Tank Vessel and Facility Response Plans, and Response Equipment for Hazardous Substances

SUMMARY: The Coast Guard is soliciting comments relating to proposed

regulations requiring response plans for: certain tank vessels

operating on the navigable waters of the United States or any marine

transportation-related (MTR) facility that, because of its location,

could reasonably be expected to cause substantial or significant and

substantial harm to the environment by discharging a hazardous

substance. These regulations are mandated by the Oil Pollution Act of

1990 (OPA 90), which requires the President to issue regulations

requiring the preparation of hazardous substance response plans. The

purpose of requiring response plans is to minimize the impact of a

discharge or release of hazardous substances into the navigable waters

of the United States.

DATES: Comments must be received on or before September 3, 1996.

ADDRESSES: Comments may be mailed to the Executive Secretary, Marine

Safety Council [G-LRA-2/3406] (CGD 94-032, 94-048), U.S. Coast Guard

Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, or may

be delivered to room 3406 at the above address between 8 a.m. and 3

p.m., Monday through Friday, except Federal holidays. The telephone

number is (202) 267-1477.

The Executive Secretary maintains the public docket for this

rulemaking. Comments will become part of this docket and will be

available for inspection or copying at room 3406, U.S. Coast Guard

Headquarters.

FOR FURTHER INFORMATION CONTACT:

LT Cliff Thomas, Standards Evaluation and Development Division (G-MES),

(202) 267-1099.

SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard encourages interested persons to participate in the

early stages of this rulemaking by submitting written data, views, or

arguments. Persons submitting comments should include their names and

addresses, identify this specific advance notice (CGD 94-032, 94-048),

and the specific section of the action being addressed or the issue to

which each comment applies, and give the reason for each comment.

Please submit two copies of all comments and attachments in an unbound

format, no larger than 8\1/2\ by 11 inches, suitable for copying and

electronic filing. Persons wanting acknowledgment of receipt of

comments should enclose stamped, self-addressed postcards or envelopes.

The Coast Guard will consider all comments received during the

comment period. All comments will be considered in drafting the notice

of proposed rulemaking.

The Coast Guard plans to hold a public meeting in Washington, DC

regarding this proposed rulemaking between 45 to 60 days after

publication of this advance notice of proposed rulemaking (ANPRM). This

meeting will be conducted for the purpose of receiving views on what

should be regulated and what appropriate regulations would be. The date

and time will be announced by a later notice in the Federal Register.

Persons may request additional public meetings by writing to the Marine

Safety Council at the address under addresses. The request should

include the reasons why a meeting would be beneficial. If it determines

that an additional opportunity for oral presentations will aid this

rulemaking, the Coast Guard will hold another public meeting at a time

and place announced by a later notice in the Federal Register.

Drafting Information. The principal persons involved in drafting

this document are LT Cliff Thomas, Standards Evaluation Division,

(G-MES), LCDR Walter (Bud) Hunt, Response Division, (G-MRO), and

Jacqueline Sullivan, Project Counsel, Office of the Chief Counsel.

Background and Purpose

1. General

Section 311(j)(5) of the Federal Water Pollution Control Act

(FWPCA) [33 U.S.C. 1321(j)(5)], as amended by section 4202(a) of OPA

90, requires owners or operators of tank vessels, offshore facilities,

and onshore facilities that could reasonably by expected to cause

substantial harm to the environment to prepare and submit plans for

responding, to the maximum extent practicable, to a worst case

discharge, or a substantial threat of such a discharge, of oil or a

hazardous substance. Section 4202(b)(4) of OPA 90 establishes an

implementation schedule for these requirements with regard to oil.

Under section 4202(b)(4), an owner or operator of a tank vessel or

facility for which a response plan was required under 33 U.S.C.

1321(j)(5) and which handled, stored, or transported oil was required

to be operating in compliance with an approved response plan by August

18, 1993. However, section 4202(b)(4) did not establish a compliance

date requiring response plans for hazardous substances. For the

purposes of this ANPRM, discharge and release are synonymous.

2. Oil Response Plan Regulations

The Coast Guard issued two separate interim final rules (IRS) on

February 5, 1993: one requiring response plans for tank vessels

carrying oil in bulk as cargo (VRP IFR) [33 CFR 155] and another

requiring response plans for MTR facilities that handle, store, or

transport oil in bulk (FRP IFR) [33 CFR 154]. These IFRs define many

concepts such as ``marine transportation-related facility,'' ``maximum

extent practicable,'' and ``worst case discharge.'' The rules also

provide a specific format for response plans; however, they allow for

deviations from this format as long as the required information is

included and there is a cross reference sheet identifying its location.

The Coast Guard is considering using these concepts or modifying them

as necessary in the regulations for response plans for hazardous

substances.

3. Tank Vessels

The VRP IFR for oil uses the definition of ``tank vessel'' in 46

U.S.C. 2101. The same definition applies for purposes of implementing

the OPA 90 provisions for hazardous substance response plans. This

definition applies the requirement for hazardous substance response

plans to all tank vessels that carry hazardous substances in bulk as

cargo. Offshore supply vessels (OSVs) and certain fishing and fish

tender vessels are exempt from the requirements for hazardous substance

response plans because, in accordance with section 5209(b) of the Coast

Guard Authorization Act of 1992 [Pub L. 102-587, 106 Stat. 5039 at

5076], they are not considered tank vessels for the purposes of any

law.

The VRP IFR for oil establishes three categories for tank vessels:

manned vessels carrying oil as a primary cargo, unmanned tank barges

carrying oil as a primary cargo, and vessels carrying oil as a

secondary cargo. The Coast Guard is considering applying this scheme

for categorizing tank vessels to regulations requiring hazardous

substance response plans.

[[Page 20085]]

4. Marine Transportation Related Facilities

OPA 90 requires hazardous substance response plans for any offshore

facility or any onshore facility that, because of its location, could

reasonably be expected to cause substantial or significant and

substantial harm to the environment by discharging a hazardous

substance. In Executive Order (E.O.) 12777, the President divided the

responsibility for implementing the provisions of OPA 90 regarding

hazardous substance response plans among various Federal agencies.

Through a series of delegations, the Coast Guard was granted the

authority to implement hazardous substance response plan requirements

for fixed and mobile onshore MTR facilities and for deepwater ports.

The Environmental Protection Agency (EPA) was granted the authority to

regulate fixed onshore non-transportation-related facilities. The

Research and Special Programs Administration (RSPA) was granted the

authority to regulate onshore non-marine transportation-related

facilities (i.e., pipelines, motor carriers, and railways). The

Department of Interior's Minerals Management Service (MMS) was granted

the authority to regulate offshore facilities and associated pipelines,

other than deepwater ports subject to the Deepwater Ports Act of 1974.

That segment of the MTR facility that is over water is considered

to be an ``offshore facility'' under the FWPCA. Under E.O. 12777, this

segment is under the purview of MMS. A memorandum of understanding

(MOU) between the Department of Interior (DOI), Department of

Transportation (DOT), and the EPA establishing Federal jurisdictional

boundaries for offshore facilities became effective on February 3, 1994

[59 FR 9494; February 28, 1994]. To avoid any confusion caused by the

definition of ``offshore facility'', MMS coordinated an effort to

establish jurisdictional boundaries for oil spill prevention and

control, response planning, and response equipment inspection

activities. The Secretary of the Interior redelegated DOI's functions

under section 2(i) of E.O. 12777 to give the EPA jurisdiction over non-

transportation-related offshore facilities landward of the coast line

and to give DOT jurisdiction over transportation-related offshore

facilities located landward of the coast line. This MOU does not

include jurisdictional boundaries for oil spill financial

responsibility.

The FRP IFR for oil defines an MTR facility as any onshore

facility, including piping and structures used for the transfer or oil

to or from a vessel and any deepwater port subject to regulation under

33 CFR part 150. This definition includes not only large fixed onshore

facilities but also tank trucks, marinas, and railroad tank cars that

transfer oil to or from vessels where the vessel has a capacity of 250

barrels of oil or more. This definition, modified by substituting the

phrase ``hazardous substance'' for the word ``oil'', could be applied

to regulations requiring hazardous substance response plans.

As Coast Guard-regulated fixed onshore MTR facility is generally a

segment of a larger facility or complex. The FRP IFR for oil describes

a complex as a facility that contains portions which are regulated by

two or more Federal agencies. Onshore non-transportation related fixed

facilities, which can be part of a complex, are already covered by a

web of existing statutes and regulations at the Federal, state, and

local levels that address preparedness for, and response to, hazardous

substance releases. One of the purposes of this ANPRM is to address any

potential gaps in the coverage of these facilities and to prevent

imposing duplicative, overlapping, or conflicting regulations.

OPA 90 makes the distinction between onshore facilities that could

reasonably be expected to cause substantial harm to the environment

(substantial harm facilities) and facilities that could reasonably be

expected to cause significant and substantial harm to the environment

(significant and substantial harm facilities). Response plans must be

prepared and submitted for both types of MTR facilities; however,

response plans for significant and substantial harm MTR facilities also

must be reviewed and approved by the Coast Guard.

Under the FRP IFR for oil, all MTR facilities, including mobile

facilities, that are capable of transferring oil in bulk to or from

vessels with a capacity of 250 barrels or more, and MTR facilities that

are specifically so designated by the Coast Guard Captain of the Port

(COTP) are classified as substantial harm facilities. However, within

this set of substantial harm facilities, there is a subset of

significant and substantial harm facilities. Significant and

substantial harm facilities are fixed onshore MTR facilities, capable

of transferring oil in bulk to or from vessels with a capacity of 250

barrels or more, deepwater ports, or facilities that are specifically

so designated by the COTP. Mobile MTR facilities are not considered to

be significant and substantial harm facilities unless so designated by

the COTP.

The terms substantial harm facility and significant and substantial

harm facility, as defined in the FRP IFR for oil, could be used in the

FRP response plan regulations for hazardous substances if the phrase

``hazardous substances'' were substituted for the word ``oil'' in the

definitions of those terms.

The Coast Guard considered developing criteria for designation of

facilities that handle, store, or transport hazardous substances as

substantial harm and as significant and substantial harm facilities

that would be different from those criteria used in the oil FRP IFR.

The criteria considered would reflect the prospect that discharges of

hazardous substances present a different type and degree of potential

damage to human health and the environment than oil discharges.

EPA uses the concept of a ``reportable quantity'' to set the amount

of a discharge of a hazardous substance which requires the releaser to

report the discharge to the government. Section 117.1 of 40 CFR defines

``reportable quantity'' as that quantity that may be harmful and is a

violation of section 311(b)(3) of the FWPCA [33 U.S.C. 1321(b)(3)] when

discharged into or upon navigable waters, adjoining shorelines, the

contiguous zone, or in conjunction with activities under the Outer

Continental Shelf Lands Act [43 U.S.C. 1331, et seq.] or Deepwater

Ports Act of 1974 [33 U.S.C. 1501 through 1524]. Table 117.3 of 40 CFR

lists the reportable quantities of substances designated as hazardous

substances under section 311(b)(4) of the FWPCA [33 U.S.C. 1321(b)(4)].

One criterion considered was to designate an MTR facility that

handles, stores, or transports a hazardous substance in an amount

exceeding the reportable quantity of that hazardous substance as a

substantial harm facility. A criterion considered in designating

significant and substantial harm facilities was to identify facilities

that handle, store, or transport hazardous substances above 10 times

the reportable quantity. Alternately, facilities could be designated as

significant and substantial harm facilities if they handle, store, or

transport hazardous substances 100 times above the reportable quantity.

Using the concept of a reportable quantity to define what

constitutes a substantial harm facility, and distinguishing it from a

significant and substantial harm facility has the advantage of building

a regulatory

[[Page 20086]]

structure with a concept that incorporates quantifiable values that

already exist and are based on rational decisions through the

rulemaking process. The added advantage is that the public, industry,

and Coast Guard are familiar with these concepts. However, it may also

result in selection criteria that are unnecessarily complicated and

that are not consistent with those established in the FRP IFR for oil.

Additionally, the reportable quantity concept may not be applicable to

non-FWPCA hazardous chemicals. It is also not clear that using this

criteria will appreciably increase the likelihood of predicting the

harm that may occur to the environment in the event of a discharge of

hazardous substances from the MTR portion of a complex facility.

The applicability criteria established in 33 CFR 154.1015 for the

FRP oil regulations will be considered in drafting hazardous substances

response planning regulations. These criteria build on two existing

regulatory regimes which include pollution prevention regulations for

oil and hazardous substances and response planning regulations for oil

spills.

The applicability in 33 CFR 154.1015 is based on the ability of a

facility to transfer to or from a vessel with a capacity of 250 barrels

or more. The determination of substantial harm and significant and

substantial harm is associated with the capacity of an MTR facility and

its proximity to navigable waters, adjoining shorelines, or the

exclusive economic zone (EEZ), as well as other factors such as a

facility's proximity to public and commercial water supply intakes and

to areas of economic importance and environmental sensitivity. Such

determining factors are as relevant for hazardous substances as they

were for oils.

Using the FRP applicability for oil for hazardous substances would

provide that all MTR facilities that are capable of transferring to or

from a vessel with a capacity of 250 barrels or more could reasonably

be expected to experience a release of a hazardous substance, into or

on the navigable waters, adjoining shorelines, or EEZ, which would

result in substantial harm to the environment. All MTR facilities would

be classified as substantial harm facilities. Fixed MTR facilities

would be classified as significant and substantial harm facilities. As

in the FRP IFR, the COTP would have the authority to upgrade an MTR

facility classification to substantial harm or significant and

substantial harm. An owner or operator of an MTR facility who does not

agree with the initial classification would be provided with a process

to request review of the MTR facility's classification by the COTP

using the appeal process established in 33 CFR 154.1075.

5. Defining Hazardous Substances

OPA 90 does not define the term ``hazardous substance,'' but relies

on the existing definition of hazardous substance in section 311(a) of

the FWPCA [33 U.S.C. 1321(a)]. Section 311(a) defines ``hazardous

substance'' as ``any substance designated pursuant to subsection (b)(2)

[33 U.S.C. 1321(b)(2)] of this section.'' Under section 311(b)(2), the

EPA Administrator is tasked with developing, issuing, and revising a

list of hazardous substances which may affect natural resources or

present imminent and substantial danger to public health or welfare,

including but not limited to fish, shellfish, wildlife, shorelines, and

beaches. The EPA Administrator has designated 296 chemicals as

hazardous substances under the FWPCA. The list of hazardous substances

is located at 40 CFR part 116.

Section 1321(j)(5) of title 33 of the U.S.C., as amended by section

4202(a) of OPA 90, requires the Coast Guard to issue response plan

regulations for those hazardous substances designated under the FWPCA.

The Coast Guard notes that a number of dangerous chemicals other than

those designated as hazardous substances are carried in bulk as cargo

in the marine environment.

The International Maritime Organization (IMO) has begun to address

response plan requirements for hazardous chemicals. Its intention is to

use the basic guidelines for vessels contained in Regulation 26 of

Annex I of MARPOL as a model for such requirements. The approach

proposed here is consistent with that under consideration by IMO.

6. Maximum Extent Practicable and Worst Case Discharge

OPA 90 requires vessels and facilities to prepare and submit plans

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

discharge, and to a substantial threat of such a discharge.'' For

regulatory purposes, both maximum extent practicable and worst case

discharge are defined in the VRP and FRP regulations for oil. These

concepts could be applied to the requirements for response plans for

hazardous substances.

For vessels, the worst case discharge is defined at 33 CFR 155.1020

as ``a discharge in adverse weather conditions of a vessel's entire oil

cargo.'' For facilities, the worst case discharge is defined to mean

``in the case of an onshore facility and deepwater port, the largest

foreseeable discharge [of oil] in adverse weather conditions * * *''

The FRP IFR provides at 33 CFR 154.1029 a formula for calculating the

worst case discharge for each facility. By substituting the phrase

``hazardous substances,'' in lieu of ``oil'', the definitions of worst

case discharge for vessels and facilities could be applied to the

hazardous substance regulations.

For vessels and facilities, maximum extent practicable is ``the

planned capability to respond to a worst case discharge in adverse

weather.'' Maximum extent practicable is tied to a quantity of

equipment and personnel needed to respond to a worst case discharge. It

recognizes the limits on available current technology and private

response capabilities and places a limit or cap on the worst case

discharge volumes for which an owner or operator must plan to respond.

However, this cap does not limit the amount of response resources which

owners or operators may have to provide during an actual spill

response.

For oil, planning to respond to the maximum extent practicable

generally implies planning for the containment and recovery of spilled

oil. However, the Coast Guard recognizes that the concept of

containment and recovery does not apply to all hazardous substances.

Some hazardous substances that are released in the water will not be

recoverable. For the hazardous substance regulations, planning to

respond to the maximum extent practicable will require planning to

protect the public health and safety, facility and vessel personnel,

responders, and the environment. This protection may require planning

for actions other than containment and recovery of discharged hazardous

substances. Through rulemaking, the Coast Guard would be able to

determine what types of response strategies would be required to

address releases of the various types of hazardous substances. The

Computer-Aided Management of Emergency Operations (CAMEO) appears to be

the most effective method for determining the appropriateness of a

response to a hazardous substance release. CAMEO is a computer program

used by many response organizations to properly prepare for and respond

to a hazardous substance release. It was developed by the National

Oceanic and Atmospheric Administration (NOAA), EPA, and the National

Safety Council. It is kept current by frequent updates, is widely used,

and is readily available.

[[Page 20087]]

7. Average Most Probable Discharge and Maximum Most Probable Discharge

Although OPA 90 requires the issuance of regulations that address

only the worst case discharge from a vessel or a facility, the VRP and

FRP IFRs for oil require owners or operators to plan also for the

average most probable discharges and the maximum most probable

discharges. These concepts were developed to address the majority of

the spills that occur on vessels and at facilities--spills which are

significantly lower in volume than the worst case discharge volume

required to be addressed in response plans by OPA 90.

In the VRP IFR for oil, the average most probable discharge is

defined as a discharge of 50 barrels of oil from the vessel during

transfer operations. The maximum most probable discharge is a discharge

of (1) 2,500 barrels of oil for vessels with an oil cargo capacity

equal to or greater than 25,000 barrels; or (2) 10 percent of the

vessel oil cargo capacity if less than 25,000 barrels.

If the FRP IFR for oil, the average most probable discharge is

defined as a discharge of the lesser of 50 barrels or 1 percent of the

volume of a worst case discharge. The maximum most probable discharge

is the discharge of the lesser of 1,200 barrels or 10 percent of the

volume of a worst case discharge.

The concepts for the average and maximum most probable discharge in

the VRP and FRP IFRs for oil could be applied to the regulations

requiring response plans for hazardous substances; however, the

definitions of the terms may need to be modified to specifically

address the differences inherent in hazardous substances. These

definitions in the oil regulations are based on historical spill data

of the volumes of oil discharged into the marine environment. For

hazardous substance response plan regulations, the definitions may need

to be modified to reflect the historical data for the volumes of

hazardous substances that have been released in the marine environment

provided that the data is reliable.

8. Other Response Plan Requirements

Section 4202(a) of OPA 90 requires both oil and hazardous substance

response plan regulations to address issues such as plan review and

approval; consistency with the National Contingency Plan and Area

Contingency Plans; identification of the qualified individual;

identification by contract or other approved means of private response

resources; description of training, equipment testing, drills, and

responsibilities of vessel and facility personnel; periodic updating of

plans; and resubmission and approval after each significant change of a

plan. These issues and others (i.e., plan format) are addressed in the

VRP and FRP IFRs for oil and could be handled similarly for the

hazardous substance response plan regulations.

9. Developing Effective Response Plans

A key element in developing effective response plans for hazardous

substances is the development of an approach for addressing the

different types of hazardous chemicals. In addition to the 296

hazardous substances regulated by the FWPCA, there are a number of

additional hazardous chemicals that are not designated as hazardous

substances by the EPA under FWPCA but that are transported in bulk in

the marine environment. Effective response planning should include all

hazardous chemicals carried in bulk, not just those determined as

hazardous substances by the EPA. The Coast Guard is interested in the

views of the regulated community and the general public with respect to

response plans for hazardous chemicals not regulated under the FWPCA.

Discussion of Areas of Regulation Under Consideration

Regulations covering the following areas are being considered to

implement the response plan requirements of section 311(j) of the

FWPCA. Comments and suggestions from interested parties are invited.

1. Response Plans

(a) Response plans for MTR facilities would be submitted to the

cognizant Captain of the Port (COTP) for approval.

(b) Response plans for vessels would be submitted to the Commandant

(G-MEP), U.S. Coast Guard Headquarters, Washington, DC for approval.

(c) Each plan may be required to contain the following information:

--Emergency notification procedures.

--Vessel-specific or facility-specific information.

--Name of qualified individual.

--List and location of release response and fire extinguishing

equipment (including equipment on board the vessel or equipment located

at the facility).

--Response personnel, job descriptions for key positions, and their

training.

--Cargo or commodity hazard identification.

--Emergency response guidelines for each hazardous substance (i.e.,

containment, cleanup, or other appropriate response measures).

--Emergency response guidelines for different scenarios (i.e., large

and small, fires and explosions, collision, grounding, salvage

operations, piping failure, releases in sensitive or populated areas,

offshore and shoreside releases, etc.).

--Salvage operations (vessels only).

--Lightering capabilities (vessels only).

--Waste disposal.

--Worker health and safety.

--Threats to environment or public health and safety.

--Identification of sensitive areas and resources to protect sensitive

areas (facilities only).

(d) Response plans would be required to be consistent with the

National Contingency Plan (NCP) [40 CFR part 300], as required by 33

U.S.C. 1321(c)(2), and the Area Contingency Plan (ACP) as required by

section 311(j)(4) of the FWPCA [33 U.S.C. 1321(j)(4)], as amended by

section 4202(a) of OPA 90.

All plans may be required to follow a general format. Certain

aspects of the response plan for vessels, such as on board emergency

response procedures would be ``generic'' in form, regardless of the

vessel's port of call. These generic aspects would form the main

``core'' of the response plan. Information that is unique to a port of

call, however, such as clean up contractors or local contracting

representatives, would be included in the response plan as appendices.

(e) A qualified individual would have to be identified in the

response plan. A ``qualified individual'' is a representative of a

vessel or facility with written authority to engage in contracting with

response companies and to activate necessary funds from the owner or

operator to carry out cleanup activities. This individual should have

sufficient training to direct response contractors pending the arrival

of a company representative. The qualified individual must have the

means for immediate communication with the appropriate Federal official

and the persons providing personnel and equipment for release response.

(f) A communications network, such as a release response telephone

list, would be required to identify which parties must be contacted

(i.e., Federal agencies, contractors, a call-up tree) and how those

communications would be established.

(g) Vessel and facility owners or operators would be required to

identify and ensure by contract or other approved means, the

availability of private personnel and equipment necessary to respond to

a release. When

[[Page 20088]]

appropriate, the Coast Guard would provide guidelines regarding what

type and amounts of equipment are required for an average most

probable, maximum most probable, and worst case discharge.

The Coast Guard would maintain an oversight and enforcement role in

verifying the contractual availability of equipment and personnel

between pollution contractors and owners or operators of tank vessels

or facilities. The local COTP representative would determine that local

contractors possess the necessary qualifications and resources to

address hazardous substance releases for which they are contracted. In

addition, the Coast Guard could review the contract arrangements

between the vessel or facility and contractor for the interim period

when the response plans are submitted but not yet approved.

(h) The plan would be required to address training, equipment

testing, periodic unannounced drills, and the response actions of

vessel or facility personnel. The regulations would specify criteria

describing acceptable levels for approval. For vessels, response

actions and persons assigned would be listed in the ship's station

bills and muster list, which is currently required under 46 CFR subpart

35.10--Fire and Emergency Requirements.

(i) Response plans would be submitted for initial approval as well

as for approval of each significant change. Significant changes would

include changes in a vessel's or facility's configuration; changes in

hazardous substance handled, stored, or transported; changes in the

name and authority of a person in charge; changes of the owners or

operators (depending on who received approval of the plan); or changes

in the identification of cleanup operators.

(j) Response plans would be required to be updated periodically.

2. Response Equipment

The response planning requirements for the response equipment would

address the following areas:

(a) The type, quantity, and capacity of response equipment to be

carried on tank vessels or staged at locations ashore.

(b) The periodic inspection of response equipment, including the

standards of inspection.

(c) The method for enforcement, whether through required

recordkeeping or other means.

The regulations regarding vessel and facility response plans for

discharges of hazardous substances may closely parallel those

regulations for vessel and facility response plans for discharges of

oil. Because the physical properties of these various hazardous

substances are different from those of oil, alternative cleanup

measures will need to be considered.

3. Federal Response and Contingency Plan Requirements

OPA 90 is the latest of a series of statutes that regulate

hazardous chemicals. An onshore facility is required to comply with

numerous planning requirements associated with the handling, storage,

transportation, and manufacturing of various hazardous chemicals. The

following discussion is a brief summary of the various Federal planning

requirements for hazardous chemicals.

Section 311(j)(5)(c) of the FWPCA [33 U.S.C. 1321(j)(5)(c)], as

amended by the Oil Pollution Act of 1990 (OPA 90), sets forth certain

minimum requirements for vessel and facility response plans for FWPCA

hazardous substances. The plans must--

--Be consistent with the requirements of the National Oil and Hazardous

Substances Pollution Contingency Plan (NCP) and Area Contingency Plans

(ACPs);

--Identify the qualified individual having full authority to implement

response actions, and require immediate communications between that

individual and the appropriate Federal official and the persons

providing response personnel and equipment;

--Identify and ensure by contract or other approved means the

availability of private personnel and equipment necessary to respond,

to the maximum extent practicable, to a worst case discharge (including

a discharge resulting from fire or explosion), and to mitigate or

prevent a substantial threat of such a discharge;

--Describe the training, equipment testing, periodic unannounced

drills, and response actions of persons at the facility, to be carried

out under the plan to ensure the safety of the facility and to mitigate

or prevent a discharge or the substantial threat of a discharge;

--Be updated periodically; and

--Be resubmitted for approval of each significant change.

In the case of onshore facilities, the OPA 90 Conference Report

recognizes that a ``substantial number of facilities that handle, store

or transport hazardous substances are subject to emergency planning

requirements under the Solid Waste Disposal Act, the Comprehensive

Environmental Response, Compensation, and Liability Act, the

Occupational Safety and Health Act, and other Federal statutes.'' [H.R.

Rep. No. 101-653, 101st Cong. 2nd Sess. 1990 at p. 151] Additionally,

the Conference Report recognizes that chemical emergency planning

requirements are in effect for communities under the Emergency Planning

and Community Right to Know Act (EPCRA). The Report also states that

the President should select onshore facility response plans in a manner

that will avoid duplicative or conflicting response plan review

requirements and should ensure that such plans are coordinated with the

community emergency planning effort under EPCRA.

Resource Conservation and Recovery Act (RCRA)

EPA regulations at 40 CFR part 264, subpart D issued under RCRA

establish requirements for owners and operators of hazardous waste

facilities to use in developing facility-specific contingency plans.

The plans must include response procedures; a list of all persons

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

emergency equipment and, when required, decontamination equipment at

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

arrangements upon which local police departments, fire departments,

hospitals, contractors, and State and local emergency response teams

have agreed to coordinate emergency services. The regulations pertain

to facilities that treat, store, or dispose of hazardous wastes as

defined in 40 CFR 261.3. Hazardous wastes include characteristics

wastes (see 40 CFR part 261, subpart C) and listed wastes (see 40 CFR

part 261, subpart D).

EPCRA or Title III of the Superfund Amendments and Reauthorization Act

of 1986 (SARA)

EPCRA requires Local Emergency Planning Committees (LEPCs) to

develop local emergency response plans for their community and review

them at least annually. Under EPCRA, facilities are required to notify

the State Emergency Response Commission (SERC) and Local Emergency

Planning Committee (LEPC) if they have ``extremely hazardous

substances'' (see 40 CFR part 355 for a list of the 360 ``extremely

hazardous substances'') present above threshold planning quantities. In

addition, upon request of the SERC or LEPC, the facility is required to

provide the LEPC with any information necessary to develop and

[[Page 20089]]

implement the LEPC plan. Local emergency response plans must identify

regulated facilities; describe procedures, equipment, and personnel to

respond to releases; and include evacuation plans. Because of this

requirement that certain facilities participate in emergency planning

under EPCRA, it is likely that some overlap may exist with OPA 90

response plan requirements. In addition, under some state EPCRA laws

facilities are required to prepare contingency plans.

Clean Air Act

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

and operators of stationary sources with ``regulated substances'' above

specified threshold quantities will be required to prepare risk

management plans (RMPs), which must include a hazard assessment

(including, among other things, an evaluation of worst-case accidental

releases), a prevention program, and a response program. Owners and

operators are to provide a copy of the RMPs to the State, local

planning and response authorities, and the Chemical Safety and Hazard

Investigation Board. The list of ``regulated substances'' promulgated

under section 112(r) authority includes a diverse array of toxins (77),

flammables (63), and high explosives [see 59 FR 4493; January 31,

1994].

Section 112(r)(7) of the CAA requires that the hazard assessment

evaluate worst case accidental releases, estimate potential release

quantities, and determine downwind effects including potential

exposures to affected populations. Owners or operators must also

develop an emergency response program that includes specific actions to

be taken in response to a release including procedures for notifying

the public and response agencies, emergency health care, and employee

training measures. EPA is currently developing regulations to implement

the new CAA RMP requirements. In addition, some states already have RMP

rules in place that require facilities to develop emergency plans.

In addition, section 112(r)(1) of the CAA, as amended, indicates

that stationary sources have a general duty in the same manner and to

the same extent as under the Occupational Safety and Health Act to--

--Identify hazards that may result from accidental releases of

regulated substances or other extremely hazardous substances;

--Design and maintain a safe facility, taking such steps as are

necessary to prevent releases; and

--Minimize the consequences of accidental releases which do occur.

Section 112(r)(1) imposes upon owners and operators of facilities

emergency response duties for a broad range of hazardous chemicals not

restricted to a named list. Also under CAA section 112(r)(9), the EPA

Administrator may issue an administrative order to seek such judicial

relief as is necessary to abate an actual or threatened accidental

release when the Administrator determines there may be an imminent and

substantial endangerment to human health or the environment.

Occupational Safety and Health Act (OSHA)

OSHA has several sets of standards that envision some form of

emergency response planning for facilities that handle, store, or

transport hazardous substances. These requirements are directed mostly

at the protection of facility employees and emergency responders. The

OSHA Process Safety Management Standard (see 29 CFR 1910.119) requires

the preparation of emergency response plans under 29 CFR 1910.38(a) or

29 CFR 1910.120 for employers to prevent or minimize the consequences

of catastrophic releases of certain chemicals in the workplace.

Employers must develop formal process safety management program for

facility processes that involve a listed highly hazardous substance at

or above the threshold quantity. The list of highly hazardous

substances (see 29 CFR 191.119) includes 125 toxic and reactive

chemicals as well as several mixtures. The program covers employee

participation, process safety information, process hazard analysis,

operating procedures, training, contractors, pre-start up review,

mechanical integrity, hot work permits, management of change, incident

investigation, emergency planning and response, and compliance audits.

The EPA/OSHA Hazardous Waste Operations and Emergency Response

(HAZWOPER) Standard (see 29 CFR 1910.120) establishes requirements for

employers and organizations to protect the safety and health of workers

involved in such operations. The operations covered by this standard

are cleanups at uncontrolled hazardous waste sites, corrective actions

and routine hazardous waste operations at RCRA treatment, storage, or

disposal (TSD) facilities, and emergency response operations without

regard to location. Employers must implement a written safety and

health program that includes an organizational work plan, site

evaluation and control, information and training, personal protective

equipment, monitoring, medical surveillance, decontamination

procedures, and an emergency response program. The HAZWOPER list of

substances is broad and includes all 296 FWPCA hazardous substances.

Coordination of Planning Requirements

The issue of coordinating multiple contingency planning

requirements in an attempt to minimize duplication on the regulated

community is a focal point of the recently published Presidential

review of Federal agency authorities and coordination responsibilities

for release prevention, mitigation, and response required by section

112(r)(10) of CAA. EPA's Chemical Emergency Preparedness and Prevention

Office, in cooperation with the National Response Team, conducted a

study titled A Review of Federal Authorities for Hazardous Materials

Accident Safety (EPA550-R-93-002) to fulfill the Congressional mandate.

The review concludes that, while achieving its statutory goals, the

existing regulatory scheme is both complex and costly.

With respect to contingency planning, the report notes that the

previously mentioned statutes were enacted independently of one another

resulting in inconsistent components in the regulatory process. Some

planning requirements are more stringent than others; some require

specific technical features; and some require submission of the

contingency plans for Federal or State and local review. Also, because

different statutes address slightly different hazards using different

lists of substances, the number and type of facilities required to

develop these plans varies. Moreover, there is seldom harmony in the

required formats or elements of particular plans. Although the study

team did not find many actual conflicts among planning requirements,

there were numerous differences in terminology and emphases: these

differences have resulted in facilities preparing multiple plans to

ensure compliance.

To provide relief for the redundant and overlapping federal

response planning requirements faced by facility operators, under the

leadership of the Environmental Protection Agency (EPA), the National

Response Team is producing guidance on an integrated planning approach

which would ultimately result in the ability to prepare one plan to

cover multiple federal response planning requirements, thereby reducing

burden and cost for the regulated community. The ``One Plan'' guidance

is being developed

[[Page 20090]]

through a cooperative effort among numerous NRT agencies, state and

local officials, and industry and community representatives. Response

plans developed in accordance with One Plan guidance will be acceptable

to the federal agencies responsible for reviewing and/or approving

response plans developed to comply with the following regulations:

(a) EPA Oil Pollution Prevention Regulation (Spill Prevention,

Control and Countermeasure and Facility Response Plan Requirements)--40

CFR part 112;

(b) MMS Facility Responses Plan Regulation--30 CFR part 254;

(c) RSPA Pipeline Response Plan Regulation--49 CFR part 194;

(d) USCG Facility Response Plan Regulation--33 CFR part 154,

Subpart F;

(e) EPA Risk Management Programs Regulation--40 CFR part 68

(proposed);

(f) OSHA Emergency Action Plan Regulation--29 CFR 1910.38(a);

(g) OSHA Process Safety Standard--29 CFR 1910.119;

(h) OSHA HAZWOPER Regulation--29 CFR 1910.120; and

(i) EPA Resource Conservation and Recovery Act Contingency Planning

Requirement--40 CFR part 264, Subpart D, 40 CFR part 265, Subpart D,

and 40 CFR 279.52.

The integrated contingency planning approach is an effective way to

ensure response procedures are coordinated throughout the facility and

to avoid duplicative and potentially conflicting plans. The One Plan

format does not change the actual planning requirements imposed by

federal statute. The Coast Guard fully expects that any future

hazardous substance response planning requirements resulting from this

ANPRM will be accommodated within a facility's ``One Plan''.

Analysis reveals that there may be a significant degree of overlap

between the types of facilities and chemicals that would be regulated

under prospective OPA 90 requirements and those under existing response

planning requirements. However, the specific intent of OPA 90, with

respect to hazardous substances, is to address the discharge or

substantial threat of a discharge of a limited number and type of

substances (i.e., FWPCA hazardous substances) to U.S. surface waters.

The other regulatory programs discussed previously, for the most part,

have slightly different emphases in terms of the type of chemicals

covered, the primary media considered (e.g., air, land, water), and the

general purpose of the regulation (i.e., protection of the environment,

protection of workers, etc.).

The existence of these related planning requirements provide an

opportunity for the promulgation of regulations which allow a certain

degree of flexibility in the way owners or operators meet the OPA 90

statutory requirements. The Coast Guard requests comment on specific

examples of how existing Federal and State planning requirements can be

shown to satisfy one or more of the OPA 90 mandates. The Coast Guard

also requests comment on which OPA 90 requirements may not be

adequately addressed in existing plans and how such requirements can be

implemented in the least burdensome manner. For example, if the Coast

Guard accepted a plan prepared to meet State or other Federal

requirements (or the Federal baseline standard mentioned previously) as

long as it was adopted to meet OPA 90 requirements and cross-referenced

in an appropriate manner, would owners or operators still choose to

develop a separate plan?

The Coast Guard will provide the responses to this ANPRM to other

Federal agencies so that these agencies may develop options to satisfy

the OPA 90 mandate while minimizing the burden on facility owners and

operators.

Assessment

At this early stage in the rulemaking process, the Coast Guard

anticipates that any final rule may be considered a significant

regulatory action under section 3(f) under E.O. 12866. The Coast Guard

anticipates that any final rule will also require an assessment of

potential costs and benefits under section 6(a)(3) of that order. It is

significant under the regulatory policies and procedures of the

Department of Transportation (44 FR 11030; February 26, 1979).

This rulemaking may have a substantial effect on States that have

or are developing response plan requirements. It may also affect

domestic and international shipment of hazardous substances to and from

the United States and may generate substantial public interest and

controversy. The primary economic impact of these regulations would be

on those tank vessel and facility owners that would have to comply with

any new requirements. These vessels would include approximately 270

tank vessels and 540 tank barges carrying hazardous materials: these

figures represent the number of these vessels that called in United

States waters in 1990. The Coast Guard estimates that this regulation

would affect 300 MTR facilities. In addition, these regulations may

also impact private hazardous substance release response contractors

and spill cooperatives.

Several alternative methods of implementing the rulemaking for

vessel response plans have been identified. These include the

following: (1) Requiring response plans for specific tank vessels based

on factors such as vessel route, capacity, or product carried; (2)

requiring generic response plans for all tank vessels, with port

specific appendices; and (3) requiring individualized response plans

for each tank vessel and each facility.

The full extent of the economic and operational impact cannot be

quantified at this time. A primary purpose of this advance notice is to

help the Coast Guard to develop the rule and determine the cost of any

new requirements, to the extent that they exceed current legal and

regulatory requirements or current industry practice. The Coast Guard

anticipates that the public response to this advance notice will assist

it in writing proposed rule and a draft regulatory impact analysis.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the

Coast Guard must consider whether this proposal, if adopted, will have

a significant economic impact on a substantial number of small

entities. ``Small entities'' may include (1) Small business and not-

for-profit organizations that are independently owned and operated and

are not dominant in their fields and (2) governmental jurisdictions

with populations of less than 50,000.

Because specific requirements have not yet been proposed, the Coast

Guard is currently unable to determine the effect of regulations upon

small entities. Accordingly, an Initial Regulatory Flexibility Analysis

discussing the impact of this anticipated rulemaking on small entities

has not been prepared. However, the Coast Guard anticipates that there

is a potential significant impact on a substantial number of small

businesses, small not-for-profit organizations, and State and local

governments. The Coast Guard expects that the comments received on this

advance notice will assist it in determining the number of affected

small entities, and in weighing the impacts of various regulatory

alternatives for the purpose of drafting these regulations.

Collection of Information

Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the

Office of

[[Page 20091]]

Management and Budget (OMB) reviews each proposed rule that contains a

collection-of-information requirement to determine whether the

practical value of the information is worth the burden imposed by its

collection. Collection-of-information requirements include reporting,

recordkeeping, notification, and other, similar requirements.

The Coast Guard cannot yet estimate the paperwork burden associated

with this rulemaking because no regulations have been drafted. However,

at a future stage, the Coast Guard may require that tank vessel and

facility owners and operators maintain records of response plan

approvals and equipment inspections which would be available upon

request to the Coast Guard as well as developing and maintaining

response plans. The Coast Guard expects that comments received on this

advance notice will assist it in estimating the potential paperwork

burden, as required under the Paperwork Reduction Act (44 U.S.C. 3501

et seq.). Once estimated, the Coast Guard will submit this proposed

recordkeeping requirement to the Office of Management and Budget (OMB)

for approval.

Federalism

This advance notice of proposed rulemaking has been analyzed in

accordance with the principles and criteria contained in Executive

Order 12612. Based on the information available to it at this time, the

Coast Guard is unable to determine whether this rulemaking would have

sufficient federalism implications to warrant the preparation of a

Federalism Assessment. Some standardization of vessel response plan

requirements is necessary because affected vessels move from port to

port in the national marketplace and separate regulations and plans for

each port would be economically burdensome and potentially unsafe.

Some standardization of the MTR facility response plans may also be

necessary. MTR facilities may be regulated by other Federal agencies,

and some States may impose their own response planning requirements.

OPA 90 prohibits Federal preemption. Many facilities operate in the

national marketplace and excessive variation in the requirements would

be economically burdensome and potentially unsafe. The Coast Guard

specifically seeks public comment on the federalism implications of

this proposal.

Environment

The Coast Guard considered the environment impact of this

anticipated rulemaking and expects that it should have a positive

impact on the environment by ensuring that hazardous substance response

planning has been conducted by owners or operators of tank vessels and

facilities for the purpose of enhancing preparedness to contain and

recover releases of these products. Before a proposed rule is

published, an environment analysis will be prepared in accordance with

Coast Guard requirements, COMDTINST M16475.1B. That document, which

will describe the anticipated environmental effects of the proposed

rulemaking, will be placed in the docket for inspection or copying at a

location indicated in the proposed rule. The Coast Guard invites

comments addressing possible effects this proposal may have on the

human environment, or on potential inconsistencies with any Federal,

State, or local law or administrative determinations relating to the

environment. A final determination regarding the possible need for an

environmental assessment will be made after receipt of relevant written

comments.

Questions

To adequately address the issues discussed in this advance notice,

additional information is needed. Responses to the following questions

would be particularly useful in developing a future Notice of Proposed

Rulemaking (NPRM).

Reponse Plans

1. Are there any historical data existing on hazardous substance

discharges in the marine environment (e.g., causes of discharges,

resulting injuries or fatalities, number of hazardous substances

discharged, volume of discharges, need to evacuate, and resulting

natural resource and property damage? If so, where can such data be

found? Are there any restrictions on the accessibility of this data?

2. Are there any data regarding the effectiveness of hazardous

substance response planning in terms of preventing occurrences of

casualties and incidents, reducing the volume of releases after the

occurrences of casualties and incidents, improving containment and

recovery, if possible, and avoiding injuries and fatalities)?

3. How many companies operate tank vessels that carry, or

facilities that store or transport hazardous substances? On the

average, how many vessels or facilities are operated by a single

company?

4. How should response plans for non-FWPCA hazardous chemicals

which are carried in bulk (e.g., noxious liquid substances as listed in

Annex II of MARPOL) be addressed?

5. How many different types of hazardous substances are carried

during a single voyage? How many different types of hazardous

substances are handled, stored, or transported by a single MTR

facility?

6. What are appropriate hazardous substance storage and throughout

thresholds for selecting facilities that could cause substantial harm

to the environment and for selecting the subset of those facilities

that could reasonably be expected to cause significant and substantial

harm to the environment? Should the Coast Guard use the capacity of a

vessel calling at an MTR facility as a means of selecting facilities

that could reasonably be expected to cause significant and substantial

harm to the environment?

7. Should the CAMEO program be used to determine the appropriate

response strategies for the various hazardous substances which may be

involved in a potential release? What alternative guidance is

available? Would you consider it more appropriate? If so, why?

8. For MTR facilities that are part of an onshore non-

transportation related fixed facility complex, are there potential

conflicts in the areas of hazardous substances regulated and the amount

of a worst case discharge?

9. Are there potential gaps in existing Federal regulatory coverage

for hazardous substance response plans for the onshore non-

transportation fixed facility portion of an MTR complex?

10. What information should be required in the tank vessel and

facility response plans?

11. Should the information provided in response plans for vessels

carrying hazardous substances and for facilities handling hazardous

substances vary depending on the type of substances transported? How

should substances be classified? Should each class of hazardous

substance have a different plan? Should vessel owners and facility

owners have a separate plan for each product they handle or should they

have product groups within the plan? How would response strategies

differ for the various types of hazardous substances?

12. Should all FWPCA hazardous substance be regulated at the same

threshold or should thresholds for individual substances be set based

upon the specific considerations associated with each substance? Should

the threshold level be based upon the reportable quantity (i.e.,

quantities of hazardous substances that may be harmful as set forth in

40 CFR 117.3, the

[[Page 20092]]

discharge of which is a violation of section 311(b)(3) of the FWPCA [33

U.S.C. 1321(b)(3)] and requires notice as set forth in 40 CFR 117.21

for the substance) or a multiple of the reportable quantity? What would

be an appropriate multiplier for such a determination?

13. How should the concept of ``responding to the maximum extent

practicable'' be applied for purposes of planning the response to a

worst case discharge of a hazardous substance? Should it be the same

for hazardous substances as it is for oil in 33 CFR parts 154 and 155?

14. How many U.S. companies provide response services for hazardous

substance releases and in what geographic areas would these services be

available? What response capabilities do these services have in terms

of amount and type of equipment and personnel available?

15. How should the concept of ``contracts or other approved means''

be applied for the purposes of planning the response to a worst case

discharge of a hazardous substance? What aspects of hazardous substance

spill response may warrant treatment different form oil spill

responses? What role do public responders (e.g., local fire department

personnel) play in response to releases of FWPCA hazardous substances

and how should their involvement be reflected in the planning

requirements?

16. What format should be used for the response plans?

17. For vessel response plans, what information should be required

in the ``core plans'' and in port specific annexes?

18. How often should the response plans be reviewed and updated by

vessel and facility owners and the Coast Guard? Should there be any

other reviewing entity? Should the frequency of review be dependent on

the type of substance transported?

19. Where should the response plans be kept on an unmanned tank

barge or a tank barge that is at anchor or underway? Should the plans

be kept on board a towboat when engaged in towing a barge with a

hazardous substance in bulk as cargo?

20. Are there vessels and facilities which have voluntarily

prepared response plans addressing a potential release of a hazardous

substance? Are there response plans for hazardous substances which were

prepared in response to other U.S. or international regulations or

policies?

21. Should the owner or operator of a facility that has already

prepared an emergency or contingency plan under Title III of the

Superfund Amendments and Reauthorization Act of 1986 (SARA) [Pub. L.

99-499, 100 Stat. 1613] or other applicable statute (EPCRA, RCRA, CAA,

and HAZWOPER) be permitted to amend that plan to incorporate hazardous

substance response plan provisions to comply with the requirements of

OPA 90?

22. If requested, the owner or operator of a facility must submit

Tier Two information forms to local authorities with jurisdiction over

the facility under Title III of SARA. Could the Title III, Tier Two

form be supplemented to comply with the requirements of OPA 90

regulations?

23. Should the term ``qualified individual'' be define differently

from its definition in oil response plan regulations? If so, why?

24. In addition to navigating the vessel, should the vessel crew be

required to do more than attempt to control or stop the discharge and

report it to the proper authorities?

25. Should hazardous substance response contractors listed by a

vessel or a facility (as a condition of approval of the vessel's or

facility's plan) be required to develop a local response plan

consistent with the Area Contingency Plan?

26. How should worst case discharges be determined for an MTR

facility? Should it be the same for hazardous substances as it is for

oil? If not, upon what should this determination be based? Should worst

case discharge quantities be based on probable accident or incident

scenarios and resulting releases?

27. How should adverse weather be defined and considered in

determining a worst case discharge of a FWPCA hazardous substance? How

might weather concerns differ when responding to a hazardous substance

discharge versus an oil discharge? For example, could a lack of wind,

rain, and strong currents result in a riskier situation when a

discharge of a hazardous substance is involved because of the potential

for the substance to accumulate due to lack of dispersion?

28. What should the definition of average most probable and maximum

most probable discharge be for vessels and facilities?

29. Do discharges that are smaller than a worst case discharge

dictate different response strategies and resource commitments?

30. What is an appropriate response action for releases of

hazardous substances as defined in the National Contingency Plan [40

CFR 300.5] as minor, medium, major, or catastrophic releases, or for a

worst case discharge, as defined in section 311(a) of the FWPCA [33

U.S.C. 1321(a)], as amended by section 4201 of OPA 90? How would the

appropriate response action be determined? Would it be measured by

distance from the release, distance from the closest equipment

launching facility, type of substance discharged, or by another means?

Should response action planning requirements reflect consideration of

the hazardous substance properties and hazards?

31. Should vessel damage stability and general arrangement plans be

maintained off the vessel as well as on board for salvage and

firefighting purposes? Where should they be located (i.e., Coast Guard

Marine Safety Center, local COTP, classification societies)? How

accessible should they be?

32. Should each vessel owner be required to maintain a response

plan for each U.S. port of call? Should the vessel owner or agent

representative in each port maintain a local plan which would be

sufficient for the vessels calling under his control?

33. What involvement, if any, should State or local authorities

have in the review or approval of vessel and facility response plans?

34. Using the definition of ``tank vessel'' in 46 U.S.C. 2101, what

impact will these regulations have on vessels that carry limited

quantities of hazardous substances in bulk as cargo or cargo residue

(passenger, cargo, or miscellaneous vessels)? Should any vessels be

exempt from these requirements? If so, what types, tonnages, and

capacities should these exemptions cover and why?

35. For certain classes of materials should the response plan

include evacuation and public notification procedures for areas

affected by the release as appropriate? How should plans address

threats to public health and safety, including bodies of water used for

drinking supplies? How should plans address threats to air quality?

36. Should a facility be required to plan for possible releases of

all hazardous substances carried by vessels calling at the facility

even if the facility does not typically handle those substances?

37. What type of response equipment should be required at

facilities? To what size discharge, if any, should the facility be

prepared to respond?

38. Should dispersion modeling (air and water) be required? Should

a minimum standard be set? What models are available to estimate the

dispersion of hazardous substances in the air or water?

39. Following an incident, what requirements should be in place for

[[Page 20093]]

taking samples of the water and the air? Should response plans include

requirements for air and water sampling?

Carriage and Inspection of Response and Firefighting Equipment

40. What types and how much hazardous substance response equipment

and firefighting equipment currently are carried on board tank vessels

or located at facilities?

41. Should all vessels required to have response plans also be

required to carry response equipment? Should some vessels be exempt

from equipment requirements?

42. What firefighting equipment would be necessary to have on board

a vessel or staged at a facility to respond to a possible fire

associated with the discharge of hazardous substances? Would the type

of equipment needed vary dependent upon the type of substance

discharged? What are the various firefighting options?

43. What equipment other than response and firefighting equipment

(e.g., transfer equipment, rescue equipment, and monitoring equipment)

should be addressed in response plans to prevent or mitigate a

potential hazardous substance release?

44. What response equipment is appropriate for vessels or manned

tank barges to carry, if any? Would the type of response equipment

needed vary dependent upon the type of substances carried?

45. What response equipment should be carried on board unmanned

tank barges, if any?

46. What are the appropriate capabilities of the equipment?

47. Should MTR facilities be required to have response equipment

staged at the facility?

48. If facilities are not required to stage equipment at the

facility, how much time should be allowed to bring response resources

to the facility?

49. How large a discharge should the response equipment be capable

of handling?

50. What equipment-inspection requirements are appropriate?

51. What equipment needs to be inspected?

52. Should the inspection be the responsibility of the owner or

operator and who should be required to maintain a record of that

inspection?

53. Should spot inspections of the equipment be made by Coast Guard

personnel as part of the vessel and facility inspection?

54. Should third-party inspection be used?

55. What action should be taken if required equipment is missing or

in disrepair?

56. What inspection requirements are appropriate for equipment

maintained by a cooperative or an independent organization?

57. Should the required equipment be approved by the Coast Guard?

58. Should the area of the vessel's operation or the regional

availability of support equipment affect the on board equipment-

carriage requirements?

59. Should tank barges in the same tow or fleeting area be

permitted to share equipment?

60. How should response equipment be deployed on unmanned tank

barges? Who should deploy the response equipment?

61. If containment boom is required, how much should be carried?

Should it be sufficient to completely encircle the vessel?

62. Should plans require an assessment of a local port's municipal

capabilities to respond to a hazardous substance release, including

firefighting capabilities?

63. What involvement, if any, should State or local authorities

have in the approval or inspection of response equipment?

64. Are there methods available to rate the capabilities of the

response and containment equipment?

65. Should frequency of inspections be the same as in the existing

oil response planning regulations?

66. How would compliance with this proposed regulation impact

compliance with other existing hazardous substance requirements?

67. Is there sufficient response equipment available to respond to

a worse case discharge? What, if any, caps should be placed on

equipment requirements?

68. Where is response equipment currently located? How should

required response times take into consideration the location of the

equipment? Are the response times established in the VRP and FRP IFRs

for oil appropriate for hazardous substance response planning in rivers

and canals, inland, nearshore, offshore, ocean, and Great Lakes waters?

If not, what other response times are appropriate?

Training

69. At the present time, what type of training do vessel and

facility personnel receive in the worker safety and response aspects to

hazardous substance releases? How many vessel and facility personnel

receive such training?

70. What training in the use of response equipment should be

required for vessel and facility personnel?

71. Should the Coast Guard or another entity certify providers of

this training?

72. Who should be required to have response training (i.e.,

licensed, unlicensed, deck or engine department personnel on board

vessels) among the vessel's crew and the facility's employees?

73. Should mariners be required to have their licenses or merchant

mariners' documents endorsed to show that the mariners have completed

emergency response training?

74. How can mariners and facility personnel demonstrate completion

of emergency response training?

75. What training in the implementation of the required response

plans should be included?

76. What specialized firefighting training should be required for

the crew of vessels carrying hazardous substances and personnel of

facilities that handle, store, or transport hazardous substances? How

will the training vary dependent upon the type of substances

transported by the vessel or handled, stored, or transported by the

facility?

77. What level of training will be required for qualified

individuals and responders?

78. Should hazardous substance response contractors be separately

classified by the Coast Guard? if yes, what should the criterion be?

Drills

79. Should drills be required in accordance with existing

regulations, i.e., as required in 33 CFR parts 154 and 155?

80. Should the Coast Guard adopt the National Preparedness for

Response Exercise Program (PREP) guidelines for hazardous substances?

81. Should there be a requirement to maintain a record of drills

conducted? Assuming records of drills will be required, where should

they be maintained? Should they be maintained on board vessels and at

facilities?

82. How should drill performance be measured?

83. What should the drill requirements be and should they be

different for different classes of substances?

84. How should drill performance be measured? What should be

considered acceptable performance (i.e., notification time, response

mobilization time, etc.)?

Economic Issues

85. What would be the economic impact of requiring each tank vessel

and facility to develop and implement a hazardous substance release

response plan? How would this impact vary

[[Page 20094]]

dependent upon the type of hazardous substances transported or handled?

86. How much would it cost to develop a hazardous substance

response plan, as described in this ANPRM, for single tank vessel or

facility? How would this cost vary depending upon the size and type of

tank vessel or facility? How would this cost vary by type of hazardous

substance transported, handled, or stored?

87. Would the per vessel or per facility cost to develop a response

plan for a fleet or tank vessels or group of facilities be lower than

the cost to prepare a response plan for a single vessel or facility?

88. What would be the cost to owners and operators of vessels and

facilities to annually review and update response plans?

89. What would be the economic impact for tank vessel or facility

owners or operators of maintaining on board or on site specialized

firefighting equipment?

90. What would be the economic impact on tank vessel or facility

owners or operators of reviewing and updating hazardous substance

release response plans?

91. What would be the economic impact on tank vessel or facility

owners or operators of maintaining on board or on site hazardous

substance release response equipment?

92. What would be the economic impact of these requirements on

small entities, as defined by section 605(b) of the Regulatory

Flexibility Act [5 U.S.C. 605(b)]?

93. What would be the economic impact for tank vessel and facility

owners or operators of maintaining contracts with release response

companies in each port they utilize?

94. What would be the economic impact on the cleanup industry of

enhancing hazardous substance response capabilities?

95. How much would it cost annually for a facility or tank vessel

to retain the services of a hazardous substance spill response

contractor to address its worst case discharge? How would this cost

vary by size and type of facility or vessel?

96. What would be the economic impact of requiring tank vessel and

facility owners or operators to train and drill personnel in worker

safety and release response?

Comments are not limited to the preceding questions and are invited

on any aspect of implementing the response planning requirements for

hazardous substance releases and the carriage of response and

firefighting equipment.

Dated: April 24, 1996.

Robert E. Kramek,

Admiral, U.S. Coast Guard, Commandant.

[FR Doc. 96-10997 Filed 5-2-96; 8:45 am]

BILLING CODE 4910-14-M