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FACILITY RESPONSE PLAINS
'«UM \TION GUIDE
OCTOBER 1995
United States Environmental Protection Agency
Region III
Removal Enforcement and Oil Section
841 Chestnut Building
Philadelphia, PA 19107
EPA Report Collection \
Regional Center for Environmental Information
U.S. EPA Region HI
Philadelphia, PA 19103
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Regional Center for Environmental Information
US EPA Region III
1650 Arch St.
Philadelphia, PA 19103
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MANUAL ORGANIZATION
SECTION 1:
SECTION 2:
SECTION 3:
SECTION 4:
SECTION 5:
SECTION 6:
SECTION 7:
SECTION 8:
FRP OUTREACH CONTACT NUMBERS
MOST COMMLY USED CWA-OPA-ACRONYMS
FACT SHEET: OPA Q's & A's
FACT SHEET: FACILITY RESPONSE PLANS (FRP's)
FRP DEFINITIONS
FINAL RULE MAKING for 40 C.F.R. PARTS 9 AND 112
dated JULY 1, 1994
FRP COURSE SLIDES
40 C.F.R. PART 112.20
CERTIFICATION OF SUB HARM FORM
SUB HARM FLOW CHART
APPENDIX "F"
U.S. EPA Region HI
Regional Center for Environmental
Information
1650 Arch Street (3PM52)
Philadelphia, PA 19103
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SECTION 1
* SPCC/FRP OUTREACH CONTACT NUMBERS
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SPCC/FRP OUTREACH:
SPILL PREVENTION CONTROL AND COUNTERMEASURE
FACILITY RESPONSE PLAN
WHO CAN YOU CALL?
FRP Infoline 215-597-9562
SPCC/OPA Hotline 202-260-2342
National Response Center 800-424-8802
Region III Oil Personnel, Their Title and Phone Extension:
Karen Melvin, Chief, Removal Enforcement and Oil Section 597-8751
Linda Ziegler, Oil Program/FRP Coordinator-597-1395
Regina Starkey, Oil/SPCC Enforcement Coordinator--597-1395
Robert Sanchez, Oil Inspector--215-597-1357
Michael Welsh, P.E., Oil Inspector-215-597-3152
Paula Curtin, Oil/SPCC Enforcement Specialist--304-234-0256
Bernie Stepanski, Investigator--597-3184
Frank Cosgrove, SPCC Oil Inspector~597-1357
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SECTION 2
MOST COMMONLY USED
CWA-OPA-SPCC ACRONYMS
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COMMONLY USED CWA-OPA-SPCC ACRONYMS
ACP
AST
CERCLA
CWA
DOJ
DOT
EPA
ERNS
FRP
MOU
NCP
NPDES
NRC
NRT
OPA
PE
RA
RCP
RCRA
RQ
SIC
SPCC
USCG
UST
WHPA
Area Contingency Plan
Aboveground Storage Tank
Comprehensive Environmental Response,
Compensation, & Liability Act of 1980
Clean Water Act
Department of Justice
Department of Transportation
United States Environmental Protection Agency
Emergency Response Notification System
Facility Response Plan
Memorandum of Understanding
National Contingency Plan
National Pollutant Discharge Elimination System
National Response Center
National Response Team
Oil Pollution Act of 1990
Professional Engineer
Regional Administrator
Regional Contingency Plan
Resource Conservation & Recovery Act
Reportable Quantity
Standard Industrial Classification (Code)
Spill Prevention Control and Countermeasure (Plan)
United States Coast Guard
Underground Storage Tank
Wellhead Protection Area
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SECTION 3
* FACT SHEET: OPA Q's & A's
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vvEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9360.8-01FS
December 1991
OPA Q's & A's:
Overview of the Oil Pollution
Act of 1990
Office of Emergency and Remedial Response
Emergency Response Division OS-210
Quick Reference Fact Sheet
Thousands of oil spills occur in the United States each year. Over the three-year period from 1988 through 1990, the
Federal government received 42,000 notifications of oil discharges -- an average of 15,000 per year, or about 40 notifications
per day. In 1990 alone, there were 24 oil spills that exceeded 100,000 gallons, five of which were greater than 1 million
gallons. In 1989. 38 oil spills exceeded 100,000 gallons, including the devastating Exxon Valdez spill in Alaska's Prince
William Sound. In response to the new public awareness of the damaging effects of major oil spills. Congress unanimously
enacted tougher oil spill legislation and, on August 18, 1990, the President signed into law the Oil Pollution Act of 1990
(OPA or the Act).
On October 18, 1991, the President issued Executive Order 12777, delegating the authority for implementing provisions
of the OPA to several Federal agencies and departments, including the U.S. Environmental Protection Agency (EPA) and
the U.S. Coast Guard (USCG). These "OPA Q's & A's" are part of a series of fact sheets that provide up-to-date
information on EPA's implementation of the OPA. This first fact sheet provides an overview of the various provisions of
the OPA and the Agency's responsibilities under the new law.
General Overview
Q1. What is the OPA?
A. The OPA (Pub. L. 101-380) is a comprehensive
statute designed to expand oil spill prevention, pre-
paredness, and response capabilities of the Federal
government and industry. The Act establishes a new
liability and compensation regime for oil pollution
incidents in the aquatic environment and provides
the resources necessary for the removal of discharged
oil. The OPA consolidates several existing oil spill
response funds into the Oil Spill Liability Trust
Fund, resulting in a $1-billion fund to be used to
respond to, and provide compensation for damages
caused by, discharges of oil. In addition, the OPA
provides new requirements for contingency planning
both by government and industry and establishes new
construction, manning, and licensing requirements
for tank vessels. The OPA also increases penalties
for regulatory noncompliance, broadens the response
and enforcement authorities of the Federal govern-
ment, and preserves State authority to establish laws
governing oil spill prevention and response.
Q2. How does the OPA affect existing laws and
regulations?
A. The OPA amends section 311 of the Federal Water
Pollution Control Act (the Clean Water Act or
CWA, 33 U.S.C. 1321 et seq), to clarify Federal
response authority, increase penalties for spills,
establish USCG response organizations, require
tank vessel and facility response plans, and provide
for contingency planning in designated areas. Many
of the statutory changes will require corresponding
changes to the National Oil and Hazardous Sub-
stances Pollution Contingency Plan (NCP), codified
at 40 CFR Part 300. In addition, the OPA repeals
the following statutory provisions and merges the
funds established under these laws with the Trust
Fund: (1) CWA section 311(k); (2) Title III of the
Outer Continental Shelf Lands Act Amendments of
1978 (43 U.S.C. §1811 et seq); (3) section 18(f) of
the Deepwater Port Act of 1974 (33 U.S.C. §1502 et
seq); and (4) section 204(c) of the Trans-Alaska
Pipeline Authorization Act (43 U.S.C. §1651 et seq),
except for amounts necessary to pay remaining
claims. The OPA also makes the Trust Fund
available for actions taken in accordance with the
Intervention on the High Seas Act (33 U.S.C. §1486
et seq). The OPA, however, does not preempt
States' rights to impose additional liability or other
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Q3.
requirements with respect to the discharge of oil
within a State or to any removal activities in
connection with such a discharge.
Which Federal agencies are responsible for
implementing the OPA?
A. On October 18, 1991, the President issued Executive
Order 12777, delegating authority to implement the
OPA to various Federal agencies and departments,
including EPA and the USCG (via the U.S.
Department of Transportation or DOT). Forth-
coming memoranda of understanding between EPA
and the USCG will address how the two agencies
will interact in carrying out their respective
responsibilities. In general, EPA is responsible for
oil spill prevention, preparedness, and response
activities associated with non-transportation-related
onshore facilities. The Agency has lead responsi-
bility for implementing many of the OPA provisions
in the inland zone, including revising the NCP,
developing non-transportation-related facility
response plan regulations, reviewing and approving
facility response plans, designating areas, appointing
Area Committee members, and establishing require-
ments for Area Contingency Plans.
In addition, the DOT (including, in some cases, the
USCG) generally is responsible for oil spill planning
and response activities for tank vessels, transpor-
tation-related onshore facilities, and deepwater ports.
The U.S. Department of Interior generally is
responsible for oil spill planning and response
activities for offshore facilities except deepwater
ports. Under the OPA. the National Oceanic and
Atmospheric Administration is developing regula-
tions for natural resource trustees to assess damages
to natural resources caused by oil discharges.
Q4. How are the EPA program offices carrying out
their responsibilities under the OPA?
A. Most OPA provisions delegated to EPA are being
implemented by EPA's Emergency Response
Division (ERD), a part of the Office of Emergency
and Remedial Response within the Office of l>olid
Waste and Emergency Response. Within ERD, the
newly created Oil Pollution Response and Abate-
ment Section will play a major role in carrying out
the Agency's responsibilities under the OPA.
Moreover, to coordinate the many efforts required
under the Act, EPA formed the OPA Implementa-
tion Workgroup, chaired by the Director of ERD. A
variety of Headquarters and Regional offices arc
represented on this workgroup; EPA Region 2
currently participates as the lead Regional
representative. Within the overall workgroup, a
number of other workgroups are implementing
specific OPA provisions (see Highlight 1).
Highlight 1: EPA Workgroups
to Implement the OPA
The Regional Implementation workgroup is
developing recommendations on EPA's expanded
role and responsibilities in preventing and
responding to oil spills.
The Area Contingency Plans workgroup is
studying issues "associated with designating areas
for which Area Committees and Area
Contingency Plans are 10 be established.
•
The Facility Response Plans workgroup, which
has been incorporated into the existing Spill
Prevention, Control, and Countermeasures
(SPCC) Phase Two Workgroup, is developing
regulations for facility response plans, as well as
interim guidance for reviewing such plans.
The NCP Revisions workgroup is developing the
revisions to the NCP required by the OPA. A
subworkgroup has been established to focus on
revising Subpart J to establish procedures tor
using chemical agents to respond to oil spills.
The Enforcement workgroup is reviewing EPA
enforcement responsibilities in light of the new
penalty provisions added by the OPA.
The Liner Study workgroup is preparing a report
to Congress on whether liners or secondary
containment should be used to prevent discharges
from onshore facilities.
The Research and Development workgroup is
coordinating EPA's program of oil pollution
research and technology1 development and
demonstration.
Federal and State Roles
OS. What is the Federal government's role when
responding to releases of oil?
A. Under section 311(c) of the CWA, as amended by
section 4201 (a) of the OPA, the Federal
government must ensure the effective and
immediate removal of a discharge (or a substantial
threat of a discharge) of oil or hazardous substance:
(1) into or on navigable waters and adjoining
shorelines; (2) into or on the waters of the exclusive
economic zone; or (3) that may affect natural
resources of the U.S. In carrying out this provision,
the Federal government may: (1) remove or
arrange for the removal of a discharge, subject to
reimbursement from the responsible party; (2) direct
or monitor all Federal, State, and private actions to
remove a discharge; or (3) remove and, if necessary,
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destroy a vessel discharging, or threatening to
discharge. If the discharge is of such size or
character as to pose a substantial threat to the public
health or welfare, the Federal government is
required to direct all public and private efforts to
remove the discharge. For all other discharges, the
Federal government has the discretion to take action,
direct, or monitor public or private actions to
remove the discharge. To facilitate and expedite
emergency- responses to discharges that pose a
substantial threat to the public health or welfare,
OPA section 4201 amends the CWA to exempt the
Federal government from certain laws governing
contracting procedures and the employment of
personnel. In addition, an amendment to section
311(c) of the CWA provides an exemption from
liability for response costs and damages which result
from actions taken, or not taken, by a person
rendering care, assistance, or advice consistent with
the NCP. This exemption does not apply: (1) to a
responsible party; (2) to a response conducted
pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601 et seq.); (3) with respect to personal
injury or wrongful death; or (4) if the person is
grossly negligent or engages in willful misconduct.
The intent of the OPA is to enable the Federal
government to direct responses that are both
immediate and effective.
Q6. Many States have laws governing oil spill
prevention and response. Does the OPA
preempt State laws?
A. No; section 1018(a) of the OPA specifically provides
that the Act does not preempt State law. States may
impose additional liability (including unlimited
liability), funding mechanisms, requirements for
removal actions, and fines and penalties for
responsible parties. Section 1019 of the OPA
provides States the authority to enforce, on the
navigable waters of the State, OPA requirements for
evidence of financial responsibility. States are also
given access to Federal funds (up to 5250,000 per
incident) for immediate removal, mitigation, or
prevention of a discharge, and may be reimbursed by
the Trust Fund for removal and monitoring costs
incurred during oil spill response and cleanup efforts
that are consistent with the NCP.
Liability and Financial Responsibility
Q7. What provisions for oil spill liability does the
OPA establish?
A. Title I of the OPA contains liability provisions
governing oil spills modeled after CERCLA and sec-
tion 311 of the CWA. Specifically, section 1002(a)
of the OPA provides that the responsible party for
a vessel or facility from which oil is discharged, or
which poses a substantial threat of a discharge, is
liable for: (1) certain specified damages resulting
from the discharged oil; and (2) removal costs
incurred in a manner consistent with the NCP.
Highlight 2 identifies the types of "damages" that
responsible parties are potentially liable for under
the OPA. Section 1002(d) also provides that if a
responsible party can establish that the removal
costs and damages resulting from an incident were
caused solely by an act or omission of a third party,
the third party will be held liable for such costs and
damages. In these cases, however, the responsible
party is still required to pay the removal costs and
damages resulting from the incident, but is entitled
by subrogation to recover all costs and damages
from the third party or the Trust Fund.
Highlight 2: Damages for Which Responsible
Parties Are Potentially Liable
The scope of damages for which oil dischargers may be
liable under section 1002 of the OPA includes:
• Natural resource damages, including the reasonable
costs of assessing these damages;
Loss of subsistence use of natural resources:
Real or personal property damages;
Net loss of tax and other revenues;
• Loss of profits or earning capacity; and
• Net cost of additional public services provided
during or after removal actions.
Q8. Does the OPA provide defenses to its oil spill
liability provisions?
A. Yes; section 1002(c) of the OPA provides excep-
tions to the statute's liability provisions. The
exceptions include: (1) discharges of oil authorized
by a permit under Federal, State, or local law; (2)
discharges of oil from a public vessel; or (3) dis-
charges of oil from onshore facilities covered by the
liability provisions of the Trans-Alaska Pipeline
Authorization Act.
In addition, section 1003 of the OPA provides the
responsible party with defenses to liability imposed
under section 1002 of the Act if the responsible
party establishes that the spill was caused solely by:
(1) an act of God; (2) an act of war; (3) an act or
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omission of a third party; or (4) any combination of
these events. To prevail in a third-party defense, the
responsible party must prove that it took due care in
handling the oil and took precautions against any
foreseeable acts of the third party and any
foreseeable consequences of those actions. However,
the defenses contained in section 1003 are not
available to responsible parties that: (1) do not
report an incident of which they are aware; (2) do
not cooperate with response officials during removal
actions; or (3) without sufficient cause, do not
comply with an order issued under section 311 of the
CWA, as amended, or the Intervention on the High
Seas Act.
Q9. Does the OPA establish limits on liability?
A. Yes; the OPA establishes significantly higher limits
of liability for tank vessels, facilities, and deepwater
ports than existed previously under section 311 of
the CWA. Specifically, section 1004 of the OPA
increases the liability for tank vessels larger than
3,000 gross tons to Si.200 per gross ton or 510
million, whichever is greater. Responsible parties at
onshore facilities and deepwater ports are liable for
up to S350 million per spill; holders of leases or
permits for offshore facilities, except deepwater
ports, are liable for up to S75 million per spill, plus
removal costs. Section 1004(d)(l) of the OPA,
however, provides the Federal government with the
authority to adjust, by regulation, the S350-million
liability limit established for onshore facilities,
"taking into account size, storage capacity, oil
throughput, proximity to sensitive areas, type of oil
handled, history of discharges, and other factors
relevant to risks posed by the class or category of
facility." The Agency is currently assessing the
desirability of adjusting the liability limit for onshore
non-transportation-related facilities based on these
factors.
In addition, the OPA establishes the following
conditions under which liability would be unlimited:
(1) discharges caused by gross negligence, willful
misconduct, or violation of Federal safety,
construction, or operating regulations; (2) failure to
report a known spill; (3) failure or refusal to
cooperate in a removal aciion; or (4) failure or
refusal to comply with an order issued under section
311 of the CWA. as amended, or the Intervention on
the High Seas Act. In addition, the owner or
operator of an Outer Continental Shelf facility, or
vessel carrying oil as cargo from such a facility, is
required to pay for all removal costs incurred by the
L.S. Government or any State or local agency in
connection with a discharge, or substantial threat of
a discharce, of oil.
010. What penalties are responsible parties
subject to under the OPA?
A. Section 4301 (a) of the OPA amends the CWA to
increase the criminal penalties for failure to notify
the appropriate Federal agency of a discharge.
Specifically, the fine is increased from a maximum
of S 10,000 to a maximum of $250,000 for an
individual or $500,000 for an organization. The
maximum prison term is also increased from one
year to five years.
In addition, section 4301(b) of the OPA amends the
CWA to authorize a civil penalty of $25,000 for
each day of violation or $1,000 per barrel of oil
discharged. These penalties are higher in cases of
gross negligence or willful misconduct. Failure to
comply with a Federal removal order can result in
civil penalties of up to 525,000 for each day of
violation or three times the resulting costs incurred
by the Trust Fund. Under section OPA 4301(c),
criminal penalties can range up to $250,000 and 15
years in prison. EPA and the USCG also have the
authority to administratively assess civil penalties of
up to S 125,000 against violators of the Oil Pollution
Prevention Regulations (40 CFR Part 112) or those
responsible for the discharge of oil or hazardous
substances.
Q11. Are all parties regulated under the OPA
required to provide evidence of financial
responsibility?
A. No; owners and operators of onshore facilities are
not required to maintain financial assurance mech-
anisms. Owners and operators of offshore facilities,
certain vessels, and deepwater ports, however, must
provide evidence of financial responsibility.
Specifically, section 1016 of the OPA requires that
offshore facilities maintain evidence of financial
responsibility of S150 million and vessels and
deepwater ports must provide evidence of financial
responsibility up to the maximum applicable liability
limitation amount. Any vessel subject to this
requirement that cannot produce evidence of
financial responsibility is not allowed to operate in
U.S. waters. Methods of assuring financial
responsibility under the OPA include evidence of
insurance, surety bond, guarantee, letter of credit, or
qualification as a sell-insurer. Also, OPA section
1016(f) provides that claims for removal costs and
damages may be asserted directly against the
guarantor providing evidence of financial
responsibility.
Q12. Are there funds available if cleanup costs and
damages cannot be recovered from responsible
parties?
A. Yes; the OPA authorizes the expenditure of funds
from the Oil Spill Liability Trust Fund, established
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under section 9509 of the Internal Revenue Act of
1986 (26 U.S.C 9509), to pav for removal costs
and/or damages resulting from discharges of oil into
U.S. waters or supplement existing sources of
funding. The Trust Fund, which is administered by
the USCG, is based on a five-cent-per-barrel
environmental fee on domestic and imported oil.
The OPA amends section 9509 of the Internal
Revenue Act of 1986 to consolidate funds estab-
lished under other statutes and to increase permitted
levels of expenditures. Specifically, section 9001(a)
of the OPA consolidates the assets and liabilities
remaining with, and the penalties paid pursuant to,
the funds established under: (1) section 311 of the
CWA; (2) section 18(f) of the Deepwater Port Act of
1974; (3) Title III of the Outer Continental Shelf
Lands Act of 1978; and (4) section 204 of the Trans-
Alaska Pipeline Authorization Act (after settlement
of existing claims). The OPA amends the resulting
Trust Fund by expanding permissible expenditures
from S500 million per incident, and a separate S250-
million per incident limit on natural resource claims,
to Si billion per incident and a S500-miliion per
incident spending limit on natural resource damages.
In addition, the OPA increases the Trust Fund
borrowing limit from S500 million to Si billion.
Oil Spill Preparedness and Prevention
013. How will implementation of the OPA help oil
spill planning and prevention efforts?
A. Section 4202 of the OPA strengthens planning and
prevention activities by: (1) providing for the
establishment of spill contingency plans for all areas
of the U.S.; (2) mandating the development of
response plans for individual tank vessels and certain
facilities; and (3) providing requirements for spill
removal equipment and periodic inspections. These
efforts are intended to result in more prompt and
effective cleanup or containment of oil spills, thereby
preventing spills from becoming larger and reducing
the amount of damage caused by oil spills.
The development of Area Contingency Plans will
assist the Federal government in planning response
activities. In addition, owners and operators of tank
vessels, offshore facilities, and any onshore facilities
that because of their location could cause substantial
harm to the environment from a discharge, are re-
quired to prepare and submit to the Federal govern-
ment plans for responding to discharges, including a
worst case discharge or a threat of such discharge.
If response plans are not developed and approved as
required by section 311(j)(5) of the CWA, as
amended bv the OPA, the tank vessel or facilitv will
be prohibited from handling, storing, or transporting
oil unless the tank vessel or facility submits a plan
to the Federal government and receives temporary
approval to continue operations (see Question #16
of this fact sheet). In addition, containment booms.
skimmers, vessels, and other major spill removal
equipment must be inspected periodically; tank
vessels must carry removal equipment that uses the
best technology economically feasible and is
consistent with the sate operation of (he vessel.
Moreover, the higher limits on liability and the
broader scope of damages for which dischargers may
be liable under the OPA should serve as added
incentives for facilities and vessels to prevent spills.
In addition, EPA is taking the lead or participating
in several studies and research and development
efforts that will aid in spill prevention. Other
requirements of the OPA being implemented by the
USCG -- such as establishing a National Response
Unit and District Response Groups and new
standards for tank vessel construction, crew
licensing, and manning -- also will help to prevent
or mitigate spills.
Q14. What are Area Committees and Area Contin-
gency Plans?
A. Area Committees, to be composed of qualified
Federal, State, and local officials, will be created to
develop Area Contingency Plans. At a minimum,
Area Contingency Plans are intended to ensure the
removal of a worst case discharge, and to mitigate
or prevent a substantial threat of such a discharge,
from a vessel or facility in or near the area covered
by the plan. In the case of an onshore facility, a
worst case scenario is defined as the largest
foreseeable discharge under adverse weather
conditions. Area Contingency Plans will describe
areas of special environmental importance, outline
the responsibilities of government agencies and
facility or vessel operators in the event of a spill,
and detail procedures on the coordination of
response plans and equipment. In accordance with
Executive Order 12777, EPA is responsible for
reviewing and approving Area Contingency Plans for
the inland zone, whereas the USCG has similar
responsibilities for the coastal zone.
Q15. Does the OPA require onshore facilities to
prepare and submit a facility response plan?
A. Yes; section 4202 of the OPA amends section
311(j)(5) of the CWA to require the owner or
operator of a tank vessel, offshore facility, and
certain onshore facilities to prepare and submit to
the Federal government a plan for responding, to
the maximum extent practicable, to a worst case
discharge, or substantial threat of such a discharge,
of oil or hazardous substances. Specifically, OPA
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section 4202(a)(6) revises CWA section 311(j)(5) to
require the owner or operator of an onshore facility
that, because of us location, could reasonably be
expected to cause "substantial harm" to the
environment as the result of an oil discharge, to
submit a response plan to the Federal government.
The OPA revisions to CWA section 311(j)(5) also
require the Federal government to review and either
approve, or require amendments to, the response
plans of tank vessels, offshore facilities, and those
onshore facilities that could reasonably be expected
to cause significant and substantial harm to the
environment from a discharge. Under Executive
Order 12777, the President has delegated the
authority to review and approve response plans for
non-transportation-related onshore facilities to EPA.
Q16. What deadlines does the OPA place on the
preparation and submission of facility response
plans?
A. Section 4202(b) of the OPA establishes deadlines for
the preparation and approval of facility response
plans. Regulations addressing facility response plans
are required to be promulgated 24 months after the
date of enactment of the OPA (i.e., August 18,
1992). Owners and operators of affected facilities
are required to prepare and submit their plans 30
months after the date of enactment (i.e., February
18, 1993). Section 4202(b) of the OPA also states
that if the owner or operator of a facility required to
submit a plan has not done so by the deadline, that
facility must stop handling, storing, or transporting
oil. Furthermore, a facility required to prepare and
submit a response plan may not handle, store, or
transport oil unless: (1) the plan has been approved
(when plan approval is required); and (2) the facility
is operating in compliance with the plan. EPA may
authorize a facility which has submitted a plan to
operate without approval for up to two years if the
owner or operator certifies the availability of
personnel and equipment necessary to respond to a
worst case discharge or the substantial threat ol such
a discharge.
Q17. What types of information must facility
response plans include?
A. The OPA requires owners or operators of a facility
to submit a response plan that is: (1) consistent
with the NCP and Area Contingency Plans; (2)
updated periodically; and (3) resubmuted for
approval with each significant change. Highlight 3
provides additional information that must be
included in the facility response plan. In conjunction
with the SPCC Phase II workgroup, the Facility
Response Plans workgroup is making preparations to
meet with trade associations representing the
regulated community to provide information and
seek comments on the possible contents, the level of
Highlight 3: Information That Must be
Included in Facility Response Plans
OPA section 4202(a) requires that each facility response
plan, at a minimum:
« Identify the individual with full authority to
implement removal actions, and requires immediate
communications between that individual, the
appropriate Federal official, and those providing
response personnel and equipment;
*
• Identify and ensure the availability of private
personnel and equipment necessary to remove to
the maximum extent practicable a worst case
discharge (including a discharge resulting from fire
or explosion), and to mitigate or prevent a
substantial threat of such a discharge; and
• Describe the training, equipment testing, periodic
unannounced drills, and response actions of persons
on the vessel or at the facility, to be carried out
under the plan to ensure the safety of the vessel or
facility and to mitigate or prevent the discharge, or
the substantial threat of a discharae.
detail, and guidance that may be useful for
preparing response plans.
Q18. Does the OPA contain provisions that address
tank vessel construction?
A. Yes; a major spill prevention feature of the OPA is
the requirement that tank vessels be equipped with
double hulls. Specifically, under section 4115 of the
OPA, newly constructed tank vessels must be
equipped with double hulls, with the exception of
vessels used only to respond to discharges of oil or
hazardous substances. In addition, newly
constructed tank vessels less than 5,000 gross tons
are exempt from the double-hull requirement if they
are equipped with a double containment system
proven to be as effective as a double hull for the
prevention of a discharge of oil. Existing tankers
without double hulls are to be phased out by size,
age, and design beginning in 1995, and are required
to be escorted by two towing vessels in specially
designated high-risk areas. Most tankers without
double hulls will be banned by 2015.
Q19. What other OPA requirements are designed to
prevent oil spills from tank vessels?
A. The OPA contains additional provisions that are
intended to prevent tank vessel spills from
occurring, including: (1) strict licensing require-
ments; and (2) manning and safety standards.
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To ensure that the USCG can identify vessel per-
sonnel with motor vehicle offenses related to the use
of alcohol and drugs, OP A section 4101 requires
anyone applying for a license, certificate of registry,
or merchant mariners' document to provide a copy
of their driving record obtained from the National
Driver Registry. This requirement is intended to
provide background information on potential vessel
personnel with motor vehicle offenses related to the
use of alcohol and drugs. Applicants must also
submit to drug testing. Further, OPA section 4103
provides additional authority for the expeditious
suspension of licenses and documents of merchant
mariners suspected of alcohol or drug abuse. OPA
section 4104 provides authority for the orderly
removal or relief of a vessel master or individual in
charge of the vessel suspected of being under the
influence of alcohol or a dangerous drug. The
inclusion of these provisions reflects the concern that
alcohol or drug impairment are serious threats to
safe vessel operation.
Section 4114 of the OPA also requires that new tank
vessel manning standards be set, both for U.S. and
foreign tank vessels. For U.S. tank vessels, licensed
seamen are not permitted to work more than 15
hours in any 24-hour period, or more than 36 hours
in any 72-hour period. Forthcoming regulations will
designate the conditions under which tank vessels
may operate with the autopilot engaged or the
engine room unattended. Crew members also must
be trained in maintenance of the navigation and
safety features of the tank vessel. For foreign tank
vessels, a USCG review will determine whether tank
vessel safety practices are at least the equivalent of
U.S. requirements. Tank vessels that do not satisfy
this standard will be prohibited from entering U.S.
waters. These new requirements, emanating from
issues raised in the investigation of the Exxon Valdez
spill, should lead to better trained and more well-
rested crews on tank vessels.
Other Provisions
Q20. What oil pollution research and development
efforts are mandated by the OPA?
A. Section 7001 of the OPA requires that an
interagency committee be established to coordinate
the establishment of a program for conducting oil
pollution research, technology development, and
demonstration. This program is specifically required
by the statute to provide research, development, and
demonstration in a number of areas, including:
Innovative oil pollution technologies (e.g.,
development of improved tank vessel design or
improved mechanical, chemical, or biological
systems or processes);
• Oil pollution technology evaluation (e.g.,
controlled field testing and development of
testing protocols and standards);
• Oil pollution effects research (e.g., development
of improved fate and transport models);
• Marine simulation research (e.g., use and
application of geographic and vessel response
simulation models); and
• Simulated environmental testing (e.g., use of the
Oil and Hazardous Materials Simulated
Environmental Test Tank).
Q21. What provisions are included in the OPA to
protect Alaska's Prince William Sound?
A. Title V of the OPA contains several provisions
aimed at preventing future spills in Prince William
Sound. Specifically, the OPA: (1) authorizes the
Prince William Sound Oil Recovery Institute in
Cordova, Alaska; (2) establishes Oil Terminal
Oversight and Monitoring Committees for Prince
William Sound and Cook Inlet; (3) authorizes and
appropriates funds for construction of a navigation
light on Bligh Reef; and (4) requires all tank vessels
in Prince William Sound to be under the direction
and control of a pilot, who cannot be a member of
the crew of the tank vessel, licensed by the Federal
government and the State of Alaska. In addition,
section 8103 of the OPA establishes a Presidential
Task Force on the Trans-Alaska Pipeline System.
The Task Force will conduct a comprehensive audit
of the pipeline system (including the terminal in
Valdez, Alaska) to assess compliance with
applicable laws.
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United States
Environmental Protection
Agency (OS-120)
Washington, DC 20460
Official Business
Penalty for Private Use
$300
First-Class Mail
Postage and Fees Paid
EPA
Permit No. G-35
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SECTION 4
* FACT SHEET: FACILITY
RESPONSE PLANS (FRP'S)
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OPA HOTLINE (202) 260-2342
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9360.8-06FS
February 1993
Facility Response Plans
Office of Emergency and Remedial Response
Emergency Response Division 5202G
Quick Reference Fact Sheet
In 1990, Congress passed the Oil Pollution Act (OPA) in pan to expand the scope of public and private
planning and response activities associated with discharges of oil. The OPA amends §311 of the Clean Water Act
(CWA) to augment Federal response authority, increase penalties for unauthorized spills, expand the organizational
structure of the Federal response framework, and provide a greater emphasis on preparedness and response activities.
CWA §311 requires the preparation of plans to respond to a worst-case discharge of oil, and sets forth specific
requirements for development of such plans. These response plan requirements apply to an owner/ operator of any
onshore facility that, because of its location, could reasonably be expected to cause substantial harm to the
environment by a discharge of oil into navigable waters,1 adjoining shorelines, or the exclusive economic zone (i.e.,
"substantial harm facilities"). Section 311 of the CWA requires that owner/operators of such "substantial harm
facilities" must submit their response plans by February 18,1993, or stop handling, storing, or transporting oil. CWA
§311 also provides that a subset of "substantial harm facilities" (i.e., facilities that could reasonably be expected to
cause significant and substantial harm to the environment by discharging oil, or "significant and substantial harm
facilities") must have their plans approved by the Federal government
The President has delegated the authority to regulate non-transportation-related onshore facilities to the
Administrator of EPA. EPA is implementing the CWA §311 response plan requirements in a proposed revision to
the Oil Pollution Prevention regulation (40 CFR Pan 112). The purpose of this fact sheet is to provide general
information on how EPA intends to implement the CWA §311 requirements. Specifically, the fact sheet addresses
who must prepare plans, which plans must be approved, and what a facility response plan should contain.
WHO MUST PREPARE PLANS?
("SUBSTANTIAL HARM FACILITIES")
Under CWA §311, only certain facilities are
required to prepare and submit response plans, i.e.,
those facilities that could cause substantial harm to
the environment EPA has proposed two ways in
which a facility may be identified as posing substantial
harm: (1) through a self-selection process; or (2) by
determination of the Regional Administrator (RA).
For the self-selection process, §112.20(f)(i) of
the proposed rule lists specific criteria to help
owner/operators evaluate whether their facilities pose
substantial harm (see Highlight I). The proposed rule
also provides more detailed information to help
owner/operators interpret these criteria to determine
whether their facility should be regarded as a
"substantial harm facility." For example, Appendix C
of the proposed rule provides formulas to help
evaluate whether a facility is located at a distance that
could cause injury to an environmentally sensitive area
or shut down operations at a public drinking-water
intake. (NOTE: Facility owner/operators may also
use an alternative formula provided that they
document such use, as appropriate.) Appendix D of
the proposed rule provides information on
environmentally sensitive areas.
Navigable waters are defined in CWA §502(7) and at 40 CFR 110.1 a* waters of the United States, including the territorial
seas. This definition includes, among other things, lakes, riven, streams (including intermittent streams), mudflats, and wetlands.
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Highlight 1
SELF-SELECTION CRITERIA
Under the proposed rule, a facility would fall
under the "substantial harm" category if it meets at
least one of the following criteria:
• The facility has a total storage capacity greater
than or equal to 42,000 gallons and performs over-
water oil transfers to or from vessels; OR
• The facility has a total storage capacity greater
than or equal to one million gallons, and meets any
one of the following conditions:
- Does not have adequate secondary containment
for each aboveground storage area;
- Is located such that a discharge could cause
"injury" to an environmentally sensitive area;
- Is located such that a discharge would shut
down a public dnnking-water intake; or
- Has had, in the past 5 years, a reportable spill
greater than or equal to 10,000 gallons.
The owner/operator of any facility currently
regulated by the existing Oil Pollution Prevention
regulation may consult the proposed rule for details
on the self-selection screening process. If the self-
selection process does indicate that a facility poses a
threat of "substantial harm" to the environment, the
owner/operator would be required prepare and submit
a facility response plan to the appropriate EPA RA.
CWA §311 requires that owner/operators of
•substantial harm facilities" must submit their response
plans by February 18, 1993, or stop handling, storing,
or transporting oil.
Under the proposal, the RA also would have
the authority to determine that a facility may cause
substantial harm, regardless of the results of the self-
selection screening process. As set forth in §112.20(b)
of the proposed rule, the RA's determination would
be based on factors similar to the criteria used in the
self-selection screening process, as well as other site-
specific characteristics and environmental factors.
IN ADDITION TO THE SELF-SELECTION
PROCESS, THE RA MAY DETERMINE
THAT A FACILITY POSES
SUBSTANTIAL HARM.
Under the proposal, if an owner/operator
determines that the facility does not have the potential
to cause substantial harm, the owner/operator would
have to complete the certification form contained in
Appendix C of the proposed response plan
rulemaking. This form would be maintained at the
facility. In addition, if the self-selection process is
completed using an alternative formula, the
owner/operator would be required to notify the RA in
writing and provide information on the reliability and
analytical soundness of the alternative formula.
WHICH PLANS MUST BE APPROVED?
("SIGNIFICANT AND SUBSTANTIAL
HARM FACILITIES")
In addition to the requirement to prepare
response plans, CWA §311 establishes further
requirements for a subset of facilities that could cause
significant and substantial harm. CWA §311 requires
that EPA must review and approve the response plans
submitted for these facilities.
Under §112.20(0(3) of the proposed rule, the
RA would identify these "significant and substantial
harm facilities" using a series of risk-based screening
considerations. These considerations include factors
similar to the criteria to determine substantial harm,
as well as the age of the tanks, proximity to navigable
waters, and spill frequency. Facilities would be
notified in writing of their status as posing significant
and substantial harm.
Under CWA §311, if EPA does not review and
approve a "significant and substantial harm facility"
plan by August 18, 1993, the facility must stop
handling, storing, or transporting oil. However, the
number of plans needing review may prevent RAs
from approving all response plans by the statutory
deadline. CWA §311 allows a "significant and
substantial harm facility* owner/operator to seek
Federal authorization to operate for up to two years
after the plan has been submitted where the owner/
operator certifies that he or she has ensured by
contract or other approved means the availability of
private personnel and equipment necessary to respond
to a worst-case discharge.
Under §112-20(b) of the proposed rule,
owner/operators who seek such authorization may
submit to the RA a certification statement and proof
that a written contractual agreement or other
approved means is in place. Examples of "other
approved means" may include:
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• Certification that the owner/operator has
access to the necessary personnel and
equipment;
• Active membership in spill organization that
ensures adequate access to the necessary
personnel and equipment; or
• Other specific arrangements approved by the
RA upon the request of the owner/operator.
WHAT SHOULD A FACILITY
RESPONSE PLAN CONTAIN?
As discussed above, CWA §311 requires that
the response plan must address certain critical items.
CWA §311 requires that the response plan:
• Be consistent with the National Contingency
Plan and Area Contingency Plans;
• Identity a qualified individual having full
authority to implement removal actions, and
require immediate communication between
that person and appropriate Federal
authorities and responders;
• Identify and ensure availability of resources to
remove, to the maximum extent practicable, a
worst-case discharge;
• Describe training, testing, unannounced drills,
and response actions of persons at the facility,
• Be updated periodically, and
• Be resubmitted for approval of each
significant change.
To assist owners or operators in preparing
response plans, Appendix G of the proposed rule
includes a model facility response plan that addresses
CWA §311 provisions in a comprehensive and well-
organized manner. Highlight 2 outlines elements of
the model plan.
Under the proposal, the organization of the
model plan and the information contained in it would
be representative of the format and level of detail
needed to address the required response plan elements
in an acceptable manner. However, EPA recognizes
that there may be many facilities with existing
response plans. Therefore, owner/operators generally
Highlight 2
RESPONSE PLAN ELEMENTS
Under the proposed rule, elements of an effective
response plan would include the following:
- Emergency Response Action Plan*
- Facility name, type, location, owner, operator
information
- Emergency notification, equipment, personnel, and
evacuation information
- Identification and evaluation of potential spill
hazards and previous spills
- Identification of small, medium, and worst-case
discharge scenarios and response actions
- Description of discharge detection procedures and
equipment
- Detailed implementation plan for containment and
disposal
- Facility and response resource self-inspection,
training, and meeting logs
- Diagrams of facility and surrounding layout,
topography, and evacuation paths
- Security (fences, lighting, alarms, guards,
emergency cutoff valves and locks, etc.)
* A response plan would serve as both a planning and
action document, and the action portion should be
maintained as an easily-accessible, stand-alone section
of the overall plan.
would not need to prepare a separate plan to comply
with CWA §311 if they have already prepared a plan,
provided that the original plan: (1) satisfies the
appropriate requirements and is equally stringent; (2)
includes all the elements described in the model plan;
(3) is cross-referenced appropriately, and (4) contains
an Action Plan for use during a discharge.
Although Spill Prevention, Control, and
Countermeasure (SPCC) plans (i.e., prevention plans)
and response plans are different, and should be
maintained as separate documents, some sections of
the plans may be the same. The proposed rule would
allow the owner/operator to reproduce and use those
sections of the SPCC Plan in the response plan.
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SPILL PREVENTION (SPCC) PLANS
AND FACILITY RESPONSE PLANS
ARE DIFFERENT
The CWA §311 requirements to develop a
response plan will affect many facilities that are
already subject to the Oil Pollution Prevention
regulation. This regulation, which has been in effect
since 1973, applies to facilities that meet the
characteristics set forth at 40 CFR §112.1 (see
Highlight 3).
The owner/operator of any facility subject to the
Oil Pollution Prevention regulation is required to
prepare and implement an SPCC Plan. SPCC Plans
focus on procedures to prevent and control oil spills.
In contrast, the facility response plans required by
CWA §311 are intended to focus on reactive
measures, such as how facility personnel are to
respond to a discharge. The response plan should be
maintained as a separate document from the SPCC
Plan and be easily accessible during an emergency.
Under CWA §311, certain facilities are required to
submit only the response plan to EPA.
Highlight 3
FACILITIES SUBJECT TO THE OIL
POLLUTION PREVENTION REGULATION
The Oil Pollution Prevention regulation applies to
facilities with the following characteristics:
• Facility Type: Non-transportation-related on-
shore facilities.
• Oil Product Storage: The total aboveground
storage capacity at the facility is greater than.
1320 gallons (or greater than 660 gallons in a
single container), or the total underground
storage capacity is greater than 42,000 gallons.
• Location: Facilities that, because of their
location, could reasonably be expected to
discharge oil into the navigable waters of the
U.S. or adjoining shorelines.
FOR MORE INFORMATION
For more information, please call the SPCC Information Line at (202) 260-2342, or the specific EPA Regional
office. The mailing addresses for the offices and a map showing the geographic boundaries of the Regions are
contained in the proposed regulation.
EPA Region 1
(617) 8604361
EPA Region 5
(312)886-6236
EPA Region 9
(415) 744-1500
EPA Region 2
(908) 321-6656
EPA Region 6
(214) 655-2270
EPA Region 10
(206) 553-1090
EPA Region 3
(215) 597-599?
EPA Region 7
(913) 551-5000
EPA Region 4
(404) 347-3931
EPA Region 8
(303) 293-1788
This document is not intended and cannot be relied upon to
create rights, substantive or procedural, enforceable by any party
in litigation with the United States.
United
Environmental Protection
Agency (OS-120)
Washington, DC 2O440
Official Buaineaa
Penalty for Private UM
$300
Rret-daesl
Postage and Foes Paid
EPA
Pern* No. 0-35
EPA Region 3
Removal Enforcement and Oil Section
Mail Code: (3HW32)
841 Chestnut Street
Philadelphia, PA 19107
REGION III FACILITY RESPONSE PLAN COORDINATOR: Linda Ziegler
NOTE: REGION III FACILITY RESPONSE PLAN INFORMATION LINE (215) 597-9562
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SECTION 5
* FRP DEFINITIONS
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IMPORTANT FRP DEFINITIONS
Complex - a facility possessing a combination of transportation-related and non-
transportation-related components that is subject to the jurisdiction of more than one Federal
agency under section 3110) of the CWA.
Contract or other approved means
(1) A written contractual agreement with an oil spill removal organization(s) that
identifies and ensures the availability of the necessary personnel and equipment
within appropriate response times; and/or
(2) A written certification by the owner or operator that the necessary personnel and
equipment resources, owned or operated by the facility owner or operator, are
available to respond to a discharge within appropriate response times; and/or
(3) Active membership in a local or regional oil spill removal organization(s) that
has identified and ensures adequate access through such member ship to
necessary personnel and equipment to respond to a discharge within appropriate
response times in the specified geographic areas; and/or
(4) Other specific arrangements approved by the Regional Administrator upon
request of the owner or operator.
Maximum extent practicable - the limitations used to determine oil spill planning resources
and response times for on-water recovery and shoreline protection and cleanup for worst case
discharges from onshore non-transportation-related facilities in adverse weather. The
appropriate limitations for such planning are available technology and the practical and
technical limits on an individual facility owner or operator.
Permanently manifolded tanks - tanks that are designed, installed, and/or operated in such
a manner that the multiple tanks function as one storage unit.
Worst case discharge
Onshore storage facilities:
Single tank facilities:
For facilities containing only one aboveground oil storage tank, the final worst case
discharge volume equals the capacity of the oil storage tank. If adequate secondary
containment (sufficiently large to contain the capacity of the aboveground oil storage
tank plus sufficient freeboard to allow for precipitation) exists for the oil storage tank
the final worst case discharge volume is the capacity of the tank multiplied by 0.8.
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Multiple-tank facilities:
Are all the aboveground oil storage tanks or groups of aboveground oil storage tanks
at the facility without adequate secondary containment?1
If the answer is yes, then the final worst case discharge volume equals the total
aboveground oil storage capacity at the facility.
If the answer is no, then the worst case volume is the total aboveground oil
storage capacity of the tanks without adequate secondary containment. If all
aboveground oil storage tanks or groups of aboveground oil storage tanks at the
facility have adequate secondary containment the worst case volume is zero. The
final worst case discharge volume is calculated by adding the capacity of the
largest single aboveground oil storage tank within an adequate containment area
or the combined capacity of a group of aboveground oil storage tanks
permanately manifolded together, whichever is greater, with the worst case
volume from above.
Onshore production facilities:
Please refer to Section F of this manual (FINAL RULE MAKING for 40 C.F.R.
PARTS 9 AND 112 dated JULY 1, 1994; page 34110; Appendix D to Part 112,
PART B: WORST CASE DISCHARGE PLANNING VOLUME
CALCULATIONS FOR ONSHORE PRODUCTION FACILITIES).
Adverse weather conditions - means the weather conditions that make it difficult for
response equipment and personnel to cleanup or removed spilled oil, and that will be
considered when identifying response systems and equipment in a response plan for the
applicable operating environment. Factors to consider include significant wave height as
specified in Appendix E to this part, as appropriate, ice conditions, temperatures, weather-
related visibility, and currents within the area in which the systems or equipment are
intended to function.
Vessel - applies to any type of watercraft (e.g., barges), other than a public vessel, which
can be used as means of transportation on water.
Injury - means a measurable adverse change, either long- or short-term, in the chemical or
physical quality or the viability of a natural resource resulting either directly or indirectly
from exposure to a discharge of oil, or exposure to a product of reactions resulting from a
discharge of oil.
Source: 40 CFR Part* 9 and 112 (July 1. 1994)
1 Secondary containment is defined in 40 CFR 112.7(e)(2). Acceptable methods and
structures for containment are also given in 40 CFR 112.7(c)(1).
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SECTION 6
* FINAL RULE MAKING for 40 C.F.R. PART 9
AND 112 dated JULY 1, 1994
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Friday
July 1, 1994
Part III
Environmental
Protection Agency
40 CFR Parts 9 and 112
Oil Pollution Prevention; Non-
Transportation-Related Onshore Facilities;
Final Rule
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34070 Federal Register / Vol. 59, No. 126 / Friday, July l, 1994 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 9 and 112
[SW H-FRL 5002-6]
RIN 2050-AD30
Oil Pollution Prevention; Non-
Transportation-Related Onshore
Facilities
AGENCY: U.S. Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: This rule amends the Oil
Pollution Prevention regulation,
promulgated under the Clean Water Act
for transportation-related onshore and
offshore facilities. The revision
incorporates new requirements added
by the Oil Pollution Act of 1990 that
direct certain facility owners and
operators to prepare plans for
responding to a worst case discharge of
oil and to a substantial threat of such a
discharge. Requirements to plan for a
small and medium discharge of oil, as
appropriate, are also added by this
revision.
EFFECTIVE DATE: August 30, 1994.
ADDRESSES: The official record for this
rulemaking is located in the Superfund
Docket, Room M2615 at the U.S.
Environmental Protection Agency, 401
M Street SW., Washington, DC 20460
[Docket Number SPCC-2P]. The docket
is available for inspection between 9
a.m. and 4 p.m., Monday through
Friday, excluding Federal holidays.
Appointments to review the docket can
be made by calling 202-260-3046. The
public may copy a maximum of 266
pages from any regulatory docket at no
cost. If the number of pages copied
exceeds 266, however, a charge of 15
cents will be incurred for each
additional page, plus a S25.00
administrative fee.
FOR FURTHER INFORMATION CONTACT:
Bobbie Lively-Diebold, Oil Pollution
Response and Abatement Branch,
Emergency Response Division (5202G),
U.S. Environmental Protection Agency,
401 M Street, SW., Washington, DC
20460 at 703-356-8774; the ERNS/
SPCC Information line at 202-260-2342;
or the RCRA/Superfund Hotline at 800-
424-9346 (in the Washington, DC
metropolitan area, 703-412-9810). The
Telecommunications Device for the Deaf
(TDD) Hotline number is 800-553-7672
(in the Washington. DC metropolitan
area, 703-412-3323).
SUPPLEMENTARY INFORMATION: The
contents of this preamble are listed in
the following outline:
I. Introduction
A. Statutory Authority
B. The Oil Pollution Act of 1990
C. Background of the Rulemaking
II. Summary of Revisions to the Oil Pollution
Prevention Regulation
A. Summary of Approach to Implementing
Facility Response Plan Requirements
B. Response to Major Issues Raised by
Commenters
C. Section-by-Section Analysis
HI. Regulatory Analyses
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Display of OMB Control Numbers
I. Introduction
A. Statutory Authority
Section 4202(a)(6) of the Oil Pollution
Act of 1990 (OPA), Public Law 101-380,
amends section 311(j) of the Federal
Water Pollution Control Act, also
known as the Clean Water Act (CWA),
and under CWA section 311(j)(5) (See
33 U.S.C. 1321(j)(5)) directs the
President to issue regulations that
require owners or operators of tank
vessels, offshore facilities, and certain
onshore facilities to prepare and submit
to the President plans for, among other
things, responding, to the maximum
extent practicable, to a worst case
discharge of oil and to a substantial
threat of such a discharge.
Section 311(j)(l)(C) of the CWA
authorizes the President to issue
regulations establishing procedures,
methods, equipment, and other
requirements to prevent discharges of
oil from vessels and facilities and to
contain such discharges. (See 33 U.S.C.
1321(j)(l)(Q.) The President has
delegated the authority to regulate non-
transportation-related onshore facilities
under sections 311(j)(l)(C) and 311(j)(5)
of the CWA to the U.S. Environmental
Protection Agency (EPA or die Agency).
(See Executive Order (E.O.) 12777,
section 2(b)(l), 56 FR 54757 (October
22, 1991), superseding E.O. 11735, 38
FR 21243.) By this same E.O., the
President has delegated similar
authority over transportation-related
onshore facilities, deepwater ports, and
vessels to the U.S. Department of
Transportation (DOT), and authority
over other offshore facilities, including
associated pipelines, to the U.S.
Department of the Interior (DOI). A
Memorandum of Understanding (MOU)
among EPA, DOI, and DOT effective
February 3,1994, has redelegated the
responsibility to regulate certain
offshore facilities located in and along
the Great Lakes, rivers, coastal wetlands,
and the Gulf Coast barrier islands from
DOI to EPA. (See E.O. 12777 § 2(i)
regarding authority to redelegate.) The
MOU is included as Appendix B to 40
CFR part 112. An MOU between the
Secretary of Transportation and the EPA
Administrator, dated November 24,
1971 (36 FR 24080, December 18,1971),
establishes the definitions of non-
transportation-related facilities and
transportation-related facilities. The
definitions from the MOU are currently
included in Appendix A to 40 CFR part
112.
B. The Oil Pollution Act of 1990
The OPA (Public Law 101-380,104
Stat. 484) was enacted to expand
prevention and preparedness activities,
improve response capabilities, ensure
that shippers and oil companies pay the
costs of spills that do occur, provide an
additional economic incentive to
prevent spills through increased
penalties and enhanced enforcement,
establish an expanded research and
development program, and establish a
new Oil Spill Liability Trust Fund,
administered by the U.S. Coast Guard
(USCG). As provided in sections
2002(b), 2003, and 2004 of the OPA, the
new Fund replaces the fund originally
established under section 311(k) of the
CWA and other oil pollution funds.
Section 4202(a) of the OPA amends
CWA section 311(j) to require
regulations for owners or operators of
facilities to prepare and submit "a plan
for responding, to the maximum extent
practicable, to a worst case discharge,
and to a substantial threat of such a
discharge, of oil or a hazardous
substance." This requirement applies to
all offshore facilities and any onshore
facility that, "because of its location,
could reasonably be expected to cause
substantial harm to the environment by
discharging into or on the navigable
waters, adjoining shorelines, or the
exclusive economic zone" ("substantial
harm facilities"). As stated in the
February 17,1993 proposed rule (58 FR
8824), this rulemaking addresses only
plans for responding to discharges of
oil.
Under CWA and the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA), the United State's has
developed a National Oil and Hazardous
Substances Pollution Contingency Plan
(NCP) (40 CFR part 300) and has
established Area Committees to develop
Area Contingency Plans (ACPs) as
elements of a comprehensive oil and
hazardous substance spill response
system. As amended by the OPA, CWA
section 311(j)(5)(C) sets forth certain
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Federal Register / Vol. 59, No. 126 / Friday. July 1, 1994 / Rules and Regulations
34071
minimum requirements for facility
response plans. The plans must:
• Be consistent with the requirements
of the NCP and ACPs;
• Identify the qualified individual
having full authority to implement
removal actions, and require immediate
communications between that
individual and the appropriate Federal
official and the persons providing
removal personnel and equipment;
• Identify and ensure by contract or
other approved means the availability of
private personnel and equipment
necessary to remove, to the maximum
extent practicable, a worst case
discharge (including a discharge
resulting from fire or explosion), and to
mitigate or prevent a substantial threat
of such a discharge;
• Describe the training, equipment
testing, periodic unannounced drills,
and response actions of persons at the
facility, to be carried out under the plan
to ensure the safety of the facility and
to mitigate or prevent a discharge or the
substantial threat of a discharge; and
• Be updated periodically.
Under section 311(j)(5)(Dj, additional
review and approval provisions apply to
response plans prepared for offshore
facilities and for onshore facilities that,
because of their location, "could
reasonably be expected to cause
significant and substantial harm to the
environment by discharging into or on
the navigable waters or adjoining
shorelines or the exclusive economic
zone" (emphasis added) ("significant
and substantial harm facilities"). Under
authority delegated in E.0.12777, EPA
is responsible for the following
activities for each of these response
plans at non-transportation-related
onshore facilities:
• Promptly reviewing the response
plan;
• Requiring amendments to any plan
that does not meet the section 311(j)(5)
requirements;
• Approving any plan that meets
these requirements; and
• Reviewing each plan periodically
thereafter.
The CWA and the OPA require that
owners or operators of "substantial
harm facilities" submit their response
plans to EPA (as delegated by the
President in E.0.12777) by February 18,
1993, or stop handling, storing, or
transporting oil. In addition, under
CWA section 311(j)(5) and OPA section
4202(b)(4), a facility required to prepare
and submit a response plan under the
OPA may not handle, store, or transport
oil after August 18,1993 unless: (1) in
the case of a facility for which a plan is
reviewed by EPA, the plan has been
approved by EPA; and (2) the facility is
operating in compliance with the plan.
The statute provides that a "significant
and substantial harm facility" may be
allowed to operate without an approved
response plan for up to two years after
the facility submits a plan for review (no
later than February 18,1995), if the
owner or operator certifies that he or she
has ensured by contract or other
approved means the availability of
private personnel and equipment
necessary to respond, to the maximum
extent practicable, to a worst case
discharge of oil, or a substantial threat
of such a discharge. Owners or operators
of "substantial harm facilities" are not
required to have their plans approved
by EPA, but, are required to operate in
compliance with their plans after
August 18,1993.
Under the OPA, facility owners or
operators who fail to comply with
section 311(j) requirements are subject
to new administrative penalties and
more stringent judicial penalties than
those imposed previously under the
CWA. Section 4301(b) of the OPA
amends CWA section 311(b) to
authorize a civil judicial penalty of
$25,000 per day of violation for failure
to comply with regulations under CWA
section 311(j). hi addition to these civil
penalties, OPA section 4301(b) amends
CWA section 311(b) to authorize
administrative penalties for failure to
comply with section 311(j) regulations
of up to $10,000 per violation, not to
exceed $25,000 for Class I penalties, and
up to $10,000 per day per violation, not
to exceed $125,000 for Class II penalties.
The differences between "Class I" and
"Class II" administrative penalties are
the amounts of the potential penalties
and the hearing procedures used (for
instance. Class II procedures will
generally ensure the owner or operator
a more extensive opportunity to be
heard through the proceedings). These
revised penalty provisions are
applicable to violations occurring after
the August 18,1990, enactment of the
OPA. Violations occurring before
enactment of the OPA remain subject to
penalty provisions originally set forth in
CWA section 311.
C. Background of the Rulemaking
Jurisdictional Issues
Although the issue was not raised
specifically in the proposed rule, the
question of clarifying jurisdiction is a
pervasive issue in this rulemaking,
because there are a number of regulatory
agencies with OPA authority over the
same or similar entities.
By E.0.12777, the President
delegated certain OPA authorities to
EPA, DOI, and DOT. By terms of the
E.O., EPA must develop response plan
regulations for onshore non-
transportation-related facilities, while
the Minerals Management Service
(MMS) in DOI is granted similar
authority for offshore non-
transportation-related facilities. The
USCG must develop requirements for
vessels and offshore transportation-
related facilities, and the Research and
Special Programs Administration
(RSPA) has responsibility for onshore
pipelines and rolling stock. (The USCG
and RSPA are agencies in DOT.)
As it applies to the CWA, the term
"offshore facility" means any facility of
any kind located in, on, or under any of
the navigable waters of the United
States, and any facility of any kind that
is subject to the jurisdiction of the
United States and is located in, on, or
under any other waters, other than a
vessel or a public vessel. (See CWA
section 311(a)(ii).) The combined effect
of this definition and the delegations
under E.0.12777 gives DOI (MMS)
responsibility for non-transportation-
related fixed offshore facilities in inland
lakes and rivers. (See E.O. § 2(b)(3).)
However. EPA, DOI-MMS, and DOT
have agreed that EPA responsibility
should extend to these non-
transportation-related fixed offshore
facilities in inland lakes and rivers,
because EPA has the expertise to
provide oversight of facility functions,
and because the maintenance of
continuity in oversight will facilitate
compliance for the regulated
community. Under § 2(i) of E.O. 12777,
the President authorized EPA, DOI, and
DOT to redelegate any of their
responsibilities under the OPA to the
head of any Executive department or
agency with the consent of the agency
head. The Secretaries of DOI and DOT,
and the Administrator of EPA signed an
MOU on February 3,1994, that gives to
EPA jurisdiction all non-transportation-
related fixed facilities located landward
of the "coast line." For purposes of the
MOU. the term "coast line" is denned
as in the Submerged Land Act (43
U.S.C. 1301(c)) to mean "the line of
ordinary low water along that portion of
the coast that is in direct contact with
the open sea and the line marking the
seaward limit of inland waters." MMS
has prepared detailed charts that reflect
the position of the "coast line" and can
be contacted for additional information
on the status of a particular facility.
EPA does not address response plan
requirements for non-transportation-
related fixed offshore facilities in this
final rule, but will do so under a
separate rulemaking. However, because
EPA now has Jurisdictional
responsibility over such facilities,
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response plans for these facilities must
be submitted to EPA rather than to
MMS. Until EPA promulgates a rule for
non-transportation-related fixed
offshore facilities formerly under MMS
authority, the Agency will review
response plans for these facilities under
the OPA statutory criteria. Until such a
rule is promulgated, these facilities
should look to this final rule as
guidance.
Coordination with Other Federal
Programs
Federal and State Government
Coordination Efforts. EPA and other
Federal agencies with jurisdiction under
the OPA and E.0.12777 (including the
USCG, the Office of Pipeline Safety in
RSPA, and MMS) met during the
development of this rule to create an
implementation strategy that minimizes
duplication wherever practicable and
recognizes State oil pollution
prevention and response programs. The
Agency also participated in a workgroup
with representatives from the National
Oceanic and Atmospheric
Administration (NOAA), the Fish and
Wildlife Service, the National Park
Service, and other Federal agencies.
These meetings and workgroup sessions
were held to develop a consistent
approach among Federal agencies and
between Federal and State governments
for oil response planning, and to
develop guidelines and evaluation
criteria for drills/exercises and training
conducted to meet the OPA
requirements and for identification of
"environmentally sensitive areas" (now
"fish and wildlife and sensitive
environments").1 These meetings were
held at various times from January 1993
to January 1994.
One of the critical outgrowths of these
efforts was the development of a
consistent approach to regulate
"complexes." (A complex is a facility
with a combination of transportation-
related and non-transportation-related
components, e.g., a marine transfer
facility with aboveground storage tanks.)
A complex is subject to the jurisdiction
of more than one Federal agency under
the President's delegation implementing
section 311(j) of the CWA. Among the
ways EPA has reduced the complexity
of planning requirements for these
facilities is to better align EPA's
1 The term "environmentally sensitive areas" has
been changed to the term "fish and wildlife and
sensitive environments" throughout this preamble
and the final rule to be consistent with the
terminology used in proposed revisions to the NCP
(See 58 FR 54702) that implement OPA
requirements. The terms have the same meaning
and the change is not meant to imply an expansion
in the types of areas identified for protection under
the OPA.
Appendix E (Appendix F in the
proposed rule renamed in this final rule
as "Determination and Evaluation of
Required Response Resources for
Facility Response Plans") with USCG
response resource rules developed for
marine transfer facilities (February 5,
1993, 58 FR 7330). (A complete
discussion of Appendix E appears later
in this preamble.) For non-
transportation-related facilities that
handle or store non-petroleum oils, EPA
also has adopted an approach similar to
the USCG's regulatory approach for
response equipment strategies (58 FR
7362).
The coordination efforts resulted in
several key decisions which are
described below and discussed in
greater depth later in this preamble. A
common theme of discussion among
agency representatives was the need to
facilitate the regulated community's
efforts to implement multiple sets of
response planning requirements. EPA
emphasizes that it will accept a
response plan prepared to meet State or
other Federal requirements as long as
the plan meets the requirements of this
final rule and is appropriately cross-
referenced. In response to the need to
provide owners or operators with
additional direction on conducting
drills/exercises to meet the OPA
requirements, the National Preparedness
for Response Exercise Program (PREP)
was developed through a joint effort of
the Federal agencies implementing OPA
response plan regulations with
involvement from other Federal
representatives (e.g., natural resource
trustees). State agencies, members of the
regulated community, and oil spill
response organizations. These efforts
resulted in the creation of guidelines to
assist owners or operators in following
the PREP. EPA references, as guidance,
PREP guidelines at § 112.21 of today's
final rule. The PREP draft guidelines are
available from Petty Officer Daniel Caras
at (202) 267-6570 or fax 267-4085/4065.
(See Appendix E to this part, section 10,
for availability). The USCG has
developed similar guidance for training,
and EPA references these training
guidelines at § 112.21 of today's final
rule, indicating that following these
guidelines (or demonstrating a
comparable program) is an acceptable
means to satisfy the OPA requirement to
describe training
Another interagency effort that
resulted in a coordinated approach to
develop response plan requirements
involved the identification of fish and
wildlife and sensitive environments.
The Federal agencies implementing
OPA regulations contributed to the
development of a guidance document
prepared by the natural resource
trustees to assist owners or operators in
identifying fish and wildlife and
sensitive environments for the
evaluation of the substantial harm
criteria and for the development of a
response plan, if required. Although
EPA has removed the proposed
Appendix D that covered this subject,
facility owners and operators still must
consider fish and wildlife and sensitive
environments. EPA refers facility
owners or operators to Appendices I, II,
and III of the "Guidance for Facility and
Vessel Response Plans: Fish and
Wildlife and Sensitive Environments"
published by NOAA within the
Department of Commerce (DOC) in the
Federal Register at 59 FR 14714, March
29,1994. This document will provide
guidance on fish and wildlife and
sensitive environments until
geographic-specific annexes of ACPs are
fully developed. (See the discussion of
ACPs later in this preamble.) Owners or
operators are encouraged to contact the
appropriate Area Committee, EPA
Regional office (inland areas), USCG
Captain of the Port (coastal areas), or
natural resource agencies listed in the
DOC/NOAA Guidance for information
on fish and wildlife and sensitive
environments as it becomes available.
A final critical area where Federal
agencies implementing the OPA reached
agreement was the review of response
plans. For response purposes, the NCP
divides the United States into inland
and coastal zones, with EPA responsible
for providing On-Scene Coordinators
(OSCs) for the inland zone, and the
USCG responsible for providing OSCs
for the coastal zone. EPA will provide
an opportunity for designated USCG
OSCs to review and comment on
response plans for non-transportation-
related onshore facilities subject to 40
CFR part 112, and geographically
located in the coastal zone. For facilities
subject to 40 CFR part 112, EPA will
maintain the responsibility for final
approval of the response plan; however,
the Regional Administrator (RA) will
consider any USCG OSC objection to a
response plan and attempt to resolve
any issues through interagency
discussions.
The NCP and ACPs. Section
311(j)(5)(C) of the CWA requires that
facility response plans be consistent
with the requirements of the NCP and
ACPs. The NCP provides the general
organizational structure and procedures
for addressing discharges of oil and
hazardous substances under the CWA,
as well as releases of hazardous
substances, pollutants, and
contaminants under CERCLA. Among
other things, the NCP specifies
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responsibilities among Federal, State,
and local governments; describes
resources available for response;
summarizes State and local emergency
planning requirements under the
Emergency Planning and Community
Right-to-Know Act (EPCRA or SARA
Title III); and establishes procedures for
undertaking removal actions under the
CWA. Until a revised NCP is published,
as mandated under OPA section
4201(c), facility response plans should
be consistent with the current NCP and,
if necessary, revised to be consistent
with the pending NCP revisions when
they are promulgated. (Revisions to the
NCP were proposed on October 22,
1993, at 58 FR 54702.)
ACPs are mandated under CWA
section 311(j)(4) and prepared by Area
Committees comprised of members
appointed by the President from
qualified personnel of Federal, State,
and local agencies. When implemented
in conjunction with other elements of
the NCP, ACPs must be adequate to
remove a worst case discharge from a
facility operating in or near the area
covered by the plan. ACPs cover
discharges affecting all U.S. waters and
adjoining shorelines. EPA and the USCG
are responsible for establishing Area
Committees for the inland and coastal
zones, respectively. In the inland
Regions, ACPs have been completed and
approved by EPA. The ACP process,
however, is dynamic, and Area
Committees will continue to refine the
ACPs to provide more detailed
information on protection priorities,
develop protection strategies, and
identify appropriate cleanup strategies
for inland areas. Area Committees have
the option to further subdivide their
areas into smaller, geographically
distinct subareas and develop
geographic-specific annexes for these
subareas. Members of the public may
contribute to the ACP refinement
process through involvement with Area
Committees in the development of
geographic-specific annexes.
Resource Conservation and Recovery
Act (RCRA). EPA regulations in Subpart
D of 40 CFR part 264, and Subpart D of
40 CFR part 265 promulgated under
RCRA, require owners and operators of
hazardous waste facilities to develop
facility-specific contingency plans. The
plans must include response
procedures; a list of each person
qualified to act as a facility emergency
coordinator; a list of all emergency
equipment and, when required,
decontamination equipment at the
facility; evacuation plans, when
evacuation could be necessary; and
arrangements agreed to by local police
departments, fire departments,
hospitals, contractors, and State and
local emergency response teams to
coordinate emergency services. In
addition, newly promulgated 40 CFR
part 279 establishes facility-specific
contingency planning and emergency
procedure requirements for used oil at
reprocessing and refining facilities. To
avoid duplication of effort, owners or
operators of facilities subject to the
regulations in 40 CFR parts 264, 265,
and 279 may incorporate these RCRA
provisions and the response planning
requirements of other applicable Federal
regulations into their facility response
plans.
EPCRA. Among other things, EPCRA
requires local emergency planning
committees (LEPCs) to develop local
emergency response plans for their
community and review them at least
annually. Under EPCRA, the owner or
operator of a facility where a listed
"extremely hazardous substance" is
present in an amount in excess of the
threshold planning quantity must notify
the State emergency response
commission (SERC). In addition»upon
request of the LEPC, the owner or
operator must provide the LEPC with
any information necessary to develop
and implement the local emergency
response plan. Because of the
requirement that certain facilities
participate in emergency planning
under EPCRA, some overlap may exist
with response plan requirements
outlined in today's rule.
The OPA Conference Report states
that OPA facility response plans should
be consistent with plans prepared under
other programs, and that any
information developed under section
311(j) should be made available to
SERCs and LEPCs. (See OPA Conference
Report, H.R. Rep. No. 101-653,101st
Cong., 2d Sess. 1990 at p. 151.)
Therefore, a facility response plan
should be consistent with the local
emergency response plan for the
community in which the facility is
located, and to ensure such consistency,
facility owners or operators should
review the appropriate local emergency
response plan. In addition, upon request
of the LEPC or SERC, the facility should
provide a copy of the facility response
plan.
Clean Air Act. Under section 112(r) of
the Clean Air Act (CAA), as amended in
1990, EPA is to promulgate risk
management program regulations for the
prevention and detection of accidental
releases and for responses to such
releases, including requirements for a
risk management plan (RMP) for
chemical accidental release prevention.
The regulation listing the covered
chemicals and threshold quantities was
published in the Federal Register on
January 31,1994 (59 FR 4478). The
proposed rule for the risk management
program was published in the Federal
Register on October 20,1993 (58 FR
54190).
Regulated facilities are required to do
three things: register with EPA; develop
and implement a risk management
program that includes a hazard
assessment, a prevention program, and
an emergency response program; and
develop and submit an RMP to the
Chemical Safety and Hazard
Investigation Board, the implementing
agency, the SERC, and the LEPC. The
RMP is to be made available to the
public.
EPA anticipates that facilities affected
by both regulations can prepare one
response plan that meets the Oil
Pollution Act requirements for oil and
the CAA requirements for chemicals.
Prevention Technical Requirements
EPA's proposed rule for the facility
response plan rulemaking contained
certain provisions related to aspects of
40 CFR part 112 that did not address the
OPA facility response plan
requirements. EPA has decided not to
include these provisions in today's final
rule. These provisions are more closely
related to the 40 CFR part 112 revisions
proposed on October 22,1991 (56 FR
54612), and will be finalized when that
proposal is finalized. The proposed
provisions not included in today's final
rule are as follows:
• §112.1(d)(4>—Reiterating that
Underground Storage Tanks are to be
Marked on Diagrams;
• §112.1(g>—Regional Administrator
Authority to Require SPCC Plan
Preparation;
• § 112.2—Definitions of "Alteration"
and "Repair";
• § 112.4(d)—Amendment of SPCC
Plan by Regional Administrator;
• §112.7(a)(2)—Submission of SPCC
Plans for Waiver of Technical
Requirements;
• § 112.7(d)—Requirement to Prepare
a Contingency Plan When the
Installation of Secondary Containment
Structures is not Practicable;
• §112.7(f)—Prevention Training;
and
• § 112.7 (i)/Appendix H—Ensuring
Against Brittle Fracture.
Only proposed changes to §§ 112.2
(except for the definitions of
"alteration" and "repair") and 112.20,
and the addition of § 112.21 are
included in today's final rule. The
content of § 112.21 is adapted from
§ 112.7 of the proposed rule which
addressed training and drills/exercises
for both prevention and response.
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II. Summary of Revisions to the Oil
Pollution Prevention Regulation
This section provides a summary of
the response planning provisions
included in today's final rule. Section
II.A provides a brief summary of the
overall approach to implementation of
response plan requirements. In Section
II.B, EPA summarizes and responds to
major issues raised by the public during
the comment period. Finally, Section
II.C provides a section-by-section
discussion of changes frorn the
proposed rule to the final rule.
A. Summary of Approach to
Implementing Facility Response Plan
Requirements
EPA is finalizing an approach for
identifying facilities subject to response
planning requirements similar to that
outlined in the proposed rule. Only
owners or operators of "substantial
harm facilities" are required to prepare
and submit plans. EPA will approve
only those plans submitted for
"significant and substantial harm
facilities." Risk-based factors for
evaluating the potential to cause
substantial harm and significant and
substantial harm are established in
§ 112.20(f) of today's rule and include:
type of transfer operation; oil storage
capacity; lack of secondary
containment; proximity to fish and
wildlife and sensitive environments
(described as "environmentally
sensitive areas" in the proposal),
navigable waters, and drinking water
intakes; spill history; age of oil storage
tanks; and other facility-specific and
Region-specific information.
There are two methods by which an
onshore facility may be determined to
be a "substantial harm facility." The
first involves the use of substantial harm
criteria provided in § 112.20(f)(l) and in
the flowchart in Appendix C to 40 CFR
part 112 by owners or operators to
identify "substantial harm facilities."
The second provides each RA the
authority to determine whether any
facility subject to the Oil Pollution
Prevention regulation is a "substantial
harm facility" based on the specific
criteria in § 112.20(f)(l), the factors in
§ 112.20(f)(2)(AHF), or other site-
specific characteristics and
environmental factors that may be
relevant under § 112.20(f)(2)(G). In
applying these factors, the RA may seek
input on specific facilities from other
agencies such as the USCG and natural
resource trustee agencies. The RA also
may consider petitions from the public
to determine whether a facility is a
"substantial harm facility."
To determine whether an onshore
facility could be a "significant and
substantial harm facility," the RA will
consider the substantial harm criteria in
§ 112.20(f)(2) as well as additional
factors in § 112.20(f)(3), including site-
specific information such as local
impacts on public health.
In today's final rule, facility owners or
operators are provided with a process to
appeal the substantial harm and
significant and substantial harm
determinations or the RA's decision not
to approve a response plan for which
approval is required.
Finally, under § 112.20(e), owners or
operators who are not required to
submit plans must maintain onsite at
the facility a signed certification form,
which indicates that the facility has
been determined by the facility owner
or operator not to meet the criteria in
§112.20(f)(l).
Discussion of Response Plans
Those facility owners or operators
who submit plans must include a signed
response plan cover sheet (as provided
in 40 CFR part 112, Appendix F,
Attachment F-l), which indicates that
the information contained in the plan is
accurate, and that gives a basic
summary of facility information,
including the results of the substantial
harm determination.
The required elements for response
planning in § 112.20(h) of this rule are
designed to direct a facility owner or
operator in gathering the information
needed to prepare a response plan. The
response plan elements address
requirements under CWA section
311(j)(5) (as amended by the OPA),
including requirements for response
training and participation in response
drills/exercises. Appendix F to the rule
includes a model response plan that
further describes the required elements
in § 112.20(h). The majority of elements
in the model plan are taken directly
from § 112.20(h) or are logical
extensions of the general requirements
in § 112.20(h) and are therefore
requirements prefaced by use of the
word "must" or "shall." EPA recognizes
that certain other elements may not be
applicable in all cases. To provide
flexibility for facilities with unique
circumstances, certain elements are
prefaced by use of the words "shall, as
appropriate" or are modified by use of
the words "or an equivalent." Finally,
other elements are presented as
recommendations and are prefaced by
use of the word "may."
As discussed previously in this
preamble, the requirements in
§ 112.20(h) and the model response plan
in Appendix F do not preclude the use
of a preexisting response plan. Owners
or operators may submit a plan prepared
to meet other Federal or State
requirements, as long as the elements in
§ 112.20 are addressed (including the
requirement for an emergency response
action plan), and a cross-reference to the
model response plan is provided.
Under today's rule, owners or
operators of "substantial harm
facilities" must prepare plans to
respond to a worst case discharge, and
small and medium discharges as
appropriate. Such response planning by
facilities will help ensure protection of
public health and welfare and the
environment by facilitating effective
response to discharges to navigable
waters or adjoining shorelines. The
requirement to plan for several different
spill sizes is consistent with other
agencies' (such as the USCG's)
implementation of OPA response
planning requirements. For example,
the average most probable discharge and
the maximum most probable discharge
under the USCG interim final rule set
out the same values in barrels as EPA
sets out in gallons for small and
medium spills (58 FR 7358, February 5,
1993). EPA is authorized to require
owners or operators to plan for small
and medium discharges by § 311(j)(l)(C)
of the CWA.
OPA section 4201(b) (CWA section
311(a)(24)) defines "worst case
discharge" for a facility as the largest
foreseeable discharge in adverse
weather conditions. The OPA
Conference Report indicates that facility
owners or operators are expected to
prepare plans for responding to
discharges that are worse than either the
largest spill to date at the facility or the
maximum probable spill for that facility
type. (See H.R. Rep. No. 101-653,101st
Cong., 2d Sess. 1990 at pp. 149-150.)
Today, EPA finalizes a requirement for
a facility's worst case discharge
planning amount based on the capacity
of the largest single tank within a
secondary containment area, or the
combined capacity of a group of
aboveground tanks permanently
manifolded together within a common
secondary containment area lacking
internal subdivisions, whichever is
greater; plus an additional quantity
based on lack of secondary containment,
as appropriate. (For facilities that lack
secondary containment for all tanks, the
worst case discharge would be the total
storage capacity at the facility.)
Production facilities would also need to
consider production volumes. Single
tank facilities are allowed to reduce the
worst case discharge volume for the
presence of adequate secondary
containment.
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EPA has provided worksheets in
Appendix D, which owners or operators
of storage and production facilities are
required to use in the calculation of
worst case discharge amounts. For
complexes, the worst case discharge
volume is the larger of the amounts
calculated for each component of the
facility regulated by a different agency
using procedures contained in the
respective regulations. EPA requires that
owners or operators of complexes (a
complex is a facility with a combination
of transportation-related and non-
transportation-related components, e.g.,
a marine transfer facility with
aboveground storage tanks) plan for the
single largest worst case discharge at the
facility. To facilitate this process, EPA
has modified Appendix E as described
in Section II.B of this preamble to be
consistent with the USCG's "Guidelines
for Determining and Evaluating
Required Response Resources for
Facility Response Plans."
In addition to planning for a worst
case discharge, under proposed
§ 112.20, facility owners and operators
are required to plan for (1) a small spill,
defined as any spill volume less than or
equal to 2,100 gallons, provided that
this amount is less than the worst case
discharge amount; and (2) a medium
spill, defined as any spill volume
greater than 2,100 gallons, and less than
or equal to 36,000 gallons or 10 percent
of the capacity of the largest tank at the
facility, whichever is less, provided that
this amount is less than the worst case
discharge amount. For facilities where
the worst case discharge is a medium
spill, the owner or operator is required
to plan for two amounts, a worst case
spill and a small spill. For facilities
where the worst case discharge is a
small spill, the owner or operator must
plan only for a worst case discharge.
For medium spills at complexes, the
owner or operator must first determine
a medium spill volume for the
transportation-related and non-
transportation-related components at
the facility. (The USCG's term
"maximum most probable discharge" is
generally equivalent to a medium spill.
See 58 FR 7354.) The owner or operator
must then compare the medium
planning amounts for each component
of the facility. Following this
comparison, the owner or operator must
select the larger of the quantities as the
medium planning amount for the
overall facility. A similar procedure
must be followed for a small spill. (The
USCG's term "average most probable
discharge" is generally equivalent to a
small spill. See 58 FR 7353.) EPA
requires that owners or operators of
complexes plan for a single small and
medium spill at the facility in
accordance with the requirements in
Appendix E.
Equipment Requirements
In Appendix E to today's rule, EPA
establishes requirements to determine
for planning purposes the quantity of
resources and response times necessary
to respond to the "maximum extent
practicable" to a worst case discharge,
and to other discharges, as appropriate.
The requirements were adapted from
similar requirements developed by the
USCG for vessel response plans and
facility response plans for marine
transportation-related onshore facilities.
These procedures recognize practical
and technical limits on response
capabilities that an individual facility
owner or operator can provide in
advance and on response times for
resources to arrive on scene. To address
these limitations. Appendix E
establishes operability criteria for oil
response resources and caps on
response resources that facility owners
or operators must identify and ensure
the availability of, through contract or
other approved means. The caps reflect
an estimate of the response capability at
a given facility that is considered a
practical target to be met by 1993 and
beyond.
Appendix E (Appendix F in the
proposed rule) has been renamed
"Determination and Evaluation of
Required Response Resources for
Facility Response Plans." EPA made
this change to clarify that facility
owners and operators must use this
appendix to determine whether they
have appropriate and adequate amounts
of resources to meet the planning
requirements in this final rule. In this
appendix, EPA has substituted the
words "shall" or "shall, as appropriate"
for the word "should" to clarify whether
the requirements are mandatory,
regardless of the circumstances. The
phrase "shall, as appropriate" is
consistent with EPA's intent in the
proposal to provide owners or operators
flexibility for facilities with unique
circumstances. As required at
§ 112.20(h)(3)(i), in cases where it is not
appropriate to follow part of Appendix
E to identify response resources to meet
the facility response plan requirements,
owners or operators must clearly
demonstrate in the plan why use of
Appendix E is not appropriate at the
facility and make comparable
arrangements for response resources.
Section 311(j)(5)(Cj(iii) of the CWA
requires the facility response plan to
identify and ensure the availability, by
contracts or other means approved by
the President (as delegated to EPA), of
private personnel and equipment
necessary to respond to the maximum
extent practicable, to a worst case
discharge. For the purposes of today's
rule, "contract or other approved
means" is defined in § 112.2 of today's
final rule as:
• A written contractual agreement
with an Oil Spill Removal Organization
(OSRO(s)). The agreement must identify
and ensure the availability of the
necessary personnel and equipment
within appropriate response times; and/
or
Written certification that the
necessary personnel and equipment
resources, owned or operated by the
facility owner or operator, are available
to respond to a discharge within
appropriate response times; and/or
• Active membership in a local or
regional OSRO(s), which has identified
and ensures adequate access, through
membership, to necessary personnel
and equipment within appropriate
response times in the specified
geographic areas; and/or
• Other specific arrangements
approved by the RA upon request of the
owner or operator.
If the owner or operator plans to rely
on facility-owned equipment to satisfy
the requirement at § 112.20(h)(3) to
identify and ensure the availability of
response resources, then equipment
inventories must be provided. When
relying on other arrangements, evidence
of contracts or approved means must be
included in the response plan so that
the availability of resources can be
verified during plan review. It is not
necessary to list specific quantities of
equipment in the facility response plan
when listing a USCG-classified OSRO(s)
that has sufficient removal capacity to
recover up to the rate indicated by the
associated caps. (See Section II.B of this
preamble for additional discussion on
this issue.)
Final Rule Application to Affected
Facilities
The following paragraphs present
EPA's approach to implement the
response plan requirements of OPA and
of this final rule. Section 112.20(a) of
the rule has been revised to reflect this
approach.
The Agency proposed in the February
17,1993 Federal Register (58 FR 8824)
its facility response plan rule for non-
transportation-related onshore facilities
under its jurisdiction. Before this
publication, EPA made available
outreach materials describing its basic
approach for implementation of the
OPA response plan requirements to
allow facility owners or operators the
opportunity to prepare and submit
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response plans by the February 18,
1993, OP A deadline. EPA received over
4,500 plans from owners or operators of
facilities that met the criteria to be a
"substantial harm facility." EPA
Regional personnel have identified the
subset of "significant and substantial
harm facilities" from those facilities that
submitted response plans by February
18,1993 and, as appropriate, issued
authorizations to these facilities to
continue to operate after August 18,
1993, based on a review of a facility's
certification of response resources.
These plans will be reviewed and, if
appropriate, approved under the OP A
statutory requirements by February 18,
1995. For inadequate plans submitted
before the February 18,1993 statutory
deadline, RAs may notify facility
owners or operators that additional
information or plan revisions are
necessary in advance of February 18,
1995, for plan approval.
To recognize the compliance efforts of
owners or operators of those facilities in
existence on or before February 18,1993
who submitted response plans to meet
the OPA requirements by the statutory
deadline. EPA will allow them until
February 18,1995 to revise their
response plan, if necessary, to satisfy
the requirements of this rule and
resubmit their plans (or updated
portions) to the RA. (See
§ 112.20(a)(l)(i).) The revised plans for
"significant and substantial harm
facilities" will be reviewed periodically
thereafter on a schedule established by
the RA provided that the period
between plan reviews does not exceed
five years. (See § 112.20(c)(4).) RAs may
institute a process by which such plan
reviews are staggered so that not all
plans will need to be reapproved in the
same year.
Owners or operators of existing
facilities that were in operation on or
before February 18,1993 who failed to
submit a facility response plan to meet
the OPA requirements by February 18,
1993 must submit a response plan that
meets the requirements of this rule to
the RA by the effective date of the final
rule. (See § 112.20(a)(l)(ii}.) EPA
recognizes that such facilities may have
prepared and submitted to the RA some
form of a response plan after the
statutory deadline. Owners or operators
may submit revised portions of the plan
to bring the plan into compliance with
the final rule requirements. Plans for
"significant and substantial harm
facilities" will be reviewed for initial
approval by RAs within a reasonable
time. Such plans will be reviewed
periodically thereafter on a schedule
established by the RA provided that the
period between plan reviews does not
exceed five years. RAs may choose to
stagger such plan reviews.
Owners or operators of facilities that
commenced operations after February
18,1993 but before the effective date of
this final rule must submit a response
plan that meets the requirements of this
final rule to the RA by its effective date.
EPA recognizes that such facilities may
have prepared and submitted some form
of a response plan to the RA prior to the
publication of this rule. Owners or
operator may submit revised portions of
the plan to bring the plan into
compliance with the final rule
requirements. (See § 112.20(a)(2)(i).)
RAs will review plans for "significant
and substantial harm facilities" for
initial approval within a reasonable
time. The plans will then be placed on
the Region's review cycle as described
in the preceding paragraphs.
The Agency recognizes that
identification of "substantial harm
facilities" will continue to occur as new
facilities come on-line and existing
facilities newly meet the criteria for
substantial harm as a result of a change
in operations or site characteristics. EPA
is requiring in § 112.20(a)(2)(ii) and (iii)
that: (1) newly constructed facilities
(facilities that come into existence after
the effective date of the final rule) that
meet the applicability criteria must
prepare and submit a response plan in
accordance with the final rule prior to
the start of operations (adjustments to
the response plan to reflect changes that
occur at the facility during the start-up
phase of operations must be submitted
to the Regional Administrator after an
operational trial period of 60 days); and
(2) existing facilities that become subject
to the response plan requirements as the
result of a planned change in operations
(after the effective date of the final rule)
must prepare and submit a response
plan in accordance with the final rule
prior to the implementation of changes
at the facility. RAs will review plans
submitted for such newly designated
"substantial harm facilities" to
determine if a facility is a "significant
and substantial harm facility." RAs will
review for approval plans for
"significant and substantial harm
facilities" within a reasonable time and
then place the plans on the Region's
review cycle as discussed previously.
An existing facility, however, may
become subject to the response plan
requirements through one or a
combination of unplanned events, such
as a reportable spill or the identification
of fish and wildlife and sensitive
environments adjacent to the site during
the ACP refinement process. In the
event of such an unplanned change, the
owner or operator is required to prepare
and submit a response plan to the RA
within six months of when the change
occurs (See § 112.20(a)(2)(iv).) The
Agency believes that allowing six
months from when a change caused by
an unplanned event occurs to prepare
and submit a plan is reasonable.
Under § 112.20(g)(2), facility owners
or operators are required to review
appropriate sections of the NCP and
ACP annually and revise their response
plans accordingly. In addition,
§ 112.20(d)(l) requires the owner or
operator of a facility for which a
response plan is required to resubmit
relevant portions of the plan within 60
days of each material change in the
plan. For "substantial harm facilities,"
Regions will review such changes to
determine if the facility should be
reclassified as a "significant and
substantial harm facility." For
"significant and substantial harm
facilities," the Regions will review such
changes for approval as described in
§ 112,20(d)(4).
B. Response to Major Issues Raised by
Commenters
A total of 1282 comments were
received on the proposed rule. The
majority of these comments were one-
page form letters from members of, and
on behalf of, numerous environmental
professional groups and addressed the
issue of whether certification of
response plans by an independent party
was appropriate. A document entitled
"Response to Comments Document for
the Facility Response Plan Rulemaking"
that summarizes and provides responses
to all comments received on the
proposed rule is available in the public
docket. The major issues raised by the
commenters and the Agency's responses
are described in this section.
Option One vs. Option Two
In the preamble to the proposed rule,
the Agency discussed two options for
identifying facilities subject to facility
response plan requirements under this
rulemaking. In the proposed rule, EPA
proposed the first option, but requested
comment on the merits of both options.
The two alternatives are outlined briefly
in the next paragraph.
Under Option 1, EPA proposed to
require under CWA sections 311(j)(5)
and 311(j)(l)(C) that: (1) the owner or
operator of a "substantial harm facility"
prepare and submit a response plan, and
(2) "significant and substantial harm
facilities" have their plans promptly
reviewed for approval by EPA. Criteria
provided in § 112.20(f)(l) coupled with
RA determinations would be used to
identify "substantial harm facilities"
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and a subset of "significant and
substantial harm facilities
EPA's second approach was also
based on the authority contained in
CWA sections 311(j) (1) and (5). Under
Option 2, all facilities regulated under
40 CFR part 112 would be required to
prepare facility response plans; certain
small, low-risk facilities with secondary
containment structures would be
allowed to prepare an abridged version
of a response plan. Only "substantial
harm facilities" would only be required
to submit plans to EPA. "Significant and
substantial harm facilities" would
submit plans to EPA and have their
plans reviewed and approved.
The Agency received numerous
comments on the two options, with the
vast majority favoring Option 1.
Supporters of Option 1 stated that
Option 2 would create too great a
burden on facilities and EPA, in relation
to the relatively low environmental
benefits derived from planning.
Commenters representing small, lower-
risk facilities expressed concern that
being required to prepare response
plans would impose unnecessary
financial burdens. In addition,
commenters felt that 40 CFR part 112
was sufficiently protective of the
environment for non-substantial-harm
facilities. A small number of
commenters representing both industry
and environmental groups supported
Option 2, stating that it most closely
reflected the mandates of the OPA and
that it would provide a more
comprehensive emergency response
planning network.
In today's final rule, EPA finalizes
Option 1. The Agency believes that this
option targets high-risk facilities in a
cost effective manner that is
nevertheless protective of the
environment. Owners or operators of
facilities covered by the Oil Pollution
Prevention regulation must evaluate
their facilities against a series of
substantial harm screening criteria.
Although EPA encourages all oil storage
facilities under its jurisdiction to
prepare oil spill response plans, owners
or operators of those facilities not
meeting the criteria provided in
§ 112.20(f)(l) are only required to
prepare a facility response plan if the
RA independently determines that the
facility is a "substantial harm facility."
i -cause of the size and diversity of the
regulated community under EPA's
jurisdiction pursuant to the OPA and
the tight timeframe established by the
OPA, EPA is implementing a substantial
harm selection process with two
components (i.e., published criteria and
an RA determination). The published
criteria are designed to capture the vast
majority of "substantial harm facilities."
To simplify the process, EPA developed
specific selection criteria to be applied
in a consistent manner by all owners
and operators. Nevertheless, EPA
believes that there are facilities that do
not meet the criteria in § 112.20(f)(l),
but may, due to facility-specific or
location-specific circumstances, pose
sufficient risk to the environment to be
designated as "substantial harm
facilities." Accordingly, RAs, as the
designated representatives of EPA, are
granted authority to designate a facility
on a case-by-case basis as a "substantial
harm facility."
Substantial Harm Criteria
As required by § 112.20(f)(l) and the
flowchart in Appendix C to 40 CFR part
112, a facility is a "substantial harm
facility" if either of the following two
criteria are met:
(1) The facility transfers oil over water
to or from vessels and has a total oil
storage capacity greater than or equal to
42,000 gallons; or .
(2) The facility's total oil storage
capacity is greater than or equal to 1
million gallons, and one or more of the
following is true:
• The facility does not have
secondary containment for each
aboveground storage area sufficiently
large to contain the capacity of the
largest aboveground storage tank within
each storage area plus sufficient
freeboard to allow for precipitation;
• The facility is located at a distance
(as calculated using the appropriate
formula in Appendix C or a comparable
formula) such that a discharge from the
facility could cause injury to fish and
wildlife and sensitive environments;
• The facility is located at a distance
(as calculated using the appropriate
formula in Appendix C or a comparable
formula) such that a discharge from the
facility would shut down operations at
a public drinking water intake; or
• The facility has had a reportable
spill greater than or equal to 10,000
gallons within the last 5 years.
A number of commenters suggested
that EPA is attempting to regulate
transportation-related facilities that are
covered by USCG regulations. Several of
these commenters stated that EPA's
approach would result in redundant and
conflicting regulations for such
facilities.
The Agency considered these
comments and decided to retain the
over-water transfers criterion
(§ 112.20(f)(l)(i)). The criterion was
designed to identify as posing a risk of
substantial harm to the environment
those facilities that store oil above a
certain quantity located in close
proximity to navigable waters. EPA is
not attempting to regulate marine
transfer operations. In 40 CFR 112.1,
EPA clearly explains which facilities
fall under its authority. The section
states that EPA jurisdiction does not
extend to transportation-related
facilities. The Agency has the authority,
however, to regulate the non-
transportation-related Storage
component of facilities that may have a
marine transfer component.
Several commenters indicated that the
42,000 gallon cutoff for transfers over-
water is appropriate. Other commenters
questioned the potential of a 42,000
gallon spill to cause substantial harm to
the environment.
EPA has decided that non-
transportation-related storage
components of complexes should be
regulated at a lower capacity threshold
than storage facilities without an over-
water transfer component (i.e., 42,000
gallons versus 1 million gallons),
because the location of over-water
transfer facilities poses a higher risk to
navigable waters. Spills at such facilities
are more likely to reach navigable
waters than spills from facilities located
further from navigable waters. Also, it is
likely that a higher percentage of the
total amount released will reach
navigable waters at a facility directly
adjacent to navigable waters than at a
facility located further away. Data
indicate that for oil discharges above
42,000 gallons, the number of incidents
with reported effects including fish-kills,
wildlife damage, or fire is greater than
for oil discharges below 42,000 gallons.
At the 0.01 level of significance, the size
of the release is related to the
occurrence of reported effects. For
certain release size thresholds other
than 42,000 gallons, however, a similar
statistically significant relationship
could not be shown.2
EPA requested comment in the
proposed rule on the appropriateness of
the use of a proposed 1 million gallon
or a 200,000 gallon size cut-off for total
storage capacity to determine a
threshold for substantial harm. (See
The Agency received numerous
comments suggesting that the 1 million
gallon cutoff was appropriate. A smaller
number of commenters including other
Federal government agencies and
environmental associations, indicated
that the size cut-off for substantial harm
should be 200,000 gallons or lower.
1 Study prepared for EPA titled "Analysis of Data
Relating to Facility Size. Oil Discharges, and
Environmental Effects." Available for inspection in
the Superhind Docket, Room M2615. at the U.S.
Environmental Protection Agency. 401 M Street.
SW., Washington, DC 20460.
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Advocates for a lower cut-off contended
that small facilities with a high
throughput may have a higher potential
to cause substantial harm than large
facilities with low throughput. These
commenters also suggested that the OPA
Conference Report indicated that the
requirement to prepare and submit
response plans should be applied
broadly, because even small discharges
from an onshore facility could result in
substantial harm under certain
circumstances.
Although EPA recognizes that large
storage capacity is a substantial harm
risk factor, the Agency also recognizes
that the intent of OPA was not to
exclude certain smaller facilities, such
as those near public drinking water
intakes or fish and wildlife and
sensitive environments, from
consideration as having the potential to
cause substantial harm. EPA intends
that the RA determination process be
used to identify additional high-risk
facilities that do not meet the criteria in
§ 112.20(f)(l) although nonetheless pose
substantial harm.
The Agency decided to identify
certain high-risk facilities that pose a
threat of substantial harm because of
their size in combination with facility-
specific characteristics (i.e., secondary
containment and spill history) or
location-specific (i.e., proximity to fish
and wildlife and sensitive environments
and public drinking water intakes). The
largest oil spills, which could pose the
greatest risk to the environment, occur
at large facilities. Data on the effects of
spills from aboveground storage tanks
indicate that when larger quantities of
oil are discharged, fish and wildlife
damage, off-site soil pollution, and
property damage are greater than for
smaller discharges.3 The Agency
believes that regulatory coverage and
protection of the environment will be
ensured, since facilities that are smaller
than 1 million gallons, but that could
cause substantial harm because of their
proximity to navigable waters or fish
and wildlife and sensitive
environments, could be selected under
the RA's authority to require a facility
to submit a response plan, regardless of
whether the facility meets the criteria in
§ 112.20(f)(l) (although the RA
considers these factors as part of the
determination).
In addition, several commenters
suggested that the average oil storage
inventory of a facility should be used
instead of capacity to determine the oil
storage threshold for substantial harm.
Commenters indicated that the normal
amount of oil stored at a facility is often
'Ibid.
less than the total capacity, because
facilities are overdesigned to meet
seasonal demands. Commenters also
contended that tanks dedicated for
standby service and tanks not in service
should not be counted in determining a
facility's capacity, and that certification
methods could be employed to ensure
that excess capacity is not being used.
In today's final rule, EPA retains
capacity rather than inventory as the
basis for assessing risk to the
environment. The decision was based
largely on the fact that substantial harm
determinations using inventory would
be difficult or impossible to enforce and
might not accurately reflect the true
worst case for the facility. EPA would be
unable to inspect facilities often enough
to ensure that their inventory is actually
below the substantial harm threshold.
Moreover, owners or operators would
likely find it difficult to constantly track
inventory to ensure that changes in
inventory did not trigger additional
regulatory requirements and at some
time the tank could be filled to capacity.
In addition, there is a need to maintain
consistency in the Oil Pollution
Prevention regulation, and the original
regulation uses storage capacity for
threshold determinations instead of
using inventory. However, EPA has
proposed in a separate rulemaking
published on October 22,1991 (58 FR
54612), to allow owners or operators to
exclude permanently closed tanks (as
defined in § 112.2 of the proposed rule
published on October 22,1991) from the
total capacity of the facility for the
purposes of the Oil Pollution Prevention
regulation. If these changes are
finalized, permanently closed tanks
would not have to be considered in the
substantial harm evaluation.
Several commenters argued that the
10,000 gallon reportable spill criterion
(proposed at § 112.20(f)(ii)(D), 58 FR
8849) should be modified to allow a
facility owner the opportunity to
petition the RA for exclusion based
upon modifications to the facility or to
its spill prevention procedures made
after the release.
EPA agrees that continuous
improvements in spill prevention
procedures are important and that
owners and operators that have
significantly upgraded their facility
within five years of a spill greater than
or equal to 10,000 gallons (by replacing
tanks or adding secondary containment,
for example) should be allowed to
request exclusion from the substantial
harm category.
The Agency includes a two-stage
appeals process in § 112.20(i) of today's
rule. The appeals process allows an
owner or operator to petition the RA to
remove a facility from the category of
substantial harm because of
improvements at the facility that lead to
greatly reduced risk to the environment.
The appeals process is discussed in
greater detail in the "Appeals Process"
section of this preamble. Of course, even
if a facility obtains relief through
appeal, the RA still retains authority to
require a Plan, under § 112.20(b) should
the circumstances on which the relief
was granted change in the future.
In the proposed rule, EPA provided
formulas in Appendix C for owners or
operators to determine appropriate
distances to fish and wildlife and
sensitive environments and drinking
water intakes for purposes of evaluating
the substantial harm criterion. EPA also
proposed to allow the use of an
alternative formula acceptable to the
RA. EPA solicited data and comments
on the appropriateness of the distance
calculations in Appendix C for inland
areas.
Several commenters supported the
overall approach of using a calculated
distance to define proximity. However.
numerous commenters indicated that
the formulas used to calculate the
planning distances in Appendix C are
too complex, cumbersome, or
impracticable for general use.
The Agency does not agree. The
planning distance formulas proposed in
Appendix C are appropriate based on an
evaluation of engineering principles and
input from an interagency technical
workgroup that included representatives
from the Natural Resource Trustee
agencies, as well the agencies
responsible for measuring river height
and flow. The Agency's primary goal
was to provide a series of formulas that
were technically supportable. EPA has
provided the least complex formulas
that are still technically supportable..
Moreover, EPA allows owners or
operators to use comparable formulas to
calculate appropriate distances
provided that the formula is acceptable
to the RA and they send supporting
documentation on the reliability and
analytical soundness of the formulas
(see§112.20(a)(3)).
Several commenters noted that the
formulas proposed in Appendix C did
not account for tides, currents, wind
direction, and other weather-dependent
flow rates. One commenter
recommended that EPA use the USCG
planning distances for discharges into
tidal waters. To more accurately account
for the range of movement of spilled oil
in certain aquatic environments, EPA
includes in Appendix C of today's final
rule a section on oil transport in tidal
influence areas as a separate type of
calculation. EPA adopts the tidal
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influence area criteria from the USCG's
interim final rule for Marine
Transportation-Related (MTR) Facilities
(58 FR 7358, February 5,1993).
Some commenters stated that the
proposed response times in Table 3 of
Appendix C for calculating the planning
distances were inappropriate and would
overpredict the area of the spill. Some
commenters noted that actual response
times could be considerably faster than
those proposed because some facilities
have their own response resources.
Conversely, one commenter expressed
concern that the response times are too
short and do not account for adverse
weather conditions or phased planning
required for certain discharges. Other
commenters noted that the proposed
response times in Table 3 of Appendix
C were inconsistent with the response
times listed in Appendix F of the
proposed rule for determining response
resources for a worst case discharge and
should be changed. No data were
provided by commenters to support
alternative response times for use in the
distance calculations.
In today's rule, to clarify the
information presented, EPA reformats
Table 3 of Appendix C. EPA used the
same geographic areas for facility
location (i.e., higher volume port area,
Great Lakes, and all other river and
canal, inland, and nearshore areas) as
those specified in the equipment
appendix (Appendix E) to maintain
consistency between different sections
of the regulation and because the facility
location directly impacts the arrival
time of response resources.
The specified time intervals in Table
3 of Appendix C are to be used only to
aid in the determination of whether a
facility is a "substantial harm facility."
Once it is determined that a plan must
be developed for the facility, the owner
or operator would consult Appendix E
to determine appropriate resource levels
and response times. The specified time
intervals in Table 3 of Appendix C are
less than the Tier 1 response times
specified in Appendix E for the
corresponding operating areas, because
EPA assumes that, for purposes of
determining whether a facility is a
"substantial harm facility," no response
planning has been done. This
conservative assumption is only used
for screening purposes and is not used
for other aspects of the rulemaking.
Owners or operators are reminded that
EPA has included at § 112.20(i) of the
final rule an appeals process for, among
other things, the determination of
substantial harm.
EPA believes that these times
accurately estimate the times needed to
respond to spills from EPA-regulated
facilities that have not pre-planned their
response to spills (i.e., a facility owner
or operator who has not pre-planned
response activities would be able to
contact a local spill response company,
coordinate response actions, and deploy
resources within 15 or 27 hours
following discovery of the spill.
depending on facility location), hi
general, facilities located in higher
volume port areas have a higher density
of response contractors and resources
nearby. Therefore, EPA estimated a
shorter time interval for these facilities
compared with facilities located in all
other operating areas.
One commenter noted an inaccuracy
in the formula proposed in Attachment
C-III of Appendix C of the proposed
rule. Oil Transport on Still Water,
(which converts an oil discharge volume
into a surface area), when the volume of
the spilled oil is converted to units
other than cubic meters. In Attachment
C-III of Appendix C of today's rule, EPA
incorporates a conversion factor into the
formula to address the inaccuracy by
allowing facility owners and operators
to directly input the worst case
discharge volume in gallons and to
obtain a spill surface area in square feet.
EPA requested comment on the
appropriateness of using specified
distances to environmentally sensitive
areas (fish and wildlife and sensitive
environments) in the substantial harm
criterion. Many commenters suggested
that EPA allow a facility owner or
operator to use alternative methods or
set distances to determine the
appropriate distance from the facility for
screening purposes. In today's rule, the
Agency allows the use of formulas
comparable to the Appendix C formula
to calculate the planning distance to fish
and wildlife and sensitive environments
or public drinking water intakes (see
§ 112.20(a)(3) and § 112.20(f)(i) (B) and
(C)), provided that facility owners and
operators attach documentation to the
response plan cover sheet on the
reliability and analytical soundness of
the comparable formula. EPA believes
that calculating a planning distance
using the formulas in Appendix C is
more appropriate than using set
distances to fish and wildlife and
sensitive environments, because of the
wide variety of site-specific conditions
that may surround a particular facility
and the various flow characteristics of
water bodies.
In § 112.2 of the proposed rule, EPA
defined "injury" as "a measurable
adverse change, either long- or short-
term, in the chemical or physical quality
or the viability of a natural resource
resulting either directly or indirectly
from exposure to a discharge of oil, or
exposure to a product of reactions
resulting from a discharge of oil." This
definition is adopted from the Natural
Resource Damage Assessments (NRDA)
rule at 43 CFR 11.14(v) to assist facility
owners and operators and RAs to
determine whether a facility is located
at a distance from fish and wildlife and
sensitive environments such that an oil
spill will cause "injury." The Agency
requested comment on the
appropriateness of defining "injury" in
such a manner.
Several commenters stated that the
definition of "injury" was so broad that
it would include almost every facility
that stores greater than or equal to one
million gallons of oil and would result
in excessive regulation, economic
burden, and unnecessary lawsuits.
Several commenters stated that EPA
should limit the definition of "injury"
so that facility owners and operators
would only have to consider the
potential to cause substantial harm,
rather than the potential to cause any
harm. Some commenters supported
EPA's choice to incorporate a definition
of "injury" that was already
promulgated under other regulatory
programs.
The Agency carefully considered
comments on the definition of "injury"
and consulted with NOAA and other
Natural Resource Trustees agencies as to
the merits of using an alternative
definition. EPA maintains that the
definition of "injury" is appropriate to
assess substantial harm based on the
extensive experience of Natural
Resource Trustees in conducting
evaluations of oil spill impacts on
natural resources. Federal officials
authorized by the President and the
authorized representatives of Indian
tribes and State and foreign
governments act as public trustees to
recover damages to natural resources
under their trusteeship. Under the NCP,
each trustee has responsibilities for
protection of resources; mitigation and
assessment of damage; and restoration,
rehabilitation, replacement, or
acquisition of resources equivalent to
those affected. Because of the need to
maintain consistency with the NCP, the
Agency believes it is appropriate to use
the definition of injury as established by
the Natural Resource Trustees for this
rule. In the preamble to the NRDA final
rule (51 FR 27706), DOI indicates that
the injury definition does not measure
insignificant changes and that the
definition relies on changes that have
been demonstrated to adversely impact
the resources in question, or services
provided by those resources. EPA notes
that there is nothing in the definition of
"injury" that refers to the term harm (or
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34080 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
substantial harm), and that the term
"injury" is not equivalent to these
terms. The potential for a spill to cause
any injury to a fish and wildlife and
sensitive environment coupled with a
total oil storage capacity of greater than
or equal to 1 million gallons forms one
of the substantial harm criteria. The
criterion is designed as an indicator of
the potential for a discharge from a
facility to cause substantial harm to the
environment.
The Agency requested comment on
whether private drinking water supplies
should be included in the criteria for
determination of substantial harm.
Some commenters supported the same
treatment for private water intakes as for
public water supplies if the private
drinking water supplies are surface
water intakes rather than groundwater
wells. One commenter recommended
that the RA consider private drinking
water intakes in the determination of
significant and substantial harm.
Conversely, several commenters
opposed the use of proximity to private
drinking water intakes as a criterion for
the substantial harm determination
because most private drinking water
intakes use groundwater. These
commenters stated that such private
intakes would be difficult to identify
and locate. Two commenters suggested
that EPA should define public drinking
water intakes based on the definition of
"public water systems" at 40 CFR
143.2(c) which excludes private water
intakes.
EPA agrees with the commenters that
most private drinking water intakes are
difficult to identify and that most use
groundwater. In today's rule, EPA does
not include proximity to private
drinking water intakes as a criterion for
use by owners or operators to identify
whether their facility is a "substantial
harm facility." The RA, however, may
consider a facility's proximity to private
drinking water intakes in the
determination of substantial harm or
significant and substantial harm. In
Appendix C to today's rule, EPA
clarifies that public drinking water
intakes are analogous to "public water
systems" as defined at 40 CFR 143.2.
Several commenters opposed the
requirements to calculate a planning
distance to determine substantial harm
if a facility has adequate secondary
containment. Some commenters stated
that the planning distance calculations
should reflect the presence of secondary
and tertiary containment and give credit
for flow reduction measures and
inspection programs. The Conference
Report states that in defining a worst
case discharge as the largest foreseeable
discharge at a facility, Congress
intended to describe a spill that is worse
than either the largest spill to date or the
maximum probable spill for the facility
type. (Conference Report No. 101-653,
p. 147.) EPA interprets this language to
mean that facility response plans should
address cases where prevention
measures could fail. Indeed, as detailed
in the Technical Background
Document4 supporting this rulemaking,
in some cases, containment systems fail
resulting in the discharge of oil to
surface waters. Therefore, EPA
maintains that proximity to fish and
wildlife and sensitive environments and
drinking water intakes must be
considered despite the presence of
secondary containment. This is an
example of EPA's long established
policy set forth in § 112.1(d)(l)(i). that
the determination of proximity "shall be
based solely upon a consideration of the
geographical, locational aspects of the
facility (such as proximity to navigable
waters or adjoining shorelines, land
contour, drainage, etc.) and shall
exclude consideration of manmade
features such as dikes . . ." It is also
consistent with the statutory definition
of worst case discharge for vessels,
which includes the entire cargo tank
capacity, whether or not the vessel has
a double hull or other spill prevention
measures.
RA Determination
Several commenters indicated their
support for the provision in the
proposed rule that states factors that the
RA may use (§ 112.20(f)(2)) to determine
whether a facility is a "substantial harm
facility" irrespective of the substantial
harm criteria in § 112.20(f)(l). One of
these commenters suggested that this
authority provides a system of checks
and balances that should ensure that all
facilities subject to the regulation will
be required to comply. Other
commenters expressed concern that the
authority granted to the RA in
§ 112.20(b)(l) provides the RA with too
much discretion in determining whether
a facility is a "substantial harm facility."
Some of these commenters suggested
that the criteria used by the RA should
be objective and consistent with the
criteria used by owners or operators,
and expressed confusion about the RA's
authority to use "other site-specific
characteristics or environmental
factors" to select facilities. One
commenter indicated that, as proposed,
the RA would not be required to look at
4 The Technical Background Document to
Support the Implementation of the OPA Response
Plan Requirements, U.S. EPA, February 1993.
Available for inspection in the Superfund Docket.
room M2B15. at the U.S. Environmental Protection
Agency. 401 M Street. SW., Washington, DC 20460.
the relationship of the specified criteria
provided in § 112.20(f)(l) (e.g., the RA
may consider that one criterion is
enough to require a response plan to be
submitted). One commenter felt that
there is insufficient justification in the
proposed rule for allowing the RA to
select facilities that do not meet the
criteria in §112.20(0(1).
EPA recognizes that RAs possess
unique knowledge of Region-specific
considerations that may have a bearing
on whether to identify a facility as a
"substantial harm facility." This RA
authority is necessary, because the OPA
through E.0.12777 directs EPA
ultimately to determine which facilities
are "substantial harm facilities" and
"significant and substantial harm
facilities." As such, EPA retains the RA
determination component of substantial
harm selection in the final rule. In
§ 112.20(b)(l), EPA clarifies that if such
a determination is made, the Regional
Administrator shall notify the facility
owner or operator in writing and shall
provide a basis for the determination.
Further, EPA notes that an appeals
process is included to allow owners or
operators the opportunity to challenge
the RA's determination.
EPA is developing a guidance
document to assist the RA with the
identification of "substantial harm
facilities." This guidance would outline
specific screening procedures for use by
RAs and will foster consistency in the
way the substantial harm factors are
applied. Further, RAs may use
"Guidance for Facility and Vessel
Response Plans: Fish and Wildlife and
Sensitive Environments" (see Appendix
E to this part, section 10, for
availability) and information from the
ACPs, when available, to identify fish
and wildlife and sensitive environments
as part of the substantial harm
determination process.
Public Petitions
Section 112.20(f)(2)(ii) allows any
person who believes that a facility may
be a "substantial harm facility" to
provide information to the RA through
a petition for his or her use in
determining whether the facility should
be required to prepare and submit a
response plan. This petition must
include a discussion of how the
substantial harm factors in
§ 112.20(f)(2)(i) apply to the facility.
Commenters in favor of allowing the
public to have input in the
determination of whether a facility is a
"substantial harm facility" argued that
the public should play a larger role in
the selection and review process.
However, many of these commenters
argued that the proposed procedures are
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations 34081
too burdensome for petitioners and that
the facility owner or operator should
have the responsibility to provide the
necessary information. Commenters
against allowing public petitions felt
that the public petition process would
be burdensome to EPA and the
regulated community. Some
commenters argued that the public does
not have enough information to
participate in the process.
In today's final rule, EPA establishes
a process to allow the public the
opportunity to provide input on a
voluntary basis and welcomes such
involvement. The Agency has decided
to broaden the language in
§ 112.20(f)(2)(ii) from the proposed rule
to clarify that other government
agencies in addition to the public may
provide information to RAs for the
determination of substantial harm and
that the RA shall consider such
petitions and respond in an appropriate
amount of time. The Agency believes
that information provided by the public
and other government agencies will
assist rather than burden the RA.
However, reviewing non-transportation-
related facilities' response plans for
approval is a governmental function
delegated to EPA.
EPA wishes to clarify that it is not
necessary for petitioners to determine
quantitatively whether the facility meets
one of the specific criteria in
§ 112.20(f)(l), but rather to provide a
reasonable basis, from the factors in
§ 112.20(f)(2)(i), for asserting that the
facility may pose a risk to the
environment. A petition that fails to
document the reasons why a facility
should be classified as a "substantial
harm facility" (e.g., the facility is near
a drinking water supply or a priority
sensitive environment listed in an ACP,
the facility has a history of frequent
spills or poor maintenance, etc.) may
not be considered by the RA. However,
petitioners would not have to provide
detailed analyses and calculations.
Other avenues of participation for the
public in the response planning process
include involvement in the ACP
development process or participation in
theLEPC.
Determination of Significant and
Substantial Harm
As discussed in Section II. A of this
preamble, RAs will review submitted
plans to identify facilities that are
"significant and substantial harm
facilities" using the substantial harm
factors set out in § 112.20(f)(2), and
additional significant and substantial
harm factors in § 112.20(f)(3).
Several commenters supported the
proposed factors to determine
significant and substantial harm,
indicating that EPA's use of risk-based
screening criteria for substantial harm
and significant and substantial harm
determinations would reduce the
prospect of excessive regulation for
those facilities that do not pose a
significant risk. Others indicated that
EPA should define more clearly the
criteria that the RA would use to
determine significant and substantial
harm to help ensure consistent
application of the criteria both within
an EPA Region and across EPA Regions.
Several commenters suggested that EPA
develop a screening mechanism that
would provide the RA with some
concrete guidelines to follow but still
allow some latitude to exercise his or
her expert judgment.
EPA Headquarters has provided
written guidance 5 to Regional personnel
to assist them to determine which
facilities are "significant and substantial
harm facilities." The guidance provides
a series of screens and instructions on
how to evaluate the risk factors
included at § 112.20(11(3) of today's rule.
In general, the screens provide various
combinations of the risk factors that
indicate increased levels of risk posed
by a particular facility. For example, a
facility that has an oil storage capacity
greater than 1 million gallons and meets
more than one of the risk-based criteria
described in § 112.20(f)(l)(ii) (A)
through (D) would be a "significant and
substantial harm facility." The guidance
document will help ensure a greater
degree of consistency in Regional
determinations of "significant and
substantial harm facilities," but
preserves the RA's ability to make case-
by-case determinations based on unique
facility- or location-specific concerns.
One commenter noted that EPA and
the USCG chose different approaches for
separating "substantial harm facilities"
and "significant and substantial harm
facilities." The commenter said that
EPA's case-by-case determination of
significant and substantial harm is more
subjective than the USCG's, and has the
potential for treating facility owners
unequally.
EPA believes that its approach to
determine substantial harm and
significant and substantial harm is
consistent with the OPA and does not
diverge from the USCG's approach. The
agencies' approaches are parallel in that
each accounts for the higher risk of
harm associated with transfers of high
5 "Interim Guidance for the Determination of
Significant and Substantial Harm." U.S. EPA, June
IS, 1993. Available for inspection in the Superfund
Docket. Room M261S. at the U.S. Environmental
Protection Agency, 401 M Street. SW., Washington.
DC 20460.
volumes of oil over water (i.e., at
locations adjacent to navigable waters).
Because EPA regulates a larger and more
diverse universe of facilities than the
USCG, it would be difficult to publish
a few general criteria that include the
majority of high-risk facilities without
also including many low-risk facilities.
Therefore, as discussed previously, EPA
decided to implement a substantial
harm selection process with two
components (i.e., published criteria and
an RA determination). The OPA
Conference Report explicitly states that
significant and substantial harm criteria
should include, at a minimum, oil
storage capacity, location of fish and
wildlife and sensitive environments,
and location of potable water supplies.
(H.R. Rep. No. 101-653,101st Cong., 2d
Sess. 1991 at p. 150.) These criteria are
among the elements the RAs may
consider, as set forth in §§ 112.20(f) (1)
and (2) in making the significant and
substantial harm determination.
Further, where the Conference Report
states that the criteria should not result
in selection of facilities based solely on
the size or age of storage tanks (See H.R.
Rep. No. 101H653,101st Cong., 2d Sess.
1990 at p. 150). it implies that these may
be among the criteria. EPA does not
agree that its case-by-case approach to
identify a "significant and substantial
harm facility" is overly subjective. As
previously discussed. EPA has provided
written guidance to Regions on the
determination of significant and
substantial harm to promote a more
objective and consistent approach
across all EPA Regions.
As the President's designee for
regulating non-transportation-related
onshore facilities, EPA has decided that
Region-specific and facility-specific
information is relevant in the
determination of significant and
substantial harm, because these
elements may vary materially between
Regions and facilities. For example,
some facilities may be located on karst
or unstable terrain because of the
presence of underground streams or
fault lines while other facilities are
situated on more stable terrain where
the risk of discharge may be lower.
Some commenters argued that the RA
should review and approve plans
submitted by "substantial harm
facilities." They indicated that without
such approval, these plans are likely to
vary widely in their capacity to assure
adequate response, and may even
propose inappropriate use of
dispersants or other treatment
technologies.
EPA agrees that a review of plans
from "substantial harm facilities" may
be desirable. The OPA legislative
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34082
Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
history indicates that criteria should be
developed to select for review and
approval plans for onshore facilities that
could cause both significant and
substantial harm. (See H.R. Rep. No.
101-653,101st Cong., 2d Sess. 1990 at
p. 150.) Congress expected that only
some proportion of all submitted
onshore facility response plans would
be reviewed and approved. The highest
priority for EPA's use of limited
resources must be directed to those
facilities on which Congress has
focused. The Agency has and will
continue to undertake a limited review
of all plans to identify "significant and
substantial harm facilities."
Submission and Resubmission Process
In §§ 112.20(a)(2)(ii) and (iii) of the
proposed rule, EPA. proposed that newly
constructed or modified facilities.
which become subject to the response
plan requirements, must prepare and
submit a response plan prior to the start
of operations of the new facility or
modified portions of the facility. For
unplanned changes that result in a
facility meeting the substantial harm
screening criteria, EPA proposed to
allow the facility owner or operator six
months to prepare and submit a
response plan. Several commenters
urged EPA to give owners and operators
time following completion of
construction or modification to prepare
and submit a response plan to EPA
(implying that operations should be
allowed to proceed before submission of
the response plan). Most commenters
felt that the six-month time period was
sufficient for submitting a facility
response plan after unplanned changes.
EPA does not require owners or
operators to prepare and submit a plan
before beginning or completing
construction, but prior to the handling,
storing, or transporting of oil. An owner
or operator can prepare a plan during
the construction phase, and complete
and submit it before the facility is ready
to come on line. EPA recognizes that
changes to a facility's operations are
common during the start-up phase of a
new facility or new component of a
facility. As stated in the proposed rule
preamble (58 FR 8829). adjustments to
the response plan can be made and
submitted to the Agency after an
operational trial period of 60 days. In
today's final rule, the Agency adds this
recommendation as a requirement at
§ 112.20(a)(2)(ii) and (iii)
(§ 112.20(a)(2)(i)(B) and (C) of the
proposed rule) and clarifies that
adjustments to the plan to reflect
changes that occur at the facility during
the start-up phase must be submitted
after an operational trial period of 60
days. EPA believes that this revision
will ensure that the information
contained in the plan is reflective of the
normal operating conditions at the
facility.
Section 311(j)(5)(C) of the CWA states
that facility response plans must be
updated periodically, and under section
311(j)(5)(D), EPA (as the President's
delegatee) is required to review
periodically, and, if appropriate,
approve each plan for a "significant and
substantial harm facility." In
§ 112.20(g), the proposed rule provided
that owners or operators must review
relevant portions of the NCP and
applicable ACP annually and revise the
response plan to ensure consistency
with these plans. Section 112.20(g) of
the proposed rule also proposed to
require owners or operators to update
their plans periodically when changes at
the facility warrant such updates. In
§ 112.20(c), the proposed rule stated that
the RA would review periodically
response plans for "significant and
substantial harm facilities." No other
specific time periods for plan review
were proposed, but in the preamble EPA
solicited comments on how frequently
the RA should review approved
response plans.
Several commenters suggested that
the rule should provide definite time
periods for plan review, and some
supported annual plan review by each
facility. Many commenters had an
opinion about the frequency of review
of approved plans by the RA. Some
supported a three-year time period, but
the majority preferred five years. A few
commenters expressed concern that
specific reevaluaa'on and reapproval
intervals were not part of the proposed
rule.
As described in the proposed rule, the
owner or operator of a "substantial harm
facility" must review the NCP and the
ACP annually and revise the plan, if
necessary, to be consistent with these
documents. (See § 112.20(gJ(2).) To
clarify other review requirements, EPA
has reorganized § 112.20(g) by removing
the requirement for periodic review and
update of the plan from paragraph (g)(l)
and moving it to new paragraph (g)(3).
In § 112.20(c) of the final rule. EPA
revises paragraph (c)(4) to indicate that
approved plans will be reviewed by the
RA periodically on a schedule
established by the RA provided that the
period between plan reviews does not
exceed five years. As discussed
previously, RAs may choose to stagger
such reviews to facilitate the review
process. This five-year time period is
consistent with the USCG interim final
rule for MTR facilities. (See 33 CFR part
154.) Within the five-year period, EPA
will undertake a full reevaluation of the
plan and. if necessary, require
amendments. With regard to
commenters' concerns that specific
review intervals were not identified in
the proposal, periodic review is
expressly required by OPA. and EPA
requested comment on what review
interval would be appropriate (See 58
FR 8828).
Proposed § 112.20(d) would require
owners or operators of "significant and
substantial harm facilities" to revise and
resubmit the plan for approval within
60 days of each material change at the
facility. EPA revises § 112.20(d)(l) to
indicate that owners or operators of all
facilities for which a response plan is
required ("substantial harm facilities"
and "significant and substantial harm
facilities") must revise the plan (and
resubmit relevant portions to the RA)
when there are facility changes that
materially may affect the response to a
worst case discharge. This change is
necessary to ensure that EPA receives
the necessary information to determine
if "substantial harm facilities" undergo
changes that could lead to their being
designated as "significant and
substantial harm facilities." The
requirement for the RA to review for
approval changes to plans for
"significant and substantial harm
facilities" that was proposed at
§ 112.20(d)(l) has been moved to new
§ 112.20(d)(4). Some commenters
supported the 60-day time period, some
thought it was too short, and others
thought it was too long. One commenter
pointed out that proposed § 112.20(d)(2)
implied that material changes must be
approved prior to being made. A few
commenters requested clarification on
which material changes trigger
resubmission, and two commenters
opposed resubmitting the entire plan.
rather than a plan amanHmant EPA
requested comments on the proposal in
§ 112-20(d)(2) that owners and operators
must submit changes to the emergency
notification list to the RA as these
changes occur, without resubmitting the
plan for approval Some commenters
supported the proposal and others
opposed it as an unnecessary burden.
As stated in the preamble to the
proposed rule, a material change is one
that could affect the adequacy of a
facility's response capabilities. The
material changes listed in the final rule
are not inclusive, but are similar to
those in the USCG regulations at 33 CFR
154.1065 for revisions that must be
submitted by a MTR facility for
inclusion in an existing plan or for
approval. Because of the scope of
facilities that EPA regulates, it is
difficult to provide a definitive list of all
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34083
material changes that would be
appropriate for regulated facilities under
all circumstances. EPA's intent in
including those changes listed in
§ 112.20(d)(l)(i) through (iv) is to
describe those types of changes that are
so significant in nature that they should
trigger revision of the response plan and
submission of the new information to
EPA for review.
EPA clarifies in § 112.20(d) (1) and (2)
that a change in the identity of an
OSRO(s) is a material change requiring
approval only if it results in a material
change in support capabilities.
However, a copy of any such change
must be provided to the RA. Paragraph
(d)(l)(v) specifies that any other changes
that materially affect implementation of
the response plan would trigger
submission. This requirement Allows
the RA discretion to determine on a site-
spedfic basis what changes may require
submission because they materially
affect implementation of the facility's
response plan. The purpose of proposed
§ 112.20(d)(2) was to clarify that certain
changes, such as revised names or
telephone numbers, do not require RA
approval but must be included in
updating the plan. To avoid confusion,
the word "prior" has been removed in.
the final rule. EPA does not intend
minor changes to facility operations
(e.g., small fluctuations in the number of
product transfers) or response planning
procedures (e.g., changes in the internal
alerting procedures) to trigger
submission.
The 60-day time period for submitting
revised portions of the plan as a result
of a material change is retained in the
final rule. EPA believes the 60-day time
period is reasonable and is consistent
with the intent of the OPA. while giving
facility owners or operators flexibility to
comply with the response plan
requirements in a timely manner.
Furthermore, to ease the burden on
facility owners or operators, EPA revise*
§ 112.20(d)(l) in the final rule to
indicate that the owner or operator must
submit only relevant portions of the
plan (i.e., those portions that were
revised to reflect the material change)
and not the entire response plan. This
change will facilitate the process to
revise and submit required information
within 60 days of the change. RAs will
review submitted information for
approval and notify owners or operators
within a reasonable time if the plan
amendments are unacceptable.
Appeals Process
In the proposed rule, the Agency
requested comment on allowing the
owner or operator to participate in and
appeal the RA's determination of
substantial harm and significant and
substantial harm, and the disapproval of
a facility response plan.
Several conunenters were concerned
that lack of an appeals process would
deprive facility owners or operators of
their due process. Many conunenters
supported a formal appeals process,
while others stated that an exchange of
information before an appeal would
assist the RA in making a final
determination. Others preferred a
combined appeals process, with the first
stage of an appeal involving an informal
exchange of information followed, if
necessary, by a formal appeals process
(such as described in $ 112.4(f)) to
ensure due process. Several conunenters
requested a process by which a facility
could be removed from the category of
substantial harm or significant and
substantial harm because of
improvements at the facility that lead to
reduced risk to the environment.
EPA recognizes the importance of
allowing facility owner or operators to
present relevant information, and
therefore includes in $ 112.20(1) of
today's final rule a two-part appeals
process. The first stage allows a facility
owner or operator to submit to the RA
a request for reconsideration that
includes rmaHnn «n<4 data tO
support the request The RA would
evaluate the submitted information and
reach a decision on the facility's risk
''Imsiflcatipn or *h«t status of pi""
approval (including whether changes to
a facility's worst case discharge
planning volume are necessary for
approval) as rapidly as possible. EPA
expects that the request for
reconsideration process will be the
primary «™»*^""«<"" to address disputes.
over EPA decisions. However, a follow-
up process will also be available for
appeal of the RA's determination to the
Administrator of EPA "«'"g procedures
similar to those in § 112.4(f).
The appeals processes described in
the preceding paragraph an also
available to owners or operators of
facilities that have bean classified as
substantial harm or significant and
harm for some time and who
believe that, because of an unplanned
event (e.g., a significant change to the
ACP's list of protection priorities) or
improvements at the facility (e.g.,
construction of adequate secondary
containment or an improved spill
history), the facility now poses a lower
risk of harm to the environment.
Certification of Non-Substantial Harm
EPA proposed in § 112.20(e) to
require that owners or operators of those
regulated facilities not submitting
response plans complete and
at the facility, with the SPCC Plan, a
certification form that indicates that the
facility was determined by the owner or
operator not to be a "substantial harm
facility" as indicated by the flowchart
contained in Appendix C.
Several conunenters supported EPA's
proposal to allow facilities to self-
certify when they do not meet the
criteria for substantial harm and agreed
that submission of the form to EPA was
unnecessary. However, other
conunenters were concerned that there
is no outside review or verification of a
facility owner's or operator's evaluation
of the substantial harm criteria. Those
conunenters suggested that the rule be
amended to require officials from EPA
or some other agency (e.g.. the State
water pollution control agency, the
SERC, the LEPCs, or the natural
resource management agencies) review
determinations and calculations made
by facility owners or operators who
have not submitted facility response
plans. Others requested that EPA
provide more flffftiirtar""'< to ensure that
certification is done properly (e.g., a
hotline or guidance manual). Several
conunenters indicated that completing
the form was burdensome, especially to
small facilities, and questioned the
benefits Of completing and maintaining
the form.
Today. EPA finalizes at § 112.20(e) the
requirement to complete and maintain a
certification form as it was proposed in
the proposed rule. EPA maintains that it
is not necessary to submit the form to
the RA or other government officials.
EPA believes that the certification form
does not involve a major effort to
complete and has value as an
enforcement tool and as a record of
awareness of response planning
requirements. Facility owners or
operators can. if necessary, consult with
appropriate Regional personnel or the
SPCC Information Line (202-260-2342)
for additional information on evaluating
the criteria in § 112.20(0(1) and
completing accompanying certification
form. ,
Agency agrees that verification of a
facility's determination may sometimes
be appropriate. EPA anticipates that
during facility inspections, Regional
personnel will review the certification
form and other information for facilities
without a response plan.
Model Response Plan
Today, EPA finalizes the model
response plan in Appendix F (which
has been relabeled from the proposed
rule where it was called Appendix G)
with a series of minor changes. These
changes an to clarify certain provisions,
improve the organization of the model
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34084 Federal Register / Vol. 59, No. 126 / Friday. July 1. 1994 / Rules and Regulations
plan, and ensure greater consistency
with the response plan rules of other
Federal agencies.
In the proposed rule, EPA proposed
that owners or operators identify and
describe the duties of the facility's
"emergency response coordinator" in
the facility response plan. This person
was to be the "qualified individual"
required by section 311(j) of the CWA,
and would have full authority,
including contracting authority, to
implement removal actions. Proposed
§ 112.20(h)(3)(ix) set out the duties of
the emergency response coordinator.
The USCG's interim final rule (58 FR
7330, February 5,1993) requires the
owner or operator to name a "qualified
individual" who has the duties of EPA's
"emergency response coordinator."
Several commenters suggested EPA and
the USCG adopt uniform terms in their
final rules for identifying this
individual. One commenter specifically
suggested that EPA replace "emergency
response coordinator" with the USCG's
term, "qualified individual."
EPA agrees, and has changed the term
"emergency response coordinator"
wherever it appears in today's rule to
"qualified individual." Although EPA is
not amending the necessary
qualifications or description of duties
for the qualified individual, the Agency
stresses that the qualified individual
should be able to respond immediately
(i.e.. within 2 hours) to a spill at the
facility.
In section 1.1 of Appendix G of the
proposed rule (Appendix F in the final
rule), the Agency indicated the
Emergency Response Action Plan
(ERAP) shall include a description of
immediate actions, and referenced
section 1.7 of the model plan. Several
commenters requested clarification on
what should be described in this
section. To clarify what constitutes a
description of immediate actions, EPA
has changed the reference for immediate
actions to section 1.7.1, which focuses
on the implementation of response
actions. For the purpose of the ERAP,
immediate actions include, at a
minimum! (1) Stopping the flow of
spilled material (e.g., securing pumps,
closing valves); (2) warning personnel;
(3) shutting off ignition sources (e.g..
motors, electrical circuits, open flames);
(4) initiating containment; (5) notifying
the National Response Center; and (6)
notifying appropriate State and local
officials. A sample form for describing
immediate actions in the plan is also
included in Appendix F.
In § 112.20(h)(3)(vii) of the proposed
rule, EPA proposed to require facility
owners or operators to include plans for
evacuation of facilities and surrounding
communities to ensure the safety of
individuals that are at high risk in the
event of a spill or other release (this
information was also to be included in
the emergency response action plan).
Several commenters stated that
requiring facilities to assume primary
responsibility for the development of
evacuation plans for the surrounding
community is unreasonable. These
commenters stated that Federal, State,
and local agencies, which have
expertise in emergency evacuation, are
responsible for the preparation and
implementation of community
evacuation plans.
EPA does not intend for facilities to
develop community evacuation plans,
but any plans affecting the area
surrounding the facility must be
referenced in the response plan.
Sections 112.20 (h)(l)(vi) and (h)(3)(vii)
are revised to clarify the requirement to
reference community evacuation plans.
Facility owners or operators should
contact the Fire Department and LEPC
to assure coordination with existing
community evacuation plans.
In section 1.4.3 of proposed Appendix
G (Appendix F in this final rule), EPA
recommended that facility owners or
operators complete a quantitative
analysis of spill potential to aid in
developing discharge scenarios and
response techniques, and consider
factors such as tank age, spill history,
horizontal range of a potential spill, and
vulnerability to natural disasters.
Several commenters stated that the
analysis was unnecessary and
burdensome, and requested guidance
about the level of effort the Agency
expects to be expended to analyze a
facility's spill potential (e.g., tank by
tank evaluation, general site study).
In response to commenters' concerns,
EPA has reworded section 1.4.3 of the
appendix by deleting the word
"quantitative" from the description of
the spill probability analysis. This
should decrease the burden on the
regulated community by giving facility
owners and operators the flexibility to
determine what factors to consider and
allowing them to perform a more
general analysis, including quantitative
and/or qualitative factors, using the
information in section 1.4.3 of the
model plan as a guide.
hi section 1.8 of Appendix G of the
proposed rule, EPA proposed to require
facilities tO maintain training and
meeting logs in the response plan to aid
facility owners, operators, and
employees in spill prevention
awareness and response requirements.
Several commenters stated that
including logs within the response plan
would detract from their effectiveness.
In response to these commenters'
concerns, the Agency indicates in
§ 112.20(h)(8)(iv) and in Appendix F of
the final rule that logs may be included
in the facility response plan or kept as
an annex to the plan.
To facilitate the review of response
plans for complexes, EPA requires in
today's final rule that the owner or
operator of a complex identify, on the
facility diagram submitted with the
response plan, the interface between
portions of the complex that are
regulated by different agencies. (See
section 1.9 of Appendix F.) EPA
requires this interface to be consistent
with the USCG's interim final rule for
MTR facilities.
Facility Response Plan Certification
hi Section ni.G of the preamble to the
proposed rule, EPA requested comment
on a requirement for certification by a
Registered Professional Engineer (PE)
for certain portions of the response plan.
such as determination of worst case
discharge. EPA also solicited comment
on which professions may be suitable to
evaluate and certify the contents of the
response plan if EPA determines a
certification requirement is appropriate.
In particular, the Agency requested
comment on the suitability of Certified
Hazardous Materials Managers to
perform the plan certification function.
The Agency received many comments
on the issue of certification of response
plans, hi general, commenters expressed
support for the rulemaking effort and
the certification provision, and sought
EPA's consideration on the suitability of
different professions to review and
approve response plans. Among the
remaining commenters (those not
affiliated with an environmental
professional organization), almost two-
thirds felt that certification was
unnecessary and cited cost, PE's
unfamiliar*ty with the facility, and EPA
review as the major reasons for their
opposition. Some commenters indicated
that, at most, certification should be
limited to construction or structural
aspects of the facility described in the
response plan, because oil spill
response training and knowledge is not
widespread among many environmental
professionals. Others said they would
favor certification only if an in-house
employee could perform the function. In
addition, many commenters who
supported the certification provision
requested that EPA develop uniform
standards for certifying, ranking, and
approving the use of different types of
environmental professionals.
The Agency considered these
comments and has decided not to
require plan certification by an outside
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34085
professional in the final rule. Facility
response plans from "significant and
substantial harm facilities" are already
subject to review and approval by EPA.
In addition, facility owners and
operators are required to certify (on the
cover sheet in Appendix F) that the
information contained in the plan is
accurate. EPA believes that this
certification will be sufficient to ensure
accurate and comprehensive
implementation of the response plan
requirements and that additional
certification would be unnecessary and
burdensome to the regulated
community. This approach is consistent
with the approaches taken by RSPA and
the USCG in implementing facility
response plan requirements.
Contract or Other Approved Means
In § 112.2 of the proposed rule. EPA
defined "contracts or other approved
means" to include written contractual
agreements with an OSRO(s). written
certifications, active membership in an
OSRO, and other specific arrangements
approved by the RA. EPA's intent in
including the fourth option was to allow
the F discretion to accept alternate
arrangements not covered by the first
three mechanisms that would also
satisfy the OPA requirement to ensure
the availability of private personnel and
equipment necessary to respond, to the
-naximum extent practicable, to a worst
ase discharge.
The comments addressing this issue
were mixed. Commenters, in general,
requested that EPA's definition more
closely mirror the definition used in die
USCG's interim final rule for MTR
facilities. (See 33 CFR 154.1028.) Some
commentera requested that EPA adopt,
in addition to the proposed language,
several additional methods that the
USCG included in its definition. One
method provides an alternative for us*
by all MTR facilities to ensure the
availability of response resources. The
method requires a document that
identifies the resources of the OSRCHs)
capable of being provided within
stipulated response times in the specific
geographic area; includes the parties'
acknowledgement that the OSRO(s) will
mmTnit the resouroBs in the event of a
required response; allows the USCG to
verify the availability of documented
resources; and is referenced in the
response plan. Another USCG method,
acceptable for "substantial harm
facilities" and MTR facilities that
handle, store, or transport Group 5
persistent oils and non-petroleum oils,
permits the identification of an OSRO(s)
and resources willing to respond within
stipulated response times in the
specified geographic area. This method
does not require a contract between the
facility and OSRO(s), but requires the
OSRO(s) to supply a letter to die facility
stating its willingness to respond to a
discharge at the facility and that it has
the specified resources. Commentera
explained their preference for these two
methods to ensure consistency with the
USCG's interim final rule for MTR
facilities, avoid different procedures for
complexes, address small contractor
financial concerns, and reduce
confusion among the regulatory
agencies reviewing plans to ensure
response contractor capabilities.
Several commentera supported EPA's
proposed definition citing its greater
simplicity and flexibility; however,
these commentera stressed that the RA
be granted broad flexibility in exercising
bis or her authority to determine
appropriate "other approved means."
In today's final rule, the definition of
"contract or other approved means" has
been revised to replace the term
"response contractor" with the. term "oil
spill removal organization(s)" to match
the USCG's language. For clarification.
EPA also adds a definition for "oil spill
removal organization" in § 112.2 of
today's rule. The definition is similar to
that used in the USCG's interim final
rule for MTR facilities. An OSRO is
defined as an entity that provides
response resources, and includes any
for-profit or not-for-profit contractor,
cooperative, or in-house response
resources that have been established in
a geographic area to provide required
response resources. These changes do
not alter the meaning of the term
"contract or other approved means" as
originally proposed. The EPA definition
includes four means that owners or
operators can use to ensure the
availability of required response
resources. The first is a written contract
with an OSRO(s) (Le., a response
contractor). The second is for the facility
owner or operator to provide and
operate facility-owned equipment The
third is active membership in an
OSRO(s) (Le., a local or Regional oil
spill response cooperative).
Finally, EPA's fourth means baa the
flexibility inherent in the USCG's
previously referenced methods in that it
allows all regulated facilities to propose
other means of demonstrating adequate
response capability, subject to approval
by the appropriate RA. Among the kinds
of instruments which an RA might find
a sufficient means of ensuring
availability of required resources is a
document that incorporates the
elements set out in the USCG's interim
final rule for MTR facilities at 33 CFR
154.1028(a)(4) (i) through (iii). For
example, an RA might find a document
sufficient to ensure availability if it
identified the response resources being
provided by the OSRO(s); set out the
parties' acknowledgement that the
OSRO(s) intends to commit the
resources in the event of a response;
permitted EPA to verify the availability
of resources through tests, inspection.
and drills/exercises; and is referenced in
the response plan.
Maximum Extent Practicable
The OPA requires that a facility
response plan be developed to respond
to the maximum extent practicable, to a
worst case discharge of oil. The
Conference Report states that to
determine maximum extent practicable,
the President should "consider the
technological limitations associated
with oil spill removal, and the practical
and technical limits of the spill
response capabilities of individual
owners and operators." (H.R. Rep. No.
101-653,101st Cong., 2d Seas. 1991 at
p. 150.)
In $ 112.2 of the proposed rule. EPA
proposed to define "maximum extent
practicable" as "the limitations used to
determine oil spill planning resources
and response times for on-water
recovery, shoreline protection, and
cleanup for worst case discharges from
onshore non-transportation-related
facilities in adverse weather. The
appropriate limitations for such
planning are available technology and
die practical and technical limits on an
individual facility owner or operator."
Numerous commentera objected to
EPA's definition. Many of the
commentera argued that EPA did not
consider economic limits in defining
niyiriimim extent practicable, and that
Congress intended for EPA to evaluate
costs and other economic considerations
in defining the term. Two commentere
suggested that EPA amend die term to
include the- word "economic." Another
flflmin«ntii» stated that Congress
intended for the Agency to apply the
concept based on what is
technologically and economically
feasible for an individual owner or
operator, and EPA was remiss in failing .
to «mptgn the industry in a discussion of
cost* from the industry's perspective.
This last point, they argued, was
compounding die USCG's failure to
engage the industry in a "full-blown
discussion of costs" during its
Negotiated Rulemaldng on die vessel oil
response plan rule. The commenter
argued further that in determining
"ma-iriTTiiim extent practicable" for
owners and operators. EPA was required
to factor in public response resources.
One commenter said that there are so
few oil spill response organizations
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34086 Federal Register / Vol. 59. No. 126 / Friday. July 1. 1994 / Rules and Regulations
available that the demand for their
services to meet worst case discharge
planning volumes would place an
undue financial burden on facility
owners and operators who must procure
those services. Another commenter
suggested a revision to the definition to
delegate authority to the RA to decide
what "maximum extent practicable"
means. Some said that EPA should
revise the definition to make it more
consistent with the USCG's.
EPA has factored costs into the
definition of maximum extent
practicable through procedures
contained in Appendix E to today's rule
to be used by owners or operators to
determine appropriate levels of
response resources. (As discussed later
in this preamble, the requirements in
Appendix E were prepared from a
similar set of instructions developed by
the USCG.) For example, in determining
what is "practicable," Appendix E sets
caps for the facility on the amount of
response resources for which a facility
owner or operator must contract or
ensure by other approved means. These
caps reflect the limits of currently
available technology and phvate
removal capabilities, and will be
adjusted upward to reflect anticipated
increases in private removal capabilities
through the year 2003. Appendix E also
includes tiered arrival times for
response resources so that a facility
owner or operator does not have to plan
for all required resources to be located
at the facility or in its immediate area.
With regard to the involvement of
Federal response resources in
determining maximum extent
practicable, EPA notes that a major
objective of the OPA amendments to
section 311(j)(5) of the CWA is to create
a system in which private parties supply
the bulk of response resources needed
for an oil spill response in a given area.
A worst case discharge will likely
require the use of both public and
private resources. However, section
311(j)(5)(C)(iii) states specifically that a
facility owner or operator must identify
and ensure by contract or other
approved means the availability of
private personnel and equipment
necessary to remove to the maximum
extent practicable a worst case
discharge. EPA cannot, in denning
"maximum extent practicable," abrogate
this statutory requirement.
In response to the comment that the
rule will benefit response contractors at
great cost to owners and operators, EPA
notes that the statute requires owners
and operators to ensure the availability
of private resources. In setting out four
ways to ensure availability (only one of
which is a written contractual
agreement), EPA has attempted to give
private parties the maximum possible
flexibility to construct arrangements to
meet this statutory objective.
EPA agrees with the commenters who
suggested that the definition of
maximum extent practicable be made
more consistent with the USCG's and
that the RA have the ability to evaluate
"maximum extent practicable" in a
given Region. Therefore, in § 112.2 of
the final rule, the definition of
"maximum extent practicable" is
revised to be more consistent with the
USCG's and to include a provision on
RA authority.
Other Definitional Changes
Commenters suggested that EPA and
the USCG should better coordinate
certain parts of their respective
regulations to allow complexes to follow
a single set of requirements. As
discussed in Section I.C of this
preamble, EPA and the USCG
participated in a series of cross-agency
meetings to facilitate consistency in
response plan requirements. In today's
final rule, EPA has revised the
definitions of "adverse weather" and
"contracts or other approved means" in
§ 112.2 of the rule; added a definition of
"oil spill removal organization" in
§ 112.2 of the rule; and revised "Great
Lakes," "higher volume port area," and
"inland area" in Appendix C of the rule
to more closely follow the USCG's
definitions in its interim final rule for
MTR facilities. In addition, EPA adds to
Appendix E definitions for the terms
"nearshore," "ocean," "operating area,"
and "operating environment," also
adopted from the USCG's interim final
rule for MTR facilities. These revisions
are conforming changes and are for the
most part non-substantive. A summary
of the changes follows. (The definitions
of "contracts or other approved means"
and "oil spill removal organization" are
discussed elsewhere in this preamble.)
• The definition of "adverse weather"
is revised to include references to
weather conditions such as wave height.
ice conditions, temperatures, weather-
related visibility, and currents within
the area in which the equipment is to
function. These changes result in an
expanded definition of "adverse
weather" that is as consistent as
possible with the USCG definition of the
same term, that incorporates relevant
weather conditions which contribute to
adverse weather, and that maintain* a
standard against which to evaluate
weather conditions.
• A definition of "oil spill removal
organization" (OSRO) has been added,
because this term is included in the
definition of "contract or other
approved means."
• The definition of "Great Lakes" is
revised to match the USCG's definition.
• The definition of "higher volume
port area" was revised to add several
port areas contained in the USCG's
definition.
• The definition of "inland area" was
changed to remove rivers and canals
from the water bodies that are excluded
in the USCG's definition.
• The definition of "nearshore" was
added to ensure greater consistency
with the USCG's interim final rule for
MTR facilities and facilitate the use of
Appendix E.
• The definition of "ocean" as it
applies to facilities in EPA's jurisdiction
was added to be consistent with the
USCG's interim final rule for MTR
facilities and facilitate the use of
Appendix E. "Ocean" describes the
operating environment normally found
in nearshore areas.
• The definition of "operating area"
was added to be consistent with the
USCG's interim final rule for MTR
facilities and facilitate the use of
Appendix E. "Operating area" means
the geographic location in which a
facility is handling, storing, or
transporting oil. The four operating
areas applicable to EPA's jurisdiction
are Rivers and Canals, Inland Areas,
Nearshore, and Great Lakes. The
operating area classification may not be
changed by the OSC and the boundaries
of each area are specified in their
definition.
• The definition of "operating
environment" was added to be
consistent with the USCG's interim final
rule for MTR facilities and facilitate the
use of Appendix E. "Operating
environment" means the conditions in
which the response equipment is
designed to function. The four operating
environments are Rivers and Canals.
Inland Areas, Great Lakes, and Oceans.
The OSC may reclassify a specific body
of water in the ACP to better reflect
conditions expected to be encountered
in an operating area during response
activities.6
•The condition* pment in each operating
environment (La., significant wive height and sea
sute) are listed in Table 1 of Appendix E and will
normally be condition* present in each
corresponding operating area. For example, an
owner or operator whose facility ii located on a
river (i.e.. the Riven and Canals operating ana) will
normally have to plan to respond to a spill using
equipment capable of functioning in the Rivers and
Canals operating environment, (i.e.. the conditions
described by a significant wave height of lesa than
or equal to 1 foot or a sea state of 1). The Ocean
operating environment normally describe* the
conditions present in the Nearshore operating ana
(i.e., significant wave height of leu than or equal
to 6 feet and a sea state between 3 and 4). While
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34087
These changes should eliminate
confusion on die part of owners or
operators of complexes in complying
with the response plan requirements
contained in today's rule, and facilitate
the development of a single plan with
separate sections addressing each
component of a complex regulated by
more than one agency.
Equipment Requirements
In Appendix F to the proposed rule
(Appendix E in this final rule), EPA
provided methodologies to assist facility
owners and operators in determining
the types and amounts of equipment
and response times that are needed to
respond to spills of a given size. As
discussed previously, the methodologies
were prepared from similar instructions
developed by the USCG and adapted to
reflect the type and location of facilities
that EPA regulates. The Agency
requested comment on the procedures
contained in Appendix F of the
proposed rule for the determination and
evaluation of required response
resources. In addition, EPA solicited
comment on whether the methodologies
are appropriate for planning for inland
spills by owners or operators of non-
transportation-related onshore facilities.
Numerous comments were received
on proposed Appendix F (Appendix E
in this final rule). In general,
commenters requested that EPA and the
USCG work toward facilitating a greater
degree of consistency in their respective
sets of equipment requirements. As
discussed previously, a series of cross-
agency meetings were conducted to
resolve differences between the
approaches taken by the various Federal
agencies implementing OPA
requirements.
For reasons discussed earlier in this
preamble, proposed Appendix F has
been renamed and relettered as
Appendix E of today's final rule and the
mandatory nature of certain
requirements has been clarified while.
preserving flexibility for facilities with
unique circumstances. Other changes
(including the definitional changes
already discussed) have been made to
ensure consistency with Appendix C of
the USCG's interim final rule for MTR
facilities. Consistency between the
rulemakings will help the regulated
community to develop and implement
response plans efficiently. A discussion
of the major issues raised by
the OSC can not dung* the operating area, he or
>tu m«y chang* the operating environment for t
given location ifltU determined that the new
operating environment better deeeribw the
condition* pneent at that location. Any
raclaiaification of a specific location muat be don*
in the appropriate ACP.
commenters on the equipment appendix
follows.
In the table in section 5.3 of the
appendix, tiered response times for
facilities in the Great Lakes operating
area were grouped with the response
times for the Higher Volume Port
operating areas. Commenters stated that
EPA's tiered response times should
match those used by the USCG. To
maintain consistency with the USCG,
EPA has changed the Table in section
5.3 of Appendix E. The Great Lakes
have been grouped with all other riven,
inland, and nearshore areas into Tien 1,
2, and 3 with response times of 12,36,
and 60 hours, respectively. Conforming
changes are also included in section
7.2.3 of Appendix E.
Because of the frequency of spills to
shallow waten and the need for
specialized recovery devices in these
environments. EPA adds section 5.6 to
Appendix E. This section was adopted
from the USCG's interim final rule for
MTR facilities and requires facility
owners or operators to ensure that
resources are available for shallow water
response activities. The provisions
indicate that at least 20 percent of the
on-water response equipment should be
identified for operating in water 6 feet
deep or less.
In the proposed rule. EPA proposed
that owners or operators consider four
groups of oil (the heavier oils were
included in the Group 4 oils) when
evaluating response resources.
Commenters stated that EPA should
adopt a separate category for oils with
a specific gravity greater than or equal
to 1.0 and provide appropriate-
guidelines to determine response.
resources for discharges of such oils. In
today's rule. EPA adds a category for
Group 5 oils to the definition of
"persistent oils." Group 5 oils are oils
with a specific gravity of greater than or
equal to 1.0. Because Group 5 oils sink
or remain suspended beneath the
water's surface, the resources and
techniques that needed to respond to
discharges of these types of oils an
different from those used to respond to
discharges of oils that float on water.
Response resource requirements and the
specific conditions that owners and
operators need to consider when
planning to respond to discharges of
Group 5 oils are added in section 7.6 of
Appendix E. To ensure adequate
response resource planning. EPA
clarifies in section 7.2.2 of Appendix E
that, in order to identify the required
amount of response equipment.
facilities handling, storing, or
transporting some combination of Group
1 through 4 oils (e.g., a Group 1 oil and
a Group 3 oil) must do separate
calculations using the worksheet in
Attachment E-l for each oil group on
site except for those oil groups that
constitute 10 percent or less by volume
of the total storage capacity at the
facility. Owners or operators must then
select the oil group that results in the
largest on-water recovery volume to
plan for the amount of response
resources for a wont case discharge.
(Group 5 oils should be addressed
separately using the separate procedures
to determine response resources that are
contained in Appendix E.)
In the proposed rule, EPA proposed
that ownera or operators of facilities that
handle, store, or transport, non-
petroleum oils calculate an amount of
response equipment by grouping all
non-petroleum oils as Group 4 oils and
using the associated emulsification
factors and other parameters listed in
the tables of Appendix F of the
proposed rule. Some commentera
suggested that EPA establish separate
response plan requirements ant,
selection criteria for owners or operators
of facilities that handle, store, or
transport non-petroleum oils. These
commenten argued that fundamental
rrn»m<>*«l ^mri physical differences
between petroleum and non-petroleum
oik indicate the necessity for different
response techniques and equipment.
Two of the commenters stated that
USCG regulations create separate
response plan development and
evaluation criteria for non-petroleum
oils, and one commenter recommended
that EPA adopt the USCG criteria. Some
commenten stated that for the purposes
of this rulemaking. the term "oil"
should exclude non-petroleum oils.
EPA has determined that for the
purposes of section 311(1) planning, the
OPA includes non-petroleum oils. The
Agency notes that the definition of "oil"
in the dean Water Act includes oil of
any kind, and that EPA uses this broad
definition in 40 CFR part 110, Discharge
of Oil.
EPA agrees with commenten that
certain equipment and strategies used
for petroleum oil spills may be
inappropriate for non-petroleum oil.
The Agency further agrees that making
its regulations match the USCG's as
nearly as. practicable will reduce the
prospects for confusion among facility
owners or operators—especially owners
or operaton of complexes. Reducing
confusion, in turn, increases compliance
at the least possible cost and expedites
the development of a national oil
response planning program. Therefore,
the Agency has decided to adapt for
non-transportation-related facilities
under EPA jurisdiction, the USCG
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34088 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
approach to determine response
resources for non-petroleum oils.
This adaptation means that in
calculating required response resources
for non-petroleum facilities, an owner or
operator will not use emulsification or
evaporation factors in Table 3 of
Appendix E. Rather, these facility
owners or operators must: (1) Show
procedures and strategies for responding
to the maximum extent practicable to a
worst case discharge; (2) show sources
of equipment and supplies necessary to
locate, recover, and mitigate discharges;
(3} demonstrate that the equipment
identified will work in the conditions
expected in the relevant geographic
areas, and respond within the required
times (according to Table 1 of Appendix
E); and (4) ensure the availability of
required resources by contract or other
approved means. At such time as there
are results from research on such factors
as emulsification or evaporation of non-
petroleum oil, additional changes may
be made to the rule for response
resources for response planning for non-
petroleum oil facilities. Section 7.7 has
been added to Appendix E to reflect
these changes.
Several commenters noted that the
statutory definition of oil includes a
wide variety of oils, such as petroleum
oils and non-petroleum oils that can
affect the environment by a variety of
mechanisms. Response strategies
associated with non-petroleum oils may
differ from those associated with
petroleum oils. Therefore, EPA is
providing these definitions to assist
owners or operators in distinguishing
between oil types.
• Petroleum oil means petroleum in
any form including crude oil, fuel oil,
mineral oil, sludge, oil refuse, and
refined products.
• Non-petroleum oil means oil of any
kind that is not petroleum-based. It
includes animal fat, vegetable oil, and
other non-petroleum oil.
• Animal fat means a non-petroleum
oil, fat, or grease derived from animal
oils not specifically identified
elsewhere.
• Vegetable oil means a non-
petroleum oil or fat derived from plant
seeds, nuts, kernels or fruits not
specifically identified elsewhere.
• Other non-petroleum oil means a
non-petroleum oil of any kind that is
not generally an animal fat or vegetable
oil.
Additional changes made to the
equipment requirements to match the
USCG's requirements are as follows:
• Section 2.3.1 is added. This section
indicates that the RA may require
owners or operators to identify in the
facility response plan boom that meets
the boom criteria in Table 1 of
Appendix E. If documentation that the
boom meets the Table 1 criteria is
unavailable, the RA may require that the
boom be tested in accordance with
ASTM standards.
• The on-water speed for determining
the travel time to the site of the
discharge was adjusted from 10 knots to
5 knots in section 2.6 of Appendix E.
• A provision was added to section
3.3.1 of Appendix E for complexes with
a marine transfer component to provide
an amount of boom that is equal to two
times the length of the largest vessel that
transfers oil at the facility or 1,000 feet,
whichever is greater. For complexes, the
non-transportation-related portion of the
facility response plan need not include
reference to boom length if it is already
referenced in the MTR portion of the
facility response plan.
• Language was added to section 5.4
of Appendix E to indicate that facility
owners or operators whose planning
volume exceeds the caps in Table 5 of
Appendix E must identify sources of
additional equipment; and clarify that
facility owners or operators who have
identified USCG-classified OSROs are
not required to list specific quantities of
available equipment in their response
plan.
• A provision was added to section
6.2 of Appendix E to allow the RA to
assign lower efficiency factors to
equipment when warranted.
• A provision was added to section
6.3 of Appendix E to allow the facility
owner or operator to use equivalent tests
of effective daily recovery rates when
approved by EPA.
• Section 6.4 has been renumbered to
6.3.2 and provisions added for RA
determination of acceptable alternative
efficiency factors and effective daily
recovery capacity.
• Sections 7.4, 7.6.3, and 7.7.5 are
added to clarify that owners or operators
must identify firefighting resources in
addressing response resources under the
plan.
• Criteria for containment boom in
the ocean operating environment were
added to Table 1 of Appendix E.
EPA considered whether to adopt
language in Appendix E to address the
use of dispersants and in-situ burning.
Some commenters suggested that the
Agency address these response
measures using Section 8 of the USCG's
Appendix C as a model. In today's final
rule, EPA has included some
information from Section 8 of the
USCG's Appendix C to address the use
of dispersants listed on the NCP Product
Schedule. Use of dispersants during
spill response will be based on the
provisions of the NCP 7 and applicable
ACP. The USCG permits a limited offset
against required response resources if
the use of dispersants or in-situ burning
is part of the response strategy. EPA will
not include such an offset for non-
transportation-related facilities for two
reasons. To date, the ACPs do not allow
use of dispersants in inland waters and
a facility under EPA jurisdiction in a
coastal area cannot use dispersants
given the shallow water depth.
Verification of Response Capability
In the preamble to the proposed rule,
EPA stated that it may use various
methods (including an OSRO
certification or approval program)
during the plan review process to
evaluate the availability and adequacy
of personnel and equipment to respond
to a worst case discharge, to the
maximum extent practicable. The
Agency has reviewed the USCG OSRO
classification process. This is a
voluntary process whereby OSROs can
submit a description of their resources
and capabilities to the USCG National
Strike Force Coordination Center and be
evaluated for classification according to
their capabilities. This process assists
vessel and facility owners trying to
locate appropriate resources, and
simplifies the planning process by
allowing these owners (who identify an
OSRO(s) to meet response resource
requirements) simply to list the OSRO(s)
and its classification in the response
plan, rather than list equipment
recovery, containment, and storage
resources in the plan. The Agency
specifically requested comments on the
criteria to evaluate OSRO agreements, a
mechanism for approving OSROs, and
the advisability of establishing an OSRO
approval process.
Most commenters agreed that EPA
should establish its own OSRO
classification process or use the USCG's
classification process to streamline the
development of facility response plans.
Many of these commenters agreed that
EPA should coordinate with the USCG
in planning such a program, if it is to
be different from the USCG's
classification process. Several
commenters specifically mentioned that
details of response resources should not
be required within the response plans.
These commenters felt that this
information would distract from the
emergency purpose of the document. A
few commenters offered additional
criteria to be used in the evaluation of
response resources. In dissent, some
7 Facility owners or operators may call the NCP
Hotline at 202 280-2343 for information on the
current NCP Product Schedule.
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34089
commenters requested a
"standardization approach" using
performance criteria instead of a
classification process.
EPA is not implementing a new OSRO
classification program at this time.
Facility owners or operators can rely on
the USCG OSRO classification process
or other appropriate OSRO evaluation
programs in place at the State level for
defined geographic areas (e.g.. State of
Washington) to identify in the plan
resources to respond to a worst case
discharge, to the maximum extent
practicable. However, where the
provider of response resources is not a
USCG-classified OSRO (or State-
evaluated OSRO), RAs have the option
to perform their own evaluation or
verification to ensure that equipment is
available and is in proper condition. In
this evaluation, the RA may consider
several factors including: the proximity
of response resources to the facility; the
adequacy of equipment and personnel
resources; the OSRO's past performance
and safety record; the number of
additional facilities the OSRO has
agreed to support; knowledge of state-of-
the-art response techniques; knowledge
of local fish and wildlife and sensitive
environments and the ACP; the
adequacy of the incident command
structure; record-keeping practices for
personnel safety equipment; and
proficiency in spill management. This
evaluation may involve visiting such
organizations to determine whether
equipment is available and in good
working order. Facility owners or
operators also should consider such
factors when they evaluate the
capabilities of an OSRO(s) to be listed
in the response plan. RAs also may
evaluate an OSRO's capabilities
(including the facility owner's
equipment and response resources
when this is the case) during PREP area
drills/exercises. EPA chose not to adopt
a specific classification program of its
own to avoid an additional step in the
process to prepare and review facility
response plans.
Fish and Wildlife and Sensitive
Environments
EPA has identified proximity to fish
and wildlife and sensitive environments
as a factor in the substantial harm
determination. EPA intended for owners
or operators to use Appendix D of the
proposed rule as interim guidance for
the identification of environmentally
sensitive areas until ACPs were
available. Several commenters urged
EPA to allow facility owners or
operators to use the NCP or ACPs for the;
identification of environmentally
sensitive areas. Other commenters
stated that the definition of
"environmentally sensitive areas" was
too broad, making it difficult to use in
the determination of substantial harm.
Some commenters objected to the listing
of particular areas (e.g., wetlands,
national monuments) as sensitive, while
others requested that additional areas
(e.g., water intakes for electric utilities
and municipalities. National and State
parks, and National forests) be included
in the definition of sensitive
environments.
As discussed previously, EPA does
not include proposed Appendix D in
this final rule. To serve the purpose of
proposed Appendix D (i.e., to guide
owners or operators in identifying fish
and wildlife and sensitive
environments), EPA adds a general
definition of "fish and wildlife and
sensitive environments" at § 112.2 of
the final rule and references certain
documents for further information. The
definition, adapted from the text of
proposed Appendix D, reads as follows:
"areas that may be identified by either
their legal designation or by evaluations
of Area Committees (for planning) or
members of the Federal On-Scene
Coordinators spill response structure
(during responses). These areas may
include wetlands, National and State
parks, critical habitats for endangered/
threatened species, wilderness and
natural resource areas, marine
sanctuaries and estuarine reserves,
conservation areas, preserves, wildlife
areas, wildlife refuges, wild and scenic
rivers, recreational areas, national
forests. Federal and State lands that are
research national areas, heritage
program areas, land trust areas, and
historical and archeological sites and
parks. These areas may also include
unique habitats such as: aquaculture
sites and agricultural surface water
intakes, bird nesting areas, critical
biological resource areas, designated
migratory routes, and designated
seasonal habitats." To help facility
owners or operators better address
required fish and wildlife and sensitive
environments concerns, EPA
contributed to a governmental
committee formed by various Federal
agencies to develop a consistent
definition of fish and wildlife and
sensitive environments. The committee
was made up of representatives from
various Natural Resource Trustee
agencies and from the agencies with
OPA response plan authority. After
considering comments on the EPA's
proposed rule, the committee developed
an interagency guidance document
based on the information contained in
Appendix D of the proposed rule. The
introductory text has been expanded to
explain in more detail some
environmental sensitivity issues, and
address the substance of the public
comments that EPA and the USCG
received on this subject. To ensure more
comprehensive response planning and
to better protect fish and wildlife and
sensitive environments. Attachment D-
IV ("Vulnerability of Aquatic
Ecosystems") and Attachment D-V
(" Vulnerability Scale of Aquatic
Habitats Impacted by Oil Spills") of
proposed Appendix D have been
replaced by Appendix IV ("Sensitive
Biological and Human-Use Resources")
and Appendix V ("Ranking of Shoreline
Habitats Impacted by Oil Spills"),
respectively in the DOC/NOAA
guidance.
In addition, other environmental areas
were added to those listed in Appendix
D, Attachment D-I ("Responsible
Federal Agencies for Specific
Environmental Resources"), such as the
National Forest System, Areas of Critical
Environmental Concern, and cultural
resources. This guidance also contains
additional mailing addresses and phone
numbers of government offices where
facility owners or operators may obtain
additional information. The document
titled, "Guidance for Facility and Vessel
Response Plans: Fish and Wildlife and
Sensitive Environments," was
published in the Federal Register by
DOC/NOAA at 59 FR 14714. March 29,
1994. In today's rule, EPA has removed
the Environmentally Sensitive Areas
appendix that was proposed in the
proposed rule and references to the
appendix contained in proposed
§ 112.20. EPA refers facility owners and
operators to Appendices I, n, and in of
DOC/NOAA's guidance for guidance to
identify fish and wildlife and sensitive
environments until geographic-specific
annexes to the ACPs are refined to the
point where they address fish and
wildlife and sensitive environments
concerns in detail. As discussed
previously, in the inland zone (as
defined in 40 CFR 300.5), ACPs have
been developed and will undergo
continuous refinement. Facility owners
or operators may contact the appropriate
Regional office for fish and wildlife and
sensitive environments information as it
becomes available.
Worst Case Discharge
Under § 112.20(h)(5) of the proposed
rule, owners or operators who must
prepare a facility response plan under
§ 112.20 must calculate a worst case
discharge quantity as described in
proposed Appendix E. (Appendix E has
been relabeled as Appendix D in today's
final rule.) This worst case discharge
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34090 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
scenario, in turn, directly influences the
quantity of spill response resources that
must be available to the facility, as
outlined in Appendix D. In the
proposed rule, the determination of the
worst case discharge volume is based on
the facility's oil storage capacity, with
additional factors taken into account for
multiple-tank facilities with secondary
containment or adjacent to navigable
waters. EPA requested comments on
allowing a reduction in the worst case
discharge planning amount for facilities
with adequate secondary containment
in place.
One commenter stated that no
reduction should be allowed for
secondary containment, because oil
spills frequently occur during transfer
operations that take place outside of
secondary containment. The commenter
added that, even for those spills that
occur within contained areas, a worst
case discharge scenario should assume
some failure of containment systems (as
has happened historically in spills from
facilities with secondary containment).
Numerous commenters requested that
EPA grant credit for secondary
containment in the formula to calculate
a facility's worst case discharge, thereby
reducing the amount of response
resources for which the facility would
need to plan. Many of these commenters
generally supported credit for secondary
containment, because containment will
reduce the quantity of a spill that
escapes from the facility and impacts
the environment. Other commenters
argued that credit for secondary
containment would provide an
incentive to the regulated community to
enhance facility spill prevention
systems, while others contended that
the probability of both the tank and its
secondary containment failing
simultaneously is extremely small.
In response to commenters' concerns,
EPA has modified Appendix D to allow
a 20 percent reduction in the worst case
discharge amount at single-tank
facilities for the presence of adequate
secondary containment (i.e.,
containment equal to 100 percent of
tank capacity plus sufficient freeboard
for precipitation). The amount of this
percentage reduction is based on an
analysis of the percentage of released oil
reaching navigable waters in the
historical spill record from EPA's
Emergency Response Notification
System database.8 EPA believes that the
data do not support granting a larger
•The Technical Background Document to
Support the Implementation of the OPA Response
Plan Requirements. U.S. EPA, February 1993.
Available for inspection in the Superfund Docket.
room M261S. at the U.S. Environmental Protection
Agency. 401 M Street. SW., Washington. DC 20460.
credit, nor do they show that a smaller
credit should be established. Historical
data illustrate that secondary
containment is not always completely
effective, due to wave effects, breaches
in containment walls, or operator error
(such as an open secondary containment
drainage valve).
With respect to multiple-tank
facilities, EPA notes that it is finalizing
the proposed credit for secondary
containment at these facilities. As in the
proposed rule, the calculation method
in the final rule focuses on the oil
storage capacity of the largest tank
within a secondary containment area or
a group of tanks permanently
manifolded together within a common
secondary containment area as a
planning amount for the worst case
discharge. This amount reflects a credit
for secondary containment resulting in
a lesser planning amount than the
capacity of all tanks within secondary
containment or the capacity of all tanks
at the facility. Facilities that lack
secondary containment would therefore
be required to include the capacity of all
storage tanks without secondary
containment in their worst case
discharge volume, while those facilities
with credit for secondary containment
would only need to consider the
capacity of the largest tank or group of
tanks within a single secondary
containment area. As such, the presence
of secondary containment leads to a
significant credit that reduces the worst
case discharge planning amount and the
associated response resource
requirements.
Numerous commenters requested that
EPA grant credit for facility spill
prevention measures and practices
(other than secondary containment) in
the calculation of the worst case
discharge. Specific preventive measures
mentioned by commenters include
tertiary containment, conformance with
American Petroleum Institute tank
standards, automatic shutdown systems,
high-level alarms, corrosion protection,
and hydrostatic testing. Many
commenters generally supported credit
for specific preventive measures
because of the capacity of such
measures to reduce spill size or spill
migration. Many commenters also
argued that credit for other spill
prevention measures would provide
incentives to the regulated community
to enhance spill prevention systems.
Owners or operators would implement
such measures to decrease the worst
case discharge volume, and thus,
decrease necessary expenditures for
planning and response resources.
In today's final rule, EPA retains the
credit for secondary containment at the
facility, but does not provide additional
credits to facilities for the presence of
such preventive measures in the
calculation of the worst case discharge.
Although EPA encourages facilities to
implement additional preventive
measures such as those cited by the
commenters, the Agency believes that
the effects of these measures on the size
and impact of a potential spill are not
readily quantifiable, nor as easily
supported with historical spill evidence,
as those of secondary containment. In
addition, the Agency believes that
granting credit for these prevention
measures likely would require a more
detailed verification and inspection
process than would granting credit for
secondary containment. Further,
Congress' intent was that planning
reflect the worst case discharge, and that
the private sector be encouraged to
increase its spill response capability.
In the calculation of a worst case
discharge, EPA proposed to require
multiple-tank facilities with secondary
containment for which the nearest
opportunity for discharge (i.e., storage
tank, piping, or flowline) is adjacent to
navigable water, to incorporate an
additional 10 percent factor in the
calculation of the worst case discharge
quantity. (See Parts A3 and B3 of
Appendix E of the proposed rule.) The
Agency proposed the 10 percent
distinction in the calculation of a worst
case discharge volume between
multiple-tank facilities adjacent to
navigable waters and those not adjacent
to navigable waters as a safety factor to
address the potential for releases from
multiple tanks.
Many commenters opposed the use of
a 110 percent planning volume for
facilities located adjacent to navigable
water, because a facility could not
discharge more than 100 percent of its
capacity. Some commenters apparently
did not realize that the provision only
applied to multiple-tank facilities, and
argued that the 110 percent planning
volume factor should be eliminated
because it is impossible for a single tank
to discharge more than 100 percent of
its capacity.
EPA has considered these comments
and has decided to eliminate
consideration of a facility's location
adjacent to navigable waters from the
calculation of the worst case discharge.
Adding an additional 10 percent to the
planning volume is unnecessary,
because the emulsification table in
Appendix E will account for removing
material in excess of tank capacity for
all petroleum facilities for which an
owner or operator must plan under this
rule. There is no need to impose an
additional cost burden on multiple-tank
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations 34091
facility owners and operators for
proximity to navigable waters. In
Appendix D of today's final rule, the
worksheets have been changed
accordingly; this change will simplify
the calculation and reduce confusion in
the regulated community.
Several commenters requested that •
EPA clarify its definition of
"permanently manifolded tanks" used
in the calculation of a worst case
discharge volume. Several commenters
expressed confusion about whether
permanently manifolded tanks
connected by piping systems with
valves that are normally shut, and
permanently manifolded tanks that are
separated by internal divisions in the
secondary containment area, are
considered separate tanks for purposes
of the worst case discharge calculation.
The proposed definition of
"permanently manifolded tanks"
indicated that such systems were to be
considered as separate tanks for the
worst case discharge calculation.
However, to better clarify EPA's intent,
the definition of "permanently
manifolded tanks" has been modified
slightly in Appendix D of the final rule.
The changes make it clear that within a
common secondary containment area,
interconnected tanks are considered to
be single tanks if one or more of the
manifolded tanks functions as an
overflow container for another tank (i.e.,
is connected by piping at the top). In
this case, individual manifolded tank
volumes are not combined when
calculating the worst case discharge
planning volume. The owner or operator
must provide evidence in the response
plan that tanks with common piping or
piping systems are not operated as one
unit?
EPA recognizes that failures
associated with multiple tanks that are
hydraulically connected could result in
the discharge of a greater volume of oil
than the capacity of any one of the
tanks. The definition of "permanently
manifolded tanks" adequately accounts
for this possibility. The owner or
operator of a facility with permanently
manifolded tanks would combine the
capacities of all tanks manifolded
together to calculate the worst case
discharge planning volume for the
facility.
Owners or operators of onshore
production facilities must consider both
storage capacity and production
activities in the determination of a worst
case discharge planning volume. In the
proposed rule, EPA defined production
volume for production wells (producing
by pumping) as the pumping rate of the
highest output well at the facility,
multiplied by 1.5 times the number of
days the facility is unattended
(Appendix E, Part B). Several
commenters stated that EPA had not
provided sufficient justification for
requiring the calculation of the worst
case discharge planning volume to
include use of the 1.5 multiplier.
Commenters believed that the pumping
rate of the highest rate well could easily
be determined and should not be
artificially inflated, and suggested that
the multiplier be used only when the
rate of the highest rate well is unknown.
In response to commenters' concerns,
EPA revised the worst case discharge
calculation in Appendix D of the final
rule to require facility owners or
operators to use the 1.5 multiplier only
if the rate of the well with the highest
output or the number of days the facility
is unattended cannot be estimated with
certainty. EPA believes that the use of
the 1.5 multiplier is appropriate in these
instances because it provides a
conservative basis upon which to
incorporate these uncertain estimates of
discharge potential in the calculation of
a worst case discharge. If the facility
owner or operator knows the rate of the
well with the highest output and can
predict the number of days that the
facility will be unattended, then the
production volume for each production
well (producing by pumping) is equal to
the pumping rate of the well, multiplied
by the greatest number of days the
facility will be unattended. If the actual
pumping rate will exceed the planned
pumping rate, or the facility will be
unattended for longer than the time
indicated in the facility response plan,
then the owner or operator must amend
the facility response plan to reflect this
operational change at the facility. The
owner or operator must resubmit the
appropriate sections of the plan in
accordance with § 112.20(d)(l).
In Appendix E of the proposed rule,
the proposed worst case discharge
planning volume for facilities with
exploratory wells or production wells
producing under pressure was the
forecasted production volume for the
highest output well at the facility plus
the appropriate oil storage capacity
component. The proposed rate for
exploratory wells and production wells
producing under pressure was the
maximum 30-day forecasted well rate
for wells 10,000 feet deep or less, or the
maximum 45-day forecasted well rate
for wells more than 10,000 feet deep.
Several commenters from the oil
industry stated that the forecasted well
rates were unwarranted because cleanup
procedures will begin before the entire
volume of the discharge reaches the
environment. Commenters suggested
that EPA consider inspection frequency
or time intervals equal to the
appropriate response tier as factors to
determine the worst case discharge
planning volume. In considering
revisions to the proposed worst case
discharge planning volume calculation,
EPA also solicited input from MMS,
which is in the process of promulgating
response plan regulations for certain
offshore production facilities.
EPA compared the response efforts
required and damage resulting from
discharges from production wells
producing under pressure or exploratory
wells to the response efforts required
and damage resulting from discharges
from storage tanks or production wells
producing by pumping. Because
discharges from storage tanks or
production wells are discrete events, the
volume of oil that is discharged is not
influenced by response actions after
they have been discovered. For
production wells producing under
pressure and exploratory wells,
response efforts can mitigate the effects
of the discharge during the time it takes
response personnel to stop the flow of
oil. For these reasons, EPA has revised
the calculations for worst case discharge
planning volume for facilities with
exploratory wells or production wells
producing under pressure.
The final version of the appendix
(Appendix D in the final rule) requires
the facility owner or operator to
compare the forecasted rate of the
highest output well to the capacity of
response equipment and personnel to
recover the volume of oil that could be
discharged to calculate the production
volume. If the well rate would
overwhelm the response efforts, the
worst case discharge planning volume
would be calculated in a manner similar
to that described in the proposed rule.
(See Method A of Attachment D-l.) If
the emergency response effort would
match or exceed the forecasted rate of
the highest output well, then the facility
owner or operator would calculate the
production volume based on the sum of:
1) the volume of oil discharge from the
well between the time of the blowout
and the expected time the response
resources are on scene and recovering
oil; and 2) the volume of oil discharged
after the response resources begin
operating until the spill is stopped
(adjusted for the amount of oil
recovered). (See Part B of Attachment
D-2.) As in the case of production
facilities with wells producing by
pumping, Part B of Appendix D requires
that the appropriate storage oil capacity
also be added to the production volume
to determine the worst case discharge
planning volume. EPA describes these
methods to calculate the production
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34092 Federal Register / Vol. 59. No. 126 / Friday. July 1, 1994 / Rules and Regulations
volume for production facilities with
wells producing under pressure or
exploratory wells in Attachment D-l,
"Methods to Calculate the Production
Volumes for Production Facilities with
Exploratory Wells or Production Wells
Producing Under Pressure," to
Appendix D.
Response Planning Levels
As part of the response planning
requirements, EPA proposed in
§ 112.20(h)(5) that "substantial harm
facilities" must evaluate smaller, more
probable discharge quantities for their
facility response plan in addition to the
worst case discharge specified by the
OPA. As proposed, the owner or
operator of a facility would plan for
small (2,100 gallons or less) and
medium (between 2,100 gallons and
36,000 gallons, or ten percent of the
capacity of the largest tank, whichever
is less) discharge quantities, provided
that these amounts are less than the
worst case discharge amount.
EPA received comments both in
support of, and opposed to, the concept
of planning for various response levels.
Some commenters indicated that the
establishment of such additional
planning requirements was beyond the
OPA mandate. Other commenters
argued that planning for smaller spills
will be encompassed in planning for a
worst case discharge, that planning for
smaller spills is a function of good
management practices and should not
be regulated, or that pre-existing SPCC
Plans adequately address smaller spills.
EPA has considered these comments
and decided to retain the planning
approach outlined in the proposed rule.
Although planning for several discharge
amounts is not mandated specifically
under OPA, EPA has broad and ample
regulatory authority under CWA section
311(j)(l)(C) for such a requirement. The
Agency believes that discharges less
severe than a worst case scenario may
pose a serious threat to navigable
waters, especially from the cumulative
effects of several discharges, and that
preparation to respond to smaller spills
could lead to better overall protection of
the nation's navigable waters. In
addition, this three-level approach is
consistent with the USCG's
implementation of planning scenarios
under OPA and some State response
plan rulemakings.
Various sizes of discharges can
require different types and amounts of
equipment, products, and personnel,
and must therefore be addressed
separately. For example, a facility may
want to hire a contractor to support
response to a worst case discharge
scenario, but handle smaller,
operational spills using its own
personnel and equipment. To the extent
that facility personnel are better able to
address immediate actions associated
with smaller spills, they will be better
prepared to initiate a response to a
worst case discharge until back-up
resources arrive on-scene. Increased
proficiency in handling the initial stages
of a discharge can result in significant
reductions in the extent of spill
movement and associated impacts to the
environment.
As many commenters recognized,
planning for responses to more
commonly occurring discharges may be
more beneficial to facilities than
planning for a worst case discharge that
has a lower probability of occurrence—
nevertheless, EPA continues to
recognize that this planning approach
may not be appropriate for all facilities,
including those where the range of
possible spill scenarios is small. Under
today's final rule, as in the proposed
rule, large facilities would still need to
plan for three discharge amounts, but a
small facility may only need to plan for
two scenarios or a single scenario if its
worst case discharge falls within one of
the specified ranges.
To address the planning
requirements, the owner or operator
must consider the different types of
facility-specific scenarios that may
result in discharges at the facility. To
the extent possible, the scenarios should
account for the range of different
operations that take place at the facility.
Appendix F of the rule contains
guidance on the development of such
scenarios including a list of areas of
operation to consider (e.g., oil storage
tanks, piping, vehicle refueling areas,
and tank car and tank truck loading and
unloading areas), and a list of factors
that may affect response efforts at the
facility (e.g., direction of spill pathways,
weather conditions, and available
response equipment). As part of this
process, owners or operators shall
describe the threat posed by mobile
facilities operating on site, especially
during loading or unloading operations
where the risk of a discharge is
increased. Also, owners or operators of
large facilities that handle, store, or
transport oil at more than one
geographically distinct location (e.g., oil
storage areas at opposite ends of a
single, continuous parcel of property)
shall, as appropriate, develop separate
sections of the response plans for each
area where oil is stored, used, or
distributed.
Several commenters expressed
confusion between the tiered planning
amounts described in proposed
§ 112.20(h)(5) and the response tiers in
proposed Appendix F for mobilizing
resources in response to a worst case
discharge. To avoid confusion in the
final rule, EPA replaces the term "tiered
planning scenarios" with "response
planning levels" to describe small,
medium, and worst case response
planning amounts.
Drills/Exercises and Training
The proposed rule contained general
requirements for response training and
drills/exercises, but did not specify
what the training and drills/exercises
should entail. Specifically, proposed
§ 112.7(f)(l)(iii) required that all
personnel involved in oil-handling
activities participate in unannounced
drills/exercises, at least annually.
Proposed § 112.20(h)(8)(ii) required that
the facility response plan contain a
description and record of training
courses and periodic unannounced
drills/exercises to be carried out under
the response plan.
Some commenters suggested that
training should be required only for
employees of "substantial harm
facilities" and that only response
personnel should be required to
participate in drills/exercises. EPA
notes that a general training program is
required at 40 CFR 112.7(e)(10) for all
facilities subject to the rule. However,
the final rule limits the requirement for
response training and drills/exercises to
facilities that must prepare a response
plan.
One commenter argued that the OPA
does not mandate employee training.
EPA notes that the OPA added CWA
section 311(j)(5)(C) to specify that the
response plan must describe training
and periodic unannounced drills/
exercises to be carried out under the
plan. The Agency interprets this
requirement to mean that Congress
intended for facilities to conduct a
program of training and drills/exercises
for response to oil spills.
EPA has moved some subject matter
on response training and drills/exercises
from proposed § 112.7 to a new § 112.21
so that all requirements relevant to
implementation of the OPA (i.e.,
requirements for response training) are
addressed in this final rule.
Requirements for oil spill prevention
training that are not necessary for the
OPA implementation will remain in
proposed § 112.7(f) and will be
addressed in a separate rulemaking.
To provide additional direction to the
regulated community on what
constitutes an acceptable training
program, EPA expands the discussion of
training in today's final rule. As set
forth at § 112.21, response training must
be functional in nature and
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34093
commensurate with the specific duties
of each type of facility personnel with
responsibilities under the plan. A
facility's training program can be based
on the USCG's Training Elements for Oil
Spill Response, to the extent applicable
to facility operations, or another
response training program acceptable to
the RA. The training elements are
available from Petty Officer Daniel Caras
at (202) 267-6570 or fax 267-4085/4065.
As set forth in the OPA, drills/
exercises are evolutions that are
designed to periodically test the ability
of response personnel to ensure the
safety of the facility and to mitigate or
prevent discharges of oil. A drill/
exercise program is comprised of facility
drills/exercises, including tabletop and
deployment exercises, both announced
and unannounced, as well as
participation in larger area drills/
exercises and evaluation of these drills/
exercises. The requirement to develop a
drill/exercise program is included at
§ 112.21. This section references the
National PREP. As described in Section
l.C of this preamble, PREP is a joint
industry/government effort to establish
recognized national guidelines for
conducting drills/exercises to meet the
OPA requirements. Following the PREP
guidelines (see Appendix E to this part,
section 10, for availability) would
satisfy a facility's requirements for
drills/exercises under this final rule.
Alternately, under § 112.21(c), a facility
owner or operator may develop a
program that is not based on the PREP
guidelines. Such a program is subject to
approval by the RA based on the
description of the program provided in
the response plan.
Descriptions of training and drills/
exercises for facility personnel engaged
in oil spill response must be provided
in the plan as stated in § 112.20(h)(8).
To satisfy this requirement, facilities
must describe conformance with the
PREP guidelines as part of their
response plan or provide a detailed
description of an alternative drill/
exercise program. Lessons learned from
the facility owner's or operator's
evaluation of response drills/exercises
may help identify other relevant subject
areas for training. As part of the PREP
development process, the USCG, with
assistance from other Federal agencies,
OSROs, and the regulated community,
is preparing a reference document to
assist facility owners and operators in
the evaluation of their drills/exercises.
As described in Section II.B of this
preamble, some commenters objected to
including logs for training and drills/
exercises in the response plan. EPA will
not require training records and records
of drills/exercises to be included in the
response plan, because that is
impracticable without constantly
revising the plan. Section
112.20(h)(8)(iv) of the final rule makes
it clear that the logs may be included in
the response plan or maintained as an
annex to the response plan.
C. Section-by-Section Analysis
This section lists sequentially the
major changes from the proposed rule
that have been incorporated into today's
final rule. The revisions listed below
result from consideration of public
comments on the proposed rule (as
previously discussed, the Response to
Comments Document for die Facility
Response Plan Rulemaking maintained
at the docket contains detailed
summaries of, and responses to, all
comments received on the proposed
rule) and from efforts to coordinate EPA
and other Federal agencies'
requirements for implementing response
plan regulations under the OPA. A
detailed discussion of the reasoning
behind most of these changes can be
found in Section l.C or II.B of this
preamble, hi addition to the major
changes detailed below, EPA has also
made a series of minor editorial changes
to correct typographical and
grammatical errors, to conform more
closely with language from different
sections of today's rule and language
from the USCG's interim final rule for
MTR facilities, and to improve the
clarity of the requirements.
As discussed in Section I of this
preamble, EPA will defer finalizing
changes to certain sections of the
regulation as proposed in the proposed
rule. EPA plans to address these
changes in a subsequent rulemaking.
Changes to the following paragraphs
from the proposed rule are not included
in today's final rule: paragraphs (d)(4)
and (g) of § 112.1 (General Applicability
ana Notification); paragraph (d) of
§ 112.4 (Amendment of Spill
Prevention, Control, and
Countermeasura Plan by Regional
Administrator); and paragraphs (a)(2),
(d), (f), (i), and (j) of § 112.7 (Spill
Prevention, Control, and
Countermeasure Plan general
requirements). Also, Appendix H
(Brittle Fracture Considerations in API
Standard 653) as proposed at 58 FR
8824 is not included in today's final
rule.
Section 112.2 Definitions
In § 112.2, the definitions of "adverse
weather," "contract or other approved
means," "maximum extent practicable,"
and "worst case discharge" are revised;
the definitions of "alteration" and
"repair" from the proposed rule are not
included; and definitions of "fish and
wildlife and sensitive environments"
and "oil spill removal organization" are
added.
Section 112.20 Facility Response Plans
Throughout § 112.20, the term
"emergency response coordinator" is
replaced with the term "qualified
individual," and the term
"environmentally sensitive areas" is
replaced with the term "fish and.
wildlife and sensitive environments."
Paragraph (a) is reorganized and
revised to specify EPA's approach to
implement the facility response plan
requirements of OPA and of this final
rule.
Paragraphs (a)(2)(ii) and (iii)
(paragraphs (a)(2)(ii) and (iii) from the
proposed rule) are expanded to specify
that for new facilities and facilities
undergoing a planned change in
operations, adjustments to the response
plan to reflect changes that occur at the
facility during the start-up phase of
operations must be submitted to the RA
after an operational trial period of 60
days.
Paragraph (b)(l) is revised to clarify
that if the RA makes a determination of
substantial harm then he or she shall
notify the facility owner or operator in
writing and shall provide a basis for the
determination.
Paragraph (c)(4) is revised to specify,
for plans to be reviewed by the RA, that
the RA will review plans periodically
on a schedule established by the RA
provided that the period between plan
reviews does not exceed five years.
Paragraph (d)(l) is revised to extend
its applicability to all facilities for
which a response plan is required and
to clarify that only revised portions of
a response plan need to be resubmitted
for approval and inclusion in the
existing plan. The requirement for the
RA to review for approval changes to
plans for "significant and substantial
harm facilities" that was proposed at
§ 112.20(d)(l) has been moved to new
§112.20(d)(4).
Paragraphs (d)(l)(iii) and (d)(2) are
revised to clarify that a change in the
identity of an OSRO(s) that does not
result in a material change in support
capabilities is not a material change
requiring approval but that a copy of
such a change must be provided to the
RA.
Paragraph (d)(2) is revised to state that
certain amendments do not require
"approval" by the RA, rather than
"prior approval."
Paragraph (d)(3) is added to indicate
that the EPA-issued facility
identification number (where one has
been assigned) must accompany any
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changes to the plan that are submitted
to the RA. This number is issued when
the plan was received and is included
on all EPA correspondences to the
facility. Including this number on all
subsequent submissions by the facility
to EPA will ensure proper tracking and
handling of information.
Paragraph (f)(l)(i) is revised to clarify
that total oil storage capacity and not
total storage capacity is the criteria to be
evaluated.
Paragraph (f)(l)(ii)(A) is revised to
clarify that adequate secondary
containment must account for
precipitation as required by
§ m.7(e)(2)(ii).
Paragraph (f)(l)(ii)(D) is revised to
clarify it addresses reportable oil spills.
Paragraphs (f)(l)(ii)(B) and (f)(2)(i)(D)
are revised to remove reference to
Appendix D, to add a reference to the
"Guidance for Facility and Vessel
Response Plans: Fish and Wildlife and
Sensitive Environments" (see Appendix
E to this part, section 10, for
availability) and the appropriate ACP,
and to clarify that use of an alternative
formula does not require prior approval
by the RA but that the formula must be
comparable to the appropriate formula
in Appendix C to this part. Conforming
edits are made to paragraphs (a)(3) and
(e).
Paragraph (f)(2)(ii) is revised to clarify
that "any person" includes
representatives from other government
agencies in addition to the public, to
more accurately describe the contents of
paragraph (f)(2)(i) as factors not criteria,
and to clarify that the RA shall consider
petitions and respond in an appropriate
amount of time.
Paragraph (f)(3)(i) is removed to
reflect the deletion of Appendix D and
because the RA already has authority
under paragraph (f)(2) to consider
proximity to other areas determined to
possess ecological value. The remainder
of paragraph (f)(3) is renumbered
accordingly.
Paragraph (g) is reorganized by
removing the requirement for periodic
review and update of the plan from
paragraph (g)(l) and moving it to new
paragraph (g)(3).
Paragraph (h) is revised to clarify the
mandatory nature of Appendix F.
Paragraphs (h)(l)(vi) and (h)(3)(vii)
are revised to clarify that facility owners
or operators need only reference but not
include community evacuation plans in
the response plan.
Paragraph (h)(l)(vii) is revised to
clarify that securing the source of the
discharge is among the immediate
measures that must be described in the
plan.
Paragraph (h)(2) is revised to clarify
that a brief description of the type of
facility (i.e., SIC Code) must be provided
as part of the basic facility information.
Paragraph (h)(3)(x) is removed and
paragraph (h)(3)(i) is revised to clarify
the mandatory nature of Appendix E
and allow under certain circumstances
owners or operators to make comparable
arrangements for response resources.
Paragraph (h)(5) is revised to replace
the reference to tiered response
planning with a reference to response
planning levels. Conforming edits are
made to Appendix F.
Paragraph (h)(5)(ii) is revised to
clarify that for complexes, the small
planning quantity shall be the larger of
the amounts calculated for each
component of the facility.
Paragraph (h)(8) is revised to clarify
the requirements to describe programs
for drills/exercises and response
training, and indicate that logs may be
kept as an annex to the response plan.
Paragraph (h)(ll) is added to cross-
reference the requirement at
§ 112.20(a)(2) to complete a response
plan cover sheet provided in Section 2.0
of Appendix F.
New § 112.20(i) is added to allow
owners or operators to request
reconsideration of or appeal certain
decisions by the RA.
Section 112.21 Facility Response
Training and Drills
New § 112.21 is added to describe
requirements for facility response
training and drills/exercises. The
requirements for annual drills/exercises
in proposed § 112.7(f)(l)(iii) are
replaced by a requirement to follow the
PREP guidelines or an alternative
program acceptable to the RA.
Provisions related to spill prevention
training in § 112.7(f) will be finalized in
a future rulemaking.
Appendix B—Memorandum of
Understanding Among DOI, DOT, and
EPA
The Memorandum of Understanding
Among the Secretary of the Interior,
Secretary of Transportation, and
Administrator of the Environmental
Protection Agency signed on February 3,
1994 is added at Appendix B to 40 CFR
part 112.
Appendix C—Substantial Harm Criteria
The title of the Appendix was
changed from "Determination of
Substantial Harm" to "Substantial Harm
Criteria."
Throughout Appendix C, the term
"environmentally sensitive areas" is
replaced with the term "fish and
wildlife and sensitive environments,"
the term "drinking water intake" is
replaced with the term "public drinking
water intake," the language is clarified
to indicate which provisions are
required, and "alternative" is changed
to "comparable."
For response time estimation
purposes, in section 1.1, the definitions
of "Great Lakes," "Higher Volume Port
Area," and "Inland Area" are revised.
The list of the substantial harm
criteria in section 2.0 is removed to
eliminate redundancy with
§ 112.20(f)(l) and the flowchart in
Attachment C-I to Appendix C. Section
2.1 is renamed section 2.0.
In new section 2.0, the language is
clarified to indicate that the term
"public drinking water intake" is
analogous to the term "public water
system" at 40 CFR 143.2(c) as described
at 40 CFR part 110. Footnotes clarifying
that public drinking water intakes are
analogous to public water systems as
described at 40 CFR 143.2(c) are added
to this section and Attachment C-II. The
definition of "injury" is removed from
this section to eliminate redundancy
with the definition in § 112.2.
In section 3.0, the last sentence is
revised to clarify that for facilities that
do not meet the substantial harm criteria
using a comparable formula to calculate
the planning distance, documentation of
the comparable formula must not only
be maintained at the facility but must be
made available to EPA if requested. The
first sentence in the oil transport on
moving navigable waters in Attachment
G-ffl is revised to include "or a
comparable formula as described in
§ 112.20(a)(3)" and "for oil transport on
moving navigable water." The section
describing oil transport on moving
navigable waters in Attachment C-III is
clarified to indicated that adverse
weather conditions shall be considered.
In Attachment C—III, a section
describing a method to determine a
planning distance for tidal-influenced
navigable water is added and the
appropriate cross-reference is provided.
A paragraph is added to indicate that if
a facility owner or operator determines
that more than one type of navigable
water applies, the planning distance
calculation must be performed for each
navigable water type, and the greatest
distance must be used in the substantial
harm evaluation. The third paragraph is
revised to provide an example of an
instance where it would not be
necessary to calculate a planning
distance for screening purposes. The
fourth paragraph of Attachment C-III is
revised to include a reference to the
example for determining the planning
distance for the two types of navigable
waters. The format of Table 3 is revised
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34095
and further explanation of how the time
intervals in Table 3 should be used to
calculate a baseline planning distance is
added. A conversion constant is added
to the formula for calculating the surface
area covered by an oil spill on still
water. Conforming changes are made to
the description of the formula and the
sample calculation. Clarifying language
is added to the description of the
section on oil transport over land. Also,
language is added to clarify the term
"close proximity" for purposes of
calculating the planning distance.
Section 4.0 "References" is added to
Appendix C.
Environmentally Sensitive Areas
(Appendix D in the Proposed Rule)
The Environmentally Sensitive Areas
appendix from the proposed rule is
removed. Instead, EPA refers owners or
operators to Appendices I, II, and III of
the "Guidance for Facility and Vessel
Response Plans: Fish and Wildlife and
Sensitive Environments," (see
Appendix E to this part, section 10, for
availability) and .to the appropriate ACP
for guidance in identifying fish and
wildlife and sensitive environments.
Appendix D—Determination of a Worst
Case Discharge (Appendix E in the
Proposed Rule)
Throughout Appendix D, the language
is clarified to indicate which provisions
are required and which are provided
only as guidance. The last sentence of
the first paragraph of the instructions is
revised to remove "and its proximity to
navigable waters."
Parts Al and Bl of the instructions for
the determination of the worst case
discharge at single-tank facilities are
revised to reflect credit for adequate
secondary containment.
Parts A3 and B3 of the instructions
are removed and Parts A2 and B2 and
explanatory notes revised to reflect
elimination of the additional 10 percent
factor for proximity to navigable waters
and clarification of the terms
"permanently manifolded tanks" and
"adequate secondary containment."
Part B of the instructions for the
determination of the worst case
discharge for production facilities is
revised to reflect changes in the
calculations for production wells
producing by pumping. Part B is also
revised to reflect changes in the
calculations for exploratory wells and
production wells producing under
pressure. Attachment D-I is added to
describe these changes.
Appendix E—Determination and
Evaluation of Required Response
Resources for Facility Response Plans
(Appendix F in the Proposed Rule)
The title of the Appendix was
changed from "Guidelines for
Determining and Evaluating Required
Response Resources for Facility
Response Plans" to "Determination and
Evaluation of Required Response
Resources for Facility Response Plans."
Throughout Appendix E, the term
"environmentally sensitive areas" is
replaced with the term "fish and
wildlife and sensitive environments" as
defined at § 112.2 and references to
former Appendix D replaced with
references to the Guidance for Facility
and Vessel Response Plans: Fish and
Wildlife and Sensitive Environments
published by DOC/NOAA in the Federal
Register on March 29,1994 and to the
appropriate ACP. The language is
clarified to indicate which provisions
are required. Section l.l is revised to
specify that this appendix shall be used
by facility owners and operators to
determine resources for the response
plan and by the RA in the review of
facility response plans.
Section 1.2 is added to Appendix E,
and the definitions of non-persistent
and persistent oils and non-petroleum
oils from Attachment F-2 of the
proposed rule are moved into section
1.2 of Appendix E. Group 5 oils are
added to the definition of persistent oils
to account for oils that have specific
gravities that are equal to or greater than
1.0. The definitions of "nearshore,"
"ocean," "operating area," and
"operating environment" are added to
section 1.2 of Appendix E. Section 1.2.8
is added to reference other definitions.
Sections 3.2 and 4.2 are revised to
replace "synonymous with" with "that
corresponds to."
Section 5.6 is revised to indicate that
at least 20 percent of the on-water
response equipment must be capable of
operating in shallow water.
A reference to section 7.6 which
describes the procedures for non-
petroleum oils is added to section 7.1.
Section 7.4 is revised to remove the
110 percent factor from the example
worst case discharge calculation. The
resulting tier values are revised
accordingly.
References to the definitions and
response resource considerations for
Group 5 and non-petroleum oils were
added to Tables 2 and 3.
As described in Section II.B of this
preamble, a series of changes to the
remaining sections of Appendix E (e.g.,
the addition of separate procedures for
non-petroleum oils) are made to ensure
greater consistency with the equipment
instructions contained in the USCG's
interim final rule for MTR facilities.
Appendix F—Model Facility-Specific
Response Plan (Appendix G in the
Proposed Rule)
The title of Appendix G, "Standard
Facility-Specific Response Plan," is
changed to "Model Facility-Specific
Response Plan" in the final rule.
Throughout Appendix F, the term
"emergency response coordinator" is
replaced with the term "qualified
individual," the term "environmentally
sensitive areas" is replaced with the
term "fish and wildlife and sensitive
environments," the language is clarified
to indicate which provisions are
required, and the language is clarified to
indicate "oil storage capacity," "oil
storage tanks," and "aboveground oil
storage tanks" where appropriate.
Section 1.0 is revised to specify that
owners or operators of large facilities
that handle, store, or transport oil at
more than one geographically distinct
location shall, as appropriate, develop
separate sections of the response plan
for each storage area. The reference for
immediate actions is changed from
"(Section 1.7) condensed" to "(Section
1.7.1) complete."
Section 1.2 is revised to indicate that
the home and work address of the
qualified individual(s) shall be listed in
the response plan. The list of States
with EPA-approved wellhead protection
programs is replaced with an
information number for the SDWA
Hotline and a definition of "wellhead
protection area" is added.
Paragraph 4 (now paragraph 5) of the
introduction to section 1.3, Emergency
Response Information, is revised to
clarify which types of emergency
response personnel should be included
on the personnel lists. Section 1.3.1 is
revised to include the phone number of
the Regional Response Center, to specify
that the Federal OSC should be
contacted, and to remove the item
requiring notification of the Area
Committee from the list. Section 1.3.2 is
split into sections 1.3.2 and 1.3.3 and
the remainder of section 1.3 is
renumbered accordingly. Also, section
1.3.2 is revised to improve clarity and
to indicate that the facility owner or
operator must follow appropriate
procedures contained in the NCP and
ACP to obtain approval for the use of
dispersants. New section 1.3.3 is revised
to include a log for basic information on
equipment testing (from section 1.3.2 of
the proposed rule) and deployment
drills (from the results of required
drills/exercises). Section 1.3.3 (now
1.3.4) is revised by reordering the lists
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and adding "pager number" to the
facility response team list. Section 1.3.4
(now 1.3.5) is revised to clarify that
facilities must, as appropriate, reference
existing community evacuation plans.
The language in section 1.4 is revised
to clarify the mandatory nature of the
hazard evaluation provisions. A
definition of surface impoundment is
added to section 1.4.1. In section 1.4.2,
examples of areas of economic
importance are added. Section 1.4.3 is
revised to remove the word
"quantitative."
Section 1.5.2 is revised to remove
details on the calculation of worst case
discharge planning volume to avoid
redundancy witii Appendix D.
A form detailing recommended
immediate actions is added to section
1.7.1.
Section 1.8 is revised to clarify the
requirements to describe the facility's
drill/exercise and training programs and
to reflect that logs may be included in
the response plan or kept as an annex
to the plan. Conforming changes are
made to the sample logs throughout the
appendix.
Section 1.9 is revised to add provision
L, that requires the owner or operator of
a complex to identify the interface
between portions of the facility that are
regulated by different agencies. EPA
believes that this will help reinforce
owners or operators understanding of
jurisdictional issues at certain facilities.
The response plan cover sheet is
revised to a fill-in-the-blank form. A
footnote is added to explain where to
locate Dun & Bradstreet and SIC code
information. Conforming changes are
made to Section 2.0.
The acronyms DOC, MMS, PREP,
RRC, and RSPA are added to section 3.0.
III. Regulatory 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
OMB review and the requirements of
the E.O. The Order 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 rule is
a "significant regulatory action" because
it will have an annual effect on the
economy of more than $100 million. An
economic analysis performed by the
Agency, available for inspection in
Room M2615 at the U.S. Environmental
Protection Agency, 401 M Street, SW.,
Washington, DC 20460, shows that this
rule would result in estimated costs to
affected facilities of greater than $100
million in the first year. As such, this
action was submitted to OMB for review
as required by E.O. 12866. Changes
made in response to OMB suggestions or
recommendations will be documented
in the public record.
The analysis shows that the action
will result in costs to the regulated
community of approximately $107.2
million during the first year that the rule
is in effect and approximately $41.6
million in each subsequent year. The
first-year, subsequent-year, and
annualized costs of the revisions to
affected facilities are presented in Table
1.
TABLE 1 .—TOTAL COST To AFFECTED FACILITIES OF THE FINAL RULE
[In millions of dollars]
Requirement
Rule Familiarization
Facility Response Plan
Total ,
First-year
costs
122
950
1075
Subsequent-
year costs
0
41 6
41.6
Annualized
value of total
costs
1.7
487
50.4
EPA is also expected to incur costs
estimated at $1.3 million in the first
year and $1.2 million in the second year
to implement the program.
The Regulatory Impact Analysis (RIA)
prepared in support of this rule also
includes an assessment of the
environmental benefits associated with
the proposed revisions. This quantified
benefit estimate includes only the
benefits of avoided clean-up costs, value
of lost product, avoided natural resource
damages, and avoided property damages
as a result of the mitigation of the
severity of spills that occur. Other
damages caused by oil spills that are not
included in the quantitative estimate,
include lost profit by business, public
health risks, and foregone existence/
option value. Assuming that response
plans effectively reduce oil spill damage
by 30 percent, benefits that have been
quantified in the RIA are estimated to
range from $20.3 million to $40.6
million depending on assumptions
regarding the volume of discharged oil
that escapes secondary containment
systems.
B. Hegulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(5 U.S.C. 601-611) requires that a
Regulatory Flexibility Analysis be
preformed for all rules that are likely to
have a "significant impact on a
substantial number of small entities."
The results of a preliminary analysis
indicate that this rule will not have
significant adverse impacts on small
businesses because small businesses are
unlikely to meet the criteria to prepare
and submit a response plan and are
therefore unlikely to be affected by the
facility response planning requirements,
which account for virtually all of the
total costs of the final rulemaking (see
the "Regulatory Impact Analysis of
Revisions to the Oil Pollution
Prevention Regulation to Implement the
Facility Response Planning
Requirements of the Oil Pollution Act of
1990," Appendix F, March 1994,
available for inspection in Room M2615
at the U.S. Environmental Protection
Agency, 401 M Street, SW., Washington,
DC 20460). Therefore, EPA certifies that
this proposed rule is not expected to
have a significant impact on small
entities, and therefore that no
Regulatory Flexibility Analysis is
necessary.
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Federal Register / Vol. 59, No. 126 / Friday. July 1. 1994 / Rules and Regulations 34097
C. Paperwork Reduction Act
The information collection
requirements in this rule have been
approved by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.
and have been assigned control number
2050-0135.
Preparation of a response plan has an
estimated first-year reporting burden
ranging from 131.75 hours to 350 hours
per respondent, averaging 194.5 hours,
and an estimated first-year
recordkeeping burden ranging from 13.5
hours to 34 hours per respondent,
averaging 21.5 hours. These estimates
include time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
the collection of information.
Maintaining, reviewing, and updating a
response plan have an estimated annual
reporting burden in subsequent years
ranging from 52 hours to 161 hours per
respondent, averaging 83 hours, and an
estimated annual recordkeeping burden
in subsequent years ranging from two to
ten hours per respondent, averaging
4.75 hours. Facilities regulated under
the Oil Pollution Prevention rule that
are not required to prepare response
plans have an estimated reporting
burden ranging from 0.25 to 6.5 hours
per respondent, averaging less than one
hour.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden to
Chief, Information Policy Branch; EPA;
401 M St., SW. (Mail Code 2136);
Washington, DC 20460; and to the
Office of Information and Regulatory
Affairs, Office of Management and
Budget, Washington, DC 20503, marked
"Attention: Desk Officer for EPA."
D. Display of OMB Control Numbers
EPA is also amending the table of
currently approved information
collection request (ICR) control numbers
issued by OMB for various regulations.
This amendment updates the table to
accurately display those information
requirements contained in this final
rule. This display of the OMB control
number and its subsequent codification
in the Code of Federal Regulations
satisfies the requirements of the
Paperwork Reduction Act (44 U.S.C.
3501 et seq.) and OMB's implementing
regulations at 5 CFR part 1320.
The ICR was previously subject to
public notice and comment prior to
OMB approval. As a result, EPA finds
that there is "good cause" under section
553(b)(3)(B) of the Administrative
Procedure Act (5 U.S.C. 553(b)(3)(B)) to
amend this table without prior notice
and comment. Due to the technical
nature of the table, further notice and
comment would be unnecessary.
List of Subjects
40 CFR Part 9
Environmental protection. Reporting
and recordkeeping requirements.
40 CFR Part 112
Environmental protection. Fire
prevention. Flammable materials.
Materials handling and storage, Oil
pollution. Oil spill response, Penalties,
Petroleum, Reporting and recordkeeping
requirements. Tanks, Water pollution
control, Water resources.
Dated: June IS, 1994.
Carol M. Browner,
Administrator.
For the reasons set out in the
preamble, 40 CFR Parts 9 and 112 are
amended as follows:
PART 9—OMB APPROVAL NUMBERS
UNDER THE PAPERWORK
REDUCTION ACT
1. The authority citation for part 9
continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y;
15 U.S.C. 2001, 2003, 2005, 2006, 2601-2671;
21 U.S.C. 331), 346a, 348; 31 U.S.C 9701; 33
U.S.C. 1251 et seq., 1311,1313d, 1314.1321,
1326,1330,1344,1345 (d) and (e), 1361; E.O.
11735, 38 FR 21243, 3 CFR, 1971-1975
Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246.
300f, 300g, 300g-l, 300g-2, 300g-3. 300g-4,
300g-5, 300g-6, 300J-1- 300J-2, 300J-3, 300J-
4, 300J-9.1857 et seq., 6901-6992k, 7401-
7671q, 7542. 9601-9657,11023,11048.
2. Section 9.1 is amended by adding
a centerheading and entry to the table in
numerical order to read as follows:
§ 9.1 OMB approvals under the Paperwork
Reduction Act
40 CFR citation
OMBcon-
trolNo.
Oil Pollution Prevention; Non-
Transportation-Related On-
shore Facilities 11220 2050-0135
PART 112—OIL POLLUTION
PREVENTION
3. The authority citation for part 112
is revised to read as follows:
Authority: 33 U.S.C. 1321 and 1361; E.O.
12777 (October 18,1991). 3 CFR. 1991
Comp., p. 351.
4. Section 112.2 is amended by
removing the paragraph designations (a)
through (1), placing definitions in
alphabetical order, and adding the
following new definitions in
alphabetical order, to read as follows:
Definitions.
***
Adverse weather means the weather
conditions that make it difficult for
response equipment and personnel to
cleanup or remove spilled oil, and that
will be considered when identifying
response systems and equipment in a
response plan for the applicable
operating environment. Factors to
consider include significant wave height
as specified in Appendix E to this part,
as appropriate, ice conditions,
temperatures, weather-related visibility,
and currents within the area in which
the systems or equipment are intended
to function.
Complex means a facility possessing a
combination of transportation-related
and non- transportation-related
components that is subject to the
jurisdiction of more than one Federal
agency under section 311(j) of the Clean
Water Act.
Contract or other approved means: (1)
A written contractual agreement with an
oil spill removal organization(s) that
identifies and ensures the availability of
the necessary personnel and equipment
within appropriate response times; and/
or
(2) A written certification by the
owner or operator that the necessary
personnel and equipment resources,
owned or operated by the facility owner
or operator, are available to respond to
a discharge within appropriate response
times; and/or
(3) Active membership in a local or
regional oil spill removal organization(s)
that has identified and ensures adequate
access through such membership to
necessary personnel and equipment to
respond to a discharge within
appropriate response times in the
specified geographic areas; and/or
(4) Other specific arrangements
approved by the Regional Administrator
upon request of the owner or operator.
*****
Fish and wildlife and sensitive
environments means areas that may be
identified by either their legal
designation or by evaluations of Area
Committees (for planning) or members
of the Federal On-Scene Coordinator's
spill response structure (during
responses). These areas may include
wetlands, National and State parks,
critical habitats for endangered/
threatened species, wilderness and
natural resource areas, marine
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34098 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
sanctuaries and estuarine reserves,
conservation areas, preserves, wildlife
areas, wildlife refuges, wild and scenic
rivers, recreational areas, national
forests. Federal and State lands that are
research national areas, heritage
program areas, land trust areas, and
historical and archeological sites and
parks. These areas may also include
unique habitats such as: aquaculture
sites and agricultural surface water
intakes, bird nesting areas, critical
biological resource areas, designated
migratory routes, and designated
seasonal habitats.
Injury means a measurable adverse
change, either long- or short-term, in the
chemical or physical quality or the
viability of a natural resource resulting
either directly or indirectly from
exposure to a discharge of oil, or
exposure to a product of reactions
resulting from a discharge of oil.
Maximum extent practicable means
the limitations used to determine oil
spill planning resources and response
times for on-water recovery, shoreline
protection, and cleanup for worst case
discharges from onshore non-
transportation-related facilities in
adverse weather. It considers the
planned capability to respond to a worst
case discharge in adverse weather, as
contained in a response plan that meets
the requirements in § 112.20 or in a
specific plan approved by the Regional
Administrator.
*****
Oil Spill Removal Organization means
an entity that provides oil spill response
resources, and includes any for-profit or
not-for-profit contractor, cooperative, or
in-house response resources that have
been established in a geographic area to
provide required response resources.
*****
Worst case discharge for an onshore
non-transportation-related facility
means the largest foreseeable discharge
in adverse weather conditions as
determined using the worksheets in
Appendix D to this part.
5. Sections 112.20 and 112.21 are
added to read as follows:
§ 112.20 Facility response plans.
(a) The owner or operator of any non-
transportation-related onshore facility
that, because of its location, could
reasonably be expected to cause
substantial harm to the environment by
discharging oil into or on the navigable
waters or adjoining shorelines shall
prepare and submit a facility response
plan to the Regional Administrator,
according to the following provisions:
(1) For the owner or operator of a
facility in operation on or before
February 18,1993 who is required to
prepare and submit a response plan
under 33 U.S.C. 1321(j)(5), the Oil
Pollution Act of 1990 (Pub. L. 101-380,
33 U.S.C. 2701 et seq.) requires the
submission of a response plan that
satisfies the requirements of 33 U.S.C.
1321(j)(5) no later than February 18,
1993.
(i) The owner or operator of an
existing facility that was in operation on
or before February 18,1993 who
submitted a response plan by February
18,1993 shall revise the response plan
to satisfy the requirements of this
section and resubmit the response plan
or updated portions of the response plan
to the Regional Administrator by
February 18,1995.
(ii) The owner or operator of an
existing facility in operation on or
before February 18,1993 who failed to
submit a response plan by February 18,
1993 shall prepare and submit a
response plan that satisfies the
requirements of this section to the
Regional Administrator before August
30,1994.
(2) The owner or operator of a facility
in operation on or after August 30,1994
that satisfies the criteria in paragraph
(f)(l) of this section or that is notified by
the Regional Administrator pursuant to
paragraph (b) of this section shall
prepare and submit a facility response
plan that satisfies the requirements of
this section to the Regional
Administrator.
(i) For a facility that commenced
operations after February 18,1993 but
prior to August 30,1994, and is required
to prepare and submit a response plan
based on the criteria in paragraph (f)(l)
of this section, the owner or operator
shall submit the response plan or
updated portions of the response plan,
along with a completed version of the
response plan cover sheet contained in
Appendix F to this part, to the Regional
Administrator prior to August 30,1994.
(ii) For a newly constructed facility
that commences operation after August
30,1994, and is required to prepare and
submit a response plan based on the
criteria in paragraph (f)(l) of this
section, the owner or operator shall
submit the response plan, along with a
completed version of the response plan
cover sheet contained in Appendix F to
this part, to the Regional Administrator
prior to the start of operations
(adjustments to the response plan to
reflect changes that occur at the facility
during the start-up phase of operations
must be submitted to the Regional
Administrator after an operational trial
period of 60 days).
(iii) For a facility required to prepare
and submit a response plan after August
30,1994, as a result of a planned change
in design, construction, operation, or
maintenance that renders the facility
subject to the criteria in paragraph (f)(l)
of this section, the owner or operator
shall submit the response plan, along
with a completed version of the
response plan cover sheet contained in
Appendix F to this part, to the Regional
Administrator before the portion of the
facility undergoing change commences
operations (adjustments to the response
plan to reflect changes that occur at the
facility during the start-up phase of
operations must be submitted to the
Regional Administrator after an
operational trial period of 60 days).
(iv) For a facility required to prepare
and submit a response plan after August
30,1994, as a result of an unplanned
event or change in facility
characteristics that renders the facility
subject to the criteria in paragraph (f)(l)
of this section, the owner or operator
shall submit the response plan, along
with a completed version of the
response plan cover sheet contained in
Appendix F to this part, to the Regional
Administrator within six months of the
unplanned event or change.
(3) In the event the owner or operator
of a facility that is required to prepare
and submit a response plan uses an
alternative formula that is comparable to
one contained in Appendix C to this
part to evaluate the criterion in
paragraph (f)(D(ii)(B) or (f)(l)(ii)(C) of
this section, the owner or operator shall
attach documentation to the response
plan cover sheet contained in Appendix
F to this part that demonstrates the
reliability and analytical soundness of
the alternative formula.
(b)(l) The Regional Administrator
may at any time require the owner or
operator of any non-transportation-
related onshore facility to prepare and
submit a facility response plan under
this section after considering the factors
in paragraph (f)(2) of this section. If
such a determination is made, the
Regional Administrator shall notify the
facility owner or operator in writing and
shall provide a basis for the
determination. If the Regional
Administrator notifies the owner or
operator in writing of the requirement to
prepare and submit a response plan
under this section, the owner or
operator of the facility shall submit the
response plan to the Regional
Administrator within six months of
receipt of such written notification.
(2) The Regional Administrator shall
review plans submitted by such
facilities to determine whether the
facility could, because of its location,
reasonably be expected to cause
significant and substantial harm to the
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34099
environment by discharging oil into or
on the navigable waters or adjoining
shorelines.
(c) The Regional Administrator shall
determine whether a facility could,
because of its location, reasonably be
expected to cause significant and
substantial harm to the environment by
discharging oil into or on the navigable
waters or adjoining shorelines, based on
the factors in paragraph (f)(3) of this
section. If such a determination is made,
the Regional Administrator shall notify
the owner or operator of the facility in
writing and:
(1) Promptly review the facility
response plan;
(2) Require amendments to any
response plan that does not meet the
requirements of this section;
(3) Approve any response plan that
meets the requirements of this section;
and
(4) Review each response plan
periodically thereafter on a schedule
established by the Regional
Administrator provided that the period
between plan reviews does not exceed
five years.
(d)(l) The owner or operator of a
facility for which a response plan is
required under this part shall revise and
resubmit revised portions of the
response plan within 60 days of each
facility change that materially may
affect the response to a worst case
discharge, including:
(i) A change in the facility's
configuration that materially alters the
information included in the response
plan;
(ii) A change in the type of oil
handled, stored, or transferred that
materially alters the required response
resources;
(iii) A material change in capabilities
of the oil spill removal organization(s)
that provide equipment and personnel
to respond to discharges of oil described
in paragraph (h)(5) of this section;
(iv) A material change in the facility's
spill prevention and response
equipment or emergency response
procedures; and
(v) Any other changes that materially
affect the implementation of the
response plan.
(2) Except as provided in paragraph
(d)(l) of this section, amendments to
personnel and telephone number lists
included in the response plan and a
change in the oil spill removal
organization(s) that does not result in a
material change in support capabilities
do not require approval by the Regional
Administrator. Facility owners or
operators shall provide a copy of such
changes to the Regional Administrator
as the revisions occur.
(3) The owner or operator of a facility
that submits changes to a response plan
as provided in paragraph (d)(l) or (d)(2)
of this section shall provide the EPA-
issued facility identification number
(where one has been assigned) with the
changes.
(4) The Regional Administrator shall
review for approval changes to a
, response plan submitted pursuant to
paragraph (d)(l) of this section for a
facility determined pursuant to
paragraph (f)(3) of this section to have
the potential to cause significant and
substantial harm to the environment.
(e) If the owner or operator of a
facility determines pursuant to
paragraph (a)(2) of this section that the
facility could not, because of its
location, reasonably be expected to
cause substantial harm to the
environment by discharging oil into or
on the navigable waters or adjoining
shorelines, the owner or operator shall
complete and maintain at the facility the
certification form contained in
Appendix C to this part and, in the
event an alternative formula that is
comparable to one contained in
Appendix C to this part is used to
evaluate the criterion in paragraph
(f)(l)(ii)(B) or (f)(l)(ii)(C) of this section,
the owner or operator shall attach
documentation to the certification form
that demonstrates the reliability and
analytical soundness of the comparable
formula and shall notify the Regional
Administrator in writing that an
alternative formula was used.
(f)(l) A facility could, because of its
location, reasonably be expected to
cause substantial harm to the
environment by discharging oil into or
on the navigable waters or adjoining
shorelines pursuant to paragraph (a)(2)
of this section, if it meets any of the
following criteria applied in accordance
with the flowchart contained in
Attachment C-I to Appendix C to this
part:
(i) The facility transfers oil over water
to or from vessels and has a total oil
storage capacity greater than or equal to
42,000 gallons; or
(ii) The facility's total oil storage
capacity is greater than or equal to 1
million gallons, and one of the
following is true:
(A) The facility does not have
secondary containment for each
aboveground storage area sufficiently
large to contain the capacity of the
largest aboveground oil storage tank
within each storage area plus sufficient
freeboard to allow for precipitation;
(B) The facility is located at a distance
(as calculated using the appropriate
formula in Appendix C to this part or a
comparable formula) such that a
discharge from the facility could cause
injury to fish and wildlife and sensitive
environments. For further description of
fish and wildlife and sensitive
environments, see Appendices I, n, and
III of the "Guidance for Facility and
Vessel Response Plans: Fish and
Wildlife and Sensitive Environments"
(see Appendix E to this part, section 10,
for availability) and the applicable Area
Contingency Plan prepared pursuant to
section 311(j)(4) of the Clean Water Act;
(C) The facility is located at a distance
(as calculated using the appropriate
formula in Appendix C to this part or a
comparable formula) such that a
discharge from the facility would shut
down a public drinking water intake; or
(D) The facility has had a reportable
oil spill in an amount greater than or
equal to 10,000 gallons within the last
5 years.
(2)(i) To determine whether a facility
could, because of its location,
reasonably be expected to cause
substantial harm to the environment by
discharging oil into or on the navigable
waters or adjoining shorelines pursuant
to paragraph (b) of this section, the
Regional Administrator shall consider
the following:
(A) Type of transfer operation;
(B) Oil storage capacity;
(C) Lack of secondary containment;
(D) Proximity to fish and wildlife and
sensitive environments and other areas
determined by the Regional
Administrator to possess ecological
value;
(E) Proximity to drinking water
intakes;
(F) Spill history; and
(G) Other site-specific characteristics
and environmental factors that the
Regional Administrator determines to be
relevant to protecting the environment
from harm by discharges of oil into or
on navigable waters or adjoining
shorelines.
(ii) Any person, including a member
of the public or any representative from
a Federal, State, or local agency who
believes that a facility subject to this
section could, because of its location,
reasonably be expected to cause
substantial harm to the environment by
discharging oil into or on the navigable
waters or adjoining shorelines may
petition the Regional Administrator to
determine whether the facility meets the
criteria in paragraph (f)(2)(i) of this
section. Such petition shall include a
discussion of how the factors in
paragraph (f)(2)(i) of this section apply
to the facility in question. The RA shall
consider such petitions and respond in
an appropriate amount of time.
(3) To determine whether a facility
could, because of its location.
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
reasonably be expected to cause
significant and substantial harm to the
environment by discharging oil into or
on the navigable waters or adjoining
shorelines, the Regional Administrator
may consider the factors in paragraph
(0(2) of this section as well as the
following:
(i) Frequency of past spills;
(ii) Proximity to navigable waters;
(iii) Age of oil storage tanks; and
(iv) Other facility-specific and Region-
specific information, including local
impacts on public health.
(g)(l) All facility response plans shall
be consistent with the requirements of
the National Oil and Hazardous
Substance Pollution Contingency Plan
(40 CFR part 300) and applicable Area
Contingency Plans prepared pursuant to
section 311(j)(4) of the Clean Water Act.
The facility response plan should be
coordinated with the local emergency
response plan developed by the local
emergency planning committee under
section 303 of Title III of the Superfund
Amendments and Reauthorization Act
of 1986 (42 U.S.C. 11001 et seq.). Upon
request, the owner or operator should
provide a copy of the facility response
plan to the local emergency planning
committee or State emergency response
commission.
(2) The owner or operator shall review
relevant portions of the National Oil and
Hazardous Substances Pollution
Contingency Plan and applicable Area
Contingency Plan annually and, if
necessary, revise the facility response
plan to ensure consistency with these
plans.
(3) The owner or operator shall review
and update the facility response plan
periodically to reflect changes at the
facility.
(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. A response plan that does
not follow the specified format in
Appendix F to this part shall have an
emergency response action plan as
specified in paragraphs (h)(l) of this
section and be supplemented with a
cross-reference section to identify the
location of the elements listed in
paragraphs (h)(2) through (h)(10) of this
section. To meet the requirements of
this part, a response plan shall address
the following elements, as further
described in Appendix F to this part:
(1) Emergency response action plan.
The response plan shall include an
emergency response action plan in the
format specified in paragraphs (h)(l)(i)
through (viii) of this section that is
maintained in the front of the response
plan, or as a separate document
accompanying the response plan, and
that includes the following information:
(i) The identity and telephone number
of a qualified individual having full
authority, including contracting
authority, to implement removal
actions;
(ii) The identity of individuals or
organizations to be contacted in the
event of a discharge so that immediate
communications between the qualified
individual identified in paragraph (h)(l)
of this section and the appropriate
Federal officials and the persons
providing response personnel and
equipment can be ensured;
(iii) A description of information to
pass to response personnel in the event
of a reportable spill;
(iv) A description of the facility's
response equipment and its location;
(v) A description of response
personnel capabilities, including the
duties of persons at the facility during
a response action and their response
times and qualifications;
(vi) Plans for evacuation of the facility
and a reference to community
evacuation plans, as appropriate;
(vii) A description of immediate
measures to secure the source of the
discharge, and to provide adequate
containment and drainage of spilled oil;
and
(viii) A diagram of the facility.
(2) Facility information. The response
plan shall identify and discuss the
location and type of the facility, the
identity and tenure of the present owner
and operator, and the identity of the
qualified individual identified in
paragraph (h)(l) of this section.
(3) Information about emergency
response. The response plan shall
include:
(i) The identity of private personnel
and equipment necessary to remove to
the maximum extent practicable a worst
case discharge and other discharges of
oil described in paragraph (h)(5) of this
section, and to mitigate or prevent a
substantial threat of a worst case
discharge (To identify response
resources to meet the facility response
plan requirements of this section,
owners or operators shall follow
Appendix E to this part or, where not
appropriate, shall clearly demonstrate in
the response plan why use of Appendix
E of this part is not appropriate at the
facility and make comparable
arrangements for response resources);
(ii) Evidence of contracts or other
approved means for ensuring the
availability of such personnel and
equipment;
(iii) The identity and the telephone
number of individuals or organizations
to be contacted in the event of a
discharge so that immediate
communications between the qualified
individual identified in paragraph (h)(l)
of this section and the appropriate
Federal official and the persons
providing response personnel and
equipment can be ensured;
(iv) A description of information to
pass to response personnel in the event
of a reportable spill;
(v) A description of response
personnel capabilities, including the
duties of persons at the facility during
a response action and their response
times and qualifications;
(vi) A description of the facility's
response equipment, the location of the
equipment, and equipment testing;
(vii) Plans for evacuation of the
facility and a reference to community
evacuation plans, as appropriate;
(viii) A diagram of evacuation routes;
and
(ix) A description of the duties of the
qualified individual identified in
paragraph (h)(l) of this section, that
include:
(A) Activate internal alarms and
hazard communication systems to notify
all facility personnel;
(B) Notify all response personnel, as
needed;
(C) Identify the character, exact
source, amount, and extent of the
release, as well as the other items
needed for notification;
(D) Notify and provide necessary
information to the appropriate Federal,
State, and local authorities with
designated response roles, including the
National Response Center, State
Emergency Response Commission, and
Local Emergency Planning Committee;
(E) Assess the interaction of the
spilled substance with water and/or
other substances stored at the facility
and notify response personnel at the
scene of that assessment;
(F) Assess the possible hazards to
human health and the environment due
to the release. This assessment must
consider both the direct and indirect
effects of the release (i.e., the effects of
any toxic, irritating, or asphyxiating
gases that may be generated, or the
effects of any hazardous surface water
runoffs from water or chemical agents
used to control fire and heat-induced
explosion);
(C) Assess and implement prompt
removal actions to contain and remove
the substance released;
(H) Coordinate rescue and response
actions as previously arranged with all
response personnel;
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations 34101
(I) Use authority to immediately
access company funding to initiate
cleanup activities; and
(J) Direct cleanup activities until
properly relieved of this responsibility.
(4) Hazard evaluation. The response
plan shall discuss the facility's known
or reasonably identifiable history of
discharges reportable under 40 CFR part
110 for die entire life of the facility and
shall identify areas within the facility
where discharges could occur and what
the potential effects of the discharges
would be on the affected environment.
To assess die range of areas potentially
affected, owners or operators shall,
where appropriate, consider the
distance calculated in paragraph
(f)(l)(ii) of this section to determine
whether a facility could, because of its
location, reasonably be expected to
cause substantial harm to the
environment by discharging oil into or
on the navigable waters or adjoining
shorelines.
(5) Response planning levels. The
response plan shall include discussion
of specific planning scenarios for:
(i) A worst case discharge, as
calculated using the appropriate
worksheet in Appendix D to this part.
In cases where the Regional
.Administrator determines that the worst
case discharge volume calculated by the
facility is not appropriate, the Regional
Administrator may specify the worst
case discharge amount to be used for
response planning at the facility. For
complexes, the worst case planning
quantity shall be the larger of the
amounts calculated for each component
of the facility;
(ii) A discharge of 2,100 gallons or
less, provided that this amount is less
than the worst case discharge amount.
For complexes, this planning quantity
shall be the larger of the amounts
calculated for each component of the
facility; and
(iii) A discharge greater than 2,100
gallons and less than or equal to 36,000
gallons or 10 percent of the capacity of
the largest tank at die facility,
whichever is less, provided that this
amount is less than the worst case
discharge amount. For complexes, diis
planning quantity shall be die larger of
the amounts calculated for each
component of the facility.
(6) Discharge detection systems. The
response plan shall describe the
procedures and equipment used to
detect discharges.
(7) Plan implementation. The
response plan shall describe:
(0 Response actions to be carried out
by facility personnel or contracted
personnel under the response plan to
ensure the safety of the facility and to
mitigate or prevent discharges described
in paragraph (h)(5) of this section or the
substantial threat of such discharges;
(ii) A description of the equipment to
be used for each scenario;
(iii) Plans to dispose of contaminated
cleanup materials; and
(iv) Measures to provide adequate
containment and drainage of spilled oil.
(8) Self-inspection, drills/exercises,
and response training. The response
plan shall include:
(i) A checklist and record of
inspections for tanks, secondary
containment, and response equipment;
(ii) A description of the drill/exercise
program to be carried out under the
response plan as described in § 112.21;
(iii) A description of the training
program to be carried out under the
response plan as described in § 112.21;
and
(iv) Logs of discharge prevention
meetings, training sessions, and drills/
exercises. These logs may be maintained
as an annex to the response plan.
(9) Diagrams. The response plan shall
include site plan and drainage plan
diagrams.
(10) Security systems. The response
plan shall include a description of
facility security systems.
(11) Response plan cover sheet. The
response plan shall include a completed
response plan cover sheet provided in
Section 2.Q of Appendix F to this part.
(i)(l) In the event the owner or
operator of a facility does not agree with
die Regional Administrator's
determination that the facility could,
because of its location, reasonably be
expected to cause substantial harm or
significant and substantial harm to the
environment by discharging oil into or
on the navigable waters or adjoining
shorelines, or that amendments to the
facility response plan are necessary
prior to approval, such as changes to the
worst case discharge planning volume,
the owner or operator may submit a
request for reconsideration to the
Regional Administrator and provide
additional information and data in
writing to support the request. The
request and accompanying information
must be submitted to the Regional
Administrator within 60 days of receipt
of notice of the Regional Administrator's
original decision. The Regional
Administrator shall consider die request
and render a decision as rapidly as
practicable.
(2) In the event the owner or operator
of a facility believes a change in the
facility's classification status is
warranted because of an unplanned
event or change in the facility's
characteristics (i.e., substantial harm or
significant and substantial harm), the
owner or operator may submit a request
for reconsideration to the Regional
Administrator and provide additional
information and data in writing to
support die request. The Regional
Administrator shall consider the request
and render a decision as rapidly as
practicable.
(3) After a request for reconsideration
under paragraph (i)(l) or (i)(2) of diis
section has been denied by die Regional
Administrator, an owner or operator
may appeal a determination made by
the Regional Administrator. The appeal
shall be made to die EPA Administrator
and shall be made in writing within 60
days of receipt of die decision from die
Regional Administrator that die request
for reconsideration was denied. A
complete copy of die appeal must be
sent to the Regional Administrator at the
time the appeal is made. The appeal
shall contain a clear and concise
statement of die issues and points of fact
in the case. It also may contain
additional information from die owner
or operator, or from any other person.
The EPA Administrator may request
additional information from the owner
or operator, or from any other person.
The EPA Administrator shall render a
decision as rapidly as practicable and
shall notify die owner or operator of die
decision.
§ 11 £21 Facility response training and
drills/exercises.
(a) The owner or operator of any
facility required to prepare a facility
response plan under § 112.20 shall
develop and implement a facility
response training program and a drill/
exercise program that satisfy the
requirements of this section. The owner
or operator shall describe the programs
in the response plan as provided in
§112.20(h)(8).
(b) The facility owner or operator
shall develop a facility response training
program to train diose personnel
involved in oil spill response activities.
It is recommended that the training
program be based on die USCG's
Training Elements for Oil Spill
Response, as applicable to facility
operations. An alternative program can
also be acceptable subject to approval by
die Regional Administrator.
(1) The owner or operator shall be
responsible for die proper instruction of
facility personnel in die procedures to
respond to discharges of oil and in
applicable oil spill response laws, rules,
and regulations.
(2) Training shall be functional in
nature according to job tasks for bodi
supervisory and non-supervisory
operational personnel.
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34102 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
(3) Trainers shall develop specific
lesson plans on subject areas relevant to
facility personnel involved in oil spill
response and cleanup.
(c) The facility owner or operator
shall develop a program of facility
response drills/exercises, including
evaluation procedures. A program that
follows the National Preparedness for
Response Exercise Program (PREP) (see
Appendix E to this part, section 10, for
availability) will be deemed satisfactory
for purposes of this section. An
alternative program can also be
acceptable subject to approval by the
Regional Administrator.
6. Part 112 is amended by
redesignating the appendix to Part 112
titled "Memorandum of Understanding
Between the Secretary of Transportation
and the Administrator of the
Environmental Protection Agency" as
Appendix A to Part 112.
•
Appendices B Through F Part 112 [Added]
7. Part 112 is amended by adding
Appendices B through F to read as
follows:
Appendix B to Part 112—Memorandum of
Understanding Among the Secretary of the
Interior, Secretary of Transportation, and
Administrator of the Environmental
Protection Agency
Purpose
This Memorandum of Understanding
(MOU) establishes the jurisdictional
responsibilities for offshore facilities,
including pipelines, pursuant to section 311
(j)(D(c). (j)(5), and (j)(6)(A) of the Clean Water
Act (CWA), as amended by the Oil Pollution
Act of 1990 (Public Law 101-380). The
Secretary of the Department of the Interior
(DOI), Secretary of the Department of
Transportation (DOT), and Administrator of
the Environmental Protection Agency (EPA)
agree to the division of responsibilities set
forth below for spill prevention and control,
response planning, and equipment
inspection activities pursuant to those
provisions.
Background
Executive Order (E.O.) 12777 (56 FR
54757) delegates to DOI, DOT. and EPA
various responsibilities identified in section
311(j) of the CWA. Sections 2(b)(3). 2(d)(3),
and 2(e)(3) of E.O. 12777 assigned to DOI
spill prevention and control, contingency
planning, and equipment inspection
activities associated with offshore facilities.
Section 311(a)(ll) defines the term "offshore
facility" to include facilities of any kind
located in, on, or under navigable waters of
the United States. By using this definition,
the traditional DOI role of regulating facilities
on the Outer Continental Shelf is expanded
by E.O. 12777 to include inland lakes, rivers,
streams, and any other inland waters.
Responsibilities
Pursuant to section 2(i) of E.O. 12777, DOI
redelegates, and EPA and DOT agree to
assume, the functions vested in DOI by
sections 2(b)(3), 2(d)(3). and 2{e)(3) of E.O.
12777 as set forth below. For purposes of this
MOU, the term "coast line" shall be defined
as in the Submerged Lands Act (43 U.S.C.
1301(c)) to mean "the line of ordinary low
water along that portion of the coast which
is in direct contact with the open sea and the
line marking the seaward limit of inland
waters."
1. To EPA, DOI redelegates responsibility
for non-transportation-related offshore
facilities located landward of the coast line.
2. To DOT, DOI redelegates responsibility
for transportation-related facilities, including
pipelines, located landward of the coast line.
The DOT retains jurisdiction for deepwater
ports and their associated seaward pipelines,
as delegated by E.O. 12777.
3. The DOI retains jurisdiction over
facilities, including pipelines, located
seaward of the coast line, except for
deepwater ports and associated seaward
pipelines delegated by E.O. 12777 to DOT.
Effective Date
This MOU is effective on the date of the
final execution by the indicated signatories.
Limitations
1. The DOI, DOT, and EPA may agree in
writing to exceptions to this MOU on a
facility-specific basis. Affected parties will
receive notification of the exceptions.
2. Nothing in this MOU is intended to
replace, supersede, or modify any existing
agreements between or among DOI, DOT, or
EPA.
Modification and Termination
Any party to this agreement may propose
modifications by submitting them in writing
to the heads of the other agency/department.
No modification may be adopted except with
the consent of all panics. All parties shall
indicate their consent to or disagreement
with any proposed modification within 60
days of receipt. Upon the request of any
party, representatives of all parties shall meet
for the purpose of considering exceptions or
modifications to this agreement. This MOU
may be terminated only with the mutual
consent of all parties.
Dated: November 8, 1993.
Bruce Babbitt,
Secretary of the Interior.
Dated: December 14,1993.
Federico Pena,
Secretary of Transportation.
Dated: February 3,1994.
Carol M. Browner,
Administrator, Environmental Protection
Agency.
Appendix C to Part 112—Substantial Harm
Criteria
1.0 Introduction
The flowchart provided in Attachment C—
I to this appendix shows the decision tree
with the criteria to identify whether a facility
"could reasonably be expected to cause
substantial harm to the environment by
discharging into or on the navigable waters
or adjoining shorelines." In addition, the
Regional Administrator has the discretion to
identify facilities that must prepare and
submit facility-specific response plans to
EPA.
1.1 Definitions
1.1.1 Great Lakes means Lakes Superior,
Michigan, Huron, Erie, and Ontario, their
connecting and tributary waters, the Saint
Lawrence River as far as Saint Regis, and
adjacent port areas.
1.1.2 Higher Volume Port Areas include
(1) Boston, MA;
(2) New York, NY;
(3) Delaware Bay and River to
Philadelphia, PA;
(4) St. Croix, VI;
(5) Pascagoula, MS;
(6) Mississippi River from Southwest Pass,
LA to Baton Rouge, LA;
(7) Louisiana Offshore Oil Port (LOOP),
LA;
(8) Lake Charles, LA;
(9) Sabine-Neches River, TX;
(10) Galveston Bay and Houston Ship
Channel, TX;
(11) Corpus Christi, TX;
(12) Los Angeles/Long Beach Harbor, CA;
(13) San Francisco Bay, San Pablo Bay,
Carquinez Strait, and Suisun Bay to Antioch,
CA;
(14) Straits of Juan de Fuca from Port
Angeles, WA to and including Puget Sound,
WA;
(15) Prince William Sound, AK; and
(16) Others as specified by the Regional
Administrator for any EPA Region.
1.1.3 Inland Area means the area
shoreward of the boundary lines defined in
46 CFR part 7, except in the Gulf of Mexico.
In the Gulf of Mexico, it means the area
shoreward of the lines of demarcation
(COLREG lines as defined in 33 CFR
80.740—80.850). The inland area does not
include the Great Lakes.
1.1.4 Rivers and Canals means a body of
water confined within the inland area,
including the Intracoastal Waterways and
other waterways artificially created for
navigating that have project depths of 12 feet
or less.
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. 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 42,000
gallons that transfers oil over water to or from
vessels must submit a response plan to EPA.
Daily oil transfer operations at these types of
facilities occur between barges and vessels
and onshore bulk storage tanks over open
water. These facilities are located adjacent to
navigable water.
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations 34103
2.2 Lack of Adequate Secondary
Containment at Facilities With a Total Oil
Storage Capacity Greater Than or Equal to 1
Million Gallons. Any facility with a total oil
storage capacity greater than or equal to 1
million gallons without secondary
containment sufficiently large to contain the
•capacity of the largest aboveground oil
storage tank within each area plus sufficient
freeboard to allow for precipitation must
submit a response plan to EPA. Secondary
containment structures that meet the
standard of good engineering practice for the
purposes of this part include berms, dikes,
retaining walls, curbing, culverts, gutters, or
other drainage systems.
2.3 Proximity to Fish and Wildlife and
Sensitive Environments at Facilities With a
Total Oil Storage Capacity Greater Than or
Equal to 1 Million Gallons. A facility with a
total oil storage capacity greater than or equal
to 1 million gallons must submit its response
plan if it is located at a distance such that
a discharge from the facility could cause
injury (as defined at 40 CFR 112.2) to fish
and wildlife and sensitive environments. For
further description of fish and wildlife and
sensitive environments, see Appendices I, II,
and III to DOC/NOAA's "Guidance for
Facility and Vessel Response Plans: Fish and
Wildlife and Sensitive Environments" (see
Appendix E to this part, section 10, for
availability) and the applicable Area
Contingency Plan. Facility owners or
operators must determine the distance at
which an oil spill could cause injury to fish
and wildlife and sensitive environments
using the appropriate formula presented in
Attachment C-III to this appendix or a
comparable formula.
2.4 Proximity to Public Drinking Water
Intakes at Facilities with a Total Storage Oil
Capacity Greater Than or Equal to 1 Million
Gallons. A facility with a total storage
capacity greater than or equal to 1 million
gallons must submit its response plan if it is
located at a distance such that a discharge
from the facility would shut down a public
drinking water intake, which is analogous to
a public water system as described at 40 CFR
143.2(c). The distance at which an oil spill
from an SPCC-regulated facility would shut
down a public drinking water intake shall be
calculated using the appropriate formula
presented in Attachment C—III to this
appendix or a comparable formula.
2.5 Facilities That Have Experienced
Reportable Oil Spills in an Amount Greater
Than or Equal to 10,000 Gallons Within the
Past 5 Years and That Have a Total Oil
Storage Capacity Greater Than or Equal to 1
Million Gallons. A facility's oil spill history
within the past 5 years shall be considered
in the evaluation for substantial harm. Any
facility with a total oil storage capacity
greater than or equal to 1 million gallons that
has experienced a reportable oil spill in an
amount greater than or equal to 10,000
gallons within the past 5 years must submit
a response plan to EPA.
3.0 Certification for Facilities That Do Not
Pose Substantial Harm
If the facility does not meet the substantial
harm criteria listed in Attachment C-I to this
appendix, the owner or operator shall
complete and maintain at the facility the
certification form contained in Attachment
C—n to this appendix. In the event an
alternative formula that is comparable to the
one in this appendix is used to evaluate the
substantial harm criteria, the owner or
operator shall attach documentation to the
certification form that demonstrates the
reliability and analytical soundness of the
comparable formula and shall notify the
Regional Administrator in writing that an
alternative formula was used.
4.0 References
Chow, V.T. 1959. Open Channel
Hydraulics. McGraw Hill.
USCG IFR (58 FR 7353, February 5,1993).
This document is available through EPA's
rulemaking docket as noted in Appendix E to
this part, section 10.
Attachments to Appendix C
»5«0-6O-P
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34104 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
Attachment C - I
Flowchart of Criteria for Substantial Harm
Does the facility transfer oil over
water to or from vessels and does
the facility have a total oil storage
capacity greater than or equal to
42,000 gaiions?
Yes
No
Docs the facility have a total oil
storage capacity greater than or
equal to 1 million gallons?
Yet
No
Submit Response Plan
Within any aboveground storage tank
area, does the facility lack secondary
containment that is sufficiently large to '
contain the capacity of the largest
aboveground oil storage tank plus sufficient.
freeboard to allow for precipitation? >
Yes
No
Is the facility located at a distance '
such that a discharge from the facility
could cause injury to fish and wildlife
and sensitive environments 2 ?
Yes
NO
Is the facility located at a distance '
such that a discharge from the facility
would shut down a public drinking
water intake 3 ?
Yes
No
Has the facility experienced a reportable
oil spill in an amount greater than or equal i.
to 10,000 gallons within the last 5 years?
No Submittal of Response Plan
Except at RA Discretion
No
BILLING CODE U60-60-C
1 Calculated using the appropriate
formula in Attachment C-Iu to this
appendix or a comparable formula.
2 For further description of fish and
wildlife and sensitive environments,
see Appendices L IL and ELI to
DOC/NOAA's Tjuidancc for Facility
and Vessel Response Plans: Fish tnd
Wildlife and Sensitive Environments"
(59 FR 14713. March 29. 1994) and
the applicable Area Contingency Plan.
3 Public drinking water intakes are
analogous to public water systems
as described at 40 CFR \4\2Hc\
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
34105
Attachment C-n—Certification of the
Applicability of the Substantial Harm
Criteria
Facility Name:
Facility Addresses:
1. Does the facility transfer oil over water
to or from vessels and does the facility have
a total oil storage capacity greater than or
equal to 42.000 gallons?
Yes No
2. Does the facility have a total oil storage
capacity greater than or equal to 1 million
gallons and does the facility lack secondary
containment that is sufficiently large to
contain the capacity of the largest
aboveground oil storage tank plus sufficient
freeboard to allow for precipitation within
any aboveground oil storage tank area?
Yes No
3. Does the facility have a total oil storage
capacity greater than or equal to 1 million
gallons and is the facility located at a
distance (as calculated using the appropriate
formula in Attachment C-III to this appendix
or a comparable formula M such that a
discharge from the facility could cause injury
to fish and wildlife and sensitive
environments? For further description of fish
and wildlife and sensitive environments, see
Appendices I, II, and III to DOC/NOAA's
"Guidance for Facility and Vessel Response
Plans: Fish and Wildlife and Sensitive
Environments" (see Appendix E to this part,
section 10, for availability) and the
applicable Area Contingency Plan.
Yes No
4. Does the facility have a total oil storage
capacity greater than or equal to 1 million
gallons and is the facility located at a
distance (as calculated using the appropriate
formula in Attachment C-III to this appendix
or a comparable formula') such that a
discharge from the facility would shut down
a public drinking water intake z ?
Yes No
5. Does the facility have a total oil storage
capacity greater than or equal to 1 million
gallons and has the facility experienced a
reportable oil spill in an amount greater than
or equal to 10,000 gallons within the last 5
years?
Yes No
Certification
I certify under penalty of law that I have
personally examined and am familiar with
the information submitted in this document,
and that based on my inquiry of those
individuals responsible for obtaining this
information. I believe that the submitted
information is true, accurate, and complete.
Signature
Name (please type or print)
Title
Date
Attachment C-III—Calculation of the
Planning Distance
1.0 Introduction
1.1 The facility owner or operator must
evaluate whether the facility is located at a
distance such that a discharge from the
facility could cause injury to fish and
wildlife and sensitive environments or
disrupt operations at a public drinking water
intake. To quantify that distance, EPA
considered oil transport mechanisms over
land and on still, tidal influence, and moving
navigable waters. EPA has determined that
the primary concern for calculation of a
planning distance is the transport of oil in
navigable waters during adverse weather
conditions. Therefore, two formulas have
been developed to determine distances for
planning purposes from the point of
discharge at the facility to the potential site
of impact on moving and still waters,
respectively. The formula for oil transport on
moving navigable water is based on the
velocity of the water body and the time
interval for arrival of response resources. The
still water formula accounts for the spread of
discharged oil over the surface of the water.
The method to determine oil transpoij on
tidal influence areas is based on the type of
oil spilled and the distance down current
during ebb tide and up current during flood
tide to the point of maximum tidal influence.
1.2 EPA's formulas were designed to be
simple to use. However, facility owners or
operators may calculate planning distances
using more sophisticated formulas, which
take into account broader scientific or
engineering principles, or local conditions.
Such comparable formulas may result in
different planning distances than EPA's
formulas. In the event that an alternative
formula that is comparable to one contained
in this appendix is used to evaluate the
criterion in 40 CFR 112.20(f)(l)(ii)(B) or
(f)(l)(ii)(C). the owner or operator shall attach
documentation to the response plan cover
sheet contained in Appendix F to this part
that demonstrates the reliability and
analytical soundness of the alternative
formula and shall notify the Regional
Administrator in writing that an alternative
formula was used.1
1.3 A regulated facility may meet the
criteria for the potential to cause substantial
harm to the environment without having to
perform a planning distance calculation. For
facilities that meet the substantial harm
criteria because of inadequate secondary
containment or oil spill history, as listed in
1 If a comparable formula is used documentation
of the reliability and analytical soundness of the
comparable formula must be attached to this form.
2 For the purposes of 40 CFR part 112. public
drinking water intakes are analogous to public
water systems as described at 40 CFR 143.2(c).
1 For persistent oils or non-persistent oils, a worst
case trajectory model (i.e.. an alternative formula)
may be substituted for the distance formulas
described in still, moving, and tidal waters, subject
to Regional Administrator's review of the model.
An example of an alternative formula that is
comparable to the one contained in this appendix
would be a worst case trajectory calculation based
on credible adverse winds, currents, and/or river
stages, over a range of seasons, weather conditions.
and river stages. Based on historical information or
a spill trajectory model, the Agency may require
that additional fish and wildlife and sensitive
environments or public drinking water intakes also
be protected.
the flowchart in Attachment C-I to this
appendix, calculation of the planning
distance is unnecessary. For facilities that do
not meet the substantial harm criteria for
secondary containment or oil spill history as
listed in the flowchart, calculation of a
planning distance for proximity to fish and
wildlife and sensitive environments and
public drinking water intakes is required,
unless it is clear without performing the
calculation (e.g., the facility is located in a
wetland) that these areas would be impacted.
1.4 A facility owner or operator who must
perform a planning distance calculation on
navigable water is only required to do so for
the type of navigable water conditions (i.e.,
moving water, still water, or tidal- influenced
water) applicable to the facility. If a facility
owner or operator determines that more than
one type of navigable water condition
applies, then the facility owner or operator is
required to perform a planning distance
calculation for each navigable water type to
determine the greatest single distance that oil
may be transported. As a result, the final
planning distance for oil transport on water
shall be the greatest individual distance
rather than a summation of each calculated
planning distance.
1.5 The planning distance formula for
transport on moving waterways contains
three variables: the velocity of the navigable
water (v), the response time interval (t), and
a conversion factor (c). The velocity, v, is
determined by using the Chezy-Manning
equation, which, in this case, models the
flood flow rate of water in open channels.
The Chezy-Manning equation contains three
variables which must be determined by
facility owners or operators. Manning's
Roughness Coefficient (for flood flow rates),
n, can be determined from Table 1 of this
attachment. The hydraulic radius, r, can be
estimated using the average mid-channel
depth from charts provided by the sources
listed in Table 2 of this attachment. The
average slope of the river, s, can be
determined using topographic maps that can
be ordered from the U.S. Geological Survey,
as listed in Table 2 of this attachment.
1.6 Table 3 of this attachment contains
specified time intervals for estimating the
arrival of response resources at the scene of
a discharge. Assuming no prior planning,
response resources should be able to arrive
at the discharge site within 12 hours of the
discovery of any oil discharge in Higher
Volume Port Areas and within 24 hours in
Great Lakes and all other river, canal, inland,
and nearshore areas. The specified time
intervals in Table 3 of Appendix C are to be
used only to aid in the identification of
whether a facility could cause substantial
harm to the environment. Once it is
determined that a plan must be developed for
the facility, the owner or operator shall
reference Appendix E to this part to
determine appropriate resource levels and
response times. The specified time intervals
of this appendix include a 3-hour time period
for deployment of boom and other response
equipment. The Regional Administrator may
identify additional areas as appropriate.
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34106 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
2.0 Oil Transport on Moving Navigable
Waters
2.1 The facility owner or operator
must use the following formula or a
comparable formula as described in
§ 112.20(a)(3) to calculate the planning
distance for oil transport on moving •
navigable water:
d=v x t x c; where
d: the distance downstream from a facility
within which fish and wildlife and
sensitive environments could be injured
or a public drinking water intake would
be shut down in the event of an oil
discharge (in miles);
v: the velocity of the river/navigable water of
concern (in ft/sec) as determined by
Chezy-Manning's equation (see below
and Tables 1 and 2 of this attachment);
t: the time interval specified in Table 3 based
upon the type of water body and location
(in hours); and
c: constant conversion factor 0.68 sec»mile/
hr»ft (3600 sec/hr + 5280 ft/mile).
2.2 Chezy-Manning's equation is used to
determine velocity:
v=1.5/n x rV3 x sVz; where
v=the velocity of the river of concern (in ft/
sec);
n=Manning's Roughness Coefficient from
Table 1 of this attachment;
r=the hydraulic radius; the hydraulic radius
can be approximated for parabolic
channels by multiplying the average
mid-channel depth of the river (in feet)
by 0.667 (sources for obtaining the mid-
channel depth are listed in Table 2 of
this attachment); and
s=the average slope of the river (unitless)
obtained from U.S. Geological Survey
topographic maps at the address listed in
Table 2 of this attachment.
TABLE 1 .—MANNING'S ROUGHNESS
COEFFICIENT FOR NATURAL STREAMS
[NOTE: Coefficients are presented for high flow
rates at or near flood stage.]
Stream description
Minor Streams (Top Width <1 00 ft.)
Clean:
Straight ..
Winding
Sluggish (Weedy, deep pools):
No trees or brush
Trees and/or brush
Major Streams (Top Width >100 ft)
Regular section:
(No boulders/brush)
Irregular section:
(Brush)
Rough-
ness co-
efficient
(n)
0.03
.04
.06
.10
.035
.05
TABLE 2.—SOURCES OF R AND s FOR
THE CHEZY-MANNING EQUATION
All of the charts and related publications for
navigational waters may be ordered from:
Distribution Branch
(N/CG33)
National Ocean Service
Riverdale. Maryland 20737-1199
TABLE 2.—SOURCES OF R AND s FOR
THE CHEZY-MANNING EQUATION—
Continued
Phone:(301)436-6990
There will be a charge for materials or-
dered and a VISA or Mastercard will be
accepted.
The mid-channel depth to be used in the cal-
culation of the hydraulic radius (r) can be
obtained directly from the • following
sources:
Charts of Canadian Coastal and Great
Lakes Waters:
Canadian Hydrographic Service
Department of Fisheries and Oceans Insti-
tute
P.O. Box 8080
1675 Russell Road
Ottawa, Ontario KIG 3H6
Canada
Phone:(613)998-4931
Charts and Maps of Lower Mississippi
River
(Gulf of Mexico to Ohio River and St.
Francis, White, Big Sunflower,
Atchafalaya, and other rivers):
U.S. Army Corps of Engineers
Vicksburg District
P.O. Box 60
Vicksburg, Mississippi 39180
Phone:(601)634-5000
Charts of Upper Mississippi River and Illi-
nois Waterway to Lake Michigan:
U.S. Army Corps of Engineers
Rock Island District
P.O. Box 2004
Rock Island, Illinois 61204
Phone: (309) 794-5552
Charts of Missouri River:
U.S. Army Corps of Engineers
Omaha District
6014 U.S. Post Office and Courthouse
Omaha, Nebraska 68102
Phone: (402) 221-3900
Charts of Ohio River
U.S. Army Corps of Engineers
Ohio River Division
P.O.Box 1159
Cincinnati, Ohio 45201
Phone: (513) 684-3002
Charts of Tennessee Valley Authority Res-
ervoirs, Tennessee River and Tribu-
taries:
Tennessee Valley Authority
Maps and Engineering Section
416 Union Avenue
Knoxvllle, Tennessee 37902
Phone: (615) 632-2921
Charts of Black Warrior River, Alabama
River, Tombigbee River, Apalachicola
River and Pearl River
U.S. Army Corps of Engineers
Mobile District
P.O. Box 2288
Mobile, Alabama 36628-0001
Phone:(205)690-2511
The average slope of the river (s) may be
obtained from topographic maps:
U.S. Geological Survey
Map Distribution
Federal Center
BWg. 41
Box 25286
TABLE 2.—SOURCES OF R AND s FOR
THE CHEZY-MANNING EQUATION—
Continued
Denver, Colorado 80225
Additional information can be obtained from
the following sources:
1. The State's Department of Natural Re-
sources (DNR) or the State's Aids to
Navigation office;
2. A knowledgeable local marina operator;
or
3. A knowledgeable local water authority
(e.g., State water commission)
2.3 The average slope of the river (s) can
be determined from the topographic maps
using the following steps:
(1) Locate the facility on the map.
(2) Find the Normal Pool Elevation at the
point of discharge from the facility into the
water (A).
(3) Find the Normal Pool Elevation of the
public drinking water intake or fish and
wildlife and sensitive environment located
downstream (B) (Note: The owner or operator
should use a minimum of 20 miles
downstream as a cutoff to obtain the average
slope if the location of a specific public
drinking water intake or fish and wildlife and
sensitive environment is unknown).
(4) If the Normal Pool Elevation is not
available, the elevation contours can be used
to find the slope. Determine elevation of the
water at the point of discharge from the
facility (A). Determine the elevation of the
water at the appropriate distance
downstream (B). The formula presented
below can be used to calculate the slope.
(5) Determine the distance (in miles)
between the facility and the public drinking
water intake or fish and wildlife and
sensitive environments (C).
(6) Use the following formula to find the
slope, which will be a unitless value:
Average Slope=((A—B) (ft)/C (miles)] x (1
mile/5280 feet]
2.4 If it is not feasible to determine the
slope and mid-channel depth by the Chezy-
Manning equation, then the river velocity can
be approximated on- site. A specific length,
such as 100 feet, can be marked off along the
shoreline. A float can be dropped into the
stream above the mark, and the time required
for the float to travel the distance can be used
to determine the velocity in feet per second.
However, this method will not yield an
average velocity for the length of the stream,
but a velocity only for the specific location
of measurement. In addition, the flow rate
will vary depending on weather conditions
such as wind and rainfall. It is recommended
that facility owners or operators repeat the
measurement under a variety of conditions to
obtain the most accurate estimate of the
surface water velocity under advene weather
conditions.
2.5 The planning distance calculations
for moving and still navigable waters are
based on wont case discharges of penistent
oils. Penistent oils an of concern because
they can remain in the water for significant
periods of time and can potentially exist in
large quantities downstream. Owners or
operators of facilities that store penistent as
well as non-persistent oils may use a
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Federal Register / Vol. 59, No. 126 / Friday, July 1. 1994 / Rules and Regulations 34107
comparable formula. The volume of oil
discharged is not included as part of the
planning distance calculation for moving
navigable waters. Facilities that will meet
this substantial harm criterion are those with
facility capacities greater than or equal to 1
million gallons. It is assumed that these
facilities are capable of having an oil
discharge of sufficient quantity to cause
injury to fish and wildlife and sensitive
environments or shut down a public drinking
water intake. While owners or operators of
transfer facilities that store greater than or
equal to 42,000 gallons are not required to
use a planning distance formula for purposes
of the substantial harm criteria, they should
use a planning distance calculation in the
development of facility-specific response
plans.
TABLE 3.—SPECIFIED TIME INTERVALS
Operating
areas
Higher vol-
ume port
area.
Great
Lakes.
All other
rivers
and ca-
nals, in-
land.
and
near-
shore
areas.
Substantial harm planning
(hrs)
12 hour arrival+3
deployment' 15 hours.
24 hour arrivai+3
deptoyment=27 hours.
24 hour arrival+3
deployment=27 hours.
time
hour
hour
hour
2.6 Example of the Planning Distance
Calculation for Oil Transport on Moving
Navigable Waters. The following example
provides a sample calculation using the
planning distance formula for a facility
discharging oil into the Monongahela River
(1) Solve for v by evaluating n, r, and s for
the Chezy-Manning equation:
Find the roughness coefficient, n, on Table
1 of this attachment for a regular section of
a major stream with a top width greater than
100 feet. The top width of the river can be
found from the topographic map.
n=0.035.
Find slope, s, where A=727 feet, B=710 feet,
and C=25 miles.
Solving:
s=l(727 ft—710 ft)/25 miles] x [1 mile/5280
feet)=1.3xlO-«
The average mid-channel depth is found by
averaging the mid-channel depth for each
mile along the length of the river between the
facility and the public drinking water intake
or the fish or wildlife or sensitive
environment (or 20 miles downstream if
applicable). This value is multiplied by 0.667
to obtain the hydraulic radius. The mid-
channel depth is found by obtaining values
for r and s from the sources shown in Table
2 for the Monongahela River.
Solving:
r=0.667x20 feet=13.33 feet
Solve for v using:
v=l.5/nxrz'3xs"1:
v=(1.5/0.035)x(13.33)"x(1.3xlO-«)"2
v=2.73 feet/second
(2) Find t from Table 3 of this attachment.
The Monongahela River's resource response
time is 27 hours.
(3) Solve for planning distance, d:
d=v x t x c
d=(2.73 ft/sec)x(27 hours)x(0.68 sec*mile/
hr»ft)
d=50 miles
Therefore. 50 miles downstream is the
appropriate planning distance for this
facility.
3.0 Oil Transport on Still Water
3.1 For bodies of water including lakes or
ponds that do not have a measurable
velocity, the spreading of the oil over the
surface must be considered. Owners or
operators of facilities located next to still
water bodies may use a comparable means of
calculating the planning distance. If a
comparable formula is used, documentation
of the reliability and analytical soundness of
the comparable calculation must be attached
to the response plan cover sheet.
3.2 Example of the Planning Distance
Calculation for Oil Transport on Still Water.
To assist those facilities which could
potentially discharge into a still body of
water, the following analysis was performed
to provide an example of the type of formula
that may be used to calculate the planning
distance. For this example, a worst case
discharge of 2,000,000 gallons is used.
(1) The surface area in square feet covered
by an oil spill on still water, Al, can be
determined by the following formula,2 where
V is the volume of the spill in gallons and
C is a constant conversion factor
O0.1643
A,=10ix(2,000,OOOgallons)y4X(0.1643)
A,=8.74xlO» ft2
(2) The spreading formula is based on the
theoretical condition that the oil will spread
uniformly in all directions forming a circle.
In reality, the outfall of the discharge will
direct the oil to the surface of the water
where it intersects the shoreline. Although
the oil will not spread uniformly in all
directions, it is assumed that the discharge
will spread from the shoreline into a semi-
circle (this assumption does not account for
winds or wave action).
(3) The area of a circle=itr2
(4) To account for the assumption that oil
will spread in a semi-circular shape, the area
of a circle is divided by 2 and is designated
as Ai.
Solving for the radius, r, using the
relationship A,=A2:
Therefore, r=23,586 ft
r=23,586 ft+5,280 ft/mile=4.5 miles
Assuming a 20 knot wind under storm
conditions:
1 knot =1.1 5 miles/hour
20 knotsxi.15 miles/hour/knot-23 miles/hr
2 Huang, ).C and Monastero. F.C, 1982. Review
of the State-of-the-Art of Oil Pollution Models. Final
report submitted to the American Petroleum
Institute by Raytheon Ocean Systems, Co., East
Providence. Rhode bland.
Assuming that the oil slick moves at 3
percent of the wind's speed:3
23 miles/hourx0.03=0.69 miles/hour
(5) To estimate the distance that the oil
will travel, use the times required for
response resources to arrive at different
geographic locations as shown in Table 3 of
this attachment.
For example:
For Higher Volume Port Areas: 15 hrsxO.69
miles/hr=10.4 miles
For Great Lakes and all other areas: 27
hrsxO.69 miles/hr=18.6 miles
(6) The total distance that the oil will travel
from the point of discharge, including the
distance due to spreading, is calculated as
follows:
Higher Volume Port Areas: d=l0.4+4.5 miles
or approximately 15 miles
Great Lakes and all other areas: d=18.6+4.5
miles or approximately 23 miles
4.0 Oil Transport on Tidal-Influence Areas
4.1 The planning distance method for
tidal influence navigable water is based on
worst case discharges of persistent and non-
persistent oils. Persistent oils are of primary
concern because they can potentially cause
harm over a greater distance. For persistent
oils discharged into tidal waters, the
planning distance is 15 miles from the
facility down current during ebb tide and to
the point of maximum tidal influence or IS
miles, whichever is less, during flood tide.
4.2 For non-persistent oils discharged
into tidal waters, the planning distance is 5
miles from the facility down current during
ebb tide and to the point of maximum tidal
influence or 5 miles, whichever is less,
during flood tide.
4.3 Example of Determining the Planning
Distance for Two Types of Navigable Water
Conditions. Below is an example of how to
determine the proper planning distance
when a facility could impact two types of
navigable water conditions: moving water
and tidal water.
(1) Facility X stores persistent oil and is
located downstream from locks along a slow
moving river which is affected by tides. The
river velocity, v, is determined to be 0.5 feet/
second from the Chezy-Manning equation
used to calculate oil transport on moving
navigable waters. The specified time interval,
t, obtained from Table 3 of this attachment
for river areas is 27 hours. Therefore, solving
for the planning distance, d:
d=v x t x c
d=(0.5 ft/sec) x (27 hours) x (0.68 sec«mile/
hr»ft)
d=9.18 miles.
(2) However, the planning distance for
maximum tidal influence down current
during ebb tide is 15 miles, which is greater
than the calculated 9.18 miles. Therefore, 15
miles downstream is the appropriate
planning distance for this facility.
5.0 Oil Transport Over Land
5.1 Facility owners or operators must
evaluate the potential for oil to be
1 Oil Spill Prevention S- Control. National Spill
Control School. Corpus Christ! State University.
Thirteenth Edition. May 199O.
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34108 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
transported over land to navigable waters of
the United States. The owner or operator
must evaluate the likelihood that portions of
a worst case discharge would reach navigable
waters via open channel flow or from sheet
flow across the land, or be prevented from
reaching navigable waters when trapped in
natural or man-made depressions excluding
secondary containment structures.
5.2 As discharged oil travels over land, it
may enter a storm drain or open concrete
channel intended for drainage. It is assumed
that once oil reaches such an inlet, it will
flow into the receiving navigable water.
During a storm event, it is highly probable
that the oil will either flow into the drainage
structures or follow the natural contours of
the land and flow into the navigable water.
Expected minimum and maximum velocities
are provided as examples of open concrete
channel and pipe flow. The ranges listed
below reflect minimum and maximum
velocities used as design criteria.4 The
calculation below demonstrates that the time
required for oil to travel through a storm
drain or open concrete channel to navigable
water is negligible and can be considered
instantaneous. The velocities are:
For open concrete channels:
maximum velocity=25 feet per second
minimum velocity=3 feet per second
For storm drains:
maximum velocity=25 feet per second
minimum velocity=2 feet per second
5.3 Assuming a length of 0.5 mile from
the point of discharge through an open
concrete channel or concrete storm drain to
4 The design velocities were obtained from
Howard County, Maryland Department of Public
Works' Storm Drainage Design Manual.
a navigable water, the travel times (distance/
velocity) are:
1.8 minutes at a velocity of 25 feet per second
14.7 minutes at a velocity of 3 feet per second
22.0 minutes for at a velocity of 2 feet per
second
5.4 The distances that shall be considered
to determine the planning distance are
illustrated in Figure C-I of this attachment.
The relevant distances can be described as
follows:
Dl=Distance from the nearest opportunity for
discharge, Xt, to a storm drain or an
open concrete channel leading to
navigable water.
D2=Distance through the storm drain or open
concrete channel to navigable water.
D3=Distance downstream from the outfall
within which fish and wildlife and
sensitive environments could be injured
or a public drinking water intake would
be shut down as determined by the
planning distance formula.
D4=Distance from the nearest opportunity for
discharge, Xj, to fish and wildlife and
sensitive environments not bordering
navigable water.
5.5 A facility owner or operator whose
nearest opportunity for discharge is located
within 0.5 mile of a navigable water must
complete the planning distance calculation
(D3) for the type of navigable water near the
facility or use a comparable formula.
5.6 A facility that is located at a distance
greater than 0.5 mile from a navigable water
must also calculate a planning distance (D3)
if it is in close proximity (i.e., Dl is less than
0.5 mile and other factors are conducive to
oil travel over land) to storm drains that flow
to navigable waters. Factors to be considered
in assessing oil transport over land to storm
drains shall include the topography of the
surrounding area, drainage patterns, man-
made barriers (excluding secondary
containment structures), and soil distribution
and porosity. Storm drains or concrete
drainage channels that are located in close
proximity to the facility can provide a direct
pathway to navigable waters, regardless of
the length of the drainage pipe. If Dl is less
than or equal to 0.5 mile, a discharge from
the facility could pose substantial harm
because the time to travel the distance from
the storm drain to the navigable water (D2)
is virtually instantaneous.
5.7 A facility's proximity to fish and
wildlife and sensitive environments not
bordering a navigable water, as depicted as
D4 in Figure C-I of this attachment, must
also be considered, regardless of the distance
from the facility to navigable waters. Factors
to be considered in assessing oil transport
over land to fish and wildlife and sensitive
environments should include the topography
of the surrounding area, drainage patterns,
man-made barriers (excluding secondary
containment structures), and soil distribution
and porosity.
5.8 If a facility is not found to pose
substantial harm to fish and wildlife and
sensitive environments not bordering
navigable waters via oil transport on land,
then supporting documentation should be
maintained at the facility. However, such
documentation should be submitted with the
response plan if a facility is found to pose
substantial harm.
BILUNQ CODE 65«0-SO-P
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Federal Register / Vol. 59. No. 126 / Friday. July 1, 1994 / Rules and Regulations 34109
QJ
U
C
Navigable Water
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34110
Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
Appendix D to Part 112—Determination
of a Worst Case Discharge Planning
Volume
1.0 Instructions
1.1 An owner or operator is required to
complete this worksheet if the facility meets
the criteria, as presented in Appendix C to
this part, or it is determined by the RA that
the facility could cause substantial harm to
the environment. The calculation of a worst
case discharge planning volume .is used for
emergency planning purposes, and is
required in 40 CFR 112.20 for facility owners
or operators who must prepare a response
plan. When planning for the amount of
resources and equipment necessary to
respond to the worst case discharge planning
volume, adverse weather conditions must be
taken into consideration. An owner or
operator is required to determine the
facility's worst case discharge planning
volume from either Part A of this appendix
for an onshore storage facility, or Part B of
this appendix for an onshore production
facility. The worksheef considers the
provision of adequate secondary containment
at a facility.
1.2 For onshore storage facilities and
production facilities, permanently
manifolded oil storage tanks are defined as
tanks that are designed, installed, and/or
operated in such a manner that the multiple
tanks function as one storage unit (i.e.,
multiple tank volumes are equalized). In a
worst case discharge scenario, a single failure
could cause the discharge of the contents of
more than one tank. The owner or operator
must provide evidence in the response plan
that tanks with common piping or piping
systems are not operated as one unit. If such
evidence is provided and is acceptable to the
RA, the worst case discharge planning
volume would be based on the capacity of
the largest oil storage tank within a common
secondary containment area or the largest oil
storage tank within a single secondary
containment area, whichever is greater. For
permanently manifolded tanks that function
as one oil storage unit, the worst case
discharge planning volume would be based
on the combined oil storage capacity of all
manifolded tanks or the capacity of the
largest single oil storage tank within a
secondary containment area, whichever is
greater. For purposes of this rule,
permanently manifolded tanks that are
separated by internal divisions for each tank
are considered to be single tanks and
individual manifolded tank volumes are not
combined.
1.3 For production facilities, the presence
of exploratory wells, production wells, and
oil storage tanks must be considered in the
calculation. Part B of this appendix takes
these additional factors into consideration
and provides steps for their inclusion in the
total worst case discharge planning volume.
Onshore oil production facilities may include
all wells, flowlines, separation equipment,
storage facilities, gathering lines, and
auxiliary non-transportation-related
equipment and facilities in a single
geographical oil or gas field operated by a
single operator. Although a potential worst
case discharge planning volume is calculated
within each section of the worksheet, the
final worst case amount depends on the risk
parameter that results in the greatest volume.
1.4 Marine transportation-related transfer
facilities that contain fixed aboveground
onshore structures used for bulk oil storage
are jointly regulated by EPA and the U.S.
Coast Guard (USCG), and are termed
"complexes." Because the USCG also
requires response plans from transportation-
related facilities to address a worst case
discharge of oil, a separate calculation for the
worst case discharge planning volume for
USCG-related facilities is included in the
USCG IFR (see Appendix E to this part,
section 10, for availability). All complexes
that are jointly regulated by EPA and the
USCG must compare both calculations for
worst case discharge planning volume
derived by using the EPA and USCG
methodologies and plan for whichever .
volume is greater.
PART A: WORST CASE DISCHARGE
PLANNING VOLUME CALCULATION FOR
ONSHORE STORAGE FAOUTIES >
Part A of this worksheet is to be completed
by the owner or operator of an SPCC-
regulated facility (excluding oil production
facilities) if the facility meets the criteria as
presented in Appendix C to this part, or if
it is determined by the RA that the facility
could cause substantial harm to the
environment. If you are the owner or operator
of a production facility, please proceed to
Part B of this worksheet.
A.I SINGLE-TANK FACILITIES
For facilities containing only one
aboveground oil storage tank, the worst case
discharge planning volume equals the
capacity of the oil storage tank. If adequate
secondary containment (sufficiently large to
contain the capacity of the aboveground oil
storage tank plus sufficient freeboard to allow
for precipitation) exists for the oil storage
tank, multiply the capacity of the tank by 0.8.
(1) FINAL WORST CASE VOLUME:
GAL
(2) Do not proceed •further.
A.2 SECONDARY CONTAINMENT—
MULTIPLE-TANK FACILITIES
Are all aboveground oil storage tanks or
groups of aboveground oil storage tanks at
the facility without adequate secondary
containment? 2
(Y/N)
A.2.1 If the answer is yes, the final worst
case discharge planning volume equals the
total aboveground oil storage capacity at the
facility.
(1) FINAL WORST CASE VOLUME:
GAL
(2) Do not proceed further.
A.2.2 If the answer is no, calculate the
total aboveground oil storage capacity of
tanks without adequate secondary
containment. If all aboveground oil storage
1 "Storage facilities" represent all facilities
subject to this part, excluding oil production
facilities.
2 Secondary containment is defined in 40 CFR
112.7(e)(2). Acceptable methods and structures for
containment are also given in 40 CFR 112.7(c)(l).
tanks or groups of aboveground oil storage
tanks at the facility have adequate secondary
containment, ENTER "0" (zero).
GAL
A.2.3 Calculate the capacity of the largest
single aboveground oil storage tank within an
adequate secondary containment area or the
combined capacity of a group of aboveground
oil storage tanks permanently manifolded
together, whichever is greater, PLUS THE
VOLUME FROM QUESTION A2(b).
FINAL WORST CASE VOLUME:3
GAL
PART B: WORST CASE DISCHARGE
PLANNING VOLUME CALCULATION FOR
ONSHORE PRODUCTION FACILITIES
Part B of this worksheet is to be completed
by the owner or operator of an SPCC-
regulated oil production facility if the facility
meets the criteria presented in Appendix C
to this part, or if it is determined by the RA
that the facility could cause substantial harm.
A production facility consists of all wells
(producing and exploratory) and related
equipment in a single geographical oil or gas
field operated by a single operator.
B.I SINGLE-TANK FACILITIES
B.I.I For facilities containing only one
aboveground oil storage tank, the worst case
discharge planning volume equals the
capacity of the aboveground oil storage tank
plus the production volume of the well with
the highest output at the facility. If adequate
secondary containment (sufficiently large to
contain the capacity of the aboveground oil
storage tank plus sufficient freeboard to allow
for precipitation) exists for the storage tank.
multiply the capacity of the tank by 0.8.
B.I.2 For facilities with production wells
producing by pumping, if the rate of the well
with the highest output is known and the
number of days the facility is unattended can
be predicted, then the production volume is
equal to the pumping rate of the well
multiplied by the greatest number of days the
facility is unattended.
B.I.3 If the pumping rate of the well with
the highest output is estimated or the
maximum number of days the facility is
unattended is estimated, then the production
volume is determined from the pumping rate
of the well multiplied by 1.5 times the
greatest number of days that the facility has
been or is expected to be unattended.
B.I.4 Attachment D-l to this appendix
provides methods for calculating the
production volume for exploratory wells and
production wells producing under pressure.
(1) FINAL WORST CASE VOLUME:
GAL
(2) Do not proceed further.
B.2 SECONDARY CONTAINMENT-
MULTIPLE- TANK FACILITIES
Are all aboveground oil storage tanks or
groups of aboveground oil storage tanks at
the facility without adequate secondary
containment?
3 All complexes that are jointly regulated by EPA
and the USCG must also calculate the worst case
discharge planning volume for the transportation-
related portions of the facility and plan for
whichever volume is greater.
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations 34111
(Y/N)
B.2.1 If the answer is yes, the final worst
case volume equals the total aboveground oil
storage capacity without adequate secondary
co - .ainment plus the production volume of
the well with the highest output at the
facility.
(1) For facilities with production wells
producing by pumping, if the rate of the well
with the highest output is known and the
number of days the facility is unattended can
be predicted, then the production volume is
equal to the pumping rate of the well
multiplied by the greatest number of days the
facility is unattended.
(2) If the pumping rate of the well with the
highest output is estimated or the maximum
number of days the facility is unattended is
estimated, then the production volume is
determined from the pumping rate of the
well multiplied by 1.5 times the greatest
number of days that the facility has been or
is expected to be unattended.
(3) Attachment D-l to this appendix
provides methods for calculating the
production volumes for exploratory wells
and production wells producing under
pressure.
(A) FINAL WORST CASE VOLUME:
GAL
(B) Do not proceed further.
3.2.2 If the answer is no, calculate the
total aboveground oil storage capacity of
tanks without adequate secondary
containment. If all aboveground oil storage
tanks or groups of aboveground oil storage
tanks at the facility have adequate secondary
containment, ENTER "0" (zero).
GAL
B.2.3 Calculate the capacity of the largest
single aboveground oil storage tank within an
adequate secondary containment area or the
combined capacity of a group of aboveground
oil storage tanks permanently manifolded
together, whichever is greater, plus the
production volume of the well with the
highest output, PLUS THE VOLUME FROM
QUESTION B2(b). Attachment D-l provides
methods for calculating the production
volumes for exploratory wells and
production wells producing under pressure.
(1) FINAL WORST CASE VOLUME:«
GAL
(2) Do not proceed further.
Attachments to Appendix D
Attachment D-I—Methods to Calculate
Production Volumes for Production
Facilities With Exploratory Wells or
Production Wells Producing Under Pressure
1.0 Introduction
The owner or operator of a production
facility with exploratory wells or production
wells producing under pressure shall
compare the well rate of the highest output
well (rate of well), in barrels per day, to the
ability of response equipment and personnel
to recover the volume of oil that could be
discharged (rate of recovery), in barrels per
day. The result of this comparison will
determine the method used to calculate the
production volume for the production
facility. This production volume is to be used
to calculate the worst case discharge
planning volume in Part B of this appendix.
2.0 Description of Methods
2.1 Method A
If the well rate would overwhelm the
response efforts (i.e., rate of well/rate of
recovery's 1), then the production volume
would be the 30-day forecasted well rate for
a well 10,000 feet deep or less, or the 45-day
forecasted well rate for a well deeper than
10,000 feet.
(1) For wells 10,000 feet deep or less:
Production volume=30 days x rate of well.
(2) For wells deeper than 10,000 feet:
Production volume=45 days x rate of well.
2.2 Method B
2.2.1 If the rate of recovery would be
greater than the well rate (i.e., rate of well/
rate of recovery
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34112 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
(1) A petroleum-based oil that does not
meet the distillation criteria for a non-
persistent oil. Persistent oils are further
classified based on specific gravity as
follows:
(A) Group 2—specific gravity less than
0.85;
(B) Group 3—specific gravity equal to or
greater than 0.85 and less than 0.95;
(C) Group 4—specific gravity equal to or
greater than 0.95 and less than 1.0; or
(D) Group 5—specific gravity equal to or
greater than 1.0.
(2) A non-petroleum oil with a specific
gravity of 0.8 or greater. These oils are further
classified based on specific gravity as
follows:
(A) Group 2—specific gravity equal to or
greater than 0.8 and less than 0.85;
(B) Group 3—specific gravity equal to or
greater than 0.85 and less than 0.95;
(C) Group 4—specific gravity equal to or
greater than 0.95 and less than 1.0; or
(D) Group 5—specific gravity equal to or
greater than 1.0.
1.2.8 Other definitions are included in
§ 112.2, section 1.2 of Appendices C and E,
and section 3.0 of Appendix F.
2.0 Equipment Operability and Readiness
2.1 All equipment identified in a
response plan must be designed to operate in
the conditions expected in the facility's
geographic area (i.e., operating environment).
These conditions vary widely based on
location and season. Therefore, it is difficult
to identify a single stockpile of response
equipment that will function effectively in
each geographic location (i.e., operating
area).
2.2 Facilities handling, storing, or
transporting oil in more than one operating
environment as indicated in Table 1 of this
appendix must identify equipment capable of
successfully functioning in each operating
environment.
2.3 When identifying equipment for the
response plan (based on the use of this
appendix), a facility owner or operator must
consider the inherent limitations of the
operability of equipment components and
response systems. The criteria in Table 1 of
this appendix shall be used to evaluate the
operability in a given environment These
criteria reflect the general conditions in
certain operating environments.
2.3.1 The Regional Administrator may
require documentation that the boom
identified in a facility response plan meets
the criteria in Table 1 of this appendix.
Absent acceptable documentation, the
Regional Administrator may require that the
boom be tested to demonstrate that it meets
the criteria in Table 1 of this appendix.
Testing must be in accordance with ASTM F
715, ASTM F 989, or other tests approved by
EPA as deemed appropriate (see Appendix E
to this part, section 10, for general
availability of documents).
2.4 Table 1 of this appendix lists criteria
for oil recovery devices and boom. All other
equipment necessary to sustain or support
response operations in an operating
environment must be designed to function in
the same conditions. For example, boats that
deploy or support skimmers or boom must be
capable of being safely operated in the
significant wave heights listed for the
applicable operating environment.
2.5 A facility owner or operator shall
refer to the applicable Area Contingency Plan
(ACP), where available, to determine if ice,
debris, and weather-related visibility are
significant factors to evaluate the operability
of equipment. The ACP may also identify the
average temperature ranges expected in the
facility's operating area. All equipment
identified in a response plan must be
designed to operate within those conditions
or ranges.
2.6 This appendix provides information
on response resource mobilization and
response times. The distance of the facility
from the storage location of the response
resources must be used to determine whether
the resources can arrive on-scene within the
stated time. A facility owner or operator shall
include the time for notification,
mobilization, and travel of resources
identified to meet the medium and Tier 1
worst case discharge requirements identified
in section 4.3 of this appendix (for medium
discharges) and section 5.3 of this appendix
(for worst case discharges). The facility
owner or operator must plan for notification
and mobilization of Tier 2 and 3 response
resources as necessary to meet the
requirements for arrival on-scene in
accordance with section 5.3 of this appendix.
An on-water speed of 5 knots and a land
speed of 35 miles per hour is assumed,
unless the facility owner or operator can
demonstrate otherwise.
2.7 In identifying equipment, the facility
owner or operator shall list the storage
location, quantity, and manufacturer's make
and model. For oil recovery devices, the
effective daily recovery capacity, as
determined using section 6 of this appendix.
must be included. For boom, the overall
boom height (draft and freeboard) shall be
included. A facility owner or operator is
responsible for ensuring that the identified
boom has compatible connectors.
3.0 Determining Response Resources
Required for Small Discharges
3.1 A facility owner or operator shall
identify sufficient response resources
available, by contract or other approved
means as described in § 112.2, to respond to
a small discharge. A small discharge is
defined as any discharge volume less than or
equal to 2,100 gallons, but not to exceed the
calculated worst case discharge. The
equipment must be designed to function in
the operating environment at the point of
expected use.
3.2 Complexes that are regulated by EPA
and the USCG must also consider planning
quantities for the transportation-related
transfer portion of the facility. The USCG
planning level that corresponds to EPA's
"small discharge" is termed "the average
most probable discharge." The USCG
revisions to 33 CFR part 154 define "the
average most probable discharge" as a
discharge of 50 barrels (2,100 gallons).
Owners or operators of complexes must
compare oil spill volumes for a small
discharge and an average most probable
discharge and plan for whichever quantity is
greater.
3.3 The response resources shall, as
appropriate, include:
3.3.1 One thousand feet of containment
boom (or, for complexes with marine transfer
components, 1,000 feet of containment boom
or two times the length of the largest vessel
that regularly conducts oil transfers to or
from the facility, whichever is greater), and
a means of deploying it within 1 hour of the
discovery of a spill;
3.3.2 Oil recovery devices with an
effective daily recovery capacity equal to the
amount of oil discharged in a small discharge
or greater which is available at the facility
within 2 hours of the detection of an oil
discharge; and
3.3.3 Oil storage capacity for recovered
oily material indicated in section 9.2 of this
appendix.
4.0 Determining Response Resources
Required for Medium Discharges
4.1 A facility owner or operator shall
identify sufficient response resources
available, by contract or other approved
means as described in § 112.2, to respond to
a medium discharge of oil for that facility.
This will require response resources capable
of containing and collecting up to 36,000
gallons of oil or 10 percent of the worst case
discharge, whichever is less. All equipment
identified must be designed to operate in the
applicable operating environment specified
in Table 1 of this appendix.
4.2 Complexes that are regulated by EPA
and the USCG must also consider planning
quantities for the transportation-related
transfer portion of the facility. The USCG
planning level that corresponds to EPA's
"medium discharge" is termed "the
max'"""" most probable discharge." The
USCG revisions to 33 CFR part 154 define
"the maximum most probable discharge" as
a discharge of 1.200 barrels (50,400 gallons)
or 10 percent of the worst case discharge,
whichever is less. Owners or operators of
complexes must compare spill volumes for a
medium discharge and a maximum most
probable discharge and plan for whichever
quantify is greater.
4.3 Oil recovery devices identified to
meet the applicable medium discharge
volume planning criteria must be located
such that they are capable of arriving on-
scene within 6 hours in higher volume port
areas and the Great Lakes and within 12
hours in all other areas. Higher volume port
areas and Great Lakes areas are defined in
section 1.2 of Appendix C to this part
4.4 Because rapid control, containment,
and removal of oil are critical to reduce spill
impact, the owner or operator must
determine response resources using an
effective daily recovery capacity for oil
recovery devices equal to 50 percent of the
planning volume applicable for the facility as
determined in section 4.1 of this appendix.
The effective daily recovery capacity for oil
recovery devices identified in the plan must
be determined using the criteria in section 6
of this appendix.
4.5 In addition to oil recovery capacity,
the plan shall, as appropriate, identify
sufficient quantify of containment boom
available, by contract or other approved
means as described in $ 112.2, to arrive
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Federal Register / Vol. 59. No. 126 / Friday, July 1, 1994 / Rules and Regulations 34113
within the required response times for oil
collection and containment and for
protection of fish and wildlife and sensitive
environments. For further description of fish
and wildlife and sensitive environments, see
Appendices I. II, and 01 to DOC/NOAA's
"Guidance for Facility and Vessel Response •
Plans: Fish and Wildlife and Sensitive
Environments" (see Appendix E to this part,
section 10, for availability) and the
applicable ACP. While the regulation does
not set required quantities of boom for oil
collection and containment, the response
plan shall identify and ensure, by contract or
other approved means as described in
§ 112.2, the availability of the quantity of
boom identified in the plan for this purpose.
4.6 The plan must indicate the
availability of temporary storage capacity to
meet section 9.2 of this appendix. If available
storage capacity is insufficient to meet this
level, then the effective daily recovery
capacity must be derated (downgraded) to the
limits of the available storage capacity.
4.7 The following is an example of a
medium discharge volume planning
calculation for equipment identification in a
higher volume port area: The facility's largest
aboveground storage tank volume is 840,000
gallons. Ten percent of this capacity is 84,000
gallons. Because 10 percent of the facility's
largest tank, or 84,000 gallons, is greater than
36,000 gallons, 36,000 gallons is used as the
planning volume. The effective daily
recovery capacity is 50 percent of the
planning volume, or 18,000 gallons per day.
The ability of oil recovery devices to meet
this capacity must be calculated using the
procedures in section 6 of this appendix.
Temporary storage capacity available on-
scene must equal twice the daily recovery
capacity as indicated in section 9.2 of this
appendix, or 36,000 gallons per day. This is
the information the facility owner or operator
must use to identify and ensure the
availability of the required response
resources, by contract or other approved
means as described in § 112.2. The facility
owner shall also identify how much boom is
available for use.
5.0 Determining Response Resources
Required for the Worst Case Discharge to the
Maximum Extent Practicable
5.1 A facility owner or operator shall
identify and ensure the availability of. by
contract or other approved means as
described in § 112.2, sufficient response
resources to respond to the worst case
discharge of oil to the maximum extent
practicable. Section 7 of this appendix
describes the method to determine the
necessary response resources. A worksheet is
provided as Attachment E-l at the end of
this appendix to simplify the procedures
involved in calculating the planning volume
for response resources for the worst case
discharge.
5.2 Complexes that are regulated by EPA
and the USCG must also consider planning
for the worst case discharge at the
transportation-related portion of the facility.
The USCG requires that transportation-
related facility owners or operators use a
different calculation for the worst case
discharge in the revisions to 33 CFR part 154.
Owners or operators of complex facilities that
are regulated by EPA and the USCG must
compare both calculations of worst case
discharge derived by EPA and the USCG and
plan for whichever volume is greater.
5.3 Oil spill response resources identified
in the response plan and available, by
contract or other approved means as
described in § 112.2, to meet the applicable
worst case discharge planning volume must
be located such that they are capable of
arriving at the scene of a discharge within the
times specified for the applicable response
tier listed below:
Higher
vol-
ume
areas.
Great
Lakes.
All other
river
and
canal,
in-
land,
and
near-
shore
areas.
TieM
6 hrs
12 hrs
12 hrs
Tier 2
30 hrs
36 hrs
36 hrs
Tier3
54 hrs
60 hrs
60 hrs
The three levels of response tiers apply to the
amount of time in which facility owners or
operators must plan for response resources to
arrive at the scene of a spill to respond to the
worst case discharge planning volume. For
example, at a worst case discharge in an
inland area, the first tier of response
resources (i.e., that amount of on-water and
shoreline cleanup capacity necessary to
respond to the fraction of the worst case
discharge as indicated through the series of
steps described in sections 7.2 and 7.3 of this
appendix) would arrive at the scene of the
discharge within 12 hours; the second tier of
response resources would arrive within 36
hours; and the third tier of response
resources would arrive within 60 hours.
5.4 The effective daily recovery capacity
for oil recovery devices identified in the
response plan must be determined using the
criteria in section 6 of this appendix. A
facility owner or operator shall identify the
storage locations of all response resources
used for each tier. The owner or operator of
a facility whose required daily recovery
capacity exceeds the applicable contracting
caps in Table 5 of this appendix shall, as
appropriate, identify sources of additional
equipment, their location, and the
arrangements made to obtain this equipment
during a response. The owner or operator of
a facility whose calculated planning volume
exceeds the applicable contracting caps in
Table 5 of this appendix shall, as
appropriate, identify sources of additional
equipment equal to twice the cap listed in
Tier 3 or the amount necessary to reach the
calculated planning volume, whichever is
lower. The resources identified above the cap
shall be capable of arriving on-scene not later
than the Tier 3 response times in section 5.3
of this appendix. No contract is required.
While general listings of available response
equipment may be used to identify additional
sources (i.e., "public" resources vs. "private"
resources), the response plan shall identify
the specific sources, locations, and quantities
of equipment that a facility owner or operator
has considered in his or her planning. When
listing USCG-classified oil spill removal
organization(s) that have sufficient removal
capacity to recover the volume above the
response capacity cap for the specific facility,
as specified in Table 5 of this appendix, it
is not necessary to list specific quantities of
equipment.
5.5 A facility owner or operator shall
identify the availability of temporary storage
capacity to meet section 9.2 of this appendix.
If available storage capacity is insufficient,
then the effective daily recovery capacity
must be derated (downgraded) to the limits
of the available storage capacity.
5.6 When selecting response resources
necessary to meet the response plan
requirements, the facility owner or operator
shall, as appropriate, ensure that a portion of
those resources is capable of being used in
close-to-shore response activities in shallow
water. For any EPA-regulated facility that is
required to plan for response in shallow
water, at least 20 percent of the on-water
response equipment identified for the
applicable operating area shall, as
appropriate, be capable of operating in water
of 6 feet or less depth.
5.7 In addition to oil spill recovery
devices, a facility owner or operator shall
identify sufficient quantities of boom that are
available, by contract or other approved
means as described in § 112.2, to arrive on-
scene within the specified response times for
oil containment and collection. The specific
quantity of boom required for collection and
containment will depend on the facility-
specific information and response strategies
employed. A facility owner or operator shall,
as appropriate, also identify sufficient
quantities of oil containment boom to protect
fish and wildlife and sensitive environments.
For further description of fish and wildlife
and sensitive environments, see Appendices
I, H, and in to DOC/NOAA's "Guidance for
Facility and Vessel Response Plans: Fish and
Wildlife and Sensitive Environments" (see
Appendix E to this part, section 10, for
availability), and the applicable ACP. Refer to
this guidance document for the number of
days and geographic areas (i.e., operating
environments) specified in Table 2 of this
appendix.
5.8 A facility owner or operator shall also
identify, by contract or other approved means
as described in § 112.2, the availability of an
oil spill removal organization(s) (as described
in § 112.2) capable of responding to a
shoreline cleanup operation involving the
calculated volume of oil and emulsified oil
that might impact the affected shoreline. The
volume of oil that shall, as appropriate, be
planned for is calculated through the
application of factors contained in Tables 2
and 3 of this appendix. The volume
calculated from these tables is intended to
assist the facility owner or operator to
identify an oil spill removal organization
with sufficient resources and expertise.
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Federal Register / Vol. 59, No. 126 / Friday, July l, 1994 / Rules and Regulations
6.0 Determining Effective Daily Recovery
Capacity for Oil Recovery Devices
6.1 Oil recovery devices identified by a
facility owner or operator must be identified
by the manufacturer, model, and effective
daily recovery capacity. These capacities
must be used to determine whether there is
sufficient capacity to meet the applicable
planning criteria for a small discharge, a
medium discharge, and a worst case
discharge to the maximum extent practicable.
6.2 To determine the effective daily
recovery capacity of oil recovery devices, the
formula listed in section 6.2.1 of this
appendix shall be used. This formula
considers potential limitations due to
available daylight, weather, sea state, and
percentage of emulsified oil in the recovered
material. The RA may assign a lower
efficiency factor to equipment listed in a
response plan if it is determined that such a
reduction is warranted.
6.2.1 The following formula shall be used
to calculate the effective daily recovery
capacity:
R = T x 24 hours x t
where:
R—Effective daily recovery capacity;
T—Throughput rate in barrels per hour
(nameplate capacity); and
E—20 percent efficiency factor (or lower
factor as determined by the Regional
Administrator).
6.2.2 For those devices in which the
pump limits the throughput of liquid,
throughput rate shall be calculated using the
pump capacity.
6.2.3 For belt or moptype devices, the
throughput rate shall be calculated using the
speed of the belt or mop through the device,
assumed thickness of oil adhering to or
collected by the device, and surface area of
the belt or mop. For purposes of this
calculation, the assumed thickness of oil will
be V« inch.
6.2.4 Facility owners or operators that
include oil recovery devices whose
throughput is not measurable using a pump
capacity or belt/mop speed may provide
information to support an alternative method
of calculation. This information must be
submitted following the procedures in
section 6.3.2 of this appendix.
6.3 As an alternative to section 6.2 of this
appendix, a facility owner or operator may
submit adequate evidence that a different
effective daily recovery capacity should be
applied for a specific oil recovery device.
Adequate evidence is actual verified
performance data in spill conditions or tests
using American Society of Testing and
Materials (ASTM) Standard F 631-80, F 808-
83 (1988), or an equivalent test approved by
EPA as deemed appropriate (see Appendix E
to this part, section 10, for general
availability of documents).
6.3.1 The following formula must be used
to calculate the effective daily recovery
capacity under this alternative:
R = DxU
where:
R—Effective daily recovery capacity;
D—Average Oil Recovery Rate in barrels per
hour (Item 26 in F 808-83; Item 13.1.15
in F 631-80; or actual performance data);
and
U—Hours per day that equipment can
operate under spill conditions. Ten
hours per day must be used unless a
facility owner or operator can
demonstrate that the recovery operation
can be sustained for longer periods.
6.3.2 A facility owner or operator
submitting a response plan shall provide data
that supports the effective daily recovery
capacities for the oil recovery devices listed.
The following is an example of these
calculations:
(1) A weir skimmer identified in a response
plan has a manufacturer's rated throughput at
the pump of 267 gallons per minute (gpm).
267 gpm=381 barrels per hour (bph)
R=381 bphx24 hr/dayx0.2=l,829 barrels per
day
(2) After testing using ASTM procedures,
the skimmer's oil recovery rate is determined
to be 220 gpm. The facility owner or operator
identifies sufficient resources available to
support operations for 12 hours per day.
220 gpm=314 bph
R=314 bphx!2 hr/day=3,768 barrels per day
(3) The facility owner or operator will be
able to use the higher capacity if sufficient
temporary oil storage capacity is available.
Determination of alternative efficiency
factors under section 6.2 of this appendix or
the acceptability of an alternative effective
daily recovery capacity under section 6.3 of
this appendix will be made by the Regional
Administrator as deemed appropriate.
7.0 Calculating Planning Volumes for a
Worst Case Discharge
7.1 A facility owner or operator shall plan
for a response to the facility's worst case
discharge. The planning for on-water oil
recovery must take into account a loss of
some oil to the environment due to
evaporative and natural dissipation, potential
increases in volume due to eraulsification.
and the potential for deposition of oil on the
shoreline. The procedures for non-petroleum
oils are discussed in section 7.7 of this
appendix.
7.2 The following procedures must be
used by a facility owner or operator in
determining the required on-water oil
recovery capacity:
7.2.1 The following must be determined:
the worst case discharge volume of oil in the
facility; the appropriate group(s) for the types
of oil handled, stored, or transported at the
facility (persistent (Groups 2, 3, 4, 5) or non-
persistent (Group 1)]; and the facility's
specific operating area. See sections 1.2.2 and
1.2.7 of this appendix for the definitions of
non-persistent and persistent oils,
respectively. Facilities that handle, store, or
transport oil from different oil groups must
calculate each group separately, unless the
oil group constitutes 10 percent or less by
volume of the facility's total oil storage
capacity. This information is to be used with
Table 2 of this appendix to determine the
percentages of the total volume to be used for
removal capacity planning. Table 2 of this
appendix divides the volume into three
categories: oil lost to the environment; oil
deposited on the shoreline; and oil available
for on-water recovery.
7.2.2 The on-water oil recovery volume
shall, as appropriate, be adjusted using the
appropriate emulsification factor found in
Table 3 of this appendix. Facilities that
handle, store, or transport oil from different
petroleum groups must compare the on-water
recovery volume for each oil group (unless
the oil group constitutes 10 percent or less
by volume of the facility's total storage
capacity) and use the calculation that results
in the largest on-water oil recovery volume
to plan for the amount of response resources
for a worst case discharge.
7.2.3 The adjusted volume is multiplied
by the on-water oil recovery resource
mobilization factor found in Table 4 of this
appendix from the appropriate operating area
and response tier to determine the total on-
water oil recovery capacity in barrels per day
that must be identified or contracted to arrive
on-scene within the applicable time for each
response tier. Three tiers are specified. For
higher volume port areas, the contracted tiers
of resources must be located such that they
are capable of arriving on-scene within 6
hours for Tier 1, 30 hours for Tier 2, and 54
hours for Tier 3 of the discovery of an oil
discharge. For all other rivers and canals,
inland, nearshore areas, and the Great Lakes,
these tiers are 12, 36, and 60 hours.
7.2.4 The resulting on-water oil recovery
capacity in barrels per day for each tier is
used to identify response resources necessary
to sustain operations in the applicable
operating area. The equipment shall be
capable of sustaining operations for the time
period specified in Table 2 of this appendix.
The facility owner or operator shall identify
and ensure the availability, by contract or
other approved means as described in
§ 112.2, of sufficient oil spill recovery
devices to provide the effective daily oil
recovery capacity required. If the required
capacity exceeds the applicable cap specified
in Table 5 of this appendix, then a facility
owner or operator shall ensure, by contract
or other approved means as described in
§ 112.2, only for the quantity of resources
required to meet the cap, but shall identify
sources of additional resources as indicated
in section 5.4 of this appendix. The owner or
operator of a facility whose planning volume
exceeded the cap in 1993 must make
arrangements to identify and ensure the
availability, by contract or other approved
means as described in § 112.2, for additional
capacity to be under contract by 1998 or
2003, as appropriate. For a facility that
handles multiple groups of oil, the required
effective daily recovery capacity for each oil
group is calculated before applying the cap.
The oil group calculation resulting in the
largest on-water recovery volume must be
used to plan for the amount of response
resources for a worst case discharge, unless
the oil group comprises 10 percent or less by
volume of the facility's total oil storage
capacity.
7.3 The procedures discussed in sections
7.3.1-7.3.3 of this appendix must be used to
calculate the planning volume for identifying
shoreline cleanup capacity (for Groups 1
through Group 4 oils).
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7.3.1 The following must be determined:
the worst case discharge volume of oil for the
facility: the appropriate group(s) for the types
of oil handled, stored, or transported at the
facility (persistent (Groups 2, 3, or 4) or non-
persistent (Group 1)); and the geographic
area(s) in which the facility operates (i.e.,
operating areas). For a facility handling,
storing, or transporting oil from different
groups, each group must be calculated
separately. Using this information, Table 2 of
this appendix must be used to determine the
percentages of the total volume to be used for
shoreline cleanup resource planning.
7.3.2 The shoreline cleanup planning
volume must be adjusted to reflect an
emulsification factor using the same
procedure as described in section 7.2.2 of
this appendix.
7.3.3 The resulting volume shall be used
to identify an oil spill removal organization
with the appropriate shoreline cleanup
capability.
7.4 A response plan must identify
response resources with fire fighting
capability. The owner or operator of a facility
for a facility that handles, stores, or
transports Group 1 through Group 4 oils that
does not have adequate fire fighting resources
located at the facility or that cannot rely on
sufficient local fire fighting resources must
identify adequate fire fighting resources. It is
recommended that the facility owner or
operator ensure, by contract or other
approved means as described in § 112.2, the
availability of these resources. The response
plan must also identify an individual located
at the facility to work with the fire
department for Group 1 through Group 4 oil
fires. This individual shall also verify that
sufficient well-trained fire fighting resources
are available within a reasonable response
time to a worst case scenario. The individual
may be the qualified individual identified in
the response plan or another appropriate
individual located at the facility.
7.5 The following is an example of the
procedure described above in sections 7.2
and 7.3 of this appendix: A facility with a
270,000 barrel (11.3 million gallons) capacity
for #8 oil (specific gravity 0.96) is located in
a higher volume port area. The facility is on
a peninsula and has docks on both the ocean
and bay sides. The facility has four
aboveground oil storage tanks with a
combined total capacity of 80,000 barrels
(3.36 million gallons) and no secondary
containment. The remaining facility tanks are
inside secondary containment structures. The
largest aboveground oil storage tank (90.000
barrels or 3.78 million gallons) has its own
secondary containment. Two 50,000 barrel
(2.1 million gallon) tanks (that are not
connected by a manifold) are within a
common secondary containment tank area,
which is capable of holding 100,000 barrels
(4.2 million gallons) plus sufficient
freeboard.
7.5.1 The worst case discharge for the
facility is calculated by adding the capacity
of all aboveground oil storage tanks without
secondary containment (80,000 barrels) plus
the capacity of the largest aboveground oil
storage tank inside secondary containment.
The resulting worst case discharge volume is
170,000 barrels or 7.14 million gallons.
7.5.2 Because the requirements for Tiers
1, 2, and 3 for inland and nearshore exceed
the caps identified in Table 5 of this
appendix, the facility owner will contract for
a response to 10.000 barrels per day (bpd) for
Tier 1, 20,000 bpd for Tier 2, and 40,000 bpd
for Tier 3. Resources for the remaining 7,850
bpd for Tier 1,9,750 bpd for Tier 2, and
7,600 bpd for Tier 3 shall be identified but
need not be contracted for in advance. The
facility owner or operator shall, as
appropriate, also identify or contract for
quantities of boom identified in their
response plan for the protection of fish and
wildlife and sensitive environments within
the area potentially impacted by a worst case
discharge from the facility. For further
description of fish and wildlife and sensitive
environments, see Appendices I. II, and III to
DOC/NOAA's "Guidance for Facility and
Vessel Response Plans: Fish and Wildlife and
Sensitive Environments," (see Appendix E to
this part, section 10, for availability) and the
applicable ACP. Attachment C-III to
Appendix C provides a method for
calculating a planning distance to fish and
wildlife and sensitive environments and
public drinking water intakes that may be
impacted in the event of a worst case
discharge.
7.6 The procedures discussed in sections
7.6.1—7.6.3 of this appendix must be used to
determine appropriate response resources for
facilities with Group 5 oils.
7.6.1 The owner or operator of a facility
that handles, stores, or transports Group 5
oils shall, as appropriate, identify the
response resources available by contract or
other approved means, as described in
§ 112.2. The equipment identified in a
response plan shall, as appropriate, include:
(1) Sonar, sampling equipment, or other
methods for locating the oil on the bottom or
suspended in the water column;
(2) Containment boom, sorbent boom, silt
curtains, or other methods for containing the
oil that may remain floating on the surface
or to reduce spreading on the bottom;
(3) Dredges, pumps, or other equipment
necessary to recover oil from the bottom and
shoreline;
(4) Equipment necessary to assess the
impact of such discharges; and
(5) Other appropriate equipment necessary
to respond to a discharge involving the type
of oil handled, stored, or transported.
7.6.2 Response resources identified in a
response plan for a facility that handles,
stores, or transports Group 5 oils under
section 7.6.1 of this appendix shall be
capable of being deployed (on site) within 24
hours of discovery of a discharge to the area
where the facility is operating.
7.6.3 A response plan must identify
response resources with fire fighting
capability. The owner or operator of a facility
that handles, stores, or transports Group 5
oils that does not have adequate fire fighting
resources located at the facility or that cannot
rely on sufficient local fire fighting resources
must identify adequate fire fighting
resources. It is recommended that the owner
or operator ensure, by contract or other
approved means as described in § 112.2, the
availability of these resources. The response
plan shall also identify an individual located
at the facility to work with the fire
department for Group 5 oil fires. This
individual shall also verify that sufficient
well-trained fire fighting resources are
available within a reasonable response time
to respond to a worst case discharge. The
individual may be the qualified individual
identified in the response plan or another
appropriate individual located at the facility.
7.7 The procedures described in sections
7.7.1-7.7.5 of this appendix must be used to
determine appropriate response plan
development and evaluation criteria for
facilities that handle, store, or transport non-
petroleum oils. Refer to section 8 of this
appendix for information on the limitations
on the use of dispersants for inland and
nearshore areas.
7.7.1 An owner or operator of a facility
that handles, stores, or transports non-
petroleum oil must provide information in
his or her plan that identifies:
(1) Procedures and strategies for
responding to a worst case discharge of non-
petroleum oils to the maximum extent
practicable; and
(2) Sources of the equipment and supplies
necessary to locate, recover, and mitigate
such a discharge.
7.7.2 An owner or operator of a facility
that handles, stores, or transports non-
petroleum oil must ensure that any
equipment identified in a response plan is
capable of operating in the conditions
expected in the geographic area(s) (i.e.,
operating environments) in which the facility
operates using the criteria in Table 1 of this
appendix. When evaluating the operability of
equipment, the facility owner or operator
must consider limitations that are identified
in the appropriate ACPs, including:
(1) Ice conditions;
(2) Debris;
(3) Temperature ranges; and
(4) Weather-related visibility.
7.7.3 The owner or operator of a facility
that handles, stores, or transports non-
petroleum oil must identify the response
resources that are available by contract or
other approved means, as described in
§ 112.2. The equipment described in the
moonse plan shall, as appropriate, include:
i) Containment boom, sorbent boom, or
otner methods for containing oil floating on
the surface or to protect shorelines from
impact;
(2) Oil recovery devices appropriate for the
type of non-petroleum oil carried; and
(3) Other appropriate equipment necessary
to respond to a discharge involving the type
of oil carried.
7.7.4 Response resources identified in a
response plan according to section 7.7.3 of
this appendix must be capable of
commencing an effective on-scene response
within the applicable tier response times in
section 5.3 of this appendix.
7.7.5 A response plan must identify
response resources with fire fighting
capability. The owner or operator of a facility
that handles, stores, or transports non-
petroleum oils that does not have adequate
fire fighting resources located at the facility
or that cannot rely on sufficient local fire
fighting resources must identify adequate fire
fighting resources. It is recommended that
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34116 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
the owner or operator ensure, by contract or
other approved means as described in
§ 112.2, the availability of these resources.
The response plan must also identify an
individual located at the facility to work with
the fire department for non-petroleum fires.
This individual shall also verify that
sufficient well-trained fire fighting resources
are available within a reasonable response
time to a worst case scenario. The individual
may be the qualified individual identified in
the response plan or another appropriate
individual located at the facility.
8.0 Determining the Availability of
Alternative Response Methods
8.1 For dispersants to be identified in a
response plan, they must be on the NCP
Product Schedule that is maintained by EPA.
(Some States have a list of approved
dispersants for use within State waters.
These State-approved dispersants are listed
on the NCP Product Schedule.)
8.2 Identification of dispersant
application in the plan does not imply that
the use of this technique will be authorized.
Actual authorization for use during a spill
response will be governed by the provisions
of the NCP and the applicable ACP. To date,
dispersant application has not been approved
by ACPs for inland areas or shallow
nearshore areas.
9,0 Additional Equipment Necessary to
Sustain Response Operations
9.1 A facility owner or operator shall, as
appropriate, ensure that sufficient numbers
of trained personnel and boats, aerial
spotting aircraft, containment boom, sorbent
materials, boom anchoring materials, and
other supplies are available to sustain
response operations to completion. All such
equipment must be suitable for use with the
primary equipment identified in the response
plan. A facility owner or operator is not
required to list these resources, but shall
certify their availability.
9.2 A facility owner or operator shall
evaluate the availability of adequate
temporary storage capacity to sustain the
effective daily recovery capacities from
equipment identified in the plan. Because of
the inefficiencies of oil spill recovery
devices, response plans must identify daily
storage capacity equivalent to twice the
effective daily recovery capacity required on-
scene. This temporary storage capacity may
be reduced if a facility owner or operator can
demonstrate by waste stream analysis that
the efficiencies of the oil recovery devices,
ability to decant waste, or the availability of
alternative temporary storage or disposal
locations will reduce the overall volume of
oily material storage requirement.
9.3 A facility owner or operator shall
ensure that his or her planning includes the
capability to arrange for disposal of recovered
oil products. Specific disposal procedures
will be addressed in the applicable ACP.
10.0 References and Availability
10.1 All materials listed in this section
are part of EPA's rulemaking docket, and are
located in the Superfund Docket, Room
M261S, at the U.S. Environmental Protection
Agency, 401 M Street, SW., Washington, DC
20460 (Docket Number SPCC-2P). The
docket is available for inspection between
9:00 a.m. and 4:00 p.m., Monday through
Friday, excluding Federal holidays.
Appointments to review the docket can be
made by calling 202-260-3046. The public
may copy a maximum of 266 pages from any
regulatory docket at no cost. If the number of
pages copied exceeds 266, however, a charge
of 15 cents will be incurred for each
additional page, plus a S25.00 administrative
fee. Charges for copies and docket hours are
subject to change.
10.2 The docket will mail copies of
materials to requestors who are outside the
Washington D.C. metro area. Materials may
be available from other sources, as noted in
this section. The ERNS/SPCC Information
line at 202-260-2342 or the RCRA7
Superfund Hotline at 800-424-9346 may also
provide additional information on where to
obtain documents. To contact the RCRA/
Superfund Hotline in the Washington, DC
metropolitan area, dial 703-412-9810. The
Telecommunications Device for the Deaf
(TDD) Hotline number is 800-553-7672, or,
in the Washington, DC metropolitan area,
703-412-3323.
10.3 Documents Referenced
(1) National Preparedness for Response
Exercise Program (PREP). The PREP draft
guidelines are available from United States
Coast Guard Headquarters (G-MEP-4), 2100
Second Street, SW., Washington, DC 20593.
(See 58 FR 53990, October 19,1993, Notice
of Availability of PREP Guidelines).
(2) "Guidance for Facility and Vessel
Response Plans: Fish and Wildlife and
Sensitive Environments" (published in the
Federal Register by DOC/NOAA at 59 FR
14713, March 29,1994). The guidance is
available in the Superfund Docket (see
sections 10.1 and 10.2 of this appendix).
(3) ASTM Standards. ASTM F 715. ASTM
F 989, ASTM F 631-flO, ASTM F 808-83
(1968). The ASTM standards are available
from the American Society for Testing and
Materials, 1916 Race Street, Philadelphia, PA
19103-1187.
TABLE 1 TO APPENDIX E—RESPONSE RESOURCE OPERATING CRITERIA
Oil Recovery Devices
Operating environment
Rivers and Canals
Inland
Great Lakes
Ocean
Significant wave
height 1
s 1 foot
< 3 feet
s 4 feet
< 6 feet
Sea state
1
2
2-3
3-4
Boom
Boom property
Significant Wave Height1
Sea State
Boom height — inches (draft plus freeboard)
Reserve Buoyancy to Weight Ratio
Total Tensile Strength— pounds
Skirt Fabric Tensile Strength — pounds
Skirt Fabric Tear Strength— pounds
Rivers
and
canals
s 1
1 ...
6-18
2:1
4500
200
100
Ua
Inland
S 3
2
18-42
2-1
15000-
20,000.
300
100
8
Great
Lakes
S4
2-3
18-42
2:1
15000-
20,000.
300
100
Ocean
S6
3-4
242
3:1 to 4:1
220,000
500
125
10il recovery devices and boom shall be at least capable of operating in wave heights up to and including the values listed in Table 1 for each
operating environment.
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
34117
TABLE 2 TO APPENDIX E—REMOVAL CAPACITY PLANNING TABLE
Spill location
Rivers and canals
Sustainabiltty of orvwater oil recovery
3 days
Nearshore/inland Great Lakes
4 days
Oil group 1
1 . Non-persistent oils
2. Light crudes .....
3. Medium crudes and fuels
4, Heavy crudes and fuels
Group 5 oils are defined in section
Percent nat- Percent re- o««™»,
ural dissipa- covered Pe"?*
tjon floating oil onsh
80
40
20
5
1.2.7 of this appendix; the response resource
10
15
15
20
considerations
^ j. Percent nat- Percent re- pRrr«nt ail
„„ uraldissipa- covered rf,z£~
ore tion floating oil Onshore
10 80
45 50
65 30
75 10
are outlined in section 7.6
20
50
50
50 '
of this appendix.
10
30
50
70
1 Non-petroleum oils are defined in section 1.2.3 of this appendix; the response resource considerations are outlined in section 7.7 of this ap-
pendix.
TABLE 3 TO APPENDIX E—EMULSI-
FICATION FACTORS FOR PETROLEUM
OIL GROUPS 1
Non-Persistent Oil:
Group 1
Persistent Oil:
Group 2
Group 3
Group 4
1.0
1.8
2.0
1.4
TABLE 3 TO APPENDIX E—EMULSI-
FICATION FACTORS FOR PETROLEUM
OIL GROUPS 1—Continued
Group 5 oils are defined in section 1.2.7 of
this appendix; the response resource con-
siderations are outlined in section 7.6 of
this appendix.
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34118 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
ATTACHMENT E-l --
WORKSHEET TO FLAN VOLUME OF RESPONSE RESOURCES
FOR VORST CASE DISCHARGE
Part I Background Information
Step (A) Calculate Worst Case Discharge in barrels (Appendix D)
(A)
Step (B) Oil Group1 (Table 3 and section 1.2 of this appendix)
Step (C) Operating Area (choose one)
Step (D) Percentages of Oil (Table 2 of this appendix)
Percent Lost to
Natural Dissipation
Percent Recovered
Floating Oil
(01)
(02)
Nearshore/Inland
Great Lakes
or Rivers
and canals
Percent
Oil Onshore
(03)
Step (El) On-Water Oil Recovery Step (D2) x Step (A)
100
(ED
Step (E2) Shoreline Recovery Step (D31 x Step (A)
100
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations 34119
ATTXCHMnr 1*1 (CQMTXJIUJU)) ••
WOHKSHCTT TO SLAV VOLUME 07 U8POV8I USOOSCXS
FOR WORST CAS* DXSCRAkOB
Part II On-Water Oil Recovery Capacity (barrels/day)
Tier 1 Tier 2
Step
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34120
Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
ATTACHMENT K'l SXAMPLK --
WORKSEBKT TO PLAN VOLUM1 OP RKSPONSK RKSODRCSS
FOR WORST CASK DISCHARGE
Part I Background Information
Step (A) Calculate Worst Case Discharge in barrels (Appendix D)
Step (B) Oil Group1 (Table 3 and section 1.2 of this appendix)
Step (C) Operating Area (choose one)
170,000
(A)
Nearshore/Inland
Great Lakes
Step (D) Percentages of Oil (Table 2 of this appendix)
or Rivers
and canals
Percent Lost to
Natural Dissipation
Percent Recovered
Floating Oil
10
50
(D1)
(02)
Percent Oil
Onshore
70
(03)
Step (El) On-Water Oil Recovery Step (D2) x Step (A)
100
85,000
(ED
Step (E2) Shoreline Recovery Step (D3) x Step (A)
100
119,000
(E2)
Step (F) Emulsification Factor
(Table 3 of this appendix)
1.4
Step (G) On-Water Oil Recovery Resource Mobilization Factor
(Table 4 of this appendix)
Tier 1
Tier 2
Tier 3
0.15
0.25
0.40
(G2)
(03)
(CD
1 A facility that handles, stores, or transports multiple groups of oil must do separate calculations for
each oil group on site except for those oil groups that constitute 10 percent or less by volume of the total
oil storage capacity at the facility. For purposes of this calculation, the volunes of all products in an
oil group must be sunned to detemine the percentage of the facility's total oil storage capacity.
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations 34121
ATTACHMENT K-l BXAMPUC (COHTZNUXD) --
WORXSHXKT TO PLAN VOLUME OF USPOTTC RESOURCES
FOR WORST CASK DISCHARGE
Part II On-Water Oil Recovery Capacity (barrels/day)
Tier 1 Tier 2
17,850
29,750
Step (ED x Step (F) x
Step (CD
Step (ED x Step (F) x
Step (62)
Tier 3
47,600
Step (ED x Step (F) x
Step (G3)
Part III Shoreline Cleanup Volume (barrels)
Part IV On-Water Response Capacity By Operating Area
(Table 5 of this appendix)
(Amount needed to be contracted for in barrels/day)
Tier 1
Tier 2
10,000
20,000
(JD
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34122 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
Appendix F To Part 112—Facility-Specific
Response Plan
Table of Contents
1.0 Model Facility-Specific Response
Plan
1.1 Emergency Response Action Plan
1.2 Facility Information
1.3 Emergency Response Information
1.3.1 Notification
1.3.2 Response Equipment List
1.3.3 Response Equipment Testing/
Deployment
1.3.4 Personnel
1.3.5 Evacuation Plans
1.3.6 Qualified Individual's Duties
1.4 Hazard Evaluation
1.4.1 Hazard Identification
1.4.2 Vulnerability Analysis
1.4.3 Analysis of the Potential for an Oil
Spill
1.4.4 Facility Reportable Oil Spill History
1.5 Discharge Scenarios
I.S.I Small and Medium Discharges
1.5.2 Worst Case Discharge
1 6 Discharge Detection Systems
1.6.1 Discharge Detection By Personnel
1.6.2 Automated Discharge Detection
1.7 Plan Implementation
1.7.1 Response Resources for Small,
Medium, and Worst Case Spills
1.7.2 Disposal Plans
1.7.3 Containment and Drainage Planning
1.8 Self-Inspection, Drills/Exercises, and
Response Training
1.8.1 Facility Self-Inspection
1.8.1.1 Tank Inspection
1.8.1.2 Response Equipment Inspection
1.8.1.3 Secondary Containment
Inspection
1.8.2 Facility Drills/Exercises
1.8.2.1 Qualified Individual Notification
Drill Logs
1.8.2.2 Spill Management Team Tabletop
Exercise Logs
1.8.3 Response Training
1.8.3.1 Personnel Response Training Logs
1.8.3.2 Discharge Prevention Meeting
Logs
1.9 Diagrams
1.10 Security
2.0 Response Plan Cover Sheet
3.0 Acronyms
4.0 References
I 0 Model Facility-Specific Response Plan
(A) Owners or operators of facilities
regulated under this part which pose a threat
of substantial harm to the environment by
discharging oil into or on navigable waters or
adjoining shorelines are required to prepare
and submit facility-specific response plans to
EPA in accordance with the provisions in
this appendix. This appendix further
describes the required elements in
§112.20(h).
(B) Response plans must be sent to the
appropriate EPA Regional office. Figure F-l
of this Appendix lists each EPA Regional
office and the address where owners or
operators must submit their response plans.
Those facilities deemed by the Regional
Administrator (RA) to pose a threat of
significant and substantial harm to the
environment will have their plans reviewed
and approved by EPA. In certain cases,
information required in the model response
plan is similar to information currently
maintained in the facility's Spill Prevention,
Control, and Countermeasures (SPCC) Plan as
required by 40 CFR 112.3. In these cases,
owners or operators may reproduce the
information and include a photocopy in the
response plan.
(C) A complex may develop a single
response plan with a set of core elements for
all regulating agencies and separate sections
for the non-transportation-related and
transportation-related components, as
described in § 112.20(h). Owners or operators
of large facilities that handle, store, or
transport oil at more than one geographically
distinct location (e.g., oil storage areas at
opposite ends of a single, continuous parcel
of property) shall, as appropriate, develop
separate sections of the response plan for
each storage area.
BILLING CODE S58O-60-P
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations 34123
BILLING CODE &MO-SO-C
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34124 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
3.1 Emergency Response Action Plan
Several sections of the response plan shall
be co-located for easy access by response
personnel during an actual emergency or oil
spill. This collection of sections shall be
called the Emergency Response Action Plan.
The Agency intends that the Action Plan
contain only as much information as is
necessary to combat the spill and be arranged
so response actions are not delayed. The
Action Plan may be arranged in a number of
ways. For example, the sections of the
Emergency Response Action Plan may be
photocopies or condensed versions of the
forms included in the associated sections of
the response plan. Each Emergency Response
Action Plan section may be tabbed for quick
reference. The Action Plan shall be
maintained in the front of the same binder
that contains the complete response plan or
it shall be contained in a separate binder. In
the latter case, both binders shall be kept
together so that the entire plan can be
accessed by the qualified individual and
appropriate spill response personnel. The
Emergency Response Action Plan shall be
made up of the following sections:
1. Qualified Individual Information (Section
1.2) partial
2. Emergency Notification Phone List
(Section 1.3.1) complete
3. Spill Response Notification Form (Section
1.3.1) complete
4. Response Equipment List and Location
(Section 1.3.2) complete
5. Response Equipment Testing and
Deployment (Section 1.3.3) complete
6. Facility Response Team (Section 1.3.4)
partial
7. Evacuation Plan (Section 1.3.5) condensed
8. Immediate Actions (Section 1.7.1)
complete
9. Facility Diagram (Section 1.9) complete
1.2 Facility Information
The facility information form is designed
to provide an overview of the site and a
description of past activities at the facility.
Much of the information required by this
section may be obtained from the facility's
existing SPCC Plan.
1.2.1 Facility name and location: Enter
facility name and street address. Enter the
address of corporate headquarters only if
corporate headquarters are physically located
at the facility. Include city, county, state, zip
code, and phone number.
1.2.2 Latitude and Longitude: Enter the
latitude and longitude of the facility. Include
degrees, minutes, and seconds of the main
entrance of the facility.
1.2.3 Wellhead Protection Area: Indicate
if the facility is located in or drains into a
wellhead protection area as defined by the
Safe Drinking Water Act of 1986 (SDWA).1
The response plan requirements in the
Wellhead Protection Program are outlined by
the State or Territory in which the facility
resides.
1.2.4 Owner/operator: Write the name of
the company or person operating the facility
and the name of the person or company that
owns the facility, if the two are different. List
the address of the owner, if the two are
different.
1.2.5 Qualified Individual: Write the
name of the qualified individual for the
entire facility. If more than one person is
listed, each individual indicated in this
section shall have full authority to
implement the facility response plan. For
each individual, list: name, position, home
and work addresses (street addresses, not
P.O. boxes), emergency phone number, and
specific response training experience.
1.2.6 Date of Oil Storage Start-up: Enter
the year which the present facility first
started storing oil.
1.2.7 Current Operation: Briefly describe
the facility's operations and include the
Standard Industry Classification (SIC) code.
1.2.8 Dates and Type of Substantial
Expansion: Include information on
expansions that have occurred at the facility.
Examples of such expansions include, but are
not limited to: Throughput expansion,
addition of a product line, change of a
product line, and installation of additional
oil storage capacity. The data provided shall
include all facility historical information and
detail the expansion of the facility. An
example of substantial expansion is any
material alteration of the facility which
causes the owner or operator of the facility
to re-evaluate and increase the response
equipment necessary to adequately respond
to a worst case discharge from the facility.
Date of Last Update:
Facility Information Form
Facility Name: •
1A wellhead protection area is defined as the
surface and subsurface area surrounding a water
well or wellfleid. supplying a public water system,
through which contaminants are reasonably likely
to move toward and reach such water well or
wellfield. For further information regarding State
and territory protection programs, facility owners or
operators may contact the SDWA Hotline at 1-800-
42&-4791.
Location (Street Address):
City: State: Zip:
County: Phone Number: ( )
Latitude:
. Degrees.
Seconds
Longitude: Degrees.
Seconds
Wellhead Protection Area: -
Owner:
. Minutes
Minutes
Owner Location (Street Address):
(if different from Facility Address)
City: State: Zip:
County: Phone Number: ( )
Operator (if not Owner):
Qualified Individual(s): (attach additional
sheets if more than one)
Name:
Position:
Work Address:
Home Address:
Emergency Phone Number: (
Date of Oil Storage Start-up: -
Current Operations:
Date(s) and Type(s) of Substantial
Expansion(s): _^_^__^____
(Attach additional sheets if necessary)
1.3 Emergency Response Information
(A) The information provided in this
section shall describe what will be
needed in an actual emergency
involving the discharge of oil or a
combination of hazardous substances
and oil discharge. The Emergency
Response Information section of the
plan must include the following
components:
(1) The information provided in the
Emergency Notification Phone List in section
1.3.1 identifies and prioritizes the names and
phone numbers of the organizations and
personnel that need to be notified *
immediately in the event of an emergency.
This section shall include all the appropriate
phone numbers for the facility. These
numbers must be verified each time the plan
is updated. The contact list must be
accessible to all facility employees to ensure
that, in case of a discharge, any employee on
site could immediately notify the appropriate
parties.
(2) The Spill Response Notification Form
in section 1.3.1 creates a checklist of
information that shall be provided to the
National Response Center (NRC) and other
response personnel. All information on this
checklist must be known at the time of
notification, or be in the process of being
collected. This notification form is based on
a similar form used by the NRC Note: Do not
delay spill notification to collect the
information on the list.
(3) Section 1.3.2 provides a description of
the facility's list of emergency response
equipment and location of the response
equipment. When appropriate, the amount of
oil that emergency response equipment can
handle and any limitations (e.g., launching
sites) must be described.
(4) Section 1.3.3 provides information
regarding response equipment tests and
deployment drills. Response equipment
deployment exercises shall be conducted to
ensure that response equipment is
operational and the personnel who would
operate the equipment in a spill response are
capable of deploying and operating it. Only
a representative sample of each type of
response equipment needs to be deployed
and operated, as long as the remainder is
properly maintained. If appropriate, testing
of response equipment may be conducted
while it is being deployed. Facilities without
facility-owned response equipment must
ensure that the oil spill removal organization
that is identified in the response plan to
provide this response equipment certifies
that the deployment exercises have been met.
Refer to the National Preparedness for
Response Exercise Program (PREP)
Guidelines (see Appendix E to this part,
section 10. for availability), which satisfy Oil
Pollution Act (OPA) response exercise
requirements.
(5) Section 1.3.4 lists the facility response
personnel, including those employed by the
facility and those under contract to the
facility for response activities, the amount of
time needed for personnel to respond, their
responsibility in the case of an emergency,
and their level of response training. Three
different forms are included in this section.
The Emergency Response Personnel List
shall be composed of all personnel employed
by the facility whose duties involve
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Federal Register / Vol. 59, No. 126 / Friday. July 1, 1994 / Rules and Regulations 34125
responding to emergencies, including oil
spi;; even when they are not physically
pres:' .1 at the site. An example of this type
of person would be the Building Engineer-in-
Charge or Plant Fire Chief. The second form
is a list of the Emergency Response
Contractors (both primary and secondary)
retained by the facility. Any changes in
contractor status must be reflected in updates
to the response plan. Evidence of contracts
with response contractors shall be included
in this section so that the availability of
resources can be verified. The last form is the
Facility Response Team List, which shall be
composed of both emergency response
personnel (referenced by job title/position)
and emergency response contractors,
included in one of the two lists described
above, that will respond immediately upon
discovery of an oil spill or other emergency
(i.e., the first people to respond). These are
to be persons normally on the facility
premises or primary response contractors.
Examples of these personnel would be the
Facility Hazardous Materials (HAZMAT)
Spill Team 1, Facility Fire Engine Company
1, Production Supervisor, or Transfer
Supervisor. Company personnel must be able
to respond immediately and adequately if
contractor support is not available.
(6) Section 1.3.5 lists factors that must, as
appropriate, be considered when preparing
an evacuation plan.
(7) Section 1.3.6 references the
responsibilities of the qualified individual for
the facility in the event of an emergency.
(B) The information provided in the
emergency response section will aid in the
assessment of the facility's ability to respond
to a worst case discharge and will identify
additional assistance that may be needed. In
addition, the facility owner or operator may
want to produce a wallet-size card containing
a checklist of the immediate response and
notification steps to be taken in the event of
an oil discharge.
1.3.1 Notification
Date of Last Update:
Emergency Notification Phone List Whom To
Notify
Reporter's Name:
Date:
Facility Name:
Owner Name:
Facility Identification Number
Date and Time of Each NRC Notification: —
Organization
Phone No.
1. National Response
Center (NRC): 1-600-424-8802
2. Qualified Individual:
Evening Phone:
3. Company Response
Team:
Evening Phone:
4. Federal On-Scene Co-
ordinator (OSC) and/or
Regional Response
Center (RRC):
Evening Phone(s):
Pager Number(s):
5. Local Response Team
(Fire Dept/Coopera-
tives):
6. Fire Marshall:
Evening Phone:
7. State Emergency Re-
sponse Commission
(SERC):
Evening Phone:
8. State Police:
9. Local Emergency
Planning Committee
(LEPC):
10. Local Water Supply
System:
Evening Phone:
11. Weather Report:
12. Local Television/
Radio Station for Evac-
uation Notification:
Organization
Phone No.
13. Hospitals:
Spill Response Notification Form
Reporter's Last Name:
First:
M.I.:
Position:
Phone Numbers:
Day ( )
Evening { ) -
Company: •
Organization Type:
Address:
.(Y/N)
City:
State:
Zip:
Were Materials Discharged? _
Confidential? (Y/N)
Meeting Federal Obligations to Report?
(Y/N) Date Called:
Calling for Responsible Party? (Y/N)
Time Called:
Incident Description
Source and/or Cause of Incident:
Date of Incident:
Time of Incident: AM/PM
Incident Address/Location:
Nearest City:_
County:.
State:
Distance from City:.
. Zip:.
. Units of Measure:
Direction from City:.
Section: Township: _
. Borough:.
. Range:
Container Type:.
Capacity:.
. Tank Oil Storage
Units of Measure:
Facility Oil Storage Capacity:
of Measure:
Facility Latitude: Degrees
Minutes Seconds
Facility Longitude: Degrees.
Minutes Seconds
Material
Units
CHRIS Code
Discharged quantity
Unit of measure
Material Discharged
in water
Quantity
Unit of measure
Response Action
Actions Taken to Correct, Control or Mitigate
Incident:
Impact
Number of Injuries:.
Deaths:
. Number of
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34126 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
Were there Evacuations? (Y/N)
Number Evacuated:
Was there any Damage? (Y/N)
Model Year
Damage in Dollars (approximate):
Medium Affected:
Description:
More Information about Medium:
Caller Notifications
EPA? (Y/N) USCG?
State? (Y/N)
. (Y/N)
Other?
. (Y/N) Describe:.
Additional Information
Any information about the incident not
recorded elsewhere in the report:
1.3.2 Response Equipment List
Date of Last Update:
Facility Response Equipment List
1. Skimmers/Pumps—Operational Status: —
Type, Model, and Year:
Number:
Capacity: gal./min.
Daily Effective Recovery Rate:
Storage Location(s):
Date Fuel Last Changed:
2. Boom—Operational Status: —
Type, Model, and Yean
Type Model Year
Number:
Size (length): ft.
Containment Area: sq. ft.
Storage Location:
3. Chemicals Stored (Dispersants listed on
EPA's NCP Product Schedule)
Type
Amount
Date
purchased
Treatment
capacity
Storage
location
Were appropriate procedures used to
receive approval for use of dispersants in
accordance with the NCP (40 CFR 300.910)
and the Area Contingency Plan (ACP), where
applicable? (Y/N).
Name and State of On-Scene Coordinator
(OSC) authorizing use: .
Date Authorized:.
4. Dispersant Dispensing Equipment—
Operational Status: .
Type and year
Capacity
Storage
location
Response
time
(minutes)
5. Sorbents—Operational Status:
Type and Year Purchased: —
Amount:
Absorption Capacity (gal.):
Storage Location(s):
6. Hand Tools—Operational Status:
Type and
year
Quantity
Storage
location
7. Communication Equipment (include
operating frequency and channel and/or
cellular phone numbers)—Operational
Status:
Type and
year
Quantity
8. Fire Fighting and Personni
Equipment — Operational Statu
Type and
year
9. Other (e.g.
Motors) — Oper
Quantity
Storage loca-
tion/number
3! Protective
s:
Storage
location
, Heavy Equipment. Boats and
ational Status:
Type and
year
Quantity
Storage
location
1.3.3 Response Equipment Testing/
Deployment
Date of Last Update:
Response Equipment Testing and
Deployment Drill Log
Last Inspection or Response Equipment Test
Date: •
Inspection Frequency:
Last Deployment Drill Date:
Deployment Frequency:
Oil Spill Removal Organization Certification
(if applicable):
1.3.4 Personnel
Date of Last Update:
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations 34127
EMERGENCY RESPONSE PERSONNEL
Company Personnel
Name
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Phone'
Response time
Responsibility during response action
Response training type/date
1 Phone number to be used when person is not on-site.
EMERGENCY RESPONSE CONTRACTORS
Date of Last Update:.
Contractor
1.
2.
3.
4.
Phone
Response time
i
Contract responsibility '
11nclude evidence of contracts/agreements with response contractors to ensure the availability of personnel and response equipment.
FACILITY RESPONSE TEAM
Date of Last Update:
Team member
Qualified Individual:
Response time
(minutes)
Phone or pager number (day/evening)
/
/
/
/
/
/
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34128
Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
FACILITY RESPONSE TEAM—Continued
Date of Last Update:.
Team member
Response time
(minutes)
Phone or pager number (day/evening)
/
/
/
/
/
/
/
/
/
/
/
/
Note: If the facility uses contracted help in an emergency response situation, the owner or operator must provide the contractors' names and
review the contractors' capacities to provide adequate personnel and response equipment.
3.3.5 Evacuation Plans
1.3.5.1 Based on the analysis of the
facility, as discussed elsewhere in the plan,
a facility-wide evacuation plan shall be
developed. In addition, plans to evacuate
parts of the facility that are at a high risk of
exposure in the event of a spill or other
release must be developed. Evacuation routes
must be shown on a diagram of the facility
(see section 1.9 of this appendix). When
developing evacuation plans, consideration
must be given to the following factors, as
appropriate:
(1) Location of stored materials;
(2) Hazard imposed by spilled material:
(3) Spill flow direction:
(4) Prevailing wind direction and speed;
(5) Water currents, tides, or wave
conditions (if applicable);
(6) Arrival route of emergency response
personnel and response equipment:
(7) Evacuation routes;
(8) Alternative routes of evacuation;
(9) Transportation of injured personnel to
nearest emergency medical facility;
(10) Location of alarm/notification systems;
(11) The need for a centralized check-in
area for evacuation validation (roll call);
(12) Selection of a mitigation command
center: and
(13) Location of shelter at the facility as an
alternative to evacuation.
1.3.5.2 One resource that may be helpful
to owners or operators in preparing this
section of the response plan is The Handbook
of Chemical Hazard Analysis Procedures by
the Federal Emergency Management Agency
(FEMA), Department of Transportation
(DOT), and EPA. The Handbook of Chemical
Hazard Analysis Procedures is available
from: FEMA , Publication Office, 500 C.
Street, S.W., Washington, DC 20472, (202)
646-3484.
1.3.5.3 As specified in § 112.20(h)(l)(vi),
the facility owner or operator must reference
existing community evacuation plans, as
appropriate.
1.3.6 Qualified Individual's Duties
The duties of the designated qualified
individual are specified in § I12.20(h)(3)(ix).
The qualified individual's duties must be
described and be consistent with the
minimum requirements hi § 112.20(h)(3)(ix).
In addition, the qualified individual must be
identified with the Facility Information in
section 1.2 of the response plan.
I.4 Hazard Evaluation
This section requires the facility owner or
operator to examine the facility's operations
closely and to predict where discharges
could occur. Hazard evaluation is a widely
used industry practice that allows facility
owners or operators to develop a complete
understanding of potential hazards and the
response actions necessary to address these
hazards. The Handbook of Chemical Hazard
Analysis Procedures, prepared by the EPA,
DOT, and the FEMA and the Hazardous
Materials Emergency Planning Guide (NRT-
1), prepared by the National Response Team
are good references for conducting a hazard
analysis. Hazard identification and
evaluation will assist facility owners or
operators in planning for potential
discharges, thereby reducing the severity of
discharge impacts that may occur in the
future. The evaluation also may help the
operator identify and correct potential
sources of discharges. In addition, special
hazards to workers and emergency response
personnel's health and safety shall be
evaluated, as well as the facility's oil spill
history.
1.4.1 Hazard Identification
The Tank and Surface Impoundment (SI)
forms, or their equivalent, that are part of this
section must be completed according to the
directions below. ("Surface Impoundment"
means a facility or part of a facility which is
a natural topographic depression, man-made
excavation, or diked area formed primarily of
earthen materials (although it may be lined
with man-made materials), which is designed
to hold an accumulation of liquid wastes or
wastes containing free liquids, and which is
not an injection well or a seepage facility.)
Similar worksheets, or their equivalent, must
be developed for any other type of storage
containers.
(1) List each tank at the facility with a
separate and distinct identifier. Begin
aboveground tank identifiers with an "A"
and belowground tank identifiers with a "B",
or submit multiple sheets with the
aboveground tanks and belowground tanks
on separate sheets.
(2) Use gallons for the maximum capacity
of a tank; and use square feet for the area.
(3) Using the appropriate identifiers and
the following instructions, fill in the
appropriate forms:
(a) Tank or SI number—Using the
aforementioned identifiers (A or B) or
multiple reporting sheets, identify each tank
or SI at the facility that stores oil or
hazardous materials.
(b) Substance Stored—For each tank or SI
identified, record the material that is stored
therein. If the tank or SI is used to store more
than one material, list all of the stored
materials.
(c) Quantity Stored—For each material
stored in each tank or SI, report the average
volume of material stored on any given day.
(d) Tank Type or Surface Area/Year—For
each tank, report the type of tank (e.g.,
floating top), and the year the tank was
originally installed. If the tank has been
refabricated, the year that the latest
refabrication was completed must be
recorded in parentheses next to the year
installed. For each SI. record the surface area
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Federal Register / Vol. 59. No. 126 / Friday, July 1, 1994 / Rules and Regulations 34129
of the impoundment and the year it went into
service.
(e) Maximum Capacity—Record the
operational maximum capacity for each tank
and SI. If the maximum capacity varies with
the season, record the upper and lower
limits.
(f) Failure/Cause—Record the cause and
date of any tank or SI failure which has
resulted in a loss of tank or SI contents.
(4) Using the numbers from the tank and
SI forms, label a schematic drawing of the
facility. This drawing shall be identical to
any schematic drawings included in the
SPCC Plan.
(5) Using knowledge of the facility and its
operations, describe the following in writing:
(a) The loading and unloading of
transportation vehicles that risk the discharge
of oil or release of hazardous substances
during transport processes. These operations
may include loading and unloading of trucks,
railroad cars, or vessels. Estimate the volume
of material involved in transfer operations, if
the exact volume cannot be determined.
(b) Day-to-day operations that may present
a risk of discharging oil or releasing a
hazardous substance. These activities include
scheduled venting, piping repair or
replacement, valve maintenance, transfer of
tank contents from one tank to another, etc.
(not including transportation-related
activities). Estimate the volume of material
HAZARD IDENTIFICATION TANKS 1
Date of Last Update:
involved in these operations, if the exact
volume cannot be determined.
(c) The secondary containment volume
associated with each tank and/or transfer
point at the facility. The numbering scheme
developed on the tables, or an equivalent
system, must be used to identify each
containment area. Capacities must be listed
for each individual unit (tanks, slumps,
drainage traps, and ponds), as well as the
facility total.
(d) Normal daily throughput for the facility
and any effect on potential discharge
volumes that a negative or positive change in
that throughput may cause.
Tank No.
Substance Stored
(Oil and Hazardous
Substance)
Quantity Stored (gal-
lons)
Tank Type/Year
Maximum Capacity
(gallons)
Failure/Cause
1 Tank - any container that stores oil.
Attach as many sheets as necessary.
HAZARD IDENTIFICATION SURFACE IMPOUNDMENTS (Sis)
Date of Last Update:
SI No.
Substance Stored
Quantity Stored (gal-
lons)
Surface Area/Year
Maximum Capacity
(gallons)
Failure/Cause
Attach as many sheets as necessary.
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34130
Federal Register / Vol. 59, No. 126 / Friday, July l, 1994 / Rules and Regulations
1.4.2 Vulnerability Analysis
The vulnerability analysis shall
address the potential effects (i.e., to
human health, property, or the
environment) of an oil spill. Attachment
C-III to Appendix C to this part
provides a method that owners or
operators shall use to determine
appropriate distances from the facility
to fish and wildlife and sensitive
environments. Owners or operators can
use a comparable formula that is
considered acceptable by the RA. If a
comparable formula is used,
documentation of the reliability and
analytical soundness of the formula
must be attached to the response plan
cover sheet. This analysis must be
prepared for each facility and, as
appropriate, must discuss the
vulnerability of:
(1) Water intakes (dryiking, cooling,
or other);
(2) Schools;
(3) Medical facilities;
(4) Residential areas;
(5) Businesses;
(6) Wetlands or other sensitive
environments;2
(7) Fish and wildlife;
(8) Lakes and streams;
(9) Endangered flora and fauna;
(10) Recreational areas;
(11) Transportation routes (air, land,
and water);
(12) Utilities; and
(13) Other areas of economic
importance (e.g., beaches, marinas)
including terrestrially sensitive
environments, aquatic environments,
and unique habitats.
1.4.3 Analysis of the Potential for an
Oil Spill
Each owner or operator shall analyze
the probability of a spill occurring at the
facility. This analysis shall incorporate
factors such as oil spill history,
horizontal range of a potential spill, and
vulnerability to natural disaster, and
shall, as appropriate, incorporate other
factors such as tank age. This analysis
will provide information for developing
discharge scenarios for a worst case
discharge and small and medium
discharges and aid in the development
of techniques to reduce the size and
frequency of spills. The owner or
operator may need to research the age of
the tanks and the oil spill history at the
facility.
1.4.4 Facility Reportable Oil Spill
History
Briefly describe the facility's
reportable oil spill3 history for the
entire life of the facility to the extent
that such information is reasonably
identifiable, including:
(1) Date of discharge(s);
(2) List of discharge causes;
(3) Material(s) discharged;
(4) Amount discharged in gallons;
(5) Amount of discharge that reached
navigable waters, if applicable;
(6) Effectiveness and capacity of
secondary containment;
(7) Clean-up actions taken;
(8) Steps taken to reduce possibility of
recurrence;
(9) Total oil storage capacity of the
tank(s) or impoundment(s) from which
the material discharged;
(10) Enforcement actions;
(11) Effectiveness of monitoring
equipment; and
(12) Description(s) of how each oil
spill was detected.
The information solicited in this section
may be similar to requirements in 40
CFR 112.4(a). Any duplicate
information required by § 112.4(a) may
be photocopied and inserted.
1.5 Discharge Scenarios
In this section, the owner or operator
is required to provide a description of
the facility's worst case discharge, as
well as a small and medium spUl, as
appropriate. A multi-level planning
approach has been chosen because the
response actions to a spill (i.e.,
necessary response equipment,
products, and personnel) are dependent
on the magnitude of the spill. Planning
for lesser discharges is necessary
because the nature of the response may
be qualitatively different depending on
the quantity of the discharge. The
facility owner or operator shall discuss
the potential direction of the spill
pathway.
1.5.1 Small and Medium Discharges
1.5.1.1 To address multi-level
planning requirements, the owner or
operator must consider types of facility-
specific spill scenarios that may
contribute to a small or medium spill.
The scenarios shall account for all the
operations that take place at the facility,
including but not limited to:
(1) Loading and unloading of surface
transportation;
2 Refer to the DOC/NOAA "Guidance for Facility
and Vessel Response Plans: Fish and Wildlife and
Sensitive Environments" (See appendix E to this
part, section 10. for availability).
3 As described in 40 CFR part 110, reportable oil
spills are those that: (a) violate applicable water
quality standards, or (b) cause a film or sheen upon
or discoloration of the surface of the water or
adjoining shorelines or cause a sludge or emulsion
to be deposited beneath the surface of the water or
upon adjoining shorelines.
(2) Facility maintenance;
(3) Facility piping:
(4) Pumping stations and sumps;
(5) Oil storage tanks;
(6) Vehicle refueling; and
(7) Age and condition of facility and
components.
1.5.1.2 The scenarios shall also
consider factors that affect the response
efforts required by the facility. These
include but are not limited to:
(1) Size of the spill;
(2) Proximity to downgradient wells,
waterways, and drinking water intakes;
(3) Proximity to fish and wildlife and
sensitive environments;
(4) Likelihood that the discharge will
travel offsite (i.e., topography,
drainage);
(5) Location of the material spilled
(i.e., on a concrete pad or directly on the
soil);
(6) Material discharged;
(7) Weather or aquatic conditions (i.e.,
river flow);
(8) Available remediation equipment;
(9) Probability of a chain reaction of
failures; and
(10) Direction of spill pathway.
1.5.2 Worst Case Discharge
1.5.2.1 In this section, the owner or
operator must identify the worst case
discharge volume at the facility.
Worksheets for production and non-
production facility owners or operators
to use when calculating worst case
discharge are presented in Appendix D
to this part. When planning for the
worst case discharge response, all of the
aforementioned factors listed in the
small and medium discharge section of
the response plan shall be addressed.
1.5.2.2 For onshore storage facilities
and production facilities, permanently
manifolded oil storage tanks are defined
as tanks that are designed, installed,
and/or operated in such a manner that
the multiple tanks function as one
storage unit (i.e., multiple tank volumes
are equalized). In this section of the
response plan, owners or operators must
provide evidence that oil storage tanks
with common piping or piping systems
are not operated as one unit. If such
evidence is provided and is acceptable
to the RA, the worst case discharge
volume shall be based on the combined
oil storage capacity of all manifold tanks
or the oil storage capacity of the largest
single oil storage tank within the
secondary containment area, whichever
is greater. For permanently manifolded
oil storage tanks that function as one
storage unit, the worst case discharge
shall be based on the combined oil
storage capacity of all manifolded tanks
or the oil storage capacity of the largest
single tank within a secondary
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
34131
containment area, whichever is greater.
For purposes of the worst case discharge
calculation, permanently manifolded oil
storage tanks that are separated by
internal divisions for each tank are
considered to be single tanks and
individual manifolded tank volumes are
not combined.
1.6 Discharge Detection Systems
In this section, the facility owner or
operator shall provide a detailed
description of the procedures and
equipment used to detect discharges. A
section on spill detection by personnel
and a discussion of automated spill
detection, if applicable, shall be
included for both regular operations and
after hours operations. In addition, the
facility owner or operator shall discuss
how the reliability of any automated
system will be checked and how
frequently the system will be inspected.
1.6.1 Discharge Detection by Personnel
In this section, facility owners or
operators shall describe the procedures
and personnel that will detect any spill
or uncontrolled discharge of oil or
release of a hazardous substance. A
thorough discussion of facility
inspections must be included. In
addition, a description of initial
response actions shall be addressed.
This section shall reference section 1.3.1
of the response plan for emergency
response information.
1.6.2 Automated Discharge Detection
In this section, facility owners or
operators must describe any automated
spill detection equipment that the
facility has in place. This section shall
include a discussion of overfill alarms,
secondary containment sensors, etc. A
discussion of the plans to verify an
automated alarm and the actions to be
taken once verified must also be
included.
1.7 Plan Implementation
In this section, facility owners or
operators must explain in detail how to
implement the facility's emergency
response plan by describing response
actions to be carried out under die plan
to ensure the safety of die .facility and
to mitigate or prevent discharges
described in section 1.5 of the response
plan. This section shall include die
identification of response resources for
small, medium, and worst case spills;
disposal plans; and containment and
drainage planning. A list of those
personnel who would be involved in the
cleanup shall be identified. Procedures
that the facility will use, where
appropriate or necessary, to update their
plan after an oil spill event and the time
frame to update die plan must be
described.
1.7.1 Response Resources for Small,
Medium, and Worst Case Spills
1.7.1.1 Once the spill scenarios have
been identified in section 1.5 of the
response plan, the facility owner or
operator shall identify and describe
implementation of the response actions.
The facility owner or operator shall
demonstrate accessibility to die proper
response personnel and equipment to
effectively respond to all of the
identified spill scenarios. The
determination and demonstration of
adequate response capability are
presented in Appendix E to this part. In
addition, steps to expedite the cleanup
of oil spills must be discussed. At a
minimum, the following items must be
addressed:
(1) Emergency plans for spill
response;
(2) Additional response training;
(3) Additional contracted help;
(4) Access to additional response
equipment/experts; and
(5) Ability to implement the plan
including response training and practice
drills.
1.7.1.2A recommended form detailing
immediate actions follows.
Oil Spill Response—Immediate
Actions
1. Stop the product
flow.
2. Warn personnel ....
3. Shut off ignition
sources.
4. Initiate containment
5. Notify NRC
6. Notify OSC
7. Notify, as appro-
priate
Act quickly to secure
pumps, dose
valves, etc.
Enforce safety and
security measures.
Motors, electrical cir-
cuits, open flames,
etc.
Around the tank and/
or in the water with
oil boom.
1-800-424-8802
Source: FOSS. Oil Spill F
durat. Revoed December 3. 19
-Emergency Proce-
1.7.2 Disposal Plans
1.7.2.1 Facility owners or operators must
describe how and where the facility intends
to recover, reuse, decontaminate, or dispose
of materials after a discharge has taken place.
The appropriate permits required to transport
or dispose of recovered materials according
to local. State, and Federal requirements
must be addressed. Materials that must be
accounted for in the disposal plan, as
appropriate, include:
(1) Recovered product;
(2) Contaminated soil;
(3) Contaminated equipment and materials.
including drums, tank parts, valves, and
shovels;
(4) Personnel protective equipment;
(5) Decontamination solutions;
(6) Adsorbents; and
(7) Spent chemicals.
1.7.2.2 These plans must be prepared in
accordance with Federal (e.g., the Resource
Conservation and Recovery Act (RCRAl),
State, and local regulations, where
applicable. A copy of the disposal plans from
the facility's SPCC Plan may be inserted with
this section, including any diagrams in those
plans.
Material
1.
2.
3.
4.
Disposal fa-
cility
Location
RCRA per-
mit/manifest
1.7.3 Containment and Drainage Planning
A proper plan to contain and control a spill
through drainage may limit the threat of
harm to human health and the environment.
This section shall describe how to contain
and control a spill through drainage,
including:
(1) The available volume of containment
(use the information presented in section
1.4.1 of the response plan);
(2) The route of drainage from oil storage
and transfer areas;
(3) The construction materials used in
drainage troughs;
(4) The type and number of valves and
separators used in the drainage system;
(S) Sump pump capacities;
(6) The containment capacity of weirs and
booms that might be used and their location
(see section 1.3.2 of this appendix); and
(7) Other cleanup materials.
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34132 Federal Register / Vol. 59, No. 126 / Friday, July 1. 1994 / Rules and Regulations
In addition, facility owners or operators must
meet the inspection and monitoring
requirements for drainage contained in 40
CFR 112.7(e). A copy of the containment and
drainage plans that are required in 40 CFR
112.7(e) may be inserted in this section,
including any diagrams in those plans.
NOTE: The general permit for stormwater
drainage may contain additional
requirements.
1.8 Self-Inspection, Drills/Exercises, and
Response Training
The owner or operator must develop
programs for facility response training and
for drills/exercises according to the
requirements of 40 CFR 112.21. Logs must be
kept for facility drills/exercises, personnel
response training, and spill prevention
meetings. Much of the recordkeeping
information required by this section is also
contained in the SPCC Plan required by 40
CFR 112.3. These logs may be included in the
facility response plan or kept as an annex to
the facility response plan.
I.B.I Facility Self-Inspection
Pursuant to 40 CFR 112.7(e)(8), each
facility shall include the written procedures
and records of inspections in the SPCC Plan.
The inspection shall include the tanks,
secondary containment, and response
equipment at the facility. Records of the
inspections of tanks and secondary
containment required by 40 CFR 112.7(e)
shall be cross-referenced in the response
plan. The inspection of response equipment
is a hew requirement in this plan. Facility
self-inspection requires two steps: (1) a
checklist of things to inspect; and (2) a
method of recording the actual inspection
and its findings. The date of each inspection
shall be noted. These records are required to
be maintained for 5 years.
1.8.1.1 Tank Inspection
The tank inspection checklist presented
below has been included as guidance during
inspections and monitoring. Similar
requirements exist in 40 CFR 112.7(e).
Duplicate information from the SPCC Plan
may be photocopied and inserted in this
section. The inspection checklist consists of
the following items:
Tank Inspection Checklist
1. Check tanks for leaks, specifically looking
for:
A. drip marks;
B. discoloration of tanks;
C. puddles containing spilled or leaked
material;
D. corrosion;
E. cracks; and
F. localized dead vegetation.
2. Check foundation for:
A. cracks; *
B. discoloration;
C. puddles containing spilled or leaked
material;
D. settling;
E. gaps between tank and foundation; and
F. damage caused by vegetation roots.
3. Check piping for:
A. droplets of stored material;
B. discoloration:
C. corrosion;
D. bowing of pipe between supports;
E. evidence of stored material seepage from
valves or seals; and
F. localized dead vegetation.
TANK/SURFACE IMPOUNDMENT INSPECTION LOG
Inspector
Tank or Sl»
Date
Comments
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations 34133
1.8.1.2 Response Equipment Inspection
Using the Emergency Response Equipment
List provided in section 1.3.2 of the response
plan, describe each type of response
equipment, checking for the following:
Response Equipment Checklist
1. Inventory (item and quantity);
2. Storage location;
3. Accessibility (time to access and
respond);
4. Operational status/condition;
5. Actual use/testing (last test date and
frequency of testing); and
6. Shelf life (present age, expected
replacement date).
Please note any discrepancies between this
list and the available response equipment.
RESPONSE EQUIPMENT INSPECTION LOG
[Use section 1.3.2 of the response plan as a checklist]
Inspector
Date
Comments
1.8.1.3 Secondary Containment Inspection
Inspect the secondary containment (as
described in sections 1.4.1 and 1.7.2 of the
response plan), checking the following:
Secondary Containment Checklist
1. Dike or berm system.
A. Level of precipitation in dike/available
capacity;
B. Operational status of drainage valves;
C. Dike or berm permeability,
D. Debris;
E. Erosion;
F. Permeability of the earthen floor of
diked area; and
G. Location/status of pipes, inlets, drainage
beneath tanks, etc.
2. Secondary containment
A. Cracks;
B. Discoloration;
C. Presence of spilled or leaked material
(standing liquid);
D. Corrosion; and
E. Valve conditions.
3. Retention and drainage ponds
A. Erosion;
B. Available capacity;
C. Presence of spilled or leaked material;
D. Debris; and
E. Stressed vegetation.
During inspection, make note of
discrepancies in any of the above
mentioned items, and report them
immediately to the proper facility
personnel. Similar requirements exist in
40 CFR 112.7(e). Duplicate information
from the SPCC Plan may be photocopied
and inserted in this section.
1.8.2 Facility Drills/Exercises
(A) CWA section 311(j)(5), as amended by
OPA, requires the response plan to contain
a description of facility drills/exercises.
According to 40 CFR 112.21(c), the facility
owner or operator shall develop a program of
facility response drills/exercises, including
evaluation procedures. Following the PREP
guidelines (see Appendix E to this part,
section 10, for availability) would satisfy a
facility's requirements for drills/exercises
under this part. Alternately, under
§ 112.21(c), a facility owner or operator may
develop a program that is not based on the
PREP guidelines. Such a program is subject
to approval by the Regional Administrator
based on the description of the program
provided in the response plan.
(B) The PREP Guidelines specify that the
facility conduct internal and external drills/
exercises. The internal exercises include:
qualified individual notification drills, spill
management team tabletop exercises,
equipment deployment exercises, and
unannounced exercises. External exercises
include Area Exercises. Credit for an Area or
Facility-specific Exercise will be given to the
facility for an actual response to a spill in the,
area if the plan was utilized for response to
the spill and the objectives of the Exercise
were met and were properly evaluated,
documented and self-certified.
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34134 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
(C) Section I12.20(h)(8)(ii) requires the
facility owner or operator to provide a
description of the drill/exercise program to
be carried out under the response plan.
Qualified Individual Notification Drill and
Spill Management Team Tabletop Drill logs
shall be provided in sections 1.8.2.1 and
1.8.2.2, respectively. These logs may be
included in the facility response plan or kept
as an annex to the facility response plan. See
section 1.3.3 of this appendix for Equipment
Deployment Drill Logs.
3.8.2.1 Qualified Individual Notification
Drill Logs Qualified Individual Notification
Drill Log
Date:
Company:
Qualified Individual(s):
Emergency Scenario:
Changes to be Implemented:
Time Table for Implementation: •
1.8.2.2 Spill Management Team Tabletop
Exercise Logs Spill Management Team
Tabletop Exercise Log
Date:
Company:
Qualified Individual(s):
Emergency Scenario:
Evaluation:
Changes to be Implemented:
Evaluation:
1.8.3 Response Training
Section 112.21(a) requires facility owners
or operators to develop programs for facility
response training. Facility owners or
operators are required by § 112.20(h)(8)(iii) to
provide a description of the response training
program to be carried out under the response
plan. A facility's training program can be
based on the USCG's Training Elements for
Oil Spill Response, to the extent applicable
to facility operations, or another response
training program acceptable to the RA. The
training elements are available from Petty
Officer Daniel Caras at (202) 267-6570 or fax
267—4085/4065. Personnel response training
logs and discharge prevention meeting logs
shall be included in sections 1.8.3.1 and
1.8.3.2 of the response plan respectively.
These logs may be included in the facility
response plan or kept as an annex to the
facility response plan.
Time Table for Implementation: •
1.8.3.1
Logs
Personnel Response Training
PERSONNEL RESPONSE TRAINING LOG
Name
Response training/date and number of hours
Prevention training/date and number of hours
1.8.3.2 Discharge Prevention Meetings Logs
Discharge Prevention Meeting Log
Date:
Attendees: •
Subject/issue identified
Required action
Implementation date
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations 34135
1.9 Diagrams
The facility-specific response plan shall
include the following diagrams. Additional
diagrams that would aid in the development
of response plan sections may also be
included.
(1) The Site Plan Diagram shall, as
appropriate, include and identify:
(A) the entire facility to scale;
(B) above and be tow ground bulk oil
storage tanks;
(C) the contents and capacities of bulk oil
storage tanks;
(0) the contents and capacity of drum oil
storage areas;
(E) the contents and capacities of surface
impoundments;
(F) process buildings;
(G) transfer areas;
(H) secondary containment systems
(location and capacity);
(I) structures where hazardous materials
are stored or handled, including
materials stored and capacity of storage;
(]) location of communication and
emergency response equipment:
(K) location of electrical equipment which
contains oil; and
(L) for complexes only, the interface(s) (i.e.,
valve or component) between the portion
of the facility regulated by EPA and the
portion(s) regulated by other Agencies.
In most cases, this interface is defined as
the last valve inside secondary
containment before piping leaves the
secondary containment area to connect
to the transportation-related portion of
the facility (i.e., the structure used or
intended to be used to transfer oil to or
from a vessel or pipeline). In the absence
of secondary containment, this interface
is the valve manifold adjacent to the tank
nearest the transfer structure as
described above. The interface may be
defined differently at a specific facility if
agreed to by the RA and the appropriate
Federal official.
(2) The Site Drainage Plan Diagram shall, as
appropriate, include:
(A) major sanitary and storm sewers,
manholes, and drains;
(B) weirs and shut-off valves;
(C) surface water receiving streams;
(D) fire fighting water sources;
(E) other utilities;
(F) response personnel ingress and egress:
(G) response equipment transportation
routes; and
(H) direction of spill flow from discharge
points.
(3) The Site Evacuation Plan Diagram shall,
as appropriate, include:
(A) site plan diagram with evacuation
route(s); and
(B) location of evacuation regrouping areas.
3.30 Security
According to 40 CFR 112.7(e)(9). facilities
are required to maintain a certain level of
security, as appropriate. In this section, a
description of the facility security shall be
provided and include, as appropriate:
(1) emergency cut-off locations (automatic or
manual valves);
(2) enclosures (e.g., fencing, etc.);
(3) guards and their duties, day and night;
(4) lighting;
(5) valve and pump locks; and
(6) pipeline connection caps.
The SPCC Plan contains similar information.
Duplicate information may be photocopied
and inserted in this section.
2.0 Response Plan Cover Sheet
A three-page form has been developed to
be completed and submitted to the RA by
owners or operators who are required to
prepare and submit a facility-specific
response plan. The cover sheet (Attachment
F-l) must accompany the response plan to
provide the Agency with basic information
concerning the facility. This section will
describe the Response Plan Cover Sheet and
provide instructions for its completion.
2.1 Page One—General Information
Owner/Operator of Facility: Enter the name
of the owner of the facility (if the owner is
the operator). Enter the operator of the
facility if otherwise. If the owner/operator of
the facility is a corporation, enter the name
of the facility's principal corporate executive.
Enter as much of the name as will fit in each
section.
(1) Facility Name: Enter the proper name
of the facility.
(2) Facility Address: Enter the street
address, city, State, and zip code.
(3) Facility Phone Number: Enter the phone
number of the facility.
(4) Latitude and Longitude: Enter the
facility latitude and longitude in degrees,
minutes, and seconds.
(5) Dun and Brads tree t Number: Enter the
facility's Dun and Bradstreet number if
available (this information may be obtained
from public library resources).
(6) Standard Industrial Classification (SIC)
Code: Enter the facility's SIC code as
determined by the Office of Management and
Budget (this information may be obtained
from public library resources).
(7) Z^irgest Oil Storage Tank Capacity:
Enter the capacity in GALLONS of the largest
aboveground oil storage tank at the facility.
(8) Maximum Oil Storage Capacity: Enter
the total maximum capacity in GALLONS of
all aboveground oil storage tanks at the
facility.
(9) Number of Oil Storage Tanks: Enter the
number of all aboveground oil storage tanks
at the facility.
(10) Worst Case Discharge Amount: Using
information from the worksheets in
Appendix D, enter the amount of the worst
case discharge in GALLONS.
(11) Facility Distance to Navigable Waters:
Mark the appropriate line for the nearest
distance between an opportunity for
discharge (i.e., oil storage tank, piping, or
flowline) and a navigable water.
2.2 Page Two—Applicability of Substantial
Harm Criteria
Using the flowchart provided in
Attachment C-l to Appendix C to this part,
mark the appropriate answer to each
question. Explanations of referenced terms
can be found in Appendix C to this part. If
a comparable formula to the ones described
in Attachment C-III to Appendix C to this
part is used to calculate the planning
distance, documentation of the reliability and
analytical soundness of the formula must be
attached to the response plan cover sheet.
2.3 Page Three—Certification
Complete this block after all other
questions have been answered.
3.0 Acronyms
ACP: Area Contingency Plan
ASTM: American Society of Testing
Materials
bbls: Barrels
bpd: Barrels per Day
bph: Barrels per Hour
CHRIS: Chemical Hazards Response
Information System
CWA: Clean Water Act
DOI: Department of Interior
DOC: Department of Commerce
DOT: Department of Transportation
EPA: Environmental Protection Agency
FEMA: Federal Emergency Management
Agency
FR: Federal Register
gal: Gallons
gpm: Gallons per Minute
HAZMAT: Hazardous Materials
LEPC: Local Emergency Planning Committee
MMS: Minerals Management Service (part of
DOI)
NCP: National Oil and Hazardous Substances
Pollution Contingency Plan
NOAA: National Oceanic and Atmospheric
Administration (part of DOC)
NRC: National Response Center
NRT: National Response Team
OPA: Oil Pollution Act of 1990
OSC: On-Scene Coordinator
PREP: National Preparedness for Response
Exercise Program
RA: Regional Administrator
RCRA: Resource Conservation and Recovery
Act
RRD Regional Response Centers
RRT: Regional Response Team
RSPA: Research and Special Programs
Administration
SARA: Superfund Amendments and
Reauthorization Act
SERC: State Emergency Response
' Commission
SDWA: Safe Drinking Water Act of 1986
SI: Surface Impoundment
SID Standard Industrial Classification
SPCC Spill Prevention, Control, and
Countermeasures
USCG: United States Coast Guard
4.0 References
CONCAWE. 1982. Methodologies for
Hazard Analysis and Risk Assessment in the
Petroleum Refining and Storage Industry.
Prepared by CONCAWE's Risk Assessment
Ad-hoc Group.
U.S. Department of Housing and Urban
Development. 1987. Siting of HUD-Assisted
Projects Near Hazardous Facilities:
Acceptable Separation Distances from
Explosive and Flammable Hazards. Prepared
by the Office of Environment and Energy.
Environmental Planning Division,
Department of Housing and Urban
Development. Washington, DC
U.S. DOT, FEMA and U.S. EPA. Handbook
of Chemical Hazard Analysis Procedures.
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34136
Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
U.S. DOT, FEMA and U.S. EPA. Technical
Guidance for Hazards Analysis: Emergency
Planning for Extremely Hazardous
Substances.
The National Response Team. 1987.
Hazardous Materials Emergency Planning
Guide. Washington, DC.
The National Response Team. 1990. Oil
Spill Contingency Planning, National Status:
A Report to the President. Washington, DC.
U.S. Government Printing Office.
Offshore Inspection and Enforcement
Division. 1988. Minerals Management
Service, Offshore Inspection Program:
National Potential Incident of
Noncompliance (PINC) List. Reston, VA.
Attachments to Appendix F
Attachment F-l—Response Plan Cover Sheet
This cover sheet will provide EPA with
basic information concerning the facility. It
must accompany a submitted facility
response plan. Explanations and detailed
instructions can be found in Appendix F.
Please type or write legibly in blue or black
ink. Public reporting burden for the
collection of this information is estimated to
vary from 1 hour to 270 hours per response
in the first year, with an average of 5 hours
per response. This estimate includes time for
reviewing instructions, searching existing
data sources, gathering the data needed, and
completing and reviewing the collection of
information. Send comments regarding the
burden estimate of this information,
including suggestions for reducing this
burden to: Chief, Information Policy Branch,
PM-223, U.S. Environmental Protection
Agency, 401 M St., SW., Washington, D.C.
20460; and to the Office of Information and
Regulatory Affairs, Office of Management and
Budget, Washington D.C. 20503.
General Information
Owner/Operator of Facility:
Facility Name:
Facility Address (street address or route):
City, State, and U.S. Zip Code:
degrees, minutes, seconds
Dun & Bradstreet Number:l
Largest Aboveground Oil Storage Tank
Capacity (Gallons):
Number of Aboveground Oil Storage Tanks:
Longitude (Degrees: West):
degrees, minutes, seconds
Standard Industrial Classification (SIC)
Code:1
Maximum Oil Storage Capacity (Gallons): —
Worst Case Oil Discharge Amount (Gallons):
Facility Distance to Navigable Water. Mark
the appropriate line.
0-V« mile V«-Vj mile V»-l mile
>1 mile
Applicability of Substantial Harm Criteria
Does the facility transfer oil over-water2 to
or from vessels and does the facility have a
total oil storage capacity greater than or equal
to 42,000 gallons?
Yes
No
Does the facility have a total oil storage
capacity greater than or equal to 1 million
gallons and, within any storage area, does the
facility lack secondary containment2 that is
sufficiently large to contain the capacity of
the largest aboveground oil storage tank plus
sufficient freeboard to allow for
precipitation?
Yes
No
Does the facility have a total oil storage
capacity greater than or equal to 1 million
gallons and is the facility located at a
Facility Phone No.:
Latitude (Degrees: North):
1 These numbers may be obtained from public
library resources.
2 Explanations of the above-referenced terms can
be found in Appendix C to this part. If a comparable
• formula to the ones contained in Attachment C-ffl
is used to establish the appropriate distance to fish
and wildlife and sensitive environments or public
drinking water intakes, documentation of the
reliability and analytical soundness of the formula
must be attached to this form.
distance 2 (as calculated using the
appropriate formula in Appendix C or a
comparable formula) such that a discharge
from the facility could cause injury to fish
and wildlife and sensitive environments?3
Yes
No
Does the facility have a total oil storage ca-
pacity greater than or equal to 1 million gal-
lons and is the facility located at a distance 2
(as calculated using the appropriate formula
in Appendix C or a comparable formula)
such that a discharge from the facility would
shut down a public drinking water intake? 2
Yes
No
Does the facility have a total oil storage
capacity greater than or equal to 1 million
gallons and has the facility experienced a
reportable oil spill2 in an amount greater
than or equal to 10,000 gallons within the
last 5 years?
Yes
No
Certification
I certify under penalty of law that I have
personally examined and am familiar with
the information submitted in this document,
and that based on my inquiry of those
individuals responsible for obtaining
information, I believe that the submitted
information is true, accurate, and complete.
Signature:
Name (Please type or print):
Title:
Date:
[FR Doc. 94-15404 Filed &-30-94; 8:45 am]
BILLING CODE AMO-M-P
1 For further description of fish and wildlife and
sensitive environments, see Appendices I, n, and ffl
to DOC/NOAA's "Guidance for Facility and Vessel
Response Plans: Fish and Wildlife and Sensitive
Environments" (see Appendix E to this part, section
10, for availability) and the applicable ACP.
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CORRECTIONS TO THE JULY 1, 1994 FEDERAL REGISTER PUBLICATION OF THE FACILITY
RESPONSE PLAN FINAL RULE FOR ONSHORE, NON-TRANSPORTATION-RELATED FACILITIES
The following are corrections to minor technical errors in the final rule that may prove to be misleading and are in
need of clarification. Please ensure that this errata sheet accompanies all copies of the July 1, 1994 Federal Register
Notice that are distributed.
Federal
Register
Page
34097
34102
34105
34105
34106
34106
34107
34110
34111
34111
34111
34112
34112
34112
34114
34115
34115
34124
34135
34136
Column
3
3
1
1
1
3
1
3
1
2
3
1
3
3
3
1
1
1
2,3
1
Appendix
na
C
C
C
C
C
C
D
D
D
D
D
D
D
D
D
D
F
F
F
Section
§ 112.2
1.1
Attachment C-ll
Attachment C-ll
Table 1
2.3
2.6
A.2.3
B.2.3
2.2.3
3.1
1.2.8
3.3.2
4.3
7.3
7.3.1
7.4
1.1
2.1, 2.2, 2.3
Attachment F-1
Description of Change
Add 'means' after the term 'Contract or other approved
means.'
1.1.2 Italicize "Port Areas."
1.1.3 Italicize "Inland Area.'
1.1.4 Italicize "Rivers and Canals.'
"Facility Addresses' should be "Facility Address."
In footnote 1, add a comma after the word "used."
Add leading zeros to all entries; add line before "Major
Streams.'
In slope formula, term should be "A - B" (minus sign rather
than a long dash).
Term should be "727 ft - 710 ft" (minus sign rather than a
long dash).
Change "A2(b)" to "A.2.2"
Change "B2(b)" to "B.2.2"
Change long dashes after "30 days" and "45 days" to
minus signs.
Change long dash after "30 days" to a minus sign.
Replace text with 'Other definitions are included in § 112.2
and section 1.1 of Appendix C.'
Change 'is available" to "are available.'
Change "section 1.2' to 'section 1.1.'
Change "Groups 1' to 'Group 1.'
Do not italicize 'i.e.'
Delete for a facility' in fourth line of section.
Change 'complete" in item 2 to 'partial". Change
"complete" in item 3 to "partial".
Remove the terms "Page One", "Page Two", and "Page 3"
from section headings.
Remove "Q" from beginning of line under "Facility Address."
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SECTION 7
* FRP COURSE SLIDES
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Notes
Facility Response Plans
40CFR 120.20
Facility Response Plans
Facility Response Plans
Authority comes from Section 4202 of OPA.
Requires facilities that have the POTENTIAL
to cause SUBSTANTIAL HARM to the
environment to prepare and implement a
plan for responding to a WORST CASE
discharge.
Facility Response Plans
Certification of Substantial Harm
Determination Form
(Attachment C-ll on p. 34105 of Final Rule)
See hard copy in manual
-------
fadO^l^trtoSCitB&omas
I Non-Substantial Harm (Non-Sub)
Substantial Hai
|
No Plan Necessary
_ /c. lm Significant and Substantial !
"" (SUB) Harm (SIG & SUB) '
i
I
| I
» •
Reviewed by EPA Reviewed and
^ approved by EPA
Notes
Non Sub Harm Facilities
Facility Response Plans
Non sub harm facilities (i.e. SPCC Regulated
only) MUST fill out Attachment C-ll (p. 34105
of the Final Rule) and maintain with the SPCC
Plan (see hard copy in manual).
SUB Harm Determination
Facility Response Plans
Substantial Harm facilities are determined
by:
- Self-selection process
- Regional Administrator determination
The Regional Administrator has the authority
to designate a facility as SUB harm
regardless of the results of the self-
selection process.
-------
Facility Response Plans
Flowchart of Criteria for Substantial Harm
(Attachment C-l on p. 34104 of Final Rule)
See hard copy in manual
Notes
Facility Response Plan
• Screen 1:
- The facility transfers oil over water and has a
total storage capacity of greater than or equal
to 42,000 gallons.
• Screen 2:
- The facility meets any 2 of the 4 substantial
harm criteria for facilities with a total oil
storage capacity greater than or equa! to
1,000,000 gallons.
Facility Response Plans
Screen 3
• An evaluation of the following:
i
• Lack of secondary containment
i • Proximity to navigable waters
M»H
• Proximity to fish & wildlife
• Type of transfer operation
* Total oil capacity
• Proximity to dnnking water
• Proximity to other areas of
• Spill history
• Tank age
and sensitive environments ,
intakes
environmental concern
i
* Other site-specific characteristics
as determined by the Regional Administrator
-------
Notes
Important Definitions
Facility Response Plans
Complex
Contract or other approved means
Maximum extent practicable
Permanently manifolded tanks
Worst case discharge
Adverse weather conditions
Example of a Complex Facility
OPSi .
USCGi
PUMP I)
HOUSE!;
PIER
_ TANKER I
-MMS
X = Valves
Other FRP Facts
Facility Response Plans
Facilities with existing response plans, generally
do not need to prepare a separate plan provided
that the existing plan:
- Satisfies the appropriate requirements
and is equally as stringent;
- Includes all elements in the model plan;
- Is cross referenced appropriately; and
- Contains an action plan for use during
a discharge.
-------
Notes
Facility Response Plans
Appendix F to Part 112
Facility-Specific Response Plan
(p. 34122 of Final Rule)
See hard copy in manual
Elements of a Model Plan
Facility Response Plans
• Emergency response action plan
• Facility-specific information
• Emergency response information
• Hazard evaluation
• Discharge scenarios
• Worst case discharge scenario
• Discharge detection systems
Facility Response Plans
Elements of a Model Plan (cont.)
• Plan implementation
• Self-inspection, training, & meeting logs
• Facility diagrams
• Security systems
• Response plan cover sheet
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Critical Elements of a Plan
Facility Response Plans
• Is consistent with the NCR RCP, and ACP.
• Lists qualified individual with necessary authority.
• Identifies available resources.
• Provides for training, testing, drills and response actions.
• Updated when necessary.
• Resubmitted for approval when significant changes
are made.
• Plans to be reviewed periodically on a schedule not to
exceed 5 years.
Deadlines
Facility Response Plans
Notes
2/18/93 - Facility Response Plans due.
8/18/93 - 2 year operating extensions required
for facilities with proper certifications.
2718/95 - Final approval required for all SIG &
SUB facilities.
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SECTION 8
40 C.F.R. PART 112.20
* CERTIFICATION OF SUB HARM FORM
* SUB HARM FLOW CHART
* APPENDIX "F"
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ATTACHMENT C-II -- CERTIFICATION OF SUBSTANTIAL HARM DETERMINATION FORM
FACILITY NAME:
FACILITY ADDRESS:
1. Does the facility transfer oil over water to or from vessels and does the facility have a total oil storage
capacity greater than or equal to 42,000 gallons?
YES NO
2. Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and does the
facility lack secondary containment that is sufficiently large to contain the capacity of the largest
aboveground oil storage tank plus sufficient freeboard to allow for precipitation within any aboveground
storage tank area?
YES NO
Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and is the
facility located at a distance (as calculated using the appropriate formula in Attachment C-III to this
appendix or a comparable formula1) such that a discharge from the facility could cause injury to fish
and wildlife and sensitive environments? For further description of fish and wildlife and sensitive
environments, see Appendices I, II, and III to DOC/NOAA's "Guidance for Facility and Vessel
Response Plans: Fish and Wildlife and Sensitive Environments" (see Appendix E to this part, section
10, or availability) and the applicable Area Contingency Plan.
YES NO
4. Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and is the
facility located at a distance (as calculated using the appropriate formula in Attachment C-III to this
appendix or a comparable formula1) such that a discharge from the facility would shut down a public
drinking water intake2.
YES NO
5. Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and has the
facility experienced a reportable oil spill in an amount greater than or equal to 10,000 gallons within
the last 5 years'?
YES NO
CERTIFICATION
I certify under penalty of law that I have personally examined and am familiar with the information submitted in
this document, and that based on my inquiry of those individuals responsible for obtaining this information, I
believe that the submitted information is true, accurate, and complete.
Signature Title
Name (please type or print) Date
1 If a comparable formula is used documentation of the reliability and analytical soundness of the comparable
formula must be attached to this form.
2 For the purposes of 40 CFR part 112, public drinking water intakes are analogous to public water systems as
described at 40 CFR 143.2(c).
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Attachment C-l
Flowchart of Criteria for Substantial Harm
Does the facility transfer oil
over water to or from vessels
and does the facility have a
total oil storage capacity
greater than or equal to
42,000 gallons?
Yes
No
Does the facility have a total
oil storage capacity greater
than or equal to 1 million
gallons?
Yes
No
Submit Response Plan
Within any aboveground storage tank area, does
the facility lack secondary containment that is
sufficiently large to contain the capacity of the
largest aboveground oil storage tank plus
sufficient freeboard to allow for precipitation?
Yes
No
Is the facility located at a distance such that a
discharge from the facility could cause injury to
fish and wildlife and sensitive environments 2 7
Yes
i
No
Is the facility located at a distance such that a
discharge from the facility would shut down a
public drinking water intake ?
Yes
No
Has the facility experienced a reportable oil spill in
an amount greater than or equal to 10.000
gallons within the last 5 years?
No Submittal of
Response Plan
Except at RA Discretion
No
Yes
1 Calculated using the appropriate formula in
Attachment C-ll to this appendix or a
comparable formula.
2 For further description of flsh and wildlife
and sensitive environments, see Appendices
I, II, and III to DOC/NOAA's -Guidance for
Facility and Vessel Response Plan*: Fish
and Wildlife and Sensitive Environments: (59
FR 14713. March 29, 1994) and the
applicable Area Contingency Plan.
3 Public drinking water intakes are analogous
to public water systems as described at 40
CFH 143.2(c).
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APPENDIX F
Appendix F to Part 112 — Facility-Specific Response Plan
Table of Contents
1.0 Model Facility-Specific Response Plan
1.1 Emergency Response Action Plan
1.2 Facility Information
1.3 Emergency Response Information
1.3.1 Notification
1.3.2 Response Equipment List
1.3.3 Response Equipment Testing/Deployment
1.3.4 Personnel
1.3.5 Evacuation Plans
1.3.6 Qualified Individual's Duties
1.4 Hazard Evaluation
1.4.1 Hazard Identification
1.4.2 Vulnerability Analysis
1.4.3 Analysis of the Potential for an Oil Spill
1.4.4 Facility Reportable Oil Spill History
1.5 Discharge Scenarios
1.5.1 Small and Medium Discharges
1.5.2 Worst Case Discharge
1.6 Discharge Detection Systems
1.6.1 Discharge Detection By Personnel
1.6.2 Automated Discharge Detection
1.7 Plan Implementation
1.7.1 Response Resources for Small, Medium, and Worst Case Spills
1.7.2 Disposal Plans
1.7.3 Containment and Drainage Planning
1.8 Self-Inspection, Drills/Exercises, and Response Training
1.8.1 Facility Self-Inspection
1.8.1.1 Tank Inspection
1.8.1.2 Response Equipment Inspection
1.8.1.3 Secondary Containment Inspection
1.8.2 Facility Drills/Exercises
1.8.2.1 Qualified Individual Notification Drill Logs
1.8.2.2 Spill Management Team Tabletop Exercise Logs
1.8.3 Response Training
1.8.3.1 Personnel Response Training Logs
1.8.3.2 Discharge Prevention Meeting Logs
1.9 Diagrams
1.10 Security
2.0 Response Plan Cover Sheet
3.0 Acronyms
4.0 References
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