Oil Pollution Prevention and Response; Non-Transportation Related Onshore and Offshore Facilities

SUMMARY: The Environmental Protection Agency (EPA or the Agency)

proposes to revise the Spill Prevention, Control, and Countermeasure

(SPCC) Plan requirements, found at 40 CFR part 112, to reduce its

information collection burden. Proposed revisions would: give facility

owners or operators flexibility to use alternative formats for SPCC

Plans; allow the use of certain records maintained pursuant to usual

and customary business practices, or pursuant to the National Pollutant

Discharge Elimination System (NPDES) program, to be used in lieu of

records mandated by the SPCC requirements; reduce the information

required to be submitted after certain spill events; and extend the

period in which SPCC Plans must be reviewed and evaluated. EPA also

proposes to amend the Facility Response Plan (FRP) requirements, found

at 40 CFR 112.20, for two purposes. First, EPA proposes to provide a

method to calculate storage capacity when certain facilities have tanks

which contain mixtures of process water/waste water with 10% or less of

oil. This calculation is for the sole purpose of determining whether a

facility has sufficient capacity to subject it to the requirement in

Sec. 112.20 to prepare an FRP. Second, EPA proposes to amend the FRP

requirements to clarify that the Integrated Contingency Plan format may

be acceptable for an FRP. EPA believes that none of the proposed

changes will have an adverse impact on public health or the

environment. This is so because the proposal would maintain the same

standards of environmental protection that the rule now affords while

reducing its information collection burden.

DATES: Comments must be submitted on or before February 2, 1998.

ADDRESSES: Written comments on the proposed rule should be submitted in

triplicate, by U.S. mail, to the Superfund Docket, at 401 M St., S.W.,

Washington, D.C. 20460 (mail code 5203G). The docket is physically

located at 1235 Jefferson Davis Highway, Crystal Gateway 1, Arlington,

Virginia 22202, Suite 105. Comments physically delivered to EPA by any

means other than U.S. mail should go to the Arlington address. The

docket number for the proposed rule is #SPCC-7. Comments may also be

sent electronically to EPA at ``[email protected].''

Files should be sent in ascii format. The record supporting this

rulemaking is contained in the Superfund Docket and is available for

inspection, by appointment only, between the hours of 9 a.m. and 4

p.m., Monday through Friday, excluding legal holidays. Appointments to

review the docket can be made by calling 703-603-9232. As provided in

40 CFR part 2, a reasonable fee may be charged for copying services.

FOR FURTHER INFORMATION CONTACT: Hugo Paul Fleischman, Oil Program

Center, U.S. Environmental Protection Agency, at 703-603-8769; or the

RCRA/Superfund Hotline at 800-424-9346 (in the Washington, D.C.

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

Deaf (TDD) Hotline number is 800-553-7672 (in the Washington, D.C.

metropolitan area, 703-412-3323).

SUPPLEMENTARY INFORMATION: The contents of this preamble are as

follows:

I. Introduction

II. Request for Comment and Discussion of Proposed Revisions

III. Summary of Supporting Analyses

I. Introduction

A. Regulated Entities

Entities Potentially Regulated by this Proposal Include:

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Category NAICS codes

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Petroleum and Coal Products NAICS 324.

Manufacturing.

Petroleum Bulk Stations and Terminals.. NAICS 42271.

Crude Petroleum and Natural Gas NAICS 2111111.

Extraction.

Transportation (including Pipelines), NAICS 482-486/488112-48819/4883/

Warehousing, and Marinas. 48849/492-493/71393.

Electric Power Generation, NAICS 2211.

Transmission, and Distribution.

Other Manufacturing.................... NAICS 31-33.

Gasoline Stations/Automotive Rental and NAICS 4471/5321.

Leasing.

Heating Oil Dealers.................... NAICS 454311.

Coal Mining, Non-Metallic Mineral NAICS 2121/2123/213114/213116.

Mining and Quarrying.

Heavy Construction..................... NAICS 234.

Elementary and Secondary Schools, NAICS 6111-6113.

Colleges.

Hospitals/Nursing and Residential Care NAICS 622-623.

Facilities.

Crop and Animal Production............. NAICS 111-112.

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This table is not intended to be exhaustive, but rather provides a

guide for readers regarding entities likely to be regulated by this

action. It lists the types of entities of which EPA is now aware that

could potentially be regulated by this action. Other types of entities

not listed in the table could also be regulated. To determine whether

your facility could be regulated by this action, you should carefully

examine the criteria in Secs. 112.1 and 112.20 of title 40 of the Code

of Federal Regulations. If you have questions regarding the

applicability of this action to a particular entity, consult the person

listed in the FOR FURTHER INFORMATION CONTACT section.

B. Statutory Authority

Section 311(j)(1)(C) of the Clean Water Act (CWA or the Act)

requires the President to issue regulations establishing procedures,

methods, equipment, and other requirements to prevent discharges of oil

from vessels and facilities and to contain such discharges. 33 U.S.C.

1321(j)(1)(C). The President has delegated the authority to regulate

non-transportation-related onshore facilities under section

311(j)(1)(C) of the Act to the U.S. Environmental Protection Agency

(EPA or the Agency). Executive Order (E.O.) 12777, section 2(b)(1), 56

FR 54757 (October 22, 1991), superseding Executive Order 11735, 38 FR

21243. By this same E.O., the President has delegated similar authority

over transportation-related onshore facilities, deepwater ports, and

vessels to the U.S. Department of Transportation (DOT),

[[Page 63813]]

and authority over other offshore facilities, including associated

pipelines, to the U.S. Department of the Interior (DOI). A Memorandum

of Understanding (MOU) among EPA, DOI, and DOT effective February 3,

1994, has redelegated the responsibility to regulate certain offshore

facilities located in and along the Great Lakes, rivers, coastal

wetlands, and the Gulf Coast barrier islands from DOI to EPA. (E.O.

12777 Sec. 2(I) regarding authority to redelegate.) The MOU is included

as Appendix B to 40 CFR part 112. An MOU between the Secretary of

Transportation and the EPA Administrator, dated November 24, 1971 (36

FR 24080), established the definitions of non-transportation-related

facilities and transportation-related facilities. The definitions from

the 1971 MOU are included as Appendix A to 40 CFR part 112.

C. Background of this Rulemaking

Part 112 of 40 CFR outlines requirements for both prevention of and

response to oil spills. The prevention aspect of the rule requires

preparation and implementation of the Spill Prevention, Control, and

Countermeasure (SPCC) Plans. It was originally promulgated on December

11, 1973 (38 FR 34164), under the authority of section 311(j)(1)(C) of

the Act. The regulation established spill prevention procedures,

methods, and equipment requirements for non-transportation-related

onshore and offshore facilities with aboveground oil storage capacity

greater than 1,320 gallons (or greater than 660 gallons in a single

container), or buried underground oil storage capacity greater than

42,000 gallons. Regulated facilities are also limited to those that,

because of their location, could reasonably be expected to discharge

oil in harmful quantities into the navigable waters of the United

States or adjoining shorelines.

The SPCC requirements have been amended a number of times. On

August 29, 1974, the regulation was amended to set out the Agency's

policies on civil penalties for violation of section 311 requirements.

39 FR 31602. On March 26, 1976, the rule was again amended, primarily

to clarify the criteria for determining whether or not a facility is

subject to regulation. 41 FR 12567. Other revisions made in the March

26, 1976, rule clarified that the SPCC Plan must be in written form and

specified the procedures for development of SPCC Plans for mobile

facilities.

Implementation of the regulation since the 1976 revision indicated

the need for other changes, primarily to clarify and simplify the rule.

Therefore, on May 20, 1980, the Agency proposed further revisions to

the SPCC rule. 45 FR 33814. The 1980 proposal was never finalized

because the Agency believed these proposed changes needed additional

justification. However, continuing experience with administering the

program provided that justification and demonstrated a need for

clarifications to 40 CFR 112.7. Accordingly, on October 22, 1991, the

Agency proposed certain changes to 40 CFR 112.7 similar to those

proposed in 1980. 56 FR 54612.

The October 1991 proposed revisions involved changes in the

applicability of the regulation and the required procedures for the

completion of SPCC Plans, as well as the addition of a facility

notification provision. The proposed rule also reflected changes in the

jurisdiction of section 311 of the Act made by amendments to the Act in

1977 and 1978. To date, the proposal has not been finalized.

On November 4, 1992 (57 FR 52705), the Agency promulgated a

revision to the civil penalty provisions for violations occurring prior

to the enactment of the Oil Pollution Act of 1990 (OPA). On March 11,

1996, EPA rescinded that penalty provision because it no longer

accurately reflected the penalties provided for under section 311(b) of

the Act, as amended by OPA. 61 FR 9646.

On February 17, 1993, the Agency again proposed further

clarifications of and technical changes to the SPCC rule, and facility

response plan requirements to implement OPA. 58 FR 8824. The proposed

changes to the SPCC prevention requirements included clarifications of

certain requirements, contingency plans for facilities without

secondary containment, prevention training, and methods of determining

whether a tank would be subject to brittle fracture. The facility

response plan requirements of the 1993 proposal were promulgated on

July 1, 1994, (59 FR 47384) and codified at 40 CFR 112.20-21. To date,

the prevention requirements in the 1993 proposal have not been

finalized.

In 1996, EPA concluded a survey of SPCC facilities. EPA used the

results of that survey to help develop this proposed rule. The survey

results are part of the administrative record for this rulemaking.

The purpose of this proposal is to reduce the information

collection burden now imposed by the prevention requirements in the

SPCC rule and the response requirements in the FRP rule without

creating an adverse impact on public health or the environment. It

supplements the 1991 and 1993 proposals. The earlier proposals remain

pending, except for the withdrawal in this notice of the proposed 1991

definition of ``SPCC Plan.'' A revised definition of that term is being

reproposed today. EPA will, after considering public comments,

promulgate a rule finalizing this proposal. In that rule, EPA will also

finalize the 1991 and 1993 proposals. EPA is not seeking additional

comments on either the 1991 or 1993 proposals.

II. Request for Comment and Discussion of Proposed Revisions

A. Request for Comment

EPA proposes to reduce the information collection burden of the

SPCC rule through program changes. In connection with these proposed

changes, EPA requests public comment on new standards, technologies, or

approaches that have been developed since the enactment of OPA which

would reduce the burden of other SPCC rule requirements, without

compromising environmental protection. EPA requests comments on these

possible measures in order to discover additional ways to reduce the

information collection burden of the rule. Conversely, EPA also seeks

comments on measures not now required that would enhance the

environmental protection the SPCC rule provides. Both of these requests

for public comments are for the purpose of securing information to

develop possible future rules or policies, and are not for the purpose

of developing a final rule implementing this proposed rule. Lastly, for

purposes of developing a final rule, EPA is considering whether any

change is justified in the level of storage capacity which subjects a

facility to the requirement to prepare an SPCC Plan. Currently, a

facility with a total aboveground storage capacity of 1,320 gallons or

less of oil, but that has a single container with a capacity in excess

of 660 gallons of oil is subject to SPCC requirements. EPA is

considering eliminating the provision in the current rule that requires

a facility having a container with a storage capacity in excess of 660

gallons to prepare an SPCC Plan, as long as the total capacity of the

facility remained at 1,320 gallons or less. The effect of such a change

would be to raise the threshold for regulation to an aggregate

aboveground storage capacity greater than 1,320 gallons, thereby

eliminating the need for facilities with less than that capacity to

prepare an SPCC Plan. EPA invites public comment on this issue and

supporting data where available.

[[Page 63814]]

B. Proposed Program Revisions

Specific proposed revisions are discussed below.

40 CFR 112.2

On October 22, 1991, EPA proposed a definition for ``SPCC Plan or

Plan.'' 56 FR 54612, 54632. Today, EPA is withdrawing that proposal in

favor of a revised definition. The proposed rule would describe an SPCC

Plan, and would allow an Integrated Contingency Plan or a State plan

that meets all the requirements of part 112 to be counted as an SPCC

Plan, if it is sequentially cross-referenced from the requirement in

Sec. 112.7 to the page(s) of the equivalent requirement in the other

plan. The Regional Administrator may accept any other format if it: (1)

meets all regulatory requirements in the SPCC rule; and, (2) is

sequentially cross-referenced by SPCC rule provision to the page(s) of

the equivalent requirement in the other plan. The proposed change would

allow facilities new flexibility in formatting an SPCC Plan. A new

facility developing an SPCC Plan would have the opportunity to use the

most convenient acceptable format. Existing facilities could also elect

to use one of the proposed alternative formats. EPA contemplates that

at least two types of formats could be used in addition to the format

prescribed in Sec. 112.7, and would amend the rule to include those

formats as acceptable examples. The formats are discussed below.

Integrated Contingency Plans or ICPs. One format that would be

allowed is an Integrated Contingency Plan (ICP) prepared in accordance

with the notice published at 61 FR 28642, June 5, 1996. The intent of

the ICP is to provide a mechanism for consolidating multiple plans that

facilities may have prepared to comply with various regulations into

one functional emergency response plan.

The ICP was developed for facilities to integrate emergency

response plan requirements. EPA does not contemplate that the use of an

ICP or other format would reduce the information collection burden, but

it would simplify compliance with multiple applicable statutes and

rules.

State Plans and Requirements. Approximately 20 States have oil

spill prevention requirements pursuant to State law. Included in those

requirements is often the responsibility to prepare an SPCC-like plan.

The proposed rule would allow an owner or operator of a facility

flexibility to prepare a State SPCC-like plan in lieu of a Federal SPCC

Plan if the State plan meets all the regulatory requirements contained

in part 112. Like ICPs, State plans would also have to be cross-

referenced sequentially from the Federal SPCC requirement in part 112

to the plan page(s) containing the equivalent requirement. In cases

where an owner or operator of a facility chooses to prepare a State

plan containing only some of the elements required in the Federal plan,

the State plan would have to: (1) contain elements that are equal to or

more stringent than Federal SPCC requirements; (2) be sequentially

cross-referenced by SPCC rule provision to the page(s) of the

equivalent Plan provision; and, (3) be supplemented by elements that

meet the remainder of the EPA requirements contained in part 112.

40 CFR 112.4(a)

Section 112.4(a) requires that an owner or operator of a facility

subject to the SPCC rule provide certain information to EPA after a

discharge of 1,000 gallons of oil into or upon the navigable waters of

the United States or adjoining shorelines in a single event, or when

two reportable spills of any size occur within any twelve month period.

Reportable spills are defined at 40 CFR 110.3. 61 FR 7419, February 28,

1996. EPA proposes to reduce the information that an owner or operator

must report pursuant to Sec. 112.4(a). The Agency proposes to require

that the owner or operator would report: (1) the name of the facility;

(2) the name(s) of the owner or operator of the facility; (3) the

location of the facility; (4) a description of the facility, including

maps, flow diagrams, and topographical charts; (5) the cause of the

spill(s), including a failure analysis of system or subsystem in which

the failure occurred; (6) corrective actions and/or countermeasures

taken, including an adequate description of equipment repairs and/or

replacements; (7) additional preventive measures taken or contemplated

to minimize the possibility of recurrence; and, (8) such other

information as the Regional Administrator may reasonably require

pertinent to the Plan or spill event. EPA would eliminate from the rule

the need to always submit: (1) the date and year of initial facility

operation; (2) maximum storage or handling capacity of the facility and

normal daily throughput; and, (3) a complete copy of the SPCC Plan with

any amendments. EPA believes that the information that would be

eliminated from a post-spill report is not always necessary in order to

accurately assess the spill or to require appropriate corrective

action. The Regional Administrator would still retain discretion to

require information that is specified by the current rule in a post-

spill report, or any other information as he/she finds necessary. The

reporting requirements under 40 CFR part 110 would still apply to any

discharge of oil to navigable waters or adjoining shorelines that is

``harmful'' as specified in Sec. 110.3.

40 CFR 112.5(b)

An owner or operator of a facility subject to the SPCC regulations

must review and evaluate a facility's SPCC plan at least once every

three years from the date the facility becomes subject to 40 CFR part

112. EPA is proposing to extend the period in which an owner or

operator must conduct this review and evaluation from at least once

every three years to at least once every five years. EPA is proposing

this change because it believes that it would have the effect of

reducing the record keeping burden, thus saving time and money for

facilities, while causing no harm to the environment. A facility owner

or operator would still have to amend an SPCC Plan whenever there is a

change in facility design, construction, operation, or maintenance

which materially affects the facility's potential for discharge of oil

into or upon the navigable waters of the United States or adjoining

shorelines. 40 CFR 112.5(a). Therefore, absent such changes, an SPCC

plan should continue to provide adequate protection against discharges

for a five year period.

In its 1991 proposal to amend the SPCC rule, EPA solicited comments

on whether owners or operators of facilities should have to affix a

signed and dated statement to the SPCC Plan indicating that the

triennial review has taken place and whether or not amendment of the

Plan is required. EPA did not at that time propose a rule change. 56 FR

54612, 54616, 54629, October 22, 1991. Today, EPA is implementing that

request for comments with a proposed rule change that would provide

that an owner or operator must certify completion of the review and

evaluation. An owner or operator, for purposes of this certification,

includes any person with authority to fully implement the Plan, e.g., a

facility manager. The certification would entail little additional

information collection burden as it would merely note completion of the

review and evaluation process at least once every five years. See 5 CFR

1320.7(j)(1). It would be maintained with the Plan at the facility, and

would provide EPA with written proof that the owner or operator has

complied with the rule.

[[Page 63815]]

40 CFR 112.7 Introduction

EPA is proposing to amend the introduction to Sec. 112.7 so that

its language conforms to the newly proposed definition of an SPCC Plan

in Sec. 112.2. See the above discussion. The change to the introduction

would merely track language in proposed Sec. 112.2 to allow facilities

flexibility to use certain alternative formats in lieu of the format

prescribed in the SPCC rule, such as the ICP format, certain State

formats, or other formats acceptable to the Regional Administrator.

40 CFR 112.7(e)(2)(iii)(D)

EPA is proposing to amend Sec. 112.7(e)(2)(iii)(D), which applies

to bulk storage tanks (onshore), excluding production facilities.

Section 112.7(e)(2)(iii) authorizes the drainage of rainwater from the

diked area into a storm drain or an effluent discharge that empties

into an open water course, lake, or pond, and bypasses the in-plant

treatment system if four conditions are met. 40 CFR

112.7(e)(2)(iii)(A)-(D). The change would allow the use of records

recording stormwater bypass events which are required to be kept under

a National Pollutant Discharge Elimination System (NPDES) permit. In

the NPDES regulations, ``bypass'' is defined to mean the ``intentional

diversion of waste streams from any portion of a treatment facility.''

40 CFR 122.41(m)(1)(I).

The NPDES regulations set forth conditions that all NPDES permits

must contain. 40 CFR 122.21. One of these NPDES ``standard conditions''

allows for excusable bypasses under certain conditions. 40 CFR

122.41(m)(2), (3), and (4). One of the conditions is that the permittee

must provide notice of the bypass event. 40 CFR 122.41(m)(3). Under 40

CFR 122.41(j)(2), the permittee must maintain records of all such

bypass events for at least three years from the date of the report.

These permit conditions for notification and record keeping serve the

same objective as the SPCC rule requirement in

Sec. 112.7(e)(2)(iii)(D), and the documentation is therefore acceptable

to satisfy the SPCC requirement. Furthermore, the proposed change would

reduce the information collection burden imposed by the SPCC rule.

Owners or operators would no longer be required to maintain duplicate

records of the same event pursuant to different regulatory programs.

This proposed change would also affect the information collection

burden imposed by Sec. 112.7(e)(5)(ii)(A). This section requires

inspection of diked areas in onshore oil production facilities prior to

drainage as provided in Sec. 112.7(e)(2)(iii)(B), (C), and (D). By the

cross reference to the record keeping requirements in

Sec. 112.7(e)(2)(iii)(D), the requirement to maintain adequate records

of such events is included. Therefore, when those records of bypass

event notification are maintained at onshore oil production facilities

pursuant to NPDES permitting conditions as discussed above, duplicative

record keeping under part 112 would be unnecessary.

40 CFR 112.7(e)(2)(vi)

Section 112.7(e)(2)(vi) requires periodic integrity testing of

aboveground tanks, taking into account tank design (floating roof,

etc.), and using such techniques as hydrostatic testing, visual

inspection, or a system of non-destructive shell thickness testing. It

further requires maintenance of comparison records when appropriate.

Tank supports and foundations should be included in these inspections.

In addition, the rule requires that the outside of the tank should be

frequently observed by operating personnel for signs of deterioration,

leaks which might cause a spill, or accumulation of oil inside diked

areas.

EPA proposes to amend Sec. 112.7(e)(2)(vi) to provide that usual

and customary business records would suffice to meet the record keeping

requirements of the section. Among such usual and customary business

records are those maintained pursuant to API Standards 653 and 2610.

API Standard 653 concerns tank inspection, repair, alteration, and

reconstruction. It is considered the predominant standard for

aboveground tank inspection and its provisions are based on tank design

principles found in API Standards 620 and 650. API Standard 653 calls

for owners or operators of tanks and associated systems to maintain a

complete record file consisting of construction, repair/alteration

history, and inspection history records. Construction records include

nameplate information, drawings, specifications, construction complete

reports, and any results of material tests and analyses. Repair/

alteration history includes all data accumulated on a tank from the

time of its construction with regard to repairs, alterations,

replacements, and service changes. Inspection history includes all

measurements taken, the condition of all parts inspected, and a record

of all examinations and tests.

API Standard 2610 concerns design, construction, operation,

maintenance, and inspection of terminal and tank facilities. It

incorporates the requirements of many different standards for tanks

into one document. The Standard recommends that records should be kept

of the activities conducted pursuant to the Standard. It recommends

that periodic inspection and preventive maintenance should be conducted

on all transfer systems to control leaks. Accurate inventory records

may be maintained and periodically reconciled for indication of

possible leakage from tanks and piping systems. It further calls on the

operator to keep complete maintenance records for all equipment within

a terminal.

40 CFR 112.7(e)(8)

EPA proposes to amend Sec. 112.7(e)(8) to provide that usual and

customary business records, such as records maintained pursuant to API

Standards 653 and 2610, would suffice to meet the requirements of the

section. The revision would have the effect of reducing the information

collection burden of the SPCC rule. See the discussion concerning usual

and customary business practices above.

The section requires that inspections required by part 112 be in

accordance with written procedures developed for the facility by the

owner or operator. These written procedures and a record of

inspections, signed by the appropriate supervisor or inspector, must be

made a part of the SPCC Plan and maintained for a period of three

years.

40 CFR 112.20(f)(4)

The owner or operator of any non-transportation-related onshore

facility that, because of its location could be expected to cause

substantial harm to the environment by discharging oil in harmful

quantities into or on the navigable waters of the United States or

adjoining shorelines, is required to prepare and submit a facility

response plan to EPA. To determine whether a facility could cause

substantial harm, an owner or operator of a facility must review the

criteria listed in Appendix C of the rule and base his/her

determination on those criteria. A facility that transfers oil over

water to or from vessels and that has a total oil capacity greater than

or equal to 42,000 gallons would meet the substantial harm criteria and

be required to prepare and submit a response plan as required by

Sec. 112.20 to the appropriate Regional Administrator. Any other

facility with a capacity of one million gallons or more would evaluate

the criteria in 40 CFR 112.20(f)(1)(ii)(A)-(D) and work through the

flowchart in Appendix C to determine whether it is a substantial harm

facility.

[[Page 63816]]

EPA proposes to add a new paragraph to Sec. 112.20(f) to provide a

method to calculate the oil storage capacity of aboveground tanks

containing a mixture of process water/waste water with 10% or less of

oil. EPA is proposing this change because it believes that the harm due

to spills from tanks that contain 90% or more of process water/waste

water is roughly proportional to their oil content. Discharges from

tanks containing process water/waste water and 10% or less oil will

cause less harm to the environment than tanks containing a greater

proportion of oil. Facilities that are required to prepare and submit

facility response plans must do so because of the substantial harm that

discharges of oil from those facilities might cause. That substantial

harm is predicated, at least in part, on a storage capacity

determination. If there is a smaller percentage of oil in a tank, there

will be less likelihood of great harm. Therefore, EPA believes that the

entire capacity of process water/waste water tanks with 10% or less of

oil should not be counted in the capacity necessary to subject a

facility to the requirement to prepare a facility response plan. Only

the oil portion of the storage capacity in process water/waste water of

10% or less oil would be counted. EPA believes that an oil threshold

capacity to determine substantial harm calculations of 10% or less in

tanks containing process water/waste water is a reasonable one. It is

reasonable because it exempts lower risk facilities, from which

discharges would not reach substantial harm levels, from having to

prepare facility response plans.

The proposed rule change, however, would have no effect on the

calculations necessary to determine whether to prepare an SPCC Plan.

Calculation of capacity under the SPCC rule of tanks containing

mixtures of process water/waste water and oil would continue to be done

as it is now. No change is necessary in SPCC capacity calculations

because SPCC Plans are designed for prevention purposes, not response.

While harm might result from discharges from these SPCC facilities, it

would not reach the substantial harm level. Finally, this proposed

change would not apply to the oil capacity determination for

substantial harm saline process water/waste water from oil drilling,

production, or workover facilities because discharges from such

facilities have a greater likelihood of causing environmental damage

than facilities that do not handle saline water.

Pursuant to the proposed rule, a facility owner or operator would

determine the percentage of oil in the process or waste water in a

tank. If the percentage of oil varies over a period of time, the owner

or operator would use the highest percentage of oil for purposes of the

capacity calculation. If the capacity of oil is 10% or less, the owner

or operator would multiply the percentage of oil by the capacity of the

tank or container. If appropriate, the owner or operator would then add

the volume of oil calculated to the total capacity of any other oil

storage tank or container with 100% oil or mixtures of oil and process

or waste water above the 10% amount to determine its total capacity for

the substantial harm determination of Sec. 112.20(f).

40 CFR 112.20(h)

EPA proposes to amend Sec. 112.20(h) to clarify that an Integrated

Contingency Plan (ICP) prepared in accordance with the notice published

at 61 FR 28642, June 5, 1996 is an acceptable format for a facility

response plan. The ICP was developed for facilities to integrate

emergency response plan requirements. The intent of the ICP is to

provide a mechanism for consolidating multiple plans that facilities

may have prepared to comply with various regulations into one

functional emergency response plan. Like the proposed requirements for

SPCC Plans, the FRP rule already provides for cross-referencing.

Similarly, an owner or operator who uses the ICP format must meet all

of the regulatory requirements of the FRP rule for that format to be an

acceptable substitute for the present FRP format.

EPA does not contemplate that the use of an ICP or other format

would reduce the information collection burden of the FRP rule, but it

would simplify compliance with multiple applicable statutes and rules.

Appendix C

EPA also proposes to amend Appendix C to this part to reflect

changes proposed in Sec. 112.20(f)(4). EPA also proposes to amend

section 2.1 of Appendix C to state the correct capacity that subjects a

facility to FRP requirements if it transfers oil over water to or from

a vessel. That capacity in section 2.1 of Appendix C should read

``greater than or equal to 42,000 gallons * * *'' as specified in

Sec. 112.20(f)(1)(I).

III. Summary of Supporting Analyses

A. Executive Order 12866

Under E.O. 12866 (58 FR 51735, October 4, 1993), the Agency must

determine whether the regulatory action is ``significant'' and

therefore subject to Office of Management and Budget (OMB) review and

the requirements of the E.O. The E.O. defines ``significant regulatory

action'' as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

E.O. 12866.

Pursuant to the terms of E.O. 12866, it has been determined that

this proposed rule is a ``significant regulatory action'' because it

raises novel legal or policy issues. Such issues include proposed

measures which would relieve some facilities of regulatory mandates and

could change the manner in which facilities comply with remaining

mandates. Therefore, this action was submitted to OMB for review.

Changes made in responses to the OMB suggestions or recommendations

will be documented in the public record.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980, as amended by the Small

Business Regulatory Enforcement Fairness Act of 1996, requires that a

Regulatory Flexibility Analysis be performed for all rules that are

likely to have a significant adverse impact on a substantial number of

small entities. EPA has determined that this proposed rule would not

have a significant adverse impact on a substantial number of small

entities because it would impose few if any new burdens, and overall

would substantially reduce existing burdens on small businesses.

Therefore, I certify that this proposed rule is not expected to have a

significant adverse impact on a substantial number of small entities.

Thus, no Regulatory Flexibility Analysis is necessary.

C. Paperwork Reduction Act

The information collection requirements in this proposed rule will

be submitted for approval to OMB as required by the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. Information Collection Request (ICR)

documents

[[Page 63817]]

have been prepared by EPA (EPA ICR no. EPA 0328.06 and 1630.04) and

copies may be obtained from Sandy Farmer, OPPE Regulatory Information

Division; U.S. Environmental Protection Agency (2137); 401 M St., S.W.;

Washington, D.C. 20460 or by calling 202-260-2740. These ICRs are also

available for viewing or downloading at EPA's ICR Internet site at

http://www.epa.gov/icr.

EPA does not collect the information required by the Oil Pollution

Prevention regulation (i.e., the SPCC Plan) on a routine basis. SPCC

Plans ordinarily need not be submitted to EPA, but must be maintained

at the facility. Preparation, implementation, and maintenance of an

SPCC Plan by the facility helps prevent oil discharges, and mitigates

the environmental damage caused by such discharges. Therefore, the

primary user of the data is the facility.

Although the facility is the primary data user, EPA also uses the

data in certain situations. EPA primarily uses SPCC Plan data to ensure

that facilities comply with the regulation. This includes design and

operation specifications, and inspection requirements. EPA reviews SPCC

Plans: (1) When facilities submit the Plans because of certain oil

discharges, and (2) as part of EPA's inspection program. Note however,

that the proposed rule would eliminate the necessity to submit the

entire Plan after certain discharges, and merely retain the requirement

that it be maintained at the facility. State and local governments also

use the data, which are not necessarily available elsewhere and can

greatly assist local emergency preparedness planning efforts.

Preparation of the information for affected facilities is required

pursuant to section 311(j)(1) of the Act as implemented by 40 CFR part

112.

Through this rulemaking, EPA proposes to reduce the reporting and

record keeping burden for facilities regulated under the SPCC

regulation by: (1) expanding the format of an acceptable SPCC plan to

include plans prepared to meet State or other Federal standards (i.e.,

State plans, Integrated Contingency Plans, etc.); (2) extending the

period of time that a facility must review its Plan from at least once

every three years to at least once every five years; and (3) reducing

the reporting requirements in the event of certain reportable oil

spills and the record keeping requirements relating to certain

discharges of rainwater from a diked area. In addition to the program

changes outlined above, EPA is also proposing to decrease the

information collection burden calculated for the SPCC rule so that the

information collection burden incurred by persons in the normal course

of their business activities would no longer be attributed to the part

112 burden.

To quantify the effect of these proposed changes on reducing burden

to the regulated community, EPA relied, in part, on data gathered

through the 1995 SPCC survey. EPA developed a series of analyses using

the survey data including the paper EPA produced in 1996 entitled

``Effectiveness of EPA's SPCC Program on Spill Risk.'' The results of

the analysis show that compliance with several specific SPCC provisions

appears to reduce both the number and the amount of oil that migrates

outside of a facility's boundaries. Facility practices such as tank

leak detection, spill overfill protection, pipe external protection,

and secondary containment, also appear to reduce the number and

magnitude of oil spills. The results also indicate that a facility's

compliance with even one SPCC measure may serve as a general indicator

of a facility owner's/operator's awareness of the importance of other

spill prevention and control measures.

The net annual public reporting and record keeping burden for this

collection of information, as proposed, for newly regulated facilities

is estimated to range from 37.1 to 53.5 hours, with an average burden

of 39.2 hours, including time for reviewing instructions and gathering

the data needed. The net annual public reporting and record keeping

burden for facilities already regulated by the Oil Pollution Prevention

regulation is estimated to range from 3.7 to 9.5 hours, with an average

burden of 4.0 hours. These average annual burden estimates take into

account the varied frequencies of response for individual facilities

according to characteristics specific to those facilities, including

frequency of oil discharges and facility modification. Under the

proposed rule, an estimated 446,498 existing and newly regulated

facilities are subject to the information collection requirements of

this proposed rule during the first year of the information collection

period. The net annualized capital and start-up costs average $0.3

million, and net annualized labor and operation and maintenance costs

are $49.8 million.

The present information collection burden of the SPCC rule averages

2,557,194 hours per year for the information collection period. Through

this rulemaking EPA proposes to reduce that burden by approximately

864,471 hours. This proposed reduction would result in an average

annual burden of 1,692,723 hours.

In addition to the modifications the Agency is proposing to make to

the SPCC rule, the Agency is also proposing to modify the information

collection requirements of the Facility Response Plan (FRP) regulation

as part of this rulemaking effort. The FRP rule (40 CFR 112.20-112.21)

requires that owners and operators of facilities that could cause

``substantial harm'' to the environment by discharging oil into

navigable waters or adjoining shorelines prepare plans for responding,

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

substantial threat of such a discharge, and, as appropriate, to

discharges smaller than worst case discharges. Each FRP is submitted to

the Agency, which in turn, reviews and approves plans from facilities

identified as having the potential to cause ``significant and

substantial harm'' to the environment from oil discharges. Other low-

risk, regulated facilities are not required to prepare FRPs but are

required to document their determination that they do not meet the

``substantial harm'' criteria.

Through this rulemaking, EPA proposes to reduce the reporting and

record keeping burden for facilities regulated under the FRP rule by

adding a paragraph to Sec. 112.20(f) to provide a method to calculate

the oil storage capacity of aboveground tanks containing a mixture of

process water/waste water with 10 percent or less of oil. EPA also

proposes to amend Sec. 112.20(h) to clarify that an Integrated

Contingency Plan prepared in accordance with the notice published at 61

FR 28642, June 5, 1996, is an acceptable format for an FRP; and to

amend section 2.1 of Appendix C to state the correct capacity that

subjects a facility to FRP requirements if it transfers oil over water

or to or from a vessel.

The Agency anticipates that only the first proposed change will

have an appreciable impact on the burden to the regulated community.

The Agency expects that the number of facilities subject to the

requirements to develop an FRP and maintain the plan on a year-to-year

basis will slightly decrease as a result of the proposed process water/

waste water calculation. In the current ICR, EPA estimated that 5,400

facilities would be required to develop and submit FRPs and 4,482 of

these facilities were large facilities (i.e., facilities with storage

capacity greater than one million gallons). Of these 4,482 facilities,

EPA estimated that approximately 250 facilities in the industrial

manufacturing category would be excluded from the FRP requirements as a

result of the proposal. Although these facilities have

[[Page 63818]]

already incurred costs to develop an FRP, the facilities would no

longer incur costs associated with maintaining the Plan or retaining

outside response contractors in the event of an oil spill. The Agency

has previously estimated that it requires approximately 118 hours for

facility personnel in a large, consumption facility to comply with the

annual, subsequent-year reporting and record keeping requirements of

the FRP rule after adjusting for compliance with other Federal and

State regulations. The present information collection burden of the FRP

rule averages 376,599 hours a year. Through this rulemaking EPA

proposes to reduce that burden by approximately 24,190 hours. This

proposed reduction would result in an annual average burden of 352,409

hours.

Burden means the total time, effort, or financial resources

expended by persons to generate, maintain, retain, or disclose or

provide information to or for a Federal agency. This includes the time

needed to review instructions; develop, acquire, install, and utilize

technology and systems for the purposes of collecting, validating, and

verifying information, processing and maintaining information, and

disclosing and providing information; adjust the existing ways to

comply with any previously applicable instructions and requirements;

train personnel to be able to respond to a collection of information;

search data sources; complete and review the collection of information;

and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required

to respond to a collection of information unless it displays a

currently valid OMB control number. The OMB control numbers for EPA's

regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

Comments are requested on the Agency's need for this information,

the accuracy of the provided burden estimates and the supporting

analyses used to develop burden estimates, and any suggested methods

for further minimizing respondent burden, including the use of

automated collection techniques. Send comments on the Information

Collection Request to the Director, OPPE Regulatory Information

Division; U.S. Environmental Protection Agency (2136); 401 M St., S.W.;

Washington, D.C. 20460 or E-mail [email protected]; and to

the Office of Information and Regulatory Affairs, Office of Management

and Budget, 725 17th St., N.W., Washington, D.C. 20503, marked

``Attention: Desk Officer for EPA.'' Include the ICR number in any

correspondence. Since OMB is required to make a decision concerning the

ICR between 30 and 60 days after December 2, 1997, a comment to OMB is

best assured of having its full effect if OMB receives it by January 2,

1998. The final rule will respond to any OMB or public comments on the

information collection requirements contained in this proposal.

D. Differentiation Between Classes of Oils

Pursuant to Public Law 104-55, 33 U.S.C. 2720, enacted November 20,

1995, most Federal agencies (including EPA) must, in the issuance or

enforcement of any regulation or the establishment of any

interpretation or guideline relating to the transportation, storage,

discharge, release, emission, or disposal of a fat, oil, or grease,

consider differentiating between and establishing separate classes for

animal fats and oils and greases, fish and marine mammal oils, and oils

of vegetable origin (as opposed to petroleum and other oils and

greases). EPA has considered whether differentiation between and

establishment of separate classes of oils is appropriate for this

proposed rule and concluded that it is not. This conclusion is based on

the fact that the EPA proposal would reduce the information collection

burden for all classes of facilities. Achievement of that goal does not

require differentiation among classes of oils.

E. Unfunded Mandates

Pursuant to section 202 of the Unfunded Mandates Reform Act (the

Act) of 1995, enacted March 22,1995, Federal agencies must prepare a

statement to accompany any rule in which the estimated costs of State,

local, or tribal governments in the aggregate, or to the private

sector, will be $100 million or more in any one year. Section 205 of

the Act requires agencies to select the most cost-effective and least-

burdensome alternative that achieves the objective of the rule and that

is consistent with statutory requirements. Section 203 of the Act

requires an agency to establish a plan for informing and advising any

small government that may be significantly impacted by the rule. Small

governments would not be significantly impacted by this proposed rule,

therefore, it is not necessary to establish a plan pursuant to section

203. In fact, the proposed rule would reduce the information collection

burden on small governments that have facilities which are subject to

the SPCC rule.

EPA has determined that this proposed rule does not include a

Federal mandate that would result in estimated costs of $100 million or

more either to State, local, or tribal governments in the aggregate, or

to the private sector in any one year. This determination is based on

the fact that the proposed rule would impose no new mandates, and would

reduce costs to the private sector, while imposing no new costs on

State, local, or tribal governments. Thus today's proposal is not

subject to the requirements of sections 202 and 205 of the Act.

F. National Technology Transfer and Advancement Act

Under Sec. 12(d) of the National Technology Transfer and

Advancement Act, the Agency is required to use voluntary consensus

standards in its regulatory and procurement activities unless to do so

would be inconsistent with applicable law or otherwise impractical.

Voluntary consensus standards are technical standards (e.g., materials

specifications, test methods, sampling procedures, business practices,

etc.) which are developed or adopted by voluntary consensus standard

bodies. In those cases where the Act applies and where available and

potentially applicable voluntary consensus standards are not used by

EPA, the Act requires the Agency to provide Congress, through the

Office of Management and Budget, an explanation of the reasons for not

using such standards.

Without necessarily deciding whether the Act applies here, EPA

invites comment on the potential use of voluntary consensus standards

in this rulemaking. In particular, as noted above, EPA proposes to

amend 40 CFR 112.7(e)(2)(vi) and (e)(8) to provide that the records

maintained pursuant to usual and customary business practices would

suffice to meet the recordkeeping requirements of the sections. While

not specifically referenced in the proposed regulation, usual and

customary business records would include those maintained pursuant to

American Petroleum Institute (API) Standards 653 and 2610. The Agency

proposes this flexible approach to be consistent with the goal of

reducing the recordkeeping requirements of this regulation. EPA invites

public comment on the Agency's proposal as well as identification and

information about other standards, and in particular, voluntary

consensus standards, which the Agency should consider.

List of Subjects in 40 CFR Part 112

Environmental protection, Fire prevention, Flammable materials,

Materials handling and storage, Oil pollution, Oil spill prevention,

Oil spill response, Petroleum, Reporting and

[[Page 63819]]

record keeping requirements, Tanks, Water pollution control, Water

resources.

Dated: November 24, 1997.

Carol Browner,

Administrator.

For the reasons set out in the preamble, 40 CFR part 112 is

proposed to be amended as follows:

PART 112--OIL POLLUTION PREVENTION

1. The authority citation for part 112 continues to read as

follows:

Authority: 33 U.S.C 1321 and 1361; E.O. 12777 (October 18,

1991), 3 CFR, 1991 Comp., p. 351.

2. Section 112.2 is amended by adding the definition ``Spill

Prevention, Control, and Countermeasure Plan; SPCC Plan; or Plan'' in

alphabetical order to read as follows:

Sec. 112.2 Definitions.

* * * * *

Spill Prevention, Control, and Countermeasure Plan; SPCC Plan; or

Plan means the document required by Sec. 112.3 that details the

equipment, manpower, procedures, and steps to prevent, control, and

provide adequate countermeasures to an oil spill. The Plan is a written

description of the facility's compliance with the procedures in this

part. It is prepared in writing and in accordance with the format

specified in Sec. 112.7, or in the format of a plan prepared pursuant

to State law, or in another format acceptable to the Regional

Administrator. If an owner or operator of a facility chooses to prepare

a plan using either the Integrated Contingency Plan format or a State

format or any other format acceptable to the Regional Administrator,

such plan must meet all of the requirements in Sec. 112.7, and be

sequentially cross-referenced from the requirement in Sec. 112.7 to the

page(s) of the equivalent requirement in the other plan.

* * * * *

3. Section 112.4 is amended by revising paragraphs (a)(1) through

(a)(8) to read as follows:

Sec. 112.4 Amendment of SPCC Plans by Regional Administrator.

(a) * * *

(1) Name of the facility;

(2) Name(s) of the owner or operator of the facility;

(3) Location of the facility;

(4) Corrective action and/or countermeasures taken, including an

adequate description of equipment repairs and/or replacements;

(5) Description of the facility, including maps, flow diagrams, and

topographical maps;

(6) The cause(s) of such spill(s), including a failure analysis of

system or subsystem in which the failure occurred;

(7) Additional preventive measures taken or contemplated to

minimize the possibility of recurrence; and

(8) Such other information as the Regional Administrator may

reasonably require pertinent to the Plan or spill event.

* * * * *

4. Section 112.5 is amended by revising the first sentence of

paragraph (b) to read as follows:

Sec. 112.5 Amendment of Spill Prevention Control and Countermeasure

Plans by owners or operators.

* * * * *

(b) Notwithstanding compliance with paragraph (a) of this section,

owners and operators of facilities subject to Sec. 112.3(a), (b), or

(c) shall certify completion of a review and evaluation of the SPCC

Plan at least once every five years from the date such facility becomes

subject to this part. * * *

* * * * *

5. Section 112.7 is amended by revising the last sentence of the

introductory text; and by revising paragraph (e)(2)(iii)(D), and the

last sentence of paragraphs (e)(2)(vi), and (e)(8) to read as follows:

Sec. 112.7 Guidelines for the preparation and implementation of a

Spill Prevention Control and Countermeasure Plan.

* * * The complete SPCC Plan shall follow the sequence outlined below,

unless it is in another format acceptable to the Regional

Administrator, such as one described in Sec. 112.2, and include a

discussion of the facility's conformance with the appropriate

guidelines listed:

* * * * *

(e) * * *

(2) * * *

(iii) * * *

(D) Adequate records are kept of such events, such as records

required pursuant to permits issued in accordance with

Secs. 122.41(j)(2) and 122.41(m)(3) of this chapter.

* * * * *

(vi) * * * Records of inspections maintained pursuant to usual and

customary business practices will suffice for purposes of this

paragraph.

* * * * *

(8) * * * Records of inspections maintained pursuant to usual and

customary business practices will suffice for purposes of this

paragraph.

* * * * *

6. Section 112.20 is amended by adding paragraph (f)(4) and by

revising the first sentence of paragraph (h) to read as follows:

Sec. 112.20 Facility response plans.

* * * * *

(f) * * *

(4) To determine the capacity of a facility storing process water/

waste water with oil concentrations of 10% or less, for purposes of

paragraphs (f)(1)(i) and (ii) of this section (except for saline

process water/waste water from an oil drilling, production, or workover

facility), the following calculations shall be used:

(i) Determine the percentage of oil in the process water/waste

water of a tank or container. If the percentage of oil varies over a

period of time, the highest percentage shall be used;

(ii) If the percentage of oil is 10% or less, multiply the

percentage of oil by the capacity of the tank or container;

(iii) If appropriate, add the amount calculated in paragraphs

(f)(4)(i) and (4)(ii) of this section to the total capacity of any

other oil tank or storage container containing 100% oil or mixtures of

oil and process water/waste water above 10%;

(iv)(A) A facility that transfers oil over water to or from vessels

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

gallons will be considered a facility that could cause substantial harm

to the environment by discharging oil to the navigable waters or

adjoining shorelines.

(B) A facility with a capacity of 1 million gallons or greater

shall continue through the criteria in appendix C of this part to

determine whether the facility could cause substantial harm to the

environment by discharging oil to the navigable waters or adjoining

shorelines.; and

(v) A facility that has completed the calculations required by this

paragraph and does not meet the substantial harm threshold will not

have to prepare and submit a response plan unless directed to do so by

the Regional Administrator.

* * * * *

(h) A response plan shall follow the format of the model facility-

specific response plan included in Appendix F to this part, unless an

equivalent response plan has been prepared to meet State or other

Federal requirements. * * *

* * * * *

7. Appendix C to part 112 is amended by revising section 2.0 and

the first sentence of section 2.1 to read as follows:

[[Page 63820]]

Appendix C to Part 112--Substantial Harm Criteria

* * * * *

2.0 Description of Screening Criteria for the Substantial Harm

Flowchart

A facility that has the potential to cause substantial harm to

the environment in the event of a discharge must prepare and submit

a facility-specific response plan to EPA in accordance with appendix

F to this part. To determine the capacity of a facility storing

process water/waste water with oil concentrations of 10% or less

(except for saline process water/waste water from an oil drilling,

production, or workover facility), the respondent shall use the

method prescribed in Sec. 112.20(f)(4). A description of the

screening criteria for the substantial harm flowchart is provided

below:

2.1 Non-Transportation-Related Facilities With a Total Oil Storage

Capacity Greater Than or Equal to 42,000 Gallons Where Operations

Include Over-Water Transfers of Oil.

A non-transportation-related facility with a total oil storage

capacity greater than or equal to 42,000 gallons that transfers oil

over water to or from vessels must submit a response plan to EPA. *

* *

* * * * *

[FR Doc. 97-31574 Filed 12-1-97; 8:45 am]

BILLING CODE 6560-50-P