/NOAA, U.S. Department of

Agriculture, Department of Energy, and Department of Defense) are

responsible for NRDAs. Natural resource trustees also assist the OSC in

determining response priorities and strategies. This role was

reinforced in OPA section 1011, which requires the President to consult

with the trustees on removal actions. The trustees advise the OSC, who

retains final decisionmaking authority on response actions. Both the

trustees and the OSC agencies have the same basic mission--protection

of the environment. By advising the OSC on response, trustees may be

able to avoid or reduce the level of injury to natural resources from a

spill.

Entirely separating these activities in time is not possible. The

preamble to the DOC proposed rule on NRDAs (59 FR 1062, January 7,

1994) explains that the first phase of NRDA activities, called

preassessment activities, is likely to be conducted simultaneously with

the OSC-coordinated response activities. Some information needed for

NRDA is ephemeral and/or perishable and must be gathered quickly,

before it disappears. Also, conducting these activities simultaneously

is generally more cost-effective than conducting them separately. Both

activities may involve gathering the same or similar information. If,

for example, an OSC or responsible party is collecting samples, those

samples may be shared with the trustee(s), if all parties agree.

Trustees may need to collect some data themselves to accomplish their

NRDA responsibilities.

Information should, to the maximum extent possible, flow freely

between those agencies involved in the response and those involved in

the damage assessment. In addition, it is important that the activities

of the two groups be closely coordinated, as is the intent of

Sec. 300.615(c)(3)(ii). However, EPA has added language to this section

to reinforce that information supportive of the response phase,

although collected for damage assessment, should be made available

immediately to the OSC to support his or her decisions. This

information flow will most likely be through the SSC who, as part of

the OSC's staff, serves as the interface with the lead administrative

trustee for the OSC.

With regard to the use of damage awards, for spills occurring after

August 1990, the use of sums recovered as a result of a damage

assessment conducted under the NOAA NRDA rule is governed by section

1006(f) of OPA and includes NRDA and development and implementation of

a restoration plan. Such monies cannot be used for ongoing funding of

base program costs or for activities other than assessment and ``the

restoration, rehabilitation, replacement, or acquisition of the

equivalent, of natural resources.'' The budgets of natural resource

trustee agencies do not include funding from natural resource damage

settlements or awards as part of their program operations.

The same commenter said that trustee agencies should define their

NRDA data needs in advance of a spill so that data required by the

trustees could be collected during the spill response without directly

involving the trustees. The commenter also argued that information

gathered about a spill should be shared among the government agencies,

responsible party, and contractors, so that response efforts may be

launched, coordinated, and made more effective based on that

information.

This point is addressed in the proposed NRDA rule (59 FR 1062,

Jan

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