# National Oil and Hazardous Substances Pollution Contingency Plan; Final Rule ENVIRONMENTAL PROTECTION AGENCY > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-22347 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** September 15, 1994 ## Text 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. --------------------------------------------------------------------------- \1\Throughout the NCP, ``discharge'' also includes ``substantial threat of discharge,'' and ``release'' also means ``threat of release.'' --------------------------------------------------------------------------- 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 --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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 pa [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-22347. Public record. Not legal advice.