\ O S7 q).
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON, D C 20460
‘ I
PRO OCT — 7 1998
OFFICE OF
MEMORANDUM ENFORCEMENT AND
COMPLIANCE ASSURANCE
SUBJECT. Oil Enforcement and Compliance
FROM Barry Breen, Director
Office of Site Remediation
Eric Schaeffer, Director’ 7—’—-
Office of Regulatory Enforcement
Elaine Stanley, Director(’1 1
Office of Compliance -
TO: Addressees (See Below)
We are pleased to announce the publication of the Oil Enforcement and Compliance
Compendium (“the Compendium”). The Compendium is a comprehensive compilation of
documents related to the oil enforcement and compliance program under the Oil Pollution Act
and Clean Water Act section 311. The Compendium collects in one place over 70 key statutory,
regulatory, policy/guidance, legal, and other documents (plus a number of delegations of
authority) related to all aspects (regulatory enforcement, site remediation enforcement, and
compliance assurance) of this important program We believe that the Compendium will serve
as a valuable reference tool for regional and headquarters personnel who are responsible for oil
enforcement and compliance activities
A copy of the Compendium’s table of contents is enclosed for your information Copies
of the Compendium itself are being sent under separate cover to the primary OPA enforcement
contacts in regional and headquarters offices (see enclosed list). A limited number of additional
copies of the Compendium are available on a first-come, first-served basis, and can be requested
from the OECA contact person listed below.
Publication of this “paper” Compendium is the first step in OECA’s efforts to make these
important documents widely available within the Agency. The Office of Site Remediation
Enforcement (OSRE) is currently working to place all of the documents in the Compendium on
the Agency’s Intranet system, where they will be accessible to all interested EPA personnel We
expect this “electronic” Compendium to include links to other electronic sites of interest to the
oil program. We also plan to update this version of the Compendium periodically to include new
documents and revisions of existing documents. Please let us know of any documents that you
believe should be included in updates of the electronic versionof the Compendium.
Inlemet Address (URL) • http llwww epa gov
Recycled/Recyclable • Pnnled wflh Vegelablo Oil Based Inks on Rocycled Paper (Minimum 20% Postconsumer)
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If you have any questions about either version of the Compendium (or would like to
request a copy of the paper version), please contact Bob Kenney of OECA/OSRE at (202) 564-
5 127. Documents that you believe should be included in the electronic version of the
Compendium should be sent electronically, if at all possible, to Bob via e-mail (KENNEY-
ROBERT). If only paper copies are available, they can be sent to him by mail (U.S EPA
(2273A), 401 M Street, S.\V., Washington, DC 20460).
Enclosures
Addressees
Regional Counsel, Regions I-X
Office of Environmental Stewardship Director, Region I
Office of Site Remediation & Restoration Director, Region I
Emergency & Remedial Response Division Director, Region II
I-lazardous Site Cleanup Division Director, Region III
Waste Management Division Director, Region IV
Superfund Division Director, Region V
Superfund Division Director, Region VI
Water, Wetlands & Pesticides Division Director, Region VII
Superfund Division Director, Region VII
Office of Enforcement, Compliance & Environmental Justice Director, Region VIII
Office of Ecosystems Protection & Remediation Director, Region VIII
Superfund Division Director, Region IX
Office of Environmental Cleanup Director, Region X
Lisa Friedman, Office of General Counsel
David Lopez, OSWER/OERR
Joel Gross, Department of Justice
Capt. Derek Capizzi, Coast Guard
OPA Enforcement Contacts
cc: Linda Boornazian, OECA/OSRE
Sandra Connors, OECAIOSRE
Brian Maas, OECAIORE
John Rasnic, OECA/OC
Lori Boughton, OECAIOSRE
Bruce Kulpan, OECAJOSRE
Steven Baer, Department of Justice
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Primary OPA Enforcement Contacts
Region 1: Donald Grant and Toni Bandrowicz
Region 2: Doug Kodama and Timothy Murphy
Region 3: Karen Melvin and Daniel Isales
Region 4: Matthew Monsees and Maria Cottrell
Region 5: Beverly Kush and Jeff Cox
Region 6 Roger Hartung and Michael Barra
Region 7: Bob Webber and LaSandra Pearl
Region 8: Jane Nakad and Elyana SutinlJim Eppers
Region 9: Michelle Rogow and Laurie Williams
Region 10. Chris Field, Keith Cohon, and Matt Carr (Alaska Office)
OECA Office of Compliance Dan Chadwick
OECA Office of Regulatory Enforcement David Drelich
OECA Office of Site Remediation Enforcement: Bob Kenney
Office of General Counsel. Andy Gordon
OSWER Oil Program Center: Dana Stalcup
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September21, 1998
Oil Enforcement & Compliance Compendium--
Table of Contents
A. Statutes
(I) Oil Pollution Act of 1990 (“OPA”)’
(2) Section 311, Clean Water Act (“CWA”) [ Clean Version and Version Showing
Amendments Made by OPA} 2
(3) Section 308, CWA [ Information-Gathering Authorities]
(4) Section 309(c), CWA [ Criminal Penalties]
(5) Section 101(14), Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (“CERCLA” or “Superfund”) [ CERCLA Definition of
“Hazardous Substance,” Including Petroleum Exclusion]
(6) Edible Oil Regulatory Reform Act [ with Comprehensive Legislative History]
(7) Coast Guard Authorization Act of 1996 [ Relevant Portions, with Selected
Legislative History]
(8) Accountable Pipeline Safety and Partnership Act of 1996 [ with Selected
Legislative History]
‘The legislative history of OPA is reproduced in the “Oil Pollution Deskbook”
(Environmental Law Institute 1991). Copies of the “Deskbook” can be purchased from:
Customer Service, Environmental Law Institute, 1616 P Street, N.W., Suite 200, Washington,
D.C 20036 (Telephone: (800) 433-5120 or (202) 939-3844).
2 The legislative history of the Clean Water Act is contained in three sets of documents:
(1) 1972 Law: “A Legislative History of the Water Pollution Control Act Amendments of
1972,” Congressional Research Service, Library of Congress, January 1973, Serial No. 93-1,
Committee Print (Two Volumes, Vols. 1 & 2);
(2) 1977 Law: “A Legislative History of the Clean Water Act of 1977, a Continuation of
the Legislative History of the Federal Water Pollution Control Act,” Congressional Research
Service, Library of Congress, October 1978, Serial No, 95-14, Committee Print (Two Volumes,
Vols. 3 & 4); and
(3) 1987 Law: “A Legislative History of the Water Quality Act of 1987,” Congressional
Research Service, Library of Congress, November 1988, Committee Print (Four Volumes, Vols.
1-4).
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B. Executive Orders
(1) Executive Order 12777, 56 FR 54757 (10/22/91) [ Implementation of 311 of the
CWA, as Amended, and OPAl
(2) Executive Order 12580, 52 FR 2923 (1/29187) [ Superfund Implementation,
Including National Contingency Plan; Partially Amended by E.O. 12777]
C. Final Regulations (As Published in 7/1/97 CFR, Except as Noted)
(1) National Oil and Hazardous Substances Pollution Contingency Plan, 40 CFR Part
300 [ Table of Contents Only]
(2) Criteria for State, Local and Regional Oil Removal Contingency Plans, 40 CFR
Part 109
(3) Discharge of Oil, 40 CFR Part 110
(4) Oil Pollution Prevention, 40 CFR Part 112
(5) Liability Limits for Small Onshore Storage Facilities, 40 CFR Part 113
(6) Designation of Hazardous Substances, 40 CFR Part 116
(7) Determination of Reportable Quantities for Hazardous Substances, 40 CFR Part
117
(8) Adjustment of Civil Monetary Penalties for Inflation, 40 CFR Part 19
(9) Consolidated Rules of Practice Governing Administrative Assessment of Civil
Penalties, 40 CFR Part 22 [ CWA Class H Penalties] 4
40 CFR Part 113 was promulgated in 1973 under the authority of CWA § 311 (f)(2).
OPA § 2002(a) provides that CWA § 311(f) shall not apply with respect to any incident for
which liability is established under OPA § 1002. OPA § 1004 establishes liability limits for
incidents governed by OPA § 1002. OPA § 1020 provides that “ [ t]lus Act shall apply to an
incident occurring after the date of the enactment of this Act”
4 The August 1998 Civil Penalty Policy for Section 311 (b)(3) and Section 311(j) of the
Clean Water Act (Document H(l 1), below) states (at page 4), “During their pendency, the
proposed changes to 40 CFR Part 22 are to be used as procedural guidance for the administrative
assessment of penalties under Section 311 (g)(6) of the Clean Water Act” The proposed changes
to 40 CFR Part 22 referred to in this policy are set forth in Document D(15), below.
2
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(10) Coast Guard Regulations’
(a) Oil Spill Liability Trust Fund: State Access, 33 CFR Part ‘133 [ 7/1)96
CFR 5 ]
(b) Oil Spill Liability Trust Fund: Claims Procedures; Designation of Source,
and Advertisement, 33 CFR Part 136
(c) Financial Responsibility for Water Pollution (Vessels). 40 CFR Part 138
0. Federal Register Rulemaking Notices INote: All are EPA Noticesi
(1) Notice of Final Rulemaking (NFRM) Oil Pollution Prevention; Non-
Transportation Related OnshoTe and Offshore Facilities, 38 FR 34163 (12/11/73)
[ Promulgation of 40 CFR Part 112 Regulations, Including Appendix A]
(2) NFRM: Water Programs; Discharge of Oil, 52 FR 10711 (4/2/87) [ Revision of 40
CFR Part 110 Regulations]
(3) Notice of Proposed Rulemaking (NPRM): Administrative Assessment of
Penalties Where Hearing on Record L 1 ncler APA § 554 Is Not Required, 56 FR
29996 (7/1/91) [ Proposal of 40 CFR Part 28 Regulations] 6
(4) NPRM: Oil Pollution Prevention; Non-transportation-related Onshore and
Offshore Facilities, 56 FR 54612 (10 122(9 %) [ Proposed Revisions to 40 CFR Part
112 Regulations]
(5) NPRM: Oil Pollution Prevention; Non-Transportation-Related Onshore Facilities,
58 FR 8824 (2/17/93) [ Proposed Revisions to 40 CFR Part 112 Regulations,
Including Addition of’ 112.20 (Facility Response Plans) and Appendices C
Through G}
(6) NPRM Corrections: Oil Pollution Prevenlion; Non-Transportation-Related
533 CFR Part 133 has not been revised, as of June 30, 1997
6 Subsequent guidance called for the use of these proposed regulations in Clean Water Act
§ 3 I I (b)(6) Class I administrative penalty actions. However, the August 1998 Civil Penalty
Policy for Section 31 l(b)(3) and Section 31 1(j) of the Clean Water Act (Document 1 -1(1 1),
below) states (at page 4), “During their pendency, the proposed changes to 40 CFR Part 22 are to
be used as procedural guidance for the administrative assessment of penalties under Sectkon
31 1(g)(6) of the Clean Water Act” The proposed changes to 40 CFR Part 22 referred to in this
policy are set forth in Document D(1 5), below.
3
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Onshore Facilities, 58 FR 19030 (4/9/93) [ Corrections to 2/17/93 NPRM
(Document D(5), above)]
(7) NPRM: National Oil and Hazardous Substances Pollution Contingency Plan, 58
FR 54702 (10/22/93) [ Proposed Revisions to 40 CFR Part 300 Regulations in
Response to OPA]
(8) NFRM: Oil Pollution Prevention; Non-Transportation-Related Onshore Facilities,
59 FR 34069 (7/1194) [ Promulgation of 40 CFR § 112.20 (Facility Response
Plans) and 112.21 (Facility Response Training and Drills/Exercises) and Part 112
Appendices B Through F]
(9) NFRM: National Oil and Hazardous Substances Pollution Contingency Plan, 59
FR 47383 (9115/94) [ Revision of 40 CFR Part 300 Regulations in Response to
OPA] [ Attached is Draft “Index of Key N.C.P. Terms for Oil Spill Response”]
(10) NFRM Corrections: Oil Pollution Prevention; Non-Transportation-Related
Onshore Facilities, 59 FR 49005 (9/26/94) [ Technical Corrections to 7/1/94
NFRM (Document D(8), above)]
(11) NFRM: Oil Discharge Program; Editorial Revision of Rules, 61 FR 7419
(2/28/96) [ Editorial Revision of 40 CFR Part 110 Regulations]
(12) NFRM: Civil Monetary Penalty Inflation Adjustment Rule, 61 FR 69359
(12/31/96) [ Promulgation of 40 CFR Part 19 Regulations]
(13) NFRM Corrections: Civil Monetary Penalty Inflation Adjustment Rule, 62 FR
13514 (3/20197) [ Corrections to 12/3 1/96 NFRM (Document D(12), above)]
(14) NPRM: Oil Pollution Prevention and Response; Non-Transportation Related
Onshore and Offshore Facilities, 62 FR 63811(12/2/97) [ Proposed Revisions to
40 CFR Part 112 Regulations]
(15) NPRM: Consolidated Rules of Practice Governing the Administrative Assessment
of Civil Penalties, Issuance of Compliance or Corrective Action Orders, and the
Revocation, Termination or Suspension of Permits, 63 FR 9464 (2/25/98)
[ Proposed Revisions to 40 CFR Part 22 Regulations]
E. Other Federal Register Notices (Non-Rulemaking)
(1) Designation of Areas and Area Committees Under the Oil Pollution Act of 1990,
57 FR 15197 (4/24/92) [ EPA and Coast Guard Notices]
4
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(2) Guidance for Facility and Vessel Response Plans Fish and Wildlife and Sensitive
Environments, 59 FR 14714 (3/29/94) [ National Oceanic and Atmospheric
Administration Notice]
(3) The National Response Team’s Integrated Contingency Plan Guidance, 61 FR
28642 (6/5/96)
(4) Denial of Petition Requesting Amendment of the Facility Response Plan Rule, 62
FR 54507 (10/20/97) [ Petition re Regulatory Treatment of Animal Fats &
Vegetable Oils]
F. Memoranda of Understanding (MOU) and Other Inter-Agency Agreements
(1) MOU Between EPA and the Department of Transportation (DOT) re Definition of
Transportation and Non-Transportation Related Onshore and Offshore Facilities
and Responsibilities of EPA and the Coast Guard with Respect to Prevention of
Oil Discharges, 36 FR 24080 (12/18/71) [ Published as Appendix A to 40 CFR
Part 112]
(2) MOU Between EPA and the Coast Guard Concerning the Assessment of Civil
Penalties for Discharges of Oil and Designated Hazardous Substances, 44 FR
50785 (8/29/79) [ Applies to Pre-OPA (8/18/90) Violations of CWA § 311]
(3) Instrument of Redelegation (5/27/88) [ Redelegation of Certain Authorities Under
E.O. 12580 from DOT to EPA]
(4) MOU Between EPA and the Coast Guard Concerning the Enforcement of § 311
of the Clean Water Act, as Amended by the Oil Pollution Act of 1990, 58 FR
19420 (4/14/93) [ With Guidance Memorandum, “New EPA/Coast Guard Oil
Pollution Act Enforcement MOU” (4/5/93), from S. Fulton (OE) to Deputy
Regional Administrators and Regional Counsels] [ Applies to Post-OPA (8/18/90)
Violations of CWA § 311]
(5) MOU Among EPA, DOT, and the Department of the Interior Establishing
Jurisdictional Responsibilities for Offshore Facilities, 59 FR 9494 (2/28/94)
[ Published as Appendix B to 40 CFR Part 112]
(6) MOU Between EPA and the Coast Guard for Use of the Oil Spill Liability Trust
Fund (12/9/96)
G. Headquarters Delegations of Authority Manual
(1) CWA 2-13: Inspections & Information Gathering
5
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(2) CWA 2-I 4-A: Civil Judicial Enforcement & Administrative Penalty Collection
Actions
(3) CWA 2-14-B: Criminal Enforcement Actions
(4) CWA 2-14-C: Settlement or Concurrence in Settlement of Civil Judicial
Enforcement Actions
(5) CWA 2-1 4-D: Emergency TROs
(6) CWA 2-14 -E: Authority to Arrest for CWA § 311 Violation
(7) CWA 2-15-A: Determination of Imminent and Substantial Endangerment
(8) CWA 2-1 5-B: Administrative Determinations Regarding the Obtaining of
Penalties for Spills
(9) CWA 2-28: Product Placement on N.C.P Schedule
(10) CWA 2-29: Spill Prevention Control and Countermeasure Plan
(11) CWA 2-51: Class I Administrative Penalty Actions
(12) CWA 2-52-A: Class 11 Administrative Penalty. Initiation of Action, Public
Notice, Consultation with State; Negotiation and Signing Consent Agreements;
and Assessing Penalties
(13) CWA 2-52-B: Class II Administrative Penalty: Agency Representation in the
Hearings; Initiating Internal Appeals of Adverse Determinations, and
Representing Agency in Appeals
(14) CWA 2-85: Administrative Orders Under § 311(e) of the Clean Water Act
(15) CWA 2-86: Facility Response Plans
(16) CWA 2-87: Equipment Inspections
(17) CWA 2-88: Tests of Facility Removal Capability
(18) CWA 2-89: Removal of Discharge or Threat of Discharge
(19) CWA 2-90: Receipt of Designations for Natural Resource Trustees
6
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(20) CWA 2-91: Area Committee Designation and Preparation and Review of Area
Contingency Plans
H. Policy/Guidance and Model Documents
(1) Letter re Treatment of Animal Fats and Oils as “Oil” Under FWPCA § 311
(8119/75), from K. Biglane (OWHM) to W. Prokop (National Renderers
Association)
(2) Applicability of EPA’s Oil Pollution Prevention Regulation, 40 CFR Part 112, to
Oil Filled Electrical Transformers (6/7/7 8), from H.D. Van Cleave (OWHM) to
E.W. Cooper (Region 6)
(3) Jurisdiction Over Intermittent Streams Under § 311 of the Clean Water Act
(3/4/Si), from E. Kurent (OE) to U Jacobs (Region 7)
(4) New Administrative Penalty Procedures (12/2/91), from F. Stiehl (OF) and B.
Diamond (OSWER) to Regional Administrators [ Note: Memo has 6 attachments,
all of which are missing from this copy of the document-4tem H(5), below, may
be Attachment (5) to this memo]
(5) Final Guidance Regarding Headquarters-Regional Coordination of Initial
Administrative Penalty Enforcement Actions Under the Oil Pollutton Act of 1990
(Undated) [ Note: Document does not have cover/transmittal memo, but may be
one of the attachments to Document H(4), above I
(6) Interim Guidance on Cost Recovery Actions Under the Oil Pollution Act
(12/23/91), from B. Diamond (OSWER) and F. Stiehi (OF) to Regional Waste
Management Division Directors and Regional Counsels
(7) Use of Alternative Secondary Containment Measures at Facilities Regulated
Under the Oil Pollution Prevention Regulation--40 CFR Part 112 (4/29/92), from
D. Clay (OSWER) to Regional Division Directors
(8) Interim Guidance for the Determination of Significant and Substantial Harm
Facilities for Oil Pol]ution Act Response Plans (6/15/93), from H Longest II
(OSWER) to Regional Division Directors
(9) Enforcement Authorities and Elements of Violations/Evidentiary Requirements
under the Clean Water Act § 311 as amended by the Oil Pollution Act of 1990
(11/18/93), from L. Boornazian (OSWER) to Addressees
(10) Final Guidance on the Issuance of Administrative Orders Under § 3 11(c) arid (e)
7
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of the Clean Water Act (7/1/97), from B. Breen (OECA) to Addressees
(11) Penalty Policy for Sections 311(b) and (j) of the Clean Water Act (8/21/98), from
S. Herman (OECA) to Addressees, with Attached Civil Penalty Policy for Section
31 1(b)(3) and Section 311(j) of the Clean Water Act (8/98)
(12) Model Section 311(c) and (e) Administrative Orders [ Reserved for Final Version]
I. Legal Memoranda
(1) Section 311 Jurisdiction Over Local, State, and Federal Entities (5/8/7 5), from
J B. Malloy (OE) to Regional Enforcement Directors [ with Enclosed
Memorandum on Same Subject (4/25/75) from R. McDevitt (O.G.C.) to J.B.
Malloy (OE)]
(2) Legislative and Regulatory History of 40 CFR 110 8 (2/3/94), from C. Chappell,
G. Yoshioka and A. Coyle (ICF) to G. Thomas and H. Watters (OSWER)
[ Confidential: Do Not Releasej
(3) Meaning of “Adjoining Shorelines” in Section 311(9/18/95), from D. Drelich
(OECA) to B. Maas (OECA) [ Attorney Work Product & FOIA-Exempt: DV
Not Releasej
(4) Legal Memorandum on CWA Section 311 (e)( 1) and (e)(2) (5114/97), from C.
Zeman (OECA) to R. Kenney (OECA) [ Attorney Work Product & FOIA-
Exempt: Do Not Releasej
(5) When Subsurface Oil Seeps Into Navigable Waters: Legal Issues, Regulatory
Options (5/30/97), by D. Drelich (OECA) [ With Summary of David Drelich’s
Paper (8/12/97), from E. Milhollin (OECA) to R. Kenney (OECA)] [ Attorney
Work Product & FOIA-Exempt: Do Not Release]
(6) Part 112 Research Question (9/24/97), from L. Phan (Region 1) to T. Bandrowicz
(Region 1) [ Re When Oil Facilities, Due to Their Location, “Could Reasonably
Be Expected to Discharge Oil”] [ Confidential: Do Not Release]
(7) Section 311 Jurisdiction Over Local, State, and Federal Entit es Agency
Guidance and Case Law (11/6/97), from L. Phan (Region 1) to T. Bandrowicz
(Region 1) [ Confidential: Do Not Releasel
7 This provision was renumbered as 40 CFR § 110.4 in a 2/28/96 notice of final
rulemaking. See Document D(1 1), above.
8
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(8) Historic Discharges Under Clean Water Act Section 311 (Undated Draft), from L.
Friedman (O.G.C.) to B. Breen (OECA) [ Draft, Attorney-Client Privileged,
Attorney Work Product, FOIA-Exempt: Do Not Release)
J. Coast Guard Documents
(1) The National Pollution Funds Center [ Brochure]
(2) National Pollution Funds Center (NPFC) Points of Contact
(3) NPFC Technical Operating Procedures (TOPs) [ List of TOPs Available on Coast
Guard Web Page]
(4) NPFC News Release Coast Guard Announces COFR (Certificates of Financial
Responsibility) Information Now Available on the World Wide Web (6/1198)
(5) Marine Safety Manual [ Tables of Contents, Enforcement Portions & Index]
(6) Ticketing as a Simplified Process for Civil Penalty Violation Cases [ Undated
DOT/Coast Guard “Transportation Transformation” Fact Sheet]
K. Compliance Documents
(I) Outreach Guides for the Federal Oil Pollution Prevention Regulations (2/98)
[ Table of Contents Only] 8
L. Miscellaneous Documents
(1) Clarification of Oil Pollution Act Responsibilities Among ORE, OSRE, and OC
in the New Enforcement Organization (5/3194), from S Fulton (OECA) to R. Van
Heuvelen, B. Diamond & E. Stanley (OECA)
(2) Oil Enforcement Contacts [ Current List]
(3) The Oil Pollution Act of 1990: Its Provisions, Intent and Effects (1991), by R
Randle [ Copyrighted article from the Oil Pollution Deskbook, published by
Environmental Law Institute]
(4) Federal implementation of the Oil Pollution Act of 1990 (10191), by C
Openchowski (Office of General Counsel) [ Copyrighted Environmental Law
8 For a copy of these documents, contact Dan Chadwick of the OECA Office of
Compliance (202-564-7054)
9
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Reporter article (21 ELR 10605)]
(5) OPA Q’s & A’s and Updates [ Fact Sheets and Bulletins Issued by
OSWERJOERR from 1991 through 1993]
(6) Understanding Oil Spills and Oil Spill Responses (10/93) [ OSWER/OERR
Publication No. 9200.5-105]
(7) Overview: Oil Pollution Act of 1990 (OPA) and Clean Water Act § 311(3/20/96),
by B. Kenney (OS RE)
(8) OSWER’OERR Oil Spill Program Home Page [ http://www.epa.gov/oilspill/]
(9) SPCC Facilities Survey Introduction and Table of Contents; Nutshell Summary
of EPA’s National Survey of Oil Storage Facilities; and Survey Questionnaire
M. Significant Case Law (Judicial and Administrative)
[ Reserved for Summary of OPA & CWA § 311 Case Law]
10
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A
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llu th oL ?7r llO7 L S
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PUBLIC LAW 101-380—AUG l . 1 )
OIL POLLUTION ACT OF 1990
f1(i
I2L 2) 2605425
39- 39 0-90380’
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An Act
To establish hmitationa on liability for damages resulting from oil pollution, to
establish a fund for the payment of compenoation for such damages, and for other
purposes
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembkd
SECTION 1. SHORT TITLE.
This Act may be cited as the “Oil Pollution Act of 1990”.
SEC. 2 TABLE OF CONTENTS.
The contents of this Act are as follows:
TITLE 1—OIL POLLUTION LIABILITY AND COMPENSATION
Sec tool Definitions
Sec 1002 Elements of liability
Sec 1003 Defenses to liability
Sec 1(104 Limits on liabi iity
Sec 1005 Interest
Sec 1006 Natural resources
Sec 1001 Recovery by foreign claimants
Sec 1008 Recovery by responsible party
Sec 1009 Contribution
Sec 1010 Indemnification agreements
Sec 1011 Consultation on removal act pns
Sec 1012 Uses of the Fund
Sec 1013 Claims procedure
Sec 1014 Designation of source and advertisement
Sec 1015 Subrogation
Sec 1016 Financial responsibility
Sec 1017 Litigation, jurisdiction, and venue
Sec 1018 Relationship to other law
Sec 1019 State financial responsibility
Sec 1020 Application.
TITLE 1I—CONFORMING AMENDMENTS
Sec 2001 Intervention on the High Seas Act
Sec 2002 Federal Water Pollution Control Act.
Sec 2003 Deepwater Port Act
Sec 2004 Outer Continental Shelf Lands Act Amendments of 1978
TITLE 111—INTERNATIONAL OIL POLLUTION PREVENTION AND REMOVAL
Sec 3001 Sense of Congress regarding participation in international regime
Sec 3002 United Stat-es-Canada Great Lakes oil spill cooperation
Sec 3003 United States-Canada Lake Champlain oil spill cooperation
Sec 3004 International inventory of removal equipment and personnel
Sec 3005 Negotiations with Canada concerning tug escorts in Puget Sound
TITLE tV—PREVENTION AND REMOVAL
Subtitle A—Prevention
Sec 4101 Review of alcohol and drug abuse and other matters in issuing licenses,
certificates of registry, and merchant mariners’ documents
Sec 4102 Term of licenses, certificates of registry, and merchant mariners’ docu-
ments, cnminal record reviews in renewals
Sec 4L03 Suspension, and revocation of licenses, certificates of registry, and mer-
chant mariners’ documents for alcohol and drug abuse
I .• -
Sec. 4104. Removal of master or indjvidu l in charge.
Sec 4105 Access to National Driver Register.
Sec. 4106 Manning standards for foreign tank vessels
Sec 4101. Vessel traffic service systems
Sec 4108 Great Lakes pilotage
Sec 4109 Periodic gauging of plating thickness of commercial vessels
Sec 4310 Overfill and tank level or pressure monitoring devices
Sec 4111. Study on tanker navigation safety standards
Sec 4112 Dredge modification study.
Sec. 4113 Useof liners.
Sec. 4114 Tank vessel manning
Sec. 4115 Establishment of double hull requirement for tank vessels
Sec. 4110 Pilotage
Sec 4117 Maritime pollution prevention training program study.
Sec 4118. Vessel communication equipment regulations.
Subtitle 8—Removal
Sec 4201. Federal removal authority.
Sec 4202 National planning and response system
Sec 4203 Coast Guard vessel design.
Sec 4204 Determination of harmful quantities of oil and hazardous substances
Sec. 4205. Coastwise oil spill response endorsements
Subtitle C—Penalties and Miscellaneous
Federal Water Pollution Control Act penalties
Other penalties
Financial responsibility civil penalties
Deposit of certain penalties into oil spill liability trust fund
Inspection and entry
Civil enforcement under Federal Water Pollution Control Act
TITLE V—PRINCE WILLIAM SOUND PROVISIONS
Sec 5001 Oil spill recovery institute.
Sec 5002 Terminal and tanker oversight and monitoring
Sec. 5003 Bligh Reef light.
Sec 5004 Vessel traffic service system
Sec 5005 Equipment and personnel requirements under tank vessel and facility re-
sponse plans
Sec 5006 Funding
Sec 5001. Limitation
TITLE VI—MISCELLANEOUS
Sec 6001 Savings provisions
Sec 6002 Annual appropriationS
Sec 6003 Outer Bgnks protection
Sec. 6004 Cooperative development of common hydrocarbon-bearing areas
TITLE VU—OIL POLLUTION RESEARCH AND DEVELOPMENT PROGRAM
Sec 7001 Oil pollution research and development program
TiTLE Vill—TRANS-ALASKA PIPELINE SYSTEM
Sec 8001 Short title,
Subtitle A—Improvements to Trans-Alaska Pipeline System
Sec 8101 Liability within the State of Alaska and cleanup efforts
Sec 8102 Trans-Alaska Pipeline Liability Fund
Sec 8108 Presidential task force
Subtitle B—Penalties
Sec 8201 Authority of the Secretary of the Interior to impose penalties on Outer
Continental Shelf facilities
Sec 8202 Trans-Alaska pipeline system civil penalties
Subtitle C—Provisions Applicable to Alaska Natives
Sec 8301 Land conveyances
Sec 8302 Impact of potential eptllg in the Arctic Oc sn cm Alnoka N hor’
14 STAT. 484 PUBLIC LAW 101-380—AUG. 18, 1990
Public Law 101—380
101st Congress
Aug 18, 1990
[ 1-1 R 1465]
I Pollution Act
990
‘ritime
a ire
vlrofl mental
tection
USC 2701
PUBLIC LAW 101-380—AUG. 18, 1990 104 STA’
Sec 4301
Sec 4302
Sec 4303
Sec 4304
Sec 4305
Sec. 4306
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104 STAT. 486 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 ST 1
TITLE IX—AMENDMENTS TO OIL SPILL LIABILITY TRUST FUND, FC
Sec 9001 Amendments to Oil Spill Liability Trust Fund.
Sec 9002 Changes relating to other funds
TITLE I—OIL POLLUTION LIABILITY AND
COMPENSATION
I USC 2101 Sec. 1001. DEFINITIONS.
For the purposes of this Act, the term—
(1) act of God” means an unanticipated grave natural disas-
ter or other natural phenomenon of an exceptional, inevitable,
and irresistible character the effects of which could not have
been prevented or avoided by the exercise of due care or fore-
sight;
(2) “barrel” means 42 United States gallons at 60 degrees
fahrenheit;
(3) “claim” means a request, made in writing for a sum
certain, for compensation for damages or removal cost s result-
ing from an incident;
(4) “claimant” means any person or government who presents
a claim for compensation under this title;
(5) “damages’ means damages specified in section 1002(b) of
this Act, and includes the cost of assessing these damages;
(6) “deepwater port” is a facility licensed under the Deep-
water Port Act of 1974 (33 U S C. 150 1—1524);
(7) “discharge” means any emission (other than natural seep-
age), intentional or unintentional, and includes, but is not
limited to, spilling, leaking, pumping, pouring, emitting,
emptying, or dumping;
(3) “exclusive economic zone” means the zone established by
Presidential Proclamation Numbered 5030, dated March 10,
1983, including the ocean waters of the areas referred to as
“eastern special areas” in Article 3(1) of the Agreement be-
tween the United States of America and the Union of Soviet
Socialist Republics on the Maritime Boundary, signed June 1,
1990,
(9) “facility” means any structure, group of structures, equip-
ment, or device (other than a vessel) which is used for one or
more of the following purposes: exploring for, drilling for,
producing, storing, handling, transferring, processing, or
transporting oil. This term includes any motor vehicle, rolling
stock, or pipeline used for one or more of these purposes;
(10) “foreign offshore unit” means a facility which is located,
in whole or in part, in the territorial sea or on the continental
shelf of a foreign country and which is or was used for one or
more of the following purposes: exploring for, drilling for,
producing, storing, handling, transferring, processing, or
transporting oil produced from the seabed beneath the foreign
country’s territorial sea or from the foreign country’s continen-
tal shelf;
(ii) “Fund” means the Oil Spill Liability Trust Ftind, estab-
lished by section 9509 of the Internal Revenue (‘ 1986 (26
jT SC. 9509);
I “gross ton” has the meaning given that term by the
itary under part J of title 46, United States Code;
(13) “guarantor” means any person, other than the respon-
sible party, who provides evidence of financial responsibility for
a responsible party under this Act;
(14) “incident” means any occurrence or series of occurrences
having the same origin, involving one or more vessels, facilities,
or any combination thereof, resulting in the discharge or
substantial threat of discharge of oil;
(15) “Indian tribe” means any Indian tribe, band, nation, or
other organized group or community, but not including any
Alaska Native regional or village corporation, which is recog-
nized as eligible for the special programs and services provided
by the United States to Indians because of their status as
Indians and has governmental authority over lands belonging to
or controlled by the tribe;
(16) “lessee” means a person holding a leasehold interest in
an oil or gas lease on lands beneath navigable waters (as that
term is defined in section 2(a) of the Submerged Lands Act (43
U.S.C. 1301(a))) or on submerged lands of the Outer Continental
Shelf, granted or maintained under applicable State law or the
Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.);
(17) “liable” or “liability” shall be construed to be the stand-
ard of liability which obtains under section 311 of the Federal
Water Pollution Control Act (33 U.S C 1321);
(18) “mobile offshore drilling unit” means a vessel (other than
a self-elevating lift vessel) capable of use as an offshore facility;
(19) “National Contingency Plan” means the National Contin-
gency Plan prepared and published under section 311(d) of the
Federal Water Pollution Control Act, as amended by this Act, or
revised under section 105 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. 9605);
(20) “natural resources” includes land, fish, wildlife, biota,
air, water, ground water, drinking water supplies, and other
such resources belonging to, managed by, held in trust by,
appertaining to, or otherwise controlled by the United States
(including the resources of the exclusive economic zone), any
State or local government or Indian tribe, or any foreign
government,
(21) “navigable waters” means the waters of the United
States, including the territorial sea;
(22) “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 which 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;
(23) “oil” means oil of any kind or in any form, including, but
not limited to, petroleum, fuel oil, sludge, oil refuse, and oil
mixed with wastes other than dredged spoil, but does not in-
clude petroleum, including crude oil or any fraction thereof,
which is specifically listed or designated as a hazardous sub-
stance under subparagraphs (A) through (F) of section 101(14) of
the Comprehensive Environmental Response, Compensation,
and Liability Act (42 U.S.C. 9601) and which is subject to the
provisions of that Act;
(24) “onshore facility” means any facility (including, but not
limited to, motor vehicles and rolling stock) of any kind Ic I
in, on, or under, any land within the United States othe
submerged land:
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34 STAT 488 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STA’I
(25) the term “Outer Continental Shelf facility” means an
offshore facility which is located, in whole or in part, on the
Outer Continental Shelf and is or was used for one or more of
the following purposes: exploring for, drilling for, producing,
storing, handling, transferring, processing, or transporting oil
produced from the Outer Continental Shelf;
(26) “owner or operator” means (A) in the case of a vessel, any
person owning, operating, or chartering by demise, the vessel,
and (B) in the case of an onshore facility, and an offshore
facility, any person owning or operating such onshore facility or
offshore facility, and (C) in the case of any abandoned offshore
facility, the person who owned or operated such facility imme-
diately prior to such abandonment;
(27) “person” means an individual, corporation, partnership,
association, State, municipality, commission, or political sub-
division of a State, or any interstate body;
(28) “permittee” means a person holding an authorization,
license, or permit for geological exploration issued under section
11 of the Outer Continental Shelf Lands Act (43 U.S.C. 1340) or
applicable State law;
(29) “public vessel” means a vessel owned or bareboat char-
tered and operated by the United States, or by a State or
political subdivision thereof, or by a foreign nation, except when
the vessel is engaged in commerce,
(30) “remove” or “removal” means containment and removal
of oil or a hazardous subst ce from water and shorelines or the
taking of other actions as may be necessary to minimize or
mitigate damage to the public health or welfare, including, but
not limited to, fish, shellfish, wildlife, arid public and private
property, shorelines, and beaches,
(31) “removal costs” means the costs of removal that are
incurred after a discharge of oil has occurred or, in any case in
which there is a substantial threat of a discharge of oil, the costs
to prevent, minimize, or mitigate oil pollution from such an
incident;
(32) “responsible party” means the following:
(A) VEsSra.s.—In the case of a vessel, any ! ‘erson owning,
operating, or demise chartering the vessel.
(B) ONSHORE FACILITIES.—In the case of an onshore facil-
ity (other than a pipeline), any person owning or operating
the facility, except a Federal agency, State, municipality,
commission, or political subdivision of a State, or any inter-
state body, that as the owner transfers possession and right
to use the property to another person by lease, assignment,
or permit.
(C) OFFSHORE FACILITIES,—Ifl the case of an offshore facil-
ity (other than a pipeline or a deepwater port licensed
under the Deepwater Port Act of 1974 (33 U.S.C. 1501 et.
seq.)), the lessee or permittee of the area in which the
facility is located or the holder of a right of use and
easement granted under applicable State law or the Outer
Continental Shelf Lands Act (43 U S.C. 1301—1356) for the
area in which the facility is located (if the holder is a
different person than the lessee or permittee), except a
Federal agency, State, municipality, commission, or politi-
cal subdivision of a State, or any interstate body, that as
owner transfers possession and right to use the property to
another person by lease, assignment, or permit.
(D) DEEPWATER poa’rs.—In the case of a deepwater port
licensed under the Deepwater Port Act of 1974 ( 3 U.S.C
1501—1524), the licensee.
(E) PIPEUNsS.—In the case of a pipeline, any person
owning or operating the pipeline.
(F) ABANDONMEN’T.—In the case of an abandoned vessel,
onshore facility, deepwater port, pipeline, or offshore facil-
ity, the persons who would have been responsible parties
immediately prior to the abandonment of the vessel or
facility.
(33) “Secretary” means the Secretary of the department in
which the Coast Guard is operating;
(34) “tank vessel” means a vessel that is constructed or
adapted to carry, or that carries, oil or hazardous material in
bulk as cargo or cargo residue, and that—
(A) is a vessel of the United States;
(B) operates on the navigable waters; or
(C) transfers oil or hazardous material in a place subject
to the jurisdiction of the United States;
(35) “territorial seas” means the belt of the seas measured
from 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, and extending
seaward a distance of 3 miles;
(36) “United States” and “State” mean the several States of
the United States, the District of Columbia, the Commonwealth
of Puerto Rico, Guam, American Samoa, the United States
Virgin Islands, the Commonwealth of the Northern Marianas,
and any other territory or possession of the United States; and
(37) “vessel” means every description of watercraft or other
artificial contrivance used, or capable of being used, as a means
of transportation on water, other than a public vessel.
SEC. 1002. ELEMENTS OF LIABILITY.
(a) IN GENEItAL.—Notwithstandiflg any other provision or rule of
law, and subject to the provisions of this Act, each responsible party
for a vessel or a facility from which oil is discharged, or which poses
the substantial threat of a discharge of oil, into or upon the navi-
gable waters or adjoining shorelines or the exclusive economic zone
is liable for the removal costs and damages specified in subsection
(b) that result from such incident.
(b) COVERED REMOVAL CosTS AND DAMAGES.—
(1) REMOVAL cosm.—The removal costs referred to in subsec-
tion (a) are—
(A) all removal costs incurred by the United States, a
State, or an Indian tribe under subsection (c), (d), (e), or (I) of
section 311 of the Federal Water Pollution Control Act (33
U S.C. 1321), as amended by this Act, under the Interven-
tion on the High Seas Act (33 U.S.C. 1471 et seq), or under
State law; and
(B) any removal costs incurred by any person for acts
taken by the person which are consistent with the National
Contingency Plan
(2) DAMAGES.—The damages referred to in subsection (a) are
the following:
33 USC?
State an
governrii
Indian a
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STAT. 490 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT. 4
(A) NATURAL RESOURCES —Damages for injury to, destruc-
tion of, loss of, or loss of use of, natural resources, including
the reasonable costs of assessrng the damage, which shall be
recoverable by a United States trustee, a State trustee, an
Indian tribe trustee, or a foreign trustee.
(B) REAL OR PERSONAL pRopEwry.—Damages for injury to,
or economic losses resulting from destruction of, real or
personal property, which shall be recoverable by a claimant
who owns or leases that property
(C) SUBSISTENCE usE.—Damages for toss of subsistence use
of natural resources, which shall be recoverable by any
claimant who so uses natural resources which have been
injured, destroyed, or lost, without regard to the ownership
or management of the resources.
CD) REvENuEs.—Damages equal to the net loss of taxes,
royalties, rents, fees, or net profit shares due to the injury,
destruction, or loss of real property, personal property, or
natural resources, which shall be recoverable by the
Government of the United States, a State, or a political
subdivision thereof.
(E) PROFITS AND EARNING cAPAcirY.—Damages equal to
the loss of profits or impairment of earning capacity due to
the injury, destruction, or loss of real property, personal
property, or natural resources, which shall be recoverable
by any claimant
(F) Pusuc sgnvicns.—Damages for net costs of providing
increased or additiona1 ublic services during or after re-
moval activities, including protection from fire, safety, or
health hazards, caused by a discharge of oil, which shall be
recoverable by a State, or a political subdivision of a State.
(c) EXCLUDED DISCHARCES.—ThiS title does riot apply to any dis-
charge—
(1) permitted by a permit issued under Federal, State, or local
law;
(2) from a public vessel; or
(3) from an onshore facility which is subject to the Trans-
Alaska Pipeline Authorization Act (43 U.S.C. 1651 et seq.).
(d) LIABIUTY OF THIRD PARTIES.—
(1) IN GENERAL.
(A) THIRD PARTY TREATED AS RESPONSIBLE PARTY.—Except
as provided in subparagraph (B), in any case in which a
responsible party establishes that a discharge or threat of a
discharge and the resulting removal costs and damages
were caused solely by an act or omission of one or more
third parties described in section 1003(aX3) (or solely by
such an act or omission in combination with an act of God
or an act of wars, the third party or parties shall be treated
as the responsible party or parties for purposes of determin-
ing liability under this title.
(B) SUBROGATION OF RESPONSIBLE PARTY.—If the respon-
sible party alleges that the discharge or threat of a dis-
charge was caused solely by an act or omission of a third
party, the responsible party—
(i) in accordance with section 1013, shall pay removal
costs and damages to any claimant; and
(ii) shall be entitled by subrogation to all rights of the
Urnted States Government and the claimant to recover
removal costs or damages from the third party or the
Fund paid under this subsection.
(2) L 1MI’FATlON APPLIED.—
(A) OWNER OR OPERATOR OF VESSEL OR pACu. rry.—If the
act or omission of a third party that causes an incident
occurs in connection with a vessel or facility owned or
operated by the third party, the liability of the third party
shall be subject to the limits provided in section 1004 as
applied with respect to the vessel or facility.
(B) OTIIER cAsEs.—In any other case, the liability of a
third party or parties shall not exceed the limitation which
would have been applicable to the responsible party of the
vessel or facility from which the discharge actually oc-
curred if the responsible party were liable.
SEC. 1003. DEFENSES TO LIABILITY.
(a) COMPLETE DErtNSES.—A responsible party is not liable for
removal costs or damages under section 1002 if the responsible party
establishes, by a preponderance of the evidence, that the discharge
or substantial threat of a•discharge of oil and the resulting damages
or removal costs were caused solely by—
(1) an act of God;
(2) an act of war;
(3) an act or omission of a third party, other than an employee
or agent of the responsible party or a third party whose act or
omission occurs is connection with any contractual relationship
with the responsible party (except where the sole contractual
arrangement arises in connection with carriage by a common
carrier by rail), if the responsible party establishes, by a prepon-
derance-of the evidence, that the responsible party—
(A) exercised due care with respect to the oil concerned,
taking into consideration the characteristics of the oil and
in light of all relevant facts and circumstances; and
(B) took precautions against foreseeable acts or omissions
of any such third party and the foreseeable consequences of
those acts or omissions; or
(4) any combination of paragraphs (1), (2), and (3).
(b) DEFENSES As To PARTICULAR CLAIMANTB.—A responsible party
is not liable under section 1002 to a claimant, to the extent that the
incident is caused by the gross negligence or willful misconduct of
the claimant.
(c) LIMITATION ON COMPLETE DEraNSE.—Subsection (a) does not
apply with respect to a responsible party who fails or refuses—
(1) to report the incident as required by law if the responsible
party knows or has reason to know of the incident;
(2) to provide all reasonable cooperation and assistance re-
quested by a responsible official in connection with removal
activities; -Or
(3) without sufficient cause, to comply with an order issued
under subsection (c) or (e) of section 311 of the Federal Water
Pollution Control Act (33 U.S.C. 1321), as amended by this Act,
or the Intervention on the High Seas Act (33 U.S.C. 1471 et seq).
SEC. 1004. LIMITS ON LIABILITY.
(a) GENERAL RuLE.—Except as otherwise provided in this sect
he total of the linhilitv r,f rpcn ndil ln .- ,., ,-. .,. .,4
33 USC 2703
33 USC 2704
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104 STAT. 492 PUBLIC LAW 101—380—-AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT
and any removal costs incurred by, or on behalf of, the responsible
party, with respect to each incident shall not exceed—
(1) for a tank vessel, the greater of—
(A) $1,200 per gross ton; or
(BXi) in the case of a vessel greater than 3,000 gross tons,
$10,000,000; or
(ii) in the case of a vessel of 3,000 gross tons or less,
$2,000,000;
(2) for any other vessel, $600 per gross ton or $500,000.
whichever is greater;
(3) for an offshore facility except a deepwater port, the total of
all removal costs plus $75,000,000; and
(4) for any onshore facility and a deepwater port, $350,000,000.
(b) DIVISION OF Li niirrv FOR MOBILE OrFsHoaE DRIWNC UNITS.—
(1) TREATED FIRST AS TANK VESSEL—For purposes of deterrnin-
ing the responsible party and applying this Act and except as
provided in paragraph (2), a mobile offshore drilling unit which
is being used as an offshore facility is deemed to be a tank vessel
with respect to the discharge, or the substantial threat of a
discharge, of oil on or above the surface of the water.
(2) TREATED AS FACILITY FOR EXCESS LIABILITY.—To the extent
that removal costs and damages from any incident described in
paragraph (1) exceed the amount for which a responsible party
is liable (as that amount may be limited under subsection (aXi)),
the mobile offshore drilling unit is deemed to be an offshore
facility For purposes of applying subsection (aX3), the amount
specified in that subsectiofl shall be reduced by the amount for
which the responsible party is liable under paragraph (1)
(c) ExcEJ rioNs.—
(1) Acvs OF RESPONSIBLE PARTY —Subsection (a) does not apply
if the incident was proximately caused by—
(A) gross negligence or willful misconduct of, or
(B) the violation of an applicable Federal safety, construc-
tion, or operating regulation by,
the responsible party, an agent or employee of the responsible
party, or a person acting pursuant to a contractual relationship
with the responsible party (except where the sole contractual
arrangement arises in connection with carriage by a common
carrier by rail).
(2) FAILURE OR REFUSAL OF RESPONSIBLE PARTY.—SUbSeCtion (a)
does not apply if the responsible party fails or refuses—
(A) to report the incident as required by law and the
responsible party knows or has reason to know of the
incident;
(B) to provide all reasonable cooperation and assistance
requested by a responsible official in connection with re-
moval activities; or
(C) without sufficient cause, to comply with an order
issued under subsection (c) or (e) of section 311 of the
Federal Water Pollution Control Act (33 U.S.C. 1321), as
amended by this Act, or the Intervention on the High Seas
Act (33 U.s C. 1471 et seq).
(3) OCS FACILITY OR VESSEL —Notwithstanding the limitations
established under subsection (a) and the defenses of section
1003, all removal costs incurred by the United States Govern-
ment or any State or local official or agency in connection with
a discharge or substantial threat of a discharge of oil from any
Outer Continental Shelf facility or a vessel carrying oil an cargo
from such a facility shall be borne by the owner or operator of
such facility or vessel.
(d) ADJUSTING LIMITS o LIABILITY.—
(1) ONSHORE FAcIUTIES.—Subject to paragraph (2), the Presi-
dent may establish by regulation, with respect to any class or
category of onshore facility, a limit of liability under this section
of less than $350,000,000, but not less than $8,000,000, 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
(2) DEEP WATER PORTS AND ASSOCIATED VESSELS.—
(A) SnIDY.—The Secretary shall conduct a study of the
relative operational and environmental risks posed by the
transportation of oil by vessel to deepwnter ports (as de-
fined in section 3 of the Deepwater Port Act of 1974 (33
U.S.C. 1502)) versus the transportation of oil by vessel to
other ports. The study shall include a review and analysis
of offshore lightering practices used in connection with that
transportation, an analysis of the volume of oil transported
by vessel using those practices, and an analysis of the
frequency and volume of oil discharges which occur in
connection with the use of those practices.
(B) REPORT.—NOt later than 1 year after the (late of the
enactment of this Act, the Secretary shall submit to the
Congress a report on the results of the study conducted
under subparagraph (A).
(C) RULEMAKING PROCEEDING.—If the Secretary deter-
mines, based on the results of the study conducted under
this subparagraph (A), that the use of deepwater ports in
connection with the transportation of oil by vessel results in
a lower operational or environmental risk than the use of
other ports, the Secretary shall initiate, not later than the
180th day following the date of submission of the report to
the Congress under subparagraph (B), a rulemaking
proceeding to lower the limits of liability under this section
for deepwater ports as the Secretary determines appro-
priate. The Secretary may establish a limit of liability of
less than $350,000,000, but not less than $50,000,000, in
accordance with paragraph (1).
(3) PERIODIC REP0RTS.—The President shall, within 6 months
after the date of the enactment of this Act, and from time to
time thereafter, report to the Congress on the desirability of
adjusting the limits of liability specified in subsection (a).
(4) ADJUSTMENT TO REFLECT CONSUMER PRICE INoEx.—The
President shall, by regulations issued not less often than every 3
years, adjust the limits of liability specified in subsection (a) to
reflect significant increases in the Consumer Price Index.
SEC. 1005. INTEREST. 33 USC 71’
(a) GENERAL Rur ..s.—The responsible party or the responsible
party’s guarantor is liable to a claimant for interest on the amount
paid in satisfaction of a claim under this Act for the period described
in subsection (b).
(b) PERioD.—
PresicIent
Regulatton
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STAT. 494 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT.
(1) IN GENERAL.—EXCePt as provided in paragraph (2), the
period for which interest shall be paid is the period beginning
on the 30th day following the date on which the claim is
presented to the responsible party or guarantor and ending on
the date on which the claim is paid.
(2) EXCLJSION OF PERIOD DUE TO OFFER BY GUARANTOR.-1f the
guarantor offers to the claimant an amount equal to or greater
than that finally paid in satisfaction of the claim, the period
described in paragraph (1) does not include the period beginning
on the date the offer is made and ending on the date the offer is
accepted. If the offer is made within 60 days after the date on
which the claim is presented under section 1013(a), the period
described in paragraph (1) does not include any period before
the offer is accepted.
(3) EXCLUSION OF PERIODS IN INTERESTS OF JUSTICE —If in any
period a claimant is not paid due to reasons beyond the control
of the responsible party or because it would not serve the
interests of justice, no interest shall accrue under this section
during that period.
(4) CALcu [ AT1oN OF INTEREST.—The interest paid under this
section shall be calculated at the average of the highest rate for
commercial and finance company paper of maturities of 180
days or less obtaining on each of the days included within the
period for which interest must be paid to the claimant, as
published in the Federal Reserve Bulletin
(5) INTEREST NOT SUBJECT LIABILITY LIMITS —
(A) IN GENERAL —Interest (including prejudgment in-
terest) under this paragraph is in addition to damages and
removal costs for which claims may be asserted under
section 1002 and shall be paid without regard to any limita-
tion of liability under section 1004.
(B) PAYMENT BY CUARANTOR.—The payment of interest
under this subsection by a guarantor is subject to section
1016(g).
SC 2706 SEC. 1006. NATURAL RESOURCES.
(a) LIAmL.rr r.—1n the case of natural resource damages under
section 1002(bX2XA), liability shall be—
(1) to the United States Government for natural resources
belonging to, managed by, controlled by, or appertaining to the
United States;
(2) to any State for natural resources belonging to, managed
by, controlled by, or appertaining to such State or political
subdivision thereof;
(3) to any Indian tribe for natural resources belonging to,
managed by, controlled by, or appertaining to such Indian tribe;
and
(4) in any case in which section 1007 applies, to the govern-
ment of a foreign country for natural resources belonging to,
managed by, controlled by, or appertaining to such country.
(b) DESIGNATION OF TRUSTEES —
(I) IN GENERAL —The President, or the authorized representa-
tive of any State, Indian tribe, or foreign government, shall act
or “half of the public, Indian tribe, or foreign country as
of natural resources to present a claim for .ind to
r r damages to the natural resources.
(2) FEDERAL TRU8TEES.—The President shall designate the
Federal officials who shall act on behalf of the public as trustees
for natural resources under this Act.
(3) STATE TRUSTEES—The Governor of each State shall des-
ignate State and local officials who may act on behalf of the
public as trustee for natural resources under this Act and shall
notify the President of the desig iation.
(4) INDIAN TRiBE TRUSTEES.—The governing body of any Indian
tribe shall designate tribal officials who may act on behalf of
the tribe or its members as trustee for natural resources under
this Act and shall notify the President of the designation.
(5) FOREIGN TRUSTEES.—The head of any foreign government
may designate the trustee who shall act on behalf of that
government as trustee for natural resources under this Act
(c) FUNCTIONS OF TRUSTEES.—
(1) FEDERAL TRusTEEs.—The Federal officials designated
under subsection (bX2)—
(A) shall assess natural resource damages under section
1002(bX2XA) for the natural resources under their trustee-
ship;
(B) may, upon request of and reimbursement from a State
or Indian tribe and at the Federal officials’ discretion,
assess damages for the natural resources under the State’s
or tribe’s trusteeship; and
(C) shall develop and implement a plan for the restora-
tion, rehabilitation, replacement, or acquisition of the
equivalent, of the natural resources under their trustee-
ship.
(2) STATE TRUSTEES.—The State and local officials designated
under subsection (bX3)—
(A) shall assess natural resource damages under section
1002(bX2XA) for the purposes of this Act for the natural
resources under their trusteeship; and
(B) shall develop and implement a plan for the restora-
tion, rehabilitation, replacement, or acquisition of the
equivalent, of the natural resources under their trustee-
ship.
(3) INDIAN TRIBE TRUSTEES.—The tribal officials designated
under subsection (bX4)—
(A) shall assess natural resource damages under section
1002(bX2XA) for the purposes of this Act for the natural
resources under their trusteeship; and
(B) shall develop and implement a plan for the restora-
tion, rehabilitation, replacement, or acquisition of the
equivalent, of the natural resources under their trustee-
ship.
(4) FOREIGN TRUSTEES.—The trustees designated under subsec-
tion (bX5)—
(A) shall assess natural resource damages under section
1002(bX2XA) for the purposes of this Act for the natural
iesources under their trusteeship; and
(B) shall develop and implement a plan for the restora-
tion, rehabilitation, replacement, or acquisition of the
equivalent, of the natural resources under their trustee-
ship.
(5) NOTICE AND OPPORTUNITY TO RE 1 ’r RD.—Plans s
developed and implemented under this sect;on only afL e-
Lder tofU S
‘is
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4 STAT. 496 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT.
quate public notice, opportunity for a hearing, and consider-
ation of all public comment.
(d) MEASURE OF DAMAGES.—
(1) I GENERAL.—The measure of natural resource damages
under section 1002(bX2XA) is—
(A) the cost of restoring, rehabilitating, replacing, or
acquiring the equivalent of, the damaged natural resources;
(B) the diminution in value of those natural resources
pending restoration; plus
(C) the reasonable cost of assessing those damages.
(2) DETERMINE COSTS WITH RESPECT TO PLANS.—CoSts shall be
determined under paragraph (1) with respect to plans adopted
under subsection (c)
(3) No DOUBLE RECOVERY —There shall be no double recovery
under this Act for natural resource damages, including with
respect to the costs of damage assessment or restoration, re-
habilitation, replacement, or acquisition for the same incident
and natural resource.
.udent of U S (e) DAMAGE ASSESSMENT REGULATIONS —
(1) REGULATIONS.—The President, acting through the Under
Secretary of Commerce for Oceans and Atmosphere and in
consultation with the Administrator of the Environmental
Protection Agency, the Director of the United States Fish and
Wildlife Service, and the heads of other affected agencies, not
later than 2 years after the date of the enactment of this Act,
shall promulgate regulati s for the assessment of natural
resource damages under section 1002(bX2XA) resulting from a
discharge of oil for the purpose of this Act
(2) REBUTTABLE PRESUMPTION.—Any determination or assess-
ment of damages to natural resources for the purposes of this
Act made under subsection (d) by a Federal, State, or Indian
trustee in accordance with the regulations promulgated under
paragraph (1) shall have the force and effect of a rebuttable
presumption on behalf of the trustee in any administrative or
judicial proceeding under this Act.
(I) USE OF RECOVERED SUMS —Sums recovered under this Act by a
Federal, State, Indian, or foreign trustee for natural resource dam-
ages under section 1002(bX2XA) shall be retained by the trustee in a
revolving trust account, without further appropriation, for use only
to reimburse or pay costs incurred by the trustee under subsection
(c) with respect to the damaged natural resources. Any amounts in
excess of those required for these reimbursements and costs shall be
deposited in the Fund.
(g) COMPLIANCE —Review of actions by any Federal official where
there is alleged to be a failure of that official to perform a duty
under this section that is not discretionary with that official may be
had by any person in the district court in which the person resides
or in which the alleged damage to natural resources occurred The
court may award costs of litigation (including reasonable attorney
and expert witness fees) to any prevailing or substantially prevail-
ing party Nothing in this subsection shall restrict any right which
any person may have to seek relief under any other provision of law.
JSC 2707 SEC. 1007. RECOVERY BY FOREIGN CLAIMANTS.
(1) IN GENERAL—In addition to satisfying the other require-
ments of this Act, to recover removal costs or damages resulting
from an incident a foreign claimant shall demonstrate that—
(A) the claimant has not been otherwise compensated for
the removal costs or damages; and
(B) recovery is authorized by a treaty or executive agree-
ment between the United States and the claimant’s coun-
try, or the Secretary of State, in consultation with the
Attorney General and other appropriate officials, has cer-
tified that the claimant’s country provides a comparable
remedy for United States claimants.
(2) ExcErrxoNs.—Paragraph (IXB) shall not apply with respect Canada
to recovery by a resident of Canada in the case of an incident
described in subsection (bX4).
(b) DiscHARGES IN FOREIGN CouNT1Iw .—A foreign claimant may
make a claim for removal costs and damages resulting from a
discharge, or substantial threat of a discharge, of oil in or on the
territorial sea, internal waters, or adjacent shoreline of a foreign
country, only if the discharge is from—
(1) an Outer Continental Shelf facility or a deepwater port;
(2) a vessel in the navigable waters;
(3) a vessel carrying oil as cargo between 2 places in the
United States; or
(4) a tanker that received the oil at the terminal of the
pipeline constructed under the Trans-Alaska Pipeline
Authorization Act (43 U.S.C. 1651 et seq.), for transportation to
a place in the United States, and the discharge or threat occurs
prior to delivery of the oil to that place.
(c) FOREIGN CLAI? 1 u r DEFINED.—In this section, the term “for-
eign claimant” means—
(1) a person residing in a foreign country;
(2) the government of a foreign country; and
(3) an agency or political subdivision of a foreign country.
SEC. 1008. RECOVERY BY RESPONSIBLE PARTY.
(a) IN GENERAL —The responsible party for a vessel or facility
from which oil is discharged, or which poses the substantial threat
of a discharge of oil, may assert a claim for removal costs and
damages under section 1013 only if the responsible party dem-
onstrates that—
(1) the responsible party is entitled to a defense to liability
under section 1003; or
(2) the responsible party is entitled to a limitation of liability
under section 1004.
(b) EXTENT OF RECOVERY.—A responsible party who is entitled to a
limitation of liability may assert a claim under section 1013 only to
the extent that the sum of the removal costs and damages incurred
by the responsible party plus the amounts paid by the responsible
party, or by the guarantor on behalf of the responsible party, for
claims asserted under section 1013 exceeds the amount to which the
total of the liability under section 1002 and removal costs and
damages incurred by, or on behalf of, the responsible party is
limited under section 1004.
SEC. 1009. CONTRIBUTION. 33 USC 271
A person may bring a civil action for contribution against any
other person who is liable or potentially Jiable ,under this Act or
33 USC 270
(a) REQUIRED SHowING BY FOREIGN CLAIMAr’rrs.—
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‘4 STAT. 498 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT.
another law T action shall be brought in accordance with section
1017
USC 2710 SEC 1010. INDEMNIFICATION AGREEMENTS.
(a) AGREEMENTS No’r PROHIBITED —Nothing in this Act prohibits
any agreement to insure, hold harmless, or indemnify a party to
such agreement for any liability under this Act
(b) LIABIUTY Ncrr TRA], SFERRED.—NO indemnification, hold harm-
less, or similar agreement or conveyance shall be effective to trans-
fer liability imposed under this Act from a responsible party or from
any person who may be liable for an incident under this Act to any
other person.
(c) RELATioNsHIP To OTHER CAUSES OF AcrnoN.—Nothing in this
Act, including the provisions of subsection (b), bars a cause of action
that a responsible party subject to liability under this Act, or a
guarantor, has or would have, by reason of subrogation or otherwise,
against any person.
SEC. 10 Ii. CONSULTATION ON REMOVAL ACTIONS.
The President shall consult with the affected trustees designated
under section 1006 on the appropriate removal action to be taken in
connection with any discharge of oil, For the purposes of the Na-
tional Contingency Plan, removal with respect to any discharge
shall be considered completed when so determined by the President
in consultation with the Governor or Governors of the affected
States However, this determii tion shall not preclude additional
removal actions under applicab [ e State law.
sidentofUS SEC 1012 USES OFTIIE FUND
USC 2712 (a) Usns GENERALLY—The Fund shall be available to the Presi.
dent for—
(1) the payment of removal costs, including the costs of mon-
itoring removal actions, determined by the President to be
consistent with the National Contingency Plan—
(A) by Federal authorities; or
(B) by a Governor or designated State official under
subsection (d);
(2) the payment of costs incurred by Federal, State, or Indian
tribe trustees in carrying out their functions under section 1006
for assessing natural resource damages and for developing and
implementing plans for the restoration, rehabilitation, replace-
ment, or acquisition of the equivalent of damaged resources
determined by the President to be consistent with the National
Contingency Plan;
(3) the payment of removal costs determined by the President
to be consistent with the National Contingency Plan as a result
of, and damages resulting from, a discharge, or a substantial
threat of a discharge, of oil from a foreign offshore unit;
(4) the payment of claims in accordance with section 1013 for
uncompensated removal costs determined by the President to be
consistent with the National Contingency Plan or uncompen-
sated damages,
(5) the payment of Federal administrative, operational, and
personnel costs arid expenses reasonably necessary for d
incidental to the implementation, administration, and enforce-
of this Act (including, but not limited to, sections
JX2), 1006(e), 4107, 4110, 4111, 4112, 4117, 5006, 8103, and
title VII) and subsections (b), (c), (d), Ci), and (1) of section 311 of
the Federal Water Pollution Control Act (33 U S.C 1321), as
amended by this Act, with respect to prevention, removal, and
enforcement related to oil discharges, provided that—
(A) not more than $25,000,000 in each fiscal year shall be Uniformed
available to the Secretary for operating expenses incurred services
by the Coast Guard;
(B) not more than $30,000,000 each year through the end
of fiscal year 1992 shall be available to establish the Na.
tional Response System under section 311(j) of the Federal
Water Pollution Control Act, as amended by this Act,
including the purchase and prepositioning of oil spill re-
moval equipment; and
(C) not more than $27,250,000 in each fiscal year shall be
available to carry out title VII of this Act.
(b) DEFENSE i o LIAHIU’ry FOR FUND.—The Fund shall not be
available to pay any claim for removal costs or damages to a
particular claimant, to the extent that the incident, removal costs,
or damages are caused by the gross negligence or willful misconduct
of that claimant.
(c) OBUGATION or FUND BY FEDERAL OFP IcIALS.—The President
may promulgate regulations designating one or more Federal offi-
cials who may obligate money in accordance with subsection (a).
(di AccEss ro FUND BY STATE OFncIAts.—
(1) IMMEDIATE REMOVAL.—Ifl accordance with regulations
promulgated under this section, the President, upon the request
of the Governor of a State or pursuant to an agreement with a
State under paragraph (2), may obligate the Fund for payment
in an amount not to exceed $250,000 for removal costs consist-
ent with the National Contingency Plan required for the imme-
diate removal of a discharge, or the mitigation or prevention of
a substantial threat of a discharge, of oil.
(2) AGREEMENTS —
(A) IN GENERAL —The President shall enter into an agree-
ment with the Governor of any interested State to establish
procedures under which the Governor or a designated State
official may receive payments from the Fund for removal
costs pursuant to paragraph (1).
(B) TERM5.—Agreements under this paragraph—
(i) may include such terms and conditions as may be
agreed upon by the President and the Governor of a
State;
(ii) shall provide for political subdivisions of the State
to receive payments for reasonable removal costs; and
(iii) may authorize advance payments from the Fund
to facilitate removal efforts.
(e) RECULA’rIONS.—The President shall—
(1) pot later than 6 months after the date of the enactment of
this Act, publish proposed regulations detailing the manner in
which the authority to obligate the Fund and to enter into
agreements under this subsection shall be exercised; and
(2) not later than 3 months after the close of the comment
period for such proposed regulations, promulgate final r’
tions for that purpose.
(0 RIGWrS OF SUBROGATION —Payment of any cinim or ohi,
s ,denL of U S
ie and local
crnmerits
USC 2711
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14 STAT. 500 PUBLIC LAW 101 -380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STA
Government acquiring by subrogation all rights of the claimant or
State to recover from the responsible party.
(g) Aunin—The Comptroller General shall audit all payments,
obligations, reimbursements, and other uses of the Fund, to assure
that the Fund is being properly administered and that claims are
being appropriately and expeditiously considered. The Comptroller
General shall submit to the Congress an interim report one year
after the date of the enactment of this Act. The Comptroller General
shall thereafter audit the Fund as is appropriate. Each Federal
agency shall cooperate with the Comptroller General in carrying out
this subsection.
(h) PERIOD OF LIMITATIONS FOR CLAIMS.—
(1) REMovAL cosTs.—No claim may be presented under this
title for recovery of removal costs for an incident unless the
claim is presented within 6 years after the date of completion of
all removal actions for that incident.
(2) DAMAGES —No claim may be presented under this section
for recovery of damages unless the claim is presented within 3
years after the date on which the injury and its connection with
the discharge in question were reasonably discoverable with the
exercise of due care, or in the case of natural resource damages
under section 1002(b)(2XA ), if later, the date of completion of the
natural resources damage assessment under section 1006(e)
(3) Mnwas AND iNcoMptrENTs.—The time ]imgations con-
tained in this subsection shall not begin to run—
(A) against a minot until the earlier of the date when
such minor reaches 18 years of age or the date on which a
legal representative is duly appointed for the minor, or
(B) against an incompetent person until the earlier of the
date on which such incompetent’s incompetency ends or the
date on which a legal representative is duly appointed for
the incompetent
(i) LIMITATiON ON PAYMENT FOR SAME Cosis —In any case in
which the President has paid an amount from the Fund for any
removal costs or damages specified under subsection (a), no other
claim may be paid from the Fund for the same removal costs or
damages
(j) OBLIGATION IN ACCORDANCE WITH PLAN.—
(1) IN GENERAL —Except as provided in paragraph (2),
amounts may be obligated from the Fund for the restoration,
rehabilitation, replacement, or acquisition of natural resources
only in accordance with a plan adopted under section 1006(c).
(2) ExcEnioN.—Paragraph (1) shall not apply in a situation
requiring action to avoid irreversible loss of natural resources
or to prevent or reduce any continuing danger to natural re-
sources or similar need for emergency action.
(k) PREFERENCE FOR PRIVATE Pr.nsoNs IN AREA AFFECrED BY Dis-
CHARGE —
(1) iN GENERAL —In the expenditure of Federal funds for
removal of oil, Including for distribution of supplies, construc-
tIon, and other reasonable and appropriate activities, under a
contract or agreement with a private person, preference shall be
given, to the extent feasible and practicable, to private persons
residing or doing business primarily in the area affected by the
discharge of oil
(2) LIMITATIoN —This subsection shall not be considered to
restrirt the use nf Dennrtment nfflpfencn rncn,,rrnc
SEC. 1013. CLAIMS PROCEDURE. 32 USC
(a) PassEN’rArION.—Except as provided in subsection (b), all claims
for removal costs or damages shall be presented first to the respon-
sible party or guarantor of the source designated under section
1014(a).
(b) PRESENTATION TO FUND.—
(1) IN GENERAL.—Clairns for removal costs or damages may be
presented first to the Fund—
(A) if the President has advertised or otherwise notified
claimants in accordance with section 1014(c);
(B) by a responsible party who may assert a claim under
section 1008;
(C) by the Governor of a State for removal costs incurred
by that State; or
(D) by a United States claimant in a case where a foreign
offshore unit has discharged oil causing damage for which
the Fund is liable under section 1012(a).
(2) LIMITATION ON PRESENTING CLAIM.—No claim of a person
against the Fund may be approved or certified during the
pendency of an action by the person in court to recover costs
which are the subject of the claim.
(c) EtEcnoN.—If a claim is presented in accordance with subsec-
tion (a) and—
(1) each person to whom the claim is presented denies all
liability for the claim, or
(2) the claim is not settled by any person by payment within
SI) days after the date upon which (A) the claim was presented,
or (B) advertising was begun pursuant to section 1014(b), which-
ever is later,
the claimant may elect to commence an action in court against the
responsible party or guarantor or to present the claim to the Fund.
(d) UNCOMPENSATED DAMAGES.—If a claim is presented in accord-
ance with this section and full and adequate compensation is un-
available, a claim for the uncompensated damagea and removal
costs may be presented to the Fund.
(e) PROCEDURE FOR CLAIMS AGAINST FUND.—The President shall
promulgate, and may from time to time amend, regulations for the
presentation, filing, processing, settlement, and adjudication of
claims under this Act against the Fund.
SEC. 1014. DESIGNATION OF SOURCE AND ADVERTISEMENT.
(a) DESIGNATION OF SOURCE AND NoT IFIcATIoN—When the Presi-
dent receives information of an incident, the President shall, where
possible and appropriate, designate the source or sources of the
discharge or threat. If a designated source is a vessel or a facility,
the President shall immediately notify the responsible party and the
guarantor, if known, of that designation.
(b) ADVERTISEMENT BY RESPONSIBLE PARn oa GUARANTOR.— ! 1 a
responsible party or guarantor fails to inform the President, within
5 days after receiving notification of a designation under subsection
(a), of the party’s or the guarantor’s denial of the designation, such
party or guarantor shall advertise the designation and the proce-
dures by which claims may be presented, in accordance with regula-
tions promulgated by the President. Advertisement under the
preceding sentence shall begin no later than 15 days after the date
of the designation made under subsection (a). If advertisement is not
nthrrwicn rp,nAn it, . rnrrl—,nrn ,,rifl, fl ,e ,.,,hrnr4,r .. 4t—. fl_..
ports
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STAT. 502 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT
shall promptly and at the expense of the responsible party or the
guarantor involved, advertise the designation and the procedures by
which claims may be presented to the responsible party or guaran-
tor Advertisement under this subsection shall continue for a period
of no less than 30 days.
(c) ADVERTISEMENT BY PRESIDENT—If——
(1) the responsible party and the guarantor both deny a
designation within 5 days after receiving notification of a des-
igriation under subsection (a),
(2) the source of the discharge or threat was a public vessel, or
(3) the President is unable to designate the source or sources
of the discharge or threat under subsection (a),
the President shall advertise or otherwise notify potential claimants
of the procedures by which claims may be presented to the Fund.
C 2715 SEC. 10l5. SUBROGATION.
(a) IN GENERAL—Any person, including the Fund, who pays
compensation pursuant to this Act to any claimant for removal costs
or damages shall be subrogated to all rights, claims, and causes of
action that the claimant has under any other law
(b) AcTioNs o BEHALF OF FUND —At the request of the Secretary,
the Attorney General shall commence an action on behalf of the
Fund to recover any compensation paid by the Fund to any claimant
pursuant to this Act, and all costs incurred by the Fund by reason of
the claim, including interest , ncluding prejudgment interest),
administrative and adjudicative costs, and attorney’s fees. Such an
action may be commenced against any responsible party or (subject
to section 1016) guarantor, or against any other person who is liable,
pursuant to any law, to the compensated claimant or to the Fund,
for the cost or damages for which the compensation was paid. Such
an action shall be commenced against the responsible foreign
government or other responsible party to recover any removal costs
or damages paid from the Fund as the result of the discharge, or
substantial threat of discharge, of oil from a foreign offshore unit.
Ł2716 SEC. 1016 FINANCIAL RESPONSIBILITY.
(a) REQUIREMENT.—The responsible party for—
(1) any vessel over 300 gross tons (except a non-self-propelled
vessel that does not carry oil as cargo or fuel) using any place
subject to the jurisdiction of the United States; or
(2) any vessel using the waters of the exclusive economic zone
to transship or lighter oil destined for a place subject to the
jurisdiction of the United States;
shall establish and maintain, in accordance with regulations
promulgated by the Secretary, evidence of financial responsibility
sufficient to meet the maximum amount of liability to which, in the
case of a tank vessel, the responsible party could be subject under
section 1004 (aXi) or (d) of this Act, or to which, in the case of any
other vessel, the responsible party could be subjected under section
1004 (aX2) or (d), in a case where the responsible party would be
entitled to limit liability under that section. If the responsible party
owns or operates more than one vessel, evidence of financial respon-
sibility need be established only to meet the amount of the maxi-
mum ty applic ’I ’e to the vessel having the greatest maximum
liabil
“—‘C.
(1) WITHHOLDING CLEARANCE—The Secretary of the Treasury
shall withhold or revoke the clearance required by section 4197
of the Revised Statutes of the United States of any vessel
subject to this section that does not have the evidence of finan-
cial responsibility required for the vessel under this section.
(2) DENYING ENTRY TO OR DETAINING VESSELS.—The Secretary
may—
(A) deny entry to any vessel to any place in the United
States, or to the navigable waters, or
(B) detain at the place,
any vessel that, upon request, does not produce the evidence of
financial responsibility required for the vessel under this sec-
tion.
(3) SEiZURE OF VESSEL—Any vessel subject to the require-
ments of this section which is found in the navigable waters
without the necessary evidence of financial responsibility for
the vessel shall be subject to seizure by and forfeiture to the
United States.
(c) OrrSH0RE FACILITIES.—
(1) IN GENERAL.—Except as provided in paragraph (2), each
responsible party with respect to an offshore facility shall estab-
lish and maintain evidence of financial responsibility of
$150,000,000 to meet the amount of liability to which the
responsible party could be subjected under section 1004(a) in a
case in which the responsible party would be entitled to limit
liability under that section. In a case in which a person is the
responsible party for more than one facility subject to this
subsection, evidence of financial responsibility need be estab-
lished only to meet the maximum liability applicable to the
facility having the greatest maximum liability.
(2) DEEPWATER poRrs.—Each responsible party with respect to
a deepwater port shall establish and maintain evidence of finan-
cial responsibility sufficient to meet the maximum amount of
liability to which the responsible party could be subjected under
section 1004(a) of this Act in a case where the responsible party
would be entitled to limit liability under that section. If the
Secretary exercises the authority under section 1004(dX2) to
lower the limit of liability for deepwater ports, the responsible
party shall establish and maintain evidence of financial respon-
sibility sufficient to meet the maximum amount of liability so
established In a case in which a person is the responsible party
for more than one deepwater port, evidence of financial respon-
sibility need be established only to meet the maximum liability
applicable to the deepwater port having the greatest maximum
liability.
(e) METHoDs OF FINANCIAL RESPONsIBILFFY.—Financial responsibil-
ity under this section may he established by any one, or by any
combination, of the following methods which the Secretary (in the
case of vessel)or the President (in the case of a facility) determines
to be acceptable: evidence of insurance, surety bond, guarantee,
letter of credit, qualification as a self-in ..i cr, or other evidence of
financial responsibility. Any bond filed shall be issued by a bonding
company authorized to do business in the United States. In promul-
gating requirements under this section, the Secretary or th ‘si-
dent, as appropriate, may specify policy or other contractua is,
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4 STAT. 504 PUBLIC LAW 101-380—AUG 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STA”
able, in establishing evidence of financial responsibility to effectuate
the purposes of this Act
(1) CLAIMS AGAINST GUARANTOR.—Afly claim for which liability
may be established under section 1002 may be asserted directly
against any guarantor providing evidence of financial responsibility
for a responsible party liable under that section for removal costs
and damages to which the claim pertains In defending against such
a claim, the guarantor may invoke (1) all rights and defenses which
would be available to the responsible party under this Act, (2) any
defense authorized under subsection (e), and (3) the defense that the
incident was caused by the willful misconduct of the responsible
party. The guarantor may not invoke any other defense that might
be available in proceedings brought by the responsible party against
the guarantor.
(g) LIMITATiON ON GUARANTOR’S LIAB1UTv.—Nothing in this Act
shall impose liability with respect to an incident on any guarantor
for damages or removal costs which exceed, in the aggregate, the
amount of financial responsibility required under this Act which
that guarantor has provided for a responsible party.
(h) CONTINUATION OF REGULATIONS —Any regulation relating to
financial responsibility, which has been issued pursuant to any
provision of law repealed or superseded by this Act, and which is in
effect on the date immediately preceding the effective date of this
Act, is deemed and shall be construed to be a regulation issued
pursuant to this section. Such ,regulation shall remain in full force
and effect unless and until superseded by a new regulation issued
under this section
Ci) UNIFIED CERTIFICATE —The Secretary may issue a single uni-
fied certificate of financial responsibility for purposes of this Act
and any other law.
‘ SC 2717 SEC 1017 LITIGATION. JURISDICTION, AND VENUE
(a) REVIEW OF REGULATIONS.—Review of any regulation promul-
gated under this Act may be had upon application by any interested
person only in the Circuit Court of Appeals of the United States for
the District of Cotumbia. Any such application shall be made within
00 days from the date of promulgation of such regulations. Any
matter with respect to which review could have been obtained under
this subsection shall not be subject to judicial review in any civil or
criminal proceeding for enforcement or to obtain damages or recov-
ery of response costs.
(b) JURISDICTION.—Except as provided in subsections (a) and (c),
the United States district courts shall have exclusive original juris-
diction over all controversies arising under this Act, without regard
to the citizenship of the parties or the amount in controversy. Venue
shall lie in any district in which the discharge or injury or damages
occurred, or in which the defendant resides, may be found, has its
principal office, or has appointed an agent for service of process. For
the purposes of this section, the Fund shall reside in the District of
Columbia
(c) STATE COURT JURISNCTION —A State trial court of competent
jurisdiction over claims for removal cost.s or damages, as defined
under this Act, may consider claims under this Act or State law and
any final judgment of such court (when no longer subject to ordinary
forms of review) shall be recognized, valid, and enforceable for all
purposes of this Act
(d) ASSESSMENT AND COLLECTION OP TAX.—The provisions of
subsections (a), (b), and (c) shall not apply to any controversy or
other matter resulting from the assessment or collection of any tax,
or to the review of any regulation promulgated under the Internal -
Revenue Code of 1986.
(e) SAVINGS PRovIsIoN.—Nothing in this title shall apply to an
cause of action or right of recovery arising from any incident whic
occurred prior to the date of enactment of this title. Such claims
shall be adjudicated pursuant to the law applicable on the date of
the incident.
(f) PERIOD OF LIMITATIONS.—
(1) DAMAGES—EXCept as provided in paragraphs (3) and (4),
an action for damages under this Act shall be barred unless the
action is brought within 3 years after—
(A) the date on which the loss and the connection of the
loss with the discharge in question are reasonably discover-
able with the exercise of due care, or
(B) in the case of natural resource damages under section
1002(bX2XA), the date of completion of the natural re-
sources damage assessment under section 1006(c).
(2) REMOVAL cos’rs.—An action for recovery of removal costs
referred to in section 1002(bXl) must be commenced within 3
years after completion of the removal action. In any such action
described in this subsection, the court shall enter a declaratory
judgment on liability for removal costs or damages that will be
binding on any subsequent action or actions to recover further
removal costs or damages. Except as otherwise provided in this
paragraph, an action may be commenced under this title for
recovery of removal costs at any time after such costs have been
incurred.
(3) CONTRIBUTION.—NO action for contribution for any re-
moval costs or damages may be commenced more than 3 years
after—
(A) the date of judgment in any action under this Act for
recovery of such costs or damages, or
(B) the date of entry of a judicially approved settlement
with respect to such costs or damages.
(4) SUBROGATION —No action based on rights subrogated
pursuant to this Act by reason of payment of a claim may be
commenced under this Act more than 3 years after the date of
payment of such claim
(5) COMMENCEMENT—The time limitations contained herein
shall not begin to run—
(A) against a minor until the earlier of the date when
such minor reaches 18 years of age or the date on which a
legal representative is duly appointed for such minor, or
(B) against an incompetent person until the earlier of the
date on which such incompetent’s incompetency ends or the
date on which a legal representative is duly appointed for
such incompetent.
SEC. 1018. RELATIONSHIP TO OTHER LAW.
(a) PRESERVATION OF STATE AUTHORITIES; SOLD) WASTE DISPOSAL
Acr.—Nothing in this Act or the Act of March 3, 1851 shall—
(1) affect, or be construed or interpreted as preempting, the
. ,,,, , ,. ,, ,-.,., - r r.. , ,-.-.
33 USC
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STAT. 506 PUBLIC LAW 101-380--AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT. 5
imposing any additional liability or requirements with resoect
to—
(A) the discharge of oil or other pollution by oil within
such State; or
(B) any removal activities in connection with such a
discharge; or
(2) affect, or be construed or interpreted to affect or modify in
any way the obligations or liabilities of any person under the
Solid Waste Disposal Act (42 US.C. 6901 et seq) or State law,
including common law.
(b) PRESEaVATION OF STATE FuNDs.—Nothing in this Act or in
section 9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509)
shall in any way affect, or be construed to affect, the authority of
any State—
(1) to establish, or to continue in effect, a fund any purpose of
which is to pay for costs or damages arising out of, or directly
resulting from, oil pollution or the substantial threat of oil
pollution, or
(2) to require any person to contribute to such a fund.
Cc) ADDITION AL REQUIREMENTS AND LlAmLrrlEs, PENALTIES.—NOth-
ing in this Act, the Act of March 3, 1851 (46 U.S C. 183 et seq.), or
section 9509 of the Internal Revenue Code of 1986 (26 U.S C. 9509),
shall in any way affect, or be construed to affect, the authority of
the United States or any State or political subdivision thereof—
(1) to impose additional lia, ility or additional requirements;
or
(2) to impose, or to determine the amount of, any fine or
penalty (whether criminal or civil in nature) for any violation of
law;
relating to the discharge or substantial threat of a discharge, of oil.
Cd) FEDERAL EMPLOYEE Lt&aiu’ry.—For purposes of section
2679(bX2XB) of title 28, United States Code, nothing in this Act shall
be construed to authorize or create a cause of action against a
Federal officer or employee in the officer’s or employee’s personal or
individual capacity for any act or omission while acting within the
scope of the officer’s or employee’s office or employment.
2719 SEC. 1019. STATE FINANCIAL RESPONSIBILITY.
A State may enforce, on the navigable waters of the State, the
requirements for evidence of financial responsibility under section
1016.
2701 SEC 1020. APPLICATION.
This Act shall apply to an incident occurring after the date of the
enactment of this Act.
TITLE Il—CONFORMING AMENDMENTS
SEC. 2001. INTERVENTION ON THE HIGU SEAS ACT.
Section 17 of the Intervention on the High Seas Act (33 U.S.C.
1486) is amended to read a , follows
“SEC. J1 The Oil Spill Liability Trust Fund shall be available to
the Sec , for actions taken under sections 5 and ‘7 of this Act.”
SEC. 2002. FEDERAL WATER POLLUTION CONTROL ACT.
(a) APPUcA1I0N.—Subsections (f), (g), (h), and (i) of section 3 1 of
the Federal Water Pollution Control Act (33 U.S.C. 1321) shall not
apply with respect to any incident for which liability is established
under section 1002 of this Act.
(b) CONFORMING AMENDMEN .—SeCt!on 311 of the Federal Water
Pollution Control Act (33 U.S.C. 1321) is amended as follows:
(1) Subsection (i) is amended by striking “(1)” after “(i)” and
by striking paragraphs (2) and (3).
(2) Subsection (k) is repealed. Any amounts remaining in the
revolving fund established under that subsection shall be depos-
ited in the Fund. The Fund shall assume all liability incurred
by the revolving fund established under that subsection.
(3) subsection (1) is amended by striking the second sentence.
(4) Subsection (p) is repealed.
(5) The following is added at the end thereof:
“(s) The Oil Spill Liability Trust Fund established under section
9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509) shall be
available to carry out subsections (b), (C), (d), (j), and (1) as those
subsections apply to discharges, and substantial threats of dis-
charges, of oil. Any amounts received by the United States under
this section shall be deposited in the Oil Spill Liability Trust Fund.”.
SEC. 2003. DEEPWATER PORT ACT.
(a) CONFORMING AMENDMENTS.—The Deepwater Port Act of 1974
(33 U.S.C. 1502 et seq.) is amended—
(1) in section 4(cXl) by striking “section 18(1) of this Act;” and
inserting “section 1016 of the Oil Pollution Act of 1990”; arid
(2) by striking section 18.
(b) AMOUNTS REMAINING IN DEEPWAEER PORT FUND.—Ar’y
amounts remaining in the Deepwater Port Liability Fund estab-
lished under section 18(f) of the Deepwater Port Act of 1974 (33
U.S.C. 1517(0) shall be deposited in the Oil Spill Liability Trust
Fund established under section 9509 of the Internal Revenue Code of
1986 (26 U S.C. 9509). The Oil Spill Liability Trust Fund shall
assume all liability incurred by the Deepwater Port Liability Fund.
SEC. 2004. OUTER CONTINENTAL SHELF LANDS ACT AMENDMENTS OF Repeal
1978.
Title III of the Outer Continental Shelf Lands Act Amendments of
1978 (43 U.S C. 1811-1824) is repealed. Any amounts remaining in
the Offshore Oil Pollution Compensation Fund established under
section 302 of that title (43 U.S.C. 1812) shall be deposited in the Oil
Spill Liability Trust Fund established under section 9509 of the
Internal Revenue Code of 1986 (26 U.S.C. 9509). The Oil Spill
Liability Trust Fund shall assume all liability incurred by the
Offshore Oil Pollution Compensation Fund.
TITLE Ill—INTERNATIONAL OIL
POLLUTION PREVENTION AND REMOVAL
SEC. 3001. SENSE OF CONGRESS REGARDING PARTICIPATION IN lN’-
NATION AL REGIME.
33 USC 1321
note
33 USC 1321
note
33 USC 1503
33 USC 1517
26 US t 9509
note
26 USC 9509
note
It is the sense of the Congress that it is in the best interests oi
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04 STAT. 508 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT
ity and compensation regime that is at least as effective as Federal
and State laws in preventing incidents and in guaranteeing full and
prompt compensation for damages resulting from incidents
SEC. 3002. UNITED STATES-CANADA GREAT LAKES OIL SPILL COOPERA-
TION.
(a) REvIEw.—The Secretary of State shall review relevant inter-
national agreements and treaties with the Government of Canada,
including the Great Lakes -Water Quality Agreement, to determine
whether amendments or additionaL international agreements are
necessary
(1) prevent discharges of oil on the Great Lakes;
(2) ensure an immediate and effective removal of oil on the
Great Lakes, and
(3) fully compensate those who are injured by a discharge of
oil on the Great Lakes
(b) CONSULTATION.—In carrying out this section, the Secretary of
State shall consult with the Department of Transportation, the
Environmental Protection Agency, the National Oceanic and At-
mospheric Administration, the Great Lakes States, the Inter-
national Joint Commission, and other appropriate agencies.
(c) REPORT —The Secretary of State shall submit a report to the
Congress on the results of the review under this section within 6
months after the date of the enactment of this Act.
SEC. 3003. UNITED STATES.CANMIA LAKE CHAMPLAIN OIL SPILL CO-
OPERATiON.
(a) REVIEW —The Secretary of State shall review relevant inter-
national a reement.s and treaties with the Government of Canada,
to determine whether amendments or additional international
agreements are necessary to—
(1) prevent discharges of oil on Lake Champlain;
(2) ensure an immediate and effective removal of oil on Lake
Champlain; and
(3) fully compensate those who are injured by a discharge of
oil on Lake Champlain
(b) CONSULTATION —In carrying out this section, the Secretary of
State shall consult with the Department of Transportation, the
Environmental Protection Agency, the National Oceanic and At-
rnospheric Administration, the States of Vermont and New York,
the International Joint Commission, and other appropriate agencies
(c) REPORT.—The Secretary of State shall submit a re t to the
Congress on the results of the review under this section within 6
months after the date of the enactment of this Act.
SEC. 3004. INTERNATIONAL INVENTORY OF REMOVAL EQUW 1 AND
PERSONNEL.
The President shall encourage appropriate international ganiza-
tioris to establish an international inventory of spill g* n iva1 equip-
ment and personnel.
SEC. 3005 NEGOTIATIONS WITH CANADA CONC 4ING YUC * rrs IN
PUGET SOUND
Congress urges the Secretary of State to ‘enter into n ot *ions
with the Government of Canada to ens te that 1 bcM O ts are
required for all tank vesse’s with a o 4 O ea w’eight
tons in the Strait of Juan de P ea and n t4ay i + n I
TITLE IV—PREVENTION AND REMOVAL
Subtitle A—Prevention
SEC. 4101. REVIEW OF ALCOHOL AND DRUG ABUSE AND OTHER MATYERS
IN ISSUING LICENSES, CERTIFICATES OF REGISTRY AND
MERCHANT MARINERS’ DOCUMENTS.
(a) LiCENSES AND CERTIFiCATES or R&ismy.—Section 7101 of title
46, United States Code, is amended by adding at the end the
following.
“(g) The Secretary may not issue a license or certificate of registry
under this section unless an individual applying for the license or
certificate makes available to the Secretary, under section 206(bX7)
of the National Driver Register Act of 1982 (23 U.S.C. 401 note), any
information contained in the National Driver Register related to an
offense described in section 205(aX3) (A) or (B) of that Act committed
by the individual.
“ h) The Secretary may review the criminal record of an individ-
ual who applies for a license or certificate of registry under this
section.
“(1) The Secretary shall require the testing of an individual who
applies for issuance or renewal of a license or certificate of registry
under this chapter for use of a dangerous drug in violation of law or
Federal regulation.”.
(b) MERCHANT MARINERS’ DOCUMENTS.—SeCtiOIl ‘7302 of title 16,
United States Code, is amended by adding at the end the following:
“(c) The Secretary may not issue a merchant mariner’s document
under this chapter unless the individual applying for the document
makes available to the Secretary, under section 206(bX7) of the
National Driver Register Act of 1982 (23 U.S.C. 401 note), any
information contained in the National Driver Register related to an
offense described in section 205(aX3) (A) or (B) of that Act committed
by the individual.
“(d) The Secretary may review the criminal record of an individ-
ual who applies for a merchant mariner’s document under this
section.
“(e) The Secretary shall require the testing of an individual
applying for issuance or renewal of a merchant mariner’s document
under this chapter for the use of a dangerous drug in violation of
law or Federal regulation “.
SEC. 1102. TERM OF LICENSES, CERTIFICATES OF REGISTRY. AND MER-
CHANT MARINERS’ DOCUMENTS; CRIMINAL RECORD RE-
VIEWS IN RENEWALS.
(a) LIcENsE5.—Section 7106 of title 46, United States Code, is
amended by inserting ‘and may be renewed for additional 5-year
periods” after “is valid for 5 years”.
(b) CERTIFICATES OF REG ISTRY.—Section 7107 of title 46, United
States Code, is amended by striking “is not limited in duration.” and
inserting “is valid for 5 years and may be renewed for additional 5-
year periods “.
(c) MERCHANT MARINERS’ DOCUMENTS.SectiOfl 7302 of title 46,
United States Code, is amended by adding at the end the following
“0) A merchant mariner’s document issued under this chapter is
valirl for 1 mAy hp rpnpwpd for ndditinn I c.voor nnro k
(rmont
ew York
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STAT. 510 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT
(d) TERMINATiON OF ExIs ’FING LIcENsES, CERTrFICATES, AND Docu-
MENTS.—A license, certificate of registry, or merchant mariner’s
document issued before the date of the enactment of this section
terminates on the day it would have expired if—
(1) subsections (a), (b), and (c) were in effect on the date it was
issued; and
(2) it was renewed at the end of each 5-year period under
section 7106, 7107, or 7302 of title 46, United Stat.ea Code.
(e) CRIMINAL RECORD REVIEW IN RENEWALS or LICENSES AND
CERTIFICATES OF REGIs’rlw.—
(1) IN OENERAL.—SeCtIOfl 7109 of’ title 46, United States Code,
is amended to read as follows:
“9 7109. Review of criminal records
“The Secretary may review the criminal record of each holder of a
license or certificate of registry issued under this part who applies
for renewal of that license or certificate of registry’.
(2) CLERICAL AMENDMENT.—The analysis for chapter 71 of title
46, United States Code, is amended by striking the item relating
to section 7109 and inserting the following:
“7109 Review of criminal records”
SEC .1103 SUSPENSION AND REVOCATION OF LICENSES. CERTIFICATES
OF REGISTRY. AND MERChANT MARINERS’ DOCUMENTS FOR
ALCOHOL AND DRUG ABUSE.
(a) AVAILABILITY OF INF0RMATrnN IN NATIONAL DRIVER REG-
ISTER —
(1) IN GENERAL —Section 7702 of title 46, United States Code,
is amended by adding at the end the following
“(cXl) The Secretary shall request a holder of a license, certificate
of registry, or merchant mariner’s document to make available to
the Secretary, under section 206(bX4) of the National Driver Reg-
ister Act of 1982 (23 U S C 401 note), all information contained in
the National Driver Register related to an offense described in
section 205(aX3) (A) or (B) of that Act committed by the individual
“(2) The Secretary shall require the testing of the holder of a
license, certificate of registry, or merchant mariner’s document for
use of alcohol and dangerous drugs in violation of law or Federal
regulation The testing may include preemployment (with respect to
dangerous drugs only), periodic, random, reasonable cause, and post
accident testing.
“(d xl) The Secretary may temporarily, for not more than 45 days,
suspend and take ossession of the license, certificate of registry, or
merchant manner a document held by an individual if, when acting
under the authority of that license, certificate, or document—
“(A) that individual performs a safety sensitive function on a
vessel, as determined by the Secretary; and
“(B) there is probable cause to believe that the individual—
“(i) has performed the safety sensitive function in viola.
tion of law or Federal regulation regarding use of alcohol or
a dangerous drug;
“(ii) has been convicted of an offense that would prevent
the issuance or renewal of the license, certificate, or docu-
—‘ent; or
‘(iii) within the 3-year period preceding the initiation of a
.pension proceeding, has been convicted of an offense
described in section 205(aX3) (A) or (B) of the National
Driver Register Act of 1982.
“(2) If a license, certificate, or document is temporarily suspended
under this section, an expedited hearing under subsection (a) of this
section shall be held within 30 days after the temporary susper-i-
Sian.”.
(2) DEr iNmoN OF DANGEROUS DRUG.—(A) Section 2101 of title
46, United States Code, is amended by inserting after paragraph
(8) the following new paragraph:
“(8a) 1 dangerous drug’ means a narcotic drug, a controlled
substance, or a controlled substance analog (as defined in sec-
tion 102 of the Comprehensive Drug Abuse and Control Act of
1970 (21 U.S.C. 802)).’.
(B) Sections 7503(a) and 7704(a) of title 46, United States Code,
are repealed.
(b) BASES FOR SUSPENSION OR REvocA’rIoN.—Section 7703 of title
46, United States Code, is amended to read as follows:
“9 7702. Bases for suspension or revocation
“A license, certificate of registry, or merchant mariner’s docu-
ment issued by the Secretary may be suspended or revoked if the
holder—
“(1) when acting under the authority of that license, cer-tifi-
cate, or document—
“(A) has violated or fails to comply with this subtitle, a
regulation prescribed under this subtitle, or any other law
or regulation intended to promote marine safety or to
protect navigable waters; or
“(B) has committed an act of incompetence, misconduct,
or negligence;
“(2) is convicted of an offense that would prevent the issuance
or renewal of a license, certificate of registry, or merchant
mariner’s document; or
“(3) within the 3-year period preceding the initiation of the
suspension or revocation proceeding is convicted of an offense
described in section 20 5 (aX3) (A) or (B) of the National Driver
Register Act of 1982 (23 U.S.C. 401 note).”.
(c) TERMINATION OF REvocA’rIoN.—Section 7701(c) of title 46,
United States Code, is amended to read as follows:
“(c) When a license, certificate of registry, or merchant mariner’s
document has been revoked under this chapter, the former holder
may be issued a new license, certificate of registry, or merchant
mariner’s document only after—
“(1) the Secretary decides, under regulations prescribed by Regulotion
the Secretary, that the issuance is compatible with the require-
ment of good discipline and safety at sea; and
“(2) the former holder provides satisfactory proof that the
bases for revocation are no longer valid.”.
SEC. 4104. REMOVAL OF MASTER OR INDIVIDUAL IN CHARGE.
Section 8101 of title 46, United States Code, is amended by adding
at the end the following
“(i) When the 2 next most senior licensed officers on a v ’ sel
reasonably believe that the master or indi idual in charge e
vessel is under the influence of alcohol or a dangerous drug s
,r,rnnnl-,ln , ,ç , ,, , , .__._._ .1 .. _ I
JSC 7106
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14 STAT. 512 PUBLIC LAW 101-380-—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT
mate, or operator licensed under section 7101(c) (1) or (3) of this title
shall—
“(1) temporarily relieve the master or individual in charge;
“(2) temporarily take command of the vessel;
“(3) in the case of a vessel required to have a log under
chapter 113 of this title, immediately enter the details of the
incident in the log; and
“(4) report those details to the Secretary—
“(A) by the most expeditious means available; and
“(B) in written form transmitted within 12 hours after
the vessel arrives at its next port”.
SEC 4105. ACCESS TO NATIONAL DRIVER REGISTER.
(a) AccEss ro REGISTER —Section 206(b) of the National Driver
Register Act of 1982 (23 U.S.C. 401 note) is amended—
(1) by redesignating the second paragraph (5) (as added to the
end of that section by section 4(bXl) of the Rail Safety Improve-
ment Act of 1988) as paragraph (6); and
(2) by adding at the end the followingS
“(7XA) Any individual who holds or who has applied for a license
or certificate of registry under section 7101 of title 46, United States
Code, or a merchant mariner’s document under section 7302 of title
46, United States Code, may request the chief driver licensing
official of a State to transmit to the Secretary of the department in
which the Coast Guard is ope ting in accordance with subsection
(a) information regarding the Thotor vehicle driving record of the
individual
“(B) The Secretary—
“(i) may receive information transmitted by the chief driver
licensing official of a State pursuant to a request under subpara.
graph (A);
“(ii) shall make the information available to the individual for
review and written comment before denying, suspending, or
revoking the license, certificate of registry, or merchant marl-
ner’s document of the individual based on that information and
before using that information in any action taken under chap.
ter 77 of title 46, United States Code; and
“(iii) may not otherwise divulge or use that information,
except for the purposes of section 1101, 7302, or 7703 of title 46,
United States Code
“(C) Information regarding the motor vehicle driving record of an
individual may not be transmitted to the Secretary under this
paragraph if the information was entered in the Register more than
3 years before the date of the request for the information, unless the
information relates to revocations or suspensions that are still in
effect on the date of the request. Information submitted to the
Register by States under the Act of July 14, 1960 (74 Stat. 526), or
under this title shall be subject to access for the purpose of this
paragraph during the transition to the Register described under
section 203(c) of this title “.
(b)CONF0RMING AMENDMENTS —
(1) REvIEW OF INFORMATION RECEIVED FROM REGISTER.—Chap-
ter 75 of title 46, United States Code, is amended by adding at
the end the foIlowing -
“ 7505. Review of information in National Driver Register
“The Secretary shall make information received from the Na-
tional Driver Register under section 206(bX7) of the National Driver
Register Act of 1982 (23 U S.C. 401 note) available to an individual
for review and written comment before denying, suspending, revok-
ing, or taking any other action relating to a license, certificate of
registry, or merchant manner’s document authorized to be issued
for that individual under this part, based on that information.”.
(2) PENALTY FOR NEGUGE}I1’ OPERATION OF VESSEL.—SectiOfl
2302(c) of title 46, United States Code, is amended by striking
“intoxicated” and inserting “under the influence of alcohol, or a
dangerous drug in violation of a law of the United States”.
(c) CLERICAL AMENDMENT.—The analysis for chapter 75 of title 46,
United States Code, is amended by adding at the end the following:
‘7505 Review of information in Nationa’ Driver Ragieter.”
SEC. 4106. MANNING STANDARDS FOR FOREIGN TANK VESSELS.
(a) STANDARDS FOR FOREIGN Taiuc VESSELS.—SeCtiOn 9101(a) of
title 46. United States Code, is amended to read as follows:
“(aXi) The Secretary shall evaluate the manning, training, quali-
fication, and watchkeeping standards of a foreign country that
issues documentation for any vessel to which chapter 37 of this title
applies—
“(A) on a periodic basis; and
“(B) when the vessel is involved in a marine casualty required
to be reported under section 6101(a) (4) or (5) of this title.
“(2) After each evaluation made under paragraph (1) of this
subsection, the Secretary shall determine whether—
“(A) the foreign country has standards for licensing and
certification of seamen that are at least equivalent to United
States law or international standards accepted by the United
States; and
“(B) those standards are being enforced.
“(3) if the Secretary determines under this subsection that a
country has failed to maintain or enforce standards at least equiva-
lent to United States law or international standards accepted by the
United States, the Secretary shall prohibit vessels issued docu-
mentation by that country from entering the United States until the
Secretary determines those standards have been established and are
being enforced.
“(4) The Secretary may allow provisional entry of a vessel prohih-
ited from entering the United States under paragraph (3) of this
subsection if—
“(A) the owner or operator of the vessel establishes, to the
satisfaction of the Secretary, that the vessel is not unsafe or a
threat to the marine environment; or
“(B) the entry is necessary for the safety of the vessel or
individuals on the vessel.”.
(b) REIORTING MARINE CASUALTIES —
(1) REPORTING REQUIREMENT.—Section 6101(a) of title 46,
United States Code, is amended by adding at the end the
following
“(5) significant harm to the environment.”
(2) APPLICATION TO FOREIGN VESSELS —Section 6101(d) of title
46, United States Code, is amended—
(A by inscrtin “(1)” befbre “This part” ani
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STAT. 514 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT.
(Bi by adding at the end the following:
“(2) This part applies, to the extent consistent with generally
recognized principles of international law, to a foreign vessel con-
structed or adapted to carry, or that carries, oil in bulk as cargo or
cargo residue involved in a marine casualty described under subsec-
tion (a) (4) or (5) in waters subject to the jurisdiction of the United
States, including the Exclusive Economic Zone”.
(c) TECHNICAL AND CONFORMING AMENDMENTS.—SeCtiOrt 9(a) of
the Ports and Waterways Safety Act (33 U S.C. 1228(a)) is
amended—
(1) in the matter preceding paragraph (1), by striking “section
4417a of the Revised Statutes, as amended,” and inserting
“chapter 37 of title 46, United States Code,”;
(2) in paragraph (2), by striking “section 44 ha of the Revised
Statutes, as amended,” and inserting “chapter 37 of title 46,
United States Code,”; and
(3) in paragraph (5), by striking “section 441 ’7aUl) of the
Revised Statutes, as amended,” and inserting “section 9101 of
title 46, United States Code,”.
SEC. 4107. VESSEL TRAFFIC SERVICE SYSTEMS.
(a) IN GENEn L.—Section 4(a) of the Ports and Waterways Safety
Act (33 U.S.C. 1223(a)) is amended—
(1) by striking “Secretary may—” and inserting “Secre-
ary—”;
(2) in paragraph (1) by striking “establish, operate, and main-
tain” and inserting “may construct, operate, maintain, improve,
or expand”;
(3) in paragraph (2) by striking “require” and inserting “shall
require appropriate”;
(4) in paragraph (3) by inserting “may” before “require”;
(5) in paragraph (4) by inserting ‘may” before “control’; and
(6) in paragraph (5) by inserting “may” before “require”.
(b) DIIIECnON OF VESSEL MOVEMEWr —
(1) Snjov.—The Secretary shall conduct a study—
(A) of whether the Secretary should be given additional
authority to direct the movement of vessels on navigable
waters and should exercise such authority; and
(B) to determine and prioritize the United States ports
and channels that are in need of new, expanded, or im-
proved vessel traffic service systems, by evaluating—
(i) the nature, volume, and frequency of vessel traffic;
(ii) the risks of collisions, spills, and damages associ-
ated with that traffic,
(ui) the impact of installation, expansion, or improve-
ment of a vessel traffic service system, and
(iv) all other relevant costs and data.
(2) REPoa’r.—Not later than 1 year after the date of the
enactment of this Act, the Secretary shall submit to the Con-
gress a report on the results of the study conducted under
paragraph (1) and recommendations for implementing the re-
suits of that study
SEC. 4108 GREAT LAKES PILOTAGE
(a) WHO MAY SERVE AS PILOT ON UITDESIGNATED
Ga CE WATERS —Section 9302(b) of title 46, United States
Code, .iended to read as follows:
“(b) A member of the complement of a vessel of the United States
operating on register or of a vessel of Canada may serve as the pilot
required on waters not designated by the President if the member is
licensed under section 7101 of this title, or under equivalent provi-
sions of Canadian law, to direct the navigation of the vessel on the
waters being navigated.”.
(b) PENALTIES.—Section 9308 of title 46, United States Code, is
amended in each of subsections (a), (b), and (c) by striking “$500”
and inserting “no more than $10,000”.
SEC. 4109. PERIODIC GAUGING OF PLATING THICKNESS OF COMMERCIAL
VESSELS.
Not later than 1 year after the date of the enactment of this Act,
the Secretary shall issue regulations for vessels constructed or
adapted to carry, or that carry, oil in bulk as cargo or cargo
residue—
(1) establishing minimum standards for plating thickness; and
(2) requiring, consistent with generally recognized principles
of international law, periodic gauging of the plating thickness of
all such vessels over 30 years old operating on the navigable
waters or the waters of the exclusive economic zone.
SEC. 4110. OVERFILL AND TANK LEVEL OR PRESSURE MONITORING DE-
VICES.
(a) STANDARDS.—NOt later than 1 year after the date of the
enactment of this Act, the Secretary shall establish, by regulation,
minimum standards for devices for warning persons of overfills and
tank levels of oil in cargo tanks and devices for monitoring the
pressure of oil cargo tanks.
(b)Usg.—Not later than 1 year after the date of the enactment of
this Act, the Secretary shall issue regulations establishing, consist-
ent with generally recognized principles of international law,
requirements concerning the use of—
(1) overfill devices, and
(2) tank level or pressure monitoring devices,
which are referred to in subsection (a) and which meet the standards
established by the Secretary under subsection (a), on vessels con-
structed or adapted to carry, or that carry, oil in bulk as cargo or
cargo residue on the navigable waters and the waters of the exclu-
sive economic zone.
SEC. 4111. STUDY ON TANKER NAVIGATION SAFETY STANDARDS.
(a) IN GENERAL.—NOt later than 1 year after the date of enact-
ment of this Act, the Secretary shall initiate a study to determine
whether existing laws and regulations are adequate to ensure the
safe navigation of vessels transporting oil or hazardous substances
in bulk on the navigable waters and the waters of the exclusive
economic zone.
(b)Con’r r.—In conducting the study required under subsection
(a), the Secretary shall—
(1) determine appropriate crew sizes on tankers;
(2) evaluate the adequacy of qualifications and training of
crewrnembers on tankers;
(3) evaluate the ability of crewmembers on tankers to
emergency actions to prevent or remove a discharge of oh 4
46 USC 3703
note
Regu lot ,one
Regulatione
46 USC 3703
note
46 USC 3703
note
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I STAT. 516 PUBLIC LAW 101-380 —-AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT
(4) evaluate the adequacy of navigation equipment and sys-
tems on tankers (including sonar, electronic chart display, and
satellite technology), -
(5) evaluate and test electronic means of position-reporting
and identification on tankers, consider the minunum standards
suitable for equipment for that purpose, and determine whether
to require that equipment on tankers;
(6) evaluate the adequacy of navigation procedures under
different operating conditions, including such variables as
speed, daylight, ice, tides, weather, and other conditions;
(7) evaluate whether areas of navigable waters and the exclu-
sive economic zone should be designated as zones where the
movement of tankers should be limited or prohibited;
(8) evaluate whether inspection standards are adequate;
(9) review and incorporate the results of past studies, includ-
ing studies conducted by the Coast Guard and the Office of
Technology Assessment;
(10) evaluate the use of computer simulator courses for train-
irig bridge officers and pilots of vessels transporting oil or
hazardous substances on the navigable waters and waters of the
exclusive economic zone, and determine the feasibility and
practicality of mandating such training;
(11) evaluate the size, cargo capacity, and flag nation of
tankers transporting oil or hazardous substances on the navi-
gable waters and the waters of the exclusive economic zone—
(A) identifying chan s occurring over the past 20 years
in such size and cargo capacity and in vessel navigation and
technology; and
(B) evaluating the extent to which the risks or difficulties
associated with tanker navigation, vessel traffic control,
accidents, oil spills, and the containment and cleanup of
such spills are influenced by or related to an increase in
tanker size and cargo capacity; and
(12) evaluate and test a program of remote alcohol testing for
masters and pilots aboard tankers carrying significant quan-
tities of oil.
(c) REPORT —N0t later than 2 years after the date o’ enactment of
this Act, the Secretary shall transmit to the Congress a report on
the results of the study conducted under subsection (a), including
recommendations for implementing the results of that study.
SEC 4112 DREDGE MODIFICATION STUDY
(a) SniDy.—The Secretary of the Army shall conduct a study and
demonstration to determine the feasibility of modifying dredges to
make them usable in removing discharges of oil and hazardous
substances
(b) REPowr.—NOt later than 1 year after the date of enactment of
this Act, the Secretary of the Army shall submit to the Congress a
report on the results of the study conducted under subsection (a) and
recommendations for implementing the results of that study.
tdent of U S SEC. 4113 USE OF LINERS.
(a) Snrnv.—The President shall conduct a study to determine
whether liners or other secondary means of containment should be
used to prevent leaking or to aid in leak detection at onshore
facilities used for the bulk storage of oil and located near navigable
. v ‘i
(b) REP0RT.—Not later than 1 year after the date of enactment of
this Act, the President shall submit to the Congress a report on the
results of the study conducted under subsection (a) and rec-
ommendations to implement the results of the study.
(c) IMPLEMENTAT ION—NOt later than 6 months after the date the
report required under subsection (b) is submitted to the Congress,
the President shall implement the recommendations contained in
the report.
SEC. 4114. TANK VESSEL MANNING.
(a) RuLaMi KINo.—In order to protect life, property, and the
environment, the Secretary shall initiate a rulemaking proceeding
within 180 days after the date of the enactment of this Act to define
the conditions under, and designate the waters upon, which tank
vessels subject to section 3703 of title 46, United States Code, may
operate in the navigable waters with the auto-pilot engaged or
with an unattended engine room.
(b) WkrcHcs.—Section 8104 of title 46, United States Code, is
amended by adding at the end the following new subsection:
“(n) On a tanker, a licensed individual or seaman may not be
permitted to work more than 15 hours in any 24-hour period, or
more than 36 hours in any 72-hour period, except in an emergency
or a drill. In this subsection, ‘work’ includes any administrative
duties associated with the vessel whether performed on board the
vessel or onshore.”.
(c) MANNING REQuIREMENT.—SeCtiOn 8101(a) of title 46, United
States Code, is amended—
(1) by striking “and” at the end of paragraph (1);
(2) by strikin the period at the end of paragraph (2) and
inserting “; and’ ; and
(3) by adding at the end the following new paragraph:
“(3) a tank vessel shall consider the navigation, cargo han-
dling, and maintenance functions of that vessel for protection of
life, property, and the environment.”.
(d) STANDARDS.—SeCtiOn 9 102(a) of title 46, United States Code, is
amended—
(1) by striking “and” at the end of paragraph (6);
(2) by strikin the period at the end of paragraph (7) and
inserting “;and’ ; and
(3) by adding at the end the following new paragraph:
“(8) instruction in vessel maintenance functions.”.
(e) REC0RDS.—Section 7502 of title 46, United States Code, is
amended by striking “maintain records” and inserting “maintain
computerized records”.
SEC. 4115. ESTABLISHMENT OF DOUBLE HULL REQUIREMENT FOR TANK
VESSELS.
(a) DOUBLE Huu REQUIREMENT—ChaPter 37 of title 46, United
States Code, is amended by inserting after section 3703 the following
new section:
“ 3 ’703a Tank vessel construction standards
“(a) Except as otherwise provided in this section, a vessel to which
this chapter applies shall be equipped with a double hull—
“U) if it is constructed or adapted to carry, or carries, oil in
hnflr pg r ’nr n nr ,‘nr ”.
46 USC 37
note
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STAT. 518 PUBLIC LAW 101-380—AUG. 18, 1990
PU ! 1C iOl—380—AUG. 18, 1990 104 STAT.
“(2) when operating on the waters subject to the jurisdiction
of the United States, including the Exclusive Economic Zone.
“(b) This section does not apply to—
“(1) a vessel used only to respond to a discharge of oil or a
hazardous substance;
“(2) a vessel of less than 5,000 gross tons equipped with a
double containment system determined by the Secretary to be
as effective as a double hutl for the prevention of a discharge of
oil; or
“(3) before January 1, 2015—
“(A) a vessel unloading oil in bulk at a deepwater port
licensed under the Deepwater Port Act of 1974 (33 U.S.C.
1501 et seq.); or
“(B) a delivering vessel that is offloading in lightering
activities—
“(i) within a lightering zone established under section
3715(bX5) of this title, and
“(ii) more than 60 miles from the baseline from
which the territorial sea of the United States is meas-
ured.
‘(cXl) In this subsection, the age of a vessel is determined from
the later of the date on which the vessel—
“(A) is delivered after original construction;
“(B) is delivered after completion of a major conversion; or
“(C) had its appraised sah ge value determined by the Coast
Guard and is qualified for documentation under section 4136 of
the Revised Statutes of the United States (46 App U S C. 14).
“(2) A vessel of less than 5,000 gross tons for which a building
contract or contract for major conversion was placed before June 30,
1990, and that is delivered under that contract before January 1,
1994, and a vessel of less than 5,000 gross tons that had its appraised
salvage value determined by the Coast Guard before June 30. 1990,
and that qualifies for documentation under section 4136 of the
Revised Statutes of the United States (46 App. U.S.C. 14) before
January 1, 1994, may not operate in the navigable waters or the
Exclusive Economic Zone of the United States after January 1, 2015,
unless the vessel is equipped with a double hull or with a double
containment system determined by the Secretary to be as effective
as a double hull for the prevention of a discharge of oil.
“(3) A vessel for which a building contract or contract for major
conversion was placed before June 30, 1990. and that is delivered
under that contract before January 1, 1994, and a vessel that had its
appraised salvage value determined by the Coast Guard before June
30, 1990, and that qualifies for documentation under section 4136 of
the Revised Statutes of the United States (46 App. U.S.C. 14) before
January 1, 1994, may not operate in the navigable waters or Exclu-
sive Economic Zone of the United States unless equipped with a
double hull—
“(A) in the case of a vessel of at least 5,000 gross tons but less
than 15,000 gross tons—
“Ci) after January 1, 1995, if the vessel is 40 years old or
older and has a single hull, or is 45 years old or older and
has a double bottom or double sides;
“(ii) after January 1, 1996, if the vessel is 39 years old or
er arid has a single hull, or is 44 years old or older and
a double bottom or double sides:
“(iii) after January 1, 1997, if the vessel is 38 years old or
older and has a single hull, or is 43 years old or older and
has a double bottom or double sides;
“(iv) after January 1, 1998, if the vessel is 37 years old or
older and has a single hull, or is 42 years old or older and
has a double bottom or double sides;
“(v) after January 1, 1999, if the vessel is 36 years old or
older and has a single hull, or is 41 years old or’ older and
has a double bottom or double sides;
“(vi) after January 1, 2000, if the vessel is 35 years old or
older and has a single hull, or is 40 years old or older and
has a double bottom or double sides; and
“(vii) after January 1, 2005, if the vessel is 25 years old or
older and has a single hull, or is 30 years old or older and
has a double bottom or double sides;
“(B) in the case of a vessel of at least 15,000 gross tons but less
than 30,000 gross tons—
“(i) after January 1, 1995, if the vessel is 40 years old or
older and has a single hull, or is 45 years old or older and
has a double bottom or double sides;
“UI) after January 1, 1996, if the vessel is 38 years old or
older and has a single hull, or is 43 years old or older and
has a double bottom or double sides;
“(ili) after January 1, 1997, if the vessel is 36 years old or
older and has a single hull, or is 41 years old or older and
has a double bottom or double sides;
“(iv) after January 1, 1998, if the vessel is 34 years old or
older and has a single hull, or is 39 years old or older and
has a double bottom or double sides;
“(v) after January 1, 1999, if the vessel is 32 years old or
older and has a single hull, or 37 years old or older and has
a double bottom or double sides;
“(vi) after January 1, 2000, if the vessel is 30 years old or
older and has a single hull, or is 35 years old or older and
has a double bottom or double sides;
“(vii) after January 1, 2001, if the vessel is 29 years old or
older and has a single hull, or is 34 years old or older and
has a double bottom or double sides;,
“(viii) after January 1, 2002, if the vessel is 28 years old or
older and has a single hull, or is 33 years old or older and
has a double bottom or double sides;
“(ix) after January 1, 2003, if the vessel is 21 years old or
older and has a single hull, or is 32 years old or older and
has a double bottom or double sides;
“(x) after January 1, 2004, if the vessel is 26 years old or
older and has a single hull, or is 31 years old or older and
has a double bottom or double sides; and
“(xi) after January 1, 2005, if the vessel is 25 years old or
older and has a single hull, or is SC) years old or older and
} as a double bottom or double sides; and
“(C) in the case of a vessel of at least 30,000 gross tons—
“(i) after January 1, 1995, if the vessel is 28 years old or
older and has a single hull, or 33 years old or older and has
a double bottom or double sides;
“(ii) after January 1, 1996, if the vessel is 27 years’
older and has a single hull, or is 32 years old or old
has a double bottom or double sides’
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PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT.
STAT 520 PUBLIC LAW 101-380—AUG. 18, 1990
‘(iii) after January 1, 1997, if the vessel is 26 years old or
older and has a single hull, or is 31 years old or older and
has a double bottom or double sides;
“(iv) after January 1, 1998, if the vessel is 25 years old or
older and has a single hull, or is 30 years old or older and
has a double bottom or double sides;
“(v) after January 1, 1999, if the vessel is 24 years old or
older and has a single hull, or 29 years old or older and has
a double bottom or double sides, and
“(vi) after January 1, 2000, if the vessel is 23 years old or
older and has a single hull, or is 28 years old or older and
has a double bottom or double sides.
“(4) Except as provided in subsection (b) of this section—
“(A) a vessel that has a single hull may not operate after
January 1, 2010; and
“(B) a vessel that has a double bottom or double sides may not
operate after January 1, 2015.”.
SC :4703a (b) RULEMAKING —The Secretary shall, within 12 months after the
date of the enactment of this Act, complete a rulemaking proceeding
and issue a final rule to require that tank vessels over 5,000 gross
tons affected by section 3703a of title 46, United States Code, as
added by this section, comply until January 1, 2015, with structural
and operational requirements that the Secretary determines will
provide as substantial protection to the environment as is economi
cally and technologically feasible
(c) CLEIUCAL AMENDMENT.—Tl,e analysis for chapter 37 of title 46,
United States Code, is amended by inserting after the item relating
to section 3703 the followingS
“3703a. Tank vessel construction standards.”.
(d) LIGHTEnING REQUIREMENTS —Section 3715(a) of title 46, United
States Code, is amended—
(1) in paragraph (1), by striking “; and” and inserting a
semicolon,
(2) in paragraph (2), by striking the period and inserting
“ and”, and
(3) by adding at the end the following
“(3) the delivering and the receiving vessel had on board at
the time of transfer, a certificate of financial responsibility as
would have been required under section 1016 of the Oil Pollu-
tion Act of 1990, had the transfer taken place in a place subject
to the jurisdiction of the United States;
“(4) the delivering and the receiving vessel had on board at
the time of transfer, evidence that each vessel is operating in
compliance with section 311(j) of the Federal Water Pollution
Control Act (33 U S C. 1321(j)); and
“(5) the delivering and the receiving vessel are operating in
compliance with section 3703a of this title.”.
‘C 7O3a (e) SEC RsTARIAL S ruoiss —
(1) OTI-IER REQUIREMEN’FS.NOt later than 6 months after the
date of enactment of this Act, the Secretary shall determine,
based on recommendations from the National Academy of &i
ences or other qualified organizations, whether other structural
and operational tank vessel requirements will provide protec-
tion to the marine environment equal to or greater than that
provided by double hulls, and shall report to the Congress that
determination and recommendations for legislative action.
(2) REVIEW AND ASSESSMENT.—The Secretary shall—
(A) periodically review recommendations from the Na-
tional Academy of Sciences and other qualified organiza-
tions on methods for further increasing’the environmental
and operational safety of tank vessels;
(B) not later than 5 years after the date of enactment of
this Act, assess the impact of this section on the safety of
the marine environment and the economic viability and
operational makeup of the maritime oil transportation in-
dustry; and
(C) report the results of the review and assessment to the
Congress with recommendations for legislative or other
action.
(I) VcsssL FINANCING —Section 1104 of the Merchant Marine Act
of 1936 (46 App U.S C. 1274) is amended—
(1) by striking “SEc. 1104.” and inserting “Sac. 1104A.”; and
(2) by inserting after section 1104A (as redesignated by para-
graph U)) the following:
“Sne. ilOIB (a) Notwithstanding the provisions of this title,
except as provided in subsection (d) of this section, the Secretary,
upon the terms the Secretary may prescribe, may guarantee or
make a commitment to guarantee payment of the principal of and
interest on an obligation which aids in financing and refinancing,
including reimbursement to an obligor for expenditures previously
made, of a contract for construction or reconstruction of a vessel or
vessels owned by citizens of the United States which are designed
and to be employed for commercial use in the cosatwise or
intercoastal trade or in foreign trade as defined in section 905 of this
Act if—
“(1) the construction or reconstruction by an applicant is
made necessary to replace vessels the continued operation of
which is denied by virtue of the imposition of a statutorily
mandated change in standards for the operation of vessels, and
where, as a matter of law, the applicant would otherwise be
çienied the right to continue operating vessels in the trades in
which the applicant operated prior to the taking effect of the
statutory or regulatory change;
“(2) the applicant is presently engaged in transporting car-
goes in vessels of the type and class that will be constructed or
reconstructed under this section, and agrees to employ vessels
constructed or reconstructed under this section as replacements
only for vessels made obsolete by changes in operating stand-
ards imposed by statute;
“(3) the capacity of the vessels to be constructed or re-
constructed under this title will not increase the cargo carrying
capacity of the vessels being replaced;
“(4) the Secretary has not made a determination that the
market demand for the vessel over its useful life will diminish
so a to make the granting of the guarantee fiduciarily im-
prudent; and
“(5) the Secretary has considered the provisiOns of section
1104A(dX1XA) (iii), (iv), and (v) of this title.
“(b) For the purposes of this section—
“(1) the maximum term for obligations guaranteed under this
program may not exceed 25 years;
Reports
46 USC ssi
1274a
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STAT 522 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT. 5
11(2) obligations guaranteed may not exceed 75 percent of the
actual cost or depreciated actual cost to the applicant for the
construction or reconstruction of the vessel; and
“(3) reconstruction cost obligations may not be guaranteed
unless the vessel after reconstruction will have a useful life of
at least 15 years.
“(cXl) The Secretary shall by rule require that the applicant
provide adequate security against default. The Secretary may, in
addition to any fees assessed under section 1104A(e), establish a
Vessel Replacement Guarantee Fund into which shall be paid by
obligors under this section—
“(A) annual fees which may be an additional amount on the
loan guarantee fee in section 1104A(e) not to exceed an addi-
tional 1 percent; or
“(B) fees based on the amount of the obligation versus the
percentage of the obligor’s fleet being replaced by vessels con-
structed or reconstructed under this section.
“(2) The Vessel Replacement Guarantee Fund shall be a
subaccount in the Federal Ship Fuiancing Fund, and shall—
‘(A) be the depository for all moneys received by the Sec-
retary under sections 1101 through 1107 of’ this title with
respect to guarantee or commitments to guarantee made under
this section;
“(B) not include investigation fees payable under section
1104A(f) which shall be paid to the Federal Ship Financing
Fund; and
“(C) be the depository, whenever there shall be outstanding
any notes or obligations issued by the Secretary under section
1105(d) with respect to the Vessel Replacement Guarantee
Fund, for all moneys received by the Secretary under sections
1101 through 1107 from applicants under this section.
‘(d) The program created by this section shall, in addition to the
requirements of this section, be subject to the provisions of sections
1101 through 1103; llO4A(b) (1). (4), (5), (6), 1104A(e); 1104A(f);
1104A(h); and 1105 through 1107; except that the Federal Ship
Financing Fund is not liable for any guarantees or commitments to
guarantee issued under this section.”
SEC. 4116. PILOTAGE
(a) Pii.o’r REQUIRED.—SeCtiOfl 8502(g) of title 46, United States
Code, is amended to read as follows:
ations “(gXl) The Secretary shall designate by regulation the areas of the
approaches to and waters of Prince William Sound, Alaska, if any,
on which a vessel subject to this section is not required to be under
the direction and control of a pilot licensed under section 7101 of
this title
“(2) In any area of Prince William Sound, Alaska, where a vessel
subject to this section is required to be under the direction and
control of a pilot licensed under section 7101 of this title, the pilot
may not be a member of the crew of that vessel and shall be a pilot
licensed by the State of Alaska who is operating under a Federal
license, when the vessel is navigating waters between 6049’ North
latitude and the Port of Valdez, Alaska.”.
(b) SECOND PERSON REQUIRED —Section 8502 of title 46, United
States C”le, is amended by adding at the end the following:
“(h) Secretary shall designate waters on which tankers over
1,600 tons subject to this section shall have on the bridge a
master or mate licensed to direct and control the vessel under
section ?101(cXl) of this title who is separate and distinct from the
pilot required under subsection (a) of’ this section.”.
(c) ESCORTS FOR CERTAIN T& KEas.—Not later than 6 months after
the date of the enactment of this Act, the Secretary shall initiate
issuance of regulations under section 3?03(a)(3) of title 46, United
States Code, to define those areas, including Prince William Sound,
Alaska, and Rosario Strait and Puget Sound, Washington (including
those portions of the Strait of Juan de Fuca east of Port Angeles,
Haro Strait, and the Strait of Georgia subject to United States
jurisdiction), on which single hulled tankers over 5,000 gross tons
transporting oil in bulk shall be escorted by at least two towing
vessels (as defined under section 2101 of title 46, United States Code)
or other vessels considered appropriate by the Secretary.
(d) TANKER DEFINED—In this section the term “tanker” has the
same meaning the term has in section 2101 of title 46, United States
Code.
SEC. 4117. MARITIME POLLUTION PREVENTION TRAINING PROGRAM
STUDY.
The Secretary shall conduct a study to determine the feasibility of
a Maritime Oil Pollution Prevention Training program to be carried
out in cooperation with approved maritime training institutions.
The study shall assess the costs and benefits of transferring suitable
vessels to selected maritime training institutions, equipping the
vessels for oil spill response, and training students in oil pollution
response skills. The study shall be completed and transmitted to the
Congress no later than one year after the date of the enactment of
this Act.
SEC 4118. VESSEL COMMUNICATION EQUIPMENT REGULATIONS.
The Secretary shall, not later than one year after the date of the
enactment of this Act, issue regulations necessary to ensure that
vessels subject to the Vessel Bridge-to-Bridge Radiotelephone Act of
1971 (33 U.S.C. 1203) are also equipped as necessary to—
(1) receive radio marine navigation safety warnings; and
(2) engage in radio communications on designated frequencies
with the Coast Guard, and such other vessels and stations as
may be specified by the Secretary.
Subtitle B—Removal
SEC. 4201. FEDERAL REMOVAL AUTHORITY.
(a) IN GEMERAL,—Subsection (c) of section 311 of the Federal
Water Pollution Control Act (33 U.S.C. 1321(c)) is amended to read
as follows:
“(C) FEDERAL REMOVAL Au’ruoarrv.—
“(1) GENERAL REMOVAL. REQUIREMENT.—(A) The President
shall, in accordance with the National Contingency Plan and
any appropriate Area Contingency Plan, ensure effective and
immediate removal of a discharge, and mitigation or prevention
of a substantial threat of a discharge, of oil or a hazardous
substance—
“(i) inte ‘r on the navigable waters;
“(,fl tt,nn . 4 ,’.’ ’ 1 ” _i.i
ReguIatLonB
Alaska
Washington
46 USC 3703
note
46 USC 3703
note
46 USC AP
1295 note
33 U C 1202
note
Preeident ofl
Haze rd ou
materials
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104 STAT. 524 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, .1990 104 STAT
“(iii) into or on the waters of the exclusive economic zone;
or
“(iv) that may affect natural resources belonging to, ap-
pertaining to, or under the exclusive management author-
ity of the United States.
“(B) In carrying out this paragraph, the President may—
“(i) remove or arrange for the removal of a discharge, and
mitigate or prevent a substantial threat of a discharge, at
any time;
“(ii) direct or monitor all Federal, State, and private
actions to remove a discharge; and
“(iii) remove and, if necessary, destroy a vessel discharg-
ing, or threatening to discharge, by whatever means are
avaii able
“(2) DISCHARGE POSING SUBSTANTIAL THREAT TO PUBLIC HEALTH
OR WELFARE —(A) If a discharge, or a substantial threat of a
discharge, of oil or a hazardous substance from a vessel, offshore
facility, or onshore facility is of such a size or character as to be
a substantial threat to the public health or welfare of the
United States (including but not limited to fish, shellfish, wild-
life, other natural resources, and the public and private beaches
and shorelines of the United States), the President shall direct
all Federal, State, and private actions to remove the discharge
or to mitigate or prevent the threat of the discharge.
“(B) In carrying out this paragraph, the President may, with-
out regard to any other j ovision of law governing contracting
procedures or employment of personnel by the Federal Govern-
ment—
‘(i) remove or arrange for the removal of the discharge,
or mitigate or prevent the substantial threat of the dis-
charge; and
“(ii) remove and, if necessary, destroy a vessel discharg-
ing, or threatening to discharge, by whatever means are
available
“(3) Ac ’rioi is IN ACCORDANCE WITH NATIONAL CONTINGENCY
PLAN.—(A) Each Federal agency, State, owner or operator, or
other person participating in efforts under this subsection shall
act in accordance with the National Contingency Plan or as
directed by the President
“(B) An owner or operator participating in efforts under this
subsection shall act in accordance with the National Contin-
gency Plan and the applicable response plan required under
subsection (j) or as directed by the President.
“(4) Exzr&rrioi ’i FROM LiABILITY —(A) A person is not liable for
removal costs or damages which result from actions taken or
omitted to be taken in the course of rendering care, assistance,
or advice consistent with the National Contingency Plan or as
otherwise directed by the President
‘(B) Subparagraph (A) does not apply—
to a responsible party;
“(ii) to a response under the Comprehensive Environ-
mental Response, Compensation, and Liability Act of 1980
(42 U.SC. 9601 et seq.);
“(iii) with respect to personal injury or wrongful death; or
“(iv) if the person is grossly negligent or engages iii
willful misconduct.
“(C) A responsible party is liable fo any removal costs and
damages that another person is relieved of under subparagraph
(A).
“(5) OBLIGATION AND LIABILITY OF OWNER OR OPERATOR NOT
APFECTED.—Nothing in this subsection affects—
“(A) the obligation of an owner or operator to respond
immediately to a discharge, or the threat of a discharge, of
oil; or
“(B) the liability of a responsible party under the Oil
Pollution Act of 1990.
“(6) RESPONSIBLE PARTY DEFINED.—For purposes of this subsec-
tion, the term ‘responsible party’ has the meaning given that
term under section 1001 of the Oil Pollution Act of 1990.”.
(b) NATIONAL CONTINGENCY PLAN—Subsection (d) of section 311 of
the Federal Water Pollution Control Act (33 U.S.C. 1321(d)) is
amended to read as follows:
“(d) NATIONAL CONTINGENCY PlAN.—
“(1) PREPARATION BY pRESIDENT.—The President shall prepare
and publish a National Contingency Plan for removal of oil and
hazardous substances pursuant to this section.
“(2) CON’rENTs.—The National Contingency Plan shall provide
for efficient, coordinated, and effective action to minimize
damage from oil and hazardous substance discharges, including
containment, dispersal, and removal of oil and hazardous sub-
stances, and shall include, but not be limited to, the folLowing
“(A) Assignment of duties and responsibilities among
Federal departments and agencies in coordination with
State and local agencies and port authorities including, but
not limited to, water pollution control and conservation and
trusteeship of natural resources (including conservation of
fish and wildlife).
“(B) Identification, procurement, maintenance, and stor-
age of equipment and supplies.
“(C) Establishment or designation of Coast Guard strike
teams, consisting of—
“(i) personnel who shall be trained, prepared, and
available to provide necessary services to carry out the
National Contingency Plan;
“(ii) adequate oil and hazardous substance pollution
control equipment and material; and
“(iii) a detailed oil and hazardous substance pollution
and prevention plan, including measures to protect
fisheries and wildlife.
“(D) A system of surveillance and notice designed to
safeguard against as well as ensure earliest possible notice
of discharges of oil and hazardous substances and imminent
threats of such discharges to the appropriate State and
Federal agencies.
“(E) Establishment of a national center to provide co-
ordination and direction for operations in carrying out the
Plan
“(F) Procedures and techniques to be employed in identi-
fying, containing, dispersing, and removing oil and hazard-
ous substances.
“(G) A schedule, prepared in cooperation with the States,
identifying—
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4 STAT 526 PUBLIC LAW 101-380—AUG. 18, 1990
PUBL T ’ LAW 101-380—AUG. 18, 1990 104 STAT.
“(i) dispersants, other chemicals, and other spill rniti-
gating devices and substances, if any, that may be used
in carrying out the Plan,
“(ii) the waters in which such dispersarits, other
chemicals, and other spi 11 mitigating devices and sub-
stances may be used, and
“(iii) the quantities of such dispersant, other chemi-
cals, or other spill mitigating device or substance which
can be used safely in such waters,
which schedule shall provide in the case of any dispersant,
chemical, spill mitigating device or substance, or waters not
specifically identified in such schedule that the President,
or his delegate, may, on a case-by-case basis, identify the
dispersants, other chemicals, and other api 11 mitigating
devices and substances which may be used, the waters in
which they may be used, and the quantities which can be
used safely in such waters.
“(H) A system whereby the State or States affected by a
discharge of oil or hazardous substance may act where
necessary to remove such discharge and such State or
States may be reimbursed in accordance with the Oil Pollu-
tion Act of 1990, in the case of any discharge of oil from a
vessel or facility, for the reasonable costs incurred for that
removal, from the Oil Spill Liability Trust Fund.
“(I) Establishment of criteria and procedures to ensure
immediate and effecti Federal identification of, and re.
sponse to, a discharge, or the threat of a discharge, that
results in a substantial threat to the public health or
welfare of the United States, as required under subsection
(cX2)
“(J) Establishment of procedures and standards for
removing a worst case discharge of oil, and for mitigating or
preventing a substantial threat of such a discharge
“(K) Designation of the Federal official who shall be the
Federal On-Scene Coordinator for each area for which an
Area Contingency Plan is required to be prepared under
subsection (j).
“(L) Establishment of procedures for the coordination of
activities of—
“(i) Coast Guard strike teams established under
subparagraph (C);
“(ii) Federal On-Scene Coordinators designated under
subparagraph (K);
“(iii) District Response Groups established under
subsection (j); and
“(iv) Area Committees established under subsection
(j).
“(M) A fish and wildlife response plan, developed in
consultation with the United States Fish and Wildlife Serv-
ice, the National Oceanic and Atmospheric Administration,
and other interested parties (including State fish and wild-
life conservation officials), for the immediate and effective
protection, rescue, and rehabilitation of, and the minhsniza-
tion of risk of damage to, fish and wildlife resources and
‘ieir habitat that are harmed or that may be jeopardized by
discharge
“(3) R visioN8 AND AMENDMENTS.—The President may, from
time to time, as the President deems advisable, revise or other-
wise amend the National Contingency Plan.
“(4) AcrIoNs (N ACCORDANCE WITH NATIONAL CONTINGENCY
pwi.—After publication of the National Contingency Plan, the
removal of oil and hazardous substances and actions to mini-
mize damage from oil and hazardous substance discharges shall,
to the greatest extent possible, be in accordance with the Na-
tional Contingency Plan.”.
(b) DEnNm0NS.— Section 311(a) of the Federal Water Pollution
Control Act (32 U.S.C. 1321(a)) is amended—
(1) in paragraph (8), by inserting “containment and” after
“refers to”; and
(2) in paragraph (16) by striking the period at the end and
inserting a semicolon;
(3) in paragraph (17)—
(A) by striking “Otherwise’ and inserting “otherwise”;
and
(B) by striking the period at the end and inserting a
semicolon; and
(4) by adding at the end the following:
“(18) ‘Area Committee’ means an Area Committee established
under subsection Ci);
“(19) ‘Area Contingency Plan’ means an Area Contingency
Plan prepared under subsection (j);
“(20) ‘Coast Guard District Response Group’ means a Coast
Guard District Response Group established under subsection {j);
“(21) ‘Federal On-Scene Coordinator’ means a Federal On-
Scene Coordinator designated in the National Contingency
Plan;
“(22) ‘National Contingency Plan’ means the National Contin-
gency Plan prepared and published under subsection (d);
“(23) ‘National Response Unit’ means the National Response
Unit established under subsection C i); and
“(24) ‘worst case discharge’ means—
“(A) in the case of a vessel, a discharge in adverse
weather conditions of its entire cargo; and
“(B) in the case of an offshore facility or onshore facility,
the largest foreseeable discharge in adverse weather condi-
tions.”.
(C) REVISION OF NATIONAL CONTINGENCY Pw N.—Not later than
one year after the date of the enactment of this Act, the President
shall revise and republish the National Contingency Plan prepared
under section 31 1(cX2) of the Federal Water PoUution Control Act
(as in effect immediately before the date of the enactment of this
Act) to implement the amendments made by this section and section
4202.
SEC. 4202. NATIONAL PLANNING AND RESPONSE SYSTEM.
(a) IN CENERAL—SUbseCtiofl (j) of section 311 of the Federal Water
Pollution Control Act (33 U.S.C. 1321(j)) is amended—
(l by striking “Ci)” and inserting the following:
“Ci) NATIONAL RESPONSE Svs’rsM.—”;
(2) by moving paragraph (1) so as to begin immediately ‘--‘low
the heading fei subsection (j) (as added by paragraph U
subsection); -
i and fLshlng
Liii fe
33 USC 13
note
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14 STAT. 528 PUBLIC LAW 101-380—-AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT
(3) by moving paragraph (1) two eras to the right, so the left
margin of that paragraph is aligned with the left margin of
paragraph (2) of that subsection (as added by paragraph (6) of
this subsection);
(4) in paragraph (1) by striking “(1)” and inserting the follow-
ing:
n( 1 ) IN GENERAL.—”;
(5) by striking paragraph (2); and
(6) by adding at the end the following:
“(2) NATIONAL RESPONSE UNIT.—The Secretary of the depart-
ment in which the Coast Guard is operating shall establish a
National Response Unit at Elizabeth City, North Carolina. The
Secretary, acting through the National Response Unit—
“(A) shall compile and maintain a comprehensive com-
puter list of spill removal resources, personnel, and equip-
ment that is available worldwide and within the areas
designated by the President pursuant to paragraph (4),
whLch shall be available to Federal and State agencies and
the public;
“(B) shall provide technical assistance, equipment, and
other resources requested by a Federal On-Scene Coordina.
tor;
“(C) shall coordinate use of private and public personnel
and equipment to remove a worst case discharge, and to
mitigate or prevent a substantial threat of such a discharge,
from a vessel, offshora.facility, or onshore facility operating
in or near an area designated by the President pursuant to
paragraph (4);
“(D l may provide technical assistance in the preparation
of Area Contingency Plans required under paragraph (4);
“CE) shall administer Coast Guard strike teams estab-
lished under the National Contingency Plan;
“(F) shall maintain on file all Area Contingency Plans
approved by the President under this subsection; and
‘(G) shall review each of those plans that affects its
responsibilities under this subsection..
“(3) COAST GUARD DISTRICT RESPONSE onours.—(A) The Sec-
retary of the department in which the Coast Guard is operating
shall establish in each Coast Guard district a Coast Guard
District Response Group.
“(B) Each Coast Guard District Response Group shall consist
of—
“(i) the Coast Guard personnel and equipment, including
firefighting equipment, of each port within the district;
“(ii) additional prepositioned equipment; and
“(iii) a district response advisory staff.
“(C) Coast Guard district response groups—
‘(i) shall provide technical assistance, equipment, and
other resources when required by a Federal On-Scene
Coordinator;
“(ii) shall maintain all Coast Guard response equipment
within its district;
“(iii) may provide technical assistance in the preparation
of Area Contingency Plans required under paragraph (4);
and
“(iv) shall review each of those plans that affect its area
of geographic responsibility.
“(4) AREA COMMITtEES AND AREA CONTINGENCY FLANS.—(A) Esthbli hr
There is established for each area designated by the President
an Area Committee comprised of members appointed by the
President from qualified personnel of Federal, State, ajid local
agencies.
“(B) Each Area Committee, under the direction of the Federal
On-Scene Coordinator for its area, shall—
“(i) prepare for its area the Area Contingency Plan re-
quired under subparagraph (C);
“(ii) work with State and local officials to enhance the
contingency planning of those officials and to assure
preplanning of joint response efforts, including appropriate
procedures for mechanical recovery, dispersal, shoreline
cleanup, protection of sensitive environmental areas, and
protection, rescue, and rehabilitation of fisheries and wild-
life; and
“(iii) work with State and local officials to expedite deci-
sions for the use of dispersant.s and other mitigating sub-
stances and devices. -
“(C) Each Area Committee shall prepare and submit to the
President for approval an Area Contingency Plan for its area.
The Area Contingency Plan shall—
“(i) when implemented in conjunction with the National
Contingency Plan, be adequate to remove a worst case
discharge, and to mitigate or prevent a substantial threat of
such a discharge, from a vessel, offshore facility, or onshore
facility operating in or near the area;
“(ii) describe the area covered by the plan, including the
areas of special economic or environmental importance that
might be damaged by a discharge;
“(iii) describe in detail the responsibilities of an owner or
operator and of Federal, State, and local agencies in remov-
ing a discharge, and in mitigating or preventing a substan-
tial threat of a discharge;
“(iv) list the equipment (including firefighting equip-
ment), dispersants or other mitigating substances and de-
vices, and personnel available to an owner or operator and
Federal, State, and local agencies, to ensure an effective
and immediate removal of a discharge, and to ensure miti-
gation or prevention of a substantial threat of a discharge;
“(v) describe the procedures to be followed for obtaining
an expedited decision regarding the use of dispersants;
“(vi) describe in detail how the plan is integrated into
other Area Contingency Plans and vessel, offshore facility,
and onshore facility response plans approved under this
subsection, and into operating procedures of the National
Response Unit;
“(vii) include any other information the President re-
quires; and
“(viii) be updated periodically by the Area Committee
“(B) The President shall—
“(i) review and approve Area Contingency Plans under
this paragraph; and
“(ii) periodically review Area Contingency Plans so ap-
proved.
“(5) TANK VESSEL AND FACILITY RESPONSE PLANS.—(A) The Regulatio
President shall issue regulations which require an owner or
iformed
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STAT. 530 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT.
operator of a tank vessel or facility described in subparagraph
(B) to prepare and submit to the President a plan for respond-
ing, to the maximuM extent practicable, to a worst case dis-
charge, and to a substantial threat of such a discharge, of oil or
a hazardous substance
“(B) The tank vessels and facilities referred to in subpara-
graph (A) are the following:
“(i) A tank vessel, as defined under section 2101 of title
46, United States Code
“(ii) An offshore facility.
“(iii) An 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.
“(C) A response plan required under this paragraph shall—
“(i) be consistent with the requirements of the National
Contingency Plan and Area Contingency Plans;
“(ii) identify the qualified individual having full author-
ity to implement removal actions, and require immediate
communications between that individual and the appro-
priate Federal official and the persons providing personnel
and equipment pursuant to clause (iii);
“(iii) identify, and ensure by contract or other means
approved by the President the availability of, private
personnel and equipme t necessary to remove to the maxi-
mum 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;
“(iv) 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 dis-
charge;
be updated periodically; and
“(vi) be resubmitted for approval of each significant
change.
“(D) With respect to any response plan submitted under this
paragraph for an onshore facility that, because of its location,
could reasonably be expected to cause significant and substan-
tial harm to the environment by discharging into or on the
navigable waters or adjoining shorelines or the exclusive eCo-
nomic zone, and with respect to each response plan submitted
under this paragraph for a tank vessel or offshore facility, the
President shall—
“(i) promptly review such response plan;
“ Ui) require amendments to any plan that does not meet
the requirements of this paragraph;
“(ui) approve ny plan that meets the requirements of
this paragraph; and
“(iv) review each plan periodically thereafter.
“CE) A tank vessel, offshore facility, or onshore facility re-
quired to prepare a response plan under this subsection may not
hp 1 e, store, or transport oil unless—
“(i) in the case of a tank vessel, offshore facility, or
tshore facility for which a response plan in reviewed by
the President under subparagraph (D), the plan haa been
approved by the President; and
‘(ii) the vessel or facility is operating in compliance with
the plan.
“(F) Notwithstanding subparagraph (E), the President may
authorize a tank vessel, offshore facility, or onshore facility to
operate without a response plan approved under this para-
graph, until not later than 2 years after the date of the submis-
sion to the President of a plan for the tank vessel or facility, if
the owner or operator certifies that the owner or operator has
ensured by contract or other means approved by the President
the availability of private personnel and equipment necessary
to respond, to the maximum extent practicable, to a worst case
discharge or a substantial threat of such a discharge.
“(G) The owner or operator of a tank vessel, offshore facility,
or onshore facility ma not claim as a defense to liability under
title I of the Oil Pollution Act of 1990 that the owner or operator
was acting in accordance with an approved response plan.
“(H) The Secretary shall maintain, in the Vessel Identifica-
tion System established under chapter 125 of title 46, United
States Code, the dates of approval and review of a response plan
under this paragraph for each tank vessel that is a vessel of the
United States.
“(6) EQUIPMENT REQUIREMENTh AND INSPECTION.—Not later
than 2 years after the date of enactment of this section, the
President shall require—
“(A) periodic inspection of containment booms, skimmers,
vessels, and other major equipment used to remove dis-
charges; and
“(B) vessels operating on navigable waters and carrying
oil or a hazardous substance in bulk as cargo to carry
appropriate removal equipment that employs the best tech-
nology economically feasible and that is compatible, with
the safe operation of the vessel.
“(7) Aits auis.—The President shall periodically conduct
drills of removal capability, without prior notice, in a eas for
which Area Contingency Plans are required under this ‘siibsec-
tion and under relevant tank vessel and facility response plans.
The drills may include participation by Federal, State, and local
agencies, the owners and operators of vessels and facilities in
the area, and private industry. The President may publish
annual reports on these drills, including assessments of the
effectiveness of the plans and a list of amendments made to
improve plans.
‘(8) UNFran 8TAT GOVERNMENT NOT LIABLE—The United
States Government is not liable for any damages arising from
its actions or omissions relating to any response plan required
by this section.”.
(b) IMPLEMENTATION.—
(1) AREA COMMI’ITEES AND CONTINGENCY p i iis.—(A) Not later
than 6 months after the date of the enactment of thin Act, the
President shall designate the areas for which Area Committees
are established under section 311(jX4) of the Federal Water
Pollution Control Act, as amended by this Act. In designating
such areas, the President shall ensure that all navigable wr
adjoining shorelines, and waters of the exclusive economic
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President ofl
33 USC i321
note
President of I
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4 STAT. 532 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT
(B) Not. later than 18 months after the date of the enactment
of this Act, each Area Committee established under that section
shall submit to the President the Area Contingency Plan re-
quired under that section.
(C) Not later than 24 months after the date of the enactment
of this Act, the President shall—
(i) promptly review each plan;
(ii) require amendments to any plan that does not meet
the requirements of section Sll(jX 4 ) of the Federal Water
Pollution Control Act; and
(iii) approve each plan that meets the requirements of
that section.
(2) NATIONAL RESPONSE UNIT —Not later than one year after
the date of the enactment of this Act, the Secretary of the
department in which the Coast Guard is operating shall estab-
lish a National Response Unit in accordance with section
311(jX2) of the Federal Water Pollution Control Act, as amended
by this Act.
(3) COAST GUARD DISTRICT RESPONSE GROUPS —Not later than 1
year after the date of the enactment of this Act, the Secretary of
the department in which the Coast Guard is operating shall
establish Coast Guard District Response Groups in accordance
with section 311(jX3) of the Federal Water Pollution Control
Act, as amended by this Act.
(4) Ti VESSEL AND FACILITY R PONSE PLANS; TRANSITION
PROVISION; EFFECTIVE DAT OF PROHIBrFION.—(A) Not later than
24 months after the date of the enactment of this Act, the
President shall issue regulations for tank vessel and facility
response plans under section 311(j)(5) of the Federal Water
Pollution Control Act, as amended by this Act.
(B) During .the period beginning 0 months after the date of
the enactment of this paragraph and ending 36 months after
that date of enactment, a tank vessel or facility for which a
response plan is required to be prepared under section 311(jX5)
of the Federal Water Pollution Control Act, as amended by this
Act, may not handle, store, or transport oil unless the owner or
operator thereof has submitted such a plan tc the President
(C) Subparagraph (E) of section 311(jX5) of the Federal Water
PoUution Control Act, as amended by this Act, shall take effect
36 months after the date of the enactment of this Act.
(c) STATE LAW NOT PaEsMrrsa— Section 3ll(oX2) of the Federal
Water Pollution Control Act (33 U.S.C. 1321(oX2)) is amended by
inserting before the period the following “, or with respect to any
removal activities related to such discharge”.
USC 92 note SEC. 4203. COAST GUARD VESSEL DESIGN.
The Secretary shall ensure that vessels designed and constructed
to replace Coast Guard buoy tenders are equipped with oil skimming
systems that are readily available and operable, and that com-
plement the primary mission of servicing aids to navigation.
SEC. 4204 DETERMINATION OF HARMFUL QUANTITIES OF OIL AND
HAZARDOUS SUBSTANCES
Section 311(bX4) of the Federal Water Pollution Control Act (33
U.S C 1321(bX4)) is amended by insertmg “or the environment”
after “the public health or welfare”.
SEC. 4205. COASTWISE OIL SPILL RESPONSE COOPERATIVES.
Section 12i06 of title 46, United States Code, is amended by
adding at the end the following:
“(d xl) A vessel may be issued a certificate of documentation with
a coastwise endorsement if—
“(A) the vessel is owned by a not-for-profit oil spill response
cooperative or by members of such a cooperative who dedicate
the vessel to use by the cooperative;
“(B) the vessel is at least 50 percent owned by persons or
entities described in section 12102(a) of this title;
“(C) the vessel otherwise qualifies wider section 12106 to be
employed in the coastwise trade; and
(D) use of the vessel is restricted to—
1 ’(i) the deployment of equipment, supplies, and personnel
to recover, contain, or transport oil dischar?ed into the
navigable waters of the United States, or within the Exclu-
sive Economic Zone, or
“(ii) for training exercises to prepare to respond to such a
discharge.
“(2) For purposes of the first proviso of section 27 of the Merchant
Marine Act, 1920, section 2 of the Shipping Act of 1916, and section
12102(a) of this title, a vessel meeting the criteria of this subsection
shall be considered to be owned exclusively by citizens of the United
States.”.
Subtitle C—Penalties and Miscellaneous
SEC. 4301. FEDERAL WATER POLLUTION CONTROL ACT PENALTIES.
(a) NOTICE TO STATE AND FAILURE To Rar0Rr.—Section 311(bX5) of
the Federal Water Pollution Control Act (33 U.S.C. 1321(b)(5)) is
amended—
(1) by inserting after the first sentence the following: “The
Federal agency shall inimediately notify the appropriate State
agency of any State which is, or may reasonably be expected to
be, affected by the discharge of oil or a hazardous substance.”;
(2) by striking “fined not more than $10,000, or imprisoned for
not more than one year, or both” and inserting “fined in
accordance with title 18, United States Code, or imprisoned for
not more than 5 years, or both”; and
(3) in the last sentence by—
(A) striking “or information obtained by the exploitation
of such notification”; and
(B) inserting “natural” before “person”.
(b) PENALTIES FOR DISCHARGES AND VIoI TIoNe OP REGULATIONS.—
Section 311(b) of the Federal Water Pollution Control Act (33 U S.C
1321(b)) is amended by striking paragraph (6) and inserting the
following new paragraphs:
“(6) ADMINISTRATIVE PENALTIES.—
“(A) VIOLATIONS—Any owner, operator, or person in
charge of any vessel, onshore facility, or offshore facility—
“(i) from which oil or a hazardous substance is dis-
charged in violation of paragraph (3), or
“(ii) who fails or refuses to comply with any regula-
tion issued under subsection (j) to which that owner,
—.
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1 STAT 534 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW L 1-380—AUG. 18, 1990 104 STAT.!
may be assessed a class I or class II civil penalty by the
Secretary of the department in which the Coast Guard is
operating or the Administrator.
“(B) CLASSES OF PENALTIES.—
“(i) C, ss i.—The amount of a class I civil penalty
under subparagraph (A) may not exceed $10,000 per
violation, except that the maximum amount of any
class I civil penalty under this subparagraph shall not
exceed $25,000. Before assessing a civil penalty under
this clause, the Administrator or Secretary, as the case
may be, shall give to the person to be assessed such
penalty written notice of the Administrator’s or Sec
retary a proposal to assess the penalty and the oppor-
tunity to request, within 30 days of the date the notice
is received by such person, a hearing on the proposed
penalty Such hearing shall not be subject to section
554 or 556 of title 5, United States Code, but shall
provide a reasonable opportunity to be heard and to
present evidence
“(ii) Ct. ss ii —The amount of a class II civil penalty
under subparagraph (A) may not exceed $10,000 per
day for each day during which the violation continues;
except that the maximum amount of any class II civil
penalty under this subparagraph shall not exceed
$125,000. Except as otherwise provided in this subsec-
tion, a class II civil penalty shall be assessed and
collected in the saille manner, and subject to the same
provisions, as in the case of civil penalties assessed and
collected after notice and opportunity for a hearing on
the record in accordance with section 554 of title 5,
United States Code. The Administrator and Secretary
may issue rules for discovery procedures for hearings
under this paragraph.
“(C) RIGHTS OF INTERESTED PERSONS.—
“(i) Puar..ic wo’rlcE.—Before issuing an order assess-
ing a class II civil penalty under this paragraph the
Administrator or Secretary, as the case may be, shall
provide public notice of and reasonable cpportunity to
comment on the proposed issuance of such order.
“(ii) PRESENTATION OF EVIDENCE.—Afly person who
comments on a proposed assessment of a class II civil
penalty under this paragraph shall be given notice of
any hearing held under this paragraph and of the order
assessing such penalty In any hearing held under this
paragraph, such person shall have a reasonable oppor-
tunity to be heard and to present evidence.
‘xiii) RIGHTS OF INTERESTED PERSONS TO A HEARING.—
If no hearing is held under subparagraph (B) before
issuance of an order assessing a class II civil penalty
under this paragraph, any person who commented on
the proposed assessment may petition, within 30 days
after the issuance of such order, the Administrator or
Secretary, as the case may be, to set aside such order
and to provide a hearing on the penalty. If the evidence
presented by the petitioner in support of the petition is
material and was riot considered in the issuance of the
order, the Administrator or Secretary shall imme-
diately set aside such order and provide a hearing in
accordance with subparagraph (BXii). If the Adminis-
trator or Secretary denies a hearing under this clause,
the Administrator or Secretary shall provide to the
petitioner, and publish in the Federal Register, notice
of and the reasons for such denial.
“(D) FINALITY OF ORDER.—An order assessing a class II
civil penalty under this paragraph shall become final 30
days after its issuance unless a petition for judicial review
is filed under subparagraph (G) or a hearing is requested
under subparagraph (CXiii). If such a hearing is denied,
such order shall become final 30 days after such denial.
(E) Eirracr OF ORDRR.—ACtion taken by the Adminis-
trator or Secretary, as the case may be, under this para-
graph shall not affect or limit the Administrator’s or Sec-
retary’s authority to enforce any provision of this Act;
except that any violation—
“(i) with respect to which the Administrator or Sec-
retary has commenced and is diligently prosecuting an
action to assess a class II civil penalty under this
paragraph, or
“(ii) for which the Administrator or Secretary has
issued a final order assessing a class II civil penalty not
subject to further judicial review and the violator has
paid a penalty assessed under this paragraph,
shall not be the subject of a civil penalty action under
section 309(d), 309(g), or 505 of this Act or under paragraph
(7).
“(F) EFFECT OF ACTION ON COMPLIANCE.—No action by the
Administrator or Secretary under this paragraph shall
affect any person’s obligation to comply with any section of
this Act.
“(G) JUDICIAL a viaw.—Any person against whom a civil
penalty is assessed under this paragraph or who corn-
inented on the proposed assessment of such penalty in
accordance with subparagraph (C) may obtain review of
such assessment—
“(i) in the case of assessment of a class I civil penalty,
in the United States District Court for the District of
Columbia or in the district in which the violation is
alle ed to have occurred, or -
“(ii) in the case of assessment of a class II civil
penalty, in United States Court of Appeals for the
District of Columbia Circuit or for any other circuit in
which such person resides or transacta business,
by filing a notice of appeal in such court within the 30-day
period beginning on the date the civil penalty order is
issued and by simultaneously sending a copy of such notice
by certified mail to the Administrator or Secretary, as the
case may be, and the Attorney General. The Administrator
or Secretary shall promptly file in such court a certified
copy of the record on which the order was issued. Such
court shall not set aside or remand such order unless there
is not substa, uaI evidence in the record, taken as a wh’-’
to support the finding of a violation or unless the Adn,
trator $ or Secretary’s assessment of the penalty constit
an nhi,ee nf d- ,- f .— i....Ii -
ral Register.
cat ion
District of
Columbia
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STAT. 536 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380--AUG. 18, 1990 104 STAT
penalties for the same violation unless the Administrator’s
or Secretary’s assessment of the penalty constitutes an
abuse of discretion
“(H) Cou ..scrION.—If any person fails to pay an assess-
ment of a civil penalty—
“(1) after the assessment has become fmal, or
“(ii) after a court in ark action brought under
subparagraph (G) has entered a final judgment in favor
of the Administrator or Secretary, as the case may be,
the Administrator or Secretary shall request the Attorney
General to bring a civil action in an appropriate district
court to recover the amount assessed (plus interest at cur-
rently prevailing rates from the date of the final order or
the date of the final judgment, as the case may be) In such
an action, the validity, amount, and appropriateness of such
penalty shall not be subject to review. Any person who fails
to pay on a timely basis the amount of an assessment of a
civil penalty as described in the first sentence of this
subparagraph shall be required to pay, in addition to such
amount and interest, attorneys fees and costs for collection
proceedings and a quarterly nonpayment penalty for each
quarter during which such failure to pay persists Such
nonpayment penalty shall be in an amount equal to 20
percent of the aggregate amount of such person’s penalties
and nonpayment penalties which are unpaid as of the
be inning of such qua4er
‘(I) SuBP0ENAS.—The Administrator or Secretary, as the
case may be, may issue subpoenas for the attendance and
testimony of witnesses and the production of relevant
papers, books, or documents in connection with hearings
under this paragraph. In case of contumacy or refusal to
obey a subpoena issued pursuant to this subparagraph and
served upon any person, the district court of the United
States for any district in which such person is found, re-
sides, or transacts business, upon application by the United
States and after notice to such person, shall have jurisdic-
tion to issue an order requiring such person to appear and
give testimony before the administrative law judge or to
appear and produce documents before the administrative
law judge, or both, and any failure to obey such order of the
court may be punished by such court as a contempt thereof.
“(7) CIVIL PENALTY ACTION —
“(A) DISCHARGE, GENERALLY —Any person who is the
owner, operator, or person in charge of any vessel, onshore
facility, or offshore facility from which oil or a hazardous
substance is discharged in violation of paragraph (3), shall
be subject to a civil penalty in an amount up to $25,000 per
day of violation or an amount up to $1,000 per barrel of oil
or unit of reportable quantity of hazardous substances dis-
charged
“(B) FAILURE TO REMOVE OR COMPLY —Any person de-
scribed in subparagraph (A) who, without sufficient cause—
“(i) fails to properly carry out removal of the dis-
charge under an order of the President pursuant to
subsection (c), or
“(ii) fails to comply with an order pursuant to subsec-
tion (eX1XB);
shall be subject to a civil penalty in an amount up to
$25,000 per day of violation or an amount up to 3 times the
costs incurred by the Oil Spill Liability Trust Fund as a
result of such failure.
“(C) FAJLuns TO COMPLY WITH REOULA11ON.—Afly person
who fails or refuses to comply with any regulation issued
under subsection (j) shall be subject to a civil penalty in an
amount up to $25,000 per day of ‘violation.
“(D) Gnoss NEOLIGENCE.—In any case in which a violation
of paragraph (8) was the result of gross negligence or willful
misconduct of a person described in subparagraph (A), the
person shall be subject to a civil penalty of not less than
$100,000, and not more than $3,000 per barrel of oil or unit
of reportable quantity of hazardous substance discharged.
“(E) JuRlsoIcmoN.—An action to impose a civil penalty
under this paragraph may be brought in the district court
of the United States for the district in which the defendant
is located, resides, or is doing business, and such court shall
have jurisdiction to assess such penalty.
“(F) LiMrrAlloM.—A person is not liable for a civil pen-
alty under this paragraph for a discharge if the person has
been assessed a civil penalty under paragraph (6) for the
discharge.
“(8) DETERMINATION OP AMOUNT.—lfl determining the amount
of a civil penalty under paragraphs (6) and (7), the Adminis-
trator, Secretary, or the court, as the case may be, shall consider
the seriousness of the violation or violations, the economic
benefit to the violator, if any, resulting from the violation, the
degree of culpability involved, any other penalty for the same
incident, any history of prior violations, the nature, extent, and
degree of success of any efforts of the violator to minimize or
mitigate the effects of the discharge, the economic impact of the
penalty on the violator, and any other matters as justice may
require.
“(9) MITIGATiON OF VAMAGE.—Ifl addition to establishing a
penalty for the discharge of oil or a hazardous substance, the
Administrator or the Secretary of the department in which the
Coast Guard is operating may act to mitigate the damage to the
public health or welfare caused by such discharge. The cost of
such mitigation shall be deemed a cost incurred under subsec-
tion (c) of this section for the removal of such substance by the
United States Government.
11(10) REOOVERY OF REMOVAL cosrs.—Any costs of removal
incurred in connection with a discharge excluded by subsection
(aX2XC) of this section shall be recoverable from the owner or
operator of the source of the discharge in an action brought
under section 309(b) of this Act.
“(11) LIMrrAT 10N —Civil penalties shall not be assessed under
both, this section and section 309 for the same discharge.”.
(c) CRIMINAL PENAt .’riss.—Section 309(c) of the Federal Water
Pollution Control Act (33 U.S C 13 19(c)) is amended by inserting
after “308,” each place it appears the following: “31UbX3),”.
SEC. 4302. OTHER PENALTIES.
(a) NEGLIGENT OpEa, ,i 1oNs.—Section 2302 of title 46, United
States Code, is amended— -
,ardous
ter,als
Courts, U
HazardouB
m 5teru SIB
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\T 538 PUBLIC LAW 101—380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18; 1990 104 STAT. 539
(1) in subsection (b) by striking “shall be frnd not more than
$5,000, imprisoned for not more than one . ar, or both “, and
inserting’ commits a class A misdemeanor. F; and
(2) in subsection (c)—
(A) by striking “, shall be” in the matter preceding
paragraph (1);
(B) by inserting “is” before “liable” in paragraph (1); and
(C) by amending paragraph (2) to read as follows:
“(2) commits a class A misdemeanor.”.
(b) INspEcnoNs.—Section 3318 of title 46, United States Code, is
amended—
(1) in subsection (b) by striking “shall be fined not more than
$10,000, imprisoned for not more than 5 years, or both.” and
inserting “commits a class D felony.”;
(2) in subsection (c) by striking ‘shall be fined not more than
$5,000, imprisoned for not more than 5 years, or both.” and
inserting “commits a class D felony.”;
(3) in subsection (d) by striking ‘shall be fined not more than
$5,000, imyrisoned for not more than 5 years, or both.” and
inserting commits a class D felony.”;
(4) in subsection (e) by striking ‘shall be fined not more than
$10,000, imprisoned for not more than 2 years. or both.” and
inserting “commits a class A misdemeanor. ‘;and
(5) in the matter preceding paragraph (1) of subsection (1’) by
striking “shall be fined not less than $1,000 but not more than
$10,000, and imprisoned for not ss than 2 years but not more
than 5 years,” and inserting “commits a class D felony.”.
Cc) CARRIAGE OF LIQUID Buu DANGEROUS CARGOES.—Section 3718
of title 46, United States Code, is amended—
(1) in subsection (b) by striking “shall be fined not more than
$50,000, imprisoned for not more than 5 years, or both.” and
inserting “commits a class D felony.”; and
(2) in subsection (c) by striking ‘shall be fined not more than
$100,000, imprisoned for not more than 10 years, or both.” and
inserting “commits a class C felony “.
(d) LOAD LINES —Section 5116 of title 46, United States Code, is
amended—
(1) in subsection (d) by striking “shall be fined not more than
$10,000, imprisoned for not more than one year, or both.” and
inserting “commits a class A misdemeanor.”; and
(2) in subsection (e) by striking “shall be fined not more than
$10,000, imprisoned for not more than 2 years. or both.” and
inserting “commits a class A misdemeanor.’
(e) COMPLEMENT OF Ir4SPECTED Vassnis —Section 8101 of title 46,
United States Code, is amended—
(1) in subsection (e) by striking “$50” and inserting “$1,000”;
(2) in subsection (0 by striking “$100, or, for a deficiency of a
licensed individual, a penalty of $500.” and inserting “$10,000.”;
and
(3) in subsection (g) by striking “$500.” and inserting
“$10,000 “.
(f) WATcHEs.—Section 8104 of title 46, United States Code, is
amended—
(1) in subsection (i) by striking “$100.” and inserting
“$10,00fl “: and
(2) ubsection (j) by striking “$500” and inserting
“$10’c
(g) C0ABTWLBE PIf..ol’AOE.—Section 8502 of title 46, United States
Code, is amended—
(1) in subsection (e) by striking “$500.,’ and inserting
“$10,000.”; and
(2) in subsection (0 by striking “$500.” and inserting
“$10,000.”. . -
(h) FOREIGN COMMERCE PIL YrAGE.—SeCtlOn 8503(e) ‘of title 46,
United States Code, is amended by striking “shall be fined not more
than $50,000, imprisoned for nct more than five years, or both.” and
inserting “commits a class D felony.”.
(1) CREW REQ WREMENTS.—SeCtion 8702(e) of title 46, United States
Code, is amended by striking “$500.” and inserting “$D()()()”
(j) PORTS AND WATERWAYS SAPE’rv Acr.—Section 13(b) of the Port
and Waterways Safety Act (33 U.S.C. 1232(b)) is amended—
(1) in paragraph (1) by striking “shall be fined not more than
$50,000 for each violation or imprisoned for not more than five
years, or both.” and inserting “commits a class D felony.”; and
(2) in paragraph (2) by striking “shall, in lieu of the penalties
prescribed in paragraph (1), be fined not more than $100,000, or
imprisoned for not more than 10 years, or both.” and inserting
“commits a class C felony.”.
(k) VESSEL NAvIGArIoN.—Section 4 of the Act of April 28, 1908 (33
U.S.C. 1236) is amended—
(1) in subsection (b) by striking “$500.” and inserting
“$5,000.”;
(2) in subsection (C) by striking “$500,” and inserting
“$5,000,”; and
(3) in subsection (d) by striking “$250.” and inserting
“$2,500.”.
(1) INTERVENTION ON THE HIGH Ss s Ac’r.—Section 12(a) of the
Intervention of the High Seas Act (33 U.S.C. 1481(a)) is amended—
(1) in the matter preceding paragraph (1) by striking “Any
person who” and inserting ‘A person commits a class A mis-
demeanor if that person”; and
(2) in paragraph (3) by striking “, shall be fined not more than
$10,000, or imprisoned not more than one year, or both”.
(m) DREPWATER PORT Acr OF 1974.—Section 15(a) of the Deep-
water Port Act of 1974 (33 U S.C. 1514(a)) is amended by striking
“shall on conviction be fined not more than $25,000 for each day of
violation or imprisoned for not more than 1 year, or both.” and
inserting “commits a class A misdemeanor for each day of viola.
tion.”.
(n) Ac’r To PREVENT PoLLuTIoN FROM SHZPS.—Section 9(a) of the
Act to Prevent Pollution from Ships (33 U.S.C. 1908(a)) is amended
by striking “shall, for each violation, be lined not more than $50,000
or be imprisoned for not more than 5 years, or both.” and inserting
“commits a class D felony.”.
SEC. 4303. FINANCIAL RESPONSIRILITY CIVIL PENALTIES.
(a) ADM1NISTI ATIYE.—Any person who, after notice and an oppor-
tunity for a hearing, is found to have failed to comply with the
requirements of section 1016 or the regulations issued under that
section, or with a denial or detention order issued under subsection
(cX2) of that section, shall be liable tn the United States for a civil
lty, not to exceed $25,000 per day of violation. The amount of
‘ivil penalty shall be assessed by the President by written
e In determining the amount of the penalty, the President
Pre9 ,dent of U S
33 USC 2 716a
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.TAT 540 PUBLIC LAW 101-380—AUG 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT. 41
shall take into account the nature, circumstances, extent, and grav-
ity of the violation, the degree of culpability, any history of prior
violation, ability to pay, and such other matters as justice may
require The President may compromise, modify, or remit, with or
without conditions, any civil penalty which is subject to imposition
or which had been imposed under this paragraph. If any person
fails to pay an assessed civil penalty after it ha become rmal,
the President may refer the matter to the Attorney General for
coil ection.
(b) JUDIcIAL —In addition to, or in lieu of, assessing a penalty
under subsection (a), the President may request the Attorney Gen-
eral to secure such relief as necessary to compel compliance with
this section 1016, including a judicial order terminating operations.
The district courts of the United States shall have jurisdiction to
grant any relief as the public interest and the equities of the case
may require.
i509 SEC. 4304 DEPOSIT OF CERTAIN PENALTIES INTO OIL SPILL LIABILITY
TRUST FUND.
Penalties paid pursuant to section 311 of the Federal Water
Pollution Control Act, section 309(c) of that Act, as a result of
violations of section 311 of that Act, and the Deepwater Port Act of
1974, shall be deposited 1fl the Oil Spill Liability Trust Fund created
under section 9509 of the Internal Revenue Code of 1986 (26 U S.C.
9509)
SEC 1305 INSPECFION AND ENTRY.
Section 311(m) of the Federal Water Pollution Control Act (33
U S C 1321(m)) is amended to read as follows
“(m) ADMINISTRATIVE PRovisIoNs.—
“(1) FOR VESSELS —Anyone authorized by the President to
enforce the provisions of this section with respect to any vessel
may, except as to public vessels—
“(A) board and inspect any vessel upon the navigable
waters of the United States or the waters of the contiguous
zone,
“(B) with or without a warrant, arrest any person who in
the presence or view of the authorized person violates the
provisions of this section or any regulation issued there-
under, and
“(C) execute any warrant or other process issued by an
officer or court of competent jurisdiction
“(2) Fon FACILITIES —
“(A) RECORDKEEPING.—WheneVer required to carry out
the purposes of this section, the Administrator or the Sec-
retary of the Department in which the Coast Guard is
operating shall require the owner or operator of a facility to
which this section applies to establish and maintain such
records, make such reports, install, use, and maintain such
monitoring equipment and methods, and provide such other
information as the Administrator or Secretary, as the case
may be, may require to carry out the objectives of this
section.
“(B) ENTRY AND INSPECTION —Whenever required to carry
out the purposes of this section, the Administrator or the
Secretary of the Department in which the Coast Guard is
operating or an authorized representative of the Adminis-
trator or Secretary, upon presentation of appropriate
credentials, may—
“(i) enter and inspect any facility to which this eec-
(ion applies, including any facility at which any records
are required to be maintained under subparagraph (A);
and
“(ii) at reasonable times, have access to and copy any
records, take samples, and inspect any monitoring
equipment or methods required under subparagraph
(A).
“(C) Aaa rs AND EXECUTION OF WARRANTh.—AnyOne au-
thorized by the Administrator or the Secretary of the
department in which the Coast Guard is operating to en-
force the provisions of this section with respect to any
facility may—
“U) with or without a warrant, arrest any person who
violates the provisions of this section or any regulation
issued thereunder in the presence or view of the person
so authorized; and
“(ii) execute any warrant or process issued by an
officer or court of competent jurisdiction.
“(fl) PUBLIC ACCESS.—Any records, reports, or information
obtained under this paragraph shall be subject to the same
public access and disclosure requirements which are ap-
plicable to records, reports, and information obtained
pursuant to section 308.”.
SEC. 4306. CIVIL ENFORCEMENT UNDER FEDERAL WATER POLLUTION
CONTROL ACT.
Section 311(e) of the Federal Water Pollution Control Act (33
U.S.C. 1321) is amended to read as follows:
“(e) Cxvn. Envoacv. airr.—
“(1) ORDERS PROTECFINO PUBLIC HEALTH —In addition to any
action taken by a State or local government, when the President
determines that there may be an imminent and substantial
threat to the public health or welfare of the United States,
including fish, shellfish, and wildlife, public and private prop-
erty, shorelines, beaches, habitat, and other living and
nonliving natural resources under the jurisdiction or control of
the United States, because of an actual or threatened discharge
of oil or a hazardous substance from a vessel or facility in
violation of subsection (b), the President may—
“(A) require the Attorney General to secure any relief
from any person, including the owner or operator of the
vessel or facility, as may be necessary to abate such
endangerment; or
“(B) after notice to the affected State, take any other
action .under this section, including issuing administrative
orders, that may be necessary to protect the public health
and welfare.
“(2) JURISDICTION OF DISTRICT COURTS.—The district courts of
the Udited States shall have jurisdiction to grant any relief
under this subsection that the public interest and the equities of
the case may require”
State nd local
governmenta
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STAT. 542 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT. 543
TITLE V—PRINCE WILLIAM SOUND
PROVISIONS
(a) ESTABLISHMENT OF INSTITUTE.—The Secretary of Commerce
shall provide for the establishment of a Prince William Sound Oil
Spill Recovery Institute (hereinafter in this section referred to as
the “Institute”) to be administered by the Secretary of Commerce
through the Prince William Sound Science and Technology Institute
and located in Cordova, Alaska.
(b) FUNCTIONS.—The Institute shall conduct research and carry
out educational and demonstration projects designed to—
(1) identify and develop the best available techniques, equip-
ment, and materials for dealing with oil spills in the arctic and
subarctic marine environment; and
(2) complement Federal and State damage assessment efforts
and determine, document, assess, and understand the long.
range effects of the EXXON VALDEZ oil spill on the natural
resources of Prince William Sound and its adjacent waters (as
generally depicted on the map entitled “EXXON VALDEZ oil
spill dated March 1990”), and the environment, the economy,
and the lifestyle and well-being of the people who are dependent
on them, except that the Institute shall not conduct studies or
make recommendations on’ ny matter which is not directly
related to the EXXON VALDEZ oil spill or the effects thereof
(c) ADVISORY BOARD.—
(1) IN GENERAL —The policies of the Institute shall be deter-
mined by an advisory board, composed of 18 members appointed
as follows:
(A) One representative appointed by each of the Commis-
sioners of Fish and Game, Environmental Conservation,
Natural Resources, and Commerce and Economic Develop-
ment of the State of Alaska, all of whom shall be State
employees.
(B) One representative appointed by each of—
(i) the Secretaries of Commerce, the Interior, Agri-
culture, Transportation, and the Navy; and
(ii) the Administrator of the Environmental Protec-
tion Agency,
all of whom shall be Federal employees
(C) 4 representatives appointed by the Secretary of Com-
merce from among residents of communities in Alaska that
were affected by the EXXON VALDEZ oil spill who are
knowledgeable about fisheries, other local industries, the
marine environment, wildlife, public health, safety, or edu-
cation. At least 2 of the representatives shall be appointed
from among residents of communities located in Prince
William Sound The Secretary shall appoint residents to
serve terms of 2 years each, from a list of 8 qualified
individuals to be submitted by the Governor of the State of
Alaska based on recommendations made by the governing
body of each affected community. Each affected community
y submit the names of 2 qualified individuals for the
,vernor’s consideration. No more than 5 of the 8 qualified
persons recommended by the Governor shall be members of
the same political party.
(D) 3 Alaska Natives who represent Native entities af-
fected by the EXXON VALDEZ oil spill, at least one of
whom represents an entity located in Prince William
Sound, to serve terms of 2 years each from a list of 6
qualified individuals submitted by the Alaska Federation of
Natives.
(E) One nonvoting representative of the Institute of
Marine Science.
(F) One nonvoting representative appointed by the Prince
William Sound Science and Technology Institute.
(2) CH iRr w .—The representative of the Secretary of Com-
merce shall serve as Chairman of the Advisory Board.
(3) PoucIEs.—Policiefi determined by the Advisory Board
under this subsection shall include policies for the conduct and
support, through contracts and grants awarded on a nationally
competitive basis, of research, projects, and studies to be sup-
ported by the Institute in accordance with the purposes of this
section.
(d) SCIENTIFIC M TEchnicAl. COMMITFEE.—
(1) In GENERAL—The Advisory Board shall establish a sci-
entific and technical committee, composed of specialists in mat-
ters relating to oil spill containment and cleanup technology,
arctic and subarctic marine ecology, and the living resources
and socioeconomics of Prince William Sound and its adjacent
waters, from the University of Alaska, the Institute of Marine
Science, the Prince William Sound Science and Technology
Institute, and elsewhere in the academic community.
(2) FuNc’rlons.—The Scientific and Technical Committee shall
provide such advice to the Advisory Board as the Advisory
Board shall request, including recommendations regarding the
conduct and 8Upport of research, projects, and studies in accord-
ance with the purposes of this section. The Advisory Board shall
not request, and the Committee shall not provide, any advice
which is not directly related to the EXXON VALDEZ oil spill or
the effects thereof.
(e) DIRECTOR —The Institute shall be administered by a Director
appointed by the Secretary of Commerce. The Prince William Sound
Science and Technology Institute, the Advisory Board, and the
Scientific and Technical Committee may each submit independent
recommendations for the Secretary’s consideration for appointment
as Director. The Director may hire such staff and incur such ex-
penses on behalf of the Institute as are authorized by the Advisory
Board.
(f) EVALUATION.—The Secretary of Commerce may conduct an
ongoing evaluation of the activities of the Institute to ensure that
funds received by the Institute are used in a manner consistent with
this section.
(g) Auorr —The Comptroller General of the United States, and
any of his or her duly authorized representatives, shall have access,
for purposes of audit and examination, to any books, documents,
,ers, and records of the Institute and its administering agenc’
are pertinent to the funds received and expended by U
.,titute and ifR lminiqtpriy,rv
.ka
arch and
( ‘Iopment
.JSC 2731 SEC. 5001. OIL SPILL RECOVERY INSTITUTE.
Eetabjishment
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STAT. 544 PUBLIC LAW 101-380-—AUG 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT. 5
(h) STATUS OF EMPWYEEs.—Employees of the Institute shall not,
by reason of such employment, be considered to be employees of the
Federal Government for any purpose.
(1) TERMINATION.—The Institute shall terminate 10 years after the
date of the enactment of this Act.
(j) USE OF FUNDS —All funds authorized for the Institute shall be
provided through the National Oceanic and Atmospheric Adminis-
tration. No funds made available to carry out this section may be
used to initiate litigation No funds made available to carry out this
section may be used for the acquisition of real property (including
buildings) or construction of any building No more than 20 percent
of funds made available to carry out this section may be used to
lease necessary facilities and to administer the Institute. None of
the funds authorized by this section shall be used for any purpose
other than the functions specified in subsection (b).
IC (k) RESEARCH—The Institute shall publish and make available to
mation any person upon request the results of all research, educational, and
demonstration projects conducted by the Institute The Admiriis-
trator shall provide a copy of all research, educational, and dem-
onstration projects conducted by the Institute to the National Oce-
anic and Atmospheric Administration.
(1) DEFINITIONS —In this section, the term “Prince William Sound
and its ndjacent waters” means such sound and waters as generally
depicted on the map entitled “EXXON VALDEZ oil spiii dated
March 1990”
SEC 5002 TERMINAL AND TANKER VERS!GIIT AND MONITORING.
(a) ShoRT TITLE AND FINDINGS —
U) SHORT TITLE —This section may be cited as the “Oil Termi-
nal arid Oil Tanker Environmental Oversight and Monitoring
Act of 1990”
(2) FINDINGs —The Congress finds that—
(A) the March 24, 1989, grounding and rupture of the
fully loaded oil tanker, the EXXON VALDEZ, spilled 11
million gallons of crude oil in Prince William Sound, an
environmentally sensitive area;
(B) many people believe that complacency on the part of
the industry and government personnel recporisible for
monitoring the operation of the Valdez terminal and vessel
traffic in Prince William Sound was one of the contributing
factors to the EXXON VALDEZ oil spill,
(C) one way to combat this complacency is to involve local
citizens in the process of preparing, adopting, and revising
oil spill contingency plans;
(D) a mechanism should be established which fosters the
long-term partnership of industry, government, and local
communities in overseeing compliance with environmental
concerns in the operation of crude oil terminals;
(E) such a mechanism presently exists at the Sullom Voe
terminal in the Shetland Islands and this terminal should
serve as a model for others;
(F) because of the effective partnership that has devel-
oped at Sullom Voe, Sullom Voe is considered the safest
terminal in Europe,
(G) the present system of regulation and oversight of
crude oil terminals in the United States has degenerated
into a process of continual mistrust and confrontation;
(H) only when local citizens are involved in the process
will the trust develop that is necessary to change the
present system from confrontation to consensus;
(I) a pilot program patterned after Sullom Voe should be
established in Alaska to further reline the concepts and
relationships involved; and
(J) similar programs should eventually be established in
other major crude oil terminals in the United States be-
cause the recent oil spills in Texas, Delaware, and Rhode
Island indicate that the safe transportation of crude oil is a
national problem.
(b) DEMONSTRATION PROGRAMS.—
(1) ESTABLISHMENT—There are established 2 Oil Terminal
and Oil Tanker Environmental Oversight and Monitoring Dem-
onstration Programs (hereinafter referred to as “Programs”) to
be carried out in the State of Alaska.
(2) ADvISORY FUNCI1ON.—The function of these Programs
shall be advisory only.
(3) Puaioss .—The Prince William Sound Program shall be
responsible for environmental monitoring of the terminal facili-
ties in Prince William Sound and the crude oil tankers operat-
ing in Prince William Sound. The Cook Inlet Program shall be
responsible for environmental monitoring of the terminal facili-
ties and crude oil tankers operating in Cook Inlet located South
of the latitude at Point Possession and North of the latitude at
Amatuli Island, including offshore facilities in Cook Inlet.
(4) Surrs BARRED.—No program, association, council, commit-
tee or other organization created by this section may sue any
person or entity, public or private, concerning any matter aris-
ing under this section except for the performance of contracts
(c) OIL TERMINAL FACILITIES AND On. TANKER OPERATIONS
ASSOCIATION.—
(1) ESTABLISHMENT.—There is established an Oil Terminal
Facilities and Oil Tanker Operations Association (hereinafter in
this section referred to as the “Association”) for each of the
Programs established under subsection (b).
(2) MEMBERSHIP.—EBCh Association shall be comprised of 4
individuals as followw
(A) One individual shall be designated by the owners and
operators of the terminal facilities and shall represent
those owners and operators.
(B) One individual shall be designated by the owners and
operators of the crude oil tankers calling at the terminal
facilities and shall represent those owners and operators
(C) One individual shall be an employee of the State of
Alaska, shall be designated by the Governor of the State of
Alaska, and shall represent the State government.
(D) One individual shall be an employee of the Federal
Government, shall be designated by the President, and
shall represent the Federal Government.
(3) RESPONSIBILITIPS —Each Association shall be responsible
for reviewing policies relating to the operation and mainte-
nance of the oil terminal facilities and crude oil tankers which
affect or may affect the environment in the vicinity of their
respective terminals. Each Association shall provide a forum
among the owners and operators of the terminal facilities, the
‘ ,wnnr nr,. 4 -,-.,..-. I —
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1,1 Tanker
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STAT 546 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT. 54
facilities, the United States, and the State of Alaska to discuss
and to make recommendations concerning all permits, plans,
and site-specific regulations governing the activities and actions
of the terminal facilities which affect or may affect the environ-
ment in the vicinity of the terminal facilities and of crude oil
tankers calling at those facilities.
(4) DESIGNATION OF EXISTING ORCANIz4VFI0N.—The Secretary
may designate an existing nonprofit organization as an Associa-
tion under this subsection if the organization is organized to
meet the purposes of this section and consists of at least the
individuals listed in paragraph (2).
(d) REGIONAL CITIZENS’ ADVISORY COUNCILS.—
(1) MEMBERSHIP —There is established a Regional Citizens’
Advisory Council (hereinafter in this section referred to as the
“Council”) for each of the programs established by subsection
(b)
(2) MEMBERSHIP —Each Council shall be composed of voting
members and nonvoting members, as follows.
(A) VOTING MEMBERS —Voting members shall be Alaska
residents and, except as provided in clause (vii) of this
paragraph, shall be appointed by the Governor of the State
of Alaska from a list of nominees provided by each of the
following interests, with one representative appointed to
represent each of the following interests, taking into consid-
eration the need for regional balance on the Council:
(U Local commercml fishing industry organizations,
the members of which depend on the fisheries re-
sources of the waters in the vicinity of the terminal
facilities.
(ii) Aquaculture associations in the vicinity of the
terminal facilities.
(iii) Alaska Native Corporations and other Alaska
Native organizations the members of which reside in
the vicinity of the terminal facilities.
(iv) Environmental organizations the members of
which reside in the vicinity of the terminal facilities.
(v) Recreational organizations the members of which
reside in or use the vicinity of the terminal facilities
(vi) The Alaska State Chamber of Commerce, to rep-
resent the locally based tourist industry.
(viiXl) For the Prince William Sound Terminal Facili-
ties Council, one representative selected by each of the
following municipalities: Cordova, Whittier, Seward,
Valdez, Kodiak, the Kodiak Island Borough, and the
Kenai Peninsula Borough.
(II) For the Cook Inlet Terminal Facilities Council,
one representative selected by each of the following
municipalities: Homer, Seldovia, Anchorage, Kenai,
Kodiak, the Kodiak Island Borough, and the Kenai
Peninsula Borough
(B) NONVOTING MEMBERS.—One ex-officio, nonvoting rep-
resentative shall be designated by, and represent, each of
the following
(0 The Environmental Protection Agency.
(ii) The Coast Guard.
(‘ii) The National Oceanic and Atmospheric Adminis-
I IE’ ,
(iv) The United States Forest Service.
(v) The Bureau of Land Management.
(vi) The Alaska Department of Environmental Con.
servation.
(vii) The Alaska Department of Fish and Game.
(viii) The Alaska Department of Natural Resources.
(ix) The Division of Emergency Services, Alaska
Department of Military and Veterans Affairs.
(3) Tasi,is.—
(A) DUItATION OF COUNCILS.—The term of the Councils
shall continue throughout the life of the operation of the
Trans-Alaska Pipeline System and so long as oil is trans-
ported to or from Cook Inlet.
(B) THREE YEAP.8.—The voting members of each Council
shall be appointed for a term of 3 years except as provided
for in subparagraph (C).
(C) INmAL APPOINTMENTS.—The terms of the first
appointments shall be as follows:
(I) For the appointments by the Governor of the State
of Alaska, one-third shall serve for 3 years, one-third
shall serve for 2 years, and one-third shall serve for one
year.
(ii) For the representatives of municipalities required
by subsection (dX2XAXvii), a drawing of lots among the
appointees shall determine that one-third of that group
serves for 3 years, one-third serves for 2 years, and the
remainder serves for 1 year.
(4) SELF-GOVERNINO.—EaCh Council shall elect its own chair-
person, select its own staff, and make policies with regard to its
internal operating procedures. After the initial organizational
meeting called by the Secretary under subsection (i), each Coun-
cil shall be self-governing.
(5) DUAL MEMBERSHIP AND CONFLICTS OF INTEREST PROHIB-
n-ED.—(A) No individual selected as a member of the Council
shall serve on the Association.
(B), No individual selected as a voting member of the Council
shall be engaged in any activity which might conflict with such
individual carrying out his functions as a member thereof.
(6) DU’rIES.—Each Council shall—
(A) provide advice and recommendations to the Associa-
tion on policies, permits, and site-specific regulations relat-
ing to the operation and maintenance of terminal facilities
and crude oil tankers which affect or may affect the
environment in the vicinity of the terminal facilities;
(B) monitor through the committee established under
subsection (e), the environmental impacts of the operation
of the terminal facilities and crude oil tankers;
(C) monitor those aspects of terminal facilities’ and crude
oil tankers’ operations and maintenance which affect or
may affect the environment in the vicinity of the terminal
facilities;
(D) review through the committee established under
subsection (f), the adequacy of oil spill prevention and
contingency plans for the terminal facilities and the ade-
quacy of oil spill prevention and contingency plans f
crude oil tankers, operating in Prince William Sound or
Co ,k Tnls h
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104 STAT. 548 PUBLIC LAW 101-380—AUG 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT
(E) provide advice and recommendations to the Associa-
tion on port operations, policies and practices;
(F) recommend to the Association—
(i) standards and stipulations for permits and site.
specific regulations intended to minimize the impact of
the terminal facilities’ and crude oil tankers oper-
ations in the vicinity of the terminal facilities;
(ii) modifications of terminal facility operations and
maintenance intended to minimize the risk and miti-
gate the impact of terminal facilities, operations in the
vicinity of the terminal facilities and to minimize the
risk of oil spills,
(iii) modifications of crude oil tanker operations and
maintenance in Prince William Sound and Cook Inlet
intended to minimize the risk and mitigate the impact
of oil spills; and
(iv) modifications to the oil spill prevention and
contingency plans for terminal facilities and for crude
oil tankers in Prince William Sound and Cook Inlet
intended to enhance the ability to prevent and respond
to an oil spill; and
(G) create additional committees of the Council as nec-
essary to carry out the above functions, including a sci-
entific and technical advisory committee to the Prince Wi !-
ham Sound Council
(7) No ESTOPPEL —No ouncil shall be held liable under State
or Federal law for costs or damages as a result of rendering
advice under this section Nor shall any advice given by a voting
member of a Council, or program representative or agent, be
grounds for estopping the interests represented by the voting
Council members from seeking damages or other appropriate
relief
(8) SCIENTIFIC WORK.—Ifl carrying out its research, develop-
ment and monitoring functions, each Council is authorized to
conduct its own scientific research and shall review the sci-
entific work undertaken by or on behalf of the terminal opera-
tors or crude oil tanker operators as a result of a legal require-
ment to undertake that work Each Council shall also review
the relevant scientific work undertaken by or on behalf of any
government entity relating to the terminal facilities or crude oil
tankers To the extent possible, to avoid unnecessary duplica-
tion, each Council shall coordinate its independent scientific
work with the scientific work performed by or on behalf of the
terminal operators and with the scientific work performed by or
on behalf of the operators of the crude oil tankers
(e) COMMITrEE FOR TERMINAL AND OIL TANKER OPERATIONS AND
ENVIRONMENTAL MONITORING.—
(1) MONIToRING COMMITTEE.—Each Council shall establish a
standing Terminal and Oil Tanker Operations and Environ-
mental Monitoring Committee (hereinafter in this section re-
ferred to as the “Monitoring Committee”) to devise and manage
a comprehensive program of monitoring the environmental
impacts of the operations of terminal facilities and of crude oil
tankers while operating in Prince William Sound and Cook
Inlet. The membership of the Monitoring Committee shall be
made up of members of the Council, citizens, and recognized
scientific experts selected by the Council.
(2) DunEs.—In fulfilling its responsibilities, the Monitoring
Committee shall—
(A) advise the Council on a monitoring strategy that will
permit early detection of environmental impacts of termi-
nal facility operations and crude oil tanker operations
while in Prince William Sound and Cook Inlet;
(B) develop monitoring programs and make recommenda-
tions to the Council on the implementation of those pro-
grams;
(C) at its discretion, select and contract with universities
and other scientific institutions to carry out specific mon-
itoring projects authorized by the Council pursuant to an
approved monitoring strategy;
(D) complete any other tasks assigned by the Council; and
(E) provide written reports to the Council which interpret
and assess the results of all monitoring programs.
(0 COMMITtEE FOR OIL SPILL PREVENTION, SAFETY, AND EMER-
CEN y RESPONSE.—
(1) TECHNICAL OIL SPILL COMMFFrEE.—Each Council shall
establish a standing technical committee (hereinafter referred
to as “Oil Spill Committee”) to review and assess measures
designed to prevent oil spills and the planning and prepared-
ness for responding to, containing, cleaning up, and mitigating
impacts of oil spills. The membership of the Oil Spill Committee
shall be made up of members of the Council, citizens, and
recognized technical experts selected by the Council.
(2) DunEs—In fulfilling its responsibilities, the Oil Spill
Committee shall—
(A) periodically review the respective oil spill prevention
and contingency plans for the terminal facilities and for the
crude oil tankers while in Prince William Sound or Cook
Inlet, in light of new technological developments and
changed circumstances;
(B) monitor periodic drills and testing of the oil spill
contingency plans for the terminal facilities and for crude
oil tankers while in Prince William Sound and Cook Inlet;
(C) study wind and water currents and other environ-
mental factors in the vicinity of the terminal facilities
which may affect the ability to prevent, respond to, contain,
and clean up an oil spill;
(D) identify highly sensitive areas which may require
specific protective measures in the event of a spill in Prince
William Sound or Cook Inlet;
(E) monitor developments in oil spill prevention, contain-
ment, response, and cleanup technology;
(F) penodicahly review port organization, operations, in-
cidents, and the adequacy and maintenance of vessel traffic
service systems designed to ussure safe transit of crude oil
tankers pertinent to terminal operations;
(G) periodically review the standards for tankers bound
for, loading at, exiting from, or otherwise using the termi-
nal facilities;
(H) complete any other tasks assigned by the Council; and
(I) provide written report8 to the Council Outlining its
findings and recommendations.
(g) AGENCY COOPERATION —On and after the expiration of the 180-
day period followjniri th dc,tp r ,f thc +1,,.. --.4.- -‘
Reports
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I STAT 550 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT. 5!
Federal department, agency, or other instrumentality shall, with
respect to all permits, site-specific regulations, and other matters
governing the activities and actions of the terminal facilities which
affect or may affect the vicinity of the terminal facilities, consult
with the appropriate Council prior to taking substantive action with
respect to the permit, site-specific regulation, or other matter. This
consultation shall be carried out with a view to enabling the appro-
priate Association and Council to review the permit, site-specific
regulation, or other matters and make appropriate recommenda-
tions regarding operations, policy or agency actions. Prior consulta-
tion shall not be required if an authorized Federal agency represent-
ative reasonably believes that an emergency exists requiring action
without delay.
(h) RECOMMENDATIONS OF THE COUNCIL —In the event that the
Association does not adopt, or significantly modifies before adoption,
any recommendation of the Council made pursuant to the authority
granted to the Council in subsection (d), the Association shall pro-
vide to the Council, in writing, within 5 days of its decision, notice of
its decision and a written statement of reasons for its rejection or
significant modification of the recommendation
U) ADMINISTRATIVE Ac-rloNs.—Appointments, designations, and
selections of individuals to serve as members of the Associations and
Councils under this section shall be submitted to the Secretary prior
to the expiration of the 120-day period following the date of the
enactment of this section On before the expiration of the 180-day
period following that date of enactment of this section, the Secretary
shall call an initial meeting of each Association and Council for
organizational purposes.
(j) LOCATION AND COMPENSATION.—
(1) LOCATION —Each Association and Council established by
this section shall be located in the State of Alaska.
(2) COMPENSATION —No member of an Association or Council
shall be compensated for the member’s services as a member of
the Association or Council, but shall be allowed travel expenses,
including per diem in lieu of subsistence, at a rate established
by the Association or Council not to exceed the rates authorized
for employees of agencies under sections 5702 and 5703 of title 5,
United States Code. However, each Council may enter into
contracts to provide compensation and expenses to members of
the committees created under subsections (d), (e), and (f).
(k) FUN DING.—
(1) REQUIREMENT—Approval of the contingency plans re-
quired of owners and operators of the Cook Inlet and Prince
William Sound terminal facilities and crude oil tankers while
operating in Alaskan waters in commerce with those terminal
facilities shall be effective only so long as the respective Associa-
tion and Council for a facility are funded pursuant to paragraph
(2).
(2) PRINCE WILLIAM SOUND PROGRAM —The owners or opera-
tors of terminal facilities or crude oil tankers operaling in
Prince William Sound shall provide, on an annual basis, an
aggregate amount of not more than $2,000,000, as determined
by the Secretary. Such amount—
(A) shall provide for the establishment and operation on
the environmental oversight and monitoring program in
P,-,nre Wi1l ,n Sniinrl
(B) shall be adjusted annually by the Anchorage
Consumer Price Index; and
(C) may be adjusted periodically upon the mutual coflsent
of the owners or operators of terminal facilities or crude oil
tankers operating in Prince William Sound and the Prince
William Sound terminal facilities Council.
(3) COOK INLET PROGRAM—The owners or operators of termi-
nal facilities, offshore facilities, or crude oil tankers operating
in Cook Inlet shall provide, on an annual basis, an aggregate
amount of not more than $1,000,000, as determined by the
Secretary. Such amount—
(A) shall provide for the establishment and operation of
the environmental oversight and monitoring program in
Cook Inlet;
(B) shall be adjusted annually by the Anchorage
Consumer Price Index; and
(C) may be adjusted periodically upon the mutual consent
of the owners or operators of terminal facilities, offshore
facilities, or crude oil tankers operating in Cook Inlet and
the Cook Inlet Council.
(I) REPORTS.—
(1) ASSOCIATIONS AND COUNCILS.—Prior to the expiration of
the 36-month period following the date of the enactment of this
section, each Association and Council established by this section
shall report to the President and the Congress concerning its
activities under this section, together with its recommendations.
(2) GAO.—Prior to the expiration of the 36-month period
following the date of the enactment of this section, the General
Accounting Office shall report to the President and the Con-
gress as to the handling of funds, including donated funds, by
the entities carrying out the programs under this section, and
the effectiveness of the demonstration programs carried out
under this section, together with its recommendations.
(m) DEFINITIONS.—AS used in this section, the term—
(1) “terminal facilities” means—
(A) in the case of the Prince William Sound Program, the
entire oil terminal complex located in Valdez, Alaska,
consisting of approximately 1,000 acres including all build-
ings, docks (except docks owned by the City of Valdez if
those docks are not used for loading of crude oil), pipes,
piping, roads, ponds, tanks, crude oil tankers only while at
the terminal dock, tanker escorts owned or operated by the
operator of the terminal, vehicles, and other facilities asso-
ciated with, and necessary for, assisting tanker movement
of crude oil into and out of the oil terminal complex; and
(B) in the case of the Cook Inlet-Program, the entire oil
terminal complex including all buildings, docks, pipes,
piping, roads, ponds, tanks, vessels, vehicles, crude oil tank-
ers:only while at the terminal dock, tanker escorts owned
or operated by the operator of the terminal, emergency spill
response vessels owned or operated by the operator of the
terminal, and other facilities associated with, and necessary
for, assisting tanker movement of crude oil into and out of
the oil terminal complex;
(2) “crude oil tanker” means a tanker (as that term is def
itnrlar c ’tinn 71(11 r ,ftitln ,1 TT ,,;s.,, (‘.- .1 .\
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104 STAT. 552 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT
(A) in the case of the Prince William Sound Program,
calling at the terminal facilities for the purpose of receiving
and transporting oil to refineries, operating north of
Middleston Island and bound for or exiting from Prince
William Sound; and
(B) in the case of the Cook Inlet Program, calling at the
terminal facilities for the purpose of receiving and
transporting oil to refineries and operating in Cook Inlet
and the Gulf of Alaska north of Amatuli Island, including
tankers transiting to Cook Inlet from Prince William
Sound;
(3) “vicinity of the terminal facilities” means that geographi-
cal area surrounding the environment of terminal facilities
which is directly affected or may be directly affected by the
operation of the terminal facilities, and
(4) “Secretary” means the Secretary of Transportation.
(n) SAVINGS CLAUSE —
(1) REGULATORY AUTHORITY —Nothing in this section shall be
construed as modifying, repealing, superseding, or preempting
any municipal, State or Federal law or regulation, or in any
way affecting litigation arising from oil spills or the rights and
responsibilities of the United States or the State of Alaska, or
municipalities thereof, to preserve and protect the environment
through regulation of land, air, and water uses, of safety, and of
related development The monitoring provided for by this sec-
tion shall be designed to’ elp assure compliance with applicable
laws and regulations and shall only extend to activities—
(A) that would affect or have the potential to affect the
vicinity of the terminal facilities and the area of crude oil
tanker operations included in the Programs; and
(B) are subject to the United States or State of Alaska, or
municipality thereof, law, regulation, or other legal require-
men t
(2) RECOMMENDATIONS —This subsection is not intended to
prevent the Association or Council from recommending to
appropriate authorities that existing legal requirements should
be modified or that new legal requirements should be adopted
(o) ALTERNATIVE VOLUNTARY Aovxsonv GROUP IN LIEU OF COUN-
ciL.—The requirements of subsections (c) through (I), as such subsec-
tions apply respectively to the Prince William Sound Program and
the Cook Inlet Program, are deemed to have been satisfied so long as
the following conditions are met:
(1) PRINCE WILLIAM SOUND —With respect to the Prince Wil-
liam Sound Program, the Alyeska Pipeline Service Company or
any of its owner companies enters into a contract for the
duration of the operation of the Trans-Alaska Pipeline System
with the Alyeska Citizens Advisory Committee in existence on
the date of enactment of this section, or a successor organiza-
tion, to fund that Committee or organization on an annual basis
in the amount provided for by subsection (kX2XA) and the
President annually certifies that the Committee or organization
fosters the general goals and purposes of this section and is
broadly repiesentative of the communities and interests in the
vicinity of the terminal facilities and Prince William Sound
(2) CooK INLET —With respect to the Cook Inlet Program, the
terminal facilities, offshore facilities, or crude oil tanker owners
and operators enter into a contract with a voluntary advisory
organization to fund that oranization on an annual basis and
the President annually certifies that the organization fosters
the general goals and purposes of this section and is broadly
representative of the communities and interests in the vicinity
of the terminal facilities and Cook Inlet.
SEC. 5003. BLIGII REEf’ LIGHT.
The Secretary of Transportation shall within one year after the
date of the enactment of this title install and ensure operation of an
automated navigation light on or adjacent to Bligh Reef in Prince
William Sound, Alaska, of sufficient power and height to provide
long-range warning of the location of Bligh Reef.
SEC. 5004. VESSEL TRAFFIC SERVICE SYSTEM.
The Secretary of Transportation shall within one year after the
date of the enactment of this title—
(1) acquire, install, and operate such additional equipment
(which may consist of radar, closed circuit television, satellite
tracking systems, or other shipboard dependent surveillance),
train and locate such personnel, and issue such final regulations
as are necessary to increase the range of the existing VTS
system in the Port of Valdez, Alaska, sufficiently to track the
locations and movements of tank vessels carrying oil from the
Trans-Alaska Pipeline when such vessels are transiting Prince
William Sound, Alaska, and to sound an audible alarm when
such tankers depart from designated navigation routes; and
(2) submit to the Committee on Commerce, Science, and
Transportation of the Senate and the Committee on Merchant
Marine and Fisheries of the House of Representatives a report
on the feasibility and desirability of instituting positive control
of tank vessel movements in Prince William Sound by Coast
Guard personnel using the Port of Valdez, Alaska, VTS system,
as modified pursuant to paragraph (1).
SEC. 5005. EQUIPMENT AND PERSONNEL REQUIREMENTS UNDER TANK 33 USC 27
VESSEL AND FACILITY RESPONSE PLANS.
(a) IN GENERAL—In addition to the requirements for response
plans for vessels established by section 311(j) of the Federal Water
Pollution Control Act, as amended by this Act, a response plan for a
tank vessel operating on Prince William Sound, or a facility per-
mitted under the Trans-Alaska Pipeline Authorization Act (43
U.S.C. 1651 et seq ). shall provide for—
(1) prepositioned oil spill containment and removal equipment
in communities and other strategic locations within the geo-
graphic boundaries of Prince William Sound, including escort
vessels with skimming capability; barges to receive recovered
oil; heavy duty sea boom, pumping, transferring, and lightering
equipment; and other appropriate removal equipment for the
protection of the environment, including fish hatcheries;
(2) the establishment of an oil spill removal organization at
appropriate locations in Prince William Sound, consisting of
trained personnel in sufficient numbers to immediately remove,
to the maximum extent practicable, a worst case discharge or a
discharge of 200,000 barrels of oil, whichever is greater;
(3) training in oil removal techniques for local residents and
individuals engaged in the cultivation or production of fish or
fish products in Prinrp Willinm
33 USC V
3J USC V
Regulatior
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1)4 STAT 554 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT.
(4) practice exercises not less than 2 times per year which test
the capacity of the equipment and personnel required under
this paragraph; and
(5) periodic testing and certification of equipment required
under this paragraph, as required by the Secretary.
(b) DEFINITIONS —In this section—
(1) the term “Prince William Sound” means all State and
Federal waters within Prince William Sound, Alaska, including
the approach to Hinchenbrook Entrance out to and encompass-
ing Seal Rocks, and
(2) the term “worst case discharge” means—
(A) in the case of a vessel, a discharge in adverse weather
conditions of its entire cargo; and
(B) in the case of a facility, the largest foreseeable dis-
charge in adverse weather conditions
USC 2736 SEC. 5006. FUNDING
(a) SECTION 5001 —Amounts in the Fund shall be available, sub-
ject to appropriations, and shall remain available until expended, to
carry out section 5001 as follows
(1) $5,000,000 shall be available for the first fiscal year begin-
ning after the date of enactment of this Act
(2) $2,000,000 shall be available for each of the 9 fiscal years
following the fiscal year described in paragraph (1)
(b) SECTIONS 5003 AND 5004 —Amounts in the Fund shall be
available, without further aj ropriations and without fiscal year
limitation, to carry out sections 5003 and 5004, in an amount not to
exceed $5,000,000
USC 2737 SEC 5007. LIMITATION
Notwithstanding any other law, tank vessels that have spilled
more than 1,000,000 gallons of oil into the marine environment after
March 22, 1989, are prohibited from operating on the navigable
waters of Prince William Sound, Alaska.
TITLE VI—MISCELLANEOUS
USC 2751 SEC. 6001 SAVINGS PROS ISIONS.
(a) CRoss-REFERENCES —A reference to a law replaced by this Act,
including a reference in a regulation, order, or other law, is deemed
to refer to the corresponding provision of this Act
(b) CONTINUATION OF REGULATIONS —An order, rule, or regulation
in effect under a law ieplaced by this Act continues in effect under
the corresponding provision of this Act until repealed, amended, or
superseded.
(C) RuLE OF CONSTRuCTION —An inference of legislative construc-
tion shall not be dra n by reason of the caption or catch line of a
provision enacted by this Act.
(d) AcnoNs AND Ricwrs —Nothing in this Act shall apply to any
rights and duties that matured, penalties that were incurred, and
proceedings that were begun before the date of enactment of this
Act, except as provided by this section, and shall be adjudicated
purs iant to the law applicable on the date prior to the date of the
en ‘ant of this Act
iMIRALTY AND MARITIME LAw.—Except as otherwise provided
4. -. A. .4 4i...-. A..-. .
(1) admiralty and maritime law; or
(2) the jurisdiction of the district courts of the United States
with respect to civil actions under admiralty and maritime
jurisdiction, saving to suitors in all cases all other remedies to
which they are otherwise entitled.
SEC. 6002. ANNUAL APPROPRIATIONS.
(a) REQUIRED —Except as provided in subsection (b), amounts in
the Fund shall be available only as provided in annual appropria-
tion Acts.
(b) EXCEPTIONS —Subsection (a) shall not apply to sections 1006(f ),
lOl2(aX4), or 5006(b), and shall not apply to an amount not to exceed
$50,000,000 in any fiscal year which the President may make avail-
able from the Fund to carry out section 311(c) of the Federal Water
Pollution Control Act, as amended by this Act, and to initiate the
assessment of natural resources damages required under section
1006. Sums to which this subsection applies shall remain available
until expended.
SEC. 6003. OUTER BANKS PROTECTION.
(a) SHORT —This section may be cited as the “Outer Banks
Protection Act”.
(b) FINDINGS —The Congress finds that—
(1) the Outer Banks of North Carolina is an area of excep-
tional environmental fragility and beauty;
(2) the annual economic benefits of commercial and rec-
reational fishing activities to North Carolina, which could be
adversely affected by oil or gas development offshore the State’s
coast, exceeds $1,000,000,000;
(3) the major industry in coastal North Carolina is tourism,
which is subject to potentially significant disruption by offshore
oil or gas development;
(4) the physical oceanographic characteristics of the area
offshore North Carolina between Cape Hatteras and the mouth
of the Chesapeake Bay are not well understood, being affected
by Gulf Stream western boundary perturbations and accom-
panying warm filaments, warm and cold core rings which sepa-
rate from the Gulf Stream, wind stress, outflow from the Chesa-
peake Bay, Gulf Stream meanders, and intrusions of Virginia
coastal waters around and over the Diamond shoals;
(5) diverse and abundant fisheries resources occur in the
western boundary area of the Gulf Stream offshore North Caro-
lina, but little is understood of the complex ecological relation-
ships between the life histories of those species and their phys-
ical, chemical, and biological environment;
(6) the environmental impact statements prepared for Outer
Continental Shelf lease sales numbered 56 (1981) and 78 (1983)
contain insufficient and outdated environmeatal information
from which to make decisions on approval of additional oil and
gas leasing, exploration, and development activities;
(7) the draft environmental report, dated November 1, 1989,
and the preliminary final environmental report dated June 1,
1990, prepared pursuant to a July 14, 1989 memorandu 1 n of
understanding between the State of North Carolina, the Depart-
ment of the Interior, and the Mobil Oil Company, hay t
allayed concerns about the adequacy of the environr.
information available to determinp wh , thpr-tn- -’,--..-. . - ’
33 USC 275
Outer Rank
Protection I’
North Carol
33 USC 275 ’
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104 STAT 556 PUBLIC LAW 101—380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT.
additional offshore leasing, exploration, or development off-
shore North Carolina; and
(8) the National Research Council report entitled “The Ade-
quacy of Environmental Information for Outer Continental
Shelf Oil and Gas Decisions: Florida and California”, issued in
1989, concluded that—
(A) information with respect to those States, which have
received greater scrutiny than has North Carolina, is inad-
equate; and
(B) there are serious generic defects in the Minerals
Management Service’s methods of environmental analysis,
reinforcing concerns about the adequacy of the scientific and
technical information which.are the basis for a decision to lease
additional tracts or approve an exploration plan offshore North
Carolina, especially with respect to oceanographic, ecological,
and socioeconomic information
(c) PRoi-nBrnON OF OiL AND GAS LEASiNG, EXPLORATION, AND
DEVELOPMENT.—
(1) PeoHiarrioN —The Secretary of the Interior shall not—
(A) conduct a lease sale,
(B) issue any new leases,
(C) approve any exploration plan;
(D) approve any development and production plan;
(B) approve any application for permit to drill; or
(F) permit any drilling,
for oil or gas under the Duter Continental Shelf Lands Act on
any lands of the Outer Continental Shelf offshore North Caro-
lina
(2) BOUNDARiES —For purposes of paragraph (1), the term
“offshore North Carolina” means the area within the lateral
seaward boundaries between areas offshore North Carolina and
areas offshore—
(A) Virginia as provided in the joint resolution entitled
“Joint resolution granting the consent of Congress to an
agreement between the States of North Carolina and Vir-
ginia establishing their lateraL seaward boundary” ap-
proved October 27, 1972 (86 Stat 1298), and
(B) South Carolina as provided in the Act entitled “An
Act granting the consent of Congress to the agreement
between the States of North Carolina and South Carolina
establishing their lateral seaward boundary” approved
October 9, 1981 (95 Stat 988).
(3) Duanion OP PROHiBITION.—
(A) IN GENERAL.—The prohibition under paragraph (I)
shall remain in effect until the later of—
(i) October 1, 1991; or
(ii) 45 days of continuous session of the Congress after
submission of a written report to the Congress by the
Secretary of the Interior, made after consideration of
the findings and recommendations of the Environ-
mental Sciences Review Panel under subsection (e)—
(I) certifying that the information available,
including information acquired pursuant to subsec-
tion (d), is sufficient to enable the Secretary to
carry out his responsibilities under the Outer Con-
tinental Shelf Lands Act with respect to authoriz-
ing the activities described in paragraph (1); and
(II) including a detailed explanation of any dif-
ferences between such certification and the find-
ings and recommendations of the Environmental
Sciences Review Panel under subsection (e), and a
detailed justification of each such difference.
(B) CONTINUOUS 5 SION OP CONGRFss.—ln computing any
45-day period of continuous session of Congress under
subparagraph (AXii)—
(i) continuity of session is broken only by an adjourn-
ment.of the Congress sine die; and
(ii) the days on which either House of Congress is not
in session because of an adjournment of more than 3
days to a day certain are excluded.
(d) ADDITIONAL ENVIRONMENTAL INFORMAT1ON.—The Secretary of
the Interior shall undertake ecological and socioeconomic studies,
additional physical oceanographic studies, including actual field
work and the correlation of existing data, and other additional
environmental studies, to obtain sufficient information about all
significant conditions, processes, and environments which influence,
or may be influenced by, oil and gas leasing, exploration, and
development activities offshore North Carolina to enable the Sec-
retary to carry out his responsibilities under the Outer Continental
Shelf Lands Act with respect to authorizing the activities described
in subsection (c xl). During the time that the Environmental Sci-
ences Review Panel established under subsection (e) is in existence,
the Secretary of the Interior shall consult with such Panel in
carrying out this subsection.
(e) ENVIRONMENTAL 501 ENC REVIEW PANEL—
(1) EsrAsustmqEt,rr AND MEMREflSH1P.—There shall be estab-
lished an Environmental Sciences Review Panel, to consist of—
(A) I marine scientist selected by the Secretary of the
Interior;
(B) I marine scientist selected by the Governor of North
- Carolina; and
(C) 1 person each from the disciplines of physical oceanog-
raphy, ecology, and social science, to be selected jointly by
the Secretary of the Interior and the Governor of North
Carolina from a list of individuals nominated by the Na-
tional Academy of Sciences.
(2) FuncrioNs.—Not later than 6 months after the date of the
enactment of this Act, the Environmental Sciences Review
Panel shall—
(A) prepare and submit to the Secretary of the Interior
findings and recommendations—
(i) assessing the adequacy of available physical
oceanographic, ecological, and socioeconomic informa-
tion in enabling the Secretary to carry out his respon-
sibilities under the Outer Continental Shelf Lands Act
with respect to authorizing the activities described in
subsection (cXl); and
(ii) if such available information is not adequate for
such purposes, indicating what additional information
is required to enable the Secretary to carry out such
responsibilities; and
(B) consult with the Secretary of the Interior as provided
in subsection (r i)
Re ports
Esiablishmen
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104 STAT. 558 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT. 5
(3) EXPENSES.—EaCh member of the Environmental Sciences
Review Panel shall be reimbursed for actual travel expenses
and shall receive per diem in lieu of subsistence for each day
such member is engaged in the business of the Environmental
Sciences Review Panel.
(4) TERMINATION.—The Environmental Sciences Review Panel
shall be terminated after the submission of all findings and
recommendations required under paragraph (2XA).
(f) AUTHORIZATION OF AppR0PRIATIONS.—There are authorized to
be appropriated to the Secretary of the Interior to carry out this
section not to exceed $500,000 for fiscal year 1991, to remain avail-
able until expended.
SEC. 6004. COOPERATIVE DEVELOPMENT OF COMMON hYDROCARBON.
BEARING AREAS
(a) AMENDMENT TO OUTER CONTINENTAL SHELF LANDS Ac’r.—Sec-
tion 5 of the Outer Continental Shelf Lands Act, as amended (43
U S C 1334), is amended by adding a new subsection (j) as follows.
“(j) COOPERATIVE DEVELOPMENT OF COMMON HYDROCARBON-BEAR-
ING AREAS —
“(1) FINDINGS.—
“(A) The Congress of the United States finds that the
unrestrained competitive production of hydrocarbons from
a common hydrocarbon-bearing geological area underlying
the Federal and Sta boundary may result in a number of
harmful national eff cts, including—
“(i) the drilling of unnecessary wells, the installation
of unnecessary facilities and other imprudent operating
practices that result in economic waste, environmental
damage, and damage to life and property;
“(ii) the physical waste of hydrocarbons and an un-
necessary reduction in the amounts of hydrocarbons
that can be produced from certain hydrocarbon-bearing
areas; and
“(iii) the loss of correlative rights which can result in
the reduced value of national hydrocarbon resources
and disorders in the leasing of Federal and State
resources
“(2) PREVENTION OF HARMFUL EFFECFS.—The Secretary shall
prevent, through the cooperative development of an area, the
harmful effects of unrestrained competitive production of
hydrocarbons from a common hydrocarbon-bearing area under-
lying the Federal and State boundary.”.
Louisiana (b) EXCEPTION FOR WEST DELTA FIELn —Section 5(j) of the Outer
.1 USC 1334 Continental Shelf Lands Act, as added by this section, shall not be
note applicable with respect to Blocks 17 and 18 of the West Delta Field
offshore Louisiana.
(c) AUTHORIZATION OF APPROPRIATIONS.—There are hereby au-
thorized to be appropriated such sums as may be necessary to
provide compensation, including interest, to the State of Louisiana
and its lessees, for net drainage of oil and gas resources as deter-
mined in the Third Party Factfinder Louisiana Boundary Study
dated March 21, 1989. For purposes of this section, such lessees shall
ii’-’ - e those persons with an ownership interest in State of Louisi-
a a.ses SL10087, SL10088 or SL10187, or ownership interests in
tL oductiori or proceeds therefrom, as established by assignment,
contract or otherwise. Interest shall be computed for the period
March 21, 1989 until the date of payment.
TITLE Vu—OIL POLLUTION RESEARCH
AND DEVELOPMENT PROGRAM
SEC. 7001. OIL POLLUTION RESEARCH AND DEVELOPMENT PROGRAM. 33 USC 2761
(a) INTERAGENCY COORDINATING COMMVFPEE ON On. Pou.u ’rIoN
RESEARCH.—
(1) ESTABLISHMENT.—There is established an Interagency (Jo-
ordinating Committee on Oil Pollution Research (hereinafter in
this section referred to as the “Interagency Committee”).
(2) PuRPosEs.—The Interagency Committee shall coordinate a
comprehensive program of oil pollution research, technology
development, and demonstration among the Federal agencies,
in cooperation and coordination with industry, universities,
research institutions, State governments, and other nations, as
appropriate, and shall foster cost-effective research mecha-
nisms, including the joint funding of research.
(3) MEMBERSHIP.—The Interagency Committee shall include
representatives from the Department of Commerce (including
the National Oceanic and Atmospheric Administration and the
National Institute of Standards and Technology), the Depart-
ment of Energy, the Department of the Interior (including the
MIiierals Management Service and the United States Fish and
Wil llife Service), the Department of Transportation (including
the United States Coast Guard, the Maritime Administration,
and the Research and Special. Projects Administration), the
Department of Defense (including the Army Corps of Engineers
and the Navy), the Environmental Protection Agency, the Na-
tional Aeronautics and Space Administration, and the United
States Fire Administration in the Federal Emergency Manage-
ment Agency, as well as such other Federal agencies as the
President may designate.
A representative of the Department of Transportation shall serve as
Chairman.
(b) OIL Pou..u’noN RESEARCH AND TECHNOLOGY PLAN.—
(1) IMPLEMENTATION PLAN.—Within 180 days after the date of
enactment of this Act, the Interagency Committee shall submit
to Congress a plan for the implementation of the oil pollution
research, development, and demonstration program established
pursuant to subsection (c). The research plan shall—
(A) identify agency roles and responsibilities;
(B) assess the current status of knowledge on oil pollution
prevention, response, and mitigation technologies and ef-
fects of oil pollution on the environment;
(C) identify significant oil pollution research gaps includ-
ing an assessment of major technological deficiencies in
responses to past oil discharges;
CD) establish research priorities and goals for oil pollution
technology development related to prevention, respor--
mitigation, and environmental effects;
- (E) estimate the resources needed to conduct the
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I STAT. 560 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT. 56
pursuant to subsection (c), and timetables for completing
research tasks; and
(F) identify, in consultation with the States, regional oil
pollution research needs and priorities for a coordinated,
multidisciplinary program of research at the regional level.
(2) ADvIcE AND GUIDANCE —The Chairman, through the
Department of Transportation, shall contract’with the National
Academy of Sciences to—
(A) provide advice and guidance in the preparation and
development, of the research plan; and
(B) assess the adequacy of the plan as submitted, and
submit a report to Congress on the conclusions of such
assessment
The National Institute of Standards and Technology shall pro-
vide the Interagency Committee with advice and guidance on
issues relating to quality assurance and standards measure-
ments relating to its activities under this section
(c) OIL POLLUTION RESEARCH AND DEVELOPMENT PROGRAM.—
(1) EsTABLIsHMENT—The Interagency Committee shall coordi-
nate the establishment, by the agencies represented on the
interagency Committee, of a program for conducting oil pollu-
tion research and development, as provided in this subsection.
(2) INNOVATIVE OIL POLLUTION TEcisr4owGy.—The program
established under this subsection shall provide for research,
development, and demon ration of new or improved tech-
nologies which are effective in preventing or mitigating oil
discharges and which protect the environment, including—
(A) development of improved designs for vessels and
facilities, and improved operational practices,
(B) research, development, and demonstration of im-
proved technologies to measure the ullage of a vessel tank,
prevent discharges from tank vents, prevent discharges
during hghtering and bunkering operations, contain dis-
charges on the deck of a vessel, prevent discharges through
the use of vacuums in tanks, and otherwise contain dis-
charges of oil from vessels and facilities;
(C) research, development, and demonstration of new or
improved systems of mechanical, chemical, biological, and
other methods (including the use of dispersants, solvents,
and bioremediation) for the recovery, removal, and disposal
of oil, including evaluation of the environmental effects of
the use of such systems,
(D) research and training, in consultation with the Na.
tional Response Team, to improve industry’s and Govern-
ment’s ability to quickly and effectively remove an oil
discharge, including the long-term use, as appropriate, of
the National Spill Control School in Corpus Christi, Texas,
(E) research to improve information systems for decision-
making, including the use of data from coastal mapping,
baseline data, and other data related to the environmental
effects of oil discharges, and cleanup technologies;
(F) development of technologies and methods to protect
public health and safety from oil discharges, including the
population directly exposed to an oil discharge;
(G) development of technologies, methods, and standards
for protecting removal personnel, including training, ado-
quate supervision, protective equipment, maximum expo-
sure limits, and decontamination procedures;
(H) research and development of methods to restore and
rehabilitate natural resources damaged by oil discharges;
(I) research to evaluate the relative effectiveness and
environmental impacts of bioremediation technologies; and
(J) the demonstration of a satellite-based, dependent
surveillance vessel traffic system in Narragansett Bay to
evaluate the utility of such system in reducing the risk of
oil discharges from vessel collisions and groundings in con-
fined waters.
(3) OIL POLLUTION TECHNOLOGY EVALUATION.—The program
established under this subsection shall provide for oil pollution
prevention and mitigation technology evaluation including—
(A) the evaluation and testing of technologies developed
independently of the research and development program
established under this subsection;
(B) the establishment, where appropriate, of standards
and testing protocols traceable to national standards to
measure the performance of oil pollution prevention or
mitigation technologies; and
(C) the use, where appropriate, of controlled field testing
to evaluate real-world application of oil discharge preven-
tion or mitigation technologies.
(4) OIL POLLUTION sm RESEARcH.—(A) The Committee
shall establish a research program to monitor and evaluate the
environmental effect.s of oil discharges. Such program shall
include the following elements:
(i) The development of improved models and capabilities
for predicting the environmental fate, transport, and effects
of oil discharges.
(ii) The development of methods, including economic
methods, to assess damages to natural resources resulting
from oil discharges.
(iii) The identification of types of’ ecologically sensitive
areas at particular risk to oil discharges and the prepara-
tion of scientific monitoring and evaluation plans, one for
each of several types of ecological conditions, to be imple-
mented in the event of major oil discharges in such areas.
(iv) The collection of environmental baseline data in eco-
logically sensitive areas at particular risk to oil discharges
where such data are insufficient.
(B) The Department of Commerce in consultation with the
Environmental Protection Agency shall monitor and scientif-
ically evaluate the long-term environmental effects of oil dis-
charges if—
(i) the amount of oil discharged exceeds 250,000 gallons;
(ii) the oil discharge has occurred on or after January 1,
1989; and
(iii) the Interagency Committee determines that a study
of the long-term environmental effects of the discharge
would be of significant scientific value, especially for
preventing or responding to future oil discharges
Areas for study may include the following sites where oil die- SI-ate Ii ting
charges have occurred: the New York/New Jersey Harbor area,
where oil was discharged by an Exxon underwat r pipeline, the
‘n t ’ C’TflT)r\ .. -- --
1 ra ts
arts
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-TAT. 562 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101—380—AUG. 18, 1990 104 STAi. 663
Narragansett Bay where oil was discharged by the WORLD
PRODIGY; the Houston Ship Channel where oil was discharged
by the RACHEL B; the Delaware River, where oil was dis-
charged by the PRESIDENTE RIVERA, and Huntington Beach,
California, where oil was discharged by the AMERICAN
TRADER.
(C) Research conducted under this paragraph by, or through,
the United States Fish and Wildlife Service shall be directed
and coordinated by the National Wetland Research Center.
(5) MARINE SIMULATION RE5EARCH.—The program established
under this subsection shall include research on the greater use
and application of geographic and vessel response simulation
models, including the development of additional data bases and
updating of existing data bases using, among others, the re-
sources of the National Maritime Research Center. It shall
include research and vessel simulations for—
(A) contingency plan evaluation and amendment;
(B) removal and strike team training;
(C) tank vessel personnel training; and
(D) those geographic areas where there is a significant
likelihood of a major oil discharge
(6) DEMONSTRATION PROJECTS —The United States Coast
Guard, in conjunction with other such agencies in the Depart-
ment of Transportation as the Secretary of Transportation may
designate, shall conduct 3 po oil pollution minimization dem-
onstration projects, one each with (A) the Port Authority of New
York and New Jersey, (B) the Ports of Los Angeles and Long
Beach, California, and (C) the Port of New Orleans, Louisiana,
for the purpose of developing and demonstrating integrated port
oil pollution prevention and cleanup systems which utilize the
information and implement the improved practices and tech-
nologies developed from the research, development, and dem-
onstration program established in this section Such systems
shall utilize improved technologies and management practices
for reducing the risk of oil discharges, including, as appropriate,
improved data access, computerized tracking of oil shipments,
improved vessel tracking and navigation system3, advanced
technology to monitor pipeline and tank conditions, improved
oil spill response capability, improved capability to predict the
flow and effects of oil discharges in both the inner and outer
harbor areas for the purposes of making infrastructure deci-
sions, and such other activities necessary to achieve the pur-
poses of this section.
(7) SIMULATED ENVIRONMENTAL TESTING —Agencies rep-
resented on the Interagency Committee shall ensure the long-
term use and operation of the Oil and Hazardous Materials
Simulated Environmental Test Tank (OHMSETT) Research
Center in New Jersey for oil pollution technology testing and
evaluations
(8) REGIONAL RESEARCH PROGRAM.—(A) Consistent with the
research plan in subsection (b), the Interagency Committee
shall coordinate a program of competitive grantr L. .iniversities
or other research institutions, or groups of universities or re-
sea--’- institutions, for the purposes of conducting a coordinated
re: i program related to the regional aspects of oil pollution,
suc prevention, removal, mitigation, and the effects of
1 I 1_I__ ..__ __ _l - — —-... — ‘_ 1_ —
.iph, a region means a Coast Guard district as set out
in part 3 of title 33, Code of Federal Regulations (1989).
(B) The Interagency Committee shall coordinate the publica-
tion by the agencies represented on the Intera encyCommittee
of a solicitation for grants under this subsection. The applica-
tion shall be in such form and contain such information as may
be required in the published solicitation. The applications shall
be reviewed by the Interagency Committee, which shall make
recommendations to the appropriate granting agency rep-
resented on the Interagency Committee for awarding the grant.
The granting agency shall award the grants recommended by
the Interagency Committee unless the agency decides not to
award the grant due to budgetary or other compelling consider-
ations and publishes its reasons for such a determination in the
Federal Register. No grants may be made by any agency from
any funds authorized for this paragraph unless such grant
award has first been recommended by the Interagency Commit-
tee.
(C) Any university or other research institution, or group of
universities or research institutions, may apply for a grant for
the regional research program established by this paragraph.
The applicant must be located in the region, or in a State a part
of which is in the region, for which the project is proposed as
part of the regional research program. With respect to a group
application, the entity or entities which will carry out the
substantial portion of the proposed research must be located in
the region, or in a State a part of which is in the region, for
which the project is proposed as part of the regional research
program.
(D) The Interagency Committee shall make recommendations
on grants in such a manner as to ensure an appropriate balance
within a region among the various aspects of oil pollution
research, including prevention, removal, mitigation, and the
effects of discharged oil on regional enviroaments. In addition,
the Interagency Committee shall make recommendations for
grants based on the following criteria:
(i) There is available to the applicant for carrying out this
paragraph demonstrated research resources.
(ii) The applicant demonstrates the capability of making
a significant contribution to regional research needs.
(iii) The projects which the applicant proposes to carry
out under the grant are consistent with the research plan
under subsection (bX1XF) and would further the objectives
of the research and development program established in
this section.
(E) Grants provided under this paragraph shall be for a period
up to 3 years, subject to annual review by the granting agency,
and provide not more than 80 percent of the costs of the
research activities carried out in connection with the grant.
(F) No funds made available to carry out this subsection may
be used for the acquisition of real property (including buildings)
or construction of any building.
(G) Nothing in this paragraph is intended to alter or abridge
the authority under existing law of any Federal agency to make
grants, or enter into contracts or cooperative agreements, using
funds other than those authorized in this Act for the purposes o
carrying out this paragraph
rsey
and
S
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104 STAT 564 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT
(9) Furwii ’io.—For each of the fiscal years 1991, 1992, 1993,
1994, and 1995, $6,000,000 of amounts in the Fund shall be
available to carry out the regional research program in para-
graph (8), such amounts to be available in equal amounts for the
regional research program in each region; except that if the
agencies represented on the Interagency Committee determine
that regional research needs exist which cannot be addressed
within such funding limits, such agencies may use their author-
ity under paragraph (10) to make additional grants to meet such
needs. For the purposes of this paragraph, the research program
carried out by the Prince William Sound Oil Spill Recovery
Institute established under section 5001, shall not be eligible to
receive grants under this paragraph
(10) GRAN ’rs.—In carrying out the research and development
program established under this subsection, the agencies rep-
resented on the interagency Committee may enter into con-
tracts and cooperative agreements and make grants to univer-
sities, research institutions, and other persons Such contracts,
cooperative agreements, and grants shall address research and
technology priorities set forth in the oil pollution research plan
under subsection (b)
(11) In carrying out research under this section, the Depart-
ment of Transportation shall continue to utilize the resources of
the Research and Special Programs Administration of the
Department of Transportation, to the maximum extent prac-
ticable -
(d) INTERNATIONAL COOPERATION.—Ifl accordance with the re-
search plan submitted under subsection (b), the Interagency
Committee shall coordinate and cooperate with other nations and
foreign research entities in conducting oil pollution research, devel-
opment, and demonstration activities, including controlled field
tests of oil discharges
(e) BIENNIAL REP0Rrs.—The Chairman of the Interagency
Committee shall submit to Congress every 2 years on October 30 a
report on the activities carried out under this section in the preced-
ing 2 fiscal years, and on activities proposed to be carried out under
this section in the current 2 fiscal year period.
(1) Fui’imr ’iG.—Not to exceed $21,250,000 of amounts in the Fund
shall be available annually to carry out this section except for
subsection (cX8). Of such sums—
(1) funds authorized to be appropriated to carry out the
activities under subsection (cX4) shall not exceed $5,000,000 for
fiscal year 1991 or $3,500,000 for any subsequent fiscal year; and
(2) not less than $2,250,000 shall be available for carrying out
the activities in subsection (cX6) for fiscal years 1992, 1993, 1994,
and 1995
All activities authori2ed in this section, including subsection (cX8),
are subject to appropriations
TITLE Vill—TRANS-ALASKA PIPELINE
SYSTEM
ii USC 1651 SEC. 8001 SHOKTTITLE
lOte This title may be cited as the “Trans-Alaska Pipeline System
Reform Act of 1990”.
Subtitle A—Improvements to Trans-Alaska
Pipeline System
SEC. 8101. LIAIULITY WITHIN THE STATE OF ALASKA AND CLEANUP
EFFORTS.
(a) CAUSE OF AccIDs .—SeCtjon 2 O 4 (aXl) of the Traits-Alaska
Pipeline Authorization Act (43 U.S.C. l65 3 (aXl)) is amended by
striking out “caused by” in the first sentence and inserting in lieu
thereof “caused solely by”.
(b) LIMITATION OF LIABIU’ry.—Section 2O4(aX2) of the Trans-Alaska
Pipeline Authorization Act (43 U S C. 1653(aX2)) is amended by
striking “$50,000,000” each place it occurs and inserting in lieu
thereof “$350,000,000”.
(c) CLEANUP Erronm.—Section 204(b) of the Trans-Alaska Pipeline
Authorization Act (43 U.S.C. 1653(b)) is amended in the first sen-
tence—
(1) by inserting after “any area” the following: “in the State
of Alaska”;
(2) by inserting after “any activities” the following: “related
to the Trans-Alaska Pipeline System, including operation of the
terminal,”; and
(3) by inserting after “other Federal” the first place it appears
the following: “or State”.
SEC. 8i02. TRANS.ALAgK . PIPELiNE LIABILITY FUND
(a) TERMINATION OF CERTAIN PRO VISIONS.—
(1) REP L.—Section 204(c) of the Trans-Alaska Pipeline
Authorization Act (43 U.S.C. 1653(c)) is repealed, effective as
provided in paragraph (5).
(2) DisposmoN OF FUND BALANCE.—
(A) RESERVATION OF AMOUNTS—The trustees of the
Trans-Alaska Pipeline Liability Fund (hereafter in this
subsection referred to as the “TAPS Fund”) shall reserve
the following amounts in the TAPS Fund—
(i) necessary to pay claims arising under section
204(c) of the Trans-Alaska Pipeline Authorization Act
(43 U.S.C 1653(c)); and
(ii) administrative expenses reasonably necessary for
and incidental to the implementation of section 204(c)
of that Act.
(B) DIsPosmoN OF THE BALANCE.—After the Comptroller
General of the United States certifies that the require-
ments of subparagraph (A) have been met, the trustees of
the TAPS Fund shall dispose of the balance in the TAPS
Fund after the reservation of amounts are made under
subparagraph (A) by—
(i) rebating the pro rate share of the balance to the
State of Alaska for its contributions as an owner of oil;
and then
(ii) transferring and depositing the remainder of the
balance into the Oil Spill Liability Trust Fund estab—
liahed under section 9509 of the Internal Revenue Code
of 1986 (26 U S.C. 9509).
(C) DIsPosrrlON OF THE RESERVED AMOtJNTS.—Afthr pay-
meiit of all claims arising from an incider 1 t for which fund ’
rrans-Alaska
I’ipeline System
l cform Act of
43 USC 1653
note
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I STAT 566 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT. 56’
are reserved under subparagraph (A) and certification by
the Comptroller General of the United States that the
claims arising from that incident have been paid, the excess
amounts, if any, for that incident shall be disposed of as set
forth under subparagraphs (A) and (B).
CD) Au’rHoRIzATIoN —The amounts transferred and
deposited in the Fund shall be available Por the purposes of
section 1012 of the Oil Pollution Act of 1990 after funding
sections 5001 and 8103 to the extent that funds have not
otherwise been provided for the purposes of such sections
(3) SAVINGS ci. uss.—The repeal made by paragraph (1) shall
have no effect on any right to recover or responsibility that
arises from incidents subject to section 204(c) of the Trans-
Alaska Pipeline Authorization Act (43 U.S.C. 1653(c)) occurring
prior to the date of enactment of this Act.
(4) TAPS cou .EcnoN.—ParaFaph (5) of section 204(c) of the
Trans-Alaska Pipeline Authorization Act (43 U.S.C. 1653(c)) is
amended by striking the period at the end of the second sen-
tence and adding at the end the following: “, except that after
the date of enactment of the Oil Pollution Act of 1990, the
amount to be accumulated shall be $100,000,000 or the amount
determined by the trustees and certified to the Congress by the
Comptroller General as necessary to pay claims arising from
incidents occurring prior to the date of enactment of that Act
and administrative costs, whichever is less.”.
(5) EFFECTIVE DATE —(A)’The repeal by paragraph (1) shall be
effective 60 days after the date on which the Comptroller Gen-
eral of the United States certifies to the Congress that—
(i) all claims arising under section 204(c) of the Trans.
Alaska Pipeline Authorization Act (43 U S C. 1653(c)) have
been resolved,
(ii) all actions for the recovery of amounts subject to
section 204(c) of the Trans-Alaska Pipeline Authorization
Act have been resolved, and
(iii) all administrative expenses reasonably necessary for
and incidental to the implementation of section 204(c) of the
Trans-Alaska Pipeline Authorization Act have been paid.
(B) Upon the effective date of the repeal pursuant to subpara-
graph (A), the trustees of the TAPS Fund shall be relieved of all
responsibilities under section 204(c) of the Trans-Alaska Pipe-
line Authorization Act, but not any existing legal liability.
(6) TUCKER ACT —This subsection is intended expressly to
preserve any and all rights and remedies of contributors to the
TAPS Fund under section 1491 of title 28, United States Code
(commonly referred to as the “Tucker Act”)
(b) CAUSE OF ACCIDENT —Section 204(c)(2) of the Trans-Alaska
Pipeline Authorization Act (43 U.S C 1653(cX2)) is amended by
striking out “caused by” in the first sentence and inserting in lieu
thereof “caused solely by”.
(c) DAMAGES —Section 204(c) of the Trans-Alaska Pipeline
Authorization Act (43 U S C 1653(c)), as amended by this title, is
further amended by adding at the end the following ‘-ew para-
graphs
“(13)
mc i’
For any claims against the Fund, the term ‘damages’ shall
5ut not be limited to—
) the net loss of taxes, revenues, fees, royalties, rents, or
revenues incurred by a State or a political subdivision of a
State due to injury, destruction, or loss of real property, per-
sonal property, or natural resources, or diminished economic
activity due to a discharge of oil; and
“(B) the net cost of providing increased or additional public
services during or after removal activities due to a discharge of
oil, including protection from fire, safety, or health hazards,
incurred by a State or political subdivision of a State.
“(14) Paragraphs (1) through (13) shall apply only to claims arising
from incidents occurring before the date of enactment of the Trans.
Alaska Pipeline System Reform Act of 1990. The Oil Pollution Act of
1990 shall apply to any incident, or any claims arising from an
incident, occurring on or after the date of the enactment of that
Act.”.
(d) PAYMI*r OF CLAIMS BY FuND.—Section 204(cX3) of the Trans.
Alaska Pipeline Authorization Act (43 U.S.C. l653(cX3)) is amended
by adding at the end the following: “The Fund shall expeditiously
pay claims under this subsection, including such $14,000,000, if the
owner or operator of a vessel has not paid any such claim within 90
days after such claim has been submitted to such owner or operator.
Upon payment of any such claim, the Fund shall be subrogated
under applicable State and Federal laws to all rights of any person
entitled to recover under this subsection. In any action brought by
the Fund against an owner or operator or an affiliate thereof to
recover amounts under this paragraph, the Fund shall be entitled to
recover prejudgment interest, costs, reasonable attorney’s fees, and,
in the discretion of the court, penalties.”.
(e) OFncERs OR Thus rzEs.—Section 204(cX4) of the Trans-Alaska
Pipeline Authorization Act (43 U.S.C. l653(cX4)) is amended—
(1) by inserting “(A)” after “(4)”; and
(2) by adding at the end the following:
“(B) No present or former officer or trustee of the Fund shall be
subject to any liability incurred by the Fund or by the present or
former officers or trustees of the Fund, other than liability for gross
negligence or willful misconduct
“(CXi) Subject to clause (ii), each officer and each trustee of the
Fund—
“(I) shall be indemnified against all claims and liabilities to
which he or she has or shall become subject by reason of serving
or having served as an officer or trustee, or by reason of any
action taken, omitted, or neglected by him or her as an officer
or trustee; and
“(II) shall be reimbursed for all attorney’s fees reasonably
incurred in connection with any claim or liability.
“(ii) No officer or trustee shall be indemnified against, or be
reimbursed for, any expenses incurred in cOnnection with, any claim
or liability arising out of his or her gross negligence or willful
misconduct.”.
SEC. 8103. PRESIDENTIAL TASK FORCE.
(a) ESTABLISHMENT OF TASK FORCE.—
(1) ESTABLISHMENT AND MEMBERS —(A) There is hereby estab-
lished a Presidential Task Force on the Trans-Alaska Pipeline
System (hereinafter referred to as the “Task Force”) composed
of the following members appointed by the President:
(i) Three members, one of whom shall be nominated
the Secrethrv of th lntprior ‘ ns Iw f)”
JSC 1653
43 USC 1651
note
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104 STAT. 568 PUBLIC LAW 101-380—AUG 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT.
the Environmental Protection Agency, and one by the Sec-
retary of Transportation.
(ii) Three members nominated by the Governor of the
State of Alaska, one of whom shall be an employee of the
Alaska Department of Natural Resources and one of whom
shall be an employee of the Alaska Department of Environ-
mental Conservation.
(iii) One member nominated by the Office of Technology
Assessment.
(B) Any member appointed to fill a vacancy occurring before
the expiration of the term for which his or her predecessor was
appointed shall be appointed only for the remainder of such
term. A member may serve after the expiration of his or her
term until a successor, if applicable, has taken office.
(2) COCHAIRMEN.—The President shall appoint a Federal
cochairman from among the Federal members of the Task Force
appointed pursuant to paragraph (1XA) and the Governor shall
designate a State cochairman from among the State members of
the Task Force appointed pursuant to paragraph (1XB).
(3) COMPENSATION —Members shall, to the extent approved in
appropriations Act-s, receive the daily equivalent of the mini-
mum annual rate of basic pay in effect for grade GS—15 of the
General Schedule for each day (including travel time) during
which they are engaged in the actual performance of duties
vested in the Task Force, except that members who are State,
Federal, or other goverr .piental employees shall receive no com-
pensation under this paragraph in addition to the salaries they
receive as such employees
(4) STAFF.—The cochairman of the Task Force shall appoint a
Director to carry out administrative duties The Director ma
hire such staff and incur such expenses on behalf of the Tas
Force for which funds are available.
(5) Ruu —Employees of the Task Force shall not, by reason of
such employment, be considered to be employees of the Federal
Government for any purpose
(b) DuTIES OF THE TASK FORCE —
(I) Auoiv —The Task Force shall conduct an audit of the
Trans-Alaska Pipeline System (hereinafter referred to as
“TAPS”) including the terminal at Valdez, Alaska, and other
related onshore facilities, make recommendations to the Presi-
dent, the Congress, and the Governor of Alaska.
(2) COMPREHENSIVE REVIEW.—AS part of such audit, the Task
Force shall conduct a comprehensive review of the TAPS in
order to specifically advise the President, the Congress, and the
Governor of Alaska concerning whether—
(A) the holder of the Federal and State right-of-way is,
and has been, in full compliance with applicable laws,
regulations, and agreements;
(B) the laws, regulations, and agreements are sufficient to
prevent the release of oil from TAPS and prevent other
damage or degradation to the environment and public
health;
(C) improvements are necessary to TAPS to prevent re-
lease of oil from TAPS and to prevent other damage or
degradation to the environment and public health;
(D) improvements are necessary in the onshore oil spill
response capabilities for the TAPS; and
(E) improvements are necessary in security for TAPS.
(3) CONSuLTAX ’rrs.—(A) The Task Force shall retain at least
one independent consulting firm with technical expertise in
engineering, transportation, safety, the environment, and other
applicable areas to assist the Task Force in carrying out this
subsection.
(B) Contracts with any such firm shall be entered into on a
nationally competitive basis, and the Task Force shall not select
any firm with respect to which there may be a conflict of
interest in assisting the Task Force in carrying out the audit
and review. All work performed by such firm shall be under the
direct and immediate supervision of a registered engineer.
(4) Pusuc c0MMENT.—The Task Force shall provide an oppor-
tunity for public comment on its activities including at a mini-
mum the following:
(A) Before it begins its audit and review, the Task Force
shall review reports prepared by other Government entities
conducting reviews of TAPS and shall consult with those
Government entities that are conducting ongoing investiga-
tions including the General Accounting Office. It shall also
hold at least 2 public hearings, at least 1 of which shall be
held in a community affected by the Exxon Valdez oil spill.
Members of the public shall be given an opportunity to
present both oral and written testimony.
(B) The Task Force shall provide a mechanism for the
confidential receipt of information concerning TAPS, which
may include a designated telephone hotline.
(5) TASK FORCE REPORT.—The Task Force shall publish a draft
report which it shall make available to the public. The public
will have at least 30 days to provide comments on the draft
report. Based on its draft report and the public comments
thereon, the Task Force shall prepare a final report which shall
include its findings, conclusions, and recommendations made as
a result of carrying out such audit. The Task Force shall
transmit (and make available to the public), no later than 2
years after the date on which funding is made available under
paragraph (7), its final report to the President, the Congress,
and the Governor of Alaska.
(6) PRESIDENTIAL REPORT—The President shall, within 90 days
after receiving the Task Force’s report, transmit a report to the
Congress and the Governor of Alaska outlining what measures
have been taken or will be taken to implement the Task Force’s
recommendations. The President’s report shall include rec-
ommended changes, if any, in Federal and State law to enhance
the safety and operation of TAPS.
(7) EARMARK—Of amounts in the Fund, $5,000,000 shall be
available, subject to appropriations, annually without fiscal
year limitation to carry out the requirements of this section.
(c) GENERAL ADMINISTRATION AND Powass or ThE TASK FORCE.—
(1) AUDIT ACCESS.—The Comptroller General of the United
States, and any of his or her duly appointed representatives
shall have access, for purposes of audit and examination, to any
books, documents, papers, and records of the Task Force that
are pertinent to the funds received and expended by the Task
Force.
Contract8
CIRRsIfied
informotiort
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I STAT. 570 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT.!
(2) TERMINATION.—The Task Force shall cease to exist on the
date on which the final report is provided pursuant to subsec-
tion (bX5).
(3) FUNCTIONS UMITATION.—With respect to safety, oper-
atioris, and other matters related to the pipeline facilities (as
such term is defined in section 202(4) of the Hazardous Liquid
Pipeline Safety Act of 1979) of the TAPS, the Task Force shall
not perform any functions which are the responsibility of the
Secretary of Transportation under the Hazardous Liquid Pipe-
line Safety Act of 1979, as amended. The Secretary may use the
information gathered by and reports issued by the Task Force in
carrying out the Secretary’s responsibilities under that Act.
(4) Pow ns.—The Task Force may, to the extent necessary to
carry out its responsibilities, conduct investigations, make re-
ports, issue subpoenas, require the production of relevant docu-
ments and records, take depositions, and conduct directly or, by
contract, or otherwise, research, testing, and demonstration
activities
(5) EXAMINATION OF RECORDS AND PROPERTIES.—The Task
Force, and the employees and agents it so designates, are
authorized, upon presenting appropriate credentials to the
person in charge, to enter upon, inspect, and examine, at
reasonable times and in a reasonable manner, the records and
properties of persons to the extent such records and properties
are relevant to determininVwhether such persons have acted or
are acting in compliance with applicable laws and agreements
(6) FOIA —The information gathered by the Task Force
pursuant to subsection (b) shall not be subject to section 552 of
title 5, United States Code (commonly referred to as the “Free-
dom of Information Act”), until its final report is issued pursu-
ant to subsection (bX6).
Subtitle B—Penalties
SEC 8201. AUTHORITY OF THE SECRETARY OF THE INTERIOR TO IMPOSE
PENALTIES ON OUTER CON’UNEN’TAL SHELF FACILITIES.
Section 24(b) of the Outer Continental Shelf Lands Act (43 U.S.C.
1350(b)) is amended—
(1) by striking out “If any” and inserting in lieu thereof “(1)
Except as provided in paragraph (2), if any”;
(2) by striking out “$10,000” and inserting in lieu thereof
“$20,000”,
(3) by adding at the end of paragraph (1) the following new
sentence: “The Secretary shall, by regulation at least every 3
years, adjust the penalty specified in this paragraph to reflect
any increases in the Consumer Price Index (all items, United
States city average) as prepared by the Department of Labor.”;
and
(4) by adding at the end the following new paragraph:
‘(2) If a failure described in paragraph (1) constitutes or con-
stituted a threat of serious, irreparable, or immediate harm or
damage to life (including fish and other aquatic life), property, any
mine -feposit, or the marine, coastal, or human environment, a
civil Ity may be assessed without regard to the reauirement of
pxoir . n of a period allowed for corrective a tic
SEC. 8202. TRANS-ALASKA PIPELINE SYSTEM CIVIL PENALTIES.
The Trans-Alaska Pipeline Authorization Act (43 U.S.C. 1651 et
seq.) is amended by adding at the end thereof the following new
section:
“CIVIL PENALTI
“SEc. 207. (a) PENALTY.—EXCept as provided in subsection (cX4), 43 USC
the Secretary of the Interior may assess and collect a civil penalty
under this section with respect to any discharge of oil—
“(1) in transit from fields or reservoirs supplying oil to the
trans-Alaska pipeline; or
“(2) during transportation through the trans-Alaska pipeline
or handling at the terminal facilities, that causes damage to, or
threatens to damage, natural resources or public or private
property.
“(b)PERSONs LIAB1 .—In addition to the person causing or permit-
ting the discharge, the owner or owners of the oil at the time the
discharge occurs shall be jointly, severally, and strictly liable for the
full amount of penalties assessed pursuant to this section, except
that the United States and the several States, and political subdivi-
sions thereof, shall not be liable under this section.
“(c) AMOUNT.—(1) The amount of the civil penalty shall not exceed
$1,000 per barrel of oil discharged.
“(2) In determining the amount of civil penalty under this section,
the Secretary shall consider the seriousness of the damages from the
discharge, the cause of the discharge, any history of prior violations
of applicable rules and laws, and the degree of success of any efforts
by the violator to minimize or mitigate the effects of such discharge.
“(3) The Secretary may reduce or waive the penalty imposed
under this section if the discharge was solely caused by an act of
war, act of God, or third party action beyond the control of the
persons liable under this 8ection.
“(4) No civil penalty assessed by the Secretary pursuant to this
section shall be in addition to a penalty assessed pursuant to section
311(b) of the Federal Water Pollution Control Act (33 U.S.C. 1321(b)).
“(d) PROCEDIJRES.—A civil penalty may be assessed and collected
under this section only after notice and opportunity for a hearing on
the record in accordance with section 554 of title 5, United States
Code. In any proceeding for the assessment of a civil penalty under
this section, the Secretary may issue subpoenas for the attendance
and testimony of witnesses and the production of relevant papers,
books, and documents and may promulgate rules for discovery
procedures. Any person who requested a hearing with respect to a
civil penalty under this subsection and who is aggrieved by an order
assessing the civil penalty may file a petition for judicial review of
such order with the United States Court of Appeals for the District
of Columbia circuit or for any other circuit in which such person
resides or transacts business. Such a petition may only be filed
within the 30-day period beginning on the date the order making
such assessment was issued
“(e) STATE LAw —(1) Nothing in this section shall be construed or
interpreted as pri .Ung any State or political 8ubclivision thereof
from imposing any additional liability or requirements with res
o the discharge. or threat of discharge, of oil or other pollutic
il
ulations
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104 STAT 572 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT
“(2) Nothing in this section shall affect or modify in any way the
obligations or liabilities of any person under other Federal or State
law, including common law, with respect to discharges of oil.”.
Subtitle C—Provisions Applicable to Alaska
Natives
SEC. 8301. LAND CONVEYANCES.
The Alaska National Interest Lands Conservation Act (Public
Law 96-487) is amended by adding the following after section 1437:
Claims “SEC 1438 Solely for the purpose of bringing claims that arise
4 USC i142 from the discharge of oil, the Congress confirms that all right, title,
and interest of the United States in and to the lands validly selected
pursuant to the Alaska Native Claims Settlement Act (43 U.S C.
1601 et seq.) by Alaska Native corporations are deemed to have
vested in the respective corporations as of March 23, 1989. This
section shall take effect with respect to each Alaska Native corpora-
tion only upon its irrevocable election to accept an interim convey-
ance of such land and notice of such election has been formally
transmitted to the Secretary of the Interior.”.
SEC. 8302. IMPACF OF POTENTIAL SPILLS IN THE ARCTIC OCEAN ON
ALASKA NATIVES.
Section 1005 of the Alasl a National Interest Lands Conservation
Act (16 U S.C. 3145) is amended—
(1) by amending the heading to read as follows:
“WILDLIFE RESOURCES PORTION OF STUDY AND IMPACT OF POTENTIAL
OIL SPILLS IN THE ARCTIC OCEAN”;
(2) by inserting “(a)” after “SEC. 1005.”; and
(3) by adding at the end the following
“(b)(1) The Congress finds that—
“(A) Canada has discovered commercial quantities of oil and
gas in the Amalagak region of the Northwest Territory;
“(B) Canada is exploring alternatives for transporting the oil
from the Amalagak field to markets in Asia and the Far East,
“(C) one of the options the Canadian Government is exploring
involves transshipment of oil from the Amalagak field across
the Beaufort Sea to tankers which would transport the oil
overseas;
“(D) the tankers would traverse the American Exclusive Eco-
nomic Zone through the Beaufort Sea into the Chuckchi Sea
and then through the Bering Straits;
“(E) the Beaufort and Chuckchi Seas are vital to Alaska’s
Native people, providing them with subsistence in the form of
walrus, seals, fish, and whales;
“(F) the Secretary of the Interior has conducted Outer Con-
tinental Shelf lease sales in the Beaufort and Chuckehi Seas
and oil and gas exploration is ongoing;
“(G) an oil spill in the Arctic Ocean, if not properly contained
and cleaned up, could have significant impacts on the indige-
nous people of Alaska’s North Slope and on the Arctic environ-
merit; and
“(H) there are no international contingency plans involving
our two governments concerning containment and cleanup of
an oil pill in the Arctic Ocean.
“(2XA) The Secretary of the Interior, in consultation with the
Governor of Alaska, shall conduct a study of the issues of recovery of
damages, contingency plans, and coordinated actions in the event of
an oil spill in the Arctic Ocean.
“(B) The Secretary shall, no later than January 31, 1991, transmit
a report to the Congress on the findings and conclusions reached as
the result of the study carried out under this subsection.
“(c) The Congress calls upon the Secretary of State, in consulta-
tion with the Secretary of the Interior, the Secretary of Transpor-
tation, and the Governor of Alaska, to begin negotiations with the
Foreign Minister of Canada regarding a treaty dealing with the
complex issues of recovery of damages, contingency plans, and
coordinated actions in the event of an oil spill in the Arctic Ocean.
“(d) The Secretary of State shall report to the Congress on the
Secretary’s efforts pursuant to this section no later than June 1,
1991.”.
TITLE IX—AMENDMENTS TO OIL SPILL
LIABILITY TRUST FUND, ETC.
SEC. 9001. AMENDMENTS TO OIL SPILL LIABILITY TRUST FUND.
(a) TRANSFERS TO TRUsT FUND.—Subsectjon (b) of section 9509 of
the Internal Revenue Code of 1986 is amended by striking all that 26 USC 95th
follows paragraph (1) and inserting the following:
“(2) amounts recovered under the Oil Pollution Act of 1990 for
damages to natural resources which are required to be deposited
in the Fund under section 1006(f) of such Act,
“(3) amounts recovered by such Trust Fund under section
1015 of such Act,
“(4) amounts required to be transferred by such Act from the
revolving fund established under section 311(k) of the Federal
Water Pollution Control Act,
“(5) amounts required to be transferred by the Oil Pollution
Act of 1990 from the Deepwater Port Liability Fund established
under section 18(0 of the Deepwater Port Act of 1974,
“(6) amounts required to be transferred by the Oil Pollution
Act of 1990 from the Offshore Oil Pollution Compensation Fund
established under section 302 of the Outer Continental Shelf
Lands Act Amendments of 1978,
“(7) amounts required to be transferred by the Oil Pollution
Act of 1990 from the Trans-Alaska P peline Liability Fund
established under section 204 of the Trans-Alaska Pipeline
Authorization Act, and
“(8) any penalty paid pursuantto section 311 of the Federal
Water Pollution Control Act, section 309(c) of such Act (as a
result of violations of such section 311), the Deepwater Port Act
of 1974, or section 207 of the Trans-Alaska Pipeline Authoriza-
tion Act.”
(b) EXPENDITURES FROM Thus r FuND.—Paragraph (1) of section
9509(c) of such Code is amended to read as follows:
“(1) EXPENDITURE PURPOSES.—Amounth in the Oil Spill Liabil-
ity Trust Fund shall be available, as provided in approprint inn
Reports
Canada
Internation
agreements
Reports
C , inada
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104 STAT 574 PUBLIC LAW 101-380—AUG. 18, 1990
PUBLIC LAW 101-380—AUG. 18, 1990 104 STAT
Acts or section 6002(b) of the Oil Pollution Act of 1990, only for
purposes of making expenditures—
“(A) for the payment of removal costs and other costs,
expenses, claims, and damages referred to in section 1012 of
such Act,
“(B) to carry out sections 5 and I of the Intervention on
the High Seas Act relating to oil pollution or the substan-
tial threat of oil pollution,
“(C) for the payment of liabilities incurred by the revolv-
ing fund established by section 311(k) of the Federal Water
Pollution Control Act,
to carry out subsections (b), (c), (d), (j), and (I) of
section 311 of the Federal Water Pollution Control Act with
respect to prevention, removal, and enforcement related to
oil discharges (as defined in such section),
“(E) for the payment of liabilities incurred by the Deep-
water Port Liability Fund, and
“(F) for the payment of liabilities incurred by the Off-
shore Oil Pollution Compensation Fund”
(c) INCREASE IN EXPENDITURES PERMITFED PER INCIDENT —
2( USC 9 O’) Subparagraph (A) of section 9509(cX2) of such Code is amended—
(1) by striking “$500,000,000” each place it appears and insert-
ing “$1,000,000,000”, and
2) by striking ‘$250,000,000” and inserting “$500,000,000”
(d) INCREASE IN BORROW JG AUTHORITY —
(1) INCREASE IN BORROWING PERMITTED —Paragraph (2) of sec-
tion 9509(d) of such Code is amended by striking “$500,000,000”
and inserting ‘$1,000,000,000”
(2) CHANGE IN FINAL REPAYMENT DATE —Subparagraph (B) of
section 9509(d)(3) of such Code is amended by striking “Decem-
ber 31, 1991” and inserting “December 31, 1994”.
(e) OTHER CHANGES —
(1) Paragraph (2) of section 9509(e) of such Code is amended by
striking “Comprehensive Oil Pollution Liability and Compensa-
tion Act” and inserting “Oil Pollution Act of 1990”.
(2) Subparagraph (B) of section 9509(cX2) of such Code is
amended by striking “described in paragraph (1XAXi)” and
inserting “of removal costs”.
(3) Subsection (1) of section 9509 of such Code is amended to
read as follows:
“if) REFERENCES ‘TO OIL Pou.u’riorr Ac’r OF 1990.—Any reference in
this section to the Oil Pollution Act of 1990 or any other Act
referred to in a subparagraph of subsection (cXl) shall be treated as
a reference to such Act as in effect on the date of the enactment of
this subsection”
SEC. 9002 CHANGES RELATING TO OTHER FUNDS
(a) REPEAL OF PROVISION RELATING TO TRANSFERS TO OIL Spiu.
LIABILITY FUND—Subsection (d) of section 4612 of the Internal
26USC46i2 Revenue Code of 1986 is amended by strl’ing the last ser ’ t nce.
(b) CREDIT AGAINST OIL SPILL RATE ALLOWED 014 AFFILIATED UR0UP
BASIS —Subsection (d) of section 4612 of such Code is amended by
“)ding at the end thereof the following new sentence “For purposes
his subsection, all taxpayers which would be members of th
e affiliated group (as defined in section 1504(a)) if sectioi
1504(aX2) were applied by substituting ‘100 percent’ for ‘80 percent’
shall be treated as 1 taxpayer.”
Approved August 18, 1990.
LEGISLATIVE HISTORY—H R 1465 (H R 3027) (S 686)
HOUSE REPORTS
No 101-241, Pt 1 (Comm. on Public Works and Transportation)
and Pt 2 (Comm on Science, Space, and Technology), both
accompanying H R 3027, No 101-242, Pt. 1 (Comm on Public
Works and Transportation), Pt 2 (Comm on Merchant Marine
and Fisheries), Pt 3 (Comm on Science, Space, and Technology),
Pt 4 (Comm on Public Works and Transportation), and Pt 5
(Comm on Merchant Marine and Fisheries), and No 101-653
(Comm. of Conference)
SENATE REPORTS No 101-94 accompanying S 686 (Comm on Environment and
Public Works)
CONGRESSIONAL RECORD
Vol. 135 (1989) Aug 3, 4, S 686 considered and passed Senat.
Nov 2,8, 9, HR. 1465 considered and passe I!ouse
Nov 19, considered and passed Senate, amended, in lieu of
S 686
Vol 136 (1990) Aug 2. Senate agreed to conference report
Aug 3, House agreed to conference report
WEEKLY COMPILATION OF PRESIDENTL DOCUMENTS, Vol 26(199
Aug. 18, Presidential statement
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Sec. 311 FEDERAl. WATER POLLUTiON CONTROl. AC 1
122
— 123
FEDERAL WATER POLLUTION CONTROL ACT Sec. 311
novo all relevant issues, but shall receive in evidence the record of
the proceedings before the conference or hearing board. The court
shall have junsdiction to enter such judgment and orders enforcing
such judgment as it deems appropriate or to remand such proceed-
ings to the Administrator for such further action as it may direct.
(33 U S C 1320)
OIL AND HAZARDOUS SUBSTANCE LIABILITY
SEC 311. (a) For the purpose of this section, the term—
(1) “oil” means oil ol any kind or in any form, including,
but not limited to, petroleum, fuel oil, sludge, oil refuse, and
oil mixed with wastes other than dredged spoil;
(2) “discharge” includes, but is not limited to, any spilling,
leaking, pumping, pouring, emitting, emptying or dumping, but
excludes (A) discharges in compliance with a permit under sec-
tion 402 of this Act, (B) discharges resulting from cir-
cumstances identified and reviewed and made a part of the
public record with respect to a permit issued or modified under
section 402 of this Act, and subject to a condition in such per-
mit, and (C) continuous or anticipated intermittent discharges
from a point source, identified in a permit or permit applica-
tion under section 402 of this Act, which are caused by events
occurring within the scope of relevant operating or treatment
systems;
(3) “vessel” means every description of watercraft or other
artificial contnvance used, or capable of being used, as a
means of transportation on water other than a public vessel;
(4) “public vessel” means a vessel owned or bareboat-char-
tered and operated by the United States, or by a State or polit-
ical subdivision thereof, or by a foreign nation, except when
such vessel is engaged in commerce,
(5) “United States” means the States, the District of Co-
lumbia, the Commonwealth of Puerto Rico, the Commonwealth
of the Northern Manana Islands, Guam, Amencan Samoa, the
Virgin Islands, and the Trust Temtory of the Pacific islands;
(6) ‘owner or operator” means (A) in the case of a vessel,
any person owning, operating, or chartering by demise, such
vessel, and (B) in the case of an onshore facility, and an off-
shore facility, any person owning or operating such onshore fa-
cility or offshore facility, and (C) in the case of any abandoned
offshore facility, the person who owned or operated such facil-
ity immediately pnor to such abandonment;
(7) “person” includes an individual, f in n , corporation, asso-
ciation, and a partnership;
(8) “remove” or “removal” refers to containment and re-
moval of the oil or hazardous substances from the water and
shorelines or the taking of such other actions as may be nec-
essary to minimize or mitigate damage to the public health or
welfare, including, but not limited to, fish, shellfish, wildlife,
and public and private property, shorelines, and beaches;
(9) “contiguous zone” means the entire zone established or
to be established by the United States under article 24 of the
Convention on the Terntonal Sea and the Contiguous Zone;
(10) “onshore facility” means any facility (including, but
not limited to, motor vehicles and rolling stock) of any kind lo-
cated in, on, or under, any land within the United States other
than submerged land;
(11) “offshore facility” means any facility of any kind lo-
cated in, on, or under, any of the navigable waters of the Unit-
ed States, and any facility of any kind which 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;
(12) “act of God” means an act occasioned by an unantici-
pated grave natural disaster;
(13) “barrel” means 42 United States gallons at 60 degrees
Fahrenheit;
(14) “hazardous substance” means any substance des-
ignated pursuant to subsection (b)(2) of this section;
(15) “inland oil barge” means a non-self-propelled vessel
carrying oil in bulk as cargo and certificated to operate only in
the inland waters of the United States, while operating in such
waters;
(16) “inland waters of the United States” means those wa-
ters of the United States lying inside the baseline from which
the territorial sea is measured and those water outside such
baseline which are a part of the Gulf Intracoast.al Waterway;
(i7) “otherwi “ subject to the jurisdiction of the United
States” means subject to the jurisdiction of the United States
by virtue of United States citizenship, United States vessel
documentation or numbering, or as provided for by inter-
national agreement to which the United States is a party;
(18) “Area Committee” means an Area Committee estab-
lished under subsection (j);
(19) “Area Contingency Plan” means an Area Contingency
Plan prepared under subsection (J);
(20) “Coast Guard District Response Group” means a
Coast Guard District Response Group established under sub-
section (j);
(21) “Federal On-Scene Coordinator” means a Federal On-
Scene Coordinator designated in the National Contingency
Plan;
(22) “National Contingency Plan” means the National Con-
tingency Plan prepared and published under subsection (d);
(23) “National Response Unit” means the National Re-
sponse Unit established under subsection (9; and
(24) “worst case discharge” means—
(A) in the case of a vessel, a discharge in adverse
weather conditions of its entire cargo; and
(B) in the case of an offshore facility or onshore facil-
ity, the largest foreseeable discharge in adverse weather
conditions.
(b)(1) The Congress hereby declares that it is the policy of the
United States that there should be no discharges of oil or hazard-
ous substances into or upon the navigable waters of the United
States, adjoining shorelines, or into or upon the waters of the con-
tiguous zone, er in connection with activities under the Outer Con.
+innn,_i C l. It t — — . —
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Sec. 311 FEDERAL WATER POLLUTION CONTROL ACT
124 125
FEDERAL WATER POLLUTION CONTROL ACT Sec. 311
which may affect natural resources belonging to, appertaining to,
or under the exclusive management authority of the United States
(including resources under the Fishery Conservation and Manage-
ment Act of 1976).
(2)(A) The Administrator shall develop, promulgate, and revise
as may be appropriate, regulations designating as hazardous sub-
stances, other than oil as defined in this section, such’elements and
compounds which, when discharged in any quantity into or upon
the navigable waters of the United States or adjoining shorelines
or the waters of the contiguous zone or in connection with activities
under the Outer Continental Shelf Lands Act or the Deepwater
Port Act of 1974, or which may affect natural resources belonging
to, appertaining to, or under the exclusive management authority
of the United States (including resources under the Fishery Con-
servation and Management Act of 1976), present an imminent and
substantial danger to the public health or welfare, including, but
not limited to, fish, shellfish, wildlife, shorelines, and beaches.
(B) The Administrator shall within 18 months after the date
of enactment of this paragraph, conduct a study and report to the
Congress on methods, mechanisms, and procedures to create incen-
tives to achieve a higher standard of care in all aspects of the man-
agement and movement of hazardous substances on the part of
owners, operators, or persons in charge of onshore facilities, off-
shore facilities, or vessels, The Adm jiistrator shall include in such
study (1) limits of liability, (2) liabil y for third party damages, (3)
penalties and fees, (4) spill prevention plans, (5) current practices
in the insurance and banking industries, and (6) whether the pen-
alty enacted in subclause (bb) of clause (iii) of subparagraph (B) of
subsection (b)(2) of section 311 of Public Law 92—500 should be en-
acted
(3) The discharge of oil or hazardous substances (i) into or
upon the navigable waters of the United States, adjoining shore-
lines, or into or upon the waters of the contiguous zone, or (ii) in
connection with activities under the Outer Continental Shelf Lands
Act or the Deepwater Port Act of 1974, or which may affect natural
resources belonging to, appertaining to, or under the exclusive
management authority of the United States (including resources
under the Fishery Conservation and Management Act of 1976), in
such quantities as may be harmful as determined by the President
under paragraph (4) of this subsection, is prohibited, except (A) in
the case of such discharges into the waters of the contiguous zone
or which may affect natural resources belonging to, appertainin
to, or under the exclusive management authority of the Unite
States (including resources under the Fishery Conservation and
Management Act of 1976), where permitted under the Protocol of
1978 Relating to the International Convention for the Prevention
of Pollution from Ships, 1973, and (B) where permitted in quan-
tities and at times and locations or under such circumstances or
conditions as\the President may, by regulation, determine not to be
harmful Any regulations issued under this subsection shall be con-
sistent with maritime safety and with marine and navigation laws
and regula and applicable water quality standards.
(4) TI sident shall by regulation determine for the pur-
nf ib ,. -t nn fhn e n i intitieq of oil and any hazardous sub-
stances the discharge of which may be harmful to the public health
or welfare or the environment of the United States, including but
not limited to fish, shellfish, wildlife, and public and private prop-
erty, shorelines, and beaches.
(5) Any person in cha e of a vessel or of an onshore facility
or an offshore facility shall, as soon as he has knowledge of any
discharge of oil or a hazardous substance from such vessel or facil-
ity in violation of paragraph (3) of this subsection, immediately no-
tify the appropriate agency of the United States Government of
such discharge. The Federal agency shall immediately notify the
appropriate State agency of any State which is, or may reasonably
be expected to be, affected by the discharge of oil or a hazardous
substance. Any such person (A) in charge of a vessel from which
oil or a hazardous substance is discharged in violation of pragraph
(3)(i) of this subsection, or (B) in charge of a vessel from which oil
or a hazardous substance is discharged in violation of paragraph
(3)(ii) of this subsection and who is otherwise subject to the juris-
diction of the United States at the time of the discharge, or (C) in
charge of an onshore facility or an offshore facility, who fails to no-
tify immediately such agency of such discharge shall, upon convic-
tion, be fined in accordance with title 18, United States Code, or
imprisoned for not more than 5 years, or both. Notification received
pursuant to this paragraph shall not be used against any such nat-
ural person in any criminal case, except a prosecution for perjury
or for giving a false statement.
(6) ADM!NISTRATIVE PENALTIES.—
(A) VIOLATI0Ns.__.Any owner, operator, or person in
charge of any vessel, onshore facility, or offshore facility—.
(0 from which oil or a hazardous substance is dis-
charged in violation of paragraph (3), or
(ii) who fails or refuses to comply with any regula-
tion issued under subsection (j) to which that owner,
operator, or person in charge is subject,
may be assessed a class I or class II civil penalty by the
Secretary of the department in which the Coast Guard is
operating or the Administrator.
(B) CLASSES OF PENALTIES.—
(i) CLASS i.—The amount of a class I civil penalty
under subparagraph (A) may not exceed $10,000 per
violation, except that the maximum amount of any
class I civil penalty under this subparagraph shall not
exceed $25,000. Before assessing a civil penalty under
this clause, the Administrator or Secretary, as the
case may be, shall give to the person to be assessed
such penalty written notice of the Administrator’s or
Secretary’s proposal to assess the penalty and the op-
portunity to request, within 30 days of the date the
notice is received by such person, a hearing on the
proposed penalty. Such hearing shall not be subject to
section 554 or 556 of title 5, United States Code, but
shall provide a reasonable opportunity to be heard and
to present evidence.
(ii) CLASS II —The amount of a class I Al pen-
alty under suhparap-r nh (A) .-‘ 4 .-. — - -
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Sec. 311 EDERAL WATER POLLUTION CONTROL ACT
126 127
FEDERAL WATER POLLUTION CONTROL ACT Sec. 311
per day for each day during which the violation contin-
ues; except that the maximum amount of any class II
civil penalty under this subparagraph shall not exceed
$125,000 Except as otherwise provided in this sub-
section, a class II civil penalty shall be assessed and
collected in the same manner, and subject to the same
provisions, as in the case of civil penalties assessed
and collected after notice and opportunity for a hear.
ing on the record in accordance with section 554 of
title 5, United States Code. The Administrator and
Secretary may issue rules for discovery procedures for
hearings under this paragraph.
(C) RIGhTs OF INTERESTED PERSONS —
(i) PUBLIC NOTICE —Before issuing an order as-
sessing a class II civil penalty under this paragraph
the Administrator or Secretary, as the case may be,
shall provide public notice of and reasonable oppor-
tunity to comment on the proposed issuance of such
order
(ii) PRESENTATION OF EVIDENCE.—Any person who
comments on a proposed assessment of a class II civil
penalty under this paragraph shall be given notice of
any hearing held under this paragraph and of the
order assessing such p alty. In any hearing held
under this paragraph, such person shall have a rea-
sonable opportunity to be heard and to present evi-
dence
(iii) RIGHTS OF INTERESTED PERSONS TO A HEAR-
ING —If no hearing is held under subparagraph (B) be-
fore issuance of an order assessing a class II civil pen-
alty under this paragraph, any person who commented
on the proposed assessment may petition, within 30
days after the issuance of such order, the Adminis-
trator or Secretary, as the case may be, to set aside
such order and to provide a hearing on the penalty. If
the evidence presented by the petitioner in support of
the petition is material and was not considered in the
issuance of the order, the Administrator or Secretary
shall immediately set aside such order and provide a
hearing in accordance with subparagraph (B)(ii). If the
Administrator or Secretary denies a hearing under
this clause, the Administrator or Secretary shall pro-
vide to the petitioner, and publish in the Federal Reg-
ister, notice of and the reasons for such denial.
(D) FINALITY OF ORDER.—An order assessing a class II
civil penalty under this paragraph shall become final 30
days after its issuance unless a petition for judicial review
is filed under subparagraph (G) or a hearing is requested
under subpar ; h (C)(ni) If such a hearing is denied,
such order shail become final 30 days after such denial.
(E) EFFECT OF ORDER —Action taken by the Adminis-
trator or Secretary, as the case may be, under this para-
eraoh shall not affect or limit the Administrator’s or Sec-
retary’s authority to enforce any provision of this Act; ex-
cept that any violation—
(i) with respect to which the Administrator or Sec-
retary has commenced and is diligently prosecuting an
action to assess a class II civil penalty under this
paragraph, or
(ii) for which the Administrator or Secretary has
issued a final order assessing a class II civil penalty
not subject to further judicial review and the violator
has paid a penalty assessed under this paragraph,
shall not be the subject of a civil penalty action under sec-
tion 309(d), 3 09(g), or 505 of this Act or under paragraph
(7).
(F) EFFECT OF ACTION ON COMPLIAJ’JCE.—NO action by
the Administrator or Secretary under this paragraph shall
afFect any person’s obligation to comply with any section of
this Act
(G) JUDICIAL REVIEW.—Any person against whom a
civil penalty is assessed under this paragraph or who com-
mented on the proposed assessment of such penalty in ac-
cordance with subparagraph (C) may obtain review of such
assessment—
(i) in the case of assessment of a class I civil pen-
alty, in the United States District Court for the Dis-
trict of Columbia or in the district in which the viola-
tion is alleged to have occurred, or
(ii) in the case of assessment of a class II civil
penalty, in United States Court of Appeals for the Dis-
trict of Columbia Circuit or for any other circuit in
which such person reside8 or transacts business,
by filing a notice of appeal in such court within the 30-day
period beginning on the date the civil penalty order is is-
sued and by simultaneously sending a copy of such notice
by certified mail to the Administrator or Secretary, as the
case may be, and the Attorney General. The Administrator
or Secretary shall promptly file in such court a certified
copy of the record on which the order was issued. Such
court shall not set aside or remand such order unless there
is not substantial evidence in the record, taken as a whole,
to support the finding of a violation or unless the Adminis-
trator’s or Secretary’s assessment of the penalty con-
stitutes an abuse of discretion and shall not impose addi-
tional civil penalties for the same violation unless the Ad-
ministrator’s or Secretary’s assessment of the penalty con-
stitutes an abuse of discretion.
(H) COLLECTION.1f any person fails to pay an assess-
ment of a civil penalty—
(i) after the assessment has become final, or
(ii) after a court in an action brought under sub-
paragraph (G) has entered a final judgment in favor of
the Administrator or Secretary, as the case may be,
the Administrator or Secretary shall request the Attorney
Gene to bring a ci action in an appropriate district
court to recover the amount assessed (oliis intr’rr f t
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Sec. 311 FEDERAL WATER POlLUTION CONTROL. ACT
129
FEDERAL WATER POLLUTION CONTROL ACT Sec. 311
rently prevailing rates from the date of the final order or
the date of the final judgment, as the case may be). In
such an action, the validity, amount, and appropriateness
of such penalty shall not be subject to review. Any person
who fails to pay on a timely basis the amount of an assess-
ment of a civil penalty as described in the first sentence
of this subparagraph shall be required to pay, in addition
to such amount and interest, attorneys fees and costs for
collection proceedings and a quarterly nonpayment penalty
for each quarter during which such failure to pay persists.
Such nonpayment penalty shall be in an amount equal to
20 percent of the aggregate amount of such person’s pen-
alties and nonpayment penalties which are unpaid as of
the beginning of such quarter
(I) SUBPOENAS.—The Administrator or Secretary, as
the case may be, may issue subpoenas for the attendance
and testimony of witnesses and the production of relevant
papers, books, or documents in connection with hearings
under this paragraph. In case of contumacy or refusal to
obey a subpoena issued pursuant to this subparagraph and
served upon any person, the district court of the United
States for any district in which such person is found, re-
sides, or transacts business, upon application by the Unit-
ed States and after notice to such person, shall have juris-
diction to issue an order requiring such person to appear
and give testimony before the administrative law judge or
to appear and produce documents before the administra-
tive law judge, or both, and any failure to obey such order
of the court may be punished by such court as a contempt
thereof
(7) CiviL PENALTY ACTION.—
(A) DISCHARGE, GENERALLY.—Any person who is the
owner, operator, or person in charge of any vessel, onshore
facility, or offshore facility from which oil or a hazardous
substance is discharged in violation of paragraph (3), shall
be subject to a civil penalty in an amount up to $25,000
per day of violation or an amount up to $1,000 per barrel
of oil or unit of reportable quantity of hazardous sub-
stances discharged
(B) FMLURE TO REMOVE OR COMPLY.—AflY person de-
scribed in subparagraph (A) who, without sufficient
cause—
(i) fails to properly carry out removal of the dis-
charge under an order of the President pursuant to
subsection (c); or
(ii) fails to comply with an order pursuant to sub-
section (e)(1)(B);
shall be subject to a civil penalty in an amount up to
$25,000 per day of violation or an amount up to 3 times
the costs incurred by the Oil Spill Liability Trust Fund as
a res of such failure.
‘AlLURE TO COMPLY WITH REGULATION —Any per-
son .. . fails or refuses to comply with any regulation is-
sued under subsection (j) shall be subject to a civil penalty
in an amount up to $25,000 per day of violation.
(D) GROSS NEGLIGENCE.—In any case in which a viola-
tion of paragraph (3) was the result of gross negligence or
willful misconduct of a person described in subparagraph
(A), the person shall be subject to a civil penalty of not less
than $100,000, and not more than $3,000 per barrel of oil
or unit of reportable quantity of hazardous substance dis-
charged.
(E) JURISDICTION.—An action to impose a civil penalty
under this paragraph may be brought in the district court
of the United States for the district in which the defendant
is located, resides, or is doing business, and such court
shall have jurisdiction to assess such penalty.
(F) LIMITATION.—A person is not liable for a civil pen-
alty under this paragraph for a discharge if the person has
been assessed a civil penalty under paragraph (6) for the
discharge
(8) DETERMINATION OF AMOUNT—In determining the
amount of a civil penalty under paragraphs (6) and (7), the Ad-
ministrator, Secretary, or the court, as the case may be, shall
consider the seriousness of the violation or violations, the eco-
nomic benefit to the violator, if any, resulting from the viola-
tion, the degree of culpability involved, any other penalty for
the same incident, any history of prior violations, the nature,
extent, and degree of success of any efforts of the violator to
minimize or mitigate the effects of the discharge, the econom c
impact of the penalty on the violator, and any other matters
as justice may require.
(9) MITIGATION OF DAMAGE.—In addition to establishing a
penalty for the discharge of oil or a hazardous substance, the
Administrator or the Secretary of the department in which the
Coast Guard is operating may act to mitigate the damage to
the public health or welfare caused by such discharge. The cost
of such mitigation shall be deemed a cost incurred under sub-
section (c) of this section for the removal of such substance by
the United States Government.
(10) RECOVERY OF REMOVAL COSTS.—Any costs of removal
incurred in connection with a discharge excluded by subsection
(a)(2)(C) of this section shall be recoverable from the owner or
operator of the source of the discharge in an action brought
under section 309(b) of this Act.
(11) LIMITATION._CIvil penalties shall not be assessed
under both this section and section 309 for the same discharge.
(12)1 WITHHOLDING CLEARANCE._Tf any owner, operator, or
person in charge of a vessel is liable for a civil penalty under this
subsection, or if reasonable cause exists to believe that the owner,
operator, or person in charge may be subject to a civil penalty
under this subsection, the Secretary of the Treasury, upon the re-
quest of the Secretary of the department in which the C’ Guard
‘Indentation so in law
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Sec 311 FEDERAL WATER POLLUTION CONTRDL ACT
130
is operating or the Administrator, shall with respect to such vessel
refuse or revoke—
(A) the clearance required by section 4197 of the Revised
Statutes of the United States (46 U S.C. App. 91),
(B) a permit to proceed under section 4367 of the Revised
Statutes of the United States (46 U S.C. App. 313);and
(C) a permit to depart required under section 443 of the
Tariff Act of 1930 (19 U S.c. 1443);
as applicable Clearance or a permit refused or revoked under this
paragraph may be granted upon the filing of a bond or other surety
satisfactory to the Secretary of the department in which the Coast
Guard is operating or the Administrator.
(c) FEDERAL REMOVAL AUTHORITY —
(1) GENERAL REMOVAL REQUIREMENT.—(A) The President
shall, in accordance with the National Contingency Plan and
any appropriate Area Contingency Plan, ensure effective and
immediate removal of a discharge, and mitigation or preven-
tion of a substantial threat of a discharge, of oil or a hazardous
substance—
(i) into or on the navigable waters;
(ii) on the adjoining shorelines to the navigable wa-
ters;
(iii) into or on the waters of the exclusive economic
zone, or
(iv) that may affect natural resources belonging to, ap-
pertaining to, or under the exclusive management author-
ity of the United States
(B) In carrying out this paragraph, the President may—
(i) remove or arrange for the removal of a discharge,
and mitigate or prevent a substantial threat of a dis-
charge, at any time;
(ii) direct or monitor all Federal, State, and private ac-
tions to remove a discharge; and
(iii) remove and, if necessary, destroy a vessel dis-
charging, or threatening to discharge, by whatever means
are available.
(2) DIsCHARGE POSING SUBSTANTiAL THREAT TO PUBLIC
HEALTH OR WELFARE.—(A) If a discharge, or a substantial
threat of a discharge, of oil or a hazardous substance from a
vessel, offshore facility, or onshore facility is of such a size or
character as to be a substantial threat to the public health or
welfare of the United States (including but not limited to fish,
shellfish, wildlife, other natural resources, and the public and
pnvate beaches and shorelines of the United States), the Presi-
dent shall direct all Federal, State, and private actions to re-
move the discharge or to mitigate or prevent the threat of the
discharge
(B) In carrying out this paragraph, the President may,
without regard to any other provision of law governing con-
tractirig procedures or employment of personnel by the Federal
Government—
(i) remove r- arrange for the removal of the discharge,
or mitigate or prevent the substantial threat of the dis-
131 FEdERAL WAlER POLLUTION CONTROL ACT
Sec. 3
(ii, ; - . “ ‘e and, if necessary, destroy a vessel discharg-
ing, or threatening to discharge, by whatever means are
available.
(3) ACTIONS IN ACCORDANCE WITh NATIONAL CONTINGENCY
PLAN.—(A) Each Federal agency, State owner or operator, or
other person participating in efrorts under this subsection shall
act in accordance with the National Contingency Plan or as di-
rected by the President.
(B) An owner or operator participating in efforts under this
subsection 8hall act in accordance with the National Contin-
gency Plan and the applicable response plan required under
subsection (j), or as directed by the President, except that the
owner or operator may deviate from the applicable response
plan if the President or the Federal On-Scene Coordinator de-
termines that deviation from the response plan would provide
for a more expeditious or effective response to the spill or miti-
gation of its environmental effects.
(4) EXEMPTION FROM LLABILITY._(A) A person is not liable
for removal costs or damages which result from actions taken
or omitted to be taken in the course of rendering care, assist-
ance, or advice consistent with the National Contingency Plan
or as otherwise directed by the President.
(B) Subparagraph (A) does not apply—
(i) to a responsible party;
(ii) to a response under the Comprehensive Environ-
mental Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601 et seq.);
(iii) with respect to personal injury or wrongful death;
or
(iv) if the person is grossly negligent or engages in
willful misconduct.
(C) A responsible party is liable for any removal costs and
damages that another person is relieved of under subpara-
graph (A).
(5) OBLIGATION AND LIABILITY OF OWNER OR OPERATOR NOT
AFFECTED._Nothing in this subsection affects—
(A) the obligation of an owner or operator to respond
immediately to a discharge, or the threat of a discharge,
of oil; or
(B) the liability of a responsible party under the Oil
Pollution Act of 1990.
(6) RESPONSIBLE PARTY DEFINED.—For purposes of this
subsection, the term “responsible party” has the meaning given
that tei-m under section 1001 of the Oil Pollution Act of 1990.
(d) NATIONAL CONTINGENCY PLAN.—
(1) PREPARATION BY PRESIDENT_The President shall pre-
pare and publish a National Contingency Plan for removal of
oil “‘ I hazardous substances pursuant to this section.
t ) CONTENTS —The National Contingency Plan shall pro-
vide for ellicient, coordinated, and effective actkn to minimize
damage from oil and hazardous substance discharges, includ-
ing c”’ “ :rnent, dispersal, and removal of oil and hazardous
ubrLaru s, and shall include, but not he tn ,- • rtt
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FEDERAL WATER POLLUTION CONTROL ACT 132
(A) Assignment of duties and responsibilities among
Federal departments and agencies in coordination with
State and local agencies and port authorities including,
but not limited to, water pollution control and conservation
and trusteeship of natural resources (including conserva-
tion of fish and wildlife).
(B) Identification, procurement, maintenance, and
storage of equipment and supplies.
(C) Establishment or designation of Coast Guard
strike teams, consisting of—
(i) personnel who shall be trained, prepared, and
available to provide necessary services to carry out the
National Contingency Plan;
(ii) adequate oil and hazardous substance pollu-
hon control equipment and material; and
(ui) a detailed oil and hazardous substance pollu-
tion and prevention plan, including measures to pro-
tect fishenes and wildlife.
(D) A system of surveillance and notice designed to
safeguard against as well as ensure earliest possible notice
of discharges of oil and hazardous substances and immi-
nent threats of such discharges to the appropriate State
and Federal agencies
(E) Establishment of a iational center to provide co-
ordination and direction for operations in carrying out the
Plan.
(F) Procedures and techniques to be employed in iden-
tifying, containing, dispersing, and removing oil and haz-
ardous substances
(G) A schedule, prepared in cooperation with the
States, identifying—
(i) dispersants, other chemicals, and other spill
mitigating devices and substances, if any, that may be
used in carrying out the Plan,
(ii) the waters in which such dispersants, other
chemicals, and other spill mitigating devices and sub-
stances may be used, and
(iii) the quantities of such dispersant, other chemi-
cals, or other spill mitigating device or substance
which can be used safely in such waters,
which schedule shall provide in the case of any dispersant,
chemical, spill mitigating device or substance, or waters
not specifically identified in such schedule that the Presi-
dent, or his delegate, may, on a case-by-case basis, identify
the dispersants, other chemicals, and other spill mitigating
devices and substances which may be used, the waters in
which they may be used, and the quantities which can be
used safely in such waters.
(H) A system whereby the State or States affected by
a discharge of oil or hazardous substance may act where
nec -- ary to remove such discharge and such State or
St ‘nay be reimbursed in accordance with the Oil Pal-
lut. Act of 1990, in the case of any disc)’a ’a of oi rrorr
133 FEDERAL WATER POLLUTION CONTROL ACT Sec. 311
a vessel or facility, for the reasonable cost8 incurred for
that removal, from the Oil Spill Liability Trust Fund.
(I) Establishment of criteria and procedures to ensure
immediate and effective Federal identification of, and re-
sponse to, a discharge, or the threat of a discharge, that
results in a substantial threat to the public health or wel-
fare of the United States, as required under subsection
(c)(2).
(J) Establishment of procedures and standards for re-
moving a worst case discharge of oil, and for mitigating or
preventing a substantial threat of such a discharge.
(K) Designation of the Federal official who shall be the
Federal On-Scene Coordinator for each area for which an
Area Contingency Plan is required to be prepared under
subsection (j).
(L) Establishment of procedures for the coordination of
activities of—
(i) Coast Guard strike teams established under
subparagraph (C);
(ii) Federal On-Scene Coordinators designated
under subparagraph (K);
(iii) District Response Groups established under
subsection (j); and
(iv) Area Committees established under subsection
(j).
(M) A fish and wildlife response plan, developed in
consultation with the United States Fish and Wildlife
Service, the National Oceanic and Atmospheric Adminis-
tration, and other interested parties (including State fish
and wildlife conservation officials), for the immediate and
effective protection, rescue, and rehabilitation of, and the
minimization of risk of damage to, fish and wildlife re-
sources and their habitat that are harmed or that may be
jeopardized by a discharge.
(3) REVISIONS AND AMENDMENTS._The President may,
from time to time, as the President deems advisable, revise or
otherwise amend the National Contingency Plan.
(4) ACTIONS IN ACCORDANCE WITH NATION CONTINGENCY
PLAN.__After publication of the National Contingency Plan, the
removal of oil and hazardous substances and actions to mini-
mize damage from oil and hazardous substance discharges
shall, to the greatest extent possible, be in accordance with the
National Contingency Plan.
(e) CIVIL ENFORCEMENT
(1) ORDERS PROTECTING PUBLIC HEALTH._In addition to
any action taken by a State or local government when the
President determines that there may be an imminent and sub-
star tial threat to the public health or welfare of the United
States, including fish, shellfish, and wildlife, public and private
property, shorelines, beaches, habitat, and other living and
nonliving natural resources under the jurisdiction or “itrol of
the United States, because of an actual or thre2 I dis-
charge of oil or a hazardous substance from a V ’ r.
in , i ’
Sec. 311
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Sec 311 EDERAL WATER POLLUTION CONTROL ACT
134 135
(A) require the Attorney General to secure any relief
from any person, including the owner or operator of the
vessel or facility, as may be necessary to abate such
endangerment, or
(B) after notice to the affected State, take any other
action under this section, including issuing administrative
orders, that may be necessary to protect the public health
and welfare.
(2) JURISDICTION OF DISTRICT COIJRTS.—The district courts
of the United States shall have jurisdiction to grant any relief
under this subsection that the public interest and the equities
of the case may require.
(fl(1) Except where an owner or operator can prove that a dis-
charge was caused solely by (A) an act of God, (B) an act of war,
(C) negligence on the part of the United States Government, or (D)
an act or omission of a third party without regard to whether any
such act or omission was or was not negligent, or any combination
of the foregoing clauses, such owner or operator of any vessel from
which oil or a hazardous substance is discharged in violation of
subsection (b)(3) of this section shall, notwithstanding any other
provision of law, be liable to the United States Government for the
actual costs incurred under subsection (c) for the removal of such
oil or substance by the United States Government in an amount
not to exceed, in the case of an inland oil barge $125 per gross ton
of such barge, or $125,000, whichev is greater, and in the case
of any other vessel, $150 per gross ton of such vessel (or, for a ves-
sel carrying oil or hazardous substances as cargo, $250,000), which-
ever is greater, except that where the United States can show that
such discharge was the result of willful negligence or willful mis-
conduct within the privity and knowledge of the owner, such owner
or operator shall be liable to the United States Government for the
full amount of such costs Such costs shall constitute a maritime
lien on such vessel which may be recovered in an action in rem in
the district court of the United States for any district within which
any vessel may be found. The United States may also bring an ac-
tion against the owner or operator of such vessel in any court of
competent jurisdiction to recover such cost.s.
(2) Except where an owner or operator of an onshore facility
can prove that a discharge was caused solely by (A) an act of God,
(B) an act of war, (C) negligence on the part of the United States
Government, or (D) an act or omission of a third party without re-
gard to whether any such act or omission was or was not negligent,
r any combination of the foregoing clauses, such owner or operator
of any such facility from which oil or a hazardous substance is dis-
charged in violation of subsection (b)(3) of this section shall be lia-
ble to the United States Government for the actual costs incurred
under subsection (c) for the removal of such oil or substance by the
United States Government in an amount not to exceed $50,000,000,
except that where the United States can show that such discharge
was the result of willful negligence or willful misconduct within the
privity and knowledge of the owner, such owner or operator shall
be liable to the United States Government for the full amount of
such costs The United States may bring an acto- against the
n n r nt facility in any -
FEDERAL WATER POLLUTION CONTROL ACT
Sec. 311
diction to recover such cnsts. The Administrator is authorized, by
regulation after consultation with the Secretary of Commerce and
the Small Business Administration, to establish reasonable and eq-
uitable classifications of those onshore facilities having a total
fixed storage capacity of 1,000 barrels or less which he determines
because of size, type, and location do not present a substantial nsk
of the discharge of oil or hazardous substance in violation of sub-
section (b)(3) of this section, and apply with respect to such classi-
fications differing limits of liability which may be less than the
amount contained in this paragraph.
(3) Except where an owner or operator of an onshore facility
can prove that a discharge was caused solely by (A) an act of God,
(B) an act of war, (C) negligence on the part of the United States
Government, or (D) an act or omission of a third party without re-
gard to whether any such act or omission was or was not negligent,
or any combination of the foregoing clauses, such owner or operator
of any such facility from which oil or a hazardous substance is dis-
charged in violation of subsection (b)(3) of this section shall, not-
withstanding any other provision of law, be liable to the United
States Government for the actual costs incurred under subsection
(c) for the removal of such oil or substance by the United States
Government in an amount not to exceed $50,000,000, except that
where the United States can show that such discharge was the re-
sult of willful negligence or willful misconduct within the pnvity
and knowledge of the owner, such owner or operator shall be liable
to the United States Government for the full amount of such costs.
The United States may bring an action against the owner or opera-
tor of such facility in any court of competent jurisdiction to recover
such costs.
(4) The costs of removal of oil or a hazardous substance for
which the owner or operator of a vessel or onshore or offshore facil-
ity is liable under subsection (f) of this section shall include any
costs or expenses incurred by the Federal Government or any State
government in the restoration or replacement of natural resources
damaged or destroyed as a result of a discharge of oil or a hazard-
ous substance in violation of subsection (b) of ibis section
(5) The President, or the authorized representative of any
State, shall act on behalf of the public as trustee of the natural re-
sources to recover for the costs of replacing or restoring such re-
sources. Sums recovered shall be used to restore, rehabilitate, or
acquire the equivalent of such natural resources by the appropriate
agencies of the Federal Government, or the State government.
(g) Where the owner or operator of a vessel (other than an in-
land oil barge) carrying oil or hazardous substances as cargo or an
onshore or offshore facility which handles or stores oil or hazardous
substances in bulk, from which oil or a hazardous substance is dis-
charge4 in violation of subsection (b) of this section, alleges that
such discharge was caused solely by an act or omission of a third
party, such owner or operator shall pay to the United States Gov-
ernment the actual costs incurred under subsection (c) for removal
of such oil or substance and shall be entitled by subrogation to all
right.s of the United States Government to recover such costs from
such third party under this subsection In any case where an owner
or noprator nf pn .ni -— t .-
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Sec. 311 FEDERAL WATER POLLUTION CONTROL ACT
136
ity, from which oil or a hazardous substance is discharged in viola-
tion of subsection (b)(3) of this section, proves that such discharge
of oil or hazardous substance was caused solely by an act or omis-
sion of a third party, or was caused solely by such an act or omis-
sion in combination with an act of God, an act of war, or negligence
on the part of the United States Government, such third party
shall, not withstanding any other provision of law, be liable to the
United States Government for the actual costs incurred under sub-
section (c) for removal of such oil or substance by the United States
Government, except where such third party can prove that such
discharge was caused solely by (A) an act of God, (B) an act of war,
(C) negligence on the part of the United States Government, or (D)
an act or omission of another party without regard to whether such
an act or omission was or was not negligent, or any combination
of the foregoing clauses. If such third party was the owner or oper-
ator of a vessel which caused the discharge of oil or a hazardous
substance in violation of subsection (b)(3) of this section, the liabil-
ity of such third party under this subsection shall not exceed, in
the case of an inland oil barge $125 per gross ton of such barge,
$125,000, whichever is greater, and in the case of any other vessel,
$150 per gross ton of such vessel (or, for a vessel carrying oil or
hazardous substances as cargo, $250,000), whichever is greater. In
any other case the liability of such third party shall not exceed the
limitation which would have been applicable to the owner or opera-
tor of the vessel or the onshore or offMiore facility from which the
discharge actually occurred if such owner or operator were liable.
If the United States can show that the discharge of oil or a hazard-
ous substance in violation of subsection (b)(3) of this section was
the result of willful negligence or willful misconduct within the
privity and knowledge of such third party, such third party shall
be liable to the United States Government for the full amount of
such removal costs. The United States may bring an action against
the third party in any court of competent jurisdiction to recover
such removal costs.
(h) The liabilities established by this section shall in no way
affect any rights which (1) the owner or operator of a ve sel or of
an onshore facility or an offshore facility may have against any
third party whose acts may in any way have caused or contributed
to such discharge, or (2) The i United States Government may have
against any third party whose actions may in any way have caused
or contributed to the discharge of oil or hazardous substance.
(i) In any case where an owner or operator of a vessel or an
onshore facility or an offshore facility from which oil or a hazard-
ous substance is discharged in violation of subsection (b)(3) of this
section acts to remove such oil or substance in accordance with reg-
ulations promulgated pursuant to this section, such owner or oper-
ator shall be entitled to recover the reasonable costs incurred in
such removal upon establishing, in a suit which may be brought
against the United States Government in the United States Claims
Court, that such discharge was caused solely by (A) an act of God,
(B) an act of war, (C) negligence on the part of the United States
Government, “- (D) an act or omission of a third party without re-
‘So in law Shot be capitalized
137 FEDERAL WATER POLLUTION CONTROL ACT Sec.. 3fl
gard to whether such act or omission was or was not negligent, or
of any combination of the foregoing clauses.
(j) NATIONAL RESPONSE SYSTEM..._
(1) IN GENERAL —-Consistent with the National Contin-
gency Plan required by subsection (c)(2) of this section, as soon
as practicable after the effective date of this section, and from
time to time thereafter, the President shall issue regulations
consistent with maritime safety and with marine and naviga-
tion laws (A) establishing methods and procedures for removal
of discharged oil and hazardous substances, (B) establishin
criteria for the development and implementation of local an
regional oil and hazardous substance removal contingency
plans, (C) establishing procedures methods, and equipment
and other requireme 5 for equipment to prevent discharges of
oil and hazardous substances from vessels and from onshore
facilities and offshore facilities, and to contain such discharges,
and (D) governing the inspection of vessels carrying cargoes of
oil and hazardous substances and the inspection of such car-
goes in order to reduce the likelihood of discharges of oil from
vessels in violation of this section.
(2) NATIONAL RESPONSE UNIT.—The Secretary of the de-
partment in which the Coast Guard is operating shall establish
a National Response Unit at Elizabeth City, North Carolina.
The Secretary, acting through the National Response Unit—.
(A) shall compile and maintain a comprehensive com-
puter list of spill removal resources, personnel, and equip-
ment that is available worldwide and within the areas des-
ignated by the President pursuant to paragraph (4), and of
information regarding previous spills, including data from
universities research institutions, State governmen and
other nations, as appropriate which shall be disseminated
as appropriate to response groups and area committees,
and which shall be available to Federal and State agencies
and the public;
(B) shall provide technical assistance, equipment and
other resources requested by a Federal On-Scene Coordi-
nator;
(C) shall coordinate use of private and public person-
nel and equipment to remove a worst case discharge, and
to mitigate or prevent a substantial threat of such a dis-
charge, from a vessel, offshore facility, or onshore facility
operating in or near an area designated by the President
pursuant to paragraph (4);
(D) may provide technical assistance in the prepara-
tion of Area Contingency Plans required under paragraph
(4);
(E) shall administer Coast Guard strike teams estab-
lished under the National Contingency Plan;
(F) shall maintain on file all Area Conting’incy Plans
approved by the President under this subsection; and
(G) shall review each of those plans that ar its re-
sponsibilities under this subsection.
(3) COAST GUARD DISTRICT RESPONcF ( PflhTr ’c
r .,
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Sec. 311 EDERAL WATER POLLUTION CONTROL ACT
138 139
FEDERAL WATER POLLUTION CONTROL ACT Sec. 311
ating shall establish in each Coast Guard district a Coast
Guard District Response Group.
(B) Each Coast Guard District Response Group shall con-
sist of—
(i) the Coast Guard personnel and equipment, includ-
ing firefighting equipment, of each port within the district;
(ii) additional prepositioned equipment; and
(iii) a district response advisory staff.
(C) Coast Guard district response groups—
(i) shall provide technical assistance, equipment, and
other resources when required by a Federal On.Scene Co-
ordinator;
(ii) shall maintain all Coast Guard response equip-
ment within its district;
(iii) may provide technical assistance in the prepara-
tion of Area Contingency Plans required under paragraph
(4), and
(iv) shall review each of those plans that affect its area
of geographic responsibility
(4) AREA COMMIVI’EES AND AREA CONTINGENCY PLANS —(A)
There is established for each area designated by the President
an Area Committee comprised of members appointed by the
President from qualified personnel of Federal, State, and local
agencies
(B) Each Area Committee, under the direction of the Fed-
eral On-Scene Coordinator for its area, shall—
(i) prepare for its area the Area Contingency Plan re-
quired under subparagraph (C);
(ii) work with State and local officials to enhance the
contingency planning of those officials and to assure
preplarining of joint response efforts, including appropriate
procedures for mechanical recovery, dispersal, shoreline
cleanup, protection of sensitive environmental areas, and
protection, rescue, and rehabilitation of fishenes and wild-
life; and
(iii) work with State and local officials to expedite de-
cisions for the use of dispersants and other mitigating sub-
stances and devices.
(C) Each Area Committee shall prepare and submit to the
President for approval an Area Contingency Plan for its area.
The Area Contingency Plan shall—
(i) when implemented in conjunction with the National
Contingency Plan, be adequate to remove a worst case dis-
charge, and to mitigate or prevent a substantial threat of
such a discharge, from a vessel, offshore facility, or on-
shore facility operating in or near the area;
(ii) describe the area covered by the plan, including
the areas of special economic or environmental importance
that might be damaged by a discharge;
(iii) describe in detail the responsibilities of an owner
or operator and of Federal, State, and local agencies in re-
moving a discharge, and in mitigating or preve’hting a sub-
stantial threat of a discharge;
(iv) list the equipment (including firefighting equip-
ment), dispersants or other mitigating substances and de-
vices, and personnel available to an owner or operator and
Federal, State, and local agencies, to ensure an effective
and immediate removal of a discharge, and to ensure miti-
gation or prevention of a substantial threat of a discharge;
(v) compile a list of local scientists, both inside and
outside Federal Government service, with expertise in the
environmental effects of spills of the types of oil typically
transported in the area, who may be contacted to provide
information or, where appropriate, participate in meetings
of the scientific support team convened in response to a
spill, and describe the procedures to be followed for obtain-
ing an expedited decision regarding the use of dispersants;
(vi) describe in detail how the plan is integrated into
other Area Contingency Plans and vessel, offshore facility,
and onshore facility response plans approved under this
subsection, and into operating procedures of the National
Response Unit;
(vii) include any other information the President re-
quires; and
(viii) be updated periodically by the Area Committee.
(D) The President shall—
(i) review and approve Area Contingency Plans under
this paragraph; and
(ii) periodically review Area Contingency Plans so ap-
proved.
(5) T jic VESSEL AND FACILITY RESPONSE PLANS.—(A) The
President shall issue regulations which require an owner or op-
erator of a tank vessel or facility described in subparagraph (B)
to prepare and submit to the President 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 haz-
ardous substance.
(B) The tank vessels and facilities referred to in subpara-
graph (A) are the following:
(i) A tank vessel, as defined under section 2101 of title
46, United States Code.
(ii) An offshore facility.
(iii) An 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
(C) A response plan required under this paragraph shall—
(i) be consistent with the requiremen of the National
Contingency Plan and Area Contingency Plans;
(ii) identify the qualified individual having full author-
ity to implement removal actions, and require immediate
communications between that individual and the appro-
priate Federal official and the persons providing personnel
and equipment pursuant to clause (iii);
(iii) identify, and ensure by contract or other means
approved by the Prpqirlpnt r
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Sec. 311 FEDERAL WATER POLLUTION CONTROL ACT
140 141
FEDERAL WATER POLLUTION CONTROL ACT
sonnel and equipment necessary to remove to the maxi-
mum extent practicable a worst case discharge (including
a discharge resulting from fire or explosion), and to miti-
gate or prevent a substantial threat of such a discharge;
(iv) describe the training, equipment testing, penodic
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 dis-
charge;
(v) be updated penodically; and
(vi) he resubmitted for approval of each significant
change.
(D) With respect to any response plan submitted under
this paragraph for an ohshore facility that, because of its loca-
tion, could reasonably be expected to cause significant and sub-
stantial harm to the environment by discharging into or on the
navigable waters or adjoining shorelines or the exclusive eco-
nomic zone, and with respect to each response plan submitted
under this paragraph for a tank vessel or offshore facility, the
President shall—
(i) promptly review such response plan;
(ii) require amendments to any plan that does not
meet the requirements of iis paragraph,
(iii) approve any plan that meets the requirements of
this paragraph; and
(iv) review each plan penodically thereafter
(E) 1 A tank vessel, offshore facility, or onshore facility re-
quired to prepare a response plan under this subsection may
not handle, store, or transport oil unless—
(i) in the case of a tank vessel, offshore facility, or on-
shore facility for which a response plan is reviewed by the
President under subparagraph (D), the plan has been ap-
proved by the President; and
( 11) the vessel or facility is operating ir compliance
with the plan
(F) Notwithstanding subparagraph (E), the President may
authorize a tank vessel, offshore facility, or onshore facility to
operate without a ref ponse plan approved under this para-
graph, until not later than 2 years after the date of the sub-
mission to the President of a plan for the tank vessel or facil-
ity, if the owner or operator certifies that the owner or opera-
tor has ensured by contract or other means approved by the
President the availability of private personnel and equipment
necessary to respond, to the maximum extent practicable, to a
worst case discharge or a substantial threat of such a dis-
charge.
(G) The owner or operator of a tank vessel, offshore facil-
ity, or onshore facility may not claim as a defense to liability
under title I of the Oil Pollution Act of 1990 that the owner
) of section 3 i 1 (jX 5 ) halI take effect 28 months (August 18, i993) after the
ertt ot Public Law iOi 380 See P 1 lOi-380. sec 4202(bXIXC) , 104 Stat 532
or operator was acting in accordance with an approved re-
8pOflse plan.
(H) The Secretary shall maintain, in the Vess 1 Identifica-
tion System established under chapter 125 of title 46, United
States Code, the dates of approval and review of a response
plan under this paragraph for each tank vessel that is a vessel
of the United States.
(6) EQUIPMENT REQUIREMENTS AND INSPEc’rIoN._. ..Not later
than 2 years after the date of enactment of this section, the
President shall require—
(A) periodic inspection of containment booms, skim-
mers, vessels, and other major equipment used to remove
discharges; and
(B) vessels operating on navigable waters and carrying
oil or a hazardous substance in bulk as cargo to carry a -
propriate removal equipment that employs the best tec -
nology economically feasible and that is compatible with
the safe operation of the vessel.
(7) AREA DRILLS.—The President shall periodically conduct
drills of removal capability, without prior notice, in areas for
which Area Contingency Plans are required under this sub-
section and under relevant tank vessel and facility response
plans. The drills may include participation by Federal, State,
and local agencies, the owners and operators of vessels and fa-
cilities in the area, and private industry. The President may
publish annual reports on these drills, including assessments
of the effectiveness of the plans and a list of amendments
made to improve plans.
(8) UNITED STATES GOVERNMENT NOT LIABLE.—The United
States Government is not liable for any damages arising from
its actions or omissions relating to any response plan required
by this section.
[ Subsection (k) was repealed by sec. 2002(b)(2) of P.L. 101-380.]
(1) The President is authorized to delegate the administration
of this section to the heads of those Federal departmen , agencies,
and instrumentalities which he determines to be appropriate. Each
such department, agency, and instrumentality in order to avoid
duplication of effort, shall, whenever appropriate, utilize the per-
sonnel, services, and facilities of other Federal departments, agen-
cies, and instrumentalities
(m) ADMINISTRATIVE PROVISIONS.—
(1) FOR VESSEL&_—AIIyOne authorized by the President to
enforce the provisions of this section with respect to any vessel
may, except as to public vessels—
(A) board and inspect, any vessel upon the navigable
waters of the United States or the waters of the contiguous
zone,
(B) with or without a warrant, arrest any person who
in the presence or view of the authorized person violates
the provisions of this section or any regulation issued
thereunder, and
(C) execute any warrant or other process iss y an
officer or court of competent iurisdictlt4n
Sec. 311
‘Subpara 1
date of the ei
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Sec. 311 FEDERAL WATER POLLUTION CONTROL ACT
142 143
FEDERAL WATER POLLUTION CONTROL ACT Sec. 312
(2) FoR FACILITIES —
(A) REc0RDKEEpING.—Whenever required to carry out
the purposes of this section, the Administrator or the Sec-
retary of the Department in which the Coast Guard is op-
erating shall require the owner or operator of a facility to
which this section applies to establish and maintain such
records, make such reports, install, use, and maintain such
monitoring equipment and methods, and provide such
other information as the Administrator or Secretary, as
the case may be, may require to carry out the objectives
of this section.
(B) ENTRY AND INSPECTI0N.—Whenever required to
carry out the purposes of this section, the Administrator or
the Secretary of the Department in which the Coast Guard
is operating or an authonzed representative of the Admin-
istrator or Secretary, upon presentation of appropriate cre-
dentials, may—
( I) enter and inspect any facility to which this sec-
tion applies, including any facility at which any
records are required to be maintained under subpara-
graph (A); and
(ii) at reasonable times, have access to and copy
any records, take samples, and inspect any monitoring
equipment or methods required under subparagraph
(A).
(C) ARRESTS AND EXECUTION OF wARRANTS.—Anyone
authorized by the Administrator or the Secretary of the de-
partment in which the Coast Guard is operating to enforce
the provisions of this section with respect to any facility
may—
(i) with or without a warrant, arrest any person
who violates the provisions of this section or any regu-
lation issued thereunder in the presence or view of the
person so authorized, and
(ii) execute any warrant or process issued by an
officer or court of competent jurisdiction.
(D) PUBLIC ACCESS —Any records, reports, or informa-
tion obtained under this paragraph shall be subject to the
same public access and disclosure requirements which are
applicable to records, reports, and information obtained
pursuant to section 308.
(n) The several district courts of the United States are invested
with jurisdiction for any actions, other than actions pursuant to
subsection (i)(1), arising under this section. In the case of Guam
and the Trust Territory of the Pacific Islands, such actions may be
brought in the district court of Guam, and in the case of the Virgin
Islands such actions may be brought in the district court of the Vir-
gin Islands In the case of American Samoa and the Trust Territory
of the Pacific Islands, such actions may be brought in the District
Court of the United States for the District of Hawaii and such
court shall have jurisdiction of such actions In the case of the
Canal Zone, such actions may be brought in the United States Dis-
r’.. ..-4 f,,,- +‘h,’ fli trict 1 thP Canal Zone
(o)(1) Nothing in this section shall affect or modify in any way
the obligations of any owner or operator of any vessel, or of any
owner or operator of any onshore facility or offshore facility to any
person or agency under any provision of law for damages to any
publicly owned or privately owned property resulting from a dis-
charge of any oil or hazardous substance or from the removal of
any such oil or hazardous substance.
(2) Nothing in this 8ection shall be construed as preempting
any State or political subdivision thereof from imposing any re-
quirement or liability with respect to the discharge of oil or hazard-
ous substance into any waters within such State, or with respect
to any removal activites related to such discharge.
(3) Nothing in this section shall be construed as affecting or
modifying any other existing authority of any Federal department,
agency, or instrumentality, relative to onshore or offshore facilities
under this Act or any other provision of law, or to affect any State
or local law not in conflict with this section.
[ Subsection (p) was repealed by sec. 2002(b)(4) of Public Law
101-380, 104 Stat. 507.]
(q) The President is authorized to establish, with repect to any
class or category of onshore or offshore facilities, a maximum limit
of liability under subsections (0(2) and (3) of this section of less
than $50,000,0000, but not less than, $8,000,000.
(r) Nothing in this section shall be construed to impose, or au-
thorize the imposition of any limitation on liability under the Outer
Continental Shelf Lands Act or the Deepwater Port Act of 1974.
(s) The Oil Spill Liability Trust Fund established under section
9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509) shall
be available to carry out subsections (b), (c), (d), (j), and (1) as those
subsections apply to discharges, and substantial threats of dis-
charges, of oil. Any amounts received by the United States under
this section shall be deposited in the Oil Spill Liability Trust Fund.
(33 USC 1321)
MARINE SANITATION DEVICES
SEc. 312 (a) For the purpose of this section, the term—
(1) “new vessel” includes every description of watercraft or
other artificial contrivance used, or capable of being used, as
a means of transportation on the navigable waters, the con-
struction of which is initiated after promulgation of standards
and regulations under this section;
(2) “existing vessel” includes every description of
watercraft or other artificial contrivance used, or capable of
being used, as a means of transportation on the navigable wa-
ters, the construction of which is initiated before promulgation
of standards and regulations under this section;
(3) “public vessel” means a vessel owned or bareboat char-
tered and operated by the United States, by a State or political
subdivision thereof, or by a foreign nation, except when such
vessel is engaged in commerce;
(4) “United States” includes the States, the District of Co-
lumbia, the Cornmonwp J i- , nr P,,n,-+- P..... 4L 17
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SECTION 311 OF THE CLEAN WATER ‘ACT, AS AMENDED BY ThE
OIL POLLUTION ACT OF 199O
SEP 06 9N
Oil and Hazardous Substance LiabilIty
Sec 311 (a) For the purpose of tflis secticn he term -
(1) ‘oi means oil of any kind orin any form. including, but not limited to. petrcleum. fuel cit
sludge oil refuse, and oil mixed with wastes other man dredged spo .
(2) discharge ’ includes. bul is not limited to, any spilling, leaking, pumping, pcur’no. emittina.
emptying or dumping, but excludes (A) discharges in compliance with a permit under section 402 ci
this Act. (6) discharges resulting from circumstances identified and reviewed and mace a part ci tne
public record with respect to a permit issued or moddied under section 402 of this Act, and sub ect to
a condition in such permit, and (C) Continuous or anticipated intermittent discharges from a point
source, identified in a permit or permit application under section 402 of this Act, which are caused by
events occurring within the scope of relevant operating or treatment systems;
(3) vessel’ means every description 01 watercratt or other art icial contrivance used, or
capable of being used, as a means of transportation on water other than a public vessel:
(4) ‘public vessel’ means a vessel owned or bareboat-chartered and operated by the United
States. or by a State or political subdivision thereof, or by a foreign nation, except wrien such vessel is
engaged in commerce;
(5) ‘United States’ means tfle Slates, the District ol Columbia. the Commonwealth of Puerto
Rico, he Commonwealth of the Northern Mariana Islands, Guam, Amencan Samoa. the Virgin lslancs.
and the T rust Territory of the Pacific Islands,
(6) ‘owner or operator rrieans (A) in the case of a vessel, any person owning, operating, or
chartering by demise, such vessel, and (B) in the case of an onshore facility, and an offshore facility,
any person owning or operating such onshore tacikty or offshore facility, and (C) in the case of any
abandoned offshore facility, the person who owned or operated such facility immediately prior to such
abandonment;
(7) ‘person’ includes an individual, firm, corporation, association, and a partnership;
(8) ‘remos’e or ‘removal’ refers to containment and removal of the oil or hazardous
substances from the water and shorelines or the taking of such other actions as may be necessary to
minimze or rrutig e damage to the public health or welfare, including, but not limited to, fish, sheltfist,
wildlife, and public and pn’ ate property, shorelines, and beaches;
(9) ‘contiguous zone’ means the entire zone established or to be established by the United
States under article 24 of the Convention on the Territonal Sea arid the Contiguous Zone;
Amendments made by the Oil Pollution Act of 1990 are shown as follows: language to be
omitted is enclosed in brackets and struck through: new language is pnnted in bold italic; and
language where there is no change is pnnted in roman.
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(10) onshore facility’ means any facility (including, but not limited to, motor vehicles and
rolling stock) of any kind located in, cr1. or under, any land within the United States other than
submerged land.
(11) ‘offshore facility’ means any facility of any kind located in, on, or under. any of me
navigable waters of the United States. and any facility of any kind which is subject to the jurisdiction Cf
the United States and is located in, on, or unoer any other waters, other than a vessel or a puclic
vessel.
(12) act of Go means an act occasioned by an unanticipated grave natural disaster:
(13) ‘barrel’ means 42 United States gallons at 60 degrees Fahrenheit,
(14) ‘hazardous substance’ means any substance designated pursuant to subsecticn (b)(2)
of this section:
(15) ‘inland oil barge’ means a non-self-propelled vessel carrying oil in bulk as cargo and
certificated to operate only in the inland waters of the United States, while operating in such waters,
(16) ‘inland waters of the United States’ means those waters of the United States lying inside
the baseline from which the territonal sea is measured and those waters outside such baseline which
are a part of the Gulf Intracoastal Waterway(.);
(17) ( Othorwi eJ otherwise subject to the jurisdiction of the United States’ means subject to
the jurisdiction of the United States by virtue of United States citizenship, United States vessel
documentation or numbering, or as provided for by international agreement to which the United States
is a parry (TI;
(18) ‘Area Committee’ means an Area Committee established under subsection (I );
(19) ‘Area Contingency Plan’ means an Area Contingency Plan prepared under
subsection (I);
(20) ‘Coast Guard District Response Group’ means a Coast Guard District Response
Group established under subsection (J);
(21) ‘Federal On-Scene Coordinator means a Federal On-Scene Coordinator designated
in the National Contingency Plan;
(22) NaOonal Contingency Plan’ means the National Contingency Plan prepared and
published under subsection (d);
(23) ‘Na ionaI Response Unit” means the National Response Unit established under
subsection (I); and
(24) ‘worst cas. discharge’ means —
(A) in the case of a veuel, a discharge in adverse weather conditions of its entire
cargo; and
(B) In th. case of an offshore facility or onshore facility, th. largest foreseeable
discharg. in adverse weather conditions.
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(b)(1) The Congress hereby declares that ills the pohcy of the United States that there shoula be no
discharges of oil or hazardous substances into or upon the navigable waters of the United States.
adjoining shorelines, or into or upon the waters of the contiguous zone, or in connection with activities
unde’ the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974, or whicr may affect
natural resources belonging to, appertaining to. or uncer the exclusive management authorrty of me
United States (including resources under the Magnuson Fishery Conservation and Manacernent c’t)
(2XA) The Administrator shall develop, promulgate. and revise as may be apcrccriate
regulations designating as hazardous substances, other than oil as defined in this section sucn
elements and compounds which, when discharged in any quantify into or upon the riavigacle waters
of the United States or adjoining shorelines or the waters of the contiguous zone or in ccnnecacn with
activities under the Outer Continental Shelf Lands Act or the Deepwater Port Act of 19Th or whith
may affect natural resources belonging to, appertainirtg to, or under the exclusive management
authority of the United States (including resources under the Magnuson Fishery Conservation and
Management Act), present a’t imminent and substantial danger to the public health or weif are
including, but not limited to, fish, shellfish, wildlife, shorelines, and beaches
(B) The Administrator shall within 18 months after the date of enactment of this paracrach,
conduct a study and report to the Congress on methods, mechanisms, and procedures to create
incentives to achieve a higher standard of care in all aspects of the management and movement of
hazardous substances on the part of owners, operators, or persons in charge of onshore facilities.
offshore lacilities. or vessels, The Administrator shall include in such study (1) limits of liability. (2)
liability for third party damages, (3) penalties and fees, (4) spill prevention plans, (5) current practices
in the insurance and banking industnes, and (6) whether the penalty enacted in subdlause (bb) of
clause (iii) of subparagraph (B) of subsection (b)(2) of section 311 of Public Law 92-500 should be
enacted.
(3) The discharge of oil or hazardous substances (i into or upon the navigable waters cf the
United States, adjoining shorelines, or into or upon the waters of the contiguous zone, or (ii) in
connection with activities under the Outer Continental Shelf Lands Act or the Deepwater Port Act cf
1974, or which may affect natural resources belonging to, appertaining to, or under the exclusive
management authority of the United States (including resources under the Magnuson Fishery
Conservation and Management Act), in such quantities as may be harmful as determined by the
President under paragraph (4) of this subsection, is prohibited, except (A) in the case of Such
discharges into the waters of the contiguous zone or which may affect natural resources belonging to,
appertaining to, or under the exclus e management authority of the United States (including
resources under the Magnuson Fishery Conservation and Management Act), where permitted uncer
the Protocol 011978 Relating to the International Convention for the Prevention of Pollution from Ships
1973. and (B) where permitted in quantities and at times and locations or under Such circumstances
or conditions as the President may, by regulation, determine not to be harmful. Any regulations
issued under this subsection stiail be consistent with maritime safety and with marine and navigation
laws and regulations arid applicable water quality standards.
(4) The President shall by regulation determine for the purposes of this section those
quantities of oil and any hazardous substances the discharge of which may be harrrituf to the public
health or welfare or the environment of the United States, including but not limited to, fish, shellfish.
wildlife, and public and private property, shorelines, and beaches.
(5) Any person in charge of a vessel or of art onshore facility or an offshore facility shall. as
soon as he has knowledge at arty discharge of oil or a hazardous substance from such vessel or
facility in violation of paragraph (3) of this subsection, immed atety notify the appropnate agency of the
United States Government of such discharge. The Federal agency shall Immediately notify the
appropriate Stale agency of any Stat. which Is, or may r.asonably be expected to be, aftect. by
the discharge of oil or a hazardous substance. Any such person (A) in charge of a vessel from
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which oil or a hazardous substance is discharged in violation Of paragraph (3)(i) of this subsection or
(B) in charge of a vessel from which oil or a hazardous substance is discharged in violation of
paragraph (3)(ii) of this subsection and who is otherwise subject to the jurisdiction of the Unitec States
at the time of the discharge. or (C) in charge of an onshore facdrty or an offshore facilrty wto fans to
notify immediately such agency of such discharge shall, upon conviction, be ( fin.ec rp -cxo
S1-U,CC’O. c - c irprtoned fc c rct rore than cite year, or botfil fined in accordance with title 18. United
States Code, or imprisoned for not more than 5 years, or both Notification received pursuart to
this paragraph [ or ‘n’orrct:Ofl obtain- so y to exp onctior. of Ł...tb notif.otticn ] shall net be usec
against any such natural person in any criminal case. except a prosecution for perjury or br civing a
false statement.
[ (6)(A) Any ownor :coratoc, or person in charge of any onshore facility or offehoc ‘zc .:rj
from which oil or a haiar out cubetance - is ditchargod in violation of paragraph (3) cf :ht-s -section
s itU be assessed a civil ponafty by tho Soocotary of the department in which the Coasi—Gu --s
operating of not more than S i 000 for each offense Any owner. operator. or person in cr.zr;c cf :ny
vessel from which oil or a hazardous substance is discharged in violation of paragraph (3)(i) of t n t
subsection, and any owner, eporotor or person in charge of a voccol from which oil or a haz: aous
substance is dischargod in v’ctation of paragraph ( 3)(ii) who is otherwise subject to the irz iccr c ’
the United States at tho time of-the Oitcflarge. shall be acs-eaed 3-criil ponalty by the Secre::rj of
department in which the C-east Guard is op-orating of not more than 55.000 for cacti offorico o
penalty shall be assessed ur,le€s the owner or operator charged shall have been given notice :nd
opportunity for a hearing on suchcharge Each violation is a separate offence. Any cecttc.v4aerafty
may be compromised by such Secretary In determining the amount of the penalty, or to crr.cur
agreed upon in comprornico, the apptopriatenecc of such penalty to the sias of tho busznea c-f to
owner or operator charged. the effect on the owner or operator’s ability to continua in busnea and
the gravity of the violation ct -all be considered by such Secretary The Secretary of to Troac...rj snaIl
withhold at the-request of such Secretary the clearance required by section 4197 of to Poviscd
Statutos of the United States. as amend-ed 446 U-S C 91), of any vessel the ownouor operator of
which is subject to tho foregoing penalty Clearance may be-granted in such cacao upcn to f :in; of
a bond or other surety satis actoiy to such Secretary.
( B) The Administrator, taking into account the gravity of the offence, and the standard et care
manifested by the ownor, operator, or person in charge, may commence a civil ainion against z ty
such person subject to the penalty under subparagraph A) of this paragraph to impose a pen-.t.ty
based on consideration of the cue of the business of the owner or operator, the-off oct on the-ability
the owner or operator to continue in business, the gravity of tho violation, and the rature. extent and
dogroo of success of any efforts made by the owner,-oporatoc, or person in charge to minimizo or
mitigate the e n ectsof such discharge. The amount of such- pena l ty shall net exceed Ł60,000. oxoept
that where the U uted States can chow that such-discharge was The rosult of willtuLnogkgence-or
willful misconduct within the privity and knowledge of the owner, operctor, or person in charge -such
penalty shall not exceed tThO,000. Each violation is a sepacae o#ense. Any action under this
subparagciph may be brought in the dsctnct court of the United States for the dictnct in which the
defendant-is located or resides or is-doing businoeL-and such court shall have junediction to - cososs
such penalty. Na action may be commenced under this clause where a penalty has been-assessed
under clause ( A) of this paragraph.
( C) In add ian to establish ing a-penalty for the discharge of a haaardeus substance—t a
Administrator may act to mitigate the damage-to the-public health or welfare caused by such
discharge. The east of such mitigation shall be deemed a cast incurred under subsection (c) of this
section for the removal of such substance by the Un4ed States Government.
) Any sects of removal incurred in connection with a discharge excluded by subsection
4$42)-(C) of this section shall be recoverable from the owner or operator of the source of the disehasse
in-an action-brought under section 309(b) of this Act .
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( Cwil pena I8g ‘: not t under o: : t s cno’ nd €ectc-r ‘c- :e
s acçe . I
(6) ADMINISTRATIVE PENALTIES...
(A) VIOLATIONS. .. Any owner, operator, or person in charge of any vessel, onshore
facility, or offshore facility
(t) from which oil or a hazardous substance is discharged in violation of
paragraph (3), or
(ii) who fails or refuses to comply with any regulation issued under subsection U)
to which that owner, operator, or person in charge is subject,
may be assessed a class I or class II civil penalty Ly the Secretary of the department in which the
Coast Guard is operating or the Administrator.
(B) CLASSES OF PENALTIES. —
(I) CLASS I. — The amount of a class I civil penally under subparagraph (A) may
not exceed $10,000 per violation, except that the maximum amount of any class I
civil penalty under this subparagraph shall not exceed $25,000. Before assessing
a civil penalty under this clause, the Administrator or Secretary, as the case may
be, shall give to the person to be assessed such penalty written notice of the
Administrators or Secretary’s proposal to assess the penalty and the opportunity
to request, withIn 30 days of the date the notice is received by such person, a
hearing on the proposed penalty. Such hearing shall not be subject to section
554 or 556 of title 5, United Stales Code, but shall provide a reasonable
opportunity to be heard and to present evidence.
(ii) CLASS II. — The amount of a class II civil penalty under subparagraph (A) may
not exceed $10,000 per day for each day during which the violation continues;
except that the maximum amount of any class II civil penalty under this
subparagraph shall not exceed $125,000. Except as otherwise provided in this
subsection, a class II cM! penalty shall be assessed and collected in the same
manner, and subject to the ume provisions, as in the case of civil penalties
assessed and collected after notice and opportunity for a hearing on the record in
accordance with section 55.4 of tl’Je 5, United Slates Code. The Administrator and
Sřcretary may Issue rules for discover 5 ’ procedure. for hearings under this
paragraph.
(C) RIGHTS OF INTERESTED PERSONS. -
(I) PUBLIC NOTICE. — Before issuing an order assessing a class ii civil penalty
under this paragraph the Admlnistzator or Secretary, as the case may be, shall
provide public notice of end reasonable opportunity to comment on the proposed
issuance of such aider.
(II) PRESENTATION OF EIIDENCL - Any person who comments on a proposed
assessment of. class II cMl penalty under this paragraph shall be given notice of
any hearing held under this paragraph and of th. order assessing such penalty. In
airy hearing held ursd.r this paragraph, such pusan shall have a reasonable
opportunity to be heard and to present evidence.
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(iii) RIGHTS OF INTERESTED PERSONS TO A HE.A RING. — If no hearing is held
under subparagraph (B) before issuance of an order assessing a class II civil
penalty under this paragraph, any person who commented on the proposed
assessment may petition, within 30 days after the issuance of such order. the
Administrator or Secretary, as the case may be, to set aside such order anř to
provide a hearing on the penalty. If the evidence presented by the petitioner in
support of the petition is material and was not considered in the issuance of the
order, the Administrator or Secretary shall immediately set aside such order and
provide a hearing in accordance with subparagraph (B)(ii). lithe Administrator or
Secretary denies a heating under this clause, the Administrator or Secretary shall
provide to the petitioner, and publish in the Federal Register, notice of and the
reasons for such denial.
(0) FINAL.J7Y OF ORDER. .- An order assessing a class I I civil penalty under this
paragraph shall become final 30 days after its issuance unless petition for judicial review is filed
under subparagraph (G) or a hearing is requested under subparagraph (C)(iii). ii such a hearing
is denied, such order shall become final 30 days after such denial.
(E) EFFECT OF ORDER. — Action taken by the Administrator or Secretary, as the case may
be, under this paragraph shall not affect or limit the Administrator’s or Secretary’s authority to
enforce any provision of this Act; except that any violation —
(I) with respect to which the Administrator or Secretary has commenced and is
diligently prosecuting an action to assess a class II civil penalty under this
paragraph, or
(ii) for which the Administrator or Secretary has issued a final order assessing a
class II civil penalty not subject to further judicial review and the violator has paid
a penalty assessed under this paragraph,
shall not be the subject of a civil penalty action under section 309(d), 309(g), or 505 of this Act or
under paragraph (7).
(F) EFFECT OF ACTION ON COMPLIANCE. No action by the Administrator or Secretary
under this paragraph shall affect any person’s obligation to comply with any section of this Act.
(G) JUDICIAL REVIEW. — Any person against whom a cr41 penalty is assessed under this
paragraph or who commented on the proposed assessment of such penalty in accordance with
subparagraph (C) may obtain review of such assessment —
(1) In th. case of assessment of a class I civil penalty, in the United States District
Court for the District of Columbia or in the district in which the violation is alleged
to hav, occurred, or
(Ii) In th. case of assessment of a class It civil penalty, In United States Court of
Appeals for the District of Columbia Circuit or for any other circuit In which such
person resides or transects business,
by tiling a notice of appeal In such court within the 30-day period beginning on the date the c lv ii
penalty order Is Issued and by simultaneously sending a copy of such notice by certified mail to
the Administrator or Secretary, as th. case may be, and the Attorney General. Th. Administrator
or Secretary shall promptly file In such court a certified copy of the record on which th. order
was IssUed. Such court shall not set aside or remand such order unless there Is not substantial
evidence In th. record, taken as a Whole, to support the finding of a violation or unless the
Administrator’s or Secrelarys assessment of the penalty constitutes an abuse of discretion and
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shall not impose additional civIl penalties for the same vvol 1ion unless the Adm:nislrators or
Secretary ’s assessment of the penalty constitutes an abuse of discretion.
(H) COLLECTION. — if any person fails to pay an assessment of a civil penalty -•
(i) after the assessment has become final. at
(ii) after a court in an action brought wider subparagraph (G) has entered a final
judgment in favor of the Administrator or Secretary, as the case may be,
the Administrator or Secretary shall request the Attorney General to bring a civil action in an
appropriate district court to recover the amount assessed (plus interest at currently prevailing
rates from the date of the final order or the date of the final judgment, as the case may be). in
such an action, the validity, amount, and appropriateness of such penalty shall not be subject to
review. Any person who fails to pay on a timely basis the amount of an assessment of a civil
penalty as described in the first sentence of this subparagraph shall be required to pay, in
addition to such amount and interest, attorneys fees and costs for collection proceedings and a
quarterly nonpayment penalty for each quarter during which such rail ure to pay persists. Such
nonpayment penalty shall be in an amount equal to 20 percent of the aggregate amount of such
person’s penalties and nonpayment penalties which are unpaid as of the beginning of such
quarter.
(I) SUBPOENAS. — The Administrator or Secretary, as the case may be, may issue
subpoenas for the attendance and testimony of witnesses and the production of relevant papers,
books, or documents in connection with heanngs under this paragraph. In case of contumacy or
refusal to obey a subpoena issued pursuant to this subparagraph and served upon any person,
the district court of the United States for any district in which such person is found, resides, or
transects business, upon application by the Unrted States and after notice to such person, shalt
have jurisdiction to issue an order requiring such person to appear and give testimony before the
administrative law judge or to appear end produce documents before the administrative law
judge, or both, and any failure to obey such order c/the court may be punished by such court as
a contempt thereof.
(7) CIVIL PENALTY ACTION. -
(A) DISCHARGE, GENERALLY. - Any person who Is the owner, operator, or person in
charge of-any vessel, onshore facility, or offshore facility from which oil or a hazardous substance
is discharged in violatIon of paragraph (3), shall be subject to a civil penalty in an amount up to
$25,000 per day of violation or an amount up to $1,000 per barrel of oil or unit of reportable
quantity of hazardous substances discharged.
(B) FAILURE TO REMOVE OR COMPLY. — Any person described in subparagraph (A) who,
without sufficient cause —
(I) falls to properly carry out removal of the discharge under an order of the
President pursuant to subsection (c); or
(ii) falls to comply with an order pursuant to subsection (.)(1)(8);
shall be subject to a cMl penalty In an amount up to $25,000 per day of violation or an amount
up to 3 tImes th. costs Incurred by the Oil Spill Liability Trust Fund as a result of such failure.
(C) FAILURE To COMPLY WiTH REGULATION. - My person who falls or refuses 10
comply with any regulation issued under subsection U) shall be subject to a civil penalty in en
amount up to $25,000 per day of violation.
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(0) GROSS NEGLIGENCE. — In any case in which a violation of paragraph (3) was the
result of gross negligence or willful misconduát of a person described in subparagraph (4), the
person shall be subject to a civil penalty of not less than $100,000, and not more than S3.000 per
barrel of oil or unrt of reportable quanttty of hazardous substance discharged.
(E) JURISDICTION. - - An action to impose a civil penalty under this paragraph may be
brought in the district court of the United States for the district in which the defendant is located.
resides, or is doing business, and such court shall have jurisdiction to assess such penalty.
(F) UMITATI ON. .. A person is not liable (or a civil penalty under this paragraph Icr a
discharge if the person has been assessed a civil penalty under paragraph (6) for the discharge.
(8) DETERMINATION OF AMOUNT. - . In determining the amount of a civil penalty under
paragraphs (6) and (7), the Administrator, Secretary, or the court, as the case may be, shall
consider the seriousness of the violation or violations, the economic benefit to the violator, if any,
resulting from the violation, the degree of culpability involved, any other penalty for the same
incident, any histofy of prior violations, the nature, extent, and degree of success of any efforts at’
the violator to minimize or mitigate the effects of the discharge, the economic impact of the
penalty on the violator, and any other matters as justice may requite.
(9) MITIGATION OF DAMAGE. — In addition to establishing a penalty for the discharge of
oil or a hazardous substance, the Administrator or the Secretary of the department in which the
Coast Guard is operating may act to mitigate the damage to the public health or welfare caused
by such discharge. The cost of such mrtigetson shall be deemed a cost incurred under
subsection (c) of this section for the removal of such substance by the United States
Government.
(10) RECOVERY OF REMOVAL COSTS. — Any costs of removal incurred in connection with
a discharge excluded by subsection (a)(2)(C) of this section shall be recoverable from the owner
or operator of the source of the discharge in an action brought under section 309(b) of tins Act.
(11) LIMITATION. — Civil penalties shall not be assessed under both this section and
section 309 (or the same discharge.
( (c)(1) Whenever any ctl or a ha rdous subs rioe is d hargeG. or there is a sub arn3-i ?rar c-i
suoh dischar9G. u a or upon the navigable wters uf the Urutw states. a fQ fl1fl9 are r.es, or r:c c
upon the waters of the contiguous aon., - or in oonnection wth a tr ii s undar the Otj,e-r c :cJ
Shell Lands Act or the C’eepwaler Port A of 1 71 , or which may affect natural resources lcr -
to. appertaining to. or undtr the aii;lusr ie rnanagemers authority of the Unrto States (Incu g
resources under the Magnuson Fishery Conservation and Management Act) the Presidam ‘s
authoriaed to act to remove or arrange Io n the removal of such od or su lance at any time. ur--Q
determines such removal will be done property by the owner or operator of the vessel. Onshore ‘ ac’ y.
or offshore facility from which the discharge occurs.
( 2) V’/itflen co ty day - -—— •b. k jI_r t— - . -
publish a N iorIaI orrnn ericy Plan for removal f oil and haawdous substances. pursuant o ‘his
subsection. 5u h National Corningericy Ptari shall provide far gffic n1, ;oQcthnated, and efiectve
action to mwumiaa damage frorri oil arid haaardeus substance discharges. irickiding sontjjnmer&
dispersal, and removal of tl and haaarbous iub rices. and shall mchide, but not be ‘ m’ed G
- - - of duties arid responsibilities among r--’--- ’ — -— ---i
Si ,,ne. ,np.i, ji,n,, j .,
- p
( EL) identification
r
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.9.
( C) e a ltehment or a€ grctior oi a s: ke fo ce :‘ pergor.neJ who-
r ainod. prepared, and availablo :o pro-fi 9 ‘aCeUarI e’vica G car o ho Plan. ir c d: : o
eamont at maior por . o csleriir;d y :ho P egide-r. t cr;ency :ask ‘cr:;
pe- or ’eI, acequate p4 rc . rdcua Ł aar ca 2G& 1or ;:r: ot . cc en: a- -c - a:ara -c
oil nd ha2ardoLs . aanca pollution prevention and ricvi pla
c Si .J J9’flaflCG 3fld ‘C C& deaagned :c vg re ‘eg: pog ’e -ct-ca
c oil anc ar:c- ubs ar cac and irrrninor ; :hrea:a ot a ;es
acorcorota ta e and Ferio J 3:9ncI9E.
- a national center :o provide-c rdna:ionad dL1eC 1C ’1 ‘C oc g r
carrying out ttie Plan.
( F proCodurea and tec niguea to be er ployed in der ying, ccn:airnng, pG t.ro anc
r;rrcv ’; c-if and aub anCea ,
( G) a gchdule. proparad in c oparcoon with the Statea. identifying (i) thaoerta and
chemicala. if any, that may be used in carrying out the Plan, (ii) thg wrer ri which uc oeta -:g
and chemica c may be uaed. 3nd - ( vi) the quanzitie of €uth d epecaan or chemical whc can be aed
in guch watere. which cheduto chall provide in th ca -e of any d par ant, chemical. or nc:or
not pecthcaHy identified in tuch chedu1g that the Preaident, or hi detegate. may, on
ba . identify the-ci1Ep0r ant and other chemicat which may be -u ed. the water in w c : y -ay
be u ad,-and the quantitlea which can be uaed safety in €uch watort, 3nd
( H)- a s y terrr whereby the-State-or $tate aft c1eb by a d-i charge of o om
substance may ac where necessary to remove such discharge and such State or S es oa
reimbursed from ttto fund established undergubgection (k) of this sec on for thřroasoratic z sta
incurrQd in such removai.
The President may, from time to time, as he deems advisable revis i or otherwise ame
National Contingency Plan. After pub cation of the National Contingency Plan, the removal c il and
haiardous substances-and actions to minim—damage from oil and tta. ardous substance c tonarges
all 1c the c)reateEl extent possible, be in accordance with the N cnat -Contingancv Pla
(c) FEDERAL REMOVAL ALJTHORTh’. -
(1) GENERAL REMOVAL REQUIREMENT. — (A) The President shall, in accordance with the
National Contingency Plan and any appropriate Area Contingency Plan, ensure effective and
immediate removal of a discharge, and mitigation or prevention of a substantial threat of a
discharge, of oil or a hazardous substance —
(I) Into or on the navigable waters;
(11) on the adjoining shorelines to th. navigable water,;
(ill) into or on the waters of the exclusive conomlc zone; or
( Iv) that may affect natural resources belonging to, appertalnlng to, or under the
exclusive management authofftl of the United States.
(B) In carrying out this paragraph, the President may -
(1) remove or arrange for th. removal of a discharge, and mitigate or prevent a
substantial thrat of a discharge, at any tIme;
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- 10-
(ii) direct or monitor all Federal, State, and private actions to remove a discharge,
and
(iii) remove and, if necessary, destroy a vessel discharging, or threatening to
discharge, by whatever means are available.
(2) DISCHARGE POSING SUBSTANTIAL THREAT TO PUBLIC HEALTH CR WELFARE. -
(A) If a discharge, or a substantial threat of a discharge, c i oil or a hazardous substance from a
vessel, offshore facility, or onshore facility is of such a size or character as to be a substantial
threat to the public health or welfare of the United States (including but not limited to fish,
shellfish, wildlife, other natural resources, and the public and private beaches and shorelines of
the United States), the President shall direct all Federal, State, and private actions to remove the
discharge or to mitigate or prevent the threat of the discharge.
(B) In carrying out this paragraph, the President may, without regard to any other
provision of law governing contracting procedures or employment of personnel by the Federal
Government —
(1) remove or arrange for the removal of the discharge, or mitigate or prevent the
substantial threat of the discharge; and
(ii) remove and, if necessary, destroy a vessel discharging, or threatening to
discharge, by whatever means ate available.
(3) ACTIONS IN ACCORDANCE WITH NATIONAL CONTINGENCY PLAN. - (A) Each
Federal agency, State, owner or operator, or other person participating in efforts under this
subsection shall act in accordance with the National Contingency Plan or as directed by the
President.
(B) An owner or operator participating in efforts under this subsection shall act in
accordance with the National Contingency Plan end the applicable response plan required under
subsection C) or as directed by the President.
(4) EXEMPTION FROM LiABILITY. — (A) A person is not liable for removal costs or
damages which result (mm actions taken or omitted to be taken in the course of rendering care,
assistance, or advice consistent with the National Contingency Plan or as otherwise directed by
the President
(B) Subparagraph (A) does not apply —
(I) to a ruporslbI. party;
(ii) to a response under the Comprehensive Environmental Response,
Comp.nsation, and LiabilIty Act of 1980 (42 U.S.C. 9601 at seq.);
(Ill) with respect to personal Injwy or wrongful death; or
(lv) If the person It grossly negligent or engages In willful misconduct
(C) A responsibi. patty I. liable for any removal costs and damages that another person is
relieved of under subparagraph (A).
(5) OBLiGATION mD UABIUTr OF OWNER OR OPERATOR NOT AFFECTED. - Nothing in
this subsection affects —
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- Ii -
(A) the obligation of an owner or operator to respond immediately to a oischarge. or the
threat of a discharge, of oil; or
(8) the liability of a responsible pany under the 0 :1 Pollution Act of 1990.
(6) RESPONSIBLE PARTY DEFINED. For purposes of this subsection, the term
respcns:ble party has the meaning given that term under section 1001 of the 0:! Pollution Act of
1990.
Th ’- v c p rnpr :ns in or L C s v i wa of c
rztrrs3 p t a pollution iar io hspL IiG a J or w t r9 i tr UrGC - Ps • _ c--o,
u -p Limfl o;p, f . s lh&h. pnC w’l hf 3rd pu iic and prrv shcrslins-s
5GPu -G p1 a ai : g . c c ar t .mmn r.t Ř PcgG. ol 1aro9-ouontfl s& z’ I. o’ a
zarc ous ubs ar ci fro’n a va gst Unn d ss m y (A cir :a and tht-s o a! L LG --
prvata pf pr t gc g t s srrpvaI or sliri: pri cit uch thraat. -ard B) gurnrnar y - —c ’ -:
rp p r;, z pg rpy sucr vsssal , wPt9v r flQPflS 3r9 avpilpbt ‘, ithct gard to rc &c ci
w gcivsrning tho smploymsfll of p9r Onfl61 cc nd p6r $turP-of appr:pnalsd funda. Any x;6 ga
inc irr undsi this subj c ’on or undac 1 o Ir .tsrJentIOn on ho High Saas. Ac. (cir : ‘ s ccrvpr:ip-
do)ir 6c in ac ion 243) zheoof) s a# - G a-Gos incuř d y tha Unrt9d OV6 n6r t ‘or -s
purpo of gub ct:or ) c ’ tvt ct ’o’-i in -e smov l c i cit or hP2a .rc cu5 tPrCP
(d) NATIONAL CONTINGENCY PLAN. -
(1) PREPARATiON BY PRESIDENT. — The President shall prepare and publish a National
Contingency Plan for removal of oil and hazardous substances pursuant to this section.
(2) CONTENTS. — The National Contingency Plan shall provide for efficient, coordinated.
and effective action to minimize damage from oil and hazardous substance discharges, including
containment, dispersal, and removal of oil and hazardous substances, and shall include, but not
be limited to, the following:
(A) Assignment of duties and responsibilities among Federal departments and agencies
in coordination with State and local agencies and port authorities including, but not limited to,
water pollution control and conservation and trusteeship of natural resources (including
conservation of fish and wildlife).
(B) Identification, procurement, maintenance, and storage of equipment and supplies.
(C) Establishment or designation of Coast Guard strike teams, consisting of —
(I) personnel who shall be trained, prepared, and available to provide necessary
aeMces to carry out the National Contingency Plan;
(II) adequate oil and hazardous substance pollution control equipment and
material; and
(iii) a detailed oil and hazardous substance pollution and prevention plan,
lnc?uding measures to protect fisheries and wildlife.
(0) A system of surveillance and notice designed to sate guard against as well as ensure
earliest possible notice of dIscharges of oil and hazardous substances and imminent threats of
such discharges to the appropriate State and Federal agencies.
(E) Establishment of a national center to provide coordination and direction for
operations in carrying out the Plan.
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12
(F) Procedures and techniques to be employed in identifying, containing, dispersing, and -
removing oil and hazardous substances.
(C) A schedule, prepared in cooperation with the States, identifying
(I) dispersants, other chemicals, and other spill mitigating devices and substances.
if any, that may be used in carrying out the Plan,
(ii) the waters in which such dispersants, other chemicals, and other spill
mitigating devices and substances may be used, and
(iii) the quantities of such dispersant, other chemicals, or other spill m il;gatinig
device or substance which can be used safely in such waters,
which schedule shall provide in the case of any dispersant, chemical, spill mitigating device or
substance, or waters not specifically identified in such schedule that the President, or his
delegate, may, on a case-by-case basis, identity the dispersants, other chemicals, and other spill
mitigating devices and substances which may be used, the waters in which they may be used,
and the quantities which can be used safely in such waters.
(H) A system whereby the State or States affected by a discharge of oil or hazardous
substance may act where necessary to remove such discharge and such State or States may be
reimbursed in accordance with the Oil Pollution Act of 1990, in the case of any discharge of oil
from a vessel or facility, for the reasonable costs incurred for that removal, from the Oil Spill
Liability Trust Fund.
(I) Establishment of criteria and procedures to ensure immediate and effective Federal
identification of, and response to, a discharge, or the threat of a discharge, that results in a
substantial threat to the public health or welfare of the United States, as required under
subsection (c)(2).
(J) Establishment of procedures arid standards for removing a worst case discharge of
oil, and for mitigating or preventing a substantial threat of such a discharge.
(K) Designation of the Federal official who shall be the Federal On-Scene Coordinator for
each area for which an Area Contingency Plan is required to be prepared under subsection (j).
(L) Establishment of procedures for the coordination of activities of —
(i Coast Guard strike teams established under subparagraph (C);
(II) Federal On-Scene Coordinators designated under subparagraph (K);
(ill) District Response Groups established under subsection (J); and
(iv) Area Committees established under subsectIon (1).
(M) A fish and wildlife response plan, developed In consultation with the United States
Fish and Wildlife Service, the National Oceanic and Atmospheric Administration, and other
interested parties (including State fish and wildlife conservation officials), for the Immediate and
effective protection, rescue, and rehabilitation of, and th. minimization of risk of damage to, fish
and wildlife resources and their habitat that are harmed or that may b j.opardlz.d by a
discharge.
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- 13.
(3) REVISIONS AND AMENDMENTS. The President may, from time to time, as the
President deems advisable, revise or otherwise amend the National Contingency Plan. 2
(4) ACTIONS IN ACCORDANCE WITH NATIONAL CONTiNGENCY PLAN. - After
publication of the National Contingency Plan, the removal of oil and hazardous substances and
actions to minimize damage from oil and hazardous substance discharges shall, to the greatest
er?ent possible, be in accordance with the National Contingency Plan.
Ct,.n .,r , ..r .
LI J .J __. ’ ..u . ..— ,-.— ‘ -.7 ,— - ‘,.. ‘ - - , - .- ‘ - . - — - ‘ - - . , -.
ce::r ’tr :r aj e is. n tent a-nd gubEt3-r - l trireat to tt e pub’ic e t ’ :r wofla c’ :-c
States r-c uding, but not ?imitac to.- fi ti. Vf h. and wtldlf and pu ’ic and crivato rc e’r ,
ahcre ’nes. nci bc 9s within Tho UnitGd St GC. bo au o ot an G cr thre:t9n d G - :‘ :i
o aa-c ous sub a-nce intO pr uoor the navica 1e waters of the ‘ tned tates ‘rpm an. Y -
offthore acilny. the President ay require the United States attorney c i the district irt w ici :-e
x jrsto secure such ehe as rr av be necessar ’ i-c abate such : trea:. ad ‘ e dtst tc s -
Ur .it& Łt t Ł “ LI r’ je iuriadi ion to era auth ral e1 as tha-ou l+c :n:arssz arid ;r a. it .es ‘ :-e
(e) CiViL ENFORCEMENT. -
(1) ORDERS PROTECTING PUBLIC HEALTH. — Sri addition to any action taken by a State
or local government, when the President determines that there may be an imminent and
substantial threat to the public health or welfare of the United States, including fish, shellfish, and
wildlife, public and private property, shorelines, beaches, habitat, and other living and nonhvintg
natural resources under the Jurisdic t ion or control of the United Slates, because of an actual or
threatened discharge of oil or a hazardous substance from a vessel or facility in viola tiori of
subsection (b), the President may —
(A) require the Attorney General to secure any relief from any person, including the
owner or operator of the vessel or facility, as may be necessary to abate such endangerment: or
(B) after notice to the affected State,- take any other action under this section, including
issuing administrative orders, that may be necessary to protect the public health end welfare.
(2) JURISDICTION OF DISTRICT COURTS. — The district courts of the United States shall
have jurisdiction to grant any relief under this subsection that the pu l!c interest and the equities
of the case may require.
(f)(1) Except where an owner or operator can prove that a discharge was caused solefy by (A) art act
of God, (B) an act of war, (C) neghgenice on the pan of the United States Government. or (D) an act
or omission of a third party without regard to whether any such act or omission was or was not
negligent, or any combination of the foregoing clauses, such owner or operator of any vessel from
which oil or a hazardous substance is discharged in violation of subsection (b)(3) of this section snail
notwithstanding any other provision of law, be liable to the United States Government for the actual
costs incurred under subsection (C) for the removal of such oil or substance by the United States
Government in an amount not to exceed, in the case of an inland oil barge $125 per gross ton of sucn
barge, or $125,000, whichever is greater, and in the case of any other vessel, $150 per gross ton of
such vessel (or, for a vessel carrying oil or hazardous substances as cargo, $250,000), whichever is
greater, except that where the United States can show that such discharge was the result of willful
negligence or willful misconduct within the pnvtty and knowledge of the owner, such owner or operator
shall be liable to the United States Government for the full amount of such costs. Such costs shafl
constitute a marrnrne lien on such vessel which may be recovered in an action in rem in the dtsinct
2 Section 4201(c) of the Oil Pollution Act of 1990 requires revision of the NCP by August 18, 1991
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14
court of the Ur ted States for any district within whicn any vessel may be found The Unitec States
may also bring an action against the owner or operator of such vessel in any court of CompEtent
EtJrISdICtiOn to recover such costs
(2 Except where an owner or operator of an onshore fac;lrty can prove that a disc arce was
caused soieiv zy (A) an act of God. (B) an act of war, (C) negligence on the part of the Unitec States
Government r ID) an act or omission of a third party without regard to whether any such act or
omission was or was not negligent, or any combination of the foregoing clauses, sucn owner cm
operator of any Such facility from which oil or a hazardous substance is cischarged in viciaticn cI
subsection (b)j3) ot this section shall be liable to the United States Government for the actual costs
incurred under subsection (C) for the removal of such oil or substance by the United States
Governrrent in an amount not to exceed $50,000,003, except that where the United States can St ’.CN
that Such discharge was the result of willful negligence or willful misconduct within the privitv arc
knowledge ‘ f the owner, such owner or operator shalt be liable to the United States Government for
the full amount of such costs. The United States may bring an action against the owner cr ccera:or cf
such facility in any court of competent jurisdiction to recover such costs. The Administrator is
authorized by regulation, after consultation with the Secretary of Commerce and the Small Business
Administration, to establish reasonable and equitable classifications, of those onshore facilities having
a total fixed storage capacity of 1,000 barrels or less which he determines because of size type and
location do not present a substantial risk of the discharge of oil or hazardous substance in violation of
subsection (b)(3) of this section. and apply with respect to such classifications differing limits of liability
which may be less than the amount contained in this paragraph. -
(3) Except where an owner or operator of an onshore facility can provide that a discharae
was caused solely by (A) an act of God, (B) an act of war, (C) negligence on the part of the United
States Government, or (D) an act or omission of a third parry without regard to whether any such act
or omission was or was not negligent, or any combination of the foregoing clauses, such owner or
operator of any such facility from which oil or a hazardous substance is discharged in violation of
subsection (b)(3) of this section shall, notwithstanding any other provision of law, be liable to the
United States Government for the actual costs incurred under subsection (c) for the removal of such
oil or substance by the United States Government in an amount not to exceed $50,000,000, except
that where the United States can show that Such discharge was the result of willful negligence or
willful misconduct within the prrvity and knowledge of the owner, such owner or operator shall be
liable to the United States Government for the full amount of such costs. The United States may bring
an action against the owner or operator of such facility in any court of competent jurisdiction to
recover such costs.
(4) The costs of removal of oil or a hazardous substance for which the owner or operator of a
vessel or onshore or offshore facility is liable under subsection (1) of this section shall include any
costs or expense incurred by the Federal Government or any State government in the restoration or
replacement of natural resources damaged or destroyed as a result of a discharge of oil or a
hazardous substance in violation of subsection (b) of this section.
(5) The President, or the authorized representatrve of any State, shall act on behalf of the
public as trustee of the natural resources to recover for the costs of replacing or restoring such
resources Sums recovered shall be used to restore, rehabilitate, or acquire the equrvaient of such
natura’ resources by the appropriate agencies of the Federal Government, or the State government
(g) Where the owner or operator of a vessel (other than art inland oil barge) carrying oil or hazardous
substances as cargo or an onshore or offshore facility which handles or stores oil or hazardous
substances in bulk, from which oil or a hazardous substance is discharged tn volat’ion of subsection
In the case of an incident for which liability is established under sectiOn 1002 of the Oil Pollution
Act of 1990, subsection (1) shall not apply.
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15
(b) of this section, alleges that such discharge was caused solely by an act or omission of a :r ro
parry such owner or operator shall pay to the United States Government tne actual costs incured
under sutsection (C) for removal of such iI Cr Substance and snail be entitled by suOrCc2tiC : au
rights of the United States Government to recover such costs from such third party uncer tn:s
subsection In any case where an owner or operator of a vessel, of an cnsnore I aci tv cr of a
offsriore facility from which oil or a hazardous substance is discharged in violation of sucsectcr dii )
of tns section proves that such discharge ci oil or hazardous substance was caused sciefv by an act
or omission of a thirc party. or was causea solely by such an act or omission in combinaticn ‘.:-‘ n
act of God. an act of war. or negligence on me part of the Unitea States Government Such mirc oart
shall, not withstanding any other provision of law, be liable to the United States Government 4 cr :rte
actu costs incurred under subsection (c) for removal of such oil or substance by the Unitea States
Government, except where such Ihird party can prove that such discharge was causea scie!y Ov Af
an act of God, (B) an act of war, (C) negligence on the part of the United States Government cr01
an act or omission of anc’ther parry without regard to whether such an act or omission was or #.as not
neglicent. or any comOinat lon of the foregoing clauses If such third party was the owner or ccerator
of a vessel which caused the discharge of oil or a hazardous substance in violation of subsecticn
(b)(3) of this section. the liability of such third parry under this subsection shall not exceed in tr.e case
of an inland oil barge $125 per gross ton of such barge. $125,000. whichever is greater. and in the
case of any other vessel. $150 per gross ton cf such vessel (or. for a vessel carrying oil or hazarccus
substances as cargo, $250000), whichever is greater. In any other case the liability of such third
party si-all not exceed the limitation which would have been applicable to the owner or ooeratcr of the
vessel or the onshore or offshore facility from which the discharge actually occurred it sucn owr.e(or
operator were liable. It the United States can show that the discharge of oil or a hazardous substance
in violation of subsection (b)(3) of this section was the result of wul ul negligence or willful misconauct
within the priviry and knowledge of such third party, such third party shall be liable to the Unitec
States Government for the full amount of such removal costs. The United States may bnng an action
against the third parry in any court of competent jurisdiction to recover such removal costs
(h) The liabilities established by this section shall ri no way affect any rights which (1) the owner or
operator of a vessel or of an onshore I actlity or an offshore facility may have against any third party
whose acts may in any way have caused or contnbuted to such discharge, or (2) The 5 United States
Government may have against any third party whose actions may in any way have caused or
contributed to the discharge of oil or hazardous substance. 6
(i)f4 4) In any case where an owner or operator of a vessel or an onshore facility or an offshore facility
from which oil or a hazardous substance is discharged in violation of subsection (b)(3) of this section
acts to remove such oil or substance in accorcance with regulations promulgated pursuant to this
section, such owner or operator shall be entitled to recover the reasonable costs incurred in Such
removal upon establishing, in a suit which may be brought against ti-me United States Government in
the United States Claims Court, that such discharge was caused solely by (A) an act of God, (B) sri
act of war, (C) negligence on the part of the United States Government, or (D) an act or omission of a
third party without regard to whether such act or omission was or was not negligent, or of any
combination of the foregoing clauses. 7
‘In the case of an incident for which liability is established under section 1002 of the Oil Pellution
Act 011990, subsection (g) shall not apply.
So in law. Probably should not be capitaiized.
6 In the case of an incident for which liability is established under section 1002 of the Oil Pollution
Act of 1990, subsection (It) shall not apply.
ln the case of an incident for which liability is established under section 1002 of the Oil Pollution
Act of 1990, subsection (i) shall not apply.
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16
f t -is ec ;n c-all r Q;aa;” cs&e Ł ::
: c. :-e O&z -r Ozr.zrGr:al Lar c& Az , the Cee;w:sr cr . :: c’ T - J
c - = uc: :‘ e S :ca C-i. C:._
: s ac::c- -:9 ic s .a—:
t4fl (j) NATIONAL RESPONSE SYSTEM.
(4. - j (1) IN GENERAL -. Consistent wflh the National Coritincency Plan requirec by
subsection (c)(21 of this section. as soon as practicable after the effective date of Wiis secticn.
from time to time tnereafter. the President Shall issue regulations consistent with marrtime satev arid
with marine and navigation laws (A) establishing methods and procecures for removal ct aisc arcec
oil and hazardous substances. (B) estabhsrling criteria for the development and imptemenlaticn of
local and regional oil and hazarcous substance removal contingency plans. (C) establisning
prccedures methods and eauipmer.- and other requirements for ecutornent to prever.t csc a;es of
oil anc hazarcous substances from vessels and from onshore facilities and offshore fac iities. ana to
contain such discharges. arid (D) governing the inspection of vessels carrying cargoes of cil anc
hazardous substances and the inspection of Such cargoes in order to reduce the hkelihcod of
discharges of oil from vessels in violation of this section
r A .i y . . ....‘. ._ .. r, .. ..... .f — 4... .• . —• L.__ -
other por io sub sct to any re-gutalion i€ iiuoc :indec paragraph (1) of r 1 is Ł .ib&e-ctiOn c .i(S Cr.
rotu&ec -to comp1y with thc-provis onc pf ny uGh regulations. &hall bo-hable to iviI e -:t c —at
r oro than $ . .OOD or each u-ch violation. Th s-paragrapfl-shaU not apply to any owr r cc cce :cr of
any ve el from which oil or a hazardous substance is d sttharged in violation of p -ar g::r 3) - ; ct
subsection (b) unloss WG-h- owner operator. or person in cP.r e iso:herwise Lubject :he
ur.€dtCtiOfl of hG United States aCh violation Shall be -a separate OffOrlSO th6 Pre€.d -ecU v
ascoss and compromise such penal ly NO pona y thall be—a&so6wd intd thO OwPi8c, O&Gr Or f
cxhor person thargsd ŁhaLhave baon-gi ien ‘ otioe and an oppofturct’J ‘or a hearing on s . c ;:
In cotormining tho amount of tho penalty or the amount agreed upon in c.omprom4 50 :‘o gr .v y cf
me viol3lIOR-3nd the bomon -a-ted gooii faith of the owner, operator or other person c ar od r.
attemotino to achieve rapid compliance- 3ttor riotrfic.ation-of a violation, all bo considered by n
Proc
(2) NATiONAL RESPONSE UNIT. — The Secretary of the department in which the Coast
Guard is operating shall establish a National Response Unit at Elizabeth City, North Carolina. 9
The Secretary, acting through the National Response Unit —
(A) shall corn pile and masntarn a comprehensive computer list of spill removal resources,
personnel, and óquipment that is available worldwide and within the areas designated by the
President pursuant to paragraph (4), whIch shall be available to Federal and State agencies and
the public;
(B) shall provid, technical assistance, equipmerd and other resources requested by a
Federal On-Scene Coordinator;
(C) shell coordinate use of private and public personnel and equipment to remove a worst
case discharge, and to mitigate or prevent a aubstaritlal threat of such a discharge, from a vessel,
8 So in law. ProbabFy should be cap ahzed
National Response Unit must be established by August 18. 1991 (Oil Poflution Act section
4202(b) (2)).
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17.
offshore facility, or onshore facility operating in or near an area designated by the President
pursuant to paragraph (4);
(0) may provide technical assistance in the preparation of Area Contingency Plans
required under paragraph (4):
(E) shall administer Coast Guard strike teams established under the National Contingency
Plan:
(F) shall maintain on file all Area Contingency Plans approved by the President wider this
subsection: and
(C) shall review each of those plans that affects its responsibilities under this subsection.
(3) COAST GUARD DISTRICT RESPON- E GROUPS. .- (A) The Secretary of the department
in which the Coast Guard is operating shall establish in each Coast Guard district a Coast Guard
District Response Group . ’°
(8) Each Coast Guard District Response Group shall consist of —
(i) the Coast Guard personnel and equipment, including firelighting equipment, of
each po e ’ ? within the district;
(ii) additional pre positioned equipment; and
(iii) a district response advisory staff.
(C) Coast Guard district response groups —
(1) shall provide technical assistance, equipment, and other resources when
required by a Federal On-Scene Coordinator;
(ii) shall maintain all Coast Guard response equipment within its district;
(iii) may provide technical assistance in the preparation of Area Cont/ngency
Plans required under paragraph (4); and
(iv) shall review each of those plans that affect its area of geographic
responsibility.
(4) AREA COMMITTEES AND AREA CONTINGENCY PLANS. — (A) There is established for
each area designated by the President an Ama Committee compnsed of members appointed by
the President from qualified personnel of Federal, State, and local agencies ) 1
(B) Each Area Committee, under the direction of the Federal On-Scene Coordinator for its
area, shall —
(I) prepare for Its area the Area Contingency Plan required under subparagraph
(C);
° Response Groups must be established by August 18,1991 (Oil Potlulion Act section 4202(b)(3))
Areas must be designated by February 18. 1991 (Oil Pollution Act section 4202(b)(1)(A)).
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18.
(ii) work with State and local officials to enhance the contingency planning of
those officials and to assure pre.plann,ng of joint response efforts, including
aporopriate procedures for mechanical recovery. dispersal. shoreline cleanup,
protection of sensitive environmental areas, and protection, rescue. and
rehabilitation of fisheries and wildlife: and
(iii) work with State and local officials to expedite decisions for the use of
d:spersants and other mitigating substances and devices.
(C) Each Area Committee shall prepare and submit to the President for approval an Area
Contingency Plan for its area. 12 The Area Contingency Plan shall..
(I) when implemented in conjunction with the National Contingency Plan, be
adequate to remove a worst case discharge, and to mitigate or prevent a
substantial threat of such a discharge, from a vessel, offshore facility, or onshore
facility operating in or near the area;
(ii) describe the area covered by the plan, including the areas of special
economic or environmental importance that might be damaged by a discharge;
(iii) describe in detail the responsibilities of an owner or operator and of Federal.
State, and local agencies in removing a discharge, and in mitigating or preventing
a substantial threat of a discharge;
(iv) list the equipment (including firefighting equipment), dispersants or other
mitigating substances and devices, and personnel available to an owner or
operator and Federal, State, and local agencies, to ensure an effective and
immediate removal of a discharge, and to ensure mitigation or prevention of a
substantial threat of a discharge;
(v) describe the procedures to be followed for obtaining an expedited dec:sion
regarding the use of dispersants;
(vi) describe in detail how the plan is integrated into other Area Contingency
Plans and vessel, offshore facility, and onshore facility response plans approved
under this subsection, and into operating procedures of the National Response
Unit;
(vii) include any other information the President requires; and
(viii) be updated periodically by the Area Committee.
(D) The President shall —
(I) review and approve Area Contingency Plans under this paragraph; and
(Ii) periodically review Area Contingency Plans so approved. 13
(5) TANK VESSEL AND FACIUTY RESPONSE PLANS. — (A) Th. President shall Issue
regulations which require an owner or operator of a tank vessel or facility described In
12 Plans must be submitted by February 18. 1992 (Oil Pollution Act section 4202(b)(1)(B))
Initial review and approval required by August 18,1992 (Oil Pollution Act section 4202(b)(1 I ..
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- 19-
subparagraph (B) to prepare and submit to the President a plan for responding, to the marirri im
extent practicable, to a worst case discharge, and to a substantial threat of such a discharge. of
oil or a hazardous substance.
(B) The tank vessels and facilities referred to in subparagraph (A) are the following:
(i) A tank vessel, as defined under section 2101 of title 46, United States Code.
(ii) An offshore facility.
(iii) An onshore facility that, because of its location, could reasonably be
expected to cause substantial harm to the environment by discharging inio or on
the navigable waters, adjoining shorelines, or the exclusive economic zone.
(C) A response plan required under this paragraph shall..
(i) be consistent with the requirements of the National Contingency Plan and Area
Contingency Plans;
(it) identify the qualified individual having full authority to implement removal
actions, and require immediate conimunications between that individual and the
appropriate Federal official and the persons providing personnel arid equipment
pursuant to clause (iii);
(iii) identify, and ensure by contract or other means approved by the President
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;
(iv) describe the training, equipment testing, periodic unannounced drihs, arid
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 arid to mitigate or prevent the
discharge, or the substantial threat of a discharge;
(v) be updated periodicaUy and
(vi) be resubmitte4 for approval of each significant change.
(D) With respecl to any response plan submitted under this paragraph for an onshore
facility that, because of its location, could reasonably be expected to cause signthcant and
substantial hami to the environment by discharging into or on the navigable waters or adjoining
shorelines or the exclusive economic zone, and with respect to each response plan submitted
under this paragraph for a tank vessel or offshore facility, the President shall —
(I) promptly review such response plan;
(ii) require amendments to any plan that does not meet the requirements of this
paragraph;
(iii) approve any plan that meals the requirements of this paragraph; and
Regulations required by August 18, 1992 ( C I I Polkit on Act section 4202(b)(4)(A))
-------
- 20.
(iv) review each plan periodically thereafter.
(E) A tank vessel, offshore facility, or onshore facility required to prepare a response plan
under this subsection may not handle, store, or transport oil unless
(i) in the case of a tank vessel, offshore facility, or onshore facility for which a
response plan is reviewed by the President under subparagraph (0). the plan has
been approved by the President: and
(ii) the vessel or facility is operating in compliance with the plan. 15
(F) Notwithstanding subparagraph (E), the President may authorize a tank vessel, offshore
facility, or onshore facility to operate without a response plan approved under this paragraph.
until not later than 2 years after the date of the submission to the President of a plan for the tank
vessel or facility, if the owner or operator certifies that the owner or operator has ensured by
contract or other means approved by the President the availability of private personnel and
equipment necessary to respond, to the maximum extent practicable, to a worst case discharge
or a substantial threat of such a discharge.
(G) The owner or operator of a tank vessel, offshore facility, or on:hore facility may not
claim as a defense to liability under title I of the Oil Pollution Act of 1990 that the owner or
operator was acting in accordance with an approved response plan.
(H) The Secretary shall maintain, in the Vessel identification System established under
chapter 125 of title 46, United States Code, the dates of approval and review of a response plan
under this paragraph for each tank vessel that is a vessel of the United States.
(6) EQUIPMENT REQUIREMENTS AND INSPECTION. — Not later than 2 years after the
date of enactment of this section, the President shall require —
(A) periodic ins pection of containment booms, skimmers, vessels, and other major
equipment used to remove discharges; and
(B) vessels operating on navigable waters and carrying oil or a hazardous substance in
bulk as cargo to carry appropriate removal equipment that employs the best technology
economically feasible and thetis compatible with the safe operation of the vessel.
(7) AREA DRILLS. — The President shall periodica fly conduct drift: of removal capability,
without prior notice, in areas for which Area Contingency Plans are required under this
subsection and under relevant lank vessel and facility response plans. The drills may include
participation by Federal, State, and local agencies, the owners and operators of vessels and
facilities an the ara, arid prwate Industry. The President may publish annual reports on these
drills, including ssessments of the effectiveness of the plans and a list of amendments made to
improve plans.
(8) UNITED STATES GOVERNMENT NOT LIABLE. - The United States Government is not
liable for any damages arising from its actions or omissions relating to any response plan
required by this section.
‘ Subparagraph (E) takes effect August 18, 1993 (Oil PoHution Act section 4202(b)(4XC)).
Between February 18, 1993 and August 18, 1993. tank vessels and facilities may not operate unless a
plan has been submitted (Oil Pollution Act section 4202(bX4)(B)).
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2 -
((k ) ’ are g iere v a i-a& ‘0
Q ed ‘G a ‘ ‘J0lvr; “ a
T s y s,C - s um as — ‘;y to a;e a ; ai ’- a n € o- . ‘.. ‘-o at a!svoI C S310-OC .OCC :
;
: a v s .cs of sudsooi:o’ a f:), rd) .
{i). : d ‘ C s s: c ’ r y c:o- ca :.
•zo :a;o ..r. er ;h s ‘- t
aso t-e c -eo r ga c ‘- . ‘ ‘ - c’ - ccas
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C o s. au 2CC -- ‘- -‘ -c ”
t .or- ppier -or -ai
rC jt d t -p3r3;-apr’.
(I) The President is autriorized to delecate the administration of this sec on to the heacs CT
Federal departments. agencies. and instrumentalities which he determines to be apprcpriate
r’cnoyc :n : e ‘und by Jt SC IOr k) of :ftt c on—ran to avaiIabl c ŁC --
ac - a s :a-cry c : e via cr C tuc -
l t&octi-cn.j Each sucn aepariment, agency, and instrumentality. in oroer to avoid duoiicaticr ct
effort, shall, whenever acpropnate. utilize the personnel, services, and facilities of other Fecerai
departments, agencies anc instrumentalities
[ m} Anyone utr o ed by D.evii9n o enforce the Grovtsiofls řf this goction may. o :a-c:
pub - essote. (A) board ar oct any ve gal upon the navig bto w &a Of 1 i0 L’nttoc :a —-
tfl waters of the contiguo t :one. {8 with or without a warrant arr9s ari’y person whO ‘.‘c s : —
prcv siw s of :tussocior. or ry regulation I S SUed thereundec in his Presence or view. :n: C’ a. ;c .-o
any wacrari r ether prcess u.ied y an or cc rt c t co noe Qnt iuris ic .l
(m) ADMINISTRATIVE PROVISIONS. -
(1) FOR VESSELS. — Anyone authorized by the President to enforce the provisions of this
section with respect to any vessel may, except as to public vessels
(A) board and inspect any vessel upon the navigable waters of the United States or the
waters of the contiguous zone,
(B) with or without a warrant, arrest any person who in the presence or view of the
authorized person violates the provisions of this section or any regulation issued thereunder, and
(C) execute any warrant or other process issued by an officer or court of competent
jurisdiction.
(2) FOR FACUTIES. —
(A) RECORDKEEPING. — Whenever required to carry out the purposes of this section, the
Administrator or the Secretary of the Department In which the Coast Guard is operating shall
require the ownr or operator of a facility to which this section applies to establish and maintain
such records, make such reports, install use, and maintain such monitoring equipment and
methods, and provide such other Information as the Administrator or Secretary, as the case may
be, may require to carry out the objectives of this section.
16 Subsection (k) is repeaied but not replaced. Under section 2002(b)(2) of the Oil Pollution Act of
1990, arty amounts remaining in the revolving fund established under that subsection shall be
deposited in the Fund. The Fund shall assume aH fiabihty incurred by the revolving lund established
under that subsection.
b
-
- —
- . ,--- - .. .- - .. Lř -L ,t . ._ .. ;_ ,; ._:: ac ——
—
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-------
22.
(B) ENTRY AND INSPECTION. Whenever required to carry out the purposes of this
section, the Administrator or the Secretary of the Department in which the Coast Guard is
operating or an authorized repreSentative of the Administrator or Secretary, upon presentation of
appropriate credentials, may..
(;) enter and inspect any facility to which this section applies, including any
facilrty at which any records are required to be maintained under subparagraph
(A); and
(is) at reasonable times, have access to and copy any records, take samples. and
inspect any monitoring equipment or methods required under subparagraph (A).
(C) ARRESTS AND EXECUTION OF WARRANTS. .- Anyone authorized by the Administrator
or the Secretary of the department in which the Coast Guard is operating to enforce the
provisions of this section with respect to any facility may —
(s) with or without a warrant. arrest any person who violates the provisions of this
section or any regulation issued thereunder in the presence or view of the person
so authorized; and
(ii) execute any warrant or process issued by an officer or court of competent
jurisdiction.
(0) PUBLIC ACCESS. — Any records, reports, or information obtained under this
paragraph shall be subject to the same public access and disclosure requirements which are
applicable to records, reports, and information obtained pursuant to section 308.
(n) The several district courts of the United States are invested with jurisdiction for any actions ctner
than actions pursuant to subsection (i)(1), arising under this section. In the case ci Guam ar o tre
Trust Territory of the Pacific Islands. such actions may be brought in the district court of Guam and in
the case of the Virgin Islands such actions may be brought in the district court of the Vir in lsiancs
In the case of American Samoa and the Trust Territory of the Pacific Islands, such actions may be
brought in the District Court of the United States for the District of Hawaii and such court shall have
jurisdiction of such actions. In the case 01 the Canal Zone, such actions may be brougN in the United
States District Court for the District of the Canal Zone
(o)(1) Nothing in this section shall affect or modify in any way the obligations of any owner or coerator
of any vessel, or of any owner or operator of any onshore facility or offshore facility to any person or
agency under any provision of law for damages to any publicly owned or privately owned properry
resulting from a discharge of any oil or hazardous substance or from the removal of any such oil or
hazardous substance.
(2) Nothing in this section shall be construed as preempting any State or political subdivision
thereof from imposing any requirement or liability with respect to the discharge of oil or hazardous
substance into any waters within such State, or with respect to any removal activities related to
such discharge.
(3) Nothing in this section shall be construed as fecting or modifying any other existing
authority of any Federal department, agency, or instrumentality, rel ive to onshore or offshore facilmes
under this Act or any other provision of law, or to affect any State or local law not in conflict with triis
section.
[ (p)(1) Any vessel over three tiun red gTO6S including arr i ar e of equivalent siae, u1 n9
ny barge that Ic not calf propelled and that —. ‘
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- 23 -
t ;1 , ...sr; ; :c :‘aca r r; - ‘ : S:c:;s : ‘ - avao- ‘.:wa c :-& : c S::
w &ty :L cos-e c.aI l argznrcr :ircr CGL’ZtrG ”€ :o te ssz tsc s-:—. : : ra -i..
: etasr:. eviberca :‘ r-arcaI -gs:crs c iv c - f- r :‘-€ :c.g c’ src o :;::- $ 25 € :rct.
s...c t Ttt c c 2&CD ,b .5 . ;f g ;: cw r-c — :‘; c:sc :•-;-. c i” ; - -&s-z-; Ł‘
c-c c - C r :‘ c — cazc ‘ ; .‘es-r’ ca--. - ; c ; c c -C L S- S -a c e s ::- m : :cc’
T& c-c c-s ;:ca:;:. :c : -c ‘a ’tj :c :-e !..t4-ec S:ciu “c ..,c ;s. c CCLC c-c : ::
t ;-c: c- — c - n c - s t—:’s a: c’r-r c c c-parc-:ci org. c-cw: ag C r c - r n c -:
g-- ;g - -:;ccr; : r i — i cc c. cc as:; :. trac:: — c c: -; —ar...— c. -
:-a c ’;as :t Sr s_ CL’C cc suciec:cd. F pr.c ; r.c-”i- — tc; -ss:3ci.g-;ct. a-,,
c-a o f - or a ccrcca:c. :rs ‘cflo vrg -rocig acccp:a c :o :t-e °rcar:, ‘- : c car :; ci
i -gu ;rrca , iS’ zirs i torg VC\ cia4 ic;: ic-’ ;g a ;af :g ,. - -r. t I rc c’
-c-s:c-rsibrv r- cc ‘ec sr il e sz,s-: :ja b-or4in; cc;ar c-...:rc’zao :ccc-cis - -;
L- c States.
‘2 The : cv ’s.crs c caragr::h c’ : -s st ctcn—s”aJ t6Ccc:.vc Lp -I 3 ‘
-:-gc-ec: :c 04 art ore v rz arme dc:e-c’ racr,-ent c 4 :hs-section !J ci regtec: :c
g...tg:;ncgg Thg Qresjdar: graj cie leçate :hc- -ewonzibitay tocarry CL :“e proviscrg c’ :r.g
g .c&ecticn to toapprccrctc-acG cv ç g y clays after t’t u date of cractrnr: o’ :-c €c:
Reguiaa’ons mecessacy :o tmplrrent this sutsc-o:ion s-*afLbe -ssued wiciir s ic rncrrt ct - ci a
ccac eri o f :hinec:ion.
(3 ) Arty cla im ‘Qr costs cur:e d by such vessel may be b-rough.: t acth,t acansz :-c r4 r3- or
any other persan provtthng evidence of fic.ancai responsab4cvy a reqLa under ta g 5 ; or. -
the—case oLany-action pursuant to this sub C:on-sucti insurer or othsi person char te ;r:tc t 0
‘nvoke an rights-ac4-d sfar.sas which Would have been-ava i lable to the owr.or o ooc ’a:c
had been brought agairs him ty the claicr.ant and-whictiwould have-been-available :c- hrr cc
acion had-been brought aga ris him by4fla owner or operao .
4) Any ow er or ooecator of a vesS&-Subfect to this subtectior. who4a4s to c c -ro y & ci
provisions of-this su section or any regutatiorussued tflcreunder, sh.alLde sub 1 ect to a f-re of
nC - re than $10000.
(5) The Sec etary of the-Treasury may refuse the ctearance aguu-ed by section At7 of cii
Revised Statutes oLthe United States, as amended-(4 U.S.C. 91), to any vessel-sub 1 ect to t-is
subsection. which does not have evidence S umished by the President that the ttnanca l resporso
provisions of paragraph (1) of this subseaion have been compiled wrth.
(6) The Secreta.y of the Dapartmern in which the Coast Guard is-operated may (A) :arv
entry to anypon or place in the United Stares or the navigable waters of the United States. t O a-c E.-
detain at the pcn-auplace in the United States from-which it is about to depart for any other pc:
place in the United States, arty vessel subject to this subsection, whict’. upon request. toacci
produce eisidence furnished by the President that the financial responsib i lity provisions of p;rc;to
(t) of this subsection have bee-n comolied witttl t7
(a) The President is authorized to establish, with respect to any class or calegory of onshore or
offshore facilities, a maximum limit of liability under subsections (0(2) and (3) of this section c i less
than $50,000,000, but not less than S8 000,000.
(r) Nothing in this section shall be construed to impose, or authonze the imposition of any fimrtatcn
on liability under the Outer Continentai She Lands Act or the Deepwater Port Act of 1974.
17 Subsection (p) is repealed but not replaced.
-------
(s) The Oil Spa!) Liability Trust Fund established under section 9509 of the internal Revenue Code
011986 (26 U.S.C. 9509) shall be available to cari- ’ out subsections (b). ( C), (d), U) and (I) as
those subsections apply to d ischarges, and substantial threats of discharges, of oil. Any amounts
received by the United States under this sec tion shall be deposrted in the Oil Spill Liabudv Trust
Fund.
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109 FEDERAL WATER POLLUTION CONTROL ACT Sec. 308
neously with the promulgation of standards of performance under
section 306 for the equivalent category of new sources. Such
pretreatment standards shall prevent the discharge of any pollut-
ant into such treatment works, which pollutant may interfere wflh,
pass through, or otherwise be incompatible with such works
(d) After the effective date of any effluent standard or prohibi-
tion or pretreatment standard promulgated under this section, it
shall be unlawful for aiiy owner or operator of any source to oper-
ate any source in violation of any such effluent standard or prohibi-
tion or pretreatment standard.
(e) COMPLIANCE DATE EXTENSION FOR INNOVATIVE
PRETREATMENT SYSTEMS.— In the case of any existing facility that
proposes to comply with the pretreatment standards of subsection
(b) of this section by applying an innovative system that meets the
requirements of section 301(k) of this Act, the owner or operator of
the publicly owned treatment works receiving the treated effluent
from such facility may extend the date for compliance with the ap-
plicable pretreatment standard established under this section for a
penod not to exceed 2 years —
(1) if the Administrator determines that the innovative
system has the potential for industrywide application, and
(2) if the Administrator (or the State in consultation with
the Administrator, in any case in which the State has a
pretreatment program approved by the Administrator)—
(A) determines that the proposed extension will not
cause the publicly owned treatment works to be in viola-
tion of its permit under section 402 or of section 405 or to
contribute to such a violation, and
(B) concurs with the proposed extension.
(33 USC 13 7)
INSPECTIONS, MONITORING, AND ENTRY
SEc. 308 (a) Whenever required to carry out the objective of
this Act, including but not limited to (1) developing or assisting in
the development of any effluent l]mitation, or other limitation, pro-
hibition, or effluent standard, pretreatment standard, or standard
of performance under this Act, (2) determining whether any person
is in violation of any such effluent limitation, or other limitation,
prohibition or effluent standard, pretreatment standard, or stand-
ard of performance; (3) any requirement established under this sec-
tion; or (4) carrying out sections 305, 311, 402, 404 (relating to
State permit programs), 405, and 504 of this Act—
(A) the Administrator shall require the owner or operator
of any point source to 0) establish and maintain such records,
(ii ) make such reports, (iii) install, use, and maintain such
monitonng equipment or methods (including where appro-
pnate, biological monitoring methods), (iv) sample such
effluents (in accordance with such methods, at such locations,
at such intervals, and in such manner as the Administrator
shall prescribe), and (v) provide such other information as he
may reasonably require; and
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Sec. 308 FEDERAL WATER POLLUTION CONTROL ACT 110
(B) the Administrator or hi authonzed representative (in-
cluding an authorized contractor acting as a representative of
the Administrator), upon presentation of his credentials—
(i) shall have a nght of entry to, upon, or through an
premises in which an effluent source is located or in whic
any records required to be maintained under clause (A) of
this subsection are located, and
(ii) may at reasonable times have access to and copy
any records, inspect any monitonng equipment or method
required under clause (A), and sample any effluents which
the owner or operator of such source is required to sample
under such clause.
(b) Any records, reports, or information obtained under this
section (1) shall, in the case of effluent data, be related to any ap-
plicable effluent limitations, toxic, pretreatment, or new source per-
formance standards, and (2) shall be available to the public, except
that upon a showing satisfactory to the Administrator by any per-
son that records, reports, or information, or particular part thereof
(other than effluent data), to which the Administrator has access
under this section, if made public would divulge methods or proc-
esses entitled to protection as trade secrets of such person, the Ad-
ministrator shall consider such record, report, or information, or
particular portion thereof confidential in accordance with the pur-
poses of section 1905 of title 18 of the United States Code. Any au-
thonzed representative of the Administrator (including an author-
ized contractor acting as a representative of the Administrator)
who knowingly or willfully publishes, divulges, discloses, or makes
known in any manner or to any extent not authonzed by law any
information which is required to be considered confidential under
this subsection shall be fined not more than $1,000 or imprisoned
not more than 1 year, or both Nothing in this subsection shall pro-
hibit the Administrator or an authorized representative of the Ad-
ministrator (including any authorized contractor acting as a rep-
resentative of the Administrator) from disclosing records, reports,
or information to other officers, employees, or authonzed represent-
atives of the United States concerned with carrying out this Act or
when relevant in any proceeding under this Act.
(c) Each State may develop and submit to the Administrator
procedures under State law for inspection, monitonng, and entry
with respect to point sources located in such State. If the Adminis-
trator finds that the procedures and the law of any State relating
to inspection, monitonng, and entry are applicable to at least the
same extent as those required by this section, such State is author-
ized to apply and enforce its procedures for inspection, monitonng,
and entry with respect to point sources located in such State (ex-
cept with respect to point sources owned or operated by the United
States).
(d) ACCESS BY CoNcrtEss.—Notwithstanding any limitation
contained in this section or any other provision of law, all informa-
tion reported to or otherwise obtained by the Administrator (or any
representative of the Administrator) under this Act shall be made
available, upon written request of any duly authorized committee
of Congress, to such committee.
(33USC 1318)
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I
FEDERAL WATER POLLUTION CONIROL ACT 112
the violation, and shall specify a time for compliance not to exceed
thirty days in the case of a violation of an interim compliance
schedule or operation and maintenance requirement and not to ex-
ceed a time the Administrator determines to be reasonable in the
case of a violation of a final deadline, taking into account the seri-
ousness of the violation and any good faith efforts to comply with
applicable requirements.
(B) The Administrator may, if he determines (1) that any per-
son who is a violator of, or any person who is otherwise not in com-
pliance with, the time requirements under this Act or in any per-
mit issued under this Act, has acted in good faith, and has made
a commitment (in the form of contracts or other securities) of nec-
essary resources to achieve compliance by the earliest possible date
after July 1, 1977, but not later than April 1, 1979; (ii) that any
extension under this provision will not result in the imposition of
any additional controls on any other point or nonpoint source; (iii)
that an application for a permit under section 402 of this Act was
filed for such person prior to December 31, 1974; and (iv) that the
facilities necessary for compliance with such requirements are
under construction, grant an extension of the date referred to in
section 301(b)(1)(A) to a date which will achieve compliance at the
earliest time possible but not later than April 1, 1979.
(6) Whenever, on the basis of information available to him, the
Administrator finds (A) that any person is in violation of section
301(b)(1) (A) or (C) of this Act, (B) that such person cannot meet
the requirements for a time extension under section 301(iX2) of
this Act, and (C) that the most expeditious and appropriate means
of compliance with this Act by such person is to discharge into a
publicly owned treatment works, then, upon request of such person,
the Administrator may issue an order requiring such person to
comp]y with this Act at the earliest date practcable, but not later
than July 1, 1983, by discharging into a publicly owned treatment
works if such works concur with such order Such order shall in-
clude a schedule of compliance
(b) The Administrator is authorized to commence a civil action
for appropriate relief, including a permanent or temporary injunc-
tion, for any violation for which he is authorized to issue a compli-
ance order under subsection (a) of this section. Any action under
this subsection may be brought in the district court of the United
States for the district in which the defendant is located or resides
or is doing business, and such court shall have jurisdiction to re-
strain such violation and to require compliance. Notice of the com-
mencement of such action shall be given immediately to the appro-
priate State
(c) CRIMINAL PENALTIES —
(1) NEGLIGENT VIOLATIONS.—Ariy person who—
(A) negligently violates section 301, 302, 306, 307, 308,
311(b)(3), 318, or 405 of this Act, or any permit condition
or limitation implementing any of such sections in a per-
mit issued under section 402 of this Act by the Adminis-
trator or by a State, or any requirement imposed in a
pretreatment program approved under section 402(a)(3) or
402(b)(8) of this Act or in a permit issued under section
113 FEDERAL WATER POLLUTION CONTROL ACT
404 of this Act by the Secretary of the Army or by a State;
or
(B) negligently introduces into a sewer system or into
a publicly owned treatment works any pollutant or hazard-
ous substance which such person knew or reasonably
should have known could cause personal injury or property
damage or, other than in compliance with all applicable
Federal, State, or local requirements or permits, which
causes such treatment works to violate any effluent limita-
tion or condition in any permit issued to the treatment
works under section 402 of this Act by the Administrator
or a State;
shall be punished by a fine of not less than $2,500 nor more
than $25,000 per day of violation, or by imprisonment for not
more than 1 year, or by both. If a conviction of a person is for
a violation committed after a first conviction of such person
under this paragraph, punishment shall be by a fine of not
more than $50,000 per day of violation, or by imprisonment of
not more than 2 years, or by both.
(2) KNOWING VIOLATIONS.—Any person who—
(A) knowingly violates section 301, 302, 306, 307, 308,
311(b)(3), 318, or 405 of this Act, or any permit condition
or limitation implementing any of such sections in a per-
mit issued under section 402 of this Act by the Adminis-
trator or by a State, or any requirement imposed in a
pretreatment program approved under section 402(a)(3) or
402(b)(8) of this Act or in a permit issued under section
404 of this Act by the Secretary of the Army or by a State;
or
(B) knowingly introduces into a sewer system or into
a publicly owned treatment works any pollutant or hazard-
ous substance which such person knew or reasonably
should have known could cause personal injury or property
damage or, other than in compliance with all applicable
Federal, State, or local requirements or permits, which
causes such treatment works to violate any effluent limita-
tion or condition in a permit issued to the treatment works
under section 402 of this Act by the Administrator or a
State;
shall be punished by a fine of not less that $5,000 nor more
than $50,000 per day of violation, or by imprisonment for not
more than 3 years, or by both. If a conviction of a person is
for a violation committed after a first conviction of such person
under this paragraph, punishment shall be by a fine of not
more than $100,000 per day of violation, or imprisonment of
not more than 6 years, or by both.
(3) KNOWING ENDANGER MEN r.—
(A) GENERAL RULE.—Any person who knowingly vio-
lates section 301, 302, 306, 307, 308, 311(b)(3), 318, or 405
of this Act, or any permit condition or limitation imple-
menting any of such sections in a permit issued under sec-
tion 402 of this Act by the Administrator or by a State, or
in a permit issued under secti ’n 404 of this Act by the Sec-
retary of the Army or by a State, and who knows t thai
Sec 309
Sec. 309
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Sec. 309 FEDERAL WATER POLLUTION CONTROL ACT
114 115
FEDERAL WATER POLLUTION CONTROL ACT Sec. 309
time that he thereby places another person in imminent
danger of death or serious bodily injury, shall, upon convic-
tion, be subject to a fine of not more than $250,000 or im-
prisonment of not more than 15 years, or both. A person
which is an organization shall, upon conviction of violating
this subparagraph, be subject to a fine of not more than
$1,000,000. If a conviction of a person is for a violation
committed after a first conviction of such person under
this paragraph, the maximum punishment shall be dou-
bled with respect to both fine and imprisonment.
(B) ADDITIONAL PROVISIONS —For the purpose of sub-
paragraph (A) of this paragraph—
(i) in determining whether a defendant who is an
individual knew that his conduct placed another per-
son in imminent danger of death or serious bodily in-
jury—
(I) the person is responsible only for actual
awareness or actual belief that he possessed; and
(II) knowledge possessed by a person other
than the defendant but not by the defendant him-
self may not be attributed to the defendant;
except that in proving the defendant’s possession of
actual knowledge, circumstantial evidence may be
used, including evidence that the defendant took af-
firmative steps to shield himself from relevant infor-
mation,
(ii) it is an affirmative defense to prosecution that
the conduct charged was consented to by the person
endangered and that the danger and conduct charged
were reasonably foreseeable hazards of—
(I) an occupation, a business, or a profession;
or
(II) medical treatment or medical or scientific
experimentation conducted by professionally ap-
proved methods and such other person had been
made aware of the risks involved prior to giving
consent;
and such defense may be established under this sub-
paragraph by a preponderance of the evidence;
(iii) the term “organization” means a legal entity,
other than a government, established or organized for
any purpose, and such term includes a corporation,
company, association, firm, partnership, joint stock
company, foundation, institution, trust, society, union,
or any other association of persons; and
(iv) the term “serious bodily injury” means bodily
injury which involves a substantial risk of death, un-
consciousness, extreme physical pain, protracted and
obvious disfigurement, or protracted loss or impair-
ment of the function of a bodily member, organ, or
mental faculty.
(4) T’ALSE STATEMENTS —Any person who knowingly makes
any f -naterial statement, representation, or certification in
any a .ation, record, report, plan, or other document filed or
required to be maintained under this Act or who knowingly fal-
sifies, tampers with, or renders inaccurate any monitoring de-
vice or method required to be maintained under this Act, shall
upon conviction, be punished by a fine of not more than
$10,000, or by imprisonment for not more than 2 years, or by
both. If a conviction of a person is for a violation committed
after a first conviction of such person under this paragraph,
punishment shall be by a fine of not more than $20,000 per
day of violation, or by imprisonment of not more than 4 years,
or by both.
(5) TREATMENT OF SINGLE OPERATIONAL UPSET.—For pur-
poses of this subsection, a single operational upset which leads
to simultaneous violations of more than one pollutant param-
eter shall be treated as a single violation.
(6) RESPONSIBLE CORPORATE OFFICER AS “PERSON”.—For
the purpose of this subsection, the term ‘ 1 person” means, in ad-
dition to the definition contained in section 502(5) of this Act,
any responsible corporate officer.
(7) HAZARDOUS SUBSTANCE DEFINED.—For the purpose of
this subsection, the term “hazardous substance” means (A) any
substance designated pursuant to section 311(b)(2)(A) of this
Act, (B) any element, compound, mixture, solution, or sub-
stance designated pursuant to section 102 of the Comprehen-
sive Environmental Response, Compensation, and Liability Act
of 1980, (C) any hazardous waste having the characteristics
identified under or listed pursuant to section 3001 of the Solid
Waste Disposal Act (but not including any waste the regulation
of which under the Solid Waste Disposal Act has been sus-
pended by Act of Congress), (D) any toxic pollutant listed
under section 307(a) of this Act, and (E) any imminently haz-
ardous chemical substance or mixture with respect to which
the Administrator has taken action pursuant to section 7 of the
Toxic Substances Control Act.
(d) Any person who violates section 301, 302, 306, 307, 308,
311(b)(3), 318 or 405 of this Act, or any permit condition or limita-
tion implementing any of such sections in a permit issued under
section 402 of this Act by the Administrator, or by a State, or in
a permit issued under section 404 of this Act by a State,,’ or any
requirement imposed in a pretreatment program approved under
section 402(a)(3) or 402(b)(8) of this Act, and any person who vio-
lates any order issued by the Administrator under subsection (a) of
this section, shall be subject to a civil penalty not to exceed $25,000
per day for each violation. In determining the amount of a civil
penalty the court shall consider the seriousness of the violation or
violations, the economic benefit (if any) resulting from the viola-
tion, any history of such violations, any good-faith efforts to comply
with the applicable requirements, the economic impact of the pen-
alty n the violator, and such other matters as justice may require.
For purposes of this subsection, a single operational upset which
leads to simultaneous violations of more than one pollutant param-
eter shall be treated as a single violation.
‘So in law SeeP L 100—4, sec 313(aXI), 101 SLat 45
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291 SUPERF I INO Sec 101
comphance viab applicable pretreatment standards of section
307 (b) or (c) of the Clean Water Act and enforceable require-
ments in a pretreatment program submitted by a State or mu-
nicipality for Federal approval under section 402 of such Act,
and (K) any release of source, special nuclear, or byproduct
material, as those terms are defined in the Atomic Energy Act
of 1954, in compliance with a legally enforceable license, per-
mit, regulation, or order issued pursuant to the Atomic Energy
Act of 1954.
(11) The term “Fund” or “Trust Fund” means the Hazard-
ous Substance Response Fund established by section 221 of
this Act or, in the case of a hazardous waste disposal facility
for which liabi]ity has been transferred under section 107(k) ol
tb ’ s Act, the Post-closure Liability Fund established by section
232 of this Act
(12) The tern “ground water” means water in a saturated
zone or stratum beneath the surface of land or water
(13) The term “guarantor” means any person, other than
the owner or operator, who provides evidence of financial re-
sponsibility for an owner or operator under this Act.
(14) The tern “hazardous substance” means (A) any sub-
stance designated pursuant to section 3 11(b)(2)(A) of the Fed-
eral Water Pollution Control Act, (8) any element, compound,
mixture, solution, or substance designated pursuant to section
102 of this Act, (C) any hazardous waste having the character-
istics identified under or listed pursuant to section 3001 of the
Solid Waste Disposal Act (but not including any waste the reg-
ulation of which under the Solid Waste Disposal Act has been
suspended by Act of Congress), (D) any toxic pollutant listed
under section 307(a) of the Federal Water Pollution Control
Act, (E) any hazardous air pollutant listed under section 112
of the Clean Air Act, and (F) any imminently hazardous chemi-
cal substance or mixture with respect to which the Athmnis-
trator has taken action pursuant to section 7 of the Toxic Sub-
stances Control Act The term does not include petroleum, in-
cluding crude oil or any fraction thereof which is not otherwise
specifically listed or designated as a hazardous substance
under subparagraphs (A) through (F) of this paragraph, and
the term does not include natural gas, natural gas liquids, hq-
ueried natural gas, or synthetic gas usable for fuel (or mixtures
of natural gas and such synthetic gas)
(15) The term “navigable waters” or “navigable waters of
the United States” means the waters of the United States, in-
cluding the territorial seas.
(16) The term “natural resources” means land, fish, wild-
life, biota, air, water, ground water, dnnking water supplies,
and other such resources belonging to, managed by, held in
trust by, appertainrng to, or otherwise controlled by the United
States (including the resources of the fishery conservation zone
established by the Fishery Conservation and Management Act
of 1976), any State, local government, or any foreign govern-
ment, any indian tribe, or, if such resources are subject to a
trust restnction or alienation, any member of an indian tnbe.
-------
109 STAT. 546 PUBLIC LAW 104-55—NOV 20, 1995
Public Law 104—55
104th Congress
An Act
N 20 1995 To require the head of any Federal agency to differentiate between fats, oils,
and greases of animal, marine, or vegetable origin, and other oils and greases,
IH R 4361 in iscuing certain regulations, and for other purposes
Be it enacted by the Senate and House of Representatives of
Edible Oil the United States of America in Congress assembled,
Regulatory
Reform Act SECTION 1. SHORT TITLE.
n te C 2701 This Act may be cited as the “Edible Oil Regulatory Reform
Act”
33 Usc 2720 SEC. 2. DIFFERENTIATION AMONG FATS, OILS, AND GREASES.
(a) IN GENERAL —Except as provided in subsection (c), in issu-
mg or enforcing any regulation or establishing any interpretation
or guideline relating to the transportation, storage, discharge,
release, emission, or disposal of a fat, oil, or grease under any
Federal law, the head of that Federal agency shall—
(1) differentiate between and establish separate classes
for—
(A) animal fats and oils and greases, and fish and
marine mammal oils, withm the meaning of paragraph
(2) of section 61(a) of title 13, United States Code, and
oils of vegetable origin, including oils from the seeds, nuts,
and kernels referred to in paragraph (1)(A) of that section,
and
(B) other oils and greases, including petroleum, and
(2) apply standards to different classes of fats and oils
based on considerations in subsection (b)
(b) CONSIDERATIONS —In differentiating between the class of
fats, oils, and greases described in subsection (a)(1)(A) and the
class of oils and greases described in subsection (a)(1)(B), the head
of the Federal agency shall consider differences in the physical,
chemical, biological, and other properties, and in the environmental
effects, of the classes.
(c) EXCEPTION —The requirements of this Act shall not apply
to the Food and Drug Administration and the Food Safety and
Inspection Service
(d) FINANCIAL RESPONSIBILITY —
(1) Section 1004(a)(1) of the Oil Pollution Act of 1990 (33
U.S C 2704(a)(1)) is amended by stnking “for a tank vessel,”
and inserting “for a tank vessel (except a tank vessel on which
the only oil carried as cargo is an animal fat or vegetable
oil, as those terms are used in section 2 of the Edible Oil
Regulatory Reform Act)”.
29-1390 - 9. ( &)
-------
PUBLIC LAW 104 —55—NOV. 20, 1995 109 STAT. 547
(2) Section 1016(a) of the OLI Pollution Act of 1990 (33
U.S C 2716 (a)) is amended in the first sentence by stnkin
“, in the case of a tank vessel, the responsible party coul
be subject under section 1004(a)(1) or (d) of this Act, or to
which, m the case of any other vessel, the responsible party
could be subjected under section 1004(a)(2) or (d)” and mserhng
“the responsible party could be subjected under section 1004(a)
or (d) of this Act”
Approved November 20, 1995
LEGISLATIVE HISTORY—H R 436
HOUSE REPORTS No 104—262, Pt I (Comm on Agnculture) and Pt 2 (Comm
on Commerce)
CONGRESSIONAL RECORD, Vol 141 (1995)
Oct 10, considered and passed House
Nov 2, considered and passed Senate, amended
Nov 7, House concurred in Senate amendments
0
-------
November 16, 1995
MEMORANDUM
SUBJECT: Edible Oil. Regulatory Reform Act
FROM: Bob Kenney, OECA/OSRE
TO: David Lopez, OSWER/OERR
Bobbie Lively-Diebold, OSWER/OERR
Amy Legare, OECA/OSRE
Estelle Bulka, OECA/OSRE
On November 7, 1995, the House of Representatives agreed to
changes made by the Senate to H.R. 436, the Edible Oil Regulatory
ReforTn Act, clearing the bill for signature by the President. As
of today, this measure had not yet been signed by President
Clinton.
Enclosed for your information are copies of relevant portions
of the November 2 and 7 Congressional Record , which include
transcripts of Senate and House floor action on H.R. 436. Changes
to the bill that were made by the Senate and approved by the Nouse
can be found at page H11807, column 2, of the November 7
Congressional Record . I will send you a copy of this law once it
is signed by the President and printed as a public law.
Please let me know if you have any questions about this matter
(703-603-8931)
Enclosures
-------
Thursday, November 2, 1995
HIGHLIGHTS
Daily Digest
Senate passed Legislative Branch Appropriations, 1996.
House passed D.C. appropriations bill.
Senate
Chamber Action
Routine Proceedings, pages S16557—S16635
Measures Introduced: Ten bills and one resolution
were introduced, as follows: S. 1378—1387, and Sj.
Res. 42. Page $16621
Measures R porTed: Reports were made as follows:
S. 1318, to reform the statutes relating to Am-
trak, to authori .e appropriations for Amtrak, with an
amendment. Page $16621
easures Passed:
Legislative Branch Appropriations, 1996: Senate
passed HR. 2492, making appropriations for the
Legislative Branch for the fiscal year ending Septem-
ber 30, 1996, dearing the measure for the President.
Pages $16571-72
Middle East Peace Facilitation Act: Senate
passed S. 1382, to extend the Middle East Peace Fa-
cilitation Act. Page S16584
D.c. Appropriations, 1996: PuI suanr to the order
of Friday, September 22, 1995, Senate passed H.R.
2546, making appropriations for the government of
the District of Columbia anrt other activities charge
able in whole or in part against the revenues of said
District for the fiscal year ending September 30,
1996, after striking all after the enacting clause and
inserting in lieu thereof the text of S. 1244, as
passed by the Senate. Pages S16595-S16617
Further, the Senate insisted on its amendment, re-
quested a conference with the House thereon, and
the Chair was authorized to appoint conferees on the
part of the Senate. Page S16617
Subsequently, S 124.4 was indefinitely postponed.
Page $16595
E)avid J. Wheeler Federal Building: Senate
passed S. 1097, to designate the Federal building lo-
cared at 1550 Dewey Avenue, Baker City, Oregon,
as the “David J. Wheeler Federal Building”.
Page $16620
Edible Oil Regulatory Reform Act: Senate passed
H.R. 436, to require the head of any Federal agency
to differentiate between fits, oils, and greases of ani-
mal, marine, or vegetable origin, and other oils and
greases, in issuing certain regulations, after agreeing
to the following amendment proposed thereto:
Pages S16617-20
Dole (for Chafee) Amendment No. 3044, to make
minor and technic changes. Pages S16617-.18
Social Security Earnings Limit: Senate began con-
sideration of S. 1372, to amend the Social Security
Act to increase the earnings limit, taking action on
an amendment proposed thereto, as follows:
Pages S16574-89
Pending:
Rockefeller Amendment No. 3043, to express the
sense of the Senate that the Senate conferees on H R
2491, Budget Reconciliation, should not agree to re-
ductions in Medicare beyond $89 billion, and should
reduce rax breaks for upper-income taxpayers and
corporations. Page S16581
During consideration of this measure today, Senate
took the following action:
By 53 yeas to 42 nays (Vote No. 562), three-fifths
of those Senators duly chosen and sworn not having
voted in the affirmative, Senate failed to waive sec-
tion 302(f) of the Congressional Budget Act with re-
spect to consideration of the pending bill Subse-
quently, a point of order that the bill was in viola-
tion of the Congressional Budget Act was sustained,
and the bill, pursuant to section 3 12(b) of the Con-
gressional Budget Act, was committed to the Com-
mittee on Finance. page S16589
Back to Basics Education Reform Act—Agree-
ment: A unanimous-consent agreement was reached
providing for the consideration of H R. 1883, (0
D 1298
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November 2, 1995
to-Work Opportunities Act of 1994 (B) U.S C
6101 etseq).
(a) PROFESSIONAL DEELOPRENT PROGRAM
FOR TEAcicoth AND ADMINISTRATORA —
(1) EBTARU EN ’r OF PROGRAM —The cqr-
poratlon shall establish a consortium con-
stating of the corporation, teachers, school
aministrators, and a consortium of univer-
alties located In the Dietrict of Columbia (In
existence on the date of the enactment of
this Act) for the purpose of est.abllsblng a
program for the professional development of
teachers and school administrators em-
ployed by the District of Columbia public
echoo1 and public charter schools estab-
lished in accordance with this Act.
(2) COnDUCT OP PROQRAI&—ln carrying out
the program established under paragraph (1),
the consortium established under such pert-
graph, In consultation with the World Class
Schools Panel and the Superintendent, shall,
at a minimum, provide for the following-
(A) Professional development for teachers
which Is consistent with the model profes-
sional development programs for teachers
under section 4ff2 (aX3), or Is consistint with
the core currlculw,i dev Ioped by the Super-
intendent nuder section 411(.)(l). as the case
may be. except that in fiscal year 1996. such
p fesalonal development shall focus on cur-
ricuism for elementary grades In reading
and mathematics that have been dem-
onstrated to be effective for students from
low-Income bacicgvonnds
(B) Private sector training of teachere In
the use, application, and operation of state-
of-the-art technology In education
(C) ‘l’ralnlng for school principals and other
school administrators In effective private
sector management practices for the purpose
of site-based management In the District or
Columbia public schools and training La the
management of publIc charter schools estab-
Lished In accordance with this Act,
(I) OT PRIVATE Sw’mR AsaIwr.U cE no
CooRDI$ATIo7 —The corporation shall co-
ordinate private sector Involvement and vol-
untary asaletance efforts in support of re-
pairs and Improvements to schools In the
District of Columbia. including—
(1) prIvate sector monetary and In-kind
contributions to repair and Improve school
building facilities consistent with section
601;
(2) the development of proposals to be con-
sidered by the Superintendent for Inclusion
In the long-term reform plan to be developed
pursuant to section 101. and other proposals
to be submitted to the Superintendent, the
Board of Education, the Mayor, the District
of Columbia Council. the Authority, the Ad-
ministrator of the General Services Adinlnls-
tration. or the C ngrese: end
(3) a program of rewards for student ac-
compllslunent at participating local busi-
nesses.
sac. a. ions voa I).C. ORAIRIATES paooa . .
(a) IN GENKRAL . ,—The nonpe’oflt organiza-
tion eetabllslied under section 2602(2) shall
establish a program, to be known as the
“Jobs for D,C. Graduates Program”, to assist
the District of Columbia public schools and
public charter schools established In accord-
ance with this Act In organizing and Imple-
menting a school-to-work transition system
with a priority on providing assistance to at-
risk youths and disadvantaged youths
(b) CONDUCI’ OF PROGRAM —In carrying Out
the program establl hed under sub ectlon
(a), the nonprofit organization, consistent
with the poflcles of the natIonally-recog-
nIzed Jobs for America’s Graduates. Inc.—
(t) shall establish performance standards
for such program,
(2) shall provide ongoing enhancement and
improvements In such program;
(3) shall provide research nd reports on
the result of euch prog’rssn. and
CONGRESSIONAL RECORD — SENATE
(4) shall provide pre-servlce and in-service
training of all staff
SEC. 2505 MATCHING FUN1
The corporation shall, to the extent prac-
ticable. provide funds, an in kind contribu-
tion, or a combination thereof, for the pur-
pose of carrying out the duties of the cor-
poration under section 2604. as follows-
(1) For fiscal year 1996, 31 for every $1 of
Federal funds provided under this title for
section 2604
(2) For fiscal year 1991, 15 or every $1 of
Federal funds provided under this title for
section 2604
(3) For fiscal year 1998, 15 (or every $1 of
Federal funds provided under this title (or
section 4.
c. sees. REPORT.
The corporation &ball prepare and submit
to the Congress on a quarterly basis, or, with
respect to fIscal year 1996, on a biannual
basis, a report which shall contain—
(1) the activities the corporation baa car-
ried out, Including the dutIes of the corpora-
tion described In sec 1on 2604, for the 3-
month period ending on the date of the sub-
mission of the report, or. with respect to fIs-
cal year 1996, the 6-month period ending on
the date of the submission of the report;
(2) an assessment of the use of funds or
other resources donated to the corporation,
(3) the results of the assessment carried
out under section 2604(b)(2), and
(l)s description of the goals and priorities
of the corporation for the 3-month period be-
ginning on the date of the submission of the
report. or. with respect to fIscal year 1926,
the 6-month period beginning on the date of-
the submission of the report
SEC 5 AUTEOR AUON OF A VROPHiATIOHI.
(a) AIJTBOR1Z .ATION —
(1) DELTA COUNCIL. AcoESS TO STATE-OF-
THE-ANT EDUCATIONAL racsnoi .ooT,
WOREIOKCE PREFAPJ.TIOfl n(rria’rrvaa, trrma
PRIVATE SECTOR ASSISTANCE AND 000RDINA-
‘ron —There are authcrlzed to be appro-
priated to carry out subsections (a). (b), (4)
and If) of section 2604 $1, ,000 for each of
the fiscal years 1996, 199’?, and 1996
(2> DEAL CZNTER.—Tbero are authorized to
be appropris ted to carry out section 4(c)
12,000.060 for each of the fiscal years 1996,
199’?, and 1998
(3) PROE’ESS!ONAL DBVELOPMSN’r PROORAIS
FOR ‘TEAC .8 AND ADMINISTRAT0R8—There
are authorized to be appropriated to carry
out seCtion 2604(o) 31,000,000 (or each of the
fiscal years 1996, 199’?, and 1998
(4) JOBs FOR D C GRADUATES PROGRAM.—
There are authorized to be appropriated to
carry out section 2605—
(A) 15,000,000 for fIscal gear 1996, and
(B) 15.000.000 for each of the fiscal years
199’) through 2000
(b) AVAILAEU .rrr —Amounts authorized to
be appropriated under subsection (a) are an-
thortied to remain available until expended.
SEC. 1509 ‘FERMI1 ’4ATION OF FEDERAL RIWDORT )
SENSE OF THE CONGRESS HEL/ 7ThO
TO CON ’fl] ’IUAllON OF ACflVTFIES .
(a) TsaMINATION OF FEDERAL SUPPOrT —
The authority under this title to provide as-
sistance to the corporation or any other en-
tity established pursuant to this title (ex-
cept. for s.salsiance to the nonprofit organiza-
tion established under section 2602(2) for the
purpose of carrying out sectIon 2605) shall
terminate on October 1, 1996
(b) SzNsx or ma ‘CONGRzsS RELATING ‘ro
CON-rINUATION or AcTivrrIEa —It Is the sense
of the Congress that—
(1) the activities of the corporation under
section 2604 should contIOue to be carried
out after October 1. 1998. with resoul-ces
made available from the private sector; and
(2) the corporation should provide over-
sight and coordination of such activities
after euch date
S 16617
Subtitle L—Parent Attendance at Parent-
Teacher Conferences
sac. si. savanusuMENT.
(a) POLICY —Notwithstanding any other
provision of law, the Mayor of the Dist 1ct of
Columbia is authorized to develop and imple-
ment a policy requiring all residents with
children attending a District of Columbia
public school system to attend and partici-
pate In at least 1 parent-teacher conference
every H) days during the school year
(b) WITEEOLD BENEVITS.—The Mayor Is au-
thorized to withhold payment of benefits re-
ceived under the program under pert A of
title IV of the Social Security Act as a con-
dition of participation in these ps-rent-teach-
er conferences
sac. issa SUBMISSION OP PlAid
If the Mayor elects to utilize the powers
granted under sectIon 2651, the Mayor shall
submit to the Secretary of Health and
Human Services a plan for Implementation.
The plan shall Include—
(1) plans to administer the program;
(2) plans to conduct evaluations on the suc-
cess or faL are of the program,
(3) plans to monitor the participation of
parents;
(4) plane to withhold and reinstate bene-
fits, and
(5) long-term plans for the program
SEC. 155*. RI ’6 ‘to CONGRESR
Beginning on October 1, 1996 and each year
thereafter, the District shall annually report
to the Secretory of Health and Human Serv-
ices and to the Congress on the progress and
results of the program described In section
2651 of this Act.
This Act may be cited as the “District of
Columbia. Appropriations Act., 1996”.
The PRESIDINQ OFFICER. Pursuant
to that same order, the Senate Insists
on un s.niendment and requests a con-
foreace with the House and authorLzes
the Chair to appoint conferees.
EDIBLE OIL R.EGULATORY
REFORM ACT
Mr. DOLE. Mr. President, I ask unan-
Imous consent that the Senate proceed
to the Immediate consideration of H.R.
436 just received from the Rouse.
The PRESIDING OFFICER. Without
objection, it Is so ordered.
The clerk will state the bill by title.
A bill (WR. 436) to require the bead of any
Federal agency to differentiate between fats,
oils, and greases of animal, marine, or vege-
table origin, and other oils and greases, In Is-
suing certain regulations, and for other pur-
poses-
The PRESIDING OFFICER. Is there
objection to the immediate consider-
ation of the bill?
There being no objection, the Senate
proceeded to consider the bill.
AMENDMEN-r No. M44
(Purpose’ To make minor and technlcal
changes, and for other purposes)
Mr. DOLE. Mr. President, I send an
amendment to the desk and ask for Its
i-nmediate consideration.
The PRESIDING OFFICER. The
c]erk will report.
The assistant legislative clerk read
as follows:
The Senator from Kansas (Mr DoL,E). for
Mr CHAFER, for himself, Mr BAUCUB, Mr
PREB8LER. Mr. LunAR, and Mr HMUGN. pro-
poses an amendment numbered 3044
-------
• S16618
Mr. DOLE Mr. President, I ask unan-
imous consent that reading of the
amendment be dlspeiined with.
The PRESIDING OFFICER. Without
objection, it Is so ordered.
The amendment Is as follows:
On page 2, line 8, after “to” insert “the
*neportation. etoxege. diecharge. release.
emission, or diepesal or’.
On page 2. line I. s tkz “any” and insert
“that”.
On page 2. line 18, eislke “snoh” and Insert
“that”.
On page 2, line Z sinks “different” the
ret place It occurs.
On page 2. line 23, ainke “as provided” and
insert “based on conelderaUons”.
On page 3, line 12, ainke “carrying oil in
bulk as cargo or cargo residue”.
On page 3. In. 13, aSter “carried” Insert
“as cargo”...
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment. -
The amendment (No. 3044) was agreed
to.
Mr. CRAFEE. Mr. President, the Len-
ate recently received from the House
H.B. 436, the Edible Oil Regulatory Re-
form Act. The bill would amend the Oil
Pollution Act of 1990. or OPA-90. As
chairman of the Environment and Pub-
llc Works Committee, which has exclu-
sive jurisdiction over OPA-30, I support
the Senate’s g age of ER. 436 by
nn nImons consent without delay.
As a member of the Environment and
Public Works Conunittee at the time
the committee reported the bill that
became OPA-90, I am well acquainted
with the statute. As many of us will ro-
call, the Congress enacted OPA-90 in
the aftermath of the catastrophic
Exxon Voider oflepill In Prince William
Sound, AK.
One of the key elements of OPA-90
requires all vessels to demonstrate a
certain minimum level of financial re-
sponsibility to cover the costs of clean-
up and damages in the event of an oil-
spill. The intent behind this require-
ment Is to ensure that an entity that
discharges oil into our natural environ-
ment pay for the costs and damages
arising from the spill—not the U.S.
taxpayer. This intent remains sound
and should continue to Inform the ap-
plication of the statute.
in passing OPA-90. however. Congress
did not Intend to abandon the use of
common sense. As the act currently
stands, there is no distinction made In
the financial responsibility require-
ments for oil-carrying vessels, regard-
less of the kind of oil being carried.
Therefore, a vessel carrying sunflower
oil Is held to the same requirements
under OPA-90 as a carrier of deep
crude
H R. ‘ll6 simply recognizes that vege-
table oils and animal fats are different
from petroleum oils Most Important.
they are different in ways that make it
less likely that a spill of vegetable oil
or animal fat will cause the same kind
of environmental damage as wou]d a
petroleum oilspill. For example, vege-
table oils and animal fats contain none
of the toxic components of petroleum
oil
CONGRESSIONAL RECORD — SENATE
This is not to suggest that a spill of
vegetable oil or animal fat will have no
adverse environmental impacts. Enpe-
rience has shown to the contrary, espe-
cially in the case of the Blue Earth
River spIll in Minnesota In the mid-
1960’s, Here it is important to note that
HR. 436 would not provide an exemp-
tion for carriers of vegetable oil or ani-
mal fats. They still would be subject to
a mandatory mufflmh financial re-
sponsIbtUt3’ requirement under OPA-
90. -
Thus, ER. 436 will lend more ration-
ality to the application of OPA-O0
while maintaining the fundamental in-
tegrity of the act’s purpose and ap-
preach. I commend my colleagues in
the House for recognizing an oppdr-
tunity to improve the implementation
of an environmental statute.
Finally, as chairman of the Environ-
ment and Public Works Committee, let
me say that I appreciate the willing-
ness of all Benato:n to expedite action
on this bill. Without nns-nltnouB con-
sent, ER. 436 would have been referred
to the Committee on Environment and
Public Work . My review of the bill has
convinced me that It is a straight-
forward. commonsense piece of legisla-
tion on which committee hearings are
unnecessary and to which I can lend
my support.
Mr PRESSLER. Mr. President, I
urge my colleagues to support the pas-
sage of ER. 436, the Edible Oil Regu-
latory Reform Act. Passage of this
measure is long overdue.
The problem this measure would ad-
dress Is how Federal agencies regulate
the shipment of edible oils, as com-
pared with toxic oils. Action Is needed
because agencies currently do not
make a distinction between these two
kinds of oils. Unless we pass HR. 436.
we face a potential loss in agricultural
exports and diminished farm income.
This Issue is not new to, this body.
Last year, I joined Senator LUOAR and
Senator }LAR)aN in sponsoring similar
legislation that passed the Senate but
did not become law.
As a result, earlier thIs year. I joined
Senator LIJOAR and 14 other Senators
in Introducing S. 679, the Senate coun-
terpart to H.R 436. By passing Hit. 436,
we irruned.tately c .n clear this bill for
the President’s signature.
The bill is simple and very straight-
forward. Under HR 436, regulatory
agencies would be required to establish
separate standards governing ship-
ments of edible ollseeds and shipments
of toxic oils, such as petroleum. Pres-
ently, Federal agencies enforce the Oil
Pollution Act of 1990 In a manner that
treats animal fats and vegetable oils in
the same way as toxic oils
Mr. President, this kind of enforce-
ment was never congressional intent.
The bill we are considering today
would state clearly to Federal agencies
that edible oils are not to be treated In
the same manner as toxic oils. How-
ever, let me be clear Under no cir-
cumstance would this bill change the
Oil Pollution Act of 1990 as it relates to
toxic oils
November 2, 1995
This bill has strong support. I ask
unanimous consent that a list of orga-
nizations supporting the measure be
printed in the BncoP.D at this point.
There being no objection. the lint was
ordered to be printed in the RECORD. as
foUows:
OROAIITZATIONS sirppoeru o AsoMAL FAn
VEoSrABLZ On. AD T
Aixierlcan Bakers As ocl&tiOn.
American Crop Protection Association.
American Feed Indusiry Association.
American Frozen Food Institute.
American Meat Institute.
American Soybean AssociatlOB-
Beer Institute.
Biscuit and Cracker Manufacturers’ Asso-
ciation.
Chicago Board ci Trade.
Choeclate Manufacturers Association.
Corn Refiners As oclatAon.
Flavor & Ex*z’act Manufctux ’ers’ Associa-
tion. - -
Food Induliry EnvironmelitAl Council.
P004 Marketing Institute.
Fragrance Material AssociatIon.
Grocery Manufacturers ci America-,
Independent Bakers Association.
Institute of Shortening and Edible Oils.
Intonational Dairy Foods AssociatioD.
National American Wholeaale Grocers
Asm.
National AssodatloS of Margarine Manu-
facturers-
National Broiler Council.
National Cattlemen’s Association
National Confectioners Association.
National Corn Growers Association.
National Cotton Council of America.
National Cottonseed Products Association.
National Council of Farmer Cooperatives.
National Fish Meal & Oil Association.
National Fisheries Institute.
National Food Processors Maoclation.
National Grain and Feed Association.
National Grain Trade Council.
National I dnainal Transportation
League
National Institute of Oilseed Produote.
National Oliseed Processors Association.
National Pasta Asaoclatlofl.
National Pork Producers Council.
National Randerers Association.
National Soft Drink Association.
Natiada] Snnflower Association.
National Turkey Federation.
North American Export Grain Association
Snack Food Association.
U.S. Canola Association.
Mr. PRESSLIER. The need for H R.
436 is compelling. Without action, we
are dln ’tlnlshlng ina IvertentlY agricul-
tu.ré.l exports. In addition. e”dsting reg-
u.lationa could have a chilling effect on
the development of new crops and new
uses of crop production.
Farm exports are nearing all time
highs. The future for ollseeds Is equally
bright However, current enforcement
of the Oil Pollution Act works against
this progress. It baa become clearly
evident that existing regulations would
seriously impact exports of U.S. agri-
cultural commodities, especially vege-
table oils and animal fats. Unless we
pass this bill, the U.S. animal fat and
vegetable oil Industries are faced with
lost export sales of more than $125 mil-
lion. It is a critical time for oilseed
crushers, who are operating at peak ca-
pacity with the new oilseed crop. Los-
ing export markets could lead to an
oversupply situation that could cut the
-------
Nouember 2, 1995
value of the U.S. soybean crop by more
than $1 billion.
New crops and new lndustria.i uses for
agricultural raw materials mean great-
er -demand for farm commod.itles. New
industrial crops allow farmers to diver-
sify their farming systems and Income
sources, Improve crop rotations and re-
duce reliance on government conimod-
Ity programs.
Jobs and Income would be generated
as new crops are taken from the farm
gate to the processors and on to the
wholesalers and retailers The predorni-
nant post-farming activity would be In
the transportation, manufacttiring, dis-
tribution and support sectors of farm
states.
New crops to grow In South Dakota
are likely to be edible ollseeds. The
most likely candidates are crambe. In-
dustrial rapeseed and canola. They
could complln ant South Dakota’s pro-
duction of suzLilowers, which is a major
Industry in xny state. Production In
1994 was valued at nearly $150 million.
Most of the sunflower production in
South Dakota Is for oil, and at least 40
percent of the sunflower production In
South Dakota Is exported.
In summary. Mr. President. there is a
great need for this bill to become law.
The bill simply would put common
sense into existing regulations and
would help those regulations come Into
line with Congressional Intent. And the
winners out of all this are our farmers
and ranchers. I urge passage of H.R.
436.
Mr. LUGAR. Mr. Prslden I am
pleased. to support passage of ieglsla-
tion to encourage regulatory common
sense. Senators ItESSLER. RABKU4. and
others joined me in Introducing the
Senate version of the Edible Oil Regu-
latory Reform At (S. 679) on April 6. I
am pleased that the House approved its
version of this bill (H.R. 436) on Octo-
ber 10. and urge my colleagues to sup-
port Senate passage.
This legislation will correct two
problems: First, the regulation of edi-
ble oils In a manner similar to toxic
oils like petroleum, and second, the re-
quirement that Certifications of finan-
cial Responsibility (COFRJ accompany-
ing vessels carrying edible oils equal
those of vessels carrying toxic oils.
This bill Is similar to legislation which
passed Congress last year. but was not
given final approval.
in response to the Exxon Valder oil-
spill In 1990, Congress passed the Oil
Pollution Act of 1990, which requires
several Federal agencies to enhance
regulatory activities w]t.h regard to the
shipping and handling of hazardous
oils
In 1993, the Transportation Depart-
ment proposed regulations to guard
against oil spills, and require response
plans If spills did occur DOT proposed
to treat vegetable oils—that is, salad
olls-—in the same way as petroleum.
Among other things, salad oils would
have been officially declared hazardous
materials, with all the regulatory re-
quirements and extra costs which that
designation entails.
CONGRESSIONAL RECORD — SENATE
This was a cl slc example of regu-
latory overreaching, Vegetable oil, of
course, Is different -from petroleum.
Vegetable oil processors thought It en-
tirely appropriate that they undertake
response plans to guard against major
spills
The industry did not argue that they
should be example from regulation.
The Industry argue that regulators
should take into account obvious dif-
ferences—in toxicity, biodegradability,
environment-al persistence and other
factors—between vegetable oils on the
one hand, and toxic petroleum oils on
the other.
Secretary Pens eventually agreed
with us and prompted modification of
DOT’r position. However, he does not
have jurisdiction over all agencies with
a role In regulating oil spills. More re-
cently, the 1Jtdu8try has been working
with other 5genciea which have a role
In regulating oils and ensuring ade-
quate financial responsibility In the
event of a spill.
No one is any longer proposing to
call salad dressing or mayonnaise haz-
ardous material, but agencies are re-
quiring that spill response plans for
vegetable oils be quite similar to those
for petroleum.
The most recent problem arose in De-
cember, 1994, when Coast Guard regula-
tions subjected vessels carrying vege-
table oil to the same standard of liabil—
Ity and financial responsibility as su-
pertankers carrying petroleum. On De-
cember 28, 1994, the Coast Guard began
requiring the same standard—a $1,200
per gross ton or $10 million of financial
responsibility—on vessels carrying veg-
etable oil and petroleum oil In U.S. wa-
ters or calling at U.S. ports. On July 1,
similar standards were phased in on
barges operating on U.S. na gable wa-
terways
Prior to December 28, a COFR re-
Quirement of $150 per gross ton applied
to all vessels regardless of the hazard-
ous nature or toxicity of the cargo. The
vegetable oil Industry does not seek a
return to this earlier standard, but
seeks regulation under a $600 per gross
ton COFR requirement that Cons.
Guard regulations apply to vessels car-
rying other commodities. It is worth
noting that this new financial respon-
sibility standard for edible oil would be
four times the COFR required on toxic
petroleum oils prior to December 28,
1994.
Application of the most stringent
standard to vessels carrying vegetable
oil adds to the cost of transporting
U.S. vegetable oil to foreign markets.
The additional costs of these burden-
some regulations are passed back to
farmers In reduced prices for commod-
ities. Consumers may also bear a bur-
den In higher food prices in addition,
there have been instances In 1995 where
this unjustified additional cost has
made U.S vegetable oil uncompetitive
and has resulted in lost exports.
H.R. 436 would not exempt vegetable
oil shipments from COFR requirements
or regulation. It would only apply a
S 16619
more appropriate standard of financial
responsibility to vegetable oil, similar
to that applied to vessels carrying
other com.rnoditles.
The scIentific data collected to date
Indicate that the animal fats and vege-
table oils Industry baa an excellent
spill history justifying differentiation
of these edible materials from toxic
oils. Specifically, these products ac-
count for less than one half of one per-
cent of all oil spills in the U.S. In addi-
tion, most spills of these products are
less than 1, gallor.s.
The Industry seeks a separate cat-
egory for vegetable oils. This Is as
much because of scientific differences
in the oils as It Is for economic rea-
sons. There Is no reason why non-toxic
vegetable oils must be In the same cat-
egory as toxic oils.
Second. the Industry seeks response
requirements that recognise the cUt-
brent characteristics of animal fats
and vegetable oils within this separate
category. A separate category without
separate response requirements reflect-
ing different toxicity and
biodegradability is nothing more than
a hollow gesture. -
The Senate and House of Representa-
tives last year passed virtually Iden-
tical legislation on different legislative
vehicles to ensure that both of these
objectives are accomplished, Under
H.R. 436, the underlying principles of
the Oil Pollution Act of 1990 would re-
main unchanged with the language to
require differentiation of animal fats
and vegetable oils from other oils. The
House approved this language twice
last year as part of H.R. 44 and H.R.
4852. The Senate passed the bill as S.
2559. Sines final action on this legisla-
tIon was not completed in the last Con-
gress. it Is before the Senate again.
This bill does not tell the Coast
Guard or any other agency what it
must put into regulations, The legisla-
tIon simply says that In rulemaking
under the Federal Water Pollution
Contrbl Act or the Oil Pollution Act of
1990, these agencies must differentiate
between vegetable oils and animal fats
on one hand, and other oils including
petroleum on the other.
The bill specifies that the agencies
should consIder differences in the phys-
ical, chemical, biological or other prop-
erties and the effects on human health
and the environment effects of these
oils.
This bill does not exempt vegetable
oils from the Oil Pollution Act of 1990.
It is a modest effort to encourage corn-
mon sense In an area of regulation that
has not always been marked by that
characteristic. I hope my colleagues
will support the legislation.
Mr. HARKIN. Mr. President, I am
pleased that we have been able to work
out the details on this legislation to
clear the way for Its passage today. It.
seems that we have been working on
this Issue for quite a long time, and It
Is gratifying to reach this resolution.
Certainly this bIll will provide a sig-
nificant measure of regulatory relief to
-------
S 16620 CONGRESSIONAL RECORD—SENATE
those in the food and agriculture Indus- Mr. DOLE. Mr. President, I ask unan-
try who have been affected by the im- imous consent that the bill be deemed.
position of regulations o i the storage, read the third time a id passed, as
transportation, and handling of edible amended, the motion to reconsider be
oils that are really designed for hazard- laid upon the table, and that any state-
ous petroleum oils. monte relating to the bill appear at the
Senator Luosit and I Introduced leg- appropriate place In the RECORD.
Islation to resolve this instance of The PRESID G OFFICER. Without
necessary regulation a year and a b j objection, it Is so ordered.
ago. Unfortunately, we were not able So th . bill (H.R. 436). as amended.
to get the measure passed In the same paa8ed. __________
bill by both the House and Senate last
fall, although It did pass both houses In
different bills. I was pleased to join
Senator Luo tn again this year in re-
introducing the legislation along with
Senator P1tnssL . I am also grateful
for the help provided by Senator
CEAPRE and Senator BAUCUS in work-
ing out modifications to the bill to en-
sure that It will adequately address the
problems we are seeking to solve with-
out potentially creating unintended or
unforeseen problems.
This legislation Is simply designed to
bring common sense to Federal regula-
tions Involving the transportation.
handling, and storage of edible oils.
Common sense tells us regulations per-
taining to these substances need not.
and should not, be as stringent as those
applicable to other oils,, such as petro-
leum oils or other toxic oils, which
pose a far more significant level of
health, safety, and environmental risk
in the event of a spill, discharge, or
mishandling. M 1mai fats and vegeta-
ble oils are essential components of
food products that we consume every
day. The scientific evidence Indicates
they are not toxic In the environment.
are essential nutritional components,
are biodegradable, and are not persist-
ent In the environment.
Regrettably, a commousense ap-
proach to regulation of animal fats and
vegetable oils has been more difficult
to achieve than one might think, as
the experience under implementation
of the Oil Pollution Act of 1990 dem-
onstrates. Although some of the prob-
lems have been worked out, there still
exists In the Industry substantial un-
certainty whether regulators will prop-
erly differentiate edible fats and oils
from retroleum and other toxic olls.
This legislation will reiiolve the uncer-
tainty and eliminate the coBte associ-
ated with this kind of unnecessary reg-
ulation.
The bill will not exempt edible oils
from regulation, but will only require
that regulators differentiate animal
fats and vegetable oils from other oils,
Including petroleum oil, considering
differences In physical, chemical, bio-
logical, and other properties, and In
the effects on human health and the
environment, of the classes of oils The
bill will do no more than alleviate the
substantial threat of overregulatlon of
animal fats and vegetable oils in ways
that clearly could not have been In-
tended by Congress It will bring some
reasonableness and clarity to issues
that are now characterised by confu-
sion and uncertainty
November 2, 1995
ORDER ,TO PROCEED TO H.R. 1883
ON NOVEMBER 7, 1995
Mr. DOLE. Mr. President, 1 ask unan-
imous consent that the Senate proceed
to H.R. l 3, the ban on partial birth
abortions on Tuesday, November 7, at
11a.m.
The PRESIDING OFFICER. Without
objection, it is so ordore&
MESSAGES FROM THE HOUSE
At 11:38 a.m.. a’ message from the
House of Representatives, delivered by
Ms. Goetz, one of its reading clerks, an-
nounced that the House has passed the
following bill In which it requests the
concurrence of the Senate:
R.R. lam. An act to amend title 18. United
States Code, to ben psrtial-bfrth abortions.
At 5:05 p.m., a message from the
House of Representatives, delivered by
Mr. Rays, one of Its reading clerks, an-
nounced. that the House has passed the
following bill, in which It requests the
concurrence of the Senate:
LR. 2546. An act making appropriations
for the government of the District of Colum-
bia end other activities chargeable In whole
or in part against the revenues of said Dis-
trict for the fiscal year ending September 30,
1996, and for other purposes.
The message also announced that the
Speaker appoints the following Mem-
bers as additional conferees in the con-
ference on the disagreeing votes of the
two Houses on the amendment of the
Senate to the bill (H.R. 2491) to provide
for reconciliation pursuant to section
105 of the concurrent resolution on the
budget for fiscal year 1996: From the
Committee on Commerce, for consider-
ation of title XVI of the House bill, and
subtitle B of title VII of the Senate
amendment, and modifications corn-
mnitted to conference: Mr. HASTERT and
Mr. GREENWOOD.
The message further announced that
the House disagrees to the amendments
of the Senate to the bill (H.R. 2099)
making appropriations for the Depart-
ments of Veterans Affairs and Housing
and Urban Development, and for sun-
dry independent agencies boards, corn-
mlsalonr corporations, and offices for
f I - ‘ ending September 30, 1996,
and i other purposes, and agrees to
the conference asked by the Senate on
the disagreeing votes of the two Houses
thereon; and appoints Mr LEw s, Mr.
DnLAY, Mrs. VUcANOVICH, Mr. WALSH,
Mr. HOBSON. Mr. KNOLLENBERO. Mr
FRELINOHIIYSEN, Mr. NEUMANN. Mr
LIVtNGsTON, Mr. STOKES, Mr. MOLLO-
RAN, Mr CHAPMAN. Ms KA7rUR. and
Mr. OBEY as the managers of the con-
ference on the part of the House
MEASURES COMMITI’ED
Pursuant to section 312(b) of the Con-
gressional Budget Control and tm-’
poundment Act, the following bill was
committed as Indicated.
S 1372 A bill to amend the Social Security
Act to Increase the earnings limit, and for
other purposes, to the Committee on Fi-
nance
BILL READ FOR THE FIRST TIME—
H.R. l&
Mr. DOLE. Mr. President. I Inquire of
the chair If R.R. 1833 has arrived from
the House of Representatives?
The PRESIDING OFFICER. Yes, It
baa.
Mr. DOLE. Therefore, I ask for Its
first reading.
The bill (ILR. 1833) was read the first
time.
Mr. DOLE. I now ask for Its second
reading, and I object on behalf of the
Democratic leader.
The PRESIDING OFFICER. Objec-
tion Is heard. The bill will remain at
the desk to be read a second time fol-
lowing the next adjournment of the
Senate.
DAVID J. WHEELER FEDERAL
BUILDING
Mr. DOLE. Mr. President, I ask unan-
imous consent that the Senate proceed
to the immediate consideration of cal-
endar No. 211, S 1 )97.
The PRESIDING OFFICER. Without
objection, it. is so ordered.
The clerk will state the bill by title.
A bill (8. 1097) to designate the Federal
building located at 1550 Dewey Avenue,
Baker City. Oregon. as the “David J. Wheel-
er Federal Building.” and for other purposes.
The PRESIDING OFFICER. Is there
objection to the immediate consider-
ation of the bill?
There being no objection, the Sene.te
proceeded to consider the bill.
Mr. DOLE. Mr President, I asi c unan-
imous consent that the bill be deemed
read the third time, passed, the motion
to reconsider be laid -upori4 ie table,
and that any ststements ’ 1ating to
the bill be plactd at the appropriate
place In the RECORD.
The PRESIDING OFFICER. Without
oblection, It Is so ordered.
So the bill (S 109’?) was passed, as fol-
lows
S 1097
Be tt enacted by the Senate and the Hou.ee of
itepiesentatwes of the Ur c1 Slates of Amenca
tn CollgTess assembled.
SECTION 1 DESIGNATION OF DAVID .J. WHEELER
FEDERAL BUILDING
The Federal building located at 1550 Dewey
Avenue. Baker City. Oregon. shall be known
and designated as the “David J Wheeler
Federal Building”
SEC 2. BxFERENCES.
Any reference in a law, map, regulation.
document, paper, or cther record of the Unit-
ed States to the Federal building referred to
In section 1 shalt be deemed to be a reference
to the ‘David J Wheeler Federal Building”.
-------
D1318
CONGRESSIONAL RECORD—DAILY DIGEST
November 7, 1995
adoption without intervening motion or demand for
ision of the question except 90 minutes of debate
ally divided and controlled by the chairman and
ranking minority member of the Committee on
International Relations. Page H11807
Edible Oil Regulatory Reform Act: House agreed
to the Senate amendments to HR. 436, to require
the head of any Federal agency to diff renriate be-
tween fats, oils, and greases of anima1, marine, or
vegetable origin, and other oils and greases, in issu-
ing certain tegulations—cleaxing the measure for the
President. Pa;ee H11a07-08
Recess: House recessed at 9:40 and reconvened at
11p.m. Page H11827
Meeting Hour: House agreed to meet at 11 a.m. on
Wednesday, November 8. Page H11827
Senate Messages: Message received from the Senate
today appears on page H11787.
Quorum CalIs—Votes: Four yea-and-nay votes de-
veloped during the proceedings of the House today
and appear on pages H11804, H11805,
H11805—06, and H11806. There were no quorum
calls.
Adjournment: Met at 12:30 p.m. and adjourned at
11:01 p.m.
mmittee Meetings
MISCELLANEOUS MEASURES
Committee on Resources: Held a hearing on the follow-
ing bills: HR. 2560, to provide for the conveyances
of certain lands in Alaska to Chickaloon-Moose
Creek Native Association, Inc., Ninilchik Native As-
sociation, Inc., Seldovia Native Association, Inc.,
Tyonek Native Corp., and Knikatnu, Inc. under the
Alaska Native Claims Settlement Act; and H.R.
2561, Glacier Bay National Park and Preserve
Boundary Adjustment Act. Testimony was heard
from the following officials of the Department of the
Interior: George T. Frampon, Jr., Assistant Sec
retary, Fish and Wildlife and Parks; arid John D.
Leshy, Solicitor; and public witnesses.
GIFT REFORM
Committee on Rules: Concluded hearings on H. Res.
250, to amend the Rules of the House of Represent-
atives to provide for reform. Testimony was
heard from Representative Johnson of Connecticut;
and public witnesses.
FURTHER CONTINUING APPROPRIATIONS
Committee on Rules: Granted a rule, by a vote of 7 to
2, providing one hour of debate in the House on
H.J. Res. 115, makin further continuing appropria-
tioris for the fiscal year 1996. The rule provides for
the immediate consideration of the joint resolution,
without the intervention of any point of order. The
rule provides one motion to recomznit,-which may
indude instructions only if offered by the Minority
!..eader or his desi ,nee. Testimony was heard from
Chairman Livingston and Representatives Istook,
Thomas, Gekas, Shays, Smith of Michigan, Obey,
and Skaggs.
CONFERENCE REPORT—ALASKA POWER
ADMINISTRATION ASSET SALE AN])
TERMINATION ACT
Committee on Rules: Granted a rule, by voice vote.
waiving all points of order against the conference re-
port to accompany S. 395, Alaska Power Adminis-
tration Asset Sale and Termination Act, and against
its consideration. The rule provides that the con-
ference report shall be considered as read. Testimony
was heard from Chairman Young.
SHORT-TERM DEBT LIMIT EXTENSION
Com .rtü:tee on Ways and Means: Ordered reported,
amended, H.R. 2586, to provide for a temporary in-
crease in the public debt limit.
Joint Meetings
ALASKA POWER ADMINISTRATION SALE
ACT
Conferees on Monday, November 6, agreed to ffle a
conference report on S. 3 5, to iluthoxize and direct
the Secretary of Energy to sell the Alaska Power Ad-
ministration, and to authorize the export of Alaska
North Slope crude oil.
MISCELLANEOUS MEASURES
Comm:uee on Resources: Subcommittee on Fisheries,
Wildlife and Oceans approved for full Committee
action the following bills: H.R. 1741, for the con-
veyance of the C.S.S. Hunley to the State of South
Carolina; H.R. 2243, amended, Trinity River Basin
Fish and Wildlife Management Reauthorization Act;
- H.R. 2100, amended, to direct the Secretary of
interior to make technical corrections to maps
i...ating to the Coastal Barrier Resources System.
COMMI’ITEE MEETINGS FOR
WEDNESDAY, NOVEMBER 8, 1995
(Coinm,uee matings are open ilnkri osherwue :,,Izca:ed)
Senate
Committee on Govcrn mental Affa:ri, Subcommittee on
Oversight of Government Management and The District
of Columbia, to hold he rings to examine the courthouse
construction program, 9 a m., SD—342.
-------
November 7, 1995
REPORT ON RESOLUTION WAIVING
POINTS OF ORDER AGAINST CON-
FERENCE REPORT ON S. 395,
ALASKA POWER ADMINISTRA-
TION ASSET SALE AND TERMI-
NATION ACT
Mr. McWNIS, from the Committee
on Rules, submitted a privileged report
(Rept. No. 104—314) on the resolution (H.
Res. 256) waIving polnt.e of order
against the conference report to ac-
company the bill (S. 395) to authorize
e.nd direct the Secretary of Energy to
sell the Alaska Power Administration,
and to authorize the export of Alaska
North Slope crude oil and for other
purposes, which was referred to the
Rouse Calendar and ordered to be
printed.
MIDDLE EAST PEACE_.FACILITA-
TION ACT OF 1994 s a N8ION
Mr. OILMAN. Mr. Speaker. I ask
unanimous consent that the Comnith-
tee on International Relations be dis-
charged from further cons Ierat1on of
the bill (ER. 2589) to extend authori-
ties under the Middli East Peace Fa-
ciUtation Act of 1994 untIl December
31. 1886. and for other purposes, and I
ask for Its Immediate consideration in
the House.
The Clerk read the title of the bill.
The SP IAXER pro tempore (Mr.
SHATS). Is there objection to the re-
quest -of the gentleman from New
York?
There was no objection.
The SPEAKER pro tempore. The gen-
tieman from New York fMr. GU tN) 18
recognized for 1 hour.
Mr. OILMAN. Mr. Speaker, I yield
myself such time as I may consume.
Mr. Speaker, ER. 2589 temporarily
extends the Middle East Peace Facili-
tation Act of 1994 whIch expired on No-
vember 1, 1995, That act was previously
extended by Public Law 10417, by Pub-
lic Law 104 , and by Public Law 10430.
H.R. 2589 extends the act until Decem-
ber 31, 1995, and includes the transition
provision to permit the President to
immediately exercise the authorities
granted him l y this extension.
Mr. Speaker. I ask my colleagues to
support the measure.
Mr. OILMAN. Mr. Speaker, I yield
back the balance of my time. -
The SPEAKER pro tempore. The
quest1on 18 on the engrossment and
third reading of the bill.
The bill was ordered to be engrossed
and read a third time, was read the
third time, and passed, arid a motion to
reconsider was laid on the table.
APPOINTMENT OF CONFEREES ON
ER. 971, CUBAN LIBERTY AND
DEMOCRATIC SOLIDARiTY
(LIBERTAD) ACT OF 1995
Mr. OILMAN. Mr. Speaker, I ask
nyui.nIm 5 consent to take from the
Speaker’s table the bill (ER. 927) to
seek international sanctions against
the Castro government in Cuba, to plan
CONGRESSIONAL RECORD — HOU SE
for support of a transition vovernment
leading to a democratically elected
government in Cuba, and for other pur-
poses, with Senate amendments there-
to, disagree to the Senate amendment,
and agree to the conference asked by
the Senate.
The SPEAKER pro tempore. Is there
objection to the request of the gen-
tieman from New York? The Chair
hears none, and without objection ap-
points the following conferees: Mr. G IL-
MJd’ , Mr. BuR’1 M1 of Indls.na, Ms. Roe-
LaurriNEN, and Messrs. KU G , DIAZ-
BALABT. HAMILToN, G JDKN8ON,
TonnicxuJ. and MENKNnEZ.
There was no objection.
MAKING IN ORDER ON WEDNES-
DAY, NOVEMBER 8, 1995, CONSID-
ERATION, OF SEN ‘..TE CONCUR-
RENT RESOLUTION 31. HONORING
THE LIFE AND LEGACY OF
YITZHAX RABIN
Mr. GILMAN. Mr. Speaker, I ask
unanimous consent that it be in order
on Wednesday, November 8, 1385. to
consider Senate Concurrent Resolution
31 In the House, and that the previous
question be considered as ordered on
the resolution to Its adoptlou without
intervening motion or demand for divi-
sion of the question, except 90 mInutes
of debate equally divided and con-
trolled by the chairman and ranking
minority member of the Committee on
International Relations.
The SPRAKER pro temporo. Is there
objection to the request of the gen-
tleman from New York?
There was no objection.
EDIBLE OiL REGULATORY
REFORM ACT
Mr. BILBRAY. Mr. Speaker, I ask
unanimous co nt t take from the
Speaker’s table the bill (ER.. 438), to
require the head of any Federal agency
to differentiate between fats, oils, and
greases of e ninij .1 , marine, and vegeta-
ble origin, and other oils and greases,
in Issuing certain regulations, arid for
other purposes, .wlth Senate amend-
ments thereto, and concur in the Sen-
ate amendment.
The Clerk read the title of the bill.
The Clerk read the Senate amend-
ments, as follows:
Page 2, lineS, after “to” Insert “the liwas-
portatlon, storage discharge, r leaae. emis-
sion, or disposal of’.
Page 2. line 9, strIke out “any” the second
time it appears and Insert
Page 2, line 18, strIke out “such” end In-
sert “that”.
Page 2, lIne . strike out “di erent” the
Srat time it appears.
Page 2, lIne , strike out “as provided”
end Insert: ‘based on ons1deratlons”.
Page 3. line 12, strIke out “carrying oil In
balk as cargo or cargo residue”.
Page 3, line 13, after “carried” insert “as
cargo”.
Mr. BILBRAY (during the reading).
Mr. Speaker. I ask unanimous consent
that the Senate amendments be consid-
ered as read and printed In the RECORD.
H 11807
The SPEAKER pro tempore. Is there
objection to the request of the gen-
tleman from California?
Mr. DE LA GARZA. Mr. Speaker, re-
serving the right to object, I would like
to yield to the gentleman from Califor-
nia (Mr. Bu .BBAY) so that he could tell
us the changes made In the Senate ver-
sion as related to the original House
revision.
Mr. EILBRAY. Mr. Speaker. will the
gentleman yield?
Mr. DE iJ GAP.ZA. I yield to the gen-
tleman from California,
Mr. BILBRAY. Mr. Speaker, the Sen-
ate baa Included the reference In the
first section A to include the transpor-
tation, storage, discharge, and release
of em4 iona or disposal thereof, which
actually was pert of our original blU
that came out of committee. They have
retained the other sections, except for
In reference to cargo and transpor-
tation.
Mr. D8 LA GARZA. Mr. Speaker, I
t.hnnk the gentleman-
Mr. Speaker. In behalf of the Com-
mittee on Agriculture, we have no ob-
jection.
Mr. EWiNG. Mr. Speaker, today the U.S.
House 01 RepresentatIves has an opportunity
to I k y remedy one of the uiinčcesswy and
9IogIcal Federal regulations that led to the cre-
ation of corrections day. HR. 438, the Edible
08 Regulatory Reform Act, which I Introduced
salty thIs year, along with Ms. DANNER of M is-
soul, will restore iimon sense to the Fed-
end regulatory eea by requiring Federal
agencies to recogttze the ob .lous differences
between edible oils and true oils when issuing
aid promulgating regiAabons.
In ac*9tion to dug Ms. DAt ER, I also
watt to thw i Speaker Goicrecli, who de-
serves edal credit for establishing the car-
motions day proeees which elo s the Con-
gress to take expedited action to correct w-
neceesaty, and sometime foolish, regulations
which twit ow economy and frustrate the
American pitilic. LasVy , I ward to thw* Chair-
man BullY, Chairman ROBERTS, Chairman
S ’RJSTER, and the corrections day task force
for al of their cooperation and assistance,
wt i t allowed the House to reeclu this
H.A. 438, and send the biff to the
President for his slgnatwe.
The agiici4b.ual oils covered by H.R. 436
are nontade, nataxal products, like cociang
and salad oils, wt h many of us eat every
day. Their amnecessailty stringent regulation
forces producers, et pers, end maraulacturers
to conçly with costly and counterproductive
requlremenb, withold provIding any additional
measare of protection to the ecvnronment or
enhancing the health and saieiy of ow CI II-
rena.
Sinçily stated, H.R. 436 wtIl require Federal
agencies to differentiate between edible oils
and petroleuimbased oils when preniulgating
regulations under the Oil Podutlon Act of 1990.
This corirnon sense legislation does not
change or weaken the undertying pnnciples of
the 04 Protection Act 011990 Of other related
statutes take the Clean Water Act.
In passUig H.R. 438, Congress Is sending a
strong message to Federal regulators. It Is the
Congress’ Intent for Federal agencies to rec-
ognize, and not Ignore, the differences be-
tween animal tate aid vegetable cils aid all
-------
1111808
oilier oils, Including toxic petroleum at Spe-
cificaly, H.ft 436 requires Federal agendas
charged w ith regulation of the transportation ,
s crage, discharge, release, emission , or die-.
— of oil to establish a separate class tot
sitS fats and vegetable oils and to consider
the dffuueioes In characteristics of these edi-
ble ode and other types of oIls.
While an agency may comilder the charao-
tents of artS fats and vegetable dl arid
detaiiihie that for a particular regulation no
differentiation is re Ared, the agency may criy
do fl-mt where there are rio differenoes N i the
d’mracteilsbcs that are relevant to that regula-
don. For exançle, In the case at’ regiAatlone
dea*ig with oil spIll response, axanon sense
— Vet the non-toxic, blodeble, sit
norperslsla.t characteristics of erimal -. s
and vegetable oIls be recxignted and reflected
Ni the ad spin response regulations. It eeerte
clear to ever .tody except Federal regulators
that the Oil Pollution Act was designed to re-
dite the risk of, flreve the response to, end
mirinte the lnç of cataatrcpllc oil ept
Sce the one In Prlnoe WIllarn Sa nd, Alaska—
not to regulate edible a ISbsal prorta
In f , vegetable ode teve been used to
— clean op beaches fowled with peVolet
and vegetable ode are also being explored as
si-tetltte lubricants for machinery In environ-
— sensitive area This not only dam-
onstratee the significant dhfferenoe between
vegetable ode end petroleum oIls, It hlgISlŘds
the fad that animal fats and vegetable oils do
not pose the same risk to human health and
the envlrorwnent, and should net be treated
me same way.
The financial responstllity relief provided hi
H.R.-436. as amended, applIes only to exdu-
sive shippers of animal fats and vegetable
oils, end It brings Ir .aby Insurame and
bonding requirements back into brie with the
value of the product Like the rest of H.R. 436,
noting In lit section exempts edole oils
from all regulatory requirements. The net ef-
foci will be to place transporters of edible oils
on per with other shipments of nontoxlc prod-
fl, and It will allow U.S. agricultural oils to
be mere con-cetitive In world markets.
Although the House has already acted three
times cr1 this Issue In the 104th Congress.
HR. 436 should be adopted as a stand-alone
measure because similar language was adopt-
ed twioe In the House and once in the Serials
during the 103rd Congress, only to see the
underty,ng bills the at the end of 1994.1 know
of no oblection to the substance of HA 438
from any Mentor of this body, or from the ad-
rnnlstrat,on. H.R. 436 passed on voice votes
in both the Connerco and Agriculture Com-
rnzttees, and in th- House on October 10. In
fact, judging from the bipartisan mix of co-
sponsors, HR. 436 en)oys broad support and
is atisolutefy non-controversial.
Agan, Mr Speaker, I want to thank all of
the Menters—from both sides of the aisle—
who have worked hard to see H.R. 436 en-
acted, for their Input and cooperation on this
issue. It is time to finally solve this problent
I urge my colleagues on both sides of the
aisle to support H.R. 436.
Mr SHUSTER. Mr. Speaker, I rise In sup-
port ol H R 436, the Edible Oil Regulatory Re-
form Act, as amended by the Senate. The leg-
islabon passed the House, as part of the Cor-
rections Day Calendar, on October 10, 1995.
The Senate passed the bill with minor amend-
merits on Noventer 2, 1995
CONGRESSIONAL RECORD — HOUSE
The bID embodies the overatieln-Ing send-
meet that Congress can arid should ritaqed
coninon sense Into venous Federal regula-
Sons.
H.R- 438, requIres that Federal regulations
differendes between anhi fats and vegota-
tile oils on the ore hard, arid petroleum prod-
t on the others It does not exen!* arsrrS
fats end vegetable oIls fran any regulatory re-
qLlrament The till simply requIres Federal
regrmnini’s to consider the different physical,
blologhal . and chen*ai properties of these
ode as opposed to petoleisn based oils.
The Transportation and lnfrastiu*s-e Corn-
rifles has afready passed language very sin-b-
ier to HA 436 fri two separate corlexts seo-
lIen 413 oI.H.R. 1381, the Coast Guard Au-
thortxsllon Ad for fiscal year 1996, and see-
lIon 506 of H.R. 961, the Clean Water Amend-
marts of 199& Both bills subsequent passed
the House of Representatives by wide mar-
gins.
, Over the test saverS years, the Connlttee
l — testimony and other data lital-
Nc Vet the need for Ut legisaltion stems pri-
eaSy from the current or proposed regula-
boris under the CII Polutlon Act of 1990 and
the Clean Water Act—statutes which are
under the Misc ldlon of the Transportation and
lnlmfltn Cent
when Congress passed the Oil Pollution Ad
of 1990, N -i the wake of the Lava, Voider oil
spill, the focus was en crude oil and other pa-
toletin products, not on animal fats or vege-
table ella. Although the doflnltion of oil under
both the CII Pollution Act and the Clean water
Act can tie read to Include these products,
regulating them under standards developed for
petroleum oils make no sense. This is a prUne
example of the ldnd of regulation run amok
that has given rise to the corrections calendar.
This Is a corrinon sense dorm. It does not
say that sumS fat and vegetable oil should be
exempt from regulation. It merely requires
Federal agencies to take a second look at
these substances and regulate them according
to theIr relative threat to the environment
We behave substances that are biodegrad-
able, nooperslstent In the environment, and
are essentially components of human and
wildilfe diets should not be treated the same
as crude oIl. Ira that simple. In addition, these
products are shIpped In nurch smaller quan-
bliss than psb’oletan based products and they
have a safely record Vet Is the envy of the
manne Industry. Only 4 tenths of 1 percent of
the spIlls from 1986—lW 2 werp from animal
fats or vegetable oils -
I would also add a note of thanks to the
bill’s prinwy sponsors. Representative EWiNG
and Representative DANNER, and other sup-
porters, for their efforts Because it was draft-
ed in a ganenc, agency-wide manner, H.R.
436 was initially referred to the Commerce
and Agncutture Convnlttees. All of us know,
however, that the pnmary purpose 01 the bill Is
to address problems under the Oil Pollution
Ad and the Clean Wator Act, which are under
the iunsdidlon of the Transportation and Infra-
structure Committee. Therefore, I also want to
thank the leadership of both Committees for
their cooperation in getting this important leg-
islation to the House floor, through the other
body, and—I hope—on its way to the Presi-
dent.
I urge my colleagues to support the bill
Mr DE LA GARZA. Mr. Speaker, I
withdraw my reservation of objection
November 7, 1995
The SPEAKER pro tempore. Is there
objection to the request of the gen-
tieman from Texas?
There was no objection.
A motion to reconsider was laid on
1 ,tabIe. - •1
GENERAL LEAVE
Mr. SILBRAY. Mr. Speaker, I ask
unanimous consent that all Members
may have & legislative days In which to
revise and extend their remarks and In—
dude extraneous material on the bill,
KR. 436, and the Senate amendments
thereto. -
The SPEAKER pro tempers. Ta there
objection to the request of the gen-
tieman from California?
flare was no objection.
ANNOUNCEMENT OF INTENTION TO
OFFER MOTION TO 1 DiSTRUCT ON
KR. 2126
DKPAR1 NT 0 ? D0ia152 *naorarattows
LOT, MN
(Mr. METCALF asked and was given
permission to address the House for 1
minute and to revise and extend his re-
marks and Include extraneous mate-
riaL) - .
Mr. METCALF. Mr. Speaker, I rise to
ask unanimous consent to address the
House for 30 seconds, and to revise and
extend my remarks.
Mr. Speaker, pursuant to the provi-
sions of rule 28, clause 1(c), I am an-
nouncIng that tomorrow I will offer a
motion to Instruct the House conferees
on the bill. Hit. 2126, to insist on sec-
tions 8102 and 8111 of the House-passed
bill.
The text of the motion Is as follows:
Mr. MxTOALF moves that the managers on
the pert or the House at the conference on
the disagreeing votes of the two houses on
the bill KR. 2128 be instructed to insist on
sections numbered 8l 2 and 8111 of KR. 2128
as passed by the Rouse restricting the de-
ployment of Vatted States Armed Forces In
the fonner Yugoslavia.
0 1900
SPECIAL ORDERS
The SPEAKER pro tempers (Mr.
BtTNN of Oregnn). Under the 8peaker’s
announced policy of May 12, 1995, and
under a previous order of the House,
the following Members will be recog-
nized for & m Inutes each.
IN MEMORY OF Y1TZRAK RABIN
The SPEAKER pro tempore. Under a
previous order of the House, the gentle-
woman from Connecticut [ Ms.
DFLauno) Is recognized for 5 minutes.
Ms. DxLAURO. Mr. Speaker, I am
deeply saddened by the tragic assas-
sination of Israel’s Prime Minister
Yltzhak Rabin I offer my sympathies
to the Rabin family, to the Israeli peo-
ple, and to all who mourn the loss of
this great man
Yltahak Rabin was an Israeli patriot
and courageous leader whose life will
-------
October 27, 1995
MEMORANDUM
SUBJECT: Edible Oil Regulatory Reform Act
FROM: Bob Kennc y
TO: Estelle Bulka, OSRE
Amy Legare, OSRE
David Lopez, OERR
Dana Stalcup, OERR
Attached for your Information are copies of H.R. 436, the
“Edible Oil Regulatory Reform Act,” as reported by the Agriculture
and Commerce Committees (printed bill) and as passed by the House
(Congressional Record version).’
H.R. 436 was passed by the House on October 10, 1995, under
the new “Corrections Day” procedures. As passed by the House, the
bill would generally require federal agencies in Implementing and
enforcing any regulation or Issuing any statutory
interpretation/guideline to differentiate between: (1) animal
fats/oils/greases and fish/marine mammal oils; and (2) other oils
and greases, Incudi-kg petroleum. The bill would also amend
sections 1004(a)(l) and 1016(a) of the Oil Pollution Act (OPA) to
limit the liability and financial responsibility requirements of
tank vessels carrying only animal fat or vegetable oil.
I will let you know if I learn of any action on this bill (or
a similar bill) by the Senate.
Attachments
1 Also enclosed are copies of the two committee reports on the
bill.
-------
D 1184
CONGRESSIONAL RECORD—DAILY DIGEST
October 10, 1995
House of Representatives
ha mber Action
Bills Introduced 5 public bills, H.R. 2452—2456;
1 private bill, H.R. 2457 were introduced.
Speaker Pro Tempore: Reazi a message from the
Speaker wherein he designates. Representative Everett
to act a.s Speaker pro cempore for today. Page 149745
Recess: House recessed at 12:59 p.m. and recon-
vened at 2 p.m. Page H974$
Resignation: Read a letter from Representative Mi-
neta wherein he announces his resignation as a mem-
ber of the One Hundred Fourth Congress effective
today. Page 149749
Edible Oil Regulatory Reform Act: On the call of
the corrections calendar, the House passed H R. 436,
to require the head of any Federal agency to difi ren-
tiate between fats, oils, and greases of animal, ma-
rine, or vegetable origin, and other oils and greases,
in issuing certain regulations. Pages 149750-69
Agreed to the Burr of North Carolina amendment
in the nature of a substitute. Pagee’H975 0-69
The Clerk was authorized to make technical and
conforming changes in the engrossment of the bill.
Page H9759
pensions: House voted to suspend the rules and
ss the, following measures:
Exempting certain VA health professionals: FIR.
1384, amended, to amend title 38, United States
Code, to exempt certain full-time health-care profes-
sionals of the Department of Veterans Affairs from
restrictions on remunerated outside. professional ac-
tivities; Pages 119759—61
Pay rates for VA nurse ane.rthet:sts: H.R. 1536, to
amend title 38, United States Code, to extend for
two years an expiring authority of the Secretary of
Veterans Affairs with respect to determination of lo-
cality salaries for certain nurse anesthetist positions-
in the Department of Veterans Affairs; and
Pages 119761—62
Veterans disability compensation cost of living adjust-
ment. H.R. 2394, to increase, effective as of Decem-
ber 1, 1995, the rates of compensation for veterans
with service-connected disabilities and the rates of’
dependency and indemnity compensation for the sur-
vivors of certain disabled veterans Pages H9762—64
Presidential Message—United States/German So-
cial Security Agreement: Read a message from the
President wherein he transmits the Second Supple-
mentary Agreement Amending the Agreement Be-
n the United States oí America and the Federal
Quorum Calls—Votes: No quorum calls or votes
developed during the proceedings. of the. House
today.
Adjournmenr Met at 12:30 p.m. and adjourned at
6:20 p.m.
Committee Meetings
MEDICARE PRESERVATION ACT
Committee on Commerce: Continued markup of H.R.
2425, Medicare Preservation Act of 1995.
Will continue tomorrow.
ELECTRONIC REPORTING STREAMLINING
ACT
Committee on Government Reform and Oversight: Sub-
committee on Government Management, Informa-
tion, and Technology held a hearing on the Elec-
tronic Reporting Streamlining Act of 1995. Testi-
mony was heard from Thomas E. Kelly, Director,
Regulatory Management and Information, Office of
Policy, Planning and Evaluation, EPA; Steve Hanna,
Assistant for information Technology, Environmental
Protection Agency, State of California; and public
witnesses.
NUCLEAR WASTE POLICY ACT
AMENDMENTS
Committee on Resources: Subcommittee on National
Parks, Forests and Lands held a hearing on H.R
1020, to amend the Nuclear Waste Policy Act of
1982 Testimony, was heard from Representatives
Vucanovich and Schaefer; Daniel Dreyfus, Director,
Office of Civilian Radioactive Waste Management,
Department of Energy, Mainland Sharpe, Assistant
Director, Resource Assessment and Planning, De-
partment of the Interior; the following Senators,
State of Nevada Sue Lowden; Mark James and Jack
Regan; and public witnesses
MEDICARE PRESERVATION ACT
Committee on Ways and Means Continued markup of
H R 2425, Medicare Preservation Act of’ 1995.
WflJ continue tomorrow
Republic of Germany on Social Security—referred to
the Committee on Ways and Means and ordered
printed (H. Doc. 104—123). Page 149764
Senate Messages: Message received, from the Senate
Page H9784 today appears on page H9749.
Amendments Ordered Printed: Amendi nts or-
dered printed pursuant to the rule appear on pages
H9784—86.
-------
H 9750
behalf of the gentleman from Virginia
[ Mr BLILEY] That bill will be called up
under the Corrections Calendar later
today.
The SPEAKER pro tempore. Is there
objection to the request of the gen-
tleman from North Carolina?
Mr. OBERSTAR. Reserving the right
to object, Mr. Speaker. I do so for the
purpose of inquiring of the gentleman
from North Carolina for what purpose
he makes this unanimous-consent re-
quest.
Mr. BURR. Mr. Speaker, if the gen-
tleman will yield, to offer an amend-
ment in the nature of a substitute on
behalf of the gentleman from Virginia
(Mr. BLIL.EY].
Mr. OBERSTAR. Mr. Speaker, the
concern that I have is that this proce-
dure violates the rules of Corrections
Day. Under the rules, the bill called up.
“shall not be subject to amendment,
except those amendments rec-
ommended by the primary committee
of jurisdiction, or those offered by the
Chairman of the primary committee,”
and It does not say, or his designee.
Mr. BURR If the gentleman will con-
tinue to yield, I recognize the gentle-
man’s concern. The gentleman from
Vlrglniii [ Mr. BLn..EY) has been un-
avoidably detained, and we have an
amendment in the nature of a sub-
stitute that has been worked out be-
tween the Comntittee on Commerce.
the Committee on Transportation and
Infrastructure, and the Committee on
Agriculture. Because of the naturl of
the issue that we are talking about, I
hope the gentleman will understand,
and to bring some common sense to
this one thing, I would hope that we
could proceed with It.
Mr. OBERSTAR. Mr. Speaker, I shall
not object, but I reserved the right in
order to point out the flaw of the proc-
ess The process of Corrections Day is a
real shortcut of the legislative process
that we have followed in this House for
well over 100 years, and the Suspension
Calendar was the appropriate means
for bringing legislation to the floor
Even the rules that the majority have
adopted do not provide them the flexi-
bility that they now seek through a
unanimous-consent request, and that Is
my concern. I will withdraw my res-
ervation, but I did so in order to point
out the flaws of the process
Mr. BURR I thank the gentleman
Mr OBERSTAR Mr Speaker, I with-
draw my reservation of objection
The SPEAKER pro tempore Is there
objection to the request of the gen-
tleman from North Carolina”
There was no objection
EDIBLE OIL REGULATORY
REFORM ACT
The Clerk called the bill (H.R. 436) to
require the head of any Federal agency
to differentiate between fats, oils, and
greases of animal, mari.ne, or vegetable
origin, and other oils and greases, in is-
suing certain regulations, and for other
purposes.
The Clerk read the bill, as follows:
HR 436
Be it enacted by the Senate and House of Rep-
resentatives of the United States of America In
Congress assembled,
SECTION 2. DW?ER rflAT1ON AMONG FATS,
OILS, AND GREASES.
(a) IN GENER.AL —In issuing or enforcing
any regulation or establishing any Interpre-
tation or guideline relating to a fat. oil, or
grease under any Federal law, the head of
any Federal agency shall differentiate be-
tween—
(1XA) animal fats and OilB and greases, and
fish and marine mammal oils, within the
meaning of paragraph (2) of section 61(a) of
title 13, United States Code, or
(B) oils of vegetable origin, including oils
from the seeds, nuts, and kernels referred to
in paragraph (1)(A) of such section; and
(2) other oils and greases. Including petro-
leum
(b) CONSIDERATIONS —In differentiating be-
tween the class of fats, oils, and greases de-
scribed In subsection (a)(l) and the class of
oils and greases described in subsection
(a)(2), the head of the Federal agency shall
consider differences in the physical, chemi-
cal, biological, and other properties, and In
the environmental effects, of the classes.
The SPEAKER pro ternpore. Pursu-
ant to the order of the Rouse of today,
the Chair recognizes the gentleman
from North Carolina (Mr. BURR].
AMENDMENT IN THE NATURE OF A SUBSTITUTE
OFFERED BY MR BURR OF NORTH CAROLINA
Mr BURR. Mr. Speaker, I offer an
amendment in the nature of a sub-
stitute.
The Clerk read as follows:
Amendment In the nature of a substitute
offered by Mr BURR of North Carolina in lieu
of the Committee on Commerce amendment’
Strike all after the enacting clause and in-
8ert the following
SECTION 1. SNORT Trn E.
This Act may be cited as the “Edible Oil
P.egulatory Reform Act”
SEC. 2. DIFFERENTIATION AMONG FATS, OILS,
AND GREASES.
(a) IN GENERAL —Except as provided in
subsection (C). In Issuing or enforcing any
regulation or establishing any Interpretation
or guideline relating to a fat, oil, or grease
under any Federal law, the head of any Fed-
eral agency shall—
(1) differentiate between and establIsh sep..
arate classes for—
(A) animal fats and 0118 , nd greases, and
fish and marine mammal oils, within the
meaning of paragraph (2) of section 61(a) of
title 13. United States Code, and oils of vege-
table origin, Including oils from the seeds.
nuts, and kernels referred to In paragraph
(1XA) of such section. and
(B) other oils and greases, including petro-
leum, and
(2) apply different standards to different
classes of fats and oils as provided In sub-
section in subsection (B)
(b) CONSIDERATIONs —In differentiating be.
tween the class of fats oils, and greases de.
scribed In subsection (a)(1)(A) and the class
of oIls and greases described in subsection
October 10, 1995
CONGRESSIONAL RECORD — HOUSE
(aX1XB), the head of the Federal agency
shall consider differences in the physical,
chemical, biological, and other properties.
and in the environmental effscts. of the
classes
(C) CCEPTION —The requirements of this
Act shall not apply to the Food and Drug Ad-
ministration and the Food Safety and In-
spection Service
(d) FINANCIAL RESPONBIBILI’Il! —
(1) Section 1004(a)(l) of the Oil Pollution
Act of 1990 (33 U S.C 2704(axl)) is amended
by sinking “for a tank vessel,” and insert-
ing “for a tank vessel carrying oil in bulk as
cargo or cargo residue (except a tank vessel
on which the only oil carried is an animal fat
or vegetable oil, as those terms are used In
section 2 of the Edible Oil Regulatory Re-
form Act)”.
(2) Section 1016(a) of the Oil Pollution Act
of 1990 (33 U.S.C. 2176(a)) Is amended In the
firet sentence by striking “. in the case of a
tank vessel, the responsible party could be
subject under section 1004(aXl) or (d) of this
Act, or to which, in the case of any other
vessel, the responsible party could be sub-
jected under section 1004(a)(2) or (d)” and In-
serting “the responsible party could be sub-
jected under section 1004(a) or (d) of this
Act”
Mr. BURR (during the reading). Mr.
Speaker, I ask unanimous consent that
the amendment in the nature of a sub-
stitute be considered as read and print-
ed in the RECORD.
The SPEAKER pro tempore Is there
objection to the request of the gen-
tleman from North Carolina?
There was no objection.
The SPEAKER pro tempore. Pursu-
ant to the rule, the gentleman from
North Carolina [ Mr. BURR] and the gen-
tleman from Minnesota [ Mr. OBERSTAR]
will each be recognized for 30 minutes
The Chair recognizes the gentleman
from North Carolina (Mr. BURR).
Mr. BURR. Mr. Speaker, I yield my-
self such time as I may consume
(Mr. BURR asked and was given per-
mission to revise and extend his re-
marks.)
Mr. BURR Mr Speaker, I rise in
strong support of H.R. 436, the Edible
Oils Regulation Reform Act This legis-
lation will correct an unintended and
burdensome problem created by certain
Federal regulations, and so it is very
fitting that this legislation Is being
considered today on the new House cor-
rections calendar.
As my colleagues are aware, there
are several environmental laws that
contain definitions of the term “oil”.
While the legislative history of each
statute Indicates that it was the intent
of Congress that the term “oil” re-
ferred to petroleum and petroleum-re-
lated products, the definitions are fair-
ly broad and Federal regulators have
taken the view that the term must be
interpreted to Include all types of oil,
including vegetable oils and animal
fats,
CORRECTIONS CALENDAR
The SPEAKER pro tempore This Is
the day for the call of the Corrections
Calendar
The Clerk will call the bill on the
Corrections Calendar
0 1415
As my colleagues from other com-
mittees will describe in greater detail,
this has meant that regulations writ-
ten for the transportation and handling
of petroleum have also been applied to
transportation and handling of vegeta-
ble oils and animal fats These same
-------
October 10, 1995
problems potentially arise i 1ien it
comes to the storage and disposal of
oils
The legislation before us today would
solve this problem by directing Federal
agencies with regulatory responsibil-
ities to do one simple thing to thf-
ferent.iate between animal fats or vege-
table oils and other types of oils and
greases, including petroleum, when
they write regulations This simple
correction will prevent unjustified and
burdensome regulations from being irn-
posed on animal fats and vegetable
oils, which clearly do not present the
same environmental risks as other
types of oil and greases, including pe-
trolewn
I want to point out that this legisla-
tion has been endorsed by three sepa-
rate committees. It has been reported
twice by the Committee on Transpor-
tation and Infrastructure, once by the
Com.mittee on Agriculture, and once by
the Committee on Commerce. It is
good legislation that makes common
sense. Mr. Speaker.
The amendment I offer today on be-
half of the Committee on Commerce
makes several refinements to the bill
as recorded by the Committee on Com-
merce and Includes Important provi-
siona from other versions of the bill.
The first refinement is to make clear
that the requirements of the bill do not
apply to the Food and Drug Adminis-
tration and the Food Safety and In-
spection Service. The problems Identi-
lied by this legislation have not a.risen
under the Federal Food, Drug and Cos-
metic Act or statutes administered by
the FDA or the FSIS. Rather, they
have arisen under traditional environ-
mental statutes, such as the Oil Pollu-
tion Act and other hazardous waste
laws.
When the bill came before the Corn-
rnittee on Commerce. a concern was ex-
pressed that it was not clear on how
the requirement to differentiate be-
tween different classes of oil might af-
fect FDA ’s product approvals and other
regulatory activities, so the committee
attempted to exempt the FDA from the
scope of the bill The e.mnendinent today
makes that exemption expUclt and,
with the concurrence of the Rouse
Committee on Agriculture, also ex-
empts the Food Safety and Inspection
Service, which conducts business aixni-
tar to the FDA’s.
The amendment also clarifies that
the differentiation required by the bill
Is between animal fats or vegetable oils
and other types of oil and grease, in-
eluding petroleum. It is not the intent
of the amendment to require the heads
of Federal agencies to differentiate
among different types of animal fats
and vegetable oils
Finally, the aniendrnent includes im-
portant provisions on financial respon-
sibility under the Oil Pollution Act
which were included in the versions of
the bills adopted by the Committee on
Transportation and Infrastructure and
the Committee on Agriculture.
In closing, I want to commend my
colleagues, the gentleman from fllinols
CONGRESSiONAL RECORD— HOUSE
(Mr EW G]. and the gentlewoman
from Missouri [ Ms DANNER], for intro-
ducing this legislation and for working
hard to move it through the process I
also want to commend Speaker GING-
RiCH and Committee on Rules Chair-
man SOLOMON for putting in place this
corrections day that allows us to make
commonsense changes to Federal regu-
lations
Mr Speaker. I reserve the balance of
my time.
Mr OBERSTAR. Mr. Speaker. I yield
myself such time as I may consume
Mr Speaker, we have just seen in my
reservation how flawed this process is
even as a process, and I object to It
more as process than substance, al-
though the substance is alsQ of concern
and I will address that in a moment
The suspension calendar is truly the
more appropriate means of addressing
noncontroversial issues on which there
is a general agreement, in fact an over-
whelrning consensus. But this process
of correctiozi8 day Is just fraught with
danger and fraught with opportunity
for special interests.
It was conceived as a means of cor-
recting regulations that had become
too burdensome or making adjust-
ments in law that, relatively minor in
their application, have become too bur-
densome. Process-wise, It was also in-
tended to protect the rights of the
committee system.
But the way it has worked out, the
Committee on Transportation and In-
frastructure, which is the committee of
primary jurisdiction, it is our commit-
tee that baa handled the Clean Water
Act, it is our committee that has twice
reported this language in two different
bills, in slightly different form but
twice reported to this House and It has
passed this House But in the rush to
deal with an issue that O its face is
relatively noncontroversial, the major-
ity has bypassed the Committee on
Transportation and Infrastructure,
causing it to waive its referral rights.
and proceed to get a bill to the floor to
justify this process.
If a special interest has a problem,
they have an interest, all they need to
do is get someone in the majority to
pay attention to them, craft a bill, get
it introduced, maybe drag along one
from our side, and then ram it through
In this process. There is no urgency to
this legislation to justify the tram-
pling of the legislative process as we
have seen it.
We dealt with this issue appro-
priately In the Committee on Trans-
portation and Infrastructure, In the
Clean Water Act amendments that we
passed earlier this year. We addressed
it later in the Coast Guard authoriza-
tion bill, which was an appropriate
place Again it went to this body and
again the Issue passed
The regulations DOT issued which
caused the concern, caused that lan-
guage to be included In two bills, have
been withdrawn Why do we have to
have a bill on the Mouse floor under
this extraordinary procedure to address
H9751
the issue that is frankly not much of
an
The substance of the issue is within
the ambit of the 011 Pollution Act of
1990 That bill defined oil as including
oil of any kind or form At the time we
debated that legislation in committee
and on the floor, it was clearly under-
stood that the definition would include
vegetable oils and animal fats.
In the course of implementation of
the Oil Pollution Act, there has been
an Increasing desire on the part of a
number of interests to have edible oils
treated differently from oils that are
derived from petroleum. The snack
food Industry in particular has been
very interested in this issue and been
very vocal on this issue.
Edible oils, to be sure, do not pose
the same toxic threat to the environ-
ment as petroleum oils do, but they are
not without harm to the environment
Edible oils may be the same type as
you put on a salad, but a spill of 10,000
gallons or more can be very toxic to
birds, to aquatic animals.
We need look only to the mld-1960’B
in my own State of Minnesota when a
soybean containment tank burst at
very, very low temperatures, subzero
temperatures, 30, 40 belOw zero. The
soybean oil spilled out into the Mm-
ne8ota River, where It could not be re-
claimed at those very low tempera-
tures in m1d- ’ ’ebruary. It remained
there until the spring when the migra-
tory waterfowl, notably ducks, got Into
it and got fouled arid we lost tens of
thousands of migratory birds.
Edible oils are high in biological oxy-
gen demand. They can and in this case
did result in fish kill. They resulted in
bird kills. They are appropriate, there-
fore, edible oils, for regulation with re-
spect to their effect upon or potential
effect upon the envi.rownent.
That is why the legislation that we
passed in the Rouse addressed this
Issue, to keep a containment process.
to keep the management of edible oils
within the ambit of government regu-
lation, not exclude them, but to treat
them with the proper concern and re-
spect that ought to be considered.
There is one shortcoming. If you are
going to do this process, then you real-
ly ought to be fair to all Industries,
and there is the issue of silicone fluids
The bill that we are considering today
applies to all laws but does not include
silicone fluids
In the course of discussion of this
issue In our committee deliberations,
we Included silicone fluids. That lev-
eled the playing field. But the present
bill does not ftclude silicone fluids
Again, the process, had this been
brought to the floor as a freestanding
bill on the Union Calendar, would have
been open to amendment. If It were
brought on the Suspension Calendar, it
would have been subject to a higher
level of consideration, where a Member
with concern over this issue could have
Insisted that his or her concerns be re-
flected in the final version of the bill
considered on the floor.
-------
H 9752
That is. both on process and on sub-
stance, sort of the essence of the con-
cern that I have. I will address further
concerns later.
Mr. Speaker. I reserve the balance of
my time.
Mr. BURR. Mr Speaker. I yield 3
minutes to the gentlewoman from Ne-
vada [ Mrs. Vuc i4ovicE].
Mrs. VUCANOVICR. Mr. Speaker, I
would like to take this time to thank
chairmen BULEY, SmJSTER. and ROB-
ERTS as well as Mr. EWING and Ma.
DANN for their hard work to get this
bill to the floor so soon. It took a great
deal or teamwork on their part. With
Many other issues pressing for atten-
tion It has not been easy for them to
take the time to work on this little
bill. Despite the fact this Is a email
matter, the chairmen recognized the
need to move without delay.
H.R. 436 Is a perfect example of why
we need the corrections process. Who
could have predicted during the rush to
respond to the Vatdez accident that we
would Inadvertently impact consumers
and farmers the way we did by not
clearly defining the word oil? It is
clearly a silly Idea to regulative vege-
table oil In the same manner as petro-
leum oil, but congress did It. Not inten-
tionally mind you, but through a lack
of precision in the original bill. Now we
have the chance to correct the prob-
lem.
This little bill has huge ramifica-
tions for the shipping industry, farm-
ers, and thousands of other Americans
who deal with this commodity on a
daily basis. I am very happy that
through the corrections process we can
give these Americans much needed re-
lief.
I know that all my colleagues can see
the need for this fix, and hope Members
will vote accordingly.
Mr. BURR. Mr. Speaker. I yield 12
minutes to the gentleman from Illinois
[ Mr. EWING), and I ask unanimous con-
sent that he be allowed to control that
time.
The SPEAKER pro tempore (Mr. EV-
ERETT). Is there objection to the re-
Quest of the gentleman from North
Carolina
There was no ob ectlon.
Mr. EWING Mr Speaker. I yield my-
self such time as I may consume
Mr. Speaker, my appreciation to the
Committee on Commerce. the Commit-
tee on Transportation and Infrastruc-
ture, and the Committee on Agri-
culture and their chairman for helping.
along with the gentlewoman from Ne-
vada (Mrs VUCANOVICH]. for her efforts.
and the counsel that deals with the
correction calendar, for bringing this
bill to the floor
0 1430
Today the U.S House of Representa-
tives has an opportunity to remedy one
of the unnecessary. illogical Federal
regulations that led to the ereauon of
Corrections Day H R 436. the Rdible
Oil Regulatory Reform Act, which 1 in-
troduced earlier this year along with
CONGRESSIONAL RECORD— HOUSE
the geptlewoman from Missouri [ Ms.
Dai ns), will restore common sense to
the Fedsral regulatory process by re-
quiring Federal agencies to recognize
the obvious difference between edible
oils and toxic oils when issuing and
promulgating regulations. The Edible
Oils Regulatory Reform Act, H.R 436,
the oils are nontoxic, natural products.
like cooking and salad oils, which
many of us eat every day. There are
u.nneces8arily stringent regulations
that force producers, shippers, and
manufacturers to comply with costly
and counterproductive requirements
without providing any additional meas-
ure of protection to the environment of
enhancing the health and safety of our
citizens
Simply stated. H.R 436 will require
Federal agencies to differentiate be-
tween edible oils and petroleu.m-based
oils when promulgating regulations
under the Oil Pollution Act of 1990.
This comrnonsense legislation does not
change or weaken the underlying prin-
ciples or the Oil Protection Act of 1990
or other related statues, like the Clean
Water Act. It seems clear to everyone
except Federal regulators that the 011
Pollution Act was designed to reduce
the risk of. Improve the response to.
and minimize the impact catastrophic
oil spills like the one in Prince William
Sound. Alaska. not. to regulate edible
agricultural products.
In fact, vegetable oils have been used
to help clean up beaches fouled with
petroleum, and vegetable oils are being
explored as a substitute lubricant for
machinery in environmentally sen-
sitive areas This not only dem-
onstrates the significant difference be-
tween the vegetable oils and petroleum
oils, it highlights the fact that animal
fats and vegetable oils do not pose the
same risks to human health and envi-
ronment and should not be treated the
same
The version of H.R 436 before the
House today is 8lightly different from
the Introduced version The modifica-
tions add a financial responsibility sec-
tion to the bill which conforms the
text of H R 436 with similar legislation
introduced in the U S Senate. Tb_Is
noncontroversial language was accept-
ed by the U S Coast Guard and ap-
proved by the House as part of H.R
1361 the Coast Guard Authorization
Act for Fiscal Year 1996 The financial
responsibility relief provided in this
section applies only to exclusive Ship-
pers of those nontoxic oils, and it
brings industry, insurance and bonding
requirements back into line with the
value of the prod.ict Like the rest of
H R 436, nothing in this section ex-
empts edible oils from all regulatory
requirements
The net effect will be to plac trans-
porters of edible oils on a par with
othei shippers of nontoxic products,
and it ifl allow the U S agricultural
oils to he more competitive in world
markets
l ii addition in 11 R 1361 the House
also adopts t”ie puible oil difi’erentia-
October 10, 1995
tion language contained in H.R 436 as
part of H R. 961, the Clean Water Act
Amendment of 1995. Although the
House has already acted twice on this
issue in the 104th Congress, H.R. 436
should be adopted as a standalone
measure because similar language was
adopted twice In the House and once In
the Senate during the lQ3rd Congress
only to see the underlying bill die at
the end of 1994.
I know of no objection to the sub-
stance of H.R. 436 from any Member of
tb_Is body or from the administration.
Hit 436 passed on a unanimous vote in
both the Committee on Commerce and
the Committee on Agriculture. It has
also passed the Committee on Trans-
portation and Infrastructure.
Mr. Speaker, Congress h s enacted two
principal statutes that address the discharge of
olr into the nation’s waters—the FWPCA and
CPA 90. Due to the statutes’ broad definition
of oil and tacking clear congressional direction
on differentiation, regulatory agencies gen-
erally have proposed or Issued niles thai will
regulate ariimai fats and rego1abIe oils to the
same degree as toxic oils, for example, peti-o-
leum oils, without regard for the significant dif-
ferences between them, in spite of scientific
arid other data justifying differentiation. These
statutes, however, give the agencies —broad
regulatory disoretion so that differentiation can
be accomplished without compromising any of
the oblectives or principles of the statutes. As
these rules will impose costly, inappropnate,
and often counterproductive requirements, the
animal fat and vegetable oil industry has been
working towards the development of regula-
tions that drifereritiate animal fat and vegeta- -
ble oils from toxic oils to avoid the imposition
of costiy requirements Intended for petroleum-
based and other oils that are Inappropriate for
animal fats and vegetable oils.
Thus, a legislative change is needed to pro-
vide direction to regulatory agencies by requir-
ing them to differentiate between nontoxic ani-
ma] fats and vegetable Oils, Ofl the one hand,
and all other oils, including toxic petroleum
and nonpetroleum Oils, on the other hand,
when pi-omulgatirig oil pollution prevention and
response regulations. This can be clone wrth-
out an amendment to these statutes that
would change or alter the principles contained
in them. In particular, agencies. First, should
provide a category for animal fats and vegeta-
b le oils separate and apart from all other oils;
and second, should ditferentiafe these oils
from other oils based on a recognition 01 their
distinct properties
RACKGROIJN 0
On August 18, 1990, the U S Congress, in
direct response to several catastrophic U.S
petroleum otlspills, including the Exxon Valdcz
spill, enacted the Oil Pollution Act of 1990
IOPA 90] to reduce the nsk of oilspills, im-
prove facility and vessel oilspill response ca-
pabilities, and minimize the Impact of oilspills
on the environment In enacting CPA 90, Con-
gress amended the Federal Water Pollution
Control Act to impose certain requirements on
the owners and operators of vessels carrying
‘oil” and on facilities posing a risk of “sub-
stantial” hami or “significant and substantial
harm” to the environment, including requiring
ownerc and operaiors to prepare and submit
response p’ans to various federal agencies by
-------
October 10, 1995
February lB. 1993, for review and approval, or
stop handling oil Other requirements affecting
the handling and transportation of oil were
also enacted
Although petroleum oil has been the tocas
of Congress’ attention dunng the enactment of
OPA 90, the laws applicability was not limited
to petroleum oil and, as a result, it applies to
all oils, including animal fats and vegetable
oils Since enactment, various Federal ager
cies have issued proposed or intenm final
rules implementing OPA 90 requirements,
which include FWPCA provisions. The pen-
cipal federal agencies and what they are re-
sponsible for regulating are as follows.
U.S. Coast Guard ( 1. 15CC] vessels and ma-
nne-transportation-related (MTR] onshore fa-
cilities, including any piping or structures used
for the transfer of oil to or from a vessel.
DOT Research and Special Programs Ad-
ministration (RSPAJ: tank trucks and railroad
tank cars carrying oil.
U S Environmental Protection Agency. large
non-transportation-retated onshore facilities
handling, slonng, or transferring oil, and, the
Nationai Contingency Plan (NCPJ.
DOl Minerals Management Service RAMS]:
offshore facilities, including any facility on or
over U.S navigable waters.
Nalionai Oceanic and Atmospheric Adminis-
tration (NOAAJ. natural resource damage as-
sessment (NRDA) regulations
Federal natural resource trustees having an
interest in these rules include the Departments
of Agriculture, Commerce, and Interior.
issue
The animal fat and vegetable oil industry
handles, ships, and stores over 25 billion
pounds of animal fats and vegetable oils an-
nually in the United States. These agricultural
substances are essential coriwlonents of food
products produced in the United States. Indus-
try is concemed that some of the regulations
being developed wilt regulate animai fats and
vegetable oils to the same degree or In the
same manner as petreteurn oils, in spite of in-
formation collected to date that suggests thet
different or less stnngent regulations are ap-
propnate For example, a June 28, 1993 re-
port by ENVIRON Corporation, “Environmental
Effects of Releases of Animal Fats and Vege-
table Oils to Waterways” and an associated
Aqua Survey, nc, study on the aquatic tox-
icity 01 petroleum oil and of animal fats and
vegetable oils found that, unlike petroleum
oils, the presence of animal fats and vegetable
oils in the environment does not cause signifi-
cant or substantial harm. That study reached
the following conclusions with respect to the
effects of potential discharges of animal fats
and vegetable oils:
They are non-toxic to the environment.
They are essential cerriponents to human
and wildlife diets
They are readily biodegradable
They are not persistent in the environment
They have a high Biological Oxygen De-
mand (BOO], which could result in oxygen
deprivation where there is a large spilt in a
confined body of waler that has low flow and
dilution
They can coat aquatic biota and foul wild-
life—for example, matting of fur or feathers.
which may lead to hypothermia
The animal fat and vegetable oil industry
continues to seek data regarding the impact of
animal fats and vegetable oils on the environ-
ment that will otter new insights to the appro-
CONGRESSIONAL RECORD — HOUSE
priate regulation of these materials On the
basis ot scientific data available to date, how-
ever, the only potential environmental harm
that may result from spills 01 these products is
the result of potential physical effects of spills
of liquids in large quantities Those potential
physical effects consist of First, the fouling of
aquatic biota and wildlife that are exposed to
the liquid products in high concentrations, and,
second, the potential oxygen depnvalion from
the biodegradation of high concentrations of
liquid substances in confined and slow-flowing
bodies of water. Fouling is not en issue, how-
ever, in the case of substances that are solids
or congeal in the temperature conditions of the
natural environment In fact, that vegetable-
based oils do not pose the same risk to the
environment is illustrated by the fact that soy-
bean-based solvents have been used to clean
up petroleum oil spills. Soybean ott ester,
through a process called CytoSoriM, was used
to clean-up fuel o Il spited dunng the Moms J.
Berman spill in Puerto Rico A NOAA manne
biologist recognized the use of CyloSoP’ 4 as
a logical application of two environmentally
prorrwsing technologies Illinois Soybean
Farmer, ” (MarclVApril 1994).
Moreover, the likelihood that an animal fat
or vegetable oil spill of such magnitude will
occur is extremely small. The industry’s spill
prevention efforts have resulted In an excellent
environmental record for these products. For
example, a review of the data recorded and
compiled by the Coast Guard reveals that,
from 1986 to 1992. animal fats and vegetable
oils together accounted for only about 0.4 per-
cent of the oil spill incidents in and wound
U S. waters—both in terms of incidents and
their volume Less than half of those spilt s
were in water, Further, these spills were gen-
erally very small Only 13 of those spills were
greater than 1,000 gallons. Put another way,
only about 0.02 percent of all oil spill incidents
in and around tLS. waters over the last seven
years were spilla of animal fats or vegetable
oits greater than 1000 gaflons.
Furthermore, equipment and techniques
used to respond to petroleum o il spills often
wilt aggravate rather than mitigate the environ-
mental impact if used for animal fats and veg-
etable oils. Attempts to remove the small
quantities of animal fats and vegetable oils
present In a typical spill would in most cases
cause more environmental harm than would
the presence of those products in the environ-
ment alone For example, in comments tiled
or, RSPA Docket Nos. HM—214 and PC—i,
dated June 3, 1993, the Department of the In-
tenor recommended the establishment of re-
sponse plan requirements for animal fats and
vegetable oils coroparable to those for other
oils. This recommendation was based on an-
ecdotal data derived from a discharge of but-
ter from a U S Govomment warehouse into
Shoal Creek, MD. DOl conceded, however,
that It-ia principal adverse environmental af-
fects of the Shoal C.reek Incident were caused
by the removal efforts themselves
In addition to the differences noted above
between animal fats and vegetable oils and
petroleum oils, the animal fat and vegetable oil
industry is significantly different from the petro-
leum industry in other ways warranting dispar-
ate regulatory treatment For example, there
are notable differences in the vessel charac-
tenstics and transfer operations involving ar-ti-
mat fats and vegetable oils and those involv-
ing petroleum oils Vessels carrying petroleum
119753
oils can exceed 500,000 deadweight tons—the
Exxon Valdez was over 213.000 deadweight
tons In contrast, vegetable oils typically are
camed on small parcel tankers ranging from
30,000 to 45,000 deadweight tons Cuithor
differences exist in the size of the tanks carry-
ing these two kinds of products Large tankers
carrying petroleum oil may have 10 large cen-
ter tanks and about 15 wing tanks with individ-
ual tank capacities reaching approximately
592,000 tons or 177,500,000 gallons of oil
Parcel tankers carrying vegetable oil typically
have about 30 to 35 cargo tanks that range
from 1,000 to 3,500 tons capacity each With
regard to transfer operations, the typical
amount of vegetable oil loaded or offloaded
dunng a transfer ranges from 500 to 5,000
tons. In contrast, a tanker carrying petroleum
commonly loads or offtoads its entire cargo
dunng one transfer operation
Similarly, facilities that handle or store am-
mat fats and vegetable oils do not share the
same charactanstics as petroleum refinenes
and other facilities. Facilities that handle am-
mat fats and vegetable oils are generally lo-
cated in or near areas in which agncultural
raw matenals—for example, oilseeds, oil bear-
ing plants, and animals—are available. Con-
sequentfy, unlike petroleum oil facilities, many
are found in the Midwestern United States rel-
atively far removed from the regional oil spill
response centers which have evolved ever the
years and which are principally dedicated to
petroleum oil spills.
In addition to the need for differentiation,
there is atso e need for financial responsibility
regulations under OPA 90 that reflect the as-
tual risk associated with spills of animal fats
and vegetable oils. Under current financial re-
sponsibility rules, which were inlencted to ad-
dress the problem of petroleum oil pollution
from tankers and harding facilities, are not
limited to lank vessels canying petroleum oil,
but unfortunately apply to all tank vessels re-
garcfless of the cargo camed Specifically, the
definition of tank vessel is not cargo linked,
therefore, by operation of law, every tank ves-
sel, regardless of its cargo, has the same li-
ability and financial responsibility requiremeirt
as a petroleum oil tanker Other vessels, on
the other hand, are sub ect to half the hmrta-
tion amounts applicable to tank vessels.
The higher amounts applicable to tankers
reflect the fact that If-ia nsks of pollution relat-
ed to enormous quantities of petroleum oil car-
ned on tankers as cargo vastly outweigh the
potential harm from other vessels whose spills
of petroleum oil are limited to bunker fuel or
lubricating oil used in the propulsion and other
mechanical systems of the ship However,
considenng the animal fat and vegetable oil in-
dustry ,s excellent spill prevention record and
the significanify lower nsk of environmental
harm posed by a spill ot these nontoxic, read-
ily biodegradable agricultural products, the risk
of harm prosenled by vessels carrying animal
fats and vegetable oils is similar to that of
other non-petroleum-carrying vessels and the
liabilities and financial responsibility amounts
should be placed at the appropriate level
OIFFEREI4TiATED Rtil.ES P iCEOCO
Unfortunafety, there has been an overabun-
dance of supposition and anecdotal data cited
to date to give support to treating these
nonloxic substances in the same manner as
-------
H9754
petroleum oils Reliance upon such informa-
lion underscores the dangers of imposing reg-
ulatory requirements on the industry in a man-
ner not specifically mandated by Congress
and without adequate scientific foundation. In
tact, no documented scientific data support
treating these nontoxic animal fats and vege-
table oils in the same manner as petroleum.
To the contrary, the significant differences
between animal fats and vegetable oils and
other oils, warrant regulation of these sib-
stances In a different manner. lclenticai re-
quirements would represent a misapplication
of limited Industry resources. In addition, re-
quiring twit vessels whose only oil cargo is
animal fat or vegetable oil to provide the same
amount of financial responsibility as lank ves-
sels cairyirig petroleum oil fails to recognize
the risk of harm presented by these vessels
and irrvoses an unnecessary burden on own-
ers and operators.
Unfortunately, agendas have been alterwt-
trig to achieve differentiation t fvough vague
regulatory language that requires further ad-
ninistative or judicial Interpretation to deci-
pher and through discussIons In the pre-
a n des to regulations pibished In the Federal
Register. These techniques are exan’ptes of
regulations that are not clear on their face and
In need of revision. Not only should available
scientific Iriforrratlon be used to differentiate,
but so should basic connon sense Many ax-
islrng regulatory regimes go into detail to cre-
ate separate categories for classes or types of
oils—petroleum, edible, etcetera. Thus proven
scientific and regulatory structures already
exist that could form the basis of or model for
a similar approach lot regulations Issued to
implement the pollution prevention statutes.
Differentiation In rules is also warranted In
view of President Clinton’s Executive Order on
Regulatory Planning and Review enunciates,
and requires agencies to adhere to. certain
pnnciples of regulation. Executive Order No.
12,866, 58 Fed, Flog 51,135, 51,736 (1993).
Among those pnnciples are the following
In setting regulatory priorities, each agency
shall consider, to the extent reasonable, the
degree and nature of the risks posed by var-
ious substances or activities within its junsdic
lion
Each agency shall base its decisions on the
best reasonably obtainable scientific, tech-
nical, economic, and other information con-
cerning the need for, and consequences of,
the intended regulation -
Each agency shall identify and assess alter-
native forms of regulation and shall, to the ex-
tent feasible, specify performance objectives,
ralher than specifying the behavior or manner
of compliance that regulated entities must
adopt
Each agency shall avoid regulations that are
inconsistent, incompatible, or duplicative of its
other regulations or those of other Federal
agencies
Each agency shalt tailor its regulations to
impose the least burden on society, including
individuals, businesses of differing sizes, and
other entities, including small communities and
governmental entities, consistent with obtain-
ing the regulatory obiectives, taking into ac-
count. among other things, and to the extent
practicable, the costs ot cumulative regula-
tions
c o NcLusio N
The animal tat and vegetable oil industry
continues to seek data to better understand
CONGRESSIONAL RECORD — HOUSE
the environmental risks associated with the
transporta’un. handling, and storage of animal
fats and vegetable oils. On the basis of sd-
eritific data currently available, however, there
is no rational basis tor regulating nontoxic ani-
mal fats and vegetable oils in the same man-
ner as petroleum oils. In fact, it is very likely
that imposIng certain regulatory requirements
on arumaJ fats and vegetable oils based solely
on requirements developed for the petroleum
o i l, for exarrple, removal and response strate-
gies and techniques, could lead to greater
damage to the environment than the actual
irrçect of a discharge of these substances
themse lves. Moreover, these requirements
would ado to the cost of these agricultural
prodta. A category for animal fats end vege’-
table oil should be implemented that Is sepe-
rate and distinct from all other oils, including
petroleum oil. In addition, regulations should
take into axount the differences in the phys-
ical, chemical, biological, and other properties,
and the environmental effects of these oils.
Fyrther, regulatory principles should be fol-
towed which clearty permit regulatory reglmes
to reflect the economic impact on the Indusby
regulated.
In fact, judging from the bipartisan
mix of cosponsorship. H It. 438 enjoys
broad support and Is abaolut,ely not
controversial.
Again, Mr. Speaker, I want to thank
the gentlewoman from Missouri (Ms
DANNER] for her assiet.ance and leader-
ship as well as the chairman, the gen-
tleman from Kansas (Mr. ROBERTS]. the
chairman, the gentleman from Virginia
(Mr. BLILEY), the chairman, the gen-
tleman from Pennsylvania [ Mr. SmJ-
STER ), and the Correction Day task
force for their input and cooperation
on this issue.
It Is time to finally solve the prob-
lem. I believe that it is the delay in
passage of legislation such as this, as
we did in the 103d Congress and the
134th Congress. that Is the irritation
among our constituents for nonact lon
It is time that we pass this bill and
made it law.
Mr. Speaker. I urge my colleagues on
both sides of the aisle to support H.R.
436
Mr. Speaker, I yield the remainder of
my time to the gentleman from Texas
(Mr. T iE LA GARZA)
(Mr. TiE LA GARZA asked and was
given permission to revise and extend
his remarks.)
Mr. DE LA GARZA. Mr Speaker, I
thank the gentleman for yielding, and
I thank the manager of the bill
Mr Speaker, I am pleased to join my
colleagues in supporting and bringing
to the floor H R 436. the Edible Oil
Regulatory Reform Act H B 436 would
require Federal agencies to differen-
tiate between edible oils animal fat
and vegetable oil, and petroleum-based
oil products when issuing regulations
under Federal laws that deal with a
fat, grease or oil
Mr EWTJ4O, Ms DAPJT4ER. and the co-
sponsors of the bill are to be congratu-
lated for once again attempt Ing to cor-
rect the oversight contained in the 01]
Pollutinn Act of 1990 The work of our
former colleagt a. ne Secretary Jill
October 10, 1995
Long Thompson should also not be
overlooked as similar legislation
passed the House twice last year under
her leadership, only to die in the Sen-
ate.
The substitute language adopted In
the Agriculture Committee has the
broad intent of covering all Federal
law and also contains specific changes
to the Oil Pollution Act of 1990 to en-
sure that animal fat and vegetable oil
are classified separately from petro-
leum-based products based on dif-
ferences in physical, chemical, biologi-
cal or other properties.
The substitute being offered here on
the floor would exempt the Food Safe-
ty and Inspection Service as well as the
Food and Drug Administration from
the provisions of this bill, which causes
the Agriculture Committee some con-
cern because we only saw the language
yesterda,y, but for the sake of moving
this important piece of legislation, we
do not intend to object to the exemp-
tion. We will work with our colleagues
in the other body should any concerns
be brought to our attention in regard
to this particular provision.
The Oil Pollution Act was passed In re-
sponse to the Exxon Voidez ortspltt In Prince
William Sound. It contained specific require-
merits on the handling and transportation of
oil, but Congress did not differentiate between
the vanous types of oil in the legIslative lan-
guage. Studies to date’ show the only potential
environmental harm from animal fat or vegeta-
ble oil spills to be the physical effects of a spill
of liquid in large quantities.
This legislation would require that the habit-
Ky tor a tank vessel carrying animal fat or veg-
etable oIl would be limited to the greater of
$600 per gross ton of the tank vessel, or
$500,000 under the Oil Pollution Act.
I am slso pleased that report language was
added to address concerns expressed by the
fledgling biodiesel Industry to ensure that their
products would be included under this legisla-
tion as tong as they do not contain pe lroleum
or toxic additives. Biodiesel products include
such things as greases. hydraulic fluid or sol-
vents t’,at are much fnendlier to the environ-
ment than traditional petroleum-based prod-
ucts,
There Is language In H R. 961, the House-
passed version of Clean Water Act amend-
ments, which would require differentiation
among animal fat and vegetable oils in alt
water pollution laws
H R. 436 has bipartisan support with 80
sponsors here in the House and a broad list
of outside groups who have also supported its
passage I encourage my colleagues to sup-
port its passage
Mr EWING. Mr Speaker. I yield 3
minutes to the gentlewoman from Mis-
souri [ Ms DANNER]
(Ms. [ tANNER asked and was given
permission to revise and extend her re-
marks)
Ms. DANNER Mr Speaker in t.hc
wake of the Exxon Valdea oilsplll, the
Congress passed legislation known as
the Oil Pollution Act of 1990 This law
created important environmental regu-
lattons aimed at reducing the risk of
oil spill’i
But while the Oil Pollution Act was
designed to pi event environmental
-------
October 20, 2995
harm from petroleum oil spills, it was
applied by many Federal agencies to
animal fair- and vegetable oils
The result of these errant regulations
are lower profits for producers in the
agricultural sector, higher costs to
shippers and users of vegetable oils.
and in the final analysis, higher costs
for virtually all processed rood items
we consume
Because of the sweeping definitions
In the Oil Pollution Act of 1990, Federal
agencies have railed to make the sen-
sible, logical, and obvious distinctions
between toxic and edible oils.
Now it is necessary for Congress to
direct the Federal agencies to start
regulating those oils separately. The
Edible Oil Regulatory Reform Act Is
Intended to stop Government from reg-
ulating these oils In the same manner
as petroleum
Federal agencies must consider dl !-
ferences in the physical, biological,
chemical makeup of the oi]s and the
possible effects of spills on the environ-
ment
Mr. Speaker, laws and regulations
must have purpose. They should meet
the simple standard of either protect-
ing the public good from realistic
threats or generally improving people’s
lives. Above all, our laws must be rea-
sonable.
Congress wisely started the correc-
tions day process so we could more eas-
ily repeal regulations that rail this ele-
mentary standard
I think the vast majority of Ameri-
cans would agree that regulating corn
oil, for example, and petroleum in Iden-
tical fashion is by no means reason-
able.
In fact, this legislation enjoys sup-
port from both Republicans and Demo-
crats, producers and consumers, and
the administration and Congress. I’m
pleased to be a part of this truly non-
partisan effort
I would like to extend appreciation
to the Members who worked on this
legislation, particularly my friend
from fllinois, TOM EWING, who has been
instrumental in bringing this legisla-
tion to the floor
Americans have repeatedly called
upon Members of Congress to eliminate
burdensome Federal regulations and
work together to make a real dif-
ference in people’s lives Today we are
answering that call
Mr. Speaker, I have some additional
information I would like to include as
part of the REco RD at this point
REQUIREMENT FOR Di FFERENTL%T1ON BE’rWECN
ANIMAL FATS AND VEOETASLE OILs AND
OTHER OiLs UtWER CERTAU4 RE0ULATIOSS
SUMMARY
Congress has enacted two principal stat-
utes that address the discharged of “nil”
into the nation’s asters—the FWPCA and
OPA 90 Due to the statutes’ broad dennition
of oil and lacking clear Congressional direc-
tion on differentiation, regulatory agencies
generally have proposed or issued rules that
will regulate animal fats and vegetable oils
to the same degree as toxic nils Ce g. petro-
leum oils) without regard for the significant
differences between them, in spite of aol-
CONGRESSIONAL RECORD— HOUSE
ent ific and other data justifying differentia-
tion These statues. hoaever. give the agen-
cies broad regulatory discretion so that dif-
ferentiation can be accomplished without
compromiw,ng any of the objectives or prin ’
cipies of the statues As these rules will im-
pose costly. inappropriate, and often coun-
terproductive requirements. the animal fat
and vegetable oil industry has been working
towards the development of regulations that
differentiate animal fat and vegetable oils
from toxic oils to avoid the imposition of
costly requirements intended for petroleum-
based and other oils that are inappropriate
for animal fats and vegetable oils
Thus, a legislative change is needed to pro-
vide direction to regulatory agencies by re-
quiring then to differentiate between non-
toxic animal fats and vegetable oils, on the
one hand, and all other oils. inqluding toxic
petroleum and non-petroleum oils, on the
other hand, when promulgating oil pollution
prevention and response regulations This
can be done witbout an amendment to these
statutes that would change or alter the prin-
ciples contained in them In particular.
agencies (I ) should provide a category for
animal fats and vegetable oils separate and
apart from all other oils and (2) should dif-
ferentiate these oils from other oils based on
a recognition of their distinct properties
sAcscRoUNlD
On August t8, 3990, the U.S Congress. in di-
rect response to several catastrophic tLS pe-
troleurn oil spills, including the EXXON
VALDEZ spill, enacted the Oil Pollution Act
of l (OPA 90) to reduce the risk of nii
spills, improve facility and vessei oil spill re-
sponse capabilities, and minimize the impact
of oil spills on the environment In enacting
OPA 90. Congress amended the Federal Water
Pollution Control Act to impose certain re-
quirements on the owners and operators of
vessels carrying “oil” and on facilities pos-
ing a risk of “substantial” harm or “signifi-
cant and substantial harm” to the environ-
ment. includisg requiring ow-nsrs end opera-
tors to prepare and submit response plans to
various federal agencies by February 18, 1993,
for review and approval, or stop handling oil
Other requirements affecting the handling
and transportation of oil were also enacted
Although petroleum oil has been the focus
of Congress’ attention during the enactment
of OPA 90, the law’s applicab,lity was not
limited to petroleum oil and, as a result, it
applies to all oils, inciudjng snimai fats and
vegetable oils Since enactment, various fed-
eral agencies have issued proposed or in-
terim final rules implementing OPA 90 re-
quirements (which include FWPCA pro d-
siens) The principal federal agencies and
what they are responsible for regulating are
as follows
U S Coast Guard (USCG) vessels and ma-
rine-t.ransportation-rulated (MTR) onshore
facilities, including any piping or structures
used fnr the transfer of nil to or from a ves-
sel
DOT Research and Special Programs Ad-
ministration fRSPA) tank trucks and rail-
road tank cat-s carrying oil
U S Environmental Protection Agency
large non-transportation-related onshore fa-
cilities handling, storing, or transferring oil,
and, the National Contingency Plan (NCP
DCI Minerals Management Service (MMS)
offshore facilities including any faciitty on
or over U S navigable waters
National Oceanic and Atmospheric Adrnin-
istration (NO&A) natural resource damage
assessment (NRDA) regulations
Federal natural resource trustees having
an interest in these rules include the Depart-
ments of Agriculture, Commerce. and Inte-
rior
119755
ISSUE
The animal fat and vegetab le oil industr
band)es, ships. and stores over 25 biilicn
pounds of animal fats and vegetable oiis an-
nually in the United States These agricul-
tural substances are essential components of
food products produced in the United States
industry Is concerned that some of the regu-
lations being developed will regulate animal
fats and vegetable oils to the same degree or
in the same manner as petroleum oils In:
spite of information collected to date that
suggests that different or less stringent reg-
ulations are appropriate For example a
June 28, 1993 report by ENVIRON Corpora-
tion, “Environmeotai Effects of Releases of
Animal Fats and Vegetable Oils to Vdater-
ways” and an associated Aqua Survey, Inc
study on the aquatic toxicity of petroleum
oil and of animal fats and vegetable oils
found that, unlike petroleum oils, the pres-
ence of animal fats and vegetabie oils in the
environment does not cause significant or
substantial harm That study reached the
following conclusions with respect to the ef-
fects of potential discbsrges of animal fats
and vegetable oils
They are non-toxic to the environment
They are essentiai components to human
and wildlife diets
They are readily biodegradable
They are not persistent in the environ-
me nt
They have a high Biological Oxygen De-
mand (BOD), which could result in oxygen
deprivation where there Is a large spill in a
confined body of water that has low flow asd
dilution
They can coat aquatic ttota and foul wild-
life (e.g. matting of fur or feathers, which
may lead to hypothermia)
The animal fat and vegetable oil industry
continues to seek data regarding the i mpact
of animal fats and vegetable oils on the envi-
ronment that will oiler new Insights to the
appropriate regulation of these materials On
the basis of scientific data available to date.
however, the oniy potential environmental
harm that may result from spills of these
products is the result of potential physical
effects of spills of liquids in large quantities
Those potential physical effects consist of (1)
the fouling of aquatic blots and wildlife that
are exposed to tbs liquid products in high
concentrations, and. (2) the potential oxygen
deprivation from tbe biodegradation of high
concentrations of liquid substances in con-
fined and slow-flowing bodies of water. Foul-
ing is not an issue, however. in the case of
substances that are solids or congeal in the
temperature conditions of the natural envi-
ronment in fact, that vegetable-based e lla
do not pose the same risk to the environ-
ment Is illustmatsd by the fact that suybean-
based solvents have been used to clean up pe-
troleum oIl spills Soybean oil ester, through
a process called Cyto sol m, was used to
clean-up fuel oil spilled during the MORRIS
J BERMAN spiii in Puerto Rico A NOAA
marine biologist recognized the use of
CytoSolT 4 as a “logical application of two
environmentally promising technologies
Illinois Soybean Farmer. p 12 (March /April
1994)
Moreover, the likelihood that an animal
fat or vegetable nil spill of such magnitude
will occur is extremely small The industry’s
spill prevention efforts have resulted in an
excailsnt environmental record icr these
products For example, a review of the data
recorded and compiled by the Coast Guard
reveals that, from 1966 to 1992, anImal fats
and vegetable oils together accounted for
only about 04 percent of the oil spill inci-
dents in and around U S waters (both in
terms of incidents and their voiume) Less
than half of those spills were in water Fur-
ther, these spills were generally very email
-------
H9756
Only 13 of those spills were greater than 1,000
gallons Put another way, only about 002
percent of all oil spill incidents in and
around U .S. waters over the last seven years
were spills of animal fats or vegetable oils
greater than 1.030 gallons
Furthermore. equipment and techniques
used to respond to petroleum oil spills often
will aggravate rather than mitigate the en d-
ronmental impact if used for animal fats and
vegetable oils Attempts to remove the small
quantities of animal fats and vegetable oils
present in a typical spill would in most cases
cause more environmental harm than would
the presence of those products in the envi-
ronment alone. For example, in comments
filed on ESPA. Docket Nos. HM-2l4 and PC -
1. dated June 3. 1993. the Department of Inte-
for recommended the establishment of re-
sponse plan requirements for animal fats and
vegetable oils comparable to those for other
oils, This recommendation na based on an-
ecdotal data derived from a discharge of but-
ter from a U.S. government warehouse Into
Shoal Creek, Maryland. DO! conceded, how-
ever. that the principal adverse environ-
mental effects of the Shoal Creek Incident
were caused by the removal efforts them-
selves
in addition to the differences noted above
between animal fats and vegetable oils and
petroleum oils, the animal fat and vegetable
oil industry is significantly different from
the petroleum tndustry in other waya war-
ranting disparats regtslatory treatment For
example, there are notable differences in the
vessel characteristics and transfer oper-
atIons involving animal fats and vegetable
oils and those invotving petroleum oils. Ves-
sels carrying petroleum oils can exceed
500.003 deadweight tons (the EXXON
VALDEZ was over 213,000 deadweight tons)
in contrast, vegetable oils typically are car-
ried on small parcel tankers ranging from
30.000 to 15,000 deadweight tons Further, dif-
ferences exist in the siae of the tanks carry-
ing these two kinds of products Large tank-
ers carryIng petroleum oil may have 10 large
center tanks and about IS wing tanks with
individual tank capacities reaching approxi-
mately 592,000 tons or 17t500jfl3 gallons nf
oil Parcel tankers carrying vegetable oil
typically have about 30 to 35 cargo tanks
that range from 1,003 to 3,500 tons capacity
each With regard to transfer operations, the
typical amount of vegetable oil loaded or
offloadsd during a transfer ranges from 500
to 5,003 tone In contrast, a tanker carrying
pet.roleu.m commonly loads or offloads its en-
tire cargo during one transfer operation
Similary, facilities that handle or store
animal fats and vegetable oils do not share
the same characteristics as petroleum refin-
eries and other facilities Facilities that
handle animal fats and vegetable oils are
generally located in or near areas in which
agricultural raw materials Ce g, oilseeds. Oil
bearing plants, and animals) are available
Consequently, unlike petroleum oil facili-
ties, many are found In the Midwestern Unite
ed States relatively far removed from the re-
gional oil spill response centers which have
evolved over the years and which are prin-
cipally dedicated to petroleum oil spills
In addition to the need for differentiation.
there is also a need for financial responsibil-
Ity regulations under CPA 90 that reflect the
actual risk associated with spills of animals
fats and vegetable oils Under current finan-
cial responsibility rules, which were in-
tended to address the problem of petroleum
oil pollution from tankers and handling fa-
cilities, are not limited to tank vessels car-
rying petroleum oil, but unfortunately apply
to all tank vessels regardless of the-cargo
carried Specifically, the definition cf tank
vessel is not cargo linked, therefore, by oper-
atlnn of law, every tank vessel, regardless of
CONGRESSIONAL RECORD — HOUSE
its cargb. has the ss.me liability and finan-
cial responsibility requirement as a petro-
leum oil tanker Other vessels, on the other
hand, are subject to half the limitation
amounts applicable to tank vesaela.
The higher amounts applicable to tankers
reflect the fact that the risks of pollution re-
lated to enormous quantities of petroleum
oil carried on tankers as cargo vastly out-
weigh the potential harm from other vessels
whose spills of petroleum oil are limited to
bunker fuel or lubricating oil used in the
propulsion and other mechanical systems of
the ship However, considering the animal
fat and vegetable oil industry’s excellent
spill prevention record and the significantly
lower riak of environmental harm posed by a
spill of these non-toxic, readily-biodegrad-
able agricultural products, the risk of harm
presented by vessels carrying animal fats
and vegetable oils Is similar to that of other
non-petroleum-carrying vessels and the li-
abilities and financial responsibility
amounts should be placed at the appropriate
level
niFyERDrflsTED RULES P4EEDEn
Unfortunately, there has been an over-
abundance of supposition and anecdotal data
cited to date to give support to treating
these non-toxic substances In the same man-
ner as petroleum oils Reliance upon such in-
formation underscores the dangers of Impos-
ing regulatory requirements on the industry
In s manner not specifically mandated by
Congress and without adequate scientific
foundation. In fact, no documented scientific
data support treating theae non-toxic animal
fate and vegetable oils In the same manner
as petroleum
To the contrary, the significant differences
between animal fate and vegetable oils and
other oils, warrant regulation of these sub-
stances in a different manner IdentIcal re-
quirements would represent a misapplication
of limited industry resources In addition, re-
quiring tank vessels whose only oil cargo is
animal fat or vegetable oil to provide the
same amount of financial responsibility as
tank vessels carrying petroleum oil falls to
recognize the risk of harm presented by
these vessels and imposes an unnecessary
burden on owners and operators
Unfortunately, agencies have been at-
tempting to achieve differentiation through
vague regulatory language that requires fur-
ther administrative or judicial interpreta-
tion to decipher and through discussions in
the preambles to regulations pub ] Ished in
the Federal Register These techniques are
examples of regulations that are not clear on
their face and in need of revision Not only
should available scientific Information he
used to differentiate, but so should basic
common sense Many existing regutatory re-
gimes go Into detail to create separate cat-
egories for classes or types of oils ipetro-
leum, edible, etcl Thus proven scientific and
regulatory structures already exist that
could form the basis of or model for a similar
approach for reguiations issued to imple-
ment the pollution prevention statutes
Differentiation in rules is also wnrrarited
in view of President Clinton’s Executive
Order on Regulatory Planning and Review
enunciates, and requires agencies to adhere
to, certain principles of regulation Exec
Order No 12.866. 58 Fed Reg 51,735, 51,736
(1993) Among those principles are the follow-
ing
In setting regulatory priortties, each agen.
cy shall consider, to the extent reasonable.
the degree and nature of the risks posed by
various substances or act lvilies within its
jurisdiction
Each agency shall base its dec,slcns on the
best rcasonabiy obtainable scientific, tech-
nical, economic. and other infnrnstion con-
October 10, 1995
cerning the need for, and consequences of.
the intended regulation
Each agency shall identify and assess al-
ternative forms of regulation and shall, to
the extent feasible, specify performance ob-
jectives, rather than specifying the behavior
or manner of compliance that regulated enti-
ties must adopt
Each agency shall avoid regulations that
are innonsletent, incompatible, or duplica-
tive of its other regulations or those of other
Federal agencies.
Each agency shalt tailor its regulations to
impose the least burden on society, including
individuals 1 businesses of differing ames, and
other entities (Including small communities
and governmental entities), consistent with
obtaining t he regulatory objectives, taking
into account, among other things, and to the
extent practicable, the costs of cumulative
regulations
coN tl..USloN
The animal fat and vegetable oil Industry
continoes to seek data to better understand
the environmental risks associated with the
transportation, handling, and storage of ani.
mal fate and vegetable oils On the basis of
scientific data currently available, however,
there is no rational basis for regulating
nnntoxin animal fats and vegetable oils In
the same manner as petroleum oils in fact,
it is very likely that Imposing certain regu-
latory requirements on animal fate and vege-
table oils based solely on requirements de-
veloped for the petroleum oil (e.g removal
and response strategies and techniques)
could lead to greater damage to the environ-
ment than the actual impact of a discharge
of these substances themselves Moreover,
these requirements would add to the cost of
these agricultural prod tcts A category for
animal fats and vegetable oil should be im-
plemented tbat Is separate and distinct from
all other oils, including petroleum oil in ad-
dition, regulations should take into account
the differences in the physical, chemical, bi-
ological. and other properties, and the end-
rc’nmrntai effects of these oils Further, reg-
ulatory principles should be followed which
clearly permit regulatory regimes to reflect
the economic Impact on the Industry regu-
lated
OFF IcE os’ M,,nAoEMnrr nn Buoorr.
Washington, DC , October 30, 1995
S’r s TEMEN’r OF AOMiNiatRATIOn PoLIcY
H It 436—Differentiate Between Petroleum
and Animal and Vegetable Oils (Ewing CR)
IL and 83 cosponsors)
The Administration has no objectIon to
House passage o rB I I. 436
Mr EWING. Mr Speaker, I yield
back the balance of my time
Mr OBERSTAR Mr. Speaker, I yield
myself 7˝ minutes.
Mr Speaker, under the amendment,
there are separate requirements There
Is a requirement for separate regula-
tions for edible and nonedible oils
under any Federal law
I would like to inquire of the gen-
tleman from North Carolina What
laws have been researched to determine
the application of thts language’ Could
the gentleman tell us which laws spe-
cifically are affected’
Mr BURR Mr Speaker, will the gen-
tleman yield’
Mr OBERSTAR I yield to the gen-
tleman from Nurth Carolina
Mr BURR Mr Speaker, I thank the
gentleman for yielding.
Those pertinent to the transpor-
tation and handling of oil have been
-------
October 10, 1995
looked at as it relates to this bifl, and
disposal. excuse me
Mr OBERSTAR Is that the only
Federal law’ It says ‘any Federal
law•’
Mr BURR As it relates to this
amendment, sir, the transportation,
the disposal has been looked at relative
to the change for edible oils The two
committees of jurisdiction have also
looked at It
Mr. OBERSTAR I submit there are
more laws that would be affected by
tins provision The oil pollution law,
for example, has two applications to
the Clean Water Act and to the trans-
portation of oils So we are talking
about the Coast Guard. We are talking
about rail. We are talking about pipe-
line transportation is that what the
gentleman has In mind?
Mr. BURR If the gentleman will
yield further, I would remind the gen-
tleman that this amendment deals
with the differentiation. There is no
exemption, exclusion It deals with the
differentiation
Mr. OBERSTAR. I understand that
But what I am trying to get at is the
scope of this provision I think it
should be clear on the record what It
is, which laws are being affected by
this process we are engaged in here.
Mr. BURR. If the gentleman will
yield further, three committees have
looked at this Issue.
Mr. OBERSTAR. That is not my
question. I did not ask how many com-
mittees. I asked how many laws The
gentleman doeB not have a catalogue of
laws affected by this provision’
Mr BURR If the gentleman will
yield further, the gentleman Is asking
me for statutory jurisdiction of each of
these committees of which I am not a
member, I would suggest it does affect
the Oil Pollution Act, which we are
here to address, and certainly it does
make common sense for us to address a
differentiation between vegetable oils
and petroleum-based products
Mr. OBERST&R Reclaiming my
time. it is not the differentiation that
concerns me It is to be clear about the
scope of impact of thIs legislation I
would suggest that when the gen-
tleman asks unanimous consent for
leave for Members to submit additional
comments for the RECORD, that he or
the committee chairman submit for
the RECORD the list of those laws that
will be affected by this legislation so
that the public, in evaluating, and
other Members, in evaluating this leg-
islation would know which laws specifi-
cally are affected by that very broad
language
0 1445
Mr. BURR Mr. Speaker, will the gen-
tleman yield 9
Mr OBERSTAR I yield to the gen-
tleman from North Carolina
Mr BURR Mr Speaker. I would cer-
t.ainiy request of the Committee on
Commerce for that listing and also
make the request of the other two corn-
mitteeb
CONGRESSIONAL RECORD — HOUSE.
Mr OBERSTAR Mr Speaker. I
thank the gentleman from North (‘aro-
lina I think that would be very impor-
tant and very useful.
When the Committee on Transpor-
tation and Infrastructure, Mr. Speaker.
considered this legislation, we consid-
ered specific laws. The bill before us is
a broad sweep and says all laws. It just
sort of cast a wide net out upon the wa-
ters and said anything that we did not
think of specifically, we just cast this
language out. That Is, I suggest, not
very appropriate legislation, it is not
very carefully crafted leg1sl t1on, and
it is again a reason for being concerned
with this process.
1 am a very strong believer in proc-
esses protecting rights of individuals
and rights of the Members of this body.
protecting rights of various interests
and the broad public Interest, arid I
think this process here is truly a dis-
service to that process
Mr. BURR. Mr Speaker, will the gen-
tleman yield?
Mr OBERSTAR. I yield to the gen-
tleman from North Carolina.
Mr. BURR. is the gentleman suggest-
ing that we only use common sense In
some cases?
I hear the gentleman’s concern with
process, but I would question that the
gentleman is more concerned with
process than outcome, and, in fact, the
common sense comes into play, and the
majority of Americans say there
should be a differentiation between the
two
Mr OBERSTAR. Reclaiming my
time, the Issue again, I state very
clearly, is not differentiation. The
issue I am raising here Is what are the
laws under which differentiation is to
take place There Is no listing. There is
a broad, sweeping grant of authority,
and that is the matter that concerns
me.
Yes, there should be a differentia-
tion But under which laws? How
broadly? How narrowly? How specifi-
cally Is this language to be drawn? How
specifically is it to be targeted’
As my colleagues know, we did that
in the Committee on Transportation
and Infrastructure. We were very care-
ful about It. This bill is just a broad.
sweeping generalisatlon. I do not think
it is appropriate to do that. We must be
more specific about the laws that are
going to be affected.
Now, as to the matter of differentia-
tion, that Is a matter of substantive
debate, and we could have a discussion -
on whether the edible oil Industry Is
appropriate In their concern that the
oil they produce should not be consid-
ered in the same breath with the toxic
effects of certain petroieusns or petro-
leum derivatives, and that is an en-
tirely different matter
But, as I said In my opening remarks,
we have had our own ‘experience ,in
Minnesota where with the soybean oil
spill there were toxic effects Nontoxic
substances in high amounts can have
toxic effects They ought to be consid-
ered separately and appropriately.
H9757
In addition, just because one indus-
try or one sector says we do not want.
to be included with everybody else that
has toxic oils, and ours are rot from
one standpoint, is no reason to bring a
special bill to the House floor for a spe-
cial purpose We bad the opportunity
to consider this issue when the House
took up the Clean Water Act The de-
gree of specificity provided in that leg-
islation, in both the 011 Pollution Act
and the Clean Water Act, where relief
was provided, did not raise any kind of
debate, did not ask for any kind of con-
sideration. and I do not think it is ap-
propriate, and that is the basis of my
objection.
The matter of differentiation, simply
because it has taken a long time for
the appropriate agency of Government
to Is8ue regulations under previously
existing laws, Is no reason to bring a
special bill to the House floor It is dif-
ficult, going back to the gentleman’s
point about differentiation, it is dif-
ficult to know whether such differen-
tiation is appropriate when we do not
know specifically In this bill the laws
to which that differentiation should be
applied
Mr. BURR. Mr. Speaker, will the gen-
tleman yield?
Mr. OBERSTAR. I yield to the gen-
tleman from North Carolina
Mr. BURR. In fact, in the bill itself I
think the gentleman would see that
what we have done is we have allowed
the heads of Federal agencies i.e con-
Mdc x’ differences in physical, chemical.
biological, and other properties, and
the environmental effects of the class-
es. To some degree we have empowered
the beads of these agencies to make
the determination in the best interests
of this country. I do not think the gen-
tleman would disagree with that inter-
est.
Mr. OBERSTAR I just say that when
language In a bill says any Federal law,
it is incumbent upon the author of
such language to be specific, to say
what those laws are I do not think
that we should ask the public to accept
something BO broad and sweeping they
have no Idea of what its implications
and what Its applications are.
Mr Speaker, I reserve the balance of
my time.
Mr BURR Mr. Speaker, I yield S
minutes to the gentleman from Arkan-
as .a [ Mr. HUTCi!INSON]
Mr. IItJTCHINSON Mr Speaker, I
thank the gentleman from North Caro-
lina [ Mr. Buna) for yielding this time
to me I compliment the gentleman
from North Carolina tMr. BURR). the
gentleman from Virginia [ Mr BLit.Ei’],
the gentleman from illinois [ Mr
Ewii mci), and the gentlewoman from
Missouri (Ms DANNER) for their hard
work on this bill, and I rise in strong
support of HR 436, the Edible Oil Reg-
ulatory Reform Act This common-
sense, risk-based approach to regula-
tion embodies what the Speaker had in
mind when he established the Correc-
tions Day Calendar This well-crafted,
noncontroversial bill simply requires
-------
H9758
Federal agencies to differentiate be-
tween animal fats and vegetable oils on
the one hand a.nd petroleum-based on
the other.
The Clean Water Act and the Oil Pol-
lutlon Act of 1990 are the two primary
Btatutes addressing discharge of oil
Into the Natlon’B waters Impacted by
this bill and to a lesser extent the Haz-
ardous Materlai8 Transportation Act.
Due to these statutes’ broad definitions
of oil and the lack of explicit guidance
from Congress. the regulatory agencies
have not adequately differentiated be-
tween animal fats and vegetable oils
and other oils, including petroleum.
Regulations that do not make these
commonsense differentiations could
Impose costly, unnecessary burdens on
handlers, transporters, and others in-
volved in the edible oil igidustry.
The animal fat and vegetable oil In-
dustry handles, ships, and stores over
25 bilUon pounds of product annually in
the United 8tates. These agricultural
substances are essential components to
our Nation’s economy and diet.
The record Is filled with documented
examples and justifications for treat’
lug animal fat and vegetable oil di i-
fereritly from other types of oil. For ex-
ample, these edible oils simply do not
present the same type of risk to the en-
vironment that other oils do.
When Congress enacted the Oil Pollu-
tion Act of 1990. It did not intend to
apply the same response planning, li-
ability, financial responsibility, and
cleanup req iirementa to edible oils to
the same extent as to crude oil and pe-
troleum-based substances.
Comparable versions of ILit. 436 have
already passed the House In two bills
this year H.R. 1361. the Coast Guard
authon ation bill for fiscal year 1996
and H H.. 961, the clean water amend-
ments of 1995.
Both versions moved through the
Transportation and Infrastructure
Committee, the committee on which I
served which the gentleman from
Pennsylvania [ Mr. SHUSTER] chairs, the
-mm lttee with jurisdiction over the
O l Pollution Act and the Clean Water
Act The committee has an extensive
record of testimony and other data af-
firming the need for the legislation.
The bill before us combines the views
of the three committees Involved’ the
Committee on Commerce, the Commit-
tee on Agnculture. and the Committee
on Transportation and Infrastructure
It includes a broad mandate for com-
mon sense. generally all Federal agen-
cies am required to differentiate be-
tween animal fat and vegetable oils on
the one hand and petroleum-based oils
on the other
It. Includes provisions to take Into ac-
count the special nature of food and
drug regulations that do not relate to
environmental discharge
H H. 436 Is an Important, non-
controversial solution to a regulatory
situation that needs correction, and I
urge my colleagues to support the bill
1 .tr. BURR. Mr Speaker, I yield 3
minutes to the gentleman from Iowa
[ Mr LATHAM)
CONGR1 SSIONAL RECORD— HOUSE
Mr. LATHAM. Mr. Speaker, I thank
the gentleman from Nortl Carolina
[ Mr. BuaR) for yielding this time to
me, and I especially want to thank the
chairman of the subcommittee, the
gentleman from flilnols (Mr. EWING),
and the gentlewoman from Missouri
(Ms. DANNIIR), for putting this excel-
lent bill forward. I am very, very proud
to be a cosponsor.
Mr. Speaker, as , member of both the
Committee on Agriculture and the
Committee on Transportation and In-
frastructure, this particular bill has
great significance to me, and I am
very, very proud once again to be a co-
sponsor. One of the reasons that last
year I ran for Congress as a farmer and
a small business person myself was be-
cause of the sometimes outrageous reg-
ulations that are placed on farmers and
small business people seeing the direct
effect of what those regulations have
on people who are working very, very
hard every day, striving to improve the
lives for themselves and for their chil-
dren. That Is one reason that I am so
supportive also of CorrectIon Days, be-
cause It does give us an opportunity to
right some of these wrongs which have
been put on the American public and
which have no benefit to the American
people, but cause great restrictions as
far as common sense in the business
and workplace. My district In north-
west Iowa produces a. tremendous
amount of soybeans. We have the larg-
est soybean crush in the United States,
any district in the United States. We
produce more soybean oil than any
other district, and that is why I am so
proud that H.B. 436 sImply requires,
once and for all, for Federal agencies to
tell the difference between what Is a
nontonic vegetable oIl or animal fats
and petroleum-based oils when writing
regulations, and we should keep in
mind that this does not exempt vegeta-
ble oils or animal fats from regulations
and spill plans The oils covered by this
bill are nontoxic. edible, natural, and
biodegradable, and I think the folks at
home should realize when they are
cooking every day the oil that they get
out of the bottle that they are frying
their food in, this is what we are talk-
ing about. This is not the sludge or the
crude from the Ezzon Valdez or some-
thing like this These are edible oils
that are used every day In the kitchen
in our homes and we eat every day
This should be very, very non-
controversial
I think this bill symbolizes the corn-
monsense reforms to the environ-
mental regulations of the Republican
Congress that we are trying to put
forth today This bill removes unneces-
sary costs of burdensome shipping
standards which should not apply to
nontoxic products such as vegetable
oils and animal fats
This type of regulation in the past is
part of the absurdity that we have had
in our regulatory parts of this Govern-
ment. and It is really hard for me to
believe that. it takes an act of Congress
to state that vegetable oil is not toxic
October 10, 1995
and should not be held to the same
standard as crude oil. American farm-
ers have suffered from increased ship-
ping rates and loss of foreign markets
due to these crazy regulations, and I
ask for everyone to support 436, whIch
is common sense. It brings back some
sanity to this Government.
0 1& )
Mr. OBERSTAR. Mr. Speaker, I yield
myself such time as I may consume.
Mr. Speaker, I would lIke to observe
that for all the hoopla over Corrections
Day created by the majority, that in 10
months we have considered San Diego
sewage and edible oils, one of which is
being resolved by the Environmental
Protection Agency on Its own, and the
other of which Is being resolved by the
Department of Transportation, and
regulations that agency has Issued,
which Is part of two other bills which
have passed the House. ThIs Is a large
waste of the body’s time and a process
that lB inappropriate for the consider-
ation of such subjects.
Mr. Speaker. I yield back the balance
of my time.
Mr. BURR. Mr Speaker, I yield my-
self 30 seconds.
Mr Speaker, I would make this com-
ment to my colleague, that is my 9
short months here in Washington, I
have learned that sometimes a little
nudge Is what Is needed to get the proc-
ess started. 1 hope this nudge of Correc-
tions Day will enable us to eliminate
those things that to the American peo-
ple are common sense, that we should
change and clarify.
Mr. Speaker, I yield such time as he
may consume to the gentleman from
flhinols (Mr EWING).
The SPEAKER pro ternpore (Mr. Ev-
aE’rr). The gentleman from flllnoie
(Mr. Ewn G) will close debate.
Mr. EWING. Mr. Speaker. I thank the
gentleman for yielding time to me, and
for giving me the opportunity to close
on this bill.
Mr Speaker, It is so simple, we
should not have to be here. Yet we are
here today because It baa not been
done That Is what the American peo-
pie are unhappy about- Two Con-
gresses, multiple bills, and we still
have the regulatory rock around our
necks It Is hard on agriculture, It does
not. hurt the environment, and yet, it
even Increases costs to consumers
across this country.
Mr. OBERSTAR Mr Speaker, will
the gentleman yield 9
Mr EWING. I yield to the gentleman
from Minnesota
Mr OBERSTAR Mr Speaker, I
would like to point out to the gen-
tleman that. the process has worked as
far as the substance of the gentleman’s
issue is concerned This body has acted
in last Congress and this Congress It is
the other body that has not acted I
suggest the gentleman direct his anger
to the other body
Mr EWING Mr Speaker. I would ask
the gentleman, then, why the objection
to do it ’ We need to do it. get. it out
-------
October 10, 1995 CONGRESSIONAL RECORD—HOUSE 119759
there is an indn’idual bill so it will not A motion to reconsider was laid_ 1 approval of the Under Secretary may not be
die as part of some other legislation I . !,, ab1e. for a period in excess of 150 days, which may
be extended by the Under Secretary for addi-
The people of this country cannot un- ____________
derstand bow we can be so bureau- tional periods of not to exceed 180 days ”
cratic. It is time for a change The Cor- GENERAL LEAVE (b) CRoss REFEREVCE A5 ENOMENTS —Sub-
section (C) of such section as redesignated
reotions Day Calendar is a good cal- Mr BURR Mr Speaker, I ask unani- by subsection (aX2). Is amended—
endar, and I would certainly enrourage rnous consent that all Members may C l ) In slit matter preceding parag’rsph (I ).
people of get behind this bitl Let us have 5 legIslative days in which to in- by striking out -subsection (bl(6)” and ri-
show the American people e do care chide extraneous material in the serting in lieu thereof “subsection Ib)(5)”,
about what they are concerned about. RECORD and
that we do care and that we can make The SPEAKER pro tempore Is there (2) in paragraph (2), by striking out “para-
government effective, efficient, and re- objection to the request of the geR- nph (1)(B)’ and inserting in lieu thereof
“section 7121(b) of this title”
sponsible tleman from North Carolina ’
Mr. SMITH c i New Jersey Mr Speaker, I There was no objection. The SPEAKER pro tempore Pursu-
ivant to express my strong support for two bills ant to the rule, the gentleman from Ar-
we are considenng today, both of which were izona (Mr. S T UMP) and the gentlerns.n
introduced by my good friend and colleague AUTHORIZING TEE CLERK ‘ro from Mississippi (Mr. MONTOOMERYJ
Representative HJrCitINsON MAKE CORRECTIONS fl’l EN- each will be recognized for 20 minutes
H.R. 1384 makes an important contnbution OROSSMENT o ’ H B. 436, EDIBLE The Chair recognizes the gentleman
to veterans health care by helpng ensure that cm REGULATORY REFORM ACT from Arizona (Mr. Snmu9.
the VA health care system can retain the best Mr. BURR Mr. Speaker, I ask u.narii- OCXEItAL LEAVE
health personnel. IJnfortejnalely, exisling VA mous consent that the Clerk may be Mr. STUMP. Mr. Speaker, I ask
reguisteons actually create a disincentive for authorized to make technical and con- unanimous consent that all Members
many health care protessionais to wod in the forming changes to H.R. 436, the bill may have S legislative days in which to
VA health care system just passed. revise and extend their remarks and in-
By restricting nurses, physician assistants, The SPEAKER pro tempore. Is there dude extraneous material on H R. 1364
arid dental auxiharies from obtaining additional ob)ection to the request of the gen- The SPEAKER pro tempore Is there
work outside the VA, we are forcing these per ’ tieman from North Carolina? objection to the request of the gen-
sonnet to make a choice between remaining in There was no objection tiernan from Arizona?
the VA, or leaving the system altogether. ___________ There was no objection
Many of these employees feel that they must Mr. STUMP. Mr. Speaker, I yield my-
obtain income from secondary sources in EXEMPTING CERTAIN FULL-TIME ealf such time as I may consume.
order to support their families end make ends HEALTH CARE PROFESSIONALS (Mr. STUMP asked and was given
meet They should be allowed to do so, while OF THE DEPARTMENT OF VET- permission to revise and extend his re-
st! ? serving the VA We should not nsk losing ERANS AFFA S FROM RESTRIC- ‘ ‘ )
talented people In the VA health caie system tONS ON REMUNERATED oin”- Mr. Speaker, H.R 1384
simply because of an outdated regulation that SIDE PROFESSIONAL ACTIVFTIES would exempt VA professional nurses,
no longer serves a uselul purpose. Mr. snmw. Mi’. Speaker, I move physicians’ asaistaots, and expanded-
Mr. Speaker, I also want to urge my c01 suspend the rules and pass the bill duty dental auxiLiaries from restrlc-
leagues to support H.R. 1536. which will ex- (H R 1384), to amend title 38, United tions regarding outside professional ac-
tend the VA’s authority to use local sa t ary dais States Code, to exempt certain full- tivities for remuneration
to determine the salary levels ol nurse aries time health care professionals of the Speaker, the CEO has stated H.R
thetists. This provision is necessary to ensure De .rtment of Veterans Affairs from 1384 would have no significant impact
that nurse anesthetists are fairly compensated restrictions on remunerated outside on the Federal budget. I would like to
for their services, In the same manner that professional activities, as amended, express my appreciation to the gen-
compensation for regular nurses is determined The Clerk read as follows’ tleman from Mississippi, Som4Y MoN T-
GOMERY, ranking member of the full
through the Veterans Affairs Nurse Pay Act of H . 1384
1990. commIttee, the gentleman from An-
Ass menter of the veterans’ Subcomrnit- Be It enacted b the Senateondffe’useofAep- sons, Tat }lU’rc]m’.soN, cbairntin of the
resentattves of the United States of America in Suboom ittee on Hospitals and Health
tee on Hospeials srid Health Care, I was congress assembled,
pleased to support both of these bills at both i.DEPARnffNTOFVrItRANSAflA IBS Care, as well as the gentleman from
the subcornn’iittee end the full committee level PERSONNEL ArMW4TSfliA I ION Texas, Cilrr EDWARDS. who is the ran Ic-
I want to thank Chairman HUTCI’iiNSasl tor his (a) ExEMVrION or Cxnnn BEam-Caaa ing member of the subcommittee, for
diligent work on these legislative initiatives, PROFEss IONALS FROM RZ5TRIC’flONe ON REM I T- their support of the bill.
and urge all my colleagues to give their full NEL TEn Ou’rsine PaorzssIoNAL Active- Mr. Speaker, in addition to thanking
support to these two measures —Section 7423 of title . United States the gentleman from Mississippi [ Mr
Mr. BURR. Mr. Speaker, I yield back Code. is amended— MONTGOMERY] for his work on this bill.
the balance of my time (1) in subsection (b). by striking out pars- would like to be one of the first Mem-
graph (1) and redeslgnating paragraphs (2), bers on this floor today to say how
The SPEAKER pro ternpore Pursu- (3), (4), (5). and (6) as paragraphs (1), (2), (31.
ant to the rule, the previous question (I). and (5), respectively, much I regret his decision to retire
In ordered. (2) by redeaignating subsections (a). (d), (s), from the House at the end of this term
The question is on the amendment in and (I’) as subsections (dJ, Ce), (11 and (g), re- The gentleman from Mississippi has
the nature of a substitute offered by spectlveiy; and been a great friend for many years, and
the gentleman from North Carolina (3) by inserting after subsection (b) the fol- we have worked on many issues over
[ Mr BURR). lowins new subsection (t) those years. I just want him to know
“(c)(i) An employee of the Veterans Health that I will miss both his friendship and
The amendment in the nature of &
Adsnlcistration who is covered by subsection
substitute was agreed to (a) (other than a registered nurse, a physi- his counsel There will, of course, be
The SPEAKER pro tempore The clan’s assistant, or an expanded-duty dental many occasions over the next 14
question is on the engrossment and auxiliary) may not assume responsibility for months to more properly express our
third reading of the bill the medical care of any patient other than a appreciation for his outstanding serv-
The bill was ordered to be engrossed patIent admitted for treatment at a Depart- ice in this House. but I would like h u n
and read a third time, and was read the meut facility to know that I both regret his decision,
third timeS “(2) The limitation In paragraph (1) shall but also wish him the very best in his
The SPEAKER pro tempore me not apply in a case In which the employee,’ f tit endeavors
upon request and with the approval of the
question is on the passage of the bill under Secretary for Health, assumes such . Mr Speaker, 1 yield such time as he
The question was taken, and (three- apcnsitillties to assIst communities or mcdl- may consume to the gentleman Iron
fifths having voted in favor thereon cal practice groups to meet medical needs Arkansas (Mr HwrcIuNsoN], chairman
the bill was passed which would not otherwise be avsilabte The of the Subcommittee on Hospitals and
-------
104m CONGRESS I I liEn’ 104—262
1st Session J FIOUSt. REPRESENTATIVES Part 1
EDIBLE OIL REGULATORY REFORM ACT
SEPTEMBER 27, 1995 —Ordered to be pnnted
Mr ROBERTS, from the Committee on Agriculture,
submitted the following
REPORT
ITo accompany H R 436)
l lncluding cost estimat&of the Congressional Budget Office )
The Committee on Agriculture, to whom was referred the bill
(H H 436) to require the head of any Federal agency to differen-
tiate between fats, oils, and greases of animal, marine, or vegetable
origin, and other oils and greases, in issuing certain regulations,
and for other purposes, having considered the same, report favor-
ably thereon with an amendment and recommend that the bill as
amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu thereof
the following
SECTION 1 SHORT TITLE
This Mt may be cited as the ‘Edible Oil Regulatory Reform Act”
SEC 2 DEFINITIONS
As used in this Act
(1) A1’dMAL FAT —The term “animal fat” means each type of animal fat, oil,
or grease (incLuding fat, o il, or grease from fish or a manne mammal), including
any fat, oil, or grease referred to in section 61(aX2) of title 13, Urnted States
Code
(2) VEGETABLE OIL —The term “vegetable oil” means each type of vegetable
oil (including vegetable oil from a seed, nut, or kernel), including any vegetable
oil referred to in section 61(a)(1) of title 13, Umted States Code
SEC 3 DIFFERENTIATiON AMONG FATS, OilS, AND GREASES
(a) IN GENERAL—In issuing or enforcing a regulation, an interpretation, or a
guideline relating to a fat, oil, or grease under a Federal law, the head of a Federal
agency shall—
(1) differentiate between and establish separ&ite categones for—
(AX ’) animal fats, and
0 0 vegetable oils, and
(B) other oils, including petroleum oil, and
99 —006
-------
2
3
121 apply dillerent. standards to different classes of fat arid oil as provided in
subsection 1W
(bi CONSIDERATION —In differentiating between the classes of animal fats and
vegetable oils referred to in subsection Ia)) 11 (A) and the classes of oils described in
subsection (a)(1)(B). the head of the Federal agency shall consider differences in
physical, chemical, biological, and other properties and in the effects on human
health and the environment, of the classes
SEC 4 FINANCIAL RESPONSIBIUTY
(a) LIMITS OF LiAniLiry —Sectlorl 1004(a)(l) of the Oil Pollution Act of 1990 (33
usc 2704 (a)(1() is amended by striking “for a tank vessel.” and inserting “for a
tank vessel (other than a tank vessel carrying animal fat or vegetable oil>,”
(hI FII’.ANCIAL Ri’ .sroNsrnlLrrv —The first sentence of section 1016(a) of the Act
(33 U S C 2fl6(a)) is amended by striking “in he case of a tank vessel,’ and insert-
ing in the case of a tank vessel (other than a tank vessel carrying animal fat or
vegetable oil).”
BRIEF EXPLANATION
The Edible Oil Regulatory Reform Act is designed to require Fed-
eral agencies in issuing or enforcing a regulation, an interpretation,
or a guideline to differentiate between and establish separate cat-
egories for animal fats and vegetable oils and other oils, such as
petroleum Federal agencies should consider differences in the
physical, chemical, biological, and other properties between classes
of animal fats and vegetable oils and the classes of other oils, and
in the effects on human health and the environment, of the classes
This Act limits the liability under the Oil Pollution Act of 1990 for
a tank vessel carrying animal fat or vegetable oil to the greater of
$600 per gross ton of the tank vessel or $500,000 The liability of
the responsible par ty is limited to the same amount as the tank
vessel and such responsible party must establish and maintain, in
accordance ith regulations promulgated by the Secretary of
Transprntation, evidence of financial responsibility sufficient to
meet (he i-cmoval costs and damages incident to an oil discharge.
PURPOSE AND NEED
The purpose of the Edible Oil Regulatory Reform Act is intended
to avoid the application of costly, inappropriate, and counter-
productive regulatory requirements intended for petro 1 eum and
other oils to animal fats and vegetable oils. Due to the broad defini-
tion of oil in the Oil Pollution Act of 1990, regulatory agencies have
generally failed to differentiate between animal fats and vegetable
oil and other oils, such as petroleum oil As a result, regulatory
agencies, despite scientific evidence and other data justifying dif-
ferentiation, have proposed or issued regulations that regulate ani-
mal fats and vegetable oils to the same degree as toxic oils.
Due to the failure of regulatory agencies to differentiate between
fats, oils, or greases and other oils, this Act directs those agencies
to differentiate between non-toxic animal fats and vegetable oils
and all other oils, including toxic petroleum and non-petroleum
oils, when promulgating oil pollution prevention and response regu-
lations In requiring differentiation, the Committee intends that
the provisions of this legislation cover products made from animal
fats and vegetable oils that contain no petroleum or toxic additives.
Such differentiated animal fat and vegetable oil products include,
but are not -uted to, lubricants, greases, hydraulic fluids, sol-
vents, and io-alkyl esters used as fuel for diesel engines
(biodiesel). These products are non-toxic, biodegradable, and should
be treated no differently than animal fats and vegetable oils
SECTION-BY-SECTION
SECTION I SHORT TITLE
This section provides that this Act may be cited as the “Edible
Oil Regulatory Reform Act”.
SECTION 2. DEFINITIONS
Paragraph (1) of this section defines the term “animal fat” to
mean each type animal fat, oil, or grease, including fat, oil or
grease from fish or a marine mammal. Additionally, the term ‘ani-
rnal fat” includes any fat, oil, or grease referred to in section
61(a)(2) of title 13, United States Code
Paragraph (2) defines the term “vegetable oil” to mean each type
of vegetable oil, including vegetable oil from a seed, nut, or kernel
Additionally, the term “vegetable oil” includes any vegetable oil re-
ferred to in section 61(a)(1) of title 13, United States Code
The Committee intends that the definition of the terms “animal
fat” and “vegetable oil” includes products made from animal fats
and vegetable oils that contain no petroleum or toxic additives.
Such animal fat and vegetable oil products include, but are not lim-
ited to, lubricants, greases, hydraulic fluids, solvents, and mono-
alkyl esters used as fuel for diesel engines (biodiesel). These prod-
ucts are non-toxic, biodegradable, and should be treated no dif-
ferently than animal fats and vegetable oils.
SECTION 3 DIFFERENTIATION AMONG FATS, OILS, AND CREASES
Subsection (a) of this section requires a Federal agency in issuing
or enforcing a regulation, an interpretation or a guideline relating
to a fat, oil, or grease under a Federal law, to differentiate between
and establish separate categories for animal fats and vegetable oils
and other oils. The Federal agency shall also apply different stand-
ards to different classes of fats and oils.
Subsection (b) provides that in differentiating between classes of
animal fats and vegetable oils and other oils, the Federal agency
shall consider differences in physical, chemical, biological, and
other properties, and in the effects on human health and the envi-
ronment of the classes.
SECTION 4. FINANCI RESPONSIBILrj’y
This section provides that under the Oil Pollution Act of 1990,
the liability for a tank vessel carrying animal fat or vegetable oil
is limited to the greater of $600 per gross ton of the tank vessel
or $500,000. The liability of the responsible party is limited to the
same amount as the tank vessel and such responsible party must
establish and maintain, in accordance with regulations prornul-
gated by the Secretary of Transportation, evidence of financial re-
sponsibility sufficient to meet the removal costs and d ‘ges inci-
dent to an oil discharge
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4
5
COMMITTEE CONSIDERATION
The Committee on Agriculture met, pursuant to notice, on Sep-
tember 20, 1995, a quorum being present, to consider H R 436, the
“Edible Oil Regulatory Reform Act,” and other pending business.
Chairman Roberts called the meeting to order in the presence of
a quorum and without objection discharged the Subcommittee on
Department Operations, Nutrition, and Foreign Agriculture from
further consideration of H R 436 Mr Ewing was then recognized
for an explanation of the bill
After an explanation of the bill and a brief discussion. Mr. Ewing
offered an Amendment in the Nature of a Substitute, to H R 436,
which was adopted by a voice vote Mr Ewing then moved that the
bifl, as amended, be favorably reported to the House for consider-
ation on the corrections cxiendar That motion, without objection,
being adopted by a voice vote, Mr Emerson who moved that the
Committee authorize the Chairman to offer such motions as may
be necessary in the House to go to conference with the Senate on
the bill, H R 436, or similar Senate bills. The motion was also
adopted by a voice vote
The Committee then proceeded to other items of business.
REPoRTING THE BILII—ROLLCALL VOTES
In compliance with clause 2(l)(2) of rule XI on the House of Rep-
resentatives, the bill was reported, as amended, with a quorum ac-
tually present by a voice vote. There was no motion or request for
a recorded vote
ADMINISTRATION PosiTioN
At the time of the filing of this report, the Committee had not
received a report from the U S Department of Agriculture concern-
ing H R 436, as amended, to require the head of any Federal agen-
cy to differentiate between fats, oils, and greases of animal, marine,
or vegetable origin, and other oils and greases, in issuing certain
regulations, and for other purposes
BUDGET ACT COMPLIANCE (sEcTIoN 308 AND SECTION 403)
The provisions of clause 2(l)(3)(B) of rule X I of the Rules of the
House of Representatives and section 308(a) of the Congressional
Budget Act of 1974 (relating to estimates of new budget authority,
new spending authority, or new credit authority, or increased or
decreased revenues or tax expenditures) are not considered applica-
ble The estimate and comparison required to be prepared by the
Director of the Congressional Budget Office under clause 2(l)(CX3)
of rule Xl of the Rules of the House of Representatives and section
403 of the Congressional Budget Act of 1974 submitted to the Com-
mittee pnor to the filing of this report are as follows
US CONGRESS,
CONGRESSIONAL BUDGET OFFIcE,
Washington, DC, September 27, 1995
Hon. PAT ROBERTS,
Chairman, Committee on Agriculture,
House of Represenlaiwes, Washington, DC.
DEAJ MR. CHAIRMA.N: The Congressional Budget Office has re-
viewed H.R. 436, the Edible Oil Regulatory Reform Act, as ordered
reported by the House Committee on Agriculture on September 20,
1995. The bill defines animal fat and vegetable oil, and would re-
quire the head of a federal agency to apply different regulatory
standards to classes of fats and vegetable oils and other classes of
other oils, including petroleum oil, based on physical, chemical and
other properties. The bill would also change financial responsibility
requirements for tank vessels carrying animal fat or vegetable oil.
CBO estimates that enacting H.R 436 would not result in any sig-
nificant cost to the federal government, and would not affect the
budgets of state or local governments.
Enactment of H.R 436 would not affect direct spending or re-
ceipts. Therefore, pay-as-you-go procedures would not apply to the
bill.
If you wish further details on this estimate, we will be pleased
to provide them. The CBO staff contact is David Hull.
Sincerely,
J ics L. BLUM
(For June E O’Neill, Director).
INFLATIONARY IMPACT STATEMENT
Pursuant to clause 2(l)(4) of rule X I or the Rules of the House
of Representatives, the Committee estimates that enactment of
H.R 436, as amended, will have no inflationary impact on the na-
tional economy.
OVERSIGHT STATEMENT
No summary of oversight findings and recommendations made by
the Committee on Government Reform and Oversight under clause
2(l)(3)(D) of rule Xi of the Rules of the House of Representatives
was available to the Committee with reference to the subject mat-
ter specifically addressed by H R. 436, as amended
No specific oversight activities other than the hearings detailed
in this report were conducted by the Committee within the defini-
tion of clause 2(b)(1) of rule X of the Rules of the House of Rep-
resentatives.
CHANGES IN EXiSTING LAW MADE BY THE BILL, AS REPORTED
In compliance with clause 3 of rule XIII of the Rules of the House
of Representatives, changes in existing law made by the bill, as re-
ported, are shown as follows (existing law proposed to be omitted
is enclosed in black brackets, new matter is printed in italic, exist-
ing law in which no change is proposed is shown in roman)
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6
OIL POLLUTION ACT OF 1990
* • * * * * *
TITLE I—OIL POLLUTION LIABILITY AND COMPENSATiON
S * S * * * *
SEC. 1004. LIMITS ON LIABILITY.
(a) GENERAL RULE —Except as otherwise provided in this sec-
Lion, the total of the liabiltty of a responsible party under section
1002 and any removal costs incurred by, or on behalf of, the re-
sponsible party, with respect to each incident shall not exceed—
(1) Ifor a tank vessel,I for a tank vessel (other than a tank
vessel carrying animal fat or vegetable oil), the greater of—
(A)***
* a * a * * a
SEC. 101€. FINANCIAL RESPONSIBILITY.
(a) REQtJIREMENT.—The responsible party for—
(1) any vessel over 300 gross tons (except a non-self-pro-
pelled vessel that does not carry oil as cargo or fuel) using any
place subject to the jurisdiction of the United States; or
(2) any vessel using the waters of the exclusive economic
zone to transship or lighter oil destined for a place subject to
the jurisdiction of the United States;
shall establish and maintain, in accordance with regulations pro-
mulgated by the Secretary, evidence of financial responsibility suf-
ficient to meet the maximum amount of liability to which, tin the
case of a tank vessel,I in the case of a tank vessel (other than a
tank vessel carrying animal fat or vegetable oil), the responsible
party could be subject under section 1004 (a)(1) or (d) of this Act,
or to which, in the case of any other vessel, the responsible party
could be subjected under section 1004 (a)(2) or (d), in a case where
the responsible party would be entitled to limit liability under that
section If the responsible party owns or operates more than one
vessel, evidence of lirtancial responsibility need be established only
to meet the amount of the maximum liability applicable to the ves-
sel having the greatest maximum liability.
* * * * * *
a
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104TH CONGRESS I REVE 104—252
1st Session J HOUSE OF REPRESENTATIVES Part 2
DIFFERENTIATION AMONG FATS, OILS, AND GREASES
SEPTEMBER 27, 1995 —Ordered to be printed
Mr BLILEY, from the Committee on Commerce,
submitted the following
REPORT
(To accompany H It 436]
[ Including cost estimate of the Congressional Budget Office]
The Committee on Commerce, to whom was referred the bill
(I-I R 436) to require the head of any Federal agency to differen-
tiate between fats, oils, and greases of animal, marine, or vegetable
origin, and other oils and greases, in issuing certain regulations,
and for other purposes, having considered the same, report favor-
ably thereon with an amendment and recommend that the bill as
amended do pass
CONTENTS
Page
The amendment
Purpose and summary 2
Background and need for legislation 2
Hearings 4
Committee consideration 4
Roll call votes 4
Committee oversight findings 5
Committee on government reform and oversight 5
Committee cost estimate 5
Congressional Budget Office estimate 6
Inflationary impact statement 7
Section-by-section analysis of the legislation 7
Committee correspondence 7
Changes in existing law made by the bill, as reported B
AMENDMENT
The amendment is as follows
Strike out all after the enacting clause and insert in lieu thereof
the following
79—581
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2
SECT iON I DIFFERENTiATION AMONG FATS, OILS. AND CREASES
(a) k GEr’.Eaa — In issuing or enforcing any regulation or establishing any inter-
pretation or guideline relating to a fat, oil, or grease under any Federal law pertain-
ing to the transportation, storage, disposal, discharge, or release of that substance,
the head of any Federal agency shall differentiate between—
(IRA) animal fats and a ils and greases, and flsh and manne mammal oils,
within the meaning of paragraph (2) of section 61(a) of title 13, United States
Code, or
CB? oils of vegetable origin, including oils from the seeds, nuts, and kernels
referred to in paragraph i]nA of such section, and
(2 1 other oils and greases! including petroleum
(b) CONTSIDERATIONS—!n differentiating between the class of fats, oils, and
greases described in subsection (ahfl and the class of oils and greases described in
subsection (aX2), the head of the Federal agency shall consider differences in the
physical, chemical, biological, and other properties, and in the environmental effects,
of the classes
PURPosE AND SUM1\4ARY
Congress has enacted two principal statutes that address the dis-
charge of “oil” into the Nation’s waters—the Federal Water Pollu-
tion Control Act, and the Oil Pollution Act of ’ 1990 (OPA 90) Due
to these statutes’ broad definition of oil and the lack of clear Con-
gressional direction on differentiating animal fats and vegetable
oils from other types of oils and greases, including petroleum, regu-
latory agenc ies have not made such differentiations in certain im-
plementing regulations they propose and promulgate As these
rules could impose costly, inappropriate, and sometimes counter-
productive requirements on handlers and transporters of animal
fats and vegetable oils, it is necessary for Congress to direct such
Federal agencies to make such differentiations
BACKGROUND AND NEED FOR LEGISLATION
In 1990, in response to several petroleum oil spills, including the
Exxon Valdez spill, the Congress enacted the Oil Pollution Act of
1990 (OPA 90) to reduce the risk of oil splits, improve facility and
vessel oil spill response capabilities, and minimize the impact of oil
spills on the environment In enacting OPA 90, Congress amended
the Federal Water Pollution Control Act to impose certain require-
ments on the owners and operators of vessels carrying “oil” and on
facilities posing a risk of “substantial” harm or “significant and
substantial harm” to the environment, including requiring owners
and operators to prepare and submit response plans to various
Federal agencies for review and approval, or stop handling oil
Other requirements affecting the handling and transportation of oil
also were enacted
Although petroleum oil was the focus of Congress’ attention dur-
ing the enactment of OPA 90, the application of the law has not
been limited to petroleum oil The requirements of the law have
been applied to all oils, including animal fats and vegetable oils
The animal fat and vegetable oil industry handles, ships, and
stores over 25 billion pounds of animal fats and vegetable oils an-
nually in the United States These agricultural substances are es-
sential components of’ food products produced in the United States
There are several reasons why the handling and transportation of
animal fat and vegetable oils should be treated differently from the
handling and transportation of non-animal fat and vegetable oils,
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3
including petroleum First, there is evidence that exposure of ani-
mal fat and vegetable oils to the environment does not present the
sane environmental risks as exposure of non-animal fat and vege-
table oils, such as petroleum For example, a June 28, 1993, report
by ENVIRON Corporation, “Environmental Effects of Releases of
Animal Fats and Vegetable Oils to Waterways” and an associated
Aqua Survey, Inc study on the aquatic toxicity of petroleum oil
and of animal fats and vegetable oils made the following findings
with respect to animal fats and vegetable oils
They are readily biodegradable,
They are not persistent in the environment;
They have a high biological oxygen demand (BOD), which
could result in oxygen deprivation where there is a large spill
in a confined body for water that has low flow and dilution,
They are essential components to human and wildlife diets,
and
They can coat aquatic biota an& foul wildlife (eg, matting of
fur or feathers, which may lead to hypothesia)
Second, there are notable differences in the manner in which ani-
mal fats and vegetable oils and other non-animal fats and vegeta-
ble oils are transported Vessels carrying petroleum oils can exceed
500,000 deadweight tons. In contrast, vegetable oils typically are
carried on. small parcel tankers ranging from 30,000 to 45,000
deadweight tons Further, differences exist in the size of the tanks
in vessels carrying these two kinds of products Large tankers car-
rying petroleum oil may have 10 large center tanks and 15 wing
tanks with individual tank capacities reaching approximately
592,000 tons or 177,600,000 gallons of oil Parcel tankers carrying
vegetable oil typically have about 30 to 35 cargo tanks that range
from 1,000 to 3,500 tons capacity each With regard to transfer op-
erations, the typical amount of vegetable oil loaded or offloaded
during a transfer ranges from 500 to 5,000 tons In contrast, a
tanker carrying petroleum commonly loads or ofiloads its entire
cargo during one transfer operation
Third, spills of animal fats or vegetable oils are likely to be
smaller and to occur less frequently than spills of non-animal fats
and vegetable oils Data compiled by the Coast Guard reveals that,
from 1986 to 1992, animal fats and vegetable oils together ac-
counted for only about 0 4 percent of the oil spill incidents in and
around U S waters (both in terms of incidents and their volume)
Less than half of those spi 1 is were in water Further, these spills
were generally very small Only thirteen of those spills were great-
er than 1,000 gallons Thus, only about 0 02 percent of all oil spill
incidents in and around U S waters over the last seven years were
spills of animal fats or vegetable oils greater than 1,000 gallons
Finally, there is evidence that the response to a spill of animal
fats or vegetable oils should, in certain circumstances, be different
than the response to a spill of non-animal fats and vegetable oils,
including petroleum In comments filed on RSPA Docket Nos HM—
214 and PC—I, dated June 3, 1993, the Department of Interior
(DOI) recommended the establishment of response plan require-
ments for animal fats and vegetable oils comparable to those for
other oils This recommendation was based on anecdotal data de-
rived from a discharge of butter from a U .S government warehouse
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4
into Shoal Creek, Maryland DO! conceded, however, that the prin-
cipal adverse environmental effects of the Shoal Creek incident
were caused by the removal efforts themselves
Differentiation by Federal agencies between animal fats and veg-
etable oils and other oils and greases, including petroleum, also is
consistent with President Clinton’s Executive Order on Regulatory
Planning and Review {E 0. 12,866, 58 Fed Reg. 51,735. 51,736
(1993)) which sets out the following principles
in setting regulatory priorities, each agency shall consider, to
the extent reasonable, the degree and nature of the risks posed
by various substances or activities within its jurisdiction,
Each agency shall base its decisions on the best reasonably
obtainable scientific, technical, economic, and other informa-
tion concerning the need for, and consequences of, the intended
reguLation
Each agency shall identtfy and assess alternative forms of
regulation and shall, to the extent feasible, specify performance
objectives, rather than specifying the behavior or manner of
compliance that regulated entities must adopt
Each agency shall avoid regulations that are inconsistent, in-
compatible, or duplicative of its other regulations or those of
other Federal agencies.
Each agency shall tailor its regulations to impose the least
burden on society, including individuals, businesses of differing
sizes, and other entities Ctncludrng individuals, businesses of
diffenng sizes, and other entities (including small communities
and governmental entities) consistent with obtaining the regu-
latory objectives, taking into account, among other things, and
to the extent practicable, the costs of cumu].ative regulations.
The Committee concludes, therefore, that there is strong evi-
dence on which to base a conclusion that Federal agencies charged
with the handling, transportation, and disposal of animal fats and
vegetable oils should differentiate between such fats and oils and
other oils and greases, including petroleum
HEAR N C S
The Committee on Commerce has not held heanngs on the legis-
lation
COMMITtEE CONSIDERATION
On September 27, 1995, the Committee ordered reported H R
436, with an amendment, by voice vote, a quorum being present
ROLL CALL VOTES
Clause 9(IX2XB) of rule X I of the Rules of the House requires the
Committee to list the recorded votes on the motion to report legis-
lation and on amendments thereto There were no recorded votes
taken in connection with ordering H R 436 reported or in adopting
the amendment The voice votes taken in Committee are as follows.
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5
COMMITTEE ON COMMERCE— 1O4TH CONGRESS VOICE VOTES
Bill
H R 436, a bill to require the head of any Federal agency to di i ’-
ferentiate between fats, oils, and greases of animal, marine, or veg-
etable origin, and other oils and greases, in issuing certain regula-
tions, and for other purposes.
Amendment
Amendment by Mr Bliley re clarifies that the bill applies to the
transportation, storage, disposal, discharge or re]ease of such oils
Disposition
Agreed to, by a voice vote
Motion
Motion by Mr Bliley to order H.R 436, as amended, reported to
the House
Disposition
Agreed to, by a voice vote.
COMMITTEE OVERSIGHT FINDINGS
Pursuant to clause 2(1)(3)(A) of rule X l of the Rules of the House,
the Committee has not held oversight or legislative hearings on
this legislation
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
Pursuant to clause 2(l)(3)(D) of rule Xl of the Rules of the House
of Representatives, no oversight findings have been submitted to
the Committee by the Committee on Government Reform and
Oversight
COMMITrEE Cosi’ ESTIMATE
Under clause 7(a) of rule XIII of the Rules of the House of Rep-
resentatives, the Committee is required to provide the following (I)
an estimate of the costs which would be incurred in carrying out
this bill in the fiscal year in which it LS reported, and in each of
the five following fiscal years, (2) a comparison of the estimate of
such costs by the Committee with any estimate of such costs made
by any government agency and submitted to the Committee, and
(3) when practicable, a comparison of the total estimated funding
level for the relevant program with the appropriate levels under
current law
The legislation would require the head of a Federal agency to dif-
ferentiate between animal fats and vegetable oils and other oils
and greases, including petroleum, when issuing or enforcing any
regulation or establishing any interpretation or guideline relating
to a fat, oil or grease under any Federal law pertarning to the
transportation, storage, disposal, discharge, or release of that sub-
stance The legislation does not impose any new rulemaking re-
quirements on any agency Therefore, the Committee estimates
that compliance with this provision would not result in any signifi-
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‘- 1
cant additional costs being incurred, either in the fiscal year in
which it is reported or in any of the five following fiscal years The
Committee further estimates that the legislation would not impose
any additional costs on State and local governments
No other cost estimates have been submitted to the Committee,
therefore, the Committee is unable to compare the Committee’s
cost estimate with any other cost estimate Finally, the Committee
believes that it is not practicable to compare the total estimated
funding level for the relevant program with the appropriate levels
under current law because the legislation applies to a broad array
of programs and because the Committee has estimated that the
legislation does not impose any significant additional costs
CONGRES5 IONa BUDGET OFFiCE ESTIMATE
Pursuant to clause 2(l)(3XC) of rule X l of the Rules of the House
of Representatives? following is the cost estimate provided by the
Congressional Budget Office pursuant to section 403 of the Cc ii-
gressional Budget Act of 1974.
U.S CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Wash ington, DC , September 27, 1995
Hon THOMASJ BLJLEY,Jr,
C ha irman, Committee on Commerce,
Hoti se of Represen!a! ties, Wash ngton, DC
DEMt Ma Ci-i&IRIM 4 tN The Congressional Budget Office has re-
viewed H R 436, a b ill to require the head of any Federal agency
to differentiate between fats, oils, and greases of animal, marine,
or vegetab]e origin, at3 other oils and greases. Lii JsSL icgcert]ir
regulations, and for other purposes, as ordered reported by Com-
mittee on Commerce on September 27, 1995 The bill would require
the head of a Federal agency to apply different regulatory stand-
ards to classes of fats and vegetable oils and other classes of other
oils, including petroleum oil, based on physical, chemical and other
properties CBO estimates that enacting H R 436 would not result
in any significant cost to the Federal Government, and would not
affect the budgets of State or 1oca governments
Enactment of H H 436 would not affect direct spending or re-
ceipts Therefore, pay-as-you-go procedures would not apply to the
bill
On September 27, 1995, CBO transmitted a cost estimate for
FE H 436, the Edible Oil Regulatory Reform Act, as ordered re-
ported by the House Committee on Agriculture on September 20,
1995 The two bills differ in that the Agriculture Committee’s ver-
sion would change financial responsibility requirements for tank
vessels carrying animal fat or vegetable oil The Commerce Com-
mittee’s version would also limit the reform to regulation of trans-
portation, storage, disposal, discharge or release of the substance
CBC has estimated the same budgetary impact for both bills
if you wish further details on this estimate, we will be pleased
to provide them The CBO staff contact is David Hull
Sincerely,
JM IESL BLu 1
(For June E O’Neill, Director)
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7
INFLA1IONARY IMPACT STATEMEMT
Pursuant to clause 2(1X4) of rule Xl of the Rules of the House
of Representatives, the Committee finds that the bill would have
no inflationary impact.
SECTION- n v-S ECTION ANALYSIS OF TUE LEGISLATION
Sect ion 1 provides that in issuing or enforcing any regulation or
establishrng any interpretation or guideline relating to a fat, oil, or
grease under any Federal law pertaining to the transportation,
storage, disposa L discharge, or release of that substance, the head
of any Federal agency shall, differentiate between the following (F l
animal fats and oils and greases, and fish and marine mammal
oils, within the meaning of 13 U S C 61(a)(2) or oils of vegetable
origin, including oils from the seeds, nuts, and kernels referred to
13 U S C 61(aXl), and (2) other oils and greases, including petro-
I eu m
Section 1 further provides that in differentiating between the
classes of fats, oils, and greases described above, the head of the
Federal agency shall consider differences in the physical, chemical,
biological, and other properties, and in the environmental effects,
of the classes.
C0MMInEE CORRESPONDENCE
U.S CONGRESS,
COMMI’rrEE ON TRANSPORTATION AND INFRASTRUCTURE,
Wash ington, DC , September 27, 1995
Hon THOMAS J BLILEY, Jr.,
Chairman, Committee on Commerce,
House of Representatives, Washington, DC
DEAR MR CHAIRMAN’ I am writing to thank you for your co-
operation regarding H R 436, a bill relating to the regulation of
animal fats, vegetable oils, and other types of oils and greases,
which your Committee ordered reported today
Pursuant to Rule X of the Rules of the House, H R 436 directly
affects provisions of statutes within the Transportation and Infra-
structure Committee’s junsdiction In fact, the Transportation and
Infrastructure Committee has already passed language virtually
identical to H R 436 in two separate contexts section 413 of H R
1361, the Coast Guard Authorization Act for fiscal year 1996 and
section 606 of I- I R 961, the Clean Watci Amendments of 1995
Each bill, including the animal f tJvegetable oil provisions, subse-
quently passed the House of Representatives
In each instance, the animal fativegetable oil language focuses on
regulation under the Oil Pollution Act and the Clean Water Act—
statutes which are under the jurisdiction of the Transportation and
Infrastructure Committee Over the last severa] years, the Commit-
tee has gathered testimony and other data indicating that the need
for this legislation stems primarily from current or proposed regu-
lations under these two Acts
In view of the Speaker’s desire to move H R 436 to the Floor in
an expeditious fashion, I do not intend to seek a sequential referral
of the bill However, I would appreciate your acknowledgement of
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S
the Transportation and Infrastructure Committee’s jurisdiction
over the bill and an acknowledgement of the Transportation and
Infrastructure Committee’s right to seek conferees in the evens
that this legislation is considered in a House-Senate conference
The Transportation and Infrastructure Committee will refrain from
seeking a sequential referral of H R 436 with the understanding
that you will continue to work with us on this legislation However,
by agreeing not to seek a sequential referral, the Transportation
Committee does not waive its jurisdiction over these matters I
would further request that our exchange of letters on this matter
be included in the Committee’s report on H H 436
Thank you for your cooperation in this matter I look forward to
working with you in the future, both on this bill and other legisla-
tion of mutual interest to our two Committees.
With kind personal regards, I remain
Sincerely,
BUD SHUSTER,
Chairman
HOUSE OF REPRESEr4TATIVES,
COMMITTEE ON COMMERCE,
Washington, DC, September 27, 1995
Hon BUD SHUsTER,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington , DC.
DEAR Ma CHAIRMAN. Thank you for you letter of Sepfember 27,
1995, regarding H.R 436, relating to the regulation of animal fats,
vegetable oils, and other types of oil and greases
I appreciate the interest that the Committee on Transportation
and Infrastructure has in this legislation As your letter mdicates,
the Committee could be successful in asserting a right to a sequen-
tial referral of H.B. 436. Therefore, 1 am most appreciative of your
decision not to request such a referral in the interest of expediting
consideration of the bill
You have my assurance that agreements worked out by our re-
spective staffs will be included in a manager’s amendment as this
bill is considered on the House floor. I also recognize your Commit-
tee’s right to seek conferees on H H 436
Thank you for your cooperation in this matter and for your sup-
port of this legislation.
Sincerely,
THoMAS J BLILEY, Jr,
Chairman
CH cEs iN EXISTiNG LAW MADE B? THE BILL, AS REPORTED
This legislation does not amend any existing Federal law
0
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lB
Union Calendar No. 139
104TH CONGRESS
1ST SESSION
[ Report No. 104—262, Parts I and U]
To require the head of any Federal agency to differentiate lietncen fats,
oils, and greases of animal, marine, or vegetable origin, and other oils
and greases, in issuing certain regulations, and for other purposes
IN THE HOUSE OF REPRESENTATiVES
JANUARY 9, 1995
Mr. EwING (for himself, and Mrs DANNER) introduced the following bill,
which was referred to the Committee on Commerce and, in addition, to
the Committee on Agi iculturc, for a period to be suhsequently deterns ned
by the Speaker, in each case for consideration of such pl OVISiOfls as fall
within the jurisdiction of the committee concerned
SEPTEMBER 27, 1995
Reported from the Coniinittee on Agriculture with an amendment
(Strike Out all aftet the enacting clause and insci the pu t pi inted in utalici
SEPTEMBER 27, 3995
Additional sponsors Mr BOEHNER, Mr. 1-IOLDEN, Mr ROHRABACHER, Mr
WALSH, Mrs. MEYERS of Kansas, Mr ZIMMER, Mr COMBEST, Mr. EM-
ERSON, Mr. MA.NTON, Mr Lirixsi , Mr. BONILL4, Mr BEREUTER, Mr.
PAXON, Mr. ARMEY, Mr. SOUDER, Mr. COSTELLO, Mr. CI-IAPMAN, Mr.
HASTERT, Mr. IIOSTETTLER, Mr. POSI [ AI1D, Mr LkTa uE, Mr FLANA-
GAN, Mr. ZELIFF, Mr BARRETT of Nebiaska, Mrs LINCOLN, Mr. JOHN-
SON of South Dakota, Mr. STENIIOLM, Mr BISHOP, Mr. JACOBS, Mr.
MINGE, Mrs. CHENOwETH, Mr. GILLMOR, Mrs. L0wEY, Mr. Po [ ERoY,
Mr QUINN, Mr PASTOR, Mr. PETRI, Mr COOLEY, Mr BUYER, Mr
B R of Louisiana, Mr. BATEMAY, Mr. ELM, Mr. EHLERS, Mr.
LAHOOD, Mr CALVERT, Mr. FAwTLL, Mr. DOR N, Mr. PETERSON of
Minnesota, Mr. DOOLITTLE, Mr. HAYES, Mr. LEACH, Mr. PO rBo, Mr.
PACKARD, Ms. DUNN of Washington, Mr. LIGHTFOOT, Mr. Cox of Cali-
fornia, Mr. BREWSTER, Mr SI LTox, Mr. K OLLENBERG, Mr. CANADY
of Florida, Mr. TATE, Mr. HALL of Texas, Mr. FIUTcHINsON, Mr. PETE
GEREN of Texas, Mr. HORN, Mr STOCl xN, Mr. HERGER, Mr.
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2
GOODLATTE, Mr. Kz 4 uo, Mr. BILBBAY, Lr. P trn R, Mr. Co rnrr, Mr.
NUSSLE, Mr. MONTGOMERY, Mrs. THuRMxN, Mr. WELLER, Mr.
CH mLIss, Mr. LUTHER, Mr. ENGLISH of Pemisylvania, Mr. LEWIS of
Kentucky, Mr. Fiuxxs of New Jersey, Mr. HOEKSTRA, and Mr. HAN-
COCK
SEPTEMBER 27, 1995
Reported from the Committee on Commerce with an amendment, cornimtted
to the Committee of the Whole House on the State of the Union, and
ordered to be printed
[ Stnke out all after the enacting clause and insert the part printed in boldface roman )
A BILL
To require the head of any Federal agency to differentiate
between fats, oils, and greases of animal, marine, or
vegetable origin, and other oils and greases, in issuing
certain regulations, and for other purposes.
I Be it enacted by the Senate a id I-louse of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 4 DIFFERENTIATION AMONG FATS , OILS, AND
4 REASE&
5 - fa+ Tt e CENEILAL. In issuing or enforcing &tiy regu-
6 lotion or catablishing miy interpretation or guideline i’clat-
7 #itg to o fa4 e4 or grcasc imclcr ftfl Federal law , the head
8 of &ny Federal agency shall differentiate between
9 ( 1)(A) animal &i-te ai& oils tS greases , e-ttcl
10 fish &fld n arinc mammal oil-s, within the meaning of
11 paragraph 4-23 of section 61(a ) of title 44; United
12 States Code ; or
•HH 436 RB
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3
I 4B3 e14s ef vegcthble origii i-ncluding ells from
2 the sccds, nuts , ft-hEl kcincls rcfcned te itt paragruph
3 f-4-)fA3 of such section ; &H*1
4 { - ether el-Is &n€l greases, including petroleum .
5 +b+ C0XSIDrnuTION-s.——In differentiating between
6 the class ef lath, oils , €ni€I greases described in subsection
7 {a)(1 ) etie the class of oils eitd grcascs described in sub -
8 section aX2) , the head of the Federal cgcncy shall ceti-
9 sidcr differences in the physical, chemical, biological , etid
10 other properties , ettd in the environmental effects , of the
11 elasacs .
12 SECTION 1. SHORT TITLE.
13 This Act may be cited as the “Edible Oil Regulatory
14 Reform Act”.
15 SEC. 2. DEFINITIONS.
16 As used in this Act:
17 (1) A vnr u FA T.—The term “animal fat” means
18 each type of animal fat, oil, or grease (‘including fat,
19 oil, or grease from fish or a marine mammal), includ-
20 ing any fat, oil, or grease referred to in section
21 61(a)(2) of title 13, United States Code.
22 (2) VEGETABLE OIL—The term “vegetable oil”
23 means each type of vegetable oil (‘including vegetable
24 oil from a seed, nut, or kernel,), including any vegeta-
sUB 436 811
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4
I ble oil referred to in section 61’a)(l) of title 13,
2 United States Code.
3 SEC. 3. DIFFERENTIATION AMONG FATS, OILS, AND
4 GREASES.
5 (a,) IN GE vEr L.—In issuing or enforcing a regula-
6 tion, an interpretatio i, or a guideline relating to a fat, oil,
7 or grease under a Federal law, the head of a Federal agency
8 shall—
9 (1) d?ffcreniiate between and establish separate
10 categories for—
11 (A)(i) animal fats; and
12 (‘it) vegetable oils; and
13 (B) other oils, including petroleum oil; and
14 (2) apply different standards to different classes
15 offal and oil as provided in subsection (b).
16 (b) C0NSIDER.1 TIO —In differentiating between the
17 classes of animal fats and vegetable oils referred to in sub-
18 section (‘a)(1)(A) and i/ ic classes of oils described in sub-
19 section (a)(1)(B), the head of the Federal agency shall con-
20 sider differences in physical, chemical, biological, and other
21 properties, and ii, the effects on human health and the envi-
22 ronment, of the c ia sscs.
23 SEC. 4. FINANCIAL RESPONSIBILITY.
24 (a) LnIJTS OF’ Lr. u ILITY.—Section 1O04(a )(1) of the
25 Oil Pollution Act of 1990 (33 U.S.C. 2704 (a) (1)) is amend-
.HR 436 RH
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5.
1 ed by strikmg “for a tank vessel,” and tnserting “for a tank
2 uessei (other lua u a tank vessel carrying animal fat or vege-
3 table oil),”.
4 (h) Fz 1 v vci ,i j RESPaVSJBILJTY.—The first sentence of
5 section 1016(a, ) of the Act (33 U.S.C. 2716 ( ü)) is amended
6 by striking “in the case of a tank vessel,” and inserting
7 “in the case of a tank vessel (other titan a tank vessel carry-
8 ing animal fat or vegetable oil),”
9 SECTION 1. DIFFERENTIATION AMONG FATS, OILS, AND
10 GREASES.
11 (a) IN GETcERAL.—In issuing or enforcing
12 any regulation or establishing any interpreta-
13 tion or guideline relating to a fat, oil, or
14 grease under any Federal law pertaining to
15 the transportation, storage, disposal, dis-
16 charge, or release of that substance, the head
17 of any Federal agency shall differentiate be-
18 tween—
19 (1)(A) animal fats and oils and
20 greases, and fish and marine mammal
21 oils, within the meaning of paragraph (2)
22 of section 61(a) of title 13, United States
23 Code; or
24 (B) oils of vegetable origin, including
25 oils from the seeds, nuts, and kernels re-
.ME 436 RH
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6
I ferred to in paragraph (1)(A) of such sec-
2 tion; and
3 (2) other oils and greases, including
4 petroleum.
5 (b) CONSIDERATIONS.—In differentiating
6 between the class of fats, oils, and greases de-
7 scribed in subsection (a)(1) and the class of
8 oils and greases described in subsection
9 (a)(2), the head of the Federal agency shall
10 consider differences in the physical, chemical,
11 biological, and other properties, and in the
12 environmental effects, of the classes.
.HR 436 RH
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PUBLIC LAW 10 1 —-OCT. 19, 1996 110 STAT. 3901
Public Law 104—324
104th Congress
An Act
To authonze appropnations for the United States Coast Guard and for other Oct 19, 1996
purposes (5 10041
Be it enacted by the Senate and House of Representatives of
the United States of Amer ica in Congress assembled, Coast Guard
SECTION 1. SHORT TITLE. Authorization
This Act may be cited as the “Coast Guard Authorization Act
of 1996”
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows
Sec 1 Short title
Sec 2 Table of contents
TITLE 1—AUTHORIZATION
Sec 101 Authorization of appropriations
Sec 102 Authonted levels of military strength and training.
Sec 103 Quarterly reports on drug interdiction
Sec 104 Sense of the Congress regarding funding for Coast Guard
TIThE Il—PERSONNEL MANAGEMENT IMPROVEMENT
Sec 201 Provision of child development services.
Sec 202 Hurneane Andrew relief
Sec 203 Dissemanatton of results of 0—6 continuation boards
Sec 204 Exclude certain reserves from end -cf-year strength
Sec 205 Officer retention until retirement eligible
Sec 206 Recniittng
Sec 207 Access to National Driver Register information on certain Coast Guard
personnel
Sec 208 Coast Guard housing authonties.
Sec 209 Board for Correction of Military Re rda deadline
Sec 210 Repeal temporary promotion of warrant officers
Sec 211 Appointment of temporary officers
Sec 212 Information to be provided to officer selection boards
Sec 213 Rescue diver tra ining for selected Coast Guard personnel
Sec 214 Special authorities regarding Coast Guard
TITLE 111—MARINE SAFETY AND WATERWAY SERVICES MANAGEMENT
Sec 301 Changes to documentation laws
Sec 302 Nondisclosure of port secunty plans
Sec 303 Maritime drug and alcohol testing program civil penalty
Sec 304 Renewal of advisory groups
Sec 305 Electronic filing of commercial instruments
Sec 306 CivLl penalties
Sec 307 Amendment to require EPIRBs on the Great Lakes
Sec 308 Report on LORAN-C requirements
Sec 309 Small boat stations
Sec 310 Penalty for alteration of marine safety equipment
Sec 311 Prohibition on overhaul, repair, and maintenance of Coast Guard vessels
in foreign shipyards
Sec 312 Withholding vessel clearance for violation of certain Acts
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STAT. 3902 PUBLIC LAW 104-324-—OCT. 19, 1996
Sec 313 information barred in legal proceedings
Sec 314 Marine casualty reporting
TITLE IV—COAST GUARD AUXILIARY
Sec 401 Administration of the Coast Guard ausiliary
See 402 Purpose of the Coast Guard auxiliary
Sec 403 Members of the auxiliary, status
Sec. 404 Assignment and performance of duties
Sec 405 Cooperation with other agencies, States, territories, and political subdivi-
sions
Sec 406 Vessel deemed public vessel
Sec 407 Aircraft deemed public aircraft
Sec 408 Disposal of certain material
TiTLE V—DEEPWATER PORT MODERNIZATION
Sec 501 Short title
Sec 502 Declarations of purpose and policy
Sec 503 Definitions
Sec 504 Licenses
Sec 505 Informational filings
Sec 506 Antitrust review
Sec 507 Operation
Sec 508 Marine environmental protection and navigational safety
TITLE VI—COAST GUARD REGULATORY REFORM
Sec 601 Short title
Sec 602 Safety management
Sec 603 Use of reports, documents, records, and examinations of other persons
Sec 604 Equipment approval
Sec 605 Frequency of inspection
Sec 606 Certificate of inspection
Sec 607 Delegation of authority of Secretary to classification societies
TITLE VU—TECHNICAL AND CONFORMING AMENDMENTS
Sec 701 Amendment of inland navigation rules
Sec 702 Measurement of vessels
Sec 703 Lon shore and harbor workers compensation
Sec 704 Radiotelephone requirements
Sec 705 Vessel operating requirements
Sec 706 Merchant Marine Act, 1920
Sec 707 Merchant Marine Act, 1956
Sec 708 Maritime education and training
Sec 709 General definitioni
Sec 710 Authority to exempt certain vessels
Sec 711 Inspection of vessels
Sec 712 Regulations
Sec 713 Penalties—Inspection of vessels
Sec 714 Application—Tank vessels
Sec 715 Tank vessel construction standards.
Sec 716 Tanker minimum standards
Sec 717 Self-propelled tank vessel minimum standards
Sec 718 Definition—Abandonment of barges
Sec 719 Application—Load lines
Sec 720 Licensing of individuals
Sec 721 Able seamen—Limited
Sec 722 Able seamen—Offshore supply vessels
Sec 723 Scale of employment—Able seamen
Sec 724 General requirements—Engine department
Sec 725 Complement of inspected vessels.
Sec 726 Watchmen
Sec 727 Citizenship and Naval Reserve requirements
Sec 728 Watches
Sec 729 Minimum number of licensed individuals
Sec 730 Officers’ competen 9 i certificates convention
Sec 731. Merchant manners documents required
Sec 732 Certain crew requirements
Sec ‘133 Freight vessels
Sec 734 Exemptions.
Sec 735 Umted States registered pilot service,
Sec 736’ “ -‘finitions—Merchant seamen protection
Sec 73’ lication—Foreign and intercoastal voyages
PUBLIC LAW 04—324--OCT. 19, 1996 110 STAT. 3
Sec 738 Application—Coastwise voyages
Sec 739 Fishing agreements
Sec 740 Accommodations for seamen
Sec 741 Medicine chests
Sec 742 Logbook and entry requirements
Sec 743 Coastwise endorsements
Sec 744 Fishery endorsements.
Sec 745 Convention tonnage for licenses, certificates, and documents
See 746 Technical corrections
Sec 747 Technical corrections to references to ICC.
TITLE Vill—POLLUTION FROM SHIPS
Sec 801 Prevention of pollution from shipa
Sec 802 Marine plastic pollution research and control
TITLE IX—TOWING VESSEL SAFETY
Sec 901 Reduction of oil spills from non-self-propelled tank vessels
Sec 902. Reqwrement for fire suppression devices
Sec 903 Studies addressing various sources of oil spill risk
TITLE X—CONVEYANcES
Sec 1001 Conveyance of lighthouses
Sec 1002 Conveyance of certain lighthouses located in Maine
Sec 1003. Transfer of Coast Guard prqpert y in Gosnold, Massachusetts
Sec 1004 Conveyance of property in Ketchikan Alaska
Sec 1005 Conveyance of property in Traverse ( ity, Michigan
Sec 1006 Transfer of Coast Guard property in New Shorehain, Rhode Island
Sec 1007 Conveyance of property in Santa Crux California
See 1008 Conveyance of vessel S/S RED OAK ViCTORY
Sec 1009 Conveyance of equipment
Sec 1010. Property exchange
Sec 1011 Authority to convey Whitefish Point Light Station land
Sec 1012 Conveyance of Parramore Beach Coast Guard Station, Virginia
Sec 1013 Conveyance of Jeremiah O’Bnen
TITLE XJ—MISCELLANEOIJS
Sec 1101 Florida Avenue Bridge
Sec 1102 Oil Spill Recovery Institute
Sec 1103 Limited double hull exemptions
Sec 1104 Oil spill response vessels
Sec 1105 Service in certain suits in admiralty
Sec 1106 Amendments to the Johnson Act
Sec 1107 Lower Columbia River maritime fire and safety activities
Sec 1108 Oil iollution research training
Sec 1109 Limitation on relocation of Houston and Galveston marine safety offices
Sec 1110 Uninapect.ed fish tender vessels
Sec 1111 Foreign passenger vessel user fees
Sec 1112 Coast Guard user feee
Sec 1113 Vessel financing
Sec 1114 Manning and watch requirements on towing vessels on the Great Lakes
Sec 1115. Repeal of Great Lakes endorsements
Sec 1116 Relief from United States documentation requirements
Sec 1117 Use of foreign registry oil spill response vessels
Sec 1118 Judicial sale of certain documented vessels to aliens
Sec 1119 Improved authority to sell recyclable material
Sec 1120. Documentation of certain vessels
Sec. 1121 Vessel deemed to be a recreational vessel
Sec 1122. Small passenger vessel pilot inspection program with the State of Min-
nesota
Sec 1123 Commonwealth of the Northern Manana Islands fishing
See 1124 Availability of extrajudicial remedies for default on preferred mortgage
liens on vessels
Sec 1125 Offshore facility financial responsibility requirements
Sec 1126 Deauthorization of navigation project, Cohaaaet Harbor, Massachusetts
Sec 1127. Sense of Congress. requirement regarding notice
Sec 1128 Requirement for procurement of buoy chain
Sec 1129 Cruise ship liability
Sec 1130 Sense of Congress on the implementation of regulations regarding ani-
mal fats and vegetable oils
Sec 1131 Term of Director of the Bureau of Transportat.ion Statistica
Sec 1132 Waiver of certain requirements for historic former Presidential
Sequoia
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0 STAT. 3904 PUBLIC LAW 104—324 —OCT. 19, 1996
PUBLIC LAW 104 -324—OCT. 19, 1996 110 STAT.:
TITLE I—AUTHORIZATION
SEC. 101. AUTHORIZATION OF APPROPRiATIONS.
(a) IN GENERa —Funds are authorized to be appropriated
for necessary expenses of the Coast Guard, as followr
(1) For the operation arid maintenance of the Coast
Guard —
(A) for fiscal year 1996, $2,618,316,000; and
(B) for fiscal year 1997, $2,637,800,000;
of which $25,000,000 shall be derived each fiscal year from
the Oil Spill Liability Trust Fund.
(2) For the acquisition, construction, rebuilding, and
improvement of aids to navigation, shore and offshore facilities,
vessels, and aircraft, including equipment related thereto—
(A) for fiscal year 1996, $428,200,000, and
(B) for fiscal year 1997, $411,600,000;
to remain available until expended, of which $32,500,000 for
fiscal year 1996 and $20,000,000 for fiscal year 1997 shall
be denved each fiscal year from the Oil Spill Liability Trust
Fund to carry out the purposes of section 1012(a)(5) of the
Oil Pollution Act of 1990
(3) For research, development, test, and evaluation of tech-
nologies, materials, and human factors directly relating to
improving the performance of the Coast Guard’s mission in
support of search and rescue, aids to navigation, marine safety,
marine environmental protection, enforcement of laws and trea-
ties, ice operations, oceanographic research, and defense readi-
ness—
(A) for fiscal year 1996, $22,500,000, and
(B) for fiscal year 1997, $20,300,000,
to remain available until expended, of which $3,150,000 for
fiscal year 1996 and $5,020,000 for fiscal year 1997 shall be
denved each fiscal year from the Oil Spill Liability Trust Fund
(4) For retired pay (including the payment of ob ligations
othcrwise chargeable to lapsed appropriations for this purpose),
payments under the Retired Serviceman’s Family Protection
arid Survivor Benefit Plans, and payments for medical care
of retired personnel and their dependents under chapter 55
of title 10, United States Code—
(A) for fiscal year 1996, $582,022,000; and
(B) for fiscal year 1997, $608,100,000
(5) For alteration or removal of bridges over navigable
waters of the United States constituting obstructions to naviga-
tion, and for personnel and administrative costs associated
with the Bridge Alteration Program—
(A) for fiscal year 1996, $25,300,000, to remain avail-
able until expended; and
(B) for fiscal year 1997, $25,100,000, to remain avail-
able until expended.
(6) For environmental compliance and restoration at Coast
Guard facilities (other than parts and equipment associated
with operations and maintenance), $25,000,000 for each of fiscal
years 1996 and 1997, to remain available until expended
(b) Az sourns FROM THE DISCRETIONARY BRIDGE PROGRAM —
(1) Section 104 of title 49, United States Code, is amended by
adding at the end thereof the followingS
“(e) Notwithstanding the provisions of sections 10 1(d) and 144
of title 23, highway bridges determined to be unreasonable obstruc-
tions to navigation under the Truman-Hobbs Act may be funded
from amounts set aside from the discretionary bridge program
The Secretary shall transfer these allocations and the responsibility
for administration of these fluids to the United States Coast
Guard.”.
(2) Notwithstanding any other provision of law, the Secretary
of Transportation shall allocate out of funds available, $9,100,000
for the John F. Limehouse Memorial Bridge, Charleston, South
Carolina The allocation shall be deposited in the Truman-Hobbs
bndge program account. The Secretary shall transfer this allocation
and responsibi]ity for administration of these funds to the United
States Coast Guard.
SEC. 102. AUTHORIZED LEVELS OF MILITARY STRENGTH AND TRAIN-
ING.
(a) ACTIVE Dtrnr SmENanr.—The Coast Guard is authorized
an end-of-year strength for active duty personnel of—
(1) 38,400 as of September 30, 1996; and
(2) 37,561 as of September 30, 1997
(b) MILITARY TRAINING STUDENT LOAI)S —The Coast Guard
is authorized average military training student loads as followr
(1) For recruit and special training—
(A) for fiscal year 1996, 1604 student years; and
(B) for fiscal year 1997, 1604 student years.
(2) For flight training—
(A) for fiscal year 1996, 85 student years; and
(B) for fiscal year 1997, 95 student years.
(3) For professionaL training in military and civilian institu-
tions—
(A) for fiscal year 1996, 330 student years; and
(B) for fiscal year 1997, 295 student years
(4) For officer acquisition—
(A) for fiscal year 1996, 874 student years; and
(B) for fiscal year 1997, 878 student years.
SEC. 103. QUAJ 1TERLY REPORTS ON DRUG INTERD ICTION.
Not later than 30 days after the end of each fiscal year quarter,
the Secretary of Transportation shall submit to the Committee
on Transportation and Infrastructure of the House of Representa-
tives and the Committee on Commerce, Science, and Transportation
of the Senate a report on all expenditures related to drug interdic-
tion activities of the Coast Guard during that runru r
Sec 1133
Sec 1134
Sec 1135
Sec 1136
Sec 1137
Sec 1138
Sec 1139
Sec 1140
Sec 1141
Sec 1142
Sec 1143
Sec 1144
Sec 1145
Sec 1146
Vessel requirements
Existing tank vessel research
Plan for the engineering, design, and retrofitting of the Icebreaker
Mackinaw
Cross-border rinancsng
Vessel standards
Vessels subject to the junsdictson of the United States
Reactivation of closed shipyards
Sakonnet Point Light
Dredçing of Rhode Island Waterways
Interim payments
Oil spill information
Compliance with oil spill response plsns
Bridge deemed to unreasonably obstruct navigation
Fishing vessel exemption
14 USC 89 iii
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10 STAT. 3946 PUBLIC LAW 104—324—OCT. 19, 1996
PUBLIC LAW 104—324—OCT. 19, 1996 110 STAT.
and the Administrator of the Environmental Protection
Agency are authorized to award grants, enter into coopera-
tive agreements with appropriate officials of other Federal
agencies and agencies of States and political subdivisions
of States and with public and private entities, and provide
other financial assistance to eligible recipients.
“(C) CONSULTATION.—In developing outreach initia-
tives for groups that are subject to the requirements of
this title and the Act to Prevent Pollution from Ships
(33 U.S C 1901 et seq), the Secretary of the department
in which the Coast Guard is operating, in consultation
with the Secretary of Commerce, acting through the
Administrator of the National Oceanic and Atmospheric
Administration, and the Administrator of the Environ-
mental Protection Agency, shall consult with—
“(i) the heads of State agencies responsible for
implementing State boating laws; and
“(ii) the heads of other enforcement agencies that
regulate boaters or commercial fishermen.”.
TITLE DC—TOWING VESSEL SAFETY
gutaLions SEC. 901. REDUCTION OF OIL SPILLS FROM NON-SELF-PROPELLED
TANK VESSELS.
(a) IN GENERAL.—Chapter 37 of title 46, United States Code,
is amended by adding at the end the following new section:
“ 3719. Reduction of oil spills from single hull non-self-pro-
pelled tank vessels
“The Secretary shall, in consultation with the Towing Safety
Advisory Committee and taking into consideration the characteris-
tics, methods of operation, and the size and nature of service of
single hull non-self-propelled tank vessels and towing vessels, pre-
scribe regulations requiring a single hull non-self-propelled tank
vessel that operates in the open ocean or coastal waters, or the
vessel towing it, to have at least one of the following
“(1) A crew member and an operable anchor on board
the tank vessel that together are capable of arresting the tank
vessel without additional assistance under reasonably foresee-
able sea conditions.
“(2) An emergency system on the tank vessel or towing
vessel that without additional assistance under reasonably
foreseeable sea conditions will allow the tank vessel to be
retrieved by the towing vessel if the tow line ruptures.
“(3) Any other measure or combination of’ measures that
the Secretary determines will provide protection against
grounding of the tank vessel comparable to that provided by
the measures described in paragraph (1) or (2).”.
USC 3719 (b) DEADLINE.—The Secretary of the department in which the
le - Coast Guard is operating shall issue regulations required under
secti ”n 3719 of title 46, United States Code, as added by subsection
(a) ot later than October 1, 1997.
(c) CL.ERICAL AMENDMENT.—The table of sections at the begin-
ning of chapter 37 of title 46, United States Code, is amended
by adding at the end the following new item:
3719 Reduction of oil spiiis from non-self-propelled tank vessels -
SEC. 902. REQUIREMENT FOR FIRE SUPPRESSION DEVICES.
(a) Ir ’ GENERAL—Section 4102 of title 46, United States Code,
is amended by adding at the end the following new subsection:
“(f)(1) The Secretary, in consultation with the Towing Safety
Advisory Committee and taking into consideration the characteris-
tics, methods of operation, and nature of service of towing vessels,
may require the installation, maintenance, and use of a fire suppres-
sion system or other measures to provide adequate assurance that
fires on board towing vessels can be suppressed under reasonably
foreseeable circumstances.
U(2) The Secretary shall require under paragraph (1) the use
of a fire suppression system or other measures to provide adequate
assurance that a fire on board a towing vessel that is towing
a non-sell-propelled tank vessel can be suppressed under reasonably
foreseeable circumstances.”.
(b) REGULATIONS—The Secretary of the department in which
the Coast Guard is operating shall issue regulations establishing
the requirement described in subsection (fX2) of section 4102 of
title 46, United States Code, as added by this section, by not
later than October 1, 1997.
SEC. 903. STUDIES ADDRESSII IG VARIOUS SOURCES OF 011 SPILL RISK
(a) STuDY OF GROup-5 FUEL OIL SPILLS.—.
(1) DEFINITION.—In this subsection, the term “group-5 fuel
oil” means a petroleum-based oil that has a specific gravity
of greater than 1 0.
(2) COORDINATION OF STUDY.—The Secretary of Transpor-
tation shall coordinate with the Marine Board of the National
Research Council to conduct a study of the relative environ-
mental and public health risks posed by discharges of group-
5 fuel oil.
(3) M rrERs TO BE INCLUDED.—The study under this sub-
section shall include a review and analysis of—
(A) the specific risks posed to the public health or
welfare of the United States, including fish shellfish and
wildlife, public and private property, shorelines, beaches,
habitat, and other natural resources under the jurisdiction
or control of the United States, as a result of an actual
or threatened discharge of group-5 fuel oil from a vessel
or facility;
(B) cleanup technologies currently available to address
actual or threatened discharge of group-5 fuel oil; and
(C) any technological and financial barriers that pre-
vent the prompt remediation of discharges of group-5 fuel
oil.
(4) REPORT.—NOt later than 18 months after the date of
enactment of this Act, the Secretary of Transportation shall
submit to the Committee on Environment and Public Works
and the Committee on Commerce, Science, and Transportation
of the Senate, and the Committee on Transportation and ‘ -
structure of the House of Representatives a report on the a
of the study under thk g,ibq.’rHnn -
46 USC 410
note
46 USC 370:
note
-------
- - —. — ., ‘., 2 ,J t IL I 1 .J, 1.1
(5) RULEMAJUNG —If the Secretary of Transportation de
mines, based on the results of the study under this subsectk
that there are significant risks to public health or the environ-
ment resulting from the actual or threatened discharge of
group-5 fuel oil from a vessel or facility that cannot be techno-
logically or economically addressed by existing or anticipated
cleanup efforts, the Secretary may initiate a rulemaking to
take such action as is necessary to abate the threat
(b) STUDY OF AUTOMATIC FUELING SHUTOFF EQUIPMENT.—
(1) COORDINATION OF STUDY —The Secretary of Transpor-
tation shall coordinate with the Marine Board of the National
Research Council to conduct a study of the unintentional or
accidental discharge of fuel oil during lightering or fuel loading
or off-loading activity.
(2) MATTERS TO BE INCLUDED —The study under this sub-
section shall include a review and analysis of current monitor-
ing and fueling practices to determine the need for automatic
fuel shutoff equipment to prevent the accidental discharge of
fuel oil, and whether such equipment is needed as a supplement
to or replacement of existing preventive equipment or proce-
dures.
(3) REPORT.—NOt later than 18 months after the date of
enactment of this Act, the Secretary of Transportation shall
submit to the Committee on Environment and Public Works
and the Committee on Commerce, Science, and Transportation
of the Senate and the Committee on Transportation and Infra-
structure of the House of Representatives a report on the results
of the study under this subsection
(4) RULEMAKING —If the Secretary of Transportation deter-
mines, based on the results of the study conducted under this
subsection, that the use of automatic oil shutoff equipment
is necessary to prevent the actual or threatened discharge
of oil during lightering or fuel loading or off loading activity,
the Secretary may initiate a rulemaking to take such action
as is necessary to abate a threat to public health or the environ-
ment
(c) LIGHTERING STUDY —The Secretary of Transportation shall
coordinate with the Marine Board of the National Research Council
on a study into the actual incidence and risk of oil spills from
lightering operations off the coast of the United States Among
other things, the study shall address the manner in which existing
regulations are serving to reduce oil spill risks. The study shall
take into account current or proposed international rules and stand-
ards and also include recommendations on measures that would
be likely to further reduce the risks of oil spills from lightering
operations Not later then 18 months after the date of enactment
of this Act, the Secretary shall submit a report on the study to
the Committee on Commerce, Science, and Transportation of the
Senate and the Committee on Transportation and Infrastructure
of the House of Representatives.
(1) IN GENERAL —The Secretary of Transp ion or the
Secretary of the Interior, as appropriate, shall convey, by an
appropriate means of conveyance, all right, title, and interest
01 the United States in and to each of the following properties-
(A) Cape Ann Lighthouse, located on Thacher Island,
Massachusetts, to the town of Rockport, Massachusetts
(B) Light Station Montauk Point, located at Montauk,
New York, to the Montauk Historical Assoctation in
Montauk, New York.
(C) Squirrel Point Light, located in Arrowsic, Maine,
to Squirrel Point A.ssociates, Incorporated
(D) Point Arena Light Station, located in Mendocino
County, California, to the Point Arena Lighthouse Keepers,
Incorporated.
(E) Saint Helena Island Light Station, located in Mack-
inac County, Moran Township, Michigan, to the Great
Lakes Lighthouse Keepers Association. -
(F) Presque Isle Light Station, located in Presque Isle
Township, Michigan, to Presque Isle Township, Presque
Isle County, Michigan
(0) Cove Point Lighthouse, located in Calvert County,
Maryland, to Calvert County, Maryland.
(2) IDENTIFICATION OF PROPERTY.—The Secretary may iden-
ti&, describe, and determine the property to be conveyed under
this subsection
(3) EXCEVrION.—The Secretary may not convey any hiatori--
cal artifact, including any lens or lantern, located on the prop-
erty at or before the time of the conveyance.
(b) TERMS OF CONVEYANCE.—
(1) IN GENERAL.—The conveyance of property under this
section shall be made—
(A) without payment of consideration; and
(B) subject to the conditions required by this section
and other terms and conditions the Secretary may consider
appropriate.
(2) REVERSIONARY iNTEREST—In addition to any term or
condition established under this section, the conveyance of prop-
erty under this subsection shall be subject to the condition
that all right, title, and interest in the property shall imme-
diately revert to the United States if—
(A) the property, or any part of the property—
(i) ceases to be used as a nonprofit center for
the interpretation and preservation of maritime his-
tory;
(ii) ceases to be maintained in a manner that
ensures its present or future use as a Coast Guard
aid to navigation, or
(iii) ceases to be maintained in a manner consistent
with the provisions of the National Historic Preserva-
tion Act of 1966 (16 U.S C. 470 et seq ); or
(B) at least 30 days before that reversion, the Secretary
of Transportation provides written notice to the owner that
the property is needed for national security purposes
(3) MAINTENANCE OF NAVIGATION FUNCTIONS.—A convey-
ance of property under this section shall be made subject to
the conditions that the Secretary of Transportation considers
to be necessary to assure that—
Reporta
TITLE X—CONVEYANCES
SEC. 1001. CONVEYANCE OF LIGHTHOUSES.
(a) AUTHORITY To CONVEY —
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I 0 STAT. 3964 PUBLIC LAW 104—324—OCT. 19, 1996
PUBLIC LAW 104 -324—OCT. 19, 1996 110 STAT.:
Cd) EXPIRATION OF Aumomn.—The authority of the Secretary
to convey the Vessel under this section shaU expire 2 years after
the date of enactment of this Act.
TITLE fl—MISCELLANEOUS
SEC. 1101. FLORIDA AVENUE BRIDGE.
For purposes of the alteration of the Florida Avenue Bridge
(located approximately 1.63 miles east of the Mississippi River
on the Gulf Intracoastal Waterway in Orleans Parish, Louisiana)
ordered by the Secretary of Transportation under the Act of June
21, 1940 (33 U S.C. 511 et seq.), the Secretary shal ] treat the
drainage siphon that is adjacent to the bridge as an appurtenance
of the bridge, including with respect to apportionment and payment
of costs for the removal of the drainage siphon in accordance with
that Act
SEC. 1102. OIL SPILL RECOVERY rNSTITUTE.
(a) ADVlSOav BOARD AND ExECtrrwE C0MMInEE —Section 5001
of the Oil Pollu hon Act of 1990 (33 U.S.C. 2731) is amended—
(1) by striking “to be administered by the Secretary of
Commerce” in subsection (a);
(2) by striking “and located” in subsection (a) and inserbng
located”,
(3) by striking “the EXXON VALDEZ oil spill” each place
it appears in subsection (bX2) and inserting “Arctic or Subarctic
oil spills”,
(4) by striking “18” in subsection (c)(1) and inserting “16”;
(5) by striking “, Natural Resources, and Commerce and
Economic Development” in subsection (cX 1)(A) and inserting
a comma and “and Natural Resources”;
(6) by striking subsection (c)(1) (B), (C), and CD);
(7) by redesignating subparagraphs (E) and (F) of sub-
section (c)(1) as subparagraphs (G) and (H), respectively;
(8) by inserting after subparagraph (A) of subsection (c)(1)
the followmg:
“(B) One representative appointed by each of the Sec-
retaries of Commerce, the Interior, and Transportation,
who shall be Federal employees.
“(C) Two representatives from the fishing industry
appointed by the Governor of the State of Alaska from
among residents of communities in Alaska that were
affected by the EXXON VALDEZ oil s iU, who shall serve
terms of 2 years each Interested organizations from within
the fishing industry may submit the names of qualified
indisnduals for consideration by the Governor.
“(D) Two Alaska Natives who represent Native entities
affected by the EXXON VALDEZ oil spill, at least oae
of whom represents an entity located in Prince William
Sound, appointed by the Governor of Alaska from a list
of 4 qualified individuals submitted by the A laska Federa-
tion of Natives, who shall serve terms of 2 years each.
“ CE) Two representatives from the oil and gas industry
‘o be appointed by the Governor of the State of Alaska
ho shall serve terms of 2 years each Interested organiza-
C!OflS from within ih nil an n cva’ ,nrL,cf,-,.
the names of qualified individuala for consideration by
the Governor.
“(F) Two at-large representatives from among residents
of communities in Alaska that were affected by the EXXON
VALDEZ oil spill who are knowledgeable about the marine
environment and wildlife within Prince William Sound,
and who shall serve terms of 2 years each, appointed
by the remaining members of the Advisory Board.
Interested parties may submit the names of qualified
individuals for consideration by the Advisory Board.”;
(9) adding at the end of subsection (c) the following:
“(4) SCIENTIFIC REVIEW.—The Advisory Board may request
a scientific review of the research program every five years
by the National Academy of Sciences which shall perform the
review, if requested, as part of its responsibilities under section
7001(b)(2).”,
(10) by striking “the EXXON VALDEZ oil spill” in sub-
section (d)(2) and inserting “Arctic or Subarctic oil spills”;
(11) by striking “Secretary of Commerce” in subsection
(e) and inserting “Advisory Board”;
(12) by striking”, the Advisory Board,” in the second sen-
tence of subsection (e);
(13) by striking “Secretary’s” in subsection Ce) and inserting
“Advisory Board’s”;
(14) by inserting “authorization in section 5006(b) providing
funding for the” in subsection Ci) after “The”;
(15) by striking “this Act” in subsection Ci) and inserting
“the Coast Guard Authorization Act of 1996”;
(16) by striking the first sentence of subsection (j); and
(17) by inserting “The Advisory Board may compensate
its Federal representatives for their reasonable travel costs.”
in subsection C i) after “Institute.”.
(b) FUNDING—Section 5006 of the Oil Pollution Act of 1990
(33 U.S.C. 2736) is amended by—
(1) striking subsection (a) and redesignating subsection
(b) as subsection (a);
(2) striking “5003” in the caption of subsection (a), as
redesignated, and inserting”5001, 5003,”;
(3) inserting “to carry out section 5001 in the amount
as determined in section 5006(b), and” after “limitation,” in
the text of subsection (a), as redesignated; and
(4) adding at the end thereof the followingS
“(b) USE OF INTEREST ONLY.—The amount of funding to be
made available annually to carry out section 5001 shall be the
interest produced by the Fund’s investment of the $22,500,000
remaining funding authorized for the Prince William Sound Oil
Spill Recovery Institute and currently deposited in the Fund and
invested by the Secretary of the Treasury in income producing
securities along with other funds comprising the Fund. The National
Pollution Funds Center shall transfer all such accrued interest,
including the interest earned from the date funds in the Trans-
Alaska Liability Pipeline Fund were transferred into the Oil Spill
Liability Trust Fund pursuant to section 8102(a)(2)(B)(ii), in the
Prince William Sound Oil Spill Recovery Institute annusl l’ ‘in-
ning 60 days after the date of enactment of the Coas , ird
A,,t} nn,nt’nn A I fln
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0 STAT. 3966 PUBLIC LAW 104—324—OCT. 19, 1996
PUBLIC LAW 104—324—OCT. 19, 1996 110 STAT.
“(C) USE FOR SECTION 1012 —Beginning with the eleventh year
following the date of enactment of the Coast Guard Authorization
Act of 1996, the funding authorized for the Prince William Sound
Oil Spill Recovery Institute and deposited in the Fund shall there-
after be made available for purposes of section 1012 in Alaska.”.
(c) CoNFORMn 1G AMENDMENTS—
(1) Section 6002(b) of the Oil Pollution Act of 1990 (33
U S.C. 2752(b)) is amended by striking “5006(b)” and inserting
“5006”.
(2) Section 7001(c)(9) the Oil Pollution Act of 1990 (33
U.S C. 276 1(c)(9)) is amended by striking the period at the
end thereof and insertm “until the authorization for funding
under section 5006(b) expires.”.
SEC. 1103. LIMITED DOUBLE HVLL EXEMPTIONS.
Section 3703a of title 46, United States Code, is amended—
(1) in subsection (b), by—
(A) striking “or” at the end of paragraph (2),
(B) striking the period at the end of paragraph (3)
and inserting a semicolon, and
(C) adding at the end the following new paragraphs:
“(4) a vessel documented under chapter 121 of this title
that was equipped with a double hull before August 12, 1992;
“(5) a barge of less than 1,500 gross tons (as measured
under chapter 145 of this title) carrying refined petroleum
product in bulk as cargo in or adjacent to waters of the Bering
Sea, Chukchi Sea, and Arctic Ocean and waters tributary there.
to and in the waters of the Aleutian Islands and the Alaskan
Peninsula west of 155 degrees west longitude; or
“(6) a vessel in the National Defense Reserve Fleet pursu-
ant to section 11 of the Merchant Ship Sales Act of 1946
(50 App. U.S.C. 1744).”; and
(2) by adding at the end the following new subsection:
‘(d) The operation of barges described in subsection (b)(5) out.
side waters described in that subsection shall be on any conditions
as the Secretary may require.”.
SEC. 1104. OIL SPILL RESPONSE VESSELS.
(a) DESCRIPTION.—Section 2101 of title 46, United States Code,
is amended—
(1) by redesignating paragraph (20a) as paragraph (20b),
and
(2) by inserting after paragraph (20) the following new
para raph.
‘(20a) ‘oil spill response vessel’ means a vessel that is
designated in its certificate of inspection as such a vessel,
or that is adapted to respond to a discharge of oil or a hazardous
material.”.
(b) EXEMPTION FROM Liqurn BULK CARRIAGE REQUIREMENTS —
Section 3702 of title 46, United States Code, is amended by adding
at the end thereof the following:
“(I) This chapter does not apply to an oil spill response vessel
if—
or
“(1) the vessel is used only m response-related activities;
“(2) the vessel is—
“(A) not more than 500 gross tons as measured under
Qn,’f,nn 1 4 fl9 r,F th , fifin nr Ar, Al+n,-,,n+n +nn,,nr,r
ured under section 14302 of this title as prescribed by
the Secretary under section 14104 of this title;
“(B) designated in its certificate of inspection as an
oil spill response vessel; and
“(C) engaged in response-related activities.”.
(c) MANNING.—Section 8104(p) of title 46, United States Code,
is amended to read as follows:
ip) The Secretary may prescribe the watchstanding and work
hours requirements for an oil spill response vessel.”.
(d) Mn .nMUM NUMBER OF LICENSED INDIVIDtJALS.—Section
8301(e) of title 46, United States Code, is amended to read as
follows:
“(e) The Secretary may prescribe the minimum number of
licensed individuals for an oil spill response vessel.”.
(e) MERCHANT MARINER DOCUMENT REQUIREMENTS.—Section
8701(a) of title 46, United States Code, is amended—
(1) by striking “and” after the semicolon at the end of
paragraph (7),
(2) by striking the period at the end of paragraph (8)
and inserting a semicolon and “and”; and
(3) by adding at the end thereof the following new para-
graph:
“(9) the Secretary may prescribe the individuals required
to hold a merchant mariner’s document serving onboard an
oil spill response vessel.”.
(f) EXEMPTION FROM TowING VESSEL REQUIREMENT.—SeCtiOn
8905 of title 46, United States Code, is amended by adding. at
the end the following new subsection:
“(c) Section 8904 of this title does not apply to an oil spill
response vessel while engaged in oil spill response or training
activities.”.
(g) INSPECTION REqulREME r.—.Section 3301 of title 46, United
States Code, is amended by adding at the end the following new
paragraph:
“(14) oil spill response vessels.”.
SEC. 1105. SERVICE IN CERTAIN SUITS IN ADMIRALTY.
Section 2 of the Act of March 9, 1920 (popularly known as
the Suits in Admiralty Act; 46 App. U S.C. 742), is amended b
striking “The libelant” and all that follows through “and suc
corporation.”.
SEC. 1108. AMENDMENTS TO TIlE JOHNSON ACT.
(a) CALIFORNIA CRUISE INDUSTRY REVZTALI2ATION.— .Section
5(b)(2) of the Act of January 2, 1951 (15 U.S.C. 1175(b)(2)), com-
monly referred to as the “Johnson Act”, is amended by adding
at the end thereof the following:
“(C) EXCLUSION OF CERTAIN VOYAGES AND SEGMENTS.—
Except for a voyage or segment of a voyage that occurs
within the boundaries of the State of Hawaii, a voyage
or se ment of a voyage is not described in subparagraph
(B) if it includes or consists of a segment—
“(i) that begins and ends in the same State;
“(ii) that is part of a voyage to another State
or to a foreign country; and
“(iii) in which the vessel reaches the other State
or foreign country within 3 days after leaving the State
in vhi, .h ,t
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rUDLdL ŁAE4W 1U4—324—UCT 19, 1996
PUBLIC LAW 104—324—OCT. 19, 1996 110
(b) Aumoatn OF THE STATE OF INDIANA Ovxa VESSELS ON
VOYAGES iN THE TERRITORIAL JURISDICTION OF THE STATE OF
INDIANA.—SectiOn 5(b)(1) of the Act of January 2, 1951 (15 U.S.C
1175(bXl)), commonly known as the “Johnson Act”, is amended—
(1) in subparagraph (A) by striking “or 0 after the semicolon
at the end;
(2) in subparagraph (B) by striking the period at the end
and inserting’; or”; and
(3) by adding at the end the following new subparagraph
“(C) the repair, transport, possession or use of a gam-
bling device oa a vessel on a voyage that begins ia the
State of Indiana and that does not leave the terntonal
jurisdiction of that State, including such a voyage on Lake
Michigan”.
(c) APPLICABILITY TO CERTAIN VOYAGES IN ALASKA—Section
5 of the Act of January 2, 1951 (15 U.S C 1175), commonly referred
to as the “Johnson Act”, is amended by adding at the end the
following new subsection:
“(c) EXCEPTION —(1) With respect to a vessel operating in
Alaska, this section does not prohibit, nor may the State of Alaska
make it a violation of law for there to occur, the repair, transport,
possession, or use of any gambling device on board a vessel which
provides sleeptng accommodations for all of its passengers and
that is on a voyage or segment of a voyage descnbed in paragraph
(2), except that such State may. within its boundaries—
“(A) prohibit the use of a gambling device on a vessel
while it is docked or anchored or while it is operating within
3 nautical miles of a port at which it is scheduled to call;
and
“(B) require the gambling devices to remain on board the
vessel.
“(2) A voyage referred to in paragraph Ci) is a voyage that—
“(A) includes a stop in Canada or in a State other than
the State of Alaska,
“(B) includes stops in at least 2 different ports situated
in the State of Alaska; and
“(C) is of at least 60 hours duration.”.
SEC. 1107. LOWER COLUMBIA RWER MARITIME FIRE AND SAFETY
ACTIVITIES.
The Secretary of Transportation is authorized to expend out
of the amounts appropriated for the Coast Guard not more than
$940,000 for lower Columbia River marine, fire, oil, and toxic spi 1 i
response communications, training, equipment, and program
administration activities conducted by the Maritime Fire and Safety
Association.
SEC. 1108. OIL POLLUTION RESEARCH TRAINING.
Section 7001(c)(2)(D) of the Oil Pollution Act of 1990 (33 U.S.C.
2761(c)(2)(D)) is amended by striking “Texas,” and inserting “Texas,
and the Center for Marine Training and Safety in Galveston,
Texas;”.
SEC. 1109. LIMITATION ON RELOCATtON OF HOUSTON AN!) GAL-
VESTON MARINE SAFETY OFFICES.
The Secretary of Transportation may not relocate the Coast
Guard Marine Safety Offices in Galveston, Texas, and Houston,
Texas Nothing in this section prevents the consolidation of manage-
ment functions of these Coast Guard authorities
SEC. 1110. UNINSPECTED FISH TENDER VESSELS.
Section 3302 of title 46, United States Code, s amended by
this Act, is further amended as follows:
(1) Subsection (h I is amended by stnking “A fishing vessel,”
and inserting “Except as provided in subsection (c)(3) of this
section, a fishing vessel”
(2) Subsection (c)(1) is amended by striking “A fish process-
ing vessel” and inserting “Except as provided in paragraph
(3) of this subsection, a fish processing vessel”
(3) Subsection (c)(2) is amended by striking “A fish tender
vessel” and inserting “Except as provided in paragraphs (3)
and (4) of this subsection, a fish tender vessel”
(4) Subsection (c)(3) is amended to read as follows
“(3)(A) A fishing vessel or fish processing vessel is exempt
from section 3301 (1), (6), and (7) of this title when transporting
cargo (including fisheries-related cargo) to or from a place in Alaska
if—
“ Ci) that place does not receive weekly common carner
service by water from a place in the United States,
“(ii) that place receives such common carrier service and
the cargo is of a type not accepted by that common carrier
service, or -
“(iii) the cargo is propnetary cargo owned by the owner
of the vessel or any affiliated entity or subsidiary
“(B) A fish tender vessel of not more than 500 gross tons
as measured under section 14502 of this title, or an alternate
tonnage measured under section 14302 of this title as prescnbed
by the Secretary under section 14104 of this title, which is qualified
to engage in the Aleutian trade is exempt from section 3301 (1),
(6), and (7) of this title when transporting cargo (including fisheries-
related cargo) to or from a place in Alaska outside the Aleutian
trade geographic area if—
‘(i) that place does not receive weekly common carrier
service by water from a place in the United States,
“(ii) that place receives such common carner service and
the cargo is of a type not accepted by that common carrier
service, or
“(iii) the cargo is propnetary cargo owned by the owner
of the vessel or any affiliated entity or subsidiary
“(C) In this paragraph, the term ‘proprietary cargo’ means
cargo that—
“(i) is used by the owner of the vessel or any affiliated
entity or subsidiary in activities directly related to fishing
or the processing of fish;
“(ii) is consumed by employees of the owner of the vessel
or any affiliated entity or subsidiary who are engaged in fishing
or in the processing of fish, or
“(iii) consists of fish or fish products harvested or processed
by the owner of the vessel or any affiliated entity or subsidiary.
“(D) Notwithstanding the restrictions in subparagraph (B) of
this paragraph, vessels qualifying under subparagraph (B) may
transport cargo (including fishery-related products) from a place
in Alaska receiving weekly common carrier service - water to
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T. 3972 JBLIC LAW 104—324—OCT. 19, 1996
PUBLIC LAW 104—324 —OCT. 19, 1996 s STAT. 3973
(1) ay striking “or permitted”; and
(2) by inserting after “day” the following: “or permitted
to work mare than 15 hours in any 24-hour period, or more
than 36 hours in any 72-hour period”.
(b) Section 8104(e) of title 46, United States Code is amended
by striking “subsections (c) and (d)” and mserting “sutisection (dY’.
(c) Section 8104(g) of title 46, United Stotes Code, is amended
by striking “(except a vessel to which subsection (c) of this section
applies)”.
SEC. 1115. REPEAL OF GREAT LAKES ENDORSEMENTS.
(a) REPEw.—Section 12107 of title 46, United States Code,
is repealed.
(b) CONFORMING AMENDMENTS —
(1) The analysis at the beginning of chapter 121 of title
46, United States Code, is amended by striking the item relat-
ing to section 12107.
(2) Section 12101(b)(3) of title 46, United States Code,
is repealed.
(3) Section 4370(a) of the Revised Statutes of the United
States (46 App. U S.C 316(a)) is amended by strikmg “or
12107”.
(4) Section 2793 of the Revised Statutes of the United
States (46 App. U.S C 111, 123) is amended—
(A) by stnking “coastwise, Great Lakes endorsement”
arid all that follows through “foreign ports,” and inserting
“registry endorsement, engaged in foreign trade on the
Great Lakes or their tributary or connecti.ng waters in
trade with Canada,”; and
(B) by striking “, as if from or to foreign ports”.
(5) Section 9302(a)(1) of title 46, United States Code, is
amended by striking “subsections (d) and (e)” and inserting
“subsections (d), (e), and (0”
(6) Section 9302(e) of title 46, United States Code, is
amended by striking “subsections (a) and (bY’ and inserting
“subsection (a)”.
(7) Section 9302 of title 46, United States Code, is amended
by adding at the end the following new subsection:
“U) A documented vessel regularly operating on the Great Lakes
or between ports on the Great Lakes and the St Lawrence River
is exempt from the requirements of subsection (a) of this section.”.
SEC. 1116. RELIEF FROM UNITED STATES DOCUMENTATION REQUIRE-
MENTS.
(a) IN G RAL.—Notwithstanding any other law or any agree-
ment with the United States Government, a vessel described in
subsection (b) may be transferred to or placed under a foreign
registry or sold to a person that is not a citizen of the United
States and transferred to or placed under a foreign registry.
(b) VESSELS DESCRIBED —The vessels referred to in subsection
(a) are the following:
(1) MV PLATTE (United States official number 653210).
(2) SOUTHERN (United States official number 591902).
(3) ARZEW (United States official number 598727).
(4) LAKE CHARLES (United States official number
619531).
(5) LOUISIANA (United States official number 619532).
(6) GAMMA (United States official number 598730)
(7) BAY RIDGE (United States official number 600128).
(8) COASTAL GOLDEN (United States official number
598731).
SEC. 1117. USE OF FOREIGN REGISTRY OIL SPILL RESPONSE VESSELS.
Notwithstanding any other provision of law, an oil spill
response vessel documented under the laws of a foreign country
may operate in waters of the United States on an emergency
and temporary basis for the purpose of recovering, transporting,
and unloading in a United States port oil discharged as a result
of an oil spill in or near those waters, if—
(1) an adequate number and type of oil spill response
vessels documented under the laws of the United States cannot
be engaged to recover oil from an oil spill in or near those
waters in a timely manner, as determined by the Federal
On-Scene Coordinator for a discharge or threat of a discharge
of oil; and
(2) that foreign country has by its laws accorded to vessels
of the United States the same privileges accorded to vessels
of that foreign country under this section.
SEC. 1118. JUDICIAL SALE OF CERTAIN DOCUMENTED VESSELS TO
ALIENS.
Section 31329 of title 46, United States Code, is amended
by adding at the end the following new subsection:
“U) This section does not apply to a documented vessel that
has been operated only for pleasure.”.
SEC. IllS. IMPROVED AUThORITY TO SELL RECYCLABLE MATERIAL.
Section 641(cX2) of title 14, United States Code, is amended
by inserting before the period the following: “, except that the
Commandant may conduct sales of materials for which the proceeds
of sale will not exceed $5,000 under regulations prescnbed by
the Commandant”.
SEC. 1120. DOCUMENTATION OF CERTAIN VESSELS.
(a) GENERAL CERTIFICATES —Notwithstanding sections 12106,
12107, and 12108 of title 46, United States Code, section 8 of
the Act of June 19, 18B6 (24 Stat 81; chapter 421; 46 App U S.C.
289), arid section 27 of the Merchant Marine Act, 1920 (46 App.
U.S.C. 683), as applicable on the date of enactment of this Act,
the Secretary of Transportation may issue a certificate of docu-
mentation with appropriate endorsement for employment in the
coastwise trade for the followin vessels.
(1) ABORIGINAL (United States official number 942118)
(2) ALPHA TANGO (United States offtcial number 945782).
(3) ANNAPOLIS (United States official number 999008).
(4) ARK (United States official number 912726).
(5) AURA (United States official number 1027807)
(6) BABS (United States official number 1030028).
(7) BAGGER (State of Hawaii registration number
HA1809E)
(8) BAREFOOT’N (United States official number 619766)
(9) BARGE 76 (United States official number 1030612).
(10) BARGE 77 (United States official number 1030613 )
(11) BARGE 78 (Unt 1 States official number 1030614)
(12) BARGE 100 (United States official number 1030615).
(13) BEACON (United States official number 501539)
46 USC 12101
note
Regu atic iis
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PUBLIC LAW 104—324—OCT. 19, 1996
PUBLIC LAW 104—324—OCT 19, 1996 110 STAT. 3981
the inspection of small passenger vessels inspected under the State
program.
(c) ‘FERMINATION.—The authority provided by subsection (a)
terminates on December 31. 1999.
(d) DEF’INITIONS.—For purposes of this section—
Cl) SECRETARY—The term “Secretary” means the Secretary
of the department in which the Coast Guard is operating.
(2) STATE.—The term “State” means the State of Min-
nesota
(3) SMALL PASSENGER VESSEL —The term “small passenger
vessel” means a small passenger vessel (as defined in section
2 101(35) of title 46, United States Code) of not more than
40 feet overall in length.
SEC. 1123. COMMONWEALTH OF THE NORThERN MAIUANA ISLANDS
FISHING.
Section 8103(i)(1) of title 46, United States Code, is amended—
(1) by striking “or” in subparagraph (B);
(2) by striking the period at the end of subparagraph (C)
and inserting a semicolon and “or”; and
(3) by adding at the end thereof the following.
an alien allowed to be employed under the immigration
laws of the Commonwealth of the Northern Mariaria Islands
if the vessel is permanently stationed at a port within the
Commonwealth and the vessel is engaged in the fisheries within
the exclusive economic zone surrounding the Commonwealth
or another United States territory or possession
SEC. 1124. AVAILABILITY OF EXTRAJUDICIAL REMEDiES FOR
DEFAULT ON PREFERRED MORTGAGE lIENS ON VES-
SELS.
(a) AVAILABILITY OF EXTRMUDICIAL REMEDIES.—Section
3 1325(b) of title 46, United States Code, is amended—
(1) in the matter preceding paragraph (1) by striking “mort-
gage may” and inserting “mortgagee may”;
(2) in paragraph (1) by—
(A) striking “perferred” and inserting “preferred”; and
(B) striking ‘; and” and inserting a semicolon; and
(3) t’ adding at the end the following:
“(3) enforce the preferred mortgage lien or a claim for
the outstanding indebtedness secured by the mortgaged vessel,
or both, by exercising any other remedy (including an
extrajudicial remedy) against a documented vessel, a vessel
for which an application for documentation is filed under chap-
ter 121 of this title, a foreign vessel, or a mortgagor, maker,
comaker, or guarantor for the amount of the outstanding indebt-
edness or any deficiency in full payment of that indebtedness,
“(A) the remedy is allowed under applicable law; and
“(B) the exercise of the remedy will not result in a
violation of section 9 or 37 of the Shipping Act, 1916
(46 App. U S.C. 808, 835).”.
(b) NOTICE.—Section 31325 of title 46, United Statea Code,
is further amended by adding at the end the following.
“(0(1) Before title to the documented vessel or vessel for which
an application for documentation is filed under chapter 121 is
transferred by an extrajudicial remedy, the person exercising the
remedy shr ‘e notice of the proposed transfer to the Secretary,
to the mortga ee of any mortgage on the vessel filed in substantial
compliance with section 31321 of this title before notice of the
proposed transfer is given to the Secretary, and to any person
that recorded a notice of a claim of an undiseharged lien on the
vessel under section 31343(a) or (d) of this title before notice of
the proposed transfer is gwen to the Secretary
“(2) Failure to give notice as required by this subsection shall
not affect the transfer of title to a vessel However, the rights
of any holder of a maritime lien or a preferred mortgage on the
vessel shall not be affected by a transfer of title by an extrajudicial
remedy exercised under this section, regardless of whether notice
is re 9 uired by this subsection or given
‘(3) The Secretary shall prescribe regulations establishing the
time and manner for providing notice under this subsection.”.
(c) RULE OF CONSTRUCTION.—The amendments made by sub-
sections (a) and (b) may not be construed to imply that remedies
other than judicial remedies were not available before the date
of enactment of this section to enforce claims for outstanding indebt-
edness secured by mortgaged vessels.
SEC. 1125. OFFSHORE FACILITY FINANCIAL RESPONSIBILI”IY
REQUIREMENTS.
(a) AMOUNT OF FINANCIAL RESPONSIBILITY —Section 1016 of
the Oil Pollution Act of 1990 (33 U S.C 2716) is amended—
(1) by amending subsection (c)(1) to read as follows
“(1)IN GENERAL —
“(A) EVIDENCE OF FINANCIAL RESPONSIBILITY
REQUIRED —Except as provided in paragraph (2), a respon-
sible party with respect to an offshore facility that—
“(i)(I) is located seaward of 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; or
“( II) is located in coastal inland waters, such as
bays or estuaries, seaward of the line of ordinary low
water along that portion of the coast that is not in
direct contact with the open sea,
“(ii) is used for exploring for, drilling for, produc-
ing, or transporting oil from facilities engaged in oil
exploration, drilling, or production, and
“(iii) has a worst-case oil spill discharge potential
of more than 1,000 barrels of oil (or a lesser amount
if the President determines that the risks posed by
such facility justify it),
shall establish and maintain evidence of financial respon-
sibility in the amount required under subparagraph (B)
or (C), as applicable.
“(B) AMOUNT REQUIRED GENERALLY.—EXCePt as pro-
vided in subparagraph (C), the amount of financial respon-
sibility for offshore facilities that meet the criteria of
subparagraph (A) is—
“(i) $35,000,000 for an offshore facility located sea-
ward of the seaward boundary of a State, or
“(ii) $10,000,000 for an offshore facility located
landward of the seaward boundary of a State.
“(C) GREATER AMOUNT.—If the President determin ’
that an amount of financial responsibility for a responsi’
AT. 3980
46 USC 31325
note
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10 STAT. 3982 PUBLIC LAW 104—324—OCT. 19, 1996
PUBLIC LAW 104-324—OCT. 19, 1996 110 STAT.
party greater than the amount required by subparagraph
(B) is justified based on the relative operational, environ-
mental, human health, and other risks posed by the quan-
tity or quality of oil that is explored for, drilled for, pro-
duced, or transported by the responsible party, the evidence
of financial responsibility required shall be for an amount
determined by the President not exceeding $150,000,000.
“(D) MULTIPLE PACILJTIES.—ln a case in which a person
is a responsible party for more than one facility subject
to this subsection, evidence of financial responsibility need
be established only to meet the amount applicable to the
facility having the greatest financial responsibility require-
ment under this subsection.
“(E) DEFINITI0N.—For the purpose of this paragraph,
the seaward boundary of a State shall be determined in
accordance with section 2(b) of the Submerged Lands Act
(43 U.S.C. 1301(b)) “,
(2) by amending subsection (1) to read as follows:
(f) Cu jr is AGAINST GUARANTOR —
“(1) IN GENERAL—Subject to paragraph (2), a claim for
which liability may be established under section 1002 may
be asserted directly against any guarantor providing evidence
of financial responsibility for a responsible party liable under
that section for removal costs and damages to which the claim
pertains. In defending against such a claim, the guarantor
may invoke—
“(A) all rights and defenses which would be available
to the responsible party under this Act;
“(B) any defense authorized under subsection (e); and
“(C) the defense that the incident was caused by the
willful misconduct of the responsible party
The guarantor may not invoke any other defense that might
be available in proceedings brought by the responsible party
against the guarantor
“(2) FURTHER REQUIREMENT.—A claim may be asserted
pursuant to paragraph (1) directly against a guarantor provid-
ing evidence of financial responsibility under subsection (c x i)
with respect to an offshore facility only if—
“(A) the responsible party for whom evidence of finan-
cial responsibility has been provided has denied or failed
to pay a claim under this Act on the basis of being insol-
vent, as defined under section 101(32) of title 11, United
States Code, and applying generally accepted accounting
principles;
“(B) the responsible party for whom evidence of finan-
cial responsibility has been provided has med a petition
for bankruptcy under title 11, United States Code; or
“(C) the claim is asserted by the United States for
removal costs and damages or for compensation paid by
the Fund under this Act, including costs incurred by the
Fund for processing compensation claims
“(3) RULEMAKING AUTI-IORITY.—Not later than 1 year after
the date of enactment of this paragraph, the President shall
promulgate regulations to establish a process for implementing
paragraph (2) in a manner that will allow for the orderly
and expeditious presentation and resolution of claims and effec-
tuate the purposes of this Act “, and
(3) by amending subsection (q) to read as follows:
“(g) LIMITATION ON GUARANTOR S LIABILITY —Nothing in this
Act shall impose liability with respect to an incident on any guaran-
tor for damages or removal costs which exceed in the aggregate,
the amount of financial responsibility which that guarantor has
provided for a responsible party pursuant to this section. The total
liability of the guarantor on direct action for claims brought under
this Act with respect to an incident shall be limited to that
amount.”.
(b) LIMITATION ON APPLICATION —The amendment made by 33 USC 27
subsection (a)(2) shall not apply to any final rule issued before note
the date of enactment of this section.
SEC. 1125. DEAUTHORIZATION OF NAVIGATION PROJECT, CORASSET
HARBOR, MASSACHUSETTS.
The following portions of the project for navigation, Cohasset
Harbor, Massachusetts, authorized by section 2 of the Act entitled
“An Act authorizing the construction repair, and preservation of
certain public works on rivers and harbors, and for other purposes”,
approved March 2, 1945 (59 Stat. 12), or carried out pursuant
to section 107 of the River and Harbor Act of 1960 (33 U.S.C.
577), are deauthorized A 7-foot deep anchorage and a 6-foot deep
anchorage; beginning at site 1, starting at a point N453510.15,
E792664.63, thence running south 53 degrees 07 minutes 05.4
seconds west 307.00 feet to a point N453325.90, E792419.07, thence
running north 57 degrees 56 minutes 36.8 seconds west 201.00
feet to a point N453432 58, E792248.72, thence running south 88
degrees 57 minutes 25.6 seconds west 50.00 feet to a point
N453431.67, E792198.73, thence running north 01 degree 02 min-
utes 52.3 seconds west 66.71 feet to a point N453498.37,
E792197.5l, thence running north 69 degrees 12 minutes 52.3
seconds east 332 32 feet to a point N453616.30, E792508.20, thence
running south 55 degrees 50 minutes 24.1 seconds east 189.05
feet to point of origin; then site 2, starting at a point, N452886.64,
E79l287.83, thence running south 00 degrees 00 minutes 00 0
seconds west 56 04 feet to a point, N452830.60, E791287.83, thence
running north 90 degrees 00 minutes 00.0 seconds west 101 92
feet ‘to a point, N452830.60, E791185.91, thence running north
52 degrees 12 minutes 49.7 seconds east 89.42 feet to a point,
N452885.39, E791256.58, thence running north 87 degrees 42 min-
utes 33.8 seconds east 31.28 feet to point of origin; and site 3,
starting at a point, N452261.08, E792040.24, thence running north
89 degrees 07 minutes 19.5 seconds east 118 78 feet to a point,
N452262.90, E792159.01, thence running south 43 degrees 39 min-
utes 06.8 seconds west 40.27 feet to a point, N452233 76,
E792131..21, thence running north 74 degrees 33 minutes 29.1
seconds west 94.42 feet to a point, N452258.90, E792040.20, thence
running north 01 degree 03 minutes 04.3 seconds east 2.18 feet
to point of origin.
SEC. 1127. SENSE OF CONGRESS; REQUIREMENT REGARDING NOTICE. 14 USC 92
(a) PURCHASE OF AMERICAN-MADE EQUIPMENT AND PROD-
UCTS.—lt is the sense of the Congress that, to the reatest extent
practicable, all equipment and products purchased with funds made
available under this Act should be American-made.
(b) NOTICE TO REcIPIEN’rs OF ASSISTANCE.—In providing finan-
cial assistance under this Act, the official responsible for providing
the assistance, to the greatest extent practicable, shall provide
sident
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ti PUBLIC LAW 104—324—OCT . 19, 1996
PUBLIC LAW 104—324—OCT. 19, 1996 110 STAT. 3985
to each redlpient of the assistance a notice describing the statement
made in s&bsectian (a) by the Congress
SEC. 1 128. REQUIREMENT FOR PROCUREMENT OF BUOY CHAIN.
(a) REQUIREMENT —Chapter 5 of title 14, United States Code,
as amended by section 311 of this Act, is further amended by
adding at the end the following:
‘197. Procurement of buoy chain
‘ 1 (a) Except as provided in subsection (b), the Coast Guard
may not procure buoy chain—
‘(1) that is not manufactured in the United States; or
“(2) substantially all of the components of which are not
produced or manufactured in the United States
“(b) The Coast Guard may procure buoy chain that is not
manufactured in the United States if the Secretary determines
that—
“(1) the price of buoy chain manufactured in the United
States is unreasonable, or
“(2) emergency circumstances exist.”.
(b) CLERICM 4 AMENDMENT.—The table of sections for chapter
S of title 14, United States Code, as amended by section 311
of this Act, is further amended by adding at the end the following.
4197 Procurement of buoy chain”
SEC. 1129. CRUISE SHIP LIABILITY.
(a) APPLICABILITY OF STATUTORY LIMITATIONS —Section 4283
of the Revised Statutes (46 App. U.S C. 183) is amended by adding
at the end the following new subsectionS
“(g) In a suit by any person in which the operator or owner
of a vessel or employer of a crewmember is claimed to have vicarious
liability for medical malpractice with regard to a crewmember occur-
ring at a shoreside facility, and to the extent the damages resulted
from the conduct of any shoreside doctor, hospital, medical facility,
or other health care provider, such operator, owner or employer
sha]l be entitled to rely upon any and all statutory limitations
of liability applicable to the doctor, hospital, medical facility, or
other health care provider in the State of the United States in
which the shoreside medical care was provided.”.
(b) CONTRACT LIMITATIONS ALLOWED —Section 4283ti of the
Revised Statutes of the United States (46 App. U.S.C 183c) is
amended by redesignating the existing text as subsection (a) and
by adding at the end the following new subsection
“(bXl) Subsection (a) shall not prohibit provisions or limitations
in contracts, agreements, or ticket conditions of carriage with pas-
sengers which relieve a crewmeniber, manager, agent, master
owner, or operator of a vessel from liability for infliction of emotional
distress, mental suffering, or psychological injury so long as such
provisions or limitations do not limit such liability if the emotional
distress, mental suffering, orpsychologicai injury was—
“(A) the result of physical injury to the claimant caused
by the negligence or fault of a crewnieruber or the manager,
agent, master, owner, or operator;
“(B) the result of the claimant having been at actual risk
of physical injury, and such risk was caused by the negligence
or fault of a crewnienber or the manager, agent, master, owner,
or operatnr. or
“(C) intentionally inflicted by a crewmember or the man-
ager, agent, master, owner, or operator.
“(2) Nothing in this subsection is intended to limit the liability
of a crewmember or the manager, agent, master, owner, or operator
of a vessel in a case involving sexual harassment, sexual assault,
or rape “.
SEC. 1130. SENSE OF CONGRESS ON THE IMPLEMENTATION OF REGU- 33 USC 2720
LATIONS REGARDING ANThIAL FATS AND VEGETABLE note
OILS.
(a) SENSE OF CONGRESS.—Tt is the sense of Congress that,
in an effort to reduce unnecessary regulatory burdens, a regulation
issued or enforced and an interpretation or guideline established
pursuant to Public Law 104—55 should in any manner possible
recognize and provide for the differences in the physical, chemical,
biological, and other properties, and in the environmental effects,
of the classes of fats, oils, and greases described under that law
(b) REPOET.—Within 60 days after the date of enactment of
this section and on January 1 of each year thereafter, the Secretary
of Transportation shall submit a report to Congress on the extent
to which the implementation by the United States Coast Guard
of regulations issued or enforced, or interpretations or guidelines
established, pursuant to Public Law 104—55, carry out the intent
of Congress and reco nize and provide for the differences in the
physical, chemical, biological, and other properties, and in the
environmental effects, of the classes of fats, oils, and greases
described under that law.
SEC. 1131. TERM OF DIRECTOR OF THE BUREAU OF TRANSPORTATION
STATISTICS.
Section 111(b)(4) of title 49, United States Code, is amended
by adding at the end the following sentence: “The Director may
continue to serve after the expiration of the term until a successor
is appointed and confirmed.”
SEC. 1132. WAIVER OF CERTAIN REQUIREMENTS FOR HISTORIC
FORMER PRESmEN’rlAL YACHT SEQUOIA.
The vessel MAT SEQUOIA (United States official number
225115) is deemed to be less than 100 gross tons, and the Secretary
of Transportation may exempt that vessel from certain requirements
of section 3306 of title 46, United States Code, and the regulations
thereunder. The Secretary may impose special operating restrictions
on that vessel as to route, service, manning, and equipment, nec-
essary for the safe operation of that vessel.
SEC. 1133. VESSEL REQUIREMENTS.
Section 3503(a) of title 46, United States Code, is amended
by striking the last sentence arid inserting in lieu thereof the
following “Before November 1, 2008, this section does not apply
to any vessel in operation before January 1, 1968, and operating
only within the Boundary Line “.
SEC. 1134. EXISTING TANK VESSEL RESEARCH. 46 USC 3703
(a) FUNDING —The Secretary of ‘transportation shall take steps
to allocate funds appropriated for research, development, testing,
and evaluation, including the combination of funds from any source
available and authorized for this purpose, to ensure that any
r ‘ernment-sponsored project intended to evaluate double hul’
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F ’UIiLIU LAW 104—324—OCT. 19, 1996
PUBLIC LAW 104—324—OCT 19, 19 110 S
ternatives that provide equal or greater protection to the marine
environment, or interim solutions to remediate potential environ-
mental damage resulting from oil spills from existing tank vessels,
commenced prior to the date of enactment of this section, is fully
funded for completion by the end of fiscal year 1997. Any vessel
construction or repair necessary to carry out the purpose of this
section must be performed in a shipyard located in the United
States.
(b) USE OF PUBLIC VESSELS —The Secretary may provide ves-
sels owned by, or demise chartered to, and operated by the Govern-
ment and not engaged in commercial service, without reimburse-
ment, for use in and the support of projects sponsored by the
Government for research, development, testing, evaluation, and
demonstration of new or improved technologies that are effective
in preventing or mitigating oil discharges and protecting the
environment.
SEC. 1135. PLAN FOR THE ENGINEERING, DESIGN. AND RETRO-
FITTING OF THE ICEBREAKER MACKINAW.
(a) IN GENERAL —Not later than May 1, 1997, the Secretary
of the department in which the Coast Guard is operating shall
submit to the Committees a plan and cost estimate for the engineer-
ing, design, and retrofitting of the icebreaker MACKINAW (WAGB—
83) to equip the vessel with new engines, command and control
features, habitability improvements, and other features needed to
allow operation of the vessel by a significantly reduced crew, includ-
ing 24-hour continuous operation when necessary.
(b) C0MMVrrEES DEFINED.—In subsection (a), the term
“Committees” means the Committee on Transportation and Infra-
structure of the House of Representatives and the Committee on
Commerce, Science, and Transportation of the Senate
SEC. 1136. CROSS-BORDER FINANCING.
(a) DOCUMENTATION OF VESSELS OWNED BY TRusTs.—Section
12102 of title 46, United States Code, is amended by adding at
the end the followin new subsectionS
“(d)(1) For the issuance of a certificate of documentation with
only a registry endorsement, subsection (a)(2)(A) of this section
does not apply to a beneficiary of a trust that is qualified under
paragraph (2) of this subsection if the vessel is subject to a charter
to a citizen of the United States
“(2)(A) Subject to subparagraph (B) of this paragraph, a trust
is qualified under this paragraph with respect to a vessel only
if—
and
“(1) each of the trustees is a citizen of the United States;
“(ii) the application for documentation of the vessel includes
the affidavit of each trustee stating that the trustee is not
aware of any reason involving a beneficiary of the trust that
is not a citizen of the United States, or involving any other
person that is not a citizen of the United States, as a result
of which the beneficiary or other person would hold more than
25 percent of the ag egate power to influence or limit the
exercise of the authority of the trustee with respect to matters
involving any ownership or operation of the vessel that may
adversely affect the interests of the United States
“(B) If any person that is not a citizen of the United States
has authority to direct or participate in directing a trustee for
a trust in matters involving any ownership or operation of the
vec rl that may adversely affect the interests of the United States
or in removing a trustee for a trust without cause, either directly
or indirectly through the control of another person, the trust is
not qualified under this paragraph unless the tru t instrument
provides that persons who are not citizens of the United States
may not hold more than 25 percent of the aggregate authority
to so direct or remove a trustee
“(3) Paragraph (2) of this subsection shall not be considered
to prohibit a person who is not a citizen of the United States
from holding more than 25 percent of the beneficial interest in
a trust
“(4) If a person chartering a vessel from a trust that is qualified
under paragraph (2) of this subsection is a citizen of the United
States under section 2 of the Shipping Act, 1916 (46 App U S C
802), then the vessel is deemed to be owned by a citizen of the
United States for purposes of that section and related laws, except
for subtitle B of title VI of the Merchant Marine Act, 1936”
(b) APPROVAL OF CERTAIN VESSEL TRANSACTIONS BEFORE Docu-
MENTATION OF THE VESSEL.—Section 9 of the Shipping Act, 1916
(46 App. U S C. 808) is amended by adding at the end the following
new subsection
“(e) To promote financing with respect to a vessel to be docu-
mented under chapter 121 of title 46, United States Code, the
Secretary may grant approval under subsection (c) before the date
the vessel is documented.”.
(c) TRUST C IARTERERS._NOtWithStafldrng section 12 102(dX4)
of title 46, United States Code, as amended by this section, for
purposes of subtitle B of title VI of the Merchant Marine Act,
1936 a vessel • . is deemed to be owned and operated by a citizen
of the United States (as that term is used in that subtitle) if—
(1) the person chartering the vessel from a trust under
section 12102(d)(2) of that title is a citizen of the United States
under section 2 of the Shipping Act, 1916 (46 App U.S C
802); and
(2)(A) the vessel—
(i) is delivered by a shipbuilder, following completion
of construction, on or after May 1, 1995 and before January
31, 1996; or
(ii) is owned by a citizen of the United States under
section 2 of the Shipprng Act, 1916 on September 1, 1996,
or is a replacement for such a vessel; or
(B) payments have been made with respect to the vessel
under subtitle B of title VI of the Merchant Marine Act, 1936
for at least 1 year
(d) INDIRECT VESSEL OWNERS —Notwithstanding any other
provision of law, for purposes of subtitle B of title VI of the Merchant
Marine Act, 1936 the following vessels are deemed to be owned
and operated by a citizen of the United States (as that term is
used in that subtitle) if the vessels are owned, directly or indirectly,
by a person that is a citizen of the United States under section
2 of the Shipping Act, 1916 (46 App U S C 802)
(1) Any vessel constructed under a shipbuilding contract
signed on December 21, 1995, and having hull number 3077,
3078, 3079, or 3080
_ J.u ..) ti_i. .‘
46
i 1€
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AT 3990 PUBLIC LAW 104—324----OCT. 19, 1996
PUBLIC LAW 104—324----OCT. 19, 1996 110 STAT. 3991
USC 1271 et seq) before issuing a guarantee or a commitment
to guarantee under this section
(d) FUNDING PROVISIONS —
(1) The Secretary may not guarantee or commit to guaran-
tee obligations under this section that exceed $100,000,000
in the aggregate.
(2) The amount of appropriated funds required by the Fed-
eral Credit Reform Act of 1990 (2 U.S.C. 661a et seq) in
advance of the Secretary’s issuance of a guarantee or a commit-
ment to guarantee under this section shall be provided by
the State in which the shipyard is located, and other involved
States, or by a State-chartered agency, arid deposited by the
Secretary in the financing account established under the Fed.
eral Credit Reform Act of 1990 (2 U.S.C. 661a et seq) for
loan guarantees issued by the Secretary under title XI of the
Merchant Marine Act of 1936 (46 App. U.S.C. 1271 et seq).
No federally appropriated funds shall be available for this
purpose. The funds deposited into that financing account shall
be held and applied by the Secretary in accordance with the
provisions of the Federal Credit Reform Act of 1990 (2 U.S.C.
661a et seq), except that, unless the Secretary shall have
earlier paid an obligee or been required to pay an obligee
pursuant to the terms of a loan guarantee, the funds deposited
in that financing account shall be returned, upon the expiration
of the Secretary’s loan guarantee, to the State, States, or State-
chartered agency which originally provided the funds to the
Secretary.
(3) Notwithstanding the provisions of any other law or
regulation, the cost (as that term is defined by the Federal
Credit Reform Act of 1990 (2 U.S C. 661a et seq.)) of a guarantee
or commitment to guarantee issued under this section—
(A) may only be determined with reference to the mer-
its of the specific closed shipyard reactivation project which
is the subject of that guarantee or commitment to guaran-
tee, without reference to any other project, type of project,
or averaged risk; and
(B) may not be used in determining the cost of any
other project, type of project, or averaged risk applicable
to guarantees or commitments to guarantee issued under
title X l of the Merchant Marine Act, 1936 (46 App U S.C.
1271 et seq.).
(e) SUNSET.—No commitment to guarantee obligations under
this section shall be issued by the Secretary after one year after
the date of enactment of this section.
(0 DEFINITION.—AS used in this section, the term “Secretary”
means the Secretary of Transportation.
d SEC. 1140. SAXONNET POINT LIGHT.
Notwithstanding any other provision of law, any action in
admiralty brought against a private nonprofit organization (includ-
ing any officer, director, employee, or agent of such organization)
for damages or injuries resulting from an incident occurring after
the date of enactment of this Act, and arising from the operation,
maintenance, or malfunctioning of an aid to navigation operated
by the Coast Guard on or within property or a structure owned
by such nor—-ofit organization at Sakonnet Point, Little Compton,
Rhode Island, shall be determined exclusively accorthng to the
law of the State in which such property or structure is located
SEC. 1141. DREDGING OF RHODE ISLAND WATERWAYS.
The Chief of Engineers of the Army Corps of Engineers, in
conjunction with the Secretary of Transportation and other relevant
agencies, shall—
(1) review the report of the commission convened by the
Governor of Rhode Island on dredging Rhode Island waterways;
and
(2) not later than 120 days after the date of enactment
of this section, submit to the Committee on Environment and
Public Works of the Senate and the Committee on Transpor-
tation and Infrastructure of the House of Representatives any
recommendations that the Chief of Engineers may have
concerning the feasibility and environmental effects of the
dredging
SEC. 1142. INTERIM PAYMENTS.
(a) DAMAGES FOR LOSS OF PROFITS OR IMPAIRMENT OF EARNING
CAPAcVrY.—Section 1005 of the Oil Pollution Act of 1990 (33 U S.C
2705) is amended by—
(1) in the title inserting “; PARTIAL PAYMENT OF
CLAIMS” before the period, and
(2) adding at the end of subsection (a) the following. “The
responsible party shall establish a procedure for the payment
or settlement of claims for interim, short-term damages Pay-
ment or settlement of a claim for interim, short-term dama es
representing less than the full amount of damages to which
the claimant ultimately may be entitled shall not preclude
recovery by the claimant for damages not reflected in the paid
or settled partial claim.”.
(b) CLARIFICATION OF CLAIMS PROcEDuRE—Section 1013(d) of
the Oil Pollution Act of 1990 (33 U.S.C. 2713(d)) is amended by
striking “section” and inserting the following: “section, including
a claim for interim, short-term damages representing less than
the full amount of damages to which the claimant ultimately may
be entitled,”
(c) ADVERTISEMENT —Section 10 14(b) of the Oil Pollution Act
of 1990 (33 U.S C. 27 14(b)) is amended—
(1) by inserting “(1)” before “If’, and
(2) by adding at the end the following new paragraph
“(2) An advertisement under paragraph (1) shall state that
a claimant may present a claim for interim, short.term damages
representing less than the full amount of damages to which the
claimant ultimately may be entitled and that payment of such
a claim shall not preclude recovery for damages not reflected in
the paid or settled partial claim “.
(d) CLARIFICATION OF SUBROGATION.—Section 1015(a) of the
Oil Pollution Act of 1990 (33 U.S C 2715(a)) is amended—
(1) by redesignating subsection (b) as subsection (c), and
(2) by ihserting after subsection (a) the following.
“(b) INTERIM DAMAGES —
“(1) IN GENERAL —If a responsible party, a guarantor, or
the Fund has made payment to a claimant for interim, short-
term damages representing less than the full amount of dam-
ages to which the claimant ultimately may be entitled, subrogr
Applicability
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10 STAT 3992 PUBLIC LAW 104—324—OCT. 19, 1996
PUBLIC LAW 104—324—OCT. 19, 1996 Li 0 STAT. 39
tion under subsection (a) shall apply only with respect to the (b) CLERICAL AMENDMENT.—The table of sections for chapter
portion of the claim reflected in the paid interim claim. 81 of title 46, United States Code, is amended by adding at the
“(2) FINAL DAMAGES —Payment of such a claim shall not end the following:
foreclose a claimant’s right to recovery of aU damages to which “8105. Fishing ves8el exemption”
the claimant otherwise is entitled under this Act or under
any other law”. Approved October 19, 1996.
SEC. 1143. OIL SPILL INFORMATION.
Section 311 of the Federal Water Pollution Control Act (33
US C 1321) is amended—
(1) in subsection (j)(2)(A) by inserting after “paragraph
(4),” the following ‘and of information regarding previous spills,
including data from universities, research institutions, State
governments, and other nations, as appropriate, which shall
be disseminated as appropriate to response groups and area
conimittees, and”, and
(2) in subsection (j)(4 )(C)(v) by inserting before “describe”
the following “compile a list of local scientists, both inside
and outside Federal Government service, with expertise in the
environmental effects of spills of the types of oil typically t.rans-
ported in the area, who may be contacted to provide information
or, where appropriate, participate in meetings of the scientific
support team convened in response to a spill, and”
SEC. 1144. COMPLIANCE WITH OIL SPILL RESPONSE PLANS.
Section 311(c)(3)(B) of the Federal Water Pollution Control
Act (33 U S C 1321(c)(3)(B)) is amended by striking “President”
and inserting “President, except that the owner or operator may
deviate from the applicable response plan if’ the President or the
Federal On-Scene Coordinator determines that deviation from the
response plan would provide for a more expeditious or effective
response to the spill or mitigation of its environmental effects”.
SEC. 1145. BRIDGE DEEMED TO UNREASONABLY OBSTRUCT NAVIGA-
TION.
The Sooline & Milwaukee Road Swing Bridge, located in Osh-
kosh, Wisconsin, is deemed to unreasonably obstruct navigation
for purposes of the Act of June 21, 1940 (popularly known as
the Hobbs Bridge Act, 33 U S C 511 et seq).
SEC. 1146. FISHING VESSEL EXEMPTION.
(a) IN GENERAL —Chapter 81 of title 46, United States Code,
is amended by adding at the end the following new section
)p l icab il ity “ 8105. Fishing vessel exemption
‘Notwithstanding any other provision of law, neither the Inter-
national Convention on Standards of Training, Certification and
Watchkeeping for Seafarers, 1978, nor any amendment to such
convention, shall apply to a fishing vessel, including a fishing
vessel used as a fish tender vessel.”.
i consrn
LEGISLATIVE HISTORY—S 1004 (H H 1361)
HOUSE REPORTS Nos 104—106 accompanying H R 1361 (Comm on Transpor-
tation and Infrastructure) and 104—854 (Comm of Conference)
SENATE REPORTS No 104—160 (Comm on Commerce, Science, and Transpor-
t.ation)
CONGRESSIONAL RECORD
Vol 141 (1995) May 9, H 5 1361 considered and passed House
Nov 17. S 1004 considered and passed Senate
Vol 142 (1996) Feb 29, considered and passed House, amended, in lieu of
HR 1361
Sept 27, House agreed to conference report
Sept 28, Senate agreed to conference report
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol 32 (1996)
Oct 19, Presidential statement
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o S7 .,
.?
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON,DC 20460
March 7, 1997
PRO
OFFICE OF
ENFORCEMENT AND
COMPLIANCE ASSURANCE
MEMORANDUM
SUBJECT: Summary of the Coast Guard Authorization Act of 1996
FROM: Kenney, Office of Site Remediation Enforcement
TO: OPA Enforcement Contacts
As requested during the February 1997 OPA enforcement conference call, attached please
find a summary of relevant portions of the Coast Guard Authorization Act of 1996 (“CGAA”),
which was enacted as Public Law 104-324 on October 19, 1996. The attached summary
describes the following provisions of the law that are related to oil spills:
Amendments to § 311 of the Clean Water Act: § 1143 and 1144 of the CGAA;
Amendments to the Oil Pollution Act: § 1102, 1108, 1125 & 1142 of the CGAA; and
Amendments to Other Laws or Free-Standing Provisions: § 101, 901, 902, 903, 1103,
1104, 1107, 1117, 1130&ll34oftheCGAA.
Please note that although the summary includes references to relevant portions of the
CGAA conference report and the congressional debate thereon, it is not intended to provide a
comprehensive analysis of the entire legislative history of this statute. In particular, I did not
research the legislative history of the versions of the statute that were adopted by the House and
Senate prior to action by the conference committee.
I hope that this summary will be useful to you. If you have any questions, please let me
know (202-564-5127)
Attachment
cc. Kenneth Patterson, OSRE
Lori Boughton, OSRE
David Lopez, OERR
Rocyc ledlRecy clab le . Pnnted with Vegeta . Oil Based Inks on 100% Recycled Paper (40% Postconsumer)
-------
Coast Guard Authorization Act of 1996 (Public Law 104-324)--
Summary of Oil-Related Provisions
A. Amendments to Section 311 of the Clean Water Act
1. Section 1143, Oil Spill Information
• Amends two provisions in § 311(j) of the Clean Water Act (CWA).
+ Amends § 311 (j)(2)(A) to require the Coast Guard National Response Unit to compile
& maintain a comprehensive computer list of information concerning previous spills
(including data from universities, research institutes, states and other nations), and to
disseminate such information to response groups & area committees (as appropriate).
4 Amends § 31 l(j)(4)(C)(v) to require that each Area Contingency Plan compile a list of
local scientists (both inside and inside of the federal government) with “expertise in the
environmental effects of spills of the types of oil typically transported in the area” who
may be contacted for information or to participate in meetings of a scientific support team
convened in response to a spill.
+ Section 1143 was originally part of S. 1730, the Oil Spill Prevention and Response
S Improvement Act, which was reported by the Senate Environment and Public Works
(EPW) Committee on June 20, 1996. It is one of the portions of S. 1730 that were added
by the conference committee to the conference report on the Coast Guard Authorization
Act of 1996 (“CGAA”). S. 1730 was the product of hearmgs held by the Senate EPW
Committee in response to the North Cape barge spill off the coast of Rhode Island in
January 1996.
4 In Senate debate on the CGAA conference report, Senator Chafee (R-R.l.), the chairman
of the Senate EPW Committee, stated, “This requirement will ensure that response
officials may avail themselves quickly of expertise available in the spill area, in particular
with respect to the local marine environment” (142 Cong. Rec. S 11,795-6 (daily ed.
Sept. 28, 1996))
2. Section 1144, Compliance with Oil Spill Response Plans
4 Amends § 31 l(c)(3)(B) of the Clean Water Act
• Allows an owner or operator participating in a removal action under § 311(c) to deviate
from an applicable § 311 (j) response plan if the President or the On-Scene Coordinator
(OSC) determines that such deviation “would provide for a more expeditious or effective
response to the spill or mitigation of its environmental effects.”
• Does not appear to allow deviation from the National Contingency Plan (NCP), but the
“or as directed by the President” language in the existing provision already seems to
-------
allow such deviation.
+ Section 1144 was originally part of S. 1730, and was added to the CGAA by the
conference committee.
+ In Senate debate on the conference report on the CGAA, Senator Chafee stated that this
provision (and others) “fosters rapid availability to [ sic] important new information and
expertise in the wake of a spill.” However, he also indicated that deviation from the NCP
is allowed by this provision (but he is silent concerning its applicability to § 311 (j)
response plans). (142 Cong. Rec. S11,795 (daily ed. Sept. 28, 1996))
B. Amendments to the Oil Pollution Act
1. Section 1102, Oil Spill Recovery Institute
• Amends § 5001 & 5006 of the Oil Pollution Act (OPA); also makes conforming
amendments to § 6002 & 7001 of OPA.
+ Reduces the size and changes the composition of the Prince William Sound Oil Spill
Recovery Institute (OSRI) Advisory Board, including removal of the EPA
representative from the Board.
• Amends the funding mechanism for OSRI activities, providing that the National Pollution
Funds Center will make payments directly to the OSRI, rather than through NOAA or
annual appropriations.
• A post-enactment statement by Senator Stevens (R-Alaska) on § 1102 does not indicate
why the EPA representative was dropped from the OSRI Advisory Board, other than a
general statement that changing the composition of the Board and the other changes made
by this provision would “enhance the effectiveness of the OSRI.” (142 Cong. Rec.
S12,463-4 (daily ed. October 21, 1996))
2. Section 1108, Oil Pollution Research Training
4 Amends § 7001 of OPA.
+ Allows research & training on innovative oil pollution technology to be conducted at the
Center for Marine Training and Safety in Galveston, Texas (a Texas A & M University
facility).
• Section 7001 of OPA already allows such research & training to be conducted at the
National Spill Control School in Corpus Chnsti, Texas (another Texas A & M University
2
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facility).
3. Section 1125, Offshore Facility Financial Responsibility Requirements
• Amends § 1016 of OPA.
• Modifies the financial responsibility requirements for offshore facilities in
§ 1016(c)(l) of OPA by: (1) reducing the required amount of coverage from $150 million
to $35 million for facilities located on the seaward side of a state seaward boundary and
$10 million for facilities located on the Iandward side of such boundary (the President
may increase either amount to as high as $150 million if justified based on “the relative
operational, environmental, human health, and other risks” posed by oil-related activities
at a facility); (2) limiting the applicability of these requirements to facilities with a worst-
case oil discharge potential of more than 1000 barrels (or a lesser amount, if the President
determines it is justified by the risk); and (3) clarifying what constitutes an offshore
facility.
• Allows direct claims against guarantors with respect to offshore facilities under
§ 1016(f) of OPA only in 3 cases: (1) a claim by the United States for removal costs &
damages or to recover compensation paid by the Fund; (2) the responsible party has filed
for bankruptcy; or (3) the responsible party has denied or failed to pay a claim on the
basis of insolvency. The President is required to promulgate implementing regulations by
10/19/97 (one year after enactment).
• Clarifies that OPA does not impose liability on a guarantor for damages and costs in
excess of the amount of financial responsibility provided by the guarantor.
+ En Senate debate on the conference report, Senator Chafee stated that the financial
responsibility provision was intended to “ [ bring] the amount of financial responsibility
required of offshore facilities under OPA more into line with common sense and the
original intent of Congress” in three ways: (1) Correcting an “unjustifiably broad”
interpretation of OPA by the Interior Department that applied the offshore financial
responsibility requirements to “traditional onshore facilities like land-based oil terminals
and marinas,” even though such facilities may have “certain appurtenances that extend
into submerged land”; (2) Providing a “de minimis exemption” for small offshore
operators who lack the capacity to cause a major spill (Sen. Chafee noted that this
financial responsibility exemption “does not affect the liability of a facility that actually
engages in a spill”); and (3) Allowing “some flexibility” in the financial responsibility
amount for non-de minimis offshore facilities by adopting the $35 million requirement in
the Outer Continental Shelf Lands Act for facilities in federal waters and a $10 million
requirement for facilities in state waters (“given that many coastal States impose their
own such requirements”). (142 Cong. Rec. Si 1,796 (daily ed. Sept. 28, 1996))
3
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• In Senate debate on the conference report, ‘Senator Chafee also explained that the
restrictions on direct action against a guarantor for an offshore facility “arose from the
concern some have expressed that smaller, independently owned offshore facilities might
find it difficult to meet OPA’s financial responsibility requirements because of high
insurance costs.” (142 Cong. Rec. SI 1,796 (daily ed. Sept. 28, 1996))
4. Section 1142, Interim Payments
+ Amends 1005, 1013, 1014& 1015 ofOPA.
4 Requires a responsible party to establish a procedure for payment of partial claims for
“interim, short-term damages”; makes clear that payment of such claims does not
preclude recovery of other damages to which a claimant is entitled.
• Allows a claim for interim, short-term damages to be presented to the Fund under
§ 1013(d) of OPA, if the claim has first been presented in accordance with § 1013 and
fill and adequate compensation is unavailable.
• Requires that the advertisement by a responsible party or a guarantor under § 1014(b) of
OPA of its designation as the source of a discharge or threatened discharge should state
that a claimant may present a claim for interim, short-term damages, and that payment of
such a claim does not preclude recovery of other damages.
• Provides that subrogation of a claim under § 1015 applies only to the portion of a claim
(i.e., for interim, short-term damages) that has been paid.
4 Section 1142 was originally part of S. 1730, and was added to the CGAA by the
conference committee.
• In Senate debate on the conference report, Senator Chafee explained the rationale for this
provision:
After the North Cape spill, some lobstermen and fishermen were reluctant to
pursue compensation for short-term damages for fear of waiving any rights to
future compensation. This reluctance at times led to significant hardship, as most
fishermen and lobstermen are self-employed, and thus, do not qualify for
unemployment benefits.
To address this troubling situation, the conference report makes clear that a person
injured by a spill may bring a claim for less than the full amount of damages to
which he may be entitled, without waiving the right to future compensation.
(142 Cong. Rec. Sl 1,795 (daily ed Sept. 28, 1996))
4
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• In discussing this provision Senator Chafee also stated, “The responsible party may
establish reasonable parameters within which claims for partial, interim damages may be
presented to avoid undue transaction costs, consistent with avoiding financial hardship to
parties injured by a spill.” (142 Cong. Rec. Si 1,795 (daily ed. Sept. 28, 1996))
C. Amendments to Other Laws or Free-Standing Provisions
1. Section 101, Authorization of Appropriations
• Authorizes funding for operation and maintenance of the Coast Guard during fiscal years
1996 & 1997 ($2.6 billion per year), of which $25 million per year is derived from the
Oil Spill Liability Trust Fund (“the Fund”).
• Authorizes funding for acquisition, construction, rebuilding and improvement of Coast
Guard facilities, vessels, aircraft & navigation aids during fiscal years 1996 arid 1997
($428 million and $412 million, respectively), of which $33 million (FY96) and $20
million (FY97) are derived from the Fund to carry out the purposes of § 1012(a)(5) of
OPA [ i.e., to pay costs & expenses related to implementation, administration and
enforcement of OPA and § 311 of the Clean Water Act.]
• Authorizes funding for Coast Guard research & development activities during fiscal years
1996 and 1997 ($22.5 million and $20.3 million, respectively), of which $3.2 million
(FY96) and $5.0 million (FY97) are derived from the Fund.
2. Section 901, Reduction of Oil Spills from Non-Self-Propelled Tank Vessels
• Adds new 46 U.S.C. § 3719, “Reduction of oil spills from single hull non-self-propelled
tank vessels.”
• Requires DOT to issue regulations by 10/1/97 to require that single hull non-self-
propelled tank vessels that operate in the open ocean or coastal waters have at least one of
the following three measures: (I) A crew member and an operable anchor on board the
tank vessel capable of stopping the vessel without additional assistance; (2) An
emergency system on the tank vessel or the towing vessel to allow the tank vessel to be
retrieved by the towing vessel if the tow line ruptures; or (3) Other measure(s) that DOT
determines vill provide comparable protection against grounding of the tank vessel
• Section 901 was originally part of S. 1730, and was added to the CGAA by the
conference committee.
• In Senate debate on the conference report, Senator Chafee stated that this is one of “two
major provisions in the conference report that will help prevent oil spills from single-hull
5
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oil-carrying barges.” The rules required by this provision “will prevent situations where
barges carry millions of gallons of oil through environmentally sensitive waters without
any kind of protection against grounding.” [ Sen. Chafee also expressed concern that the
Coast Guard was very late in issuing rules required by OPA to prevent oil spills from
single-hull vessels during the transition period before the requirement for double hulls on
all oil-carrying vessels becomes effective in the year 2015.] (142 Cong. Rec. Sl 1,794-5
(daily ed. Sept. 28, 1996))
3. Section 902, Requirement for Fire Suppression Devices
4 Adds a new subsection (f) to 46 U.S.C. § 4102.
4 Requires DOT to issue regulations by 10/1/97 to require the use of a fire suppression
system or other measure(s) to adequately assure that a fire on board a towing vessel that
is towing a non-self-propelled tank vessel can be suppressed.
4 Section 902 was originally part of S. 1730, and was added to the CGAA by the
conference committee.
4 In Senate debate on the conference report, Senator Chafee indicated that this is the other
major provision to help prevent oil spills from single-hull oil-carrying barges. “Never
again should we be in a situation where the lives of crew members and a pristine marine
environment are at risk because a towing vessel does not have the ability to suppress an
on-board fire.” (142 Cong. Rec. Si 1,795 (daily ed. Sept. 28, 1996))
4. Section 903, Studies Addressing Various Sources of Oil Spill Risk
4 Requires DOT, in coordination with the Marine Board of the National Research Council,
to conduct studies on: (1) Group-5 fuel oil spills, (2) automatic fueling shutoff
equipment; and (3) lightering operations. Reports on the three studies are due by 4/19/98
(18 months after enactment).
4 Group-S Fuel Oil Study: The first study should assess the relative environmental &
public health risks posed by discharges of”group-5 fuel oil,” defined as “a petroleum-
based oil that has a specific gravity of greater than 1.0.” The study should include
analysis of: specific risks to various listed natural resources; currently available cleanup
technologies; and technological & financial barriers to prompt remediation.
4 Automatic Fueling Shutoff Equipment Study: The second study should address
unintentional or accidental discharges of fuel oil during lightering or fuel loading or off-
loading activities, including current monitoring & fueling practices, to determine the need
for automatic fuel shutoff equipment to prevent accidental discharges of fuel oil and
whether such equipment is needed as a supplement or replacement for existing equipment
6
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or procedures.
4 Lightering Study: The thfrd study should address the actual incidence and risk of oil
spills from lightering operations (i.e., the transfer of oil from one vessel to another) off
the coast of the U.S., including the manner in which existing regulations serve to reduce
oil spill risks. The study should take into account international rules and standards, and
include recommendations on measures that would further reduce the risk of such spills.
+ Rulemaking: DOT is authorized to initiate a rulemaking to take necessary actions to
abate the threat to public health or the environment if the studies find: (1) significant risks
resulting from actual or threatened discharge of group-5 fuel oil from a vessel or facility
that can’t be technologically or economically addressed by existing or anticipated cleanup
efforts; and/or (2) the use of automatic oil shutoff equipment is necessary to prevent the
actual or threatened discharge of oil during lightering or fuel loading or off-loading
activities.
+ Section 903 was originally part of S. 1730, and was added to the CGAA by the
conference committee.
• In Senate debate on the conference report, Senator Chalet stated that the lightering and
automatic fueling shutoff equipment studies are part of “a series of additional measures to
address specific oil spill prevention concerns raised by recent spills in the Northeast.”
The lightering study should examine not only how this is practiced “but also where
lightering is done and the extent to which sensitive environmental areas may be at risk
under current rules.” (142 Cong. Rec. S 11,795 (daily ed. Sept. 28, 1996))
+ Also in Senate debate on the conference report, Senator Smith (R-N.H.) indicated that
the group-5 fuel oil and automatic fuel shutoff equipment studies were added to the bill in
response to a July 1996 oil spill in Portsmouth, New Hampshire. Senator Smith believes
that.the method used to clean up #6 fuel oil that sank to the bottom of the harbor was
“primitive” and that cleanup methods for oil that is heavier than water need to be studied.
In addition, although a worker had quickly shut off the pumps and limited the severity of
the spill, “we should not have to count on luck in such an incident.” (142 Cong. Rec.
SI 1,800 (dailyed. Sept. 28, 1996))
5. Section 1103, Limited Double Hull Exemptions
+ Amends 46 U.S.C. § 3703a
• Exempts 3 types of vessels from the double-hull construction requirements of OPA (I)
vessels equipped with a double hull before 8/12/92; (2) barges of less than 1500 gbss
tons used to cain’ bulk fuel to Alaska Native villages; and (3) vessels in the National
Defense Reserve Fleet.
7
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6. •Section 1104, Oil Spill Response Vessels
• Amends46U.S.C. § 21Ol,33Ol,3702,8104,83O1,8701 &8905.
+ Defines “oil spill response vessel” (OSRV) as a “vessel that is designated in its certificate
of inspection as such a vessel, or that is adapted to respond to a discharge of oil or a
hazardous material.”
• Exempts OSRVs from the tank vessel requirements of chapter 37 of title 46, U.S. Code, if
the OSRV is used only in response-related activities or if the OSRV is a dual-certified
vessel that is actually engaged in a response-related activity.
• Contains other provisions concerning the licensing, operation, and inspection of OSRVs.
+ The conference report on the CGAA states that the amendments made by this section
require “the Coast Guard. . . to establish a new regulatory system for OSRVs.” (H.R.
Conf. Rep. No. 854, 104th Cong., 2d Sess. 125 (1996))
7. Section 1107, Lower Columbia River Maritime Fire & Safety Activities
• Authorizes DOT to spend up to $940,000 for lower Columbia River marine, fire, oil &
toxic spill response activities conducted by the Maritime Fire & Safety Association.
8. Section 1117, Use of Foreign Registry Oil Spill Response Vessels
• Allows foreign-registered OSRV(s) to operate in U.S. waters on emergency and
temporary basis for the purpose of responding to an oil spill if an adequate number of
U.S. vessels can’t be timely engaged for this purpose (as determined by the On-Scene
Coordinator) and the foreign country has reciprocal laws.
• In Senate debate on the conference report, Senator Snowe (R-Maine) indicated that this
provision is intended to “facilitate a timely and effective response in the event of an oil
spill in certain areas near our foreign borders such as Passamaquoddy Bay on Maine’s
border with Canada.” The State of Maine does not have an adequate number of OSRVs
in the vicinity, but Canadian-based vessels north of the Bay could do the job if they were
not prohibited from doing so by U.S. law. This authority “only applies as long as U.S.
documented response [ vessels] are not available to respond in a timely manner.” (142
Cong. Rec. Si 1,802 (daily ed. Sept. 28, 1996))
8
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9. Section 1130, Sense of Congress on the Implementation of Regulations Regarding
Animal Fats and Vegetable Oils.
+ States the sense of Congress that regulations, interpretations & guidelines should
recognize the differences of animal fats and vegetable oils (per Public Law 104-55, the
Edible Oil Regulatory Reform Act).
• Requires DOT to submit a report by 12/19/96 (and each January 1 thereafter) on the
extent to which implementation of Public Law 104-5 5 by the Coast Guard carries out the
intent of Congress.
• The conference report on the CGAA states that,
In enacting the Edible Oil Regulatory Reform Act, Public Law 104-55, the
Congress intended that the agencies recognize the differences between animal fats
and vegetable oils from other oils and provide regulatory relief from the burdens
of various environmental statutes, such as the Oil Pollution Act of 1990 and the
Federal Water Pollution Control Act. Those statutes were enacted to regulate
petroleum oil and other toxic oils and hazardous substances. Because of the over
broad definition of oil, those statutes applied to animal fats and vegetable oils as
well. This provision expresses the sense of Congress that agencies responsible for
the regulation of animal fats and vegetable oils under those laws should consider
and recognize the differences in these oils and structure different regulatory
requirements based on those differences.
(KR. Conf. Rep. No. 854, 104th Cong., 2d Sess. 138 (1996))
10. Section 1134, Exisling Tank Vessel Research
• Requires DOT to fully fund certain research projects to evaluate double-hull alternatives
by the end of fiscal year 1997
+ Allows DOT to use public vessels for research in oil pollution technologies that prevent
or mitigate oil discharges and protect the environment.
9
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1O4THC0NGRESs I I REPORT
2d Session f HOUSE OF REPRESENTATIVES 104—854
COAST GUARD AUTHORIZATION ACT OF 1996
SEPTEMBER 27, 1996 —Ordered to be printed
Mr. Snus’rER, from the committee of conference,
submitted the following
CONFERENCE REPORT
ITo accompany S 1004)
The committee of conference on the disagreeing votes of the
two Houses on the amendment of the House to the bill (5. 1004)
to authorize appropriations for the United States Coast Guard, and
for other purposes, having met, alter full and free conference, have
agreed to recommend and do recommend to their respective Houses
as follows:
That the Senate recede from its disagreement to the amend-
ment of the House and agree to the same with an amendment as
follows:
In lieu of the matter proposed to be inserted by the House
amendment, insert the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the “Coast Guard Authorization Act
of 1996”
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
TITLE i—AUTHORiZATION
Sec 101. Au t/zonzat ion of appropriations.
Sec. 102 Authonzed levels of nnhtary strength and training
Sec. 103. Quarterly reports on drug interdiction
Sec 104. Sense of the Congress regarthng funding for Coast Guard
TITLE 11—PERSONNEL MANAGEMENT IMPROVEMENT
Sec 201 Prouision of child development services.
Sec 202 Hurricane Andrew relief
Sec 203 Dissemination of results of 0—6 continuation boards
Sec 204 Exclude certain reservec from end.cf.year strength
Sec 205 Officer retention until retirement el igible.
Sec 206 Recruiting
Sec 207. Access to National Driuer Register information on certain Coast Guard
personnel
29—006
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From the Committee on Commerce, Science, and Transpor-
tation:
LARRY PRESSLER,
TED STEVENS,
SLADE GORTON,
TRENT Lorr,
KAY BAILEY HUTCHISON, JOINT EXPLANATORY STATEMENT OF THE COMMITI’EE OF
OLYMPIA SNOWE, CONFERENCE
JOHN ASHCROFT,
SPENCER ABRAHAM, The managers on the part of the House and the Senate at the
Fnrrz H0LL 1N GS, conference on the thsagreeing votes of the two Houses on the
Dp.r’IIEL IN0uYE, amendment of the House to the bill (S. 1004) to authorize appro-
JOHN F. KERRY, priations for the United States Coast Guard, and for other p in-
JOHN BREAIJX, poses, submit the following joint statement to the House and the
BYRON L. DORGAN, Senate in explanation of the effect of the action agreed upon by the
RON WYTEN, managers and recommended in the accompanying conference re-
From the Committee on Environment and Public Works: port:
JOHN H. CI- IAFEE, The House amendment struck all of the Senate bill after the
JOHN WARNER, enacting clause and inserted a substitute text.
BOB SMITH, The Senate recedes from its disagreement to the amendment
LAUCH FAIRCLOTH, of the House with an amendment that is a substitute for the Sen-
JIM INHOFE, ate bill and the House amendment. The differences between the
MAx BAucus, Senate bill, the House amendment, and the substitute agreed to in
FRANK R LAUTENBERG, conference and noted below, except for clerical corrections, conform-
JOE LIEBERMAN, ing changes made necessary by agreements reached by the con-
Managers on the Part of the Senate. ferees, and minor drafting and clerical changes.
SECTION 1. SHORT TITLE
Section 1 of the Senate bill states that the Act may be cited
as the “Coast Guard Authorization Act of 1996.” This section of the
House amendment states that the Act may be cited as the “Coast
Guard Authorization Act for Fiscal Year 1996.”
The Conference substitute cites the Act as the “Coast Guard
Authorization Act of 1996.”
SECTION 2. TABLE OF CONTENTS
Section 2 of the Senate bill, the House amendment, and the
conference substitute provide a table of contents for the bill.
TITLE 1—AUTHORIZATIONS
SECTION 101 AUTHORIZATION OF APPROPRIATIONS
Section 101 of the Senate bill authorizes Coast Guard appro-
priations for Fiscal Year (FY) 1996, at the following levels:
F,sral mr 2996
Operating Expenses $2,618,316,000
AC&I . 428,200,000
R&D - 22 .500,000
Retired Pay 582,022,000
Alteration of Endges . 16,200,000
Environmental Compliance 25,000,000
This bill also authorizes the transfer of funds from the discre-
tionary bridge program of the Federal Highway Administration to
(97)
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99
the Co uard for alteration of highway bridges that are deter-
mined t obstructions to navigation.
Section 101 of the House amendment contains identical au-
thorization levels, but does not contain the funding change for al-
teration of highway bridges that are determined to be obstructions
to navigation.
The Conference substitute adopts the Senate provision with an
amendment to authorize Coast Guard appropriations for fiscal year
1997 at the following levels:
F zcQi ycor 1997
Operating Expenses - . $2,637,800,000
AC&I . . . . . . 411,600,000
R&D . . . . . . . 20,300,000
Retired Pay . . .. . . 608,100,000
Alteration of’ Bridges .. . . . . . . 25100,000
Environmental Compliance . . . . . - 25,000,000
The Conference Committee recommends that a study be con-
ducted to look at ways the aviation program could cut its operating
and replacement costs. The study should include looking at alter-
native aircraft to replace some of the aging HC—130’s and HU—25’s.
The Committee believes some surveillance missions could be done
by aircraft that are much less costly to operate. Further, the Com-
mittee believes there may be creative ways these alternate aircraft
may be acquired without major capital expense. The Coast Guard
shall report back to the Committee on Transportation arid Infra-
structure of the House and the Committee on Commerce, Science,
and Transportation of the Senate by December 15, 1997
SECTION 102. AUTHORIZED LEVELS OF MILITARY STRENGTH AND
TRAINING
Section 102 of the Senate bill authorizes a Coast Guard end-
of-year strength of 38,400 active duty military personnel and mili-
tary training student loads for fiscal year 1996. These authorized
strength levels would not include members of the Coast Guard
Ready Reserve called to active duty for special or emergency aug-
mentation of regular Coast Guard forces for period of 180 days or
less
Section 102 of House amendment has the identical strength
numbers, but does not contain the Coast Guard Ready Reserve pro-
vision.
The Conference substitute amends the House provision by au-
thorizing a Coast Guard end-of-year strength of 37,561 by the end
of fiscal year 1997 and military training student loads for fiscal
year 1997.
SECTION 103. QUARTERLY REPORT 014 DRUG INTERDICTION
The Senate bill contains no comparable provision
Section 103 of the House amendment requires the Secretary of
Transportation to submit to the Committee on Transportation and
Infrastructure in the House of Representatives and Committee on
Commerce, Science, and Transportation in the Senate quarterly re-
ports on Coast Guard drug interdiction expenditures. The require-
ment for quarterly reports will allow the Committees to closely
monitor the expenditures for Cost Guard drug interdiction, and to
ensure that critical drug interdiction resources are flOL diverted to
other Coast Guard missions
The Conference substitute adopts the House provision
SECTION 104. SENSE OF THE CONGRESS REGARDING FUNDING FOR THE
COAST GUARD
The Senate bill contains no comparable provision.
Section 422 of the House amendment states that it is the sense
of Congress that Congress should appropriate for the Coast Guard
adequate funds to enable it to carry out all extraordinary functions
and duties the Coast Guard is required to undertake in addition to
its normal functions established by law
The Conference substitute adopts the House amendment
TITLE 11—PERSONNEL MANAGEMENT IMPROVEMENT
SECTION 201 PROVISION OF CHILD DEVELOPMENT SERVICES
Section 201 of the Senate bill adds a new section 515 to title
14, United States Code, authorizing the Coast Guard to establish
a program to provide child development services for members of the
armed forces and Federal civilian employees. Subsection (a) of new
section 515 provides authority for the Commandant to expend ap-
propriated funds to make child development services available
Subsection (b) of the new section establishes priorities for the use
of parents’ fees Subsection (c) requires regular inspections of Coast
Guard child care centers and establishes minimum requirements
for training child care center employees Subsection Cd) authorizes
the use of Coast Guard operating expenses in an amount not to ex-
ceed annual child care receipts to support child care center oper-
ation Subsection (e) authorizes the use of appropriated funds to
provide assistance to home day-care providers. Subsection (f) au-
thorizes the Secretary to charge fees for child development services
provided
Section 203 of the House amendment amends section 93 of title
14, United States Code, to authorize the Coast Guard to establish
a program to provide child development services for military mem-
bers and civilian employees This program provided in this section
is similar in most respects to the existing Department of Defense
child care development program.
The Conference substitute adopts the House amendment.
SECTION 202 HURRICANE ANDREW RELIEF
Section 202 of the Senate bill authorizes Coast Guard military
personnel assigned to a facility around Homestead Air Force Base,
Florida, on or before August 24, 1992, to be compensated if they
are unable to sell their homes due to damage from Hurricane An-
drew.
bill.
section 201 of the House amendment is identical to the Senate
The Conference substitute adopts the Senate provision
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TITLE Vill—POLLUTION FROM SHIPS
SECTION 801. PREVENTION OF POLLUTION FROM SHIPS
Section 801 of the Senate bill amends section 6 of the Act to
Prevent Pollution from Ships (APPS) to require that the Secretary
of Transportation inspect waste reception facilitie prior to issuing
a certificate of adequacy, and would provide for aut matic expira-
tion of certificates after five years, or sooner if there is a change
in operator or if the certificate is suspended or revoked. In addi-
tion, this section would encourage public participation by making
available a current list of certificates of status at ports and by re-
quiring that ports post placards containing telephone numbers
where citizens can call to report inadequate reception facilities.
The House amendment has no comparable provision.
The Conference substitute adopts the Senate provision.
SECTION 802 MARINE PLASTIC POLLUTION RESEARCH AND CONTROL
Section 802(a) of the Senate bill amends section 220 1(a) of the
Marine Plastic Pollution Research and Control Act of 1987
(MPPRCA) (33 U.S C 1902 note) to extend indefinitely the require-
ment that the Secretary report to Congress biennially on compli-
ance with MARPOL Annex V. This subsection would also require
that a list of enforcement actions taken against any domestic or
foreign ship pursuant to APPS be published in the Register on an
annual basis.
Section 802(b) amends section 2203 of the MPPRCA to: (1) es-
tablish a Marine Debris Coordinating Committee; and (2) direct the
Environmental Protection Agency and the National Oceanic and
Atmospheric Administration to use the marine debris data collected
under title V of MPPRCA to assist that Committee in ensuring co-
ordination of research, monitonng, education, and regulatory ac-
tions and assist the Coast Guard in assessing the effectivenes of
MPPRCA and APPS.
Section 802(c) amends section 2204(a) of MPPRCA, extending
indefinitely the authorization for cooperative public outreach and
educational programs. This subsection also specifies activities that
could be included in outreach programs and would require that
such programs provide the public with information on how to re-
port violations of the MPPRCA and APPS. In developing these pro-
grams, the Committee directs Federal agencies to consult with
state or local agencies that have direct contact with recreational
and commercial boaters Finally, this subsection would authorize
the Coast Guard, the National Oceanic and Atmospheric Adminis-
tration, and the Environmental Protection Agency to award grants
and enter into cooperative agreements for implementing public out-
reach programs
The House amendment has no comparable provision.
The Conference substitute adopts the Senate provision.
TITLE IX—T0wING VESSEL SAFETY
SECTION 901. REDUCTION OF OIL SPILLS FROM NON-SELF-PROPELLED
TANK VESSELS
The House amendment contains no comparable provision
The Conference substitute adopts an amendment regarding
towing vessels.
SECTION 902. REQUIREMENT FOR FIRE SUPPRESSION DEVICES
The Senate bill cont.ans no comparable provision.
The House amendment contains no comparable provision.
The Conference substitute adopts an amendment regarding fire
suppression devices.
SECTION 903. STUDIEs ADDRESSING VARIOUS SOURCES OF OIL SPILL
RISK
The Senate bill contains no comparable provision.
The House amendment contains no comparable provision.
The Conference substitute adopts an amendment regarding oil
spills.
TITLE X—CONVEYANCES
SECTION 1001. CONVEYANCE OF LIGHTHOUSES
Section 1001(a)(3)(A) of the Senate bill authorizes the transfer
of the Cape Ann Lighthouse and surrounding Coast Guard prop-
erty located on Thachers Island, Massachusetts, to the Town of
Rockport, Massachusetts. Section 1003 of the Senate bill authorizes
the transfer of the property comprising Squirrel Point Light located
in Arrowsic, Maine, to Squirrel Point Associates, Incorporated. Sec-
tion 1004 of this bill authorizes the transfer of the property com-
prising Montauk Light Station located in Montauk, New York, to
the Montauk Historical Association. Finally, Section 1005 of the
Senate bill authorizes the transfer of the property comprising Point
Arena Light Station located in Mendocjno County, California to the
Point Arena Lighthouse Keepers, Incorporated. In making these
transfers, the United States would convey all right, title and inter-
est, except that the Coast Guard retains ownership of any historic
artifact. The conveyance of these properties is subject to the condi-
tion that the properties are maintained in a manner that ensures
their present and future use for Coast Guard aids to navigation
and is consistent with the provisions of the National Historic Pres-
ervation Act of 1996. In addition, the Coast Guard continues to
have access to the properties for the operation and maintenance of
aids to navigation.
Section 424 of the House amendment authorizes the transfer
of the Cape Ann Lighthouse and section 423 of the House amend-
ment authorizes the transfer Montauk Light Station. The condi-
tions of transfer from the United States are similar to the Senate
provisions.
Section 1001 of the Conference substitute combines all of these
House and Senate lighthouse transfers into one section The Con-
ference substitute also transfers the Presque Isle Light Station,
Michigan, to Presque Isle Township, Presquc Isle County, Mi - ’
, the Saint helena Island Light Station to the Great L
ithouse Keepers Association and the Cove Poipt l,ii h Stc
Th. nitr. hill rrintnnc nn romnir ihl’ nrovicion
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TiTLE )U—MISCELLANEOUS
SECTION 1101 FLORIDA AVENUE E3RIDGE
Section 1101 of the Senate bill deems the drainage siphon ad.
jacent to the Florida Avenue Bridge in New Orle ns, Louisiana, to
be an appurtenance of the bridge, pursuant to the Truman-Hobbs
Act In 1992, the Florida Avenue Bridge was declared to be an “un-
reasonable obstruction to navigation” under the Truman-Hobbs
Act Since that time, funds have been appropriated by Congress to
commence planning and engineering for the replacement of the
bridge
The Coast Guard has determined that the drainage siphon,
which is connected to the bridge’s southern fender, must be re-
moved to widen the channel sufficiently and restore the necessary
navigability for commercial vessels on the Gulf Intracoastal Water-
way. By declaring the siphon an appurtenance, its removal quali-
fies for funding under the Truman-Hobbs Act.
Section 302 of the House amendment is similar to the Senate
provision.
The Conference substitute adopts the Senate provision. As a
result of the enactment of this provision, and the appropriation of
sufficient funds in the current Coast Guard budget, the conferees
expect that the Coast Guard will initiate construction on the re-
placement Florida Avenue Bridge as soon as possible in FY 97. The
hazardous conditions that exist as a result of the current bridge
must be rectified without delay in order to ensure the free flow of
commerce on the Industrial Canal in the Port of New Orleans.
SECTION 1102 OIL SPILL RECOVERY INSTITUTE
Section 1102 of the Senate bill authorizes the Prince William
Sound Oil Spill Recovery Institute (OSRI), which is authorized
under section 5001 of the Oil Pollution Act of 1990, to fund re-
search using the interest earned on the $22.5 million it is author-
ized to spend from the Oil Spill Liability Trust Fund, which was
transferred from the Trans-Alaska Pipeline Fund in December of
1994
This section also scales back the size of the OSRI Advisory
Board from 18 members to 16 members.
The House amendment has no comparable provision.
The Conference substitute adopts the Senate provision with
aniendments
SECTION 1103. LIMITED DOUBLE-HULL EXEMPTIONS
Section 1103 of the Senate bill amends section 3703a of title
46, United States Code, to exempt certain vessels from the double.
hull construction requirements of the Oil Pollution Act of 1990.
This section exempts those double-hulled U.S.-flag vessels delivered
before August 12, 1992, from the OPA 90 double-hull requirements.
This section also exempts barges of less than 1,500 gross tons that
are primarily used to carry deck cargo and bulk fuel to Alaska Na-
tive villages from the OPA 90 double-hull requirements The sec-
tion also exempts vessels in the National Defense Reserve Fleet
from the double-hull requirements.
Section 416 of the House amendment differs from the Senate
provision by exempting all vessels, not just U.S.-flag vessels,
equipped with a double-hull before August 12, 1992, from the OPA
90 double-hull requirements. The House bill also exempts Alaskan
barges of less than 2,000 gross tons, rather than 1,500 gross tons,
from the OPA 90 double-hull requirements.
The Conference substitute adopts the Senate provision with
several amendments.
SECTION 1104. OIL SPILL RESPONSE VESSELS
Section 1l04(a) of the Senate bill amends section 2101 of title
46, United States Code, to define an “oil spill response vessel”
(OSRV) as a vessel that Is designated in its certificate of inspection
as such a vessel, or that Is adapted to respond to a discharge of
oil or a hazardous material. Under the amendments made by this
section, the Coast Guard is required to establish a new regulatory
System for OSRVs.
Section 1104(b) adds a new subsection (I) to section 3702 of
title 46, United States Code, to exempt OSRVs from the tank ves-
sel requirements of chapter 37 of title 46, United States Code. Sec-
tion 1104(b) also divides OSRVs into two distinct categories. The
first category addresses dedicated response vessels which are used
only in spill response related activities. These vessels are not cer-
tified for any other type of service other than response. This cat-
egory includes barges which are not used for carriage of oil in bulk
as cargo and in some cases will never contain oil. There is no ton-
nage limit in this category. The second category recognizes that
some vessels are dual-certified. This category exempts vessels from
tank vessel requiremen only when designated in the certificate
for inspection as a response vessel and only when actually engaged
in spill response related activities. This category is limited to 500
gross tons.
Section l104(c) and 1104(d) amend sections 8104 and 8301 of
title 46, United States Code, to authorize the Secretary of Trans-
portation to prescnbe watch standing and licensing requirements
for OSRV .
Section l104(e) amends the requirements for Merchant Mari-
ner’s Documents (MMD ) under section 8701 of title 46, United
States Code, by providing the Secretary with the flexibility to pre-
scribe which, if any, individuals onboard an OSRV should be re-
quired to hold an MMD.
Section 1104(f) amends section 8905 of title 46, United States
Code, to clarify that a person licensed to operate towing vessels
should not be required to operate vessels engaged in oil spill re-
sponse or training activities. Currently, section 8904 of title 46,
United States Code, requires that a towing vessel that is at least
26 feet in length be operated by a licensed individual. These provi-
sions are not intended to apply to vessels towing in an emergency
or on an intermittent basis during oil spill response or training.
Section 1104(g)) amends section 3301 of title 46, United States
Code, to establish a new vessel inspection category for OSRVs
Section 417 of the House amendment is similar to the Senate
provision.
The Conference substitute adopts the Senate .provision
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SECTION 1105. SERVICE IN CERTAIN StI lTS IN ADMIRALTY
The Senate bill contains no comparable provision.
The House amendment contains rio comparable provision.
The Conference substitute corrects the service of process provi-
sions contained in the Suits in Admiralty Act, (46 App. U.S.C.
§ 742). Those provisions are different from the service provision in
Rule 4 of the Federal Rules of Civil Procedure. Under the proposed
amendments, the general service of process procedures in Civil
Rule 4 would apply to all civil cases, including admiralty and non-
admiralty cases.
Section 742 was enacted before the Federal Rules of Civil Pro-
cedure were adopted, and there is no apparent remaining reason
to treat suits in admiralty differently than other civil actions. Rule
4(i) of the Federal Rules of Civil Procedure currently governs serv-
ice upon the United States in all other civil cases.
The Conference substitute deletes the service of process provi-
sions contained in the Suits in Admiralty Act, which are different
from the service provisions in Rule 4 of the Federal Rules of Civil
Procedure The general service of process procedures in Civil Rule
4 would apply to all civil cases, including admiralty and non-admi-
ralty cases.
SECTION 1106. AMENDMENTS TO TIlE JOHNSON ACT
Section 1106 of the Senate bill resolves a conflict between cer-
tain Federal and state laws involving authorized gambling aboard
ciuise vessels Section 1106 amends section 5(b)(2) of the Act of
January 2, 1951 (15 U S C. 1175(B)(2)), commonly referred to as
the ‘Johnson Act’, to prohibit a state from regulating gambling in
international waters during the intrastate segment of a voyage
that begins or ends in the same state or U.S. possession and is part
of a voyage to another state or country. States may still regulate
gambling in state waters, on “voyages to nowhere,” and on other
state voyages The section does not apply to a voyage within the
boundaries of the State of Hawaii.
Section 408 of the House amendment is identical to the Senate
section 1106. In addition, section 425 of the House amendment
amends the Johnson Act to allow the State of Indiana to permit
gambling aboard vessels that begin voyages within the territorial
waters of Indiana and that do not leave the territorial jurisdiction
of that state.
The Conference substitute adopts the House provision, with an
amendment that allows gambling on vessels which provide sleeping
accommodations for all of its passengers if the vessel is on a voyage
(or the segment of a voyage) that is of at least 60 hours and that
includes a stop in Canada or in a State other than the State of
Alaska and also includes stops in at least 2 different ports in Alas-
ka. The amendment only applies to traditional cruises, not so
called “cruises to nowhere”.
SECTION 1107 LOWER COLUMBIA RIVER MARITIME FIRE AND SAFETY
ACTIVITIES
Sectioo 107 of the Senate bill authorizes the Secretary to ex-
pend out iounts appropriated for the Coast Guard for fiscal
year 1996 not more than $491,000 for lower Columbia River ma-
rine, fire, oil, and toxic spill response communications, training,
equipment, and program administration activities conducted by the
Maritime Fire and Safety Association.
The House amendment contains no comparable provision.
The Conference substitute authorizes $940,000 to complete the
activities of the Maritime Fire and Safety Association.
SECTION 1108. OIL POLLUTION RESEARCH TRAINING
Section 1108 of the Senate bill amends section 7001(c)(2)(D) of
the Oil Pollution Act of 1990 to allow research and training to be
conducted at the Center for Marine Training and Safety in Gal-
veston, Texas, which is a Texas A&M University facility. Currently,
OPA 90 authorizes oil pollution research and training on innova-
tive oil pollution technology to be conducted using, as appropriate,
the National Spill Control School in Corpus Christi, Texas, another
Texas A&M University facility.
The House amendment contains no comparable provision.
The Conference substitute adopts the Senate provision.
SECTION 1109. LIMITATION ON RELOCATION OF HOUSTON AND
GALVESTON MARINE SAFETY OFFICES
Section 1109 of the Senate bill prohibits the Secretary of
Transportation from relocating the Coast Guard Marine Safety of-
fices in Galveston, Texas, and Houston, Texas. Nothing in this sec-
tion prevents the consolidation of management functions of these
Coast Guard authorities.
Section 421 of the House amendment prohibits the consolida-
tion and relocation of the Coast Guard Marine Safety Offices in
Galveston, Texas, and Houston, Texas.
The Conference substitute adopts the Senate provision.
SECTION 1110. UNINSPECTEL ) FISH TENDER VESSELS
Section 1110 of the Senate bill clarifies section 3302 of title 46,
United States Code, relating to the carriage of cargo in uninspected
fish-tender vessels providing service outside the Aleutian trade geo-
graphic region. Section 3302(c)(3) of title 46, United States Code,
permits uninspected fish-tender vessels of not more than 500 gross
tons to carry: (1) cargo to or from a place in Alaska that does not
receive weekly common carrier service by water from a place in the
United States; or (2) cargo which is of the type not accepted by that
common carrier service. The Coast Guard has interpreted this
weekly common carrier test to apply only to general cargo. Section
1110 applies the weekly common carrier service test to all cargo
which is of the type accepted by common carriers. Such cargo in.
cludes frozen fish products, canning components, cardboard, salt,
and other materials directly related to fishing or the preparation
of fish.
The House amendment has no comparable provision.
The Conference substitute adopts the Senate provision with
several amendments. The Conferees have sought to clarify th’ -
werning the carriage of cargo for hire by uninspected fish
sels to ports in Alaska outside of the Aleutian.trade geom
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SECTIO I MANNING AND WATCH REQUIREMENTS ON TOWING
VESSELS ON THE GREAT LAKES
Section 1114 of the Senate bill amends section 8104 of title 46,
United States Code, to conform the manning requirements for
Great Lakes towing vessels to the requirements for towing vessels
operating in other parts of the country. Section 1114(a) of this see-
Lion amends section 8104(c) of title 46 to permit licensed individ-
uals and seamen aboard Great Lakes towing vessels to work no
more than 15 hours in any 24-hour period, or more than 36 hours
in any 72-hour period. Section 1114 also amends section 8104(e) of
title 46 to allow crewmen to work in both the deck and engine de-
partments of a towing vessel operating on the Great Lakes. Finally,
the section amends section 8 104(g) of title 46, United States Code,
to allow the licensed individuals and crewmembers aboard Great
Lakes towing vessels to be divided in two watches, rather than the
current three watch requirement.
Section 419 of the House amendment is identical to the Senate
provision.
The Conference substitute adopts the Senate provision.
SECTION 1115. REPEAL OF GREAT LAKES ENDORSEMENTS
Section 1115 of the Senate bill corrects an error in the Coast
Guard Authorization Act of 1989 (Public Law 101 —225) which made
technical changes to the Coast Guard vessel documentation
scheme These changes reflect the conversion from a system of sep-
arate and distinct types of documents based on the use of the yes.
sel to a system of multiple endorsements for a particular trade or
use. These changes unintentionally added all of the requirements
of the U.S coastwise trade (Jones Act) to all vessels operating on
the Great Lakes, even those only trading between the United
States and Canada. This section permits U.S.-tlag vessels to trade
between the United States and Canada with a certificate of docu-
mentation with a registry endorsement. However, a vessel engaged
in the coastwise trade or fisheries on the Great Lakes must meet
all the requirements necessary to obtain coastwise or fisheries en-
dorsements
Section 746 of the House amendment is similar to the Senate
provision.
The Conference substitute adopts the Senate provision with an
amendment.
SECTION ti le. RELIEF FROM UNITED STATES DOCUMENTATION
REQUIREMENTS
Section 1116 of the Senate bill would authorize nine specific
vessels to be sold to a person that is not a citizen of the United
States and to be transferred or placed under foreign registry, not-
withstanding the Construction-Differential Subsidy requirements.
Currently, U S-flag vessels built with the assistance of a Construc-
tion-Differential Subsidy are required to be owned by United States
citizens and documented under the laws of the United States for
a period of 25 years.
Section 609 of the House amendment allows the vessel MV
Platte to be sold to a non U.S. citizen.
The Conference substitute amends the Senate provisio . .iy de-
leting the vessels Rainbow Hope, Iowa Trader, and Kansas Trader,
and adding the vessels Bay R idge and Coastal Golden.
SECTION 1117. USE OF FOREIGN REGISTRY OIL SPILL RESPONSE AND
RECOVERY VESSELS
Section 1117 of the Senate bill allows oil spill response and re-
covery vessels of Canadian registry to operate in waters of the
United States adjacent to the border between Canada and the
State of Maine, on an emergency basis, in the event of an oil spill.
These vessels could only be used if there were not enough U.S.-flag
recovery vessels available during an oil spill.
The House amendment does not contain a comparable provi-
sion.
The Conference substitute expands the Senate provision to the
use of any foreign registered oil spill response vessel throughout
the United States.
SECTION 1118 JUDICiAL SALE OF CERTAIN DOCUMENTED VESSELS TO
ALIENS
Section 1118 of the Senate bill amends section 31329 of title
46, United States Code, to allow for the sale, by order of a District
Court, of recreational vessels to non-U.S. citizens. This would con-
form the conditions for the judicial sale of these vessels to the con-
ditions for their private sale under section 9(c) of the Shipping Act
of 1916 (46 App. U.S.C. 808(c)). In the past, the provisions of sec-
tion 31329 of title 46 have unreasonably restricted the foreign sales
of recreational vessels and the ability of subsequent U.S. owners to
document the vessels.
Section 405 of the House amendment is similar to the Senate
provision, but also allows the sale, by an order of a court, of docu-
rnented fishing industry vessels.
The Conference substitute adopts the House amendment with
several technical amendments.
SECTION lIlt IMPROVED AUTHORITY TO SELL RECYCLABLE MATERIAL
S ction 1119 of the Senate bill amends section 641(c)(2) of title
14, United States Code, to exempt sales by the Coast Guard of re-
cyclable materials for which the proceeds of sale will not exceed
$5,000 from current excess property disposal requirements for the
sale of recyclable materials. This section also authorizes the Coast
Guard to make these small sales under regulations prescribed by
the Commandant.
Section 406 of the House amendment is identical.
The Conference substitute adopts the Senate provision.
SECTION 1120. DOCUMENTATION OF CERTAIN VESSELS
Section 1120 of the Senate bill waives certain U.S. coastwise
trade law for 65 individually listed vessels
Section 601 of the House amendment authorizes the Secretary
of Transportation to issue a certificate of documentation with a
coastwise endorsement for a vessel that is less than 200 gross tons,
is eligible for documentation, was built in the United States, and
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that will ensure that the State will apply the Federal standards to
the inspection of these vessels. This will guarantee that there will
continue to be uniformity in the application of the law to all vessels
subject to Federal jurisdiction in Minnesota.
SECTION 1123. COMMONWEALTI-l OF THE NORTHERN MARIANA ISLANDS
FISHING
Section 1123 of the Senate bill allows an alien employed under
the immigration laws of the Commonwealth of the Northern Man-
ana Islands (CNMI) to be employed on a fishing vessel in the
CNMI if the vessel is permanently stationed at a port within the
Commonwealth.
The House amendment has no comparable provision
The Conference substitute adopts the Senate provision
SECTION 1124. AVAILABILITY OF EXTRAJUDICIAL REMEDIES UPON
DEFAULT OF PREFERRED MORTGAGE LIENS ON VESSELS
Section 1124 of the Senate bill establishes a nonjudicial alter-
native for lenders to take possession of a vessel after a default
Under current law, marine lenders seeking to foreclose loans
secured by mortgaged vessels must pursue their rights in the
courts to clearly preserve their right to recover a deficiency after
the sale of the vessel.
Section 31325 of title 46, United States Code, provides for the
foreclosure of a preferred mortgage on a documented vessel by an
in rem arrest action against the vessel within the district court’s
admiralty jurisdiction. This remedy establishes the priority for the
mortgage lien as against any maritime lien or land-based lien on
the vessel and permits the vessel to be sold free and clear of liens.
Under the Uniform Commercial Code in effect in almost every
state, a secured creditor may take possession of the collateral secu-
rity for the loan upon a default and sell it in foreclosure of the
creditor’s lien. For many years, lender’s holding preferred mort-
gages on documented vessels regularly exercised this type of “self-
help” remedy to sell mortgaged vessels upon a loan default. Par-
ticularly for smaller loans secured by recreational vessels, when
the debtor raised no opposition to repossession and there was little
likelihood of an adverse maritime lien claim against the vessel,
there was no reason to go through the time-consuming, expensive
procedures of an action in court
In 1985, the decision in Bank of America National Trust and
Savings Association v. Fogle, 637 F. Supp. 305, 1986 AMC 205
(N.D. Cal. 1985) was rendered In Fogle, the court held that in pro-
viding for an in rem admiralty remedy in law, Congress must have
intended to preclude a “self-help” remedy under state law The
Fogle decision has forced lenders seeking to foreclose defaulted
loans secured by documented vessels to use a court action, even
when no controversy requiring judicial action is necessary.
Section 1124(a) of the Senate bill adds a new paragraph (3) to
section 31325(b) of title 46, United States Code, to clarify that the
remedies currently available under section 31325(b) do not pre-
clude the exercise of other lawful rights and remedies available to
mortgagees, including extrajudicial, “self-help” remedies New
paragraph 3 25(b)(3) also supports the international recognition
of vessel mortgage foreclosures under principles of corn ity and per-
mits a preferred mortgage on a U.S.-flag vessel to be foreclosed in
a foreign court having jurisdiction over the vessel.
Consistent with existing law, the rights of any maritime lien
claimant or holder of a preferred mortgage are expressly preserved
under the amendments made by this section, notwithstanding the
use of a self-help remedy under state law.
The amendment will also not affect the remedies available
under state law to the holder of a security interest which is deemed
to be a preferred mortgage pursuant to section 3 1322(d) of title 46,
United States Code, when the Vessel Identification System estab-
lished under chapter 125 of title 46 is effective.
Section 1124(b) of this bill requires the person exercising the
extrajudicial remedy to give notice of the remedy to the Coast
Guard, to any other mortgage whose mortgage is recorded, and to
any maritime claimant who has recorded a notice of a claim of a
lien with the Coast Guard
Section 412 of the House amendment is identical to the Senate
provision.
The Conference substitute adopts the Senate provision.
SECTION 1125. OFFSHORE FACILITY FINANCIAL RESPONSIBILITY
REQUIREMENTS
The Senate bill contains a provision regarding offshore oil spill
evidence of financial responsibility
The House amendment also contains a provision.
The Conference substitute contains a compromise amendment
SECTION 1126. DEAIJTHORIZATION OF NAVIGATION PROJECT, COHASSET
HARBOR, MASSACHUSETTS
Section 1126 of the Senate bill deauthorizes a portion of the
navigation project in Cohasset Harbor, Massachusetts.
The House amendment has no comparable provision
The Conference substitute adopts the Senate provision
SECTION 1127. SENSE OF CONGRESS; REQUIREMENT REGARDING
NOTICE
The Senate bill contains no comparable provision.
Section 410 of the House amendment expresses the sense of
the Congress that, to the greatest extent practicable, all equipment
and products purchased by the Coast Guard should be American-
made
The Conference substitute adopts the House provision
SECTION 1128. REQUIREMENT FOR PROCUREMENT OF BUOY CHAIN
The Senate bill does not contain a comparable provision
Section 429 of the House amendment requires that the Coast
Guard purchase buoy chain manufactured in the United States.
The Conference substitute adopts the House provision with an
amendment.
SECTION 1129. CRUISE ShiP LIABILITY
The Senate bill contains no comparable provision
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139
Section 430 of the House amendment makes three changes in
current maritime law: The first allows foreign ship owners to pro-
vide that foreign crew members must bring lawsuits for damages
involving injury or death in appropriate foreign courts. The second
provision allows a shipowner to invoke a state’s cap on medical
malpractice damages when the shipowner is held vicariously liable
for a doctor’s medical malpractice. The third provision prohibits
cruise vessel passengers from recovering damages for psychological
injuries that are not accompanied by physical nijury or actual risk
of physical injury.
The Conference substitute adopts two subsections of the House
amendment, with amendments. Section 1129(a) of the conference
substitute provides that in a civil action by any person in which the
operator or owner of a vessel is claimed to have vicarious liability
for medical malpractice involving a crewmember that occurs to a
shoreside facility, to the extent the damages resulted from the con-
duct of any shoreside doctor, hospital, medical facility, or other
health care provider, the owner or operator of the vessel is entitled
to rely upon statutory limitations applicable to the doctor or other
health care provider in the state in which the shoreside medical
care was provided. Section 1129(b) allows an owner or operator of
a vessel to be relieved from liability for infliction of emotional dis-
tress under certain conditions This relief does not apply if the
emotional distress was the result of physical injury to the claimant
caused by negligence of the owner, the result of the claimant hav-
ing been at actual risk of physical injury, or intentionally inflicted
by a crewmember or the owner or operator of the vessel (or his
manager, agent, or master). Nothing in the Conference substitute
limits the liability of a crewmember or the manager, agent, master,
owner or operator of a vessel in a case involving sexual harass-
ment, sexual assault, or rape.
SECTION 1130. SENSE OF CONGRESS ON THE IMPLEMENTATION OF
REGULATIONS REGARDING ANIMAL FATS AND VEGETABLE OILS
The Senate bill contains no comparable provision.
The House amendment contains no comparable provision.
It In enacting the Edible Oil Regulatory Reform Act, Public Law
104—55, the Congress intended that the agencies recognize the dif-
ferences between animal fats and vegetable oils from other oils and
provide regulatory relief from the burdens of various environmental
statutes, such as the Oil Pollution Act of 1990 and the Federal
Water Pollution Control Act. Those statutes were enacted to regu-
late petroleum oil and other toxic oils and hazardous substances.
Because of the over broad definition of oil, those statutes applied
to animal fats and vegetable oils as well. This provision expresses
the sense of Congress that agencies responsible for the regulation
of animal fats and vegetable oils under those laws should consider
and recognize the differences in these oils and structure different
regulatory requirements based on those differencesjjThis provision
also requires the submission of an annual report to Congress on
the implementation of this policy
The Conference substitute expresses the sense of Congress that
agencies responsible for the regulation of animal fats and vegetable
oils should consider and recognize the differences between these
oils and petroleum-based oils and implement regulatory require-
ments reflective of those differences. This provision also requires
the submission of an annual report to Congress on the implementa-
tion of this policy.
SECTION 1131. TERM OF DIRECTOR OF THE BUREAU OF
TRANSPORTATION STATISTICS
The Senate bill contains no comparable provision.
The House amendment contains no comparable provision
The Conference substitute provides that when the term of the
Director of the Bureau of Transportation Statistics (BTS) expires,
the Director may continue to serve until his or her successor is ap-
pointed and confirmed. it is important to provide for continuity in
the leadership of BTS, due to the important work that BTS per-
forms.
SECTION 1132. WAiVER OF CERTAIN REQUIREMENTS FOR HISTORIC
FORMER PRESIDENT L YACHT SEQUOIA
The Senate bill contains no comparable provision.
The House amendment contains no comparable provision.
The SEQUOIA was originally constructed in 1925 and served
as a presidential yacht for over half a century. it is a national
treasure listed on the Register of the National Trust for Historic
Preservation. The vessel has been completely refurbished and re-
stored in a manner in which its historic value has been preserved
and the vessel has recently been brought up to date. The Conferees
intend for the Coast Guard to work with the vessel’s owners to
allow the SEQUOIA to carry passengers for hire without imposing
requiremen that compromise the historic integrity of the restora-
tion of the vessel or the safety of its passengers.
SECTION 1133. VESSEL REQUIREMENTS
The Senate bill contains no comparable provision.
The House amendment contains no comparable provision.
The Conference substitute (1) extends the original expiration
date by ten years from 1998 to 2008; (2) expands the terra “a ves-
sel”; and (3) modestly expands the permissible area of operation be-
yond inland rivers to include that narrow band shoreward of the
boundary Line.
The Conferees urge the Coast Guard to work with the owners
of the Delta King to assist them in meeting the inspection stand-
ards in the most cost effective manner possible.
SECTION 1134. EXISTING TANK VESSEL RESEARCH
The Senate bill contains no comparable provision.
The House amendment contains no comparable provision.
The Conference substitute requires the Secretary of Transpor-
tation to fully fund certain research projects intended to evaluate
double-hull alternatives by the end of Fiscal Year 1997. The sub-
stitute also permits the Secretary to use public vessels for research
in oil pollution technologies which prevent or mitigate oil dis-
charges and protect the environment. This public vessel use is re-
stricted to projects sponsored by the US over.nment n iI
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141
status of the vessel as a public vessel will not be lost, and so that
no additional cost will be added to the project.
SECTION 1135. PLAN FOR TIlE ENGINEERING, DESIGN, AND
RETROFITTING OF THE ICEBREAKER MACKINAW
The Senate bill contains no comparable provision.
The House amendment contains no comparable provision
The Conference substitute requires the Coast Guard to submit
by May 1, 1997, a plan and cost estimate for the engineering, de-
sign, and retrofitting of the icebreaker Mackinaw.
SECTION 1136. CROSS BORDER FINANCING
The Senate bill contains no comparable provision
The House amendment contains no comparable provision.
Currently U.S. companies wanting to purchase vessels and
then place those vessels under United States re istry cannot take
full advantage of modern financing methods available to their for-
eign competition and other domestic transportation sectors. For ex-
ample, the U.S. airline industry frequently acquires aircraft by
chartering them from ownership trusts that have non-citizen bene-
ficiaries. Many investors view ownership trusts as more secure
than debt instruments (such as mortgages) and trusts sometimes
receive favorable treatment under foreign tax codes. Furthermore,
there is no reason why these trusts cannot be structured in a way
that preserves U.S. citizen control of vessels.
Under current US. law, a vessel owned by a trust is eligible
for documentation only if all its ‘meinbers” are U.S. citizens and
it is capable of holding title to a vessel under the Laws of the Unit-
ed States or a State. The U.S. Coast Guard has interpreted this re-
quirement. to mean that a trust arrangement is a citizen if each of
its trustees and each beneficiary with an enforceable interest in the
trust is a citizen In contrast, a corporation is a documentation citi-
zen if it was established under U.S. law and the CEO, Chairman
of its board and a sufficient number of board members sufficient
to establish a quorum are all U.S citizens. There is no requirement
that the stock of the corporation be owned by citizens, because the
purpose of the law is satisfied so long as the vessel is controlled
by U S. citizens. Unfortunately, the ambiguity of the law with re-
spect to passive beneficiaries of trusts is impeding the revitaliza-
tion of our fleet.
Under present law, the Secretary of Transportation may grant
the right to sell or transfer a vessel foreign generally only after it
is documented under the U.S flag. Investors will not participate in
financing vessels using these trusts unless they can first be as-
sured that a particular trust instrument will meet the documenta-
tion test and they have the option to sell or transfer the vessel
world-wide if the vessel charterer subsequently defaults or the
charter terminates. It is not realistic to expect much enthusiasm
from investors unless they have reasonable option to protect their
assets.
Section 1136(a) of the Conference substitute amends section
12102 of Title 46 to pernut documentation of vessels subject to
ownership trusts under which not all of the beneficiaries are U.S.
citizens, provided that the trust document permits not more than
25% of the authority to direct or remove a trustee is held by non-
citizens, and the trustee(s) gives certain assurances. The conferees
intend this section to be implemented in the same manner as simi-
lar cross border leasing transactions as for aircraft admipistered by
the FAA New section 12102(d)(4) provides that a vessel chartered
by the trust to a citizen of the United States under section 2 of the
Shipping Act, 1916 is deemed to be a citizen of the United States
for purposes of that section and related laws such as the Capital
Construction Fund Program. However, the charterer is not consid-
ered a section 2 citizen for purposes of new subtitle B of title VI
of the Merchant Marine Act, 1936 which is dealt with separately
in this section. The purpose of this section is to allow greater flexi-
bility for section 2 citizens to use widely used international financ-
ing practices to decrease the acquisition cost of new vessels
Section 1136(b) amends Section 9 of the Shipping Act, 1916 to
permit the Secretary of Transportation to grant, prior to the docu-
mentation of a vessel, approval for prospective sale or transfer for-
eign of a vessel owned by these trusts. This amendment codifies
current practices of the Secretary
Section 1136(c) provides that for purposes of determining
whether a vessel is owned and operated by a citizen of the United
States for participation in the program established under subtitle
B of title VI of the Merchant Marine Act, 1936, a vessel chartered
by a trust under section 12102(d)(2) of title 46, United States Code
(as enacted by subsection (a) of this section) is a citizen of the Unit-
ed States under section 2 of the Shipping Act, 1916 if’ (1) the vessel
is delivered by a shipbuilder on or after May 1, 1995 and before
January 31, 1996; (2) the vessel is owned by a section 2 citizen on
September 1, 1996 or is a replacement for such a vessel; or (3) pay-
ments have been made with respect to the vessel under subtitle B
of title VI of that Act for at least one year
Section 1136(d) provides that, for purposes of determining
whether a vessel is owned and operated by a citizen of the United
States for participation in the program established under subtitle
B of title VI of the Merchant Marine Act, 1936, a vessel is deemed
to be owned and operated by a section 2 citizen if the vessel is
owned ‘ directly or indirectly” by a section 2 citizen and the vessel
was. (1) built under a shipbuilding contract signed on December 21,
1995 and having hull number 3077, 3078, 3079, or 3080; (2) deliv-
ered by a shipbuilder on or after May 1, 1995 and before January
31, 1996; owned by a section 2 citizen on September 1, 1996 or is
a replacement for such a vessel; or (4) the beneficiary of under sub-
title B of title VI of the Merchant Marine Act, 1936 for at least 1
year
Nothing in the amendments made by this section diminishes
the authority of the Secretary to impose reasonable conditions,
such as requisition of the vessel in time of emergency under Sec-
tion 902 of the Merchant Marine Act, 1936, on the foreign transfer
of a vessel.
SECTION 1137 VESSEL STANDARDS
The Senate bill contains no comparable provision
The House amendment contains no comparable provisi’
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143
The C ence substitute provides for Certification of Inspec-
tion provis . . , and for reliance on non-governmental classification
societies. Subsection (b) applies only for the period of time that the
vessel fails to comply with the applicable standards.
SECTION 1138. VESSELS SUBJECT TO THE JURISDICTION OF THE
UNITED STATES
The Senate bill contains a provision enhancing law enforce-
ment authorities related to vessels and aircraft.
The House amendment contains no comparable provision.
The Conference substitute establishes new law enforcement
provisions which expand the Government’s prosecutorial effective-
ness in drug smuggling cases. Claims of foreign registry must be
“affirmatively and unequivocally” verified by the nation of registry
to be valid. People arrested in these international situations would
not be able to use as a defense that the U.S. was acting in violation
of international law regarding recognition of registry at the time of
the arrest The Secretary of State’s certification as to the content
of discussions with foreign nations about matters of registry would
be considered “fact”, irrespective of the statements or certifications
of the foreign nation at a Later time. Jurisdictional issues would al-
ways be issues of law to be decided by the trial judge, not issues
of fact to be decided by the jury.
SECTION 1139. REACTIVATION OF CLOSED SHIPYARDS
The Senate bill contains no comparable provision.
The House amendment contains no comparable provision.
The Conference substitute establishes the basis for the Sec-
retary of Transportation to assist certain closed shipyards by sup-
porting projects for the reactivation and modernization of those
yards and the construction of ships at those yards. Subsection (a)
authorizes the Secretary to provide loan guarantees under the ship-
ping laws to assist in the reactivation and modernization of a cur-
rently closed shipyard that (1) historically built vessels and intends
to compete in international commercial shipbuilding; (2) is either
a designated public-private partnership project or has an approved
reuse plan and revolving economic conversion fund; and (3) in-
volves a State or State-chartered agency that makes a significant
investment in the project.
Subsection (b) waives the application of certain factors de-
signed to apply to existing yards but subsection (c) directs the Sec-
retary to impose appropriate standards for a reactivation and mod-
ernization project to protect the United States from the risk of de-
fault. Included in subsection (c) is a provision regarding shipyard
and shipbuilding project interdependency. This provision was
added to give the Maritime Administration guidance when consid-
ering whether to issue a guarantee or a commitment to guarantee
obligations for the construction of vessels in connection with and as
art integral part of the reactivation or modernization of closed ship-
yards. It recognizes that vessels integral to the reactivation of a
closed shipyard may request approval of a loan guarantee at the
same time the closed shipyard is requesting approval of a loan
guarantee and that due consideration and weight should be af-
forded the vessel’s application. This interdependency language is
intended to facilitate the Maritime Administration’s review and ap-
proval of closed shipyard and vessel loan guarantee applications si-
multaneously as part of the total shipyard reactivation and mod-
ernization project. This is not intended, however, to be a limiting
provision allowing the Maritime Administration to precondition the
issuance of a guarantee or commitment to guarantee for a closed
shipyard on the approval of related vessel loan guarantees.
Subsection (d l limits the aggregate guarantees for shipyards
only under this section to $100 million, requires a State or State-
agency to provide to the Secretary the amount of funds needed to
cover the risk factor cost under the Federal Credit Reform Act for
the Secretary to deposit into a financing account in the Treasury,
and provides for the reversion of the deposited amount to the State
or State-agency if, on the expiration of the guarantee, no obligation
is to be paid from the deposited funds under the terms of the guar-
antee. Other factors related to the cost of a guarantee are estab-
lished in this section.
Subsection (e) sets an expiration date of one year after the date
of enactment and subsection (0 contains a definition.
SECTION 1140. SAKONNET POINT LIGHT
The Senate bill contains no comparable provision.
The House amendment contains no comparable provision
The Conference substitute states that an action for damage or
injury arising from the operation, maintenance, or malfunctioning
of an aid to navigation, at Sakonnet Point, Littte Compton, Rhode
Island shall be determined by State law.
SECTION 1141. DREDGING OF RHODE ISLAND WATERWAYS
The Senate bill contains no comparable provision
The House amendment contains no comparable provision.
The Conference substitute adopts an amendment regarding
Rhode Island dredging.
SECTION 1142. INTERIM PAYMENTS
The Senate bill contains no comparable provision
The House amendment contains no comparable provision.
The Conference substitute adopts an amendment regarding in-
terim payments.
SECTION 1143. OIL SPILL INFORMATION
The Senate bill contains no comparable provision
The House amendment contains no comparable provision
The Conference substitute adopts an amendment regarding oil
spill information.
SECTION t144. COMPL iANCE W II OIL SPILL RESPONSE PLANS
The Senate bill contains no comparable provision.
The House amendment contains no comparable provision
The Conference substitute adopts an amendment regarding oil
spill response plans.
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145
SECTION 1145. CLARIFICATION OF TANK VESSEL REQUIREMENTS From the Committee on Commerce, Science, and Transpor..
The Senate bill contains no comparable provision. tation:
The House amendment contains no comparable provision. LARRY PRESSLER
The Conference substitute adopts an amendment regarding TED STEVENS
tank vessel requirements. SLADE GORTON,
SECTION 1146. FISHING VESSEL EXEMPTION TRENT Lo’rr
KAY BAILEY I LLJTCIIISON
The Senate bill contains no comparable provision. OLYMpIA SNOWE,
The House amendment contains no comparable provision. JOHN ASHCROrF,
Section 1146 clarifies that the International Convention on SPENCER ABRAJIAM,
Standards of Training, Certification and Watchkeeping for Sea- FRITZ HOLLINGS,
farers, 1978 (STCW) does not apply to fishing vessels, including DANIEL INOUyi ,
fishing vessels when they are operating as fish tender vessels. The JOHN F. KERRY,
STCW sets qualifications for masters, officers, and watchkeeping JOHN BREAUX
personnel on seagoing merchant ships, including the approximately BYRON L DORGAN,
350 large U.S. merchant ships, and is not appropriate for fishing From the Cominjtt RON WYDEN
vessels or traditional fish tender operations. ee on Environment and Public Works:
JOHN H. CHAFEE,
SECTION 1147 BRIDGE DEEMED TO UNREASONAI3LY OBSTRUCT JOHN WARNER
NAVIGATION Do SMITH
The Senate bill contains no comparable provision. LAUd! FAII CLOTH,
The House amendment contains no comparable provision JIM INHOFE,
The Conference Substitute deems the Sooline & Milwaukee MAX BAUCUS,
Road Swing Bridge in Oshkosh, Wisconsin as an “unreasonable ob- FRANK R LAUTENBERC,
struction to navigation” This makes the vessel eligible for funding JOE LIERERMAN,
under the Truman-Hobbs Act, a program to fund the removal of Managers on the Part of the Senate.
these types of bridges that pose a threat to safe navigation of ves-
sels. 0
From the Committee on Transportation and Infrastruc-
ture, for consideration of the Senate bill and the House
amendment, and modifications committed to conference:
Bur SHUSTER,
DON YOUNG,
HOWARD COBLE,
TIWE K. FOWLER,
BILL BAKER,
J 1Es L. OBERSTAR,
BOB CLEMENT,
GLENN POSHARD,
From the Committee on the Judiciary, for consideration of
sec. 901 of the Senate bill, and sec. 430 of the House
amendment, and modifications committed to conference:
HENRY HYDE,
BILL MCCOLLUM,
Managers on the Part of the House.
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Calendar No. 466
104 T h CoNGREss 1 1 REPORT
2d Session 5 SENATE 1 104—292
OIL SPILL PREVENTION AND RESPONSE IMPROVEMENT
ACT
JuN E 26, 1996 —Ordered to be printed
Mr. Cl-LAnE, from the Committee on Environment and Public
Works, submitted the following
REPORT
together with
ADDITIONAL VIEWS
(To accompany S 1730]
The Committee on Environment and Public Works, to which was
referred the bill (S. 1730), to amend the Oil Pollution Act of 1990
to make the Act more effective in preventing oil pollution in the
Nation’s waters through enhanced prevention of, and improved re-
sponse to, oil spills, and to ensure that citizens and communities
injured by oil spills are promptly and fully compensated, and for
other purposes, having considered the samd, reports favorably
thereon with an amendment and recommends that the bill do pass.
GEw lw STATEMENT
BACKGROUND
The Oil Pollution Act of 1990
The Oil Pollution Act of 1990 (OPA) was signed into law by
President Bush on August 18, 1990. The Act established for the
first time a comprehensive Federal oil spill response and liability
legislative framework and ushered in several landmark reforms.
First of all, it strengthened measures for oil spill prevention by re-
quiring all oil-carrying tank vessels over 5,000 gross tons con-
structed after 1990 to have double-hulls, pha8ing out operation of
29-010
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3
all oil-carrying single hull tank vessels, and requiring the Coast
Guard to issue interim spill prevention rules for single-hull vessels.
Second, OPA increased the financial consequences of oil spills. It
expanded the scope of polluter liability by imposing strict liabilit
for the clean-up costs and damages that result from an oil spil
CPA also raised the liability limit for vessels. It provided that the
higher limit could be superseded, however, if the responsible party
engaged in gross negligence, willful misconduct, or violated any ap-
plicable Federal safety, construction, or operating regulation.
Third, CPA strengthened oil spill response capabilities and ad-
vanced planning It expanded the items for which compensation
could be obtained from the Oil Spill Liability trust Fund (Fund).
It established a new planning and response system, which included
the National Response Unit, U S Coast Guard Strike Teams, 10
Coast Guard District Response Groups, and Area Committees, CPA
also mandated preparation of Area Contingency Plans as well as an
approved vessel response plan for each oil-carrying vessel
Finally, OPA facilitated access to funds to ensure prompt arid
complete recovery for damages arising from an oil spill It estab-
lished the following categories of claimants and damages for which
compensation is available from a responsible party: (1) any claim-
ant, for loss of profits or impairment of earning capncity; (2) the
government, acting as a public trustee for injured natural re-
sources, (3) owners of real or personal property, for economic losses
arising from destruction of their property; (4) a person who relies
on injured natural resources for subsistence, for injury to such re-
sources, (5) the government, for losses in tax revenue ansing from
a spill, and (6) the government, for net costs of providing additional
public services as the result of cleaning up a spill. It also expanded
the items for which compensation could be obtained from the $1
billion Fund-
The North Cape sp ill
On January 19, 1996, a barge, the North Cape, ran aground off
the southern coast of Rhode Island. Despite strong efforts by the
U S Coast Guard and others, the grounding resulted in the largest
oil spill in Rhode Island’s history. The damage to the marine envi-
ronment was extensive. Much of the spilled oil washed up onto
nearby beaches, along with the carcasses of many fish, birds, and
thousands of lobsters.
In response to the North Cape spill, the committee held two over-
sight hearings to assess the implementation of Federal oil pollution
laws The first hearing was held on February 14, 1996 in Narra-
gansett, RI, and the second hearing was held on March 27, 1996
in Washington, D.C. The committee learned from the hearings that
although CPA has brought about faster and more effective spill re-
sponse since its enactment, there is room for improvement.
The general consensus of the testimony was that equipping oil-
carrying tank vessels with double hulls is the single most effective
means of reducing the risk of a spill by such vessels. Witnesses rec-
ommended other prevention measures, such as operable anchors,
manned barges, and emergency barge retrieval systems. The Coast
Guard was admonished for still not having issued final rules estab-
lishing interim measures to reduce the risk of oil spills by single-
hull vessels until their mandatory phase-out under OPA (hereafter,
final interim single-hull vessel spill prevention rules). These rulea
were required to be issued under CPA nearly five years ago.
The other set of issues that emerged during the hearings related
to oil spill response. Many of the witnesses criticized the lack of -
ordination and expedition with which agencies acted in determin-
ing the scope and timing of closing and re-opening of fishing
rounds after the North Cape spill. Fishermen and lobstermen in-
jured by the spill found it difficult to secure short-term financial
assistance under current law. Other witnesses questioned the
availability of the $1 billion Fund for assessment and restoration
of ecological resources injured as a result of the North Cape spill.
Finally, concern was expressed about the need for better coordina-
tion in response activities among officials representing different ge-
ographic regions potentially affected by the spill.
CONGRESSiONAL LEGISLATION
Oa May ‘1, 1996, Senator Chafee, chairman of the committee, in-
troduced S. 1730, the Oil Spill Prevention and Response Improve-
ment Act. On June 4, the committee held a hearing on the bill.
On June 18, the committee began consideration of the bill. Two
days lster, on June 20, S. 1730 as amended was ordered reported
by a vote of 17 to 0.
SIJNMARY OF S. 1730
As amended and approved by the Committee on Environment
and Public Works, the bill includes four titles. Title I includes
measures to enhance oil spill prevention measures. Title II im-
proves the response to the environmental and economic injuries
from oil spills that will, inevitably, still occur. Title 1 11 clarifies the
financial responsibility requirements for offshore facilities. Title IV
makes several technical changes to CPA.
TITLE I—ENHANCING SPILL PREVENTION
Title 1 enhances oil spill prevention measures in several ways. It
guarantees that measures establishing structural and operational
spill prevention requirements for single-hull vessels, as well as a
final towing safety rule, will be in effect by the end of calendar
year 1996. It also provides an incentive for shippers to convert
their fleets to double-hull vessels before the deadline established in
OPA. Specifically, the bill includes the following changes to current
law:
Coast Guard rules—If the Coast Guard fails to issue final in-
teriin single-hull vessel spill prevention rules by dates its witnesses
testified it could meet (July 18, 1996, for operational measures and
December 18, 1996, for structural measures), the bill triggers into
effect automatically previously issued proposed rules containing
such measures. The final interim rules the Coast Guard ultimately
does issue are to include a requirement that applicable vessels
have at least one of the following: (1) a crew member and operable
anchor on board; (2) an emergency barge retrieval system on board;
or (3) comparable safeguards to prevent grounding. The rules also
must establish minimum under-keel clearance requirements for
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5
single-hull vessels for each port and certain waters in which such
vessels operate.
Incentive to convert to double-hull vessels—Operators of tank
vessels equipped with double-hulls at the time of enactment of this
Act or double-hull vessels converted from or replacing a single-hull
vessel at least 5 years before the statutory deadline in OPA will
be entitled to a lesser liability limit than provided by current law.
Operators of such vessels will be liable for damages in excess of
OPA’s statutory liability cap only if they engage in gross negligence
or willful misconduct
Towing safety rule—The Coast Guard is required to issue a final
towing safety rule by September 30, 1996. The final rule is to re-
quire (1) an emergency fire suppression system or other fire pro-
tection equipment on board, (2) an on-board electronic position-fix-
ing device, and (3) operator-conducted inspections of navigational
and operational equipment at regular intervals.
Other prevention measures—The bill directs the following agen-
cies to perform oil spill prevention studies: (1) the Secretary of
Transportation, in coordination with the Marine Board, to study
how the designation of waters and shipping lanes affects spill risks;
and (2) the U S Army Corps of Engineers, to review the forthcom-
ing report by the Governor of Rhode Island’s task force on dredg-
ing The bill also interposes a standard for lightering regulations
required under current law that ensures the rules will provide for
substantial environmental protection.
TITLE Il—IMPROVING RESPONSE TO OIL SPILLS
Title II contains amendments that build upon the response meas-
ures provided in OPA. The principal purpose of the amendments is
to reduce or redress the economic hardship and environmental
damage caused by an oil spill. Title II includes the following spe-
cific changes to current law:
Short-term financial assistance—The bill clarifies current law to
ensure that injured parties can pursue partial claims immediately
following an oil spill without waiving their right to full compensa-
tion for future losses
Fishing grounds—The National Oceanic and Atmospheric Admin-
istration (NOAA), in consultation with other affectec4 state and
Federal agencies, is required to develop a framework, including
model protocols and standards, for the closing and re-opening of
fishing grounds affected by an oil spill.
Natural resource damages—The recent Comptroller General’s
opinion that OPA does not provide for the Fund to pay costs of nat-
ural resource damage trustees arising from a damage assessment
without a separate appropriation of Congress is overturned. The
amount that may be disbursed from the Fund not subject to annual
appropriation is raised from $50 million to $60 million.
Mitigation of ecological injury—The bill strengthen8 the environ-
mental response provisions in current law. It ensures access to the
Fund for the costs of mitigating ecological damage immediately fol-
lowing an oil spill and for the costs of plugging idle oil wells It also
directs the agencies to establish a national scientific support team
and information clearinghouse to enhance responses to the environ-
mental effects of oil spills
Response plans—The bill strengthens the current law’s require-
ments for compliance with applicable response plans in the event
of a spill. It does so by providing that such plans be followed unless
deviation would provide for a more expeditious or effective response
to an oil spill or mitigation of its effects.
TITLE Ill—FINANCIAL RESPONSIBILITY
Title III amends the financial responsibility requirements of OPA
for off8hore facilities. First, it establishes $35 million as the
amount of financial responsibility required for offshore facilities.
The President may raise this amount (up to $150 million) if the
President determines that any of the various risks posed by the fa-
cility justi1 r doing so. Second, Title HI clarifies that land-based
fuel-receiving terminals and marinas are not offshore facilities for
the purpose of the financial responsibility requirements in OPA.
TITLE N—TECHNICAL AMENDMENTS
Title IV clarifies that OPA applies to the Trust Territory of the
Pacific Islands and corrects other minor non-substantive errors in-
advertently contained in OPA as passed.
SECTION-BY-SECTION ANALYSIS
TITLE I—ENHANCING SPILL PREVENTION
Section 101. Interim oil spill prevention measures for single-hull
vessels
The Coast Guard is almost five years behind OPA’s deadline for
issuing final interim single-hull vessel spill prevention rules. This
delay has undermined the purposes of subsection 4 115(b) of OPA,
which are to enhance safe operation of single-hull vessels and to
better protect the marine environment pending their replacement
with double-hull vessels as required by OPA.
Section 101 will ensure that such purposes are met by providin
for the expeditious adoption of a series of rules to reduce the ris
of an oil spill by single-hull tank vessels until such vessels are
phased out under OPA. The section will ensure that certain of
these rules, which OPA required to be issued by August 1991, are
in effect by mid-July 1996 and the full complement no later than
the end of’ the year.
The bill accomplishes this result by amending subsection 4115(b)
of OPA to provide that, if the Secretary fails to issue final rules for
single—hull vessels over 5,000 gross tone by certain dates, pre-
viously published proposed rules will go into effect automatically
and apply until issuance of new final interim rules. In particular,
if the Secretary does not issue and have in effect operational meas-
ures for single-hull vessels by July 18, 1996, a proposed rule for
such measures published in 1995 will go into effect. Similarly, if
the Secretary fails to promulgate a final structural rule for such
single-hull vessels by December 18, 1996, the section provides that
the proposed 1993 structural rule would go into effect.
A concern raised with respect to the proposed 1993 structural
rule is that certain of its requirements actually might increase oil
outflow in the event of a spill. Section 101 therefore gives the Sec-
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retary the flexibility to forestall the effectiveness of any of the pro-
visions of the 1993 proposed rule upon a finding that the provision
would likely increase the risks of 0 i1 pollution. Any such finding(s)
must be published in the Federal Register by the date the proposed
rule otherwise would be triggered into effect.
Section 101 also requires the Secretary to include certain meas-
ures in the final interim single-hull vessel spill prevention rules.
First, single-hull vessels must have at least one of the following:
(1) a crew member and operable anchor on board; (2) an emergency
barge retrieval system on board; or (3) comparable structural or
operational measures to protect against grounding. Second, the
Coast Guard is directed to establish an under-keel clearance with
which single-hull vessels must comply for each local port or place
of destination or the inland or coastal waterway through which the
vessels pass. To ensure timely issuance of the rules, the provision
gives the Coast Guard the discretion to include these requirements
in the final structural rule to be issued in December 1996 if nec-
essary.
Finally, Section 101 clarifies the standards under which the
Coast Guard is to issue interim rules for single-hull vessels. This
section clarifies that OPA requires adoption of not only those meas-
ures determined to be the most cost-effective, but of any that meet
the relevant statutory criteria. Moreover, the Coast Guard is to
give due consideration to human safety and measures that prevent
collisions and groundings in addition to those which reduce oil out-
flow after a spill has commenced.
Section 102 Incentives for shippers to convert single-hull vessels to
double-hull cessels
OPA contains limits on liability for discbargers of oil that vary
depending upon the kind and size of the entity responsible for the
spill For example, the cap for a tank vessel of 3,000 gross tons or
more is the greater of $10 million or $1,200 per gross ton These
limits do not apply if the discharge was was the result of either:
(1) gross negligence or willful misconduct; or (2) violation of an ap-
plicable Federal safety, construction, or operating regi.ilation.
Section 102 amends subsection 1004(c) of OPA as it applies to
the habihty of double-hull vessel operators. It does so by specifi-
cally limiting the circumstances under which OPA’s liability cap
can be exceeded Under this bill, violation of a regulation will no
longer be a basis for exceeding the statutory liability limits for any
vessel that is equipped with a double hull at the time of enactment
of this Act or that converts to a double hull at least five years be-
fore the conversion deadline in OPA.
Even as amended by this section, however, oil shippers that oper-
ate double-hull vessels will still be Federally liable under OPA for
damages in excess of the statutory liability cap if their api 11 was
caused by gross negligence or willful misconduct.
Double hulls play a key role in spill prevention. While requiring
shippers to convert immediately to double hulls would decrease the
risks of oil spills by tank vessels, it also would place an enormous
financial burden on the oil transportation industry. This section
avoids such a result by providing shippers with an inducement,
rather than simply accelerating OPA’s double-hull mandate.
Section 103. Prevention of oil spills by improvement of safety of tow-
ing vessels
Section 103 requires the Secretary to issue a fins] safety rule for
towing vessels by September 30, 1996. If no final rule is 1BBUed by
the deadline, the proposed rule the Coast Guard issued in 1995 will
go into effect automatically unless and until a final rule is pub-
lished. The fins] rule must require towing vessels to have on board:
(1) a fire-suppression system or other fire protection equipment;
and (2) an electronic position fixing device. The final rule also is
to include a requirement ensuring that operators conduct tests and
inspections of a vessel’s navigation and operational equipment at
regular intervals with the results to be entered into a log or similar
record.
Section 104. Other oil prevention enhancement measures
Section 104 includes a series of’ prevention-related measures to
address specific concerns raised after the North Cape apiil. This
section requires the Secretary, in cooperation with the Marine
Board of the National Research Council, to study how the designa-
tion of waters and shipping lanes through which vessels transport
oil affect the risks of an oil spill.
Section 104 directs the US. Army Corps of Engineers (Corps) to
review a forthcoming report of the Rhode Island Governor’s task
force on the dredging of the State’s waterways. It further directs
the Corps to submit to Congress within 120 days of this review rec-
ommendations regarding the feasibility and environmental efFects
of dredging.
Section 104 also provides a standard for regulations on lightering
operation8 that are required under title 46 of the US. Code, as
amended by subsection 4 115(d) of’ OPA.. Lightering involves the
transfer of oil from one vessel to another.
Current law requires that [ ightering regulations be issued that
address various factors, including prevention and response to oil
spills, but does not expressly provide a standard such rules are to
meet. The standard prescribed in Section 104 for such rules is the
same one OPA established for the interim single-hull vessel spill
prevention rules, which is to provide as substantial protection to
the environment as is economically and technologically feasible.
Use of this standard for lightering rules is appropriate not only be-
cause it has a precedent in OPA, but because lightering operations
are expected to continue to increase, especially as more and more
single-hull vessels are precluded from operating in U.S. waters over
the next 20 years. The regulations also should clarify that the Cap-
tain of the local port has authority to oversee lightering activities,
in particular as they may affect sensitive ecological resources.
TITLE lI—IMPROVING RESPONSE TO OIL SPILLS
Section 201. Access to timely short-terra financial assistance for per-
sons injured by oil spills
Sectibn 201 helps to ensure that immediate financial assistance
is available and will be provided for those whose livelihoods are af-
fected by an oil spill. In the context of the North Cape spill, some
impacted fishermen and lobstermen were reluctant to pursue par-
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tial claims for Lear of waiving their right to full compensation This
reluctance led to significant hardship in certain situations because
many of these self-employed claimants did not qualify for unem-
ployment benefits.
Sectton 201 clarifies that subparagraph 1002(b)(2XE) of OPA en-
titles a claimant injured by an oil spill to receive interim, partial
damages without prejudicing the right to pursue a claim for other
damages in the future. Subsection 1014(b) of OPA also is amended
to require that a responsible party’s advertisement setting forth
claims procedures inform injured parties that they may present
claims for interim, partial damages. The responsible party still may
establish reasonable parameters within which claims for partial,
intenm damages may be presented to avoid undue transactions
costs, consistent with avoiding financial hardship to injured par-
ties.
Section 201 also clarifies that a claimant under OPA may
present an unpaid claim for interim, partial damages to the Fund.
Finally, this section amends subsection 1015(a) of OPA to make
clear that subrogation applies only with respect to the portion of
a claim reflected in a payment of interim, partial damages
Section 202 Advance procedures for the dosing and reopening of
fishing grounds
Section 202 requires that the Under Secretary of Commerce for
Oceans and Atmosphere, in consultation with the Administrator of
the Environmental Protection Agency, the Commissioner of the
Food and Drug Administration, the Director of the U.S. Fish and
Wildlife Service and other affected state and Federal agencies,
issue regulatory guidance, including model protocols and stand-
ards. for the closing and re-opening of fishing grounds. This section
further requires that area contingency plans include area-specific
protocols and standards
Section 203. Access to oil spill liability trust fund for natural re-
source damages
Section 203 amends section 6002 of OPA to ensure that natural
resource damage trustees have direct access to the Fund for the
costs of the complete scope of their activitie8 in assessing natural
resource damages arising from an oil spill.
An October 1995 Comptroller General opinion interpreted OPA
as precluding reimbursement from the Fund for costs associated
with regular natural resource damage assessment activities as well
as the development and implementation of restoration plans. The
opinion determined that such costs are reimbursable only if pro-
vided for by congressional appropriation. The result of the opinion
is that natural resource damage trustees have not had direct access
to the Fund for their assessment work or for developing or imple-.
menting restoration plans without separate congressional appro—
priation
The purpose of Section 203 is to overrule the Comptroller Gen-
eral’s opinion to allow trustees to have direct access to the Fund
for reimbursement of costs arising from natural resource damage
assessment To ensure that such payments do not undermine oil
spill response, the section also raises the amount that may be dis-
bussed from the Fund without separate congressional appropriation
from $50 million to $60 million. The committee will continue to ex-
amine the level of’ this increase to ensure that it refltct8 the ap-
proximate amount of what trustees need to carry out natural re-
source damage assessments.
Section 204. Access to necessary information, expertise, and funding
to mitigate near-term ecological injury resulting from oil spill
Section 204 amends subsection 1012(a) of OPA to ensure access
to the Fund for costs to mitigate or avoid ecological injury imme-
diately following an oil spill. Such costs include those arising from
management activities designed to ameliorate environmental ef-
fects of oil already spilled or spread in addition to those designed
to protect resources from being subjected to oil in the first instance.
Whether costs meet the standard of this section is within the dis-
cretion of the Federal On-Scene Coordinator. Allowing the Fund to
be used to mitigate ecological damage during the critical time pe-
riod immediately following a spill will minimize the long-term in-
jury to the environment and correspondingly reduce natural re—
source damages.
Section 204 also provides access to the Fund for up to half of the
costs of plugging an idle oil well under a cost-sharing agreement
with the State. It is estimated that the nation has approximately
215,000 idle oil wells on non-Federal lands, some of which pose
substantial safety or environmental risks. This section will allow
these wells to be plugged to alleviate such risks so long as the
State in which the well is located contributes at least 50 percent
of the necessary costs.
Section 204 requires that area contingency plans include a list of
local scientists with expertise in the environmental effects of oil
spWs. In addition, it amends subsection 4202(b) of OPA to require
the Under Secretary of Commerce for Oceans and Atmosphere to
establish a national scientilic support team to assist oil spill re-
sponse teams. Finally, this section amends section 7001 of OPA to
establish a national clearinghouse of information on the environ-
mental effects of oil spills and on how best to mitigate the effects
of various kinds of spills.
Section 205. Compliance with response plans
Section 205 requires compliance with response plans unless the
President or the Federal On-Scene Coordinator determines that de-
viation from the plans would result in a faster response, a more ef-
fective response, or a response that would better mitigate environ-
mental effects than would strict adherence to the plans.
TITLE Ifl—TMLORING OF OFFSHORE FACILiTY FINANCIAL
RESPONSIBILITY REQUIREMENTS TO OIL SPILL RISKS
Section 301. Tailoring of offshore facility financial responsibility re-
quirements to oil spill risks
OPA requires offshore oil-related facilities to demonstrate evi-
dence of access to resources sufficient to cover the likely costs of
clean-up and damages arising from an oil spill This requirement
is satisfied by a facility’s obtaining a Certificate of Financial Re-
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sponsibility under OPA. In this way, OPA ensures that the dis-
charger of oil—not United States taxpayers —bears the primary fl.
nancial burden resulting from a spill.
Section 301 makes the fmancial responsibility requirements for
offshore facilities consistent with the original intent of Congress. It
will ensure that undue and unintended economio burdens are
avoided but will retain OPA’s important environmental purposes.
In particular, Section 301 of the reported bill modifies the finan-
cial responsibility requirements of OPA in three ways.
First, it corrects an overly broad interpretation of OPA by the
Department of the interior. That interpretation would apply the fi-
nancial responsibility requirements for offshore facilities to tradi-
tional onshore facilities such as land-based oil terminals and mari-
nas. Such facilities never were intended to be subject to OPA’s off-
shore financial responsibility requirements, even i1 they have cer-
tairi appurtenances that extend onto submerged land. This title
makes clear OPA’s original intent.
Second, Section 301 exempts from financial responsibility re-
quirements small offshore operators who, even under a worst-case
scenario, lack the capacity to cause a majoi oil spill. This de
rnintmis exemption removes the potential for imposing an
urijustifiably heavy financial burden on small businesses that pose
only minimal environmental risic The section does not affect the li-
ability of a facility that discharges oil. The President also retains
the discretion to require a small offshore facility to demonstrate
evidence of financial responsibility if the risk justifies doing so
Third, Section 301 allows an offshore facility’s financial respon-
sibility requirements to be tailored to the actual oil spill risks
posed by the facility. OPA currently directs the promulgation of
regulations that would require all offshore facilities to meet finan-
cial responsibility requirements at a $150 million level. Section 301
instead applies the current $35 million requirement in the Outer
Continental Shelf Lands Act for facilities in Federal waters but
give the President discretion to increase the requirement on the
basis of nsk. A similar approach is taken with respect to offshore
facilities in State waters, except that the minimum financial re-
sponsibility requirement is $10 million in light of the fact that
many coastal States impose their own such requirements
in sum, Title Ill removes the potential for unnecessary and inef-
ficient economic burdens yet preserves OPA’s fundamental purpose
of ensuring that oil-spill polluters pay for the effects of their pollu-
tion It also retains OPA’s important safeguards and deterrents
against oil pollution in the first instance.
TITLE IV—TECHI4ICAL AMENDMENTS
Section 401 Miscellaneous technical amendments
Section 401 amends the scope of OPA to include the Trust Terri-
tory of the Pacific Islands and corrects other minor non-substantive
errors inadvertently contained in OPA as passed
HEARINGS
The Committee on Environment and Public Works held two over-
sight hearings on the effectiveness of Federal oil pollution legisla-
tion. In addition to the oversight hearings, the committee held a
legislative hearing on S. 1730.
The first hearing was held on February 14, 1996 hi Narragan-
sett, RI, near the site of the North Cape spill. The purpose of the
field hearing was to use the experience of the North Cape spill to
assess the adequacy of Federal oil pollution laws to prevent and re-
spond to spills. Testimony was given by: Governor Lincoln Almond
of Rhode Island; Vice Admiral Arthur E. Henn, Vice Commandant,
U.S. Coast Guard; John Bullard, Director of Intergovernmental Al..
fairs and Sustainable Development, Department of Coinmercel
NOAA; Dr. Phillip A. Singerman, Assistant Secretary of Commerce
for Economic Development; Captain P. (“Barney”) Turlo, Federal
On-Scene Coordinator, North Cape spill, East Providence, RI;
Charles Hebert, National Wildlife Refuge Manager, U.S. Fish and
Wildlife Service, Charleetown, RI; Douglas A. Ekiof, Vice President,
Ekiof Marine, Staten Island, NY; Anne Considine, Director of Mar-
keting and Tourism, South County Council on Tourism, Wakefield,
RI; Jim O’MalIey, Executive Director, East Coast Fisheries Founda-
tion, Narragansett, RI; Brian Turnbaugh, Inshore fisherman,
Wakefield, RI; Robert Smith, President, Rhode Island Lobstermen’a
Association, Charlestown, RI; Curt Spaldirig, Executive Director,
Save the Bay, Providence, RI; Dennis Nixon, Professor, Department
of Marine Affairs, University of Rhode Island, Kingston, RI.
The second hearing was held on March 27, 1996 in Washington,
D.C. The purpose of the hearing was to consider possible Federal
legislative reforms to improve prevention of, and response to, oil
spills in light of the North Cape spill. Testimony was given by:
Rear Admiral James C. Card, Chief of Marine Safety for the U.S.
Coast Guard; Daniel Sheehan, Director of the National Pollution
Funds Center; Douglas K. Hall, Assistant Secretary of Commerce
for Oceans and Atmosphere; Timothy RE. Keeney, Director, Rhode
Island Department of Environmental Management, Providence,
R.1.; Thomas A. Allegretti, President, American Waterways Opera-
tors, Arlington, VA; George Blake, Executive Vice President, Mari-
time Overseas Corporation, New York, NY; Sally Ann Lentz, Co-Di-
rector and General Counsel, Ocean Advocates, Columbia, MD;
Barry Hartman, Counsel, Rhode Island Lobstermen’s Association;
Richard Hobbie, President, Water Quality Insurance Syndicate;
Mark Miller, President, National Response Corporation, Calverton,
NY; and Bill Gordon, Professor of Marine Affairs, University of
Rhode Island, Kingston, RI.
The third hearing was held on June 4, 1996, to consider S. 1730,
the Oil Spill Response and Improvement Act. Testimony wa given
by: Rear Admiral James C. Card, Chief of Marine Safety for the
U.S Coast Guard; Douglas K. Hall, Assistant Secretary of Com-
merce for Oceans and Atmosphere; Sidney Holbrook, Commis-
sioner, Connecticut Department of Environmental Protection, Hart-
ford, CT; John Torgan, Narragansett Baykeeper for Save the Bay,
Providence, RI; Richard Hobbie, President, Water Quality Insur-
ance Syndicate; Thomas A. Allegretti, President, American Water-
ways Operators, Arlington, VA; Richard DuMoulin, Chairman and
CEO, Marine Transport Lines, for Intertanko, Seca icus, NJ;
George Savastano, Director of Public Works, Ocean City, NJ; and
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Douglas C. Wolcott, Chair, Committee on OPA implementation Re-
view for the Marine Board of the National Research Council.
REGULATORY IMPACT
In compliance with section 11(b) of rule XXVI of the Standing
Rules of the Senate, the conimittee makes the following evaluation
of the regulatory impact of the reported bill.
Using the extant Oil Pollution Act of 1990 (OPA) as a baseline,
which S 1730 an ends, the marginal regulatory impact of the re-
ported bill is expected to be minimal.
First, one of the most important provisions of the reported bill
is completely incentive-based and non-regulatory in nature. This
provision is Section 102, which narrows the conditions under which
an oil shipper who converts to a double-hull vessel well in advance
of the statutory deadline will face liability above the statutory cap.
As such, the provision is voluntary in nature and imposes no new
regulatory requirements. The Coast Guard already has issued a
rule establishing standards for double hulls under OPA.
Second, the balance of the regulatory provisions in the reported
bill are structured to fit within the existing statutory and re?u-
latory framework established in OPA. They do so by: (A) providing
for the application of safety and environmental regulatory meas-
ures to satisfy long-overdue rulemaking requirements; (B) setting
forth measures the Coast Guard is to include in its issuance of
final rules to the greatest extent practicable consistent with rel-
evant statutory criteria; (C) clarifying standards originally pre-
scribed in OPA; (D) making minor substantive changes in imple-
mentation of various pr0v181on8 or operation of already existing
regulatory entities; or (E) making minor technical corrections to the
statute A breakdown of the provisions by the foregoing categories
follows.
Encompassed within subcategory (A) are: (1) Subsection 10 i(s)
which will ensure that final oil-spill prevention rules for single-hull
oil-carrying vessels, including both operational and structural
measures as appropriate, will be in effect by the end of calendar
year 1996; and (2) Subsection 103(a), which will ensure that a final
rule on navigation safety equipment for towing vessels will be in
effect by the end of fiscal year 1996
Although these sections involve the issuance of new regulatory
requirements, their incremental regulatory impact should be mini-
mal The Coast Guard already has issued each of the various rules
at issue in proposed form. In addition, with respect to ensuring
that final rules for single-hull tank vessels are in effect by certain
deadlines, OPA already contains a requirement mandating their is-
suance Therefore, S. 1730 adds no new regulatory burden with re-
spect to such rules
Encompassed withm subcategory (B) are: (1) the first portion of
subsection 10 1(b), which directs the Coast Guard to include certain
measures in its final rules on interim measures to reduce oil spills
from single-hull vessels; and (2) subsection 103(b), which directs
the Coast Guard to include certain other measures in its final rule
on navigation safety equipment for towing vessels
The regulatory impact of these 8ubsections should be relatively
minimal for the following reasons. First, most of the measures re-
quired to be included are already part of the applicable proposed
rules in one form or another. Second, the meagure not in the pro-
po8ed single-hull rules is crafted flexibly to allow compliance by one
of several means, while the measure not in the proposed towing-
vessel rule relates to equipment (fire-suppression system) that
most towing vessels reasonably can be expected to have already. Fi-
nally, the measures are to be incorporated into already ongoing
rulemaking processes.
Encompassed within subcategory (C) are: (1) the 8econd portion
of subsection 101(b), which clarifies the standard under which the
Coast Guard is to issue single-hull spill prevention rules in accord-
ance with subsection 4115(b) of OPA; and (2) Section 201, which
clarifies that persons injured by an oil spill are entitled to interim,
short-term damages under OPA. These provisions simply clarify ex-
isting provisions in OPA, and thus, their regulatory impact is ex-
pected to be negligible.
Encompassed within subcategory (D) are (1) subsection 104(c),
which applies the standard for the single-hull spill prevention rules
to the rulemaking for lightering operations already required of the
Coast Guard; (2) Section 203, which makes the Fund available for
natural resource damage assessments under OPA without the need
for a separate appropriation of Congress; (3) subsection 204(a),
which expands the purposes for which the Fund may be used to in-
clude costs necessary to avoid imminent ecological injury and the
plugging of idle oil well8; (4) Section 205, which modifies the stand-
ard under which deviation from response plans may occur; and (5)
Title Ill, which clarifies the financial responsibility requirements
for offshore facilities.
Each of these provisions reflects a change in operation of instru-
mentalities already in exi8tence under OPA. Thus, their regulatory
impact should be de minimis.
Encompassed in eubcategory (E) is Section 401, which makes
minor technical corrections to OPA.
The bill will not have any effect on the personal privacy of indi-
viduals.
MANDATES ASSESSMENT
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104—4), the committee makes the following evaluation
of the Federal mandates contained in the reported bill
S. 1730 imposes no Federal intergovernmental mandates on
State, local, or tnbal governments All of it8 governmental direc-
tives are imposed on Federal agencies The Coast Guard has esti-
mated that a very small percentage of costs associated with the
rules required to be issued under OPA, as amended by this bill,
may fall upon non-Federal governmental entities.
The bill does not directly impose any Federal Private Sector
mandates either, although some of its provisions may ultimately
result in duties or costs being imposed on the private sector.
In particular, as described above in the Regulatory Impact analy-
8i8, sections 101 or 102 could trigger into effect proposed rules that
would place enforceable duties on the private sector. The Coast
Guard has made estimates, summarized below, of the economic im-
pact of these proposed rules. Any long-term effects of such a ace-
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nario are highly speculative because the reported bill would make
the proposed rules effective only until the Coast Guard issues a
final rule on the requisite measures at hand.
With respect to the proposed operational rule for single-hull ves-
sels, the Coast Guard estimated that it would affect approximately
1359 single-hull oil-carrying tank vessels that were operating on
U S. navigable waters as of the date of the rule’s issuance (Novem-
ber 1995). It was estimated that first-year compliance with the pro-
posed rule would cost the affected mdustry about $183.8 million in
the aggregate, with annual costs projected to trend dramatically
downward after the first year and eventually level off over time.
With respect to the proposed structural rule for single-hull ves-
sels, the Coast Guard estimated its annual cost in the early years
of application to peak at around $164 million. Per-vessel cost was
estimated to range from around $40,000 to $380,000, a range which
the Coast Guard found was within the owner’s capital investment
in a majority of cases
There are approximately 196 U S tankships and 86 U S tank
barges of over 5,000 gross tons that carry oil in bulk and, thus,
that would be affected by the proposed single-hull intenm rules Of
these, 16 tank vessels and 32 tank barges are owned by small busi-
nesses The Coast Guard has determined that neither of the pro-
posed rules would have a significant economic impact on a substan-
tial number of small entities
With respect to the proposed navigation safety rule for towing
vessels, it would apply to towing vessels 8 meters (26 25 feet) or
more in length operating on navigable U S. waters subject to a few
exceptions The Coast Guard estimated the maximum present-
value costs the proposed rule would impose on affected towing op-
erators to be around $31.5 million in the aggregate The Coast
Guard also determined that the proposed towing-vessel rules would
not result in a significant economic impact on a substantial number
of small entities.
S 1730 also directs the Coast Guard to include certain measures
in the various ongoing rulemakings. The direct costs of these meas-
ures on the private sector should not be significant. First, many of
the vessels that will be regulated under such rules already satisfy
such measures (for example, the measure requiring towing vessels
to have a fire-suppression system). Second, the requisite measure
that could impose the greatest costs on the private sector, designed
to prevent groundings of tank barges, is crafted flexibly so that
barge operators may comply by one of several means. Finally, the
bill requires inclusion of particular measures only to the extent
they meet the statutory criteria of OPA. One such criterion, in sub-
section 4115(b), is that such rules are to provide as substantial pro-
tection to the environment as is economically and technologically
feasible The feasibility “sideboard” will help to avoid excessive fi-
nancial impacts on the regulated industry.
Section 201, which clanfies that persona injured by an oil spill
are entitled to interim, short-term damages under OPA, also could
result in somewhat greater costs in the processing of claims by a
responsible party or its guarantor. The incremental increase of
such costs should be de mimmis, however, given that the section
simply clarifies the intent of OPA in this regard. This conclusion
is supported by the testimony of a principal guarantor that the cur-
rent practice generally is to allow injured parties to file claims for
partial, interim damages. Finally, the report makes clear that rea-
sonable parameters may be set within which claims for partial, in-
terim damages may be presented to avoid undue transactions costs,
consistent with avoiding financial hardship to injured parties
A word also is in order with respect to Section 301, which modi-
fies the financial responsibility requirements for offshore facilities
under OPEL Given that OPA already contains such a requirement,
section 301 contains no new mandate. The immediate effect of this
provision on the regulated industry will be to lessen economic im-
pacts because of the reduced amount of financial responsibility re-
quired for most regulated facilities.
MOst of the costs discussed above will result from measures that
will help to prevent oil spills in the first instance or reduce their
impacts when they do occur. As such, the measures obviously will
better help to protect environmental resources. But they also will
result in long-term financial savings, both to persons in areas that
will be spared oil spills and to the regulated industry as it will be
able to avoid the sizable liability that often results from a spill.
Testimony received by the committee demonstrated that an oil spill
is especially illustrative of the principle that a healthy environment
is a necessary prerequisite for a healthy economy. Fishermen,
lobstermen, those involved in the tourist industry, and scores of
others who rely on the marine environment experienced substantial
financial losses as a result of the North Cape spill.
The other private-sector costs may arise from measures that will
ensure that parties and communities injured by a spill are expedi-
tiously and effectively compensated. As discussed above, any such
costs to the responsible party are expected to be negligible and the
benefits to injured parties in need of financial assistance may well
be significant.
Thus, the financial and environmental benefits of the measures
in S. 1730 far outweigh any costs they may impose.
The reported bill will have no discernable effect on the competi-
tive balance between the public and private sectors. The public sec-
tor is not involved in the private-sector activities addressed in the
bill.
ROLLCALL VOTES
On June 18, 1996 and on June 20, 1996, the committee met to
consider S. 1730 and on June 20 voted to report the bill, as
amended, by a roilcall vote of 17 in tavor and 0 opposed, with Sen-
ator Inhofe voting present. Voting in favor were Senators Chafee,
Warner, Smith, Faireloth, Kempthorne, Thomas, McConnell, Bond,
Bennett, Baucus, Moynihan, Lautenberg, Reid, Graham,
Lieberman, Boxer, and Wyden.
CosT op LEGISLATION
Se tion 403 of the Congressional Budget and Impoundment Act
requires that a statement of the cost of a reported bill, prepared
by the Congressional Budget Office, be included in the report. That
statement follows:
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16
17
U.S. CONGRESS,
CoNGr ssIoN u . Burx OFFICE,
Washington, DC, June 26, 1996.
Hon JOHN H. CHAFEE,
Chairman, Committee on Environment and Public Works, U.S. Sen-
ate, Washington, DC.
DEAJi Ma CI-LAJRMAN: The Congressional Budget Office has pre-
pared the enclosed cost estimate for S 1730, the Oil Spill Preven-
tion and Response Improvement Act.
Enactment of S. 1730 would affect direct spending Therefore,
pay-as-you-go procedures would apply to the legislation.
If you wish further details on this estimate, we will be pleased
to provide them
Sincerely,
JAMES BLUM
(For June E O’Neill).
CONGRESSIONAL BUDGET OFflCE COST ESTIMATE
1 Bill number S 1’730
2 Bill title Oil Spill Prevention and Response Improvement Act
3. Bill status As ordered reported by the Senate Committee on
Environment and Public Works on June 20, 1996
4 Bill purpose S 1730 would amend the Oil Pollution Act of
1990 (OPA) and other environmental statutes to.
Provide for interim rules and additional requirements for
single-hull oil tankers;
Clarify existing law regarding the ability of persons harmed
by oil spills to recover short-term as well as long-term damages
from those responsible for such spills and from the Oil Spill Li-
ability Trust Fund (OSLTF);
Add new activities to the current list of authorized uses of
the OSLTF and make additional funds available without ap-
propnation for these and other uses; and
Require the U.S. Coast Guard, the National Oceanic and At-
mospheric Administration (NOAA), and other Federal agencies
to collect and disseminate information on spills, their environ-
mental impacts, and other related issues, and to i,erform cer-
tain studies, prepare reports, and carry out certain other ac-
tivities
5. Estimated cost to the Federal Government: CBO estimates
that enacting S 173(1 would increase Federal outlays from direct
spending authority by $40 million in fiscal year 1997 and $45 mu-
lion a year thereafter. The efrects of the bill are summarized in the
following table
18y f’ c f you in ,iiiIIonn of d lurij
mi
iii)
III
i999
ion
z i
7002
0 ci
Sni W e S I13
E i 5mat id8udgeIAut f nly
(dImstedO ,0. ,
-- .. .
- -
50
35
60
60
60
60
60
50
60
60
60
60
60
60
Enacting S. 1730 also could allow for slightly lower appropria-
tions because some of the increase in direct spending might be used
for damage assessments that would be ended with appropriations
under current law.
The costa of this bill fall within budget function 300.
6. Basis of estimate: Section 203 of S. 1730 would create new
budget authoritj and outlays by raising the annual cap on spend-
ing from the OSLTF that is not subject to appropriation and by ex-
panding the types of activities for which these funds may be used.
Currently, OPA authorizes the President to make available without
appropriation up to $50 million from the OSLTF for the costs of
cleaning up oil pills and initiating assessments of damages to nat-
ural resources. The $50 million in budget authority and any associ-
ated outlays are recorded in a separate account of the OSLTF
known as the emergency fund. S. 1730 would raise the annual cap
on amounts made available without appropriation from the emer-
gency fund to $60 million. In addition, the bill would allow the $60
million to be used for more types of activities than under current
law, which would increase the amount spent from the emergency
fund from its expected level of’ $15 million to $20 million a year
(based on current CBO projections).
Assessments of damage to natural resources.—Under current law,
only preliminary costs of initiating damage assessments imme-
diately following a spill can be paid from the emergency fund. In
any given year, such p assesament costs are a minor part of
spending from the OSLTF. The bulk of assessment costs must be
either financed by the party that caused an oil spill—through nego-
tiations with the trustee of the natural resources (usually a Fed-
eral State, or tribal agency)—or appropriated from the general
fund of the U.S. Treasury. In recent years, such appropriations
have ranged from $4 million (for 1996) to $7 million (in 1994 and
in 1995). While spending for damage assessments varies each year
depending on the number of spills and the availability of’ private
funding, it is likely that freeing such spending from the appropria-
tions process would result in additional mandatory outlays from
the OSLTF.
New uses of the OSLTF.—Under current law, the vast majority
of amounts spent each year from the emergency fund are used for
removal activities as defined by section 311 of the Federal Water
Pollution and Control Act. While such outlays typically are far less
than the authorized level of $50 million, they can vary widely from
year to year, depending on the number of spills and other factors.
In recent years, spending has been as low as $10 million (in 1993)
and a ’s high as $82 million (in 1994). S. 1730 would add new activi-
ties to the list of’ authorized uses of the OSLTF, two of which ap-
parently would be considered removal costs under the bill’s broader
definitions and lower risk standards. As a result, more of the
(8 fiscal yut In iiiI s of
D (C1 SFtI DZ
Siendung Undeq Curr ni L2w
EsI ,niat ,d Budiet 0uIhOri y
Esimsled Oullurs
PTvpose1i chung!s
Estimated Budget Pwit 3 ’i y
Estimated Outlays
19% 199 1 i9% (09 5 2003 700% 7002
505050 50 50 50 50
36 20 iS 5 IS IS IS
ID I D JO iO JO 10
40 45 45 45 45 45
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18
amounts made available from the emergency fund would be spent
than is currently the case. The new removal costs that would prob-
ably be eligible for emergency funds include: (1) one-half of the cost
of plugging idle oil wells under cost-sharing agreements with the
States in which they are located, which is currently done only to
prevent an imminent spill, and (2) expenses associated with miti-
gating or avoiding ecological injuries immediately after a spill (in-
cluding the costs of managing such activities), which are currently
limited to containment efforts.
in any given year, the mix of activities would be determined by
factors such as the number and severity of new spills and the awn-
ber of applications received from States for well-cappin projects.
Other provisions, of S. 1730 would have no significant impact on
Federal spending
For purposes of this estimate, CBO assumes that S. 1730 would
be enacted by the beginning of fiscal year 1997. Eatimate8 of new
direct spending are based on information provided by the Office of
Management and Budget and the Coast Guard. In particular, we
estimate that the bill would broaden the authority for usin the
OSLTF emergency funds so that the entire amount of $60 million
would likely be spent each year.
7. Pay-as-you-go considerations: Section 252 of the Balanced
Budget and Emergency Deficit Control Act of 1985 sets up pay-as-
you-go procedures for legislation affecting direct spending or re-
ceipts through 1998. CBO estimates that enacting S. 1730 would
increase direct spending; therefore, pay-as-you-go procedures would
apply to the bill. The increase in direct spending is shown in the
following table
13y f ’ ciI n r ur tlli ti at dattanol
156
ISP
195
Changes in outlays
— —
3
40
45
Clionges in neceels
P)
1)
,)
Nor ,00t.cabW
8 Estimated impact on State, local, and tribal governments:
CBO’s estimate of the impact of S 1730 on State, local, and tribal
governments will be provided separately.
9 Estimated impact on the private sector: CBO’s estimate of the
impact of S 1730 on the private sector will be provided separately.
10. Previous CBO estimate- None.
11 Estimate prepared by Deborah Reis.
12 Estimate approved by: Paul N. Van de Water, Assistant Di-
rector for Budget Analysis
ADDITIONAL VIEWS OF SENA )R INHOFE
I support the theory behind and the implementation of the Oil
Pollution Act of’ 1990. Not only is it important to have spill preven-
tion efforts in place, it is also imperative to have workable, effective
response guidelines in the unfortunate event of a spill. As a mem-
ber of the House Public Works and Transportation Committee dur-
ing OPA’s inception, I attained a strong understanding of its provi-
sions and I support reasonable measures that improve upon the
prevention of, as well as the timely response to, petroleum-related
accidents
S. 1730 was introduced as a result of’ the January 1996 barge oil
spill off the Bouthern coast of Rhode Island. It is an honorable at-
tempt to improve upon some of the perceived difficulties with the
current implementation of OPA ‘90 that the North Cape spill shed
light on. However, it is my belief that two areas need further con-
sideration: non-use values assessment for natural resource dam-
ages as well as the financial requirements for offshore facilities.
Natural resource’da nages
A final rule published in January 1996 by the National Oceanic
and Atmospheric Administration (“NOAA”) has been challenged in
the U.S. Court of Appeals by a broad section of commercial and
maritime interests. The rule threatens the ability of responsible
parties to pay for legitimate claims for oil spill damage by invitin
speculative, inflative claims as assessed under what are calle
unon uBe values. The NOAA rule on natural resource damage as-
sessment (NRDA) allows trustees to exercise unfettered discretion
to select scientifically su pect methodologies for calculating these
damages. By intez ecting non-use” values into the cleanup assess-
nient equation, we are feeding into an arbitrary process that does
not add to the cleanup of the site.
Financial responsibility for offshore facilities
Some of the provisions included in S. 1730 regarding Certificated
of Financial Responsibility for offshore facilities improve upon the
current implementation of’ OPA ‘90. However, some areas need to
be addressed further, and I would like to make reference to a cou-
ple that need attention:
We need to review and establish firm geographic boundary delin-
eating those offshore facilities that must obtain oil pollution insur-
ance and apply only to facilities on the outer continental shelf.
Direct action as required currently by OPA ‘90 may severely
limit the availability of oil pollution insurance for offshore produc-
tion facilities. We need to look at who should reasonably be finan-
cially responsible in the event of a spill.
In addition to the lowering of the financial responsibility require-
ment to $35 million, we need to require an assessment based on
(19)
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20
clear and convincing evidence by the President or the Secretary of
the Interior of the risks posed by a particular facility.
Conclusion
The Chairman of the Environment and Public Works Committee
has agreed to work on these issues as S. 1730 approaches the floor
and I look forward to working with Senator Chafee as we move
through the legislative process.
SENATOR J .MEs M INHOFE.
ADDITiONAL VIEWS OF SENATOR LAUTENBERG
The Oil Spill Prevention and Improvement Act is a positive step
that will help prevent oil spills and improve our response to spills
when they occur.
It is important that we establish strong rules to ensure that ves-
sels are constructed and operated in a safe manner. These rules
should have been adopted a 1on time ago.
It is also important to create incentives for shippers to shift their
fleets to vessels with double-hulls, which substantially reduce the
risks of oil spi]ls
However, I am concerned about section 102 of the bill, which
would limit the liability of ship owners who convert their ships to
double hull vessels at least five years before they are required to
do so.
Under present law, ships over 5,000 gross tons can be held liable
for oil spill damages of up to $10 million. However, this $10 million
cap does not apply if a shipper violates applicable safety, construc-
tion or operating requirements. Shipowners and insurers have ar-
gued that this exception is very broad, and effectively subjects ship-
pers to unlimited liability for oil spills based on a shippet’s simple
negligence
As originally drafted for the hearings on oil spills, the Oil Spill
Prevention and Improvement Act did not mod y this liability
scheme. However, section 102 of the committee-reported bill would
8ubstantially limit the liability of shippers who convert their ships
to double hulls at least five years earlier than required. Under this
provision, the $10 million liability cap would be waived only in the
case of gross negligence or willful misconduct.
This provision has been criticized from two sides. Some shippers
argue that giving special preferences for only some double hulled
ships is unfair to those who purchased equally safe identical ves-
sels that were not conversions. These shippers argue that all dou-
ble hulled ships should benefit from the bill’s broader liability cap.
Others argue that the threat of unlimited liability creates an im-
portant incentive for the safe handling of cargo, an incentive that
has worked in practice. Because of this threat, many shippers have
improved training of their crews, and have adopted an aggressive,
pro-safety attitude that is largely responsible for a reduction in
spills since 1990.
The value of strong liability laws in promoting safety was high-
lighted in an article that appeared in the Washington Post on June
23 of this year, a few days after markup of the legislation. In that
article, Gerhard Kurz, President of Mobil’s shipping subsidiary, em-
phasized the importance in maintaining safe operations in light of
the potentially huge liability costs associated with a spill. As Mr.
Kurzstated, “With the liability exposure, an owner would be fool-
ish to send anything but his best ships here.”
(21)
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22
Another major oil shipper cited in the article, Chevron, also
noted the importance of’ ensuring safe operations given the unlim-
ited liability of shippers under the state laws of Pacific Coast
states.
Clearly, liability exposure is not the only factor that encourages
safe operations However, it is critically important, and we need to
be careful when making changes in this area As noted in the
Washington Post article, the oil shipping industry is increasingly
dominated by independent shippers, many with a questionable
commitment to safety The article noted that Mobil rejects about 25
percent of the ships that it considers for possible chartering, with
some of them “in pretty bad shape”
Double hulls can prevent many accidents from leading to oil
spills, and I share the goals of the bill’s sponsors to encourage
prompt conversion to double hulled ships. Mobil estimates in 75
percent to 80 percent of groundings and collisions, the most fre-
querit causes of marine oils spills, double hulls would prevent a
spill At the same time, many accidents involving double hulled
ships still can lead to major oil spills, especially if’ crews do not re-
spond expeditiously and efficiently.
I therefore am hopeful that we can further explore the merits of
section 102 before this legislation reaches the Senate floor. It is
worth considering further whether we can create additional incen-
tives for conversion to double hulls in a manner that does not cre-
ate inequities between shippers, and that does not weaken impor-
tant safety incentives
SENATOR FRANK R. LAUTENDEEG.
CHANGES IN EXISTING LAW
In compliance with section 12 of rule XXVI of the Standing Rules
of the Senate, changes in existing law made by the bill as reported
are shown as follows Existing law proposed to be omitted is en-
closed in black brackets, new matter is printed in italic, existing
law in which no change is proposed is shown in reman:
Public Law 101—380, 10 lot Congress
AN ACT To estabhsh Iimitat ons on llabihty for damages resulfing from oil pollu-
tion, to establish a fund for the payment of compensation for such damages, and
for other purposes
Be it enacted by the Senate and Hou.se of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the “Oil Pollution Act of 1990”.
* * * * * * a
SEC. 1001. DEFINITIONS.
For the ,purPose of this Act, the term—
(1) act of God” means an unanticipated grave natural disas-
ter or other natural phenomenon of an exceptional, inevitable,
and irregistable character the effects of which could not have
been prevented or avoided by the exercise of due care or fore-
sight;
* * * * * * *
(36) “United States” and “State” mean the several States of
the United States, the District of Columbia, the Common-
wealth of Puerto Rico, Guam, American Samoa, the United
States Virgin Islands, the Commonwealth of the Northern
Marianas, and any other territory or possession of the United
States; and the Trust Temtory of the Pacific Islands,
* * S * * * a
SEC. 1002. ELEMENTS OF UABILITY.
(a) IN GENERAL. — 5 *
* a * * a * a
(b) CovERED REMOVAL CoSTs AND DAMAGES.—
(1) REMOVAL COSTS.—The removal costs referred to in sub-
section (a) are—
(A) * *
* * a a * * S
(E) PROFITS AND EARNING CAPACITY.—Damage8 equal to
the loss of profits or impairment of earning capacity due
to the injury, destruction, or loss of real property, personal
property, or natural resources, which shall be recoverable
(23)
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24
25
by any claimant [ 1, in part or in (7.411. Payment or settle-
ment of a claim for interim, short-term damages represent-
ing less than the full amount of damages to which the
claimant ultimately may be entitled under this subpara-
graph shall not preclude recovery by the claimant for dam-
ages not reflected in the paid or settled partial claim.
* * * * * * *
SEC. 100& LJ7.4ITS ON LIABILITY.
(a) GENERAL RULE — * *
* a * a * * *
(c) EXCEPTIONS —
(1) ACTS OF RESPONSIBLE PARTY — [ Subsection (a)1 Except as
provided in paragraph (4), subsection (a) does not apply if the
incident was proximately caused by—
(A) gross negligence or willful misconduct of, or
(B) the violation of an applicable Federal safety, con-
struction, or operating regulation by,
the responsible party, an agent or employee of the responsible
party, or a person acting pursuant to a contractual relationship
with the responsible party (except where the sole contractual
arrangement arises in connection with carnage by a common
carrier by rail)
(2) FAILURE OR REFUSAL OF RESPONSIBLE PARTY —Subsection
(a) does not apply if the responsible party fails or refuses—
(A) to report the incident as required by law and the re-
sponsible party knows or has reason to know of the inci-
dent;
(B) to provide all reasonable cooperation and assistance
requested by a responsible official in connection with re-
moval activities; or
(C) without sufficient cause, to comply with an order is-
sued under subsection (c) or (e) of section 311 of the Fed-
eral Water Pollution Control Act (33 U_s C. 1321), as
amended by this Act, or the Intervention on the High Seas
Act (33 U S C 1471 et seq)
(3) OCS FACILITY OR VESSEL—Notwithstanding the limita-
tions established under subsection (a) and the defenses of sec-
tion 1003, all removal costs incurred by the United States Gov-
ernment or any State or local official or agency in connection
with a discharge or substantial threat of a discharge of oil from
any Outer Continental Shelf facility or a vessel carrying oil as
cargo from such a facility shall be borne by the owner or opera-
tor of such facility or vessel
(4) DQUBL.E-HULL VESSEL .S—The exception in paragraph
(1)(B) shall not apply—
(A) to a tank vessel that, as of the date of enactment of
this paragraph, is equipped with a double hull along the
entire length of the vessel, including fuel oil tanks; or
(B) to a vessel that is equipped with a double hull along
the entire length of the vessel, including fuel oil tanks, and
that is replacing another tank vessel not equipped with a
double hull that is being retired at least 5 years prior to the
applicable retirement date under section 3703a(c) of title
46, United States Code.
* * * * * * *
SEC. 1012. USES OF THE FUND.
(a) USES GE 14ERALLY.—The Fund shall be available to the Presi-
dent for—
(1)* * *
* * * * S * *
(5) the payment of Federal administrative, operational, and
personnel coats and expenses reasonably necessary for and in-
cidental to the implementation, administration, and enforce-
ment of this Act (including, but not limited to, sections
1004(dX2), 1006(e), 4107, 4110, 4111. 4112, 4117, 5006, 8103,
and title V I I) and subsections (b), (c), (d), (j), and (I) of section
311 of the Federal Water Poilution Control Act (33 U.s_C.
1321) as amended by this Act, with respect to prevention, re-
moval, and enforcement related to oil discharges, provided
that—
(A) not more than $25,000,000 in each fiscal year shall
be available to the Secretary for operating expenses in-
curred by the Coast Guard;
(B) not more than $30,000,000 each year through the
end of fiscal year 1992 shall be available to establish the
National Response System under section 311(j) of the Fed-
eral Water Pollution Control Act, as amended by this Act,
including the purchase and propositioning of oil spill re-
moval equipment; and
(C) not more than $27,250,000 in each fiscal year shall
be available to carry out title VII of this Act
(6) the payment of costs to mitigate or auoid ecological injury
in the immediate aftermath of a spill (including costs of man-
agement activities at a leuel and of a type necessary for such a
purpose, as determined solely by the Federal On-Scene Coordi-
nator); and
(7) the plugging of idle oil wells that pose a substantial safety
or environmental risk under a cost-sharing agreement with the
State in which such a well is located, under which agreement
the State maintains legal and operational responsibility for the
plugging and pays a minimum of 50 percent of the necessary
costs.
* * * * * S
(e) REGULATIONS.—The President shall—
(1) not later than 6 months after the date of the enactment
of this Act publiBh proposed regulations detailing the manner
in which the authority to obligate the Fund and to enter into
agreements under [ this subsection] subsection (d) shall be ex-
ercised; and
* a * * * * a
SEC. 1013. CLAIMS PROCEDURE.
(a) PRESENTATION.— * *
* a * * * * *
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26
27
(d) UNCOMPENSATED D t GEs.—If a claim is presented in ac-
cordance with this section and full and adequate compensation is
unavailable, including a claim for interim, short-term damages rep-
resenting less than the full amount of damages to which the claim-
ant ultimately may be entitled, a claim for the uncompensated dam-
ages and removal costs may be presented to the Fund.
$ * * * * *
SEC. 1014. DESIGNATION OF SOURCE AND ADVERTISEMENT.
(a) DESIGNATION OF SOURCE AND NOTIFICATION. t * *
(b) ADVERTISEMENT BY RESPONSIBLE PARTY OR GuARAIIroR.— [ !f
a responsible party] (1) IN GENER ’.1,.—If a responsible party or
guarantor fails to inform the President, within 5 days after receiv-
ing notification of a designation under subsection (a), of the party’s
or the guarantor’s denial of the designation, such party or guaran-
tor shall advertise the designation and the procedures by which
claims may be presented, in accordance with regulations promul-
gated by the President Advertisement under the preceding sen-
tence shall begin no later than 15 days after the date of the des-
ignation made under subsection (a) If advertisement is not other-
wise made in accordance with this subsection, the President shall
promptly and at the expense of the responsible party or the guar-
antor involved, advertise the designation and the procedures by
which claims may be presented to the responsible party or guaran-
tor Advertisement under this subsection shall continue for a period
of no less than 30 days
(2) CLAIM FOR INTERIM DAMAGES —An advertisement under para-
graph (1) shall state that a claimant may present a claim for in-
terim, short-term damages representing less than the full amount of
damages to which the claimant ultimately may be entitled and pay-
ment of such a claim shall not preclude recovery for damages not
reflected in the paid or settled partial claim.
* * * * * * *
SEC. 1015. SUBROGATION.
(a) IN GE?IERA1..—Any person, including the Fund, who pays com-
pensation pursuant to this Act to any claimant for removal costs
or damages shall be subrogated to all rights, claims, and causes of
action that the claimant has under any other law
(b) INTERIM DAMAGES.—
(1) IN GENERAL —If a responsible party, a guarantor, or the
Fund has made payment to a claimant for interim, short-term
damages representing less than the full amount of daniages to
which the claimant ultimately may be entitled, subrogation
under subsection (a) shall apply only with respect to the portion
of the claim reflected in the paid interim claim.
(2) FINAL DAMAGES.—Payment of such a claim shall not fore-
close claimant’s right to recovery of all damages to which a
claimant otherwise is entitled under this title or any other law.
[ (b)] (c) ACTIONS ON BEHALF OF FUND.—At the request of the
Secretary, the Attorney General shall commerce an action on be-
half of the Fund to recover any compensation paid by the Fund to
any claimant pursuant to this Act, and all costs incurred by the
Fund by reason of the claim, including interest (including prejudg-
ment interest), administrative and adjudicative costs, and attor-
ney’s fees. Such an action may be commenced against any respon-
sible party or (subject to section 1016) guarantor, or against any
other person who is liable, pursuant to any law, to the com-
pensated claimant or to the Fund, for the cost or damages for
which the compensation was paid. Such an action shall be com-
menced against the responsible foreign government or other re-
sponsible party to recover any removal costs or damages paid from
the Fund as the result of the discharge, or substantial threat of dis-
charge, of oil from a foreign offshore unit.
SEC. 1016. FINANCIAL RESPONSIHILTrY
(a) REQUIREMENT.— * *
* * * * * *
(c) OFFSHORE FACILITIES.—
[ (1) IN GENERAL—Except as provided in paragraph (2), each
responsible party with respect to an offshore facility shall es-
tablish and maintain evidence of financial responsibility of
$150,000,000 to meet the amount of liability to which the re-
sponsible party could be subjected under section 1004(a) in a
case in which the responsible party would be entitled to limit
liability under that section. In a case in which a person is the
responsible party for more than one facility subject to this sub-
section, evidence of financial responsibility need be established
only to meet the maximum liability applicable to the facility
having the greatest maximum liability.]
(1) IN GENERAL.—
(A) EVIDENCE OF F1NANCL4 .L RESPONSIBILITY REQUIRED.—
Except as provided in paragraph (2), a responsible party
with respect to an offshore facility that—
(i)(I) is located seaward of the line of ordinary low
water along the portion of the coast that is in direct
contact with the open sea and the line narking the sea-
ward limit of inland waters; or
(II) is located in inland waters, such as coastal bays
or estuaries, seaward of the line of ordinary low water
along the portion of the coast that is not in direct con-
tact with the open sea;
(ii) is used for exploring for, drilling fur, or produc-
ing oil, or for transporting oil from facilities engaged
in oil exploration, drilling, or productio,c and
(iii) has a worst-case oil api 1 1 discharge potential of
more than 1,000 barreLs of oil (or a lesser amount if
the President determines that the risks posed by the fa-
cility justify it),
shall establish and maintain evidenes of financial respon-
sibility in the amount required under subparagraph (B) or
(C), as applicable.
(B) AMOUNT REQUIRED GE ERALLY.—Except as provided
in subparagraph (C), the amount of financial responsibility
for an offshore facility described in subparagraph (A) is—
(i) $35,000,000, in the case of an off-shore facility lo-
cated seaward of the seaward boundary of a State; or
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(ii)$1O,000,000, in the case of an off-shore facility jo.
cated kzndward of the seaward boundary of a State.
(C) GREATER AM0UNT.—If the President determines that
an amount of financial responsibility for a responsible
party greater than the amount required by subparagraphs
(B) and (D) is justified by the relative operational, environ-
mental, human health, and other nsks posed by the quan-
tity or quality of oil that is explored for, drilled for, pro-
duced, stored, handled, transferred, processed or trans-
ported by the responsible party, the evidence of financial re-
sponsrbihty required shall be for an amount determined by
the President not exceeding $150,000,000.
(D) MULTIPLE PACILITIES.—lf a person is a responsible
party for more than 1 facility subject to this subsection, evi-
dence of financial responsibility need be established only to
meet the amount applicable to the facility having the great-
er firuincial responsibility requirement under this sub-
section
(B) STATE JURISDICTION —The requirements of this para-
graph shall not apply if any offshore facility located land-
ward of the seaward boundary of a State is required by the
State to establish and maintain evidence of financial re-
sponsibility in a manner comparable to, and in an amount
equal to or greater than, the requirements of this para-
graph.
(F) DEFm’ITJON.—For the purpose of this paragraph, the
seaward boundary of a State shall be determined in ac-
cordance with section 2(b) of the Submerged Lands Act (43
U.S.C 1301(b)).
S * * * * * *
[ (e)] (d) METHODS OF FINANCIAL RESPONSIBILITY —Financial re-
sponsibility under this section may be established by any one, or
by ny combination of the following methods which the Secretary
(in the case of a vessel) or the President (in the case of a facility)
determines to be acceptable evidence of insurance, surety bond,
guarantee, letter of credit, qualification as a self-insurer, or other
evidence of financial responsibility. Any bond filed sh&l be issued
by a bonding company authorized to do business in the United
States. In promulgating requirements under this section, the Sec-
retary or the President, as appropriate may specifSr policy or other
contractual terms, conditions, or defenses which are necessary, or
which are unacceptable, in establishing evidence of financial re
sponsibility to effectuate the purposes of this Act.
[ (flJ (e) CLAIMS AGAINST GUARANTOR.—Any claim for which li-
ability may be established under section 1002 maybe asserted di-
rectly against any guarantor providing evidence of financial respon-
sibility for a responsible party liable under hat section for removal
costs and damages to which the claim pertains. In defendm
against such a claim, the guarantor may invoke (1) all rights an
defenses which would be available to the responsible party under
this Act, (2) any defense authorized under subsection (e), and (3)
the defense that the incident was caused by the willful misconduct
of the responsible party The guarantor may not invoke any other
defense that might be available in proceedings brought by the re-
sponsible party against the guarantor.
[ (g)J 1/) LIMITATION ON GUARANTOR’S LIArnLrrY.—Nothing in this
Act shall impose liability with respect to an incident on any guar-
antor for damages or removal costs which exceed, in the aggregate,
the amount of financial responsibility required under this Act
which that guarantor has provided for a responsible party.
[ (h)] (g) C0N ’rIr4UATI0N OF REGULATIONS.—Any regulation relat-
ing to financial responsibility, which has been issued pursuant to
any provision of law repealed or superseded by this Act, and which
is in efTect on the date immediately preceding the effective date of
this Act, is deemed and shall be construed to be a regulation issued
pursuant to this section. Such a regulation shall remain in full
force and effect unless and until superseded by a new regulation
issued under this section.
[ (j)J (h) UNIFiED CERTWICATE.—The Secretary may issue a sin-
gle unified certificate of financial responsibility for purposes of this
Act and any other law.
SEC. 4115. ESTABLISHMENT OF DOUBLE [ I1JLL REQUIREMENT FOR
TANK VESSELS.
(a) DOUBLE HULL REQUIREMENT.— *
* $ S S * S *
(b) RULEMAIUNG.—IThe Secretary)
(1) iN GENERAL—The Secretary shall, within 12 months after
the date of the enactment of this Act, complete a rulemaking
proceeding and issue a final rule to require that tank vessels
over 5,000 gross tons affected by section 3703a of title 46, Unit-
ed States Code, as added by this section, comply until January
1, 2015, with structural and operational requirements that the
Secretary determines will provide as substantial protection to
the environment as is economically and technologically fea-
sible.
(2) OPERATIONAL EL.EMEN7TS.—if a final rule under this sub-
section with respect to operational elements does not become er
fectwe by the date that is 59 months after the date specified in
paragraph (1), the proposed rule in the Supplemental Notice of
Proposed Rulemaking (60 Fed. Beg. 55,904 (1995)) shall be con-
sidered to be in effect as a final rule as of that date and shall
remain in effect until a final rule becomes e/7čctiue.
(3) STRUCTURAL ELEMENTS.—!! a final rule under this sub-
section with respect to structural elements does not become ef-
fective by the date that is 64 months after the date specified in
paragraph (1), the proposed rule in the Notice of Proposed Rule-
making (58 Fed Reg. 54,870 (1993)) shall be considered to be
in effect as a final rule as of that date and shall remain in ef-
fect until a final rule becomes effective, except provision in the
proposed rule with respect to which the Secretary may issue a
finding on the record that the provision would be likely to in-
a-ease the risks of oil pollution.
(4) Pnoviszoivs TO BE INCLUDED.—
(A) iN GENERAL—in issuing rules under this subsection,
the secretary shall include the following provisions to the
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greatest extent practicable and consistent with relevant
statutory criteria
(i) A requirement that a single hull barge over 5,000
gross tons operating in open ocean or coastal waters
that is affected by this section have at least 1 of the lot.
lowing:
(I) A crew member on board and an operable an-
thor.
(11) An emergenry system on board the vessel
towing the barge to retrieve the barge if the tow
line ruptures.
(III) Adoption of any other measure that pro-
vides comparable protection against groundin, of
the barge as that provided by a measure described
in subclause (I) or (II).
(ii) For each port in which any tank vessel not fitted
with a double bottom that covers the entire cargo tank
length operates, establishment of a minimum under-
keel clearance for the vessel when entering the port or
place of destination, when departing port, and when
operating in an inland or coastal waterway.
(B) CONSIDERATIONS.—ln issuing rules under this sub-
section, the Secretary shall—
(i) require the use of all measures that the Secretary
finds meet the criteria of this section, not only those do-
termined to be the most cost-effective or most cost-effi-
cient;
(ii) take account of human safety, including the safe-
ty of crew members on affected tank vessels; and
(iii) consider measures that prevent collision or
grounding of a tank vessel in addition to those that re-
duce oil outflow after such a collision or grounding has
occurred.
(C) INCLUSION IN FINAL RULE —1f in the discretion of the
Secretary, the Secretary finds it necessary, the Secretary
may include the provisions of subparagraph (A) in conjunc-
tion arid simultaneously with the final rule with respect to
structural elements referenced to paragraph (3).
SEC. 4202. NATIONAL PLANNiNG AND RESPONSE SYSTEM.
(a) [ N GENERAL.— * * *
* * * * * * *
(b) IMPLEMENTATiON —
(1) AREA COMMI’II’EES AND CONTINGENCY PLANS — * * *
$ * * * * * *
(4) TANX VESSEL AND FACILITY RESPONSE PLANS; TRANSITION
PROVISION; EFFECTIVE DATE OF PROHIBITION.—(A) Not later
than 24 months after the date of the enactment of this Act, the
President shall issue regulations for tank vessel and facility re-
sponse plans under section 311(jX5) of the Federal Water Pol-
lution Control Act, as amended by this Act.
(B) During the period beginning 30 months after the date of
the enactment of this paragraph and ending 36 months after
that date of enactment, a tank vessel or facility for which a re-
sponse plan is required to be prepared under section 311(j)(5)
of the Federal Water Pollution Control Act, as amended by this
Act, may not handle, store, or transport oil unless the owner
or operator thereof has submitted such a plan to the President.
(C) Subparagraph (E) of section 311(jX5) of the Federal
Water Pollution Control Act, as amended by this Act, shall
take effect 36 months after the date of the enactment of this
Act.
(5) Scmw rmic SUPPORT TEAM.—
(A) ESTABLISHMENT.—NOZ later than 180 days after the
date of enactment of this paragraph, the Under Secretary
of Commerce for Oceans and Almosphere 8 / loll establish a
process under which a scientific support team shall be
named, all or part of which may be convened in response
to an oil spill covered by this Act.
(B) PuRposg—The purpose of the scientific support team
shall be to provide usefid or necessamy scientific informa-
tion and support to the response team and to recommend
any measures that will serve to mitigate ecological injury
immediately following such a spill.
(C) OPERATIONS OPEN TO TIlE PURUC—To the extent it
does not interfere with its expeditious operation, the oper-
ations of a scientific team shall be open to the public
* * * * * *
SEC. 4303. FINANCIAL RESPONSIBILITY PENALTIES
(a) ADMINI$TRATWE.—AXIy person who, after notice and an oppor-
tunity for a hearing, is found to have failed to comply with the re-
quirements of section 1016 or the regulations issued under that
section, or with a denial or detention order issued under subsection
[ (cX2)J (h)(2) of that section, shall be liable to the United States
for a civil penalty, not to exceed $25,000 per day of violation.
* * * * * * *
SEC. 6002. ANNUAL APPROPRIATIONS
(a) REQUIRED.—ExCept as provided in subsection (b), amounts in
the Fund shall be available only as provided in annual appropria-
tion Acts.
1(b) EXCEPTIONs.—Subsection(a) shall not apply to sections
1006( 1 ), L012(aX4), or 5006(b), and shall not apply to an amount
not to exceed $50,000,000 in any fiscal year which the President
may make available from the Fund to carry out section 311(c) of
the Federal Water Pollution Control Act, as amended by this Act,
and to initiate the assessment of natural resources damages re-
uired under section 1006. Sums to which this subsection applies
shall remain available until expended I
(b) EXCEPTIONS.—
(1) IN GENERM..—Subsection (a) shall not apply to—
(A) section .1006(0, 1012(a) (4), or 5006(b); or
(B) an amount not exceeding $60,000,000 for any fiscal
year that the President may make auailable from the Fund
to-
(i) carry out section 311(c) of the Federal Water Pol-
lution Control Act (33 U.S.C. 1321(c)); and
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33
(ii) conduct the assessment of natural resource dam-
ages required under section 1006;
(2) Awai ILJrz’.—Amounts to which this subsection applies
shall remain available until expended.
* * $ * * * *
SEC. 7001. OIL POLLUTION RESEARCH AND DEVELOPMENT PROGILAM.
(a) INTERAGENCY COORDINATING COMMFrrEE ON OIL PoLLuTIoN
RESEARCH.—
(1) ESTARLISHMENT.—There is established an Interagency
Coordinating Committee on Oil Pollution Research (hereinafter
in this section referred to as the “Interagency Committee”).
(2) PURPOSES.—The Interagency Committee shall coordinate
a comprehensive program of oil pollution research, technology
development, and demonstration among the Federal agencies,
in cooperation and coordination with industry, universities, re-
search institutions, State governments, and other nations, as
appropriate, and shall foster cost-effective research mecha-
nisms, including the joint funding of research.
(3) MEMBERSHIP.—The Interagency Committee shall include
representatives from the Department of Commerce (including
the National Oceanic and Atmospheric Administration and the
National Institute of Standards and Technology), the Depart-
ment of Energy, the Department of the Interior (including the
Minerals Management Service and the United States Fish and
Wildlife Service), the Department of Transportation (including
the United States Coast Guard, the Maritime Administration,
and the Research and Special Projects Administration), the De-
partment of Defense (including the Army Corps of Engineers
and the Navy), the Environmental Protection Agency, the Na-
tional Aeronautics and Space Administration, and the United
States Fire Administration in the Federal Emergency Manage-
ment Agency, as well as such other Federal agencies as the
President [ may designate. A representative] may designate. A
representative of the Department of Transportation shall serve
as Chairman
(4) DISsEMINATiON OF INFORMATION.—The interagency Com-
mittee shall disseminate and compile information regarding
previous spills, including data from universities, research insti-
tutions, State governments, and other nations, as appropriate.
* $ * * * * *
UNITED STATES CODE
TITLE 33—NAVIGATION AND
NAVIGABLE WATERS
CHAFFER 28—WATER POLLUTION PREVENTION AND
CONTROL
S * * * S *
§ 1321. 011 and hazardous substance liability
(a) DEFINITIONS.—
* $ * * * * *
(C) FEDERAL REMOVAL Auriloarry.—
(1) GENERAL REMOVAL REQUIREMENT.—
* * * * * * *
(3) Acrior ’ s IN ACCORDANCE WITH NATIONAL CONTINGENCY
PLAN.— -
(A) Each Federal agency, State, owner or operator, or
other person participating in efforts under this subsection
shall act in accordance with the National Contingency
Plan or as directed by the President.
(B) An owner or operator participating in efforts under
this subsection Bhall act in accordance with the National
Contingency Plan and the applicable response plan re-
quired under subsection (j) of thiB section, br as directed
by the President) unless the President or the on-scene coor-
dinator determines that deviation from the plan would pro-
vide for a more expeditious or effective response to the spill
or mitigation of its environmental effects.
* $ * * * S S
(,j) NATiONAL RESPONSE SYSTEM—
(1) IN GENERAL.—
* * * * * * *
(2) NATIONAL RESPONSE IJNrr.—The Secretary of the depart-
ment in which the Coast Guard is operating shall establish a
National Response Unit at Elizabeth City, North Carolina, The
Secretary, acting through the National Response Unit ,—
(A) shall compile and maintain a comprehensive com-
puter list of spill removal resources, personnel, and equip-
ment that is available worldwide and within the areas des-
ignated by the President pursuant to paragraph (4), which
shall be available to Federal aiid State agencies and the
public;
(B) shall provide technical assistance, equipment, and
other resources requested by a Federal On-Scene Coordi-
nator;
(C) shall coordinate use of private and public personnel
and equipment to remove a worst case discharge, and to
mitigate or prevent a substantial threat of such a dis-
charge, from a vessel, offshore facility, or onshore facility
operating in or near an area designated by the President
pursuant to paragraph (4);
(D) may provide technical assistance in the preparation
of Area Contingency Plans required under paragraph (4);
(E) shall administer Coast Guard strike teams estab-
lished under the National Contingency Plan;
$ * * * * * *
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34
35
(F) shall maintain and update a body of information on
the environmental effects of various types of oil spills and
how best to mitigate those effects, which shall be kept in a
form that is readily transmittable to response teams re-
sponding to a spill under this Act;
(G) shall maintain on file all Area Contingency Plans ap-
proved by the President under this subsection; and
(H) shall review each of those plans that affects its re-
sponsibililies under this subsection.
* * * * * * S
(4) AaEA COMMITFEES AND AREA CONTINGENCY PLANS.—
(A) ‘ * *
* * * * * * *
(B) Each Area Committee, under the direction of the
Federal On-Scene Coordinator for its area, shall—
(i) prepare for its area the Area Contingency Plan
required under subparagraph (C);
(ii) work with State and local officials to enhance the
contingency planning of those officials and to assure
preplanning of joint response efforts, including appro-
pilate procedures for mechanical recovery, dispersal,
shoreline cleanup, protection of sensitive environ-
mental areas, and protection, rescue, and rehabilita-
tion of flsheries and wildlife, including advance plan-
ning wih respect to the closing and reopening of fish-
ing grounds following an oil spill; and
(iii) work with State and local officials to expedite
decisions for the use of dispersants and other mitigat-
ing substances and devices.
* * * * * * S
(C) Each Area Committee shall prepare and submit to
the President for approval an Area Contingency Plan for
its area. The Area Contingency Plan shall—
(i) when implemented in conjunction with the Na-
tional Contingency Plan, be adequate to remove a
worst case discharge, and to mitigate or prevent a sub-
stantial threat of such a discharge, from a vessel, off-
shore facility, or onshore facility operating in or near
the area;
(ii) describe the area covered by the plan, including
the areas of special economic or environmental impor-
tance that might be damaged by a discharge;
(iii) describe in detail the responsibilities of an
owner or operator and of Federal, State, and local
agencies in removing a discharge, and in mitigating or
preventing a substantial threat of a discharge;
(iv) list the equipment (including fireuighting equip-
ment), dispersanta or other mitigating substances and
devices, and personnel available to an owner or opera-
tor and Federal, State, and local agencies, to ensure
an effective and immediate removal of a discharge,
and to ensure mitigation or prevention of a substantial
threat of a discharge;
(v) describe the procedures to be followed for obtain-
ing an expedited decision regarding the use of
dispersants;
(vi) describe in detail how the plan is integrated into
other Area Contingency Plans and vessel, offshore fa-
cility, and onshore facility response plans approved
under this subsection, and into operating procedures
of the National Response Unit;
(vii) develop a framework for advanced planning and
decisionmaking with respect to the closing and reopen-
ing of fishing grounds following an oil spill, including
protocols and standards for the closing and reopening
of fishing areas;
(viii) compile a list of local scientists, both inside and
outside Federal Government service, with expertise in
the environmental effects of spills of the types of oil
typically transported in the area, who may be contacted
to provide information or where appropriate, partici-
pate in meetings of the scientific support term convened
in response to a spill;
[ (vii)] (ix) include any other information the Presi-
dent requires; and
[ (viii)J (x) be updated periodically by the Area Com-
mittee.
(D) The President shalt—
Ci) review and approve Area Contingency Plans
under this paragraph; land]
(ii) periodically review Area Contingency Plans so
approved 1.11; and
(iii) acting through the Under Secretary of Commerce
for Oceans and Atmosphere and in consultation with
the Administration, the Commissioner of Food and
Drugs, the Director of the United States Fish and
Wildlife Service, and other affected Federal and State
agencies, issue guidance for Area Committees to use in
developing for Area Committees to use in developing a
framework for advanced planning and decisionmaking
with respect to the closing and reopening of fishing
grounds following an oil spill, which guidance shalt
include model protocols and standards for the closing
and reopening of fishing areas.
S S * * * * *
UNITED STATES CODE
TITLE 46—SHIPPING
* * * * * * *
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3b
CHAPTER 37—CARRIAGE OF LIQUID BULK DANGEROUS
CARGOES
a * * C * C
§ 3715. Lightering
(a) * * *
a * * * C C C
(b) The Secretary shall prescribe regulations to carry out sub-
section (a) [ of this section] that include requirements that the Sec-
retary determines will prouide protection to the environment that is
as substantial as is economical and technologically feasible. The
regulations shall include provisions on—
(1) minimum safe operating conditions, including sea state,
wave height, weather, pro iimity to channels or shipping lanes,
and other similarly factors;
(2) the prevention of spills;
(3) equipment for responding to spill;
(4) the prevention of any unreasonable interference with
navigation or to other reasonable uses of the high seas, as
those uses are defined by treaty, convention, or customary
international law;
(5) the establishment of lightering zones; and
(6) requirementa for communication and prearnval mes-
sages
0
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PUBLIC LAW 104—304 ——OCT. 12, 1996 110 STAT 3793
Public Law 104—304
104th Congress
An Act
To reduce risk to public safety and the ernnron.ment associated with pipeline Oct 12, 1996
transportation of naturai gas. and hazardous liquids, and for other purposes is 15051
Be it enacted by the Senate and House of Representatives of
the UnLted States of Ame r ica t n Congress assembled, Accountable
Pipeline Safety
SECTION 1. SHORT TITLE. and Partnerslup
Tins Act may be cited as the “Accountable Pipeline Safety
and Partnership Act of 1996” note
SEC. Z REFERENCES
Except as otherwise expressly provided, whenever in this Act
an amendment or repeal is expressed in terms of an amendment
to, or repeal o1 a section or other provision, the reference shall
be considered to be made to a section or other provision of title
49, United States Code.
SEC. 8. DEFTh4ITIONS.
(a) IN GENERAL.—Section 60101(a) is amended —
(1) by striking the periods at the end of paragraphs (1)
through (22) and inserting semicolons;
(2) by striking paragraph (21)(B) and inserting the follow-
mg
“(B) does not include the gathering of gas, other than
gathering through regulated gathering lines, in those rural
locations that are located outside the limits of any incor-
porated or unincorporated city, town, or village, or any
other designated residential or commercial area (including
a subdrviaion, business, shopping center, or community
development) or any similar populated area that the Sec-
retary of Transportation determines to be a nonrural area,
except that the term ‘transporting gas’ includes the move-
ment of gas through regulated gathen g lines;”, and
(3) by adding at the end the following:
“(23) ‘risk management’ means the systematic application,
by the owner or operator of a pipeline facility, of management
policies, procedures, finite resources, and practices to the tasks
of identil5ring, analyzing, assessing, reducing, and controlling
risk in order to protect employees, the general public, the
environment, and pipeline facilities,
“(24) ‘risk management plan’ means a management plan
utilized by a gas or hazardous liquid pipeline facility owner
or operator that encompasses risk management, and
“(25) ‘Secretary’ means the Secretary of Transportation.”
39- 1390- 96(304)
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STAT. 3794 PUBLIC LAW 104—304-—OCT. 12, 1996
PUBLIC LAW 104—304--OCT. 12, 1996 110 STAT. 379t
(b) GATHERING LENES.—Section 60101(b)(2) is amended by
inserting “, if appropriate,” after “Secretary” the first place it
appears.
SEC. 4. GENERAL AUTHORiTY.
(a) MINIMuM SAFETY STANDARDS.—Section 60102(a) is amend-
ed—
(1) by striking “transporters of gas and hazardous liquid
and to” in paragraph (1XA);
(2) by striking paragraph (1)(C) and inserting the following:
“(C) shall include a requirement that all individuals
who operate and maintain pipeline facilities shall be quali-
fied to operate and maintain the pipeline facilities.”; and
(3) by striking paragraph (2) and inserting the following:
“(2) The qualifications applicable to an individual who oper-
ates and maintains a pipeline facility shall address the ability
to recognize and react appropriately to abnormal operating
conditions that may indicate a dangerous situation or a condi-
tion exceeding design limits The operator of a pipeline facility
shall ensure that employees who operate and maintain the
facility are qualified to operate and maintain the pipeline facili-
ties”
(b) PRACTICABILITY AND SAFETY NEEDS STANDAFtDS.—Section
60 102(b) is amended to read as follows.
“(b) PRACTICABILITY AND SAFETY NEEDS SmND# RDS.—
‘(1) IN GENEPAL.—A standard prescribed under subsection
(a) shall be—
“(A) practicable, and
“(B) designed to meet the need for—
“(i) gas pipeline safety, or safely transporting
hazardous liquids, as appropriate; and
“(11) protecting the environment
“(2) FACTORS FOR CONSIDERATION.—WbCTi prescribing any
standard under this section or section 60101(b), 60103, 60108,
60109, 60110, or 60113, the Secretary shall consider—
“(A) relevant available—
“(i) gas pipeline safety information;
“(ii) hazardous liquid pipeline safety information;
and
“(iii) environmental information;
“(B) the appropriateness of the standard for the
particular type of pipeline transportation or facility;
“(C) the reasonableness of the standard;
“(D) based on a risk assessment, the reasonably identi-
fiable or estimated benefits expected to result from
implementation or compliance with the standard;
“(E) based on a risk assessment, the reasonably identi-
fiable or estimated costs expected to result from
implementation or compliance with the standard;
“(F) comments and information received from the pub-
lic; and
“(G) the comments and recommendations of the Tech-
riical Pipeline Safety Standards Committee, the Technic J
‘rdous Liquid Pipeline Safety Standards Committee,
ch, as appropriate.
“(3) RISK ASSESSMENT.—In conducting a risk assessment
referred to in aubparagraphs (D) and (E) of paragraph (2),
the Secretary shall—
“(A) identify the regulatory and nonregulatory options
that the Secretary considered in prescribing a proposed
standard;
“(B) identify the costs and benefits asBociated with
the proposed standard;
“(C) include—
“(i) an explanation of the reasons for the selection
of the proposed standard in lieu of the other options
identified; and
“(ii) with respect to each of those other options,
a brief explanation of the reasons that the Secretary
did not se)ect the option; and
“(D) identify technical data or other information upon
which the risk assessment information and proposed stand-
ard is based.
“(4) REvIEW.—
“(A) IN GENERAL.—The Secretary shall—
“(i) submit any risk assessment information pre-
pared under paragraph (3) of this subsection to the
Technical Pipeline Safety Standards Committee, the
Technical Hazardous Liquid Pipeline Safety Standards
Committee, or both, as appropriate; and
“(ii) make that risk assessment information avail-
able to the general public.
“(B) PEER REVIEW PANELS.—The committees referred
to in subparagraph (A) shall serve as peer review panels
to review risk assessment information prepared under this
section Not later than 90 days after receiving risk assess-
ment information for review pursuant to subparagraph (A),
each committee that receives that risk assessment infornia-
tion shall prepare and submit to the Secretary a report
that includes—
“(i) an evaluation of the merit of the data and
methods used; and
“(ii) any recommended options relating to that risk
assessment information and the associated standard
that the committee determines to be appropriate
“(C) REVIEW BY SECRETARY—Not later than 90 days
after receiving a report submitted by a committee under
subparagraph (B), the Secretary—
U(j) shall review the report;
“(ii) shall provide a written response to the commit-
tee that is the author of the report concerning all
significant peer review comments and recommended
alternatives contained in the report; arid
“(iii) may revise the risk assessment and the pro-
posed standard before promulgating the final standard.
“(5) SECRETARLAL DECISIONMAIUNG.—Except where other-
wise required by statute, the Secretary shall propose or issue
a standard under this Chapter only upon a reasoned deterrnina-
tion that the benefits of the intended standard justify its cost,
“(6) EXCEPTIONS FROM APPLICATION—The requirements r.
— ,y.ss I —
Reporta
Standard&
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STAT. 3796 PUBLIC LAW 104—304—OCT. 12, 1996
PUBLIC LAW 104—304----OCT. 12, 1996 110 STAT.:
“(A) the standard is the product of a negotiated rule-
making, or other rulemaking includin the adoption of
industry standards that receives no significant adverse
comment within 60 days of notice in the Federal Register;
“(B) based on a recommendation (in which three-
fourths of the members voting concur) by the Technical
Pipeline Safety Standards Committee the Technical
Hazardous Liquid Pipeline Safety Standards Committee,
or both, as applicable, the Secretary waives the require-
ments; or
“(C) the Secretary finds, pursuant to section
553(b)(3)(B) of title 5, United States Code, that notice and
public procedure are not required.
“(7) REPORT —Not later than March 31, 2000, the Secretary
shall transmit to the Congress a report that—
“(A) describes the implementation of the risk assess-
ment requirements of this section, including the extent
to which those requirements have affected regulatory
decisionmaking and pipeline safety; and
“(B) includes any recommendations that the Secretary
determines would make the risk assessment process con-
ducted pursuant to the requirements under this chapter
a more effective means of assessing the benefits and costs
associated with alternative regulatory and nonregulatory
options in prescribing standards under the Federal pipeline
safety regulatory program under this chapter.”.
(c) FACILITY OPERATION INFORMATION STMJDARDs.—The first
sentence of section 60102(d) is amended—
(1) by insertmg “as required by the standards prescribed
under this chapter” after ‘operating the facility”;
(2) by striking “to provide the information” and inserting
“to make the information available”, and
(3) by inserting “as determined by the Secretary” after
“to the Secretary and an appropriate State official”.
(d) PIPE INVENTORY ST DARDS.—The first sentence of section
60 102(e) is amended—
(1) by striking “and, to the extent the Secretory considers
necessary, an operator of a gathering line that is not a regulated
gather line (as defined under section 60101(b)(2) of this title),”;
and
(2) by striking “transmission” and inserting “transpor-
tation”.
(e) SM.AI T PIGS —
(1) MINIMUM SAFETY STANDARDS.—Section 60102(f) is
amended by striking paragraph (1) and inserting the following:
“(1) MINiMUM SAFETY STANDABDS.—The Secretary shall pre-
scribe minimum safety standards requiring that—
“(A) the design and construction of new natural gas
transmission pipeline or hazardous liquid pipeline facilities,
and
“(B) when the replacement of existing natural gas
transmission pipeline or hazardous liquid pipeline facilities
or equipment is req uired, the replacement of such existing
facilities be carried out, to the extent practicable, in a
manner so as to accommodate the passage through such
natural gas transmission pipeline or hazardous liquid pipe-
),..., f,. .1,4-. :._ ,..... .i _..
ed—
(commonly referred to as ‘smart pigs’). The Secretary may
extend such standards to require existing natural as
transmission pipeline or hazardous liquid pipeline facilities,
whose basic construction would accommodate an
instrumented internal inspection device to be modified to
permit the inspection of such facilities with instrumented
internal inspection devices.”.
(2) PERIODIC INSPECTION$.—Section 60102(0(2) is amend-
(A) by striking “(2) Not later than” and inserting the
following:
“(2) PERIODIC LNSPECFIONS.—Not later than”; and
(B) by inserting “, if necessary, additional” after “the
Secretary shall prescribe”.
(0 UPDATING SThNDAItts.—Section 60102 is amended by adding
at the end the following
“(1) UPDATING ST m ’ rir,s.—The Secretary shall, to the extent
appropriate and practicable update incorporated industry stand-
ards that have been adopted as part of the Federal pipeline safety
regulatory program under this chapter.”.
(g) MAPPING —Section 60 102(c) is amended by adding at the
end thereof the following:
“(4) PROMOTING PUBLIC AWARENESS.—
“(A) Not later than one year after the date of enactment
of the Accountable Pipeline Safety and Accountability Act
of 1996, and annually thereafter, the owner or operator
of each interstate gas pipeline facility shall provide to
the governing body of each municipality in which the inter-
state gas pipeline facility is located, a map identifying
the location of such facility.
“(B)(i) Not later than June 1, 1998, the Secretary shatl
survey and assess the public education programs under
section 60116 and the public safety programs under section
60102(c) and determine their effectiveness and applicability
as components of a model program. In particular, the sur-
vey shall include the methods by which operators notify
residents of the location of the facility and its right of
way, public information regarding existing One-Call pro-
grams, and appropriate procedures to be followed by resi-
dents of affected municipalities in the event of accidents
involving interstate gas pipeline facilities.
“(ii) Not later than one year after the survey and
assessment are completed, the Secret.ary shall institute
a rulemaking to determine the most effective public safety
and education program components and promulgate if
appropriate standards implementing those components on
a nationwide basis. In the event that the Secretary finds Ru!emakin
that promulgation of such standards are not appropriate, Poi
the Secretary shall report to Congress the reasons for that
finding.”.
(h) REMOTE C0NTROL.—Section 60102 (j) is amended by adding
at the end thereof the following:
“(3) REMOTELY CONTROLLED vALvES.—(A) Not later than
June 1, 1998, the Secretary shall survey and assess the
effectiveness of remotely controlled valves to shut off the flow
of natural gas in the event of a rupture of an interstate natural
ri n,r r 1,nr c.,- ,i,4. .,.,1 ..I-..S11 ..1... ... 1 1
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0 STAT. 3798 PUBLIC LAW 104-304---OCT. 12, 1996
PUBLIC LAW 104—304—-OCT. 12, 1996 110 STA’
whether the use of remotely controlled valves is technically
and economically feasible and would reduce risks associated
with a rupture of an interstate natural gas pipelme facility.
“(B) Not later than one year after the survey and assess-
ment are completed, if the Secretary has determined that the
use of remotely controlled valves is technically and economically
feasible and would reduce risks associated with a rupture of
an interstate natural gas pipeline facility, the Secretary shall
prescribe standards under which an operator of an interstate
natural gas pipeline facility must use a remotely controlled
valve These standards shall include, but not be limited to,
requirements for high-density population areas.”.
SEC. 5. RISK MANAGEMENT.
(a) IN GENERAL.—ChRptCr 601 is amended by adding at the
end the following:
‘160126. Risk management
“(a) RISK MANAGEMENT PROGRAM DEMONSTRATION PROJECTS.—
“(1) IN GENERAL.—The Secretary shall establish risk
management demonstration projects—
“(A) to demonstrate, through the voluntary participa-
tion by owners and operators of gas pipeline facilities and
hazardous liquid pipeline facilities, the application of risk
management, and
“(B) to evaluate the safety and cost-effectiveness of
the program.
“(2) ExEMp ”rioNs.—In carrying out a demonstration project
under this subsection, the Secretary, by order—
“(A) may exempt an owner or operator of the pipeline
facility covered under the project (referred to in this sub-
section as a ‘covered pipeline facility’), from the applicabil-
ity of all or a portion of the requirements under this chapter
that would otherwise apply to the covered pipeline facility;
and
“(B) shall exempt, for the period of the project, an
owner or operator of the covered pipeline facility, from
the applicability of any new standard that the Secretary
promulgates under this chapter during the period of that
participation, with respect to the covered facility.
“(b) REQUIREMENTS —In carrying out a demonstration project
under this section, the Secretary shall—
“(1) invite owners and operators of pipeline facilities to
submit risk management plans for timely approval by the Sec-
retary;
“(2) require, as a condition of approval, that a risk manage-
ment plan submitted under this subsection contain measures
that are designed to achieve an equivalent or greater overall
level of safety than would otherwise be achieved through
compliance with the standards contained in this chapter or
promulgated by the Secretary under this chapter;
“(3) provide for—
1 ’(A) collaborative government and industry training;
“(B) methods to measure the safety performance of
i-isk management plans;
“(C) the development and application of new tech-
ogies,
“(D) the promotion of community awareness concerning
how the overall level of safety will be maintained or
enhanced by the demonstration project;
“(E) the development of models that categorize the
risks inherent to each covered pipeline facility, taking into
consideration the location, volume, pressure, and material
transported or stored by that pipeline facility;
“(F) the application of risk asseBement and risk
management methodologies that are suitable to the inher-
ent risks that are determined to exist through the use
of models developed under subparagraph (E);
“(G) the development of project elements that are nec-
essary to ensure that—
“(i) the owners and operators that participate in
the demonstration project demonstrate that they are
effectively managing the risks referred to in subpara-
graph (E); and
“(ii) the risk maria ement plans carried out under
the demonstration project under this subsection can
be audited; -
“(H) a process whereby an owner or operator of a
pipeline facility is able to terminate a risk management
plan or, with the approval of the Secretary, to amend,
modify, or otherwise adjust a risk management plan
referred to in paragraph (1) that has been approved by
the Secretary pursuant to that paragraph to respond to—
“Ci) changed circumstances; or
“(ii) a determination by the Secretary that the
owner or operator is not achieving an overall level
of safety that is at least equivalent to the level that
would otherwise be achieved through compliance with
the standards contained in this chapter ox- promulgated
by the Secretary under this chapter;
“U) such other elements as the Secretary, with the
agreement of the owners and operators that partici rnte
in the demonstration project under this section, determines
to further the purposes of this section; and
“(J) an opportunity for public comment in the approval
process; and
in selecting participants for the demonstration project,
take into consideration the past safety and regulatory perform-
ance of each applicant who submits a risk management plan
pursuant to paragraph (1).
Cc) EMERGENCIES A REVOCATIONS.—NOthing in this section
diminishes or modifies the Secretary’s authority under this title
to act in case of an emer ency. The Secretary may revoke any
exemption granted under this section for substantial noncompliance
with the terms and conditions of an approved risk management
plan.
U(d) PARTICIPATION BY STATE AUThOFUTy.—In carrying out this
section, the Secretary may provide for consultation by a State
that has in effect a certification under section 60105. To the extent
that a demonstration project comprises an intrastate natural gas
pipeline or an intrastate hazardous liquid pipeline facility, the
Secretary may make an agreement with the State agency rry
out the duties of the Secretary for approval and adniini on
of the project
ndards
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STAT 3800 PUBLIC LAW 104—304-—OCT. 12, 1996
PUBLIC LAW 104—304—OCT. 12, 1996 i0 STAT. 3&
“(e) REPORT —Not later than March 31, 2000, the Secretary
shall transmit to the Congress a report on the results of the dem-
onstration projects carried out under this section that includes—
“(1) an evaluation of each such demonstration project,
including an evaluation of the performance of each participant
in that project with respect to safety and environmental protec-
tion, and
“(2) recommendations concerning whether the applications
of risk management demonstrated under the demonstration
project should be incorporated into the Federal pipeline safety
program under this chapter on a permanent basis.”.
(f) CONFORMING AMENDMENT.—The analysis for chapter 601
is amended by adding at the end the following:
‘6Oi28 Risk management”
SEC. 8. INSPECTION AND MAINTENANCE.
Section 60108 is amended—
(1) by striking “transporting gas or hazardous liquid or”
in subsection (a)(1) each place it appears,
(2) by striking the second sentence in subsection (b)(2),
(3) by striking “NAVIGABLE WATERS” in the heading for
subsection (c) and inserting “OTHER WATERS”; and
(4) by striking clause (ii) of subsection (c)(2)(A) and insert-
ing the following-
“(ii) any other pipeline facility crossing under, over,
or through waters where a substantial likelihood of
commercial navigation exists, if the Secretary decides
that the location of the facility in those waters could
pose a hazard to navigation or public safety”
SEC. 7. HIGH.DENSITY POPULATION AREAS AND ENVIRONMENTALLY
SENSITIVE AREAS.
(a) IDENTIFICATION —Section 60109(a)(1)(B)(i) is amended by
striking “a navigable waterway (as the Secretary defines by regula-
tion)” and inserting “waters where a substantial likelihood of
commercial navigation exists”.
(b) UNUSUALLY SENSITIVE AREAS —Section 60109(b) is amended
to read as follows:
“(b) AREAS To BE INCLUDED AS UNUSUALLY SENSITIVE.—When
describing areas that are unusually sensitive to environmental dam-
age if there is a hazardous liquid pipeline accident, the Secretary
shall consider areas where a pipeline rupture would likely cause
permanent or long-term environmental damage, including—
“(1) locations near pipeline rights-of-way that are critical
to drinking water, including intake locations for community
water systems and critical sole source aquifer protection areas;
and
“(2) locations near pipeline rights-of-way that have been
identified as critical wetlands, riverine or estuarine systems,
national parks, wilderness areas, wildlife preservation areas
or refuges, wild and scenic rivers, or critical habitat areas
for threatened and endangered species.”.
SEC. 8. EXCESS FLOW VALVES.
Section 60110 is amended—
(1) by insertmg”, if any,” in the first sentence of subsection
(b)(l) after “circumstances”.
(2) by inBerting”, operating, and maintaining” in subsection
(b)(4) after ‘cost of installing”;
(3) by inserting”, maintenance, and replacement” u sub-
section (cX1XC) after 9nstallation”; and
(4) by inserting after the first sentence in subsection (e)
the following: “The Secretary may adopt industry accepted
performance standards in order to comply with the requirement
under the preceding sentence.”.
SEC. 9. CUSTOMER-OWNED NATURAL GAS SERVICE LINES.
Section 60113 is amended—
(1) by striking the caption of subsection (a); and
(2) by strIking subsection (b).
SEC. 10. TECHNICAL SAFETY STANDARDS CO UTrEES.
(a) PEER REVIEw.—Section 60115(a) is amended by adding at
the end the following: “The committees referred to in the preceding
sentence shall serve as peer review committees for carrying out
this chapter. Peer reviews conducted by the committees shall be
treated for purposes of all Federal laws relating to risk assessment
and peer review (including laws that take effect after the date
of the enactment of the Accountable Pipeline Safety and Partnershi
Act of 1996) as meeting any peer review requirements of suc
laws.”.
(b) CoMPosITIoN AND APPOINTMENT.—Section 60115(b) is
amended—
(1) by inserting “or risk management principles” in para-
graph (1) before the period at the end;
(2) by inserting “or risk management principles” in para-
graph (2) before the period at the end;
(3) by striking “4” in paragraph (3)(B) and inserting “5”;
(4) by striking “6” in paragraph (3XC) and inserting “5”;
(5) by adding at the end of paragraph (4)(B) the following:
“At least 1 of the individuals selected for each committee under
paragraph (3XB) shall have education, background, or experi-
ence in risk assessment and cost-benefit analysis. The Secretary
shall consult with the national organizations representing the
owners and operators of pipeline facilities before selecting
individuals under paragraph (3)(B).”; and
(6) by inserting after the first sentence of paragraph (4XC)
the following: “At least 1 of the individuals selected for each
committee under paragraph (3XC) shall have education, back-
ground, or experience in risk assessment and cost-benefit analy-
818.”.
(c) COMMITFEE REPOR’rs.—Section 60115(c) is amended—
(1) by inserting “including the risk assessment information
and other analyses supporting each proposed standard” before
the semicolon in paragraph (1)(A);
(2) by inserting “including the risk assessment information
and other analyses supporting each proposed standard” before
the period in paragraph (1)(B);
(3) by inserting “and supporting analyses” before the first
comma in the first sentence of paragraph (2);
(4) by inserting “and submit to the Secretary” in the first
sentence of paragraph (2) after “prepare”;
(5) by inserting “cost-effectiveness,” in the first sentence
of paragraph (2) after “reasonahlen ’ c” nd
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110 STAT. 3802 PUBLIC LAW 104—304—-OCT. 12, 1996
PUBLIC LAW 104—304—OCT. 12, 1996 110 STAT. 3
(6) by inserting “and include in the report recommended
actions” before the period at the end of the first sentence
of paragraph (2); and
(7) by inserting “any recommended actions and” in the
second sentence of paragraph (2) after “including”.
(d) MEETrNGS —Section 60115(e) is amended by striking “twice”
arid inserting “up to 4 times”
(e) EXPENSES —Section 60115(f) is amended—
(1) by striking “PAY AND” in the subsection heading;
(2) by strikm the first 2 sentences; and
(3) by inserting “of a committee under this section” after
“A member”
SEC. 11. PUBLIC EDUCATION PROGRAMS.
Section 60116 is amended—
(1) by striking “person transporting gas” and inserting
“owner or operator of a gas pipeline facility”;
(2) by inserting “the use of a one-call notification system
prior to excavation,” after “educate the public on”; and
(3) by inserting a comma after “gas leaks”.
SEC. 12. ADMINISTRATWE.
Section 60117 is amended—
(1) by adding at the end of subsection (b) the following:
“The Secretary may require owners and operators of gathering
lines to provide the Secretary information pertinent to the
Secretary’s ability to make a determination as to whether and
to what extent to regulate gathering lines.”;
(2) by adding at the end thereof the following:
“(k) AUTHORITY FOR COOPERATIVE AGREEMEN’TS.—TO carry out
this chapter, the Secretary may enter into grants, cooperative agree-
ments, and other transactions with any person agency or
instrumentality of the United States, any unit of tate or local
government, any educational institution, or any other entity to
further the objectives of this chapter. The objectives of this chapter
include the development, improvement, and promotion of one-call
damage prevention programs, research, risk assessment, and map-
ping.”; and
(3) by striking “transporting gas or hazardous liquid” in
subsection (b) and inserting “owning”.
SEC. 13. COMPLIANCE.
(a) Section 60118 (a) is amended—
(1) by striking “transporting gas or hazardous liquid or”
in subsection (a), and
(2) by striking paragraph (1) and inserting the following
“(1) comply with applicable safety standards prescribed
under this chapter, except as provided in this section or in
section 60126;”
(b) Section 60118 (b) is amended to read as follows
“(b) COMPLIANCE ORDERS —The Secretary of Transportation
inay issue orders directing compliance with this chapter, an order
under section 60126, or a regulation prescribed under this chapter
An order shall state clearly the action a person must take to
corn’ ”
ection 60118(c) is amended by striking “transporting gas
or }. dnii lirinid” Find inqp,-fjncT ‘ wnint-”
SEC. 14. DAMAGE REPORTING.
Section 60123(d)(2) is amended—
(1) by striking “or” at the end of subparagraph (A);
(2) by redesignating subparagraph (B) as subparagraph
(C); and
(3) b r inserting after subparagraph (A) the following:
(B) a pipeline facility that does not report the damage
promptly to the operator of the pipeline facility and to
other appropriate authorities; or”.
SEC. 15. BIENNIAL REPORTS.
(a) BIENNIAL REPORTS.—
(1) SECTION HEADING.—The section heading of section
60124 is amended to read as follows:
960124. Biennial reports”.
(2) REPOR’rS.—Section 60 124(a) is amended by striking the
first sentence and inserting the following: “Not later than
August 15, 1997, and every 2 years thereafter, the Secretary
of Transportation shall submit to Congress a report on carrying
out this chapter for the 2 immediately preceding calendar years
for gas and a report on carrying out this chapter for such
period for hazardous liquid.”.
(c) CoNForthuNo AMENDMENT.—The analysis for chapter 601
is amended by striking the item relating to section 60124 and
inserting the following:
“60124 Biennial reports”.
SEC. 16. POPULATION ENCROACHMENT.
(a) IN GENERAL.—Chapter 601, as amended by section 5, is
further amended by adding at the end the following new section:
960127. PopulatIon encroachment
“(a) LAND USE RECOMMENDATIONS.—The Secretary of Transpor-
tation shall make available to an appropriate official of each State,
as determined by the Secretary, the land use recommendations
of the special report numbered 219 of the Transportation Research
Board entitled ‘Pipelines and Public Safety’.
“(f) EVALUATION.—The Secretary shall—
“(1) evaluate the recommendations in the report referred
to in subsection (a),
“(2) determine to what extent the recommendations are
beinif implemented;
(3) consider ways to improve the implementation of the
recommendations; and
“(4) consider other initiatives to further improve awareness
of local planning and zoning entities regarding issues involved
with population encroachment in proximity to the rights-of-
way of any interstate gas pipeline facility or interstate hazard-
ous liquid pipeline facility.
(b) CONFORMING AMENDMENT.—The analysis for chapter 601
is amended by inserting after the item relating to section 60126
the following
“60127. Population encroachment -
SEC. 17. USER FEES.
Inter-
government
relations
49 Usc 60
note
e
(a) IN GEt JERaL —Not later than 1 year aft er the date
-------
) STAT. 3804 PUBLIC LAW 104—304---OCT. 12, 1996
PUBLIC LAW 104—304—OCT. 12, 1996 ii0 STAT. 380
mit to the Congress a report analyzing the present assessment
of pipeline safety user fees solely on the basis of mileage to deter-
mine whether—
(1) that measure of the resources of the Department of
Transportation is the most appropriate measure of the
resources used by the Department of Transportation in the
regulation of pipeline transportation; or
(2) another basis of assessment would be a more appro-
priate measure of those resources.
(b) CONSIDERATIONS.—Tn making the report, the Secretary shall
consider a wide range of assessment factors and suggestions and
comments from the public.
SEC. 18. DIThIPU4G wrruir4 PIPELINE RIGHTS-OF-WAY.
(a) AMENDMENT.—Chapter 601, as amended by section 16, is
further amended by adding at the end the following new section:
“* 60128. Dumping within pipeline rights-of-way
“(a) PROHIBITION.—No person shall excavate for the purpose
of unauthorized disposal within the right-of-way of an interstate
gas pipeline facility or interstate hazardous liquid pipeline facility,
or any other limited area in the vicinity of any such interstate
pipeline facility established by the Secretary of Transportation,
and dispose solid waste therein
“(b) DEFINITION.—For purposes of this section, the term ‘solid
waste’ has the meaning given that term in section 1004(27) of
the Solid Waste Disposal Act (42 U S C 6903(27)).”.
(b) CONFORMING AMENDMENTS.—
(1) CROSS-REFERENCE —Section 60 123(a) is amended by
striking “or 60118(a)” and inserting “, 60118(a), or 60128”.
(2) CHAP’rER ANALY I —The analysis for chapter 601 is
amended by adding at the end the following new item;
“60128 Dumping within pipeline nghts-of-way”
SEC. 19. PREVENTION OF DAMAGE TO PIPELINE FACILITIES.
Section 60117(a) is amended by inserting after “and training
activities’ the following “and promotional activities relating to
prevention of damage to pipeline facilities”.
SEC. 20. TECHNICAL CORRECTIONS.
(a) SECTION 60105.—The heading for section 60105 is amended
by inserting “pipeline safety program” after “State”.
(b) SECTION 60106 —The heading for section 60106 is amended
by inserting “pipeline safety” after “State”.
(c) SECTION 60107.—The heading for section 60107 is amended
by inserting “pipeline safety” after State”
(d) SECTION 60114 —Section 60114 is amended—
(1) by striking “60120, 60122, and 60123” in subsection
(a)(9) and inserting “60120 and 60122”;
(2) by striking subsections (b) and (d); and
(3) by redesignating subsections (c) and (e) as subsections
(b) and (d), respectively.
(e) CRAP ’TER ANALYSIS.—The analysis for chapter 601 is amend-
ed—
(1) by inserting “pipeline safety program” in the item relat-
ing to section 60105 after “State”;
(2) by inserting “pipeline safety” in the item relating to
section 60106 after “State”; and
(3) by inserting “pipeline safety” in the item relating to
section 60107 after “State”.
(I) SECTION 60101.—Section 60101(b) is amended by striking
“define by regulation” each place it appears and inserting “prescribe
standards defining”.
(g) SECTION 60102.—Section 60102 is amended by striking
“regulations” each place it appears in subsections (0(2), Ci), and
(j)(2) and. inserting “standards”.
(h) SECTION 60108.-Section 60108 is amended—
(1) by striking “regulations” in subsections (c)(2)(B),
(c)(4)(B), and (d)(3) and inserting “standards”; and
(2) by striking “require by regulation” in subsection (c)(4)(A)
and inserting “establish a standard”. -
(i) SEcrioIi 60109.—Section 60109(a) is amended by striking
“regulations” and inserting “standards”.
(j) SECTION 60110.—Section 60110 is amended by striking
“regulations” in subsections (b), (c)(1), and (cX2) and inserting
“standards”.
(k) SECTION 60113.-Section 60113(a) is amended by striking
“regulations” and inserting “standards”.
SEC. 21. AUTHORIZATION OF APPROPRIATIONS.
(a) GAS Ai ’ t HAziuinous LIQUID.—Section 60125 is amended—
(1) by striking subsection (a) and inserting the following
new subsection:
“(a) GAS AND HAZARDOUS LIQUID.—To carry out this chapter
(except for sections 60107 and 60114(b)) related to gas and hazard-
ous liquid, there are authorized to be appropriated to the Depart-
ment of Transportation—
“(1) $19,448,000 for fiscal year 1996;
“(2) $20,028,000 for fiscal year 1997, of which $14,600,000
is to be derived from user fees for fiscal year 1997 collected
under section 60301 of this title;
“(3) $20,729,000 for fiscal year 1998, of which $15,100,000
is to be derived from user fees for fiscal year 1998 collected
under section 60301 of this title;
“(4) $21,442,000 for fiscal year 1999, of which $15,700,000
is to be derived from user fees for fiscal year 1999 collected
under section 60301 of this title; and
“(5) $22,194,000 for fiscal year 2000, of which $16,300,000
is to be derived from user fees for fiscal year 2000 collected
under section 60301 of this title.”.
(b) STATE Giw ’rs.—Section 60125(c)(1) is amended by adding
at the end the following:
“(D) $12,000,000 for fiscal year 1996.
“CE) $14,000,000 for fiscal year 1997, of which $12,500,000
is to be derived from user fees for fiscal year 1997 collected
under section 60301 of this title.
“(F) $14,490,000 for fiscal year 1998, of which $12,900,000
is to be derived from user fees for fiscal year 1998 collected
under section 60301 of this title.
“(0) $15,000,000 for fiscal year 1999, of which $13,300,000
is to be derived from user fees for fiscal year 1999 collected
under section 60301 of this title
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110 STAT. 3806 PUBLIC LAW 104—304—OCT. 12, 1996
“(H) $15,524,000 for fiscal year 2000, of which $13,700,000
is to be derived from user fees for fiscal year 2000 collected
under section 60301 of this title.”.
Approved October 12. 1996.
LEGISLATIVE HISTORY—S 1505 (H R 1323)
HOUSE REPORTS No 104—110 Pt I (Comm. on Transportation and Infrastruc-
ture) and PL 2 (Comm on Commerca), both accompanying H Ft.
1323
SENATE REPORTS No 104—3:34 (Comm on Commerca, Science, and Transpor-
tation.
CONGRESSIONAL RECORD. Vol 142 (1996)
“—t 19, 26, cona dered and passed Senate
27, considered and passed House
-------
April 11, 1997
MEMORANDUM
SUBJECT: Recently-Enacted Pipeline Safety Law (Public Law 104-304)
FROM: Bob Kenney, OECAJOSRE
TO: OPA Enforcement Contacts
Attached for your information is a summary prepared by the Library of Congress (with a
few minor modifications) of Public Law 104-304, the Accountable Pipeline Safety and
Partnership Act of 1996. Because of the impact of pipeline operations on discharges of oil and
hazardous substances (as exemplified by the recent major spill from the Colonial Pipeline in
South Carolina), I thought it worthwhile to bring this recently-enacted law to your attention.
As described more fully in the attached summary, the bill makes a number of major
changes to the regulation of pipeline operations by the Office of Pipeline Safety in the
Department of Transportation (DOT/OPS), including the following:
• Establishes risk assessment and cost-benefit analysis requirements for new pipeline safety
standards, including “peer review” by panels of industry, public and government
representatives;
+ Provides that such new standards may be proposed or issued “only upon a reasoned
determination that the benefits of the standard justify its costs;”
• Authorizes “risk management program demonstration projects” under which pipeline
owners and operators could voluntarily demonstrate the application of risk management
principles, and allows DOT/UPS to exempt such owners and operators from some or afl
safety requirements that would otherwise apply to their pipeline(s);
+ Repeals the requirement for biennial pipeline inspections, leaving their frequency to the
discretion of DOT/OPS;
4 Modifies the list of areas considered to be “unusually sensitive to environmental damage”
in the event of a pipeline accident, deleting earthquake zones, areas of likely ground
water contamination, freshwater lakes/rivers/waterways, and river deltas, and adding
locations critical to drinking water, critical wetlands, wild and scenic rivers, riverine and
estuarine systems, national parks, and certain other areas;
+ Replaces the requirement that pipeline facility operators identify facilities that cross a
“navigable waterway” with a requirement that they identify only those that cross “waters
where a substantial likelihood of commercial navigation exists”; and
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• Requires pipeline owners and operators to provide a public education program on use of a
“one-call” notification system prior to excavation.
Public Law 104-304 was passed rather hurriedly in the last days of the 104th Congress,
with only 40 minutes of debate in the House. While lauded by its supporters as an example of
how a regulatory program should “now move away from a command and control approach to a
risk-based approach,” 1 its opponents (primarily House Democrats) characterized it as a bill that
“allows pipeline operators to decide for themselves what safety precautions to take and which to
ignore while, making it even more difficult for Federal regulators to pass new safety
requirements.” 2 The bill was signed into law by President Clinton on October 12, 1996.
Please let me know if you would like a copy of this law or if you need any additional
information on its provisions.
Attachment
l42 Cong. Rec. HI 1,534 (daily ed. Sept. 27, 1996) (statement of Rep. Shuster).
2 J at HI 1,535 (statement of Rep. Pallone).
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SUMMARY & DIGEST OF PUBLIC LAW 104-304
BILL NUMBER: 5.1505
PUBLIC LAW: 104-304 (Became Law 10/12/96)
SPONSOR: Sen Lou (Introduced 12/22/95)
SHORT TITLE(S) AS ENACTED: Accountable Pipeline Safety and Partnership Act of 1996
OFFICIAL TITLE AS INTRODUCED: A bill to reduce risk to public safety and the
environment associated with pipeline transportation of natural gas and hazardous liquids, and for
other purposes.
DIGEST (Revised as of 09/26196--Passed Senate, Amended):
(Sec. 1) Cites short title of law as “Accountable Pipeline Safety and Partnership Act of 1996.”
(Sec. 2) Provides that amendments and references in the law are to sections and provisions in
Title 49, U.S. Code.
(Sec. 3) Amends Federal natural gas and hazardous liquid pipeline safety transportation law to
revise the exclusion from the meaning of the term “transporting gas” (thus from coverage by such
law) of the gathering of gas in a rural area outside a populated, non-rural area to specified
locations outside the limits of any incorporated or uninco r porated city, town, or village. Extends
coverage, however, to the movement of gas through regulated lines, regardless of location.
(Sec. 4) Repeals the mandate that Federal minimum safety standards for pipeline transportation
and pipeline facilities apply to transporters of gas and hazardous Liquid, thus limiting application
to owners and operators of pipeline facilities. Repeals the mandate that such minimum safety
standards include a requirement that all individuals responsible for the operation and
maintenance of pipeline facilities be tested for their qualifications. Requires only that they be
qualified. Requires such qualifications to address the ability to recognize and react to abnormal
operating conditions that may indicate a dangerous situation or a condition exceeding design
limits.
Directs the Secretary of Transportation, in prescribing minimum safety standards for pipeline
transportation and pipeline facilities, to: (I) consider the reasonably identifiabLe or estimated
compliance benefits and costs and any comments and recommendations received; (2) identify the
costs and benefits under such standards; and (3) submit such risk assessment information to
either the Technical Pipeline Safety Standards Committee or the Hazardous Liquid Pipeline
Safety Standards Committee, or both, as appropriate. Requires such committees, serving as peer
review panels, to evaluate and report to the Secretary on such information.
Directs the Secretary to review such evaluations and issue a standard only upon a reasoned
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determination that its benefits justify its costs. Specifies circumstances in which the requirements
of this Act with respect to standards or their formulation shall not apply. Requires a report from
the Secretary to the Congress on the implementation of the risk assessment requirements of this
section.
Directs the Secretary, to the extent appropriate and practicable, to update incorporated industry
standards that have been adopted as part of the Federal pipeline safety regulatory program.
Requires the owner or operator of each interstate gas pipeline facility to provide annually to each
municipality in which the pipeline is located a map identifying the facility’s location.
Directs the Secretary to: (1) assess existing public education programs; and (2) institute a
rulemaking to promulgate standards implementing the most effective pipeline public safety and
education program components.
Directs the Secretary to (I) assess the effectiveness of remotely controlled valves to shut off the
flow of natural gas in the event of a rupture of an interstate natural gas pipeline facility; and (2),
if such valves are determined feasible and risk-reducing, prescribe standards requiring a facility-
operator to use such a valve.
(Sec. 5) Directs the Secretary to establish risk management demonstration projects under which
owners and operators of gas pipeline and hazardous liquid pipeline facilities voluntarily
demonstrate applications of risk management. Authorizes the Secretary, during a demonstration
project, to exempt such owners and operators from the applicability of all or a portion of safety
standards that would otherwise apply. Outlines demonstration project requirements.
(Sec. 6) Eliminates the application of certain inspection and maintenance requirements to persons
who transport gas or hazardous liquids. Repeals the requirement of biennial pipeline facility
inspections (leaving their frequency to the Secretary’s discretion).
(Sec. 7) Requires the Secretary to prescribe regulations that establish criteria by which operators
of hazardous liquid pipeline facilities and gathering lines shall identify each such facility or line
that crosses waters where a substantial likelihood of commercial navigation exists. (Currently,
such requirement applies to all navigable waters, regardless of such likelihood.) Requires the
Secretary, when identifying an area as unusually sensitive to environmental damage if there isa
hazardous liquid pipeline accident, to consider including locations that are critical to drinking
water, as well as critical wetlands, national parks, wilderness and wildlife preservation areas,
wild and scenic rivers, and critical habitat areas for threatened or endangered species. Repeals
the mandate to consider earthquake and landslide zones, freshwater lakes, rivers and waterways,
and river deltas and other areas subject to soil erosion or subsidence from flooding.
(Sec. 8) Authorizes the Secretary to adopt industry accepted performance standards for the
performance of excess flow valves used to protect lines in a natural gas distribution system.
(Sec. 9) Repeals the requirement that the Secretary promote the adoption of measures to improve
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the safety of customer-owned natural gas service lines.
(Sec. 10) Requires the Technical Pipeline Safety Standards Committee and the Technical
Hazardous Liquid Pipeline Safety Standards Committee to serve as peer review committees.
Deems such service to be in compliance with the requirements of other applicable Federal
statutes. Requires committee members to be experienced in risk management. Requires at least
one of the individuals selected for each committee from the natural gas or hazardous liquid
industry and from the general public to have education, background, or experience in risk
assessment and cost-benefit analysis. Requires the Secretary, when presenting each committee
each standard proposed for transporting gas and hazardous liquid and for gas and hazardous
liquid pipeline facilities, to include risk assessment information and other supporting analyses.
Requires each committee to meet with the Secretary at least four times (currently, twice)
annually.
(Sec. 11) Requires each owner or operator of a natural gas pipeline facility to provide a program
for educating the public on the use of a one-call notification system prior to excavation. Repeals
the requirement that persons transporting gas conduct public education programs.
(Sec. 12) Authorizes the Secretary to require owners and operators of: gathering lines to provide
information pertinent to the Secretary’s ability to make a determination as to whether and to what
extent to regulate such lines.
Authorizes the Secretary to enter into grants and other cooperative agreements with any State,
local government, or private entity to carry out pipeline safety programs, including the
development, improvement, and promotion of “one-call” damage prevention programs, research,
risk assessment, and mapping.
(Sec. 13) Repeals the applicability of certain Federal safety and inspection standards to persons
transporting gas or hazardous liquid.
(Sec. 14) Subjects to civil and criminal penalties any person who knowingly and willfully
excavates and subsequently damages a pipeline facility and does not report such damage
promptly to the operator of the pipeline facility and other appropriate authorities.
(Sec. 15) Changes from annual to biennial certain required reports from the Secretary to the
Congress concerning gas and hazardous liquid transportation safety requirements.
(Sec. 16) Directs the Secretary to make available to the appropriate official of each State the land
use recommendations contained in the special report entitled “Pipelines and Public Safety.”
Requires the evaluation and implementation of recommendations contained in such report.
(Sec. 17) Directs the Secretary to analyze and report to the Congress on the present assessment of
pipeline safety user fees based solely on mileage and the Secretary’s determinations with respect
to such assessment.
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(Sec. 18) Prohibits any person from excavating for unauthorized disposal (dumping) of solid
waste within the right-of-way of an interstate gas or hazardous liquid pipeline facility.
(Sec. 19) Authorizes the Secretary to conduct promotional activities relating to prevention of
damage to gas and hazardous liquid pipelines.
(Sec. 20) Makes technical corrections to various provisions in Title 49.
(Sec. 21) Extends and increases annually through FY 2000 the authorization of appropriations for
gas and hazardous liquid pipeline safety programs and activities carried out through the
Department of Transportation.
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Calendar No. 540
104th Congress S. R rr
2d session 5 SENATE 104 —334
ACCOUNTABLE PIPELINE SAFETY AND
PARTNERSHIP ACT OF 1996
REPORT
OP TILE
COMMITTEE ON COMMERCE, SCIENCE, AND
TRANSPORTATION
on
S. 1505
JULY 26, 1996.—Ordered to be printed
U 8. GOVERNMENT PRINTING OFFICE
29-010
WAS hINGTON 1996
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104Th CONGRESS
2d Session
SENATE
[ REPORI-
104—334
SENATE COMMITEEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ACCOUNTABLE PIPELINE SAFETY AND PARTNERSHIP ACT
OF 1996
ONE HUNDRED FOURTH CONOR
JutY 26, 1996.—Ordered to be pnnted
SECOND SESSION
LARRY PRESSLER, South Dakota, Chairma n
ERNEST F. HOU.INGS, South Carolina
DANIEL K. THOUYE, Hawaii
WENDELL a poRn, Kentucky
J JAMES EXON. Nebraska
JOHN D. ROCKEFELLER IV, West Virginia
JOHN F. KERRY, Maaaachuaetta
JOHN B. BREAUX. Louisiana
RICHARD H. BRYAN, Nevada
BYRON L DORGAN, North Dakota
RON WYDEN. Oregon
PAnUc C Lmx, Chief 0’ Staff
KEVIN C. Cumiw, Democratic Chief Counsel and Staff Director
PURPOSE OF THE BILL
The purpose of this legislation is to reauthorize appropriations
for the Natural Gas and Hazardous Liquid Pipeline Safety pro-
grams, and to reduce the risks and enhance environmental protec-
tion associated with pipeline transportation. S. 1505, as amended,
is intended to enhance the delivery of hazardous liquid and natural
gas materials in a safe and environmentally responsible manner
and permit the Department of Transportation (DOT) to build a
more effective partnership with States, the public and industry.
BACKGROUND AND NEEDS
The authorization of appropriations for pipeline safety programs
expired September 30, 1995. By delegation of the Secretary of
Transportation (Secretary) through the Research and Special Pro-
grams Administration (RSPA), the Office of Pipeline Safety (OPS)
is charged with administering pipeline safety programs Appropria-
Lions for pipeline safety programs were previously authorized
under the Natural Gas Pipeline Safety Act of 1968 and the Hazard-
ous Liquid Pipeline Safety Act of 1979. The two laws were com-
bined under a single authority during the general recodification of
Title 49, U S. Code, in 1994
29—010
TED STEVENS, Alaska
JOHN MeCAiN, Anzona
CONRAD BURNS, Montana
SLADE GORTON. Waahlngton
TRENT Lo’rr, Mississippi
KAY BAILEY HtTi’CHISON, Texas
OLYMPIA J SNOWE, Maine
JOHN ASRCROfl, Missouri
BILL FRIST, Tennessee
SPENCER ABRAHAM, Michigan
Mr. PRESSLER, from the Committee on Commerce, Science, and
Transportation, submitted the following
REPORT
(To accompany S 15051
The Committee on Commerce, Science, and Transportation, to
which was referred the btll (S. 1505) “A Bill to reduce nsk to public
safety and the environment associated with pipeline transportation
of natural gas and hazardous liquids, and for other purposes”, hav-
ing considered the same, reports favorably thereon with an amend-
ment in the nature of a substitute and recommends that the bill
(as amended) do pass.
(It)
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PIPELINE TRANSPORTATION
OPS overseas the transportation of natural gas to 55 million resi-
dential and commercial customers. OPS also oversees the transpor-
tation of more than 605 billion ton miles of petroleum and other
hazardous liquids pipelines. OPS jurisdiction covers more than
2.000 gas pipeline operators with more than 1.6 million miles of
pipeline, and more than 200 operators and almost 200,000 miles of
pipe transporting hazardous liquids. OPS also has responsibility for
pipeline safety and environmental protection programs under the
Oil Pollution Act of 1990.
Pipeline safety programs are entirely financed by user fees. Gas
transmission operators and hazardous liquid pipeline operators pay
a pro rata share of program costa based on total pipeline mileage.
Operators of liquefied natural gas facilities are assessed based on
total storage capacity. Oil Pollution Act funds are derived from the
Oil Spill Liability Trust Fund.
National Transportation Safety Board statistics show pipelines to
be one of the safest modes of transportation in the United States.
Anion all modes—highway, rail, aviation, marine, and pipeline—
fatalities from pipeline accidents represent less than ľooo of 1 per-
cent of the total number of fatalities on an annual basis.
In recent years, support has grown for developing Innovative and
alternative approaches to pipeline safety. The goal Is simple and di-
rect: improve pipeline transportation and efficiently manage both
public and private resources. Given the desire for improvement,
01 ’S initiated administrative activities to ensure that most safety
and environmental risks are addressed with the most cost-effective
solutions. OPS recognized legislation ultimately would be necessary
to codify and authorize its initiative.
The Administration’s pipeline safety reauthorization submission
last year sought new authority to work with indust 7 and others
to move away from traditional “command-and-control regulations.
The legislative proposal requested authority to establish a formal
structure to evaluate pipeline risks and their consequences, to de-
velop solutions to address the risks, and establish management pri-
ority systems to implement the solutions.
The Committee supports a shift in the pipeline safety program
away from a prescriptive, one-size-fits-all regulatory approach. As
reported, S 1505 responds to this challenge and provides statutory
authority to initiate the shift.
LEGISLATIVE HISTORY
Senator Lott, Chairman of the Subcommittee on Surface Trans-
portation and Merchant Marine, introduced S. 1505, the Account-
able Pipeline Safety and Partnership Act of 1995, on December 22,
1995 A bipartisan group of Senators (Senators Breaux, Hutchison,
Exon, Burns, Ford, Inouye, Shelby, Cochran, Frist, Inhofe and
Pressler) cosponsored S. 1505.
S. 1505, as introduced, was similar to H.R. 1323, the Pipeline
Safety Act of 1995.
The Committee held a hearing on S. 1505 on April 16, 1996. At
the heanng, the Committee heard concerns from affected parties,
including federal and state regulators.
In open executive session on June 6, 1996, S. 1505 was amended
by the Committee and ordered to be reported without objection.
SUMMARY OF MAJOR PRovIsIoNs
RISK ASSESSMENT REFORM
The bill builds upon the Administration’s submission and broad-
ens the application of risk-based solutions through the performance
of risk assessments. Risk assessments identify the sources of nsk,
analyze the severity of potential risk consequences and quantify
the likelihood of’ experiencing those consequences.
S. 1505, as reported, establishes a structured risk assessment,
cost-benefit analysis process as a possible basis for future pipeline
safety standards The risk assessment process designed in the
Committee bill may ensure that future pipeline safety standards
recognize and incorporate more detailed, scientifically and economi-
cally grounded considerations. The Committee’s bill complements
OPS’s existing risk assessment prioritization (RAP) model which
seeks to identify the most rational, cost-effective alternatives, if
any, to a given proposed safety requirement. S. 1505 moreover
builds on the existing rulemaking procedures already followed by
the Administration generally and by OPS specifically.
Under the bill, the Secretary must Issue safety standards based
on a reasoned determination that the benefits of the intended
standard justify its costs. As noted above, OPS already has a RAP
program in place.
The bill requires a risk assessment to be performed when pre-
scribing new pipeline standards. The assessment would identify or
estimate the benefits expected to result from a proposed standard,
as well as identify or estimate the expected costs to result from the
proposed standard. The Committee fully recognizes that all benefits
and costs cannot be quantified with precision and consequently S.
1505 does not prevent the consideration of unmeasurable benefits
and costs. The 01’S assessments also would have to identify both
the regulatory and nonregulatory options available when consider-
ing a new standard.
S 1505 subjects the risk assessment information prepared for
the Secretary to peer review. The peer review would be conducted
by existing panels at OPS, the Technical Pipeline Safety Standards
Committee and the Technical Hazardous Liquid Pipeline Safety
Standards Committee (Technical Committees). The peer review
process in the reported bill is based partly on the time-tested re-
view method governing the academic community, a process wherein
technical experts offer comments intended to improve the quality
of a product. The bill takes advantage of the existing regulatory re-
view process conducted by OPS’s committees, committees com-
prised of government, public and industry experts on pipeline
transportation matters. S. 1505 permits the OPS committees the
option of making recommendations on the risk assessment iriforma-
tion submitted.
It is intended that this process will bring more rationality to fed-
eral pipeline safety standard setting and broaden participation by
requiring OPS to consider more carefully comments received from
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these bodies. The Committee expects that OPS will diligently assist
these committees in the conduct of this important function.
Since the performance of risk assessments on every rule may not
be justified, S. 1505 specifies four circumstances under which the
risk assessment and cost-benefit provisions do not apply. These in-
chide situations in which: (1) the standard is the result of a nego-
tiated rulemaking; (2) no significant opposition to the rule Is ex-
pressed during the public comment process; (3) a proposed rule is
endorsed by three-fourths of the Technical Committees; and (4) the
exemption for notice and public comment is invoked under the Ad-
minietrative Procedures Act.
In order for a meaningful analysis of the public poiicy benefits
of risk assessments to be made, the Congress will need to know
what they accomplished and whether the designed process was
workable. Therefore, the bill requires the Secretary to transmit a
report to Congress describing the implementation of the risk as-
sessment requirements and the extent to which the requirements
improved regulatory decision making. The report must be submit-
ted no later than March 31, 2000.
RISK MANAGEMENT DEMONSTRATION PROJECTS
The principle of risk management is well tested. It has been ex-
tensively studied by the academic community and successfully used
in a number of different businesses and industries. Chemical and
petrochemical companies have found the risk management process
to be more effective than relying solely on regulations. i Insurance
companies frequently view good risk management as an effective
loss prevention process.
Some pipeline companies already use risk management when de-
ciding in which safety measures to invest that go beyond current
safety standards In anticipation of Congressional action, OPS has
been developing and validatLng standards and measures to permit
the start of a safe and environmentally sound demonstration pro-
gram.
Over the past two years, a Government and industry partnership
has built a foundation of knowledge and professional understand-
ing for demonstrating risk management in pipeline transportation.
Working with State partners and industry, OPS formed risk as-
sessment quality teams (RAQTs) to design a new, collaborative reg-
ulatory framework as an alternative to specification-based regula-
tion. The designed approach would permit an operator to substitute
an individually-tailored risk management plan for the minimum
Federal standards that would otherwise apply.
The reported bill gives OPS the authority to take advantage of
this two-year investment and initiate risk management demonstra-
tion projects. The demonstration projects provision incorporates
principles set forth in a report by the Gas Risk Assessment Quality
Team entitled “Risk Management Within the Gas Pipeline Indus-
try”, and a similar report by the liquids team entitled “Risk Man-
agement Within the Liquid Pipeline Industry.”
See Natural Gai Pipeline Risk Menogement. Volume 11-Search of Literature Worldwide sri
Riek AasessmenUThsk Management (or Loss of Containment, Gas Research institute. October
i995
Under the program envisioned by the legislation, the Secretary
would seek voluntary participation by interstate natural gas and
hazardous liquid transmission operators in good standing to dern-
onstrate company-specific risk management plans. The Secretary
would complete a rulemaking that outlines the demonstration plan
elements and provides opportunities for full public participation in
the process. The formal risk management plans would be submit-
ted and approved by order of the Secretary. S. 1505 clearly requires
that the risk management demonstration plans meet or exceed the
overall level of safety that would be achieved with existing regu-
latory requirements. The Committee expects OPS inspectors to
monitor diligently the industry’s compliance with the OPS ap-
proved management plans.
In summary, the risk assessment and risk management provi-
sions of the reported bill rest on the foundations previously estab-
lished by OPS, industry, and academic communities. The bill builds
on initiatives undertaken at 01 ’S to focus its regulatory and pro-
gramrnatic agenda on the most important public safety and envi-
ronmental protection standards, as well as providing industry with
more flexibility to conduct their operations safely. The bill also pro-
vides the legislative framework to implement the results of more
than two years of planning by OPS and the risk assessment quality
teams seeking to promote safety and regulatory flexibility.
STATE PARTNERSHIPS
Current law authorizes the Federal government to reimburse
States for up to half the costs incurred in carrying out their respon-
sibilities for monitoring and enforcing national natural gas pipeline
safety standards. Although budget constraints preclude guarantee-
ing States a fifty percent cost reimbursement, the authorization
levels in S. 1505 are higher than those in pending House legisla-
tion.
OPS must work closely with and inform States about the devel-
opment of risk management demonstration plans. S. 1505 as re-
ported also gives DOT the discretion to assign responsibility to the
States for approval and administration of a risk management dem-
onstration project plan to the extent the affected pipeline facility is
an intrastate facility. The bill does not affect the relationship be-
tween the States and interstate pipeline operations.
UNUSUALLY SENSITIVE AREAS
Under section 60109 of title 49, U S. Code, as added by the Pipe-
line Safety Act of 1992, the Secretary is to describe through regula-
tion the definition of areas unusually sensitive to environmental
damage if there is a hazardous liquid pipeline accident The pur-
pose of the unusually sensitive area description is to define areas
within which pipe1ines rights of way will be subject to increased
testing and inspection This will ensure that every reasonable
measure is taken to prevent a spill and to develop contingency
plans pn how to respond in the event of an accident RSPA has held
several workshops attended by the public, environmental groups,
industry and government representatives to discuss the guiding
principles for determining which areas are unusually sensitive to
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environmental damage. While the final description is left to the
Secretary, Congressional guidance is crucial.
There is language in the bill to provide guidance to DOT. The
language makes clear the Secretary should focus on areas in which
permanent or long-term environmental damage is likely in the
event of a hazardous liquid pipeline accident. For example, such an
area would include intake locations for community water systems
and critical sole source aquifer protection areas. The bill language
provides a more comprehensive, but not exclusive, list of area
types.
INSTRUMENTED INTERNAL INSPECTION DEVICES
The 1994 recodification produced confusion as to the original leg-
islattve intention concerning the standards for instrumented inter-
nal inspection devices (commonly referred to as usmaj.t pigs”). The
Committee has worked to clarify this matter by returning the stat-
utory language to the language prior to recodification.
The Committee intends for DOT to have the authority to order
a pipeline to run a “smart pig” if circumstances justify such an
order. Devices like smart pigs are important safety tools. However,
the Committee does not intend to require a wholesale or extensive
retrofit of existing pipelines to accommodate specific internal in-
spection devices such as smart pigs.
ESTIMATED CoSTs
In accordance with paragraph 11(a) of rule XXVI of the Standing
Rules of the Senate and Section 403 of the Congressional Budget
Act of 1974, the Committee provides the following cost estimate,
prepared by the Congressional Budget Office:
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, DC, June 18, 1996.
Hon. LARRY PREsSLER,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has pre-
pared the enclosed cost estimate for S. 1505, the Accountable Pipe-
line Safety and Partnership Act of 1996.
Enacting S. 1505 would affect direct spending and receipts.
Therefore, pay-as-you-go procedures would apply to the bill.
If you wish further details on this estimate, we will be pleased
to provide them.
Sincerely,
Enclosure
JUNE E. O’NEILL, Director.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
1 Bill number: S. 1505.
2. Bill title: Accountable Pipeline Safety and Partnership Act of
1996
3 Bill status: As ordered reported by the Senate Committee on
Commerce, Science, and Transportation on June 6, 1996.
4. Bill purpose: S. 1505 would:
Authorize a total of $140 million to be appropriated for the
gas and hazardous liquid pipeline safety programs and the
pipeline safety grant program for fiscal years 1996 through
2000;
make changes to the pipeline safety program;
require the Secretary of Transportation to issue a report on
pipeline user fees;
establish a risk management demonstration project;
allow the Secretary of Transportation to make grants to and
enter into cooperative agreements with other agencies, state
and local governments, educational institutions or other enti-
ties to develop, improve, and promote one-call damage preven-
tion programs, research, risk assessment and mapping;
impose criminal penalties on individuals who do not report
damaged pipeline facilities to the appropriate authorities; and
impose cnrninal penalties on individuals who excavate and
dispose of’ solid waste on a pipeline right-of-way without au-
thorization.
5. Estimated cost to the Federal Government: Assuming appro-
priation of’ the entire amounts authorized, enacting S. 1505 would
increase federal outlays by $26 million over the 1997-2002 period.
That estimate Is the difference between gross discretionary spend-
ing of $140 million authorized by the bill, and an estimated $114
million in pipeline user fees that would be collected over the 1997—
2000 period authorized by S. 1505. Enacting S. 1505 would result
in such net federal spending because the authonzed amounts of
gross spending are higher than the amounts of’ authorized fees for
three of the next four fiscal years. While S 1505 also authorizes
funding for the current fiscal year, CBO assumes the bill would be
enacted too late in the year to have any impact on 1996 spending
Enacting S. 1505 would limit the amount that may be collected
in user fees for pipeline safety. Under current law, these user fees
are mandatory and recorded as offsetting receipts. CBO estimates
that fees will total about $30 million in 1996 and would continue
at that level under a simple extension of current law. Because the
bill would set limits on fees to be collected from 1997 through 1999
at amounts below $30 million a year, it would reduce offsetting re-
ceipts, thereby causing an increase in direct spending. We estimate
that this increase in direct spending would total $6 million over the
1997—1999 period. The bill’s proposed limitation of $30 million for
fiscal year 2000 is equal to our estimate of fees under current law
for that year.
The remaining $20 million in increased federal outlays is shown
as spending subject to appropriations. This amount represents au-
thorized increases in spending above the $30 million level that we
prqject would be offset by pipeline safety fees under current law
Finally, the bill could also affect revenues by increasing criminal
fines, but CBO estimates that any such increase would be less than
$500,00Q a year. If criminal fines are collected, they would be de-
posited in the Crime Victims Fund and spent the following year.
For purposes of this estimate, CBO assumes that the full
amounts authorized to be appropriated for pipeline safety activities
would be appropriated for each fiscal year. Outlay estimates are
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9
based on historical spending rates. The following table summarizes
the estimated budgetary effects of S. 1505.
(i friiil u v ad iv, it
itil 1315 2000 2001 2002
CIWIGES iN SPtIWING 5J3JICT TO AP?ROPRIAflONS
(utimited net ;uthonitt,ofl’ - .. 4 5 5 6 — —
(atimited not outlays 2 4 5 5 3 1
CIWIG6S IN DIRECT END196 AltO REVEMIES
Direct spesdul
(oluruled budget authonty - - —- - 3 2 1 — — —
(stuiiated outlays - 3 2 1 — — —
Revewes
Estumiled revenues -. - — (3) (3) (3) (1) (1) (3)
Ibi joints ahoy ira 5 . difl nc ,a biN,, II. bsWi Ialbiired lu , 5ol haiti l ot ,sit ii ,, sot 130 , ,au. utd Is 5. ,thm,tid
i at it Windma 10 ,1 itd hi ittut b sr outir a emit. edaireal it cried liv
‘5. ia , ,00I }osr ii , Iti . lesion kNot IN. hir, .ilhog,d hait d Iota (fr m *27 miElir t, $30 rOy) s,d 0a .stjmlt,
it ho IC II1CNI 1230 miNI vdhiat sop s od aued hmdaImna
Luau this 1500 000
The costs of this bill fall within budget function 400.
6. Pay-as-you-go considerations: Section 252 of the Balanced
Budget and Emergency Deficit Control Act of 1985 sets up pay-as-
you-go procedures for legislation affecting direct spending or re-
ceipts through 1998. Because S. 1505 would reduce offsetting re-
ceipts from pipeline safety fees and could increase penalty collec-
tions pay-as-you-go procedures would apply to the bill. The pay-as-
you-go impact of the bill is as follows:
(Op frg ,I par a miNi it 9$flviI
1996
1991
131$
Chinie in outlays -
0
3
2
Change in IOCO 1$t 1 -
0
0
0
7. Estimated impact on State, local, and tribal governments:
Intergovernmental Mandates. S. 1505 would impose mandates, as
defined by Public Law 104—4, on approximately 1,000 local govern-
ments with municipal gas operations. The bill would require opera-
tors of pipeline facilities to report damage to the approximately au-
thorities promptly and to include information on the use of the one-
call notification system in their public education programs. It
would also prohibit the dumping of solid waste within pipeline
rightB-o f-way. Based on information from the Department of Trans-
port.ation and the American Public Gas Association, CBO estimates
that the direct costs of complying with these new requirements
would be negligible and, thus, well below the $50 million annual
threshold established in Public Law 104—4.
Other Impacts on State, Local, and Tribal Governments. The
overall effect of S. 1505 would be to ease requirements on owners
and operators of pipelines and pipeline facilities, induding munici-
pal gas operators. The bill would authorize the appropriation of ap-
proximately $71 million through fiscal year 2000 for the state pipe-
line safety grant program. The bill would also give the Secretary
of Transportation new authority to make grants to and enter into
cooperative agreements with state, local, and tribal governments to
carry out other pipeline safety programs, research, risk assess-
ment, and. mapping. in addition, the bill would require the Sec-
retary to make certain land use recommendations available to state
officials and would provide for states to take over aspects of some
risk management demonstration projects. The bill would also elimi-
nate the criminal penalties associated with the establishment of
the one-call notification system required of each state.
8. Estimated impact on the private sector S. 1505 would impose
new private-sector mandates not exceeding the annual threshold,
as defined in Public Law 104—4. Based on information provided by
the Department of Transportation and industry representatives,
CBO estimates thst these provisions would not substantially affect
costs to the private sector.
The damage reporting requirement imposed by section 14 and
the prohibition against dumping in pipeline rights-of-way imposed
by section 18 would impose private-sector mandates with rio direct
compliance costs as defined in Public Law 104—4 In addition, the
expansion of the public education programs to include the use of
one-call systems as required by section 11 would impose a new pri-
vate-sector mandate, with negligible direct costs. Overall, other sec-
tions of S. 1505 would decrease costs imposed on the private sector.
9. Previous CBO estimate: On May 25, 1995, CBO transmitted
a cost estimate on H.R. 1323, the Pipeline Safety Act of 1995, as
ordered reported by the House Committee on Commerce In addi-
tion, CBO transmitted a cost estimate on April 7, 1995, on H R
1323, as ordered reported by the House Committee on Transpor-
tation and Infrastructure. The House bills differ from S. 1505 in
that they would not result in any net change in new federal spend-
ing because the pipeline user fees would continue to be equal to the
authorized spending for both versions of H.R 1323. In addition, S.
1505 authorizes different levels of spending than the two versions
of }I.R. 1323.
10. Estimate prepared by: Federal Cost Estimate—Clare Doherty
and Stephanie Weiner, for revenues; State and local government
impact—Karen McVey; Private sector impact—Amy Downs.
11. Estimate approved by: Robert A. Sunshine (for Paul N. Van
de Water, Assistant Director for Budget Analysis).
REGULATORY IMPACT STATEMENT
In accordance with paragraph 11(b) of rule )OCVI of the Standing
Rules of the Senate, the Committee provides the following evalua-
tion of the regulatory impact of the Legislation, as reported
S. 1505, as reported, reauthorizes appropriations for Natural Gas
and Hazardous Liquid Pipeline Safety programs and activities. The
bill does not affect existing pipeline safety standard regulations,
but does require OPS to include risk assessments within future in-
dividual i-ulemakings. The bill also authorizes OPS to approve
plans submitted by operators to substitute an individually-tailored
risk management plan for existing minimum Federal standards
The bill will not subject any individuals or businesses affected by
the bill to additional regulation and will not increase the paper-
work requirement for such individuals or businesses. This legisla-
tion also has no impact on the personal privacy of individuals
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10
11
SECTION-BY-SECTION ANALYsIS
Section 1. Short title
Section 1 cites the short title of the bill as the “Accountable Pipe-
line Safety and Partnership Act of 1996.”
Section 2. References
Section 2 provides that amendments and references in the bill
are to sections and provisions in Title 49, U.S. Code.
Section 3. Definitions
The definitions of “transporting natural gas” and “gathering line”
are chan ed to reflect the law prior to the 1994 recodification. The
terms “risk management”, “risk management plan”, and “Sec-
retary” are defined. Section 3 also provides that the Secretary shall
define “regulated gathering line”, but only if it is appropriate to do
so.
Section 4. General authority
Section 4 (a) applies minimum safety standards to owners and
operators of pipeline facilities and requires that operators of facili-
ties must be qualified, but not certified, and must be able to recog-
nize and react appropriately to abnormal operating conditions that
may indicate dangerous situations or conditions exceeding design
limits.
Section 4(b) broadens section 60102 to require the performance
of risk assessments and cost-benefit analyses when prescribing new
minimum safety standards under sections 60101 (b) [ gathering
lines), 60103 [ liquefied natural gas pipeline facility standards],
60108 [ inspection and maintenance], 60109 [ high-density popu-
lation areas and environmentally sensitive areas), 60110 [ excess
flow valves], or 60113 [ customer-owned natural gas service lines].
The section also requires the Secretary to consider public com-
ments, as well as the comments and recommendations of the Tech-
nical Committees, when prescribing new standards.
Section 4 (b) also requires the risk assessments to identify regu-
latory and nonregulatory options the Secretary considered, identify
the costs and benefits associated with the proposed st.ar.dard, and
include an explanation of the reasons for selecting one option over
others identified. Section 4(b) further requires the Secretary to sub-
mit risk assessment information for review to one or both of the
Technical Committees, as appropriate. The submitted risk assess-
ment information shall be available to the public. The Secretary
must provide a written response to all significant peer review com-
ments and recommended alternatives, and may revise the risk as-
sessment and the proposed standard before promulgating the final
standard.
Section 4(b) provides that except where otherwise required by
statute, the Secretary can propose or issue standards only upon a
reasoned determination that the benefits of the intended standard
justify its costs.
Section 4(b) provides exemptions from the risk assessment provi-
sions. The exemptions cover a standard that is the product of a ne-
gotiated rulemaking, or other rulemaking including the adoption of
industry standards that receives no significant adverse comment
within 60 days of the Federal Register notice. Risk assessment re-
quirements also do not apply when the Secretary waives the re-
quirement based on a recommendation of three-fourths of the mem-
bers of one or both of the Technical Committees, as applicable. Fi-
nally, the risk assessment provisions do not apply when the Sec-
retary finds, pursuant to section 553(bX3)(B) of title 5, U.S. Code,
that notice and public comment procedures are not required.
Section 4(b) requires the Secretary to send a report to Congress
on the application of the bill’s provisions and how their application
improved regulatory decision making. The report is to be submitted
no later than March 31, 2000.
Section 4(c) makes technical changes to facility operation infor-
mation standards. Section 4(d) moves the authority for the Sec-
retary to collect information regarding gathering facilities to sec-
tion 60117 of title 49, U.S. Code, for better conformity in the pipe-
line safety law. Section 4(e) amends section 60102(e) to return the
statutory language on instrumented internal inspection devices to
the original language that existed prior to the 1994 recodification.
Section 4(f) adds a new section 60 102(1) to direct the Secretary to
update incorporated industry standards, as appropriate.
Section 5. RiSk management
Section 5 adds a new section 60126 to title 49, U.S. Code, to au-
thorize risk management demonstration projects. In carrying out a
risk management demonstration project, the Secretary shall invite
owners and operators of pipelines to submit pipeline safety plans
tailored to a particular pipeline or segment of pipeline. The bill re-
quires that the plans achieve an equivalent or greater level of safe-
ty than would otherwise be achieved through compliance with ex-
isting standards. Under the bill, the Secretary by order may ex-
empt participating pipelines from the applicability of some or all
standards that would otherwise apply, and shall exempt them from
any new standard promulgated during participation in the dem-
onstration project. The Committee does not intend for the risk
management plans to be utilized to avoid compliance, but rather
the plans should be used to maintain and improve safety in a more
effective and efficient manner. The bill allows the Secretary to re-
voke any exemption granted for noncompliance with the terms and
conditions of a risk management plan approved by order. Nothing
In S. 1505 diminishes or modifies the Secretary’s authority to act
in case of an emergency.
The section also allows the Secretary to provide for consultation
by a State that has a state certification (under section 60105) in
effect. Under the bill language, the Secretary can make an arrange-
ment with a section 60105 certificated state, to the extent that the
project comprises an intrastate natural gas pipeline or an intra-
state hazardous liquid pipeline facility, to carry out the duties of
the Secretary for approval and administration of the project The
section. requires the Secretary to submit a report to Congress evalu-
ating the risk management demonstration projects and rec-
ommending whether they should be made permanent. The report
must be submitted no later than March 31, 2000.
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13
Section 6. Inspection and maintenance
This section strikes the requirement in section 60108 of title 49,
US. Code, that the Secretary inspect, every two years. the inspec-
tion and rnaint.enance plans each pipeline operator is required to
maintain. Instead, the Secretary may determine the frequency of
inspections. This section also clarifies that “waters” where under-
water pipelines are subject to inspections means areas where a
substantial likelihood of commercial navigation exists.
Section 7. High-density population areas and environmen tally sen-
sitive areas
Section 7(a) makes the same clarifying change regarding “wa-
ters” as in Section 6 above. Section 7(b) provides clearer guidance
to the Secretary in describing areas of unusual environmental sen-
sitwity. It makes clear that the Secretary should focus on areas in
which permanent or long-term environmental damage is likely and
provides a list of more comprehensive, but not exclusive, factors to
consider.
Section 8. Excess flow values
Section 8 makes several changes in section 60110 of title 49, U.S.
Code. Section 8(1) restores the words “if any” which were inadvert-
ently deleted during the 1994 recodification. The section also con-
tains provisions providing that the notification from natural gas op.
erators to customers having lines in which excess flow valves are
not required, but can be installed, shall include the costs associated
with maintenance and replacement as well as the costs of installa-
tion. The section also provides that the Secretary may adopt indus-
try accepted performance standards for excess flow valves.
Section 9. Customer-owned natural gas service lines
This section removes the requirement in section 60113 of title 49,
U S Code, that the Secretary take actions to promote adoption of
measures to improve the safety of customer-owned natural gas
service lines.
Section 10. Technical Safety Standards Committees
This section provides that the Technical Committees shall serve
as peer review committees for purposes of all pipeline safety stand-
ards which must undergo risk assessment and peer review The
membership of the committees is modified so that each committee
is composed of 5 individuals each from government, industry, and
the public, thereby increasing industry representatives from 4 to 5
and reducing public representatives from 6 to 5. The section re-
quires that at least one individual on each committee must have
experience in risk assessment and cost-benefit analysis All risk as-
sessment information and other analyses supporting proposed
standards must be submitted to the committees for review. Also,
the section raises the number of meetings that can be held by the
committees from two, to up to four a year.
Section ii. Public education programs
This section makes a technical correction to section 60116. The
section also broadens public education programs carried out by nat-
ural gas owners and operators to include the use of one-call sys-
tems prior to excavation to prevent pipeline damage.
Section 12. Administrative
Section 12(1) retains the Secretary’s authority to request infor-
mation from gathering line operators. Under the section’s language,
the information requested must be pertinent to the Secretary’s abil-
ity to determine what additional gathering lines should be regu-
lated.
Section 12(2) authorizes the Secretary to enter into grants, coop-
erative agreements, and other transactions with any person, agen-
cy, State and local government, educational institution, or other en-
tity. Further, the section permits the Secretary to provide funding
to one-call programs not operated by States.
Section 13. Compliance
This section allows the Secretary to issue orders directing compli-
ance with applicable safety standards, with an order issued under
section 60126 [ the Risk Management Demonstration Projects] or
with a prescribed regulation. The order issued under this section
must state clearly the action a person must take to comply.
Section 14. Damage reporting
This section makes it a federal crime to knowingly and willfully
damage a pipeline facility and not promptly report the damage to
the pipeline operator and other appropriate authorities.
Section 15. Biennial reports
This section requires reports every two years to Congress where-
as existing law (section 60124) mandates that an annual report be
submitted.
Section 16. Population encroachment
This section requires the Secretary to make available to State
pipeline officials the land use recommendations from the Transpor-
tation Research Board’s special report entitled “Pipelines and Pub-
lic Safety.” This section also directs the Secretary to evaluate those
recommendations, determine to what extent they are being imple-
mented, consider ways to improve their implementation and con-
sider other initiatives to improve the awareness of local planning
and zoning entities regarding population encroachment in proxim-
ity to rights-of-way of interstate pipeline facilities.
Section 17. User fees
This section requires the Secretary to analyze whether the cur-
rent methodology for allocating user fees among pipelines is an ac-
curate measure of the resources used to regulate pipeline safety.
This provision is intended to ensure that fees charged are propor-
tional to services rendered. The section requires the Secretary, in
preparing the report, to consider a wide range of assessment fac-
tors and suggestions and comments from the public.
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14
Section 18. Dumping within pipeline rights-of-way
This section prohibits unauthorized dumping in pipeline rights-
of-way. This section also allows the Secretary to seek the civil or
criminal penalties that are already provided for in the pipeline
safety law for rights-of-way unauthorized dumping.
Section 19. Prevention of damage to pipeline facilities
This section allows the Secretary to undertake promotional ac-
tivities that help prevent damage to pipeline facilities.
Section 20. Technical corrections
Various technical corrections to sections of Chapter 601 of title
49 are made by tkus section.
Sectwn 21. Authorization of appropriations
Gas and hazardous liquid activities are authorized at the follow-
ing levels and in the following manner:
• $19,448,000 for fiscal year 1996.
• $20,028,000 for fiscal year 1997, of which $14,600,000 is to be
derived from user fees collected for fiscal year 1.997.
• $20,729,000 for fiscal year 1998, of which $15,100,000 is to be
derived from user fees collected for fiscal year 1996.
• $21,442,000 for fiscal year 1999, of which $15,700,000 is to be
derived from user fees collected for fiscal year 1999.
• $22,194,000 for fiscal year 2000, of which $16,300,000 is to be
derived from user fees collected for fiscal year 2000.
Pipeline State Safety Grants are authorized at the following lev-
els and in the following manner
• $12,000,000 for fiscal year 1996.
• $14,000,000 for fiscal year 1997, of which $12,500,000 is to be
denved from user fees collected for fiscal year 1997.
• $14,490,000 for fiscal year 1998, of which $12,900,000 is to be
derived from user fees collected for fiscal year 1998.
o $15,000,000 for fiscal year 1999, of which $13,300,000 is to be
derived from user fees collected for fiscal year 1999.
• $15,524,000 for fiscal year 2000, of which $13,700,000 is to be
denved from user fees collected for fiscal year 2000.
The Comm ittee by this section expects the total new user fee col-
lections for the pipeline activities authorized under section 21 will
be limited to $27,100,000 in fiscal year 1997, $28,000,000 in fiscal
year 1998, $29,000,000 in fiscal year 1999, and $30,000,000 in fis-
cal year 2000 The Committee further intends that the differences
between the funds authorized and the new user fee collections au-
thorized will come from sources other than new user fee collections.
These sources include a planned and reasonable draw down of the
user fees collected during fiscal year 1985 and 1987 and currently
held in reserve Another source is additional funding from the Oil
Spill Liability Trust Fund which covers OPS responsibilities under
the Oil Pollution Act
CwtNGES IN Ex ISTING LAW
In compliance with paragraph 12 of rule XXV I of the Standing
Rules of the Senate, changes in existing law made by the bill, as
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104Th CONGREsS 1 1 RErr. 104—110
let Session J HOUSE OF REPRESENTATIVES j part 1
PIPELINE SAFETY ACT OF 1995
MAY 1, 199&—Onlered to be printed
Mr. Smjs’rER, from the Committee on Transportation and
Infrastructure, submitted the following
REPORT
together with
ADDITIONAL VIEWS
[ To accompany KR. 13231
[ Including cost estimate of the Congressional Budget Officel
The Committee on Transportation and Infrastructure, to whom
was referred the bill (HR. 1323) to reduce risk to public safety and
the environment associated with pipeline transportation of natural
gas and hazardous liquids, and for other purposes, having consid-
ered the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu thereof
the following:
SECflON 1. SHORT ITT1S.
This Act may be dted as the “Pipeline Safety Act of 1995”
SEC. 2. REFERENCES
(a) REFERENCES TO TimE 49.—Except as otherwise expressly provided, whenever
in this Act an amendment or repeal Is expressed In terms of an amendment to, or
repeal of, a section or other provision, the reference shall be considered to be made
to a section or other provision of tItle 49, UnIted States Code.
(b) REFERENCES TO THE SECRETARY OF TRANSP0RTATEON.—Except as otherwise ex-
pressly provided, any reference In this Act to the Secretary ’ Is a reference to the
Secretary of Transportat ion.
SEC. 3. ANALYSES OF RISK RED*JCUON BENEFITS AND COSTS
(a) IN GEr rR.a.—Chapter 601 Is amended by adding at the end the following new
section:
99-006
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2
3
‘460126. AnalysIs of risk reduction benefits and costs
“(a) REQUIRZMEIIT,—NO final significant standard or regulatory reqwreinent is-
sued under section 60101(b) , 60102, 60103, 60108, 60109, 60110, or 60113 shall be
promulgated unless the Secretary of Transportation—
“(1) certifies that the Secretary has conducted an analysis of risk reduction
benefits and costs that is based on objective and unbiased scientific and eco-
nomic evaluations of all significant and relevant Information and risk assess-
ments provided to the Department of Transportation by Interested parties or
generated by the Department itself relating to the costs, risks, and risk reduc-
tion and other benefits addressed by the standard or requlrement
“(2) certifies that the incremental nsk reduction or other benefits of any op-
tion chosen will be likely to justify, and be reasonably related to, the Incremen-
tal costs incurred by State, local, and tribal governments end the Federal Coy-
eminent and, other public and prwate citizens, and
“(3) explains why any other options identified or considered by the Secretary
were found either—
“(A) to be less coat-effective at achieving a substantially equivalent reduc-
tion in risk; or
“(B) to provide less fienbility to State, local, or tribal governments or reg-
ulated entities In achieving the otherwise app ilcable objectives of the stand-
ant or requirement, along with a brief explanation ef whj other options
that were identified or considered by the Secretary were found to be less
cost-effective or less flexible.
“(b) Ewains OF A IcALY5IL—An analysis of risk reduction benefits or costs pre-
pared by the Secretary for a significant standard or regulatory requirement, at a
nunimuin, shall—
“(1) identify the various regulatory and nonregulatory options that were con-
sidered,
“(2) analyze the incremental costs and incremental risk reduction or other
benefits associated with each option identified or considered by the Secretary,
“(3) provide any technical data or other information, including the underlying
assumvtlons, upon which the standard or requirement is based; and
“(4) include a statement that places In context the nature and magnitude of
the risks to be addressed and the residual risks likely to remain for each option
Identified or considered
Costs and benefits shell be quantified to the extent feasible and appropriate and
may otherwise be qualitatively described
“ Cc) Risk AsszssMcwr DOCUMENr S —A risk assessment document prepared by the
Secretary for a significant standard or regulatory requn-ement shall, at a minimum
and to the extent feasible—
“(1) provide the best estimate for the Impacts addressed and a statement of
the reasonable range of scientific uncertainties;
“(2) include a statement of any significant substitution risks to public safety
or the environment, and
“(3) contain a statement that places In context the nature and magnitude of
naks to public safety or the environment
“Cd) STATEMENTs —the statements referred to in subsections (bX4) and (cX3) of
this sect ion shall each provide, to the extent feasible, comparisons with estimates
of greater, lesser, and substantially equivalent naka that are familiar to and rou-
tinely encountered by the general public, as well as other riaka, and, where appro-
priate and meaningful, comparisons of those risks with other similar risks regulated
by the Department resulting from comparable activities. In making auth compari-
sons, the Secretary should consider relevant distinctions among nsks, such ae the
voluntary or involuntary nature of risks, and the preventability or nonpreventsbility
of risks
“Ce) REVIEW BY ST#,NDAJWS COMMrITEE —
“(1) PEER atvmw.—For any significsnt standard or regulatory requirement,
the Secretary shall submit any risk assessment documents and cost-benefit
analyses (prepared or received by the Secretary) for review by the Technical
Pipeline Safety Standards Committee, the Hazardous Liquid Pipeline Safety
Standards Committee, or beth, as appropnats, and make them available to the
public The Technical Pipeline Safety Standards Committee and the Hazardous
Liquid Pipeline Safety Standards Committee shall function as peer review pan-
els and shall prepare reports, including any recommended options for any sig-
iuficant standard or regulatory requirement and an evaluation of the technical
scientific merit of the data and scientific method used for a risk assessment doc-
ument or cost-benefit analysis The Committee or Cornnuttees shall submit such
reports to the Secretary within 90 days alter the date of receipt of the docu-
ments end analyses from the Secretary.
“(2) Raspop,’ss os sscar y —The Secretary shall review the report snd rec-
omniendaflons of the Technical Pipeline Safety Standards Committee, the Tech-
nical Hazardous Liquids Pipeline Safety Standarde Committee, or beth, as the
case may be Within 90 days sl Ier receipt of audi report, the Secretary—.
“ CA) shall aubmit to the Committee or Committees a smtten response to
all peer review comments and recommended options; and
“(B) may revise the risk assessment document or cost-benefit analysis
prior to determining whether the proposed significant atandard or regu-
latory requirement should be promuiga
“(I ) EMEROENCi —In the case of an emergency, the Secretary may suspend the
application of this section for the duration of the emergency.
(g) Rapog’i- —Not later than March 31, 1999, the Secretary shall transmit to Con-
gress a report on the application of the principles of the analyses of risk reduction
benefits and costs and nak assessment to this chapter end their effect on pipeline
safety.”,
(b) CoNs-on iNo AMENDMEN-r,—The analysis for chapter 601 is amended by add-
ing at the end the following-
‘tOi2& Ansiysia & risk rsductlcn bensilia sad acia,
60i27 Risk msnaeenai -
8EV, 4, DEFlr4mop4s.
(a) IN GENERAI.,—Sectjon 60101(a) Ia amended—
(1) by striking subparagraph (B) of paragraph (21) and inserting the follow-
ing:
“(B) does not include the gathering of gas, other than gathenng through
regulated gathering lines, In those rural locations that are outside the lim-
its of any incorporated or unincorporated city, town, or village, or any other
designated residential or commercial ares (such as a aubdivision, business,
shopping center, or community development) or any aimilar populated area
which the Secretary of Transportation may define as a nonrural area; but
“(C) includes the movement of gas through regulated gathering lines.”;
and
(2) by adding at the end the following’
“(231 ‘best estimate’ means a aclentifically appropriate estimate which is
based, to the extent feasible, on one of the following:
“(A) Central estimates of risk using the most plausible assumptions
“(B) An approach which combines multiple estimates based on different
scenarios and weighs the probability of each scenario
“(C) Any other methodology designed to provide the most unbiased rep-
resentation of the most plausible level of nak, given the current scientific
Information available to the Secretary.
“(24) ‘benefits’ means the reasonably Identifiable significant health, safety, en-
vlronmentsj, sodal, and economic benefits that are expected to result directly
or Indirectly from Implementation of a atandard, regulatory requirement, or op .
lion,
“(25) ‘costs’ mesna the direct and Indirect costs to the United States Govern-
men to State, local, and tribal governmen , and to the private sector, wage
earners, consumers, and the economy of Implementing and complying with a
standard, regulatory requirement, or option,
“(26) ‘risk assessment document’ means a document containing—
“(A) en explanation of how hazards associated with a substance, activity,
or condition have been Identified, quantified and assessed, and
“(5) a statement by the preparer of the document accepting the findings
of the document
“(27) ‘risk management’ means the systematic application, by the owner or op-
erstorofe pipeline facility, of management policies, procedur , finite resources,
and practices to the tasks of analyzing, assessing, and controlling risk In order
to protect employees, the general public, the environment, and pIpeline facili-
ties,
“(28) ‘risk manaqement plan’ means a management plan utilized by a gas or
hazardous liquid pipeline facility owner or operator that encompasses risk man-
agement
129) ‘aigruficant standard or regulatory requirement’ means any safety or en-
virenmentaj atsndard or regulatory requirement, or closely related group of
safety or ennronmen standards or regulatory requirements, that is likely to
result in annualized compliance costa In excess of $25,000,000,
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4
5
“(36) ‘substitution risk’ means a potential risk to public safety or the environ-
nient from a significant standard, regulatoiy requirement, or option designed to
decrease other nsks”.
(b) GATh iiuNO Ln Es —Section 60101(bX2) is amended by inserting”, if appro-
priate,” after “Secretary” the first place it appears
SEC. 5. GENERAL AUTHORiTY.
(a) MImMUM S*csn’Y STAImARDS.—Section 60102(a) Is amended—
(I) by striking “(aX 1)” and inserting “(ar;
(2) by striking paragraph (2),
(3) by redesignating subparagrapha (A), (B), and
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6
(2) in subsection (bX2) by striking the second sentence;
(3) in the heading to subsection (c) by striking “NAVIGABL.E WATERS” and In-
set-ting “OTHER WATERS”, and
(4) by striking clause Cu) of subsection (cX2XA) and inserting the following
“(ii) any other pipeline facility crossing under, over, or through waters where
a substantial likelihood of commercial navigation exists if the Secretary decides
that the location of the facility In those waters could pose a hazard to naviga-
tion or public safety.”
SEC. 8. HiGR-DENSt ’r POPULATION AREAS AND ENVIRONMENTALLY SENSmVE AREAS.
(a) IDEOmFICATI0N —Section 60109(aX1XBXI) is amended by striking a navigable
waterway (as the Secretary defines by regulation)” and inserting “waters where a
substantial likelihood of commercial navigation exista”.
(b) UNUSUALLY SENSrTIVE AREAS —Section 60109(b) I a amended by striking psi-a-
graph (1) and insertln the following:
“(1) intake locations for commumty water systems,”.
SEC. 9. EXCESS FLOW VALUES.
Section 60110 Is amended—
(1) in subsection (b) by inserting ”, if any,” after “circumstances”;
(2) In subsection (bX4) by insertIng’, operating, and maintaining” after “cost
of Installing”,
(3) in subsection (cX1XC) by inserting”, maintenance, and replacement” after
“installation”, and
(4) in subsection (e) by inserting after the first sentence the following: “The
Secretary may adopt Industry accepted performance standards in order to com-
ply with this requirement.”.
SEC. to CUSTOMER.OWNXD NAT )RAL GAS SSRVICE LINES.
Section 60113 is amended—
(1) by striking “(a) MAINTENANCE lNrORMATION —“; and
(2) by striking subsection (b)
SEC. ii Or4E .CALL NOTIFICATION SYSTEMS.
(a) ApPUCATION.—Sectlon 60114(a) is amended—
(1) in paragraph (1) by striking “the system apply to”
(2) in paragraph U) by inserting before the period “be covered by a System”;
(3) in each of paragraphs (1), (2) (3), (6), (7), (8), and (9) by striking “a” the
first place it appears and Inserting A”,
(4) in paragraph (4) by striking “qualifications” and inserting “Qualifications”;
and
(5) in paragraph (5) by striking ‘procedures” and inserting ‘Procedures”.
(b) SAr crioNs —Section 60114(aX9) is further amended by striking “60120, 60122,
and 60123” and inserting “60120 and 60122”.
SEC 12. TECHNICAL SAFETY STANDARDS COMMITTEES.
(a) PEr.R REVIEW —Section 60115(a) is amended by adding at the end the follow-
ing “The Committees shall serve as peer review committees for carrying out this
chapter Peer reviews conducted by the Committees shall be treated for purposes of
all Federal laws relating to risk assessment and peer review (including lawe p-
proved after the date of the enactment of the Pipeline Safety Act of 1095) as meet-
ing any peer review requirements of such laws.”.
Ib) COMPOSITION AND APPO 1NTMENT.—SectiOn 60115(b) is amended—
(1) in paragraph (1) by inserting “or risk management” before the period at
the end of the last sentence;
(2) In paragraph (2) by inserting “er risk management” before the period at
the end of the last sentence;
(3) in paragraph (3XB) by striking “4” and inserting “5’;
(4) In paragraph (3XC) by striking “6” and inserting “5”;
(5) in paragraph (4XB) by adding at the end the following: “At least I of the
individuals selected for each committee under paragraph (3XB) must have edu-
cation, background or experience in nsk assessment and cost-benefit analysis.
The Secretary shall consult with the national organizations representing the
owners and operators of pipeline facilities before selecting Individuals under
paragraph (3kB)”; and
(6) In paragraph (4XC) by Inserting after the first sentence the following: ‘At
least 1 of the Individuals selected for each committee under paragraph (3XC)
must have education, background, or experience in risk assessment and cost-
benefit analysis.”.
Cc) COMMITTEE REpolrrs —Section 60115(c) is amended—
7
(I) by Inserting “or regulatory requirement” after ‘standard” each place Itap-
pears in paragraphs (1), (2), and (3);
(2) in paragraph (IXA) by Inserting after “gas pipeline facilities” the follow1ng
“,lncludong the risk assessment document, coat-benefit, and other analyses sup-
porting each proposed standard or regulatory requirement”;
(3) In paragraph (1kB) by Inserting after Thaaaxdous liquid pipeline facilities”
the following “, including the risk assessment document, cost-benefit, and other
analyses supporting each proposed standard or regulatory requirement”, and
(4) In paragraph (2)—
(A) by Inserting “and supporting analyses’ before the first comma In the
first sentence;
(B) by Inserting “and submit to the Secretary” after “prepare” In the first
sentence;
(C) by Inserting “cost effectiveness,” alter “reasonableness,” in the first
sentence,
(D) by Inserting “together with recommended actions” before the period
at the end of the first sentence; and
(B) by inserting “any recommended actions and” after “Including” in the
second sentence
(d) PROPOSED COMMITTES Si’ ew,iyws i n REcuLAi’oJty REQUIREMENTE —Section
60115(dXl) is amended by Inserting “or regulatory requirement” after “standard”
each place It appears;
(e) MEETiNGS —Section 60115(e) Is amended by striking ‘twice” and InsertIng “4
times”.
(I’) EXPENSES —Section 60115(0 is amended—
(1) In the subsection heading by striking “PAY AND”,
(2) by striking the first two sentences, and
(3) by Inserting “of a committee under thia section” after “A member”.
SEC. IS. Puauc EDUCATION PROCRAM 5.
Section 60116 Ia amended—
(1) by striking “person transporting gas” and Inserting “owner or operator of
a gas pipeline facility”;
(2) by inserton, “the use ol’ damage prevention (‘one-call’) systems prior to ex-
cavation,” after educate the public on ; and
(3) by inserting a comma after “gas leaks”.
SEC. IL ADMrNIFI-RA’TTVE.
Section 60117 Is amended by adding at the end the following.
“(k) Airrisosti’i-y poa COOPERATIVE AGREEMENTS —To can out this chapter, the
Secretary may enter into grants, cooperative agreements, and other transactions
with any person, agency, or instrumentality of the United States, any umt of State
or local government, any educational Institution, and any other entity to further the
objectives of this chapter Such objectives include, but are not limited to, the devel-
opment, Improvement, and promotion of one.call damage prevention programs, re-
search, risk assessment, and mappIng.”.
SEC. IS. COMPUANCE AND WAIVERS.
SectIon 60118 is amended by adding at the end the following:
“Ce) COMPLIANCE WiTh RISK MANAGEMENT Pz jcs.—.Owners and operators that
are participating in the demonstration project under section 60127 shall be consid-
ered to be in compliance with any prescribed safety standard or regulatory require-
ment that Is covered by an approved plan under sectIon 60127.”.
SEC. ze. DAMAGE REPORTING.
Section 60123(dX2) Is amended—
(I) by striking “or” at the end of subparagraph (A),
(2) by redesipiating subparagraph (B)a subparagraph (C), and
(3) by Inserting alter subparagraph (A) the following:
“(B) a pipeline facility and does not report the damage promptly to the
operator of the pipeline facility and other appropriate authorities; or”
SEC. 17. ANNUAL REPORTS.
Section 60124 and the item relating to such section in the analysis for chapter
601 are repealed.
SEC. Ia POPULATION ENCROACHMENT.
(a) IN GENERAL—Chapter 601 is amended by inserting after section 60123 the fol.
lowing new section.
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9
“ 6OlZ4. Population encroachment
“(a) LAND USE RECOMMSNDAI1ONS —The Secretary of Transportation she]] make
available to an appropriate offlcial of each State, as determined by the Secretary,
the land use recommendations of the Transportation Research Board’s Special Re-
port 219, entitled Pipelines and Public Safety’.
“(b) EvAWA ’rloN.—Tho Secretary shall evaluate the recommendations in the re-
port referred to in subsection (a), determine to what extent the recommendations
are being Implemented, consider ways to improve Implementation of the rec-
ommendations, and consider other initiatives to further improve awareness of local
planning and zoning entitles regarding t sues Involved with population encroach-
ment in proximity to the rights-of-ways of any interstate gas pipeline facility or
interstate hazardous liquid pipeline facility.”.
(b) Cor ronsnNc A m.ecirr —The analysis for chapter 601 is amended by in.
serting after the item relating to section 60123 the foUowing
‘ Wi24 ?opjiauoo ena, ciun,nL
SEC. is. TECHNICAL CORRECtiONS.
(a) SEcTION 60105.—The heading to section 60105 is amended by inserting “pipe-
line safety program” after “State”
(b) SECTION 60106 —The heading to section 60106 is amended by inserting “pipe-
line safety” alter “State”.
(C) SECTION 60107 —The heading to section 60107 is amended by inserting “pipe-
line safety” after “State’
(d) CHAPTER Ar.i . ’i.xsis —The analysts for chapter 801 is amended—
(1) in the item relating to section 60105 by Inserting “pipeline safety pro-
gram” after “State”,
(2) In the item relating to section 60106 by inserting “pipeline safety” after
“State”, and
(3) in the item relating to section 60107 by inserting “pipeline safety” after
“State”
SEC 20 AUTIIOIUZATIONS OF APPROPIUATIO ’ .
(a) GAS —Section 60125(a) is amended by adding at the end the foUowing
“(4) $7,866,000 for fiscal year 1996
“(5) $8,322,000 for fiscal year 1997
“(6) $8,778,000 for fiscal year 1998.
“(7) 89,234,000 for fiscal year 1999.”
(b) HAZARDOUS LIQInD—Sect.rnn 60125(b) is amended by adding at the end the
foliowing ’
“(4) $2,070,000 for fiscal year 1996
“(5) $2,190,000 for fiscal year 1997
“(6) $2,310,000 for fiscal year 1998.
“(7) $2,430,000 for fiscal year 1999”
(c) STATE Gitarrrs.—Secbon 60125(cXl) by adding at the end the fol ]owlng
“(C) $10,764,000 for fiscal year 1996
“(E) $11,388,000 for fiscal year 1997
“(F) $12,012,000 for fiscal year 1998
“(0) $12,636,000 for fiscal year 1999.”.
PURPOSE
The purpose of this legislation is to reauthorize the Natural Gas
and Hazardous Liquid Pipeline Safety programs and to reduce risk
to public safety and the environment associated with pipeline
transportation of natural gas and hazardous liquids.
BACKGROUND AND NEED
Pipeline safety was formerly governed by the Natural Gas Pipe-
line Safety Act of 1968 and the Hazardous Liquid Pipeline Safety
Act of 1979. These two acts were combined into Chapter 601 of
Title 49 during recodification of laws in 1994. The law is adminis-
tered by the Department of Transportation, under delegation by
the Secretary to the Research and Special Programs Administra-
tion through the Office of Pipeline Safety (OPS).
The Department of Transportation has regulatory authority over
approximately 1.6 million miles of natural gas pipelines managed
by 500 gathering operators, 1065 transmission and gathering oper-
ators, 1389 distribution operators, 52,000 master meter operators,
106 liquefied natural gas (LNG) operators and over approximately
155,000 miles of hazardous liquid pipelines (mainly gasoline and
fuel oil) managed by 190 hazardous liquid operators.
The law provides (or Federal safety regulation of facilities used
in the transportation of natural and other gases by pipeline and
authorizes the Department to regulate hazardous liquid pipelines
for safety purposes and environmental protection. Pipeline safety
provisions provide a regulatory framework for promoting pipeline
safety through exclusive Federal authority for regulation of inter-
state pipelines and facilities. States may impose additionaj stand-
ards for intrastate pipelines and facilities as long as such stand-
ards are compatible with the minimum Federal standards.
Pipeline safety functions include developing, issuing, and enforc-
ing regulations for the safe transportation of natural gas (including
associated LNG facilities) and hazardous liquids by pipeline. Regu-
latory programs are fashioned to ensure safety in the design, con-
struction, testing, operation and maintenance of pipeline facilities,
and in the siting, construction, operation and maintenance of LNG
facilities.
In support of those regulatory responsibilities, OPS manages
grants to aid States in conducting intrastate gas and hazardous liq-
uid pipeline safety programs; monitors performance of those State
agencies participating in the programs; collects, compiles and ana-
lyzes pipeline safety and operating data; and conducts training pro-
grams through the Transportation Safety Institute for government
and industry personnel in the application of the pipeline safety reg-
ulations. OPS also conducts a pipeline safety technology program
with an emphasis on applied research.
The cornerstone of the Federal pipeline safety program is the
partnership established with the States. States may be reimbursed
for up to 50% of reasonable expense incurred in carrying out their
pipeline safety programs State adoption and enforcement of’ Fed-
eral pipeline safety regulations, influenced by financial incentives
provided by the grant program, results in a uniform, effective na-
tionwide pipeline safety program. This approach also results in a
very cost-beneficial maximization of total resources dedicated to
pipeline safety.
Pipelines remain one of the safest modes of transportation in the
United States. Among all modes (highway, rail, aviation, marine
and pipeline), fatalities from pipeline accidents represent less than
.0003% of the total number of fatalities on an annual basis. From
1984 to present, 250 fatalities have resulted from pipeline acci-
dents. Over 62% of incidents and accidents result from third-party
excavation damage, a situation over which the pipeline operator
has little control. Other incidents and accidents result from inteo-
nal or external corrosion, construction or material defects, equip-
ment malfunction or incorrect operation.
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Risk assessmene
In the past decade, Congress has directed the Secretary to.issue
certain regulations on a variety of safety measures and prescribed
the contents and coverage of certain regulatory actions in detail.
Legislation was largely driven by successive reactions to particular
accIdents, whereby Congress would impose additional prescriptions
on. the industry to remedy the perceived safety problems. In this
time period however, these regulatory actions have had varying im-
pacts on overall pipeline safety; the industry’s record remained con-
sistently excellent.
OPS and the pipeline industry have both proposed to move the
program away from the prescriptive model towards a risk-based ap-
proach. The Committee agrees, and has therefore taken the pro-
gram towards a risk-based approach featuring risk assessment,
risk management and industr r.agency partnership in this bill.
OPS has been doing preliminary work over the last several years
to incorporate risk assessment techniques and risk management
concepts into the program. They have created a risk assessment
prioritization model, a program by which OPS will prioritize its ac-
tivities based on the potential of each activity to reduce the risks
of pipelines to public safety and the environment. In addition, OPS
has created joint government/industry/public quality action reams.
These teams have worked to create proposals for concepts by which
OPS can incorporate into pipeline safety regulations the industry
standard for risk management. The eventual oal would be to per-
mit operators the option of applying an effective risk management
program in lieu of conforming with certain regulations. The Com-
mittee commends OPS for the work they have already done in the
risk area and believes the bill is consistent with this work.
The Committee notes that the House of Representatives has spo-
ken in favor of a risk assessment approach to Federal agency-wide
rulemaking in H.R. 1022 the Risk Assessment and Cost Benefit
Act of 1995, which passed the House February 28, 1995 by a vote
of 286—141. H.R 1022 mandated that Federal agencies conduct un-
biased analyses of the costs and benefits of major rules and set
forth the method and analyses that Federal agencies must. use
when preparing risk assessment documents.
As stated in the House Report on H.R. 1022 (H. Rept. 104—33,
part (1), the impetus for the Risk Assessment and Cost Benefit Act
of 1995 is as follows:
The general problem as perceived by many in State and
local government and in the business community is that
Federal regulatory costs are too often out of proportion to
the problems that the regulations are designed to address.
The concern in the area of health, safety and environ-
mental regulations is that the Federal programs require
expenditures of substantial economic resources on reduc-
tions in risk which are either too hypothetical, exaggerated
or small. The overall perception from many quarters is
that a significant portion of Federal health, safety or envi-
ronmental regulatory costs reflect unwise priorities for na-
tional economic resources.
* * * * *
As part of the general problem, there is particular con-
cern over the Federal practice of risk assessment, charac-
terization and communication. There is also concern that
Federal agencies do not consider the incremental costs and
benefits or regulatory alternatives that are, in some in-
stances, not even measured and, in other instances, not
sufficiently considered.
* * * * * * *
The concern with Federal risk assessment practices is
the perception among many that Federal risk assessment
characterization and communication is biased and bases
on a series of hypothetical assumptions which are designed
to overstate the risks. Others argue that Federal risk as-
sessments fail to consider important factors, and thus, un-
derstate risks in critical ways. Many of both sides ar ue
that the Federal practice of risk assessment, characteriza-
tion, and communication is not sufficiently transparent or
informative.
* * * * * * *
In many contexts, Federal agencies explicitly state that
their risk assessment process is designed to produce esti-
mates that “err on the side of safety” because of scientific
uncertainties and to ensure that the broadest range of the
public is protected, consistent with Federal statutory in-
tent. It is generally believed that these “upper bound esti-
mates” are highly Improbable and differ from the most
plausible level of risk by many orders of magnitude. More-
over, the practice of only calculating upper bound or worst
case estimates of risk Is criticized as inappropriately col-
lapsing scientific findinp with a preconceived policy judg-
ment or bias. The perceived overstatement of risk is a seri-
ous concern among the regulated community. Many argue
there should also be “best estimates” or estimates of ex-
pected value in addition to upper-bound estimates to pro-
vide a more realistic benchmark.
Many advocate givinç more prominence to the consider-
ation of the relationship between costs and benefits and
setting regulatory priorities.
H.R. 1323 embraces the core concepts of H.R. 1022 in tailoring
this approach directly to the pipeline safety program. The Commit-
tee believes the pipeline safety program is ideally suited to a risk
assessment approach, particulariy because cost and benefits related
to it are generally readily identifiable and quantifiable.
Under H.R. 1323, no significant standard or regulatory require-
ment (likely to result in annualized compliance costs exceeding $25
million) may be promulgated unless the Secretary makes three cer-
tifications: (1) that the analysis of risk reduction benefits and costs
is based on objective and unbiased scientific and economic evalua-
tions of all significant and relevant information and risk assess-
ments provided to the Department by interested parties or gen-
erated by the Department; (2) that the incremental risk reduction
or other benefits of any option chosen will be likely to justify, and
be reasonably related to, the incremental costs incurred by State,
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local, and tribal governments and the Federal Government and
other public and private citizens; and (3) an explanation why any
other options identified or considered by the Secretary were found
either to be less cost-effective at achieving a substantially equiva-
lent reduction in risk or to provide less flexibility to State, local,
or tribal governments or regulated entities.
The bill prescribes the elements that the analysis of risk reduc-
tion benefits and costs must contain including the options that
were considered, incremental costs and risk reduction or other ben-
efits associated with each option, technical data or other informa-
tion on which the standard or regulatory requirement is based and
a statement that places in context the nature and magnitude of the
risks to be addressed and the residual risks likely to remain for
each option identified or considered. CostB and benefits are to be
quantified to the extent feasible and appropriate and may other-
wise be qualitatively described.
The bill also sets forth the minimum requirements that must be
included in a risk assessment document including, the best esti-
mate for impacts addressed and a 8tatement of the reasonable
range of scientific uncertainties, a statement of any significant sub-
stitution risks to public safety or the environment and a statement
that places in context the nature and magnitude of risks to public
safety or the environment.
The concept of peer review in H.R. 1022 is easily applied to the
pipeline safety program because of the existence of two active advi-
sory committees which perform a peer review function currently.
These committees, the Technical Pipeline Safety Standards Com-
mittee and the Technical Hazardous Liquid Pipeline Safety Stand-
ards Committee, operate under section 60115 of Title 49. H R. 1323
incorporates these committees to perform the peer review for nsk
assessment documents and costibenefit analyses: In addition, the
bill makes several changes to composition of the Committees, num-
ber of meetings and pay for service. The Secretary is required to
give proposed standards to the Technical Committees for review.
Such review should include proposed rules as well as any signifi.
cant changes to such proposals prior to issuance of final rules.
Risk rnanagenwnt
The other major new element of this risk approach is the cre-
ation of a Risk Management Project to demonstrate the safety and
cost-effectiveness of risk management applications. This project es-
tablishes a voluntary program within OPS whereby a participant
may submit a risk management plan for all of its systems, or seg-
ments of its system, for approval by the Secretary that would
achieve an eSuivalent or greater level of safety than that which
would be achieved by complying with specific regulations. When
participating in the demonstration project, participants would not
be subject to pertinent existing standards or regulatory require-
ments In addition, if new standards or regulatory requirements
are promulgated during its participation, an owner or operator
would not be subject to those requirements.
The project would incorporate elements such as collaborative
training, testing, new technolo ies, community awareness, develop-
ment of a risk model and applications or risk assessment and risk
management methodologies to it, and effective management of risk
and auditing capability. In the event of an emergency, participation
in the project may be suspended or revoked. The Secretary will
submit a report to Congress prior to the next reauthorization eval-
uating the project and whether or not it should be made a perma-
nent part of the Federal pipeline safety program.
The Committee intends for the project to run through the entire
authorization period. Participation in the risk management dem-
onstration project is expected to grow during the life of the author-
ization. As both companies and OPS become more comfortable with
the project, the Committee expects more companies to volunteer to
participate and OPS to accommodate more participants, as re-
sources allow. Once a risk management plan is approved and un-
less the emergency authority is invoked, the participant may oper-
ate under the approved plan for the duration of the authorization
period in the bill. The bill permits modification of the plan during
the course of participation by agreement of all parties.
The risk management project will enable pipeline operators to
focus finite resources on the greatest potential risks within their
own covered operations. The operator, by integrating corporate
knowledge and all its activities, will formulate a risk management
plan utilizing alternative technologies or techniques than those
contemplated in the current regulations. The project will enable
companies to apply risk assessment and management methods
suitable to the risks at a particular site and devel p programs to
ensure that the risks are being properly managed. The Committee
stresses that prior to approving a plan, the Secretary must ensure
that participants will achieve an equivalent or greater overall level
of safety than they would by otherwise complying with the existing
regulatory re9uirement8.
The Committee intends to monitor the risk management dem-
onstration project closely during the authorization period. The
Committee expects the Secretary to conduct a thorough assessment
of the results of the project so that the Congress can make a deci-
sion on whether risk management should be made a permanent
part of the pipeline safety program prior to the next reauthoriza-
tion.
Authorization levels
H.R. 1323 authorizes the pipeline safety program for fiscal years
1996 through 1999. The authorizations represent an increase of 6%
per year from the fiscal year 1995 authorized level. The Committee
arrived at these levels by factoring an average inflation factor plus
a modest increase for each year. Given the requirement in this bill
that the Office of Pipeline Safety implement a new risk assessment
scheme and manage a risk management demonstration project, the
Committee believes some additional expertise and resources will be
necessary for OPS to acquire to comply with the law.
The Committee notes that these authorization levels represent a
significant decrease from OPS’s actual fiscal year 1995 funding
level of $37.4 million enacted by the 1995 Department of Transpor-
tation Appropriations Act (P.L. 103—331). This level nearly doubled
the OPS appropriation from the previous fiscal year ($19.3 million)
and from the authorized level ($19.5 million). The Committee has
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concerns about such a significant increase in an agency’s budget in
only one year and believes the agency’s current funding level is not
justified. In addition, because the pipeline safety program is funded
entirely from industry user fees, the fiscal year 1995 appropriation
meant the industry had to nearly double its per mile fee to the De-
partrnent of Transportation
The Committee believes the authorized increase in agency re-
sources should be focused primarily on conducting adequate risk
assessment and managing the risk mana ement project. The Com-
mittee notes that the reduction in funding authorizations affects
levels for the state grant program the least, representing a slight
decrease from the fiscal year 1995 amounts actually appropriated
for state grants. The Committee believes the reduction in funding
will not significantly impact state pipeline safety programs.
Excess flow values
Section 9 of HR. 1323 makes a number of amendments to Sec-
tion 60110 of Title 49 U.S.C. relating to excess flow valves. The
Committee notes that the first amendment to this section merely
reinserts the words “if any” into the statute after the word “cir-
cumstances” in subsection (b). The words “if any” were enacted into
law in Section 104 of the Pipeline Safety Act of 1992 (P.L. 102—
508) These words made it clear that the Secretary had discretion
within the rulemaking to mandate excess flow valves in certain cir-
cumstances or to conclude that there were no circumstances under
which excess flow valves would be mandated. In the recodification
of Title 49 in 1994, these two words were inadvertently omitted.
Section 9 of the bill restores these two important words to the stat-
ute as it existed prior to recodification
The Committee notes that the Administrator of the Research and
Special Programs Administration testified at the Surface Transpor-
tation Subcommittee hearing on March 28, 1995 of RSPA’a inten-
tion not to pursue a mandate on excess flow valves. An April 4,
1995 letter to the Committee serves as official notification to the
Congress of this decision, as required by 49 U.S.C. 60110(d). The
letter appears as follows:
U.S. DEPARTMENT OF TRANSPORTATION,
RESEARCH A.ND SPECIAL PROGRAMS ADMINISTRATION,
Washington, DC, Apri’ 4, 1995.
Hon. BUD SHySTER,
Chairman, Cornniittee on Transportation and Infrastrucwre, House
of Representatives, Washington, DC.
DEAR SI-lUSTER: I am writing to inform the Committee
of the Research and Special Programs Administration’s (RSPA) de-
cision concerning the pending requirement in 49 U.S.C. §60110 re-
garding the installation of excess flow valves (EFVs) in natural gas
distribution systems.
After reviewing technical information, the advice of state safety
representatives, and available operational data, I have determined
that there are currently no circumstances under which PSPA
should issue a federal rule requiring the universal installation of
EFVs. A report of the reasons for this decision is enclosed. As re-
quired by 49 U.S.C. § 60110, RSPA is planning to issue perform-
ance standards and customer notification requirements for EFV .
Each action is designed to encourage the increased use of EFVs
where appropriate, based on local conditions. Because there are no
industry standards, performance standards will ensure that EFVs
opel-ate safely and reliably. Further, we believe this will encourage
the development of EFVs for multi-occupant facilities.
RSPA has gone through extensive study and rulemaking in
reaching this decision. RSPA published an Advance Notice of Pro-
posed Rulemaking on December 20, 1990, a Notice of Proposed
Rulemaking on April 21, 1993, and reopened the comment period
on August 2, 1994, proposing that EFVa be installed on new and
replaced single family residential service lines.
Although a requirement to install EFVs was supported by the
National Transp rtation Safety Board, certain members of Con-
gress and the EFV industry, it was opposed by virtually the entire
gas distribution industry and a vast majority of our state regu-
latory partners.
An identical letter has been sent to the Ranking Minority Mem-
ber, Committee on Transportation and Infrastructure; Chairman
and Ranking Minority Member of the Committee on Commerce;
and Chairman and Ranking Minority Members of the Senate Com-
mittee on Commerce, Science and Transportation.
If we can be for further assistance in this matter, please contact
me or Ms. Kelley Coyner, Director, Office of Policy and Program
Support.
Sincerely.
Dr. D.I( S}IARMA.
H.R. 1323 retains the notification requirements of section 60110,
and expands them to include notice of not only the costs of inst.alla-
tion, but of maintenance and replacement as well. The bill also pro-
vides that the Secretary may adopt industry accepted performance
standards for excess flow valves.
Smart pigs
Section 5(e) of H.R. 1323 clarifies the provision in existing law
relating to inspection by instrumented internal inspection devices,
commonly referred to as “smart pigs”. The Pipeline Safety Reau-
thorization Act of 1988 directed the Secretary to establish mini-
mum Federal safety standards requiring the accommodation of
smart pigs, to the extent practicable, in new facilities and in re-
placement of existing facilities. (Section 108(b) and Section 207(b)
of P.L. 100—561).
On November 20, 1992, RSPA issued a Notice of Proposed Rule-
making to implement the 1988 requirement, Many comments were
received regarding the scope of the term ureplacement with regard
to hazardous liquid. In the final rule issued on April 12, 1994,
RSPA decided the scope of required replacement would be the al-
ready defined term “line section”. Line section is defined in regula-
tions for natural gas pipelines as “a continuous run of transmission
line between adjacent compressor stations, between a compressor
station and storage facilities, between a compressor station and a
block valve, or between adjacent block valves” and for hazardous
liquid pipelines as “a continuous run of pipe between adjacent pres-
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sure pump stations, between a pressure pump station and terminal
or breakout tanks, between a pressure pump station a block valve,
or between adjacent block valves.” In the final rule, RSPA said that
when a replacement is made of line pipe, line valve, line fitting, or
other line component in an existing pipeline covered by this rule,
the complete line section must be made to accommodate smart
pigs.
The impact of the rule would have required operators to replace
or upgrade as much as 20 miles of pipeline to accommodate a
smart pig, even in instances when the replacement work involves
only 20 feet of pipeline.
Section 5(e) of H.R 1323 clarifies what Congress intended re-
garding accommodation of smart pigs when it enacted the 1988
provisions; that only the facility or equipment being replaced must
accommodate, to the extent feasible, smart pigs.
Updating standards
Section 5(f) of the bill directs the Secretary, to the extent appro-
priate and practicable, to update incorporated industry standards
that have been adopted as part of the Federal pipeline safety regu-
latory program. The Committee encourages OPS to keep industry
standards incorporated as regulations updated as frequently as
necessary and as resources allow.
Operator qualifications
Section 5(a) of the bill modifies a current requirement that all in-
dividuals responsible for the operation and maintenance of pipeline
facilities be tested for qualifications and certified to properly oper-
ate and maintain those facilities. This provision is currently the
subject of a rulemaking by OPS. Under H.R. 1323, pipeline owners
and operators would be required to ensure that employees working
on the pipeline be qualified to recognize and properly respond to
unusual or dangerous conditions.
The Committee believes that the objective of the original provi-
sion is worthwhile, to ensure that pipeline employees are qualified
to do their jobs and react properly to a dangerous situation. How-
ever, the Committee believes the resources of OPS are not effi-
ciently utilized if used to regulate, in detail, how a company should
conduct its employee training and certification programs. Such reg-
ulation could result in burdensome procedures and record keeping
on both pipeline operators and OPS. Rather, OPS should make
clear that as part of its regular inspections and accident investiga-
tions, it will look for evidence that employees are competent and
knowledgeable about their areas of responsibility and that opera-
tors will be held accountable if employees are found to be incom-
petent.
The Committee notes that the specific statutory requirement that
qualifications shall address the ability to recognize and react ap-
propriately to abnormal operating conditions that may indicate a
dangerous situation or a condition exceeding design limits is not in-
tended to be exclusive; qualifications are intended to include all as-
pects of operating and maintaining a pipeline, including routine
procedures.
Annual report
Section 17 of H.R. 1323, requested by the Administration, repeals
the requirement in section 60123 which requires an annual report
on pipeline safety be submitted to the Congress. The Committee
notes that the annual report has been consistently issued at least
two years late. The Committee has found the Office of Pipeline
Safety able to respond to information requests whenever necessary
on a timely basis and believes the time and effort expended to com-
pile the annual report are an inefficient use of resources. The Com-
mittee expects OPS to continue to respond to information requests
as accurately and efficiently as possible.
Damage reporting
Section 16 of H.R, 1323 creates a new federal crime of knowingly
and willfully damaging a pipeline facility arid not promptly report-
ing the damage to the pipeline operator and other appropriate au-
thorities. Two recent accidents, the March 28, 1993 failure of a pe-
troleum pipeline in Reston, Virginia and the March 23, 1994 rup-
ture of a gas tranamis8ion line in Edison, New Jersey, were both
as a result of mechanical damage to the pipelines caused by exter-
nal damage that occurred at an indeterminate time before the fail-
ures The Committee believes damaging a pipeline facility and fail-
ing to report that damage to the operator and other appropriate au-
thorities is an omission with the potential for very serious con-
sequences and should therefore carry with it significant punish-
ment.
Administrative
Section 14 of H.R. 1323 authorizes the Secretary to enter into
grants, cooperative agreements, and other transactions with any
person, agency, State and local government, educational institu-
tion, or other entity. This provision, requested by the Administra-
tion, will provide the Secretary with general authority to enter into
a broad range of financial arrangements with States, industry, non-
profit institutions and other entities to support activities that will
achieve the objectives of the statute. The authority will be very
useful to aid the Secretary in developin?, improving and promoting
one-call notification systems, the majority of which are not run by
States. It will also aid in the agency’s execution of risk assessment,
by permitting the Secretary to obtain the data it will need to con-
duct risk assessment according to the statutory requirements.
Other provisions
H.R. 1323 makes a number of changes to provisions in existing
law which prescribe specific regulatory actions for the Secretary to
undertake. These include deletion of authority to the Secretary to
set minimum standards requiring operators of gathering lines that
are not regulated to maintain an inventory of appropriate informa-
tion (Section 5(d)), deletion of requirement that inspections must
occur at least once every two years (Section 7), and deletion of re-
quirement that Secretary take actions to promote adoption of meas-
ures to improve safety of customer-owned natural gas service lines
(Section 10).
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The Committee believes the provisions cited above are inconsist-
ent with the risk assessment approach taken in thiB bill. If the Sec-
retary believes any of the perceived safety problems related to the
above cited provisions are worthy of pursuit, the Secretary may ini-
tiate actions to address such problems.
SEC’rIoN-nY-SEC’FION ANAIXSI8
PIPELINE S rY ACT OF 1995
SEC. 1. SHORT TITLE
Section-by-section summary
(a) Short Title: the ‘Pipeline Safety Act of 1995”
SEC. 2. REFERENCES
(a) The amendments and references in the bill are to sections
and provisions in title 49, United States Code.
(b) The “Secretary” means the Secretary of Transportation
SEC. 3. ANALYSIS OF RISK I 1.EDUCTION BENEFITS AND COSTS
Adds new section 60127 to provide for risk assessment and cost-
benefit analysis for new significant standards or regulatory re-
quirements promulgated by the Secretary.
(a) Requirement—No final significant standard or regulatory re-
quirement may be promulgated under sections 60101(b), 60102,
60103, 60108, 60109, 60110, or 60113 unless the Secretary: cer-
tifies that an analysis of risk reduction benefits and costs has been
conducted; certifies that the incremental risk reduction or other
benefits of the option chosen justifies and is reasonably related to
the incremental coats incurred by State, local, and tribal govern-
ments, the Federal government, and other citizens; and explains
why other options identified or considered were found to be either
less cost-effective or provided less flexibility to State, local or tribal
governments or regulated entities.
(b) Elements of analysis.—In analyzing risk reduction benefits or
costs, the Secretary shall identify the various regulatory and non-
regulatory options that were considered; analyze the incremental
costs and benefits of the proposed standard or regulatory require-
ment; provide technical data or other information upon which the
standard or regulatory requirement is based; and include a state-
ment that places in context the nature and magnitude of the risk
to be addressed and the residual risks likely to remain for each al-
ternative identified or considered.
(c) Risk assessment documents.—Risk assessment documents
prepared by the Secretary shall include at a minimum: the best as-
timate for impacts addressed and the reasonable range of scientific
uncertainties; a statement of any significant substitution risk to
public safety and the environment; and a statement that places in
context the nature and magnitude of risks to human health, safety
or the environment.
(d) Statements—Statements that place in context the nature and
magnitude of risks to public Bafety or the environment shall pro-
vide comparisons with estimates of greater, lesser, and subat.an-
tially equivalent risks that are familiar to and routinely encoun-
tered by the general public, as well as other risks and comparisons
of those risks with other similar risks regulated by the t)epart-
ment.
(e) Review by Standards Committee.—For any significant stand-
ard or regulatory requirement, the Secretary must submit risk as-
sessment documents and cost-benefit analyses for review to the
Technical Pipeline Safety Standards Committee, the Hazardous
Liquid Pipeline Safety Standards Committee, or both as app o-
priate. The documents shall also be available for public review. The
Secretary must provide a written response to all peer review com-
ments received from the panels and may revise the risk assessment
and cost-benefit analysis prior to determining whether a significant
standard or regulatory requirements should be promulgated.
(f) Emergencies.—ln the case of an emergency, the Secretary
may suspend analysis of risk reduction benefits and costs for the
duration of the emergency.
(g) Report.—By March 31, 1999, the Secretary will send a report
to Congress on the application of the principles of the analyses of
risk reduction benefits and costs and risk assessment and their ef-
fect on pipeline safety
SEC. 4. DEFINITIONS
(a) Amends section 60101 definitions:
Amends definition of “transporting gas” to original law prior
to recodification.
“Best estimate” means a scientifically appropriate estimate
based on one of several outlined methodologies.
“Benefits” means reasonably identifiable significant health,
safety, environmental, social and economic benefits that are ex-
pected to result directly or indirectly from implementation of a
standard, regulatory requirement or option.
“Costs” means direct and indirect costs to U.S. government,
to State, local, and tribal government, and to the private sec-
tor, wage earners, consumers, and the economy of implement-
ing and complying with the standard, regulatory requirement
or option.
“Risk assessment document” means a document containing
an explanation of how hazards have been identified, quantified,
and assessed.
“Risk management” means systematic application by owners
or operators of pipeline facilities of management policies, pro-
cedures, finite resources and practices in analyzing, assessing,
and controlling risks.
“Risk management plan” means a management plan utilized
by owners or operators that encompasses risk mana ment.
“Significant standard or regulatory requirement means a
safety or environmental standard or regulatory requirement or
closely related group of standards or requirements that is like-
ly to result in annualized compliance costs of more than $25
million.
“Substitution risk” means a potential risk to health, safety,
or the environment from a significant standard, regulatory re-
quirement or option designed to decrease other risks.
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(b) A.inends section 60101(bX2) to provide that the Secretary
shall define the term “regulated gathering line” but only if it is ap-
propriate to do so.
SEC. 5. GENERAL AUTHORITY
(a) Minimum safety standards.—Amends section 60 102(a) to pro-
vide that operators of facilities must be qualified, but not certified,
and must be able to recognize and react to abnormal operating con-
ditions that may indicate dangerous situations.
(b) Practicability and safety needs standards.—Makes minor revi-
sions in section 60102(b) and provides that recom:mendations of the
Technical Pipeline Safety Standards Committee or the Hazardous
Liquid Pipeline Safety Standards Committee be considered in set-
ting minimum safety standards
(c) Facility operation information atandards.—Makes technical
corrections to section 60 102(d).
(d) Pipe inventory standards —Amends section 60 102(e) to strike
provision directing Secretary, to the extent considered necessary, to
set minimum standards requiring operators of gathering lines that
are not regulated to maintain an inventory of appropriate informa-
tion.
(e) Smart pigs—Rewrites section to clarify congressional intent.
New pipeline facilities must, to the extent practLcable, accommo-
date instrumented internal inspection devices (“smart pigs”). When
a pipe is being replaced, it is only the replaced section of pipe that
must accommodate smart pigs.
(f) Updating standards.—Adds new section 60 102(1) to direct the
Secretary to update incorporated industry standards, as appro-
priate and practicable.
SEC. 6. RISK MANAGEMENT
Adds new section 60127 to establish a Risk Management Dem-
onstration Project.
(a) Risk management demonstration project.—The Secretary
shall carry out the project with voluntary participation of owners
and operators of pipeline facilities. The purpose of the project is to
demonstrate the safety and cost effectiveness of risk management.
(b) Exemption.—During the demonstration project, the Secretary
may exempt participating owners and operators from compliance
with some or all standards and regulations that would otherwise
apply, including those promulgated during the demonstration
project.
(c) Requirements.—In carrying out the project, the Secretary
shall invite owners and operators to submit plans for approval and
ensure that approved plans will achieve an equivalent or greater
overall level of safety Elements required to be incorporated into
the project are specified.
(d) Emergencies.—In the case of an emergency, the Secretary
may suspend or revoke the participation of an owner or operator
in theproject
(e) By March 31, 1999, the Secretary shall submit a report to
Congress evaluating the project and recommending whether the
project should be made permanent.
SEC. 7. INSPECTION AND MAINTENANCE
Amends section 60108 to strike requirement that inspections
must occur at least once every two years (Secretary currently di-
rected to determine frequency of inspections). Clarifies meaning of
“waters” where underwater pipelines are subject to inspections to
be areas where a substantial likelihood of commercial navigation
exita.
SEC. 8. HIGH-DENSiTY POPULATION AREAS AND ENVIRONMENTALLy
SENSITIVE AREAS
(a) Conforming change to “waters” amendment in Section 7.
(b) Amends section 60109 to make a technical correction and in-
clude revised factors for Secretary to consider in describing areas
that are “unusually sensitive to envimnment.al damage.”
SEC. 9. EXCESS FLOW VALUES
Amends section 60110 to make a technical correction, provides
that the notification from natural gas operators to customers hav-
ing lines in which excess flow valves are not required but can be
installed shall include costs associated with maintenance and re-
placement as well as installation, and provides that the Secretary
may adopt industry accepted performance standards for excess flow
valves.
SEC. 10. CUSTOMER-OWNEt) NATURAL GAS SERVICE LINES
Amends section 60113 to remove requirement that Secretary
take actions to promote adoption of measures to improve safety of
customer-owned natural gas service lines.
SEC. 11. ONE-CALL NOTIFICATION SYSTEMS
Makes technical corrections and corrects recodification errors to
section 60114.
SEC. 12. TECHNICAL SAFETY STANDARDS COMMITYEES
(a) Peer review.—Amends section 60115 to provide that the Tech-
nical Safety Standards Committees shall serve as peer review com-
mittees and will be treated as such for purposes of all laws relating
to risk assessment and peer review.
(b) Composition and appointment.—lncreases the number of in-
dustry representatives on the Committees from 4 to 5 and de-
creases the number of public representatives from 6 to 5 (so com-
mittees would be composed of 5 individuals from each of govern-
ment, industry, and the general public). At least one of the indus-
try and one of the public members must have experience in risk as-
sessment and cost-benefit analysis.
(c) Committee reports on proposed standards.—Specifies that
risk assessment documents, cost-benefit and other analyses sup-
porting proposed standards be submitted to the Committees for re-
view.
(d) Meetings.—Increases the number of Committee meetings
from two to four per year.
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Ce) Pay and expenses.—Strikes provisions allowing members of
the Committees to be paid compensation when performing duties,
although reimbursement for expense continues to be authorized.
SEC. 13. PUBLIC EDUCATION PROGRAMS
Makes a technical correction to section 60116 and expands the
public education programs can-led out by natural gas owners and
operators to include the use of one-call systems prior to excavation
to prevent pipeline damage.
SEC. 14 ADMINISTR.ATIVE
Amends section 60117 to authorize the Secretary to enter into
grants, cooperative agreements, and other transactions with any
person, agency, State and local government, educational institu-
tion, or other entity. The provision will permit the Secretary to pro-
vide funding to a one-call program which is not operated by State.
SEC. 15. COMPLIANCE AND WAIVERS
Amends section 60118 to clarify that owners and operators who
utilize an approved risk management plan under the Risk Manage-
ment Demonstration Project in section 60127 are to be coasidered
in compliance with standards and regulatory requirements covered
by the plan.
SEC. 16. DAMAGE REPORTING
Amends section 60123 to create a new federal crime of knowingly
and willfully damaging a pipeline facility and not promptly report-
ing the damage to the pipeline operator and other appropriate au-
thorities.
SEC 17. ANNUAL REPORTS
Repeals section 60124 which requires annual reports be submit-
ted to Ccngress.
SEC. 18. POPULATION ENCROACHMENT
Creates a new section 60124 which requires the Secretary to
make available to State pipeline officials the land use recommenda-
tions from the Transportation Research Board’s Special Report 219,
entitled “Pipelines and Public Safety”. In addition, the Secretary is
directed to evaluate those recommendations, determine to what ex-
tent they are being implemented, consider ways to improve imple-
mentation and consider other initiatives to improve awareness of
local planning and zoning entities regarding population encroach-
ment in proximity to rights-of-ways of interstate pipeline facilities.
SEC. 19. TECHNICAL CORRECTIONS
Makes technical corrections to various sections of Chapter 601.
SEC. 20. AUTHORIZATIONS OF APPROPRiATION
(a) Natural Gas Activities:
$7,866,000 for fiscal year 1996.
$8,322,000 for fiscal year 1997.
$8,778,000 for fiscal year 1998.
$9,234,000 for fiscal year 1999.
(b) Hazardous Liquid
$2,070,000 for fiscal year 1996.
$2,190,000 for fiscal year 1997.
$2,310,000 for fiscal year 1998.
$2,430,000 for fiscal year 1999.
Cc) State Grants
$10,764,000 for fiscal year 1996.
$11,388,000 for fiscal year 1997.
$12,012,000 for fiscal year 1998.
$12,636,000 for fiscal year 1999.
The Subcommittee on Surface Transportation conducted a hear-
ing on H.R. 1323 on March 14, 1995 and on March 28, 1995 rec-
ommended the bill with amendments to the full Committee on
Transportation and Infrastructure. On April 5, 1995, the Commit-
tee on Transportation and Infrastructure ordered the bill reported,
by voice vote, with a quorum present.
HOUSE OP REPRESENTATIVES,
Cor m1ImE ow ThE JUDICIARY,
Washington, DC , May 1, 1995.
Hon. NEWr GINGRICH,
Speaker, House of Representatiues, H—232, The Capitol, Washing-
ton, DC.
DEAR Ma. SPEAKER: I am writing concerning the “Pipeline Safety
Act of 1995” (HR. 1323), which has been ordered reported by the
Committee on Transportation and Infrastructure this week. Section
16 of that bill would amend section 60123 of Title 49, United States
Code. That section of Title 49 provides for federal criminal pen-
alties to be imposed upon persons who damage pipeline facilities.
Because the bill would amend federal law to make criminal cer-
tain actions which presently are not criminal, the Committee on
the Judiciary has jurisdiction over this portion of the bill. This let-
ter is to inform you that the Committee on the Judiciary will not
exercise its right to request a sequential referral of H.R. 1323. The
fact that the Committee has not requested a sequential referral
with respect to this bill, however, should not be deemed to be a
waiver of the Committee’s jurisdiction over all other bills, resolu-
tions, and other matters that affect the federal criminal law.
Sincerely,
HENRY J. HYDE, Chairman.
COMPLIANCE Wrrn HOUSE RULE XI
1. With respect to rule XI, clause 2(0(4), the enactment of the bill
will result in no significant inflationary impact.
2. With respect to rule XIII, clause 7(a), the Committee adopts
as its own the CBO cost estimate included in this report.
3. With respect to the requirement of clause 2(1X3XD) of rule XI,
no recothmendations were submitted to the Committee pursuant to
clause 4(cX2) of rule X.
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U.S. CONGRESS,
CoNGREssIONAL BUDGET OFFICE,
Washington, DC, April 7,, 1995.
Hon. BUD SHusTER,
Chairman, Committee on Transportation and Infrastructure, House
of Representatives, Washington, DC.
D Aa MR. CHAIRMAN: The Congressional Budget Office has pre-
pared the enclosed coat estimate for H.R. 1323, the Pipeline Safety
Act of 1995.
Enactment of H.R. 1323 could affect direct spending and receipts.
Therefore, pay-as-you-go procedures would apply to the bill.
If you wish further details on this estimate, we will be pleased
to provide them.
Sincerely,
Enclosure.
JUNE E. O’NEILL.
CONGRESSIONAL Buixsr OmCE CoST EsrIMAlt
1. Bill number: H.R. 1323.
2. Bill title: Pipeline Safety Act of 1995.
3. Bill status: As ordered reported by the House Committee on
Transportation and infrastructure on April 5, 1995.
4. Bill purpose: H.R. 1323 would authorize a total of $90 million
to be appropriated for the gas and hazardous liquid pipeline safety
programs and the pjpeline safety grant program for fiscal years
1996 through 1999, The bill would require the Secretary of Trans-
portation to conduct benefit and cost analyses of new pipeline safe-
ty standards and regulations which have a compliance cost of
greater than $25 million per year. Finally, the bill would make
technical changes to the pipeline safety program, establish a risk
management demonstration project, and impose a criminal penalty
on all excavators who do not report damaged pipeline facilities to
the appropriate authorities.
5. Estimated cost to the Federal Government: For purposes of
this estimate, CBO assumes that the full amount authorized for
pipeline safety programs would be appropriated. Implementing
WR. 1323 would not result in any change in net federal spending
because the Department of’ Transportation collects fees to com-
pletely offset pipeline safety funding. In fiscal year 1995, pipeline
safety funding and fees (excluding oil pollution activities) were $35
million. If the 1996 appropriation equals the authorization, funding
and fees would drop to $21 million. (The appropriations bill is
charged with the level of new funding and any change in the level
of fees.) Even though the bill’s authorLzations are substantially
lower than the 1995 funding level, they are closer to the 1990
through 1994 funding levels of $10 million to $17 million.
CBO estimates that the new criminal penalty that would be es-
tablished by H.R. 1323 would not resuLt in any significant receipts.
If fines are collected, they would be deposited in the Crime Victims
Fund and spent the following year.
6. Pay-as-you-go considerations: Section 252 of the Balanced
Budget and Emergency Deficit Control Act of 1985 sets up pay-as-
you-go procedures for legislation affecting direct spending or re-
ceipta through 1998. CBO estimates that enactment of’ H.R 1323
could increase penalty collections and spending from the Crime Vic-
tims Fund. Therefore, pay-as-you-go procedures would apply to the
bill. However, CBO estimates that any increase in direct spending
or receipts would be less than $500,000 per year.
The pay-as-you-go effects of the bill are as follows:
is, I 1WII mt.
liii
1997
1999
O lJng*In SIVa ,I
—
—-—-.— — ——
— —
—.
__.
._
0
0
0
tt iingsthr t4j iti
-
-- - -
—..
...- -
--
o
7. Estimated cost to the State and local governments: Of the $90
million four-year authorization, $47 million is for state pipeline
safety grants. States would be required to contribute an additional
$47 million to comply with the 50 percent matching requirement.
8. Estimate comparison: None.
9. Previous CBO estimate: None.
10. Estimate prepared by: John Patterson.
11. Estimate approved by: Paul N. Van de Water, Assistant Di-
rector for Budget Analysis.
CHMIGES IN EXISTING LAW MADE BY TIlE BILL, AS REPORTED
In compliance with clause 3 of rule XIII of the Rules of the House
of Representatives, changes in existing law made by the bill, as re-
ported, are shown as follows (existing law proposed to be omitted
is enclosed in black brackets, new matter is printed in italics, exist-
ing law in which no change is proposed is shown in roman):
CHAPTER 601 OF TITLE 49, UNITED STATES CODE
Sec.
60101. DefinItions.
CHAPTER 601—SAFETY
0 * S S * *
60105 State pipeline safety pr ram certifications.
60106. State pipeline safety agreements.
60107. State pipeline safety grants.
S • S S
(60124. Annual reports.)
60124. Populasion encroachmenl.
60125. Authorization of appropriations.
60126. Analysis of risk reduetson benefits and costs.
60127. Risk management.
* 60101. DefinItions
(a) In this chapter—
(1) * *
* * * S * S *
(21) “transporting gas”—.
(A) means the gathering, transmission, or distribution of
gas by pipeline, or the storage of gas, in interstate or for-
eign commerce; but
S S
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[ (B) does not include gathering gas in a rural area out-
Bide a populated area designated by the Secretary as a
nonrural area.]
(B) does not include the gathering of gas, other than
gathering through regulated gathering lines, in those rural
locations that are outside the limits of any incorporated or
unincorporated city, town, or village, or any other des-
igna ted residential or commercial area (such as a subdivi-
sion. business, shopping center, or community development)
or any similar populated area which the Secretary of
Transportation may define as a nonrural area; but
(C) includes the movement of gas through regulated gath-
ering lines.
* * * * * * *
(23) “best estimate” means a scientifically appropriate esti-
mate which is based, to the extent feasible, on one of the follow .
ins..
(A) Central estimates of risk using the most plausible as-
sumpt ions.
(B) An approach which combines multiple estimates
based on different scenarios and weighs the probability of
each scenario.
(C) Any other methodology designed to provide the most
unbiased representation of the most plausible level of risk,
given the current scientific information available to the Sec-
retary.
(24) “benefits” means the reasonably identifiable significant
health, safety, environmental, social, and economic benefits that
are expected to result directly or indirectly from implementation
of a standard, regulatory requirement, or option.
(25) “costs” means the direct and indirect costs to the United
States Government, to State, local, and tribal governments, and
to the private sector, wage earners, consumers, and the economy
of implementing and complying with a standard, regulatory re-
quirement, or option.
(26) “r-isk assessment document” means a document contain-
rig (A) an explanation of how hazards associated with a sub-
stance, actwity or condition have been identified, quan-
tified, and assessed; and
(B) a statement by the preparer of the document accept-
ing the findings of the document.
(27) “risk management” means the systematic application, by
the owner or operator of a pipeline facility, of management poli-
cies, procedures, finite resources, and practices to the tasks of
analyzing, assessing, and controlling risk in order to protect
employees, the general public, the environment, and pipeline fa-
cilities.
(28) “nsk management plan” means a management plan uti-
lized by a gas or hazardous liquid pipeline facility owner or op-
erator that encompasses risk management.
(29) “significant standard or regulatory requirement” means
any safety or environmental standard or regulatory require-
ment, or closely related group of safety or environmental stand-
ards or regulatory requirements, that is likely to result in
annualized compliance costs in excess of $28,000,000.
(30) “substitution risk” means a potential risk to public safety
or the environment from a significant standard, regulatory i’-e-
quirement, or option designed to decrease other risks.
(b) GAmnUNO LINES.—(1) * * *
(2XA) Not later than October 24, 1995, the Secretary, if appro-
priate, shalt define by regulation the tenn “regulated gathering
line”. In defining the term, the Secretary shall consider factors
such as location, length of line from the well site, operating pres-
sure, throuçhput, and the composition of the transported gas or
hazardous liquid, as appropriate, in deciding on the types of lines
that functionally are gathering but should be regulated under this
chapter because of specific physical characteristics.
* * * * * * *
400102. General authority
(a)E(1)] MINIMUM SAFtnr STANDAsDS.—The Secretary of Trans-
portation shall prescribe minimum safety standards for pipeline
transportation and for pipeline facilities. The standards—
[ (A)] (1) apply to Itransporters of gas and hazardous liquid
and to] owners and operators of pipeline facilities;
[ (B)] (2) may apply to the design, installation, inspection,
emergency plans and procedures testing, construction, exten-
sion, operation, replacement, and maintenance of pipeline fa-
cilities; and
[ (C) shall include a requirement that all Individuals respon-
sible for the operation and maintenance of pipeline facilities be
tested for qualifications and certified to operate and maintain
those facilities.
[ (2) As the Secretary considers appropriate, the operator of a
pipeline facility may make the certification under paragraph (1)(C)
of this subsection. Testing and certification under paraçraph (1XC)
shall address the ability to recognize and react appropnately to ab-
normal operating conditions that may indicate a dangerous situa-
tion or a condition exceeding design limits.]
(3) shall include a requirement that all individuals who oper-
ate and maintain pipeline facilities must be qualified.
Such qualifications shall address the ability to recognize and react
appropriately to abnormal operating conditions that may indicate a
dangerous situation or a condition acceding design limits. The op-
erator of the pipeline facility shall ensure that employees who oper-
ate and maintain the facility are qualified.
(b) PRACTICABILITY AND SAFETY NEEDS STANDARDS—A standard
prescribed under subsection (a) of this section shall be practicable
and designed to meet the need for gas pipeline safety, for safely
transporting hazardous liquid, and for protecting the environment.
Except as provided in [ section 60103] sections 60103 arid 60112 of
this title, when prescribing the standard the Secretary shall con-
sider —.
(1) relevant available—
(A) gas pipeline safety Information; or
(B) hazardous liquid pipeline safety Information;
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(2) the appropriateness of the standard for the particular
type of pipeline transportation or facility;
(3) the reasonableness of the standard; [ and]
(4) the extent to which the standard will [ contribute to] ben-
efit public safety and the protection of the environment [ .]; and
(5) the comments and recommendations pf the Technical Pipe-
line Safety Standards Committee, the Technical Hazardous
Liquid Pipeline Safety Standards Committee, or both, as appro-
priate.
* * * * * * *
(d) FACILITY OPERATION INFORMATION STANDARDS.—The Sec.
retary shall prescribe minimum standards requiring an operator of
a pipeline facility subject to this chapter to maintain, to the extent
practicable, information related to operating the facility as required
by the standards prescribed under this chapter and, when re-
quested, [ to provide the information] to make the information
available to the Secretary and an appropriate State official as de-
termined the Secretary. The information shall include—
(1)
* * * * * * S
(e) PIPE INVENTORY SThND iRDs.—The Secretary shall prescribe
minimum standards requiring an operator of a pipeline facility sub-
ject to this chapter [ and, to the extent the Secretary considers nec-
essary, an operator of a gathering line that is not a regulated gath-
ering line (as defined under section 60101(b)(2) of this title),) to
maintain for the Secretary, to the extent practicable, an inventory
with appropriate information about the types of pipe used for the
[ transmission] transportation of gas or hazardous liquid, as appro-
priate, in the operator’s system and additional information, includ-
ing the material’s history and the leak history of the pipe. The in-
ventory—
(1) * * *
* * S * * * *
(I) STANDAnDS AS ACCOMMODATING “SMART PIGS”.— [ (1) The Sec-
retary shall prescribe minimum safety standards requiring that the
design and construction of a new gas pipeline transmission facility
or hazardous liquid pipeline facility, and the required replacement
of an existing gas pipeline transmission facility, hazardous liquid
pipeline facility, or equipment, be carried out, to the extent prac-
ticable, in a way that accommodates the passage through the facil-
ity of an instrumented internal inspection device (commonly re-
ferred to as a “smart pig”). The Secretary may apply the standard
to an existing gas or hazardous liquid transmission facility and re-
quire the facility to be changed to allow the facility to be inspected
with an instrumented internal inspection device if the basic con-
struction of the facility will accommodate the device.]
(1) MINiMUM SAFETY STAWDARDS.—The Secretary shall pre-
scribe minimum safety standards requiring that the design and
construction of a new gas pipeline facility or hazardous liquid
pipeline facility be carried out, to the extent practicable, an a
way that accommodates the passage through the facility of an
instrumented internal inspection device (commonly referred to
as a smart pig”). The Secretary shall also prescribe minimum
safety standards requiring replacement of an existing gas pipe-
line facility, hazardous liquid pipeline facility, or equipment, to
be carried out, to the extent practicable, in a way that replace-
ment of the existing gas pipeline facility, hazardous liquid pipe-
line facility, or equipment being replaced accommodates the
passage through the facility of an instrumented internal inspec-
tion device. The Secretary may apply the standard to on exist-
ing gas or hazardous liquid facility and require the facility to
be chanqed to allow the facility to be inspected with an instru-
mented internal inspection device if the basic construction of the
facility will accommodate the device.
(2) PERIODIC INSPECTIONS—Not later than October 24, 1995,
the Secretary shall prescribe, if necessary, additional regula-
tions requiring the periodic inspection of each pipeline the op-
erator of the pipeline identifies under section 60109 of this
title. The regulations shall include any circumstances under
which an inspection shall be conducted with an instrumented
internal inspection device and if the device is not required, use
of an inspection method that is at least as effective as using
the device in providing for the safety of the pipeline.
* * * * * * *
(1) UPDATING STANDARDS—The Secretary shall, to the extent ap-
propriate and practicable, update incorporated industry standards
that have been adopted as part of the Federal pipeline safety regu-
latory program.
* * * * * S *
60105. State pipeline safety program certifications
(a) 5 5*
* * a a * * *
§ 00106. State pipeline safety agreements
(a) * a
S * * a a a *
§ 60107. State pipeline safety grants
(a) * * *
* * * * a * a
§ 60108. InspectIon and maintenance
(a) PLANs.—(1) Each person [ transporting gas or hazardous liq-
uid or] owning or operating an intrastate gas pipeline facility or
hazardous liquid pipeline facility shall carry out a current written
plan (including any changes) for inspection and maintenance of
each facility used in the transportation and owned or operated by
the person. A copy of the plan shall be kept at any office of the per-
son the Secretary of Transportation considers appropriate. The Sec-
retary also may require a person [ transporting gas or hazardous
liquid or] owning or operating a pipeline facility subject to this
chapter to file a plan for inspection and maintenance for approval.
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(b) INSPECTION AND TESTING.—(1) * * *
* * * * a a *
(2) To the extent and in amounts provided in advance in an ap-
propriation law, the Secretary shall decide on the frequency of in-
spection under paragraph (1) of this subsection. [ However, an in.
spection must occur at least once every 2 years.] The Secretary
may reduce the frequency of an inspection of a master meter sys-
tem.
(c) PIPELINE FACILITIES OFFSHORE AND IN [ NAVIGABLE WATERSI
OTHER WATERS —(1) In this subsection—
(A) “abandoned” means permanently removed from service.
(B) “pipeline facility” includes an underwater abandoned
pipeline facility.
(C) if a pipeline facility has no operator, the most recent op-
erator of the facility is deemed to be the operator of the facil-
ity.
(2)(A) Not later than May 16, 1993, on the basis of experience
with the inspections under section 3(h)(1XA) of the Natural Gas
Pipeline Safety Act of 1968 or section 203(l)(1XA) of the Hazardous
Liquid Pipeline Safety Act of 1979, as appropriate, and any other
information available to the Secretary, the Secretary shall establish
a mandatory, systematic, and, where appropriate, periodic inspec-
tion program of—
(i) all offshore pipeline facilities; and
[ (ii) any other pipeline facility crossing under, over, or
through navigable waters (as defined by the Secretary) if the
Secretary decides that the location of the facility in those navi-
gable waters could pose a hazard to navigation or public safe-
ty]
(ii) any other pipeline facility crossing under, over, or through
waters where a substantial likelihood of commercial navigation
exists if the Secretary decides that the location of the facility in
those waters could pose a hazard to navigation or public safety.
§ 60109. High-density population areas and environmentally
sensitive areas
(a) IDENTIFICATION REQUIE.EMENTS.—NOt later than October 24,
1994, the Secretary of Transportation shall prescribe regulations
that—
(1) establish criteria for identifying—
(A) by operators of gas pipeline facilities, each gas pipe-
line facility (except a natural gas distribution line) located
in a high-density population area; and
(B) by operators of hazardous liquid pipeline facilities
and gathering lines—
(i) each hazardous liquid pipeline facility, whether
otherwise subject to this chapter, that crosses [ a navi-
gable waterway (as the Secretary defines by regula-
tion)] waters where a substantial likelihood of com-
mercial navigation exists or that is located in an area
described in the criteria as a high-density population
area; and
(ii) each hazardous liquid pipeline facility and gath-
ering line, whether otherwise subject to this chapter,
located in an area that the Secretary, in consultation
with the Administrator of the Environmental Protec-
tion Agency, describes as unusually sensitive to envi-
ronmental damage if there is a hazardous liquid pipe-
line accident; and
(b) AREAS To BE INCLUDED AS UNUSUALLY SENSITWE.—When de-
scribing an area that is unusually sensitive to environmental dam-
age If there is a hazardous liquid pipeline accident, the Secretary
shall consider including—
[ (1) earthquake zones and areas subject to landslides and
other substantial ground movements;]
(1) intake locations for community water 8y8tems ,
* a * * a a *
*60110. Excess flow valves
(a) APPLICATION.—Th18 section applies only to—
(1) * * •
• a * * a a
(b) INsrALi TIoN REQUIREMENTh CONSIDERATIONS—NOt
later than April 24, 1994, the Secretary of Transportation shall
prescribe regulations on the circumstances, if any, under which an
qperator of a natural gas distribution system must install excess
flow valves in the system. The Secretary shall consider—
(1) the system design pressure;
(2) the system operating pressure;
(3) the types of customers to which the distribution system
supplies gas, including hospitals, schools, and commercial en-
terprises;
(4) the technical feasibility and cost of installing operating,
and maintaining the valve;
a * * a a * a
(c) NOTIFICATION OF’ AvML rnLfl ’y.—(1) Not later than October
24, 1994 the Secretary shall prescribe regulations requiring an op-
erator ol a natural gas distribution system to notify in writing its
—customers having lines in which excess flow valves are not required
by law but can be installed according to the standards prescribed
under subsection (e) of this section, of—
(A) the availability of excess flow valves for installation in
the system;
(B) safety benefits to be derived from installation; and
(C) costs associated with installation, maintenance, and re-
placement.
* * * * a * *
(e) PERFORMANCE STANDARDS.—NOt later than April 24 1994,
the Secretary shall develop standards for the performance ot excess
flow valves used to protect lines in a natural gas distribution sys-
tem. The Secretary may adopt industry acceptedperformance stand-
ards in order to comply with this reQuiremenL The standards shall
be incorporated into regulations the Secretary prescribes under this
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33
section. All excess flow valves shall be installed according to the
standards.
* * * * * * *
§ 60113. Customer-owned natural gas service lines
[ (a) MAINTENANCE INFORMATION.—]Not later than October 24,
1993, the Secretary of Transportation shall prescribe reguLations
requiring an operator of a natural gas distribution pipeline that
does not maintain customer-owned natural gas service lines up to
building walls to advise its customers of—
(1) * * *
* * * * * * *
[ (b) ACTIONS To PROMOTE SAFETY.—Not later than one year
after submitting the report required under section 115(b) of the
Pipeline Safety Act of 1992 (Public Law 102—508, 106 Stat. 3296),
the Secretary, considering the report and in cooperation and coordi.-
nation with appropriate State and local authorities, shall take ap-
propriate action to promote the adoption of measures to improve
the safety of customer-owned natural gas service lines.)
§ 60114. One-call notification systems
(a) MINIMUM REQUIREMENTS.—The Secretary of Transportation
shall prescribe regulations providing minimum requirements for es-
tablishing and operating a one-call notification system for a State
to adopt that will notify an operator of’ a pipeline facility of activity
in the vicinity of the facility that could threaten the safety of the
facility The regulations shall include the following:
(1) [ a] A requirement that [ the system apply to] all areas
of the State containing underground pipeline facilities be cov-
ered by a system.
(2) [ al A requirement that a person intending to engage iii
an activity the Secretary decides could cause physical damage
to an underground facility must contact the appropriate system
to establish if there are underground facilities present in the
area of the intended activity.
(3) [ a] A requirement that all operators of underground
pipeline facilities participate in an appropriate one-call notifi-
cation system
(4) [ qualifications] Qualifications for an operator of a facil-
ity, a private contractor, or a State or local authority to operate
a system
(5) [ procedures] Procedures for advertisement and notice of
the availability of a system
(6) [ a] A requirement about the information to be provided
by a person contacting the system under clause (2) of this sub-
section
(7) [ a] A requirement for the response of the operator of the
system and of the facility after they are contacted by an indi-
vidual under this subsection.
(8) tal A requirement that each State decide whether the
system will be toll free.
(9) [ a] A requirement for sanctions substantially the same
as provided under sectIons [ 60120, 60122, and 601231 60120
and 60122 of this title.
* * S * * * *
§60115. TechnIcal safety standards committees
(a) ORGANIZATION.—The Technical Pipeline Safety Standards
Committee and the Technical Hazardous Liquid Pipeline Safety
Standards Committee are committees in the Department of Trans-
portation. The Committees shell serve as peer review Committee8 for
carrying out this chapter. Peer reviews conducted by the Committees
shall be treated for purposes of all Federal laws relating to risk as-
sessznent and peer review (including laws approved after the date
of the enactment of the Pipeline Safety Act of 1995) as meeting any
peer review requirements of such laws.
(b) COMPOSITION AND APPOINTMENT.—(1) The Technical Pipeline
Safety Standards Committee Is composed of 15 members appointed
by the Secretary of Transportation after consulting with public and
private agencies concerned with the technical aspect of transport-
ing gas or operating a gas pipeline facility. Each member must be
experienced In the safety regulation of transporting gas and of gas
pipehne facilities or technically qualified, by training, experience,
or knowledge in at least one field of engineering applicable to
transporting gas or operating a gas pipeline facility, to evaluate gas
pipeline safety standards or risk management.
(2) The Technical Hazardous Liquid Pipeline Safety Standards
Committee Is composed of 15 members appointed by the Secretary
after consulting with public and private agencies concerned with
the technical aspect of transporting hazardous liquid or operating
a hazardous liquid pipeline facility. Each member must be experi-
enced in the safety regulation of transporting hazardous liquid and
of hazardous liquid pipeline facilities or technically qualified, by
training, experience, or knowledge in at least one field of engineer-
ing applicable to transporting hazardous liquid or operating a haz-
ardous Liquid pipeline facility, to evaluate hazardous liquid pipeline
safety standards or risk management.
(3) The members of each committee are appointed as follows:
(A) 5 individuals selected from departments, agencies, and
instrumentalities of the United States Government and of the
States.
(B) [ 4) 5 individuals selected from the natural as or haz-
ardous liquid industry, as appropriate, after consulting with in-
dustry representatives.
(C) [ 61 5 individuals selected from the general public.
(4XA) Two of the individuals selected for each committee under
paragraph (3XA) of this subsection must be State commissioners.
The Secretary shall consult with the national organization of State
commissions (referred to in section 10344(f) of this title) before se-
lecting those 2 individuals.
(B) At least 3 of the individuals selected for each committee
under paragraph (3XB) of this subsection must be currently in the
active operation of natural gas pipelines or hazardous liquid pipe-
line facilities, as appropriate. At least 1 of the individuals selected
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for each committee under paragraph (3)(B) must have education,
background, or experience in risk assessment and cost-benefit analy-
sis. The Secretary hall consult with the national organizations rep-
resenting the owners and operators of pipeline facilities before se-
lecting individuals under paragraph (3)(B).
(C) Two of the individuals selected for each committee under
paragraph (3XC) of this subsection must have education, back-
ground, or experience in environmental protection or public safety.
At least I of the individuals selected for each committee under para-
graph (3)(C) must have education, background, or experience in risk
assessment and cost-benefit analysis. At least 1 individual selected
for each committee under paragraph (3)(C) may not have a finan-
cial interest in the pipeline, petroleum, or natural gas industries.
(c) COMMITTEE REPORTS ON PROPOSED STANDARDS.—(1) The Sec-
retary shall give to—
(A) the Technical Pipeline Safety Standards Committee each
standard or regulatory requirement proposed under this chap-
ter for transporting gas and for gas pipeline facilities, includ-
ing the risk assessment document, cost-benefit, and other analy-
ses supporting each proposed standard or regulatory require-
ment; and
(B) the Technical Hazardous Liquid Pipeline Safety Stand-
ards Committee each standard or regulatory requirement pro-
posed under this chapter for transporting hazardous liquid and
for hazardous liquid pipeline facilities, including the risk as-
sessment document, cost-benefit, and other analyses supporting
each proposed standard or regulatory requirement.
(2) Not later than 90 days after receiving the proposed standard
or regulatory requirement and supporting analyses, the appropriate
committee shall prepare and submit to the Secretary a report on
the technical feasibility, reasonableness, cost effectiveness, and
practicability of the proposed standard or regulatory requirement
together with recommended actions. The Secretary shall publish
each report, including any recommended actions and minority
views The report if timely made is part of the proceeding for pro-
scribing the standard or regulatory requirement. The Secretary is
not bound by the conclusions of the committee. However, if the Sec-
retary rejects the conclusions of the committee, the Secretary shall
publish the reasons.
(3) The Secretary may prescribe a standard or regulatory require-
ment after the end of the 90-day period.
(d) PROPOSED CoMMrrrEE STANDARDS iw PoLIcY DEVELOPMENT
REc0MMENDATI0NS.—(1) The Technical Pipeline Safety Standards
Committee may propose to the Secretary a safety standard or regu-
latory requirement for transporting gas and for gas pipeline facili-
ties The Technical Hazardous Liquid Pipeline Safety Standards
Committee may propose to the Secretary a safety standard or regu-
latory requirement for transporting hazardous liquid and for haz-
ardous liquid pipeline facilities.
(e) MEETINGS —Each committee shall meet with the Secretary at
least [ twice) 4 times annually. Each committee proceeding shall be
recorded. The record of the proceeding shall be available to the
public
(1) [ PAY AND) EXPENSES.— [ The Secretary may establish the pay
for each member of a committee for each day (including travel
time) when performing duties of the committee. However, a mem-
ber may not be paid more than the daily equivalent of the maxi-
mum annual rate of basic pay payable under section 5376 of title
5.] A member of a committee under this section is entitled to ex-
penses under section 5703 of title 5. A payment under this sub-
section does not make a member an officer or employee of the Gov-
ernment. This subsection does not apply to members regularly em-
ployed by the Government.
§ 60116. Public education programs
Under regulations the Secretary of Transportation prescribes,
each [ person transporting gas] owner or operator of a gas pipeline
facility shall carry out a program to educate the public on the use
of damage prevention rone-call”) systems prior to excavation, the
possible hazards associated with gas leaks, and the importance of
reporting gas odors and leaks to the appropriate authority. The
Secretary may develop material suitable for use in the program.
* 60117. AdmInistrative
(a) * * *
* * * * * *
( ) AUTHORITY FOR COOPERATiVE AGREEMENTS.—To carry out
this chapter, the Secretary may enter into grants, cooperative agree-
ments, arid other transactions with any person, agency, or instru-
mentality of the United States, any unit of State or local govern-
ment, any educational institution, and any other entity to further
the objectives of this chapter. Such objectives include, but are not
limited to, the development, improvement, and promotion of one-call
damage prevention programs, research, risk assessment, and map-
ping.
§ 60118. Compliance and waivers
(a)
* * * * * * *
(e) COMPLIANCE WITH RisK MANAGEMENT PLANS.—Owners and
operators that are participating in the demonstration project under
section 60127 shall be considered to be in compliance with any pro-
scribed safety standard or regulatory requirement that is covered by
an approved plan under section 60127.
* * * * * * *
* 60123. CrIminal penalties
(a) * * *
* * * * * S *
(d) PENALTY FOR Noi Usn a O -CAI.L NOTIFICATION SYSTEM OR
NOT HEEDING LOCATION INFORMATION OR MARKINGS.—A person
shall be fined under title 18, imprisoned for not more than 5 years,
or both, if the person knowingly and willfully—
(1) engages in an excavation activity—
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37
(A) without first using an available one-call notification
system to establi8h the location of underground facilities in
the excavation area; or
(B) without paying attention to appropriate location in-
formation or markings the operator of a pipeline facility
establishes; and
(2) subsequently damages—
(A) a pipeline facility that results iii death, serious bod-
ily harm, or actual damage to property of more than
$50,000; [ or]
(B) a pipeline facility and does not report the damage
promptly to the operator of the pipeline facility and other
appropriate authorities; or
[ (B)] (C) a hazardous liquid pipeline facility that results
in the release of more than 50 barrels of product.
[ * 60124. Annual reports
[ (a) SUBMISSION AND CON’FEN’rs.—The Secretary of Transpor-
tation shall submit to Congress not later than August 15 of each
year a report on carrying out this chapter for the prior calendar
year for gas and a report on carrying out this chapter for the prior
calendar year for hazardous liquid. Each report shall include the
following information about the pnor year for gas or hazardous liq-
uid, as appropriate:
[ (1) a thorough compilation of the leak repairs, accidents,
and casualties and a statement of cause when investigated and
established by the National Transportation Safety Board.
[ (2) a list of applicable pipeline safety standards prescribed
under this chapter including identification of standards pro-
scribed during the year.
[ (3) a summary of the reasons for each waiver granted under
section 60118(c) and (d) of this title.
[ (4) an evaluation of the degree of compliance with applica-
ble safety standards, including a list of enforcement actions
and compromises of alleged violations by location and company
name.
[ (5) a summary of outstanding problems in carrying out this
chapter, in order of priority.
[ (6) an analysis and evaluation of—
[ (A) research activities, including their policy implica-
tions, completed as a result of the United States Govern-
ment and private sponsorship; and
[ (B) technological progress in safety achieved.
[ (7) a list, with a brief statement of the issues, of completed
or pending judicial actions under this chapter.
[ (8) the extent to which technical information was distrib-
uted to the scientific community and consumer-oriented infor-
mation was made available to the public.
[ (9) a compilation of certifications filed under section 60105
of this title that were—
[ (A) in effect; or
[ (B) re$ected in any part by the Secretary and a sum-
mary of the reasons for each rejection.
[ (10) a compilation of agreements made under section 60106
of this title that were—
[ (A) in effect; or
[ (B) ended in any part by the Secretary and a summary
of the reasons for ending each agreement.
[ (11) a description of the number and qualifications of State
pipeline safety inspectors in each State for which a certification
under section 60105 of this title or an agreement under section
60106 of this title is in effect and the number and qualifica-
tions of inspectors the Secretary recommends for that State.
[ (12) recommendations for legislation the Secretary consid-
ers necessary—
[ (A) to promote cooperation among the States in improv-
ing—
[ (i) gas pipeline safety; or
[ (ii) )iazardous liquid pipeline safety programs; and
[ (B) to strengthen the national gas pipeline safety pro-
gram.
[ (b) SUBMIssION OF ONE REPORT.—The Secretary may submit
one report to carry out subsection (a) of this section.1
§60124. Population encroachment
(a) LIILND USE RECOMMENDAT1ONS.—The Secretary of Transpor-
tation shall make available to an appropriate official of each State,
as determined by the Secretary, the land use recomm.eridations of
the Transportation Research Board’s Special Report 219, entitled
Pipelines and Public Safety.
(b) Evi .LUATION.—The Secretary shall evaluate the recommenda-
(ions in the report referred to in subsection (a), determine to what
extent the recommendations are being implemented, consider ways
to improve implementation of the recommendations, and consider
other initiatives to /lirther improue awareness of local planning and
zoning entities regarding issues involved with population encroach-
ment in proximity to the rights-of-ways of any interstate gas pipe-
line facility or interstate hazardous liquid pipeline facility.
60128. AuthorizatIon of appropriations
(a) G .s.—Not more than the following amounts may be appro-
priated to the Secretary of Transportation to carry out this chapter
(except sections 60107 and 60114(b)) related to gas:
(1) $6,857,000 for the fiscal year ending September 30,
(2) $7,000,000 for the fiscal year ending September 30,
(3) $7,500,000 for the fiscal year ending September 30,
(4) $7,866,000 for fiscal year 1996.
(5) $8,322,000 for fiscal year 1997.
(6) $8,778,000 for fiscal year 1998.
(7) $9,234,000 for fiscal year 1999.
(b) HAz i.RDous LIqI.nD.—Not more than the following amounts
may be appropriated to the Secretary to carry out this chapter (ex-
cept sections 60107 and 60114(b)) related to hazardous liquid:
(1) $1,728,500 for the fiscal year ending September 30, 1993.
(2) 1,866,800 for the fiscal year ending September 30, 1994.
(3) $2,000,000 for the fiscal year ending September 30, 1995.
(4) $2,070,000 for fiscal year 1996.
1993.
1994.
1995.
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39
(5) $2,190,000 for fiscal year 1997.
(6) $2,310,000 for fiscal year 1998.
(7) $2,430,000 for fiscal year 1999.
(c) STATE GI N’rs.—(1) Not more than the following amounts
may be appropriated to the Secretary to carry out section 60107 of
tius title:
(A) $7,750,000 for the fiscal year ending September 30, 1993.
(B) $9,000,000 for the fiscal year ending September 30, 1994.
(C) $10,000,000 for the fiscal year ending September 30,
1995.
(D) $10,764,000 for fiscal year 1996.
(E) $11,388,000 for fiscal year 1997.
(F) $12,012,000 for fiscal year 1998.
(G) $12,636,000 for fiscal year 1999.
* * * * * * *
§60126. Analysis of risk reduction benefits and costs
(a) REQUJREMENT.—NO final significant standard or regulatory
requirement issued under section 60101(b), 60102, 60103, 60108,
60109, 60110, or 60113 shall be promulgated unless the Secretary
of Transportation—
(1) certifies that the Secretary has conducted an analysis of
risk reduction benefits and costs that is based on objective and
unbiased scientific and economic evaluations of all significant
and relevant information and risk assessments provided to the
Department of Transportation by interested parties or generated
by the Department itself relating to the costs, risks, and risk re-
duction and other benefits addressed by the standard or re-
quirement;
(2) certifies that the incremental risk reduction or other bene-
fits of any option chosen will be likely to justify, and be reason-
ably related to, the incremental costs incurred by State, local,
and tribal governments and the Federal Government and other
public and private citizens; and
(3) explains why any other options identified or considered by
the Secretary were found either—
(A) to be less cost-effective at achieving a substantially
equivalent reduction in risk; or
(B) to provide less flexibility to State, local, or tribal gov-
ernments or regulated entities in achieving the otherwise
applicable objectives of the standard or requirement, along
with a brief explanation of why other options that were
identified or considered by the Secretary were found to be
less cost-effective or less flexible.
(b) ELEMENTS o Ar i.i’sis.—An analysis of risk reduction bene-
fits or costs prepared by the Secretary for a significant standard or
regulatory requirement, at a minimum, shall—
(1) identify the various regulatory and nonregulatory options
that were considered,
(2) analyze the incremental costs and incremental risk reduc-
tion or other benefits associated with each option identified or
considered by the Secretary;
(3) provide any technical data or other information, including
the underlying assumptions, upon which the standard or re-
quirement is based; arid
(4) include a statement that places in contest the nature and
magnitude of the risks to be addressed and the residual risks
likely to remain for each option identified or’considered.
Costs and benefits shall be quantified to the extent feasible and ap-
propriate and may otherwise be qualitatively described.
(c) RISK ASSESSMENT DOCUMENTS.—A risk assessment document
prepared by the Secretary for a significant standard or regulatory
requirement shall, at a minimum and to the extent feasible—
(1) provide the best estimate for the impacts addressed and
a statement of the reasonable range of scientific uncertainties;
(2) include a statement of any significant substitution risks to
public safety or the environment; and
(3) contain a statement that places in context the nature and
magnitude of risks to public safety or the environment.
(d) STATEMENTS.—The statement8 referred to in subsections (b)(4)
and (c)(3) of this section shall each provide, to the extent feasible,
comparisons with estimates of greater, lesser, and substantially
equivalent risks that are familiar to and routinely encountered by
the general public, as well as other risks, and where appropriate
and meaningful, comparisons of those risks wits other similar risks
regulated by the Department resulting from comparable activities.
In making such comparisons, the Secretary should consider relevant
distinctions among risks, such as the voluntary or involuntary na-
ture of risks, and the preventability or nonpreventability of risks.
(e) REviEw BY STANDARDS COMMI’TFEE.—
(1) PEER REVIEW.—For any significant standard or regulatory
requirement, the Secretary shall submit any risk assessment
documents and cost-benefit analyses (prepared or received by
the Secretary) for review by the Technical Pipeline Safety
Standards Committee, the Hazardous Lu uid Pipeline Safety
Standards Committee, or both, as appropriate, and make them
available to the public. The Technical Pipeline Safety Stand-
ards Coinmittçe and the Hazardous Liquid Pipeline ,Safety
Standards Committee shall function as peer review panels and
shall prepare reports, including any recommended options for
any significant standard or regulatory requirement and an
evaluation of the technical scientific merit of the data and sci-
entific method used for a risk assessment document or cost-ben-
efit analysis. The Committee or Committees shall submit such
reports to the Secretary within 90 days after the date of receipt
of the documents and analyses from the Secretary.
(2) RESPONSE OF SECRETARY.—The Secretary shall review the
report and recommendations of the Technical Pipeline Safety
Standards Committee, the Technical Hazardous Liquids Pipe-
line Safety Standards Committee, or both, as the case may be.
Within 90 days after receipt of such report, the Secretary—
(A) shall submit to the Committee or Committee8 a writ-
ten response to all peer review comments and recommended
options; and
(B) may revise the risk assessment document or cost-bene-
fit analysis prior to determining whether the proposed sig-
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41
nificant standard or regulatory requirement should be pro.
mulga ted.
(f) EMEROENCIES.—In the case of an emergency, the Secretary
may suspend the application of this section for the duration of the
emergency.
(g) REPORT.—NOt later than March 31, 1999, the Secretary shall
transmit to Congress a report on the application of the principles of
the analyses of risk reduction benefits and costs and risk assessment
to this chapter and their effect on pipeline safety.
§60127. Risk management
(a) RisK MANAGEMENT DEMONSTRATION PROJECT.—The Secretary
of Transportation shalt carry out a project with voluntary participa-
tion by owners and operators of p pelirie facilities to demonstrate
applications of risk management. The purpose of the project shall
be to evaluate the safety and cost effectweness of such applications.
(b) EXEMPTI0N.—Durzng the period of the demonstration project
carried out under this section, the Secretary may exempt owners
and operators participating in the project from compliance with
some or all of the standards and regulatory requirements that
would otherwise apply to such owners and operators under this
chapter. In addition, the Secretary shall exempt such owners and
operators from complying with standards and regulatory require-
ments promulgated under this chapter during the period of such
participation with respect to facilities included in the project.
(c) REQUJREMENTS.—In carrying out the demonstration project
under this section, the Secretary shall—
(1) invite owners and operators of pipeline facilities to submit
risk management plans for timely approval by the Secretary;
(2) ensure that owners and operators implementing approved
risk management plans under the project will achieve an equw-
alent or greater overall level of safety than such owners and op-
erators would otherwise achieve by complying with the stand-
ards and regulatory requirements of this chapter; and
(3) ensure that the project incorporates the following elements:
(A) collaborative training,
(B) methods to measure the performance of risk manage-
ment plans;
(C) development and application of new technologies;
(D) promotion of community awareness;
(E) development of a model to categorize the risks inher-
ent to a selected pipeline facility, considering the location,
volume, pressure, and rnciterial transported or stored by the
facility;
(F) application of risk assessment and risk management
methodologies suitable to the inherent risks deternuned to
exist by the model developed under subparagraph (E);
(G) development of project elements needed to ensure that
owners and operators participating in the project dem-
onstrate that risks are being effectively managed and that
risk management plans carried out under the project can be
audited;
(H) a process for making amendments, modifications,
and adjustments to approved risk management plans under
the project as agreed to by owners and operators carrying
out such plans and the Secretary; and
(I) such other elements as the Secretary and owners and
operators participating in the project may agree would fir-
ther the purposes of this section.
(d) EMEROENCIES.—In the case of an emergency, the Secretary
may suspend or revoke the participation of an owner or operator in
the demonstration project carried out under this section.
(e) RSP0RT —Not later than March 32, 1999, the Secretary shall
transmit to Congress a report on the results of the demonstration
project carried out under thia section together with an evaluation of
the project and recommendations on whether or not the applications
demonstrated under the project should be made a permanent part
of the Federal pipeline safety program.
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43
ADDITIONAL VIEWS
The responsibility to protect public safety and the environment
with respect to pipeline transportation is a very serious one; a re-
sponsibility that we ought not treat lightly. When pipeline acci-
dents happen, even though they occur rarely, the consequences can
be catastrophic
Just one year ago, the gas pipeline explosion in Edison, New Jer-
sey, incinerated eight apartment buildings, causing 1,500 people to
lose their homes in a matter of minutes. Flames up to 500 feet in
the air radiated heat in excess of 1 000 de reea Fahrenheit. Total
damage from the accident exceeded 25 million.
And, only one year before that, the hazardous liquid pipeline ac-
cident in Fairfax County, Virginia, spilled over 400,000 gallons of
fuel oil into the Potomac river.
Clearly, the potential for widespread public and environmental
harm from pipeline accidents is enormous. And, the potential is in-
creasing, as pipelines age and formerly remote areas become in-
creasingly developed and populated. In many cases, residents do
not even realize that they live near pipelines.
As a result, as we reauthorize the federal pipeline safety pro-
grain and explore new approaches to safety oversight, we must en-
sure that owners and operators of pipeline facilities achieve an
equivalent or greater overall level of safety than what exists today.
Some people have tried to seize what they see as an opportunit
to make it more difficult for government to ensure safety throug
regulation. Among the devices they have seized upon are the con-
cepts of cost-benefit analysis and risk assessment, the central issue
which made this reauthorization of the pipeline program different
from other reauthorizations.
In fact, these concepts have been incorporated into most safety
rulemaking for some time; the concepts themselves are not con-
troversia.l. What is controversial is how those who want to ham-
string safety rulemaking have tried to make risk assessment and
cost-benefit analysis more and more time-consuming, burdensome,
and expensive, precisely so that fewer safety rules can be issued.
The issue, therefore, is not whether to utilize risk assessment
and cost-benefit analysis to support federal rulemaking but how
best to incorporate these concepts without obstructing tke overall
objective—ensuring public safety and protecting the environment.
Risk assessment and cost-benefit analysis need not have been
added to this bill at all. In 1993, the President signed an executive
order requiring risk assessment and cost-benefit analysis. This
year, the House passed, and the Senate is considering, legislation
that would impose risk assessment and cost-benefit analysis re-
quirements on all rulemaking, including the pipeline safety pro-
gram Our actions here then are at best redundant, and at worst
dangerous
(42)
Nevertheless, when it became clear that risk assessment and
cost-benefit analysiB requirements would be Included in this bill,
we concluded that those requirements should not be so burdensome
as to make safety rulemaking unlikely, if not impossible. Further-
more the requirements should not be so rigid and prescriptive that
the ecretary of Transportation would have no responsibility for
making common sense udgements. In the end, the Secretary must
retain both the authority and the accountability for making deci-
sions that protect public safety and the environment. And finally,
it would make no sense to impose more restrictive and burdensome
risk assessment requirements on pipeline safety related regulations
than on other federal rulemakings.
We commend the Committee for the bipartisan cooperation that
led to the reasonable compromise reflected in this bill as amended
by the Subcommittee. The amendments to the risk assessment and
cost-bearing analysis requirements will ensure that the Secretary
of Transportation retains accountability for safety standards and
regulatory requirements. While the Secretary must conduct the
various layers of analysis called for in the bill, important safety
judgementa will not be based solely on some formula. The Sec-
retary will ultimately have to determine that all important factors,
even those for which accurate and reliable data are not readil
available, have been fully considered. Moreover, the Secretary wi
retain the ability to issue safety regulations in an emergency with-
out going through all the extra paperwork and process created by
this bill. And finally, the bill’s risk assessment provisions now par-
allel the House-passed risk assessment bill (HR. 1022). To the ex-
tent that a larger risk assessment bill is made less restrictive or
burdensome in the future, the risk assessment provisions in this
bill should be correspondingly scaled back.
While we support the concept of the risk management dem-
onstration project, we must ensure that it is implemented as in-
tended in this bill. The demonstration is not an opportunity to roll
back important public safety and environmental protections in the
name of economic efficiency. The Secretary must ensure that the
number of participating p peline owners and operators does not
overwhelm the Office of Pipeline Safety’s ability to manage and
evaluate the demonstration project effectively. The Secretary
should exercise due caution in granting exemptions from existing
safety standards and regulatory requirements to project partici-
pants. Participating owners and operators must clearly dem-
onstrate that they are effectively managing risk and that their risk
management plans can be audited and performance measured.
With these considerations in mind, the demonstration project offers
an excellent opportunity to evaluate, under real world conditions,
the application of risk management principles to pipeline safety.
Although there are other provisions in the bill that we would
have preferred to improve, particularly the funding levela, this
compromise legislation is a constructive step forward by all sides.
Both sides of the Committee leadership have committed themselves
to defending this product against any efforts to weaken it from a
public safety and environmental protection point of view. If the bill
is weakened from the current compromise, we will be unable to
support it further. We look forward to working with the Full Corn-
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44
mittee and Subcommittee Chairmen to move this compromise bill
through the rest of the legislative process.
We believe that it would be particularly appropriate during fur-
ther deliberations on this bill to reconsider the funding it provides
for pipeline safety. The bill provides a sharp reduction from present
appropriated levels in funding for pipeline safety programs. The FY
95 appropriated level is $37 million, and the Presideht’s request for
FY 96 if $45 million Yet the FY 96 authorized level in this bill is
only $20 million, a level which would be inadequate to fund critical
aspects of the pipeline safety program.
For example, the Office of Pipeline Safety would be unable to
meet the 50 percent reimbursement goal for State grants, and
could not begin its proposed initiative to encourage States to use
nsk management principles The Committee bill only provides
$10.8 million for fiscal year 1996 State grants The President re-
quested $13.2 million to meet the fiscal year 1996 reimbursement,
and $1.8 million to help States develop risk assessment profiles of
pipelines under their jurisdiction so that the State programs can
begin using risk management principles.
Moreover, with the funding authorized in the Committee bill the
Office of Pipeline Safety would not be able to continue efforts
begun in fiscal year 1995 to improve its safety monitoring. Thirty
percent of the increased funding in fiscal year 1995 will be used to
hire 16 additional field inspectors and regulatory support special-
ists, and to contract for 33 engineers to inspect new pipeline con-
struction and replacement projects and to assess the risk of pipe.
line failures. Clearly, these efforts could not be sustained with the
45 percent cut from current appropriations proposed in the Com-
mittee bill.
Technical studies being undertaken with the increased fiscal year
1995 funding on such issues as classifying environmentally sen-
sitive areas, identifying corrosion, fractures, weld failures, and
other defects in aging pipelines, and automating information sys-
tems would be jeopardized by the authorized funding in the Com-
mittee bill. The information these studies will provide is exactly
what is needed to implement risk assessment and risk manage-
ment effectively.
All of the funding for these programs comes from user fees; none
comes from the general taxpayer We should, in our further delib-
erations on the bill, consider providing for funding levels sufficient
both to maintain the public safety and to credibly implement the
reforms called for in this bill.
JA.z s L. OBERSTAR.
NIcK RANALL.
CORRINE BROWN.
E.H. NORTON.
NORMAN Y. MINETA.
BOB Boasm.
PETER DEFAzI0,
WALTER TUCKER III.
ADDITIONAL VIEWS OF JERROLD NADISER
I compliment the Ranking Member, Mr. Mineta, on his dedicated
efforts to negotiate a compromise mitigating the d image to public
safety laws threatened by the ‘Pipeline Safety Act of 1995” as In-
troduced. The bill reported by the full Committee is a vast Improve-
ment.
Nonetheless, the ‘Pipeline Safety Act,” as reported by the Trans-
portation and Infrastructure Committee, still poses a serious threat
to the environment and to public health and welfare by rolling back
existing protections and by mandating burdensome new bureau-
cratic procedures. For example, the ‘Pipeline Safety Act of 1995”
would lower the threshold level at which a coat/benefit analysis
would be mandated from the $100 million level set by President
Reagan and maintained by Presidents Bush and Clinton, to a mere
$25 million—requiring extra time and resources and approval by
extra layers of bureaucracy before most safety regulations could be
promulgated.
Additionally, as the Minority dissenting views correctly point out,
this bill fails to authorize adequate funding, further hampering fed.
era! officials in their effort8 to protect public health and environ-
mental safety, and compounding the problem of overly excessive
bureaucratic procedures.
The danger, and the coat, to the public from pipeline disasters is
all too clear. It should be just as clear that we must not tolerate
a relaxation of our efforts to prevent further disasters.
(45)
0
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104TH CONGP’.ss I I Bin. 104—110
1st & salon EOUSE OF REPRESENTATiVES part 2
PIPELINE SAFETY ACT OF 1995
JWIE 1, 1995.—Cornmltt.ed to the Committee of the Whole House on the State of
the Union and ordered to be printed
Mr. BLrnEY, from the Committee on Commerce, submitted the
following
REPORT
together with
DISSENTING AND ADDITIONAL DISSENTING VIEWS
[ To accompany WE. 13231
[ Including cost estimate of the Congressional Budget Officel
The Committee on Commerce, to whom was referred the bill
(Hit. 1323) to reduce risk to public safety and the environment as-
sociated with pipeline transportation of natural gas and hazardous
liquids, and for other purposes, having considered the same, re-
ports favorably thereon with an amendment and recommends that
the bill as amended do pass.
CONTENTS
PMe
The amendment 2
Purpose and summary 9
Background and need 9
Heanngs 13
Committee consideration 13
Roilcall votes 13
Committee oversight findings 15
Committee on Government Reform and Oversight 16
Committee cost estimates 16
Congressional Budget Office estimates 16
Inflationary Lmpact statement a 18
Sectton.by.sectson analysis and discussion 18
Changes in existing law made by the bill, as reported 22
91—105
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2
3
Minority and additional views , 40
AMENDMENT
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu thereof
the following:
SECTiON 1. SUOR1’ rrrtz.
This Act may be cited as the Pipeline Safety Act of 1995”.
SEC. 2. REFERENCES.
(a) REFERENCES I’O TITLE 49—Except as otherwise expressly provided, whenever
in this Act an amendment or repeal is expressed in terms of an amendment to, or
repeal of, a section or other provision, the reference shall be considered to be made
to a section or other provision of title 49, United States Code.
(b) REFERENCES TO ThE SECRDTARY or TRANSPORYAI’ION —Except as otherwise ex-
pressly provided, any reference in this Act to the “Secretary” is a reference to the
Secretary of Transportation.
SEC. 3. ANALYSIS OF JUSK REDUCTION BENEFITS AND COSTS.
(a) IN GENERAL —Chapter 601 is amended by adding at the end the follc>wing new
section.
“I 60126. Analysis of risk reduction benefits and costs
‘(a) REQUIREMENT—NO final significant standard or regulatory requirement is-
sued under section 60101(b), 60102, 60103, 60108, 60109, 60110, or 60113 shall be
promulgated uniess the Secretary of Transportation—
“(1) certifies that the Secretary has conducted an analysis of risk reduction
bcnefit.s and costs that is based on objective and unbiased scientific and eco-
nonuc evaluations of all significant and relevant information and risk assess-
ments provided to the Department of Transportation by interested pastes or
generated by the Department itself relating to the costs, risks, and nsk reduc-
tion and other benefits addressed by the standard or requu’ement;
(2) certifies that the incremental risk reduction or other benefits of any op.
tion chosen will be likely to ,justif ’, and be reasonably related to, the incremen-
tal costs incurred by State, local, and tribal govern.naents and the Federal Gov-
ernment and other public and private citizens, and
“(3) explains why any other options identified or considered by the Secretary
were found cither—
“(A) to be less cost-effective at achieving a substantially equivalent reduc-
tion in nsk, or
“(B) to provide less flexibthty to State, local, or tribal governments or reg-
ulated entities in achieving the otherwise applicable objectives of the stand-
ard or requirement, along with a brief explanation of why other options
that were dentified or considered by the Secretary were found to be less
cost-effective or less flexible
“(b) ELEMEN’TS or ANALYSIS —An analysis of risk reduction benefits or costs pre-
pared by the Secretary for S significant standard or reg ilat.ory requirement, at a
minimum, shall—
“(1) identify the various regulatory and nonregulatory options that were con-
sidered;
“(2) analyze the incremental costs and incremental risk reduction or other
benefits associated with each option identified or considered by the Secretary;
“(3) provide any technical data or other information, including the underlying
assumptions, upon which the standard or requirement is based; and -
“(4) include a statement that places in context the nature and magnitude of
the risks to be addressed and the residual risks likely to remain for each option
identified or considered. - -
Costa and benefits shall be quantified to the extent fea.sible and appropriate and
may otherwise be qualitatively described.
“ Ic) Risx ASSESSME 1’4 I ’ Docw n-rs.—A risk aseesement document prepared by the
Secretary for a significant standard or regulatory requirement shall, ats minimum
and to the extent feasible—
“11) provide th. best Umat. for the Impec S4JD....od and a statement of
Lb. reajo- range of .clentifi aintleç
2) Ir . %$ i4 SC * r ’ - !fo s public safety
seth ..
“(3) contain a statement that places in context the nature and magnitude of
risks to public safety or the environment
“(d) STA’TEMEN’TS.—The statements referred to In subsections (bX4) and (cX3) of
this section shall each provide, to the extent feasible, comparisons with estimates
of greater, lesser, and substantially equivalent risks that are familiar to arid i-ou-
tinely encountered by the general public, as well as other risks, and, where appro-
priate and meaningful, comparisons of those risks with other similar risks regulated
by the Department resulting from comparable activities. In making such compari-
sons, the Secretary should consider relevant distinctions among risks, řuch as the
voluntary or Involuntary nature of risks, and the preventability or nonprevent.abllity
of risks.
“(e) REVIEW BY STANDARDS COMMITrEE.—
“(1) PEER nnvizw.—For any significant standard or regulatory requirement,
the Secretary shall submit any risk assessment documents and cost-benefit
analyses çprepared or received by the Secretary) for review by the Technical
Pipeline Safety Standards Committee, the Hazardous Liquid Pipeline Safety
Standards Committee, or both, as appropriate, and make them available to the
public. The Technical Pipeline Safety Standards Committee and the Hazardous
Liquid Pipeline Safety Standards Committee shall function as peer review pan-
els and shall prepare reports, Including any recommended options for any sig-
nificant standard or regulatory requirement and an evaluation of the technical
scientific merit of the data and scientific method used for a risk assessment doc-
ument or cost-benefit analysis- The Committee or Committees shall submit such
reports to the Secretary withIn 90 days after the date of receipt of the docu-
ments and analyses from the Secretary.
(2) RESPONSE OF SECRZTAR’Y.—The Secretary shall review the report and rec-
ommendations of the Technical Pipeline Safety Standards Committee, the Tech-
nical Hazardous Liquids Pipeline Safety Standards Committee, or both, as the
case may be. Within 90 days after receipt of such report, the Secretary—
“(A) shall submit to the Committee or Committees a written response to
all peer review comments and recommended options; and
“(B) may revise the risk assessment document or cost-benefit analysis
prior to determining whether the proposed significant standard or regu-
latory requirement should be promulgated.
“(I) Er RGENCIES.—lfl the case of an emergency, the Secretary may suspend the
ap, 1 ilication of this section for the duration of the emergency-
(g) REPORT.—Not later than March 31, 1999, the Secretary shall transmit to Con-
gress a report on the application of the principles of the analyses of risk reduction
benefits and costs and risk assessment to this chapter and their effect on pipeline
safety “.
(b) CONFORMING AiSENDMENT.—The analysis for chapter 601 is amended by add-
ing at the end the following-
60i26 M iy% .b of nek iedueII i b ofIts inS jrts.
60i27 Riik oiinig inent. ”.
SEC. 4. DEFINTIIONS.
(a) lu GENERAL—SectIon 60101(a) is amended—
(1) by striking subparagraph (B) of paragraph (21) and Inserting the follow-
ing
“(B) does not include the gathering of gas, other than gathering through
regulated gathering lines, in those rural locations that are outside the lim-
its of any incorporated or unincorporated city, town, or village, or any other
designated residential or commercial area (such as a subdivision, business,
shopping center, or community development) or any similar populated area
which the Secretary of Transportation may define as a nonrural area; but
“(C) includes the movement of gas through regulated gathering lines.”;
and
(2) by adding at the end the following
“(23) ‘best estimate’ means a scientifically appropriate estimate which Is
based, to the extent feasible, on one of the following
IA) Central estimates of risk using the most plausible assumptions.
IB) An approach which combines multiple estimates based on different
scenarios and weighs the probability of each scenario.
IC) Any other methodology designed to provide the mo” unbiased rep-
resentation of the most plausible level of risk, given th’ ‘nt scientific
information available to the Secretary.
“(24) ‘benefits’ means the reasonably identifiable significant .i. safety, en-
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4
5
or indirectly from implementation of a standard, regulatory requirement, or op-
Don.
‘(25) ‘costs’ means the direct and indirect costs to the United States Govern-
ment, to State, local, and tribal governments, and to the private sector, wage
earners, consumers, and the economy of implementing and complying with a
standard, regulatory requirement, or option.
“(26) ‘risk assessment document’ means a document containing—
“(A) an explanation of how hazards associated with a substance, activity,
or condition have been identified, quantified, and assessed, and
“(B) a statement by the preparer of the document accepting the findings
of the document
“(27) ‘risk management’ means the systematic application, by the owner or op-
erator of a pipeline facility, of management policies, procedures, finite resources,
and practices to the tasks of analyzwg, assessing, and controlling risk in order
to protect employees, the general public, the environment, and pipeline facili-
ties
‘(28) ‘risk management plan’ means a management plan utilized by a gas or
hazardous liquid pipeline facility owner or operator that encompasses risk man-
agement
“(29) ‘significant standard or regulatory requirement’ means any safety or en-
vironmental standard or regulatory requirement, or closely related group of
safety or environmental standards or regulatory requirements, that is likely to
result in annualized compliance costs in excess of $25,000,000.
“(30) ‘substitution risk’ means a potential risk to public safety or the environ-
ment from a significant standard, regulatory requirement, or option designed to
decrease other risks.”
(b) GAThERiNG LINE S—Se ction 60101(bX2) is amended by inserting ‘, if appro-
priate,” after ‘Secretary” the first place it appears.
SEC 5 GENERAL AUTHORITY.
(a) Maw nJM 5M m Sr*.wiuws.—.Section 60102(a) is amended—
(1) by striking ‘(aX 1)’ and inserting “(a)”,
(2) by striking paragraph (2),
(3) by redesignating subparagraphs (A), (B), and (C) as paragraphs (1), (2),
and (3), respectively;
(4) in paragraph (1), as redesignated by paragraph (3) of this subsection, by
striking ‘transporters of gas and hazardous liquid and to”; and
(5) by striking paragraph (3), as redesignated by paragraph (3) of this sub-
section, and inserting the followmg
‘(3) shall include a requirement that all individuals who operate and main-
tain pipeline facilities must be qualified.
Such qualifications shall address the ability to recognize and react appropriately to
abnormal operating conditions that may indicate a dangerous situation or a condj-
lion exceeding design limits. The operator of the pipeline facility shall ensure that
employees who operate and maintain the facility are qualified.’.
Cli) PRAcncA.siLrrY AND SAn D-v NEEDS SwirMiu .—Section 60102(b) is amend-
ed-
(I) by striking ‘section 60103” and inserting “sections 60103 and 60112”;
(2) in paragraph (1XB) by inserting “safety” after ‘pipeline”;
(2) by striking ‘and” at the end of paragraph (3);
(4) in paragraph (4) by striking “contribute to” and Insert ing “benefit”;
(5) by striking the period at the end of paragraph (4) and inserting’; and’;
and
(6) by adding at the end the following new paragraph.
‘(5) the comments and recommendations of the Technical Pipeline Safe
Standards Committee, the Technical Hazardous Liquid Pipeline Safety Stan -
ards Committee, or both, as appropriate.’.
Cc) FAciirrv OPERATION INFORMATION SmNDAIWa—Section 60102(d) is amended
in the first sentence—
(1) by inserting after ‘operating the facility” the following “as required by the
standards prescribed under this chapter”;
(2) by striking “to provide the information’ and inserting “to make the infor-
mation available’, and
(3) by in e ting after ‘to the Secretary and an appropriate State official” the
following ‘tai ‘determined by the Secretary”.
Cd ) PIPE INVEIflOR’Y STANDARDS —Section 60102(e) is amended in the re-n sen-
tence—
(1) by striking ‘and, to the extent the Secretary considers necessary, an oper-
ator of a gathering line that Is not a regulated gathering line (as defined under
section 60101(bX2) of this title),”; and
(2) by striking “transmission and Inserting ‘transportation’.
(e) SMART Pios.—
(1) MUilMUM sAFE TY s’TANDARDt—Section 60102(f) Is amended by striking
“or and all that follows through ‘device.” and inserting the following;
“(1) MIMMiJM s.cnrv SrANDABDa—The Secretary shall prescribe minimum
safety standards requiring that the design and construction of a new gas or haz-
ardous liquid pipeline transmission facility be carried out, to the extent prac-
ticable, In a way that accommodates the passage through the facility of an in-
strumented internal inspection device (commonly referred to as a ‘smart pig’)
The Secretary shall also prescribe minimum safety standards requiring that
when a segment of an existing gas or hazardous liquid pipeline transmission fa-
cility is replaced, to the extent practicable, the replacement segment can accom-
modate the passage of an instrumented internal Inspection device. The Sec-
retary may apply the standard to an existing gas or hazardous liquid facility
and require the facility to be changed to allow the facility to be inspected with
an instrumented internal inspection device if the basic construction of the facil-
ity will accommodate the device.”.
(2) PERIODIC iusrncnons.—Section 60 102(0 is further amended—
(A) in paragraph (2) by inserting “PERIODIC INSPECTIONS.—” after ‘(2)”;
(B) in paragraph (2) by Inserting after “the Secretary shall prescnbe” the
followingr’, if necessary, additional”, and
(C) by moving paragraph (2) 2 ems to the right.
(I ’) UPDATING STANDARDs.—Sect iOn 60102 is amended by adding at the end the fol-
lowing :
“(1) UPDATING STANDARDS.—The Secretary shall, to the extent appropriate and
practicable, update incorporated industry standards that have been adopted as part
of the Federal pipeline safety regulatory program.”.
SEC. S. RISK MANAGEMENT.
Chapter 601 is further amended by adding at the end the following new section:
‘160127. Risk management
“(a) RISK MANAGEMENT DEMONsTRATiON Pno.jEa.—The Secretary of Pranspor-
tatlon shall catty out a project with voluntary participation by ewners and operators
ol’ pIpeline facilities to demonstrate applications of risk management The purpose
of the project shall be to evaluate the safety end cost effectiveness of such applica-
tions-
“(b) EnMFriON.—During the period of the demonstration project carried out
under this section, the Secretary may exempt owners and operators participating In
the project from compliance with some or all of the standards and regulatory re-
q ulrementa that would otherwise apply to such owners and operators under this
chapter. In addition, the Secretary shall exempt such owners and operators from
complying with standards and regulatory requirements promulqated under this
chapter during the period of such participation with respect to facilities Included in
the project.
‘Cc) REQUIREMENTS—In carrying out the demonstration project under this section,
the Secretary shall—
‘(1) invite owners and operators of pipeline facilities to submit risk manage-
ment plans for timely approval by the Secretary;
“(2) ensure that the approved risk management plans under the project con-
tain measures that are designed to achieve an equivalent or greater overall
level of safety than would otherwise be achieved by complying with the stand-
ards and regulatory requirements of this chapter; and
“(3) ensure that the project incorporates the following elements:
“(A) collaborative training
“(B) methods to measure the performance of risk management plans;
“(C) development end application of new technologies;
“CD) promotion of community awareness;
“(E) development of a model to categorize the risks inherent to a selected
pipeline facility, considering the location, volume, pressure, and material
transported or stored by the facility;
“(F) application of risk assessment and risk management methodologies
suitable to the inherent risks determined to exist by the model developed
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6
7
“(G) development of project elements needed to ensure that owners and
operators participating in the project demonstrate that risks are being ef-
fectively managed and that risk management plans carried out under the
project can be audited;
“(H) a process for making amendments, modifications, and adjustments
to approved risk management plans under the project as agreed to by own-
ers and operators carrying out such plans and the Secretary; and
“U) such other elements as the Secretary and owners a’nd operators par-
ticipating in the project may agree would further the purposes of this sec-
tion.
‘(dl EMERGENCIES.—IYI the case of an emergency, the Secretary may suspend or
revoke the participation of an owner or operator in the demonstration project car-
ried out under this section
“(e) REPORT—Not later than March 31, 1999, the Secretary shall transmit to Con-
gress a report on the results of the demonstration project carried out under this sec-
tion together with an evaluation of the project and recommendations on whether or
not the applications demonstrated under the project should be made a permanent
part of the Federal pipeline safety program”.
SEC 7 INSPECTION AND MAIrrrENANCE.
Section 60108 is amended—
(1) in subsection (aXi) by striking “transporting gas or hazardous liquid or”
each place it appears,
(2) in subsection (bX2) by striking the second sentence;
(3) in the heading to subsection (c) by striking “NAVIGABLE WATERS” and In-
serting “OrHtR WATERS”; and
(4) by striking clause (ii) of subsection (cX2XA) and inserting the following:
“(ii) any other pipeline facility crossing under, over, or through waters where
a substantial likehhood of commercial navigation exists if the Secretary decides
that the location of the facility in those waters could pose a hazard to naviga.
bon or public safety”.
SEC 8. HIGH DENSITY POPULATION AREAS AND ENVIRONMENTALLY SENS FIVE AREAS.
(a) IDENTIFICA11ON —Section 60109(aX1XBXi) is amended by striking “a navigable
waterway (as the Secretary defines by regulation)” and inserting “waters where a
substantial likehhood of commercial navigation exists”.
(b) UNUSUALLY SENSrrFVE AnxAS —Section 60109(b) is amended to read as fol-
lows
“(b) AREAS To BE INCLUDED AS Ui ’ws i .u .x SENSITIVE —When describing areas
that are unusually sensitive to environmental damage if there is a hazardous liquid
pipeline accident, the Secretary shall consider areas where a pipeline rupture would
likely cause permanent or long-term environmental damage, including—
“(1) locations near pipeline rights-of-way that are critical to drinking water,
including intake locations for community water systems and critical sole source
aquifer protection areas, and
“(2) locations near pipeline rights-cf-way which have been identified as critical
wetlands, nverine or estuarine systems, National Parks, wilderness areas, wild-
life preservation areas and refuges, wild and scenic rivers, or critical habitat
areas for threatened and endangered species.”.
SEC 9 IL’ CESS FLOW VALUES.
Section 60110 is amended—
(I) in subsection (b) by inserting”, if any,” after “cu-cumstances”;
(2) in subsection (bX4) by inserting”, operating, and maintaiping” after “cost
of installing”,
(3) in subsection (cX1XC) by inserting”, maintenance, and replacement” after
‘installation”, and
(4) in subsection (e) by inserting after the first sentence the following: “The
Secretary may adopt industry accepted performance standards in order to com-
ply with this i-equiremenL”.
SEC IC. CUSTOMER-OWNED NATURAL GAS SERVICE LENES.
Section 60113 is amended—
(1) by striking “(a) MAINTENANCE INFORMATION.— ”; and
(2) by striking subsection (b)
SEC ii. ONE-CALL. NOTIfICATION SYSTEMS.
(a) APPLICAT’ Section 60114(a) is amended—
(1) in pa ,h (1) by striking “the system apply to”;
(2) in pai .iph (1) by lnsertinr before the ner,n t “h . .n.,. ... -i % -. -
(3) in each of paragraphs (1), (2)1 (3), (6), (7), (8), and (9) by striking “a” the
first place it appears and insertlng A”-
(4) in paragraph (4) by striking qualifications” and inserting “Qualifications”;
and
(5) in paragraph (5) by striking “procedures” and inserting “Procedures”.
(b) SANcTIONS —Section 60114(aX9) is further amended by striking “60120, 60122,
and 60123” and inserting “60120 and 60122”.
SEC. Iz. TECHNICAL SAFETY STANDARDS COMMi’I’rEES .
(a) PEEP REVSEW.—Sectlon 60115(a) is amended by adding at the end the follow-
ing: “The Committees shall serve as peer review committees for carrying out this
chapter. Peer reviews conducted by the Committees shall be treated for purposes of
all Federal laws relating to risk assessment and peer review (including laws ap-
proved after the date ol the enactment of the Pipeline Safety Act of 1995) as meet-
ing any peer review requirements of such laws.”.
(b) COMPOSITION AND APPOIN1’MEP Fr. —SeCtlOn 60115(b) Is amended—
(1) in paragraph (1) by Inserting “or risk management” before the period at
the end of the last sentence;
(2) in paragraph (2) by Inserting “cr risk management” before the period at
the end of the last sentence;
(3) in paragraph (3X& by strIking “4” and Inserting “6”;
(4) in paragraph (3XC) by strIking “6” and Inserting “5”;
(5) in paragraph (4XB) by addin at the end the following: “At least 1 of the
Individuals selected for each committee under paragraph (3XB) must have edu-
cation, background or experience in risk assessment end cost-benefit analysis.
The Secretary shah consult with the national organizations representing the
owners and operators of pipeline facilities before selecting Individuals under
paragraph (3XB),”, and
(6) In paragraph (4XC) by Inserting after the first sentence the following: “At
least 1 of the Individuals selected for each committee under paragraph (3XC>
must have education, background, or experience In risk assessment and cost.-
benefit analysis.”.
(c) C0MMrPI ’EE RaPORTS .—Sectiofl 60115(c) Is amended—
(1) by inserting “or regulatory requirement” after “standard” each place It ap-
pears in paragraphs (1). (2). and (3);
(2) in paragraph (1XA) by inserting after “gas pipeline facilities” the following:
“,including the risk assessment document, cost-benefit, and other analyses sup-
porting each proposed standard or regulatory requirement”;
(3) in paragraph (1XB) by Inserting after “hazardous liquid pipeline facilities”
the following “,including the risk assessment document, cost-benefit, and other
analyses supporting each proposed standard or regulatory requirement”; and
(4) in paragraph (2)—
(A) by inserting “and supporting analyses” before the first comma in the
first sentence,
(B) by inserting “and submit to the Secretary” after “prepare” In the first
sentence,
(C) by inserting “cost effectiveness” after “reasonableness,” in the first
sentence;
(D) by inserting “together with recommended actions” before the period
at the end of the first sentence, and
(E) by inserting “any recommended actions and” after “including” In the
second sentence.
(d) PROPOSED Coi mirrrEE ST AND?JW8 m UnDulATORY REQuIREMEN ’IS.—Sectlofl
60115(dXl) is amended by Inserting “or regulatory requirement” after “standard”
each place it. appears;
(e) MEEmNGS.—Settion 60115(e) is amended by strildng “twice” and Inserting “4
times”.
(f) E a’ENSES —Section 60115(1) Is amended—
(J) in the subsection heading by striking “P*Y AND”;
(2) by striking the first two sentences; and
(3) by inserting “of a committee under this section” after “A member”.
SEC. 13. PUBUC EDUCATION PROGRAMS-
Section 60116 is amended—
(1) by stnking “person transporting gas” and inserting “owner or operator of
a gas pipeline facility”;
(2) by inserting “the use of damage ,prevention (‘one-call’) syst nor to ex-
cavation” after “educate the public on : and
-------
SEC 19 USER FEES.
Within 6 months alter the date of the enactn-ient of this Act, the Secretary of
Transportation shall transmit to the Congress a report analyzing whether the as-
sessment of pipeline safety user fees solely on the basis of mileage is the most ap-
propriate measure of the resources used by the Department of Transportation in the
regulation of pipeline transportation, or whether another basis of assessment might
be more appropriate.
SEC 20 DUMPING WiThIN PIPEUNE RIGHTS-OF WAY.
(a) A.MEMDMEi T —Chapter 601 is amended by adding at. the end the foUowing new
section
‘ 460128. Dumping within pipeline rights-of-way
“(a) I>RoniurnoN —No person shall excavate for the purpose of unauthorized dis-
posal within the right-of-way of an interstate gas pipeline facility or interstate haz-
ardous liqwd pipeline facility, or any other limited area in the vicinity of any such
interstate pipeline facility established by the Secretary of Transportation, and dis-
pose solid waste therein
‘(b) DEFINITION —For purposes of this section the term ‘solid waste’ has the
meaning given such term in section 1004(27) of the Solid Waste Disoosal Art 2
U S C 6903(27))”
9
(b) CONFORMINO AwEm ENTS.—(1) Sections 60122 and 60123 are amended by
etrik1 )g or 60118 (a ) ” and Inserting In lieu thereof”, 8011 8 (a) or 60128”.
(2) The table of sec ons of chapter 601 18 amended by adi ng at the end the fol-
lowing new Item:
“60126. Du plag . ‘1thIn plp!ltni rl$hta .i(-w J! ”
PURPOSE AND SUMMARY
H.R. 1323 reauthorizes the Natural Gas Pipeline Safety Act of
1968 and the Hazardous Liquid Pipeline Safety Act of 1979. These
two Acts were combined into Chapter 601 of Title 49 of the United
Statea Code during recodification of laws in 1994.
BACKGROUND AND NEED FOR LEGISLATION
There are approximately 1.9 million miles of underground pipe-
line in the U.S., made up of approximateLy 200,000 miles of liquids
pipelines; 280,000 miles of gas transmission lines; and 1.5 million
miles of gas distribution lines. These lines transport approximately
20 trillion cubic feet of gas per year and over 50% of the petroleum
products consumed in the U.S. These pipelines are regulated by the
Office of Pipeline Safety COPS) within the Research and Special
Programs Administration of the U.S. Department of Transportation
(DOT).
Current Federal pipeline safety regulations cover pipeline design,
constructio’ i operation and maintenance, emergency r’-tx’edures.
+_.- P ,..,,-
8
SEC. 14. ADMINISTRATiVE.
Section 60117 is amended by adding at the end the following:
“(k) Aiiri oarr FOR COOPERATIVE AGRzr sz -rs.—To carry out this chapter, the
Secretary may enter into grants, cooperative agreements, and other transactions
with any person, agency, or instrumentality of the United States, any unit of SI .ate
or local government, any educational institution and any other entity to further the
objectives of this chapter. Such objectives include, but are not limited to, the devel-
opment, improvement, and promotion of one-call damage prevention programs, re-
search, risk assessment, and mapping “.
SEC. ia COMPLIANCE AND WAIVERS.
Section 60118 is amended by adding at the end the follow-mg:
“(e) COMPLIANCE WITH RISK MANAGEMENT PLANS—Owners and operators that
are participating in the demonstration project under section 60127 shall be consid-
ered to be in compliance with any prescribed safety standard or regulatory require-
ment that is covered by an approved plan under section 60127.”.
SEC. 16. DAMAGE REPORTING.
Section 60123(dX2) is amended—
(1) by striking “or” at the end of subparagraph (A),
(2) by redesignating subparagraph (B) as subparagraph (C), and
(3) by inserting after subparagraph (A) the following-
“(B) a pipeline facility and does not report the damage promptly to the
operator of the pipeline facility and other appropriate authorities, or”.
SEC 11. ANNUAL BEPORIS.
Section 60124 and the item relating to such section in the analysis for chapter
601 are repealed
SEC iR POP%AAi ION ENCROAC}ThIiNT.
(a) l. GEr tRAj. —Chapter 601 is amended by inserting after section 60123 the fol-
lowrng new sectinir
“ 60l24. Population encroachment
‘ a LAi ’ D USE RECOMMENDATIONS—The Secretary of Transportation shall make
aiable to an appropri ate official of each State, as determined by the Secretary,
iie land use recommendations of the Transportation Research Board’s Special Re-
port 219, entiUed ‘Pipelines and Public Safety’.
‘tb) EVALUATION —The Secretary shall evaluate the recommendations in the re-
port referred to in subsection (a), determine to what extent the zeec ’mmendationg
are being implemented, consider ways to improve implementation of the rec-
ommendations, and consider other initiatives to further improve awareness of local
planning and zoning entities regarding issues involved with population encroach-
ment in proximity to the rights-of-ways of any interstate gas pipeline facility or
interstate hazardous liquid pipeline facility.”.
(b) CONFORMING AMENDMENT.—The analysis for chapter 601 is amended by in-
serting after the item relating to section 60123 the following-
60124 Poput iiori ericrv chment -
C. 2L PRSVEI ’(IION OF DAMAGE TO FWELD4E r*cnxnzs.
Section 60 117(a) is amended by inserting after “and training activities” the follow-
ing: “and promotional activities relating to prevention of damage to pipeline fadhi-
tie?.
fl. TECHNICAL CORRECTIONS.
(a) SECTION 60105.—The heading to section 60105 is amended by Inserting “pipe-
line safety program” after “State”.
(b) SECTION 60 106.—The heading to section 60106 is amended by Inserting plpe-
line safety” alter “State”.
(c) SECTION 60107.—The heading to section 60107 is amended by Inserting “pipe-
line safety” alter “State”.
Cd) CnAPTER Az-IAI.,YSI5 —The analysis for chapter 601 is amended—
(1) in the item relating to section 60105 by Inserting “pipeline safety pro-
gram” after “State”;
(2) in the item relating to section 60106 by Inserting “pipeline safety” after
“State”; and
(3) in the item relating to section 60107 by inserting “pipeline safety” after
“State”.
SEC. . AUTHORIZATIONS OF APPROPRIATION.
(a) GAS , ‘ m HAZAnnOUS LIQUID —Section 60125(a) is amended to read as follows:
“(a) GAS AND HAzAJ 1DOUS LIQUID.—Not more than the following amounts may be
appropriated to the Secretary of Transportation for carrying out this chapter (except
sections 60107 and 60114(b)) related to gas and hazardous liquid:
“(i) $9,936,000 for fiscal year 1996.
“(2) $10,512,000 for fiscal year 1997.
“(3) $11.088,000 for fiscal year 1998.
“(4) $11,664,000 for fiscal year 1999.”.
(b) REPCAL.—Section 60125(b) is repealed.
(c) STATE Giw rs.—Sectlon 60125(cXl) Is amended by adding at the end the fol.
lowinr
“(D) $10,764,000 for fiscal year 1996.
(E) $11,388,000 for fiscal year 1997.
“(F) $12,012,000 for fl cal year 1998.
“(G) $12,636,000 for fiscal year 1999.”.
-------
10
11
reporting requirements. States are largely preempted from regulat-
ing pipeline safety. However, they may assume responsibility for
enforcing Federal intrastate pipeline regulations and inspection of
interstate pipelines. In practice, States, vary considerably in their
authority and capacity to address pipeline safety. By law, States
that are certified to implement Federal pipeline regulations may
receive as much as 50% of the personnel and equipment costs of
a State program State and local governments may also legislate
damage prevention laws and land use controls and may sponsor
emergency preparedness planning and training. In addition, States
may impose additional 8tandards for the safety regulation of intra-
state pipelines and facilities as long as such standards are compat-
ible with the minimum Federal standards.
From 1987 to 1994, there was a total of 44 fatalities related to
liquid and natural gas transmission accidents. This is compared to
over 42,000 fatalities related to other forms of traflBportation. De-
spite this fairly good safety record, both industry and DOT have
supported overhauling the current pipeline safety laws to take a
more risk-based approach. By taking a risk-based approach to pipe-
line safety, the threat to public safety, health and the environment
posed by pipelines will be reduced and the cost of safety regulation
lowered.
Authorization for the Natural Gas Pipeline and Hazardous Liq-
uid Pipeline Safety Acts, now codified as 49 U.S.C. § 60101 et seq.,
expires September 30, 1995. At the hearing held by the Sub-
committee on Energy and Power, there was general agreement be-
tween DOT and interested parties that these Acts need to be modi-
fied before they are reauthorized. Thus, in addition to reauthoriz-
ing existing pipeline safety laws, H.R. 1323 adds new risk assess-
ment and risk management elements and makes a number of
smaller changes.
RISK ASSESSMENT AND RISK MANAGEMENT
The basic concept underlying the Federal pipeline safety regu-
latory program is that a pipeline operator is responsible for main-
taining the safety of its system while the government is responsible
for setting minimum safety standards and ensuring that operators
are in compliance with those standards The current natural gas
and liquid pipeline safety laws take the approach of providing regu-
lations to address every perceived risk. In the past, generally, the
Pipeline Safety Acts have been modified in each reauthorization to
respond to the most recent accident For example, as a result of ac-
cidents in Kansas which occurred on the service lines leading from
the street to the home, m 1992 (the most recent reauthorization)
Congress added requirements that the DOT begin rulemakings on
regulating customer-owned service lines and requiring excess flow
valves As a result of an accident in New York Harbor, Congress
also required DOT to do a rulemaking on low pressure hazardous
liquid pipelines.
DOT has found it difficult to keep up with all the Congressional
mandates. In fact, a significant number of rulemakings DOT was
required to r -m under both the 1988 and 1992 reauthorizations
have yet to )mpleted by DOT. Both industry and DOT have
comnlained . rru,,I, s+ . ..c ;... -i. i_.. -___.
mandates on top of old ones, each of which must be applied to all
pipelines, ties up a large amount of resources and does not allow
DOT or the pipelines to identify and address those risks which pose
the greatest threat to the public and the environment. Both DOT
and the pipeline industry agree that a “one size fits all” approach
to pipeline safety is not cost-effective.
To address this problem, H.R. 1323 leaves in place current pipe-
line safety regulations, but requires DOT to do a cost benefit analy-
sis before issuing any new significant standards. Significant stand-
ards are defined by the bill as any safety or environmental stand-
ard or regulatory requirement that is likely to result in. compliance
costs in excess of $25,000,000. The risk assessment DOT is re-
quired to perform is based largely on HR. 1022, which passed the
House on February 28, 1995 by a vote of 286—141. H.R. 1323 tailors
the risk assessment approach taken in HR. 1022 to the type of ac-
tivities DOT performs. Use of a risk assessment approach to pipe-
line safety regulations is intended to give more prominence to the
consideration of the relationship between costs and benefits and
setting regulatory priorities.
The risk assessment provisions of HR. 1323 also require the Sec-
retary to create a mechanism to allow for reconsideration of old
standards under the new risk assessment requirements. The exist-
ing Technical Pipeline Safety Standards Committee and the Haz-
ardous Liquid Pipeline Safety Standards Committee are designated
to act as peer review committees. The Peer Review Committees
provide expert comment for the record, but the final regulatory de-
cision remains with the Secretary. Finally, the Secretary’s existing
authority to act in emergencies is not limited.
Risk assessment and risk management are a framework to con-
solidate and assess all relevant information on safety risks. The
outcome of the risk assessment and cost benefit analysis is not de-
termined by this legislation. However, the risk management ap-
proach will focus efforts on the most significant and realistic risks
which should both increase real safety and cost effectiveness. Infor-
mation gained from episodic events, such as the recent accident in
Edison, New Jersey, is to be fully considered in a risk assessment
approach. in addition, risks which pose a low probability of occur-
rence but have potentially high consequences will be considered.
For a more detailed explanation of risk assessment refer to the
Commerce Committee report on H.R. 9, House Report 104—33, Feb.
14, 1995.
DEMONSTRATION PROGRAM
In addition to the new risk assessment provisions, H.R. 1323, al-
lows for a risk management demonstration program under which
pipeline operators, on a voluntary basis and with DOT approval,
may institute pipeline specific risk management programs. This
would allow pipeline operators to assess the risks on their pipe-
lines, create pipeline safety programs which are tailored to individ-
ual pipelines or pipeline segments, arid implement those plans. The
concept behind risk management is that each pipr operator
knows his system best and this would give the operat flexibil-
-------
12
13
native technologies or techniques to thoBe contemplated by current
regulations.
To be eligible to participate in the risk management demonstra-
tion program, a pipeline operator must submit a plan which con-
tains elements that are designed to provide an equal or greater
level of safety than the current regulatory standards. The plan
must then be approved by DOT before the operator can implement
it. When participating in the demonstration program, pipelines
would not be subject to applicable standards or regulatory require-
ments.
The demonstration program is authorized for four years. The
purpose of the demonstration phase is to encourage DOT to ap-
prove a variety of risk management approaches to pipeline safety
that companies might propose in an effort to gain experience and
demonstrate the effectiveness of this alternative to traditional reg-
ulation. DOT would be reQuired to report to Congress at the end
of the voluntary program. Existing regulations would stay in place
during the four year program for pipelines not participating in the
voluntary program.
USER FEES
Since 1986, the Federal pipeline safety program has been fully
funded by user fees levied on pipeline operators. Those user fees
are in tuni passed on by the pipelines to consumers of the products
transported by the pipelines. Prior to the Edison, New Jersey acci-
dent in 1994, pipeline safety user fees averaged about $45 per mile.
Beginning in 1995, those fees went up to $97 per mile and DOT
requested an authorization for FY 96 which would increase those
fees to approximately $110 per mile. Much criticism has been di-
rected at the operation of the Office of Pipeline Safety. The Com-
mittee believes that DOT has not shown that the increased fees re-
quested by DOT will improve the management of the Office or
measurably enhance the safety of pjpelines.
Thus, H.R. 1323 returns to the FY 1995 authorized level and al-
lows the Department of Transportation to collect an additional 6%
per year above that level. This represents an average inflation fac-
tor plus a modest increase for each year to fund additional respon-
sibilities being placed on DOT by this authorization. By 1999, the
last year of the reauthorization, the Office of Pipeline Safety’s
budget will have increased a total of 24%. The Committee believes
that the primary responsibility for pipeline safety rests with the
pipeline operator. It is not the role of DOT to replicate every safety
activity performed by the pipeline. DOTs role i8 to make sure that
pipeline safety regulations are sufficient to protect the public
health and safety and the environment and that pipeline operators
are complying with these regulations.
H.R. 1323 also adds a new section requiring DOT to do an analy-
sis of whether the current methodology for allocating user fees
among pipelines is the most appropriate. Presently, pipeline user
fees are allocated among the various pipelines based on the number
of miles of each particular pipeline. Some pipelines have asserted
that this methodology does not accurately reflect the use of the De-
partment’s resources by each pipeline. A pipeline’s share of the cost
of safety regulation should be nrnrr rfur , ,i d 1- . ..—. -. -
sources used. Thus, DOT is directed to analyze whether the current
methodology is the most appropriate.
OTHER PROVISIONS
HR. 1323 makes a number of other amendments to Chapter 601
of Title 49 of the United States Code. It clarifies what areas the
Secretary should consider including when describing an area as
being unusually sensitive to environmental damage. it also adds a
new requirement to make unauthorized dumping on a pipeline
right-of-way illegal. In addition, the words, “if any” are reinserted
in section 60110(b) of the statute to make it clear that the Sec-
retary has the discretion, within the rulemaking on excess flow
valves, to mandate excess flow valves in certain circumstances or
to conclude that there were no circum8tances under which excess
flow valves would be mandated. Similarly, the language requiring
the Secretary to do a rulemaking on inspections by internal instru-
mented inspection devices (“smart pigs”) is clarified to make clear
that when an existing facility is being replaced only the replace-S
ment sections must be modified to accommodate the passage of a
smart pig. Finally, the bill removes provisions requiring operathr
certification and annual reports by DOT, creates a new Federal
crime of knowingly and willfully damaging a pipeline facility and
not reporting it, and authorizes the Secretary to enter into coopera-
tive agreements with States and others to promote pipeline safety.
HEARINGS
The Subcommittee on Energy and Power held a hearing on rem.’-
thorizatiori of Title 49, Chapter 601 of the United States Code on
Thursday, March 9, 1995. Testimony was received from: Congress-
man Bob Franks of New Jersey; George Tenley, Associate Adminis-
trator for Pipeline Safety, Department of Transportation; Larry D.
Hall, President and Chief Executive Officer, KN Energy Inc., on be-
half of the Interstate Natural Gas Association of America; L.C.
Thomas, President, BP Oil Pipeline Company, on behalf of the As-
sociation of Oil Pipe Lines and the American Petroleum Institute;
and ommissioner Bruce B. Ellsworth, New Hampshire Public
Utilities Commission, on behalf of the National Association of Reg-
ulatory Utility Commissioners.
COMMITFEE CONSIDERATION
The Subcommittee on Energy and Power met on Tuesday, May
16, 1995, and marked up H.R. 1323 and approved the bill for Full
Committee consideration as amended. The Full Committee met on
Wednesday, May 24, 1995, and marked up H.R. 1323 and ordered
it reported to the House, as amended.
ROLL CALL VOTES
Pursuant to clause 2(l)(2XB) of rule XI of the Rules of the House
of Representatives, following are listed the recorded votes on the
motion to report H.R. 1323 and on amendments offered to the
measure, including the names of those Members voting for and
-------
Yr BIrIey
Hr Ma rhead
Mr F eIds
Mr Dairy
Mr Bitathis
Mr Schaefer
Mr Barton
Mr Hastert
Mr Upton
Mr Stearns
Mr PaWn
Mr GitI ior
Mr Sup
Mr Frarko
Mr Gretawoid
Mr Craps
Mr Con
Mr Deaf
Mr Burr
Hr Bitb av
B
B
B
B
x
B
B
B
B
B
B
B
B
B
B
x
T
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
14
ROLL CALL VOTE 43
Bill: H.R. 1323, Pipeline Safety Act of 1995.
Amendment: Amendment by Mr. Pallone re: increase the author-
ization levels for FY 1996 through FY 1999.
Disposition: Not Agreed To, by a roll call vote of 17 ayes to 23
nays.
15
Rnyre settabw
bye
N cr
Present
hye ,na etat
J
R
P,nsnt
Mr Whittleid ._ .. ...
Mr Ganste -
M ,Fnsa
MrNolwoo . -.-.
Mr Whrte *
MiCobum _.. -. -
- .
...
.
..
.
B
B
B
B
B
X
. Mr Stupak ._.... ..._ ..
......... - ,
- ..... .......... .. . - -.. - -—
..
- .. .... .. . -. —
- ._....__
k
..... ....,
.—.,.-
...
.... ... - -
,
......-..
.. —.
.
. —-—. -.
..•
*
. .. ..
ROLL CALL VOTE 45
! eplntlrrve Aye Nay Pieser.I Rep esoetuiras Aye Nay
Present
Mr Blitry B Mr Dangell B
Mr Maorh,ad Mr Waurnan
,
Mr FieMs B Mr HarirOy .. B
Mr Oiley B Mr laturn .. . — B
Mr Bitirakis B Mr W aien .. - B
Hr Schaefer B Mr Hall .. B
Mr Barton B MrBqani B
.
MrHaste ,t B Mr Bouthe ,. B
Mr lipton B Mr Manton - B
Hr Stearns P. Mr Towns . B
Mr Paaon B Mr Studds
Mr Gitimo , B Mr Paltone B
Mr Suy MrBrnwn X
Mr Fran .u B Mr Uncoiri X
Mr Qr enwood Mr Gordon .... B
.
Mr Crapo I Ms Furse . B .
. —
HrCau B M rQeutsc ts B
Mr B Mr Rush B
Mr Burr B Mn Eshoo —- —. — P. —
Mr Sibray B Mr lUink .. B
Mr WOritliefd B Mr Stupak B
Mr Gsnshe B — - -
Mr Frisa X
Hr tlarwoort
Mr White B
Mr Cob rn
ROLL CALL VOTE 44
BillS H.R 1323, Pipehne Safety Act of 1995.
AmendmentS Amendment by Mr. Markey re: peer review.
Disposition: Not Agreed To, by a roll call vote of 19 ayes
to 23
nays
Aye NW Present R ,pr rsenlatr ne Aye Nay
Pr uat
Bill: H.R. 1323, Pipeline Safety Act of 1995.
Motion: Motion by Mr. Bliley to order H.R. 1323 reported to the
House, amended.
Disposition: Agreed To, by a roll call vote of 29 ayes to 13 nays.
— R,p ie nonts l r ne Aye Nay Present Rry iesantItM
Ass Ni
trisect
Mr BII! 57 B Mr Q’nie .. .
Mr Moortead Mr Wsomun ..
Mr Flelds B Mr Harhep
Mr Oiley - B . Mr tawan -
Mr Bilirakis . — — - — ._ Mr Wyden - .. .
Hr Scirieler - . B . - Mr Malt .. -
MrBartoin B . -. MrBvprit. .... -..
Mr I astert - I ..... - Mr Bouther .. .. ....
Mr Upboo . B .. . Mn Mactm -
Mr Steams - B ..... - Hr Towns -
Ma Panon - B . — Mr Sluids — —
Hi Oilman B ._. M r Paflone -
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Mr Franks B ._ .. .. Mr-s Uncolu .... . -
Mr Greenwood B . Mr Gordon
Mr Crapo B .. - Ms Purse - . ..
MrCaa - . B . MrDeutsdt. . --
Mr Deal ... B - — — Mr Rush — — ..
IbrBurc B .. . MsEchoo_. ..__
Mr Bribray I .... .. Mr Plink ..
Mr Wiritfield . - . I - - —. Mt Stupak ._
MrGanske_ ._ B ...._ .. . —.
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Mr Dingell -
Mr Waxrnan -
Mr Mor ley
Mr broom
Mr Wyden
Mr-Hall - -.
Mr Bryant — . . —
Mr Booth,,
Mr Mantos —
Mr Towns -
Mr Studdo
Mr Pollone
Mr Benson
Mr Lincoln
Mr Gordon
MoFurse -
Mr Oeutscfi
Hr Rush
Ms Eshoo
LI VP _t
VOICE VOTES
Bill: l-I.R. 1323, Pipeline Safety Act of 1995.
Amendment: Amendment by Mr. Schaefer re: clarify the defini-
tion on unusual environmentally sensitive areas.
Disposition: Agree to, by a voice vote.
Amendment: En Bloc Amendment by Mr. Pallone re: eliminate
risk assessment and risk management provisions and require DOT
to do several new rulemakings.
Disposition: Not agreed to, by a voice vote.
Amendment: Amendment by Mr. Pallone re: inclusion of pro—
rnotional activities relating to damage prevention
Disposition: Agreed to, by a voice vote.
COMMiTTEE OVERSIGHT FINDINGS
Pursuant to clause 2(1X3XA) of rule X l of the Ruir .he House
. I— - - — — - — —‘- -y;,_ _ _... . ...
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16
17
oversight and legislative hearings and made findings that are re-
flected in this report.
COMMITTEE ON GOVERNMENT REFORM AND OvERSIGI-rr
Pursuant to clause 2(1X3XD) of rule Xl of the Rules of the House
of Representatives, no oversight findings have been submitted to
the Committee by the Committee on Government Reform and
Oversight.
COMMITTEE COST ESTIMATE
In compliance with clause 71a) of rule XIII of the Rules of the
House of Representatives, the Committee believes that enactment
of H R 1323 would result in no additional costs to the Federal Gov-
ernment.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
Pursuant to clause 2(l)(3XC) of rule XI of the Rules of the House
of Representatives, following is the cost estimate provided by the
Congressional Budget Office pursuant to section 403 of the Con-
gressional Budget Act of 1974:
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, D.C., May 25, 1995.
Hon. THOMAS J. BLILEY, Ja.,
Chairman, Committee on Commerce,
House of Representatiries, Washington, DC.
DE, j MR Ca Iu wi: The Congressional Budget Office has pre-
pared the enclosed cost estimate for I-LR. 1323, the Pipeline Safety
Act of 1995
Enactment of H.R. 1323 should affect direct spending arid re-
ceipts Therefore, pay-as-you-go procedures would apply to the bill.
If you wish further details on this estimate, we will be pleased
tci provide them.
Sincerely.
Enclosure.
JUNE E. O’NEILL
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
1. Bill number. H.R 1323.
2. Bill titleS Pipeline Safety Act of 1995.
3. Bill status. As ordered reported by the House Committee on
Commerce on May 24, 1995.
4 Bill purpose: H.R. 1323 would:
Authorize a total of $90 million to be appropriated for the
gas and hazardous liquid pipeline safety programs and the
pipeline safety grant program for fiscal years 1996 through
1999,
Require the Secretary of Transportation to conduct benefit
and cost analyses of new pipeline safety standards and regula-
tions which have a compliance cost of greater than $25 million
nfl,. 1,fl—,_
Make technical changes to the pipeline safety program,
Establish a risk management demonstration project,
Require the Secretary of Transportation to issue a report on
pipeline user fees,
Impose a criminal penalty on all excavators who do not re-
port damaged pipeline facilities to the appropriate authorities,
and
Impose criminal and civil penalties on individuals who exca-
vate and dispose solid waste on a pipeline right-of-way without
authorization.
5. Estimated cost to the Federal Government: For purposes of
this estimate, CBO assumes that the full amount authorized for
pipeline safety programs would be appropriated. Implementing
H.R. 1323 would not result in any change in net federal spending
because the Department of Transportation collects fees to offset
pipeline safety funding. In fiscal year 1995, funding and fees for
pipeline safety (excluding oil pollution activities) were $35 million.
If the 1996 appropriation equals the authorization, funding and
fees would drop to $21 million. (The appropriations bill is charged
with the level of new funding and any change in the level of fees.)
Even though the bill’s authorizations are lower than the 1995 fund-
ing level, they are above the 1990 through 1994 funding levels of
$10 million to $17 million.
CBO estimates that the cost of the report on user fees would be
insignificant, and that the new civil and criminal penalties that
would be established would not result in any significant receipts.
If criminal fines are collected, they would be deposited in the Crime
Victims Fund and spent the following year.
6. Pay-as-you-go considerations: Section 252 of the Balanced
Budget and Emergency Deficit Control Act of 1985 sets up pay-as-
you-go procedures for legislation affecting direct spending or re-
ceipts through 1998. CBO estimates that enactment of H.R. 1323
could increase penalty collections and spending from the Crime Vic-
tims Fund. Therefore, pay-as-you-go procedures would apply to the
bill. However, CBO estimates that any increase in direct spending
or receipts would be less than $500,000 per year.
The pay-as-you-go effects of the bill are as follows:
IBi I,icit ,w. it mdicnl ci doFlitli
0
Clionge in CulIayFl
Change in receipI
- -
0
0
0
0
..
7. Estimated cost to State and local governments: Of the $90 mil-
lion four-year authorization, $47 million is for state pipeline safety
grants. States would be required to contribute an additional $47
million to comply with the 50 percent matching requirement.
8. Estimate comparison: None.
9. Previous CBO estimate: On April 7, 1995, CBO transmitted a
cost estimate for H.R. 1323, the Pipeline Safety Act of 1995, as or-
dered reported by the House Committee on Transportation and In-
frastructure on April 5, 1995. The two versions of the bill are simi-
lar; however, the Commerce Committee version imposes additional
..., ,.;i ,.,,1 ,r ,,l rii g g rpnnrf nn ic r f’c ’i’q
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18
19
CEO estimates that these provisions would not have any signifi-
cant budgetary impact
10 Estimate prepared by. John Patterson.
11. Estimate approved by Paul N. Van de Water, Assistant Di-
rector for Budget Analysis.
INFLATIONARY IMPACT STATEMENT
Pursuant to clause 2(l)(4) of rule X I of the Rules of the House
of Representatives, the Committee finds that the bill would have
no inflationary impact.
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
SECTION 1. SHORT TITLE
Th15 section establishes the short title of the bill as the Pipeline
Safety Act of 1995.
SECTION 2. REFERENCES
This section provides that amendments and references in the bill
are to sections and provisions in Title 49, United States Code. The
“Secretary” means the Secretary of Transportation.
SECTION 3. ANALYSIS OF RISK REDUCTION BENEFITS AND COSTS
The section adds a new section, 60127, to provide for risk assess-
ment and cost-benefit analysis for new significant standards or reg-
ulatory requirements promulgated by the Secretary. The risk as-
sessment analysis contained in Section 3 embraces the core con-
cepts of H.R 1022, the Risk Assessment and Cost-Benefit Act of
1995, as passed by the House. The approach is tailored directly to
the pipeline safety program
Under subsection (a) no final significant standard or regulatory
requirement may be promulgated under sections 60101(b), 60102,
60103, 60108, 60109, 60110, or 60113, unless the Secretary cer-
tifies that an analysis of risk reduction benefits and costs has been
conducted; certifies that the incremental risk reduction or other
benefits of the option chosen justifies and is reasonably related to
its incremental costs; and explains why other options identified or
considered were found to be either less cost-effective or provided
less flexibility. Subsection (b) provides that in analyzing risk reduc-
tion benefits or costs, the Secretary shall identify the various regu-
latory and non-regulatory options that were considered; analyze the
incremental costs and benefits of the proposed standard or regu-
latory requirement; provide technical data or other information
upon which the standard or regulatory requirement is based; and
include a statement that places in context the nature and mag-
nitude of the nsk to be addressed and the residual risks likely to
remain for each alternative identified or considered.
Subsection (c) provides that risk assessment documents prepared
by the Secretary must include certain minimum requirements.
These requ’- rnents are the best estimate for impacts addressed
and the re ble range of scientific uncertainties; a statement of
any signifi substitution risk to public safety and the environ-
nitude of risks to human health, safety, or the environment. State-
ments that place in context the nature and magnitude of’ risks to
public safety or the environment shall provide comparisons with es-
timates of greater, lesser, and substantially equivalent risks that
are familiar to and routinely encountered by the general public, as
well as other risks and comparisons of those risks with other simi-
lar risks regulated by the Department are required by subsection
(d).
Subsection (e) requires, for any Bignificant standard or regulatory
requirement, the Secretary to submit risk assessment documents
and cost-benefit analyses for review to the Technical Pipeline Safe-
ty Standards Committee, the Hazardous Liq id Pipeline Safety
Standards Committee, or both as appropriate. The documents shall
also be available for public review. The Secretary must provide a
written response to all peer review comments received from the
panels and may revise the risk assessment and cost-benefit analy-
sis prior to determining whether a significant standard or regu-
latory requirement should be promulgated.
The Secretary may suspend analysis of risk reduction benefits
and costs for the duration of an emergency. Finally, the Secretary
is required to report by March 31, 1999 to Congress on the applica-
tion of the principles of analyses of risk reduction benefits and
costs and risk assessment and their effect on pipeline safety.
SECTION 4. DEFINITIONS
Subsection (a) amends the definition of “transporting gas” to
onginal law prior to recodification. In addition, it defines for the
first time such terms as “best estimate”, “benefits”, “costs”, “risk
assessment document”, “risk management”, “risk management
plan”, and “substitution risk”. “Significant standard or regulatory
requirement” is defined as a safety or environmental standard or
regulatory requirement or closely related group of standards or re-
quirements that is likely to re8ult in annualized compliance costs
of more than $25 million.
Subsection (b) amends section 60101(bX2) to provide that the
Secretary shall define the term “regulated gathering line” but only
if it is appropriate to do so.
SECTION 5. GENERAL AUTHORITY
Section 5 makes a number of changes to Section 60102. For ex-
ample, section 60 102(a) is amended to provide that operators of fa-
cilitie8 must be qualified, but not certified, and must be able to rec-
ognize and react to abnormal operating conditions that may indi-
cate dangerous situations. Recommendations of the TechnicaL Pipe-
line Safety Standards Committee or the Hazardous Liquid Pipeline
Safety Standards Committee must now be considered in setting
minimum safety standards. A provision directing the Secretary to
set minimum standards requiring operators of gathering lines that
are not regulated to maintain an inventory of appropriate informa-
tion is struck. Section 60102(f) currently provides that new pipeline
facilities must, to the extent practicable, accommodate instru-
mented internal inspection devices (“smart pigs”). F’ ‘on 5 of H.R.
1323 clarifies that section to, provide that when , is beingre-
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20
21
date the smart pigs. Finally, Section 5 makes various technical
changes to section 60102 and adds a new section 60 102(1) to direct
the Secretary to update incorporated industry standards, as appro-
priate and practicable.
SECTION 6. RISK MANAGEMENT
A new section, 60127, is created by Section 6 to provide for a
Risk Management Demonstration Project. Under this project, the
Secretary shall invite owners and operators of pipelines to submit
pipeline safety plans tailored to a particular pipeline or segment of
pipeline, and which contain elements designed to achieve an equiv-
alent or greater overall level of safety. During the demonstration
project, the Secretary may exempt participating pipelines from
compliance with some or all standards and regulations that would
otherwise apply, including those promulgated during the dem-
onstration project The Secretary is allowed to suspend participa-
tion in the program in the case of an emergency. Finally, the Sec-
retary is required to submit a report to Congress evaluating the
project and recommending whether the project should be made per-
manent by March 31, 1999.
SECTION 7. INSPECTION AND MAINTENANCE
This section strikes the requirement in section 60108 that the
Secretary inspect, every two )ears, the inspection and maintenance
plans each pipeline operator is required to maintain. Instead, the
Secretary may determine the frequency of inspections. This section
also clarifies that “waters” where underwater pipelines are subject
to inspections means areas where a substantial likelihood of com-
mercial navigation exists
SECTION 8 HIGH DENSITY POPULATION AREAS AND
ENVIRONMENTALLY SENSITIVE AREAS
This section conforma the definition of “waters” as in Section 7
above It also narrows the factors which the Secretary can look at
in determining if an area can be described as unusually sensitive
to environmental damage. The factors listed in earlier versions of
the Act were overly broad
SECTION 9. EXCESS FLOW VALVES
Section 60110 is expanded by this section by providing that the
notification from natural gas operators to customers having lines in
which excess flow valves are not required, but can be installed,
shall include costs associated with maintenance and replacement
as well as installation. The section also provides that the Secretary
may adopt industry accepted performance standards for excess flow
valves.
SECTION 10. CUSTOMER-OWNED NATURAL GAS SERVICE LINES
This section removes the requirement in section 60113 that the
Secretary take actions to promote adoption of measures to improve
safety of customer-owned natural gas ser ie
SECTION 11. ONE-CALL NOTIFICATION SYSTEMS
Technical and recodification errors to section 60114 are made by
this section. In addition, the requirement that a State one-call pro-
gram must include criminal penalties in order to receive DOT
grants under this section is deleted.
SECTION 12. TECHNICAL SAFETY STANDARDS COMMITTEES
This section provides that the existing Technical Safety Stand-
ards Committees shall serve as peer review committees for pur-
poses of all pipeline safety regulations which must undergo risk as-
sessment and peer review. The membership of the committees is
modified so that each committee is composed of 5 individuals each
from government, industry, and the public. Thus, the number of in-
dustry representatives on the Committee is increased from 4 to 5
and the number of representatives from the general public is re-
duced from 6 to 5. In addition, at least one of the industry and one
of the public members must have experience in risk assessment
and cost-benefit analysis. All risk assessment documents, cost-ben-
efit, and other analyses supporting proposed standards must be
submitted to the Committees for review. Finally the number of
meetings held by the Committees is increased from two to four per
year.
SECTION 13. PUBLIC EDUCATION PROGRAMS
A technical correction to section 60116 is made by this
In addition, the public education programs carried out by
gas owners and operators are expanded to include the use
call systems prior to excavation to prevent pipeline damage.
SECTION 14. ADMINISTRATIVE
Section 60117 is amended to authorize the Secretary to enter
into grants, cooperative agreements, and other transactions with
any person, agency, State and local government, educational insti-
tution, or other entity. Further, the Secretary is permitted to pro-
vide funding to a one-call program which is not operated by a
State.
SECTION 15. COMPLIANCE AND WAIVERS
Section 15 clarifies in section 60118 that owners and operators
who utilize an approved risk management plan under the Risk
Management Demonstration Project in section 60127 are to be con-
sidered in compliance with standards and regulatory requirements
covered by the plan.
SECTION 16. DAMAGE REPORTING
Section 16 creates in section 60123 a new Federal crime of know-
ingly and willfully damaging a pipeline facility and not promptly
reporting the damage to the pipeline operator and other appro-
priate authorities.
section.
natural
of one-
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23
SECTION 17. ANNUAL REPORTS
Section 60124 which requires annual reports to be submitted to
Congress is repealed.
SECTION 18 POPULATION ENCROACHMENT
A new section, 60124, is created to require the Secretary to make
available to State pipeline officials the land use recommendations
from the Transportation Research Board’s Special Report entitled
“Pipelines and Public Safety.” This section also directs the Sec-
retary to evaluate those recommendations, determine to what ex-
tent they are being implemented, consider ways to improve imple-
mentation and consider other initiatives to improve awareness of
local planning and zoning entities regarding population encroach-
ment in proximity to rights-of-ways of interstate pipeline facilities.
SECTION 19. USER FEES
Section 19 requires the Secretary of Transportation to analyze
whether the current methodology for allocating user fees among
pipelines is an accurate measure of the resources used to regulate
pipeline safety This provision is intended to ensure that fees
charged are proportional to services rendered.
SECTION 20. DUMPING WITHIN PIPELINE RIGHTS-OF-WAY
Section 20 prohibits unauthorized dumping in pipeline rights-of-
way This section would allow the Secretary to seek the civil or
criminal penalties already provided for in the pipeline safety acts
for violations of this section.
SECTION 21. PREVENTION OF DAMAGE TO PIPELINE FACILITIES
This new section allows the Secretary undertake promotional ac-
tivities that help prevent damage to pipeline facilities.
SECTION 22. TECHNICAL CORRECTIONS
Various technical corrections to sections of Chapter 601 are made
by this section.
SECTION 23. AUTHORIZATION OF APPROPRIATIONS
Gas and hazardous liquid activities are authorized at the follow-
ing levels.
$9,936,000 for Fiscal Year 1996.
$10,512,000 for Fiscal Year 1997
$11,088,000 for Fiscal Year 1998.
$11,664,000 for Fiscal Year 1999.
DOT is authorized for State Grants:
$10,764,000 for Fiscal Year 1996
$11,388,000 for Fiscal Year 1997.
$12,012,000 for Fiscal Year 1998.
$12,636,000 for Fiscal Year 1999.
CHANGF N EXISTING LAW MADE BY THE BILL, AS REPORTED
- w.:r 3 i r : : .
- - L L1
ported, are shown as follows (existing law proposed to be omitted
is enclosed in black brackets, new matter is printed in italic, exist-
ing law in which no change is proposed is shown in roman):
CHAPTER 601 OF TITLE 49, UNITED STATES CODE
Sec.
60101. Definitions.
CHAPTER 601—SAFETY
S S S S S S S
60105. State pipeline safety program certifications.
60106. State pipeline safety agreements.
60107. State pipeline safety grants
S S 5 4
[ 60124. Annual reports.]
60124. Population encroachment.
60125 Authorization of appropriations
60126 Analysis of risk reduction benefits and costs.
60127 Risk management.
60128. Dumping within pipeline rights.of.way.
§ 60101. Definitions
(a) In this chapter—
(1) * * $
S S S
* * * * * * *
(21) “transporting gas”—
(A) means the gathering, transmission, or distribution of
gas by pipeline, or the storage of gas, in interstate or for-
eign commerce; but
[ (B) does not include gathering gas in a rural area out-
side a populated area designated by the Secretary as a
nonrural area.]
(B) does not include the gathering of gas, other than
gathering through regulated gathering lines, in those rural
locations that are outside the limits of any incorporated or
unincorporated city, town, or vilinge, or any other des-
ignated residential or commercial area (such as a subdivi-
sion, business, shopping center, or community development)
or any similar populated area which the Secretary of
Transportation may define as a nonrural area; but
(C) includes the movement of gas through regulated gath-
ering lines.
* * * * * * *
(23) “best estimate” means a scientifically appropriate esti-
mate which is based, to the extent feasible, on one of the follow-
ing:
(A) Central estimates of risk using the most plausible as-
sumptions.
(B) An approach which combines multiple estimates
based on different scenarios and weighs the probability of
each scenario.
(C) Any other methodology designed to p the most
,...,, . ,.. .,i a,., ,....,. , , ,i.,... ,a. . ..i .. .r ...,.i.
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IMPORTANT NOThESt
—-
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Federal Register / Vol. 56, No. 204 / Tuesday, October 22, 1991 / Presidential Documents 54757
EXECUTIVE ORDER
12777
IMPLEMENTATION OF SECTION 311
OF THE FEDERAL WATER POLLUTION CONTROL ACT
OF OCTOBER 18, 1972, AS AMENDED,
AND THE OIL POLLUTION ACT OF 1990
By the authority vested in we as President by the
Constitution and the laws of the United States of America,
including Section 311 of the Federal Water Pollution Control
Act, (“FWPCA”) (33 U.S.C. 1321), as amended by the oil Pollution
Act of 1990 (public Law 101—380) (“OPA”), and by Section 301 of
T t1e 3 of the United States Code, it is hereby ordered as
fol lows:
Section 1. National Contingency Plan - Area Committees, and
Area Contingency Plans . (a) Section 1 of Executive Order
No. 12 8O of January 23, 1987, is amended to read as follows:
“ Section 1. Ilationat Contingency Plan . (a)(1) The
National Contingency Plan (“the NCP’), shall provide for a
National Response Team (“the NRT”) composed of representatives
of appropriate Federal departments and agencies for national
planning and coordination of preparedness and response actions,
and Regional Response Teams as the regional counterparts to the
NRT for planning and coordination of regional preparedness and
response actions.
“(2) The following agencies (in addition to other
appropriate agencies) shall provide representatives to the
National and Regional Response Teams to carry out their
responsibilities under the NCP: Department of State, Department
of Defense, Department of Justice, Department of the Interior,
Department of Agriculture, Department of Conivierce, Department of
Labor, Department of Health and Human Services, Department of
Transportation. Department of Energy, Environmental Protection
Agency, Federal Emergency Management Agency, United States Coast
Guard, and the Nuclear Regulatory Commission.
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547 58 Federal Register / Vol. 56, No. 204 / Tuesday, October 22, 1991 / Presidential Documents
2
“(3) Except for periods of activation because of response
action, the representative of the Environmental Protection
Agency (“EPA”) shall be the chairman, and the representative of
the United States Coast Guard shall be the vice chairman, of the
NRT and these agencies’ representatives shall be co—chairs of
the Regional Response Teams (“the RRTs”). When the NRT or an
RRT is activated for a response action, the EPA representative
shall be the chairman when the release or threatened release or
discharge or threatened discharge occurs in the inland zone, and
the United States Coast Guard representative shall be the
chairman when the release or threatened release or discharge or
threatened discharge occurs in the coastal zone, unless
otherwise agreed upon by the EPA and the United States Coast
Guard representatives (inland and coastal zones are defined in
the UCP).
“(4) The RRTs may include representatives from State
governments, local governments (as agreed upon by the States),
and Indian tribal governments. Subject to the functions and
authorities delegated to Executive departments and agencies in
other sections of this order, the NRT shall provide policy and
program direction to the RRTs.
“(b)(l) The responsibility for the revision of the NCP
and all the other fi nctions vested in the President by
Sections 105(a), (b), (C), and (g), 125, and 301(f) of the Act,
by Section 311(d)(l) of the Federal Water Pollution Control Act,
and by Section 4201(c) of the Oil Pollution Act of 1990 is
delegated to the Administrator of the Environmental Protection
Agency ( ‘the Administrator”).
“(2) The function vested in the President by Section 118(p)
of the Superfund Amendments and Reauthorization Act of 1985
(Pub. L. 99—499) (“SARAn) is delegated to the Administrator.
“(C) In accord with Section 107(f) (2) (A) of the Act,
section 311(f) (5) of the Federal Water Pollution Control Act, as
amended (33 U.S.C. 1321(f) (5)), and Section 1006(b) (1) and (2)
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Federal Register / Vol. 58, No. 204 / Tuesday, October 22, 1991 f Presidential Documents 54759
3
of the Oil Pollution Act of 1990, the following shall b among
those designated in the NCP as Federal trustees for natural
resources:
(1) Secretary of Defense;
(2) Secretary of the Ir.tericr;
(3) Secretary of Agriculture;
(4) Secretary of Commerce;
(5) Secretary of Energy.
In the event of a spill, the above named Federal trustees
for natural resources shall designate one trustee to act as Lead
Administrative Trustee, the duties of which shall be defir.ed in
the regulations promulgated pursuant to Section 1006(e) (1) of
CPA. If there are natural resource trustees other than those
designated above which are act]ng in the event of a spill, those
other trustees may join with the Federal trustees to name a Lead
Administrative Trustee which shall e crcise the duties defined
in the regulations promulgated pursuant to Section 1006(e) (3.) of
OPk.
“(d) Revisions to the NC? shall be made in consultation
with members of the NRT prior to publication for notice and
comrrent.
“(e) All revisions to the UCP, whether in proposed or final
form, shall be subject to review and approval by the Director or
the Office of Management and Budget (“0MB”) “
(b) The functions vested in the President by
Section 311(j) (4) of F1 PCA, and Sect ori 4202(b) (1) of OPA,
respecting the designation of Areas, the appointment of Area
Committee members, the requiring of information to be included
in Area Contingency Plans, and the review and approval of Area
Contingency Plans are delegated to the Administrator of the
Environmental Protection Agency (“Administrator”) for the inland
zone and the Secretary of the Department in which the
Coast Guard is operating for the coastal zone (inland and
coastal zones are defined in the NCP).
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541611 Federal Register I Vol. 56, No. 204 I Tuesday, October 22, 1991 / Presidential Documents
4
Sec. 2. National Response System . (a) The functions
vested in the President by Section 311(j) (1) (A) of FWPCA,
respecting the establishment of methods and procedures for the
removal of discharged oil and hazardous substances, and by
Section 311(j) (1) (B) of FWPCA respecting the establishment of
criteria for the development and implementation of local and
regional oil and hazardous substance removal contingency plans,
are delegated to the Administrator for the inland zone and the
Secretary of the- Department in which the Coast Guard is
operating for the coastal zone.
(b)(1) The functions vested in the President by
Section 31l(j)(1)(C) of FWPCA, respecting the establishment of
procedures, methods, and equipment and other requirements for
equipment to prevent and to contain discharges of oil and
hazardous substances from non-transportation—related onshore
facilities, are delegated to the Administrator.
(2) The functions vested in the President by
Section 311(j) (1) (C) of FWPCA, respecting the establishment of
procedures, methods, and equipment and other requirements f or
equipment to prevent and to contain discharges of oil and
hazardous substances from vessels and transportation—related
onshore facilities and deepwater ports subject to the Deepwater
Ports Act of 1974 ( “DPA”), are delegated to the Secretary of
Transportation.
‘ ) The functions vested in the President by
Section 311(j) (1) (C) of FWPCA, respecting the establishment of
procedures, methods, and equipment and other requirements for
equipment to prevent and to contain discharges of oil and
hazardous substances from offshore facilities, including
associated pipelines, other than deepwater ports subject to the
DPA, are delegated to the Secretary of the Interior.
(C) The functions vested in the President by
Section 311(j) (1) (D) of FWPCA, respecting the inspection of
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Federal Register j Vol. 56, No. 204 / Tuesday, October 22. 1991/ Presidential Documents 547b1
5
vessels carrying cargoes of oil and hazardous substances and the
inspection of such cargoes, are delegated to the Secretary of
the Department in which the Coast Guard is operating.
(d)(l) The functions vested in the President by
Section 311(j) (5) of FWPCA and Section 4202(b) (4) of OPA,
respecting the issuance of regulations requiring the owners or
operators of non—transportation—related onshore facilities to
prepare and submit response plans, the approval of means to
ensure the availability of private personnel and equipment 4
the review and approval of such response plans, and the
authorization of non-transportation—related onshore facilities
to operate without approved response plans, are delegated to the
Administrator.
(2) The functions vested in the President by
Section 311(j)(5) of FWPCA and Section 4202(b) (4) of OPA,
respecting the issuance of regulations requiring the owners or
operators of tank vessels, transportation—related onshore
facilities and deepwater ports subject to the OPA, to prepare
and submit response plans, the approval of means to ensure the
availability of private personnel and equipment, the review and
approval of such response plans, and the authorization of tank
vessels, transportation-related onshore racilities and deepwater
ports subject to the DPA to operate without approved response
plans, are delegated to the Secretary of Transportation.
(3) The functions vested in the President by
Section 311(j) (5) of FWPCA and Section 4202(b). 4) of OPA,
respecting the issuance of regulations requiring the owners or
operators of offshore facilities, including associated
pipelines, other than deepwater ports subject to the OPA, to
prepare and submit response plans, the approval of means to
ensure the availability of private personnel and equipment,
the review and approval of such response plans, and the
authorization of offshore facilities, including associated
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547G2 Federal Register / Vol.56, No. 204 / Tuesday. October 22, 1991 / Presidential Documents
6
pipelines, other than deepuater ports subject to the DPA, to
operatewithout approved response plans, are delegated to the
Secretary of the Interior.
(e)(1) Thefunctions vested in the President by
Section 311(j) (6) (A) of FWPCA, respecting the requirements for
periodic inspections of containment booms and equipment used to
remove discharges at non—transportation-related onshore
facilities, are delegated to the Administrator.
(2) The functions vested in the President by
Section 311(3) (6) (A) of FWPCA, respecting the requirements for
periodic inspections of containment booms and equipment used to
remove discharges on vessels, and at transportation—related
onshore facilities and deepwater ports subject to the DPA, are
delegated to the Secretary of Transportation.
(3) The functions vested in the President by
Section 311(j) (6) (A) of FWPCA, respecting the requirements for
periodic inspections of containment booms and equipment used to
remove discharges at offshore facilities, including associated
pipelines, other than deepwater ports subject to the DPA, are
delegated to the Secretary of the Interior.
(f) The functions vested in the President by
Section 311(j) (6) (8) of FWPCA, respecting requirements for
vessels to carry appropriate removal equipment, are delegated to
the Secretary of the Department in which the Coast Guard is
operating.
(g) (1) The functions vested in the President by
Section 311(j) (7) of FWPCA, respecting periodic drills of
removal capability under relevant response plans for onshore and
offshore facilities located in the inland zone, and the
publishing of annual reports on those drills, are delegated to
the Administrator.
(2) The functions vested in the President by
Section 311(j) (7) of FWPCA, respecting periodic drills of
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7
removal capability under relevant response plans for tank
vessels, and for onshore and offshore facilities located in the
coastal zone, and the publishing of annual reports on those
drills, are delegated to the Secretary of the Department in
which the Coast Guard Is operating.
(h) No provision of Section 2 of this order, including, but
not limited to, any delegation or assignment of any function
hereunder, shall in any way affect, or be construed or
interpreted to affect the authority of any Department or agency
or the head of any Department or agency under any provision o
law other than Section 311(j) of F’WPCA or Section 4202(b) (4) of
OPA.
(i) The functions vested in the President by Section 311(j)
of FWPCA or Section 4202(b) (4) of OPA which have been delegated
or assigned by Section 2 of this order may be redelegated to the
head of any Executive department or agency with his or her
consent.
Sec. 3. Ftcmoval . toe functions vested in the President by
SectIon 311(c) of FWPCA ana Section 1011 of OPA, respecting an
effective and immediate removal or arrangement for removal of a
discharge and mitigation or prevention of a substantial threat
of a discharqe of oil or a hazardous substance 4 the direction
and monitoring of all Femeral, State and private actions, the
removal and destruction of a vessel, the issTuance of directions,
consulting with affected trustees, and removal completion
determinations, are delegated to the Administrator for the
inland zone and to the Secretary of the Department in which the
Coast Guard is operating for the coastal zone.
Sec. 4. LIability L imit Adjustment . (a) The functions
vested in the President by Section 1004(d) of OPA, respecting
the establishment of limits of liability, with respect to
classes or categories of non-transportation-related onshore
facilities, the reporting to Congress on the desirability
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54764 Federal Register / Vol. 56, No. 204 / Tuesday. October 22, 19g1 I Presidential Documents
8
of adjusting limits of liability with respect to non—
transportation-related onshore facilities, and the adjustment of
limits of liability to reflect significant increases in the
Consumer Price Index with respect to non-transportation-related
onshore facilities, are delegated to the Administrator, acting
in consultation with the Secretary of Transportation, the
Secretary of Energy, and the Attorney General.
(b) The functions vested in the President by
Section 1004(d) of OPA, respecting the establishment of limits
of liability, with respect to classes or categories cf
transportation—related onshore facilities, the reporting to
Congress on the desirability of adjusting limits of liability,
with respect to vessels or transportation—related onshore
facilities and deepwater ports subject to the OPA, and the
ad)ustment of limits of liability to reflect significant
increases in the Consumer Price Index with respect to vessels or
transportation-related onshore facilities and deepwater ports
subject to the DPA, are delegated to the Secretary of
Transportation.
(c) The functions vested in the President by
Section 1004(d) of OPA, respecting the reporting to Congress on
the desirability of adjusting limits of liability with respect
to offshore facilities, including associated pipelines, other
than deepwater ports subject to the DPP 1 , and the adjustment of
limits of liability to reflect significant increases in the
Consumer Price Index with respect to offshore facilities,
including associated pipelines, other than deepwater ports
sub)ect to the DPA, are delegated to the Secretary of the
Interior.
Sec. 5. Financial Responsibility . (a)(l) The functions
vested in the President by Section 1016(e) of CPA, respecting
(in the case of offshore facilities other than deepvater ports)
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Federal Register / Vol 56, No. 204 / Tuesday. October 22. 1991 / Presidential Documents 54765
9
the issuance of regulations concerning financial responsibility,
the determination of acceptable methods of financial responsi-
bility. and the specification of necessary or unacceptable
terms, conditions, or defenses, are delegated to the Secretary
of the Interior.
(2) The functions vested in the President by
Section 1016(e) of CPA, respecting (in the case of deepwater
ports) the issuance of regulations concerning financial
responsibility, the determination of acceptable methods of
financial responsibility, and the specification of necessary or.
unacceptable terms, conditions, or defenses, are delegated to
the Secretary of Transportation.
(b)(1) The functions vested in the President by
Section 4303 of CPA, respecting (in cases involving vessels) the
assessment of civil penalties, the compromising, modification
or remission, with or without condition, and the referral for
collection of such imposed penalties, and requests to the
Attorney General to secure necessary judicial relief, are
delegated to the Secretary of the Department in which the
coast Guard is operating.
(2) The functions vested in the President by Section 4303
of CPA, respecting (in cases involving offshore facilities other
than deepwater ports) the assessment of civil penalties, the
compromising, modification or remission, with or without
condition, and the referral for collection of such imposed
penalties, and requests to the Attorney General to secure
necessary judicial relief, are delegated to the Secretary of the
Interior.
(3) The functions vested in the President by Section 4303
of CPA, respecting (in cases involving deepwater parts) the
assessment of civil penalties, the compromising, modification or
renission, with or without condition, and the referral for
collection of such imposed penalties, and requests to the
Attorney General to secure necessary judicial relief, are
delegated to the Secretary of Transportation.
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Federal Register / Vol. 56, No. 204 / Tuesday. October 22, 2991 / Presidential Documents
10
$ec 6. Enforcement . (a) The functions vested in the
President by Section 311(ni)(1) of FWPCA, respecting the
enforcement of Section 311 with respect to vessels, are
delegated to the Secretary of the Department in which the
Coast Guard is operating.
(b) The functions vested in the President by Section 311(e)
of FWPCA, respecting determinations of imninent and substantial
threat, requesting the Attorney General to secure judicial
relief and other action including issuing administrative
oroers, are delegated to the Administrator for the inland zone
and to the Secretary of the Department in which the Coast Guard
is operating for the coastal zone.
$ec. 7. Management of the Oil Spill Liability Trust Fund
and Claims . (a) (1) (A) The functions vested in the President by
Section 1012(a) (1), (3), and (4) of OPA respecting payment of
removal costs and claims and determining consistency with the
National Contingency Plan (NCP) are delegated to the Secretary
r the Department in which the Coast Guard is operating.
(B) The functions vested in the President by
section 6002(b) of the OPA respecting making amounts, not to
exceed $50,000,000 and subject to normal budget controls, in any
fiscal year, available from the Fund (i) to carry out
Section 311(c) of FWPCA, and (ii) to initiate the assessment
of natural resources damages required under Section 1006 of OPA
are delegated to the Secretary of the Department -in which the
Coast Guard is operating. Such Secretary shall make amounts
available from the Fund to initiate the assessment of natural
resources damages exclusively to the Federal trustees designated
in the NCP. Such Federal trustees shall allocate such amounts
among all trustees required to assess natural resources damages
under Section 1006 of CPA.
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Federal Register / Vol. 56, No. 204 / Tuesday. October 22, 1991 / Presidential Documents 54767
11
(2) The functions vested in the President by
Section 1012(a) (2) of OPA, respecting the payment of costs
and determining consistency with the NCP, are delegated to the
Fed ra1 trustees designated in the NCP.
(3) The functions vested in the President by
Section 1012(a) (5) of OPA, respecting the payment of costs and
expenses of departments and agencies having responsibility for
the implementation, administration, and enforcement of the Oil
Pollution Act of 1990 and subsections (b), (c), (d), Ci) and (1)
of Section 311 of FWPCA, are delegated to each head of such
departnent and agency.
(b) The functions vested in the President by
Section 1012(c) of OPA, respecting designation of Federal
officials who may obligate money, are delegated to each head
of the departments and agencies to whom functions have been
delegated under section 7(a) of this order for the purpose of
carrying out such functions.
(C) (I) The functions vested in the President by
Section 1012(d) and (e) of OPA, respecting the obligation of
the Trust Fund on the request of a Governor or pursuant to an
agreement with a State, entrance into agreements with States,
agreement upon terms and conditions, and the promulgation of
regulations concerning such obligation and entrance into such
agreement, are delegated to the Secretary of the Department in
which the Coast Guard is operating, in consultation with the
Administrator.
(2) The functions vested in the President by
Section 1013(e) of OPA, respecting the promulgation and
amendment of regulations for the presentation, filing,
processing, settlement, and adjudication of claims under
CPA against the Trust Fund, are delegated to the Secretary of
the Department in which the Coast Guard is operating, in
consultation with the Attorney General.
(3) The functions vested in the President by
Section 1012(a) of CPA, respecting the payment of costs,
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p4768 Federal Register / Vol. 56, No. 204 / Tuesday, October 22, 1991 I Presidential Documents
12
damages, and claims, delegated herein to the Secretary
of the Department in which the Coast Guard is operating,
include, inter alia , the authority to process, settle, and
administratively adjudicate such costs, damages, and claims,
regardless of amount.
(d) (1) The Coast Guard is designated the “appropriate
agency t ’ for the purpose of receiving the notice of discharge
of oil or hazardous substances required by Section 311(b) (5)
of FWPCA, and the Secretary of the Department in which the
Coast Guard is operat ng is authorized to issue regulations
implementing this designation.
(2) The functions vested in the President by Section 1014
of OPA, respecting designation of sources of discharges or
threats, notification to responsible parties, promulgation of
regulations respecting advertisements, the advertisement of
designation, and notification of claims procedures, are
delegated to the Secretary of the Department in which the Coast
Guard is operating.
Sec. 8. ftscej1aneous . (a) The functions vested In the
President by Section 311(b) (3) and (4) of FWPCA. as amended by
the Oil Pollution Act of 1990, respecting the determination of
quantities of oil and any hazardous substances the discharge of
which may be harmful to the public health or welfare or the
environment and the determinations of quantities, time,
locations, circumstances, or conditions, which are not harmful,
are delegated to the Administrator.
(b) The functions vested in the President by
Section 311(d) (2) (G) of F PCA, respecting schedules of
dispersant, chemical, and other spill mitigating devices or
substances, are delegated to the Administrator.
(c) The functions vested in the president by
...ection 1006(b) (3) and (4) of OPA respecting the receipt of
designations of State and Indian tribe trustees for natural
resources are delegated to the Administrator.
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13
(d) The function vested in the President by Section 3004
of CPA, with respect to encouraging the development of an
international inventory of equipment and personnel, is delegated
to the Secretary of the Department in which the Coast Guard is
operating, in consultation with the Secretary of State.
(e) The functions vested in the President by Section 4113
of OPA, respecting a study on the use of liners or other
secondary neans of containment for onshore facilities, and the
implementation of the recommendations of— the study, are
delegated to the Administrator.
(f) The function vested in the President by
Section 5002(c) (2) (D) of OPA, respecting the designating of
an employee of the Federal Government who shall represent the
Federal Government on the Oil Terminal Facilities and Oil Tanker
Operations Associations, is delegated to the Secretary of
Transportation.
(g) The functions vested in the President by
Section 002(o) of OPA, respecting the annual certification
of alternative voluntary advisory groups, are delegated to the
Secretary of Transportation.
(h) The function vested in the President by
Section 7001(a) (3) of OPA, respecting the appointment of
Federal agencies to membership on the Interagency Coordinating
Committee on Oil Pollution nesearch, is delegated to the
Secretary of Transportation.
(1) Executive Order P lo. 11735 of August 3, 1973, Executive
Order No. 12123 of February 26, 1979, Executive Order No. 12418
of May 5, 1983 and the memorandum of August 24, 1990, delegating
certain authorities of the President under the Oil Pollution Act
of 1990 are revoked.
Sec, 9. Consu1tation . Authorities and functions delegated
or assigned by this order shall be exercised subject to
consultation with the Secretaries of departments and the heads
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54770 Federal Register f Vol. 56, No. 204 / Tuesday, October 22, 1991 / Presidential Documents
14
of agencies with statutory responsibilities which may be
significantly affected, including, but not limited to, the
Department of Justice.
Sec. 10. Litigation . (a) Notwithstanding any other
provision of this crder, any representation pursuant to or under
this crder in any judicial proceedings shall be by or through
the Attorney General. The conduct and control of all litigation
arising under the Oil Pollution Act of 1990 shall be the
responsibility of the Attorney General.
(b) Notwithstanding any other provision of this order, the
authority under the Oil Pollution Act of 1990 to require the
Attorney General to commence litigation is retained by the
President.
(c) Notwithstanding any other provision of this order,
the Secretaries of the Departments of Transportation,
Commerce, Interior, Agriculture, and/or the Administrator of
the Environnental Protecticn Agency may request that the
Attorney General commence litigation under the Oil Pollution
Act of 1990.
(d) The Attorney General, in his discretion, is authorized
to require that, with respect to a particular oil spill, an
agency refrain Iron taking administrative enforcement action
without first consulting with the Attorney General.
THE WHITE } OUSE,
October 18, 1991.
ftR Doe 9 1—250 138
Filed 10—21—91, 1052 nmj
uifling cok 3195-rn-C
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Federal RegIster / Vol. 52. No.19/ Thursday, January 29, 1987 I Presidential Documents 223
Presidential Documents
Executive Order 12580 of January 23, 1987
Superfund 1ni leweuLQUOfl
By the authority vested ..a me as President of the United States of Americ.a by
Section ItS of the Comp ehen.sive Environmental Response. Compensation.
and Liability Act of 1980, as nm rided (42 U.S.C. 9815 et seq.) (“the Act”), and
by Section 301 of TItle 3 of the Unltdd States Code, it Is hereby ordered as
follows:
Seclion 1. No ionaI Contingency Plan. (a)(1) The National Contingency Plan
(“the NC?’). eha.l1 provide for a National Response Team (“the NRT’) com-
posed of representatives of appropriate Federal departments and agencies for
national pliinntng and coordination of preparedness and response actions, and
regional response teams as the regional counterpart to the NRT for planning
and coordination of regional preparedness and response actions.
(2) The foUowing agencies (In addition to other appropriate agencies) haU
provide representatives to the National and Regional Response Teams to
carry out their responsibilities under the NCP Department of State, Depart-
ment of Defense. Ł)epartiaent of Justice, Department of the Interior, Depart-
ment of Agricu)ture Department of Commerce, Department of Labor, Depart-
ment of Health and Human Services. Department of Transportation. Depart-
ment of Energy. Environmental Protection Agency. Federal Emergency Man.
agament Agency, United States Coast Guard, and the Nuclear Regulatory
Commission.
(3) Except for periods of actFvatton because of a response action. the repre-
sentative of the Environmental Protection Agency (“EPA”) shall be the chair-
mart and the representative of the United States Coast Guard shall be the vice
chairman of the NRT and these agencies’ representatives shall be co-chairs of
the Regional Response Teams (“the RRTe’). When the NRT or an RRT Is
activated for a response action, the chairman shall be the EPA or United
States Coast Guard representative, based on whether the release or threat-
ened release occurs in the fnIi nd or coastal zone, unless otherwise agreed
upon by the EPA and United States Coast Guard representatives.
(4) The RRTa may include representatives from State governments, local
governments (as agreed upon by the States), and Indian tribal governments.
Sublect to the !ut ction and authorities delegated to Executive departments
and agencies in other sections of this Order, the NRT shall provide policy and
program direction to the P.RT.
(b)(1) The responsibility for the revision of the NCP and all of the other
functions vested In the President by Sections 105(e). (b). (c). and (g). 125, and
301(f) of the Act Ii delegated to the Administrator of the Environmental
Protection Agency (“the Atrt1 tratoY’).
(2) The function vested In the President by Section 118(p) of the Superfund
Amendments and Resuthorix*tlon Act of 1988 (Public Law 99-499) (“SARA”)
Is delegated to the Administrator.
(c) In accord with Section 107ffl(2)(A) of the Act and Section 31i(f)(5) of the
Federal Water Pollution Control Act, as amended (33 U.S.C. 1321(fl(5)). the
following shall be among those designated In the NCP as Federal trustees for
natural resources:
(1) Secretary of Dafense
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2924 Federal Register / Vol. 5Z No, 19/ Thursday, January 29, 1987 / PresidentIal Documents
(2) Secretary of the Interior
(3) Secretary of Agriculture;
(4) Secretary of Commerce;
(5) Secretary of Energy.
(d) RevIs!on to the NCP shall be made in consultation with members of the
NRT prior to publication for notice and comment. Revisions shall also be
made in consultation with the Director of the Federal Emergency Management
Agency and the Nuclear Regulatory Commission in order to avoid inconsistent
or duplicative requirements in the emergency planning responsibilities of
those agencies.
(e) All revisions to the NCP, whether in proposed or final form, shall be
subject to review kind upprovdl by the Director of the Office of Management
and Budget (“0MB”).
Sec. 2. Response and RelaLed Authorities. (a) The functions vested In the
President by the first sentence of Section 104(b)(1) of the Act relating to
“illness, disease, or complaints thereof” are delegated to the Secretary of
Health and Human Services who shall, In accord with Section 104(I) of the
Act, perform those functions through the Public Health Service.
(b) The functions vested in the President by Sections 104(e)(7)(C), 113(k)(2) ,
119 [ c)(7), and 121(fl(1) of the Act. relating to promulgation of regulations and
guidelines, are delegated to the Administrator, to be exercised in consultatlon•
with the NRT,
(c)(1) The functions vested in the President by Sections 104(a) and the second
sentence of 126(b) of the Act, to the extent they require permanent relocation
of residents, businesses, and community facilities or temporary evacuation
and housing of threatened individuals not otherwise provided for, are delegat-
ed to the Director of the Federal Emergency Management Agency.
(2) Subject to subsection !b) of this Section, the functions vested in the
President by Sections 117(a) and (c), and 119 of the Act, to the extent such
authority is needed to carry out the functions delegated under paragraph (1) of
this subsection, are delegated to the Director of the Federal Emergency
Management Agency.
(d) Subject to subsections (a), (b) and (c) of this Section, the functions vested
in the i’tesldent by Sections 104(a), (b) and (c)(4), 113(k), 117(a) and (c), 110,
and 121 of the Act are delegated to the Secretaries of Defense and Energy.
with respect to releases or threatened releases where either the releas’, is on
or the sole source of the release is from any facility or vessel under the
jurisdiction, custody or control of their departments, respectively, including
vessels bare-boat chartered and operated. These functions must be exercised
consistent with the requirements of Section 120 of the Act.
(e)(1) Subject to subsections (a), (b), (c). and (d) of this Section. the functions
vested In the President by Sections 104(e), (b), and (c)(4), and 121 of the Act
are delegated to the heads of Executive departments and agencies. with
respect to remedial actions for releases or threatened releases which are not
on the National Priorities List (“the NPL’) and removal actions other than
emergencies, where ei1i cr iLe release Is on or the sole source of the release is
from any facility or vessel under the jurisdiction, custody or control of those
departments and agencies, including vessels bare-boat chartered and operat-
ed. The Administrator shall define the term “emergency’, solely for the
purposes of this subsection. either by regulation or by a memorandum of
understanding with the head of an Executive department or agency.
(2) Subject to subsections (b), (c), and (d) of this Section. the functions vested
in the President by Sections 104(b)(2), 113(k), 117(a) and (c). and 119 of the Act
are delegated to the heads of Executive departments and agencies, with
respect to releases or threatened releases where either the release is on or the
sole source of the release Is from any facility or vessel under the jurisdiction,
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Federal Regiatezf Vol 52, No. 10 / Thuraday, January 29. 19871 PresidentIal Do imu nts
cuato4y or control at LLu e departments and agencies Including vessels bare-
boat chartered and opere tad.
(1) SubjeCt to subsections (a), (b), (c). (d). , and (a) of this Section, the functions
vested In the President by Sections 104(a), (b) end (c)(4) , 113(k). 117(a) and (c).
119, and 121 of the Act are delegated to the Secretary of the Department In
whith the Coast Guard La operaW g ( “tha Coast Guard”), with respect to any
release or threatened release Involving the coastal zone, Great Lakes waters,
ports. and harbors.
(g) Subject to subsections (a), (b). (‘ ), (d), (e). and (f) of this Section. the
functions vested in the President by Sections 101(24), 104( 8), (b). (c)(4) and
(c)(9). 113(k). 117(a) and (c). 129. 12t and 128(b) of the Act are delegated to the
Arhnhb trator. The A ntetratřrs authority under Section 119 of the Act Is
retroactive to the date of enactment ofMRA.
(h) The functions vested In the President by Section 1G4(c)(3J of the Act are
delegated to the Mmh!ilAtrator. with respect to providing assurances for
Indian tiThes. to be exercised In nsultatIon with the Secretary of the Interior.
(I) Subject to subsections (d), (e), (I ). (g) and (h) of this Section. the functions
vested in the President by SectIon 104(c) and (d) of the Act are delegated to
the Coast Guard, the Seuetary of Health and Human Services, the Director of
the Federal Emergency Management Agency, and the Adinlnlrtratcr In order
to carry out the functions delegated to them by this ecUon.
U)(1) The functions vested In the President by Section 104(e)(5)(A) are delegat-
ed to the heads of Executive departments and agencies, with respect to
release. or threatened release . where either the release is on or the sole
source of the release Is from any facility or vessel under the jurisdiction,
custody u: control of those departments and agencies, to be exercised with the
concurrence of t)’e Attorney General.
(2) Sublecl to subsection (b ) of this Section and paragraph (1) of this subsec-
tion, the functions vested In the President by Section 104(e) are delegated to
the heads of Executive departments and agencies In order to carry out their
functions under this Order orthe Aet
(k) The functions vested in the President by Section 104W. (g). (b). (I)(l1), and
U) of the Act are delegated to the heads of Executive departments and
agencies in order to carry out the fur .ctlons delegated to them by this Sect1on
The exercise of authority under Section 104(h) of the Act haU be subject to
the approval of the Administrator of the Office of Federal Procurement Policy.
Sec. 3. Cleanup Schedules. (a) The functions vested In the President by
Sections 116(a) and the first twQ sentences of 105(d) of the Act are delegated
to the beads of Executive departments and agencie, with respect to facilities
under the jurisdiction, custody or conteol of those departments and agencies.
(b) Subject to uubsectlon (a) cf this Section. the functions vested In the
President by Sections 116 end 105(d) are delegated to the Administrator.
Sec. 4. EnforcemenL (a) The functions vested In the President by Sections
109(d) and 122(e)(3)(A) of the Act, relating to development of regulations and
guidelines, are delegated to the Administrator, to be exercised In consultation
with the Attorney General.
(b)(1) Subject to subsection (a) of this Section, the functions vested In the
President by SectIon 122 (except subsection (bfll)) are delegated to the heads
of Executive departments and agencies, with respect to releases or threatened
releases not on the NPL where either the release is on or the sole source of the
release Is from any Tacfl ty under the jurisdiction. custody or control of those
Exec tlve departments end agencies. These functiona may be exercised only
with the concurrence of the Attorney General.
(2) Subject to subsection (a) of this Section, the functions vested in the
Pre d ant by Section 109 of the Act, relating to violations of Section 122 of the
Act, are delegated to the l eads of Executive departments and agencies, with
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2926 Federal Register / Vol. 52. No. 19 / ThurSday, January 29, 1987 / Presidential Documents
respect to releases or threatened releases not on the NPL. where either the
release Is on ot the sole source of the release Is from any facility under the
jurisdiction, custody or control of those Executive departments and agencies.
ThL. functions may be exercised only wIth the concurrence of the Attorney
General.
(c)(1) Subject to subsection ía) and (b)(1) of this Section, the functions vested
in the President by Sections 106(a) and 122 of the Act are delegated to the
Coast Guard with respect to any releale or threatened release involving the
coastal zone, Great Lakes waters, ports, and harbors.
(2) Subject to subsection (a) and (b)(2) of this Section, the functions vested in
the President by Section 109 of the Act, relating to violations of SectIons 103
(a) and (b), and 122 of the Act, are delegated to the Coast Guard with respect
to any release or threatened release involving the coastal zone, Great Lakes
waters, ports, and harbors.
(d)(1) Subject to subsections (a). (b)(1), and (c)(1) of this Section, the functions
vested in the President by Sections 106 and 122 of the Act are delegated to the
Administrator.
(2) Subject to subsections (a), (b)(2). and (c)(2) of this Section. the functions
vested in the President by Section 109 of the Act, relating to violations of
Sections 103 and 122 of the Act, are delegated to the Administrator.
(e) Notwithstanding any other provision of this Order, the authority under
Sections 104(e)(b)(A) and 106(8) of the Act to seek information, entry, inspčc-
tion, samples, or response actions from Executive departments and agencies
may be exercised only with the concurrence of the Attorney General.
Sec. 5. Liability. (a) The function vested in the President by Section
107(c)(1)(C) of the Act is delegated to the Secretary of Transportation.
(b) The functions vested in the President by Section 107(c)(3) of the Act are
delegated to the Coast Guard with respect to any release or threatened release
involving the coastal zone, Great Lakes waters, ports . and harbors.
(c) Subject to subsection (b) of this Section, the functions vested in the
President by Section 107(c)(3) of the Act are delegated to the Administrator.
(d) The functions vested in the Preside t nt by Section 107(fl(1) of the Act are
delegated to each of the Federal trustees for natural resources designated in
the NCP for resources under their trusteeship.
(e) The functions vested in the President by Section 107(f)(2)(B) of the Act, tt
receive notification of the state natural resource trustee designations, are
delegated to the Administrator.
Sec. 8. Litigation. (a) Notwithstanding any other provision of this Order, any
representation pursuant to or under this Order in any judicial proceedings
shall be by or through the Attorney General. The conduct and control of all
litigation arisIng under the Act shall be the responsibility of the Attorney
General.
(b) NotwiThstanding any other provision of this Order, the authority under the
Act to require the Attorney General to commence litigation is retained by the
President.
(c) The functions vested In the President by Section 113(g) of the Act, to
receive notification of a natural resource trustee’s intent to file suit, are
delegnted to the heads of Executive departments and agencies with respect to
response actions for which they have been delegated authority under Section
2 of this Order. The Administrator shall promulgate procedural regulations for
providing such notification.
(d) The functions vested in the President by Sections 310 (d) and (e) of the Act,
relating to promulgation of regulations, are delegated to the Administrator.
Sec. 7. Finoncicil I u iL7ity. (a) The functions vested in the President by
Section 107(k)(4)(B) of the Act are delegated to the Secretary of the Treasury.
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Federal Register / Vol. 52, No. 19 / Thursday. January 29. 1987 / PresidentIal Documents 2927
The Administrator will provide the Secretary with such technical information
and assistance as the Administrator may have available.
(b)(1) The functions vested In the President by Section 108(a)(1) of the Act ate
delegated to the Coast Guard.
(2) Subject to SectIon 4(a) of this Order, the funtibus vested in the President
by Section 100 of the Act, relating to violations of Section 108(a)(1) of the Act.
are delegated to the Coast Guard.
(c)(1) The functions vested In the President by Section 108(b) of the Act are
delegated to the Secretary of Transportation with respect to all transportation
related facilities, including any pipeline, motor vehicle, rolling stock, or air-
craft.
(2) Subject to Section 4(a) of this Order, the functions vested In the President
by SectIon 109 of the Act, relating to violations of Section 108(a)(3) of the Act.
are delegated to the Secretary of Transportation.
(3) Subject to Section 4(a) of this Order, the functions vested in the President
by SectIon 109 of the Act, relating to violations of Section 108(b) of the Act,
are delegated to the Secretary of Transportation with respect to all transporta-
tion related facilities, Including any pipeline, motor vehicle, rolling stock, or
utroru ft.
(d)(1) Sut4ect to subsection (c)(l) of this Section, the functions vested in the
Prer.1d nt by SectIon 108 (a)(4) and (b) of the Act are delegated to the
Adndn 1 sIrat r.
(2) Subject to SectIon 4(a) o this Order and subsection (cTl(3) of this Section,
the functions vested in the President by Section 100 of the Act, relating to
violations of Section 108 (a)(4) and (b) of the Act, are delegated to the
Administrator.
Sec. 8. Employee Prosecuon and Nolico to Injured (a) The functions vested in
the President by Section 110(e) of the Act are delegated to the Adminstrator.
(b) The functions vested in the President by Section 111(g) of the Act are
delegated to the Secretaries ci Defense end Energy with respect to releases
from facilities or vessels under the jurisdiction, custody or control of their
departments, respectively, Lncludlng vessels bare-boat chartered and
operated.
(c) Subject to subsection (b) of this Section, the functions vested in the
PreaLdent by Section 111(g) of the Act are delegated to the Administrator.
Sec. 8. Managomenl of the Hazardous Substance Superfund and C/aims. (a)
The functions vested in the President by Section 111(a) of the Act are
delegated to the Administrator, subject to the provisions of this Section and
other applicable provisions of this Order.
(b) The Administrator shall transfer to other agencies. from the Hazardous
Substance Superfurid out of sums appropriated, such amounts as the Adminis-
trator may determine necessary to carry out the purposes of the Act. These
amounts shall he cr,nqistpnt with the Presidents Budget. within the total
approved by the Congress. unless a revised amount Is epproved by 0MB.
Funds appropriated specifically for the Agency for Toxic Substances and
Disease Registry (“ATSDR”). shall be directly transferred to ATSDR, consist-
ent with fiscaiiy responsible Investment of trust fund money.
(c) The AdinLrdslrator shall chair a budget task force composed of representa-
tives of Executive departments and agencies having reeponsibWties under this
Order or the Act. The Administrator shall also, as part of the budget request
for the Environmental Protection Agency, submit to 0MB a budget for the
Hazardous Substance Superfund which Is based on recommended levels
developed by the budget task force. The Administrator may prescribe report-
ing and other forms, procedures, and guidelines to be used by the agencies of
the Task Force In preparing the budget request. consistent with budgetary
reporting requirements Issued by 0MB. The Administrator shall prescribe
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2928 Federal Register / Vol. 52, No. 19 I Thursday, January 29, 1.987 I Presidential Documents
form. to agency task force members for reporting the expenditure of funds on
a site specific basis.
(d) The Administrator and each department and agency head to whom funds
are provided pursuant to this Section. wIth respect to funds provided to them,
are authorized In accordance with Section 111(f) of the Act to designate
Federal ufflcials who may obligate such funds.
(e) The functions vested in the President by Section 112 of the Act are
delegated to the Administrator for all claims presented pursuant to Section 111
of the Act.
(I) The functions vested in the President by Section 111(0) of the Act are
delega ted to the Administrator.
(8) The functions vested in the President by Section 117(e) of the Act are
delegated to the Administrator, to be exercised In consultation with the
Attorney General.
(h) The functions vcs cd r. the President by Section 123 of the Act are
delegated to the Administrator.
(I) Funds from the Hazardous Substance Superfund may be used, at the
discretion of the Administrator or the Coast Guard, to pay for removal actions
for releases or threatened releases from facilities or vessels under the urlsdic-
tion, custody or control of Executive departments and agencies but must be
reimbursed to the Hazardous Substance Superfund by such Executive depart-
ment or agency. -
Sec. 10. FedemiFodilides. (a) When necessary, prior to selection of a remedial
action by the Administrator under Section 120(e)(4)(A) of the Act. Executive
agencies shall have the opportunity to present their views to the Administra-
tor alter using the procedures under Section 1.-C of Executive Order No. 12088
of October 13, 1978, or any other mutually acceptable process. Notwit.hstand•
Ing subsection 1—602 of Executive Order No. 12088. the Director of the Office of
Management and Budget shall facilitate resolution of any issues.
(b) Executive Order No. 12088 of October 13. 1978. is amended by renumbering
the current Section 1-602 as Section 1—803 and inserting the following new
Section 1—802:
i—8o2. Nothing in this Order shall create any right or benefit, substantive or
procedural. enforceable at law by a party against the United States, Its
agencies, its officers, or any person.”
Sec. 11. General Provisions. (a) The function vested In the President by
Section 101(37) of the Act is delegated to the Administrator.
(b)(1) The function vested in the President by SectIon 105(f) of the Act. relating
to reporting on minority participation En contracts, Is delegated to the Admin-
istrator.
(2) Subject to paragraph I of this subsection, the functions vested in the
President by Section 105(1) of the Act are delegated to the heads of Executive
departments and agencies in order to carry out the functions delegated to
them by this Order. Each Executive department and agency shail provide to
the Administrator any requested information on minority contracting for
Inclusion In the Section 105(0 annual report.
fc) The functions v sled In the President by Section 125(c) of the Act are
delegated to the Administrator, to be exercised in consultation with the
Secretary of the Interior.
(d) The functions vested in the President by Section 301(c) of the Act are
delegated to the Secretary of the Interior.
(e) Each agency shall have authority to issue such regulations as may be
necessary to carry out the functions delegated to them by this Order.
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Federal Re lster I VoL 52. No. 19 I Thursday, January 29. 1987 / PresidentIal Documents 2929
(f} The performance of any function under (his Order shall be done in
consultation wfth !n re ted Federal departments and agencies represented on
the NRT. aa well as with any other Interested Federal agency.
(g) The following functions vested in the President by the Act which have
been delegated or assigned by this Order may be redelegated to the head ol
any Executive department or agency with his conseith functions set forth In
Sections 2 (except subsection (b)), 3. 4(b ). 4(c), 4(d), 5(b), 5(c). end 8(c) of this
Order.
(h) Executive Order No. 12316 of August 14. 1981. Is revoked.
w1 HOUSE
fanuar 23, 1997.
Dec. 57- b4Z
Flied 1-V-W. 2.35 pm
Bifllng cods 3195-01-N
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C
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ihI WORTAU llT L1 llOTL!S
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SUBCHAPTER J—$UPERFUND, EMERGENCY PLANNING, AND
COMMUNITY RIGHT-TO-KNOW PROGRAMS
PART 300—NATiONAL OIL AND
HAZARDOUS SUBSTANCES POL-
LUTION CONTINGENCY PLAN
Subpart A—Introduction
Purpose and objectives
Authority and applicability
Scope
Abbreviations
Definitions
Use of number and Render
Computation of time
Subpart B—Responsibility and Organization
toe Response
300 100 Duties of President delegated to fed-
eral agencies ,
300 105 General orgInization concepts
300 110 National Response Team
300 115 Regional Response Teams
300 120 On-scene coordinators and remedial
project managers general responsibil-
ities
300 125 Notification and communications
300 130 Determinations to initiate response
and special conditions
300 135 Response operations
300 140 Multi-regional responses
300 145 SpecIal teams and other assistance
available to OSCs/RPMs
300 150 Worker health and safety
300-155 Public information and community
relations
300 160 Documentation and cost recovery
300 165 OSC reports
Th 170 Federal agency participation
300 175 Federal agencies additional respon-
sibilities and assistance
300 180 State and local participation in re-
sponse
300 185 Nongovernmental participation
Subpart C—Plann Ing and Preparedness
300 200 General
300,205 Planning and coordination struc-
ture
300 210 Federal contingency plans
300.211 OPA facility and vessel response
plans-
300212 Area response drills
300 215 Title I I I local emergency response
plans.
300 23) Related Title I l l issues
Subpart D—Operatlonal Response Phases
toe Oil Removal
300 300 Phase I—Discovery or notification
300 305 Phase Il—Preliminary assessment
and initiation of action
310 Phase 111—Containment, counter-
measures. ci eanup. and disposal
300 315 Phase IV—Documentation and cost
recovery
300 317 National response priorities
300 320 General pattern of response
300 322 Response to substantial threats to
public health or welfare of tbe United
States
300 Spills of national significance
300 324 Response to worst case discharges
300 335 Funding
Subpart E—Haardous Substance
Response
300 400 General
300 405 Discovery or notificatIon
410 Removal site evaluation
300 415 Removal action
300 420 Remedial site evaluation
300 425 Establishing remedial priorities
300 430 Remedial investigation /feasibIlity
study and selection of remedy
300 435 Remedial design/remedial action, op-
eration and maintenance
Th 440 Procedures for planning and imple-
menting off-site response actions
Subpart F—State involvement In Hazardous
Substance Response
300 500 General
300 505 EPA/State Superfiand Memorandum
of Agreement (SMOA)
300 510 State assurances
300 515 Requirements for state involvement
in remedial and enforcement response
300 520 State involvement in EPA-lead en-
forcement negotiations
300 525 State involvement in removal ac-
tions
Subpart G—Trustees foe Natural Resources
600 Designation of federal trustees
300 605 State trustees
300610 Indian tribes
200.612 Foreign trustees
300 615 Responsibilities of trustees
Subpart H—ParticIpation by Other Persons
300.700 Activities by other persons
Sec
3001
300 2
3003
3004
5
300 6
7
S
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§300.1
300900
300905
CO 910
300 915
300920
40 CR Ch. I (7-1-97 EditIon)
Subpart I—A&nlnlstrattve Record for
to discharges of oil and releases of haz-
Selection at Response Action
ardous substances, pollutants, and con-
300 800 Establishment of an administrative
taminants.
record
30080.5 Location of the administrative
* 300.2 Authority and applicability.
record file
The NCP is required by section 105
300 810 Contents of the administrative
record file.
300.815 AdministratIve record file for a re-
medial action
300.920 Administrative record me tot a re-
moval action
the Comprehensive Environmental Re-
sponse, Compensation, and Liability
Act of 1980, 42 U.S.C. 9605, as amended
by the Superfund Amendments and Re-
authorization Act of 1988 (SARA). Pub.
300.925 Record requirements after the deci-
L. 99-499, (hereinafter CERCLA). and
8ion document is sired
by section 321(d) of the Clean Water
Subpart .1—Use s Dlip nanb and Other
Chemicals
Act (CWA). 33 U.S.C 1321(d). as amend-
ed by the Oil Pollution Act of 1990
(OPA), Pub. L. 101-380 In Executive
General
Order (E.O) 1277’? (56 FR 54757, October
NCP Product Schedule
22. 1991). the President delegated to the
Authorization of use
Data requirements
Addition of products to Schedule
Environmental Protection Agency
(EPA) the responsibility (or the amend-
ment of the NCP. Amendments to the
Subpart K—Federal acumn
NCP are coordinated with members of
the National Response Team (NRT)
Subpart L—Natlonal OU and Hazardous
prior to publication for notice and
Substances Pollution Conlingency
Plan; Involuntary Acquislilan at Prop-
comment This includes coordination
with the Federal Emergency Manage-
erty by the Government
ment Agency (FEMA) and the Nuclear
1105 Involuntary acquisition of property
by the government
APPENDIX A ‘tO PART 300—ms HAZARD El. -
SY 5 -
Regulatory Commission In order to
avoid inconsistent or duplicative re-
quirements In the emergency planning
responsibilities of those agencies. The
APPENDIX B TO PART 300—NATIONAL PRIOR-
NCP is applicable to response actions
rrrss lAST
taken pursuant to the authorities
APPENDIX C TO PART 300—.SWlRUNO FLASK
under CERCLA and section 311 of the
DI5PERSANT EFFECTIVENESS TEST, RE
VISED STANDARD DISPEBSANT TOX ICITY
CWA. as amended.
TEST. AND BIoREMsnz. crnN AGENT EFFEc-
TIVENESS TEST
300.3 Scope.
APPENDIX D TO PART 300—APPROPRIATE Ac-
(a) The NCP applies to azid is in
TIONS AND MtflloDs OF REMEDYING RE-
fect for:
LEASES
APPENDIX E w PART 300—OIL SPILL RE-
SPONSE
AumoarrY 33 U S C l32i(cX2). 42 U S C
9601-9657. E 0. 12717, 56 FR 54757. 3 CFR. 1991
Comp. p351, EO 12580.52 FR 29Z1. 3 CFR,
1987 Comp .
(1) Discharges of oil into or on the
navigable waters of the United States,
on the adjoining shorelines, the waters
of the contiguous zone, into waters of
the exclusive economic zone, or that
may affect natural resources belonging
to, appertaining to. or under the exclu-
Subpart A—Introduction
sive management authority of the
United States (See sections 311(cXl)
SOURcE 59 FR 47418, Sept 15. 1994, unless
otherwise noted
and 502(7) of the CWA).
(2) Releases into the environment of
§ 300.1 Purpose and objectives,
hazardous substances, and pollutants
or contaminants which may present an
The purpose of the National Oil and
Hazardous Substances Pollution Con-
imminent and substantial danger to
public health or welfare of the United
tingency Plan (NCP) is to provide the
States.
organizational structure and proce-
(b) The NCP provides for efficient,
dures for preparing for and responding
coordinated, and effective response to
6
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§ 108.4
40 CFR Ch. I (7-1—97 EditIon) Environmental Protection Agency
§ 109 4
may submit a request for an investiga-
tion under this part to the Regional
Administrator of the region in which
such discrimination is alleged to have
occurred
* 108.4 InvestIgation by Regional Ad-
nilnistrator.
Upon receipt of any request meeting
the requirements of §108 3, the Re-
gional Administrator shall conduct a
full investigation of the matter, in
order to determine whether the request
may be related to an effluent limita-
tion or order under the Act Following
the investigation, the Regional Admin-
istrator shall notify the employee re-
questing the investigation (or the em-
ployee’s representative) and the em-
ployer of such employee, in writing, of
his preliminary findings and conclu-
sions The employee, the representa-
tive of such employee, or the employer
may within fifteen days following re-
ceipt of the preliminary findings and
conclusions of the Regional Adminis-
trator request a hearing under this
part. Upon receipt of such a request,
the Regional Administrator, with the
concurrence of the Chief Administra-
tive Law Judge, shall publish notice of
a hearing to be held not less than 30
days following the date of such publica-
tion where he determines that there
are factual Issues concerning the exist-
ence of the alleged discrimination or
its relationship to an effluent limita-
tion or order under the Act. The notice
shall specify a date before which any
party (or representative of such party)
may submit a request to appear.
§ 108,5 Procedure,
Any hearing held pursuant to this
part shall be of record and shall be con-
ducted according to the requirements
of 5 U S.C 554. The Administrative Law
Judge shall conduct the hearing in an
orderly and expeditious manner. By
agreement of the parties, he may dis-
miss the hearing. The Administrative
Law Judge, on his own motion, or at
the request of any party, shall have the
power to hold prehearing conferences,
to Issue subpoenas for the attendance
and testimony of witnesses and the
production of relevant papers, books,
and documents, and he may administer
oaths. The Regional Administrator,
and any party submitting a request
pursuant to § 108 3 or § 108.4, or counsel
or other representative of such party
or the Regional Administrator, may
appear and offer evidence at the hear-
Ing.
§ 108.8 Recommendations.
At the conclusion of any hearing
under this part, the Administrative
Law Judge shall, based on the record,
issue tentative findings of fact and rec-
ommendations concerning the alleged
discrimination and shall submit such
tentative findings and recommenda-
tions to the Administrator. The Ad-
ministrator shall adopt or modify the
findings and recommendations of the
Administrative Law Judge, and shall
make copies of such findings and rec-
ommendations available to the com-
plaining employee, the employer, and
the public.
§ 108.7 HearIng before Administrator.
At his option, the Administrator may
exercise any powers of an Administra-
tive Law Judge with respect to hear-
Ings under this part.
PART 109—CRITERIA FOR STATE,
LOCAL AND REGIONAL OIL RE-
MOVAL CONTINGENCY PLANS
Sec
109 1 Applicability.
109 2 DefinitIons.
109.3 Purpose and scope
1094 RelatIonship to Federal response
actions
109 5 Development and implementation cr1-
terla for State, local and regional oil re-
moval contingency plans.
1096 Coordination.
AUTHORITY. Sec 11(J)(IXB). 84 Stat 96. 33
U S C 1161(j)(l)(B)
SOURCE- 38 FR 22485, 4ov. 25, 1971, unless
otherwise noted
§ 109.1 ApplicabilIty.
The criteria in this part are provided
to assist State. local and regional
agencies in the development of oil re-
moval contingency plans for the inland
navigable waters of the United States
and all areas other than the high seas,
coastal and contiguous zone waters,
coastal and Great Lakes ports and har-
bors and such other areas as may be
agreed upon between the Environ-
mental Protection Agency and the De-
partment of Transportation in accord-
ance with section 11(j)(l)(B) of the Fed-
eral Act, Executive Order No. 11548
dated July 20, 1970 (35 FR 11677) and
§306.2 of the National 01] and Hazard-
ous Materials Pollution Contingency
Plan (35 FR. 8511).
§ 109.2 Defin1Uon .
As used in these guidelines, the fol-
lowing terms shall have the meaning
indicated below’
(a) Oil means oil of any kind or in
any form, including, but not limited to,
petroleum, fuel oil, sludge, oil refuse,
and oil mixed with wastes other than
dredged spoil.
(b) Discharge includes, but Is not lim-
ited to, any spilling, leaking, pumping,
pouring, emitting, emptying, or dump-
ing.
(C) Remove or removal refers to the re-
moval of the oil from the water and
shorelines or the taking of such other
actions as may be necessary to mini-
mize or mitigate damage to the public
health or welfare, including, but not
limited to, fish, shellfish, wildlife, and
public and private property, shorelines,
and beaches.
(d) Mayor disaster means any hurri-
cane, tornado, storm, flood, high water.
wind-driven water, tidal wave, earth-
quake, drought, fire, or other catas-
trophe in any part of the United States
which, in the determination of the
President, is or threatens to become of
sufficient severity and magnitude to
warrant disaster assistance by the Fed-
eral Government to supplement the ef-
forts and available resources of States
and local governments and relief orga-
nizations in alleviating the damage.
loss, hardship, or suffering caused
thereby.
(a) United Stales means the States,
the District of Columbia, the Common-
wealth of Puerto Rico. the Canal Zone.
Quam. American Samoa, the Virgin Is-
lands, and the Trust Territory of the
Pacific Islands.
(1) Federal Act means the Federal
Water Pollution Control Act, as
amended, 33 U.S.C. 1151 et seq.
§ 109.3 Purpose and scope.
The guidelines in this part establish
minimum criteria for the development
and implementation of State, local,
and regional contingency plans by
State and local governments in con-
sultation with private interests to in-
sure timely, efficient, coordinated and
effective action to minimize damage
resulting from oil discharges Such
plans will be directed toward the pro-
tection of the public health or welfare
of the United States, including. hut not
limited to, fish, shellfish, wildlife, and
public and private property, shorelines,
and beaches. The development and im-
plementation of such plans shall be
consistent with the National Oil and
Hazardous Materials Pollution Contin-
gency Plan. State. local and regional
oil removal contingency plans shall
provide for the coordination of the
total response to an oil discharge so
that contingency organizations estab-
lished thereunder can function inde-
pendently. in conjunction with each
other, or in conjunction with the Na-
tional and Regional Response Teams
establi8hed by the National Oil and
Hazardou8 Materials Pollution Contin-
gency Plan.
§109.4 Relationship to Federal re-
sponse actions.
The National Oil and Hazardous Ma-
terials Pollution Contingency Plan
provides that the Federal on-scene
commander shall investigate all re-
ported spills. If such investigation
shows that appropriate action is being
taken by either the discharger or non-
Federal entities, the Federal on-scene
commander shall monitor and provide
advice or assistance, as required. If ap-
propriate containment or cleanup ac-
tion is not being taken by the dis-
charger or non-Federal entitles, the
Federal on-scene commander will take
control of the response activity in ac-
cordance with section 1l(c)(1) of the
Federal Act.
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§109.5
40 CFR Ch. I (7-1-97 EdIflon) Environmental Protection Agency
§ nO.1
4109.5 Development and Implements-
Lion criteria for State, local and
regional oil removal contingency
plans.
Criteria for the development and Im-
plementation of State, local and re-
gional oil removal contingency plans
are:
(a) Definition of the authorities, re-
sponsibilities and duties of’ all persons.
organizations or agencies which are to
be involved or could be involved In
planning or directing oil removal oper-
ations. with particular care to clearly
define the authorities, responsibilities
and duties of State and local govern-
mental agencies to avoid unnecessary
duplication of contingency planning
activities and to minimize the poten-
tial for conflict and confusion that
could be generated in an emergency
situation as a result of such duplica-
tions.
(b) Establishment of notification pro-
cedures for the purpose of’ early detec-
tion and timely notification of an oil
discharge including
(1) The Identification of critical
water use areas to facilitate the report-
ing of and response to oil discharges.
(2) A current list of names, telephone
numbers and addresses of the respon-
sible persons and alternates on call to
receive notification of an oil discharge
as well as the names, telephone num-
bers and addresses of the organizations
and agencies to be notified when an oil
discharge is discovered
(3) Provisions for access to a reliable
communications system for timely no-
Uficatlon of an oil discharge and incor-
poration in the communications sys-
tern of the capability for interconnec-
tion with the communications systems
established under related oil removal
contingency plane, particularly State
and National plans.
(4) An established, prearranged proce-
dure for requesting assistance during a
major disaster or when the 8ituatiOfl
exceeds the response capability of the
State. local or regional authority.
(C) Provisions to assure that full re-
source capability is known and can be
committed during an oil discharge sit-
uation including:
(1> The ide ’ ation and inventory
of applicable ment, materials and
supplies which are available locally
and regionally.
(2) An estimate of the equipment,
materials and supplies which would be
required to remove the maximum oil
discharge to be anticipated.
(3) Development df agreements and
arrangements in advance of an oil dis-
charge for the acquisition of equip-
ment, materials and supplies to be used
in responding to such a discharge.
Cd) Provisions for well defined and
specific actions to be taken after dis-
covery and notification of an oil dis-
charge Including:
(1) Specification of an oil discharge
response operating team consisting of
trained, prepared and available operat-
ing personnel.
(2) Predesignation of a properly
qualified oil discharge response coordi-
nator who is charged with the respon-
aibility and delegated commensurate
authority for directing and coordinat-
ing response operations and who knows
how to request assistance from Federal
authorities operating under existing
national and regional contingency
plans.
(3) A preplanned location for an oil
discharge response operations center
and a reliable communications system
for directing the coordinated overall
response operations.
(4) Provisions for varying degrees of
response effort depending on the sever-
ity of’ the oil discharge.
(5) Specification of the order of prior-
Ity in which the various water uses are
to be protected where more than one
water use may be adversely affected as
a result of an oil discharge and where
response operations may not be ade-
quate to protect all uses.
(e) Specific and well defined proce-
dures to facilitate recovery of damages
and enforcement measures as provided
for by State and local statutes and or-
dinances.
4109.8 Coordination.
For the purposes of coordination, the
contingency plans of State and local
governments should be developed and
implemented in consultation with pri-
vate Interests. A copy of any oil re-
moval contingency plan developed by
State and local governments should be
forwarded to the Council on Environ-
mental Quality upon request to facili-
tate the coordination of these contin-
gency plans with the National Oil and
Hazardous Materials Pollution Contin-
gency Plan.
PART itO—DISCHARGE OF OIL
Sec.
110.1 Definitions.
1102 Applicability.
110 3 Discharge of oil in such quantitte as
“may be harmful” pursuant to section
311(b)(4) of the Act
1104 Dispersa.nts.
1105 Discharges of oil not determined “as
may be harmful” pursuant to section
311(b)(3) of the Act
1106 Notice.
AUTHORITY. 33 U.S.C. l321(b)(3) and (bX4)
and 1361(a ). E 0. 11735. 38 FR 21243, 3 CFR
Parts 1971-1975 Comp . p 793.
SOURCE: 52 FR 19319, Apr 2. 1987, unless
otherwise noted.
4110.1 DefinitIons.
Terms not defined in this section
have the same meaning given by the
SectIon 311 of the Act. As used in this
part, the following terms shall have
the meaning indicated below:
AcC means the Federal Water Pollu-
tion Control Act, as amended. 33 U.S.C.
1251 ci seq., also known as the Clean
Water Act;
Administrator means the Adminis-
trator of the Environmental Protection
Agency (EPA);
Applicable water qua lily standards
means State water quality standards
adopted by the State pursuant to sec-
tion 303 of the Act or promulgated by
EPA pursuant to that section;
MARPOL 73118 means the Inter-
national Convention for the Prevention
of Pollution from Ships. 1973. as modi-
fied by the Protocol of 1978 relating
thereto, Annex I. which regulates p01-
lution from oil and which entered Into
force on October 2, 1983;
Navigable waters means the waters of
the United States, Including the terri-
torial seas. The term includes:
(a) All waters that are currently
used, were used in the past, or may be
susceptible to use In interstate or for-
eign commerce, Including all waters
that are subject to the ebb and flow of
the tide;
(b) Interstate waters, Including inter-
state wetlands;
(C) All other waters such as Intra-
state lakes, rivers, streams (Including
intermittent streams), mudflata.
sandflats, and wetlands, the use, deg-
radation, or destruction of which would
affect or could affect Interstate or for-
eign commerce including any such wa-
ters:
(1) That are or could be used by inter-
state or foreign travelers for rec-
reational or other purposes,
(2) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce;
(3) That are used or could be used for
industrial purposes by industries in
interstate commerce;
Cd) All impoundments of waters oth-
erwise defined as navigable waters
under this section;
(e) Tributaries of waters identified in
paragraphs (a) through (d) of this sec-
tion, including adjacent wetlands; and
(f, Wetlands adjacent to waters iden-
tified in paragraphs (a) through (e) of
this section: Provided. That waste
treatment systems (other than cooling
ponds meeting the criteria of this para-
graph) are not waters of the United
States;
Navigable waters do not include prior
converted cropland Notwithstanding
the determination of an area’s status
as prior converted cropland by any
other federal agency, for the purposes
of the Clean Water Act, the final au-
thority regarding Clean Water Act ju-
risdiction remains with EPA
NPDES means National Pollutant
Discharge Elimination System,
Sheen means an iridescent appear-
ance on the surface of water,
Sludge means an aggregate of oil or
oil and other matter of any kind in any
form other than dredged spoil having a
combined specific gravity equivalent to
or greater than water:
Umled States means the States, the
District of Columbia. the Common.
wealth of Puerto Rico, Guam, Amer-
ican Samoa, the Virgin Islands, and the
Trust Territory of the Pacific islands:
Wetlands means those areas that are
inundated or saturated by surface or
ground water at a freniiency or dura-
tion sufficient to S ‘t, and that
-------
Protection Agency
§ 110.1
forwarded to the Council on Environ-
mental Quality upon request to facili-
tate the coordination of these contin-
gency plans with the National Oil and
Hazardous Materials Pollution Contin-
gency Plan
PART 110—DISCHARGE OF OIL
Sec
flU 1 DefInitions
110 2 Applicability
110 3 Discharge of oil In such quantities as
“may be harmful” pursuant to section
311(b)(4) of the Act
1104 Dispersants
1105 Discharges or oil not determined “as
may be harmful” pursuant to section
311(bfl3) of the Act
1106 Notice
Aumonrrf 33 U S C 1321(bX3) and (b)(4)
and 1361(a), E 0 11735, 38 FR 21213. 3 CFR
Parts 1971-19’7S Comp, p ‘193
SOURCE 52 FR 10719. Apr 2. 1987. unless
otherwise noted
110.1 Definitions.
Terms not defined in this section
have the same meaning given by the
Section 311 of the Act As used in this
part, the following terms shall have
the meaning indicated below.
Act means the Federal Water Pollu-
tion Control Act, as amended, 33 U S C
1251 et seq , also known as the Clean
Water Act;
Admin istrator means the Adminis-
trator of the Environmental Protection
Agency (EPA),
Applicable water quality standard s
means State water quality standards
adopted by the State pursuant to sec-
tion 303 of the Act or promulgated by
EPA pursuant to that section,
MARPOL 73,78 means the Inter-
national Convention for the Prevention
of Pollution from Ships, 1973, as modi-
fied by the Protocol of 1978 relating
thereto, Annex I, which regulates pol-
lution from oil and which entered into
force on October 2, 1983,
Navigable waters means the waters of
the United States, including the tern-
lariat seas The term includes
(a) All waters that are currently
used, were used in the past, or may be
susceptible to use in interstate or for-
eign commerce, including all waters
that are subject to the ebb and flow of
the tide.
(b) Interstate waters, including Inter-
state wetlands,
(c) All other waters such as Intra-
state lakes, rivers, streams (including
intermittent streams), mudflats,
sandflats, and wetlands, the u8e, deg-
radation 1 or destruction of which would
affect or could affect interstate or for-
eign commerce Including any such wa-
ters.
(1) That are or could be used by inter-
state or foreign travelers for rec-
reational or other purposes,
(2) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce,
(3) That are used or could be used for
industrial purposes by industries in
interstate commerce,
(d) All impoundments of waters oth-
erwise defined as navigable waters
under this section;
(e) Tributaries of waters identified in
paragraphs (a) through (d) of this sec-
tion, including adjacent wetlands; and
(1, Wetlands adjacent to waters iden-
tified in paragraphs (a) through (e) of
this section Provided, That waste
treatment systems (other than cooling
ponds meeting the criteria of this para-
graph) are not waters of the United
States,
Navigable waters do not include prior
converted cropland Notwithstanding
the determination of an area’s status
as prior converted cropland by any
other federal agency, for the purposes
of the Clean Water Act, the final au-
thority regarding Clean Water Act ju-
risdiction remains with EPA
NPDES means National Pollutant
Discharge Elimination System,
Sheen means an iridescent appear-
ance on the surface of water,
Sludge means an aggregate of oil or
oil and other matter of any kind in any
form other than dredged spoil having a
combined specific gravity equivalent to
or greater than water,
United States means the States, the
District of Columbia, the Common-
wealth of Puerto Rico, Guam, Amer-
ican Samoa, the Virgin Islands, and the
Trust Territory of the Pacific Islands,
Wetlands means those areas that are
inundated or saturated by surface or
ground water at a frequency or dura-
tion sufficient to support, and that
399
-------
9 110.2
40 CFR Ch. 1 (7—1-97 EditIon)
under normal circumstances do sup-
port, a prevalence of vegetation typi-
cally adapted for life in 8aturated soil
conditions. Wetlands generally include
playa lakes, swamps, marshes, bogs
and similar areas such as slou.ghs, prai-
rie potholes. wet meadows, prairie
river overflows, mudflats, and natural
ponds
(52 FR 10719. Apr 2, 1987. as amended at 58
FR 45039, Aug 25. 1993, 61 FR 7421, Feb 28.
1996 )
§ 110.2 ApplIcability.
The regulations of this part apply to
the discharge of oil prohibited by sec-
tion 311(b)(3) of the Act.
(61 FR 7121. Feb 28. 19961
§ 110.3 Discharge of oil in such quan-
tities as “may be harmful” pursuant
to section 311(b)(4) of the Act.
For purposes of section 311(bX4) of
the Act, discharges of oil in such quan-
tities that the Administrator has de-
termined may be harmful to the public
health or welfare or the environment of
the United States include discharges of
oil that’
(a) Violate applicable water quality
standards, or
(b) Cause a film or sheen upon or dis-
coloration of the surface of the water
or adjoining shorelines or cause a
sludge or emulsion to be deposited be-
neath the surface of the water or upon
adjoining shorelines
(61 FR 7421. Feb 28, 19961
{110.4 Dispersants.
Addition of dispersants or emuisifiers
to oil to be discharged that would cir-
cumvent the provisions of this part is
prohibited
52 FR 10719. Apr 2. 1981 Redestgnated at 61.
FIt 7121. Feb 28. 19961
§ 110.5 Discharges of oil not deter-
mined “as may be harmfui” pursu-
ant to Section 311(b)(3) of the ML
Notwithstanding any other provi-
sions of this part, the Administrator
has not determined the following dis-
charges of oil “as may be harmful’ t for
purposes of section 311(b) of the Act
(a) Discharges of oil from a properly
functioning vessel engine (including an
engine on a public vessel) and any dis-
charges of such oil accumulated in the
bilges of a vessel discharged In compli-
ance with MARPOL 73178, Annex I, as
provided in 33 CFR part 151, subpart A;
(b) Other discharges of oil permitted
under MARPOL 73178, Annex I, as pro-
vided in 33 CFR part 151, subpart A, and
(c) Any discharge of oil explicitly
permitted by the Administrator in con-
nection with research, demonstration
projects, or studies relating to the pre-
vention, control, or abatement of oil
pollution.
(61 FR 7421, Feb 28, 1996)
§110.6 Notice.
Any person in charge of a vessel or of
an onshore or offshore facility shall, as
soon as he or she has knowledge of any
discharge of oil from such vessel or fa-
cility in violation of section 311(b)(3) of
the Act, immediately notify the Na-
tional Response Center (NRC) (800-424-
8802, in the Washington DC metropoli-
tan area, 202—426—2675) If direct report-
ing to the NRC is not practicable, re-
ports may be made to the Coast Guard
or EPA predesignated On-Scene Coordi-
nator (OSC) for the geographic area
where the discharge occurs All such
reports shall be promptly relayed to
the NRC. If it is not possible to notify
the NRC or the predesignated OCS im-
mediately, reports may be made imme-
diately to the nearest Coast Guard
unit, provided that the person in
charge of the vessel or onshore or off-
shore facility notifies the NRC as soon
as possible. The reports shall be made
in accordance with such procedures as
the Secretary of Transportation may
prescribe The procedures for such no-
tice are set forth in U,S Coast Guard
regu1at ons . 33 CFR part 153, subpart B
and in the National Oil and Hazardous
Substances Pollution Contingency
Plan, 40 CFR part 300. subpart E
(Approved b the Office of Management and
Budget under the control number 2050-0046)
[ 52 FR 10719, Apr 2, 1987 Redesignated and
amended at 61 F It 1421, Feb 28, 1996, 61 FR
14032. Mar 29. 1996J
Sec
112 1
PART 112—OIL POLLUTION
PREVENTION
General applicablitty
400
-------
§ 110.2
40 CER Ch. I (7—1-97 EdItion)
Environmental Protection Agency
§1 12.1
under normal circumstances do sup-
port, a prevalence of vegetation typi-
cally adapted for life in saturated soil
conditions Wetlands generally include
playa lakes, swamps, marshes, bogs
and similar areas such as sloughs, prai-
rie potholes, wet meadows, prairie
river overflows, mudflats, and natural
ponds
(52 FR 10719. Apr 2. 1987, as amended at 58
FR 45039. Aug 25. 1993. 51 FR 7421. Feb 28.
1996 )
§ 110.2 Applicability.
The regulations of this part apply to
the discharge of oil prohibited by sec-
tion 3l1(b)(3) of the Act
(61 FR 7421, Feb 28. 1996]
§110.3 Discharge of oil In such quan-
titles as “may be harmful” pursuant
to section 311(b)(4) of the Act.
For purposes of section 311(b)(4) of
the Act, discharges of oil in such quan-
tities that the Administrator has de-
termined may be harmful to the public
health or welfare or the environment of
the United States include discharges of
oil that:
(a) Violate applicable water quality
standards; or
(b) Cause a film or sheen upon or dis-
coloration of the surface of the water
or adjoining shorelines or cause a
sludge or emulsion to be deposited be-
neath the surface of the water or upon
adjoining shorelines.
(61 FR 7421, Feb 28. 1996]
§110.4 Dispersants.
Addition of dispersants or emulsifiers
to oil to be discharged that would cir-
cumvent the provisions of this part is
prohibited
(52 FR 10’719. Apr 2. 1987 RedesIgnated at 61
FR 7421. Feb 28. 1996]
§110.5 DIscharges of oil not deter-
mined “as may be harmful” pursu-
ant to Section 311(b)(3) of the AcL
Notwithstanding any other provi-
sions of this part, the Administrator
has not determined the following dis-
charges of oil “as may be harmful’ t for
purposes of section 311(b) of the Act:
(a) Discharges of oil from a properly
functioning vessel engine (including an
engine on a public vessel) and any d ls-
charges of such oil accumulated in the
bilges of a vessel discharged in compli-
ance with MARPOL, 73118, Annex I, as
provided in 33 CFR part 151. subpart A;
(b) Other discharges of oil permitted
under MARPOL 73/78, Annex 1, as pro-
vided In 33 CFR part 151, subpart A; and
(c) Any discharge of oil explicitly
permitted by the Administrator in con-
nection with research, demonstration
projects, or studies relating to the pre-
vention, control, or abatement of oil
pollution.
(61 FR 7421, Feb 28. 19961
§ 110.6 Notice.
Any person in charge of a vessel or of
an onshore or offshore facility shall, as
soon as he or she has knowledge of any
discharge of oil from such vessel or fa-
cility in violation of section 311(b)(3) of
the Act, immediately notify the Na-
tional Response Center (NRC) (800-424—
8802; in the Washington, DC metropoli-
tan area, 202—426—2675). If dIrect report-
ing to the NRC is not practicable, re-
ports may be made to the Coast Guard
or EPA predesignated On-Scene Coordi-
nator (OSC) for the geographic area
where the discharge occurs. All such
reports shall be promptly relayed to
the NRC. If it is not possible to notify
the NRC or the predesignated OCS im-
mediately, reports may be made imme-
diately to the nearest Coast Guard
unit, provided that the person in
charge of the vessel or onshore or off-
shore facility notifies the NRC as soon
as possible. The reports shall be made
in accordance with such procedures as
the Secretary of Transportation may
prescribe. The procedures for such no-
tice are set forth in U.S. Coast Guard
regulations, 33 CFR part 153, subpart B
and In the National 011 and Hazardous
Substances Pollution Contingency
Plan, 40 CFR part 300, subpart E
(Approved by the Office of Management and
Budget under the control number 2050-0046)
(52 FR 10719, Apr 2. 1907 RedesIgnated and
amended at 61 FR 7421, Feb 28. 1995, 61 FR
14032, Mar 29, 1996)
PART 112—OIL POLLUTION
PREVENTION
Sec
112 1 General applicability
1123 DefinitIons
112.3 Requirements for preparation and
Implementation of Spill Prevention Con-
trol and Countermeasure Plans
1124 Amendment of s cc Plans by Re-
gional Administrator.
112.5 Amendment of Spill Prevention Con-
trol and Countermeasure Plans by own-
em or operators
112.7 GuIdelines for the preparation and im-
plementation of a Spill Prevention Con-
trol and Countermeasure Plan.
11228 FacIlity response plans
112.21 FacIlity response training and drIllaF
exercises
APPENDIX A TO PART 112—MEMORANDUM OF’
UNDERsTANDING BETWEEN THE SECRETARY
OP TRANSPORTATION AND THE ADMINI5-
TRATOR OF’ THE ENVIRONMENTAL PROTEC-
tON AOENCY
APPENDIX B TO PART 112—MEMORANDUM OP
UNDERSTANDING AMONG THE SECRETARY
OP THE INTER iOR. SECRETARY OP TRAN5-
PORTATION, AND AnMIN I5TI 1ATOR OF’ THE
ENVIRONMENTAL PROTECTION A0ENOY
APPENDIX C TO PART 1l2—SU55TANTIAL HARM
CRITERIA
APPENDIX D TO PART 112 —DETERMINATION OF’
A WORST CASE DISCHAROE PLANNINO VOL-
UME
APPENDIX S TO PART 112-DETERMINATION
AND EvALUATION OF REQUIRED REsPONsE
RESOURCES FOR FAcILII’Y REsPONsE
PLANS
APPENDIX F TO PART 112—FAcILrI’Y--SPEcLF’IC
REsPONsE PLAN
AUTHORITY 33 USC 1321 and 1351, EO
12777 (October 15. 1991). 3 CFR. 1991 Comp p
351.
souRcE 38 FR 34165. Dec 11. 1973. unless
otherwise noted
§ 112.1 General applicability.
(a) This part establishes procedures.
methods and equipment and other re-
quirements for equipment to prevent
the discharge of oil from non-transpor-
tation-related onshore and offshore fa-
cilities into or upon the navigable wa-
ters of the United States or adjoining
shorelines.
(b) Except as provided in paragraph
(d) of this section, this part applies to
owners or operators of non-transpor-
tation-related onshore and offshore fa-
cilities engaged in drilling, producing.
gathering, storing, processing, refining,
transferring, distributing or consuming
oil and oil products. and which, due to
their location, could reasonably be ex-
pected to discharge oil ia harmful
quantities, as defined in part 110 of this
chapter, Into or upon the navigable wa-
ters of the United States or adjoining
shorelines.
(c) As provided In section 313 (86 Stat.
875) departments, agencies. and instru-
mentalities of the Federal government
are subject to these regulations to the
same extent as any person. except for
the provisions of § 112 6
(d) This part does not apply to
(1) Facilities, equipment or oper-
ations which are not subject to the ju-
rIsdictIon of the Environmental Pro-
tection Agency, as follows:
( I) Onshore and offshore facilities,
which, due to their location, could not
reasonably be expected to discharge oil
into or upon the navigable waters of
the United States or adjoining shore-
lines. This determination shall be
based solely upon a consideration of
the geographical, locational aspects of
the facility (such as proximity to navi-
gable waters or adjoining shorelines,
land contour, drainage, eto.) and shall
exclude consideration of manmade fea-
tures such as dikes, equipment or other
structures which may serve to restrain,
hinder, contain, or otherwise prevent a
dIscharge of oil from reaching navi-
gable waters of the United States or
adjoining shorelines; and
(ii) Equipment or operations ot ves-
sels or transportation-related onshore
and offshore facilities which are sub-
ject to authority and control of the De-
partment of Transportation, as defined
in the Memorandum of Understanding
between the Secretary of Transpor-
tation and the Administrator of the
Environmental Protection Agency,
dated November 24, 1971. 36 FR 24000
(2) Those facilities which, although
otherwise subject tO the jurisdiction of
the Environmental Protection Agency,
meet both of the following require-
ments.
(i) The underground buried storage
capacity of the facility is 42,000 gallons
or less of oil, and
(ii) The storage capacity, which is
not buried, of the facility is 1.320 gal-
lons or less of oil, provided no single
container has a capacity in excess of
660 gallons.
(e) This part provides for the prepara-
tion and implementation of Spill Pre-
vention Control and Countermeasure
Plans prepared in accordance with
4nfl
-------
§ 112. 2
40 CFR C l i. I (7-1—97 Edmon) Environmental Protection Agency
§ 112.3
*112.7, designed to complement existing
laws, regulations, rules, standards,
policies and procedures pertaining to
safety standards, fire prevention and
pollution prevention rules, so as to
form a comprehensive balanced Fed-
eral/State spill prevention program to
minimize the potential for oil dis-
charges. Compliance with this part
does not in any way relieve the owner
or operator of an onshore or an off-
shore facility from compliance with
other Federal, State or local laws.
(35 FR 3416.5, Dec Il, 1913, as amended at 41
FR 12657, Mar 26. 1076)
*112.2 Deflnition&
For the purposes of this part:
Adverse weather means the weather
conditions that make it difficult for re-
sponse equipment and personnel to
cleanup or remove spilled oil, and that
will be considered when identifying re-
sponse systems and equipment In a re-
sponse plan for the applicable operat-
ing environment. Factors to consider
include significant wave height as
specified in Appendix E to this part, as
appropriate, ice conditions, tempera-
tures, 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 compo-
nents that is subject to the jurisdiction
of more than one Federal agency under
section 3Wj) 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 avail-
ability 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 faci]ity
owner or operator, are available to re-
spond to a discharge within appro-
priate response times; and/or
(3) Active membership in a local or
regional oil spill removal organiza-
tion(s) that has identified and ensures
adequate access through such member-
ship to necessr ‘ersonnel and equip—
ment to respo a discharge within
appropriate response times in the spec-
ified geographic areas; and/or
(4) Other specific arrangements ap-
proved by the Regionai Administrator
upon request of the owner or operator.
Discharge includes but is not limited
to. any spilling, leaking, pumping,
pouring, emitting, emptying or dump-
ing. For purposes of this part, the term
discharge shall not include any dis-
charge of oil which is authorized by a
permit issued pursuant to section 13 of
the River and Harbor Act of 1899 (30
Stat. 1121, 33 U.S C. 40’?), or sections 402
or 405 of the FWPCA Amendments of
1912 (86 Stat. 816 et seq., 33 U.S.C. 1251 et
seq.).
Fish and wildlife and sensitive environ-
ment.s means areas that may be identi-
fied by either their legal designation or
by evaluations of Area Committees (for
planning) or members of the Federal
On-Scene Coordinator’s ap t II response
structure (during responses), These
areas may include wetlands, National
and State parks, critical habitats for
endangered/threatened species, wilder-
ness and natural resource areas, ma-
rine sanctuaries and estuarine re-
serves, 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: aqua-
culture sites and agricultural surface
water intakes, bird nesting areas, criti-
cal biological resource areas, des-
ignated migratory routes, and des-
ignated seasonal hatitats
in jury means a measurable adverse
change, either long- or short-term, in
the chemical or physical quality or the
viability of a natural resource result-
ing either directly or indirectly ftom
exposure to a discharge of oil, or expo-
sure 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 pro-
tection, and cleanup for worst case dis-
charges from onshore non- transpor-
tation-related facilities in adverse
weather. It considers the planned capa-
bility to respond to a worst case dis-
charge in adverse weather, as con-
tained in a response plan that meets
the requirements in *11220 or in a epe-
cific plan approved by the Regional Ad-
ministrator.
The term navigable waters of the
United States means navigable waters
as defined in section 502(7) of the
FWPCA, and includes-
(1) All navigable waters of the United
States, as defIned in judicial decisions
prior to passage of the 1912 Amend-
ments to the FWPCA (Pub. L. 92-500),
and tributaries of such waters;
(2) Interstate waters;
(3) Intrastate lakes, riven, and
streams which are utilized by inter-
state travelers for recreational or
other purposes; and
(4) Intrastate lakes, rivers, and
streams from which fish or shellfish
are taken and sold in interstate com-
merce,
Navigable waters do not include prior
converted cropland. Notwithstanding
the dsterrnination of an area’s status
as prior converted cropland by any
other federal agency, for the purposes
of the Clean Water Act, the final au-
thority regarding Clean Water Act ju-
risdiction remains with EPA.
Offshore facility means any facility of
any kind located in, on, or under any of
the navigable waters of the United
States, which is not a transportation-
related facility.
Oil means oil of any kind or in any
form, including, but not limited to pe-
troleurn, fuel oil, sludge, oil refuse and
oil mixed with wastes other than
dredged spoil.
Oil SpIN Removal Organization means
an entity that provides oil spill re-
sponse resources, and includes any for-
profit or not—for-profit contractor, co-
operative, or in-house response re-
sources that have been established in a
geographic area to provide required re-
eponse resources
Onshore facility means any facility of
any kind kcated in, on, or under any
land within the United States, other
than submerged lands, which is not a
transportation-related facility.
Owner or operator means any person
owning or operating an onshore facility
or an offshore facility, and in the case
of any abandoned offshore facility, the
person who owned or operated such fa-
cility immediately prior to euch sban-
donm ent.
Person iacludes an individual, firm,
corporation, association, and a part-
nership.
Regional Administrator, means the Re-
gional Administrator of the Environ-
mental Protection Agency, or his des-
ignee. in and for the Region in which
the facility is located
Spi ll event means a discharge of cii
into or upon the navigable waters of
the United States or adjoining shore-
lines in harmful quantities, as defined
at 40 CFR part 110
Transportat ion-related and non-trans-
portation-related as applied to an on-
shore or offshore facility, are defined
in the Memorandum of Understanding
between the Secretary of Transpor-
tation and the Administrator of the
Environmental Protection Agency.
dated November 24, 1911, 36 FR 24080.
United States means the States, the
District of Columbia, the Common-
wealth of Puerto Rico. the Canal Zone,
Guam, American Samoa, the Virgin Is-
lands, and the Trust Territory of the
PacifIc Islands.
Vessel means every description of
watercraft or other artificial contriv-
ance used, or capable of being used as a
means of transportation on water,
other than a public vessel.
Worst case discharge for an onshore
non-transportation-related facility
means the largest foreseeable dis-
charge in adverse weather conditions
as determined using the worksheets in
Appendix I ) to this part.
(38 FR 34165. Dec 11 , 1973, as smended at 58
FR 45039. Aug 25, 1993, 59 FR 34097. July 1,
1994)
§ 112.3 RequIrements for preparation
and implementation of Spill Pre-
vention Control and Counter-
measure Plant
(a) Owners or operators of onshore
and offshore facilities in operation on
or before the effective date of this part
that have discharged or, due to their
location, could reasonably be expected
to discharge oil in harmful quantities.
as defined in 40 CFR part 110, into or
upon the navigable wat’ -‘f the Unit-
ed States or adjoining ines, shall
-------
§ 112.3
40 CFR Ch. I (7-1-97 Edition) Environmental Protection Agency
§ 112.4
prepare a Spill Prevention Control and
Countermeasure Plan (hereinafter
‘SPCC Plan”), in writing and in ac-
cordance with § 112.7. Except as pro-
vided for In paragraph (1) of this sec-
tion. such SPCC Plan shall be prepared
within six months after the effective
date of this part and shall be fully im-
plemented as soon as possible, but not
later than one year after the effective
date of this part.
(b) Owners or operators of onshore
and offshore facilities that become
operational after the effective date of
this part, and that have discharged or
could reasonably be expected to dis-
charge oil in harmful quantities, as de-
fined in 40 CFR part 110, into or upon
the navigable waters of the United
States or adjoining shorelines, shall
prepare an SPCC Plan in accordance
with § 1127 Except as provided for in
paragraph (fl of this section, such
SPCC Plan shall be prepared within six
months after the date such facility be-
gins operations and shall be fully Im-
plemented as soon as possible, but not
later than one year after such facility
begins operations
(C) Owners or operators of onshore
and offshore mobile or portable facili-
ties. such as onshore drilling or
workover rigs, barge mounted offshore
drilling or workover rigs, and portable
fueling facilities shall prepare and im-
plement an SPCC Plan as required by
paragraphs (a), (b) and (d) of this sec-
tion The owners or operators of such
facility need not prepare a new SPCC
Plan each time the facility is moved to
a new site. The SPCC Plan may be a
general plan, prepared in accordance
with § 112.7, using good engineering
practice. When the mobile or portable
facility Is moved, it must be located
and installed using the spill prevention
practices outlined in the SPCC Plan for
the facility. No mobile or portable fa-
cility subject to this regulation shall
operate unless the SPCC Plan has been
implemented. The SPCC Plan shall
only apply while the facility Is in a
fixed (non-transportation) operating
mode.
(d) No SPCC Plan shall be effective
to satisfy the requirements of this part
unless it has been reviewed by a Reg-
istered Professional Engineer and cer-
tified to by such Professional Engineer.
By means of this certification the engi-
neer, having examined the facility and
being familiar with the provisions of
this part, shall attest that the SPCC
Plan has been prepared in accordance
with good engineering practices. Such
certification shall in no way relieve
the owner or operator of an onshore or
offshore facility of his duty to prepare
and fully implement such Plan in ac-
cordance with §112.7, as required by
paragraphs (a), (b) and (C) of this sec-
tion.
(e) Owners or operators of a facility
for which an SPCC Plan is required
pursuant to paragraph (a), (b) or (c) of
this section shall maintain a complete
copy of the Plan at such facility If the
facility is normally attended at least 8
hours per day, or at the nearest field
office if’ the facility is not so attended,
and shall make such Plan available to
the Regional Administrator for on-site
review during normal working hours.
(f) Ezten ons of frnie (1) The Regional
Administrator may authorize an exten-
sion of time for the preparation and
full implementation of an SPCC Plan
beyond the time permitted for the
preparation and Implementation of an
SPCC Plan pursuant to paragraph (a),
(b) or (C) of this section where he finds
that the owner or operator of a facility
subject to paragraphs (a), (b) or (c) of
this section cannot fully comply with
the requirements of this part as a re-
sult of either nonavailability of quali-
fied personnel, or delays In construc-
tion or equipment delivery beyond the
control and without the fault of such
owner or operator or their respective
agents or employees
(2) Any owner or operator seeking an
extension of time pursuant to para-
graph (0(1) of this section may submit
a letter of request to the Regional Ad-
ministrator. Such letter shall include:
(1) A complete copy of the SPCC
Plan, if completed;
( Ii) A full explanation of the cause for
any such delay and the specific aspects
of the SPCC Plan affected by the delay;
(iii) A full discussion of actions being
taken or contemplated to minimize or
mitigate such delay;
(iv) A proposed time schedule for the
implementation of any corrective ac-
tions being taken or contemplated, in-
cluding interim dates for completion of
tests or studies, installation and oper-
ation of any necessary equipment or
other preventive measures.
In addition, such owner or operator
may present additional oral or written
statements In support of his letter of
request.
(3) The submission of a letter of re-
quest for extension of time pursuant to
paragraph (f)(2) of this section shall in
no way relieve the owner or operator
from his obligation to comply with the
requirements of § 1123 (a), (b) or (c).
Where an extension of time is author-
ized by the Regional Administrator for
particular equipment or other specific
aspects of the SPCC Plan, such exten-
sion shall in no way affect the owner’s
or operator’s obligation to comply with
the requirements of §112 3 (a), (b) or (c)
with respect to other equipment or
other specific aspects of the SPCC Plan
for which an extension of time has not
been expressly authorized.
[ 38 FR 3416,5, Dec 11. 1973. as amended at 41
FR 12657, Mar 26, 19’16)
* 112.4 Amendment of SPCC Plane by
Regional Administrator.
(a) Notwithstanding compliance with
§112 3, whenever a facility sub)ect to
§ 112 3 (a), (b) or (C) has. Discharged
more than 1,000 U S. gallons of oil into
or upon the navigable waters of the
United States or adjoining shorelines
in a single spill event, or discharged oil
in harmful quantities, as defined in 40
CFR part 110, into or upon the navi-
gable waters of the United States or
adjoining shorelines in two spill
events, reportable under section
311(b)(5) of the FWPCA. occurring with-
in any twelve month period, the owner
or operator of such facility shall sub-
mit to the Regional Administrator,
within 60 days from the time such fa-
cility becomes subject to this section.
the following:
(1) Name of the facility;
(2) Name(s) of the owner or operator
of the facility;
(3) Location of the facility;
(4) Date and year of initial facility
operation;
(5) Maximum storage or handling ca-
pacity of the facility and normal daily
throughput:
(6) Description of the facility, includ-
ing maps, flow diagrams, and topo-
graphical maps;
(7) A complete copy of the SPCC Plan
with any amendments;
(8) The cause(s) of such spill. includ-
ing a failure analysis of system or sub-
system in which the failure occurred;
(9) The corrective actions andfor
countermeasures taken, including an
adequate description or equipment re-
pairs and/or replacements;
(10) Additional preventive measures
taken or contemplated to minimize the
possibility of recurrence;
(11) Such other information as the
Regional Administrator may reason-
ably require pertinent to the Plan or
spill event
(b) Section 112 4 shall not apply until
the expiration of the time permitted
for the preparation and implementa-
tion of an SPCC Plan pursuant to § 112 3
(a), (b), (C) and (f).
(C) A complete copy of all informa-
tion provided to the Regional Adminis-
trator pursuant to paragraph (a) of this
section shall be sent at the same ‘ rne
to the State agency In charge of water
pollution control activities In and for
the State in which the facility is lo-
cated Upon receipt of such informa-
tion such State agency may conduct a
review and make recommendations to
the Regional Administrator as to fur-
ther procedures, methods, equipment
and other requirements for equipment
necessary to prevent and to contain
discharges of oil from such facility
(d) After review of the SPCC Plan for
a facility subject to paragraph (a) of
this section, together with all other in-
formation submitted by the owner or
operator of such facility, and by the
State agency under paragraph (C) of
this section, the Regional Adminis-
trator may require the owner or opera-
tor of such facility to amend the SPCC
Plan if he rinds that the Plan does not
meet the requirements of this part or
that the amendment of the Plan is nec-
essary to prevent and to contain dis-
charges of oil from such facility.
(e) When the Regional Administrator
proposes to require an amendment to
the SPCC Plan, he shall notify the fa-
cility operator by certified mail ad-
dressed to, or by personal delivery to,
the facility owner or operator, that he
-------
§ 1125
40 CFR Ch. I (7-147 EdItion) Environmental Protection Agency
§ 112.7
proposes to require an amendment to
the Plan, and shall specify the terms of
such amendment. If the facility owner
or operator is a corporation, a copy of
such notice shafl also be mailed to the
registered agent, if any, of such cor-
poration in the State where such facil-
ity is located. Within 30 days from re-
ceipt of such notice, the facUlty owner
or operator may submit written Infor-
mation, views, and arguments on the
amendment After considering all rel-
evant material presented, the Regional
Administrator shall notify the facility
owner or operator of any amendment
required or shall rescind the notice.
The amendment required by the Re-
gional Administrator shall become part
of the Plan 30 days after such notice,
unless the Regional Administrator, for
good cause, shall specify another effec-
tive date The owner or operator of the
facility shall implement the amend-
ment of the Plan as soon as possible,
but not later than six months after the
amendment becomes part of the Plan,
unless the Regional Administrator
specifies another date.
(1) An owner or operator may appeal
a decision made by the Regional Ad-
ministrator requiring an amendment
to an SPCC Plan. The appeal shall be
made to the Administrator of the Unit-
ed States Environmental Protection
Agency and must be made in writing
within 30 days of receipt of the notice
from the Regional Administrator re-
quiring the amendment. A complete
copy of the 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 the Issues and points of fact In the
case It may also contain additional in-
formation from the owner or operator,
or from any other person. The Admin-
istrator or his designee may request
additional information from the owner
or operator, or from any other person.
The Administrator or his designee
shall render a decision within 60 days
of receiving the appeal and shall notify
the owner or operator of his decision.
(38 FR 34165. Dec ‘ 1973, as amended at 41
FR 12658. Mar 26,
* 112.6 A.mandment of Spill Prevention
Controi and Countermeasure Plans
by owners or operators.
(a) Owners or operators of facilities
subject to § 112.3 (a). (b) or (c) shall
amend the SPCC Plan for such facility
In accordance with §112.7 whenever
there Is a change in facility design,
construction, operation or mainte-
nance which materially affects the fa-
cility’s potential for the discharge of
oil into or upon the navigable waters of
the United States or adjoining shore
lines. Such amendments shall be fully
implemented as soon as possible, but
not later than six months after such
change occurs.
(b) Notwithstanding compliance with
paragraph (a) of this section. owners
and operators of facilities subject to
§1123 (a), (b) or (C) shall complete a re-
view and evaluation of the SPCC Plan
at least once every three years from
the date such facility becomes subject
to this part As a result of this review
and evaluation, the owner or operator
shall amend the SPCC Plan within six
months of the review to include more
effective prevention and control tech-
nology if: (1) Such technology will sig-
nificantly reduce the likelihood of a
spill event from the facility, and (2) if
such technology has been field-proven
at the time of the review.
(c) No amendment to an SPCC Plan
shall be effective to satisfy the require-
ments of this section unless it has been
certified by a Professional Engineer in
accordance with § 112 3(d .
* 112.7 Guideilne. for the preparation
and implementation of a Spill Pre-
vention Control and Counter-
measure Plan
The SPCC Plan shall be a carefully
thought-out; plan, prepared in accord-
ance with good engineering practices,
and which has the full approval of man-
agement ftt a level with authority to
commit the necessary resources. If the
plan calls for additional facilities or
procedures, methods, or equipment not
yet fully operational, these items
should be discussed in separate para-
graphs. and the details of Installation
and operational start-up should be ex-
plained separately. The complete SPCC
Plan shall follow the sequence outlined
below, and include a discussion of the
facility’s conformance with the appro-
priate guidelines lIsted
(a) A facility which has experienced
one or more spill events within twelve
months prior to the effective date of
this part should include a written de-
scription of each such spill, corrective
action taken and plans for preventing
recurrence.
(b) Where experience indicates a rea-
sonable potential for equipment failure
(such as tank overflow, rupture, or
leakage), the plan should include a pre-
diction of the direction, rate of flow,
and total quantity of oil which could
be discharged from the facility as a re-
sult of each major type of failure.
(c) Appropriate containment and/or
diversionary structures or equipment
to prevent discharged oil from reaching
a navigable water course should be pro-
vided, One of the following preventive
systems or its equivalent should be
used as a mini mum
(1) Onshore facilities:
(1) DIkes. berms or retaining walls
sufficiently impervious to contain
spilled oil;
(ii) Curbing;
(lii) Culverting. gutters or other
drainage systems;
(iv) Weirs, booms or other barriers;
(v) Spill diversion ponds:
(vi) Retention ponds,
(vii) Sorbent materials
(2) O fehore facilities:
(I) Curbing, drip pans;
(ii) Sumps and collection systems.
(d) When it is determined that the in-
stallation of structures or equipment
listed In 112.7(c) to prevent discharged
oil from reaching the navigable waters
is not practicable from any onshore or
offshore facility, the owner or operator
should clearly demonstrate such im-
practicability and provide the follow-
ing:
(1) A strong oil spill contingency plan
following the provision of 40 CFR part
109.
(2) A written commitment of man-
power, equipment and materials re-
quired to expeditiously control and re-
move any harmful quantity of oil dis-
charged.
(o) In addition to the minimal pre-
vention standards listed under
1112.7(c), sections of the Plan should
include a complete discussion of con-
formance with the following applicable
guidelines, other effective spill preven-
tion and containment procedures (or, if
more stringent, wIth State rules, regu-
lations and guidelines)
(1) Facility drainage (onshore). (exciud-
ing production facilities) (I) Drainage
from diked storage areas should be re-
strained by valves or other positive
means to prevent a spill or other exces-
sive leakage of oil into the drainage
system or lnplant effluent treatment
system, except where plan systems are
designed to handle such leakage Diked
areas may be emptied by pumps or
ejectors; however, these should be
manually activated and the condition
of the accumulation Should be exam-
ined before starting to be sure no oil
will be discharged into the water
(ii) Flapper-type drain valves should
not be used to drain thked areas.
Valves used for the drainage of diked
areas should, as far as practical, be of
manual, open-and-closed design When
plant drainage drains directly into
water courses and not into wastewater
treatment plants, retained storm water
should be inspected as provided In
paragraphs (e)(2)(ili) (B), (C) and (D) of
this section before drainage
(iii) Plant drainage systems from
undiked areas should, if possible, flow
into ponds, lagoons or catchrnent ba-
sins, designed to retain oil or return it
to the facility Catchment basins
should not be located in areas subject
to periodic flooding.
(iv) If plant drainage Is not engi-
neered as above, the final discharge of
all in-plant ditches should be equipped
with a diversion system that could, in
the event of an uncontrolled spill, re-
turn the oil to the plant
(v) Where drainage waters are treated
in more than one treatment unit, natu-
ral hydraulic flow should be used. If
pump transfer is needed, two “lift”
pumps should be provided, and at least
one of the pumps should be pet-ma-
nently installed when such treatment
is continuous In any event, whatever
techniques are used facility drainage
systems should be adequately engi-
neered to prevent oil from reaching
navigable waters in the ev it of equip-
ment failure or human at the fa-
cility.
-------
§ 112.7
40 CFR Ch. I (7—1—97 Edttlon) Environmental Protection Agency
§ fl2.7
(2) Bulk storage tanks (onshore); (cx-
ciuding producUon facthties), (I) No tank
should be used for the storage of oil un-
less Its material and construction are
compatible with the material stored
and conditions of storage such as pres-
sure and temperature, etc.
(ii) All bulk storage tank lnst,alla-
tions should be constructed so that a
secondary means of containment Is
provided for the entire contents of the
largest single tank plus sufficient
freeboard to allow for precipitation.
Diked areas should be sufficiently im-
pervious to contain spilled oil. Dikes.
containment curbs, and pits are com-
monly employed for this purpose, but
they may not always be appropriate.
An alternative system could consist of
a complete drainage trench enclosure
arranged so that a spill could term!-
nate and be safely confined in an in-
plant catchment basin or holding pond
(iii) Drainage of rainwater from the
diked area into a storm drain or an ef-
fluent discharge that empties into an
open water course, lake, or pond, and
bypassing the in-plant treatment sys-
tem may be acceptable if.
(A) The bypass valve is normally
sealed closed
(B) Inspection of the run-off rain
water ensures compliance with applica-
ble water quality standards and will
not cause a harmful discharge as de-
fined in 10 CFR part 110
(C) The bypass valve is opened, and
resealed following drainage under re-
sponsible supervision
(D) Adequate records are kept of such
events
(iv) Burled metallic storage tanks
represent a potential for undetected
spills A new burled installation should
be protected from corrosion by coat-
ings, cathodic protection or other ef-
fective methods compatible with local
Boll conditions. Such buried tanks
should at least be subjected to regular
pressure testing.
(v) Partially buried metallic tanks
for the storage of oil should be avoided.
unless the buried section of the shell is
adequately coated, since partial burial
in damp earth can cause rapid corro-
sion of metallic surfaces, especially at
the earth/air interface.
(vi) Aboveground tanks should be
tn , , r4r ,ri4r Interrltv testing.
taking into account tank design (float-
ing roof, etc.) and using such tech-
niques as hydrostatic testing, visual
Inspection or a system of non-destruc-
tive shell thickness testing. Compari-
son records should be kept where ap-
propriate, and tank supports and foun-
dations should be included in these In-
spections. In addition, the outside of
the tank should frequently be observed
by operating personnel for signs of de-
terioration, leaks which might cause a
spill, or accumulation of oil Inside
diked areas
(vii) To control leakage through de-
fective internal heating coils, the fol-
lowing factors should be considered and
applied, as appropriate.
(A) The steam return or exhaust lines
from Internal heating coils which dis-
charge into an open water course
should be monitored for contamina-
tion, or passed through a settling Lank,
skimmer, or other separation or reten-
tion system
(B) The feasibility of installing an
external heating system should also be
considered.
(viii) New and old tank installations
should, as far as practical, be fail-safe
engineered or updated into a fail-safe
engineered installation to avoid spills
Consideration should be given to pro-
viding one or more of the following de-
vices
(A) High liquid level alarms with an
audible or visual signal at a constantly
manned operation or surveillance sta-
tion, in smaller plants an audible air
vent may suffice
(B) Considering size and complexity
of the facility, high liquid level pump
cutoff devices set to stop flow at a pre-
determined tank content level.
(C) Direct audible or code signal com-
munication between the tank gauger
and the pumping station.
(D) A fast response system for deter-
mining the liquid level of each bulk
storage tank such as digital computers,
telepulse. or direct vision gauges or
their equivalent.
(E) Liquid level sensing devices
should be regularly tested to Insure
proper operation.
(ix) Plant effluents which are dis-
charged into navigable waters should
have disposal facilities observed fre-
quently enough to detect possible sys-
tem upsets that could cause an oil spill
event.
(x) Visible oil leaks which result in a
loss of oil from tank seams, gaskets,
rivets and bolts sufficiently large to
cause the accumulation of oil in diked
areas should be promptly corrected.
(xi) Mobile or portable oil storage
tanks (onshore) should be positioned or
located so as to prevent spilled oil from
reaching navigable waters. A secondary
means of containment, such as dikes or
catcbment basins, should be furnished
for the largest single compartment or
tank These facilities should be lo-
cated where they will not be subject
to periodic flooding or washout
(3) Facility tTansfer operations, pump-
ing, and n-ptant process (onshore); (ex-
cluding production facilities) (i) Buried
piping Installations should have a pro-
tective wrapping and coating and
should be cathodically protected if soil
Conditions warrant. If a section of bur-
ied line is exposed for any reason, it
should be carefully examined for dete-
rioration If corrosion damage is found,
additional examination and corrective
action should be taken as indicated by
the magnitude of the damage An alter-
native would be the more frequent use
of exposed pipe corridors or galleries
(ii) When a pipeline Is not in service,
or in standby service for an extended
time the terminal connection at the
transfer point should be capped or
blank-flanged, and marked as to origin.
(iii) Pipe supports should be properly
designed to minimize abrasion and cor-
rosion and allow for expansion and con-
traction.
(iv) All aboveground valves and pipe-
lines should be sublected to regular ex-
aminations by operating personnel at
which time the general condition of
items, 8uCh as flange joints, expansion
joints, valve glands and bodies, catch
pans, pipeline supports, locking of
valves, and metal surfaces should be
assessed. In addition, periodic pressure
testing may be warranted for piping In
areas where facility drainage is such
that a failure might lead to a spill
event.
(v) Vehicular traffic granted entry
Into the facility should be warned ver-
bally or by appropriate signs to be sure
that the vehicle, because of its size,
will not endanger above ground piping.
(4) Faciiiiy tank car and tank truck
loading/unloading rack (onshore) (i)
Tank car and tank truck loading/un-
loading procedures should meet the
minimum requirements and regulation
established by the Department of
Transportation
(ii) Where rack area drainage does
not flow into a catchment basin or
treatment facility designed to handle
spills, a quick drainage system should
be used for tank truck loading and un-
loading areas The containment system
should be designed to hold at least
maximum capacity of any single com-
partment of a tank car or tank truck
loaded or unloaded in the plant
( lii) An interlocked warning light or
physical barrier system, or warning
signs, should be provided in loading/un-
loading areas to prevent vehicular de-
parture before complete disconnect of
flexible or fixed transfer lines
(iv) Prior to filling and departure of
any tank car or tank truck, the lower-
most drain and all outlets of such vehi-
cles should be closely examined for
leakage, and if necessary, tightened.
adjusted, or replaced to prevent liquid
leakage while in transit
(5) Oil production facilities (onshore)—
(1) Definition An onshore production fa-
cility may Include all wells, flowllnes,
separation equipment, storage facili-
ties, gathering lines, and auxiliary
non-transportat lon-related equipment
and facilities In a single geographical
oil or gas field operated by a single op-
erator.
(ii) Oil prcduction facility (onshore)
drainage. (A) At tank batteries and
central treating stations where an ac-
cidental discharge of 01] would have a
reasonable possibility of reaching navi-
gable waters, the dikes or equivalent
required under I127(c)(l) should have
drains closed and Bealed at all times
except when rainwater is being
drained Prior to drainage, the diked
area should be Inspected as provided In
paragraphs (e)(2)(iii) (B), (C). and (D) of
this section Accumulated oil on the
rainwater should be picked up and re-
turned to storage or dispoBed of in ac-
cordance with approved methods
-------
§ 1123
40 CFR Ch. I (7-197 Edttlon) Environmental Protection Agency
§ 112.7
(B) Field drainage ditches, road
ditches, and oil traps, sumps or 8kirn-
mere, if such exist, should be inspected
at regularly scheduled Intervals for ac-
cumulation of oil that may have es-
caped from small leaks. Any &uch accu-
mulatione should be removed.
(iii) Oil production facility (onshore)
bulk storage tanks. (A) No tank should
be used for the storage of oil unless its
material and construction are compat-
ible with the material stored and the
conditions of storage.
(B) All tank battery and central
treating plant installations should be
provided with a secondary means of
containment for the entire contents of
the largest single tank if feasible, or
alternate systems such as those out-
lined in §112 ‘l(c)(l). Drainage from
undiked areas should be safely confined
in a catchment basin or holding pond
(C) All tanks containing oil should be
visually examined by a competent per-
son for condition and need for mainte-
nance on a scheduled periodic basis
Such exarninat.ion should include the
foundation and supports of tanks that
are above the surface of the ground
(D) New and old tank battery instal-
lations should, as far as practical, be
fail-safe engineered or updated into a
fail-safe ongineered installation to pre-
vent spills Consideration should be
given to one or more of the following:
(1) Adequate tank capacity to assure
that a tank will not overfill should a
pumper/gauger be delayed in making
his regular rounds
(2) Overflow equalizing lines between
tanks so that a full tank can overflow
to an adjacent tank.
(3) Adequate vacuum protection to
prevent tank collapse during a pipeline
run.
(4) High level sensors to generate and
transmit an alarm signal to the com-
puter where facilities are a part of a
computer production control system.
(iv) Facility transfer operations, cii pro-
ductian faciliiy (onshore). (A) AU above
ground valves and pipelines should be
examined periodically on a scheduled
basis for general condition of Items
such as flange joints, valve glands and
bodies, drip pa’ ’s, pipeline supports,
pumping well rod stuffing boxes,
bleeder and ga alves.
(B) Salt water (oil field brine) dis-
posal facilities should be examined
often, particularly following a sudden
change in atmospheric temperature to
detect possible system upsets that
could cause an oil discharge.
(C) Production facilities should have
a program of flowline maintenance to
prevent spills from this source. The
program should include periodic exami-
nations. corrosion protection, flowline
replacement, and adequate records, as
appropriate, for the individual facility.
(6) OIl drilling and workover fad titles
(onshore). (I) Mobile drilling or
workover equipment should be posi-
tioned or located so as to prevent
spilled oil from reaching navigable wa-
ters
(ii) Depending on the location,
catchmerit basins or diversion struc-
tures may be necessary to Intercept
and contain spills of fuel, crude oil, or
oily drilling fluids.
(iii) Before drilling below any casing
string or during workover operations, a
blowout prevention (SOP) assembly
and well control system should be in-
stalled that is capable of controlling
any well head pressure that is expected
to be encountered while that SOP as-
sernbly is on the well Casing and BOP
installations should he In accordance
with State regulatory agency require-
ments.
(‘1) Oil drilling. production, or uiorkover
facilities (offshore). (i) Definition: “An
oil drilling, production or workover fa-
cility (offshore)” may include all drill-
ing or workover equipment, wells,
flowlines. gathering lines, platforms,
and auxiliary non transportation-relat-
ed equipment and facilities in a single
geographical oil or gas field operated
by a single operator.
(ii) Oil drainage collection equipment
should be used to prevent and control
small oil spillage around pumps,
glands, valves, flanges, expansion
joints, hoses, drain lines, separators,
treaters, tanks, and allied equipment.
Drains on the facility should be con-
trolled and directed toward a central
collection sump or equivalent collec-
tion system sufficient to prevent dis-
charges of oil into the navigable waters
of the United States. Where drains and
sumps are not practicable oil contained
in collection equipment should be re-
moved as often as necessary to prevent
overflow.
(iii) For facilities employing a Bump
system, sump and drains should be ade-
quately sized and a spare pump or
equivalent method should be available
to remove liquid from the sump and as-
sure that oil does not escape. A regular
scheduled preventive maintenance in-
spection and testing program should be
employed to assure reliable operation
of the liquid removal system and pump
start-up device. Redundant automatic
eump pumps and control devices may
be required on some installations.
(iv) In areas where separators and
treaters are equipped with dump valves
whose predominant mode of failure Is
in the closed position and pollution
risk is high, the facility should be spe-
cially equipped to prevent the escape of
oil. This could be accomplished by ex-
tending the flare line to a diked area if
the separator is near shore, equipping
it with a high liquid level sensor that
will automatically shut-in wells pro-
ducing to the separator, parallel redun-
dant dump valves, or other feasible al-
ternatives to prevent oil discharges.
(v) Atmospheric storage or surge
tanks should be equipped with high liq-
uid level sensing devices or other ac-
ceptable alternatives to prevent oil dis-
charges
(vi) Pressure tanks should be
equipped with high and low pressure
sensing devices to activate an alarm
and/or control the flow or other accept-
able alternatives to prevent oil dis-
charges.
(vii) Tanks should be equipped with
suitable corrosion protection.
(viii) A written procedure for inspect-
ing and testing pollution prevention
equipment and systems should be pre-
pared and maintained at the facility
Such procedures should be included as
part of the SPCC Plan
(ix) Testing and inspection of the pol-
lution prevention equipment and sys-
tems at the facility should be con-
ducted by the owner or operator on a
scheduled periodic basis commensurate
with the complexity, conditions and
circumstances of the facility or other
appropriate regulations.
(x) Surface and subsurface well abut-
In valves and devices in use at tie fa-
duty should be sufficiently described
to determine method of activation or
control, e g., pressure differential,
change in fluid or flow conditions,
combination of pressure and flow, man-
ual or remote control mechanisms. De-
tailed records for each well, while not
necessarily part of the plan should be
kept by the owner or operator.
(xi) Before drilling below any casing
string, and during workover operations
a blowout preventer (BOP) assembly
and well control system should be in-
stalled that is capable of controlling
any well-head pressure that is expected
to be encountered while that BOP as-
sembly is on the well. Casing and BOP
installations should be in accordance
with State regulatory agency require-
ments.
(xii) Extraordinary well control
measures should be provided should
emergency conditions, including firo,
loss of control and other abnormal con-
ditions, occur. The degree of control
system redundancy should vary with
hazard exposure and probable con-
sequences of failure It Is recommended
that surface shut-in systems have re-
dundant or ‘fail close” valving Sub-
surface safety valves may not be need-
ed in producing wells that will not flow
but should be installed as required by
applicable State regulations
(xiii) In order that there will bo no
misunderstanding of joint and sepa ate
duties and obligations to perform work
In a safe and pollution free manner,
written instructions should be prepared
by the owner or operator for contrac-
tors and subcontractors to follow
whenever contract activities include
servicing a well or systems appur-
tenant to a well or pressure vessel.
Such instructions and procedures
should be maintained at the offshore
production facIlity Under certain cir-
cumstances and conditions such con-
tractor activities may require the pres-
ence at the facility of an authorized
representative of the owner or operator
who would intervene when necessary to
prevent a spill event.
(xiv) All manifolds (headers) should
be equipped with check valves on indi-
vidual (lowlines.
(xv) If the shut-in well pressure is
greater than the work’ re8aure of
the flowiine and mnanif .lves up to
-------
§ 112.20
40 CFR Ch. I (7—1-97 Edifion) Environmental Protection Agency
§112.20
and including the header valves associ-
ated with that individual flowilne, the
flowline should be equipped with a high
pressure sensing device and shut-In
valve at the welihead unless provided
with a pressure relief system to pre-
vent over pressuring.
(xvi) All pipelines appurtenant to the
facility should be protected from corro-
Bion Methods used, suoh as protective
coatings or cathodic protection, should
be discussed.
(xvii) Sub-marine pipelines appur-
tenant to the facility should be ade-
quately protected against environ-
mental stresses and other activities
such as fishing operations.
(xviii) Sub-marine pipelines appur-
tenant to the facility should be in good
operating condition at all times and In-
spected on a scheduled periodic basis
for failures. Such inspections should be
documented and maintained at the fa-
cility
(8) Inspections and records Inspections
required by this part should be in ac-
cordance with written procedures de-
veloped for the facility by the owner or
operator These written procedures and
a record of the inspections, signed by
the appropriate supervisor or inspec-
tor, should be made part of the SPCC
Plan and maintained for a period of
three years
(9) Security (excluding oil productwn
facilities), (I) All plants handling, proc-
essing. and storing oil should be fully
fenced, and entrance gates should be
locked and/or guarded when the plant
is not in production or is unattended
(ii) The master flow and drain valves
and any other valves that will permit
direct outward flow of the tank’s con-
tent to the surface should be securely
locked in the closed position when in
non-operating or non-standby status.
(iii) The starter control on all oil
pumps should be locked in the “off’ po-
sition or located at a site accessible
only to authoriaed personnel when the
pumps are in a non-operating or non-
standby status.
(iv) The loading/unloading connec-
tions of oil pipelines should be securely
capped or blank-flanged when not in
service or standby service for an ex-
tended time This security practice
should also apply to pipelines that are
emptied of liquid content either by
draining or by inert gas pressure.
(v) Facility lighting should be com-
mensurate with the type and location
of the facility. Consideration should be
given to: (A) Discovery of spills occur-
ring during hours of darkness, both by
operating personnel, if present, and by
non-operating personnel (the general
public, local police, etc.) and (B) pre-
vention of spills occurring through acts
of vandalism
(10) Personnel, training and spill pie-
vention procedures. (1) Owners or opera-
tors are responsible for properly in-
structing their personnel in the oper-
ation and maintenance of equipment to
prevent the discharges of oil and appli-
cable pollution control laws, rules and
regulations
(ii) Each applicable facility should
have a designated person who is ac-
countable for oil spill prevention and
who reports to line management
(iii) Owners or operators should
schedule and conduct spill prevention
briefings for their operating personnel
at intervals frequent enough to assure
adequate understanding of the SPCC
Plan for that facility. Such briefings
should highlight and describe known
spill events or failures, malfunctioning
components, and recently developed
precautionary measures.
112.20 Facility response plana.
(a) The owner or operator of any non-
transportation-related onshore facility
that, because of its locs.tion, could rea-
sonably be expected to cause substan-
tial harm to the environment by dis-
charging 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 fa-
cility in operation on or before Feb-
ruary 18. 1993 who is required to pre-
pare 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.
2101 et seq.) requires the submission of
a response plan that satisfies the re-
quirements of 33 U S C 1321(j)(5) no
later than February 18, 1993
(i) The owner or operator of an exist-
ing 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 re-
submit the response plan or updated
portions of the response plan to the Re-
gional Administrator by February 18,
1995.
(ii) The owner or operator of an exist,-
ing 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 Adminis-
trator 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
(fl(1) of this section or that is notified
by the Regional Administrator pursu-
ant to paragraph (b) of this section
shall prepare and submit a facility re-
sponse plan that satisfies the require-
ments of this section to the Regional
Administrator.
(i) For a facility that commenced op-
erations 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 (0(1)
of this section, the owner or operator
shall submit the response plan or up-
dated 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 Re-
gional Administrator prior to August
30. 1994.
(ii) For a newly constructed facility
that commences operation after Au-
gust 30. 1994, and is required to prepare
and submit a response plan based on
the criteria in paragraph (fl(1) 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 Adminis-
trator prior to the start of operations
(adjustments to the response plan to
reflect changes that occur at the facil-
ity during the start-up phase of oper-
ations must be submitted to the Re-
gional Administrator after an oper-
ational trial period 0160 days)
(iii) For a facility required to prepare
and submit a response plan after Au-
gust 30, 1994, as a result of a planned
change in design, r onstruct1on, oper-
ation, or maintenance that renders the
facility subject to the criteria in para-
graph (0(1) of’ this section. the owner
or operator shall submit the response
plan, along with a completed version of
the response plan cover sheet con-
tained in Appendix F to this part, to
the Regional Administrator before the
portion of the facility undergoing
change commences operations (adjust.
ments to the response plan to reflect
changes that occur at the facility dur-
ing the start-up phase of operations
must be submitted to the Regional Ad-
ministrator after an operational trial
period of 60 days).
(iv) For a facility required to prepare
and submit a response plan after Au-
gust 30. 1994, as a result of an un-
planned event or change in facility
characteristics that renders the facil-
ity subject to the criteria in paragraph
(0(1) of this section. the owner or oper-
ator 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 Re-
gional 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 al-
ternative formula that is comparable
to one contained in Appendix C to this
part to evaluate the criterion in para-
graph (f)(1)(ii)(B) or (f)(l)(ii)(C) of this
section, the owner or operator shall at-
tach 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)(1) The Regional Administrator
may at any time require the owner or
operator of any non-transportation-re-
lated onshore facility to prepare and
submit a facility response plan under
thi8 section after considering the fac-
tors in paragraph (f)(2) of this section
If such a determination is made, the
Regional Administrator shall notify
the facility owner or operator in writ-
ing and shall provide a basis for the de-
termination If the Regional Adminis-
trator 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
-------
§ 112.20
40 CFR Cii. I (7-1—97 EditIon) Environmental Protection Agency
§112.20
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 facill—
ties to determine whether the facility
could, because of its location, reason-
ably be expected to cause significant
and substantial harm to the environ-
ment by discharging oil into or on the
navigable waters or adjoining shore-
lines
(C) The Regional Administrator shall
determine whether a facility could, be-
cause of Its location, reasonably be ex-
pected to cause significant and sub-
stantial harm to the environment by
discharging oil into or on the navigable
waters or adjoining shorelines, based
on the factors in paragraph (fl(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 re-
sponse plan;
(2) Require amendments to any re-
sponse plan that does not meet the re-
quirements of this section.
(3) Approve any response plan that
meets the requirements of this section;
and
(4) Review each response plan peri-
odically thereafter on a schedule estab-
lished by the Regional Administrator
provided that the period between plan
reviews does not exceed five years
(d)(l) The owner or operator of a fa-
cility for which a response plan is re-
quired under this part shall revise and
resubmit revised portions of the re-
sponse plan within 60 days of each fa-
cility change that materially may af-
fect the response to a worst case dis-
charge, including:
(I) A change in the facility’s configu-
ration that materially alters the infor-
mation included in the response plan;
(11) A change in the type of oil han-
dled, stored, or transferred that mate-
rially alters the required response re-
sources;
(iii) A material change in capabilities
of the oil spill removal organisatlon(s)
that provide equipment and personnel
to respond to discharges of oil de-
scribed in pare t (h)(5) of this sec-
tion;
(iv) A material change in the facili-
ty’s spill prevention and response
equipment or emergencY response pro-
cedures, and
(v) Any other changes that materi-
ally 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 organi-
r.ation(s) that does not result in a ma-
terial change in support capabilities do
not require approval by the Regional
Administrator. Facility owners or op-
erators 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 num-
ber (where one has been assigned) with
the changes.
(4) The Regional Administrator shall
review for approval changes to a re-
sponse plan submitted pursuant to
paragraph (d)(1) of this section for a fa-
cility determined pursuant to para-
graph (fl(3) of this section to have the
potential to cause signtficaflt and sub-
stantial harm to the environment.
(e) If the owner or operator of a facil-
ity determines pursuant to paragraph
(a)(2) of this section that the facility
could not, because of its location, rea-
sonably be expected to cause substan-
tial harm to the environment by dis-
charging oil into or on the navigable
waters or adjoining shorelines, the
owner or operator shall complete and
maintain at the facility the certifi-
cation form contained in Appendix C to
this part and, in the event an alter-
native formula that is comparable to
one contained in Appendix C to this
part is used to evaluate the criterion in
paragraph (f)(1)(ii)(B) or (fXl)(ii)(C) of
this section. the owner or operator
shall attach documentation to the cer-
tification form that demonstrates the
reliability and analytical soundness of
the comparable formula and shall no-
tify the Regional Administrator in
writing that an alternative formula
was used.
( ( Xl) A facility could, because of its
location, reasonably be expected to
cause substantial harm to the environ-
ment by discharging oil into or on the
navigable waters or adjoining shore-
lines pursuant to paragraph (a)(2) of
this section, if it meets any of the fol-
lowing criteria applied in accordance
with the flowchart contained in At-
tachment 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 Ca-
pacity is greater than or equal to 1 mil-
lion gallons, and one of the following is
true:
(A) The facility does not have second-
ary containment for each aboveground
storage area sufficiently large to con-
tain the capacity of the largest above-
ground oil storage tank within each
8torage area plus sufficient freeboard
to allow for precipitation;
(B) The facility is located at a dis-
tance (as calculated using the appro-
priate 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 de-
scription of fish and wildlife and sen-
sitive environments, see Appendices I.
II, and HI 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 pursu-
ant to section 3lXj)(4) of the Clean
Water Act;
(C) The facility is located at a dis-
tance (as calculated using the appro-
priate 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, reason-
ably be expected to cause substantial
harm to the environment by discharg-
ing oil into or on the navigable waters
or adjoining shorelines pursuant to
paragraph (b) of this section, the Re-
gional 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
8ensitive environments and other areas
determined by the Regional Adminis-
trator to possess ecological value;
(E) Proximity to drinking water in-
takes;
(F) Spill history, and
(0) Other site-specific characteristics
and environmental factors that the Re-
gional Administrator determines to be
relevant to protecting the environment
from harm by discharges of oil into or
on navigable waters or adjoining shore-
lines.
(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 loca-
tion, reasonably be expected to cause
substantial harm to the environment
by discharging oil into or on the navi-
gable waters or adjoining shorelines
may petition the Regional Adminis-
trator to determine whether the facil-
ity 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)(1) of this sec-
tion 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, reason-
ably be expected to cause significant
and substantial harm to the environ-
ment by discharging oil Into or on the
navigable waters or adjoining shore-
lines, the Regional Administrator may
consider the factors in paragraph (fl(2)
of this section as well as the following:
(1) Frequency of past spills;
(ii) Proximity to navigable waters;
(iii) Age of oil storage tanks; and
(iv) Other facility-specific and Re-
gion-specific information, including
local impacts on public health.
(g)(1) All facility response plans shall
be consistent with the requirements of
the National Oil and P ‘rdoua Sub-
stance Pollution Contir y Plan (40
-------
§112.20
40 CFR Ch. I (7-1—97 Edition) Environmental Protection Agency
CFR part 300) and applicable Area Con-
tingency Plans prepared pursuant to
section 311(J)(4) of the Clean Water Act.
The facility response plan should be co-
ordinated with the local emergency re-
sponse 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 re-
quest, the owner or operator should
provide a copy of the facility response
plan to the local emergency planning
committee or State emergency re-
eponse commission
(2) The owner or operator shall re-
view relevant portions of the National
Oil and Hazardous Substances Pollu-
tion 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 re-
view 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 re-
sponse plan included in Appendix F to
this part, unless an equivalent response
plan has been prepared to meet State
or other Federal requirements. A re-
sponse 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 supple-
mented with a cross-reference section
to identify the location of the elements
listed in paragraphs (h)(2) through
(h)(l0) of this section. To meet the re-
quirements of this part, a response
plan shall address the following ele-
ments, as further described in Appen-
dix 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)(1)(i)
through (viii) of this section that is
maintained in the front of the response
plan, or as a separate document accom-
panying the response plan, and that in-
cludes the following information.
(I) The identity and telephone num-
ber of a qualified Individual having full
authority, including contracting au-
thority, to implement removal actions;
(ii) The identity of individuals or or-
ganizations to be contacted in the
event of a discharge so that immediate
communications between the qualified
individual identified in paragraph (h)(1)
of this section and the appropriate Fed-
eral 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 re-
sponse equipment and its location;
(v) A description of response person-
nel capabilities, including the duties of
persons at the facility during a re-
sponse action and their response times
and qualifications,
(vi) Plans for evacuation of the facil-
ity and a reference to community evac-
uation plans, as appropriate,
(vii) A description of Immediate
measures to secure the source of the
discharge, and to provide adequate con-
tainment and drainage of spilled oil,
and
(viii) A diagram of the facility.
(2) Facility information. The response
plan shall identify and discuss the loca-
tion and type of the facility, the iden-
tity and tenure of the present owner
and operator, and the identity of the
qualified individual identified in para-
graph (h)(1) of this section
(3) Information about emergency re-
sponse. 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 dis-
charges 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 re-
sources to meet the facility response
plan requirements of this section, own-
ers or operators shall follow Appendix
E to this part or, where not appro-
priate, shall clearly demonstrate in the
response plan why use of Appendix E of
this part Is not appropriate at the fa-
cility and make comparable arrange-
ments for response resources),
(ii) Evidence of contracts or other ap-
proved means for ensuring the avail-
ability of such personnel and equip-
ment;
(I ii) The identity and the telephone
number of Individuals or organizations
to be contacted In the event of a dis-
charge so that Immediate communica-
tions between the qualifled individual
identified in paragraph (h)(1) of this
section and the appropriate Federal of-
flclal and the persons providing re-
sponse 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 person-
nel capabilities, including the duties of
persons at the facility during a re-
sponse action and their response times
and qualifications,
(vi) A description of the facility’s re-
sponse equipment, the location or the
equipment, and equipment testing;
(vii) Plans for evacuation of the facil-
Ity and a reference to community evac-
uation plans, as appropriate;
(viii) A diagram of evacuation routes,
and
(ix) A description of the duties of the
qualified Individual identified in para-
graph (h)(1) of this section, that In-
clude.
(A) Activate Internal alarms and haz-
ard 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 re-
lease, as well as the other items needed
for notification;
(D) Notify and provide necessary in-
formation to the appropriate Federal,
State, and local authorities with des-
Ignated response roles, including the
National Response Center, State Emer-
gency Response Commission, and Local
Emergency Planning Committee;
(E) Assess the interaction of the
spilled substance with water and/or
other 8ubstances 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 ef-
fects of any hazardous surface water
§ 112.20
runoffs from water or chemical agents
used to control fire and heat-induced
explosion);
(G) Assess and implement prompt re-
moval actions to contain and remove
the substance released,
(H) Coordinate rescue and response
actions as previously arranged with all
response personnel;
(I) Use authority to Immediately ac-
cess company funding to initiate clean-
up 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 the entire life of the facil-
ity and shall identify areas within the
facility where discharges could occur
and what the potential effects of the
discharges would be on the affected en-
vironment To assess the range of areas
potentially affected, owners or opera-
tors shall, where appropriate, consider
the distance calculated in paragraph
(f)(1)(ii) of this section to determine
whether a facility could, because of its
location, reasonably be expected to
cause substantial harm to the environ-
ment by discharging oil into or on the
navigable waters or adjoining shore-
lines
(5) Response planning levels The re-
sponse plan shall Include discussion of
specific planning scenarios for.
(I) A worst case discharge, as cal-
culated using the appropriate work-
sheet in Appendix D to this part. In
cases where the Regional Adminis-
trator determines that the worst case
discharge volume calculated by the fa-
cility Is not appropriate, the Regional
Administrator may 8pecify 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 compo-
nent 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 cal-
culated for each component of the fa-
cility; and
-------
§ 112.20
40 CFR Ch. I (7-1—97 Edifion) Environmental Protection Agency
Pt. 112. App. A
(iii) A discharge greater than 2,100
gallons and less than or equal to 36000
gallons or 10 percent of the capacity of
the largest tank at the facility, which-
ever is 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 cornpo-
nent of the facility.
(6) Discharge detection systems. The re-
sponse plan shall describe the proce-
dures and equipment used to detect dis-
charges.
(7) Plan implementatiOn. The response
plan shall describe.
(i) Response actions to be carried out
by facility personnel or contracted per-
sonnel under the response plan to en-
sure the safety of the facility and to
mitigate or prevent discharges de-
scribed In paragraph (h)(5) of this sec-
tion 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 inspec-
tions for tanks, secondary contain-
ment. and response equipment:
(ii) A description of the drilliexercise
program to be carried out under the re-
sponse plan as described in § 112 21:
(iii) A description of the training pro-
gram to be carried out under the re-
sponse plan as described in §112 21: and
(iv) Logs of discharge prevention
meetings, training sessions, and drillsf
exercises These logs may be main-
tained as an annex to the response
plan
(9) Diagrams. The response plan shall
include site plan and drainage plan dia-
grams
(10) Security systems. The response
plan shall include a description of fa-
cility security systems.
(11) Response plan cover sheet The re-
sponse plan shall include a completed
response pie ‘ icr sheet provided in
Section 2.0 i )endix F to this part.
(0(1) In the event the owner or opera’
tor of a facility does not agree with the
Regional Administrator’s determina’
tion that the facility could, because of
its location, reasonably be expected to
cause substantial harm or significant
and substantial hatm to the environ-
ment by discharging oil into or on the
navigable waters or adjoining shore-
lines, or that amendments to the facil-
ity response plan are necessary prior to
approval, such as changes to the worst
case discharge planning volume, the
owner or operator may submit a re-
quest for reconsideration to the Re-
gional Administrator and provide add!-
tional information and data In writing
to support the request The request and
accompanying information must be
submitted to the Regional Adminis-
trator within 60 days of receipt of no-
tice of the Regional Administrator’s
original decision. The Regional Admin-
istrator shall consider the request and
render a decision as rapidly as prac-
ticable
(2) In the event the owner or operator
of a facility believes a change in the fa-
cility’s classification status is war-
ranted because of an unplanned event
or change in the facility’s characteris-
tics (i e., substantial harm or signifi-
cant and substantial harm), the owner
or operator may submit a request for
reconsideration to the Regional Ad-
ministrator and provide additional in-
formation and data in writing to sup-
port the request The Regional Admin-
istrator shall consider the request and
render a decision as rapidly as prac-
ticable.
(3) After a request for reconsider-
ation under paragraph (i)(1) or (i)(2) of
this section has been denied by the Re-
gional Administrator, an owner or op-
erator may appeal a determination
made by the Regional Administrator.
The appeal shall be made to the EPA
Administrator and shall be made in
writing within 60 days of receipt of the
decision from the Regional Adminis-
trator that the request for reconsider-
ation was denied A complete copy of
the appeal must be sent to the Re-
gional Administrator at the time the
appeal is made. The appeal shall con-
tain a clear and concise statement of
the issues and points of fact In the
case. It also may contain additional In-
formation from the owner or operator,
or from any other person. The EPA Ad-
ministrator may request additional In-
formation from the owner or operator,
or from any other person. The EPA Ad-
ministrator shall render a decision as
rapidly as practicable and shall notify
the owner or operator of the decision.
(59 FR 34098, July 1. 1994)
§ 112.21 Facility reeponee training and
dr iiisFexercjses,
(a) The owner or operator of any fa-
cility required to prepare a facility re-
sponse 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 re-
sponse plan as provided in §112.20(h)(8).
(b) The facility owner or operator
shall develop a facility response train-
ing program to train those personnel
Involved in oil spill response activities.
It is recommended that the training
program be based on the USCG’s Train-
ing Elements for Oil Spill Response, as
applicable to facility operations. An al-
ternative program can also be accept-
able subject to approval by the Re-
gional Administrator.
(1) The owner or operator shall be re-
sponsible for the proper instruction of
facility personnel in the procedures to
respond to discharges of oil and in ap-
plicable oil spill response laws, rules,
and regulations
(2) Training shall be functional in na-
ture according to Job tasks for both su-
pervisory and non-supervisory oper-
ational personnel.
(3) Trainers shall develop 8pecific les-
son 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 re-
sponse drills/exercises, Including eval-
uation procedures, A program that fol-
lows the National Preparedness for Re-
sponse Exercise Program (PREP) (see
Appendix E to this part, section 10. for
availability) will be deemed satisfac-
tory for purposes of this section. An al-
ternative program can also be accept-
able subject to approval by the Re-
gional Administrator.
(59 FR 34101, ,July 1. 1994)
APPENDIX A TO PART 112 -.--MEMORANDUM
or UNDERSTANDINO BETWEEN THE
SECRETARY OF TRANSPORTATION AND
THE ADMINISTRATOR OF THE ENvI-
RONMENTAL PRYTECTION AoEncy
SECTION Il—DEFiNITIONS
The Environmental Protection Agency and
the Department of Transportation agree that
for the purposes of Executive Order 11548, the
term’
(1) Non-tra por lotion-related onshore and
offshore facllitte, means
(A) Fixed onshore and offshore oil well
drilling facilities including all equipment
and appurtenances related thereto used in
drilling operations for exploratory or devel-
opment. wells, but excluding any terminal fa.
duty, unit or process Integrally associated
with the handling or transferring of oil in
bulk to or from a vessel
(B) Mobile onshore and offshore oi elI
drilling platforms, barges, trucks, or other
mobile facilities including all equlpme jnd
appurtenances related thereto when ich
mobile facilities are fixed in position f r the
purpose of drilling operations for exploratory
or development wells, but excluding any ter-
minal facility, unit or process integrally as-
sociated with the handling or transferring of
oil in bulk to or from a vessel
(C) Fixed onshore and offshore oil prt)duc-
tion structures, platforms, derricks, and rigs
including all equipment arid appurtenances
related thereto, as well as completed wells
and the wellhead separators, oil Separators,
and storage facilities used in the production
of oil, but excluding any terminal facility,
unit or process integrally associated with
the handling or transferring of oil in bulk to
or from a vessel.
CD) Mobile onshore and offshore oil produc-
tion facilities inciuding all equipment and
appurtenances related thereto as well as
completed wells and wellhead equipment,
piping from wellheads to oil separators. oil
separators, and storage facilities used in the
production of oil when such mobile facilities
are fixed in position for the purpose of oil
production operations, but excluding any
terminal facility, unit or process Integrally
associated with the handling or transferring
of oil In bulk to or from a vessel
(E) Oil refining facilities Including all
equipment and appurtenances related there-
to as well as in-plant processing units, stor-
age units, piping, drainage systems and
waste treatment units used ir . ‘ 1 ie refining of
oil, but excluding any term duty, unit
or process integrally ass with the
-------
Pt. 112. App,B
handling or transferring of oil In bulk to or
from a vessel
(F) Oil storage facilities including all
equipment and appurtenances related there-
to as well as fixed bulk plant storage, termi-
nal oil storage facilities, consumer storage.
pumps and drainage systems used in the
storage of oil, but excluding inline or break-
out storage tanks needed for the continuous
operation of a pipeline system and any ter-
minal facility, unit or proces.s integrally as-
sociated with the handling or transferring of
oil in bulk to or from a vessel
(0) Industrial, commercial, agricultural or
public facilities which use and store oil, but
excluding any terminal facility, unit or proc-
ess integrally associated with the handling
or transferring of oil in bulk to or from a
vessel
(H) Waste treatment facilities including
in-plant pipelines, effluent discharge lines.
and storage tanks, but excluding waste
treatment facilities located on vessels and
terminal storage tanks and appurtenances
for the reception of oily ballast water or
tank washings from vessels and associated
systems used for off-loading vessels
(I) Loading racks, transfer hoses, loading
arms and other equipment which are appur-
tenant to a nontransportation-related facil-
ity or terminal facility and which are used
to transfer oil in bulk to or from highway ve-
hicles or railroad cars
(J) Highway vehicles and railroad cars
which are used (or the transport of oil exclu-
sively within the confines of a nontrans-
portalion-related facility and which are not
intended to transport oil in interstate or
intrastate commerce
(K) Pipeline systems which are used for the
transport of oil exclusively within the con-
fines of a nontransportation-relat.ed facility
or terminal facility and ‘ hich are not in-
tended to transport oil in interstate or intra-
state commerce, but excluding pipeline sys-
tems used to transfer oil in bulk to or from
a vessel
(2) Transportation-related onshoTe and off-
shore facilities means
(A) Onshore and offshore terminal facili-
ties including transfer hoses, loading arms
and other equipment and appurtenances used
for the purpose of handling or transferring
oil in bulk to or from a vessel as well as stor-
age tanks and appurtenances for the recep-
tion of oily ballast water or tank washings
from vessels, but excluding terminal waste
treatment facilities and terminal oil storage
facilities
(B) Transfer hoses, loading arms and other
equipment appurtenant to a non-transpor-
tation-related facility which is used to trans-
fer oil in bulk to or from a vessel
(C) Interstate and intrastate onshore and
offshore pipeline systems including pumps
and appurtenances related thereto as well as
in-line or breakout storage tanks needed for
40 CFR C l i. I (7—1—97 EditIon)
the continuous operation of a pipeline sys-
tem, and pipelines from onshore and offshore
oil production facilities, but excluding on-
shore and offshore piping from weliheads to
oil separators and pipelines which are used
for the transport of oil exclusively within
the confines of a nontransportation-related
facility or terminal facility and which are
not intended to transport oil in interstate or
intrastate commerce or to transfer oil in
bulk to or from a vessel
CD) Highway vehicles and railroad cars
which are used for the transport of oil in
interstate or intrastate commerce and the
equipment and appurtenances related there-
to, and equipment used for the fueling of lo-
comotive units, as well as the rights-of-way
on which they operate Excluded are high-
way vehicles and railroad cars and motive
power used exclusively within the confines of
a nontransportation-related facility or ter-
minal facility and which are not intended for
use in interstate or intrastate commerce
APPENDIX B TO PART 112—MEMORANDUM
OF UNDERSTANDING AMONG THE SEC-
RETARY OF THE INTERIOR, SEC-
RETARY OF TRANSPORTATION. AND
ADMINISTRATOR OF THE ENVIRON-
MENTAL PROTECTION AGENCY
PURPOSE
This Memorandum of Understanding
(MOU) establishes the jurisdictional respon-
sibilities for offshore facilities. including
pipelines, pursuant to section 311 (j)(1)(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 (DO!). Sec-
retary of the Department of Transportation
(DOT). and Administrator of the Environ-
mental Protection Agency (EPA) agree to
the division of responsibilities set forth
below for spill prevention and control, re-
sponse planning, and equipment inspection
activities pursuant to those provisions
BacKGRoUND
Executive Order CE 0.) 12777 (56 FR 54757)
delegates to DO!. DOT, and EPA various re-
sponsibilities identified in section 311(j) of
the CWA Sections 2(b)(3). 2(d)(3), and 2(e)(3)
of E 0 12177 assIgned to DO! spill prevention
and control, contingency planning, and
equipment inspection activities associated
with offshore facilities Section 311(a)(Il) de-
fines 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 DO!
role of regulating facilities on the Outer
Continental Shelf is expanded by E 0. 12777
to include inland lakes, rivers, streams, and
any other inland waters
Environmental Protection Agency
RESPONSIBI L I - TI ES
Pursuant to section 2(1) of E 0. 12717, DO!
redelegates, and EPA and DOT agree to as-
sume, the functions vested in DO! by sec-
tions 2(b)(3), 2(d)(3), and 2(e)(3) of E 0. 12777
as set forth below For purposes of this MOU,
the tei-rri “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 wa-
ters.”
I To EPA. DO! redelegates responsibility
for non-transporf,atlonrelated offshore fa-
cilities located landward of the coast line
2 To DOT, DO! redelegates responsibility
for transportation-related facilities, includ-
ing pipelines, located landward of the coast
line The DOT retains jurisdiction for deep-
water ports and their associated seaward
pipelines, as delegated by E 0 12777,
3 The DO! retains Jurisdiction over facili-
ties, including pipelines, located seaward of
the coast line, except for deepwater ports
and associated seaward pipelines delegated
by E 0. 17717 to DOT.
EFFECTIVE DATE
This MOU is effective on the date of the
final execution by the indicated signatories,
LIMITATIONS
1 The DO!, DOT, and EPA may agree in
writing to exceptions to this MOU on a facil-
ity-specific basis Affected parties will re-
ceive notification of the exceptions
2 Nothing In this MOU is intended to re-
place, supersede, or modify any existing
agreements between or among DO!, 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 agencyIdepartme
No modification may be adopted except with
the consent of all parties 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 excep-
tions 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 Peńa,
Secretory of Tran ., portation
Dated February 3, 1994
Carol M, Browner,
Pt. 112, App.C
Administrator Environinen Cal Protection
Agency
(59 FR 34102, July 1. 1994)
APPENDIX C TO PART 112—StjBSTA ML
HARM CRITERIA
2 0 Introduction
The flowchart provided in Attachment C-I
to this appendix ahowa the decision tree with
the criteria to identify whether a facility
“could reasonably be expected to cause sub-
stantial harm to the environment by dis-
charging Into or on the navigable waters or
adjoining shorelines “ In addition, the Re-
gional Administrator has the discretion to
identify facilities that must prepare and sub-
mit facility-specific response plans to EPA
1 1 Definition,
111 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
11 2 Higher Volume Port Areas include
(1) Boston, MA:
(2) New York, NY;
(3) Delaware Bay and River to Philadel-
phia, PA.
(4) St Croix, VI;
(5) Pascagouia, MS.
(6) MississippI River from Southwest Pass,
LA to Baton Rouge. LA;
(7) Louisiana Offshore Oil Port (LOOP),
LA,
(8) Lako Charles. LA,
(9) Sabine.Neches River. TX:
(10) Galveston Bay and Houston Ship Chan-
nel. TX.
(11) Corpus Christi, TX,
(12) Los Angeles/Long Beach Harbor, CA,
(13) San Francisco Bay, San Pablo Bay,
Carguinex Strait, and Suisun Bay to Anti-
och, CA:
(14) Straits of Juan de Fuca from Port An-
geies, WA to and including Puget Sound.
WA;
(15) Prince William Sound, AK, and
(18) Others as specified by the Regional Ad-
ministrator for any EPA Region
1 1 3 Inland Area means the area shore-
ward 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 shorewai-d
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
114 Rivers and Canals means a body of
water confined within the inland area, in-
cludIng the Intracoastal Waterways and
other waterways artificially created for
navigating that have project depth., of 12 feet
or less
-------
Pt. 112, App. C
2.0 Description of Screening Criteria for the
Substantial Harm Flowchart
A facility that has the potential to cause
substanUal harm to the environment in the
event of a discharge must prepare and sub-
mit 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 -T,arisport liOfl-RClOted FacilIties
With a Total Oil Storage Capacity Greater Than
or Equal to 42.000 Gallons Where Operations in-
clude Over-Water TransfeTs of Oil A non-
transportation-rotated facility with a total
oil storage capacity gyealer than 12000 gal-
lons 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
arid onshore bulk storage tanks over open
water These facilities are located adjacent
to navigable water
22 Lock of Adequate Secondary Contain-
ment at Facilities With Total O&I Storage Ca-
pacify Greater Than or Equal to I Million Gal-
lons Any facility with a total oil storage ca-
pacity greater than or equal to 1 million gal-
Ions without secondary containment suffi-
ciently large to contain the capacity of the
largest aboveground oil storage tank within
each area plus sufficient freeboard to allow
(or precipitation must submit a response
plan to EPA Secondary containment struc-
tures that meet the standard of good engi-
neering practice for the purposes of this part
include bet-ms. dikes, retaining walls, curb-
ing. culvert.s. gutters, or other drainage sys-
tems
2 3 Proxfmily to Fish and Wildlife and Sen-
sI live Environments at Facilities With a Total
Oil Storage Capacity Greater Than or Equal to
I 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 in-
jury (as defined at 40 CFR 112 2) to fish and
wildlife and sensitive environments For fur-
ther description of fish and wildlife and sen-
sitive environment-s. see Appendices I. (I. and
III to DOC/ )4OAA’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
Lhe distance at which an oil spill could cause
Injury to fish and wildlife and sensitive envi-
ronments using the appropriate formula pre-
40 CFR C li. I (1-1-97 EdItion)
sentad in Attachment C-Ill to this appendix
or a comparable formula.
2 4 P-rorlmfty to Public Drinking Water In-
t&ces at Facilities with a Total Storage Oil Ca-
pacity Greater Than or Equal to I Million Gal-
lons 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-regulat.ad facility would shut down a
public drinking water intake shall be cal-
culated using the appropriate formula pre-
sented In Attachment C—Ill to this appendix
or a comparable formula
2 5 FacilitIes That Have Experienced Report-
able 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 I Million Gallons A
facilitys oil spill history within the past S
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 experi-
enced a reportable oil spill In an amount
greater than or equal to 10 000 gallons within
the past 5 years must submtt a response plan
to EPA
3 0 Cerlrflcatton for Facilities That Do Not
Pose Substantial Harm
If the facility does not meet the subst an-
tiai 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—Il to this appendix. In the event an alter-
native formula that is comparable to the one
in this appendix is used to evaluate the sub-
stantial harm criteria, the owner or operator
shall attach documentation to the certifi-
cation form that demonstrates the reliabil-
ity and analytical soundness 01 the com-
parable formula and shall notify the Re-
gional Administrator in writing that an al-
ternative 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
uiemaking docket as noted In Appendix E to
this part. section 10
Pt. 112, App.C
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_________ ____________________ Ji b
No Submittal of Response Plan
Except at RA Discretion
ATTACHMENTS TO APPgNDiX C
-------
Pt. 112. App. C
A’I -I’ACHMr.NT C-Il—CERTIFICATION OF THE AP-
PLICABILITY OF THE SUBSTANTIAL HARM CR !-
T UA
Facility Name
Facility Address
I. 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 above.
ground oil storage tank plus sufficient
freeboard to allow for precipitation within
any aboveground oil storage tank
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 dis-
tance (as calculated using the appropriate
formula in Attachment C-Ill to this appen-
dix or a comparable formula’) such that a
discharge from the facility could cause In-
jury to fish and wildlife and sensitive envi-
For further description of fish and
wildlife and sensitive environments, see Ap-
pendices I, II, and Ill to DOCiNOAA’s “Guid-
ance for Facility and Vessel Response Plans
Fish and Wildlife and Sensitive Environ-
ments’ (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 dis-
tance (as calculated using the appropriate
formula in Attachment C-UI to this appendix
or a comparable formula’) such that a dis-
charge from the facility would shut down a
public drinking water Intake’?
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 re-
portable 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.
‘If a comparable formula is used, docu-
mentation of the reliability and analytical
soundness of the comparable formula must
be attached to this form
‘For the purposes of 40 CFP. part 112. pub-
lic drinking water intakes are analogous to
public water systems as described at 40 CFR
143 2(c)
40 CFR Ch. I (7—1—97 Edttlon)
and that based on my inquiry of those indi-
viduals responsible for obtaining this infor-
mation. I believe that the submitted infor-
mation is true, accurate, and complete.
Signature
Name (please type or print)
Title
Date
A’VrACHMENT C-Ill—CALCULATION OF THE
PL.ANN!NO 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 fa-
cility could cause injury to fish and wildlife
and sensitive environments or disrupt oper-
ations 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 wa
tars EPA has determined that the primary
concern for calculation of a planning dis-
tance is the transport of oil in navigable wa-
ters 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 re-
sources The still water formula accounts for
the spread of discharged oil over the surface
of the water The method to determine oil
transport on tidal influence areas is based on
the type of oil spilled and the distance down
current during ebb tide and up current dur-
ing 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 engi-
neering principles, or local conditions. Such
comparable formulas may result in different
planning distances than EPA’s formulas. I
the event that an alternative formula that is
comparable to one contained in this appen-
dix is used to evaluate the criterion in 40
CFR 117 20(i’)(l)(ii)(B) or (f)(l)(li)(C), the
owner or operator shall attach documenta-
tion to the response plan cover sheet con-
tained in Appendix F to this part that dem.
onstrates the reliability and analytical
soundness of the alternative formula and
8hall notify the Regional Administrator in
Environmental Protection Agency
writing that an alternative formula was
used’
1.3 A regulated facility may meet the cr1-
teria 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 c i i-
teria because of inadequate secondary con-
tainment or oil spill history, as listed in the
flowchart in Attachment C—I to this appen-
dix, 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 dis-
tance 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 (1 e -
moving water, still water, or tidal- influ-
enced water) applicable to the facility. If a
facility owner or operator determines that
more than one type of navigable water condi-
tion applies, then the facility owner or oper-
ator is required to perform a planning dis-
tance calculation for each navigable water
type to determine the greatest single dis-
tance that oil may be transported As a re-
sult, the final planning distance (or oil
transport on water shall be the greatest indi-
vidual distance rather than a summation of
each calculated planning distance
1.5 The planning distance formula (or
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 de-
termined by using the Chezy-Manning equa-
tion, which, in this case, models the flood
flow rate of water in open channels The
Chezy-Manning equation contains three vari-
ables which must be determined by facility
owners or operators Manning’s Roughness
I For persistent oils or non-persIstent, oils.
a worst case trajectory model (i e • an alter-
native formula) may be substituted for the
distance formulas described in still, moving.
and tidal waters, subject to Regional Admin-
istrator’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 tra)ectory calculation based on
credible adverse winds, currents, and/or river
stages, over a range of seasons, weather con-
ditions, 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
Pt. 112, App. C
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, a. 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, re-
sponse resources should be able to arrive at
the discharge site within 12 hours of the dis-
covery 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 fa-
cilIty 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 re-
source levels and response times The speci-
fied time intervals of this appendix include a
3-hour time period (or deployment of boom
and other response equipment The Regional
Administrator may Identify additional areas
as appropriate.
20 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
§11220(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 sen-
sitive environments could be injured or a
public drinking water intake would be
shut down in the e%ent of an oil dis-
charge (in miles).
v the velocity of the river/navigable water of
concern (in ftlsec) 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 068 sec.milel
hr —ft (3600 sec/hr • 5280 ftimile)
2 2 Chezy-Mannlng’s equation is used to de-
termine velocity.
vrj 5/n x r% x s˝. where
v=the velocity of the river of concern (in ftI
sec),
n-Manning’s Roughness Coefficient from
Table I of this ttachment.
-------
40 CFR Ch. I (7—1-97 Ed tlon)
Pt. 112. App. C
r=the hydraulic radius; the hydraulic radius
can be approximated for parabolic chan-
nels by multiplying the average mid-
channel depth of the river (in feet) by
0 66’l (sources for obtaining the mid-chan-
nel depth are listed in Table 2 of this at-
tachment), and
s=the average slope of the river (unitless) ob-
tained from U S Geological Survey topo-
graphic maps at the address listed in
Table 2 of this attachment
TABLE I —MANNING’S ROUGHNESS COEFFICIENT
FOR NATURAL STREAMS
(NOTE Coetiloents are pesenled br h,gtl Sow isles s or
near 11000 stage
Siieam descriphori
Rcuçh-
In)
Mrnor Streams (Top VIrdth <10011)
Clean
Slrarght
Wirrang
Siugg.sh (Weedy deep pools)
No trees or enish
Trees and/or bnj sl s
Uaior Streams (lop Width >100 (1)
Peguho sec 5on
(N obOu lOerS ib ii .i sh) •, - -
irregular e03on
( u sh)
003
004
006
010
0035
005
TABLE 2 —SOURCES OF R AND S FOR THE
CHEZ’V-MANNING EQUATION
All 01 the charts and related publications for
navigational waters may be ordered from
Distribution Branch
(N/CG33)
National Ocean Service
Riverdale, Maryland 20737—1199
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 10 be used in the cal-
culation of ihe hydraulic radius (r) can be
obtained directly Irom the lollowing
sources
Charts of Canadian Coastal and Great
Lakes Waters:
Canadian HydrographiC Service
Department of Fisheries and Oceans Insti-
tute
P 0 Box 8080
1675 Russell Road
Otlawa, Onlano KIG 3)16
Canada
Phone’ (613) 998—4931
Charts and M os ol Lower Mississippi
River
TABLE 2.—SOURCES OF R AND S FOR THE
CHEZ -MANNiNG EOuATION—COflhiflUed
(Gull 01 Mexico lo Ohio River and SL
FrancIs, White. Big Sunflower.
Atchafalaya. and other nvers):
U.S. Army Corps 01 Engineers
Vicksburg District
P.O. Box 60
Vicksburg, Mississippi 39180
Phone: (601) 634—5000
Charts of Upper Mississippi River end Illi-
nois Waterway to Lake MichIgan.
U.S. Army Corps 01 Engineers
Rock Island District
P0 Box 2004
Rock Island, Illinois 61204
Phone (309) 794—5552
Charts ol Missoun River.
U S. Army Corps of Engineers
Omaha Distnct
5014 U S Post Of lice and Courthouse
Omaha. Nebraska 68102
Phone: (402) 221—3900
Charts of Ohio River
U.S. Army Corps of Engineers
Ohio River Division
P0 Box 1159
Cincinnati, Ohio 45201
Phone (513) 684—3002
Charts of Tennessee Valley Authority Res-
ervoirs, Tennessee River and Tribu-
taries
Tennessee Valley Authoniy
Maps and Engineering Section
416 Union Avenue
Knoxville, Tennessee 37902
Phone- (615) 632—2921
Charts 01 Black Warrior River, Alabama
River, Tombigbee River. Apalachicoia
River and Pearl River
U S. Army Corps 01 Engineers
Mobile District
P.O Box 2288
Mobile. Alabama 36628—0001
Phone- (205) 690—2511
The average slope of the nver (s) may be
obtained trom topographic maps.
U.S. Geological Survey
Map Distnbulion
Federal Center
Bldg. 41
Box 25286
Denver, Colorado 80225
Environmental Protection Agency
TABLE 2.—SOuRcES OF R AND S FOR THE
CH -M NI o E0uATOI+—Continuod
Additional information can be obtained from
the following sources,
1. The State’s Department of Naturaf Re-
sources (DNR) or the State’s Aids to
Navlgalion ollice,
2. A knowledgeable local manna operator;
or
3. A knowledgeable local water authonty
(e.g, State water commission)
2 3 The average elope of the river (5) can
be determined from the topographic maps
using the following steps
(I) 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 (lab and
wildlife and senstttve environment located
downstream (B) (Note The owner or opera-
tar should use a minimum of 20 miles down-
stream 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 fa-
cility (A) Determine the elevation of the
water at the appropriate distance down-
Stream (B) The formula presented below can
be used to calculate the slope
(5) Determine the distance (in mites) be-
tween the facility and the public drinking
water intake or fish and wildlife and sen-
sitive environments (C)
(6) Use the following formula to find the
slope, which will be a unitless value Average
Slope=((A—B) (ft)1C (miles)) x (1 mile/5280
feetI
2 4 If it is not feasIble to determine the
qlope 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 b 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 dis-
tance can be used to determine the velocity
in feet per second However, this method will
not yield an average velocIty (or the length
of the stream, but a velocity only for the
specific location of measurement in addi-
tion, 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 ac-
curate estimate of the surface water velocity
under adverse weather conditions
Pt. 112, App.C
2 5 The planning distance calculations for
moving and still navigable waters are based
on worst case discharges of persistent otis.
Persistent oils are of concern because they
can remain in the water for significant pe t- I-
ods of time and can potentially exist In large
quantities downstream Owners or operators
of facilities that store persistent as well as
non-persistent oils may use a comparable
formula The volume of oil discharged is not
included as part of the planning distance cal-
culation for moving navigable waters Facili-
ties that will meet this substantial harm cri-
terion are those with facility capacities
greater than or equal 1.0 1 million gallons it
is assumed that these facilities are capable
of having an oil discharge of sufficient quan-
tity to cause ln,}ury to fish and wildlife and
sensitive environments or shut down a public
drinking water intake While owners or oper-
ators of transfer facilities that store greater
than or equal to 42.000 gallons are not re-
quired to use a planning distance formula for
purposes of the substantial harm criteria,
they should use a planning distance calcula-
tion in the development of fac llity.speciflc
response plans
TABLE 3 —SPECIFIED TIME INTERVALS
Subs
tanbal harm
plants
ng hme (Pai’
Hgher volume
12 hour
amvsi,3
hour
depioyment.i5
p0 ,1 area
Great Lakes
hO r
24 hour
arnvai.1
hour
ciepioymeni.2?
hors
All otl er rivers
24 hQ,$
arrival.)
hour
deploymeni.27
and canal,
hOur 5
rriand, and
nea,shore
2 6 Ezanipte of the Planning Distance Cal-
culation for Oil Transport on Moving Navigable
Waters The following example provides a
sample calculation using the planning dis-
tance formula for a facility discharging oil
into the Monongahela River
(1) Solve for v by evaluating n, r. and s for
the Cliezy-Manning equation
Find the roughness coefficient, is. 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
mO 035
Find slope. s. where A=727 feet, Bn7lO feet.
and C=25 miles
Solving
5((727 ft—l7lQ ft)/25 milesi x (1 mile/5280
feet)=l 3xlQ
The average mid-channel “ -h is found by
averaging the mid-channi ls for each
mile along the length of ver between
-------
P . 112. App.C
the facility and the public drinking water in-
take or the fish or wildlife or sensitive envi-
ronment (or 20 Tnhiee downstream 1! appUca-
bie) This value is multiplied by 0667 to ob-
tain the hydraulic radius The mid-channel
depth is found by obtaining values for r and
a from the sources shown in Table 2 for the
Monongahela River
Solving
r=O 661x20 teet=13 33 feet
Solve for v using
v1 5/nxr”xs” 2
v= [ 1 5/0 035)x(13 33)Z Jx(i 3x104)I 2
v=2 73 feet/second
(2) Find t from Table 3 of this attachment
The Monongahela River’s resource response
time 1 521 hours
(3) Solve for planning distance. d’
d=vx txc
d (2 ‘73 It/sec)x(27 hours)x(0 68 sec.mile/hr.ft)
drn50 miles
Therefore, 50 miles downstream is the appro-
priate planning distance for this racility
30 Oil Transport on Still Water
3 1 For bodies of water including lakes or
ponds that do not have a measurable veloc-
ity, the spreading of the oil over the surface
mustS 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 for-
mula is used, documentation of the reliabil-
ity and analytical soundness of the com-
parable calculation must be attached to the
response plan cover sheet
3 2 Example of ihe Planning Distance Cat-
c-utation for Ott Transport on Sit!! Water To as-
sist those facilities which could potentially
discharge into a still body of water, the fol-
lowing 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 de-
termined by the following formula. 2 where V
is the volume of the spill In gallons and C Is
a constant conversion factor:
A 1 =l0 xVY.xC
C=0.1543
A=l0’x(2.000,000 gallons)Y.x(0 1643)
A=8 74*10’ fi)
(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
‘Huang, J,C and Monastero. F C.. 1982 Re-
view of the State-of-the-Art of Oil PolluUon
Models Final report submitted to the Amer.
ican Petroleum Institute by Raytheon Ocean
Systems, Co. East Providence. Rhode Island
40 CFR Ch. I (7—1—97 EditIon)
where it intersects the shoreline Although
the oil will not spread uniformly in all direc-
tions. 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=tr 2
(4) To account (or the assumption that oil
will spread in a semi-circular ehape, the area
of a circle Is divided by 2 and is designated as
A,.
A ,=(tr 2 y2
Solving for the radius. r, using the relation-
ship A ,=A 2 S 74x10 ’ ft t =(1 2 )P2
Therefore, r=23.586 it
r 23,586 ft. ..5.280 ftIrnlle=4 5 miles
Assuming a 20 knot wind under storm condi-
tions:
1 knot=1 15 miles/hour
20 knotsxL)5 miles/hourlknot=23 miles/br
Assuming that the oil slick moves at 3 per.
cent of the wind’s speed
23 milesIhourxO 03-069 miles/hour
(5) To estimate the distance that the oil
will travel, use the times required for re-
sponse resources to arrive at different geo-
graphic locations as shown in Table 3 of this
attachment
For example’
For Higher Volume Port Areas 15 hrsx0 69
milesfhr=l0 I miles
For Great Lakes and all other areas 21
hrsx0 69 milea/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=lO 4.4 5 mIles
or approximately 15 miles
Great Lakes and all other areas d18 6.4 5
miles or approximately 23 miles
4.0 011 Transport on Ttda-lnfluence 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 plan-
ning distance is 15 miles from the facility
down current during ebb tide and to the
point of maximum tidal Influence or 15
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 influ-
ence or 5 miles. whichever is less, during
flood tide.
O,l Spilt Prevention & Control National
Spill Control School, Corpus Christi State
University. Thirteenth Edition. May 1990.
Environmonlal ProtocI on Agency
4 3 Example of Dele7nhinlnp the Planning
Distance for Two Types of Navigable Waler
Conditions. Below is an example of how to de-
termine the proper planning distance when a
facility could impact two types of navigable
water conditions moving water and tidal
Water,
(1) Facility I C 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 05 feet’
second from the Chezy-Manning equation
used to calculate oil transport on moving
navigable waters The specified time inter-
val, I, Obtained from Table 3 of this attach-
ment for river areas is 27 hours Therefore.
solving for the planning distance, d’
d=v x t x c
d=(0 5 ttlsec) x (27 hours> x (098 sec.milel
hr.ft)
dr9 18 miles
(2) However, the planning distance for
maximum tidal influence down current dur-
ing ebb tide is 15 miles, which is greater than
the calculated 9 18 miles Therefore. 15 miles
downstream is the appropriate planning dl-
tance for this facility
50 01 ! Transport Over Land
5 1 FacilIty owners or operators must
evaluate the potential for oil to be trans-
ported 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 (low 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 Dur-
ing 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 or open concrete
channel and pipe flow The ranges listed
below reflect minimum and maximum ve-
locities used as design criteria 4 The calcula-
tion below demonstrates that the time re-
quired (or oil to travel through a storm drain
or open concrete channel to navigable water
is negligible and can be considered instanta-
neous The velbcities are
For open concrete channels
maximum velocity=25 feet per second
‘The design velocities were obtained from
Howard County. Maryland Department of
Public Works’ Storm Drainage Design Man-
ual
Pt. 112, App.C
minimum veloclty=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 a navi-
gable water, the travel times (dlst-ance/veloc-
ity) 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 illus-
trated in Figure C-I of this attachment The
relevant distances can be described as fol-
lows
Dl=Distance from the nearest opportunity
(or discharge, X , to a storm drain or an
open concrete channel leading to navi-
gable 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 sen-
sitive environments could be injured or a
public drinking water intake would be
shut down as determined by the planning
distance formula
D4=flistnnce from the nearest opportunity
for discharge. X,. to fish and wildlife and
sensitive environments not bordering
navigable water
55 A facility owner or operator whose
nearest Opportunity for dIscharge is located
within 05 mile of a navigable water must
complete the planning distance calculation
(DI) for the type of navigable water near the
facility or use a comparable formula
56 A facility that is located at a distance
greater than 0 5 mile from a navigable water
must also calculate a planning distance (D3)
lilt is in close proximity (I e , Dl is less than
05 mile and other factors are conducive to
oil travel over land) to Storm drains that
flow to navigable waters Factors to be con-
sidered 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), anti soil distribu-
tion 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 or the drainage pipe If Dl is less
than or equal to 05 mile, a discharge from
the facility could pose substantIal harm be.
cause the time to travel the distance from
the storm drain to the navigablo water iD2)
Is virtually instantaneous
-------
Pt. 112, App. C
5.1 A facility’s proximity to fish and wild.
life and sensitive environments not border-
ing a navigable water, as depicted M 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 envi-
ronments should include the topography of
the surrounding area. drainage patterns.
man-made barriers (excluding secondary
40 CFR Ch. I (7—1-97 EdItion)
containment structures). and soil distribu-
tion and porosity.
58 If a facility is not found to pose sub-
stantial harm to fish and wildlife and sen-
sitive environments not bordering navigable
waters via oil transport on land, then sup-
porting 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
Environmental Protection Agency
Pt. 112, App.C
I
a
(59 Fft 34102, July 1. 1994]
-------
Pt. 112, App. L
APPENDLX D TO PART 112—DETERMINA-
TION OF A WoRST CASE DISCHARGE
PLANNING VOLUME
1 0 Instructions
I I 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 re-
quired in 40 CFR 11220 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, ad-
verse weather conditions must be taken into
consideration An owner or operator Is re-
quired to determine the facility’s worst case
discharge planning volume from either Part
A of this appendix for an onshore storage fa-
cility, or Part B of this appendix for an on-
shore production facility The worksheet
considers the provision of adequate second-
ary containment at a facility
1 2 For onshore storage facilities and pro-
duction facilities, permanently manifoided
oil storage tanks are defined as tanks that
are designed Installed, and/or operated in
such a manner that the multiple tanks func-
tion as one storage unit (1 e . multiple tank
volumes a ”e equailzed) In a worst case dis-
charge scenario a single failure could cause
the discharge of the contvnts of more than
one tank The owner or operator must pro-
vide 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
maniloided tanks that function as one oil
storage unit the worst case discharge plan-
ning volume would be based on the combined
oil storage capacity of all manifolded tanks
or the capacity of the largest single oil stor-
age 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 (actors into consideration
and provides steps for their inclusion in the
total worst case discharge planning volume.
40 CFR Ch. 1(7—1—97 Edition)
Onshore oil production facilities may include
all wells, flowllnes, separation equipment,
storage facilities, gathering lines, and auxil-
iary non-transportation-related equipment
and facilities in a single geographical oIl or
gas field operated by a single operator. Al-
though a potential worst case discharge
planning volume is calculated within each
section of the worksheet, the final worst
case amount depends on the riek parameter
that results in the greatest. volume
1 4 Marine transportation-related transfer
facilities that contain fixed aboveground on-
shore 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 dis-
charge planning volume for USCG-related fa-
cilities is included in the USCO IFR (see Ap-
pendix E to this part, section 10. for avail-
ability) All complexes that are jointly regu-
lated by EPA and the USCG must compare
both calculations (or worst case discharge
planning volume derived by using the EPA
and USCG methodologies and plan for which-
ever volume Is greater
PART A WORST CASE DISCHARGE PLAN-
NING VOLUME CALCULATION FOR ON-
SHORE STORAGE FACILITIESi
Part A of this worksheet is to be com-
pleted 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 environ-
ment 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 above.
grouud oil storage tank, the worst case dis-
charge planning volume equals the capacity
of the oil storage tank If adequate second-
ary containment (sufficiently large to con-
tain 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 08
(1) FINAL WORST CASE VOLUME
_____ GAL
(2) Do not proceed further
1 ”Storage facilities” represent all facili-
ties subject to this part, excluding oil pro-
duction facilities
Environmental Protection Agency
A 2 SECONDARy CONTAiNMENT—
MULTiPLE-TANK FACILITIES
Are all abovegrow,d oil storage tanks or
groups of abovegrounci oil storage tanks at
the facility without adequate secondary con-
tainment’ 2
(Y/N)
A 2 1 If the answer is yea, the final worst
case discharge planning volume equals the
total aboveground oil storage capacity at the fa-
ct lily.
(I) FINAL WORST CASE VOLUME
_____ GAL
(2) Do not proceed further.
A 22 If the answer is no. calculate the
total aboveground oil storage capacity of
tanks without adequate secondary contain-
ment If all aboveground oil storage tanks or
groups of aboveground oil storage tanks at
the facility have adequate secondary con-
tainment, 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 above-
ground oil storage tanks permanently
manifolded together, whichever is greater.
PLUS THE VOLUME FROM QUESTION
A22
FINAL WORST CASE VOLUME’ _____
GAL
PART B WORST CASE DISCHARGE PLAN-
NING VOLUME CALCULATION FOR ON-
SHORE PRODUCTION FACILITIES
Part B of this worksheet is to be completed
by the owner or operator of an SPCC-regu-
lated 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 relat-
ed equipment in a single geographical oil or
gas field operated by a single operator
B.! SINGLE-TANK FACILITIES
B 11 For facilities containing only one
aboveground oil storage tank, the worst case
discharge planning volume equals the capac-
ity of the aboveground oil storage tank plus
the production volume of the well with the
highest output at the facility, If adequate
‘Secondary containment is defined in 40
CFR 112 7(e)(2) Acceptable methods and
structures for containment are also given In
40 CFR 112 ‘i(cXI)
‘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 fa-
cility and plan for whichever volume is
reat -.
Pt. 112, App.D
secondary containment (sufficiently large to
contain the capacity of the aboveground oil
storage tank plus au(flcient freeboard to
allow for precipitation) exists for the storage
tank, multiply the capacity of the tank by
08
B 1 2 For facilities with production wella
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 mul-
tiplied by the greatest number of days the
facility is unattended
B 1 3 If the pumping rate of the well with
the highest Output is estimated or the maxi-
mum number of days the facility is unat-
tended is estimated, then the production vol-
ume 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 1 4 Attachment D-1 to this appendix
provides methods for calculating the produc-
tion volume for exploratory wells and pro-
duction wells producing under pressure
(I) FINAL WORST CASE VOLUME
_____ GAL
(2) Do not proceed further
82 SECONDARY CONTAINMENT—
MULTiPLE-TANK FACILITIES
Are all aboveground oil storage tanks or
groups of aboveground oil 8torage tanks at
the facility without adequate secondary con-
tal flment”
— (YIN)
B 2 1 If the answer is yes, the rinal worst
case volume equals the total abovegr und oil
storage capacity without adequate secondary
containment plus the production volume of
the well with the highest output at the facil-
ity
(1) For facilities with production wells pro-
ducing 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 mul-
tiplied by the greatest number of days the
facility i 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 de-
termined from the pumping rate of the well
multiplied by 1 5 times the greatest number
of days that the facility has been or is ex-
pected to be unattended
(3) Attachment D—l to this appendix pro-
vides methods for calculating the production
volumes for exploratory wells and produc-
tion wells producing under pressure
(A) FINAL WORST CASE VOLUME
_____ GAL
-------
Pt. 112,App.D
B 22 If the answer is no. calculate the
total aboveground oil storage capacity of
tanks without adequate secondary contain-
ment If all aboveground oil storage tanks or
groups of aboveground oil storage tanks at
the facility have adequate secondary con-
tainment. 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 above-
ground oil storage tanks permanently
manifolded together, whichever is greater.
plus the production volume of the well with
the highest output. PLUS TilE VOLUME
FROM QUESTION B 22 Attachment D-l
provides methods for calculating the produc-
tion volumes for exploratory wells and pro-
duction wells producing under pressure
(1) FINAL WORST CASE VOLUME
_____ GAL
(2) Do not proceed further
ATTAchMENTS TO APPENDIX D
ATTAcHMENT D-I—METHOD5 TO CALCULATE
PRODUcTION VOLUMES FOR PRODUCTION FA-
CILITIES WITH EXPLORATORY WELLS OR PRO-
DUCTION \VELLS PRODUCING UNDER PRES-
SURE
1 0 Introduction
The owner or operator of a production fa-
cility s ith exploratory wells or production
wells producing under pressure shall com-
parc the well rate of the highest output well
(rate 01 well), in barrels per day, to the abil-
tty of response equipment snd personnel to
recover the volume of oil that could be dis-
charged Crate of recovery), in barrels per day
The result of this compsrison will determine
the method used to calculate the production
volume for the production facility This pro-
duction volume is to be used to calculate the
worst case discharge planning volume in
Part B of this appendix
20 Description of Methods
2 1 Method A
If the well rate would overwhelm the re-
sponse efforts ( I e • rate of well/rate of recov-
ery 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 fore-
casted well rate for a well deeper than 10,000
feet.
(1) For wells 10,000 feet deep or less
Production volume3O days * rate of well
‘All complexes that are Jointly regulated
by EPA and the USCO must also calculate
the worst case dI charge planning volume for
the transports elated portions of the fa-
cility and p, whichever volume is
Cr00? Ar
40 CFR Ch. I (7—1-97 Edttlon)
(2) For wells deeper than 10.000 feet’
Production volume=45 days x rate of well.
22 MethodB
22 1 If the rate of recovery would be
greater than the well rate (i.e. rate of well)
rate of recovery cl ) . then the production vol-
ume would equal the sum of two terms:
Production volume=discharge volume 1 + dis-
charge volume 1
22 2 The first term represents the volume
of the oil discharged from the well between
the time of the blowout and the time the re-
sponse resources are on scene and recovering
oil (diacharge volume 1 )
Discharge volumeCdays unattended+days
to respond)x(rate of well)
2 2 3 The second term represents the vol-
ume of oil discharged from the well after the
response resources begin operating until the
spill is stopped, sdjusted for the recovery
rate of the response resources (discharge vol-
ume 1 )
(I) For wells 10,000 feet deep or less
Discharge voiume 2 =130 days—(days unat-
tended + days to respond)) x (rate of well)
x(rate of welt/rate of recovery)
(2) For wells deeper than 10.000 feet
Discharge volumeir(45 days’-(days unat-
tended + days to respond)) x (rate of well)
x(rate of well/rate of recovery)
30 Erornple
3 1 A facilIty consists of two production
wells producing under pressure, which are
both less than 10,000 feet deep The well rate
of well A is S barrels per day, and the well
rate of well B is 10 barrels per day The facil-
ity is unattended for a maximum of 7 days
The facility operator estimates that it will
take 2 days to have response equipment and
personnel on scene and responding to a blow-
out. and that the projected rate of recovery
will be 20 barrels per day
(1) First, the facility operator determInes
that the highest output well is well B. The
facility operator calculates the ratio of the
rate of well to the rate of recovery.
10 barrels per day/20 barrels per dayrO S Be-
cause the ratio is less than one, the facil-
ity operator will use Method B to cal-
culate the production volume
(2) The first term of the equation is:
Discharge volume 1 (7 days 4 2 days) x (10
barrels per day)=90 barrels
(3) The second term of the equation is.
Discharge voiume 3 (30 days—(7 days + 2
days)) x (10 barrels per day) x (0 5)=l05
barrels
(4) Therefore, the production volume is’
Production volume:90 barrels + 105
banelsrl95 barrels
32 If the recovery rate was 5 barrels per
day, the ratio of rate of well to rate of recov-
ery would be 2. so the facility operator would
Environmental Protection Agency
use Method A. The production volume would
have been:
30 days *10 barrels per dayr300 barrels
(59 FR 34110. July 1, 1994; 59 FR 49000. Sept
28, 1994)
APPENDIX E TO PART Il2—DETE}tMINA-
TION AND EVALUATION OF REQUIRED
RESPONSE RESOURCES FOR FACILITY
RESPONSE PLANS
1.0 Purpose end Dej’lntifons
1 1 The purpose of this appendix is to de’
scribe the procedures to identify response re-
sources to meet the requirements of l12 20
To identify response resources to meet the
facility response plan requirements of 40
CFR 112 20(h), owners or operators shall fol-
low this appendix or, where not appropriate.
shell clearly demonstrate in the response
plan why use of this appendix is not appro-
priate at the facility and make comparable
arrangements for response resources.
12 Def Initions
1 2 1 Nears /sore is an operating area de-
fined as extending seaward 12 miles from the
boundary lines defined in 46 CFR part 7. ex-
cept In the Gulf of Mexico, In the Gulf of
Mexico, it means the area extending 12 miles
from the line of demarcation (COLREG lines)
defined in 49 CFR 80 740 and 80 850.
1 2.2 Non-persistent of ls or Group I oi ls in-
clude.
(1) A petroleum-based oil that, at the time
of shipment, consists of hydrocarbon frac-
tions’
(A) At least 50 percent of which by volume.
distill at a temperature of 340 degrees C (645
degrees F); and
(B) At least 95 percent of which by volume.
distill at a temperature of 370 degrees C (700
degrees F). and
(2) A non-petroleum oil with a specific
gravity less than 08
1 23 Non-petroleum oil is oil of any kind
that is not petroleum-based. It Includes, but
is not limited to, animal and vegetable oils
1 2 4 Ocean means the nearshore area.
1.2.5 Operating area means Riven and Ca-
nals, Inland, Neanhore, and Great Lakes ge-
ographic location(s) In which a facility is
handlIng, storing, or transporting oil.
1.2.6 Operating environment means Riven
and Canals, Inland, Great Lakes, or Ocean
These terms are used to define the condi-
tions in which response equipment 19 de-
signed to function
1 27 ‘Persistent oils include
(1) A petroleum-based oil that does not
meet the distillation criteria for a non-per-
sistent oil. Penistent oils are further classi-
fied based on epecific gravity as follows
(A) Group 2—specific gravity less than 0 85.
(B) Group 3—speclflc gravity equal to or
greater than 0 85 and less than 0 95,
Pt. 112, App.E
(C) Group 4—speciflc gravity equal to or
greater than 095 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 00 or greater These oIls are fur-
ther 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 095.
(C) Group 4—specific gravity equal to or
greater than 0 95 and less than 1 0. or
(U) Group 5-specific gravIty equal to or
greater than 1 0
1 2 8 Other definItions are included in
41122 and section 11 of Appendix C
20 Equip ment Operabi lity and Readiness
2 1 All equipment Identified in a response
plan must be designed to operate in the con-
ditions 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 Ci e . operating area)
2 2 Facilities handling, storing, or trans
porting oil in more than one operating envi
ronment as indicated in Table 1 of this ap
pendix must identify equipment capable o’
successfully functioning in each operating
environment
23 When identifying equipment for thi
response plan (based on the use of this ap
pendix), a facility owner or operator mus’
consider the inherent limitations of th
operabiiity of equipment components and re
eponse systems The criteria in Table 1 o
this appendix shall be used to evaluate th’
operability in a given environment Thea’
criteria reflect the general conditions in cer
tam operating environments.
23 1 The Regional Administrator may a
quire documentation that the boom ident l
fled in a facility response plan meets the cr1
teria in Table 1 of this appendix Absent at
ceptable documentation, the Regional Ad
ministrator may require that the boom b
tested to demonstrate that it meets the cr1
teria in Table 1 of this appendix Testin
must be in accordance with ASTM F 71’
ASTM F 989. or other tests approved by EP
as deemed appropriate (see Appendix E I
this part, section 10. for general availabilit
of documents)
2 4 Table 1 of this appendix lists criteri
for oil recovery devices and boom All othr
equipment necessary to sustain or suppo :
response operations in an operating enviroi
ment must be designed to function in t)’
same conditions For e’ ‘le. boats that di
ploy or support skim r boom must
-------
Pt. l i Z App. Ł
capable of being safely operated in the sig-
nificant wave heights listed for the applica-
ble operating environment
2 5 A facility owner or operator shall refer
to the applicable Area Contingency Plan
(AC?). where available, to determine if ice,
debris, and weather-related visibility are sig-
nificant factors to evaluate the operability
of equipment The AC? may also identify the
average temperature ranges expected in the
facility’s operating area All equipment iden-
tified in a response plan must be desired 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 re-
sources can arrive on-scene within the stated
time A facility owner or operator shall in-
clude the time for notification, mobilization,
and travel of resources identified to meet the
medium and Tier I worst case discharge re-
quirements identified in section 4 3 of this
appendix (for medium discharges) and sec-
tion 5 3 of this appendix (for worst case dis-
charges) The facility owner or operator
must plan for notification and mobilization
of Tier 2 and 3 response resources as nec-
essary to meet the requirements (or 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 as-
sumed, unless the facility owner or operator
can demonstrate otherwise
27 In identifying equipment, the facility
owner or operator shall list the storage loca-
tion, 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 connec-
tors
30 Determining Response Resources Required
for Small Discharges
3 1 A facility owner or operator shall
identify sufficient response resources avaii-
able. by contract or other approved means as
described in §1122, to respond to a small dis-
charge A small discharge is defined as any
discharge volume less than or equal to 2,100
gailons. but not to exceed the calculated
worst case discharge The equipment must be
designed to function in the operating envi-
ronment 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 USCO
pianning level that corresponds to EPA’s
“small discharge” ie termed “the average
most probable diecharge.” The USCO revi.
sions to 33 CER part 154 define “the average
40 CFR Ch. I (7—1—97 EdItion)
most probable discharge” as a discharge of 50
barrels 12,100 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, a.s appro-
priate, 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,
332 Oil recovery devices with an effec-
tive daily recovery capacity equal to the
amount of oil discharged in a small dis.
charge 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 92 of this
appendix
4 0 Determining Response Resources Required
for Medium Discharges
4 1 A facility owner or oporator shall
identify sufficient response resources avail.
able, by contract or other approved means as
described in §112 2, to respond to a medium
discharge of oil for that facility This will it-
quire response resources capable of contain-
ing and coiiecting 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 USCO 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 maxi-
mum most probable discharge” The USCO
revisions to 33 CPR part 154 define “the max-
imum most probable discharge” as a dis-
charge 011,200 barrels (50.400 gallons) or 10
percent of the worst case discharge, which-
ever is less Owners or operators of corn-
piexes must compare spill volumes for a me-
dium discharge and a maximum most prob-
able discharge and plan (or whichever quan-
tity is greater.
43 Oil recovery devices identified to meet
the appiicable medium discharge volume
planning criteria must be located such that
they are capabie of arriving on-scene within
6 hours in higher voiume port areas and the
Great Lakes and within 12 hours in all other
areas Higher volume port areas and Oreat
Lakes areas are defined in section 1.1 of Ap-
pendix C to this part.
4 4 Because rapid control, containment.
and removal of oil are critical to reduce spill
Environmental Protection Agency
impact, the owner or operator must deter-
mine response resources using an effective
daily recovery capacity for oil recovery de-
vices equal to 50 percent of the planning vol-
ume appiicable for the facility as determined
in section 1 1 of this appendix The effective
daily recovery capacity for oil recovery de-
vices idsntifled in the plan must be deter-
mined using the criteria in section 6 of this
appendix.
4.5 In addition to oil recovery capacity,
the plan shall, as appropriate, identify suffi-
cient quantity of containment boom avail-
able, by contract or other approved means as
described in 41122. to arrive within the re-
quired response times for oil collection and
containment and for protection of fish and
wildlife and sensitive environments For fur’
ther description of fish and wildlife and sen-
sitive environments, see Appendices I. II. and
III to DOC1NOAA’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 buom for
oil coliection and containment, the response
plan shall identify and ensure, by contract or
other approved means as described in 41122,
the availability of the quantity of boom
identified in the plan for this purpose
4 6 The plan must indicate the availabil-
ity of temporary storage capacity to meet
section 92 of this appendix If available stor-
age capacity is insufficient to meet this
level, then the effective daily recovery ca-
pacity must be derated (downgraded) to the
limits of the available storage capacity
4 7 The following is an example of a me-
dium discharge volume planning calculation
for equipment identification in a higher vol-
ume port area- The facility’s largest above-
ground storage tank volume is 840,000 gal-
lons Ten percent of this capacity is 94.000
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 re-
covery capacity is 50 percent of the planning
voiume, 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 stor-
age capacity available on-scene must equal
twice the daily recovery capacity as indi-
cated In section 92 of this appendix, or 36,000
gallons per day This is the information the
facility owner or operator must use to iden-
tify and ensure the availability of the re-
quired response resources, by contract or
other approved means as described in 41122
The facility owner shall also identify how
much boom is available for use
Pt. 112, App. E
50 Determining Response Resources Required
for the Worst Case Discharge to the Maximum
Extent praceicable
5 1 A facility owner or operator shall
identify and ensure the availability of, by
contract or other approved means as de
scribed in 8112 2, sufficient response re-
sources to respond to the worst case dis-
charge of oil to the maximum extent prac-
ticabie Section 1 of thts appendix describes
the method to determine the necessary re-
sponse resources A worksheet is provided as
Attachment E—1 at the end of this appendix
to simplify the procedures involved in cal .
culating the planning volume for response
resources for the worst case discharge
52 Complexes that are regulated by EPA
and the ( 1 5CC must also consider planning
for the worst case discharge at the transpor-
tation-related portion of the facility The
IJSCG 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 regu
lated by EPA and the (13CC must compare
both calculations of worst case discharge de-
rived by EPA and the (15CC and plan for
whichever volume Is greater
53 OIl spill response resources identified
In the response plan and available by con-
tract 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 dlschsrge within the times speci-
fied for the applicable response tier listed
below
Tier 1
Tier 2
Tier 3
Pigner volume
6 in
30 tics
54 tin
poil areas
Great Lakes
12 Is’s
35 tin
60 tics
Metherrrver
121n
36hn
Sohus
and canal,
lriar4, and
nearstiore
B less
The three levels of response tiers apply to
the amount of time in which facility owners
or operators must plan for response re-
sources to arrive at the scene of a spill to it’
spend to the worst case discharge planning
volume For example, at a worst case dis-
charge In an inland area, the first tier of it-
sponse resources (i e., that amount of on-
water and shoreline cleanup capacity nec-
essary to respond to the fraction of the worst
case discharge as indicated through the se-
ries 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 01 response resources would arrive with-
in 36 hours, and the third tier of response re-
eources would arrive within 60 hours
-------
Pt. 112. App. E
54 The effective daily recovery capacity
for oil recovery devices identified in the re-
sponse plan must be determined using the
criteria in section 6 or this appendix A facil-
ity owner or operator shall identify the stor-
age locations of all response resources used
for each tier The owner or operator or a fa-
cility whose required daily recovery capacity
exceeds the applicable contracting caps in
Table C of this appendix shall, as appro-
priate. Identify sources of additional equip-
ment. their location, and the arrangements
made to obtain this equipment during a re-
sponse The owner or operator of a ladility
whose calculated planning volume exceeds
the applicable contracting caps in Table S 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 53 of this appen-
dix No contract is required. While general
listings of available response equipment may
be used to identify addItional sources (‘ e -
“public” resources vs ‘private” resources).
the response plan shall Identify the specific
sources, locations, and quantities of equip-
ment that a facility owner or operator has
considered in his or her planning. When list-
ing USCG-classified oil spill removal orgcLnt-
zation(s) that have sufficient removal capac-
ity to recover the volume above the response
capacity cap for the specific facility, as spec-
ified in Table 5 of this appendix, it is not
necessary to list specific quantities of equip-
ment.
55 A facility owner or operator shall
identify the availability of temporary Stor-
age capacity to meet section 92 of this ap-
pendix If available storage capacity is insuf-
ficient, then the effective daily recovery ca-
pacity must be derated (downgraded) to the
limits of the available storage capacity
S6 When selecting response resources nec-
essary to meet the response plan require-
ment.s, 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 re-
sponse equipment identified for the applica-
ble operating area shall, as appropriate, be
capable of operating in water or 6 feet or less
depth.
5.7 In addition to oil spill recovery de-
vices, a facility owner or operator shall iden-
tify sufficient quantities of boom that are
available, by rontract or other approved
means as described In 11122, to arrive on-
scene within the “ ‘fled response times for
oil containment llection The specific
quantity of boor, ,red for collection and
40 CFR Ch. I (7—1—97 EditIon)
containment will depend on the facility-spe-
cific information and response strategies em-
ployed A facility owner or operator shall, as
appropriate, also identify sufficient quan-
tities of oil containment boom to protect
fish and wildlife end 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 avail-
ability). and the applicable ACP Refer to
this guidance document for the number of
days and geographic areas (i e - operating en-
vironments) specifIed in Table 2 of this ap-
pendix
5 8 A facility owner or operator shall also
identify, by contract or other approved
means as described in 1l2 2. the availability
of an oil spill removal organization(s) (as de-
scribed in § 122 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 ap-
plication of factors contained in Tables 2 and
3 of this appendix The volume calculated
from these tables is intended to assist the fa-
cility owner or operator to Identify an oil
spill removal organization with sufficient re-
sources and expertise
60 Deienninlnp Effective Dalip Recovery
Capaci&j, for Oil Recovery Devices
6 1 Oil recovery devices identified by a fa-
cility 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 (or a smal discharge, a me-
dium discharge, and a worst case discharge
to the maximum extent practicable
6 2 To determine the effective daily recov-
ery capacity of oil recovery devices, the for-
mula listed In section 6 2 1 of this appendix
shall be used. This formula considers poten-
tial 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 war-
ranted.
62,1 The following formula shall be used
to calculate the effective daily recovery ca-
pacity:
R=Tx24hoursxE
where
R—Effective daily recovery capacity;
T—Throughput rate in barrels per hour
(nameplate capacity); and
Environmental Protection Agency
E—20 percent efficiency factor (or lower fac-
tor as determined by the Regional Ad-
ministrator)
62 2 For those devices in which the pump
limits the throughput of liquid, throughput
rate shall be calculated using the pump ca-
pacity.
623 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 col-
lected by the device, and surface area of the
belt or mop For purposes of this calculation,
the assumed thickness of oil will be Ľ inch
624 Facility owners or operators that in-
clude oil recovery devices whose throughput
is not measurable using a pump capacity or
beitlmop speed may provide information to
support an alternative method of calcula-
tion This Information must be submitted
following the procedures in section 6 3 2 of
this appendix
83 As an alternative to section 62 of this
appendix, a facility owner or operator may
submit adequate evidence that a different ef-
fective daily recovery capacity should be ap-
plied for a specific oil recovery device, Ade-
quate evidence is actual verified perform-
ance 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)
63 1 The following formula must be used
to calculate the effective daily recovery ca-
pacity 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 13 115 in
F 631-80, or actual performance data)
and
U—Hours per day that equipment can oper-
ate under spill conditions Ten hours per
day must be used unless a facility owner
or operator can demonstrate that the re-
covery operation can be sustained for
longer periods
6.32 A facility owner or operator submit—
ting a response plan shall provide data that
supports the effective daily recovery capac-
ities for the oil recovery devices listed The
following Is an example of these calcula-
tions
(1) A we,ir 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 bph’24 bridayx0.2 1.829 barrels per day
(2) After testing using ASTM procedures,
the skimmer’s oil recovery rate is deter-
mined to be 220 gprn. The facility owner or
Pt, 112 App.E
operator Identifies sufficient resources avail-
able to support operations for 12 hours per
(lay.
220 gpm 3l4 bpb
R=314 bphxl2 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 fac-
tors 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
70 Calcutaiing Planning Volumes Iora Worat
Case Discharge
7 1 A facility owner or operator shall plan
for a response to the facility’s worSt case dis-
charge The planning for on-water oil recov-
ery muse. take into account a loss of some oil
to the environment due to evaporative and
natural dissipation, potential increases in
volume due to emulsification, and the poten-
tial for deposition of oil on the shoreline
The procedures for non-petroleum oils are
discussed in section 77 of this appendix
7 2 The following procedures must be used
by a facility owner or operator in determin-
ing the required On-water oil recovery capac-
ity
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 facili-
ty’s speclflc operating area. See sectIons 1 2 2
and 1 2.7 of this appendix for the definitions
of non-persistent and persistent oils, respec-
tively Facilities that handle, store, or trans-
port oil from different oil groups must cal-
culate each group separately, unless the oil
group constitutes 10 percent or less by vol-
ume of the facility’s total oil storage capac-
ity. 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
722 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 han-
dle, store. or transport oil from different pe-
troleum 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 ca-
pacity) and use the calculation that results
in the largest on-water oil recovery volume
to plan for the amount o’ -conse resources
for a worst case dischar
-------
Pt. 112, App. E
1.2 3 The adjusted volume is multiplied by
the on-water oil recovery resource mobiliza-
tion factor found in Table 4 or this appendix
from the appropriate operating area and re-
sponse 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 or arriving on-scene within
8 hours for Tier 1. 30 hours for Tier 2. and 54
hours (or Tier 3 of the discovery of an oil dis-
charge For all other rivers and canals. in-
land. nearshore area.x, 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 identity response resources necessary
to sustain operations in the applicable oper-
ating area The equipment shall be capable
of sustaining operations for the time period
specified in Table 2 of this appendix The fa-
cility owner or operator shall identify and
ensure the availability, by contract, or other
approved means as described in § 112 2. of suf-
ficient oil spill recovery devices to provide
the effective daily oil recovery capacity re-
quired If the required capacity exceeds the
applicable cap specified in Table 5 of this ap-
pendix, 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 re-
quired 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 re-
sponse resources for a worst case discharge,
unless the oil group comprises 10 percent or
less by volume of the facility’s total oil stor-
age capacity
7 3 The procedures discussed in sections
1 3 1-133 of this appendix must be used to
calculate the planning volume for identify-
ing shoreline cleanup capacity (for Group 1
through Group 4 oils)
7 3 1 The following must be determined
the worst case discharge volume of oil (or
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 geo-
graphic area(s) in which the facility operates
(I e., operating areas) For a facility han-
40 CFR Ch. I (7-1-97 Edttlon)
dllng, storing, or transporting oil from di(-
ferent 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 vol-
ume must be adjusted to reflect an emulsi-
fication factor using the same procedure as
described in section 7 2 2 of this appendix.
7 33 The resulting volume shall be used
to identify an oil spill removal organization
with the appropriate shoreline cleanup capa-
bility
7 4 A response plan must identify re-
sponse resources with fire fighting capabil-
ity. The owner or operator of a facility that
handles. stores, or transports Group 1
through Group 4 otis that does not have ade-
quate 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 rec-
ommended that the facility owner or opera-
tor ensure, by contract or other approved
means as described in §1122. the availability
of these resources The response plan must
also identify an individual located at the fa-
cility to work with the fire department for
Group I through Group 4 oil fires This Indi-
vidual 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 re-
sponse plan or another appropriate individ-
ual located at the facility
7 5 The following is an example of the pro-
cedure described above in sections 7 2 and 7 3
of this appendix A facility with a 270,000 bar-
rel (11 3 million gallons) capacity for :6 oil
(specific gravity 0 96) is located In a higher
volume port area The facility is on a penin-
8ula and has docks on both the ocean and
bay Bides The facility has four aboveground
oil storage tanks with a combined total Ca-
pacity of 80,000 barrels (3 36 million gallons)
and no secondary containment. The remain-
ing facility tanks are inside secondary con-
tainment structures The largest above-
ground oil storage tank (90,000 barrels or 378
million gallons) has 1t own secondary con-
tainment. Two 50,000 barrel (2 1 million gal-
lon) 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)
pius sufficient freeboard.
7 5 1 The worst case discharge for the fa-
cility 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
Environmental Protection Agency
7.52 Because the requirements for Tiers I.
2, and 3 (or inland and nearshore exceed the
caps identified in Table S of this appendix,
the facility owner will contract for a re-
sponse 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 (or Tier 2. and 7,600 bpd (or
Tier 3 shall be Identified but need not be con-
tracted 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 DOCINOAA’s “Guidance for Facil-
ity and Vessel Response Plans Fish and
Wildlife and Sensitive Environments,” (see
Appendix E to this part, section 10, for avail-
ability) and the applicable ACP Attachment
C-Ill to Appendix C provides a method for
calculating a planning distance to fish and
wildlife and sensitive environments and pub-
lic drinking water intakes that may be im-
pacted in the event of a worst case discharge
7 6 The procedures discussed in sections
7 6 1—76 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 re-
sponse resources available by contract or
other approved means, as described in §1122
The equipment identified in a response plan
shall, as appropriate, include
(1) Sonar, sampiing 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 sur-
face 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 im-
pact of such discharges, and
(5) Other appropriate equipment necessary
to respond to a discharge involving the typo
of oil handled, stored, or transported.
7 6.2 Response resources identified in a re-
sponse plan for a facility that handles,
stores, or transports Group 5 oils under sec-
tion 1.6 1 of this appendix shall be capable or
being deployed (on site) within 24 hours of
discovery of a discharge to the area where
the facility is operating.
7.63 A response plan must identify re-
sponse resources with fire fighting capabil-
ity. The owner or operator of a facility that
handles, stores, or transports Group 5 oils
that does not have adequate tire fighting re-
sources located at the facility or that cannot
Pt. 112, App.E
rely on sufficient local fire fighting re-
sources must identify adequate fire fighting
resources It is recommended that the owner
or operator ensure, by contract or other ap-
proved means as described in §1122. the
availability of these resources The response
plan shall also Identify an Individual located
at the facility to work with the fire depart-
ment 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 identifled in the re-
sponse plan or another appropriate individ-
ual located at the facility
77 The procedures described in sections
7.7 1—7.7 5 of this appendix must be used to
determine appropriate response plan devel-
opment and evaluation criteria for facilities
that handle, store, or transport non-petro-
leum oils Refer to section 8 of this appendix
for Information on the limitations on the use
of dispersants for inland and nearshore
areas
77 1 An owner or operator of a facility
that handles, stores. or transports non-petro-
leum oil must provide information in his or
her plan that identifies
(1) Procedures and strategies for respond-
ing to a worst case discharge of non-petro-
leum oils to the maximum extent prac-
ticable, 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-petro-
leum oil must ensure that any equipment
identified in a response plan Is capable of op-
erating in the conditions expected In the ge-
ographic area(s) (i e., operating environ-
ments) 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 lim-
itations that are identified in the appro-
priate 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-petro-
leum oil must identify the response re-
sources that are available by Contract or
other approved means, as described In 112 2
The equipment described in the response
plan shall, as appropriate, include’
(1) Containment boom, sorbent boom, or
other methods for containing oil floating on
the surface or to protect shorelines from im-
pact.
(2) Oil recovery devices appropriate for the
typo of non-petroleum oil carried, and
-------
Pt. 112, App. E
(3) Other appropriate equipment necessary
to respond to a discharge involving the type
0( 011 carried
7 7.4 Response resources identified in a re-
sponse plan according to section ‘1.7 3 of this
appendix must be capab’e of commencing art
effective on-scene response within the appli-
cable tier response times in section 5 3 of
this appendix
7.7 5 A response plan must identify re-
sponse resources with fire fighting capabil-
ity The owner or operator of a faculty that
handles, stores, or transports non-petroleum
oils that does not have adequate fire fighting
resources located at the facility or that can-
not rely on sufficient local fire fighting re-
sources must identify adequate fire fighting
resources It is recommended that the owner
or operator ensure, by contract or other ap-
proved means as described in 41122. the
avaiiability of these resources The response
plan must also identify an individual located
at the facility to work with the fire depart-
ment for non-petroieum fires This individ-
ual shall also verify that sufficient welt-
trained fire fighting resources are avaIlable
within s reasonable response time to a worst
case scenario The individual may be the
qualified individual identified in the re-
sponse plan or another appropriate individ-
ual located at the facility
80 Deternilntrtp the .4roIIabtftty of .4lternatf its
Response Methods
B I For diapersants 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 applica-
tion 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, dis-
persant application has not been approved by
ACP5 for inland areas or shallow nearshore
areas
90 Additionat-Equiprnent 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 spot-
ting aircraft, containment boom, sorbent
materials, boom anchoring materials, and
other supplies are available to sustain re-
sponse operations to completion All such
equipment must be auitabie for use with the
primary equipment identified in the response
plan A facility owner or operator is not re-
quired to list these qrces. but shall cer-
tify their availabili’
40 CER Ch. I (7—1—97 Edttlon)
92 A facility owner or operator shall
evaluate the availability of adequate tem-
porary storage capacity to sustain the effec-
tive daily recovery capacities from equip-
ment identified in the plan Because of the
Inefficiencies of oil spill recovery devices, re-
sponse plans must Identify daily storage ca-
pacity 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 dem-
onstrate b Y waste stream analysis that the
efficIencies of the oil recovery devices, abil-
ity to decant waste, or the availability of al-
ternative temporary storage or disposal loca-
tions will reduce the overall volume of oily
material storage requirement
93 A facility owner or operator shall en-
sure that his or her planning Includes the ca-
pability to arrange for disposal of recovered
oh products Specific disposal procedures
will be addressed in the applicable ACP
100 References and Avoiiabtltfy
10 1 All materials listed In this section
are part of EPA’s rulemakIng docket, and
are located in the Superfund Docket, Room
M2615. at the U S. Environmental Protection
Agency. 401 P4 Street. SW, Washington, DC
20460 (Docket Number SPCC-2P) The docket
is available for inspection between 9 00 a m
and 400 p m., Monday through Friday, ex-
cluding Federal holidays Appointments to
review the docket can be made by calling
202-260-3046 The public may copy a mast-
mum of 266 pages from any regulatory dock-
et 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 325 00 administrative fee Charges for
copies and docket hours are subject to
change
10 2 The docket will mail copies of mate-
rials to requestors who are outside the Wash-
Ington 0 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 RCahiSuperfund Motline
at 800-424—9346 may also provide additionai
information on where to obtain documents
To contact the RCRAlSuperfund Hotline In
the Washington. DC metropolitan area, dial
703—412—9810 The Telecommunications Device
for the Deaf (TDD) }totline number is 600—
553-7672, or. in the Washington. DC metro-
polItan area. 703—412-3323
10 3 Documents Referenced
(1) National Preparedness for Response Ex-
ercise Program (PREP) The PREP draft
guidelines are available front United States
Coast Guard Headquarters (G-MEP-4), 2100
Second Street. SW. Washington. DC 20693
(See 58 FR 53990, October 19, 1993, Notice of
Availability of PREP Guidelines).
(2) “GuIdance for Facility and Vessel Re-
sponse Plans Fish and WIldlife and SensitIve
Environments” (published in the FEos’SAL
Environmental Protection Agency
Oil Recovery Devices
Opersting snviroivnent
PavenandCav a ls ._,._
—--- -—-
— ‘
—
-
—.-
—--
- -
-
G,sat tSss ,__,
— -,-.
— .
- . -, .——-.—. .
. .
—
-,-
.
.
- -
- -
- -
Boom
Boom popsfly
use
t
Inilsnd
Gresi Lskes
Ocesn
S9s5aMWtielieig l e’ — . ... -
SasSIsts _._ _ . - - . —.—--—- —
eooin he.gtl—tit’ies f*all plus freeboard) . - - .
Resen ,B ecy n icy We lQtttRatio - . . — . .
TotS Ts,sile Seenglh—pourts
Sled Fare IsSle Sbength—pcunds . - .
Siw l F lc Ten Swength—pourids - - -
.
-—-
e-ie
21 .
4.500
200
100
a3 -
2 ..
18-42 . .
21 .
15.000—
20,000
300
100
s ’
2—3 .
18-42
21
15,000-
20.000
300
100
aC
3-4
542
3 1lo4 1
20 000
500
125
S S locetion
Raven snd canals
P4esnhct
eiinlsnd Crest
Lakes
Sratsn 1 Ity ol on.watsr oil recovery
3 days
4 days
011 grow’
Percent nat-
aS dsstpe-
lion
Percent re. Percent nat-
covered itS &sape.
Coaling oil hon
Percent ye-
covered
Coating oil
Pt. 112,App.E
REGISTER by DOC/NOAA at 59 FR 14713. (3) ASTM Standards. ASTM F 715, ASTM F
March 29, 1994). The guidance Is available In 989, ASTM F 631-80. ASTM F 808—SO (1988)
the Super’fund Docket (see sections 10.1 and The ASTM standard.s are available from the
102 of this appendix). American Society for Testing and Materials,
1916 Race Street, Philadelphia. PA 19103—1181.
TABLE 1 TO APPENDIX E—RESPONSE RESOURCE OPERATING CRITERIA
‘Oil recovery devices enS boom shaft be at least capable 04 operating In wave heights up lo end vtudnq the values 5stad 5,
Table lIce seth cperssng emeroranerit
TABLE 2 TO APPENDIX E—REMOVAL CAPACITY PLANNING TABLE
I Slon.pertistenl oils $0 tO tO 50 20 tO
2 Lçtlcrudea . 10 15 45 50 50 30
3 hleduanaudeswidluets 20 15 65 30 50 50
4 l4eavyoudesendluels 5 20 75 10 50 10
Group 5 oils are derined in secton I 27 01 las epperfliz, the rseporue ‘asou’ce consjdersllom are oulltned a-a section 75 cit
Isa appen a
t4on-pelioleun oils are detned in section 12301 l I l a erdz, the response resource considerations are eijtned in section
1’ i d this açperds.
TABLE 3 TO APPENDIX E—EMULSIFICATION
FACTORS FOR PETROLEUM OIL GROUPS’
Non-Persisieni 01
Group 1
Persisleni Oii
Group 2
Group 3
Group 4 ‘
TABLE 3 TO APPENDIX E—EMULS1FICATION FAC-
TORS FOR PETROLEUM OIL GROUPS ‘—Con-
ilnued
1 0 Group 5 oils are defined in seciton 1 2 7 of
thts appendix, Ihe response resource con-
1 B siderairons are Ouliined tn section 7.6 of
2 0 thIs appendIx
1.4 ‘see secbcns 122 end 127 dl this sppendis Ice yo p
designations b non.pers&stenl arid persistent oils, respec-
A Am
-------
HI HI
000
I v
Ut
!
H
— — — — —
S
Ia. U. (a.
40 CFR Ch. I (7-1-97 Edttlon)
I
I
I
I1
ZI-
100
gn.t% Ct. I A )
a. 112. App. E
Envlronrnentcl Protedilon Agency
AI-FACKMENTS TO APPENDIX E
A5 ACI0 N7 S. - -
VOP.XSHUT TO PLAN VOLU7 07 V.ZSPO SZ VZSOU1CSS
POL VORST CASE DISCI(A&CI
Part I Z*ck,round lnfor *tton
Step (A) Caiculats Vorst Ca,. Dtschargs itt barrels (Appendix D)
(A)
Step (5) Oil Group t (Table 3 and section 1 2 of this appendix)
Stsp (C) Op.rating Area (choc.. one) . . N.erahore/ Inland or P.lv*za
Great Zak.. ad ca a1J
Step (B) Percentage. of Oil (Table 2 of this appendix)
P.rc.nt Lost to Percent Recovered Percent
Natural Di..ipatton Floating Oil Oil Onshore
I I I I I
(03)
I
( C I)
—I I
(U)
( D I)
(00)
St.p (II)
Step (12)
On—Water Oil R.covery
Shoreline Recovsry
Step (02) a Step (A)
Step .
100
Step (F)
(‘table 3
u1.ifLcation Vector
of this appendix)
Step (C)
(Table 4
On-Water Oil. Pecovery
of this appendix)
R.ource )(obtliration
T
L.r 1
Tier 2
Factor
(F)
Tier 3
(GI) (G2) (03)
A facility that hadI. .. atom, or trrecoqt. e4tfpl. ,r of oil at separate
Catcu tst le for sada oil ,re.p a cit. .zc.pt for those all •ra. tP ’at cometi vt. ID p,rc.nt or
I ns by lI of ths (alit oil storage c cIty at toe facility For pApa . .. of this
caiculatlen, ha. voI . of all pro ts lit ai Oil •re.ç eat be it.d to Oe(,faIitS the
percentage of the facility’s total oil store. capacity.
Pt. 112. App.E
2?
00
00
00
0
0
-------
Pt. I2 5 App.E 4OCFRCh.I(7-1-9lEdIt$on)
ATT1. W 5T 1-1 CCi -o Lbv ) -.
rai TO PL31 VOLW OP WP U IZZCOICU
rot I tS? C195 0II AZ
Part II On—Wat.r Oil P.co..rv Capacity (barrels/day)
Tier 1 Tier 2 Tier 3
I I I I
I
itep (ii ) lisp (F) a atip (I )) • lisp (I) a $tsp III ) a lisp (Pp
(tip ( CI) (tsp (Cl) Step (Cl)
Part I!! Shoreline Cleanup VoLu . (barrels) I
I
Step (U) a Step (F)
Part IV On-Water R..ponsp Capacity By OparaUng At.
fTable S of this appendix)
(P unt needed to b contracted for L i i bazr.1e/day)
Tier I Tt•r 2 Tier 3
I I I I
(II) (JZ) U))
Part V Oyi-Wat.r w uflt N..d.d to b. ld.nt L.d but not Contracted for in
Advanc. barrels/day)
tier I Tier 2 Tier 3
I I I I
I
Pin II lIar 1 - Slip UI) Part 1* (fir 1 - (tsp (42) Part II TI., 3 • Stsp t43)
NO ’TSr To convert from barrel./day to gallons/day, multiply th. q anttti.s in
Pacts It through V by 42 galkona/barrei.
Env%ronmentol Pro eciton Agency Pt. 2, App. E
ŁITACw r 5-1 U.WLI
pTC vT ) TO PLAS or SISPOISS RZSQO CIS
P01 WORSt CASt DXSCXIIOZ
Part I Background Information _______________
Step (A) Calculate Wcrst Ca.. Okacharge in barrel. (Appendix 0) 1 i o.ooo
(A)
Step (B) Oil Group t (Table 3 and section 1.2 of thi, appendix)
St.p (C) Operating Area (choos• en.) . . . Wearshors/Intand or Rivers
Great takes ad .is
Step (0) Percentages of Oil (Table 2 of this appendixi
percent Lost to Percent Recovered Percent Oil
Natural Dissipation Floating Oil Onshore
10 I ° I 1
(0 %) (C l) (01)
Step ( I L) On—Water Oil Recovery Step (D I) Step es.ooo
100 ( I I)
Step (52) Shoreline Recovery Step (DI I a Step (Al . . 119,000 1
100 (U)
Step (?) Imuisificatiort Factor 1.4
(Table 3 of this appendix) ____________________
(F)
Step (C) On-Water Oil Recovery Resource )4obilitatiofl Factor
(Table 4 of thi. app.ndix)
Tier 1 Tier 2 Tier 3
0.15 0.25 0.40
(C l) ( 1 2) 1 ( 31
* facility that kadlal. stone, or trWmpOnll sit I ipt . ( ‘OW. of ill e at upon). titculit ix. For
s . alt grm i itt . axcipt er thou, oil (rx. IN ST toni) I Cui. 10 percint or is i s 0)’ vTti. of Ai Total
oil oto ’sge capacity ii Tile faciLity For pwpesii of this calcuistixi, tile vOIi.1 Of Ott pnml .xus in w
oil may ai 0, s ,d to dsi.r,i , . (us porc,nta.s of thu f.ciI Ity ’s totsi oil tiorap. capacity
4.d
4 4 ?
-------
Environmental Protection Agency
APPENDIX F To PART 112—FAC 1Ln ’Y ”
SPECIFIC RESPONSE PLAN
Table of Coat eith
1.0 Model Facility-SPeCIfIC Response Plan
1 1 EmergencY Response Aeticm 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 TestingfDePlOY-
men t
1 3 4 Personnel
1 3 5 EvacuatiOn Plans
1 3 6 Qualified Individual’s Duties
1 4 Hazard EvaluatiOn
lii Ilazard 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 52 Worst Case Discharge
1 6 DIscharge Detection Systems
1 6 1 Discharge Detection By Personnel
1 62 Automated Discharge Detection
17 Plan implementation
1.7.1 Response Resources (or Small. Me-
dium. and Worst Case Spills
17 2 DIsposal Plans
1.7.3 Containment and Drainage Planning
LB Self-Inspection. Drills/Exercises, and Re-
sponse Training
1 8 1 Facility Self-I.nspectlofl
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 22 Spill Management ‘Team ‘l’abletOP
Exercise Logs
1.8.3 Response Training
1 83.1 Personnel Response Training Logs
1 8.3 2 Discharge Prevention Meeting Loge
112 App. F
1 9 Diagrams
110 SecuritY
2 0 Response Plait Cover Sheet
3 0 Acronyms
4 o References
1 0 Model FocflfIy-SpeciIiC Response Plan
(A) Owners or operators of facilities regu-
lated under this part which pose a threat of
substantial harm to the environment by dis-
charging 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 de-
scribes the required elements in 1112 20(h)
(B) Response plans must be sent to the ap-
propriate EPA Regional office Figure F—I of
this Appendix lists each EPA Regional office
and the address where owners or operators
must submit their response plans Those fa-
cilities deemed by the Regional Adminis-
trator (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. InfOx’TflatiOfl re-
quired in the model response plan is similar
to information currently maintained In the
facility’s Spiii Prevention, Control, and
Countermeasures (SPCC) Plan as required by
40 CFR 112 3 In these cases, owners or opera-
tors may reproduce the Information and in-
clude a photocopy in the response plan.
(C) A complex may develop a single re-
sponse plan with a set of core elements for
all regulating agencies and separate sections
for the non.transportatiOn-reiated and trails-
portation-related components, as described
In 1112 20(b) Owners or operators of large fa-
cilities that handle, store, or transport oH at
more than one geographically distinct loca-
tion (e g , oil storage areas at opposite ends
of a single, continuous parcel of property)
shall, as appropriate. develop separate sec-
tions of the response plan for each storage
area.
Pt. 112, App. E
40 CFR Ch. 1(7-1-97 Edttton)
&igs --——-— 1-1 fl L1 ( C u.v ) - -
1I0IZ ? TO 9 5. 5% VQL 07 WPOUU IUC S
P *ST C lii DI1 A&
P&rt II Ofl—Wjt.C Ott P.cpvarv CaOpCLtV b 5rr.L./dly)
F
1
Tt.r
1,.ss0
Ii. (Ii ) • lisp C I)
lisp ( C l)
TL.r2
29,750
(tsp (1) Ł (tsp (7) *
(tsp (U)
T1.r 3
47.600
ft.p (II) I (tsp (7) •
(tsp ( (31
P*rt XIS Shor.ltn. Ct.srtup Votuins bsrr.t.) [ 166,600
St.p ((2) (t.p Cr)
Pact TV On—Wst. Ruspons. Cap.ci,ty By Op.rattng Ar.a
(Tabis S of this app.ndix)
iP ’ iant ns.d.d to b. contract.d for in barr.1s/day}
ttsr 1
10,000
i ii)
P&rt V On-W .t.r Amount
Advar .c. (b*rr.L./day)
20.000
(a)
I .‘.‘
h t ,4. , . I4. .4
h..’ . ....‘
Tt•r 3
40. 000
C a)
Cor in
Ti.r 1
Tt.r 2
?j.r 3
7,600
Pert Ii ?I.r 3 - (tsp (iS)
7,830
J 9,750
P..’t Ii il.r S - (tip (iS)
I ,t ii (ts r I - (tsp UI)
MOTh To convict from
Parts II tProu h V by
barrsls/day to gallons/day.
42 gukiens/barr .1.
multiply Ui. quantitis. in
(59 FR 34111, July 1. 1994, 59
FR 49006. Sept 26, 1994]
-------
Environmental Protection Agency
Pt. 112, App. F
40 CFR Ch. I (7—1—97 Edition)
1.1 E)nergenci, Respon.se Action Plan
Several sections of the response plan shall
be co-located for easy access by response per-
sonnel 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 nec-
essary 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 sec-
tion may be tabbed for quick reference. The
Action Plan shall be maintained in the front
of the same binder that contains the com-
plete response plan or it shall be contained
in a separate binder, In the latter case, both
binders shall be kept together so that the en-
tire plan can be accessed by the qualified in-
dividual and appropriate spill response per-
sonnel. The Emergency Response Action
Plan shall be made up of the following sec-
tions:
1. Qualified Individual Information (Section
1.2) partial
2. Emergency Notification Phone List (Sec-
tion 1.3.1) partial
3. Spill Response NotifIcation Form (Section
1.3.1) partial
4. Response Equipment List and Location
(SectIon 1.3.2) complete
5. Response Equipment Testing and Deploy-
ment (Section 1.3.3) complete
6. Facility Response Team (Section 1.3.4)
partial
7. Evacuation Plan (Section 13.5) condensed
8. Immediate Actions (Section 1.7.1) com-
plete
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 de-
scription 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 fa-
cility name and street address. Enter the ad-
dress of corporate headquarters only if cor-
porate headquarters are physically located
at the facility. Include city, county, state.
zip code, and phone number.
1.2.2 Lačftude and Longitude: Enter the
latitude and longitude of the facility. In-
clude 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).’
The response plan requirement-s in the Well-
head Protection Program are outlined by the
State or Territory in which the facility re-
sides.
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
di1 erent.
1.2.5 QualifIed Individual: Write the name
of the qualified individual for the entire fa-
cility. 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 Erpan-
sion: 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 capac-
ity. The data provided shall include all facil-
ity historical information and detail the ex-
pansion of the facility. An example of sub-
stantial expansion is any material alteration
of the facility which causes the owner or op-
erator of the facility to re-evaluate and in-
crease the response equipment necessary to
adequately respond to a worst case discharge
from the facility.
Date of Last Update: —
FACILITY INFORMATION FoRM
Facility Name:
Location (Street Address):
City: — State: Zip: —
County: — Phone Number:
Latitude: — Degrees — Minutes
— Seconds
Longitude: — Degrees Minutes
— Seconds
Wellhead Protection Area:
‘A wellhead protection area is defined as
the surface and subsurface area surrounding
a water well or welifield. supplying a public
water system. through which contaminants
are reasonably likely to move toward and
reach such water well or wellfield. For fur-
ther information regarding State and terri-
tory protection programs. facility owners or
operators may contact the SDWA Hotline at
1—800-426—4791.
Pt. 112, App. F
0<
I-
-
! OLLI
r 2
-------
Pt. 112, App.
Owner:
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 0(011 Storage Start-up:
Current Operations:
Date(s) and Type(s) of Substantial Expan-
sion(s):
(Attach additional sheets if necessary)
1.3 Ł,nel-genciJ Response Information
(A) The information provided in this
section shall describe what will be
needed in an actual emergency involv-
thg the discharge of oil or a combina-
tion of hazardous substances and oil
discharge. The Emergency Response In-
formation section of the plan must in-
clude the following components:
(1) The information provided in the Emer-
gency Notification Phone List in section
1.3.1 identifies and prioritizes the names and
phone numbers of the organizations and per-
sonnel that need to be notified immediately
in the event of an emergency. This section
shall include all the appropriate phone num-
bers 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 dis-
charge, any employee on site could imme-
diately notify the appropriate parties.
(2) The Spill Response Notification Form
in section 1.3.1 creates a checklist of infor-
mation that shall be provided to the Na-
tional Response Center (NRC) and other re-
sponse personnel. All information on this
checklist must be known at the time of noti-
fication, or be in the process of being col-
lected. This notification form is based on a
similar form used by the NRC. Note: Do not
delay spill notification to collect the infor-
mation 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 re-
garding response equipment tests and de-
ployment drills. Response equipment deploy-
40 CFR Ch. (1-1-97 EdItion)
ment exercises shall be conducted to ensure
that response equipment is operational and
the personnel who would operate the equip-
ment in a spill response are capable of de-
ploying and operating it. Only a representa-
tive sample of each type of response equip-
ment needs to be deployed and operated, as
long as the remainder is properly main-
tained. 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 avail-
ability). which satisfy oii 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 fa-
cility 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
hall be composed of all personnel employed
by the facility whose duties involve respond-
ing to emergencies, including oil spills, even
when they are not physically present 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 pri-
mary and secondary) retained by the facil-
ity. Any changes in contractor status must
be reflected in updates to the response plan.
Evidence of contracts with response contrac-
tors 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 emer-
gency response personnel (referenced by job
title/position) and emergency response con-
tractors, included in one of the two lists de-
scribed above, that will respond immediately
upon discovery of an oil spill or other emer-
gency (i.e., the first people to respond).
These are to be persons normally on the fa-
cility premises or primary response contrac-
tors. Examples of these personnel would be
the Facility Hazardous Materials (HAZMAT)
Spill Team 1, Facility Fire Engine Company
1. Production Supervisor, or Transfer Super-
visor. Company personnel must be able to re.
spond immediately and adequately if con-
tractor 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 responsibil-
Itles of the qualified individual for the facil-
ity in the event of an emergency.
Environmental Protection Agency
(B) The information provided in the emer-
gency response section will aid in the assess-
ment of the facility’s ability to respond to a
worst case discharge and will Identify addi-
tional assistance that may be needed. In ad-
dition, the facility owner or operator may
want to produce a wallet-size card contain-
ing a checklist of the immediate response
and notification steps to be taken in the
event of an oil discharge.
1.3.1 Noiiflcatlon
Date of Last Update:
EMEROENCY WYrIFICATION PHONE LIST WHOM
To NCmFY
Reporter’s Name:
Date:
Facility Name:
Owner Name:
Facility Identification Number:
Date and Time of Each NRC Notification: —
Organizabon Phone No.
2. QualifIed hdvi .jai:
C...-• Phone:
3. Company Response Team:
Evenln9 Phone:
4. Federal On-Scene Cocidnator (OSC)
.ndfor Regional Response Center
(RRC):
Eve flQ Phone(s):
Re
5. Local Response Teem (F e DeptiCo-
6. FIrs Maih :
Eventng Phone:
7. State Emergency Response Commis-
sion (SERC):
Evsntng Phone:
5. Stat. Pqllos :
9. t.o Emergency Ptem*ig Committee
(LEPC)
10. Lc Water S çpIy System:
112, App. F
Organization
Phone:
Phone
Evei nQ
I I. Weather Report:
12. Local TeIevision RadO
Ey 5cuation Notification:
Station
or
13. Hospitals:
Reporter’s Last Name:
First:
Position:
Phone Numbers:
Day( )
Evening( )
Company:
Organization Type:
Address:
Zip:
Were Materials Discharged? — (YIN) con-
fidential? — (YIN)
Meeting Federal Obligations to Report?
(YIN) Date Called: —
Calling for Responsible Party? — (YIN)
Time Called: —
Incident Descri 9 11 on
Source and/or Cause of Incident:
Date of Incident:
Time of Incident: — AM1PM
Incident Address/Location:
Nearest City:____________ State:
County: ______ Zip:
Distance from City: — Units of Measure
— Direction from City: —
Section: ______ Township: ______ Range
______ Borough:
Container Type: — Tank Oil Storage Ca
pacity: ______ Units of Measure:
Facility Oil Storage Capacity: ______ Unit
of Measure: —
Facility Latitude: — Degrees — Mir
utes — Seconds
Facility Longitude: Degrees
Minutes — Seconds
Material
SPILL RESPONSE NOTIFIcATION FORM
I. National Response Center (NRC): 1-800--424—8802 City: —
State:
-------
40 CFR Ch. I (7—1-47 EdlUon)
Mrpfl Cii -
cMRIs c c c i. ts ’r ci ms ure dlwped m wuter
Response Actton
Actions Takeii to Correct. Control or Mitt-
Caller Notifications
gate Incident
EPA’ (YIN) USCG’ — (Y/N) State?
— (YIN)
Other? (YIN) Describe
1 3 2 Response EQuipment List
Date of Last Update —
impact
FACILITY RESPONSE EQUIPMENT LIST
Number of Injuries. — Number of Deaths
1 SkimmerslPumps- .-Operational Status —
Were there Evacuations’ (Y/N) Hum- Type, Model, and Year
ber Evacuated
Was there any Damage’ (YIN) Type Model Year
Damage in Dollars (approximate) Number
Medium Affected Capacity gal 1mm
Description Daily Effective Recovery Rate’
Storage Location(s)
More Information about Medium Date Fuel Last Changed
2. Boom—Operational Status’
Type, Model, and Year
Type Model Year
Additional Informa tion Number
Size (length) ft
Any information about the incident, not re- Containment Area SQ ft
corded elsewhere in the report Storage Location
3 Chemicals Stored (Dispersants Listed on
EPA’s NC? Product Schedule)
Type
Amount
DaIs
Treatment
Storage
Environmental Protection Agency
Pt. 112, App. F
Type a d yew Capeoty
5 Sorbent .s—OperatiOflal Status
Type and Year Purchaaed/
Amount.
Absorption Capacity (gal)
Storage Location(s)
6 Hand Tools—Operational Status:
Type and yew
7. CommunicatiOn Equipment (include op-
erating frequency and channel and/or cel-
itilar phone numbers)—OpeE ’ational Status
1 YP and yew
Ouanbty
Storage
stor . . 9 Other (e g , Heavy Equipment, Boats and
location Mot,ors)—Operational Status. —
Type m c i yew
Quaritily
Storage
IoOahon
I 33 Response EQu(pmeni Test(ng/Deplo men1
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 Certirication
(if applicable)
134 Per,onncl
Date of Last Update
Were appropriate procedures used to re-
ceive approval (or use of dlspersartts in ac-
cordance with the NCP (40 CFR 300 910) and
the Area Contingency Plan (ACP). where ap-
pllcable ’_ (Y/N)
Name and State of On-Scene Coordinator
(OSC) authorizing use.
Date Authorized —
4 Diapersant Dispensing Equipment—Oper-
ational Status —
Pt. 112. App.F
8 Fire Fighting and Personnel Protective
Equipment—OperatIonal Status’ —
-------
Phon.’
Rsapon e lime
— R.apcnaibility SVtQ fIOOflSe cb i
Re ç . a.n.ng typ&date
2
.
3.
4,
&
0 .
1
8.
9
10
‘I
12.
‘PhQnO ‘ ai ber be u3.d when pemon not On-Me
EMERGENCY RESPONSE CONTRACTORS
Deecilast Update
Con lyac
Phone
Response tim.
—
Cont, Gd reapOnsibH.ty’
Team meqnbe Rupcn.e 8ine (mimjtes) Phone piQe msnbe (day/e’ e noJ
Ou&Iliod lrd ’.ic aI
EMERGENCY RESPONSE PERSONNEL
Coi s’,y Petio i&
C)
-VT
C,
4,
• - 1
‘ I ,
a
m
I.
I
Indude ev dence 01 con ,ado/a e.men w th ,ospon e crJcIISCTO. ’I to anew. Ow svM tty c i pecsonnet end response sq.ip .nt.
FACIUTY RESPONSE T M
Date 01 Last Update
p .,
‘I .
-------
Environmental Protection Agency
1.35 Evacuation Plans
1 351 Based on the analysis of the facil-
ity, as discussed elsewhere in the plan, a fa-
cility-wide evacuation plan shall be devel-
oped. In addition, plans to evacuate parts of
the facility that are at a high risk of expo-
sure 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 develop-
ing evacuation plans, consideration must be
given to the following factors, as appro-
priate:
(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 condi-
tions (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 alarnVnotiflcation sys-
tems.
(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.
1 352 One resource that may be helpful
to owners or operators in preparing this sec-
tion 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.
SW ,Washington. DC 20472. (202) 646-3484.
1353 As specified in 1112 20(h)(1)(vi), the
facility owner or operator must reference ex-
isting community evacuation plans, as ap-
propriate.
1 3 6 QualIfied Individual’s Duties
The duties of the designated qualified indi-
vidual are specified in 1112 20(bX3)(ix) The
qualified individual’s duties must be de-
scribed and be consistent with the minimum
requirements in p112 20(h)(3)(ix). In addition.
the qualified Individual must be identified
with the Facility Information in section 1 2
of the response plan
14 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 in-
dustry practice that allows facility owners
or operators to develop a complete under-
standing of potential hazards and the re-
Pt. 112, App.F
sponse actions necessary to address these
hazards. The Handbook of Chemical Hazard
Analysis Procedures, preilared by the EPA,
DOT, and the FEMA and the Hazardous Mate-
rials Emergency Planning Guide (NRT-1). pre-
pared by the National P.esponse Team are
good references for conducting a hazard anal-
ysis. 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 cor-
rect potential sources of discharges In addi-
tion, special hazards to workers and emer-
gency response personnel’s health and safety
shall be evaluated, as well as the facility’s
oil spill history,
1 4 1 Hazard IdentiJlcation
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 Impound-
ment” 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 liq-
uids. and which is not an injection well or a
seepage facility.) Similar worksheets or
their eQuivalent, must be developed for any
other type o’ storage containers
(1) LIst each tank at the facility with a
separate and distinct Identifier Begin above-
ground tank identifiers with an “A” and be-
lowground 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 appro-
priate forms
(a) Tank or SI number—Using the afore-
mentioned identifiers (A or B) or multiple
reporting sheets, identify each tank or Si at
the facility that stores oil or hazardous ma-
terials.
(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
Cc) Quantity Stored—For each material
stored in each tank or SI, report the average
volume or material stored on any given day
(d) Tanb 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 re-
fabricated, the year that the t refabrica-
tion was completed must b -ded in pa-
rentheses next to the yeak ‘taIled For
40 CFR Ch. 1(7-1-97 EdlIlon)
Pt. fl2, App. F
I
I
I
C
C
Q
a
4 ,
C
a
I
I
2
a
S
2
I
i i
ii
q
a
-------
h. . 12,App.F
Pt. 112, App. F
each SI, record the surface area of the im-
poundinent and the year it went into service
(e) Maximum Capacity—Record the oper-
ational maximum capacity for each tank and
SI If the maximum capacity varies with the
season, record the upper and lower limits
(f) FailureiCause—Record the cause and
date of any tank or SI failure which has re-
sulted in a loss of tank or SI contents
(I) Using the numbers from the tank and
SI forms, label a schematic drawing of the
facility This drawing shall be iuentical 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 transpor-
tation 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 vol-
ume of material involved in transfer oper-
40 CFR Ch. I (7—1—97 Edttlon)
attons, if the exact volume Cannot be deter-
mined
(b) Day-to-day operations that may
present a risk of discharging oil or releasing
a hazardous substance These activities in-
clude scheduled venting, piping repair or re-
placement, valve maintenance, transfer of
tank contents from one tank to another. etc
(not including transportation-related activi-
ties) Estimate the volume of material in-
volved in these operations, if the exact vol-
ume cannot be determined
(c) The secondary containment volume as-
sociated with each tank and/or transfer point
at the facility The numbering scheme devel-
oped on the tables, or an equivalent system.
must be used to identify each containment
area Capacities must be listed for each indi-
vidual unit (tanks, slumps, drainage traps,
and ponds), as well as the facility total.
(d) Normal daily throughput for the facil-
Ity and any effect on potential discharge vol-
umes that a negative or positive change in
that throughput may cause
Environmental Protection Agency
1 4.2 VulnerabilIty AVIS! us fs
The vulnerability analysis shall address
the potential effects Ii e - to human health,
property, or the environment) of an oil spill.
Attachment C —Il! 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 sen-
sitive environments Owners or operators
can use a comparable formula that is consid-
ered acceptable by the RA. If a comparable
formula is used. documentation of the reli-
ability and analytical soundness of the for-
mula 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 (drinking, cooling, or
other):
(2) Schools.
(3) Medical facilities.
(4) Residential areas.
(5) Businesses,
(6) Wetlands or other sensitive environ-
ments. 5
(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 terrestri-
ally sensitive environments, aquatic envi-
ronments, and unique habitats
1.43 Analysis of the Potential for an Oil Spill
Each owner or operator shall analyze the
probability of a spill occurring at the facil-
ity This analysis shall incorporate factors
5 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 avail-
ability)
8uch as oil spill history, horizontal range of
a potential spill, and vulnerability to natu-
ral disaster, and shall, as appropriate. incor-
porate other factors such as tank age This
analysis will provide information for devel-
oping 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 Foci lily Reportable Oil Spill History
Briefly describe the facility’s reportable
oil spili history for the entire life of the fa-
cility to the extent that such information is
reasonably identifiable. Including
(1) Date of discharge(s),
(2) List o [ discharge causes:
(3) Material(s) discharged,
(4) Amount discharged in gallons.
(5) Amount of discharge that reached navi-
gable waters, if applicable.
(6) Effectiveness and capacity of secondary
containment.
(7) Clean-up actions taken.
(8) Steps taken to reduce possibility of re-
currence,
(9) Total oil storage capacity of the tank(s)
or impoundment(s) from which the material
discharged.
(10) Enforcement actions.
(11) Erfectiveness of monitoring equip-
ment, and
3 As described in 40 CFR part 110. report-
able oil spills are those that (a) violate ap-
plicable 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 ad-
joining shorelines
HAZARD IDENTIF ICAT iON SURFACE IMPOUNDMENTS (Sls)—Cont’riued
Dete Of L t Update
SI No
&tatanoe Stored
Suilacs ‘jea/Year
(Q 5 5
F&k%&’C . e
Madi as many sheets as necessary
HAZARD IDENTIFiCATION TANKS’
Date of Last Update ________
Tird, N
S , stanco Stored
(Oil arst Hazard-
ova Substance)
Tarth TypefYeai
Maxlnsjm Capeoly
(Qafloris)
Faskw&Ceia.
I
‘link — any contaner that stores oil
Aitach as many sheets as necessary
HAZARD
IDENTiFICATiON SURFACE IMPOUNDMENTS (SIS)
Date of Last Update
SI No
Si.aatanoe Stored
Suslace jeatYew
Maxjmum Capacity
Fa itis&Cause
-------
Pt. 112, App.F
(12) Description(3) 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
I S Discharge Scenarios
In this section, the owner or operator is re-
quired to provide a description of the facili-
ty’s worst case discharge, as well as a small
ana medium spill, as appropriate A multi-
level planning approach has been chosen be-
cause 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
I S I Sffi alt and Medium Discharges
1 5 II To address multi-level planning re-
quirements, the owner or operator must con-
sider 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, in-
cluding but not limited to
(I) Loading and unloading of surface trans-
P0 rta Lion,
(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 com-
ponents
1 5 1 2 The scenarios shall also consider
factors that affect the response efforts re-
quired by the facility These include but are
not limited to
(1) Size of the spill.
(2) ProxImity to downgradient wells, wa-
terways, and drinking water intakes,
(3) Proximity to fish and wildlife and sen-
sitive environments,
(4) Likelihood that the discharge will trav-
el offslt.e (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 fail-
ures, and
(10) Direction of spill pathway
1.5 2 Worst Case Discharge
1 5 2 1 In this section, the owner or opera-
tor must identify ‘ - worst case discharge
volume at the faf Worksheets for pro-
40 CER Ch. I (7—1—97 Edltlon)
duction 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 aforemen-
tioned factors listed in the small and me-
dium discharge section of the response plan
8hall be addressed
1.522 For onshore storage facilities and
production facilities, permanently
manii’olded oil storage tanks are defined as
tanks that are designed, installed, and/or op-
erated in such a manner that the multiple
tanks function as one storage unit (1 e • mul-
tiple tank volumes are equalized) In this
section of the response plan. owners or oper-
ators must provide evidence that oil storage
tanks with common piping or piping systems
are not operated as one unit If such evidencs
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
niani(olded tanks or the oil storage capacity
of the largest single tank within a secondary
containment area, whichever is greater For
purposes of tho worst case discharge calcula-
tion, permanently manifolded oil storage
tanks that are separated by int,ei-nal divi-
sions for each tank are considered to be sin-
gle tanks and individual manifolded tank
volumes are not combined
1 6 Discharge Detection Systems
In this section, the facility owner or opera-
tor shall provide a detailed description of the
procedures and equipment used to detect dis-
charges A section on spill detection by per-
sonnel and a discussion of automated spill
detection, if applicable, shall be included for
both regular operations and after hours oper-
ations In addition, the facility owner or op-
erator 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 PeTson net
In this section. facility owners or opera-
tors shall describe the procedures and per-
sonnel that will detect any spill or uncon-
trolled discharge of oil or release of a hazard-
ous substance, A thorough discussion of fa-
cility Inspections must be included In addi-
tion, a description of Initial response actions
shall be addressed This section shall ref-
erence section 1 3 1 of the response plan for
emergency response information
Envlronmoritcil ProtectIon Agency
1.6.2 Automated Discharge Detection
In this section. facility owners or opera-
tors must describe any automated spill do-
lection 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 ver-
ify 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 opera-
tors must explain in detail how to imple-
reent the facility’s emergency response plan
by describing response actions to be carried
out under the plan to ensure the safety of
the facility and to mitigate or prevent dis-
charges described in section 1 5 of the re-
sponse plan. This section shall include the
identification of response resources for
small, medium, and worst case spills, dis-
posal 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 up-
date their plan after an oil spill event and
the time frame to update the plan must be
described.
1.7.1 Response Resources for S inai!, Medium,
and Worst Case Spills
1.7 11 Once the spill scenarios have been
identified in section 1 5 of the response plan.
the facility owner or operator shall identify
nd describe implementation of the response
actions. The facility owner or operator shall
demonstrate accessibility to the proper re-
sponse personnel and equipment to effec-
tively respond to all of the identified spill
scenarios. The determination and dem-
onstration 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 equip-
mentleXPerts, and
(5) AbIlity to implement the plan including
response training and practice drills.
1.7 l.2A recommended form detailing im-
mediate actions follows.
Oil Spii Response—Immediate Actions
1. Stop the product flow Ad quicidy to secure
purTçs. close v&veS.
etc.
2. Warn personnel . Enforce safety and secu-
rity measures
Oil Spill
Continued
Pt. 112, App.F
3. ShUt ofl l ftion
Motors. &ectflcal drcuhs,
sources,
open flames. etc
4 InitIate containment .
Around the tank and/or
in the water with od
boom
5 Notify NRC
1-800-424-8802
8. Notify OSC
7 Notify, as appropriate
Source FOSS. Oil Sp . 5 Regionse—€merQericy
zeI. Rerised December 3, i992
172 Disposa!Plaris
Proce-
1 72 1 Facility owners or operators must
describe how and where the facility intends
to recover, reuse, decontaminate, or dispose
of materials after a discharge baa taken
place The appropriate permits required to
transport or dispose of recovered materials
according to local, State. and Federal re-
quirements 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 mate-
rials, Including drums, tank part-s. valves.
and shovels.
(4) Personnel protective equipment,
(5) Decontamination solutions.
(6) Adsorbents, and
(7) Spent chemicals
1 7 22 These plans must be prepared in ac-
cordance with Federal (e.g.. the Resource
Conservation and Recovery Act (RCRAI),
State. and local regulations, where applica-
ble A copy of the disposal plans from the fa-
cility’s SPCC Plan may be inserted with this
section. including any diagrams in those
plans
1.73 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 aection shall describe how to contain
and control a spill through drainage, includ-
ing
(1) The available volume of containment
(use the information pr’ qd in section
1 4 1 of the response plan)
Materi& iS- Locabon RCRA per-
mtlmaretes i
-------
Pt. 112, App. F
(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 sep-
arators used in the drainage system:
(5) 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
In addition, facility owners or operators
must meet the inspection and monitoring re-
quirements 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. in-
cluding any diagrams in those plans
Note: The general permit for etormwator
drainage may contain additional require-
ments.
1 8 Self-Inspection, DrWs/Ererclses, and
Response Troininp
The owner or operator must develop pro-
grams for facility response training and for
drills/exercises according to the require-
ments of 40 CFR 11221 Logs must be kept for
facility drills/exercises, personnel response
training, and spill prevention meetings
Much of the recordkeeping Information re-
quired by this section is also contained in
the SPCC Plan required by 40 CFR 1123
These logs may be included in the facility re-
sponse plan or kept as an annex to the facil-
ity response plan
1 8 1 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
CFP. 112 ‘1(e) shall be cross-referenced In the
40 CFR Ch. 1(7—1—97 EditIon)
response plan. The inspection of response
equipment is a new 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 11 Tank Inspection
The tank inspection checkliet presented
below has been included as guidance during
inspections and monitoring Similar require-
ments exist in 40 CFR 112 7(e) DuplIcate In-
formation from the SPCC Plan may be
photocopied and inserted In this section The
inspection checkli8t consists of the following
items
TANX IMSPEC ’TIOil CHECXLIST
1. Check tanks for leaks, specifically looking
for
A drip marks.
B discoloration of tanks;
C puddles containing spilled or leaked ma-
terial,
D corrosion;
E cracks, and
F. localized dead vegetation
2, Check foundation for
A, cracks,
B discoloration,
C. puddles containing spilled or leaked ma-
terial;
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
In spec*0 Tank 511 Date Co imi ie
Environmental Protection Agency
TANK/SURFACE IMPOUNDMENT INSPECT iON LOG—Continued
Pt. 112, App. F
l. ... ,.U , ,.
T * ot Si.
Da is
spond),
Uaing the Emergency Response Equipment
List provided in section 1 3 2 of the response 4. Operational
plan, describe each type or response equIp- 5 Actual
ment, checking for the following quency of testing),
6 Shelf life
status/condition.
use/testing (last test date and fre-
and
(present age, expected replace-
Response Equipment Checklist merit date).
1 Inventory (item and quantity). Please note
2. Storage location, list and the
any discrepancies between
available response equipment
RESPONSE EQUiPMENT INSPECTiON LOG
(Use se oti respotise as a thedd stI
Date
Con rme ,la
-------
Pt. 112. App.F
1 8 1 3 Secondary Containment Inspection
inspect the secondary containment (as de-
scribed in sections 1 4 1 and 1 7 2 of the re-
sponse 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, drain-
age 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 discrep-
ancies in any of the above mentioned items.
and report them immediately to the proper
facility personnel Similar requirements
exist In 40 CFP. 112.7(e). Duplicate informa-
tion from the SPCC Plan may be photocopied
and inserted in this section.
1 82 FacilIty Drilts/Ezerclses
40 CFR Ch. I (7-1-97 EditIon)
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. sec-
tion 10. for availability) would satisfy a fa-
cility’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 ap-
proval 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 drillW
exercises. The internal exercises include:
qualified individual notification drills, spill
management team tabletop exercises, equIp-
ment deployment exercises, and unan-
nounced exercises External exercises In-
clude Area Exercises Credit for an Area or
Facility-specific Exerclst will be given to
the facility for an actual response to a spill
in the area If the plan was utilized for re-
sponse to the spill and the objectives of the
Exercise were met and were properly evalu-
ated. documented and self-certified.
(C) Section 112 20(h)(8)(ti) requires the fa-
cility owner or operator to provide a descrip-
tion of the drillFexercise program to be car-
ried out under the response plan Qualified
Individual Notification Drill and Spill Man-
agement Team Tabletop Drill logs shall be
provided in sections 1 82 1 and 1 8 22, respec-
tively. These logs may be included in the fa-
cility response plan or kept as an annex to
the facility response plan See section 1 33 of
this appendix for Equipment Deployment
Drill Logs.
1 8 2 1 Qualified Individual Notification Drill
Logs Qualified Individual Notification Drill Log
Environmental Protection Agency
Qualified Individual(s):
Emergency Scenario:
Changes to be Implemented’
Time Table for Implementation
1.8 2 2 Spill Management Team Tabletop Ezer-
cisc Logs Spill Management Team Tabletop
Exercise Log
Date’
Company
Qualified Individual(s)’
Emergency Scenario
Evaluation
Pt. 112 App.F
Time Table for Implem8ntation
1 8 3 Response Training
Section 112 21(a) requires facility owners or
operators to develop programs for facility re-
sponse training Facility owners or operators
are required by 112.20(hXS)(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 USCO’s Training Elements (or Oil Spill
Response, to the extent applicable to facility
operations, or another response training pro-
gram acceptable to the RA The training ele-
ments are available from Petty Officer Dan-
iel Caras at (202) 267—6570 or fax 267-4085/4065
Personnel response training logs and dis-
charge prevention meeting logs shall be in-
cluded in sections 1 83 1 and 1 8 32 of the re-
sponse plan respectively These iogs may be
included in the facility response plan or kept
as an annex to the facility response plan.
1.8.3.1 Personnel Response Training
Logs
RESPONSE EOUIP,AENT INSPECTION LOG—Continued
pJse section I 3201 the response an as a cheddistj
Inspector Date Comments
I I
Evaluation’
Changes to be Implemented’
PERSONNEL RESPONSE Ta&iui ic LoG
N
ame
Response ar.n /date and mm 01
ho
Pre .,rThon Irsnnp/date and rumber 04
,
1.8.3.2 Discharge Th-eventton Meetings
Logs
DISCHARGE PREVENTION MEETING LOG
Date:
Attendees:
S& ’issue .der ifIed R.qured ec 5on Irn04ern.ntabon thte
(A) CWA section 3l1(j)(5), as amended by
OPA. requires t ‘sponse plan to contain a
description of ty drills/exercises Ac- Date- —
cording to 40 112 21(c). the facility Company’
-------
Pt. 112. App. F
1 9 Diagrams
The facllit.y-speclfic response plan shall in-
clude the following diagrams Additional dia-
grams that would aid in the development of
response plan sections may also be Included
(1) The Site Plan Diagram shall, as appro-
priate, include and identify
(A) the entire facility to scale.
(B) above and below ground bulk oil stor-
age tanks.
(C) the Contents and capacities of bulk oil
storage tanks.
(Dl the contents and capacity of drum oil
storage areas.
CE) the contents and capacities of surface
I rnpoundmen t.s.
(F) process buildings.
(G) transfer areas.
(H) secondary containment systems (loca-
tion and capacity),
(I) ‘tructures where hazardous materials
are stored or handled, including mate-
rials stored and capacity of storage.
(JI l catton of communication and emer-
gency response equipment.
(K) location of electrical equipment which
contains oil, and
(L) for complexes only, the Interface(s)
(1 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 interlace is
defined as the last valve inside secondary
containment before piping leaves the sec-
ondary containment area to Connect to
the transportation-related portion of the
facility (I e . the structure used or in-
tended to be used to transfer oil to or
from a vessel or pipeline) In the absence
of secondary containment, this interlace
is the vatve manifold adjacent to the
tank nearest the transfer structure as de.
scribed above. The interlace may be de-
fined differently at a specific facility if
agreed to by the BA and the appropriate
Federal official
(2) The Site Drainage Plan Diagram shall, as
appropriate, include,
(A) major sanitary and storm sewers, man-
holes, and drains,
(B) weirs and shut-off valves.
(C) surface water receiving streams;
40 CFR Ch. I (7—1’-97 Edition)
(Dl fire fighting water sources;
(El 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
1.10 Security
According to 40 CFP . 112 7(e)(9). facilities
are required to maintain a certain level of
security, as appropriate In this section, a
description of the faculty security shall be
provided and include as appropriate
(1) emergency cut-off locations (automatic
or manual valves),
(2) enclosures Ce 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 informna.
tion Duplicate information may be
photocopied and inserted in this section
2 0 Response Plan Cover Sheet
A three-page torn, has been developed to be
completed and submitted to the RA by own-
ers or operators who are required to prepare
and submit a facility-specific response plan
The cover sheet (Attachment F—I) must ac-
company the response plan to provide the
Agency with basic information concerning
the facility Tbi section will describe the
Response Plan Cover Sheet and provide in-
structions for its completion.
2 1 General Infonnatf on
Owner/Operator of Facility: Enter the name
of the owner of the facility (If the owner is
the operator). Enter the operator of the fa-
cility if otherwise If the owner/operator of
the facility is a corporation, enter the name
A t’fl
Environmental Protoction Agency
of the facility’s principal corporate execu-
tive. 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 1.
dress, city, State, and zip code.
(3) FacUlty Phone Number: Enter the phone
number of the facility
(4) Lallftsde and Longitude: Enter the facil-
ity latitude and longitude in degrees, min-
utes. and seconds
(5) Dun and Brodstreet Number Enter the
facility’s Dun and Bradatreet number it
available (this information may be obtained
from public library resources)
(8) Standard Industrial ClassIficatIon (SIC)
Code- Enter the facility’s SIC code as deter-
mined by the Office of Management and
Budget (this information may be obtained
from public library resources).
(7) Largest Oi l 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 facil-
I ty
(9) Number of Oil Storage Tanks Enter the
number of all aboveground oil storage tanks
at the facility
(10) Worst Case Discharge Amount Using in-
formation from the worksheets in Appendix
D. enter the amount of the worst case dis-
charge in GALLONS
(ii) Facility Dislance to Nawgable Waters
Mark the appropriate tine for the nearest
distance between an opportunity for dis-
charge (i e, oil storage tank, piping, or
flowline) arid a navigable water
2.2 Appllcability of Substantial Harm Criteria
Using the flowchart provided in Attach-
ment C-I to Appendix C to this part, mark
the appropriate answer to each question. Ex-
planations of referenced terms can be found
in Appendix C to this part. If a comparable
formula to the ones described in Attachment
C—Ill to Appendix C to this part is used to
calculate the planning distance, documenta-
tion of the reliability and analytical sound-
ness of the formula must be attached to the
response plan cover sheet
2 3 CertIficatIon
Complete this block after all other ques-
tions have been answered.
3.0 Acronyms
ACP: Area Contingency Plan
ASTM: American Society of Testing Mate-
rials
tibIa: Barrels
bpd: Barrels per Day
bph: Barrels per Hour
Pt. 112. App. F
CHRIS. Chemical Hazards Response Iniorrna-
tion System
CWA: Clean Water Act
DOl: Department of Interior
DCC: 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 Commit-
tee
MMS Minerals Management Service (part of
DOT)
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
ECRA: Resource Conservation and Recovery
Act
EEC Regional Response Centers
RET Regional Response Team
ESPA Research and Special Programs Ad-
ministration
SARA Superfund Amendments and Reau-
thorization Act
SERC State Emergency Response Commis-
sion
SUWA: Sate Drinking Water Act of 1986
SI Surface impoundment
SIC Standard Industrial Ciassification
SPCC Spili Prevention, Control, and Coun-
termeasures
USCG United States Coast Guard
4 0 References
CONCAWE. I9 Methodologies for Hazard
Analysis and Risk Assessment in the Petro-
leum Refining arid Storage Industry. Pre-
pared by CONCAWE’s Risk Assessment Ad-
hoc Group
U S Department of Housing and Urban De-
velopment 198’1 Siting of H1JD-Aaslsted
Projects Near Hazardous Facilities Accept-
able Separation Distances from Explosive
and Flammable Hazards. Prepared by the Of-
fice of Environment and Energy. Environ-
mental Planning Division. Department of
Housing and Urban Development Washing-
ton, DC.
U S. DOT. FEMA and U S EPA Handbook
of Chemical Hazard Analysis Procedures
U S. DOT. FEMA and U.S EPA. Technical
Guidance for Hazards Analysis. Emergency
Planning for Extremely Hazardous 8ub-
stances
Sut ecvissue ,deni Iu5d Requ.ted ac1ioJ ln .plementai.on date
-------
Pt. fl2.App.F
The National Response Team. 1987 Hazard-
ous Materials Emergency Planning Guide
Washington, DC
The National Response Team 1990 Oil
Spill Contingency Planning. NationaL Sta-
tus’ A Report to the President. Washington.
DC. U S Government Printing Office
Offshore inspection and Enforcement Dlvi-
sloli 1988 Minerals Management Service.
Offshore thspectlon Program National Po-
tential Incident of Noncompliance (PINC)
List Reston. VA
A ’rTAcHME4TS TO APPENDIX F
ATTACHMENT F-i—REsPoNSE PLAN COVER
SHEET
This cover sheet will provide EPA with
basic information concerning the facil,ty it
must accompany a submitted facility re-
sponse plan Explanations and detailed In-
structions can be found in Appendix F
Please type or write legibly In blue or black
ink Public reporting burden for the collec-
tion of this information is estimated to vary
from 1 hour to 210 hours per response in the
first year with an average of 5 hours per re-
sponse This estimate includes time for re-
viewing instructions. scarching existing data
sources, gathering the data needed, and com-
pleting and reviewing the collection of infor-
mation Send comments regarding the bur-
den 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 Af-
fairs. Office or 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.
Facility Phone 140’
Latitude (Degrees’ North)
degrees, minutes, seconds
Dun & Bradstreet Number
Largest Aboveground Oil Storage Tank Ca-
pacity (Gallons)’
Number of Aboveground Oil Storage Tanks:
These numb’ y be obtained from pub’
lie library reso
40 CFR Ch. I (7—1--97 Edition)
Longitude (Degrees: West).
degrees. minutes. seconds
Standard Industrial Classification (SIC)
Code.
Maximum Oil Storage Capacity (Gallons) —
Worst Case Oil Discharge Amount (Gallons)
Facility Distance to Navigable Water. Mark
the appropriate line
0- V 1 mile — i4 ˝ mile — ˝—i mile — >1
mile —
APPLICABILITY OF SUBSTANTIAL HARM
C RrTERIA
Does the facility transfer oil over-water 1
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 containment’
that is sufficiently large to contain the ca
pacity of the largest aboveground oil storage
tank plus sufficient freeboard I.e allow for
precipitation’
Yes
No
Does the facility have a total oil storage
capacity greater than or equal to I million
gallons and is the facility located at a dis-
tance’ (as calculated using the appropriate
formula in Appendix C or a comparable for-
mula) such that a discharge from the facility
could cause Injury to fish and wildlife and
sensitive environments?’
Yes
No
Does the facility have a total oil storage ca-
pacity greater than or equal to 1 mIllion
gallons and is the facility located at. a dis-
tance’ (as calculated using the appropriate
‘Explanations of the above-referenced
terms can be found in Appendix C to this
part. If a comparable formula to the ones
contained in Attachnient C—Ill is used to es-
tablish the appropriate distance to fish and
wildlife and sensitive environrnent.s or public
drinking water intakes, documentation of
the reliability and analytical soundness of
the formula must be attached to this form
‘For further description of fish and wildlife
and sensitive environments, see Appendices
I, 11. and III Co 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 avail-
ability) and the applicable ACP.
Environmental Protection Agency
formula In Appendix C or a comparable for-
mula) such that a discharge from the facil-
ity would shut down & public drinking
water intake?’
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 re-
portable oil spill’ In an amount greater than
or equal to 10.000 gallons within the last S
yeara
Yes
No
CEBTIFICATION
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 Indi-
viduals responsible for obtaining Informa-
tion. I believe that the submitted Informa-
tion is true, accurate, and complete,
Signature.
Name (Please type or print):
Title:
Date:
[ 59 FR 34l 2. July 1, 1994, 59 FR 49006, Sept.
28, 1994)
PART 113—LIABILITY LIMITS FOR
SMALL ONSHORE STORAGE
FACILITIES
Subpart A—OH Stooge Facilities
Sec
1131 Purpose.
113.2 Applicability.
113 3 DefinitIons
113.4 Size classes and associated liability
limits rot fixed onshore oil storage facili-
ties. 1.000 barrels or less capacity
1135 Exclusions.
1136 Effect on other laws
AUTHORITY Sec 311(0(2), 66 Stat. 867 (33
US.C 1251(1972))
Souiece 38 FR 25440. Sept 13. 1973, unless
otherwise noted.
Subpart A—Oil Storage Facilities
113.1 Purpose.
This subpart establishes size classi-
flcations and associated liability limits
for small onshore oil storage facilities
with fixed capacity of 1,000 barrels or
1088.
•11S.2 Applicability.
§ 113.3
This subpart applies to all onshore
oil storage facilities with fixed capac-
Ity of 1,000 barrels or less. When a di8-
charge to the waters of the United
States occurs from such facilities and
when removal of said discharge is per-
formed by the United States Govern-
ment. pursuant to the provle1on of sub-
section 3fl(c)(1) of the Act, the liability
of the owner or operator and the facil-
ity will be limited to the amounts spec-
ified in *113.4
113.3 Deflnitions.
As used In this subpart, the following
terms shall have the meanings indi-
cated below:
(a) Aboveground storage facility
means a tank or other container, the
bottom of which is on a plane not more
than 6 inches below the surrounding
surface.
(b) Act means the Federal Water Pol-
lution Control Act, as amended, 33
U S C. 1151. eL seq.
(C) Barrel means 42 United States gal-
lons at 60 degrees Fahrenheit,
(d) Betowgi-ound storage facility
means a tank or other container lo-
cated other than as defined as “Above-
ground”.
(e) Discharge includes, but is not lim-
ited to any spilling, leaking, pumping,
pouring, emitting, emptying or dump-
ing.
(f) On3hore Oil Storage Facility means
any facility (excluding motor vehicles
and rolling stock) of any kind located
in. on, or under, any land within the
United States, other than submerged
land
(g) On-Scene Coordlna for is the single
Federal representative designated pur-
suant to the National Oil and Hazard-
ous Substances Pollution Contingency
Plan and identified in approved Re-
gional Oil and Hazardous Substances
Pollution Contingency Plans.
(h) Oil means oil of any kind or in
any form, including but no limited to,
petroleum, fuel oil, sludge, oil refuse,
and oil mixed with wastes other than
dredged spoil
(1) Remove or removal means the re-
moval of the oil from the water and
shorelines or the tal’ -if such other
-------
Environmental Protection Agency
§ 113.3
formula in Appendix C or a comparable for-
mula) such that a discharge from the facil-
ity would shut down a public drinking
water intake”
Does the facility have a total oil storage
capacity greater than or equal to 1 million
gallons and has the facility experienced a re-
portable oil spill 2 in an amount reater than
or equal to 10,000 gallons within the last 5
ye are ”
§ 113.2 ApplicabIlity.
This subpart applies to all onshore
oil storage facilities with fixed capac-
ity of 1,000 barrels or less When a dis-
charge to the waters of the United
States occurs from such facilities and
when removal of said discharge is per-
formed by the United States Govern-
ment pursuant to the provisions of sub-
section 311(c)(1) of the Act, the liability
of the owner or operator and the facil-
ity will be limited to the amounts spec-
flied in §113.4
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 indi-
viduals responsible for obtaining informa-
tion. I believe that the submitted informa-
tion Is true, accurate, and complete
Signature
Name (Please type or print)
Tttle
(59 FR 341fl. July 1, 1994, 59 FR 49006. Sept
, 1994)
PART 1 13—LIABILITY LIMITS FOR
SMALL ONSHORE STORAGE
FACILITIES
Subpart A—Oil Storage Facilities
Sec
113 1 Purpose
1132 Applicability
1133 Definitions
1134 SIze classes and associated liability
limits for fixed onshore oil storage facili-
ties. 1.000 barrels or less capacity
1135 Exclusions
113 6 Effect on other laws
A UT1toarrY Sec 311(0(2), 88 Stat 587 (33
USC. 1251 (1972))
SouRcE 35 FR 25440. Sept 13. 1973, unless
otherwise noted
Subpart A—Oil Storage Facilities
j113.1 Purpose.
This subpart establishes size classi-
ficattons and associated liability limits
for small onshore oil storage facilities
with fixed capacity of 1,000 barrels or
less.
§113.3 DefinitIons,
As used in this subpart, the following
terms shall have the meanings indi-
cated below
(a) Aboveground storage facility
means a tank or other container, the
bottom of which is on a plane not more
than 6 inches below the surrounding
surface.
(b) Act means the Federal Water Pol-
lution Control Act, as amended, 33
U S.C. 1151, et seq
(c) Barrel means 42 United States gal-
lons at 60 degrees Fahrenheit.
(d) Belowground storage facility
means a tank or other container lo-
cated other than as defined as “Above-
ground”
(e) D ischarge includes, but is not lim-
ited to any spilling, leaking, pumping,
pounng, emitting, emptying or dump-
ing.
( U Onshore Oil Storage Fac ility means
any facility (excluding motor vehicles
and rolling stock) of any kind located
in, on, or under, any land within the
United States, other than submerged
land
(g) On-Scene Coordinator 15 the single
Federal representative designated pur-
suant to the National Oil and Hazard-
ous Substances Pollution Contingency
Plan and identified in approved Re-
gional Oil and Hazardous Substances
Pollution Contingency Plans.
(h) Oil means oil of any kind or in
any form, including but no limited to,
petroleum, fuel oil, sludge, oil refuse.
and oil mixed with wastes other than
dredged spoil
(i) Remove or removal means the re-
moval of the oil from the water and
shorelines or the taking of such other
471
174-145 O—97—— 16
-------
§ 1134
40 CFR Ch. I (7—147 Ed lfton)
actions as the Federal On-Scene Coor-
dinator may determine to be necessary
to minimize or mitigate damage to the
public health or welfare, including but
not limited to, fish, shellfish, wildlife.
and public and pnvate property, shore-
lines, and bea thes
Additionally, the terms not otherwise
defined herein shall have the meanings
assigned them by section 311(a) of the
Act.
* 113.4 Size classes and associated li-
ability limits for fixed onshore oil
storage facilities, 1,000 barrels or
less capacity.
Unless the United States can show
that oil was discharged as a result of
willful negligence or willful mis-
conduct within the privity and knowl-
edge of the owner or operator, the to)-
lowing limits of liability are estab-
lished for fixed onshore facilities in the
classes specified:
(a) Aboveground storage
Size doss
Capauty (O
rels)
Limit
(dollars)
j
I I
I I I
IV
Upto lO
1110 ¶70
171 10 500
SO Itot000
4,000
60000
t50,000
200.000
(b) Belowground storage
Size dass
Capacity (bar
i s is )
Limit
(dol lars)
I
II
ill
N
UptotO
11 to 170
il l to 500
SOItot,000
5.200
78 .000
195.000
260000
4113.5 Exclusions.
This subpart does not apply to
(a) Those facilities whose average
daily oil throughout is more than their
fixed oil storage capacity
(b) Vehicles and rolling stock
* 113.6 Effect on other laws.
Nothing herein shall be construed to
limit the liability of any facility under
State or local law or under any Federal
law other than section 311 of the Act,
nor shall the liability of any facility
for any charges or damages under
State or local law reduce its liability
to the Federal Government under sec-
tion 311 of the Act, as limited by this
subpart.
PART 116—DESIGNATION OF
HAZARDOUS SUBSTANCES
Sec
116 1 ApplIcability
116 2 Abbreviations
1163 Definitions
116 4 Designation of hazardous substances
Au T hORITY Sees 3i1(b)(2)(A) and 501(a ).
Federal Water Pollution Control Act (
USC 1251 etseq)
* 116.1 Applicability.
This regulation designates hazardous
substances under section 311(b)(2)(A) of
the Federal Water Pollution Control
Act (the Act) The regulation applies to
discharges of substances designated in
Table 116 4
[ 43 F It 10474, Mar 13. 1918)
* 116.2 Abbreviations.
ppm=parts per million
mg=milligram(s)
kgtkilogram(5)
mg/l=milligrams(s) per liter (approxJ
ppm
mg/kg=millgram(s) per kilogram
(approx ) ppm
[ 43 FR 10474. Mar 13, 1915)
4116.3 DefinItions.
As used in this part, all terms shall
have the meaning defined in the Act
and as given below
The Act means the Federal Water
Pollution Control Act, as amended by
the Federal Water Pollution Control
Act Amendments of 1972 (Pub L. 92—
500). and as further amended by the
Clean Water Act of 1977 (Pub. L 95-
217), 33 U S C 1251 et seq , and as fur-
ther amended by the Clean Water Act
Amendments of 1978 (Pub. L 95-676),
Animals means appropriately sen-
sitive animals which carry out respira-
tion by means of a lung structure per-
mitting gaseous exchange between air
and the circulatory system;
AQuatic animals means appropriately
sensitive wholly aquatic animals which
carry out respiration by means of a gill
structure permitting gaseous exchange
between the water and the circulatory
system;
472
-------
§113.4
40 CFR Ch. I (7 )97 EditIon) Environmental Protection Agency
§ 116.3
actions as the Federal On-Scene Coor-
dinator may determine to be necessary
to minimize or mitigate damage to the
public health or welfare, including but
not limited to. fish, shellfIsh, wildlife.
and public and private property, shore-
lines, and bea ;hes.
Additionally, the terms not otherwise
defined herein shall have the meanings
assigned them by section 311(a) of the
Act
113.4 Size classes and associated li-
ability limita for flied onshore oil
storage facilIties, 1,000 barrels or
less capacity.
Unless the United States can show
that oil was discharged as a result of
willful negligence or willful mis-
conduct within the privity and knowl-
edge of the owner or operator, the fol-
lowing limits of liability are estab-
lished for fixed onshore facilities In the
classes specified
(a) Aboveground storage
Size dass
Capaoly (bar-
rela)
Um I
(dollars)
III
IV
UptolO
lItol7O
171 to 500
501 to 1.000
4.000
60000
150.000
200,000
(b) Selowground storage
Size ClaSS
Capac ’ty (bar.
is is)
Lizri,i
(dollars)
IV
Up to tO
1110170
17110500
50110 1,000
5.200
78.000
195.000
260000
113.5 Exclusions.
This subpart does not apply to.
(a) Those facilities whose average
daily oil throughout is more than their
fixed oil storage capacity
(b) Vehicles and rolling stock.
113.6 Effect on other laws.
Nothing herein shall be construed to
limit the liability of any facility under
State or local law or under any Federal
law other than section 311 of the Act,
nor shall the liability of any facility
for any charges or damages under
State or local law reduce Its liability
to the Federal Government under sec-
tlon 311 of the Act, as limited by this
subpart.
PART 1 16—DESIGNATION OF
HAZARDOUS SUBSTANCES
Sec
116 1 Applicability
116 2 Abbreviations.
1163 Definitions.
1164 DesIgnation of hazardous substances.
AUTHORITY Secs 311(b)(2)(A) and 501(a),
Federal Water Pollution Control Act. (11
U S C 1251 et seq
116.1 ApplIcability.
This regulation designates hazardous
substances under section 311(b)(2)(A) of
the Federal Water Pollution Control
Act (the Act). The regulation applies to
discharges of substances designated In
Table 116 4.
(43 FR 10474, Mar. 13. 1918]
* 116.2 AbbreviatIons.
ppm=parts per million
mg=mill igrarn(s)
kg=kilogram(s)
mg1l milligrams(s) per liter= (approx.)
ppm
mg/kg=mllllgram(s) per kllogram=
(approx ) ppm
(43 FR 10474. Mar 13. 1978]
* 116.3 Definitions.
As used in this part, all terms shall
have the meaning defined in the Act
and as given below:
The ACt means the Federal Water
Pollution Control Act, as amended by
the Federal Water Pollution Control
Act Amendments of 1972 (Pub. L. 92.-
500). and as further amended by the
Clean Water Act, of 1977 (Pub L. 95-
217), 33 U.S.C 1251 et seq; and as fur-
ther amended by the Clean Water Act
Amendments of 1978 (Pub. L. 95-S76);
Animals means appropriately sen-
sitive animals which carry out respira-
tion by means of a lung structure per-
mittirig gaseous exchange between air
and the circulatory system;
Aquatic animals means appropriately
sensitive wholly aquatic animals which
carry out . respiration by means of a gill
structure permitting gaseous exchange
between the water and the circulatory
system;
Aqualic flora means plant life associ-
ated with the aquatic eco-system in-
cluding, but not limited to, algae and
higher plants;
Contiguous zone means the entire
zone established or to be established by
the United States under article 24 of
the Convention of the Territorial Sea
and the Contiguous Zone;
Discharge includes, but is not limited
to, any spilling, leaking, pumping.
pouring, emitting, emptying or dump-
lag, but excludes (A) discharges in
compliance with a permit under sec-
tion 402 of this Act. (B) discharges re-
sulting from circumstances identified
and reviewed and made a part of the
public record with respect to a permit
issued or modified under section 402 of
this Act, and subject to a condition in
such permit, and (C) continuous or an-
ticipated intermittent discharges from
a point source, identified in a permit or
permit application under section 402 of
this Act, which are caused by events
occurring within the scope of relevant
operating or treatment systems.
LC5O means that concentration of
material which Is lethal to one-half of
the test population of aquatic animals
upon continuous exposure for 96 hours
or less
Mixture means any combination of
two or more elements and/or com-
pounds In solid, liquid, or gaseous form
except where such substances have un-
dergone a chemical reaction so as to
become inseparable by physical means
Na .itgable waters is defined in section
502(7) of the Act to mean “waters of the
United States, including the territorial
seas,” and includes, but is not limited
to.
(1) All waters which are presently
used, or were used in the past, or may
be susceptible to use as a means to
transport interstate or foreign com-
merce, including all waters which are
subject to the ebb and flow of the tide,
and Including adjacent wetlands; the
term wetlands as used in this regula-
tion shall include those areas that are
inundated or saturated by surface or
ground water at a frequency and dura-
tion sufficient to support, and that
under normal circumstances do sup-
port, a prevelance of vegetation typi-
cally adapted for life in saturated soil
conditions. Wetlands generally Include
swamps, marshes, bogs and similar
areas; the term adjacent means border-
ing, contiguous or neighboring;
(2) Tributaries of navigable waters of
the United States, including adjacent
wetlands;
(3) Interstate waters, including wet-
lands, and
(4) All other waters of the United
States such as intrastate lakes, rivers,
streams. mudflat.s. sandflats and wet-
lands, the use, degradation or destruc-
tion of which affect interstate com-
merce Including, but not limited to.
(I) Intrastate lakes, rivers, streams,
and wetlands which are utilized by
interstate travelers for recreational or
other purposes, and
(ii) Intrastate lakes, rivers, streams,
and wetlands from which fish or shell-
fish are or could be taken and sold In
interstate commerce; and
(iii) Intrastate lakes, rivers, streams.
and wetlands which are utilized for in-
dustrial purposes by industries In
interstate commerce
Navigable waters do not. include prior
converted cropland Notwithstanding
the determination of an area’s status
as prior converted cropland by any
other federal agency, for the purposes
of the Clean Water Act, the final au-
thority regarding Clean Water Act ju-
risdictiori remains with EPA
Offshore facrlrty 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
which 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:
Onshore facility means any facility
(including, but not limited to. motor
vehicles and rolling stock) of any kind
located In, on, or under, any land with-
in the United States other than sub-
merged land,
Otherwise subject to the jurisdiction of
the United States means subject to the
jurisdiction of the United States by
virtue of United States citizenship.
United States vessel documentation or
numbering, or as provided for by Inter-
national agreement to which the Unit-
ed States is a party.
A discharge in connection with activi-
ties under the Outer Continental Shelf
Lands Act or the Deepwater Port Act of
—n
-------
40 CFR Cli. I (7-1-97 Ed tlon)
Environmental Protecllon Agency
Acet l bromide
Acelyt cillonde
A c i ’ ofein
Ad.p.C acid
Aldnn
Ali 4 alcohol
Aftyl duonde
Aluminum stilate
Ammonia
Amrnoriwrn acetate
Ammoruum benzoata
Ammcnium b.cacbonale
Ammoieuns bdvon.ate
M,moniuns t ftuonde . -
Ammor.uni tasutfite -
Anunotsutn carbamale
AmmolsuIn cai nae
Ainmonum crilonde
Aminomum thromate
Ammor,uln ctitiaslc
the coast which is in direct contact
with the open sea and the line marking
the seaward limit of inland waters, and
extending seaward a distance of 3
miles.
Vessel means every description of
watercraft or other artificial contriv-
ance used, or capable of being used, as
a mean8 of transportation on water
other than a public vessel;
(43 FR 10474. Mar. 13. 1078, 43 FR 27533. June
26. 1P78, as amended at 44 FR 10268. Feb. 16.
1079.58 FR 45039. Aug 25. 1993]
*118,4 Designation of hazardou, sub.
stance.,
Ettiartal. e 1h 3 4 aldehyde acetic aldehyde
Glacial acetic acid mriegar acid
Acetic oxide. acetyl oude
2-ne lPty t lacto .’ uir le
hydroxy .sobutytor .Lrde
2 -propenal. acr lic aidehyde. acr,laldeflyOe
azatdehyde
Cyar .oetlryterre Furnigrain, Verrtor,
propeneilnle vinyl cyanide
Hexauleao .c sod
Oclatene. HHOPI
2 .propen .1 .cl. t .propenol .3. vinyl carbnoi
3 -cf aoropropetbe. 3c 1ito ropropyleno.
Chl o aflylene
Alum
Acid ammoraum Carbonate. emrnoruum hydrc-
en carbonate
Acid atnmonium fluoride, ajnmorutsn hydrogen -
0n de.
OsammorsurrI citrate, coic add dammoraum
silt
Ainmorvum ituoborate
AiTimonum fluoride --
Ammcvsum hydronde - . -
Ammereum oxalate ....
Antmorsum siricofluonde
Ammorvum auifamats ——
Ammonium sulfide
Anunoflum ijifds —
Ammoflum lailMta
Ammonium lh ’Ocyanate
Amly acetate
Antimony peritachonde
Antimony potassium laitrate
Antimony tr omide
Antimony SlcS’Jonde
Antimony trifluonde
AnOnybioxide -
Arser i tcdis t ilhde
Arsenic peettoxide
ksersc blcNonde
Arsenic tnox.de
Arsenic tn uliidO
Banurn Cyanide
Benoene
Benzo ic acid
Senzonits,!e
een4o ctiiorrde
Ben l thtor.de
Beryllium chionde
Beryllium fluonCe
Beryilii.rm nitrate
9ea l acetate
rti jtyl plithataf a
But ’nc acid
Cadmium acetate
Cadmium bromide
Cadmium Chloride
Calcium arsenate
Calcium aryeevte
Calcium caibde
CalcIum cluoni ate
Caburn cyanide
Calcium dodecyibenze
Cabum hypocflulonte
C .bw y l.
C .tio .,an
Ceton dstifde
Ceebon titracrionde
AsTimonium Iluceoborate. arnmciisjm
borciluonde
Neutral arnmonum fluoride
Ainmoraum fluosdicate
Animate. AMS. animervuni amrdoae4lats
Tartetsc add ammoflum salt
Amrnoruurn rhocianede, emmorsum
sultocyanata ammonium sullocyanrde
Amytecebc ester
Peat oil
Benanac ,l
Airline ciii. phenylanone. amLnobenzene.
aminophten. kyanol
Tartar emetic. tarbated antimony, tettairced
antimony. potassium anbmonylt -trale
Butler 01 antimony
Antimony fluoride
D.anbmony triovide. flowers a! sntimony
Red arsenic sulfide
Arsenic add enhtyddde. arsenic oxide
Arsenic d,Joiude. arsenroos chloride. ersenous
chloride, biller ol arsenic.
Arsenioris acid, ersen .ous Oxide. wine arsenic
Arsereovs sulfide. yellow arsenic sulfide
Cytfohiexatnene. beniol -
Benzeriecarboxylic acid. phenyllonmc acid,
drac 5 lc sod
Phenyl cyanide, cyanobenzene
Benoenecarbonyl chlonde
1 2-bensenedicarhoxytic acid Sbutyl eSter
iibutyi phithatate
Butano.c acid. eltiytacetic acid
Tncahciurn 0 arsenate
Caibde. acetyleno en
Calcium duoni. y&iow
manna
TABLE 116 4A—Usr OF HAZARDOUS SUBSTAI -ICES—.COnIInUed
1974, or which may affect natural re-
sources belonging to. appertain Ing to, or
unier the exclusive management author-
ity of the United States (including re-
sources under the Fishery Conservation
and Management Act of 1976). means: (I .)
A discharge into any waters beyond the
contiguous zone from any vessel or on-
shore or offshore facility, which vessel
or facility is subject to or is engaged In
activities under the Outer Continental
Shelf Lands Act or the Deapwater Port
Act of 1974, and (2) any discharge into
any waters beyond the contiguous zone
which contain, cover, or support any
natural resource belonging to, apper-
taming to. or under the exclusive man-
agement authority of the United
States (including resources under the
Fishery Conservation and Management
Act of 1916)
Public vessel means a vessel owned or
bareboat-chartered and operated by the
United States, or a State or political
subdivision thereof, or by a foreign na-
tion, except when such vessel is en-
gaged in commerce
Territorial seas means the belt of the
seas measured from the line of ordi-
nary low water along that portion of
Common name
CAS No
Synonyms
isomer,
CAB No
The elements and compounds appear-
ing in Tables 116.4 A and B are des-
ignated as hazardous substances in as-
cordance with section 311(b)(2)(A) of
the Act. This designation includes any
isomers and hydrates, as well as any
solutions and mixtures containing
these substances. Synonyms and Chem-
ical Abstract System (CAS) numbers
have been added for convenience of the
user only. In case of any disparity the
common names shall be considered the
designated substance.
TABLE I 16.4A—L;ST OF HAZARDOUS SUBSTANCES
l362
12125018
1336218
6009107
5972735
14258492
16919190
7773060
121357 5!
10 596040
10192300
3184292
14307438
1762954
625637
62533
7647 189
28300745
77896l9
10025919
7783564
1309844
1303328
1303282
7784341
1327533
1303339
542621
71432
65850
100470
98884
100447
7787475
1787497
7787555
13597994
123864
Acetaldehyde
Acetic acid
Acetic arrliydnde
Acetone cyarichydnn
Common name
CAB No
Synonyms
Isomers
CAS 140
Aci 7 le nut nt e
76070
64197
108247
75865
506967
79367
107028
107131
124049
309002
107 186
107051
10043013
7664.417
631618
1863 534
1066337
7789095
1341497
10192300
1111780
506816
12125029
7758989
3052835
‘so-
eec-
tori-
no-
Sec-
ten-
‘SO-
sac-
Sac-
tart-
B i xttiuar mne
Acetic acid ammoneum. Sail
Acetic acid butyt ester
109739 I ‘arninobtjlarte
Mimoes urn SftSflOlOflYJte.,
Aslimorsum ssat.. sat etninonac, salmiac,
110191
10546’
54088 i
7881’
51349
13952844
75W
84742
507926
543908
7789426
50108642
7776441
52740166
75207
13785190
592018
26264062
7776543
133062 O ,thocrde-406. SR—406. T darod,49
63252 Sean . ,, . —
1563862 Furadan
75150 Carbon b .sutr,Oe d ’tbocatbor* wliydrids
56235 Tetrscfloeomelhiane Petchoromithss* - . -
57749 Tcxt 4or, i an
gebrmn. yeltoni uitra-
A i1 A
-------
116.4
;pIon’ Is — •_. . — —
r4 ob enz sn. .. . . —.
- .- , .. - -
:N p nl oa
o os sod . . -
vom - - - . -
:PTOITIC liaIse. . — .. —
omo
o lItOi4 bmal. ..
::4 1C towwsts
-
--
:upnc OxsI.te
. ‘c w ill ie
si4 late wnmoniatad
uç3riC Ilitrat.
:yanogen 4onde
4.0 sad
4-0 ester
)OT
) lazlnon
),carnba
)d cn..
o8enzens
)d1 opr0pane
eriedct lcropropar i.
(m iz6j ie)
2- oprop.onc -
)i e4 ,fl . —
).e lh 4am if*
hmeth 4an ne
hrntrobenzene (mued)
75003
I 06901
e 7e
2921882
7790945
1066304
11115745
10101536
10049055
7789437
$44163
14017415
56724
1319173
4170303
142712
12003036
74.47394
3251235
5893663
7758987
10380297
815827
506774
110827
94757
94111
94791
94604
1320169
1928387
1928616
1929733
2971382
25168267
53467111
50293
333415
1918009
1194656
117806
25321228
26635197
40 CFR Ch. I (7—1—97 EditIon)
0- .._ -.
p ...
o ....
Pw. . -
1.1 .
1.3
1.3 . — -
2.3 ...._ . -
if,.-
0
p.-
(2.5-),
(2.4.)
(26.)
24
2.6
3,4
95501
106487
75999
78675
142289
$42756
78886
Environmental Protection Agency
Fonaldehyde
FeimIc sod
Fisnsnc bad -
FsL -.
Lead titsIs
Lead uSd1
Lead Sulocysnati
dane -
Ljtt m dwOmate
MUa Oaon
Maleuc sad -
Me o me IPtr
Me c cyanide.
klercu’ic isV-all
Merasuc SiaIale
Ueraj C —e
27176870
115297
72206
106898
863*22
100414
107153
60004
106934
107062
1185575
2844874
56468874
770 8050
7753508
10421484
*0088225
10045803
7756943
7720787
7782830
50000
54188
110178
56011
86590
75445
77474
76.410*0
164313
74906
7783064
76795
42504461
143503
30*042
1754409
7845252
10102454
1756954
13814965
7783462
10101630
10099748
7428480
1072361
52652592
7446*42
1314870
592870
5889 9
14307358
121755
110157
*06316
203657
59204%
10045940
7783359
592858
0 l .sy,ton - - - -
OCMU. C M L ) - - ... ... - . - . - -
TNodan...
Meruchin. Compound 259 -- -. ._ — -
.ct40 iC O9h4er*Oald,
l6stste. .11 14 me11uyt ina. plloephorochthloate
I2dan* loet1an... . .. - - . —
Ededc sod. HavldoSe. (eensde*ulo)-
t*saceVc er d
* ,2 .dbromoethane et 4en . d1rom de sym-
d on 1oethyien ..
I .2dddome11 lsne pym- 4 oe#uane -
Anvnorulom limc dV-st, - - -
Ammo.ulum limo 04 . 1 5* .
F1oeam ta.ko u,tr l dond. -
Ir ui isV-ste ... - .
Fin-c peri ifste. tonic sesqulsuttsto. ten-Ic
t ers u thsts
MQ7YI salt. Iron ammon.um liMate
Iron c 4onde. won chdula,de h-on otocl4orai .
Green vutrud
Iron vuind. Iron suliate. koru protosuttste
Methy4 akiehyde. methanal. tonnaIrn
Methano4c sod
Trans-bjtenedouc sod. trsna-1.2-
ethyIene carboxy*tc ead. bolettc add.
aitomaleic acud
24ti&dellydo. pyroinuac lidohyds .... -
Gusa V-on. azhmelhyl -
VeIs -I04. On-n-ox. H.ptagrsn — —
Perd u lo i’ocydcpenta6er u. .. . -
Hy&og.n ciulonde. munitic sod -
flUO 1 C Sod .., -
Hy&ocysn c sod .. - -
Hy*o*utiunc sod stAhs hydr)dp
2 -methy l-I.3-butac9ene
Iuocob s I e
Lead dIluo ’ido. plumbous Nuoride
Calera -
Lead t4loCyans*e -
Gamm.-BHC. Qwuun- a -benzene hexact4orld e
-..
Cus-butenedoic sod. ci s’1.2-
ethy$enedcatox 5c sod. tOXIC acid
2,5-turwóone, a3-bjteniduo.c anh de,
toucAc irrtrych d.
M e si ,tQI - . —
Mercury cyanide -
Mert*.vy must.. mercusy peintrate
Meia.wy suflale. rnero .wy peisullale
Mercusy thiocyanate merosc scifocylnats.
rnerajnc 3J.4IOCyBnide
• 116.4
TABLE I 18.4A—UST OF HAZARDOUS SUBSTA CES—Contrnued
Comm nine
CAS No
Synonyms
homes
CAS No.
TABLE 1 16.4A—UST oc HAZARDOUS Sussw-ic S—Continued
Convnon nan-u.
CAS No
Synonyms
isomers
CAS No
108394
95487
108445
MorOb .nZen .. bin-situ. d 4oiIds
T, I tr lol on 15*iw l o -
SijIwuc chulomluychin . ______ —
C?vomc s idi , dvomkwn frioxids
Cob&tlormat.
Cobalt suitamate -
CoR.I..
C tUYUC sod
I .fy&ox_n. -. - - - -- - . — --
2’ u1sflal prop 4ene ltdettuyde -
Cower scatsl.. aystallzed Yerchs
Cower scetoarserste, ce e scsut.
srseu’wte. Pans green
Cc p oetchto.ide - -
Co er nitrste - - . ,. - .
Co e ozaiate
Cower sullale -
Ammoniated oupper suttate -
Copper taitste
HSc&lyd .O benZene . h exameth 1 4ene.
hexanapt lthene
2.4.cbchlorophenowyacebc sod -
2.4.chctuloc0iuenoxyacetic sad ester ,.
pp-DOT
Dupolene. CuspId. Ba u n. Spectrsode -
2-roethoxy-3.6-chchlorobenzo.c sad —
2.8 .d.cNoroberuzon ibdo, 2 6-D eN
Phygon. ch on nona
Parsmoth (Pats) - - - - . —
Propylene chcNonde . .. —
0-0 mets. Vidden 0.
0a ls on
2.2-d.ctdooxuuhl chmath I phosphate. V ona
D u(p.d u lorophen,lHncth lo r omethy lcsvbncl.
DINC. ch hol
AJ .
Oun it,obenzcl - . - - -
- -
- - - -
Dodecft .nsanesistovulc sod
End -
E84on —— — . — - -
Ethytenzins —
Ethylen. uSvnIns — .
Ethylenschw*u.4s8sacedo sod
(EDIA)
Ethylene omlds — — — — .
EV i line cr6.
Fin-ic anspousun dfr.t. -
Fin-Ic snumorsum exaleti _. -
Fsi ’r lcd r lor lds — ,_., — —
Fin-ic fluorids ._.. —
Fin-Ic reV- mis — ...... — -
Fin-ic what. ....... —
Ferrous smmonlum suIte -
Ferrous ctulonde
FOrTOUS what. —
neeaoreocyouopent.dene
H odsVnc sod - -
HychO Ic sod
l o en cyanide - . - - -
OQen li46di
_in.
i sc xopan dwnuie
9odsCy%e u%te(* S ui tOn at i
Lsadscetsts ,._ .. ..... ._ ._. -—
l eadesens i s - .. - -
L..ddulovtd.
Lead hluoborsi. -
Lead xi de - - - -
-
Load rulV-.te .... — . —
15.6 steersI. . -
26952238
5003198
75990
62737
115322
6057*
109897
124403
25154545
hrV-opI%eno l
hrV-c lo luene
CN u. c$m.oni 1 1 3.3.4.5.5.5a.5b.S-
deaOOctatuy O-1 ,3,4-madu.n 2H-
cydobuts( pen *alen-2-on e
Sugcfhe ad . -
51285 Alddesi
25321146 ONT
85007 Aqusodo
2764729 Deztrone, RegIon.. Ququat d bromde -
Slssrlc sad lead salt
99650
528290
$00264
329715
573568
121142
638202
810399
-------
§ 116.4
40 CFR Ch. I (7—1-97 EdItion)
Environmental Protection Agency
§ 116.4
TABLE I 16.4A—IIST OF HAZAROOUS SuBSw, CES—Continuod
Convnon name
CAS No
Synonyms
Isomw’s
CAS No
TABLE 11 6.4A—IJsT OF HAZARDOUS SuBsr CEs—COnhtnued
CorTwnonnem.
CASNo
Synonyms
Isomeri
CASN0
m-
0-. —-
p..
Mita —.
Pwa
554547
88755
100027
88722
99081
99990
Mar so.js strati .... .
M m . -
Mad methso st. - . -.
ethpara6 on. . —.
Mex.acartate
Mlh. lamu* - -
M methyIam.ne
Naiad
N a p l l lhalene
Nerscs od
NdC& an,mom mi aitats -
N elc l onde
Ndel y ox.de - - -. -.
N e4 nitrate
N M suilat. _... . - .
Ncnc sod —.
N trobenzene —
Nrtr gen Souds
Nulmphenol (mix.d)
Nitrototuene
P azaformi ld ehyd e
Parathion
Pentachlomphenol
P nd
Pt io gene
Phosp o sod
Ph -
Phosphorus Osythlci’ide
Pt 1040 1ronjs p ntasulfrda
Phosphorut tncNonde
Polythonnated biphenyls
Po1ass um arsenate
Potassium arsenite
Potasarum bthromate
Potat ium civomate
Potassium cyanide
Potassium hydiozide
Potassium permanganate
Propag ile
Piogionic sod
Proponic anhydnde
Propytene oxide
Pyrethrins
Otenotine
Reso rcrncl
Selenium oxide
Silver nude
Sodium
Sodium arsenate
Sodium arsefute
Sodium tadvomal.
Sodium bfluord .
1789867
10415755
72435
7493 1
80828
7786347
315184
75047
74895
300185
91203
1338245
15699180
37211055
7718549
12054481
14216752
7786814
7697372
98953
10102440
25154556
1321126
30525894
58382
87865
108952
75445
7664382
1723140
10023873
1314803
7719122
1336363
7784410
10124502
7778509
7100006
151508
1310553
7722647
2312358
79094
123626
75569
121299
121211
91225
106463
7446084
7761888
7440235
7631692
7784485
105880 ,9
1333631
M ix yp .oton itrate .... ..... .. --
OMDT. methoxy .OOT .._
Mithanethol. merc omethwss. miUs6l
exjlflty&ats. tNometh 9 l .Ioshol
Methaayt.c aod methyl ester. metis 1 4-2 .xneth .
y t-2 .poç teno*te.
N rtrox. 80 . ——
Zedran__. .. .....
Ethytarnlni. w4noetharie ... - . .. — - —
MethylarTene. aminomethane -
D.bmm .... -
White tar. t. camphor. napNhalirs
Cydohexanecarbosy5c acid.
obenroic ad
Ammomissi redeut suitut.
N.dcetotni d4oi .. ..... ........ . . —
N eto hydioxide . . . -.
Ndielous s i4tete .
Aqja i crbs . - . . -
l4trobensol. 040! matane
Nitrogen tetrioxide
Paraform. Fomagen.. Informal. pciynsenzed
Irmaldehyde. polyoxymathylen.
DNTP.N irart .. ..
PCP. Pant. -
Carbohc acid. phenyl hydiosids.
hy&Oeybenrene. oxybirizene
Ocliosgerie. Caltonyl d4oiids. d4oroloimnyl
thloride
Oithoçthosphone acid
Blada phosphorus. red phosphorus. white
phosphoruL yellow phosphorul
Phosphocyt thlozrde. phosphorus d itoiide
Phosphonc gullide. thophosplsonc anhy&lde.
phosphcius persuiSde
PhOSPhOrOUS thtonde
PCB. Arodor. potychlonnated diphen)ls
Potassium metaarsorrte —
Potassium diotvomale
Potassium hy&ate Caustic potash. polassa
Chameleon mineral
Om it e
Propanc.c acid. methytacetic acid. ethylformic
acid
Propanoic arthydnde. methylacetic arthydnde
Propane oxide
Pyrethnn I ——
Pyiethnn II . . . —
I -benrazirie benzo(b)pyndine. teuocclrne.
chirieleine. leucol
Rasorcin. 1.3-bensenedol, meta-
lyd!oxytenzene
Seenium dioxide
Nbc acid silver (1.) slit Linar caustic
Natr tum . .... _.. . ..
Disodum arsenate .. —
Sodium metlarsenite .... ..
Sodium didvomat.. -- -
8odumbsuil lt.
Sodium dromate . ._.... . —
8odsmcyw4de.. .
Sodium dodecytenzenes titonals
Sodum8uonde
Sodium hydioss4t.de.. .. . -
Sodium hy*oside .
Sodium —. - . -- . -
Sodium methylat. ...
Sodium nitilie
Sodium phosphate. d.bbs.c
Sodium phosphate. b’ibesic
Sodium slienit. -. ... _. — —
Syontum dYomate . —
Stiydlnirss .... .. ... ... -
-
- -.. -
2.4.5-T.dd
24 .5 .T sinkisi _.
2.4.5.1 eaters . - -
2 .4 .5-I salts .... - -.
TDE.
2,4.5—TP acid.
2,4.5-TP esters
T.traethyl lead _. . -
T.traeUsyl pyrophospitate
Thallium stilate
Tolvene
Tosaphene
Trldt i lc rfon
Tr lcNorethytene
Tridilorephenol
Tnsthanc lamine
dod.cy snzenes u itonate
TtWU ’ i$amtn. . ..... — -
Tflmsthytansne .. _.
(Jr s i 1 l t1t e ..__ —
Uranyl stale _..._. __._ ..... - --
Vsi dtJfl pellosids -_ — —
7631905
7775113
143339
25155300
768149.4
16721805
13 10732
7881529
10022705
124414
7632000
7558794
10039324
10140655
1785844
7601549
10101690
10381894
7158294
10124561
10102188
7782823
7789062
57249
100.423
7664939
12771083
93765
8669977
1319726
3813147
2545597
93798
61792072
1928478
25168154
13580991
72548
93721
32534955
78002
107493
10031591
7446186
108883
8001352
52686
19016
25167822
27323417
121441
75503
541093
10102064
36478769
1314621
Sodium add suflitO. sodium hydiogen sutitte
%ifliaijndte .. .
Sodium hydiogen Sut8de
Ceuitic soda, soda t ye. sodium hydisle
Bleadi
Sodium methoxide
Vinytertoene. plienytethytene. styrol.
stynolene. cinnamene. cirviamol
04o 1 ’ntr.d.o l eum.
Suihe thlorlde. - - . - . ... -
2.4,5-bld* tlorophenoeyaoebc add .
Acetic add (2.4,5.4rlddorophenosy).compound
with N.N -dmethylmethansmlrs. (I I)
Acetic add 12.4. 5 .Md4oroçthsnory) -cornpourid
whh N nethylm.tiisiian4ne (I I )
Acetic acid (2,4.5 .trIdiIorophenosy)-esmpound
with I -imino-2- opanof (II )
Acetic sod (2.4.S4nctslorophenoxy) .osmpoi, - id
with 2.2 ’2 ” -xsb,Iotns lethenol) (I I)
2.4.5-trlditorophencxyecebc esters
ici4c
‘alt
000
Propano.c sod 2—(2.4,5—tr.chloroghenoxy)
Propano.c sod. 2—(2.4.5 -4ridiIorophenoxy)-.
isooctyt ester
Lead tetraethyl. TEL
TEPP -
TcluoI mothylbenzene, phenylmethane.
Metheode
Camphechtoir
Diplerer
Dytox
Ethylene Siclil000e
Collunoad. Dowiode 2 or 2S. Om&.
Ptienact$oq
TMA .
Vanadicanhydide. venadic add thy de..
(2 3 4.)
(2.3,5-)
(2.3.6-)
(2,4.5.)
(2.4.6-)
(3.4.5 .)
*5950680
933788
933755
95954
88062
809198
. 1 170
-------
§fl6.4
40 CFR Ch. 1(7-1-97 EditIon)
Environmental Protection Agency
TABLE 11 6.4A—LIST OF HAZARDOUS SUBSTANCES—Continued
TASI.E 11 6.4B—LIsT OF HAzARDOUS
SUBSTANCES BY CAS NUMBER—Continued
Cannon name
Common naina
CAS No
Synonyma
Iaameta
CAB No
Vanad l suttate
27174136
Vanadc eiifate, vanathim Slate
- .
.
- —
Vin 4acetate -
108054
Acebcacidethyieneether -
.-
. _ .
- —
Vin)lidene dhtonde -
.
75354
1.l-dthtorethytene - - - - -
l.l- dtroethene - -
.
— — . —
. —
-
Xylene (mixed) -
1330207
Oimethytenzens
Xytot - - ..
.
.
m- -. -
0- —
108383
95478
r—----
106423
X Ieit - -
1300716
Dxneth 5 lphenol. hy&axy me1hytbenzene
- - -
— — .. -
- .. - —
Zinc acetate
.
557348
— _ - — .
-
Zinc ammomum ctdonde
14639975
14639986
52628256
... -. -
- -- - -
.
. - .
.
- - —
-
- -
Zinc borate
1332078
— — - -
._ —
Zinc bromide - - -
7699458
- - - - ...
.
- - -.
Zinccartonate -
.
3488359
-
.
Zinc chonde -
.
1646857
Butter of zinc .. . -
.
— -
Zinc cyanide
557211
- -
Zinc fluoride -
Zinc tamale -
Zinc h tosiil8te -
7783495
557415
1779864
-
.
.
Zinc nitrate
1779888
.
Zinc phenolsuttonaie
127822
Zinc suifocaitolate —
.
Zinc phospisde
1314847
.
.
Zinc sitcoftuoride
16871719
Zinc fluosilcate - -
Zinc sulfate
7733020
While n,tnoi. zinc sitnof. white copseras
-
Zirconium mOxie
13746899
Zirconium potassium fluoride
16920958
Zirconium sulfate
146.4.4612
Disuifatozirconic acid -
.
Zirconium tetract4oride
10026116
TABLE 116 4B—LI5T OF HAZARDOUS
SUBSTANCES BY GAS NUMBER--Continued
CAS No
Common name
TABLE 116 48—LIST OF HAZARDOUS
SUBSTANCES BY GAS NUMBER
CAS No
Common name
TABLE 116 48—LIsT OF HAZARDOUS
SUBSTANCES BY GAS NUMBER—Continued
CASN 0
Common name
107131 — — - - —
107153 — —
107186 — ._ -
107493 — _.. - -
107926 —
108054 - -
108247 -
108316 -
108383
108394 - -
108463 -.
108883
108907 — - - -
108952 — -
109739 — — -
109891
110187 -.. —
110178 — -
110100 - -
110827 -
115297 -
115322 -
117606 - —
121211
121299
121448
12 1755
123626 -
I 23864
123922
124403
124414
127822
133062
142712
143339
151508
2950 ”
300765
301042
209002.
315184 - - -
329715 -
330641 -.
333415 - - —
774
506876 -
967
513495 - —
628290 ---- - —
540885 - -
541093 — -
542621 —- - -
543908
544163 —.
554847 .
557211
557348 — - - -
557415
583122 - - -
573568 __. —
592016 _. - - -
592041 L.._ —
592658 ....
592870 -
825161
626380
628637
63l6 18
815827 — — -
50293
51285
52686
56382
56724
57249
57749
58899
60004
60571
62533
62737
63252
64186
64191
65850
67663
71432
72208
72435
72548
74895
74908
74931
75047
75070
75150
75207
75445
75503
75649
75865
75990
754.46
El hyfenedai lVne
Altyl alcohol
Tetreethyl pyrophosphete
n-8u * acid
Vinyl acetate
Acetic ar*htide
Matelc enhyflide
rri-Xylene
m-Cresoi
Resorciriot
Tot uene
Chtorobenzene
Phenol
ri-Butyiamine
Dieth y lamine
Mateic acid
Fijmaric acid
iso-Butyi acetate
Cyciohexane
Endosuttan
Deosfol
D one
Pyrettrnn
Pyrethnn
Tnethylarmne
Matatirion
Propionic anhyctnde
n-Butyt acetate
iso-Amyl acetate
Dirsettiylamine
Sodium methylate
Zinc phenoiuuttonate
Captan
Cupnc acetate
Sodium cyanide
Poiaaaium cyanide
Methyl parathion
Disijttcton
Naiad
Lead acetate
ftJdiin
Mexacarbate
2 5-Dinitrophenof
O iuion
Oia.zinon
Cyanogen Stride
Arnmoraurn cabonate
Acetyf bromide
94-
o-Oawtrobenzene
tart-Butyl acetate
Uranyl acetate
Barium cyanide
Cadimisn acetate
Cotattoua formata
m-Ni t rtEhenol
Zinc cyanide
Zinc acetate
Zinc tamale
Ethion
26-Dimtrcpheilot
Caicitan cyanide
Meraa-ic cyanide
Meroinc thiocyanata
Lead ttaocyanate
fart-Arnyt acetate
sec-Antyl acetate
n-Amyl acetate
Ammorsurn acefate
Cupric taitate
Formaidehyde
D OT
2 4-Dinutrcphrnol
Tnchtorlon
Paiathion
Coumaptios
Strychnine
Chtordane
Lindane
Eihyienediamnete
acid (EDTA)
Dirldiin
Aniline
Dch rcs
Carbaryl
Formic acid
Acetic acid
Benzoic acid
Ct4oroform
Bensene
EnSin
Methoaych ior
TOE
Monomethylamine
Hyecqen cyanide
Methyl mercsplan
Monoethylamine
Acetatdehyde
Carbon óadflde
Calcium carbide
Phosgene
Tnmethytamine
fert-Butylemine
Acetone cyariohyditin
22-D,thtoropopoSc acid
Heptact4or
1066304
I066337
1072351
1111780
1185575
1194856
1300716
l303282
1303328
1303339
130 (1644
1310563
1310732
1314621
1314503
13148 .41
1314870
1319773
1320t89
1327533
1330207
1332076
133383t
1336216
1336363
1338245
134 t 497
1762954
1863634
1918009
1928387
1928478
1928616
1929733
2545597
2764729
2921882
2944674
2971382
3012655
3164292
3251238
3486359
5893663
5972736
6009707
6369966
7428480
7440235
7446084 —
7446142 - —
7447394 -
7556794 -
7601549
7631892
7631905
7632000
7645252
7646857
7041010
7647189
7664382
7664393
7664417
7664939
768t 494
7681529
7697372
7699158
7705080
71 18549
78002
78795
788 t 9
79094
793 t 2
79367
80626
85007
86500.
87865
88755
91203
9 1225
93765
93798
94111
94757
94791
94804 -
95476 —
95487 — .
96011
98884
98953
99650
100027
100254
100414 —
100425 - -
1004 .47 -
190470 -
*05464
106423 -
106445
107028 -
10705 1 —
Ctvomic acetate
Ammoreum tacarbonate
Lead stearate
Arnmonium carbamale
Femc ammoreum citrate
beM
Xylenct
Arsenic pentoalde
Arsenic dsutltde
Arsenic slsiAflde
Antimony tnoatde
Potassium hy&oatde
Sodium hydioxide
Vanadium perttcxide
Phosphorus pentasuiride
Zinc phospidde
Lead stiltide
CreS (mixed)
2.4-C ester
Arsenic uioxide
Xytene
Zinc baste
Sodium bfluonde
Ammorsum hy*oride
Pofyditornated taphenyls
Noptitherac acid
A,nmomum bifluonde
Amrnomum thiocyanate
Aminoreum benzoate
Decxmba
2 4-D esters
2.4.5-1 otter
2.4-0 ester
2.4-0 ester
2 4 S-T ester
Oiquat
Ch iorpynios
Fernc ammonaim oxaf ate
2 4-0 ester
Aminorsum citrate. dibeac
Ammorsum tartrxte
Cupnc nitrate
Zinc carbonate
Cupnc oxatata
Ainmomum oxalate
Ammomum ozaiate
2.4.5-T ester
Lead atearate
Sodium
Selenium oxide
Lead sifate
Crp chonde
Sodium phosphate. dibeac
Sodium ph Osphate. lnbaaic
Sodium wseriale
Sodium bisul6te
Sodium ntnte
Lead arsenate
Zinc chionde
Fly&cctdonc acid
Antimony pentaditorde
Phosphoric and
Hy*ofluorc and
Ammonia
Sulfuric and
Sodium fluoride
Sodium hy tochtonie
Nitric acid
Zinc bromide
Femc d4onde
Nickel d4orsda
Teiraathyf iead
Isoprene
iso-Butyixmine
Propiorec acid
lso-Butync and
Acetyl chloride
Methyl metriaci-ylate
Cuttiion
Pentachtorophenof
o-Nitrsçiherof
Naphthalene
Otanctine
2.4.5—T acid
24$-T ester
2.4—0 eater
2A—0 aed
2.4—0 ester
2.4-0 Butyl eater
o-Xytene
o rnS
Fislural
Benzoyl dtide
fitrobenzene
m-Dirstrobenzene
p4litrophenol
p-Oiiairobenzene
Ethyibenzene
Sfyrene
Beiisyl c hloride
Benromtn le
sec-Butyl acetate
p-Xytene
p-Cresct
Aaoiein
PJt 4 dhlonde
-------
§ 116.4
40 CFR Cit I (1—1-97 EdItion’
7719122
7720787
772264?
7723140
7733020
7758294
7758943
7756954
775698 1
7773060
7775113
7778441
7778509
7778543
7779864
7779866
7782505
7782630
7782823
7782667
7783359
7783462
7783495
7783508
7783564
7784341
7784409
7764410
7784465
7785844
7 786347
77868 14
7787475
7781497
7787555
7788989
1789006
1789062
7789095
7789426
7769437
7 789619
7790945
800 1352
10022705
10025673
10026919
10026116
10028225
10028247
10039324
10043013
10045893
10045940
10049055
10099748
10 )015.38
10101630
10101890
10) 02064
10)02188
10102440
10132464
10108642
10124532
10124568
10140655
10192300
10196040
10361894
10380297
— th onde
Ferrous gullets
Potassium permanganate
Zinc st#ate
Sodrurn phosphate. tritasic
Ferrous chloride
Lead chloride
Cupric sulfate
Ammoivum sulismete
Sodium cSlrOrrtale
Calcium arsenate
Potassium bictvomate
Calcium flypocfUade
Zinc hŘosultite
Zinc ntlrate
Ch lorine
Ferrous sultate
Sodium selerute
t4vtsous n h ate
Merojnc sullale
Lead fluoride
Zinc fluoride
Fernc fluoride
Antimony tritluonde
&senc tnchloride
Lead arsenate
Potassium arsenate
Sodium assents
Sodium phosphate, tribasic
Meviriphos
hietcet sulfate
Berjlium chloride
Berpilium fluoride
Ber’ 1lium Miate
An,monutn civomate
Potassium chrornete
Strontium dwornate
Arunorwsrt\ t*chlomate
Caurnium bromide
Cotiattous bromide
Antimony tr’bron’ide
Chiorosullonic acid
Toxaphene
Sodium hypoctitorite
Phosphorus oxych londe
Antimony tnchlonde
Zir num tetrachiorudo
Ferric sultale
Sodium phosphate. dibasic
Sodium phosphate. dibasic
AiumirLm sulfate
Ferrous ammorbum sulfate
Meiusnc nitrate
Chromous chloride
Lead rslrate
CPrornic sulfate
Lead cdide
Sodium phosphate. Inbasic
tjranyl nitrate
Sodium seleate
Pbltogen dioside
Lead arsenate
Calnisim chloride
Potissum azsfl
Sodium phosphate. tribasic
Sodium phosphate. Sbasic
Ammonusn bisi4llte
Nnrnonunl sulfite
Sodiwn phosphate. tribasic
Ct xic sulfate. ammonated
104 )5755
10421484
105.88019
t1 115745
12002038
12054487
12125016
12125029
12135761
I 2771083
1359799.4
13748899
13785 )90
13814965
I 3826830
13952846
140174 )5
14216752
14258492
14307358
14307438
14839915
¶4839968
14844612
15699180
16721805
18 8717 19
1 69 1 9; 90
18923958
25 154545
25154556
25155300
25167822
25188154
25166267
25264062
27116810
21323417
27774136
28300745
30525894
38476769
37211055
42504461
52628256
52740166
53467111
55488874
61192072
Mecnnus vttraie
Fernc shale
Sods.jm buchsomate
Ctvomc sod
Cupnc acetoars.rtte
Nde) hydroxide
Ammonium fluoride
Acnmonium chloride
Arnmonum sultide
Suf hi ’ chloride
8erythiurn sstrste
Zimonium nitrate
Calcium chrornate
Lead fluoborate
Ammorwum Iluoborste
sec-Outytamine
Cobalious eulfamate
Nidcel nitrate
Asnmomum osatate
Lt$rum dvomats
Ammonum tartrate
Zinc arnmortum chloride
Zinc ainmonjum chloride
Zirconum sulfate
Nidcet amrronivm suitate
Sodium hydrosutlide
Zinc siticolluoride
Ammorium silicolluoride
Zuconiurn potassium fluoride
Otn utrobeniene
Nutrophenot
Sodium dodecylberrzerbesullonate
TncJuioroplienot
2.45-7 estei
2.4-3 ester
Calcium dodec lbenzene5uttOnate
decytbenzenesultonic sod
Tnethanolarnifle
dodecy lbeflene$ulfOnate
Vanadyt sulfate
Antimony potassium taiflte
Paratcwmaidehyde
Uranyl nitrate
Ndiei chloride
Dodecy lbenzenesulfonate
isopropanolanune
Zinc ammonium chloride
Calcium erserste
2.4-D aster
Ferric ammonium oxalato
24 5.1 ester
TABLE I 16.4B—.LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBEF*—Conthued
CAS No
Common name
TABLE 116 48—LisT OF HAZARDouS
SUBSTANCES BY CAS NUMBER—Continued
CAS No
Common name
(43 FR 10474. Mar 13, 1918 , 43 FR 27533, June
26. 1978. as amended at 44 FR 10268. Feb 16,
1979, I I FR 65400. Nov 13. 1979. 44 FR 66602,
Nov 20. 1979. 54 FR 33482, Aug 14. 1989)
PART 1 17—DETERMINATiON OF RE-
PORTABLE QUANTITIES FOR HA l-
ARDOUS SUBSTANCES
Subpotl A—Generol PrcvIs ons
Sec
117 1 DefinitIons
1 17 2 Abbreviations
117 3 DeterminatIon of reportable quan-
tities
482
-------
40 CFR Ch. I (7—1-97 Edifion)
TABLE 1 16.48—4jST OF NAZARDOUS
SUBSTANCES BY CAS NUMBER—Continued
CAS No.
Corrunon name
10415755
Merc*,o s rv ate
10421484 .
Fernc n .Date
10588019 ..
Sodurn bthromate
11115745 — .
Civomiceod
12002038 ._ . ..
CupnC acetoar,ente
12054487 ... ... .
12125015 —
Ntdrel hydroxide
M moraum Ifuonde
12125029 ..... ..
Ammor4um dionde
12135761
Arnmorsum s ,Mde
12771083
SUlfur CNO Id.
13597994
85r141n reeste
13746899 .
rvt,sta
13785190 -.
Csioum dvcmate
13814965 *
Lead 6uoborste
13826830
Mtmorsum ItuobOi ’ate
13952848 . ..
seC-SubivTune
14017415
14216752 ..
N et ret,ate
14258492
Ammomum ozalate
14307358
Ljth um dvOmate
14301438
AmmOreuin tenets
14639975
inc ammorsum dilonde
14639988
inc ammomum thionde
14644612
Zircomum sulfate
15699180 .
Nidrel ammonium sulfate
16721805
16871719 ,
Sodium hydiosutfido
Zinc s ,bc oflu o r .dO
16919190
Ammorsum siticoftuonde
16923958 —
25154545
Zircon.um potas.vum
D ,nivot ,enzorse
25154556 .. -
25155300
25167822
Nitropiwnol
dodecytbenzeneaulfonate
Tnct4oropheno l
25168154
25168267 -
2,4-0 ester
26264062
27176870
27323417
Calcium dodee 1 4benzonesutlonate
Dodecytbenxanesutfon,c sod
Tnethano lamine
27774136
dodecy tbenzene s u lfonat e
Vanadyl
28300745 --
30525894 ..
35478769 - - .
Antimony potassium tenele
PBrstommaldehyde
Uranyl Ististe
37211055 . . -
42504461 — ..
Nidrel d4onde
Oodecytbenzenesuflonate
lscpropancfansne
Zinc
diloride
52628258 .. -
ammonium
52740168 -
Calcium enerele
53481111 .
2.4.0 ester
55458874
Ferric emmorilum oasl.te
61192072 - ..
2,4.5-T ester
(43 FR 10474. Mar. 13. 1978, 43 FR 27533, June
26. 1978. as amended at 44 FR 10268. Feb. 18,
1979. 44 FR 65400. Nov. 13. 1979. 44 FR 66682,
Nov 20. 1979. 54 FR 33482. Aug 14. 1989)
PART 1 17—DETERMINATION OF RE-
PORTABLE QUANTITIES FOR HAZ-
ARDOUS SUBSTANCES
Subpart A—General Provisions
Sec.
117 1 Deflrtitions.
111 2 Abbreviations.
117 3 DetermInation of reportable quan-
tities.
Environmental Protection Agency
Subpart B—ApplIcablUtY
117.11 General applicability.
117 12 AppliCability tO discharges from fa-
cilities with NPDES permits
117 13 ApplicabilitY to discharges from pub-
licly owned treatment works and their
users
117.14 Demonstration projects.
Subpart C—Notice of Discharge of a
Reportable Quantity
117.21 Notice
117 23 L.iabiiities for removal
AuTHoarrY: Sees 311 and 501(a). Federal
Water Pollution Control Act (33 u.s C 1251
et seq.). (“the Act”) and Executive Order
11735. superseded by Executive Order 12717, 56
FR 54751.
SoURCE 44 FR 50776. Aug. 29, 1919. unless
otherwise noted
Subpart A—General Provisions
117.1 Definitions.
As used in this part, all terms shall
have the meanings stated in 40 CFR
part 116
(a) Report.able quantt 1 153 meanS quan-
tities that may be harmful as set forth
in § 117 3, the discharge or which is a
violation of section 311(b)(3) and re-
quires notice as set forth in § 117.21.
(b) Administrator means the Adminis-
trator of the Environmental Protection
Agency (“EPA”)
(C) Mobile source means any vehicle.
rolling stock, or other means of trans-
portation which contains or carries a
reportable quantity of a hazardous sub-
stance.
(d) Public record means the NPDES
permit application or the NPDES per-
mit itself and the “record for final per-
mit” as defined in 40 CFR 124.122.
(e) National PTetreatment Standard or
Pretreatment Standard means any regu-
lation containing pollutant discharge
limits promulgated by the EPA in ac-
cordance with section 301 (b) and (C) of
the Act, which applies to industrial
users ‘of a publicly owned treatment
works. It further means any State or
local pretreatment requirement appli-
cable to a discharge and which is incor-
porated into a permit issued to a pub-
licly owned treatment works under sec-
tion 402 of the Act
§ 117.1
(f) Publicly Owned Treatment Works or
POTW means a treatment works as de-
fined by section 212 of the Act, which is
owned by a State or municipalitY (as
defined by section 502(4) of the Act)
This definition includes any sewers
that convey wastewater to such a
treatment works, but does not include
pipes, sewers or other conveyances not
connected to a facility providing treat-
ment The term also means the munici-
pality as defined in section 502(4) of the
Act, which has jurisdiction over the in-
direct discharges to and the discharges
from such a treatment works
(g) Remove or removal refers to re-
moval of the oil or hazardous sub-
stances from the water and shoreline
or the taking of such other actions ar
may be necessary to minimize or miti
gate damage to the public health 01
welfare, including, but not limited to
fish, shellfish, wildlife, and public am
private property, shorelines, ant
beaches
(h) Contiguous zone means the entir
zone established by the United State
under Article 24 of the Convention 01
the Territorial Sea and Contiguou
Zone
(1) Navigable waters means “waters c
the United States, including the tern
tonal seas.” This term Includes
(1) All waters which are currentl
used, were used in the past, or may b
susceptible to use in interstate or fot
elgn commerce. including all watet
which are subject to the ebb and fib
of the tide;
(2) InterState waters, including inte
state wetlands;
(3) All other waters such as intrt
state lakes, rivers, streams. (includir
Intermittent streams). mudflat
sandflats. and wetlands, the use, de
radatlon or destruction of which wou
affect or could affect interstate or fo
eign commerce nclud1ng any such w
ters:
(i) Which are or could be used I
interstate or foreign travelers for re
reational or other purposes.
( Ii) From which fish or shellfish a
or could be taken and sold in intersta
or foreign commerce;
(iii) Which are used or could be us
for industrial purposes by industries
interstate commerce;
§ 116.4
TABLE 116.4 B—LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBER—Continued
CAS No
Common name
7719122 —
7720187
7722647
7723140
7733020.
7758294
7 ’758943
7758954
7758987
7773060
7775113
7778441
7778509
7778543
7779884
7779888
7782505
7782630
7782823
7782867
7783359
7783462
7753495
7783508
7783584
7784341
7784409
7784410
7784465
7785844
7786347
7786814
1787475
7787497
7787555
7788989
7789006
7 189062
7789095
7789426
1789437
7780619
7790945
8001352
10022705
10025873
10025919
10026118
10028225
10028247
10039324
10043013
10045893
10045940
10049055
10699748
10101538 -.
10101630
I 0101890
10102064
10102188
10102440
10102484
10108642
10124562
10124588
10140655
10192300
10196040
10381594
10380297
Ptsospiiorus VkJUOnde
Ferrous si4tate
Potassium permanganate
P? 5phon4
Zinc suttate
Sodium phosphate. tr asic
Ferrous ctrlonde
Lead cNonde
Cupnc cutlets
Ammorsurts euttamate
Sodium ctvomat.
Calcium arsenate
Potassium bicIsoniato
calcium hypod’Jorrle
Zinc hydrosuffite
Zinc nitrate
CNonne
Ferrous sulfate
Sodium selerste
Mercvzous nitrate
Memjric sulfate
Lead fluoride
Zinc fluoride
Ferric fluoride
Antimony trifluonde
Arsenic bichloride
Lead arsenate
Potassium arsenate
Sodium arserste
Sodium phosphate, tnbasic
Mewçhos
Nidrel suttate
Beryllium chloride
Bertrlhum fluoride
Beryllium nitrate
Ammoiiium chromate
Polaasium cluomate
Strontium chromate
Ammorsum taclyornate
Cadmium bromide
Cobattoui bromide
Antimony tribrom ’dS
Chlorosutton.c acid
Toiapt iene
Sodium hypochlonte
Phosphorus osychionde
AntimOny bichloride
Zirconium tet,actdoride
Fernc sr4tate
Sodium phosphate. dibasic
Sodium phosphate. dibasic
AJunxnum sulfate
Ferrous ammonium sulfate
Meroa’ic nitrate
Qsrornous chloride
Lead nitrate
Ctwornic suttate
Lead iodide
Sodium phosphate. tnbU iC
Itranyl nitrate
Sothsi seterlte
Nitrogen dioxide
Lead arsenate
Cadmium chloride
Potassium arsenite
Sodium phosphate. tribasic
Sodium phosphate. dibasic
Amrnorsurn bsutflte
Mtmoraum suit to
Sodium phosphate. Inbasic
CuiysC suH stI. emrflOi ’s sted
-------
Acethidehyd.
Acetic aod
Acetic arthy&ide
Acetone cyanolrydnn
Acatli om,de
Acer l chionde
Aaolein
Acrylom trde
Aópc sod
M m
Myl onde.
Aiuminum suttate
Ammoma
Anvnecsum acetate . . . -
Aininonium benzoats
Animomum bcaatonati
Anrmonium bc*womat... . -
Arnmorwurnbfluond.
*Jnmonium bsi4hts
Agnmonium carbamate
Ammomum carbonate
Mimonum chloride. . -
Ammonium c womats
Anmorwumot,st.d ,bav
Environmental Protection Agency
Aimlionum ucbor.t, . .. .. .. — .
Amn,oraum fluoride .. .
Arm,ordum hyci’OxidS. .... . . ...
Ammonumossists . .
Ammomum a coflu idi .
Ammoretan sulfsmste . .. . —. . , ._
Muuioraum M tide. ..., .. - -
Amm oi*,msu ttite
Ammonum tarrate
Ammor4um tt ocyanate ..
Am)l (ate
Amlins.
Mtmony peMeot onde - -. .. - . -
Antimony potassium tatale
Antimony nbrom,di -
Antimony b id onde . .. . -
Antimony tnf (uonde .. - .
Antimony bloxtde
Arser8C deulfide - -- .
Arsenic penloxide — —
Arsenic Dicntonde. . .. . . -
Arsenic bloxtde .
Al s efl iCblSUft IdS ...._ . ...
Bar mds . . _. .. .
Benzen. — —— — . __ ..... . . . . .. . —.
Benseic sod - ... U . . . . .. - . .. . . .. -
Banzontnls ......
5 nzo 4d9 orid. . .. _ -.
Biry8ean 4cnds. .. .... - -.
8s0)InsT l revels . . . .. . . ... .. . . —.
Butyl iats . . .
8ut 4smIns ....
n.&tyl pNtialhte . .. . —
-.
Cadmium t$5 .. ._ . . . .. . .. .
Cadmium bonitOs .... . . . . . ..
C edm lumO ’ i tovlde . . . .. —. . . . -.. . . ..
Caldian arsenate ,.. . . . -. ....
Catoum emeriti .._ _. .. .. . —. . .,.. ..... . .. —
Cabumcwtxde . .
Caloum dyomals . . - .. . . .
Cildum cyarade . ..,
Cal um dodecylbenzsnsaullonafi. -
Calcium hypod4onls
Caplan .. . . - .. .
Cwbaryl ..
Casbotuiari .......... , - , -. -
Carbon Osutfidi
Carbon tetraclitends -. .
C t i tordans , -. -. .. . . ... .. . -.
CNonne .
CMombenzen.
Ctaomtorm . . . .... . —-
C litorosulfonlc sod . . . ..
CNorpyn los
Ctyonvc acetate - -
CPvoni&ca . .’o . .. . -.
clygmic 5i ate — — , ,
Cyvom d . 4onde . - .. ... -- -
Cobattous oimde ._ .. ._ . ... _. , , ... — . . —
Cobattous formats . ....... ..,.. —. .. _
Cobaltoub suttomsta _... .... . . . ... .. . . .. . .. -
Cnisd . . .-. . .-—- - - -
C ona 1d& iyds .. - . -. . -
e s - — . . . ._ — -- .. . - -. - .
Ct.çnc a tosiw ile .. ._.... . . . . . . ._____ . . . .. --
Ci fc uIbal. ... — .. .. . .____ ...._...... ....,. ... . ..
TABLE 117.3—REPORTABLE QUANTiTIES OF HAZARDOUS SUBSTANCES DESIGNATED PuRsUANT TO
SECTION 311 OF ThE CLEAN WATER ACT—Continued
§ 117.2
(4) All impoundments of waters oth-
erwise defined as navigable waters
under this paragraph;
(5) TrIbutaries of waters identified in
paragraphs (1) (1) through (4) of this
section. Including adjacent wetlands;
and
(6) Wetlands adjacent to waters iden-
tified in paragraphs (i) (1) through (5)
of this section (“Wetlands” means
those areas that are inundated or satu-
rated by surface or ground water at a
frequency and duration sufficient to
support, and that under normal cir-
curnstances do support, a prevalence of
vegetation typically adapted for life in
saturated soil conditions Wetlands
generally included playa lakes.
swamps, marshes, bogs, and similar
areas such as slougha, prairie potholes,
wet meadows, prairie river overflows,
mudflata, and natural ponds): Provided,
That waste treatment systems (other
than cooling ponds meeting the cr1-
term of this paragraph) are not waters
of the United States
Navigable water S do not include prior
converted cropland. Notwithstanding
the determination of an area’s status
as prior converted cropland by any
other federal agency, for the purposes
of the Clean Water Act, the final au-
thority regarding Clean Water Act ju-
risdiction remains with EPA.
§ 117.
Matinal Category
RU it ’ pounds Odogram-
40 CFR Ch. I (7-1-97 EdItion)
(J) Process waste water means any
water which, during manufacturing or
processing, comes into direct contact
with or results from the production or
use of any raw material, intermediate
product, finished product, byproduct,
or waste product.
(44 FR 50778. Aug. 29. 1979. as amended at 58
FR 45039. Aug. 25. 19931
*117.2 AbbreviatIons.
NPDES equals National Pollutant
Discharge Elimination System. RQ
equals reportable quantity.
* 117.3 DetermInation of reportable
quantities.
Each substance in Table 117.3 that is
listed in Table 302.4, 40 CFR part 302, 18
assigned the reportable quantity listed
in Table 302.4 for that substance.
TABLE 117.3—REPORTABLE QuANTrrIis
OF HAZARDOUS SUBSTANCES DES-
IGNATED PURSUANT TO SECTION 311 OF
THE CLEAN WATER ACT
NOTE: The first number under the column
beaded “RQ” is the reportable quantity In
pounds. The number in parentheses Is the
metric equivalent In kilograms. For conven-
ience. the table contains a Column headed
“Category” which lists th e code letters “IC”,
“A”. “B”, “C”, and “D” associated with re-
portable quantities of 1, 10, 100, 1000, and 5000
pounds, respectively.
TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO
SECTiON 311 OF THE CLEAN WATER ACT
Material
Category
RU xi poundi (lulograms)
0
B
C
0
C
0
B
0
0
0
0
0
C
B
C.
C
C
C
x
x
x -
x
x
A
A.
0
0.
C
B
x
x.
x
0.
C
A
0. . ...
A..
A
A
x
A..
A.
A
C..
A
A
B
A
B.
A
x.
A....
B.
A. -
C..
x
C.
A
C
C.
C.
C
C
A.
B......
B . . .
B - — - .
x
A....
B -
5,000 (2.270)
100 (454)
1,000 (454)
5.000 (2.270)
1,000 (454)
5.000 (2 270)
100(484)
5.000 (2 270)
5.000 (2.270)
5 000 (2 270)
5000 (2.270)
5.000 (2.270)
I __. (454)
100 (454)
1.000(454)
I (454)
1.000 (454)
1,000(454)
1(0454)
1(0454)
1(0454)
1(0454)
I (0 454)
10 (454)
10 (454)
5000 t2,270)
5 000 (2.270)
I 000(45.4)
100 (454)
1(0454)
1(045*)
1(0454)
5 000 (2.270)
1.000(454)
10 (454)
5 000 (2.270)
10 (454)
10(454)
10(454)
1(0454)
1 (0454k
10 (4 54)
‘0 (4 54)
10(454)
1,000 (45.4)
lB (454)
10 (4 54)
100(454)
10 (4 54)
100(454)
10 (4 54)
1(0454)
10 (454)
100(454)
10 (454)
1 000 (454)
1 (0 454)
1.000 (454)
10(454)
1 000 (454)
1 000 (454)
1.000 (454)
1.000 (454)
1.000 (454)
10(4 54)
100(454)
100(454)
100 (45 4)
1(0454)
10 (4 54)
10 (4.54)
C.-
0
0
A
0
0
x
B
D.
x
B
C.
0
B
0
0
D
A... —.
B
0
D_.
0
A
0 _ . . . .. . .
1,000 (454)
5.000 (2270)
5.000 (2,270)
10 (4 54)
5,000 (2270)
5.000 (2.270)
1(0454)
100 (45 4)
5 000 (2.270)
1(0454)
100(454)
1 000 (454)
5000 (2270)
100 (454)
5,000 (7,270)
5.000(2270)
5,000(2270)
10 (4 54)
100(454)
5,000(2 ,270)
5.000 (2270)
5.000(2270)
5,000(2270)
ID (4 54)
5,000(2,270)
-------
§ 117.3 40 CFR Ch. I (7—1-97 EditIon)
TABLE 117 3—REPORTABLE OUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO
SECTION 311 OF THE CLEAN WATER AC ’r—Contrnued
Mateilal
Cetegoty
RO k pots (lolograma)
Environmental Protection A oncy § 117.3
TABLE 117.3—REPORTABLE OUANTmES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO
SECTION 311 OF THE CLEAN WATER ACT—COfltJflUOd
Crego’y ROOund lO O I ” )
Malarial
Cr .Cnc ocalate .. ..... . .. .. .......
Cuixic sulfate . — .. . . ... . —. ... ,... . ..... ...
Cuixic suit ate, snimosated -
CI4rnC white ..
Cydohseans . . . .... ..._ .....___. _ _.......— -.. .....
2.4. OAod .. . . —
2.4-0 Esters . _.. .._. .. .
DOT . ... .. . .
Ds az tnon . - . . .
D lcsmba .
D4d doben4 . .. ... .
--- - -.
Dd8otobenzene . ..
Oicŕloroptooane —. . .. .. . ..
D.cNoropro ene .. . -
0 dIotop oene-O d*opropane (iTexture) .. . . .
2 2-0.olrlorcçrop.on.c aod - . . ..
D os .. -
Dicotol
D re ldnn
DeIh 4am ine
Drmethylamine
Diratrobentene (mixed)
O rra uopF ienol
Diretiotoluene
D.quat -
Disullolon . -
Diu,00
Dodec lbenzenesu1tonic acid
EndosuUan
Enc in
EpcNoiol iydrr i
Etriion
Elnytbennone
Elh y tene am ine
Elhylened am.ne-letiaaCeliC ac.d (EDTA)
Ethylene dibromide
Ethylene d.dilotrc le
Ferric ammonium citrate
Fernc ammonium ocalate
Fernc clitonde
Ferric fluoride
Ferric nitrate
Fernc u!taIe
Feaous anirnonium sullata
Ferrous chloride
Ferrous sulfate
Formaldehyde
Formic acid
Fumaric acid
Furlural
Gulfeon
Heptactilor
Heaa crdorOcyd opent aden e -
Hy*o o t s l or i c acid
Ilydrofluoric acid
Hy ogenCyatUde -
Hyc ogen sulfide -
I sa ena
IioçxO0anolamne dodecytbeflzeflesiitonst e
Ke gorre
Lead acetate
Lead arsenate
Lead CNOnde
Lead flu000rate -
Lead fluoride
Lead Io de
Lead rebate
Lead elevate
Lead whale
B
A
B
B
A
C _—. -.
B -.
x —
x -
C
B.
x
0
C.
B
B..
0.
A..
A.
x
B.....
C
B...
A......
A
C.
x
B
C
x
x
B
A
C
0
0
x
B
C
C
C
B
C
C
C
B
C
8
0
0
0
x
x
A
0
B
A
B
B
C
x
A
x
A
A
A
A....,
A -
A - -
A...
L*adi i4fd - - .—-—— .——.
Lead
U.I nS ... — — ..—. ..——*...— .——.—————— - ..-... —
Let*J11 d oms — —
.——— ... . ... —.. .— *..—-
Malelc sold..... . . . -- .—-. ... ... . .
Ma Ie.Csr*Iy 4de ._... -- -
p n e4fn .. .. . ._ . . -
MercisiCCy ir ed s ..... .. ‘ .-
Me rai,crVtr$te .— . .......
MerD.alC$u lf$te . — ...
Merwflc S ’eocysflale .. .. — —.—
Meraxarer stilt s . . - .. — . . - ...
MethoqCliO r ... . . . .. - —...-
p j yt mercegbe - ... . . . -.. ... — - —
I!eiP yl yi jr 4ats ••_ _ —_ -.
Me’3x,lpirittad l
MeyltighOS...... ..—.. - .. ..
Mexacwb ste .... ........ .... . .. .
Monoettlylam lne
Monom.th,lamlne .....
Haled —.. .—.. -.. .. .
NaphthlJe i he .
NaptttPiefllC add . —... .- .. . .. . ..
Nidrel emmont,tl ei4tsts ..
Nidrel . — - - . . .
Nidsel ——
Nickel nitrate —
Nidia) ete - -.
Nitric sod - . .
Nitroqefldox ide — -
Nitroçhefld (mined)
N.trotoluofle
Pa,aformaideh iyd e
Parathion .. .
Pentad4o ogMr i d
Phenol
Ptrosger l e ..
PhosphoriC aod
Phosphorus .
PhOsphOrUs r ume
PhOsphorUs pent.asutrde .. .
PhosphoruS tncl4eiide .
Potydilonflated b.phnnyle .. .
Potassium arsenate . ... . .
Pota s siumar stfl lte - ..
potassium tucivoaflate ... . .
Potassium dYOmate . . ... . . _ ..
Potassium cysrede —
POISUDJIfl hy Oude -
PotassIum perrringai’iate — . .
Properçds . - - ‘..
PIOpOAC sod .
ProploreC antoydride . .. — . . - ...—
Propylene Onids -. . . -
PyretMn s ... . .. —
Ou ,anohine . — — — . — -— — - -
Resoroflcl ..• .. —.
Se t eflkInOx idi — . . ..
$ily,t ,etrste...,.. . —
Sodum
SOdUtn U15 5f%ltS ‘ -
Soolufll ersefete . -
Sodium bclyomate - .
Soduin bftuonde
Sodum bSUIlitI
SodUrn dyotliate -.
SdumCy afl ide ,
Sodum dodecylbenzeflesultonate
Sodum ttuonde ... .. -.
— ..
-. - —
.. .
-
- .
..
.
.
A .
A - ..
x . ..
A
. ... .. .
0 .. -
o .
A . ... ..
x -.. ..
A - .
A
A
A
x
B
C -
0
A
C
8
B
A
B
B
B
B .
A
B .
B .
C . .
C
A .
8
C
C
A
A
C
A
o
x
C
B
C
X
x
A
A
A
C
B
.
0
D
B
X
o
0
A
x
A
x
x
A
B
o
A
A
C .
C
10(454)
10(454)
I (0454)
10 (4 54)
Q (454)
5000(2270)
5000(2.270)
10(454)
1 (0454)
10(454)
10(454)
10(454)
10 (454)
I (0454)
100 (45 4)
1.000 (454)
100(454)
10 (4 54)
1.000 (454)
100 (45 4)
100(454)
10 (4 54)
100 (45 4)
100(454)
100 (45 4)
100(454)
tO (454)
100 (454)
tOO (454)
1.000 (454)
1.000(454)
10(454)
100(454)
1000(454)
I 000 (454)
tO (4 54)
10(454)
1.000 (454)
‘0(454)
5000(2270)
1(0454)
1,000 (454)
100 (454)
1.000 (454)
1(0454)
1 (0454)
10(454)
10(454)
10(454)
1.000 (454)
100 (45 4)
10 (454)
5000 (2270)
5000 (2270)
100)454)
1 (0454)
5,000 (2270)
5000(2270)
10(454)
1(0454)
10 (454)
1(0454)
1(0454)
ID (4 54)
100 (454)
5000 (2.270)
10(454)
10(454)
1,000(454)
1.000 (454)
100(454)
10(4 54)
100(454)
100(454)
10(4 54)
1.000(454)
100(454)
100 (45 4)
I (0454)
1(0454)
1.000(454)
100(454)
1(0454)
100 (45 4)
‘.000 (454)
100 (454)
100 (454)
5.000 (2.270)
‘0 (4 54)
10(454)
1(0454)
100 (45 4)
1.000 (454)
100 (45 4)
10(454)
10(454)
¶000 (454)
1(045.4)
100(454)
1.000 (454)
1(0454)
1(0454)
100(454)
10(454)
1.000)454)
5000)2270)
5.000 (2.270)
1(0454)
100(454)
1,000 (454)
1.000 (454)
1,000 (454)
100(454)
1000 (454)
1,000 (454)
1.000 (454)
100(454)
1,000(454)
100(454)
5,000 (2270)
5000 (2.270)
5000(2,270)
1(0454)
1(0454)
10(4 54)
5.000 (2.270)
100(454)
10(454)
100(45 4)
100(454)
1,000 (454)
1(0454)
10(454)
1(0454)
10 (4 54)
tO (4 54)
10(454)
10(4 54)
10(454)
10(454)
10(454)
-------
117 .3
40 CFR Ch. I (1—1-97 Ed$tion)
TABLE 11 7.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT 10
SECTION 311 OF THE CLEAN WATER ACT—Continued
Maten&
C .te oiy
RO in pounds (kio wii )
So an h 3ut 5de - — .. . - .. . .. . - -. - .....
0 . .. ....
5.000(22101
So lfn l1y oxl0s . .. ....... ... -. -. . -. *.- . ._. . ...
C ...
.000 (454)
Sodurn hy 4ot1t. .. - _... .
B .. . ...
100(454)
Soduni m.ih 4at. . ,. - . . . .. . ... ... -.
S ri rv i . .. - . .. . . . . . .. .
C ._ . ,.....
. .. .._ -
1.000 (45.4)
100(454)
Sod.sn P ’oiŘ’i*e. silc. . . . —. . .. . .. . ... .. . - ..
0 .. -
5.000(2270)
Sodsri 1osŘ ts, biba ic . . ..._. —. .. . . . -. . .
0.. - .
5.000(22701
Sod n s.i,1i. ._....... . .... .._.... . ......
6 .._ .._.
100(454)
SUvn&ksn ‘w vn s . ,. ... ..... . - .. . . - ....
A .._.. ......
10 45.4)
Sij w lns -- . . . ... . - . .,. . ....... ... . - . . ...... . .. .. ... -
A -.
10 (4.54)
Sty,sn . - . - .. —. .. — .......... .. ... ... . . .... -
C ...._ . .
1.000(454)
Sdtuic sdi) -. . - - ., . . . - . .. - ._ ...
C .
1.000(454)
S4itts ir d4ond. .. . ,. . ._.. -. . ... - _ . ._ ._ . . -
C —
1.000(454)
2.4 ,5-T sod. .. - .. .. - . -. . . ... ... . - .... . .. . -.
C .
1.000(454)
2.4.5-1 .minři . .. . ... . -
0
5.000(2210)
2.4.5-1 .si . p. . . . - . - . ,
C - . - —.
1,000(454)
2.4.5.1 salz -- , ., .. - - ._.. • , - . . , ,
1000(454)
TOE. .
X
1(0454)
2.4,5-IP sod —— .. . . . .. . . .
B . . .
100(454)
2,4,5-IF sod s.t.’s . . . .. .
B
100(45 4)
Ts ssth lua sd . , . . .
A
10(454)
TStri.ih I p oŘio%Eiats . . . .. . . ._ ..
A .
10 (45.4)
Thslhum i4lIie .. . ... . . . .... . . ....
B . -
*00(454)
Tolu.n - - — - . . — - . - .
C . .. ..
1.000 (454)
Toi i i n . — . ,,. . . . . . — — -.
X -_ .
1(0454)
Trt Io i1on . - ,,_ ._. , , ... . ,. - .... — .._.. .._. . .
B .. -.
100(454)
- . . . . . -. .. . . ., . .. ...,.. .
B - - -—
100(454)
Trd loogl ’ isncd .. -. ... . . . . .
A . ... . ..
10(454)
TtIthinolii ns dsdsc Insinsiullonhte. - - .
C .._. ..._.
1.000(454)
Tne * * i l sm n s . . --....... - . - . - .
0 ._ . .. . . .
5,000(2210)
T ,UiISIh 4&nI IIIS - . — - , ... .. .
0 ..-_ . .._.
100 (45 4)
Ur in l s c.I si. . . . - -. - - . -
0 .......
100(454)
Uw lr tri ie . -- - . . - .
B -. .
100(454)
Vss s ign psi1o ids -. .
C ......
1,000 (451)
Ywijd 4 uflull . . . . . .
C - . ........
1.000(451)
Viny4 sctat. - — - . .
0 — .. ._ ._.
5.000(2270)
Vthpl id.n.c0do ilds . . - . - . - - . . . -
9
100)454)
Xy*sn.(mizs4 . .. .... ._ .
B .._ ..
*00(454)
X 1 lsn ol - - . .. * . .. - . . . .. - -. -
C .. .. ...
1Q00 (45.4)
Zinc scitits - — . -
C .. . -.
1,000(45.44
Zinc inimo ,lum d4onl. - . , .. - . .. . . -
C — .
1.000(45.4)
Zinc bOSS
C .........
1.000(154)
Zinc bronud. - - ,. - -
C -
1 000 (454)
Z lrcc .tonal. . - - . -. - . .
C - - .
1,000(454)
Zinc CtICVIdS
C .. - .
1,000 (45.4)
Zinccy unid. -
A .
10(454)
Zinc iluřnde -. - . -
C - -
I 000 (454)
Zinc tOmato — ... —..- — — - . . .. —
C —
1,000 (454)
Zinc Iy 0I4i4Ie .. - ... — . .. . ..
C
1.000 (454)
Zincr iSat. - - .. . .
C
1000(454)
Zirc pI noi%jiOnate -
0 -
5000(22701
Zinc piioopltdo - - . - - - -. .. . .
B
100(454)
Zinc o i! fh nde - - . . . . -
0
5,000 (2270)
Zinc outfit, . , .. - .. .
C - - .
1,000(454)
Zlzcomwn rwsts -. . -. ,.... - . . . . -
0 . __. ..
5.000(2270)
Zlfccnurn poI iisn fluondo .. . . -
C .. . -
1.000 454)
Zirt rs,n 54ia - - , -
0 .....
5,000 (2270)
Zlitorvi#n t.eoa4oncje, - . - -
0 - .
5.000(2270)
150 FR 13513. Apr 4. 1985. as amended at 51 FR 34547, Sept 29. 1986; 54 Fit 33452, Aug 14, 1989;
58 FR 35 7, June 30. 1995, 60 FR 3093’?, June 12, 1995)
ErMronmsntal Protection A9ency
Subpart B—AppUcablllty
§117.11 Genera] applicability.
This regulation sets forth a deter-
mination of the reportable quantity for
each substance designated as hazardous
In 40 CFR part 116. The regulation ap-
plies to quantities of designated sub-
stances equal to or greater than the re-
portable quantities, when discharged
into or upon the navigable waters of
the United States, adjoining shore-
lines, into or upon the contiguous zone,
or beyond the contiguous zone as pro-
vided in section 311(b)(3) of the Act, ex-
cept to the extent that the owner or
operator can show such that discharges
are made:
(a) In compliance with a permit is-
sued under the Marine Protection, Re-
search and Sanctuaries Act of 1972 (33
U.S.C. 1401 et seq.);
(b) In compliance with approved
water treatment plant operations as
specified by local or State regulations
pertaining to safe drinking water;
(C) Pursuant to the label directions
for application of a pesticide product
registered under section 3 or section 24
of the Federal Insecticide, Fungicide,
and Rodenticido Act (FIFRA), as
amended (7 U.S.C. 136 et seq.), or pursu-
ant to the terms and conditions of an
experimental use permit issued under
section 5 of FIFRA, or pursuant to an
exemption granted under section 18 of
FIFRA;
(d) In compliance with the regula-
tions Issued under section 3004 or with
permit conditions Issued pursuant to
section 3005 of the Resource Conserva-
tion and Recovery Act (90 Stat. 2795; 42
U.S.C. 6901);
(e) In compliance with Instructions of
the On-Scene Coordinator pursuant to
40 CFR part 1510 (the National Oil and
Hazardous Substances Pollution Plan)
or 33 CFR 153.10(e) (PollutIon by Oil
and Hazardous Substances) or in ac-
cordance with applicable removal regu-
lations as required by section
311(j)(1)(A);
(f)In compliance with a permit is-
sued under §165.7 of Title 14 of the
State of’ California Administrative
Code;
(g) From a properly functioning Inert
gas system when used to provide Inert
gas to the cargo tanks of a vessel;
(h) From a permitted source and
excluded by §117.12 of this regulatior
(i) To a POTW and are specifics
excluded or reserved in 4117.13; or
(j) In compliance with a permit
sued under section 404(a) ot the Cl’
Water Act or when the discharges
exempt from such requirements by i
tion 404(f) or 104(r) of the Act (33 UI
1344(a), (I), (r)).
* 117.12 Applicablllty to diachar
from facliltie. with NPDES perm
(a) This regulation doea not apply
(1) Discharges in compliance wit
permit under section 402 of this Act;
(2) Discharges resulting from
cumstances identified, reviewed
made a part of the public record
respect to a permit issued or modi
under section 402 of this Act, and e
ject to a condition in such permit;
(3) ContInuous or anticipated in
mittent discharges from a. point iou
identified In a permit or permit ap
cation under section 402 of this I
which are caused by events occtiri
within the scope of the relevant ope
ing or treatment systems; or
(b) A discharge is “in complia
with a permit issued under section
of this Act” if the permit contains
effluent limitation specifically appl
ble to the substance discharged or
effluent limitation applicable to
other waste parameter which has I
specifically identified in the penni
Intended to limit such substance.
the discharge is in compliance with
effluent limitation.
(C) A discharge results from
cumatancea identified, reviewed
made a part of the public rec ird v
respect to a permit Issued or modi
under section 402 of the Act, and i
Ject to a condition in such perrn
whether or not the discharge is In c
pllance with the permit, where.
(1) The permit application, the
mit, or another portion of the pu
record contains documents that
cifically identify.
(1) The substance and the amoun
the substance; and
(ii) The origin and source of thet
stance; and
(iii) The treatmrt which Is tc
provided for the ‘ rge either by
-------
§ 117.13
40 CFR Ch. I (7-1-97 Edlilon) Environmental PTotectlon Agency
§121.1
(A) An on-site treatment system sep-
arate from any treatment system
treating the permittee’s normal dis-
charge; or
(B) A treatment system designed to
treat the permittee’s normal discharge
and which is additionally capable of
treating the identified amount of the
identified substance, or
(C) Any combination of the above:
and
(2) The permit contains a require-
ment that the substance and amounts
of the substance, as identified in
§ 117 12(c)(l)(i) and § 117.12(c)(l)(ii) be
treated pursuant to §117 12(c)(1)(Iii) in
the event of an on-site release, and
(3) The treatment to be provided is in
place
(d) A discharge is a “continuous or
anticipated Intermittent discharge
from a point source, Identified in a per-
mit or permit application under sec-
tion 402 of this Act, and caused by
events occurring within the scope of
the relevant operating or treatment
systems,” whether or not the discharge
is in compliance with the permit. if:
(1) The hazardous substance Is dis-
charged from a point source for which
a valid permit exists or for which a per-
mit application has been submitted;
and
(2) The dIscharge of the hazardous
substance results from
(i) The contamination of noncontact
cooling water or storm water, provided
that such cooling water or storm water
is not contaminated by an on-site spill
of a hazardous substance; or
(ii) A continuous or anticipated
intermittent discharge of process waste
water, and the discharge originates
within the manufacturing or treatment
systems; or
(iii) An upset or failure of a treat-
ment system or of a process producing
a continuous or anticipated intermit-
tent discharge where the upset or fail-
ure results from a control problem, an
operator error, a system failure or mal-
function, an equipment or system
startup or shutdown, an equipment
wash, or a production schedule change,
provided that such upset or failure is
not caused by an on-site spill of a haz-
ardous substance.
[ 44 FR 50776. Aug 29. 3979. as amended at. 44
FR 58910. Oct. 12, 19 ’19]
§117.13 ApplicabilIty to discharge.
from publicly owned treatment
work. and their users,
(a) [ Reservedl
(b) These regulations apply to all dis-
charges of reportable quantities to a
POTW. where the discharge originates
from a mobile source, except where
such source has contracted with, or
otherwise received written permission
from the owner. or operators of the
POTW to discharge that quantity, and
the mobile source can show that prior
to accepting the substance from an in-
dustrial discharger, the substance had
been treated to comply with any efflu-
ent limitation under sections 301, 302 or
306 or pretreatment standard under
section 307 applicable to that facility.
§117.14 Uemon.tration projects
Notwithstanding any other provision
of this part, the Administrator of the
Environmental Protection Agency
may, on a case-by-case basis, allow the
discharge of designated hazardous sub-
stances in connection with research or
demonstration projects relating to the
prevention, control, or abatement of
hazardous substance pollution. The Ad-
ministrator will allow such a discharge
only where he determines that the ex-
pected environmental benefit from
such a discharge will outweigh the po-
tential hazard associated with the dis-
charge.
Subpart C—Notice of Discharge of
a Reportable Q’.iantlty
* 117.21 Notice.
Any person in charge of a vessel or
an onshore or an offshore facility shall.
as soon as he has knowledge of any dis-
charge of a designated hazardous sub-
stance from such vessel or facility in
quantities equal to or exceeding in any
24-hour period the reportable quantity
determined by this part, immediately
notify the appropriate agency of the
United States Government of such dis-
charge. Notice shall be given in accord-
ance with such procedures as the Sec-
retary of Transportation has set forth
in 33 CFR 153 203. ThIs provision ap-
plies to all discharges not specifically
excluded or reserved by another section
of these regulations.
§117.23 UablUtIes for removaL
In any case where a substance des-
ignatect as hazardous ft 40 CFR part 116
is discharged from any vessel or on-
shore or offshore facility in a quantity
equal to or exceeding the reportable
quantity determined by this part, the
owner, operator or person in charge
will be liable, pursuant to section 311
(I) and (g) of the Act, to the United
States Government for the actual costs
incurred in the removal of such sub-
stance, subject only to the defenses and
monetary limitations enumerated in
section 311 (f) and (g) of the Act.
The Administrator may act to mitigate
the damage to the public health or wel-
fare caused by a discharge and the cost
of such mitigation shall be considered
a cost incurred under section 311(c) for
the removal of that substance by the
United States Government.
PART 121—STATE CERTiFICATION
OF ACTIVITIES REQUIRING A FED-
ERAL LICENSE OR PERMIT
Subpart A—General
Sec.
121 1 DefinItions
1212 Content,sofcertlflcatiofl.
121 3 Contents of application
Subpart B—Detern,lncflOfl 01 Eltect on
Other States
121 11 Copies of documents
121.12 Supplemental Information.
121.13 RevIew by Regional Administrator
and notifi ration
121 14 Forwarding to affected State.
121 15 Hearings on objection of affected
State
121.16 Waiver.
Subpart C—Certification by the
Administrator
121.21 When Administrator certifies
121.23 Applications
121 23 NotIce and hearing.
121 24 Certiflcatton
121.23 AdoptIon of new water quality stand-
ards,
121 26 Inspection of facility or activity be-
fore operation.
121.27 NotIfication to licensing or permit-
ting agency
12128 TerminatIon of suspension
Subpart D—Conwiiatlons
121 30 Review and advice
AUTHORITY Sec 21 (b) and (C), 64 Stat 91
(33 U S C. 1171(b) (1970)). ReorganizatIon Plan
No 3of 1970.
SOtJRCE 36 FR 22487. Nov 25. 1911. unless
otherwise noted. Redesignated at 37 FR 21441.
Oct 11, 1912 and 44 FR 32899. June 7, 1919.
Subpart A—General
§ 121.1 Deflnltlona .
As used in this part, the following
terms shall have the meanings mdi-
cated below:
(a) License or per-nut means any li-
cense or permit granted by an agency
of the Federal Government to conduct
any activity which may result I ii any
discharge into the navigable waters of
the United States
(b) Licensing or permitting agency
means any agency of the Federal Gov-
ernment to which application is made
for a license or permit
(c) Admin isirator means the Adminis-
trator, Environmental Protection
Agency
(d) Regional Administrator means the
Regional designee appointed by the Ad-
ministrator, Environmental Protection
Agency.
(e) Certifying agency means the person
or agency designated by the Governo
of a State, by statute, or by other gov-
ernmental act, to certify compliance
with applicable water quality stand-
ards. If an Interstate agency has sole
authority to so certify for the area
within its jurisdiction, such interstate
agency shall be the certifying agency
Where a State agency and an interstate
agency have concurrent authority tc
certify, the State agency shall be tht
certifying agency. Where water quality
standards have been promulgated b
the Administrator pursuant to eectior
l0(c)(2) of the Act, or where no State or
interstate agency has authority to cer
tify. the Administrator shall be th
certifying agency
(1) Act means the Federal Water Pol
lution Co.,trol Act, 33 U S C 1151 et seq
(g) Water quality standards mean
standards established pursuant to sec
tlon 10(c) of th.I Act, and State-adopte
water quality standards for navigablt
waters which are not interstate waters
-------
§17.26
40 CFR Ch. I (7—1—97 EditIon) Environmental Protection Agency
§ 19.4
* 17.28 DecIsion on application.
The Presiding Officer shall issue a
recommended decision on the applica-
tion which shall include proposed writ-
ten findings and conclusions on such of
the following as are relevant to the de-
cision: (a) The applicant’s status as a
prevailing party; (b) the applicant’s
qualification as a “party” under 5
U.S C. 504(b)(l)(B); (c) whether EPA’s
position as a party to the proceeding
was substantially justified; (d) whether
the special ciruinstances make an
award unjust; (0) whether the applicant
during the course of the proceedings
engaged in conduct that unduly and
unreasonably protracted the final reso-
lution of the matter In controversy,
and (f) the amounts, if any, awarded for
fees and other expenses, explaining any
difference between the amount re-
quested and the amount awarded
§ 17.27 Agency review.
The recommended decision of the
Presiding Officer will be reviewed by
EPA in accordance with EPA’s proce-
dures for the type of substantive pro-
ceeding involved.
* 17.28 JudicIal review.
Judicial review of final EPA deci-
sions on awards may be sought as pro-
vided in 5 U.S.C. 504(c)(2).
§ 17.29 Payment of award.
An applicant seeking payment of an
award shall 8ubmit a copy of the final
decision granting the award to the Of-
fice of Financial Management for Proc-
eBsing. A statement that review of the
underlying decision is not being sought
in the United States courts or that the
process for seeking review of the award
has been completed must also be in-
cluded.
PART 19—ADJUSTMENT OF CIVIL
MONETARY PENALTIES FOR IN-
F1.ATION
Sec.
19 1 ApplIcability.
19 2 EffectIve date.
19 3 (Reserved]
19.4 Penalty Adjustment and Table.
AUTHORITY Pub. L.. 101-410, 104 Stat. 890. 28
U S C 2461 note; Pub L. 104—134. 110 Stat.
1321, 31 U S.C. 3701 note.
SouftcE 61 FR 69364, Dec 31, 1996, unless
otherwise noted.
§19.1 Applicability.
This part applies to each statutory
provision under the laws administered
by the Environmental Protection
Agency concerning the maximum civil
monetary penalty which may be as-
sessed in either civil judicial or admin-
istrative proceedings
* 19.2 Effective date.
The Increased penalty amounts set
forth in this part apply to all viola-
tions under the applicable statutes and
regulations which occur after January
30, 1997, except for violations subject to
penalty under 42 U.S.C. 1852d(b)(5) and
42 U.S.C. 4910(a)(2), which are subject
to the new penalty amounts for any
violations after July 28. 1997.
(62 FR 35039, June 27, 1997)
EFFECTIVE DATE NOTE At 62 PR 35039, June
27, 1997, § 19.2 was revised, affective July 28,
1997.
§ 19.3 (Reserved]
§ 19.4 Penalty Adjustment and Table.
The adjusted statutory penalty pro-
visions and their maximum applicable
amounts are set out in Table 1. The
last column in the table provides the
newly effective maximum penalty
amounts.
TABLE I OF SECRON 19.4—CIvIL MONETARY PENALTY INFLATION ADJUSTPIENTS—Continued
U.S Code citatIon
CM monewy penally d.wlp8cn -
Hsw maxIrn eu pen-
ally &nount
31 USC. 3802( 11 ( 1)
SI USC. 3802(11)2)
33USC I3I9(d)...............
33 U.S.C. 13l9(9)(2)(A)..
33USC 13 19(g)(2)(B)
33 USC 1321(b)(6)(9)(1)
33 USC 1321(b)(8)(B)(0)
33 US C. I321(b)(T) A)
33 USC 132 1(b)(7)(B)
33 USC. l32 1(b)(7)(C)
33 USC. l32 1(b)(7)(D)
33 USC 14 14b(d)
33US.C 1415(a)
42 USC 3009—3(b)
42 U SC 300g—3(C)
42 U S C 3009—3(91(31(A)
42 U S C 300g—3(g)(3)(O)
42 USC 300g—3(g)(3)(C)
42 U SC 300h—2(b)(l)
42USC 300h-2(c)(l)
42USC 300h—2(c)(2)
42 USC. 300h—3(c)(l)
42 U SC 300h—3(c)(2)
42USC.3 00I(b) ..
42 USC 3004—1(c)
42 U S-C 300J(e)(2)
42 USC 300 )-4(c)
42USC300j—6(b)(2J
42 U.S C. 300 )-23(d)
42 U S C 4852d(b)(5) —
42 USC 4910(a)(2)
42 USC 6928(a)(3)
42USC 6928(c) -
42USC 6928(g)
42 U S C. 69280i)(2)
42 U S.C. 6934(e)
42 US C. 6973(b)
PROGRAM FRAUD CIVIL REMEDIES ACTMOLATION INVOLVING
FALSE CLAIM
PROGRAM FRAUD CIVIL REMEDIES ACTMOLATION INVOLVING
FALSE STATEMEPIT.
CLEAN WATER ACT V 1OLAT1ONfCML JUDICIAL PENALTY _. - -
CLEAN WATER ACT VIOLATIOWADMIN!STRAT1VE PENALTY PER
VIOLATION AND MAXIMUM
CLEAN WATER ACT V1OLATION/ADMINISIRATIVE PENALTY PER
VIOLATION AND MAXIMUM
CLEAN WATER ACT VIOLAT1OWADMIN PENALTY OF SEC
3 11(b)(3)6Q) PER VIOLATION AND MAXIMUM
CLEAN WATER ACT VIO4.ATIOWADMIN PENALTY OF SEC
341 1b)(3)&(J) PER VIOLATION AND MAXIMUM.
CLEAN WATER ACT VJOLATIONI ’CIVIL JUDICIAL PENALTY OF SEC
31t(b((3)—PER VIOLATION PER DAY OR PER BARREL OR UNIT.
CLEAN WATER ACT ViOLATION/CIVIL JUDICIAL PENALTY OF SEC
311 (c)&(e)(I)(B).
CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL PENALTY OF SEC
311 (J)
CLEAN WATER ACT VIOLATION/l.IINIMUM CML JUDICIAL PENALTY
OF SEC 3 11(b)(3)—PER VIOLATION OR PER BARREL/UNrT
MARINE PROTECTION, RESEARCH & SANCTUARIES ACT VIOL
SEC 104b(d)
MARINE PROTECTION RESEARCH AND SANCTUARIES ACT VIOLA-
liONS—FIRST & SUBSEQUENT VIOLATIONS
SAFE ORINKING WATER ACTICIVIL JUDICIAL PENALTY OF SEC
1414(b)
SAFE DRINKING WATER ACT/CIVIL JUDICIAL PENALTY OF SEC
1414( c )
SAFE DRINKING WATER ACT/CIVIL JUDICIAL PENALTY OF SEC
14 14(g)(3)(a)
SAFE DRINKING WATER ACT/MAXIMUM ADMINISTRATIVE PEN-
ALTIES PER SEC 1414(g ((3 1(B)
SAFE DRINKING WATER ACT/THRESHOLD REOUIRINO CIVIL JUDI-
CIAL ACTION PER SEC 14I4(g)(3)(C)
SDWAJCIVIL JUDICIAL PENALTYNIOLATIONS OF REOS—UNOER-
GROUND INJECTION CONTROL (UIC)
SDWAPCIV1L ADMIN PENALTYNIOLAI1ONS OF U1C REOS—PER
VIOLATION AND MAXIMUM
SDWNCIV1L ADMIN PENALVYNIOLATIONS OF UIC flEaS—PER
VIOLATION AND MAXIMUM
SDW /V1OLATION/OPERATION OF NEW UNDERGROUND INJEC-
TION WELL
SDWAIWILLFUL VIOLATION/OPERATION OF NEW UNDERGROUND
INJECTION WELL
SDWAFFAILURE TO COMPLY WITH IMMINENT AND SUBSTANTIAL
ENDANGERMENT ORDER
SDWAFATTEMPTINO TO OR TAMPERING WiTH PUBUC WATER
SYSTEM/CIVIL JUDICIAL PENALTY
SOWA/FAILURE TO COMPLY W RDER ISSUED UNDER SEC
144 1(c)(l).
SDWNREFUSAL TO COMPLY WITH REOS OF SEC 1445(a) OR (b)
SDWNFAILURE TO COMPLY WITH ADMIN ORDER ISSUED TO
FEDERAL FACIUTY
SOWNV1OL.ATIONS/SECTION 1 463(b)—FIRST OFFENSE/REPEAT
OFFENSE
RESIDENTIAL LEAD-BASED PAINT HAZARD REDUCTION ACT OF
1992. SEC 1018—CIVIL PENALTY
NOISE CONTROL ACT OF 1972—CIVIL PENALTY
RESOURCE CONSERVATION & RECOVERY ACT/VIOLATION SUB-
TITLE C ASSESSED PER ORDER
RES CONS & REC. ACT/CONTINUED NONCOMPLIANCE OF COM-
PLIANCE ORDER
RESOURCE CONSERVATION & RECOVERY ACTNIOLATION SUB-
TITLE C
RES CONS & REC ACT/NONCOMPLIANCE OF CORRECTIVE AC-
TION ORDER
fitS CONS. & REC. ACT/NONCOMPLIANCE WITH SECTION 3013
ORDER
RES CONS & REC ACTNIOLATIONS OF ADMINISTRATIVE ORDER
65.300
$5 , 500
621 . 500
$ 11 .000/327.500
SI I,000’3 137 500
511.000/327.500
511,000/S 137.500
327.500 or 51 400
per barrel or urdl
527.500
527.500
6110.0000(30.300
per barrel or unlI
5880
$55,000/S 137.500
$21,500
$27 500
327 500
$&000/$25.000
325,000
$27,500
II 1,0006137 ,500
3.5500 / 6137.500
65.500
511.000
$15,000
622.000/655.000
32.750
$27,500
325.000
55.500/655.000
$11000
$11,000
$27500
$27 500
$27 500
327.500
55.500
35.500
TABLE I OF SECTION 19.4—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS
U S Code citallon
CM monelaly penalty descriptIon
New maalrnum pen-
ally a,nO ,jnl
7USC 1381(a)(I)
7USC 1384(11(2)
15 USC 2 6 15(e)
(5 USC 2647(a)
FEDERAL INSECTICIDE. FUNGICIDE. & RODENTICIDE ACT CIVIL
PENALTY—GENERAL—COMMERCIAL APPUCATORS. ETC
FEDERAL INSECTICIDE. FUNGICIDE. & RODENTICIDE ACT CIVIL
PENALTY—PRIVATE APPLICATORS—FIRST AND SUBSEQUENT
OFFENSES OR VIOLATIONS.
TOXIC SUBSTANCES CONTROL ACT CIVIL PENALTY . -
ASBESTOS HAZARD EMERGENCY RESPONSE ACT CIVIL PENALTY
65.500
355 5 ’ S 1,000
327.500
55.500
-------
Pt. 20
40 CFR Ch. I (7-1—97 EdItion)
TABLE 1 OF SECTION 19 4—CIVIL MONETARY PENALTY INFLATION ADJUS7MENTS—Conhlnued
42 USC 6%1.(a)43)
421) SC 6991e(d)(1)
42 USC 6991e(d)42)
42USC 6992d(afl2)
12t15C 69924(aI(4)
42 USC 69924(d)
42U3.C 7413(b)
42 USC 7413(d)t1)
42USC 14t3(d){3)
42 U SC 7524(a)
42 USC 1524(a)
42 USC 7524(c)
42 U SC 1 54 5 ( 0 )
42 USC 9604(e)(5118)
42U5C9605 (bH lI
42USC 9809 (a) 5(b)
42U 5C 9809 1b)
42 USC 9609(c )
42USC9809(c)
42USC 1 1045{B)&(b)
(I),(2) 5 (3)
42USC 11045(bU2J&(3)
42 USC 11045(c)(I)
42USC 11045(cfl2)
42 USC 11045(d)(1)
$27,500
$11,000
211.000
$27,500
$27400
$27 500
$27,500
227 40 0 12220.000
$5500
$2,750
$21400
*220.000
$27 ,500
$21400
$27400
$27,500
$82,500
327,500
$82400
221,500
$82,500
*27.500
311.000
$27400
(Si FR. 69364, Dec. 31, 1996; 62 FR 13515. Mar.
20, 1997, 62 FR 35000. June 77. 1997)
EFncrIvE DATE NOTE At 62 FR 35039, June
27, 1997, table 1 of § 19 4 was amended by add-
ing two entries, effective July 28, 199’?.
PART 20 —CERTiFICATION OP
FACILITIES
Sec
20 1 Applicability.
20.2 Defin Itions.
20.3 Genersi provisions.
204 NotIce of intent to certify.
20 5 ApplIcations.
20.8 State certification.
20.7 Geneeai policies
20.8 Requirements for certification.
209 Coat recovery.
20.10 Revocation.
APPENDiX A TO PART 20—GUIDELINES FOR
CERTIFICATION
AUTxORrTY: Becs. 302, 704, 80 Stat. 379, 9.3
Stat 687,SUSC 301, 26LJ.S.C. 169.
SOURcE. 36 FR 22382, Nov. 25 1971, unless
otherwise noted.
§ 20.1 ApplicabIlity.
The regulations of this part apply Lo
certifications by the Administrator of
water or air pollution control facilities
U.S Code crlatlon
CM many p’en&ty ductŘcn
Nsw mexbnum pen-
RES. CONS & REC. ACT/NONCOMPLIANCE WITH UST ADMJNIS-
TRATIVE ORDER
PIES CONS & REC ACT/FAILURE TO NOTIFY OR FOR SUBMIT-
TING FALSE INFORMATION
RCRAIVIOLATIONS OF SPECIFIED UST REGULATORY REQUIRE-
MENTS
RCRA’NONCOMPLIANCE W/MEDICA1.. WASTE TRACKING ACT AS-
SESSED TI4RU AOMIN ORDER
RCIRA(NONCOIJPLIANCE W/MEDICAL WASTE TRACKING ACT AD ’
MINISTRATIVE ORDER.
RCRAMOLATIONS CF MEDICAL WASTE TRACKING ACT—JUDI-
CIAL. PENALTIES.
CLEAN AIR ACTNIOLATION/OWNERS S OPERATORS OF STATION-
MY AIR POLLUTION SOURCES—JUDICIAL PENALTIES
CLEAN AIR ACTNIOLATIONIOWNERS a OPERATORS OF STATION-
ARY AIR POLLUTION SOURCES-ADMINISTRATIVE PENALTIES
PER V IOLAT iON 5 MAX
CLEAN AIR ACT/MINOR VIOLATIONSISTATIONARY AIR POLLUTION
SOURCES—FIELD CITATIO ItS
TAMPERING OR MANUFACTURE/SALE OF DEFEAT DEVICES IN
VIOLATION OF 752t(afl3flAI OR (afl3flB)—BY PERSONS
ViOLATiON OF 7522(afl aflA) OR (5M3X6)—BY MANUFACTURERS
OR DEALERS, ALL VIOLATIONS OF 7522(t)(1).(2). (4).&(5) ev
ANYONE
ADMINISTRATIVE PENALTIES AS SET IN 7524( i) a 1545( 0) WITH A
MAXIMUM ADMINISTRATIVE PENALTY
VIOLATIONS OF FUELS REGULATIONS
SUPERFUND AMEND & REAUTHORIZATION ACT /NONCOMPLI-
ANCE WPREOUEST FOR INFO OR ACCESS
SUPERFUND /WORK NOT PERFORMED W/IMMINENT, SUBSTAI4-
TIAL ENDANGERMENT
SUPERFUND/ADMIN PENALTY VIOLATIONS UNDER 42 U SC
SECT 9603. 9608, DR 9622
SUPERFUND/ADMIN PENALTY VIOLATIONS—SUBSEQUENT
SUPERFUND/CIVIL JUDICIAL PENALTYNIOLATIONS OF SECT
9603. 9606, 9622
SUPERFUND/CIV1L JUDICIAL PENALlY/SUBSEQUENT VIOLATIONS
OF SECT 9603. 9608. 9622
EMERGENCY PLANNING AND COMMUN1TY R IGHT-TO-KN ACT
CLASS I a Ii ADMINISTRATIVE AND CIVIL PENALTIES
EPCRA CLASS I & II ADMINISTRATIVE AND CIVIL PENALTIES—
SUBSEQUENT VIOLATIONS
EPCRA CIVIL AND AOMIN1STPATIVE REPORTING PENALTIES FOR
VIOLATIONS OF SECTIONS 11022 OR 11023
EPCRA CIViL AND ADMINISTRATIVE REPORTING PENALTIES FOR
VIOLATIONS OF SECTIONS ;1021 OR 11043(bI
EPCRA—FRIVOLOUS TRADE SECRET CLAIMS—CiVIL AND ADMIN-
ISTRATIVE PENALTIES
202
-------
Environmental Protection Agency
Pt.22
statement, in accordance with the re-
quirements of § 21.5
(2) The Regional Administrator will
periodically review State program per-
formance. In the event of State pro-
gram deficiencies the Regional Admin-
istrator will notify the State of such
deficiencies.
(3) During that period that any
State’s program ie classified as defi-
cient, statements issued by a State
shall also be Bent to the Regional Ad-
ministrator for review. The Regional
Administrator shall notify the State,
the applicant, and the SBA of any de-
termination subsequently made, in ac-
cordance with § 21.5, on any such state-
ment.
(i) If within 60 days after notice of
such deficiencies has been provided,
the State has not taken corrective ef-
forts, and if the deficiencies signifi-
cantly affect the conduct of the pro-
gram, the Regional Administrator.
after sufficient notice has been pro-
vided to the Regional Director of SBA.
shall withdraw the approval of the
State program
(ii) Any State whose program is with-
drawn and whose deficiencies have been
corrected may later reapply as pro-
vided in § 21.12(a)
(g) Funds appropriated under section
106 of the Act may be utilized by a
State agency authorized to receive
such funds in conducting this program.
§ 21.13 Effect of certification upon au-
thority to enforce applicable stand-
ards.
The certification by EPA or a State
for SBA Loan purposes in no way con-
stitutes a determination by EPA or the
State that the facilities certified (a)
will be constructed within the time
specified by an applicable standard or
(b) will be constructed and installed in
accordance with the plans and speci-
fications submitted in the application,
will be operated and maintained prop-
erly, or will be applied to process
wastes which are the same as described
in the application. The certification in
no way constitutes a waiver by EPA or
a State of its authority to take appro-
priate enforcement action against the
owner or operator of such facilities for
violations of an applicable standard.
PART 22—CONSOLIDATED RULES
OF PRACTICE GOVERNING THE
ADMINISTRATIVE ASSESSMENT OF
CIVIL PENALTIES AND THE REV-
OCATION OR SUSPENSION OF
PERM ITS
Subpart A—General
Sec
22 01 Scope of these rules
22 02 Use of number and gender
2203 Definitions
22 04 Powers and duties of the Environ-
mental Appeals Board, the Regional Ad-
ministrator, the Regional Judicial Offi-
cer, and the Presiding Officer, disquali-
fication
22 05 Filing, service, and form of pleadings
and documents
22 06 Filing and service of rulings, orders.
and deci8ions
22 07 Computation and extension of time
22 08 Ex parte discussion of proceeding.
22 09 Examination of documents filed
Subpart B—Parties and Appearances
Appearances
Intervention
Consolidation and severance
Subpart C—Prehearlng Procedures
22 13 Issuance of complaint
22 14 Content and amendment of the com-
plaint
22.15 An8wer to the complaint.
22 16 Motions
22 17 Default order
22 18 Informal settlement, consent agree-
ment and order
22 19 Prehearing conference
22 20 Accelerated decision, decision to dis-
miss
Subpart D—Hearlng Procedure
22 21 Scheduling the hearing
72 22 EvIdence
22 23 Objections and offers of proof,
22 24 Burden of presentation, burden of per-
suasion.
22 25 Filing the transcript
22 26 Proposed findings, conclusions, and
order
Subpart E—Initial Decision and Motion to
Reopen a Hearing
22 27 Initial decision.
22 28 Motion to reopen a hearing
2210
22 11
2212
219
-------
40 CFR C l i. I (7—1—97 Edttlon) Environmental Protection Agency
§ 22.0 1
Subpart F—Appeals and Administrative
Review
22.29 Appeal from or review of Interlocutory
orders or rulings
22 30 Appeal from or review of initial deci-
sion
Subpart G—Flr ol Order on Appeal
2231 FInal order on appeal
22 32 Motion to reconsider a final order
Subpart H—Supplemental Rules
22 33 Supplemental rules of practice govern-
ing the administrative assessment Of
civil penalties under the Toxic Sub.
stances Control Act
22 34 Supplemental ruies of practice govern-
ing the administrative assessment of
civil penalties under Title 11 of the Clean
Air Act
22 35 Supplemental rules of practice govern-
ing the administrative assessment of
civil penalties under the Federal Insecti-
cide. Fungicide, and Rodenticide Act.
22 36 Supplemental rules of practice govern-
ing the administrative assessment of
civil penalties and the revocation or sus-
pension of permits under the Marine Pro-
tection. Research. and Sanctuaries Act
22 37 Supplemental rules of practice govern-
ing the administrative assessment of
civil penalties under the Solid Waste Dis-
posal Act
22 38 Supplemental rules of practice govern-
ing the administrative assessment of
Class Ii penalties under the Clean Water
Act
22 39 Supplemental rules of practice govern-
ing the administrative assessment of ad-
ministrative penalties under section 109
of the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act
of 1980. as amended.
2240 Supplemental rules of practice govern-
ing the administrative assessment of ad-
ministrative penalties under section 325
of the Emergency Planning and Commu-
nity Right-To-Know Act of 1986 (EPCRA).
22 41 Supplemental rules of practice govern-
ing the administrative assessment of
clvii penalties under Title II of the Toxic
Substances Control Act, enacted as sec-
tion 2 of the Asbestos }Iazard Emergency
Response Act (AHERA).
22 42 Supplemental rules of practice govern-
ing the administrative assessment of
civil penalties for violations of compli-
ance orders Issued under Part B of the
Safe Drinking Water Act
22 43 Supplemental rules of practice govern-
ing the administrative assessment of
civil penalti’ ier section 113(d)(1) of
the Clean Ai
APPENDIX TO PART 22—ADDRLSSES OF EPA
REGIONAL OFFICES
AUTHORITY: 15 U S C. 2615; 42 U S C 7413(d).
7524(c). ‘1545(d), 7547(d). 7601 and 7607(a); 7
U S.C. 136(1) and (in). 33 U S C. 1319, 1415 and
1418. 42 U S C 6912. 6928 and 6991(e). 42 U S.C.
9609,42 U S C. 11045
SOURCE 45 FR 24363. Apr. 9, 1980, unless
otherwise noted.
Subpart A—General
422.01 Scope of these rules.
(a) These rules of practice govern all
adjudicatory proceedings for:
(1) The assessment of any civil pen-
alty conducted under section 14(a) of
the Federal Insecticide, Fungicide and
Rodenticide Act as amended (7 U.S.C.
1361(a)),
(2) The assessment of any adminis-
trative penalty under sections 113(d)(1),
205(c). 211(d) and 213(d) of the Clean Air
Act, as amended (CAA) (42 U.S.C.
7413(d)(1), 7524(c), 7545(d) and 7547(d)).
(3) The assessment of any civil pen-
alty or for the revocation or suspension
of any permit conducted under section
105 (a) and (f) of the Marine Protection.
Research. and Sanctuaries Act as
amended (33 U.S C. 1415(a));
(4) The Issuance of a compliance
order or the issuance of a corrective ac-
tion order, the suspension or revoca-
tion of authority to operate pursuant
to section 3005(e) of the Solid Waste
Disposal Act, or the assessment of any
civil penalty under sections 3008, 9006
and 11005 of the Solid Waste Disposal
Act, as amended (42 U.S.C. 6928, 6991(e)
and 6992(d)), except as provided in 40
CFR parts 24 and 124.
(5) The assessment of any civil pen-
alty conducted under section 16(a) of
the Toxic Substances Control Act (15
U.S.C. 2615(a));
(6) The assessment of any Class II
penalty under section 309(g) of the
Clean Water Act (33 U.S.C. 1319(g));
(7) The assessment of any adminis-
trative penalty under section 109 of the
Comprehensive Environmental Re-
sponse. Compensation, and Liability
Act of 1980. as amended (42 U.S.C. 9609);
(8) The assessment of any adminis-
trative penalty under section 325 of the
Emergency Planning and Community
Right-To-Know Act of 1986 (EPCRA) (42
U.S.C. 11045).
(9) The assessment of any civil pen-
alty conducted under section
1414(g)(3)(B) of the Safe Drinking Water
Act as amended (42 U.S.C. 300g—
3(g)(3)(B)).
(b) The Supplemental rules of prac-
tice set forth in subpart H establish
rules governing those aspects of the
proceeding in question which are not
covered in subparts A through 0. and
also specify procedures which super-
sede any conflicting procedures set
forth In those subparts.
(c) Questions arising at any stage of
the proceeding which are not addressed
In these rules or in the relevant supple-
mentary procedures shall be resolved
at the discretion of the Administrator,
Regional Administrator, or Presiding
Officer, as appropriate.
(45 FR 24363. Apr. 9. 1980. as amended at 52
FR 30673. Aug. 17. 1987. 53 FR 12263, Apr. 13.
1988. 54 FR 12371. Mar. 24. 1989, 54 FR 21176,
May 16. 1989; 56 FR 3757. Jan. 30. 1991; 67 FR
4318, Feb. 4. 1992)
* 22.02 Uge of number and gender.
As used In these rules of practice.
words in the singular also Include the
plural and words in the masculine gen-
der also Include the feminine and vice
versa, as the case may require.
422.03 DefInitions.
(a) The following definitions apply to
part 22:
Ac means the particular statute au-
thori ing the institution of the pro-
ceeding at issue
Administrative Law Judge means an
Administrative Law Judge appointed
under S U.S.C. 3105 (see also Pub. L. 95—
251, 92 Stat. 183).
Administrator means the Adminis-
trator of the U.S. Environmental Pro-
tection Agency or his delegate,
Agency means the United States En-
vironmental Protection Agency.
Complainant means any person au-
thorized to issue a complaint on behalf
of the Agency to persons alleged to be
in violation of the Act. The complain-
ant shall.not be a member of the Envi-
ronmental Appeals Board, the Regional
Judicial Officer, or any other person
who will participate or advise in the
decision.
Complaint means a written commu-
nication, alleging one or more viola-
§22.03
tions of specific provisions of the Act.
or regulations or a permit promulgated
thereunder, Issued by the complainant
to a person under 4 22.13 and 22 14.
Consent Agreement means any written
document, signed by the parties, con-
taining stipulations or conclusions of
fact or law and a proposed penalty or
proposed revocation or suspension ac-
ceptable to both complainant and re-
spondent.
Environmental Appeals Board means
the Board within the Agency described
in § 1.25 of this title, located at U.S En-
vironmental Protection Agency, A—hO,
401 M St. SW.. Washington, DC 20460.
Final Order means (a) an order issued
by the Administrator after an appeal of
an initial decision, accelerated deci-
sion, decision to dismiss, or default
order, disposing of a matter in con-
troversy between the parties, or (b) an
initial decision which becomes a final
order under *22.27(c).
Hearing means a hearing on the
record open to the public and con-
ducted under these rules of practice
Hearing Clerk means the Hearing
Clerk. A—lb. U.S. Environmental Pro-
tection Agency, 401 M St. SW , Wash-
ington. DC 20460.
Initlal Decision means the deciston is-
sued by the Presiding Officer based
upon the record of the proceedings out
of which It arises
Party means any person that partici-
pates in a hearing as complainant, re-
spondent. or intervenor.
Permit means a permit Issued under
Bection 102 of the Marine Protection,
Research, and Sanctuaries Act
Person includes any IndIvidual, part-
nership, association, corporation, and
any trustee, assignee, receiver or legal
successor thereof; any organized group
of persons whether incorporated or not;
and any officer, employee, agent, de-
partment, agency or instrumentality of
the Federal Government, of any State
or local unit of government, or of any
foreign government.
Presiding Officer means the Adminis-
trative Law Judge designated by the
Chief Administrative Law Judge to
serve as Presiding Officer, unless other-
wise specified by any supplemental
rules.
Regional Administrati’-’ “ieans the Ad-
ministrator of any 1 al Office of
-------
§22.04
40 CFR Ch. I (7— -97 EdUlon) Environmental Protection Agency
§ 22.0
the Agency or any officer or employee
thereof to whom his authority Is duly
delegated. Where the Regional Admin-
istrator has authorized the Regional
Judicial Officer to act, the term Re-
gional Administrator shall include the
Regional Judicial Officer. In a case
where the complainant Is the Assistant
Administrator for Enforcement or his
delegate, the term Regional Adminis-
trator as used in these rules shall mean
the AdminiBtrator.
Regional Hearing Clerk means an Indi-
vidual duly authorized by the Regional
Administrator to serve as hearing
clerk for a given region. Correspond-
ence may be addressed to the Regional
Hearing Clerk. U.S. Environmental
Protection Agency (address of Regional
Office—see appendix). In a case where
the complainant is the Assistant Ad-
ministrator [ or Enforcement or his del-
egate. the term Regional HeaTing CleTk
as used in these rules shall mean the
Hearing Clerk
Regional Judicial Officer means a per-
son designated by the Regional Admin-
istrator under §22 04(b) to serve as a
Regional Judicial Officer.
Respondent means any person pro-
ceeded against in the complaint.
(b) Terms defined in the Act and not
defined in these rules of practice are
used consistent with the meanings
given in the Act
(45 FR 24363. Apr 9, 1980. as amended a 57
FR 5323. Feb 13. 1992]
§ 22.04 Powers and duties of the Envi.
ronmental Appeals Board, the Re-
gional Administrator, the Regional
Judicial Officer, and the Presiding
Officer; disqualification.
(a) Environmental Appeals Board. The
Administrator delegates authority
under the Act to the Environmental
Appeals Board to perform the functions
assigned to it in these rules of practice
An appeal or motion under this part di-
rected to the Administrator, rather
than to the Environmental Appeals
Board, will not be considered. This del-
egation of authority to the Environ-
mental Appeals Board does not pre-
clude the Environmental Appeals
Board from referring any case or mo-
tion governed by this part to the Ad-
ministrator when the Environmental
Appeals Board, in its direction, deems
it appropriate to do so. When an appeal
or motion is referred to the Adminis-
trator, all parties shall be so notified
and the rules in this part referring to
the Environmental Appeals Board shall
be interpreted as referring to the Ad-
ministrator If a case or motion is re-
ferred to the Administrator by the En-
vironmental Appeals Board, the Ad-
ministrator may con8ult with any EPA
employee concerning the matter, pro-
vided such consultation does not vio-
late the ex parts rules Bet forth in
§ 22.08.
(b) Regional Administrator. The Re-
gional Administrator shall exercise all
powers and duties as prescribed or dele-
gated under the Act and these rules of
practice.
(1) Delegation to RegIonal Judicial Offi-
cer. One or more Regional Judicial Offi-
cers may be designated by the Regional
Administrator to perform, within the
region of their designation, the func-
tions described below. The Regional
Administrator may delegate his or her
authority to a Regional Judicial Offi-
cer to act in a given proceeding. This
delegation will not prevent the Re-
gional Judicial Officer from referring
any motion or case to the Regional Ad-
ministrator. The Regional Judicial Of-
ficer shall exercise all powers and du-
ties prescribed or delegated under the
Act or these rules of practice.
(2) Qualifications of Regional Judicial
Officer. A Regional Judicial Officer
shall be an attorney who is a perma-
nent or temporary employee of the
Agency or some other Federal agency
and who may perform other duties
within the Agency. A Regional Judicial
Officer shall not be employed by the
Region’s Enforcement Division or by
the Regional Division directly associ-
ated with the type of violation at Issue
in the proceeding. A Regional Judicial
Officer shall not have performed pros-
ecutorial or investigative functions in
connection with any hearing In which
he serves as a Regional Judicial Officer
or with any factually related hearing.
(C) Presiding Officer. The Presiding Of-
ficer shall conduct a fair and impartial
proceeding, assure that the facts are
fully elicited, adjudicate all issues, and
avoid delay. The Presiding Officer shall
have authority to:
(I) Conduct administrative hearings
under these rules of practice;
(2) Rule upon motions, requests, and
offers of proof, dispose of procedural re-
quests and issue all necessary orders:
(3) Administer oaths and affirmations
and take affidavits;
(4) Examine witnesses and receive
documentary or other evidence;
(5) For good cause, upon motion or
eua sponte, order a party, or an officer
or agent thereof, to produce testimony,
documents, or other nonprivileged evi-
dence, and failing the production there-
or without good cause being shown,
draw adverse inferences against that
party;
(6) Admit or exclude evidence,
(7) Hear and decide questions of facts.
law, or discretion;
(6) Require parties to attend con-
ferences for the settlement or sim-
plification of the issues, or the expedi-
tion of the proceedings,
(9) Issue subpoenas authorized by the
Act; and
(10) Do all other acts and take all
measures necessary for the mainte-
nance of order and for the efficient, fair
and impartial adjudication of Issues
arising in proceedings governed by
these rules.
(d) Disqualification, withdrawal. (1)
The Administrator, the Regional Ad-
ministrator. the members of the Envi-
ronmental Appeals Board, the Regional
Judicial Officer, or the Presiding Offi-
cer may not perform functions pro-
viaed for in these rules of practice re-
garding any matter in which they (i)
have a financial interest or (ii) have
any relationship with a party or with
the subject matter which would make
it inappropriate for them to act. Any
party may at any time by motion made
to the Regional Administrator request
that the Regional Judicial Officer be
disqualified from the proceeding. Any
party may at any time by motion to
the Administrator request that the Re-
gional Administrator, a member of the
Environmental Appeals Board, or the
Presiding Officer be disqualified or re-
quest that the Administrator dis-
qualify himself or herself from the pro-
ceeding. The Administrator, the Re-
gional Administrator, a member of the
Environmental Appeals Board, the Re-
gional Judicial Officer, or the Presid-
ing Officer may at any time wlthdra
from any proceeding in which the
deem themselves disqualified or urtabi
to act for any reason.
(2) If the Administrator, the flnçlcni
Administrator, the Regional I ‘lel t
Officer, or the Presiding Officer is di’
qualified or withdraws from the prc
ceedlng, a qualified individual who ha
none of the infirmities listed in parr
graph (d)(1) of this section shall be ai
signed to replace him Assignment of
replacement for Rogional Adminit
trator or for the Regional Judicial Off
cer shall be made by the Administrat
or the Regional Administrator. respe
tively. The Administrator, should he c
she withdraw or disqualify himself c
herself, shall assign the Regional A
ministrator from the Region where th
case originated to replace him or he
If that Regional Administrator woul
be disqualified, the Administrator eha
assign a Regional Administrator (rot
another region to replace the Admini’
trator. The Regional Administrat
shall assign a new Presiding Officer
the original Presiding Officer was n
an Administrative Law Judge. Th
Chief Administrative Law Judge sha
assign a new Presiding Officer froi
among available Administrative La
Judges if the original Presiding Office
was an Administrative Law Judge.
(3) The Chief Administrative La
Judge, at any stage In the proceedin
may reassign the case to an Adminhi
trative Law Judge other than the on
originally assigned in the event of th
unavailability of the Administrativ
Law Judge or where reassignment WI
result in efficiency in the scheduling
hearings and would not prejudice th
parties.
(45 FR 24353, Apr. 9, 1980, as amended at
FR 5324, Feb. 13, 1992, 57 FR 60129. Dec 1
1992]
§22.05 Filing, service, and form
pleadings and ocurnents.
(a) Filing of pleadings and document
(1) Except as otherwise provided, ti
original and one copy of the complain
and the original of the answer and
all other documents served in the pri
ceeding shall be filed with the Regions
Hearing Clerk.
(2) A certificate of service shall a
company each document filed
-------
§ 22.05
40 CFR Ch. I (7—1—97 EdItion) Environmental Protection Agency
§ 22.08
served. Except as otherwise provided, a
party filing documents with the Re-
gional Hearing Clerk, after the filing of
the answer, shall servo copies thereof
upon all other parties and the Presid-
ing Officer. The Presiding Officer shall
maintain a duplicate file during the
course of the proceeding.
(3) When the Presiding Officer cor-
responds directly with the parties, the
original of the correspondence shall be
sent to the Regional Hearing Clerk, a
copy shall be maintained by the Presid-
ing Officer in the duplicate file, and a
copy shall be sent to all parties. Par-
ties who correspond directly with the
Presiding Officer shall in addition to
serving all other parties send a copy of
all such correspondence to the Re-
gional Hearing Clerk A certificate of
service shall accompany each docu-
ment served under this subsection
(b) Scrwce of pleadings and docu-
7nents—-(l) Seruice of complaint (i) Serv-
ice of a copy of the signed original of
the complaint, together with a copy of
these rules of practice, may be made
personally or by certified mall, return
receipt requested, on the respondent
(ot hs representative)
( Ii) Service upon a domestic or for-
eiqn corporation or upon a partnership
or other unincorporated association
which is subject to suit under a com-
mon name shall be made by personal
service or certified mall, as prescribed
by paragraph (b)(1)(i) of this section,
directed to an officer, partner, a man-
aging or general agent, or to any other
person authorized by appointment or
by Federal or State law to receive serv-
ice of process
(lii) Service upon an officer or agency
of the United States shall be made by
delivering a copy of the complaint to
the officer or agency, or in any manner
prescribed for service by applicable
regulations If the agency Is a corpora-
tion, the complaint shall be served as
prescribed in paragraph (b)(l)(ii) of this
section
(iv) Service upon a State or local
unit of government, or a State or local
officer, agency, department, corpora-
tion or other instrumentality shall be
made by serving a copy of the com-
plaint in the manner prescribed by the
law of the Stat— er the service of proc-
ess on any su sons, or.
(A) If upon a State or local unit of
government, or a State or local depart-
ment. agency, corporation or other in-
strumentality, by delivering a copy of
the complaint to the chief executive of-
ficer thereof;
(B) If upon a State or local officer by
delivering a copy to such officer.
(v) Proof of service of the complaint
shall be made by affidavit of the person
making personal service, or by prop-
erly executed return receipt. Such
proof of service shall be filed with the
complaint immediately upon comple-
tion of service.
(2) Service of documents other than
complaint, rulings, orders, and decisions.
All documents other than the com-
plaint, rulings, orders, and decisions,
may be served personally or by cer-
tified or first class mail.
(C) Form of pleadings and documents
(1) Except as provided herein, or by
order of the Presiding Officer or of the
Environmental Appeals Board, there
are no specific requirements as to the
form of documents.
(2) The first page of every pleading.
letter, or other document shall contain
a caption identifying the respondent
and the docket number which is exhib-
ited on the complaint.
(3) The original of any pleading, let-
ter or other document (other than ex-
hibits) shall be signed by the party fil-
ing or by his counsel or other rep-
resentative. The signature constitutes
a representation by the signer that he
has read the pleading, letter or other
document, that to the best of his
knowledge, Information and belief, the
statements made therein are true, and
that It is not interposed for delay.
(4) The initial document filed by any
person shall contain his name, address
and telephone number. Any changes in
this Information shall be commu-
nicated promptly to the Regional Hear-
ing Clerk, Presiding Officer, and all
parties to the proceeding A party who
fails to furnish such information and
any changes thereto shall be deemed to
have waived his right to notice and
service under these rules.
(5) The Environmental Appeals
Board, the Regional Administrator, the
Presiding Officer, or the Regional
Hearing Clerk may refuse to file any
document which does not comply with
this paragraph Written notice of such
refusal, stating the reasons therefor,
shall be promptly given to the person
submitting the document. Such person
may amend and resubmit any docu-
ment refused for filing upon motion
granted by the Environmental Appeals
Board, the Regional Administrator, or
the Presiding Officer, as appropriate.
(45 FR 24363, Apr 9. 1980, as amended at 57
FR 5324, Feb 13, 1992)
22.O6 Filing and service of rulings,
orders, and deci8ions.
All rulings, orders, decisions, and
other documents issued by the Re-
gional Administrator, Regional Judi-
cial Officer, or Presiding Officer, as ap-
propriate, shall be filed with the Re-
gional Hearing Clerk. All such docu-
ments issued by the Environmental Ap-
peals Board shall be filed with the
Clerk of the Environmental Appeals
Board. Copies of such rulings, orders,
decisions, or other documents shall.be
served personally, or by certified mail,
return receipt requested, upon all par-
ties by the Environmental Appeals
Board, the Regional Administrator, the
Regional Judicial Officer, or the Pre-
siding Officer, as appropriate.
(45 FR 24363. Apr 9, 1980, as amended at 57
FR 5324, Feb. 13, 1992)
*22.07 Computation and extension or
time.
(a) Computation. In computing any
period of time prescribed or allowed in
the8e rules of practice, except as other-
wise provided, the day of the event
from which the designated period be-
gins to run shall not be Included. Sat-
urdays, Sundays, and Federal legal
holidays shall be included. When a
stated time expires on a Saturday,
Sunday or legal holiday, the stated
time period shall be extended to in-
clude the next business day
(b) Extensions of time. The Environ-
mental Appeals Board, the Regional
Administrator, or the Presiding Offi-
cer, as appropriate, may grant an ex-
tension. of time for the filing of any
pleading, document, or motion (1) upon
timely motion of a party to the pro-
ceeding, for good cause shown, and
after consideration of prejudice to
other parties, or (2) upon its or his own
motion. Such a motion by a party may
only be made after notice to all other
partIes, unless the movant can show
good cause why serving notice Is im-
practicable. The motion shall be filed
in advance of the date on which the
pleading, document or motion is due to
be filed, unless the failure of a party to
make timely motion for extension of
time was the result of excusable ne-
glect.
(C) Service by mail. Service of the com-
plaint is complete when the return re-
ceipt is signed. Service of all other
pleadings and documents is complete
upon mailing. Where a pleading or doc-
ument is served by mall, five (5) days
shall be added to the time allowed by
these rules for the filing of a responsive
pleading or document.
(45 FR 24363. Apr. 9. 1980. as amended at 57
FR 5324. Feb 13, 1992)
* 22.08 Ex parte discussion of proceed-
ing.
At no time after the issuance of the
complaint shall the Administrator, the
merribers of the Environmental Appeal8
Board, the Regional Administrator, the
Regional Judicial Officer, the Presid-
ing Officer, or any other person who Is
likely to advise these offlcial8 In the
decision on the case, discuss ox parte
the merits of the proceeding with any
interested person outside the Agency,
with any Agency staff member who
performs a prosecutorial or investiga-
tive function in such proceeding or a
factually related proceeding, or with
any representative of such person. Any
ox parte memorandum or other com-
munication addressed to the Adminis-
trator, the Regional Administrator
the Environmental Appeals Board. thi
Regional Judicial Officer. or the Pre
siding Officer during the pendency 01
tim proceeding and relating to the mer
Its thereof, by or on behalf of any part3
shall be regarded as argument made ii
the proceeding and shall be served upoi
all other parties. The other partie
shall be given an opportunity to repl3
to such memorandum or communica
tion.
(45 FR 24363. Apr 9, 1980. as amended at 5
FR 5325. Feb 13. 1992)
nflr
-------
§22.09
40 CFR Ch. I (7—1-97 EdItion) Environmental Protection Agency
§ 22.14
p22.09 Examination of documents
filed.
(a) Subject to the provisions of law
restricting the public disclosure of con-
fidential information, any person may.
during Agency business hours. inspect
and copy any document filed in any
proceeding Such documents shall be
made available by the Regional Hear-
ing Clerk, the Hearing Clerk, or the
Environmental Appeals Board, as ap-
propriate.
(b) The cost of duplicating documents
filed in any proceeding shall be borne
by the person seeking copies of such
documents. The Agency may waive this
cost in appropriate cases.
(45 FR 24363. Apr 9. 1980. as amended at 57
FR 5325, Feb 13. 1992]
Subpart B—Parties and
Appearances
22.10 Appearances.
Any party may appear in person or
by counsel or other representative A
partner may appear on behalf of a part-
nership and an officer may appear on
behalf of a corporation Persons who
appear as counsel or other representa-
tive must conform to the standards of
conduct and ethics required of practi-
tioners before the courts of the United
States
22.l1 Intervention.
(a) Motion. A motion for leave to in-
tervene in any proceeding conducted
under these rules of practice must set
forth the grounds for the proposed
intervention, the position and interest
of the movant and the likely impact
that intervention will have on the ex-
peditious progress of the proceeding.
Any person already a party to the pro-
ceeding may file an answer to a motion
to intervene, making specific reference
to the factor-s set forth in the foregoing
sentence and paragraph (c) of this sec-
tion, within ten (10) days after service
of the motion for leave to intervene.
(b) When filed. A motion for leave to
intervene in a proceeding must ordi-
narily be filed before the first prehear-
ing conference or, in the absence of a
prehearing conference, before the initi-
ation of correspondence under 22.19(e),
or if there is no such correspondence,
prior to the setting of a time and place
for a hearing. Any motion filed after
that time must include, in addition to
the information set forth in paragraph
(a) of this section, a statement of good
cause for the failure to file in a timely
manner. The intervenor shall be bound
by any agreements, arrangements and
other matters previously made in the
proceeding.
(0) DispositIon Leave to intervene
may be granted only if the movant
demonstrates that (1) his presence in
the proceeding would not unduly pro-
long or otherwise prejudice the adju-
dication of the rights of the original
parties: (2) the movant will be ad-
versely affected by a final order; and (3)
the interests of the movant are not
being adequately represented by the
original parties The intervenor shall
become a full party to the proceeding
upon the granting of leave to inter-
vene.
(d) Amicus curiae, The motion shall
identify the interest of the applicant
and shall state the reasons why the
proposed amicus brief is desirable. If
the motion is granted, the Presiding
Officer or Administrator shall issue an
order setting the time for filing such
brief. If the motion is granted, the Pre-
siding Officer or the Environmental
Appeals Board shall issue an order set-
ting the time for filing such brief.
(45 FR 24363, Apr 9, 1980, as amended at 57
FR 5325, Feb 13, 19921
* 22.12 Consolidation and severance.
(a) Consolidation The Presiding Offi-
cer may, by motion or sua sponto, con-
solidate any or all matters at issue in
two or more proceedings docketed
under these rules of practice where (1)
there exists common parties or com-
mon questions of fact or law, (2) con-
solidation would expedite and simplify
consideration of the issues, and (3) con-
solidation would not adversely affect
the rights of parties engaged in other-
wise separate proceedings.
(b) Severance. The Presiding Officer
may, by motion or sua sponte, for good
cause shown order any proceedings sev-
ered with respect to any or all parties
or issues.
Subpart C—Prehearlng
Procedures
22.13 hsuance of complaint.
If the complainant has reason to be-
lieve that a person has violated any
provision of the Act, or regulations
promulgated or a permit issued under
the Act, he may institute a proceeding
for the assessment of a civil penalty by
issuing a complaint under the Act and
these rules of practice. If the complain-
ant has reason to believe that
(a) A permittee violated any term or
condition of the permit, or
(b) A permittee misrepresented or in-
accurately described any material fact
in the permit application or failed to
disclose all relevant facts in the permit
application, or
(C) Other good cause exists for such
action, he may institute a proceeding
for the revocation or suspension of a
permit by issuing a complaint under
the Act and these rules of practice A
complaint may be for the suspension or
revocation of a permit in addition to
the assessment of a civil penalty.
22.14 Content and amendment of the
complaint.
(a) Complaint for the assessment of a
civil penalty. Each complaint for the as-
sessment of a civil penalty shall in-
clude.
(1) A statement reciting the sec-
tion(s) of the Act authorizing the issu-
ance of the complaint;
(2) Specific reference to each provi-
sion of the Act and implementing regu-
lations which respondent is alleged to
have violated;
(3) A concise statement of the factual
basis for alleging the violation;
(4) The amount of the civil penalty
which is proposed to be assessed:
(5) A statement explaining the rea-
soning behind the proposed penalty;
(6) Notice of respondent’s right to re-
quest a hearing on any material fact
contained in the complaint, or on the
appropriateness of the amount of’ the
proposed penalty.
A copy of these rules of practice shall
accompany each complaint served,
(b) Complaint for the revocation or sus-
pension of a permit. Each complaint for
the revocation or suspension of a per-
mit shall include:
(1) A statement reciting the sec-
tion(s) of the Act, regulations, and/or
permit authorizing the issuance of the
complaint:
(2) Specific reference to each term or
condition of the permit which the re-
spondent is alleged to have violated, to
each alleged inaccuracy or misrepre-
sentation in respondent’s permit appli-
cation. to each fact which the respond-
ent allegedly failed to disclose in hi8
permit application, or to other reasons
which form the basis for the complaint;
(3) A concise statement of the factual
basis for such allegations.
(4) A request for an order to either
revoke or suspend the permit and a
statement of the terms and conditions
of any proposed partial suspension or
revocation;
(5) A statement indicating the basis
for recommending the revocation, rath-
er than the suspension, of the permit,
or vice versa, as the case may be.
(6) Notice of the respondent’s right to
request a hearing on any material fact
contained in the complaint, or on the
appropriateness of the proposed revoca-
tion or suspension
A copy of these rules of practice shall
accompany each complaint served.
(c) Derivation of proposed civil penalty.
The dollar amount of the proposed civil
penalty sha l l be determined in accord-
ance with any criteria set forth In the
Act relating to the proper amount of a
civil penalty and with any civil penalty
guidelines issued under the Act.
(d) Amendment of the complaint The
complainant may amend the complaint
once as a matter of right at any time
before the answer is filed. Otherwise
the complainant may amend the com-
plaint only upon motion granted by the
Presiding Officer or Regional Adminis-
trator, as appropriate Respondent
shall have twenty (20) additional days
from the date of service of the amended
complaint to file his answer
(e) Withdrawal of the complaint The
complainant may withdraw the com-
plaint, or any part thereof, without
prejudice one time before the answer
has been filed. After one withdrawal
before the filing of an answer, or after
the filing of an anBwer, the complain-
ant may withdraw the complaint, or
-------
§ 22.15
40 CFR Ch. I (7—1—97 EditIon) Environmental Protection Agency
§22.19
any part thereof, without prejudice.
only upon motion granted by the Pre-
siding Officer or Regional Adminis-
trator. as appropriate
022.15 Answer to the complaint.
(a) General. Where respondent: (1)
Contests any material fact upon which
the complaint Is based; (2) contends
that the amount of the penalty pro-
posed in the complaint or the proposed
revocation or suspension, as the case
may be, is inappropriate; or (3) con-
tends that he is entitled to Judgment
as a matter of law, he shall file a writ-
ten answer to the complaint with the
Regional Hearing Clerk. Any such an-
swer to the complaint must be filed
with the Regional Hearing Clerk with-
in twenty (20) days after service of the
complaint
(b) Contents of the answer. The answer
shall clearly and directly admit, deny
or explain each of the factual allega-
tions contained in the complaint with
regard to which respondent has any
knowledge. Where respondent has no
knowledge of a particular factual alle-
gation and so states, the allegation Is
deemed denied The answer shall also
state (1) the circumstances or argu-
ments which are alleged to constitute
the grounds of defense, (2) the facts
which respondent intends to place at
Issue, and (3) whether a hearing is re-
quested.
(C) Request for hearing. A hearing
upon the issues raised by the complaint
and answer shall be held upon request
of respondent in the answer In addi-
tion, a hearing may be held at the dis-
cretion of the Presiding Officer, sua
sponte. if issues appropriate for adju-
dication are raised in the answer.
(d) Failure to admit, deny, or explain.
Failure of respondent to admit, deny,
or explain any material factual allega-
tion contained in the complaint con-
stitutes an admission of the allegation.
(e) Amendment of the answer. The re-
spondent may amend the answer to the
complaint upon motion granted by the
Presiding Officer.
§ 22.18 Motions.
(a) General. All motions, except those
made orally on the record during a
hearing, shall (‘‘ e in writing; (2) state
the grounds for with particular-
ity; (3) set forth the relief or order
sought; and (4) be accompanied by any
affidavit, certificate, other evidence, or
legal memorandum relied upon. Such
motions shall be served as provided by
§ 22.05(b)(2).
(b) Response to motions. A party’s re-
sponse to any written motion must be
filed within ten (10) days after service
of such motion, unless additional time
is allowed for such response. The re-
sponse shall be accompanied by any af-
fidavit, certificate, other evidence, or
legal memorandum relied upon. If no
response Is filed within the designated
period, the parties may be deemed to
have waived any objection to the
granting of the motion. The Presiding
Officer, the Regional Administrator, or
the Environmental Appeals Board, as
appropriate, may set a shorter time for
response, or make such orders concern-
ing the disposition of motions as they
deem appropriate
(c) Decision Except as provided in
§22 04(d)(1) and §22 28(a), the Regional
Administrator shall rule on all motions
filed or made before an answer to the
complaint is filed. The Environmental
Appeals Board shall rule on all motions
filed or made after service of the initial
decision upon the parties. The Admin-
istrator shall rule on all motions filed
or made after service of the initial de-
cision upon the parties. The Presiding
Officer shall rule on all other motions
Oral argument on motions will be per-
mitted where the Presiding Officer, the
Regional Administrator, or the Envi-
ronmental Appeals Board considers it
necessary or desirable
(45 FR 24363, Apr 9, 1980, as amended at 57
FR 5325, Feb. 13, 1992. 57 FR 60129, Dec. 18.
1992)
§ 22.17 Default order.
(a) Default. A party may be found to
be in default (1) after motion, upon
failure to file a timely answer to the
complaint; (2) after motion or sun
sponte, upon failure to comply with a
prehearing or hearing order of the Pre-
siding Officer; or (3) after motion or
sua sponte, upon failure to appear at a
conference or hearing without good
cause being shown. No finding of de-
fault on the basis of a failure to appear
at a hearing shall be made against the
respondent unless the complainant pre-
sents sufficient evidence to the Presid-
ing Officer to establish a prima fade
case against the respondent. Any mo-
tion for a default order shall include a
proposed default order and shall be
served upon all parties. The alleged de-
faulting party shall have twenty (20)
days from service to reply to the mo-
tion. Default by respondent con-
stitutes, for purposes of the pending ac-
tion only, an admission of all facts al-
leged in the complaint and a waiver of
respondent’s right to a hearing on such
factual allegations, If the complaint Is
for the a8sessment of a civil penalty,
the penalty proposed in the complaint
shall become due and payable by re-
8pondent without further proceeding8
sixty (60) days after a final order issued
upon default. If the complaint Is for
the revocation or suspension of a per-
mit, the conditions of revocation or
suspension proposed in the complaint
shall become effective without further
proceedings on the date designated by
the Administrator in his final order is-
sued upon default Default by the com-
plainant shall result in the dismissal of
the complaint with prejudice.
(b) Procedures upon default. When Re-
gional Administrator or Presiding Offi-
cer finds a default has occurred, he
shall issue a default order against the
defaulting party. This order shall con-
stitute the initial decision, and shall be
filed with the Regional Hearing Clerk
(c Contents of a default order. A de-
fault order shall include findings of
fact showing the grounds for the order,
conclusions regarding all material is-
sues of law or discretion, and the pen-
alty which is recommended to be as-
sessed or the terms and conditions of
permit revocation or suspension, as ap-
propriate.
(d) For good cause shown the Re-
gional Administrator or the Presiding
Officer, as appropriate, may set aside a
default order.
022.18 Informal settlement; consent
agreement and order.
(a) Settlement policy. The Agency en-
courages settlement of a proceeding at
any time if the settlement Is consist-
ent with the provlaions and objectives
of the Act and applicable regulations.
The respondent may confer with corn-
plainant concerning settlement wheth-
er or not the respondent requests a
hearing. Settlement conferences shall
not affect the respondent’s obligation
to file a timely answer under 022 16.
(b) Consent agreement The parties
shall forward a written consent agree-
ment and a proposed consent order to
the Regional Administrator w ’ onever
settlement or compromise Is proposed.
The consent agreement shall state
that, for the purpose of this proceed-
ing, respondent (1) admits the jurisdic-
tional allegations of the complaint; (2)
admits the facts stipulated in the con-
sent agreement or neither admits nor
denies specific factual allegations con-
tained in the complaint; and (3) con-
sents to the assessment of a stated
civil penalty or to the stated permit
revocation or suspension, as the case
may be. The consent agreement shall
Include any and all terms of the agree-
ment, and shall be signed by all parties
or their counsel or representatives.
(C) Consent order. No settlement or
consent agreement shall dispose of any
proceeding under these rules of prac-
tics without a consent order from the
Regional Administrator In preparing
such an order, the Regional Adminis-
trator may require that the parties to
the settlement appear before him to
answer Inquiries relating to the con-
sent agreement or order
022.19 Prehearing conference.
(a) Purpose of prehearing conference
Unless a conference appears unneces-
sary, the Presiding Officer, at any time
before the hearing begins, shall direct
the parties and their counsel or other
representatives to appear at a con-
ference before him to consider:
(1) The 8ettlement of the case;
(2) The simplification of issues and
stipulation of facts not in dispute;
(3) The necessity or desirability of
amendments to pleadings;
(4) The exchange of exhibits, docu-
ments, prepared testimony, and admis-
sions or stipulations of fact which will
avoid unnecessary proof;
(5) The limitation of the number of
expert or other witnesses;
(6) Setting a time place for the
hearing; and
-------
§ 22.20
40 CFR Ch. I (7—1—97 EditIon) Environmental Protection Agency
§ 22.22
(7) Any other matters which may ex-
pedite the disposition of the proceed-
ing.
(b) Exchange of witness hsts and docu-
ments. Unless otherwise ordered by the
Presiding Officer, each party at the
prehearing conference shall make
available to all other parties (1) The
names of the expert and other wit-
nesses he intends to call, together with
a brief narrative summary of their ex-
pected testimony, and (2) copies of all
documents and exhibits which each
party intends to introduce into evi-
dence. Documents and exhibits shall be
marked for identification as ordered by
the Presiding Officer Documents that
have not been exchanged and witnesses
whose names have not been exchanged
shall not be introduced into evidence
or allowed to testify without permis-
sion of the Presiding Officer The Pre-
siding Officer shall allow the parties
reasonable opportunity to review new
evidence
(C) Record of the prehearing conference
No transcript of a prehearing con-
ferenco relating to settlement shall be
made With respect to other prehearing
conferences, no transcript of any pre-
hearing conferences shall be made un-
less ordered by the Presiding Officer
upon motion of a party or sua sponte.
The Presiding Officer shall prepare and
file for the record a written summary
of the action taken at the conference
The summary shall Incorporate any
written stipulations or agreements of
the parties and all rulings and appro-
priate orders containing directions to
the parties
Cd) Location of prehearing conference.
The prehearing conference shall be
held In the county where the respond-
ent resides or conducts the business
which the hearing concerns, In the city
in which the relevant Environmental
Protection Agency Regional Office is
located, or in Washington. DC, unless
(1) the Presiding Officer determines
that there is good cause to hold it at
another location in a region or by tele-
phone, or (2) the Supplemental rules of
practice provide otherwise
(e) Unavailability of a prehearing con-
ference. If a prehearing conference is
unnecessary or impracticable, the Pre-
siding Officer, on motion or sua sponte,
may direct the parties to correspond
with him to accomplish any of the ob-
jectives set forth in this section.
(f) Other discoverij. (1) Except as pro-
vided by paragraph (b) of this section,
further discovery, under this section,
shall be permitted only upon deter-
mination by the Presiding Officer:
(I) That such discovery will not in
any way unreasonably delay the pro-
ceeding;
(ii) That the information to be ob-
tained is not otherwise obtainable; and
(iii) That such information has sig-
nificant probative value.
(2) The Presiding Officer shall order
depositions upon oral questions only
upon a 8howlrlg of good cau8e and upon
a finding that
(I) The information sought cannot be
obtained by alternative methods; or
(ii) There is a substantial reason to
believe that relevant and probative evi-
dence may otherwise not be preserved
for presentation by a witness at the
hearing.
(3) Any party to the proceeding desir-
ing an order of discovery shall make a
motion therefor. Such a motion shall
set forth;
(i) The circumstances warranting the
taking of the discovery;
(ii) The nature of the information ex-
pected to be diacovered; and
(iii) The proposed time and place
where it will be taken. If the Presiding
Officer determines that the motion
should be granted, he shall issue an
order for the taking of such discovery
together with the conditions and terms
thereof.
(4) When the information sought to
be obtained is within the control of one
of the parties, failure to comply with
an order issued pursuant to this para-
graph may lead to (1) the inference that
the information to be discovered would
be adverse to the party from whom the
information was sought, or (ii) the is-
suance of a default order under
§22 17(a).
§ 22.20 Accelerated decision; decision
to dismiss.
(a) General. The Presiding Officer,
upon motion of any party or sua
eponte, may at any time render an ac-
celerated decision in favor of the com-
plainant or the respondent as to all or
any part of the proceeding, without
further hearing or upon such limited
additional evidence, such as affidavits,
as he may require, if no genuine issue
of material fact exists and a party is
entitled to judgment as a matter of
law, as to all or any part of the pro-
ceeding. In addition, the Presiding Offi-
cer, upon motion of the respondent,
may at any time dismiss an action
without further hearing or upon such
limited additional evidence as he re-
quires, on the basis of failure to estab-
lish a prima fade case or other grounds
which show no right to relief on the
part of the complainant.
(b) Effect. (1) If an accelerated deci-
sion or a decision to dismiss is issued
as to all the issues and claims in the
proceeding, the decision constitutes an
initial decision of the Presiding Offi-
cer, and shall be filed with the Re-
gional Hearing Clerk.
(2) If an accelerated decision or a de-
cision to dismiss is rendered on less
than all issues or claims in the pro-
ceeding, the Presiding Officer shall de-
termine what material facts exist with-
out substantial controversy and what
material fact8 remain controverted In
good faith. He shall thereupon Issue an
interlocutory order specifying the facts
which appear substantially
uncontroverted, and the issues and
claims upon which the hearing will
proceed.
Subpart D—Heo;lng Procedure
§22.21 Scheduling the hearing.
(a) When an answer is filed, the Re-
gional Hearing Clerk shall forward the
complaint, the answer, and any other
documents filed thus far in the pro-
ceeding to the Chief Administrative
Law Judge who shall assign himself or
another Administrative Law Judge as
Presiding Officer, unless otherwise pro-
vided in the Supplemental rules of
practice. The Presiding Offic5r shall
then obtain the case file from the Chief
Administrative Law Judge and notify
the parties of his assignment.
(b) Natice of hearing. If the respondent
requests a hearing in his answer, or one
is ordered by the Presiding Officer
under §22 15(c), the Presiding Officer
shall serve upon the parties a notice of
hearing setting forth a time and place
for the hearing. The Presiding Officer
may issue the notice of hearing at an
appropriate time, but not later thar
twenty (20) days prior to the date se
for the hearing
(c) Postponement of hearing. No re
quest for postponement of a hearing
shall be granted except upon motion
and for good cause shown
(d) Location of the hearing. The ben
tion of the hearing shall be determined
in accordance with the method for de
termining the location of a prehearing
conference under §22 19(d).
* 22.22 Evidence.
(a) General. The Presiding Officei
shall admit all evidence which is not
irrelevant, immaterial, unduly repeti
tious, or otherwise unreliable or of lit
tie probative value, except that evi
dence relating to settlement whici
would be excluded in the federal court’
under Rule 408 of the Federal Rules o
Evidence Is not admissible In the pree
entatlon, admission, disposition. an(
use of evidence, the Presiding Officw
shall preserve the confidentiality 01
trade secrets and other commercial am
financial Information. The confidentia
or trade secret status of any informa
tion shall not, however, preclude it’
being introduced Into evidence Th
Presiding Officer may make such or
ders as may be necessary to consldei
such evidence in camera, including the
preparation of a supplemental initial
decision to address Questions of law.
fact, or discretion which arise out 01
that portion of the evidence which ii
confidential or which includes trade se
Crete
(b) Examination of witnesses. Wit
nesses shall be examined orally, undei
oath or affirmation, except as other
wise provided in these rules of practic
or by the Presiding Officer Partie
shall have the right to cross-examine
witness who appears at the hearini
provided that such cross-examinatioi
is not unduly repetitious.
(c) Verified statements The Presidin
Officer may admit an insert into th
record as evidence, in lieu of oral testi
niony, statements of fact or opinioi
prepared by a witness. The admissibil
ity of the evidence contained in thi
statement shall be subject to the sam
rules as if the testimony were produce
under oral examination. Before an
-------
§ 22.23
40 CFR Ch. I (7—1—97 EdItion) Environmental Protection Agency
§ 22.29
such statement is read or admitted
into evidence, the witness shall deliver
a copy of the statement to the Presid-
Ing Officer, the reporter, and opposing
counsel. The witness presenting the
statement shall swear to or affirm the
statement and shall be subject to ap-
propriate oral cross-examination upon
the contents thereof.
(d) Admission of affidavits where the
witness is unavailable The Presiding of-
ficer may admit into evidence affida-
vits of witnesses who are unavailable.
The term “unavailable” shall have the
meaning accorded to it by Rule 804(a)
of the Federal Rules of Evidence.
(e) Exhibits. Where practicable, an
original and one copy of each exhibit
shall be filed with the Presiding Officer
for the record and a copy shall be fur-
nished to each party A true copy of
any exhibit may be substituted for the
original
(I) Official notice. Official notice may
be taken of any matter judicially no-
ticed in the Federal Courts and of other
facts within the specialized knowledge
and experience of the Agency. Opposing
parties shall be given adequate oppor-
tunity to show that such facts are erro-
neously noticed
* 22.23 Objections and offers of proof.
(a) Objection. Any objection concern-
ing the conduct of the hearing may be
stated orally or in writing during the
hearing. The party raising the objec-
tion must supply a short statement of
its grounds. The ruling by the Presid-
ing Officer on any objection and the
reasons given for it shall be part of the
record. An exception to each objection
overruled shall be automatic and is not
waived by further participation in the
hearing
(b) Offer of pToof. Whenever evidence
is excluded from the record, the party
offering the evidence may make an
offer of proof, which shall be included
in the record. The offer of proof for ex-
cluded oral testimony shall consist of a
brief statement describing the nature
of the evidence excluded. The offer of
proof for excluded documents or exhib-
its shall consist of the Insertion in the
record of the documents or exhibits ex-
cluded. Where the Environmental Ap-
peals Board decides that the ruling of
the Presiding er In excluding the
evidence was both erroneous and preju-
dicial, the hearing may be reopened to
permit the taking of such evidence.
[ 45 FR 24363, Apr. 9. 3980, as amended at 57
FR 5325. Feb. 13, 1992)
§ 22.24 Burden of presentation; burden
of persuasion.
The complainant has the burden of
going forward with and of proving that
the violation occurred as set forth in
the complaint and that the proposed
clvii penalty, revocation, or suspen-
sion, as the case may be, is appro-
pilate Following the establishment of
a prima facie case, respondent shall
have the burden of presenting and of
going forward with any defense to the
allegations set forth In the complaint.
Each matter of controversy shall be de-
termined by the Presiding Officer upon
a preponderance of the evidence.
§ 22.25 FilIng the transcrIpt.
The hearing shall be transcribed ver-
batirn. Promptly following the taking
of the last evidence, the reporter ehall
transmit to the Regional Hearing Clerk
the original and as many copies of the
transcript of testimony as are called
for in the reporter’s contract with the
Agency, and also shall transmit to the
Presiding Officer a copy of the tran-
script A certificate of service shall ac-
company each copy of the transcript.
The Regional Hearing Clerk shall no-
tify all parties of the availability of
the transcript and shall furnish the
parties with a copy of the transcript
upon payment of the cost of reproduc-
tion, unless a party can show that the
cost is unduly burdensome. Any person
not a party to the proceeding may re-
ceive a copy of the transcript upon
payment of the reproduction fee, ex-
cept for those parts of the transcript
order to be kept confidential by tho
Presiding Officer
§ 22.26 Proposed findings, conclusions,
and order.
Within twenty (20) days after the par-
ties are notified of the availability of
the transcript, or within such longer
time as may be fixed by tho Presiding
Officer, any party may submit for the
consideration of the Presiding Officer,
proposed findings of fact, conclusions
of law, and a proposed order, together
with briefs in support thereof The Pre-
siding Officer shall set a time by which
reply briefs must be submitted. All
submissions shall be in writing, shall
be served upon all parties, and shall
contain adequate references to the
record and authorities relied on.
Subpart E—initIai Decision and
Motion To Reopen a Hearing
22.27 Initial decision.
(a) Filing and contents The Presiding
Officer shall issue and file with the Re-
gional Hearing Clerk his initial deci-
sion as soon as practicable after the pe-
riod for filing reply briefs under §22 26
has expired The Presiding Officer shall
retain a copy of the complaint in the
duplicate file The initial decision shall
contain his findings of fact, conclu-
sions regarding all material issues of
law or discretion, as well as reasons
therefor, a recommended civil penalty
assessment, if appropriate, and a pro-
posed final order. Upon receipt of an
initial decision, the Regional Hearing
Clerk shall forward a copy to all par-
ties, and shall send the original, along
with the record of the proceeding, to
the Hearing Clerk, The Hearing Clerk
shall forward a copy of the initial deci-
sion to the Environmental Appeals
Board.
(b) Amount of civil penalty. If the Pre-
siding Officer determines that a viola-
tion has occurred, the Presiding Officer
shall determine the dollar amount of
the recommended civil penalty to be
assessed in the initial decision in ac-
cordance with any criteria set forth in
the Act relating to the proper amount
of a civil penalty, and must consider
any civil penalty guidelines issued
under the Act If the Presiding Officer
decides to assess a penalty different in
amount from the penalty recommended
to be assessed in the complaint, the
Presiding Officer shall set forth in the
initial decision the specific reasons for
the increase or decrease. The Presiding
Officer shall not raise a penalty from
that recommended to be assessed in the
complaint if the respondent has de-
faulted.
(C) Effect of initial decision. The initial
decision of the Presiding Officer 8hall
become the final order of the Environ-
mental Appeals Board within forty-five
(45) days after its service upon the par-
ties and without further proceedings
unless (1) an appeal to the Environ.
mental Appeals Board is taken from it
by a party to the proceedings, or (2) the
Environmental Appeals Board elects,
aua sponte, to review the initial deci-
sion.
(45 FR 24363, Apr. 9, 1980. as amended at 5
FR 5325, Feb 13, 1992)
§22.28 Motion to reopen a hearing.
(a) Filing and content. A motion to re-
open a hearing to take further evidence
must be made no later than twenty (20)
days after service of the initial deci
sion on the parties and shall (1) State
the specific grounds upon which raliel
is sought, (2) state briefly the nature
and purpose of the evidence to be ad
duced, (3) show that such evidence it
not cumulative, and (4) show good
cause why such evidence was not ad
duced at the hearing The motion shall
be made to the Presiding Officer and
filed with the Regional Hearing Clerk
(b) Disposition of motion to reopen a
hearing. Within ten (10) days followinF
the service of a motion to reopen e
hearing, any other party to the pro
ceeding may file with the Regional
Hearing Clerk and serve on all othet
parties an answer thereto The Presid-
ing Officer shall announce his tnte t to
grant or deny such motion as soon ar
practicable thereafter. The conduct 01
any proceeding which may be required
as a result of the granting of any mo
tion allowed in this section shall b
governed by the provisions of the appli
cable sections of these rules The filinr
of a motion to reopen a hearing shal
automatically stay the running of al
time periods specified under thes
Rules until such time as the motion i’
denied or the reopened hearing is con
cluded.
Subpart F—Appeals and
Administrative Review
* 22.29 Appeal from or review of inter
Iocutory orders or rulings,
(a) Request for interlocutory appeal
Except as provided in this 8ection, ap
peals to the EnvIro’” ental Appeal
Board shall obtain s atter of righ
nfl n
-------
§ 22.30
40 CFR Ch. I (7—1—97 EditIon) Environmental Protection Agency
§22.33
only from a default order, an acceler-
ated decision or decision to dismiss is-
sued under §22 20(b)(l), or an Initial de-
cision rendered after an evidentiary
hearing. Appeals from other orders or
rulings shall lie only if the Presiding
Officer or Regional Administrator, as
appropriate, upon motion or a party.
certifies such orders or rulings to the
Environmental Appeals Board on ap-
peal. Requests for such certification
shall be filed in writing within six (6)
days of notice of the ruling or service
of the order, and shall state briefly the
grounds to be relied upon on appeal.
(b) Availability of interlocutory appeal.
The Presiding Officer may certify any
ruling for appeal to the Environmental
Appeals Board when (1) the order or
ruling involves an important question
of law or policy concerning which there
is substantial grounds for difference of
opinion, and (2) either (I) an Immediate
appeal from the order or ruling will
materially advance the ultimate termi-
nation of the proceeding, or (ii) review
after the final order is issued will be in-
adequate or ineffective
(c) Decision If the Environmental Ap-
peals Board determines that certifi-
cation was improvidently granted, or if
the Environmental Appeals Board
takes no action within thirty (30) days
of the certification, the appeal is dis-
missed When the Presiding Officer de-
clines to certify an order or ruling to
the Environmental Appeals Board on
interlocutory appeal, It may be re-
viewed by the Environmental Appeals
Board only upon appeal from the ini-
tial decision, except when the Environ-
mental Appeals Board determines,
upon motion of a party and in excep-
tional circumstances, that to delay re-
view would be contrary to the public
interest Such motion shall be made
within six (6) days of service of an
order of the Presiding Officer refusing
to certify a ruling for interlocutory ap-
peal to the Environmental Appeals
Board. Ordinarily, the interlocutory
appeal will be decided on the basis of
the submissions made by the Presiding
Officer The Environmental Appeals
Board may, however, allow further
briefs and oral argument.
(d) Stay of proceedings The Presiding
Officer may stay the proceedings pend-
ing a decision by the Environmental
Appeals Board upon an order or ruling
certified by the Presiding Officer for an
interlocutory appeal. Proceedings will
not be stayed except in extraordinary
circumstances. Where the Presiding Of-
ficer grants a stay of more than thirty
(30) days, such stay must be separately
approved by the Environmental Ap-
peals Board.
(45 FR 24363, Apr 9, 1980, as amended at 57
FR 5325. Feb 13. 1992)
§ 22.30 Appeal from or review of Initial
decision.
(a) Notice of appeal. (1) Any party
z’nay appeal an adverse ruling or order
of the Presiding Officer by filing a no-
tice of appeal and an accompanying ap-
pellate brief with the Environmental
Appeals Board and upon all other par-
ties and amicus curiae within twenty
(20) days after the initial deci8ion is
served upon the parties. The notice of
appeal shall 8at forth alternative find-
ings of fact, alternative conclu8ions re-
garding issues of law or discretion, and
a proposed order together with rel-
evant references to the record and the
initial decision The appellant’s brief
shall contain a statement of the issues
presented for review, a statement of
the nature of the case and the facts rel-
evant to the issues presented for re-
view, argument on the i8sues pre-
sented, and a short conclusion stating
the precise relief sought, together with
appropriate references to the record.
(2) Within fifteen (15) days of the
service of notices of appeal and briefs
under paragraph (a)(1) of this section,
any other party or amicus curiae may
file and serve with the Environmental
Appeals Board a reply brief responding
to argument raised by the appellant,
together with references to the rel-
evant portions of the record, initial de-
cision, or opposing brief. Reply briefs
shall be limited to the scope of the ap-
peal brief. Further briefs shall be filed
only with the permission of the Envi-
ronmental Appeals Board.
(b) Sua sponte review by the Environ-
mental Appeals Board. Whenever the En-
vironmental Appeals Board determines
sua sponte to review an Initial deci-
sion, the Environmental Appeals Board
shall serve notice of such intention on
the parties within forty-five (45) days
after the initial decision is served upon
the parties The notice shall include a
statement of issues to be briefed by the
parties and a time schedule for the
service and filing of briefs
(C) Scope of appeal or review. If the En-
vironmental Appeals Board determines
that issues raised, but not appealed by
the parties, should be argued, it shall
give counsel for the parties reasonable
written notice of such determination
to permit preparation of adequate ar-
gument. Nothing herein shall prohibit
the Environmental Appeals Board from
remanding the case to the Presiding
Officer for further proceedings.
(d) Argument before the Environmental
Appeals Board. The Environmental Ap-
peals Board may, upon request of a
party or sua sponte, assign a time and
place for oral argument after giving
consideration to the convenience of the
parties.
(45 FR 24363, Apr 9. 1980. as amended at 57
FR 5325, Feb 13. 19921
Subpart G—Fina! Order on Appeal
§22.31 Final order on appeal.
(a) Contents of the final order. When
an appeal has been taken or the Envi-
ronmental Appeals Board issues a no-
tice of intent to conduct a review sua
sponte, the Environmental Appeals
Board shall issue a final order as soon
as practicable after the filing of all ap-
pellate briefs or oral argument, which-
ever Is later. The Environmental Ap-
peals Board shall adopt, modify, or set
aside the findings and conclusions con-
tained in the decision or order being re-
viewed and shall set forth in the final
order the reasons for Its actions The
Environmental Appeals Board may, in
its discretion. increase or decrease the
assessed penalty from the amount rec-
ommended to be assessed in the deci-
sion or order being reviewed, except
that if the order being reviewed is a de-
fault order, the Environmental Appeals
Board may not Increase the amount of
the penalty
(b) Payment of a civil penalty. The re-
spondent shall pay the full amount of
the civil penalty assessed in the final
order within sixty (60) days after re-
ceipt of the final order unless other-
wise agreed by the parties Payment
shall be made by forwarding to the Re-
gional Hearing Clerk a cashier’s check
or certified check in the amount of the
penalty aa8essed in the final order,
payable to the Treasurer, United
States of America.
[ 45 FR 24363, Apr 9, 1980. as amended at 57
FR S’326, Feb 13, 1992]
§22,32 Motion to reconsider a final
order.
Motions to reconsider a final order
shall be filed within ten (10) days after
service of the final order. Every such
motion must set forth the matters
claimed to have been erroneously de-
cided and the nature of the alleged er-
rors. Motions for reconsideration under
this provision shall be directed to, and
decided by, the Environmental Appeals
Board. Motions for reconsideration di-
rected to the Administrators rather
than to the Environmental Appeals
Board, will not be considered, except in
cases that the Environmental Appeals
Board has referred to the Adminis-
trator pursuant to §22 04(a) and in
which the Administrator has issued the
final order A motion for reconsider-
ation shall not stay the effective date
of the final order unless specifically so
ordered by the Environmental Appeals
Board
(57 FR 5328. Feb 13, 1992]
Subpart H—Suppkrniontal Rules
§ 22.33 Supplemental rules of practice
governing the administrative as.
sesement of civil penalties under
the Toxic Substances Control Act.
(a) Scope of these Supplemental rules
These Supplemental rules of practice
shall govern, in conjunction with the
preceding consolidated rules of prac-
tice (40 CFR part 22), all formal adju-
dications for the assessment of any
civil penalty conducted under section
16(a) of the Toxic Substances Control
Act (15 U.S.C. 2615(a)). Where inconsist-
encies exist between these Supple-
mental rules and the Consolidated
rules, ( 22.01 through 22 32). these Sup-
plemental rules shall apply
(b) Subpoenas. (1) The attendance of
witnesses or the production of docu-
mentary evidence may be required by
subpoena. The Presiding Officer may
grant a request for a subpoena upon a
-------
§22.34
40 CR Ch. I (7—1-97 EdItion) Environmental Protection Agency
§22.3
showing of (I) the grounds and neces-
sity therefor. and (ii) the materiality
and relevancy of the evidence to be ad-
duced. Requests for the production of
documents shall describe the evidence
8Ought as specifically as practicable
(2) Subpoenas shall be served in ac-
cordance with §22 05(b)(i) of the Con-
solidated Rules of Practice.
(3) Witnesses summoned before the
Presiding Officer Bhall be paid the
same fees and mileage that are paid
witnesses in the courts of the United
States. Fees shall be paid by the party
at whose Instance the witness appears.
Where a witness appears pursuant to a
request Initiated by the Presiding Offi-
cer, fees shall be paid by the agency.
§22.34 Supplemental rules of practice
governing the administrative as-
sesament of civil penalties under
title II of the Clean Air Act.
(a) Scope of these Supplemental rules
These Supplemental rules shall govern,
in con)unctlon with the preceding Con-
solidated Rules of Practice (40 CFR
part 22), all proceedings to assess a
civil penalty conducted under secttons
205(c). 211(d). and 213(d) of the Clean Air
Act, as amended (42 U.S.C. ‘1524(c).
7545(d), and 7547(d)). Where inconsiat-
encies exist between these Supple-
mental rules and the Consolidated
Rules ( 22.Ol through 22.32). these Sup-
plemental rules shall apply.
(b) Issuance of notice. (1) PrIor to the
issuance of an administrative penalty
order assessing a civil penalty, the per-
son to whom the order is to be issued.
shall be given written notice of the
proposed issuance of the order. Such
notice shall be provided by the issu-
ance c i a complaint pursuant to §22.13
of the Consolidated Rules of Practice.
(2) Notwithstanding §22.15(a). any an-
swer to the complaint must be filed
with the Hearing Clerk within thirty
(30) days after service of the complaint.
(c) Subpoenas. (1) The attendance of
witnesses or the production of docu-
mentary evidence may be required by
subpoena. The Presiding Officer may
grant a request for a subpoena upon a
showing of;
(I) The grounds and necessity there-
for, and
(II) The m’ ‘silty and relevancy of
the evidenc adduced
Requests for the production of docu-
ments shall describe with specificity
the documents sought.
(2) Subpoenas shall be served in ac-
cordance with §22 05(b)(l) of the Con-
solidated Rules of Practice.
(3) Witnesses summoned before the
Presiding Officer shall be paid the
same fees and mileage that are paid in
the courts of the United States. Fees
shall be paid by the party at whose in-
stance the witness appears. Where a
witness appears pursuant to a request
initiated by the Presiding Officer, fees
shall be paid by EPA.
(57 FR 4318. Feb. 4, 1992)
§ 22.36 Supplemental rules of practice
governing the administrative as-
sessment of civil penalties under
the Federal Insecticide. Fungicide,
and Rodenticide Act.
(a) Scope of these supplemental rules.
These Supplemental rules of practice
shall govern, in conjunction with the
preceding Consolidated Rules of Prac-
tice (40 CFF . part 22). all formal adju-
dications for the assessment of any
civil penalty conducted under 8eCtiOfl
14(a) of the Federal theecticide. Fun-
gicide, and Rodenticide Act as amend-
ed (7 U.S.C. 1281(a)). Where inconsist-
encies exist between these Supple-
mental rules and the Consolidated
rules, (p22.01 through 2232), these Sup-
plemental rules shall apply.
(b) Venue. The prehearing conference
and the hearing shall be held in the
county, parish, or Incorporated city of
the residence of the person charged,
unless otherwise agreed in writing by
all parties.
(C) Evaluation of proposed civil penalty.
In determining the dollar amount of
the recommended civil penalty as-
sessed in the initial decision, the Pre-
siding Officer shall consider, in addi-
tion to the criteria listed in section
14(a)(3) of the Act, (1) respondent’s his-
tory of compliance with the Act or its
predecessor statute and (2) any evi-
deuce of good faith or lack thereof. The
Presiding Officer must also consider
the guidelines for the Assessment of
Civil Penalties published In the FED-
ERAL REGISTER (39 FR 2 ’7711), and any
amendments or supplements thereto.
§ 22.36 Supplemental rules of practIce
governing the administraUve as-
•essment of civil penalties and the
revocation or suspension of permits
under the Marine Protection, Re-
search, and Sanctuaries Act.
(a) Scope of these Supplemental rule.,.
These Supplemental rules shall govern.
In conjunction with the preceding Con-
solidated Rules of Practice (40 CFR
part 22), all formal ad)udicationn con-
ducted under section 105(a) or (1) 0! the
Marine Protection, Research, and
Sanctuaries Act as amended (33 U.S C
1415(a) and (f)). Where Inconsistencies
exist between these Supplemental rules
and the Consolidated Rules, ( 2201
through 22.32), these Supplemental
rules shall apply.
(b) Additional cr terion for the Issuance
of a complaint for the revocation or sus-
pension of a permit In addition to the
three criteria listed in 40 CFR 22 13 for
Issuing a complaint for the revocation
or suspension of a permit, complaints
may be Issued on the basis of a person’s
failure to keep records and notify ap-
propriate officials of dumping activi-
ties. as required by 40 CFR 224.1 and
223.2.
§ 22.37 Supplemental rules of practice
governing the administrative as-
seesment of civil penalties under
the Solid Waste Disposal Act.
(a) Scope of these Supplemental rules.
These Supplemental rules of practice
shall govern, in conjunction with the
preceding Consolidated Rules of Prac-
tice (40 CFR part 22). all proceedings to
assess a civil penalty conducted under
section 3008 of the Solid Waste Disposal
Act (42 U.S.C. 6928) (the “Act”). Where
Inconsistencies exist between these
Supplemental rules and the Consoli-
dated Rules. ( 922.01 through 22.32).
these Supplemental rules shall apply.
(b) Issuance of notice Whenever, on
the basis of any information, the Ad-
ministrator determines that any per-
son Is in violation of (1) any require-
ment of subtitle C of the Act. (2) any
regulation promulgated pursuant to
subtitle C of the Act, or (3) a term or
condition of a permit issued pursuant
to subtitle C of the Act, the Adminis-
trator shall issue notice to the alleged
violator of his failure to comply with
such requirement, regulation or per-
mit.
(C) Content of notice. Each notice o
violation shall include:
(1) A specific reference to each provi
sion of the Act, regulation, or permi
term or condition which the alleged vi
olator is alleged to have violated, and
(2) A concise statement of the factua
basis for alleging such violation
(d) Service of notice. Service of no tic
shall be made in accordance wit)
§22 05(b)(2) of the Consolidated Rules o
Practice.
(e) issuance of the complaint. (1) Ex
capt as provided In paragraph (e)(3) o
this section, the complainant ma-
issue a complaint whenever he has rea
son to believe that any violation ex
tends beyond the thirtieth day afte
service of the notice of violation,
(2) The complaint shall include, ii
addition to the elements stated ii
§22 14 of the Consolidated Rules, at
order requiring compliance within
Bpeclfted time period The complain
shall be equivalent to the cornplianc
order referred to in section 3008 of th
Act.
(3) Whenever a violation is of a non
continuous or intermittent nature, th
Administrator may Issue a complaint
without any prior notice to the viola
tor, pursuant to §22 14 of the Consoll
dated Rules of Practice which may ala
require the violator l.a take any and a)
measures necessary to offset all ad
verse effects to health and the environ
ment created, directly or Indirectly, a
a result of the violation.
(4) Notwithstanding § 22. 15(a), any ar
swer to the complaint must be file
with the Regional Hearing Clerk witt
In thirty (30) days after the filing
the complaint
(f) Subpoenas. (1) The attendance
witnesses or the production of doci
rnentary evidence may be required b
subpoena The Presiding Officer ma
grant a request for a subpoena upon
showing of (1) the grounds and nece
sity therefor, and (ii) the materiallt
and relevancy of the evidence to be a
duced Requests for the production
documents shall describe with speclfh
ity the documents sought.
(2) Subpoenas shall be served In a’
cordance with §22 05(b)(1) of the Cot
solidated Rules of Practice.
(3) WItnesses sum” ned before ti
Presiding Officer be paid il
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§22.38
40 CFR Ch. I (7-1-97 EditIon) Environmental Protection Agency
§ 22.40
same fees and mileage that are paid
witnesses in the courts of the United
States. Fees shall be paid by the party
at whose Instance the witness appears.
Where a witness appears pursuant to a
request initiated by the Presiding Offi-
cer, fees shall be paid by the Agency.
(g) Final Orders to Federal Agencies on
Appeal. (1) In the case of an administra-
tive order or decision issued to a da-
partrnent, agency, or instrumentality
of the United States, such order or de-
cision shall become the final order for
purposes of the Federal Facility Com-
pliance Act, 42 U.S.C. 6961(b), in accord-
ance with § 22.27(c) and 2231 except as
provided in paragraph (g)(2) of this sec-
tion
(2) In the case of an administrative
order or decision issued by the Envi-
ronmental Appeals Board, if the head
of the affected department, agency, or
instrumentality requests a conference
with the Administrator in writing and
serves a copy of the request on the par-
ties of record within thirty days of the
Environmental Appeals Boards service
of the order or decision, a decision by
the Administrator (rather than the En-
vironmental Appeals Board) shall be
the final order for the purposes of the
Federal Facility Compliance Act.
(3) In the event the department,
agency, or instrumentality of the Unit-
ed States files a motion for reconsider-
ation with the Environmental Appeals
Board in accordance with 2232, filing
such motion for reconsideration shall
not toll the thirty-day period for filing
the request with the Administrator for
a conference unless specifically so or-
dered by the Environmental Appeals
Board.
(42 U S C. 6901. et seq
(15 FR 24363. Apr 9, 1980, as amended at 61
FR 11092, Mar 18. 19961
EFFECTIVE DATE NOTE: At 45 FR 79808. Dec
2. 1980. paragraphs (b), (C). (d). (e)(l) and (3) of
§22 3’? were suspended until further notice.
effectIve Dec 2. 1980
* 22.38 Supplemental rules of practice
governing the administrative as-
sessment of Class H penalties under
the Clean Water Act.
(a) Scope of these supplemental rules.
‘rhese supplemental rules of practice
shall govern, in conjunction with the
preceding Consolidated Rules of Prac-
tics (40 CFR part 22), administratIve
proceedings for the assessment of any
Class U civil penalty under section
309(g) of the Clean Water Act (33 U.S.C.
1319(g)).
(b) Consultation with states. The Ad-
ministrator will consult with the state
in which the alleged violation occurs
before issuing a final order assessing a
Class II civil penalty
(C) Public notice. Before issuing a final
order assessing a Class II civil penalty,
the Administrator will provide public
notice of the complaint.
(d) Comment by a person who is not a
party. A person not a party to the Class
H proceeding who wishes to comment
upon a complaint must file written
comments with the Regional Nearing
Clerk within 30 days after publio notice
of the complaint and serve a copy of
the comments upon each party. For
good cause shown the Administrator.
the Regional Administrator, or the
Presiding Officer, as appropriate, may
accept late comments. The Adminis-
trator will give any person who com-
ments on a complaint notice of any
hearing and notice of the final order
assessing a penalty. Although corn-
menters may be heard and present evi-
dence at any hearing held under sec-
tion 309(g) of the Act, commentera
shall not be accorded party status with
right of cross examination unless they
formally move to intervene and are
granted party status under § 22.11.
(e) Administrative procedure and judi-
cial review. Action of the Administrator
for which review could have been ob-
tained under section 509(b)(l) of the Act
shall not be subject to review in an ad-
ministrative proceeding for the assess-
ment of Class H civil penalty under
section 309(g).
(1) Petitions to set aside an order and to
provide a hearing. If no hearing on the
complaint is held before issuance of an
order assessing a Class II civil penalty,
any person who commented on the
complaint may petition the Adminis-
trator, within 30 days after issuance of
the order, to set aside the order and to
provide a hearing on the complaint. If
the evidence presented by the peti-
tioner in support of the petition is ma-
terial and was not considered in the is-
suance of the order, the Administrator
will immediately set aside the order
and provide a hearing in accordance
with the Consolidated Rules of Prac-
tice and these supplemental rules of
practice. If the Administrator denies a
hearing under section 309(g)(4)(C) of the
Act, the Administrator will provide to
the petitioner, and publish in the FED-
ERAL. REOISTER, notice of and the rea-
sons for the denial.
(55 FR 23840. June 12. 1990)
* 22.39 Supplemental rules of practice
governing the administrative as-
sessment of administrative pen-
alties under section 109 of the Com-
prehensive Environmental Re-
sponse, Compensation, and Liabil-
ity Act of 1980, as amended.
(a) Scope of these Supplemental rules.
These Supplemental rules of practice
shall govern, in conjunction with the
preceding Consolidated Rules of Prac-
tice (40 CFR part 22), administrative
proceedings for the assessment of any
civil penalty under section 109 of the
Comprehensive Environmental Re-
sponse, Compensation, and Liability
Act of 1980, as amended (42 U.S.C. 9609).
Where inconsistencies exist between
those Supplemental rules and the Con-
solidated Rules ( 22 01 through 22 32),
these Supplemental rules shall apply.
(b) Subpoenas. (1) The attendance and
testimony of witnesses or the produc-
tion of relevant papers, books, and doc-
uments may be required by subpoena.
The Presiding Officer may grant a re-
quest for a 8ubpoena upon a showing
of—
(i) The grounds and necessity there-
for, and
(ii) The materiality and relevancy of
the evidence to be adduced.
Requests for the production of docu-
ments shall describe the evidence
sought as specifically as practicable.
(2) Subpoenas shall be served in ac-
cordance with §22.05(b)(1) of the Con-
solidated Rules of Practice.
(3) Witnesses summoned before the
Presiding Officer shall be paid the
same fees and mileage that are paid
witnesses in the courts of the United
States. Fees shall be paid by the party
at whose Instance the witness appears.
Where a witness appears pursuant to a
request initiated by the Presiding Offi-
cer, fees shall be paid by the Agency
(C) Judicial review Any person who re-
quested a hearing with respect to a
Class U civil penalty under section 109
of CERCLA and who is the recipient of
a final order assessing a civil penalty
may file a petition for judicial review
of such order with the United States
Court of Appeals for the District of Co-
lumbia or for any other circuit in
which such person resides or traneacta
business. Any person who requested a
hearing with respect to a Class I civil
penalty under Section 109 of CERCLA
and who is the recipient of a final order
assessing the civil penalty may file a
petition for judicial review of such
order with the appropriate district
court of the United States. All peti-
tions must be filed within 30 days of
the date the order making the assess-
ment was issued.
(d) Payment of civil penalty assessed
Payment of civil penalties finally as-
sessed by the Regional Administrator
shall be made by forwarding a cashier’s
check, payable to the “EPA, Haaardous
Substances Superfund,” in the amount
assessed, and noting the case title and
docket number, to the appropriate re-
gional Superfund Lockbox Depository.
Notice of payment must be sent by Re-
spondent to the Hearing Clerk for in-
clusion as part of the administrative
record for the proceeding in which the
civil penalty was assessed. Interest on
overdue payments shall be collected
pursuant to the Debt Collection Act, 37
U.S C. 3717.
(54 FR 21176, May 18, 1989]
§ 22.40 Supplemental rules of practice
governing the administrative as-
sessment of administrative pen-
alties under section 325 of the
Emergency Planning and Commu-
nity Right-To-Know Act of 1988
(EPCRA).
(a) Scope of these Supplemental Rules.
These Supplemental rules of practice
shall govern, in conjunction with the
preceding Consolidated Rules of Prac-
tice (40 CFR part 22), administrative
proceedings for the assessment of any
civil penalty under section 325 for vio-
lations of the Emergency Planning and
Community Right-To-Know Act of 1986
(EPCRA) Where inconsistencies exist
between these Supplemental rules and
the Consolidated Rules, (*t22 01
-------
§ 22.41
43 CFR Ch. I (7—1—97 Edition) Environmental Protection Agency
Pt. 22, App.
through 22 32) these Supplemental
rules shall apply.
(b) Subpoenas. (1) The attendance and
testimony of witnesses or the produc-
tion of relevant papers, books, and doc-
uments may be required by subpoena.
The Presiding Officer may grant a re-
quest for a subpoena upon a showing of
(1) the grounds and necessity therefore.
and (ii) the materiality and relevancy
of the evidence to be adduced. Requests
for the production of documents shall
describe the evidence sought as epecifi-
cafly as practicable.
(2) Subpoenas shall be served in ac-
cordance with §22 05(b)(1) of the Con-
solidated Rules of Practice.
(3) Witnesses summoned before the
Presiding Officer shall be paid the
same fees and mileage that are paid
witnesses in the courts of the United
States. Fees shall be paid by the party
at whose instance the witness appears
Where a witness appears pursuant to
request Initiated by the Presiding Offi-
cer, fees shall be paid by the Agency
(c) Judicial review. Any person against
whom a civil penalty is assessed may
seek judicial review in the appropriate
district court of the United States by
filing a notice of appeal and by simul-
taneously sending a copy of such notice
by certified malt to the Administrator
The notice must be filed within 30 days
of the date the order making such as-
sessment was issued. The Adminis-
trator shall promptly file in such court
a certified copy of the record upon
which such violation was found or such
penalty Imposed.
(d) Procedures for collection of civil
penalty. If any person fails to pay an
assessment of a clvii penalty after it
has become a final and unappealable
order or after the appropriate court has
entered final judgment in favor of the
United States, the Administrator may
request the Attorney General of the
United States to institute a civil ac-
tion in an appropriate district court of
the United States to collect the pen-
alty, and such court shall have juris-
diction to hear and decide any such ac-
tion. In hearing suck action, the court
shall have authority to review the vio-
lation and the assessment of the civil
nenalty on the rd. Interest on over-
due payment! be collected pursu-
ant to the Debt Collection Act, 37
U.S.C. 371’l.
(54 FR 21176, May 16, 1989]
§22.41 Supplemental rules of practice
governing the administrative as-
sessment of civi’ penalties under
Title 11 of the Toxic Substances
Control Act, enacted as section 2 of
the Asbestos Hazard Emergency Re-
sponse Act (AILERA).
(a) Scope of the Supplemental rules.
These Supplemental rules of practice
shall govern, In conjunction with the
preceding Consolidated Rules of Prac-
tice (40 CFR part 22). all proceedings to
assess a civil penalty conducted under
section 287 of the Toxic Substances
Control Act (the “Act”) (15 U S C.
2647). Where inconsistencies exist be-
tween these Supplemental rules and
the Consolidated rules ( 22 01 through
22 32), these Supplemental rules 8hal)
apply
(b) Collection of civil penalty. Any
civil penalty collected under section
207 of the Act shall be used by the local
educational agency for purposes of
complying with Title II of the Act. Any
portion of a civil penalty remaining
unspent after a local educational agen-
cy achieves compliance shall be depos-
ited Into the Asbestos Trust Fund es-
tablished under section 5 of AHERA.
(54 FR 24112, June 5, 19891
§ 22.42 Supplemental rules of practice
governing the administrative as-
sessment of civil penalties for viola-
tions of compliance orders issued
under Part B of the Safe Drinking
Water Act.
(a) Scope of these supplemental tules.
These supplemental rules of practice
shall govern. In conjunction with the
preceding Consolidated Rules of Prac-
tice (40 CFR part 22), all proceedings to
assess a civil penalty under section
1414(gX3)(B). Where inconsistenclee
exist between these supplemental rules
and the Consolidated rules, these sup-
plemental rules shall apply.
(b) Definition of “person.” In addition
to the terms set forth in 40 CFR 22.03(a)
that define person, (or purposes of this
section and proceedings under section
1414(g)(3)(B) of the Safe Drinking Water
Act, the term person shall also include
any officer, employee, or agent of any
corporation, company or association.
(c) Issuance of complaint. If the Ad-
ministrator determines that a person
has violated any provision of a compli-
ance order Issued under section
14l4(g)(l) of the Safe Drinking Water
Act, 42 U.S C. 300g .-3(gXl), he may in-
stitute a proceeding for the assessment
of a civil penalty by issuing a com-
plaint under the Act and this part.
(d) Content of the complaint. A com-
plaint for the assessment of civil pen-
alties under this part shall Include spe-
cific reference to.
(1) Each provision of the compliance
order issued under section 1414(g)(1) of
the Act, 42 U S C 300g—3(g)(1), which is
alleged to have violated; and
(2) Each violation of a Safe Drinking
Water Act regulation, schedule, or
other requirement which served as the
basis for the compliance order which Is
alleged to have been violated.
(e) Scope of hearing Action of the Ad-
ministrator with respect to which judi-
cial review could have been obtained
under section 1448 of the Safe Drinking
Water Act, 42 U.S.C. 300j-7, shall not be
subject to review In an administrative
proceeding for the assessment of a civil
penalty under section 1414(g)(3)(B) of
the SDWA and this part
[ 56 FR 3757, Jan 30, 1991]
* 22.43 Supplemental rules of practice
governing the administrative as-
sesernent of civil penalties under
section 113(d)(1) of the Clean Air
Act.
(a) Scope of these Supplemental rules.
These Supplemental rules shall govern,
fri conjunction with the preceding Con-
solidated Rules of Practice (40 CFR.
part 22), all proceedings to assess a
civil penalty conducted under section
113(d)(1) of the Clean Air Act (42 U S C
7413(d)(1)) Where inconsistencies exist
between these Supplemental rules and
the Consolidated Rules ( 22.01 through
22 32), these Supplemental rules shall
apply.
(b) Issuance of notice (1) Prior to the
issuance of an administrative penalty
order assessing a civil penalty, the per-
son to whom the order is to be Issued
shall be given written notice of the
proposed issuance of the order. Such
notice shall be provided by the Issu-
ance of a complaint pursuant to 22 13
of the Consolidated Rules of Practice.
(2) NotwIthstanding §22.15(a), any an-
swer to the complaint must be filed
with the Regional Hearing Clerk with-
in thIrty (30) days after service of the
complaint.
(c) Subpoenas (1) The attendance of
witnesses or the production of docu-
mentary evidence may be required by
subpoena. The Presiding Officer may
grant a request (or a subpoena upon a
showing of;
(i) The grounds and necessity there-
for, and
(11) The materiality and relevancy of
the evidence to be adduced.
Requests for the production of docu-
ments shall describe with specificity
the documents sought.
(2) Subpoenas shall be served in ac-
cordance with §22.05(b)(1) of the Con-
solidated Rules of Practice
(3) Witnesses eurnmoned before the
Presiding Officer shall be paid the
same fees and mileage that are paid in
the courts of the United States. Fees
shall be paid by the party at whose in-
stance the witness appears. Where a
witness appears pursuant to a request
initiated by the Presiding Officer, fees
shall be paid by EPA.
(57 FR 4318. Feb 4, 1992)
APPENDIX TO PART 22—ADDRESSES OF
EPA REGIONAL. OFFICES
Region I—John F Kennedy Federal Building,
Boston, MA 02203
Region 11—26 Federal Plaza. New York. NY
10007
Region hr—Curtis Building. 6th and V,alnut
Streets. Philadelphia, PA 19106
Region IV—345 Courtland Street NE . At-
lanta, GA 30308
Region V—77 West Jackson Boulevard. Chi-
cago. IL, 60004
Region VI—Firet international Building. 1201
Elm Street. Dallas. TX 75270
Region VIt—1735 Baltimore Street. Kansas
City, MO 64108
Region Vtll—1860 Lincoln Street, Denver. CO
80203
Region IX—.215 Fremont Street, San Fran-
cisco, CA 94105
Region X—l200 6th Avenue. Seattle. VA 98101
(45 FR 24363, Apr 4, 1980 emended at 62
FR 1833, Jan 14. 1997J
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Coast Guard DOT
§133.7
PART 133—OIL SPILL LIADILITY TRUST
FUND; STATE ACCESS
Sec
1331
1333
1335
133.7
1339
13311
133 13
133 15
lug
133 17 Conduct of removal actions
133 19 Rocordkeeplng.
13221 Records retention
13323 Investigation to determine the source
and responsible party
13325 Notification of Governor’s designee.
AUTHORITY 33 U.SC 2 112(e), EO 12 ’777 (3
CFR, 1991 Corny , p 351); 49 CFR 1 46
SOURCE CGD 92-014, 57 FR 53969. Nov. 13.
1992, unless otherwise noted
§133.1 Purpo8e.
This part prescribes procedures for
the Governor of a State to request pay-
ments from the Oil Spill Liability
Trust Fund (the Fund) for oil pollution
removal coats under section 1012(d)(l)
of the Oil Pollution Act of 1990 (the
Act) (33 U.S C. 2712(d)(1)).
§ 133.3 DefInitions.
(a) As used in this part, the following
terms have the same meaning as set
forth in section 1001 of the Act (33
U S C. 2701): “discharge”, “exclusive
economic zone”, “Fund”, “incident”,
“National Contingency Plan”, “navi-
gable waters”, “oil”, “remove”, “re-
moval”, “removal costs”, “responsible
party”, “State”, and “United States”.
(b) As used in this part—
Act means Title I of the Oil Pollution
Act of 1990 (33 U S C 2701 through 2719).
Director, NPFC. means the person in
charge of the U.S. Coast Guard Na-
tional Pollution Funds Center or that
person’s authorized representative.
NPFC means the U.S. Coast Guard
National Pollution Funds Center, 4200
Wilson Boulevard. suite 1000, Arling-
ton, Virginia 22203-1804
On-Scene Coordinator or OSC means
the Federal official predesignated by
the Environmental Protection Agency
or the U S Coast Guard to direct and
coordinate all efforts for removal of a
discharge, or the mitigation or the pre-
vention of a substantial threat of a dis-
charge, of oil.
Removal action means an Incident-
specific activity taken under this part
to contain or remove a discharge, or to
mitigate or prevent a substantial
threat of a discharge, of oil
§133.5 Requests: GeneraL
(a) Upon a request submitted In ac-
cordance with this part by the Gov-
ernor of a State or his or her des-
ignated State official, the OSC may ob-
tain a Federal Project Number (FPN)
and a ceiling not to exceed $250,000 per
incident for removal costs The re-
moval costs must be for the immediate
removal of a discharge, or the mitiga-
tion or prevention of a substantial
threat of a discharge, of oil.
(b) Before a request under this part is
made, the State official shall ensure
that the procedures in the National
Contingency Plan (40 CFR part 300) for
notifying Federal authorities of the
discharge or threat of discharge have
been met.
(c) The Federal Grant and Coopera-
tive Agreement Act of 1977 (31 U S C
6301-6308) and 49 CFR parts 18, 20, 29,
and 90 apply to Fund monies obligated
for payment under this part.
§ 133.7 Requests: Amount
(a) The amount of funds that may be
requested under this part—
(1) Is limited to the amount antici-
pated for immediate removal action for
a single oil pollution Incident, but, in
any event, may not exceed $250,000 per
Incident,
(2) Must be for removal costs consist-
ent with the National Contingency
Plan, and
(3) Must be reasonable for the re-
moval actions proposed, considering
such factors as quantity and composi-
tion of the oil, weather conditions and
customary costs of similar services in
the locale
(b) The funds requested are obligated
only to the extent they are determined
to be for immediate removal actions
which are reasonable and otherwise eli-
gible for payment under this part
Purpose.
Definitions.
Requests General
Requests Amount
Requests Where made
Requests Contents
Removal actions eligible for funding
Determination of eligibility for fund-
69
-------
§ 133.9
33 CFR Ch. I (7196 Edition) ( Ř s DOT
§ 135.
§133.9 Requests: Where made.
Requests for access to the Fund
under §133.5 must be made by tele-
phone or other rapid means to the OSC.
* 133.11 RequesL Contents.
In making a request for access to the
Fund, the person making the request
shall—
(a) Indicate that the request is a
State access reque8t under 33 CFR. part
133;
(b) Give his or her name, title, de-
partment, and State;
(C) Describe the incident in sufficient
detail to allow a determination of ju-
risdiction, including at a minimum the
date of the occurrence, type of product
discharged, estimated quantity of the
discharge, body of water involved, and
proposed removal actions for which
funds are being requested under this
part; and
(d) Indicate the amount of fund8
being requested.
§133.13 Removal actions eligible for
funding.
To be eligible for funding under this
part, each removal action must meet
the following:
(a) Must be for an incident, occurring
after August 18, 1990. which resulted in
a discharge, or the substantial threat
of a discharge, of oil into or upon the
navigable waters or adjoining shore-
lines.
(b) Must comply with the National
Contingency Plan
(c) Must be an immediate removal
action.
§ 133.15 DeterminatIon of eligibility
for funding.
Upon receipt of the information
under §133 11 and, if necessary, from
other sources determined to be appro-
priate at his or her discretion, the OSC
will determine whether the proposed
removal actions meet the requIrements
of § 133.13. If necessary, the OSC may
seek further clarification of the pro-
posed actions from the State official.
The OSC shall expeditiously notify the
State offici ’ and the Director, NPFC,
of his or h isbn.
* 133.17 Conduct of removal actions.
Removal actions funded under this
part must be coordinated with the OSC
and conducted in accordance with the
National Contingency Plan.
0133.19 Recordkeeping.
(a) The State official shall maintain
detailed records of expenditures made
from the funds provided under this
part, Including records of—
(1) Daily expenditures for each indi-
vidual worker, giving the individual’s
name, title or position, activity per-
formed, time on task, salary or hourly
rate, travel costs, per diem, out-of-
pocket or extraordinary expenses, and
whether the individual is normally
available for oil spill removal;
(2) EquIpment purchased or rented
each day, with the daily or hourly rate;
(3) Miscellaneous materials and
expendables purchased each day; and
(4) Daily contractor or consultant
fees, including costs for their personnel
and contractor-owned or rented equip-
ment, as well as that of any sub-
contractor.
(b) The State official shall submit a
copy of these records and a summary
document stating the total of all ex-
penditures made to the NPFC official
specified in §133.25(c) within thirty
days after completion of the removal
actions. A copy of these documents
shall also be submitted to the cog-
nizant OSC.
Cc) Upon request of the OSC or the
NPFC, the State official shall make
the original records available for in-
spection.
(d) If, after Inspecting the records,
the Director, NPFC, determines that
expenditures by a State official from
funds obligated under this part were
not eligible for funding under this part
and the expenditures were not made
with the good faith understanding that
they were eligible under this part, the
Director. NPFC, may seek reimburse-
ment to the Fund from the State.
§133.21 Records retention.
(a) The State official shall maintain
all records for ten years following com-
pletion of the removal actions.
(b) If any litigation, claim, negotia-
tion, audit, cost recovery, or other ac-
tion Involving the records has been
started before the expiration of the
ten-year period, the records must be re-
tained until completion of the action
and resolution of all issues which arise
from it, or until the end of the regular
ten-year period, whichever is later.
§133.23 InvestIgation to determine the
source and responsible party.
(a) The State official shall promptly
make a thorough investigation to de-
termine the source of the incident and
the responsible party.
(b) Upon completion of the investiga-
tion, the State official shall forward
the results of the investigation and
copies of the supporting evidence iden-
tifying the source and the responsible
party to both the cognizant OSC and
the NPFC official specified in
§ 133.25(c).
0133.25 Notification of Governor’s des-
ignee.
(a) If the Governor of a State antici-
pates the need to access the Fund
under this part, he or she must advise
the NPFC in writing of the specific in-
dividual who is designated to make re-
quests under this part.
(b) This designation must include the
individual’s name, address, telephone
number, and title or capacity in which
employed.
(C) The information required by para-
graph (b) of this section must be for-
warded to the Chief, Case Management
Division, National Pollution Funds
Center, Suite 1000, 4200 Wilson Boule-
vard, Arlington, Virginia 22203-1804.
PART 135—OFFSHORE OIL
POLLUTION COMPENSATION FUND
Subpart A—General
Sec.
135 1 Purpose.
135.3 ApplicabIlity
135.5 DefInitions
135 7 DelegatIon—Fund Administrator
135.9 l und address
Subpart B—Levy of Fees
135 101 Purpose.
136.103 Levy and payment of barrel fee on
OCS oil.
Subpart C—FinancIal Responsibility fo
Offshore Facilities
135.201 ApplIcability.
135.203 Amount required.
135.204 Bubml88ion of evidence.
135.205 Methods of establishing.
135.207 In8urance as evidence.
135.209 Guaranty as evidence.
135.210 Indemnity as evidence.
135 211 Surety bond as evidence.
135 213 QualificatIon as self-insurer.
135.215 Certification.
135 219 NotIfication of changes affectini
certification.
135 221 Reapplication for certification
135 223 Certificates, denial or revocation.
Subpart D—Notil9cation of Pollution
Incidents
135.303 Definitions
135 305 NotifIcation procedures
135 301 Notification contents
Subpart E—Access, Denial, and Delontlor
135.401 Access to vessel, Certificates of F
nancial Responsibility
135.403 Sanctions for failure to produce va
eel Certificates of Financial Responalbl
ity.
135.405 Appeal provisions
AUTHORITY- 33 U.S C 2701-2719, E 0 1277
56 FR 54757; 49 CFR 1 48.
SOURCE CGD 77-055, 44 FR 16868, Mar. 1
19’79, unless otherwise noted
Subpart A—General
§135.1 Purpose.
(a) This part prescribes the policie
procedures, and administrative pral
tices regarding offshore oil pollution I
ability and compensation, includir
the administration and general ope
ation of the fund established und
Title III of the Outer Continental She
Lands Act Amendments of 1978 (Pub. I
95-372, 43 U.S.C. 1811 et. seq.)
0135.3 Applicability.
(a) This part applies to each pers
who
(1) Owns oil obtained from the Out
Continental Shelf when the oil In pr
duced,
(2) Owns, operates, or is the guara
tor of the owner or onerator of any ye
eel;
-------
coast Guard. DOT
Subpart E—Access Denial, and
Detenlion
iS&401 Access to Cifleates
0 f Financial Responsibility.
(a) The owner, operator, master or
agent of any vessel subject to the Act
shall, upon request by any Coast Guard
orficer or petty officer, permit access
to the vessel and produce for examina-
don the Certificate of Financial Re-
sponsib ilitY.
136.403 Sanctions for failure to
produce vessel Certificates of Fi-
nancial Responsibility.
(a) The Captain of the Port issues de-
nial or detention orders to the owner,
operator. agent, or master of any yes-
eel that cannot show upon request a
valid Certificate of Financial Respon-
sibilitY issued under the Act
(b) A denial order forbids entry of
any vessel subject to the Act to any
port or place in the United States or to
the navigable waters of the United
States.
(c) A detention order detains any ves-
sel subject to the Act at the port or
place in the United States from which
it is about to depart for any other port
or place in the United States
(d) The Captain of the Port termi-
nates a denial or detention order when
the owner, operator, agent, or master
of a vessel furnishes adequate evidence
that the certification of financial re-
sponsibility requirements under the
Act have been met.
1135.405 Appeal provisions.
(a) The owner, operator, agent or
master of a vessel issued a denial or de-
tention order under this subpart may
Petition the District Commander in
any manner to review that order.
(b) Upon completion of review, the
District Commander affirms, sets
Ride, or modifies the order.
(c) Unless otherwise determined by
the District Commander a denial or de-
tMntioii order remains in effect pending
the outcome of any petition or appeal
of that order
(d) The District Commander acts on
all Petitions or appeals within 10 days
of receipt
(e) The decision of the Distnct Com-
mander is final agency action
§ 135.405
PART 136—OIL SPILL UABIU1Y TRUST
FUND; CLAIMS PROCEDURES;
DESIGNA11ON OF SOURCE; AND
ADVERTISEMENT
Subpart A—General
Purpose and applicability
Information
Definitions
Foreign claimants
Falsification of claims
Subpart 8—General Procedure
136 101 Time limitations on claims
136 103 Order of presentment
136 105 General requirements for a claim
136 107 Subrogated claims
136 109 Removal costs and multiple items of
damages
136 111 Insurance
136 113 Other compensation
136 115 Settlement and notice to claimant
Subpart C—Procedure for Particular ClaIms
REMOVAL COSTS
136 203
136 205
Proof
Compensation allowable
NAT URAL RESOURCES
136 207
136209
138211
Authorized claimants
Proof
Compensation allowable
REAL OR PERSONAL PROPERTY
136 213
136 215
136 217
AuthorIzed claimants
Proof
Compensation allowable
SUBStSTENCE USE
136 219
136 221
136
Authorized claimants
Proof
Compensation allowable
GOVERNMENT REVENUES
136 225
136227
136 229
Authorized claimants
Proof
Compensation allowable
PRoFITS AND EARNIJIG CAPACrrY
136 231
136233
136235
Authorized claimants
Proof
Compensation allowable
GOVERNNENT PUBLIC SERvIcss
136 237
136239
136 241
Authorized claimants
Proof
CompensatIon allowable
Sec
1361
136 3
136 5
1367
136 9
81
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§ 136.1
Subpart D—Designoflon ol Source and
Adverli5emont
GENERAL
AUTHORITY 33 U S C 2713. 2714, E 0 12777.
3 CFR. 1991 Comp . p 351, 49 CFR 1 46
SOURCE COD 91-035, 57 FR 36316. Aug 12.
1992. unless otherwise noted
Subpart A—General
138.1 Purpose and applicability.
(a) This part prescnbes regulations
for—
(1) Presentation, tiling, processing,
settlement, and adjudication of claims
authorized to be presented to the Oil
Spill Liability Trust Fund (the Fund)
under section 1013 of the Oil Pollution
Act of 1990 (the Act) (33 U S.C. 2713) for
certain uncompensated removal costs
or uncompensated damages resulting
from the thscharge. or substantial
threat of discharge, of oil from a vessel
or facility into or upon the navigable
waters, adjoining shorelines, or the ex-
clusive economic zone,
(2) Designation of the source of the
Incident, notification to the respon-
aible party of the designation, and ad-
vertisement of the designation and
claims procedures; and
(3) Other related matters
(b) This part applies to claims result-
ing from incidents occurring after Au-
gust 18, 1990
( C) Nothing in this part—
(1) Preempts the authority of any
State or political subdivision thereof
from imposing any additional liability
or requirements with respect to—
( I) The discharge of oil or other pollu-
tion by oil within such State, or
(Li) Any removal activities in connec-
tion with such a discharge, or
(2) Affects or modifies in any way the
obligations or liabilities of any person
under the Solid Waste Disposal Act (42
33 CR Ch. 1(7-1-97 EdIt )
U.S C 6901 et seq) or State Jaw, includ
ing common law, or
(3) Affects the authority of
State—
(i) To establish, or to continue in ef
fect, a fund any purpose of which is
pay for costs or damages arising out o
or directly resulting from, oil pollutio n
or the substantial threat of oil pollu.
tion, or
(ii) To require any person to contrili.
ute to such a fund; or
(4) Affects the authority of the Unit.
ed States or any State or political 8U .
divison thereof to impose additional
liability or additional requirementsy .
lating to a discharge, or substantial
threat of a discharge, of oil
§ 138.3 InformatIon.
Anyone desinng to file a claim
against the Fund may obtain genera]
information on the procedure for filing
a claim from the Director, National
Pollution Funds Center, suite 1000. 420)
Wilson Boulevard, Arlington, Virginia
2 03—1804, (703) 5—4756
§ 136.5 Definitions
(a) As used in this part, the following
terms have the same meaning as set
forth in sections 1001 and 1007(c) of the
Act (33 U S C 2701 and 2707(c)): Clans,
claimant, damages, discharge, erclusive
economic zone, facility, foreign clairnariL
foreign offshore unit, Fund, guarantor.
incident, National Contingency Plan, tint-
ura ) resources, navigable waters, offshore
facility, oil, onshore facility, owner 0? OP
eratoT, person, removal costs, responsib k
party, State, United States, and vessel
(b) As used in this part—
Act means title I of the Oil PollutlOD
Act of 1990 (Pub L 101-380; 33 U.S. C
2701 through 2719)
Director, NPFC, means the person in
charge of the U S Coast Guard Na-
tional Pollution Funds Center or that
person’s authorized representative.
FOSC means the Federal On-Scen I
Coordinator designated under the Na-
tional Contingency Plan or that
son’s authonzed representative.
NPFC means the U.S. Coast Gu&’
National Pollution Funds Center, suit 5
1000, 4200 Wilson Boulevard, Arlington.
Virginia 03-18O4.
136301 Purpose
136 303 Definitions
DE51cNATI0N OF SouRcE
136 305 Notice of designation
136 307 Denial of designation
ADVER TISEMENT
136309
136 311
136 313
Advertisement determinations
Types of advertisement
Content of advertisement
82
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coast Guard, DOT
i3t7 Foreign claimants.
jn addition to other applicable ilmi-
tatlons on presenting claims to the
pund, claims by foreign claimants to
‘ecover removal costs or damages may
presented only when the require-
ments of section iOOl of the Act (33
U.S.C. 2’707) are met
* 138.9 Falsification of claims.
Persons submitting false claims or
making false statements in connection
with claims under this part may be
subject to prosecution under Federal
law. including but not limited to 18
u S.C 287 and 1001. In addition, persons
nbm1tting written documentation in
support of claims under this part which
they know. or should 1aIOW, Is false or
omits a. material fact may be subject to
a civil penalty for each claim If any
payment Is made on the claim, the
claimant may also be subject to an as-
sessment of up to twice the amount
claimed These civil sanctions may be
imposed under the Program Fraud
Civil Remedies Act, 31 U.S.C 3801—3812,
as implemented in 49 CR8. part 31
(OGD 91-035, 57 FR 38316, Aug 12, 1992, as
amended by CGD 9&-052, 62 FR 16103. Apr 6,
1997)
Subpart B—General Procedure
* 136.101 TIme Uniltations on claims.
(a) Except as provided under section
1012(h)(3) of the Act (33 U S C
27l2(h)(3)) (minors and incompetents),
the Fund will consider a claim only if
Presented in writing to the Director.
NPFC, within the following time lim-
its
(1) For damages, within three years
after —
(I) The date on which the in]ury and
Its connection with the incident in
question were reasonably discoverable
with the exercise of due care
(ii) in the case of natural resources
damages under section 1002(b)(2)(A) of
the Act (33 U S.C 2702(b)(2)(A)), the
date under paragraph (a)(l)(i) of this
section, or within three years from the
date of completion of the natural re-
Sources damage assessment under sec-
tion l006(e) of the Act (33 U.S C
27 06(e)), whichever is later.
§ 136. 103
(2) For removal costs, within six
years after the date of completion of
all removal actions for the incident As
used in this paragraph, “date of com-
pletion of all removal actions” Is de-
fined as the actual date of completion
of all removal actions for the incident
or the date the FOSC determines that
the removal actions which form the
basis for the costs being claimed are
completed, whichever is earlier
(b) Unless the Director, NPFC, di-
rects in writing that the claim be sub-
mitted elsewhere, a claim is deemed
presented on the date the claim is ac-
tually received at the National Pollu-
tion Funds Center, suite 1000, 4200 Wil-
son Boulevard, Arlington, Virginia
22203-1804 If the Director, NPFC, di-
rects that the claim be presented else-
where, the claim is deemed presented
on the date the claim is actually re-
ceived at the address in the directive.
ICOI) 91-035, 57 FR 36316. Aag 12, 1992, 57 FR
11104, Sept 9, 1992J
*136.103 Order of presentment
(a) Except as provided in paragraph
(b) of this section, all claims for re-
moval costs or damages must be pre-
sented first to the responsible party or
guarantor of the source designated
under § 136 305
(b) Claims for removal costs or darn-
ages may be presented first to the
Fund only—
(1) By any claimant, if the Director,
NPFC, has advertised, or otherwise no-
tified claimants in wnting, in accord-
ance with § 136.309(e),
(2) By a responsible party who may
assert a claim under section 1008 of the
Act (33USC 2708),
(3) By the Governor of a State for re-
moval costs incurred by that State; or
(4) By a United States claimant in a
case where a foreign offshore unit has
discharged oil causing damage for
which the Fund is liable under section
1012(a) of the Act (33 U S C 2712(a))
(c) If a claim is presented in accord-
ance with paragraph (a) of this section
and—
(1) Each person to whom the claim is
presented denies all liability for the
claim; or
(2) The claim is not settled by any
person by payment within 90 days after
the date upon which (A) the claim was
83
-------
§136.105
presented, or (B) advertising was begun
pursuant to § 136 309(d) , whichever is
later, the claimant may elect to com-
mence an action in court against the
responsible party or guarantor or to
present the claim to the Fund
(d) No claim of a person against the
Fund will be approved or certified for
payment during the pendency of an ac-
tion by the person in court to recover
costs which are the sub]ect of the
claim.
[ COD 91-035. 57 FR 36316, Aug 12, 1992, 57 FR
41104, Sept 9, 1992]
§ 136.105 General requirements for a
claim.
(a) The claimant bears the burden of
providing all evidence, information,
and documentation deemed necessary
by the Director, NPFC, to support the
claim
(b) Each claim must be in writing for
a sum certain for compensation for
each category of uricompensated dam-
ages or removal costs (as descnbed in
Subpart C of this part) resulting from
an incident If at any time during the
pendency of a claim against the Fund
the claimant receives any compensa-
tion for the claimed amounts, the
claimant shall immediately amend the
claim
(c) Each claim must be signed in ink
by the claimant certifying to the best
of the claimant’s knowledge and belief
that the claim accurately reflects all
material facts
(d) In addition to the other require-
ments of this section, any claim pre-
sented by a legal representative of the
claimant must also be signed by the
legal representative and—
(1) Be presented in the name of the
claimant,
(2) Show the title or legal capacity of
the representative, and
(3) Provide proof of authority to act
for the claimant
(e) Each claim must include at least
the following, as applicable
(1) The full name, street and mailing
addresses of residence and business,
and telephone numbers of the claim-
ant.
(2) The date, time, and place of the
incident giving rise to the claim
(3) The identity of the vessel, facil-
ity, or other entity causing or sue-
33 CFR Ch. I (7-1-97 EdItion)
pec ted to have caused the removal
costs or damages claimed and the ba j 5
for such identity or belief
(4) A general descnption of the na-
ture and extent of the impact of the in-
cident, the costs associated with i .
moval actions, and damages claimed,
by category as delineated in Subpart c
of this part, including, for any prop.
erty, equipment, or similar item dam-
aged, the full name, street and mailing
address, and telephone number of the
actual owner, if other than the claim.
ant
(5) An explanation of how and when
the removal costs or damages were
caused by, or resulted from, an m ci .
dent
(6) Evidence to support the claim.
(7) A description of the actions taken
by the claimant, or other person on the
claimant’s behalf, to avoid or minimize
removal costs or damages claimed
(8) The reasonable costs incurred by
the claimant in assessing the damages
claimed. This includes the reasonable
costs of estimating the damages
claimed, but not attorney’s fees or
other adm imstrative costs associated
with preparation of the claim
(9) To the extent known or reason-
ably identifiable by the claimant, the
full name, street and mailing address,
and telephone number of each witness
to the incident, to the discharge, or to
the removal costs or damages claimed,
along with a brief description of that
person’s knowledge.
(10) A copy of written communica-
tions and the substance of verbal com-
munications, if any, between the
claimant and the responsible party or
guarantor of the source designated
under §136 305 and a statement indicat-
ing that the claim was presented to the
responsible party or guarantor, the
date it was presented, that it was tie-
nied or remains not settled and, i i
known, the reason why it was denied or
remains not settled
(11) If the claimant has insuraDce
which may cover the removal costs O
damages claimed, the information re-
quired under § 136 111.
(12) A statement by the clainflfl t
that no action has been commenced th
court against the responsible party or
guarantor of the source desigflat
under § 136 305 or, if an action has beefl
84
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coast Guard, DOT
§136.115
commenced, a statement identifying
the claimant’s attorney and the attor-
ney’s address and phone number, the
civil action number, and the court in
which the action is pending.
(13) In the discretion of the Director,
NPFC, any other Information deemed
relevant and necessary to properly
process the claim for payment
4138.107 Subrogated claims.
(a) The claims of subrogor (e g, in-
sured) and subrogee (e g., insurer) for
removal costs and damages arising out
of the same incident should be pit-
sented together and must be signed by
all claimants.
(b) A fully subrogated claim is pay-
able only to the subrogee.
(c) A subrogee must support a claim
in the same manner as any other
claimant.
§138.109 Removal costs and multiple
Items of damages.
(a) A claimant must specify all of the
claimant’s known removal costs or
damages arising out of a single inci-
dent when submitting a claim
(b) Removal costs and each separate
category of damages (as descnbed in
subpart C of this part) must be sepa-
rately listed with a sum certain attrib-
uted to each type and category listed.
(c) At the sole discretion of the Di-
rector, NPFC, removal costs and each
separate category of damages may be
treated separately for settlement pur-
poses,
§138.111 Insurance.
(a) A claimant shall provide the fol-
lowing information concerning any in-
surance which may cover the removal
Costs or damages for which compensa-
tion is claimed.
(1) The name and address of each in-
surer.
(2) The kind and amount of coverage.
(3) The policy number.
(4) Whether a claim has been or will
be Presented to an Insurer and, if so,
the amount of the claim and the name
of the insurer.
(5) Whether any insurer has paid the
claIm In full or in part or has indicated
whether or not payment will be made.
(b) If requested by the Director,
NFFC. the claimant shall provide a
copy of the following material.
(1) All insurance policies or Indem-
nification agreements
(2) All wntten communications, and
a summary of all oral communications,
with any insurer or indemnifier.
(c) A claimant shall advise the Direc-
tor, NPFC, of any changes in the infor-
mation provided under this section.
* 136.113 Other compensation.
A claimant must include an account-
l ug, including the source and value, of
all other compensation received, ap-
plied for, or potentially available as a
consequence of the incident out of
which the claim arises including, but
not limited to, monetary payments,
goods or services, or other benefits.
§ 138.115 Settlement and notice to
claimant
(a) Payment In full, or acceptance by
the claimant of an offer of settlement
by the Fund, is final and conclusive for
all purposes and, upon payment, con-
stitutes a release of the Fund for the
claim. In addition, acceptance of any
compensation from the Fund precludes
the claimant from filing any subse-
quent action against any person to re-
cover costs or damages which are the
subject of the compensated claim. Ac-
ceptance of any compensation also con-
stitutes an agreement by the claimant
to assign to the Fund any rights,
claims, and causes of action the claim-
ant has against any person for the
costs and damages which are the sub-
ject of the compensated claims and to
cooperate reasonably with the Fund in
any claim or action by the Fund
against any person to recover the
amounts paid by the Fund The co-
operation shall Include, but is not lim-
ited to. immediately reimbursing the
Fund for any compensation received
from any other source for the same
costs and damages and providing any
documentation, evidence, testimony,
and other support, as may be necessary
for the Fund to recover from any per-
son
(b) Claimant’s failure to accept an
offer of settlement within 60 days aftet
the date the offer was mailed to the
claimant automatically voids the offer
85
-------
33 CER Cl i. I (7-1-97 Edition)
§ 136.201
The thrector, NPFC, reserves the right
to revoke an offer at any time
Cc) A claimant will be notified in
writing sent by certified or registered
mail whenever a claim against the
Fund is denied The failure of the Di-
rector, NPFC, to make final disposition
of a claim within six months after it is
filed shall, at the option of the claim-
ant any time thereafter, be deemed a
final denial of the claim
(d) The Director, NPFC, upon wntten
request of the claimant or of a person
duly authorized to act on the claim-
ant’s behalf, reconsiders any claim de-
nied The request for reconsideration
must be in writing and include the fac-
tual or legal grounds for the relief re-
quested, providing any additional sup-
port for the claim The request must be
received by the Director, NPFC, within
60 days after the date the denial was
mailed to the claimant or within 30
days after receipt of the denial by the
claimant, whichever date is earlier Re-
consideration may only be requested
once for each claim denied The Direc-
tor, NPFC will provide the claimant
seeking reconsideration with written
notification of the decision within 90
days after receipt of the request for re-
consideration This written decision is
final The failure of the Director,
NPFC, to make final disposition of a
reconsideration within 90 days after it
is received shall, at the option of the
claimant any time thereafter, be
deemed a final denial of the reconsider-
ation
Subpart C—Procedures for
Particular Claims
REMOVAL COSTS
§ 136.201 Authorized claimants.
A claim for removal costs may be
presented by any claimant
§ 136.203 Proof,
In addition to the requirements of
Subparts A and B of this part, a claim-
ant must establish—
(a) That the actions taken were nec-
essary to prevent, minimize, or miti-
gate the effects of the Incident;
(b) That the removal costs were in-
curred as a result of these actions,
(c) That the actions taken were de-
termined by the FOSC to be consistent
with the National Contingency Plan or
were directed by the FOSC
§136.205 Compensation allowable.
The amount of compensation allow-
able is the total of uncompensated rea-
sonable removal costs of actions taken
that were determined by the FOSC to
be consistent with the National Con-
tingency Plan or were directed by the
FOSC Except in exceptional cir-
cumstances, removal activities for
which costs are being claimed must
have been coordinated with the P030
NATURAL REsor.mcss
§ 138.207 Authorized claimants.
(a) Claims for uncompensated natural
resource damages may be presented by
an appropriate natural resources trust-
ee However, in order to facilitate the
processing of these claims with respect
to a single incident where multiple
trustees are Involved and to prevent
double recovery, the affected trustees
should select a lead administrative
trustee who will present consolidated
claims on behalf of the trustees.
(b) A trustee may present a claim for
the reasonable cost of assessing natu-
ral resources damages separately from
a claim for the cost of developing and
implementing plans for the restora-
tion, rehabilitation, replacement, or
acquisition of the equivalent of the
natural resources damaged.
§136.209 Proof.
In addition to the requirements of
subparts A and B of this part, a trusteS
must do the following
(a) Submit the assessment and res-
toration plans which form the basis of
the claim
(b) Provide documented costs and
cost estimates for the claim. Final cost
estimates for conducting damage as-
sessments or Implementing a restora-
tion plan may form the basis for a
claim against the Fund for an unco i n-
pensa ted natural resources a sge
claim
(c) Identify all trustees who may be
potential claimants for the same natu-
ral resources damaged
86
-------
coost Guard, DOT
§ 336.217
(d) Certify the accuracy and integrity
of any claim submitted to the Fund,
and certify that any actions taken or
proposed were or will be conducted in
accordan with the Act and consistent
with all applicable laws and regula-
tions
(e) Certify whether the assessment
was conducted in accordance with ap-
plicable provisions of the natural re-
sources damage assessment regulations
promulgated under section 1006(eXl) of
the Act (33 U S C 2706(eXl)) Identify
any other or additional damage assess-
ment regulations or methodology uti-
lized
U) Certify that 1 to the best of the
trustee’s knowledge and belief, no
other trustee has the right to present a
claim for the same natural resources
damages and that payment of any sub-
part of the claim presented would not
constitute a double recovery for the
same natural resources damages.
136.211 Compensation allowable.
(a) The amount of compensation al-
lowable is the reasonable cost of as-
sessing damages, and the cost of rester-
lug, rehabilitating, replacing, or ac-
quiring the equivalent of the damaged
natural resources
(b) Iii addition to any other provision
of law respecting the use of sums re-
covered for natural resources damages.
trustees shall reimburse the Fund for
any amounts received from the Fund in
excess of that amount required to ac-
complish the activities for which the
claim was paid
REAL OR PERSONAL PROPERTY
1186.213 Authorized claimants.
(a) A claim for injury to. or economic
losses resulting from the destruction
of, real or personal property may be
Presented only by a claimant either
Owning or leasing the property.
(b) Any claim for loss of profits or
impairment of earning capacity due to
in jury to, destnict,ion of. or loss of real
or personal property must be included’
as Subpart of the claim under this sec-
tLort and must include the proof re-
(mired under § 136 233.
87
* 136.215 Proof.
(a) In addition to the requirements of
subparts A and B of this part, a claim-
ant must establish—
(1) An ownership or leasehold inter-
est in the property,
(2) That the property was injured or
destroyed,
(3) The cost of repair or replacement;
and
(4) The value of the property both be-
fore and after injury occurred
(b) In addition, for each claim for
economic loss resulting from destruc-
tion of real or personal property, the
claimant must establish—
(1) That the property was not avail-
able for use and, if it had been, the
value of that use,
(2) Whether or not substitute prop-
erty was available and, if used, the
costs thereof, and
(3) That the economic loss claimed
was incurred as the result of the injury
to or destruction of the property.
{ 138,217 Compensation allowable.
(a) The amount of compensation al-
lowable for damaged property is the
lesser of—
(1) Actual or estimated net cost of re-
pairs necessary to restore the property
to substantially the same condition
which existed immediately before the
damage.
(2) The difference between value of
the property before and after the dam-
age; or
(3) The replacement value
(b) Compensation for economic loss
resulting from the destruction of real
or personal property may be allowed in
an amount equal to the reasonable
costs actually incurred for use of sub-
stitute commercial property or, if sub-
stitute commercial property was not
reasonably available, in an amount
equal to the net economic loss which
resulted from not having use of the
property When substitute commercial
property was reasonably available, hut
not used, allowable compensation for
loss of use is limited to the cost of the
substitute commercial property, or the
property lost, whichever is less Com-
pensation for loss of use of noncommer-
cial property is not allowable
174-121 O—97—--4
-------
§ 136.219
33 CFR Ch. 1(7-1-97 EdItion)
(c) Compensation for a claim for loss
of profits or Impairment of earning Ca-
pacity under §136.213(b) is limited to
that allowable under §136.235.
SUBSISTENCE USE
§ 138.219 Authorized claimants.
(a) A clatm for loss of subsistence use
of natural resources may be presented
only by a claimant who actually uses,
for subsistence, the natural resources
which have been injured, destroyed, or
lost, without regard to the ownership
or management of the resources.
(b) A claim for loss of profits or im-
pairxnent of earning capacity due to
loss of subsistence use of natural re-
sources must be included as part of the
claim under this section and must in-
clude the proof required under §138 233
*138.221 Proof.
In addition to the requirements of
subparts A and B of this part, a claim-
ant must provide—
(a) The identification of each specific
natural resource for which compensa-
tion for loss of subsistence use is
claimed;
(b) A description of the actual sub-
sistence use made bf each specific nat-
ural resource by the claimant,
(c) A description of how and to what
extent the claimant’s subsistence use
was affected by the injury to or loss of
each specific natural resource;
(d) A description of each effort made
by the claimant to mitigate the claim-
ant’s loss of subsistence use, and
(e) A. description of each alternative
source or means of subsistence avail-
able to the claimant during the period
of time for which loss of subsistence Is
claimed, and any compensation avail-
able to the claimant for loss of subsist-
ence
* 138.223 Compensation allowable.
(a) The amount of compensation al-
lowable is the reasonable replacement
cost of the subsistence loss suffered by
the claimant if, during the period of
time for which the loss of subsistence
is claimed, there was no alternative
source or means of subsistence avail-
able.
(b) The amount of compensation a ]-
lowable under paragraph (a) of this sec-
tion must be reduced by—
(1) All compensation made avai]abJ 8
to the claimant to compensate for sub-
sistence loss,
(2) All income which was derived by
utilizing the time which otherwise
would have been used to obtain natu.raj
resources for subsistence use, and
(3) Overheads or other normal ex-
penses of subsistence use not incurre j
as a result of the Incident.
(c) Compensation for a claim for lose
of profits or impairment of earning ca-
pacity under §136 219(b) is limited to
that allowable under §136 235
GOVERNMENT REvENUES
*138.225 Authorized claimants.
A claim for net loss of revenue due to
the injury, destruction, or loss of real
property, personal property, or natural
resources may be presented only by an
appropriate claimant sustaining the
loss. As used in this section and
§136277, “revenue” means taxes, royal-
ties. rents, fees, and net profit shares.
§138.227 Proof.
In addition to the requirements of
Subparts A and B, a claimant must es-
tablish—
(a) The identification and description
of the economic loss for which com-
pensation is claimed, including the ap-
plicable authority, property affected,
method of assessment, rate, and meth-
od and dates of collection;
(b) That the loss of revenue was due
to the Injury to, destruction of, or loss
of real or personal property or natural
resources;
(c) The total assessment or revenue
collected for comparable revenue peri-
ods; and
(d) The net loss of revenue.
* 138.229 CompensatIon allowable.
The amount of compensation allow-
able is the total net revenue actually
lost.
PROFITS AND EARNING CAPACiTY
* 138.231 Authorized claimants.
(a) A claim for loss of profits or m l-
pairment of earning capacity due tO
88
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coast Guard, oor
5136.301
the injury to, destruction of, or loss of
real or personal property or natural re-
sources may be presented by a claim-
ant sustaining the loss or impairment.
The claimant need not be the owner of
the damaged property or resources to
recover for lost profits or income
(b) A claim for loss of profits or im-
pairment of earning capacity that also
involves a claim for injury to, or eco-
nomic losses resulting from destruc-
tion of, real or personal property must
be claimed under § 136 213
(c) A claim for loss of profits or im-
pairment of earning capacity that also
involves a claim for loss of subsistence
use of natural resources must be
claimed under §136 219
§136.233 Proof.
Tin addition to the requirements of
subparts A and B of this part, a claim-
ant must establish the following.
(a) That real or personal property or
natural resources have been injured,
destroyed, or lost
(b) That the claimant’s income was
reduced as a consequence of injury to,
destruction of, or loss of the property
or natural resources, and the amount
of that reduction
(c) The amount of the claimant’s
profits or earnings in comparable pen-
ocls and dunng the period when the
claimed loss or impairment was suf-
fered, as established by income tax re-
turns, financial statements, and simi-
lar documents In addition, compara-
tive figures for profits or earnings for
the same or similar activities outside
of the area affected by the incident
also must be established
(d) Whether alternative employment
or business was available and under-
taken and, if so, the amount of income
received. All income that a claimant
received as a result of the incident
must be clearly indicated and any
Raved overhead and other normal ex-
penses not incurred as a result of the
incident must be established
§ 136235 Compensation allowable.
The amount of compensation allow-
able is limited to the actual net reduc-
tion or loss of earn ings or profits suf-
fered Calculations for net reductions
or’ losses must clearly reflect adjust-
ments for—
(a) All income resulting from the in-
cident ,
(b) All income from alternative em-
ployment or business undertaken,
(c) Potential income from alternative
employment or business not under-
taken, but reasonably available,
(d) Any saved overhead or normal ex-
penses not incurred as a result of the
incident, and
(e) State, local, and Federal taxes
GOVERNMENT Pusuc SERVICES
*136.237 Authorized claimants.
A claim for net costs of providing In-
creased or additional public services
during or after removal activities, In-
cluding protection from fire, safety, or
health hazards, caused by a thscharge
of oil may be presented only by a State
or a political subdivision of a State in-
curnug the costs
§136239 Proof.
In addition to the requirements of
subparts A and B of this part, a claim-
ant must establish—
(a) The nature of the specific public
services provided and the need for
those services:
(b) That the services occurred during
or after removal activities ,
(c) That the services were provided as
a result of a discharge of oil and would
not otherwise have been provided, and
(d) The net cost for the services and
the methods used to compute those
costs
§ 136,241 Compensation allowable.
The amount of compensation allow-
able is the net cost of the increased or
additional service provided by the
State or political subthvision
Subpart D—Designation of Source
and Advertisement
GENERA U
* 136.301 Purpose.
This subpart prescribes the require-
ments concerning designation of the
source or sources of the discharge or
threat of discharge and advertisement
of these designations, including the
procedures by which claims may be
89
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§136.303
presented to the responsible party or
guaran tar.
§138.303 Definitions.
As used in this subpart—
Advert isement means the dissemtha-
tion of information, including but not
limited to paid advertisements, that
are reasonably calculated to advise the
public how to present a claim
Designated source means a source des-
ignated under 1136.305.
DEsl o xAnoN OP SOURCE
I 138.305 Notice of designation.
(a) When Information of an incident
is received, the source or sources of the
discharge or threat are designated,
where possible and, appropriate. I.! the
designated source Is a vessel or facll-
ity, the responsible party and the guar-
antor, if known, are notified by tele-
phone, telefax, or other rapid means of
that designation. The designation will
be confirmed by a written Notice of
Designation.
(b) A Notice of Designation normally
contains, to the extent known—
(I) The name of the vessel or facility
designated as the source;
(2) The location, date, and time of
the incident;
(3) The type of quantity of oil In-
volved;
(4) The date of the designation;
(5) The procedures for accepting or
denying the designation; and
(6) The name, address, telephone
number, and, if available, telefax num-
ber of the responsible Federal official
to whom further communication it-
grading the incident, advertisement of
the incident, or denial of designation
should be directed.
1136.307 Denial of designation.
(a) Within five days after receiving a
Notice of Designation under § 136 305,
the responsible party or guarantor may
deny the designation
(b) A denial of designation must—
(I) Be in wnting;
(2) Identify the Notice of Designa-
tion,
(3) Give the reasons for the denial
and provide a copy of all supporting
documents; and
33 CFR Ch. I (7-1-97 Ed1fioř
(4) Be submitted to the offlciaj
named in the Notice of Designation.
(c) A denial is deemed received on the
date the denial is actually received by
the official named in the Notice of Des-
ignation.
ADvn’r lsgM.BN’r
4138.309 Advertisement
tions.
determlzt .
(a) The Director, NPFC, determines
for each incident the type, geographic
scope, frequency, and duration of ad-
vertisernent required.
(b) In making the determination
specified In paragraph (a) of this sec-
tion, the Director, NPFC, may con-
sider—
(I) The nature and extent of eco-
nomic losses that have occurred or are
likely to occur;
(2) The potential claimants who axe
likely to incur economic losses;
(3) The geographical area that is or
will likely be affected;
(4) The most effective method of rea-
sonably notifying potential claimants
of the designation and procedures of
submitting claims; and
(5) Relevant information or rec-
ommendations, if any, submitted by, or
on behalf of, the responsible party or
guarantor of the designated source.
(c) The Director, NPFC, provides the
specific requirements for advertise-
ment for each incident to the respon-
sible party or guarantor of the des-
ignated source.
(d) If a responsible party or guaran-
tor has not denied designation in ac-
cordance with §136 301, the party or
guarantor shall advertise, in accord-
ance with the requirements of this sub-
part, the designation and the proce-
dures by which claims may be pre-
sented. The advertisement must begin
not later than 15 days after the date of
the designation made under § 136.305.
(e) it there is no des 1gnatlon under
§ 136.305, If the source of the discharge
or threat is a public vessel, or If the re-
sponsible party and guarantor of the
source designated have denied the des-
ignation or failed to meet the require-
ments for advertisement in this sec-
tion, the Director, NPFC. may adver-
tise procedures for presenting claims
90
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°osI Guard, DOT
§ 13812
{13t311 Types of advertisement.
Advertisement required by the Three-
tor, NPFC, will normally include one
or more of the following
(a) Paid advertisements in a news-
paper or newspapers having general cir-
culation i L l the area designated by the
Director, NPFC
(b) Notice posted in mannas, manne
supply stores. bait and tackle shops,
and other appropriate business estab-
lishinents or public facilities in the
area designated by the Director, NPFC
(c) News releases to newspapers,
radio stations, television stations, and
cable services having general circula-
tion in the area designated by the Di-
rector, NPFC
(d) Other means approved by the Di-
rector, NPFC, under the circumstances
at each case
*136.313 Content o(advertisemenL
Each advertisement required by this
subpart may be required to contain the
following information or to indicate
where this information may be con-
tained
(a) Location, date, and time of the In-
cident .
(b) Geographical area affected, as de-
termined by the P050 or Director.
NPFC
(c) Type and quantity of oil involved
(d) Name or other descnption of the
source designated by the P0 50 or Di-
rector, NPFC
le) Name of the responsible party and
guarantor of the designated source
(0 Name, address, telephone number,
office hours, and work days of the per-
son or persons to whom claims are to
be presented and from whom claim in-
formation can be obtained.
(g) The procedures by which a claim
may be presented
(h) Other information required by the
Director, NPFC, under the cir-
CuInstaj ,c of each case.
PART 38—F(NANCIAL RESPON-
SIBILITY FOR WATER POLLU11ON
(VESSELS)
Sec
138 10 Scope
13812 Applicab Ility
138 15 Implementation schedule
138.20 DefInitions.
13830 General
138 40 Where to apply for and obtain forms
138 50 Time to apply
138 60 Appilcattons, general instructions
138 65 Issuance and carriage of Certificates
138 70 Renewal of Certificates
138 80 Financial. responsibility. how est.ab-
lished
138 90 Individual and Fleet Certificates
138 100 Non-own Ing operator’s responsibility
for identification
138 110 Master Certificates
138 120 Certihcates. denial or revocation
138 130 Fees
138 140 Enforcement
138 150 Service of process
Appendix A to Part 138—Application For-rn
Appendix B to Part 138—insurance Guaranty
Form
Appendix C to Part 138—Master Insurance
Guaranty Form
Appendix D to Part 138—Surety Bond Guar-
anty Form
Appendix E to Part 138—Financial Guaranty
Form
Appendix F to Part 138—Master Financial
Guaranty Form
AU’fllOItiT? 33USC 7T1 2716a, 42 USC
9608. 9609. sec 7(b), E 0 12580, 3 CFR. 1987
Comp, p 198, E 0 12711, 3 CFR 1991 Comp . p
351. 49 OPE l 2 46
Section 138 30 also issued under the author-
ity o 146 USC 2103. 14302
SOURCE CGD 91-005, 59 FR 34227. July 1,
1994, unless otberwise noted
{138.lO Scope.
This part sets forth the procedures
by which an operator of a vessel may
establish and maintain, for itself, and,
where the operator is not the owner or
demise charterer, for the owner and de-
mise charterer of the vessel, evidence
of financial responsibility to cover li-
ability of the owner, operator, and de-
mise charterer ansing under—
(a) Section 1002 of the Oil Pollution
Act of 1990 (OPA 90) (33 U.s C 2702),
and
(b) Section 107(aXI) of the Com-
prehensive Environmental Response.
Compensation, and Liability Act, as
amended (CEECLA) (42 U S C
9607(a)(1))
[ CGD 91-005, 59 PP. 3427?, July 1, 1994, as
amended bli COD 91-005. 61 FR 9274, Mar 7,
1996)
*138.12 Applicability.
(a) This part applies to—
(1) A tank vessel of any size, and to a
foreign-flag vessel of any size, using
91
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§ 138.15
33 CR Ch. I (1-1-97 EditIon)
the waters of the exclusive economic
zone to transship or lighter oil (wheth-
er delivering or receiving) destined for
a place subject to the jurisdiction of
the United States, and
(2) A vessel using the navigable wa-
ters of the United States or any port or
place subject to the jurisdiction of the
United States, including an offshore fa-
cility subject to the jurisdiction of the
United States, except—
(i) A vessel that is 300 gross tons or
less, and
(ii) A non-self-propelled barge that
does not carry oil as cargo or fuel and
does not carry hazardous substances as
cargo
(b) For the purposes of financial re-
sponsibility under OPA 90, a mobile off-
shore drilling unit is treated as a tank
vessel when it is being used as an off-
shore facility and there is a discharge,
or a substantial threat of a discharge,
of oil on or above the surface of the
water A mobile offshore drilling unit
is treated as a vessel other than a tank
vessel when it is not being used as an
offshore facility
(c) In addition to a non-self-propelled
barge over 300 gross tons that carries
hazardous substances as cargo, for the
purposes of financial responsibility
under CERCLA, this part applies to a
self-propelled vessel over 300 gross
tons, even if it does not carry hazard-
ous substances
(d) This part does not apply to a pub-
lic vessel
(COD 91-005, 59 FR 34 7, July 1, 1994. as
amended at 61 FR 9274 . Mar 7. i9961
* 13&15 Implementation schedule,
(a) A tank vessel is subject to the fol-
lowing implementation schedule’
(1) Until December 28, 1994, a tank
vessel is required to carry a Certificate
issued under parts 130, 131. and 132 of
this chapter. as may be applicable to
that vessel On or after that date, and
until July 1. 1995. a non-self-propelled
tank vessel must carry a Certificate is-
sued under parts 130, 131, and 132 of this
chapter . as may be applicable to that
vessel, unless it carries a Certificate is-
sued under this part.
(2) A self-propelled tank vessel to
which this part applies and which car-
ries a valid Certificate issued under
part 130 of this chapter may not oper-
ate on or after December 28, 1994, tin-
less the operator of that vessel has sub-
mitted to the Director, NPFC, before
that date acceptable evidence of finan-
cial responsibility applicable to that
vessel under this part A self-propelled
tank vessel covered by that evidence of
financial responsibility before Decem-
ber 28, 1994, may continue to opera
with the Certificate issued under pan
130 of this chapter The expiration date
of the Certificate issued under part 130
of this chapter for that vessel will be
deemed to be December 28, 1995, regard-
less of the expiration date appearing on
the Certificate Thereafter, a Certifi-
cate issued under this part is required.
(3) A self-propelled tank vessel to
which tins part applies, but which does
not carry a valid Certificate issued
under part 130 of this chapter before
December 28, 1994. may not operate on
or after that date unless it carries a
Certificate under this part.
(4) A non-self-propelled tank vessel
to which this part applies may not op-
erate on or after July 1. 1995, without a
Certificate issued under this part. A
non-self-propelled tank vessel may con-
tinue to operate with a Certificate is-
sued under parts 130, 131. and 132 of this
chapter, as may be applicable to that
vessel, until that date.
(b) A vessel that is not a tank vessel
(non-tank vessel) is subject to the fol-
lowing implementation schedule.
(1) Until December 28, 1997, a non-
tank vessel is required to carry a Cer-
tificate issued under parts 130 and 132
of this chapter, as may be applicable to
that vessel, unless that vessel carries a
Certificate issued under this part On
or after December 28, 1997, each non-
tank vessel subject to this part must
carry a Certificate issued under this
part.
(2) A Certificate is tssued, on and
after December 28, 1994, and before De-
cember 28, 1991. under parts 130 and 132
of tins chapter only to replace a lost
Certificate or to replace a Certificate
due to a vessel or operator name
change (a change of legal identity, such
as reincorporation or other reorganlza
tion, is not considered a name change)
The expiration date that will appear on
the replacement Certificate will be the
same as the expiration date of the Cer’
tificate being replaced. During that
92
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coast Guard, DOT
three.Yeat time period, with respect to
part 132 of this chapter. the expiration
date that will appear on a Certificate
being replaced, or on an existing Cer-
tiricate being renewed, will be ad)usted
to coincide with the expiration date of
the Certificate, if any, for that vessel
jssued under part 130 of this chapter.
(3) A non-tank vessel that has a Cer-
tificate issued before December 28, 1994,
under part 130 of this chapter is not re-
quired to carry a Certificate under this
part until the date of expiration of the
Certificate issued under part 130 of this
chapter
(4) Except as provided in paragraph
(b)(5) of this section, a Certificate Is-
sued on and alter July 1, 1994, and be-
fore December 28, 1994, under parts 130
and 132 of this chapter is issued with an
expiration date three years from the
date of issuance
(5) If a Certificate issued under part
130 of this chapter with an expiration
date of December 28, 1994, or later is
surrendered, and a new Certificate is
requested for the same non-tank vessel
before December 28, 1994, the new Cer-
tificate will have the same expiration
date as that of the surrendered Certifi-
cate.
(c) On or after July 1, 1994, a vessel
that Is subject to either part 131 or 132.
or both, of this chapter but that is not
subject to part 130 of this chapter be-
cause the vessel is 300 gross tons or less
Is not required to comply with part 131
or 132 of this chapter, unless that ves-
sel is subject to this part under
§ 138.12(a)(1)
§ 138.20 Definitions.
(a) As used in this part (including the
appendices to this part), the following
terms have the same meaning as set
forth In—
(1) Section 1001 of the Oil Pollution
Act of 1990 (33 U S C 2701), respecting
the financial responsibility referred to
in § 138.10(b)(1) claimant, damages, dis-
charge, exclus ive economic zone, navi-
gable waters, mobile offshoTe drilling unit,
natural resources, offshore facility, oil,
person, remove, removal, removal costs,
and United States, and
(2) Section 101 of the Comprehensive
Environmental Response, Compensa-
tion, and Liability Act (42 U S C 9601),
respecting the financial responsibility
§ 138.20
referred to in § 138 10(b)(2) claimant,
damages, environment, hazardous sub-
stance, navigable waters, natural re-
sources, person, release, remove, removal,
and United States
(b) As used in this part (including the
appendices to this part)—
Acts means OPA 90 and CERCLA
Applicant means an operator who has
applied for a Certificate or for the re-
newal of a Certificate under this part.
Application means “Application for
Vessel Certificate of Financial Respon-
sibility (Water Pollution)”, as illus-
trated in Appendix A of this part
Cargo means goods or materials on
board a vessel for purposes of transpor-
tation, whether proprietary or non-
propnetary A hazardous substance or
oil carned solely for use aboard the
carrying vessel is not “cargo”
CERCLA means title I of the Com-
prehensive Environmental Response,
Compensation, and Liability Act, as
amended (42 U S C. 9601 et seq)
Certificant means an operator who
has been issued a Certificate under this
part
Certificate means a “Vessel Certifi-
cate of Financial Responsibility (Water
Pollution)” issued under this part, un-
less otherwise indicated
Director, NPFC, means the head of the
U S Coast Guard National Pollution
Funds Center (NPFC)
Financial responsibility means statu-
torily required financial ability to
meet liability under the Acts.
Fish tender vessel and fishing vessel
have the same meaning as set forth In
46 U.S C. 2101.
Fuel means any oil or hazardous sub-
stance used or capable of being used to
produce heat or power by burning, in-
cluding power to operate equipment A
hand-carried pump with not more than
five gallons of fuel capacity, that is
neither integral to nor regularly stored
aboard a non-self-propelled barge, is
not equipment
Guarantor means any person who pro-
vides evidence of financial responsibil-
ity, under the Acts, on behalf of a ves-
sel owner, operator, and demise
charterer A vessel operator who can
qualify as a self-insurer may act as
both a self-insurer of vessels it oper-
ates and as a financial guarantor of
other vessels, under § 138 80(b)(4)
93
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§ 138.30
33 CFR C l i. I (7-1-97 EdmM
Hazardous material means a liquid
material or substance that Is—
(1) Flammable or combustible.
(2) Designated a hazardous substance
under section 311(b) of the Federal
Water Pollution Control Act (33 U S.C.
1221); or
(3) Designated a hazardous material
under section 104 of the Hazardous Ma-
terial Transportation Act (49 App.
U S.C. 1803)
Incident means any occurrence or se-
ries of occurrences having the same or-
igin, involving one or more vessels, fa-
cilities, or any combination thereof.
resulting in the discharge or substan-
tial threat of discharge of oil into or
upon the navigable waters or adjoining
shorelines or the exclusive economic
zone.
Insurer is a type of guarantor and
means one or more insurance compa-
nies, associations of u.nderwnters, ship-
owners’ protection and indemnity asso-
ciations, or other persons, each of
which must be acceptable to the Coast
Guard.
Master Certificate means a Certificate
issued under this part to a person act-
ing as vessel operator in its capacity as
a builder, repairer, scrapper, or seller
of vessels
Offshore supply vessel has the same
meaning as set forth in 46 U.S C 2101
OPA4 90 means title I of the Oil Pollu-
tion Act of 1990 (33 11.5 C. 2701 et seq.).
Operator means a person who is an
owner, a demise charterer, or other
contractor, who conducts the operation
of. or who is responsible for the oper-
atron of. a vessel A builder, repairer.
scrapper, lessor, or seller who is re-
sponsible, or who agrees by contract to
become responsible, for a vessel is an
operator
Owner means any person holding
legal or equitable title to a vessel In a
case where a Certificate of Documenta-
tion or equivalent document has been
issued, the owner is considered to be
the person or persons whose name or
names appear thereon as owner For
purposes of CERCLA only, “owner”
does not include a person who, without
participating in the management of a
vessel, holds indicta of ownership pn-
manly to protect the owner’s secunty
interest in the vessel.
Public vessel means a vessel
Owned or bareboat chartered by t
United States, or by a State or politi-
cal subdivision thereof, or by a foreign
nation, except when the vessel is en-
gaged in commerce
Self-elevating lift vessel means a vessel
with movable legs capable of raising ha
hull above the surface of the sea and
that is an offshore work boat (such a
a work barge) that does not engage in
drilling operations.
Tank vessel means a vessel (other
than an offshore supply vessel, a flaui-
ing or fish tender vessel of 750 gross
tons or less that transfers fuel without
charge to a fishing vessel owned by the
same person, or a towing or pushing
vessel (tug) simply because it has in itj
custody a tank barge) that is con-
structed or adapted to carry, or that
carries, oil or liquid hazardous mate-
nal in bulk as cargo or cargo residue,
and that—
(1) Is a vessel of the United States;
(2) Operates on the navigable waters,
or
(3) Transfers oil or hazardous mate-
nal in a place subject to the jurisdic-
tion of the united States
Total Applicable Amount means the
amount determined under § 138 80(fX3).
Vessel means every description of
watercraft or other artificial contriv-
ance used, or capable of being used, as
a means of transportation on water.
[ CGD 9i-005. 59 FR 34227. July 1. 1994. as
amended by COD 91-005. 61 FR 9274, Mar 7.
1996 ]
§ 138.30 General.
(a) The regulations in this part set
forth the procedures whereby an opera-
tor of a vessel subject to this part caS
demonstrate that it and the owner and
demise charterer of the vessel are fi
nancially able to meet potential liabil-
ity for costs and damages in the
amounts established by this part The
owner, operator, and demise charterer
are strictly, joint]y, and severally lia
ble for the costs and damages sultthg
from an incident or a release or threat-
ened release, but together they need
only establish and maintain an amouflt
of financial responsibility equal to the
single limit of liability per incident,
release, or threatened release. Only
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coast Guard 1 DOT
§ 138.30
chat portion of the evidence of finan-
cial responsibility under this part with
respect to
(1) OFA 90 is required to be made
available by a guarantor for the costs
and damages related to an incident
wbere there is not also a release or
threatened release; and
(2) CERCLA is required to be made
available by a guarantor for the costs
and damages related to a release or
threatened release where there is not
also an incident A guarantor (or a self-
insurer for whom the exceptions to
limitations of liability are not applica-
ble), therefore, is not recjuired to apply
the entire amount of financial respon-
ibility to an incident involving oil
alone or a release or threatened release
j volving a hazardous substance alone
(b) Where a vessel is operated by its
owner, or the owner is responsible for
its operation, the owner is considered
to be the operator and shall submit the
application for a Certificate In all
other cases, the vessel operator shall
submit the application A time or voy-
age charterer that does not assume re-
sponsibility for the operation of the
vessel Is not considered an operator for
the purposes of this part
(c) For a United States-flag vessel.
the applicable gross tons or gross ton-
nage, as referred to in this part, is de-
termined as follows .
(1) For a documented U S vessel in cas-
uTed under both 46 u.s c Chapters 143
(Convention Measurement) and 145 (Reg-
ulatory Measurement) The vessel’s regu-
latory gross tonnage is used to deter-
mine whether the vessel exceeds 300
gross tons where that threshold applies
under the Acts. if the vessel’s regu-
latory tonnage is determined under the
Dual Measurement System in 46 CFR
part 69, subpart D, the higher gross
tonnage is the regulatory tonnage for
the purposes of the 300 gross ton
threshold. The vessel’s gross tonnage
as measured under the international
Convention on Tonnage Measurement
of Ships, 1969 (&lConventionfl) is used
to determine the vessel’s required
amount of financial responsibility, and
limit of liability under section 1001(a)
of CPA 90 and under section 107(a) of
CERCLA,
(2) For a ll other Un ited States vessels
The vessel’s gross tonnage under 46
CFR part 69 is used for determining
both the 300 gross ton threshold, the re-
quired amount of financial responsibil-
ity, and limit of liability under section
1001(a) of OFA 90 and under section
1 07(a) of CEECLA If the vessel is meas-
ured under the Dual Measurement Sys-
tem. the higher gross tonnage is used
in all determinations
(d) For a vessel of a foreign country
that is a party to the Convention, gross
tonnage. as referred to in this part, is
determined as follows
(1) For a vessel assigned, or presently
required to be assigned, gross tonnage
under Annex I of the Convention The
vessel’s gross tonnage as measured
under Annex I of the Convention is
used for determining the 300 gross ton
threshold. If applicable, the required
amount of financial responsibility, and
limit of liability under section 1004(a)
of CPA 90 and under section 107(a) of
CERCLA
(2) For a vessel not presently required to
be assigned gross tonnage under Annex I
of the Convention The highest gross
tonnage that appears on the vessel’s
certificate of documentation or equiva-
lent document and that is acceptable
to the Coast Guard under 46 U S C
chapter 143 is used for determining the
300 gross ton threshold, if applicable,
the required amount of financial it-
sponsibility, and limit of liability
under section 1001(a) of OPA 90 and
under section 107(a) of CERCLA If the
vessel has no document or the gross
tonnage appearing on the document is
not acceptable under 46 U.S.C chapter
143, the vessel’s gross tonnage is deter-
mined by applying the Convention
Measurement System under 46 CFR
part 69. subpart B, or if applicable, the
Simplified Measurement System under
46 OFt part 69, subpart E The meas-
urement standards applied are subject
to applicable international agreements
to which the United States Govern-
ment is a party
(e) For a vessel of a foreign country
that is not a party to the Convention,
gross tonnage, as referred to in this
part, is determined as follows
( I) For a vessel measured under laws
and regulations found by the Com-
mandant to be sim ilar to Annex I of the
Convention The vessel’s gross tonnage
under the similar Laws and regulations
95
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§138.40
33 CFR Ci i. 1(7-1-97 Edition)
is used for determining the 300 gross
ton threshold, if applicable, the re-
quired amo unt of financial respons]bil-
ity, and limit of liability under section
1004(a) of OPA 90 and under section
1 (17(a) of CERCLIA The measurement
standards applied are sub)ect to appli-
cable international agreements to
which the United States Government is
a party
(2) For a vessel not ,neasw’ed under
laws and regulations found by the Corn-
mandant to be similar to Annex I of the
Convention. The vessel’s gross tonnage
under 46 CFR part 69, subpart B, or, if
applicable, subpart E, is used for deter-
mining the 300 gross ton threshold, if
applicable, the required amount of fi-
nancial responsibility, and limit of li-
ability under section 1004(a) of OPA 90
and under section 107(a) of CERCLA.
The measurement standards applied
are subject to applicable international
agreements to which the United States
is a party.
(U A person who agrees to act as a
guarantor or a self-insurer is bound by
the vessel’s gross tonnage as deter-
mined under paragraphs (c), (d). or (e)
of this section. regardless of what gross
tonnage is specified in an application
or guaranty form illustrated in the ap-
pendices to this part. Guarantors, how-
ever, may limit their liability under a
guaranty of financial responsibility to
the applicable gross tonnage appearing
on a vessel’s International Tonnage
Certificate or other official, applicable
certificate of measurement and shall
not incur any greater liability with re-
spect to that guaranty, except when
the guarantors knew or should have
known that the applicable tonnage cer-
tificate was incorrect
§138.40 Where to apply for and obtain
forms.
(a) An operator shall file an applica-
tion for a Certificate and a renewal of
a Certificate together with fees and
evidence of financial responsibility,
with the Coast Guard National Pollu-
tion Funds Center at the following ad-
dress U S Coast Guard, National Pol-
lution Funds Center (cv), 4200 Wilson
Boulevard, Suite 1000, Arlington, VA
203-l8O4. telephone (703) 235—4813,
Telex 248324 (Answerback CGNPFC
liE), Telefax (703) 235—4835
(b) Forms may be obtained at the ad.
dress in paragraph (a) of this section,
and all requests for assistance, includ-
ing telephone inquiries, in completing
applications should be directed to the
U S. Coast Guard at that same address.
* 138.50 Time to apply.
(a) A vessel operator who wishes to
obtain a Certificate shall file a corn-
pleted application form, evidence of fi-
nancial responsibility and appropriate
fees at least 21 days prior to the date
the Certificate is required The Direc-
tor, NPFC, may waive this 21-day re-
quirement
(b) The Director, NPFC, generally
processes applications in the order in
which they are received at the Na-
tional Pollution Funds Center
*138.60 ApplIcations general Instrue-
dons.
(a) The application for a Certificate
(Form CG-.5585) is illustrated in Appen-
dix A of this part. An application and
all supporting documents must be in
English All monetary terms must be
expressed in United States dollars.
(b) An authorized official of the ap-
plicant shall sign the application The
title of the signer must be shown in the
space provided on the application.
(c) The application must be accom-
panied by a written statement provid-
ing authority to sign, where the signer
is not disclosed as an individual (sole
propnetor) applicant, a partner in a
partnership applicant, or a director,
chief executive officer, or any other
duly authorized officer of a corporate
applicant
(d) If, before the issuance of a Certifi-
cate, the applicant becomes aware of a
change in any of the facts contained in
the application or supporting docu-
mentation, the applicant shall, within
five business days of becoming aware of
the change, notify the Director, NPFC.
in writing, of the change
§138.65 Issuance and carriage of Cer-
tificates.
Upon the satisfactory demonstration
of financial responsibility and payment
of fees, the Director, NPFC. issues 5.
Vessel Certificate of Financial Respon-
sibility (Water Pollution), the original
of which (except as provided in §4138 90
96
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CoosI Guard. DOT
§138.80
(a) and (b) and 138 1 10(f)) is to be car-
ned aboard the vessel covered by the
Certificate The carnage of a valid ( i cr-
tiucate or authorized copy indicates
compliance with these regulations
Failure to carry a valid Certificate or
authorized copy subjects the vessel to
enforcement action, except where a
certificate is removed temporarily
from a vessel for inspection by a Unit-
ed States Government official
4138.70 Renewal of Certificates.
(a) An operator shall file a written
application for the renewal of a Certifi-
cate at least 21 days, but not earlier
than 90 days, before the expiration date
of the Certificate Except as provided
j paragraph (c) of this section, a letter
may be used for this purpose The Di-
rector, NPFC, may waive this 21-day
requirement
(li) The applicant shall identify in the
renewal application any changes which
have occurred since the onginal appli-
cation for a Certificate was filed, and
set forth the correct information in
full
(c) An applicant that applies for the
first time for a Certificate issued under
this part to replace a Certificate issued
under part 130 of this chapter shall sub-
mit an application form illustrated In
Appendix A of this part An applicant
is not required to pay an application
fee under §138 130(c) for this first-time
application
138.80 Financial responsibility, how
established.
(a) General In addition to submitting
an application and fees, an applicant
shall submit, or cause to be submitted,
evidence of financial responsibility in
an amount determined under §138 BO(Q.
A guarantor may submit directly to
the Director, NPFC, the evidence of fi-
nancial responsibility
(b) Met ho d.s An applicant shall estab-
lish evidence of financial responsibility
by one or more of the foflowing meth-
ods:
(I) Insurance By filing with the Di-
rector, NPFC, an insurance guaranty
form CG—5586, Illustrated in Appendix B
of this part (or. when applying for a
Master Certificate, a master Insurance
guaranty form CQ-5586-1, illustrated in
Appendix C of this part), executed by
not more than four insurers that have
been found acceptable by and remain
acceptable to the Director, NPFC, for
purposes of this part
(2) Surety bond By filing with the Di-
rector. NPFC, a surety bond guaranty
form C0-5586-2, illustrated in Appendix
B of this part, executed by not more
than 10 acceptable surety companies
certified by the United States Depart-
ment of the Treasury with respect to
the Issuance of Federal bonds in the
maximum penal sum cf each bond to be
issued under this part
(3) Self-insurance By filing the finan-
cial statements specified in paragraph
(b)(3)(i) of this section for the appli-
cant’s last fiscal year preceding the
date of application and by demonstrat-
ing that the applicant maintains, in
the United States, working capital and
net worth each in amounts equal to or
v-eater than the total applicable
amount calculated it accordance with
§ 73880(f), based on a vessel carrying
hazardous substances as cargo As used
in this paragraph, working capital
means the amount of current assets lo-
cated in the United States, less all cur-
rent liabilities anywhere in the world,
and net worth means the amount of all
assets located in the United States.
less all liabilities anywhere In the
world After the initial submission, for
each of the applicant’s fiscal years, the
applicant or certificant shall submit
statements as follows
(ij initial and annual submiss i ons. An
applicant or certificant shall submit
annual, current, and audited zion-con-
solidated financial statements pre-
pared in accordance with Generally Ac-
cepted Accounting Principles, and au-
dited by an independent Certified Pub-
lic Accountant These financial state-
ments must be audited In accordance
with Generally Accepted Auditing
Standards These financial statements
must be accompanied by an additional
statement from the Treasurer (or
equivalent official) of the applicant or
certificant certifying both the amount
of current assets and the amount of
total assets included in the accom-
panying balance sheet, which are lo-
cated in the United States If the finan-
cial statements cannot be submitted in
non-consolidated form, a consolidated
97
-------
§138.80
statement may be submitted if accom-
panied by an additional statement pre-
pared by the same Certified Public Ac-
countant, venfying the amount by
which the applicant’s or certificant’s—
(A) Total assets, located in the Unit-
ed States, exceed its total (i.e.. world-
wide) liabilities: and
(B) Current assets, located in the
United States, exceed its total (1 e,
worldwide) current liabilities. This ad-
ditional statement must specifically
name the applicant or certificant, indi-
cate that the amounts so verified re-
Late only to the applicant or
certificant, apart from any other affili-
ated entity, and identify the consoli-
dated financial statement to which it
applies.
(ii) Semiannual submissions. When the
applicant’s or certificant’s dem-
onstrated net worth is not at least ten
times the total applicable amount of fi-
nancial responsibility, the applicant’s
or certificant’s Treasurer (or equiva-
lent official) shall file affidavits cover-
ing the first six months of the appli-
cant’s or certificant’s fiscal year. The
affidavits must state that neither the
working capital nor the net worth
have, during the first six months of the
current fiscal year, fallen below the ap-
p1 ican t’s or certificant’s required
amount of financial responsibility as
determined in accordance with this
part
(iii) Additional submissions An appli-
cant or certificant—
(A) Shall, upon request of the Direc-
tor. NPFC, submit additional financial
information; and
(B) Who establishes financial respon-
sibility under paragraph (b)(3) of this
section shall notify the Director,
NPFC, within five business days of the
date the applicant or certificant
knows, or has reason to believe, that
the working capital or net worth has
fallen below the amounts required by
this part
(iv) Time for subrrnssions All required
annual financial statements must be
received by the Director, NPFC, within
90 days after the close of the appli-
cant’s or certificant’s fiscal year, and
all affidavits required by paragraph
(b)(3)(ii) of this section within 30 days
after the close of the applicable six-
month period. Upon written request,
33 CFR Ch. I (7-1-97 Edttlon)
the Director, NPFC, may grant an ex-
tension of the time limits for filing the
annual financial statements or affida-
vits. An applicant or certificant that
requests an extension must set forth
the reason for the extension and de-
liver the request at least 15 days before
the statements or affidavits are due.
The Director, NPFC, will not consider
a request for an extension of more than
60 days
(v) Failure to submit The Director,
NPFC, may revoke a certificate for
failure of the certificant to submit any
statement, data, notification, or affida-
vit required by paragraph (b)(3) of this
section
(vi) Waiver of working capital. The Di-
rector, NPFC, may waive the working
capital requirement for any applicant
or certificant that—
(A) Is a regulated public utility, a
municipal or higher-level govern-
mental entity, or an entity operating
solely as a charitable, non-profit mak-
ing organization qualifying under sec-
tion 501(c) Internal Revenue Code. The
applicant or certificant must dem-
onstrate in writing that the grant of a
waiver would benefit a local public in-
terest, or
(B) Demonstrates in writing that
working capital is not a significant
factor in the applicant’s or
certificant’s financial condition. An
applicant’s or certificant’s net worth in
relation to the amount of its required
amount of financial responsibility and
a history of stable operations are the
major elements considered by the Di-
rector, NPFC
(4) Financial Guaranty. By filing with
the Director, NPFC. a Financial Guar-
anty Form CC—5586-3. illustrated in Ap-
pendix E of this part (when applying
for a Master Certificate, a Master Fi-
nancial Guaranty Form CG—5586-4. il-
lustrated in Appendix F of this part),
executed by not more than four finan-
cial guarantors, such as a parent or af-
filiate acceptable to the Coast Guard
A financial guarantor shall comply
with all of the self-insurance provisions
of paragraph (b)(3) of this section in
addition, a person that is a financial
guarantor for more than one applicant
98
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coast Guard, DOT
§ 138.80
or certificant shall have working cap-
ital and net worth no less than the ag-
gregate total applicable amounts of fi-
nancial responsibility provided as a
guarantor for each applicant or
certificant. plus the amount required
,,o be demonstrated by a self-insurer
under this part, if also acting as a self-
insurer
(5) Other evidence of J i ma nctai respon-
szbflity The Director, NPFC, will not
accept a self-insurance method other
than the one described in paragraph
(b)(3) or this section An applicant may
in wnting request the Director, NPFC,
to accept a method different from one
desCflbed in paragraph (b) (1). (2). or (4)
of this section to demonstrate evidence
of financial responsibility An appli-
cant submitting a request under this
paragraph shall submit the request to
the Director, NPFC, at least 45 days
prior to the date the Certificate is re-
quired The applicant shall describe in
detail the method proposed, the rea-
sons why the applicant does tot wish
to use or is unable to use one of the
methods described in paragraph (b) (1),
(2), or (4) of this sect Ion, and bow the
proposed method assures that the ap-
plicant is able to fulfill its obligation
to pay costs and damages in the event
of an Incident or a release or threat-
ened release The Director, NPFC, will
not accept a method under this para-
graph that merely deletes or alters a
provision of one of the methods de-
scribed in paragraph (b) (1), (2). or (4) of
this section (for example, one that al-
ters the termination clause of the In-
surance guaranty form illustrated in
Appendix B of this part) An applicant
that makes a request under this para-
graph shall provide the Director.
NPFC, a proposed guaranty form that
includes afl the elements descnbed In
paragraphs (c) and (d) of this section A
decision of the Director, NPFC. not to
acoept a method requested by an appli-
cant under this paragraph Is final agen-
cy action
(c) Fonns--.(1) Multi pie guarantors.
Four or fewer Insurers (a lead under-
writer is considered to be one insurer)
may jointly execute an Insurance guar-
anty form Ten or fewer sureties (in-
cluding lead sureties) may jointly exe-
cute a surety bond guaranty form.
Four or fewer financial guarantors may
jointly execute a financial guaranty
form If more than one insurer, surety,
or financial guarantor executes the rel-
evant form—
(i) Each is bound for the payment of
sums only in accordance with the per-
centage of vertical participation speci-
fied on the relevant form for that in-
surer, surety, or financial guarantor
Participation in the form of layering
(tiers, one in excess of another) is not
acceptable, only vertical participation
on a percentage basis is acceptable un-
less none of the participants specifies a
percent of participation If no percent-
age of participation is specified for an
insurer, surety, or financial guarantor.
the liability of that insurer, surety, or
financial guarantor is joint and several
for the total of the unspecified por-
tions, and
(ii) The guarantor’s must des ignate a
lead guarantor having authority to
bind all guarantors for actions required
of guarantors under the Acts, Including
but not limited to receipt of designa-
tion of source, advertisement of a des-
ignation, and receipt and settlement of
claims.
(2) Operator name. A’n applicant shalt
ensure that each form submitted under
this part sets forth in full the correct
legal name of the vessel operator to
whom a certificate is to be issued
(d) D irect Action ( I) Acknowledgment
Any evidence of financial responsibil-
ity submitted under this part must
contain an acknowledgment by the In-
surer or other guarantor that an action
in court by a claimant (Including a
claimant by right of subrogation) for
costs and damage claims arising under
the provisions of the Acts. may be
brought directly against the insurer or
other guarantor. The evidence of finan-
cial responsibility must also provide
that, in the event an action is brought
under the Acts directly against the in-
surer or other guarantor, the insurer or
other guarantor may invoke only the
following rights and defenses
(I) The inc ident, release, or threat-
ened release was caused by the willful
misconduct of the person for whom the
guaranty is provided
(II) Any defense that the person (or
whom the guaranty Is provided may
raise under the Acts
99
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§138.90
33 CR Ch. I (7-1-97 EdItion)
(iii) A defense relating to the amount
of a claim or claims, filed in any action
in any court or other proceeding, that
exceeds the amount of the guaranty
with respect to an incident or with re-
spect to a release or threatened re-
lease
(iv) A defense relating to the amount
of a claim or claims that exceeds the
amount of the guaranty, which amount
is based on the ross tonnage of the
vessel as entered on the vessel’s Inter-
national Tonnage Certificate or other
official, applicable certificate of meas-
urement, except when the guarantor
knew or should have known that the
applicable tonnage certificate was in-
correct.
(v) The claim is not one made under
either of the Acts
(2) Limitation on guarantor liability A
guarantor that participates in any evi-
dence of financial responsibility under
this part shall be liable because of that
participation, with respect to an Inci-
dent or a release or threatened release,
in any proceeding only for the amount
and type of costs and damages specified
in the evidence of financial responsibil-
ity A guarantor shall not be consid-
ered to have consented to direct action
under any law other than the Acts, or
to unlimited liability under any law or
in any venue, solely because of the
guarantor’s participation in providing
any evidence of financial responsibility
under this part In the event of any
finding that liability of a guarantor ex-
ceeds the amount of the guaranty pro-
vided under this part, that guaranty is
considered null and void with respect
to that excess
(e) Public access to data Financial
data filed by an applicant, certificant,
and any other person is considered pub-
lic infonnation to the extent required
by the Freedom of information Act (5
U S C 552) and permitted by the Pt-i-
vacy Act (5USC 552a)
(0 Total applicable amount (1) The am
plicable amount under OPA 90 is deter-
mined as follows
( 1) For a tank vessel (except a tank
vessel on which no liquid hazardous
material in bulk is being carned as
cargo or cargo residue, and on which
the only oil carned as cargo or cargo
residue is an animal fat or vegetable
oil, as those terms are used in section
2 of the Edible Oil Regulatory Reforni
Act (Pub L 104—55))
(A) Over 300 gross tons (and a vessel
of 300 ross tons or less using the wa-
ters of the United States Exclusive
Economic Zone to transship or lighter
oil destined for a place subject to the
junsdiction of the United States, as
specified in §138 12(a)(1)) but not ex-
ceeding 3,000 gross tons, the greater of
$2,000,000 or $1,200 per gross ton, and
(B) Over 3,000 gross tons, the greater
of $10,000,000 or $1,200 per gross ton
(ii) For a vessel other than a tank
vessel under paragraph (fXl)(i) of this
section that is over 300 gross tons or
that is 300 gross tons or less using the
waters of the Exclusive Economic Zone
of the United States to transship or
lighter oil destined (or a place subject
to the jurisdiction of the United
States, the greater of $500,000 or $600
per gross ton.
(2) The applicable amount under
CERCLA is determined as follows:
(i) For a vessel over 300 gross tons
carrying a hazardous substance as
cargo, the greater of $5,000,000 or $300
per gross ton
(ii) For any other vessel over 300
gross tons, the greater of $500,000 or
$300 per gross ton
(3) The total applicable amount is the
maximum applicable amount cal-
culated under paragraph (0(1) of this
section p Ius maximum applicable
amount calculated under paragraph
(0(2) of this section
[ COD 91-005, 59 FR 34fl7, July 1, 1994, as
amendcd by CGD 9i-005. 61 FR 9711. Mar 7.
19961
§138.20 Individual and fleet Certifi-
c a i n .
(a) The Director, NPFC, issues an in-
dividual Certificate for each vessel list-
ed on a completed application when the
Director, NPFC, determines that ac-
ceptable evidence of financial respon-
sibility has been provided and appro-
pnate fees have been paid, except
where a Fleet Certificate is issued
under this section or where a Master
Certificate is issued under §138 110.
Each Certificate of any type issued
under this part is issued only in the
name of a vessel operator and is effec-
tive for not more than three years Cro ft
the date of issue, as indicated on each
100
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Coast Guard DOT
§ 138.90
Certificate An authorized official of
the applicant may submit to the three-
tar, NPFC, a letter requesting that ad-
ditional vessels be added to a pre-
viously submitted application for an
individual Certificate The letter must
set forth all information rectuired in
Item 5 of the application form The au-
thorized official shall also submit or
cause to be submitted acceptable evi-
dence of financial responsibility, if re-
quired , and certification fees for these
additional vessels The certificant shall
carry the original individual Certifi-
cate on the vessel named on the Car-
ti bcate, except that a legible copy (cer-
ti lled as accurate by a notary public or
other person authorized to take oaths
In the United States) may be earned
instead of the onginal if the vessel is
an unmanned barge and does not have
a document carrying device which the
vessel operator believes would offer
suitable protection for the original
Certificate If a notanzed copy of an in-
d ividual Certificate is carned aboard a
barge, the Certificate shall retain the
original in the United States and shall
make it readily available for inspec-
tion by United States Government oth-
cia ls.
(b) An operator of two or more barges
that are not tank vessels and that from
time to time may be subject to this
part (e.g . a hopper barge over 300 gross
tons when carrying oily metal shavings
or similar cargo), so long as the opera-
tor of such a fleet is a self-insurer or
arranges with an acceptable guarantor
to cover, automatically, all such
barges for which the operator may
from time to time be responsible, may
apply to the Director, NPFC, for issu-
ance of a Fleet Certificate A legible
copy of the Fleet Certificate, certified
as accurate by a notary public or other
person authorized to take oaths in the
United States, must be earned on each
barge when subject to this part Lu ad-
dition, the certificant shall retain in
the United States the original Fleet
Certificate and shall make it readily
available for inspection by United
States Government officials The origi-
nal Fleet Certificate, when invalid.
must be completed on the reverse side
and returned immediately to the Direc-
tor, NPFC, and all copies must be de-
stroyed When the certificant ceases to
be responsible for a barge covered by a
Fleet Certificate, the certificant shall
immediately destroy the copy of the
Fleet Certificate carned aboard that
barge
(c) A person shall not make any al-
teration on any Certificate issued
under this part or copy of that Certifi-
cate, except the notarized certifi-
cations permitted in §138 110(0 and
paragraphs (a) and (b) of this section A
Certificate or copy containing any al-
teration is void
(dl If, at any time after a Certificate
has been issued, a certilicant becomes
aware of a change in any of the facts
contained in the application or sup-
porting documentation, the certificant
shall notify the Director, NPFC, in
writing within 10 days of becoming
aware of the change A vessel or opera-
tor name change or change of a guaran-
tor shall be reported as soon as possible
by telefax or other electronic means to
the Director, NPFC. and followed by a
written notice sent within Uiree busi-
ness days
(e) Except as provided in § 138 90(0, at
the moment a certiuicant ceases to be
the operator of a vessel for any reason,
including a vessel that is scrapped or
transferred to a new operator, the indi-
vidual Certificate naming the vessel.
and any copies of the Certificate, are
void and their further use is prohibited
In that case, the certificant shall,
within 10 days of the Certificate be-
coming void, complete the reverse side
of the original individual Certificate
naming the involved vessel and return
the Certificate to the Director, NFFC
If the Certificate cannot be returned
because it has been lost or destroyed.
the certificant shall, within three busi-
ness days, submit the following infor-
mation in writing to the Director,
NPFC
(1) The number of the indiv idual Cer-
tificate and the name of the vessel
(2) The date and reason why the
certificant ceased to be the operator of
the vessel
(3) The location of the vessel on the
date the certificant ceased to be the
operator
(4) The name and mailing address of
the person to whom the vessel was sold
or transferred
101
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§ ‘138,100
33 CFP Ch. 1(7-1-97 Ed ttton)
(fl In the event of the temporary
transfer of custody of an unmanned
barge certificated under this part.
where the certificant transfernug the
barge continues to be liable under the
Acts and continues to maintain on file
with the Director, NPFC. acceptable
evidence of financial responsibility
with respect to the barge, the existing
individual Certificate remains in ef-
fact A temporary new individual Cer-
tificate is not required A transferee is
encouraged to require the transfernng
certificant to acknowledge in wnting
that the transfernng certificant agrees
to remain responsible for pollution li-
abilities
* 138.100 Non-owning operator’s re-
sponsibility for identification.
(a) Each operator that is not an
owner of a vessel certificated under
this part, other than an unmanned
barge, shall ensure that the onginal or
a legible copy of the demise charter-
party (or other written document on
the owner’s letterhead, signed by the
vessel owner, which specifically identi-
ties the vessel operator named on the
Certificate) is maintained on board the
vessel
(b) The demise charter-party or other
document required by paragraph (a) of
this section must be presented, upon
request, for examination to a United
States Government official
§ 138.110 Master Certificates.
(a) A contractor or other person who
is responsible for a vessel in the capac-
ity of a builder, scrapper, lessor, or
seller (including a repairer who agrees
to be responsible for a vessel under its
custody) may apply for a Master Cer-
tificate instead of applying for an indi-
vidual Certificate for each vessel A
Master Certificate covers all of the ves-
sels subject to this part held by the ap-
phcant solely for purposes of construc-
tion, repair, scrapping, lease, or sale A
vessel which is being operated commer-
cially in any business venture, includ-
ing the business of building, repairing,
scrapping, leasing, or selling (e g, a
slop barge used by a shipyard) cannot
be covered by a Master Certificate Any
vessel for which a Certificate is re-
quired, but which is not eligible for a
Master Certificate, must be covered by
either an individual Certificate or a
Fleet Certificate
(b) An applicant for a Master Certifi-
cate shall submit an application form
In the manner prescribed by § 138 60. An
applicant shall establish evidence of 11-
nanclal responsibility in accordance
with § 138 80, by submission, for exam-
ple, of an acceptable Master Insurance
Guaranty Form, Surety Bond Guaranty
Form, Master Financial Guaranty
Form, or acceptable self-insurance doc-
umentation An application must be
completed in full, except for Item 5
The applicant shall make the following
statement In item 5 “ThIs is an appli-
cation for a Master Certificate. The
largest tank vessel to be covered by
this application is [ insert applicable
gross tonsj gross tons. The largest ves-
sel other than a tank vessel is (insert
applicable gross tons) gross tons” The
dollar amount of financial responsibil-
ity evidenced by the applicant must be
sufficient to meet the amount required
under this part
(c) Each Master Certificate issued by
the DIrector, NPFC, indicates—
(1) The name of the applicant (i.e.
the builder, repairer, scrapper, lessor,
or seller).
(2) The date of issuance and tenni-
nation, encompassing a penod of not
more than three years, and
(3) The gross tons of the largest tank
vessel and gross tons of the largest ves-
sel other than a tank vessel eligible for
coverage by that Master Certificate
The Master Certificate does not iden-
tify the name of each vessel covered bY
the Certificate
(d) Each additional vessel which does
not exceed the respective tonnages in-
dicated on the Master Certificate and
which is eligible for coverage by a Mas-
ter Certificate is automatically cov-
ered by that Master Certificate Before
acquiring a vessel, by any means, in-
cluding conversion of an existing ves-
sel, that would have the effect of in-
creasing the certifican t ‘s required
amount of financial responsibility
(above that provided for issuance of the
existing Master Certificate), the
certificant shall submit to the Direc-
tor, NPFC, the following
(1) Evidence of increased financial re-
sponsibility
(2) A new certification fee
102
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Coast Guard, DOT
§ 138.120
(3) Either a new application or a let-
ter amending the existing application
to reflect the new gross tonnage which
Is to be indicated on a, flew Master Cer-
tificate
(e) A person to whom a Master Cer-
tificate has been issued shalt submit to
the Director, X4PFC. every six months
teginning the month after the month
in which the Master Certificate is Is-
sued, a report indicating the name, pre-
vious name, type, and gross tonnage of
each vessel covered by the Master Cer-
tificate during the preceding six-month
reporting period and indicating which
vessels, if any, are tank vessels
(1) The certificant shall ensure that a
legible copy of the Master Certificate
(certified as accurate by a notary pub-
ite. or other person authorized to take
oaths in the United States) is carl-Led
aboard each vessel covered by the Mas-
ter Certificate The certifi rant shall re-
tain the original Master Certificate at
a location in the United States and
shall make it readily available for in-
spection by United States Government
officials
(g) Upon revocation or other invali-
dation of the Master Certificate, the
certificant shall return the original
Certificate within 10 days to the Direc-
tor, NPFC The certificarit shall ensure
that al l cop ies of the Certificate are de-
6troyed
OCD 91-005 59 FR 3C21, July 1, 1994, as
amended by COD 91-005, 61 Fil 9275. Mar 7,
1996J
1138.120 Certificates, denial or revoca-
tion.
(a) The Director,, NPFC, may deny a
Certificate when an applicant—
(t) Willfully or knowingly makes a
false statement in connection with an
application (or an initial or renewal
Certificate,
(2) Fails to establish acceptable evi-
dence of financial responsibi l ity as re
quired by this part,
(3) Fails to pay the required applica-
tion or certificate fees;
(4) Fails to comply with or respond to
lawful inquiries, regulations, or orders
of the Coast Guard pertaining to the
activities subject to this part, or
(5) Fails to timely file requ Ired state-
ments, data, notifications 1 or affida-
vita
(1) The Director, NPFC, may revoke
a Certificate when a certificant—
(1) Wi!lfully or knowingly makes a
false statement in connection with an
application for an initial or a renewal
Certificate, or in connection with any
other filing required by this part,
(2) Fails to comply with or respond to
lawful inquiries, regulations, or orders
of the Coast Guard pertaining to the
activities subject to this part; or
(3) Fails to timely file required state-
ments, data, notifications, or affida-
vits
(c) A Certificate is immediately in-
valid, and considered revoked, without
prior notice, when the certificant.—
(1) Fails to maintain acceptable evi-
dence of financial responsibility as re-
quired by this part.
(2) Es no longer the responsible opera-
tor of the vessel in question; or
(3) Alters any Certificate or copy of a
Certificate except as permitted by this
part in connection with notarized cer-
tifications of copies
(d) The Director, NFFC. advises the
applicant or certificant. in wnting. of
the intention to deny or revoke a Cer-
tificate under paragraph (a) or (t) of
this section and states the reason
ther-efor Written advice from the D-
rector, NPFC, that an incomplete ap-
plication will be considered withdrawn
unless it is completed within a stated
period Is the ectuivalent ala deniai
(e) If the intended revccatlcn under
paragraph (b) of this section is based
on failure to timely file the required fi-
nancial statements, data, notifications,
or affidavits, the revocation is effective
10 days after the date of the notice of
intention to revoke, unless, before rev-
ocation, the certificant demonstrates
to the satisfaction of the Director,
NPFC. that the required documents
were timely filed or have been filed
(1) 11 the intended denial is based on
paragraph (a)(l) or (a) (4) of this sec-
tion, or the intended revocation is
based on paragraph (b)(l) or (b)(2) of
this section . the applicant or
certificant may request, in writing, an
opportunity to present infcrmaticn for
the purpose of showing that the appli-
cant or certificant is in compliance
with the part The request must be re-
ceived by the Director, NPFC. within
103
-------
§ 138.130
3.3 CFR Ch. I (7- 1-97 Edtffon)
10 days after the date of the notifica-
tion of intention to deny or revoke A
Certificate subject to revocation under
this paragraph remains valid until the
Director, NPFC, issues a written deci-
sion revoking the Certificate
(g) An applicant or certificant whose
Certificate has been denied under para-
graph (a) of this section or revoked
under paragraph (b) or (c) of this sec-
tion may request the Director, NPFC,
to reconsider the denial or revocation
The certificant shall file a request for
reconsideration, in writing, to the Di-
rector, NPFC, within 20 days of the
date of the denial or revocation The
certificant shall state the reasons for
reconsideration. The Director, NPFC,
issues a written decision on the request
within 30 days of receipt, except that
failure to issue a decision within 30
days shall be deemed an affirrnance of
a denial or revocation Until the Direc-
tor, NPFC, issues this decision, a re-
yoked certificate remains invalid A
decision by the Director, NPFC, affirm-
ing a denial or revocation, is final
agency action
§138.130 Fees.
(a) The Director, N’PFC, will not
issue a Certificate until the fees set
forth in paragraphs (c) and (d) of this
section have been paid
(b) Fees must be paid in United
States currency by check, draft, or
postal money order made payable to
the “U S Coast Guard” Cash will not
be accepted
(c) Except as provided in § 138 70(c),
an applicant that submits an applica-
tion for the first time under this part.
shall pay an initial, non-refundable ap-
plication fee of $150 for each type of ap-
plication (i e , individual Certificate(s),
Fleet Certificate, and Master Certifi-
cate) An applicant that submits an ap-
plication for an additional (i e, supple-
mental) individual Certificate, or to re-
place. amend or renew an existing Cer-
tificate, is not required to pay a new
application fee However, if an appli-
cant for any reason withdraws or per-
mits the withdrawal of an application
for an IndIvidual Certificate(s) and the
applicant holds no valid individual Cer-
tificate(s). in order to reapply for an
individual Certificate(s) covenng the
same or different vessels the applicant
shall submit a new application form
and an application fee of $150. Simi-
larly, an applicant shall submit a new
application form and fee to obtain a
new fleet or Master CertLficate follow-
ing invalidation of a Fleet or Master
Certificate
(d) In addition to the application fee
of $150. an applicant shall also pay a
certification fee of $60 for each Certifi-
cate requested. An applicant shall sub-
mit the certification fee for each vessel
listed in, or later added to, an applica-
tion for an individual Certificate(s). An
applicant shall submit the $80 certifi-
cation fee to renew or to reissue a Cer-
tificate for any reason, including, but
not limited to, a vessel or operator
name change or a lost certificate
(e) A certification fee is refunded,
upon receipt of a written request, if the
application is denied or withdrawn be-
fore issuance of the Certificate. Over-
payments of application and certifi-
cation fees are refunded, on request,
only if the refund is for $50 or more
However, any overpayments not re-
funded will be credited, for a period of
three years from the date of receipt of
the monies by the Coast Guard, for the
applicant’s possible future use or trans-
fer to another applicant under this
part
* 138.140 Enforcement
(a) Any person who fails to comply
with this part with respect to evidence
of financial responsibility under sec-
tion 1016 of OPA 90 (33 U S C 2716) is
subject to a civil penalty in addition,
under section 4303(b) of that Act (33
U S C 2716a(b)), the Attorney General
may secure such relief as may be nec-
essary to compel compliance with this
part including termination of oper-
ations Further, any person who fails
to comply with this part with respect
to evidence of financial responsibility
under section l0B(a)(l) of CERCLA (42
U S C 9608(a)(l)), is subject to a Class I
administrative civil penalty and a
Class II administrative civil penalty or
judicial penalty
(b) The Secretary of the Treasury
shall withhold or revoke the clearance
required by 46 U S C App. 91 to any
vessel subject to this part that does
not produce evidence of financial re-
sponsibility required by this part
104
-------
Coast Guard, DOT
§ 138.150
( C) The Coast Guard may deny entry
to any port or place in the United
States or the navigable waters of the
United States, and may detain at a
port or place in the United States in
which it is located, any vessel subject
to this part, which, upon request, does
not produce evidence of financial re-
sponsibility required by this part
(d) Any vessel subject to this part
which is found in the navigable waters
without the necessary evidence of fi-
nancial responsibility is subject to sei-
zure by and forfeiture to the United
States
Ce) Knowingly and willfully using an
invalid Certificate, or any copy there-
of, is fraud
[ CGD 9i—OO5, 59 FR 34 7, July 1. 1994. as
amended by COD 96 -052, 62 FR 16703 Apr 8.
1997 )
* 138.150 Service of process.
(a) When executing the forms re-
quired by this part, each applicant and
guarantor shall designate thereon a
person located in the United States as
Its agent for service of process for pur-
poses of this part and for receipt of no-
tices of designations and presentations
of claims under the Acts (collectively
referred to as “service of process”)
Each designated agent shall acknowl-
edge the designation in writing unless
the agent has already furnished the Di-
rector, NPFC, with a “master ” (i e,
blanket) concurrence showing that it
has agreed in advance to act as the
United States agent for service of proc-
ess for the applicant, certificant, or
guarantor in Question
(b) If any applicant, certificant, or
guarantor desires, for any reason, to
change any designated agent, the appli-
cant, certificant, or guarantor shall no-
tify the Director, NPFC, of the change
and furnish the relevant information,
including the new agent’s acknowledg-
ment in accordance with paragraph (a)
of this section, if a “master” concur-
rence is not applicable In the event of
death, disability, or unavailability of a
designated agent, the applicant,
certificant, or guarantor shall des-
ignate another agent in accordance
with paragraph (a) of this section with-
in 10 days of knowledge of any such
event The applicant, certificant, or
guarantor shall submit the new des-
ignation to the DIrector, NPFC The
Director, NPFC, may revoke a certifi-
cate if an applicant, certificant, or
guarantor fails to designate and main-
tain an agent (or service of process
(c) If a designated agent can not be
served because of death, disability, un-
availability, or similar event and an-
other agent has not been designated
under this section, then service of proc-
ess on the Director, NPFC, will con-
stitute valid service of process. Service
of process on the Director, NPFC, wi l l
not be effective unless the server—
(1) Sends the applicant, cert lficant .
or guarantor (by registered mail, at its
last known address on file with the Di-
rector, NPFC), a copy of each docu-
ment served on the Director, NPFC,
and
(2) Attests to this registered mailing,
at the time process Is served upon the
Director, NPFC, indicating that the in-
tent of the mailing is to effect service
of process on the applicant, certificant,
or guarantor and that service on the
designated agent is not possible, stat-
ing the reason why.
105
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0
-------
M PO MT NOThS
-------
TUESDAY, DCCEMBER 11, 1973
WASHINGTON, D.C
Volume 3$U Number 237
PART II
ENVIRONMENTAL
PROTECTION
AGENCY
U
OIL POLLU11ON
PREVEN11ON.
Non.Transportation Related Onshore
and Offshore Facilities
u — I
-------
3J 1 &l
RULES AND 1EGULATIONS
Titi , 40—Protection of the Environment
CHAPTER I tf iVIRONMfl1TAL
PROTECTiON AGENCY
SUCHAPItR O—WATTN PWOGAAMS
PART 112—OIL POLLUTiON PREVENTiON
Nontranaportat lon Related Onshore and
Ofishon Facilities
Notice of proposed n i le making was
published on July 19, 1973, contaIning
proposed regulations. required by an
pursuant to section 311(J)tl)(C) of the
Federal Water Pollution Control Act.
as amended 196 Stat 666. 33 U SC. 125 1
et seq), (FWPCA), to prevent discharges
of o h Into the navigable waters of the
United States and to contain such dis-
charges if they occur The proposed reg-
ulattons endeavor to prevent such spills
by establishing procedures, methods and
equipment roquiremcv i s of own en or 0*- ’
craters of facilities engaged In drilling.
producing, gathering, storing, processing,
refining. transferring, distributing, or
consuming cii.
Written comments on the proposed
regulations were solicited and received
from interested parties. In addition, a
number of verbal comments on the pro-
posal were also received. The written
comments are on file at the Division of
011 and Haza.rdous Materials. Office of
Water Program Operations, U S. En-
vironmental Protection Agency. Wash-
ington, I ) C
All of the comments have been civen
careful consideration and a n1r oer of
changes have been n,’de in !Jie regula-
tion These changes in $r,jorate either
suggestions made in the comments or
ldeo,s initiated by the suggestions.
Some comments reflected a misunder-
standing of the fundamental principles
of the regulation, specifically as they ap-
plied to older facilities and marginal op-
erations During the development of t Ie
regulation it was recognized tIst no
single design or operational standani can
be prescribed for all non-transportation
re lated facilities, since the equipment
and operational procedures appropriate
for one facility may not be appropriate
for another becaiase of factors aich as
function, location, and age of each facil-
ity. Also, new facilities could achieve a
higher level of spill perventiesa than older
facilities by the use of fail-safe design
concepts and Innovative spill prevention
methods and procedures. It ‘was con-
cluded that older Sac filLies and marginal
operations could i. .‘velop strong spill con-
tingency plans and commit manpower,
oil containment devices and removal
equipment to mpensate for inherent
weaknesses in the spill prevention plan.
Appropriate changes were made In the
regulation to simplify, clarify or correct
deficiencies in the ps’upoeal.
A discussion of these changes, section
by sectinn foUows:
A Section l12.1—Oeneral applicabil-
fly. Section 112 1(b); the “foreseeabU—
ity provision”, contained In 112.1(d) (4)
was added to paragraph 112,1(b). As
modified, the regulation applies to non-
transportation-related onshore and off-
shore facilities which, due to their loot-
tion, could reasonablybeexpectsdtodis- Sect Ion 1123(fl(ll ( 1l123(e)(il in
charge oil into or upon Lbs navigable the peupned regulation) was changed to
waters of the United States or adjolr.lng includ, the nonavailabifity of qualified
shorelines. personnel as a reason for the R.egionaJ
Sections 113.1(b ), i 12.1(d) (4) and Administrator granting an extension of
1123 are now consistent, tin ie.
Section 112.1 (d) (1) was expended to I ). Section 112.4—A ntendrnen.f o/ spilt
further clarify the respective uthori- preuenfloa control and countenneasurt
ties of the Depaitast of Trahspcrta- plwssbyReglosial Adrninistrator.Seciion
t lon and the 1)avlronmental Protection ll2S(a)tfl), permits the RegIonal Ad-
Agency by referring to the Memorandum ,,. mlnlstrator to require that the owner or
of Understanding between the Secretary operator furnish additional Information
of Transportation and the Administra- to KPA after we or more spill event has
tot of the k nvlronmental Protection occurred. The change limits the request
Agency tAppendix). for additional information to that per-
Section 1121(d) (2), the figure for tinent to the SPCC Plan or to the poilu-
barrels was converted to gallons, a unit l ion incidenL
of measure more familiar to the public, . Section 112.4(b) now reads “Section
and row reads “42000 gallons.” 112.4 ‘ “,not”This subsection
Section 112.lld) (3), exemption for Section ¶4(e) allowed the Regional
fscilities with nonburled tankage was .Adsninistntor to require amendments
extended to 1320 gallons In aggregate to SPCC Plans as d specifies that the
‘with an single tank larger then 660 gaL- s,snestdznent must be Incorporated in tht
Ions and applies to all oIls, not Just beat- Plea wIthin 30 days unless the Regional
Ing oil and motor fuel, Tanks of CUG Administrator specifies an earlier effec-
gal Ions are the normal domestic code size live date, The change allows the Regional
for nonburled heating oil tanks. Build- Administrator to specify any appropri-
tags may have two such tanks. Facilities ate date that is reasonable.
containing smell quantities of oil other Section 112.4( 1). A new 0112.4(f) has
than motor fuel or heating oil would been added which provides for an appeal
also be exempt, thus snaking this con- by an owner or operator from a decision
sistent with the definition of oil in {112,2. rendered by the Regional AdminIstrator
B. Section 112.2—Dc /ttufion.s. Section en an smen&nent to an SPC’C Plan. Th”
112.2(1), the term “navlgable.’waters” appeal Is made to the Athnlnistrhtcr of
was espancled to the snore descriptive ‘A and the paragraph outlines the pro-
defInition used by the National Pollutant ceduree for maidng such an appeal.
Discharge Elimination System. E. Section 112.5—Amendment ,,oJ spill
SectIon 1 122(m). the U.S. Coast’ rcvenSion’eontrol and countermeasure
Ouard definition of the (cnn “vessel” plans b. Owners or operators. Section
was Included. This term is used in the 113.5(b) required the owner or operator
regulation and the definition is consist- to amend the SPCC Plan every -three
ent with the Department of ‘l’ranspor- years. The amendment required the in-
te.tlon regulations. oorpoeation oi any new, field-proven
C Sectio n 112.3—ftequiremenfs/ot the itechnokgy and bed to be certified by a
reparation and implementatIon of spill Proteesional Engineer.
prevention control and countermeasure ‘. The change requires that the owner
plans, A new paragraph (c) was added os’ operasor review the Plan every three
to 3 112.3 which apples to mobile or port- ‘years to see It it needs amendment. New
able facilities subject to the regulation, technology need be incorporated only if
These facUlties need not prepare a new t$ will sgnlrlr*ntly reduce the likelthood
Spill Prevention Control and Counter- of a spill. The change will prevent friv-
measure Plan (SPCC Plan) each time the olous retrofitting of equipment to faclll-
facility is moved to a, new site, but may ties whose prevention plans are working
prepare a general plan, Identifying good . guoeessf oily, and will not require engi-
spill prevention engineering practices (as ;neerlng eertlflcatlon unless an amend-
outlined In the guidelines, 3 112.7), and ‘mesa a necessary.
Implement these practices at each new ‘ SeqUent 112.5(c), thIs paragraph re-
location. - ‘ . qtred t the owner or operator amend
SectIon 112.3(a), (b) and if) (which 1 bls 8Z’CC Plan when his facility became
was 3 112.3(e) in the proposed rtle mak— ‘ subject t* 3112.4 (amendment by the
Ing) have been modified to allow exten- ytegsonal ,;Admlnistrator). This pant-
aions Cf time beyond the normally sped- grap h-ha l been removed, It is Inconslat.-
fled periods to apply to the preparation eat to require the owner or operator to
of plans as well as to their implements- indepaidentiy amend the Plan while the
Lion and to remove the Urns limitation 1eVoa1 ’AdmhSrator is reviewing it
of one year for extensions. Extensions ‘for possible amendment.
may be allowed for whatever period of p, ec iionfl3.6—CivUpenalttes. There
time considered reasonable by the Re- ant no, changes In this section,
gional Administrator. , 5 ji,Qfl i12.7—Ouiddlines for the
Sect Ion 1 12 .3(e) (whIch was 3112.3 epontiors and ftnple,nentafion of a
(d) in the proposed rule making) was spil l prevention control and counter-
modified to require the maintenance of fltCI Wt, $ai l. Nwnei’otis changes have
.r” . s i ti - i,.. been made in the guidelines section; the
, ..
cillty only if the facility was normally “ -t-Tu cmrest the use of language In-
mar.ned. If the facility L i immenned , the eansirtesst wIth guidelines. For enmple.
Plan may be kept at the nearest field the word “shall” has been changed to
omce. “shoul d”ln’j 112,1(s.1 through (e),.
PEDEIAL flQISl’Et, VOt. IS, HO. 231 —TI IESDAY, DECIM5U 11, 1973
-------
34165
2. To give the engineer preparing the
Plan greatet latitude to use alternative
methods bel.ter suited to a given facUlty
or local oondlU .s.
3. Ta cover facilities subject to the reg-
ulaUon. but for which no guidelines were
previously given. This category lneludei
such things as mobUe facUlties and drill-
ing and workoter rigs.
In addition, wording wea changed to
differentiate between periodic obeerva-
Lions by operating personnel and formal
Ln.lpectione with attendant record keep-
lag.
These regulaUons shall become effec-
tive January 10, 1974.
Dated: November 27, 1973.
Jomc QUAV.m.
Actfnp AdmInistrator.
A new Part 112 would be added to sub-
chapter D, Chapter I of TItle 40, Code of
Federal Regulations as ioUOwl:
8e
112 1 Genersl e.pp11 bUIt7
112.2 D nIUCG.I.
113.3 RequIrvo enta tor pTepsrPtIOO cfld Im-
plement&ttCG of 8ptU PT veaUoa
Oo tro1 cod Countermeasure pl&na .
1124 Amendment OX S 9 W Prevention Coo-
oL cad Oouot.rmeaeuro PIsal by
Regional AS.mI.nLaLrctOr.
112.5 Mmend.ment of 8 0 U1 PreventIon Coo-
Uo1 and OouotermeIau1 Plans by
OVn operct .L
1126 CIvU penaU L
1121 Ouid l1n5s t the pr 5p1ZctID 1 and
1mpThmca tlon of a 8p ’ . Preven-
t10fl OoatrQt c”d ‘. Wrmecaurs
Ptan
Appendix Mea oi-aadum of Understanding
Detween the Secretary of the -
per en; of Tcaspcrtallon and the
Adminlatrater or the nvIrvnmefll4l
Pot.ctloo Agency. Section u—Pea.
nhlions.
Aurno. err: 8ecs. 511(1) (1) (0). 511(1) (2),
501(a). Federal Wa*4 Pouuuon Control Aot
(Sec. 2. Pub. L. 92-600. 86 8tat. 818 at seq.
(33 U.S.C. 1351 .1 seq.)); Sec. 4(b). Pub. L.
92-600. 86 Stat. 827, 8 U.S 0. Reorg. Plan of
1910 No. 3 (1910), 55 PR 156 , 8 C?R 1960—
1070 Oomp: R.O. 11736. 38 PR 21243.3 CP’R.
§ 112.1 General .ppllcahlllty.
(a) This part establishes procedures.
methods and equipment and other ye-
quireto for eq to j ;v t the
discharge of oil from non-transporta-
tion-related onshore and off shore facili-
ties Into or upon the navigable waters of
the United States or ad.jolnlng shore-
line..
(hi Except 5.5 provided In paragraph
(d) of this section. thIs part applies to
owners or operators of non-transport.
tion-related onshore and offshore facili-
ties engaged In drilling. producing, gath-
ering, storing, processing, refIn Ing,
transferring, distributing or consuming
oil and o Il products, and which, due to
their le’mtlon, cculd reasonably be ex-
pected to discharge oil In harmful quan-
tities, as deflned In Part 110 of this chap-
ter, Into or upon the navigable waters of
the United Ł tate . or adjoining short nes.
(C) As provided ineec. 313 C8 Sw.t.
875) departments, agencies, and Inatru-
mentalities cf the Federal government
IULES AND IEGULAT1ONS
are subject to these reguJ.stlons to the
uma extent as any person, except for the
provisions of I 112.6.
(d) This part does not apply to:
(1) EquIpment or operations of vessels
or tn.nsportauon-related onshore and
off bore facilities which are subject to
authority and control of the Department
of Transportation, as denned In the
Memorandum of Understanding between
the Secretary of Transportation and the
Administrator of the Environmental Pro-
tection Agency, dated November 24, 1871,
36 PR 24000.
(2) FacUlties which have an aggregate
storage of 1320 gallons or less of oil, pro-
vided no single container has a csp cit7
In excess of 860 gallons.
(3) FacUlties which have a total stor-
age capacity of 42000 gallons or less of
oil and such total storage capacity Is
burled imdergrouxid.
(4) Non-transportatIon -related on-
shore and offshore facilities, which, due
to their location, could not reasonably
be expected to discharge oil into or upon
the navigable waters of the United 8latee
or adjoining shorelines.
(e) This part provides for the prepara-
tion and Implementation of Spill Pre-
vention Control and Countermeasure
Plans prepared In accordance with
I 112.7, desIgned to complement existing
laws, regulations, rules, standards, poli-
cies and procedures pertaining to safety
standards, Are prevention anti pollution
prevention rules, so as to !c ”. t compre-
hensive balanced eral/3tc.la spill pie-
ventlon program to minimize the poten-
tial for oil discharges. Complianc, with
this part does not In any way relieve the
owner or operator of an onshore or an
offshore facility from compliance with
other Federal, State or local laws.
112.2 DefinItion..
For the purposes of this part:
(a) ROil ” means oil of any kind or In
any form, Including, but not limited to
petroleum, fuel oil, sludge, oil refuse and
oil mixed with wastes other than dredged
spoil.
(b) “Discharge” Includes but Is not
limited to, any spilling, leaking, p nsp-
tag, pouring, emitting, emptyIng or
áuciping. Pur purposes ui .nis pert, we
term “dischazge” st U not include any
diseharee of oIl which Is authorized by
a permit Issued pursuant to SectIon 13
of the River and Harbor Act of 1899 (30
8tat. 1121,33 U.S.C. 407),or Bectlons 402
or 405 of the FWPCA. Amendments of
1972 (86 Stat. 818 at seq.,’ 33 U.S.C. 1251
e1 ueq).
(c) “Onshore facility” ‘means any
facUlty of any kind located In, on, or
tmder any land within the United States
other than submerged lands, which Is
not a transportatIon-related facility.
Cd) “0ff hore “facUlty” means any
facility of any kind located ln , on, or
usder any of the. *avi&able, waters Z
the United States, which Is ziot strana-
portaUon-relat ft’
(e) “Q wn r or op ’or” r:ea’ any
person owilbir or opei atl j,
facility or an o horo !acUlt ’ id In the
case of any abandoned offshore facility.
the person who owned or operated such
facility Immediately prior to such aban-
donment.
U) “Person” Includes an Individual,
firm, oorporation. association, and a
partnershIp.
Cg) “Regional Administrator, means
the Regional MmInL tratOr of the En-
vironmental Protection Agency, or his
designee, In and f or the Region In which
the facility is located.
(ii) “Transportation-related” and
“non.traxizporta.tlon-relited” as ap-
pUed to an onshore or offshore facility.
axe defined in the Memorandum of
Understanding between the Secretary
of TranspOrtatiOn and the A.tmtntxtra-
tot of the Environmental Protection
Agency, dated November 24, 1971, 36 FR
24080.
(I) ‘Spill event” means a discharge of
oil Into or upon the navigable waters of
the United States or adjoining shorellnezi
In harinlul quantities, as defined at 40
CTh Part 110.
Cj) “United States” mesas the States
the District of Columbia,’ the Common-
wealth 91 Puerto Rico. the Canal Zone.
Guam. American Samoa. the Virgin Is-
lands. and the Trust Territory of the
Pacific Islands.
(k) The term “navigable waters” of
the United Slates means “navigable
waters” as defined In section 803(7) of
the YWPCA. and Includes:
Cl) all navigable waters of the United
State., as defined in judicial decisions
prior to passage of the 1972 Amendment.s
to the PWPCA (Pub. L. 92-600) • and
tributaries of such waters;
(2), Interstate waters;
(3) Intrastate lakes, rivers, and
streams which are utilized by Interstate
travelers for recreational or other pur-
pcees and
(4) Intrastate lakes, rivers, and
streams from which fish or shellfish are
taken and sold In Interstate commerce
(1) “Vessel” means every description
of watercratt or other artificial contriv-
ance used, or capable of being used as
a means of transportation on water,
other than a public vessel.
1123 PLom fe- peretk’n
and h cmentatIon of Spill Preven-
tIon Control and Countermeasure
Plans.
(a) Owners oroperatore of onbhore and
offshore facilities In operation c i or be-
fore the effective date of this part that
have discharged or could reasonably be
expected to discharge oil In harmful
as defined In 40 CP’R Part
110, Into or upon the navigable waters of
the United State. or adjoining ahore]Ines.
shall prepare a Spill Prevention Control
and Countermeasure Plan (hereinafter
“SPCC ’ Plan”), In accordance with
5112.7. Except as provided for in pars-
graph (1) of this section, such SPCC Plan
shall be prepexect within six months al-
ter ‘the effective date of this part and
aball be fully implemented as soou as
possible, but not later than one year
after the effective date of this part.
ftAL I3OISTU, VOt, 35 NO. 23T—TUE AY, DECEM1 ii, , 157$
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3 1 166
RULES AND EGULAT1ONS
(b) Owners or operators ot onshore
arid offshore facUlties that become op-
era lonal after the effective date of this
part, and that have discharged or could
reasonably be expected to discharge ci i
in harmful quantilies, as defined in 40
CF’R Part 110, into or upon the navigable
waters of the United States or adjoining
shorelines, shall prepare an SPCC Plan
In accordance with 112.’ ?. except a.s
provided for in paragraph f) of this sec-
tion. such SPCC Plan shall be prepared
alihin six month.s after the date such
facility begins operations and shall be
fully implemented as soon as possible,
but not later than one year after such
facility begins operations
(C) Onshore and offshore mobile or
portable facilities such as onshore drill-
ing or workover rigs, barge mounted off-
shore drilling or workover rigs, and port-
able fueling facilities shall prepare and
implement an SPCC Plan as required by
paragraphs (a), (b) and (d) of this sec-
tion, The owner or operator of si. ch facil-
ity need not prepare and implement a
new SPCC Plan each time the facility Is
moved to a new site. The SPCC Plan for
mobile facilities should be prepared in
accordance with I 1127. usIng good en-
gtheertng practice, and when the mobile
facility Is moved It should be located
and Installed using spill prevention prac-
tices outlined in the SPCC Plan f’ r the
facility. The SPCC Plan shall o y apply
while the facility Is in . fixed non traiLs-
portation) operating mode.
Cd) No BPCC Plan shall be effective
to satisfy the requirements of this part
unless it has been reviewed by a Regis-
tered Professional Engineer and certi-
fied to by such Professional Engineer.
By means of this certification the en-
gineer, having examined the facility and
being familiar with the provisions of this
part, ahaB attest that the SPCC Plan has
been prepared in accordance with good
engineering practices. Such certification
shall in no way relieve the owner or op..
erator of an onshore or offshore facility
of his duty to prepare and fully imple-
inent such Plan In accordance with
I 112.7, as required by paragraphs (a),
(b) and Cc) of this section.
Ce) Owners or operators of a facility
for which an SPOC Plan Is required pur-
suant to paragraphs (a). (b) or (C) of
this section shall maintain a comp ’Lete
copy of the Plan such facility If the
facility is normally a.ttended at least 8
hours per day, or at the nearest field
office if the ladlity Is not so attended,
and & a1l make such Plan available to
the Regional Administrator for on-sits
review during, normal working hours.
(I) Extensions of time.
(1) The Regional A. mlriistrator may
authorIze an exten.tion of time for the
preparation and full implementation of
an SPCC Plan beyond the time permitted
for the preparaU on and ImplementatIon
of an BPCC Plan pursuant to pere.rraPbS
(a), (b) or Cc) of this section wberehe
finds that the owner or operator of a
facility subject to pe,ra.grs .phs Ca). (b)
or (c) of this section cannOt fully corn-
ply wIth the requirements of this part
as a result of either nonavailabllfly of
qualifIed personnel, or dela In con-
struction or equipment delivery beyond
the control and without The fault of such
owner or operator or their respective
agents or employees.
(2) Any owner or operator seeking an
extension of time pursuant to paragraph
(f) (1) of this section may submit a letter
of request to the Regional JLdxnhrilstrstOr.
Such letter shall include:
1) A complete copy of the SPCC Plan.
I! completed;
(II) A full explanation of the cause for
any such delay and the specific aspects
of the SPCC Plan affected by the delay;
(ill) A full discussion of actions being
taken or contemplated to minimise or
mitigate such delay;
(lv) A proposed time schedule for th
Implementation of any corrective actions
being taken or contemplated, including
interim dates for completion of tests or
studies, InstallatIon and operation of any
necessary equipment or other preventive
measures.
In addition, such owner or operator may
present additional oral or written state-
ments In support of his letter of request.
(3) The submission of & letter of re-
quest for extension of time pursuant to
paragraph Ct) (2) of this section shall in
no way relieve the owner or operator
from his obl gaUon to comply with the
requirements of I 112.3 (a), (b) or (c).
Where an extension of tune is authorized
by the Regional AdminIstrator for par-
ticular equipment or other specific as-
pects of the SPCC Plan, such extension
shall In no way affect the owner’s or op-
erator’s obligation to comply with the
requirements of 1112.3 (a), (b) or Cc)
with respect to other equipment or other
specific aspects of the SPCC Plan for
which an extension of time has not been
expressly authorized.
112.4 Amendment of SPCC Plane by
Regional Administrator.
(a) Notwithstanding compliance with
112.3, whenever a facUlty.subicct to
1123 (a), (b) or (c) has. Discharged
more than 1,000 U.5, ’ge.llons of oil into
or upon the navigable waters of the
United States or adjoining shorelines In
a single spill event cc diacharg$ oil I A
harmful quantities, as defined In 40 CFP..
Part 110, Into or upon thc ’n&Vlg&bte
waters of the United States as ’ adjoining
shorelines In two spill events,, reportable
under section 211(b) (5) ‘of the FWPCA.
occurring within any twelve month pe-
riod, the owner or operator’ of such fa-
cility shall submit to the Regional Ad-
ministrator, withIn 80 days from the Um*
such facility becomes subject to this sec-
tion. the following:
(1) Na eofthefaC1ilty
(2) Name(s) of the owner or operator
of the facility;
(3) LocatIon of the fa .fluly:
(4) Date and year ot Init Ial facility
operation;
(5) s avimum storage or Ja” ’ g Ca’-
pacity of the facility and normal daily
throughput;
(I) Description of the facility. Includ-
ing maps, flow diagrams, and topograph-
ice,! maps:
(7)A complete copy of the SPçC Plan
with any amendments;
(8) The cause(s) of such spW , Includ-
ing a failure analysis of system or sub-
system in which the failure occurred;
(9) The corrective actions and/o’
countermeasures taken, including an
adequate description of equipment re-
pairs and/or replacement.5
(10) AdditIonal preventive measures
taken or contemplated to ininixnlze the
possibility of recurrence;
(11) Such other Information as the
Regional Administrator may reasonably
require pertinent to the Plan or spill
event.
(b) Section 112 4 shall not. apply until
the expiration of the time permitted for
the preparation and iznplementatlon of
an SPCC Plan pursuant to *112.3 (a),
b), (C) and (f).
Cc) A complete copy of all Information
provided to the Regional Mmtn1 trator
pursuant to paragraph (a) of this section
shall be sent at the same time to the
8tate agency in charge of water pollu-
tion control activities In and for the
State in which the facility Is located.
Upon receipt of such lnformaUozi such
State agency may conduct a review and
make recommendations to the Regional
Administrator as to further procedures.
methods, equIpment and other require-
ments for equipment necessary to pre-
vent and to contain discharges of oil
from such facility.
Cd) Alter revies? of the SPOC Plan for
a facility subject to paragraph (a) of
this section, together with all other In-
formation submitted by the owner or
operator of such facility, and by the
State agency under paragraph -Cc) of
this section, the Regional Administra-
tor may require the owner or operator
of such facility to amend the SPCC Plan
if he finds that the Plan does not meet
the requirements of this part or that
the amendment of the Plan Is neces-
sar to prevent and to contain discharges
of oil front such facility. , , . - -
(e) When the Regional Mminl4ra -
tor proposes to require an amen4ment to
the SPCC Plan, hi shall notify the is.-
cility operator by certified mall ad’reeeed
to, or by personal deilvery to the facthty
owner or operutor,,that he proposes to
require an axnendnient to the Plan, and
shall specify the terms of auch amend-
ment. It the acility owner or opera-
tor Is a corporation, a copy of such
notice shall iso be mailed to the regis-
tered agent. IZ any, of such corporation
in the State where such facility Is lo-
cated. WithIn 30 days from receipt of
such notice, the facility owner or opera-
tor may submit written’ information,
Views, and arguments on the amendment.
After considering all relevant material
presented, the Regional Administrator
shall notify the facility owner or opera-
tor of any amendment required o shall
rescln ,2 th. notice, The imeudment re-
quired by the Regional AdmInistrator
shall become part of the Plan 30 days
FEDUAL IIOtS’IU, VOl.. 38, P40. 237—TU!WAY, DLCIMUI 11, I 73
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RULES AND REGULATIONS
34167
a! t r such notice, unless the Regional
Administrator, for good cause. sh&U
specify another e’ective date. The owner
or operator of the facility shall Imple-
mutt the amendment of the Plan M soon
as possible, but not later than six
months after the amendment becomes
port of the Plan. unless the Regional Ad-
ministrator specifies another date.
(t) An owner or operator may appeal
a decision made by the Regional Admin-
istrator requiring an amendment to an
SPCC Plan. The appeal shall be made to
the Administrator of the United States
Environmental Protection Agency and
must be made In writing within 30 days
of receipt of the notice f rein the Regions.!
Administrator requiring the amendment.
A complete copy of the 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
the issues ai 4 d points of fact In the case.
It may also contain additional infonna-
tion which the owner or operator wishes
to present Id support of his argument.
The Administrator or his designee may
request additional ln.formatton from the
owner or operator, or from any other
person. The Administrator or his des-
ignee may request additional lnlortna-
tion from the owner or operator, or from
any other person. The Administrator or
his designee shall render a decision
wIthin 60 days of receiving the appeal
and shail notlly the owner or operstor of
his decision.
112.5 Amendmen . f Srd Prevention
Control and Counter,. ,e.aure Plani by
owners or Operators.
(a) Owners or operators of facilities
subject to I 112.3 (a>, (b) or Cc) shall
amend the SPCC Plan for such facility
in accordance with I 112.7 whenever
there is a changa In facility design, con-
struction, operation or maintenance
which materially affects the facility’s
potential for the discharge of oil Into or
upon the navigable waters of the United
Slates or adjoining shorelines. Buch
amenlment.s shall be fully implemented
as soon as possible, but not later than
six months after such change occurs.
(b) Notwithstanding compliance With
paragraph (a) of this secUon, owners
and operators of facilities aublect to
112.3 (a), (b) or (C) shall complete a
review and evaluation of the 8PCC Plan
at least once every three years from the
date such tacllI ” becomes subject to this
part. As a result of this review and eval-
uation, the owner or operator shell
amend the 8PCC Plan Within six months
of the review to include more effective
prevention and control technology if:
(1) Such technology will significantly
reduce the Ukelihood of a spill event
from the facility, and (2) 11 such tech-
noiorv has been field-proven at the tune
of tne review.
(c) No amendment to an 8PCC Plan
shall be effective to satisfy the require-
ments of this section unless it has been
certified by a Professional Engineer in
accordance with I 112.3(d).
112.6 Ovil penaldes.
Owners or operators of facilities sub-
ject to I 112.3 (a), (b) or Cc) who vio-
late the requirements of this part by
tailing or refusing to comply with any
of the provisions of I 112.3, 1 112.4, or
• 112 shall be liable for a civil penalty
of not more than $6,000 for each day
that such violation continues. The Re-
gional Athnlrdstrator may assess and
compromise such clvii penalty. No
penalty shall be assessed until the owner
or operator shall have been given notice
and an opportunity for hearing.
§ 112.7 Cuiddlnes for the preparation
and implementation of a Spill Pro.
venilon Control and Countermeasure
Plan.
The 8PCC Plan shall be a carefully
thought-out plan, prepared In accordance
with good engineering practices, and
which has the full approval of manage-
inent at a level with authority to com-
mit the necessary resources. I L the plan
calls for additional facilities or proce-
dures, methods, or equipment not yet
fully operational, these Items should be
discussed In separate paragraphs,, and
the details of lnst .allaUon and opera-
tional start-up should be explained sep-
arately. The complete SPCC Plan shall
follow the sequence outlined below, and
Include a discussion of the facility’s con-
formance with the appropriate guidelines
listed:
(a) A facility which has experienced-
one or more epm event&wlthln twelve
months prior to the effective date of this
part should include a written descrip-
tion of each such spill, corrective action
taken and plans for preventing
recurrence. -
(b) Where experience Indicates a sea-
sonable potential for equipment failure
(such as tank overflow, rupture, or leak-
age), the plan should includea pre-
diction of the direction, rate of flow and
total quantity of oil which could be dis-
charged from the facility as a result of,
each major type of failure.
(C) Appropriate containment and-for
diversionary structures or-equipment to
prevent discharged oil from reaching a
navigable water course should be pro-
vided. One.of the following preventive
systems -or Its equivalent should be
used as a minimum:
(1> Onshore aclhtiea.
.Ai) Dikes bezns or retaining walls
sufficiently impervious to contain spilled
oil - -
(11) CurbIng -
(Ill) Culverting. gutters or other
drainage systems
( lv) Weirs, booms or other barrier.
(v) 8p1li diversion ponds
(vi) Retention ponds
(vU) Borbent materials
(2) Offshore facilities, -
(1) CurbIng, drip pans
(II) Sumps and collection systems
Cd) When It Is determined that the
Installation of atructurce or equipment
listed In 112.7(c) to prevent discharged
oil from reaching the navlgis le waters
is not practlcab e from any onshore or
offshore facility, the owner or operator
should clearly demonstrate such tin-
practicability and provide the folloa -
lag:
(1) A strong oil spill contingency plan
following the provision of 40 CFR Part
109.
(2) A written commitment of man-
power, equipment and materials re-
quired to expeditiously control and re-
move any harmful quantity of oil dis-
charged.
Ce) In addition to the minimal pre-
vention standards listed under *112
Cc), sections of the Plan should Include
a complete discussion of oon.formance
.wlth the following applicable guidelines
other effective spill prevenUon anti con-
tainment procedures (or, if more strin-
gent, with State rules, regulations arid
guidelines):
(1) Facility drainage (onshoreL (er-
eluding production facil ities). (i) Drain-
age irons d.lked storage areas should be
restrained b7 valves or other positive
means to prevent a spill or other exces-
sive leakage of oil Into the drainage sys-
tens or Inpiant e uent treatment sys-
tem. except where plan systems are de-
signed to handle such leakage. Diked
areas may be emptied by pumps or elec-
tors; however, these should be manuall,
activated and the condition of the accu-
mulation should be examined- before
starting to be -sure no oil will be dis-
charged into the water.
(ii) Flapper-type drain valves should
not be used to drain diked areas. Valves
used for the drainage of diked areas
should, as far as practical, be of man-
ual, open-and-closed design. When
plant .dra4nage drains dfrectly Into
water courses and not Into wastewater
treatment plants, retained storm water
should be Inspected as provided In para-
graph Ce) (2) (III) (fl, C and D) before
drainage.
(Ill) plant drainage systems from tin -
diked areas should, if possible, flow into
ponds, lagoons or catchment basins, de-
signed to retain oIl or return it to the
aclIIty. Catebment basins should not be
located In areas subject to periodic
flooding.
(lv) If plant drainage Is not en-
gineered as above, the final discharge or
all In-plant ditches should be equipped
with. a.diverslon system that could. In
the event of an uncontrclied plll, return
the oil to the plant.
Cv) Where drainage waters are treated
In more than one treatment unit, nat-
ural bydraulio flow should be used If
pump ,tran.sler is needed,, two ‘lift.’
pumps should be provided, and at len. t
one of the pumps should be permanenth.
Installed ‘ben such treatment Is cor -
tinuous. .In any event, whatever tech -
nlqu are ua d facility drainage syaten
should be adequately engineered to pre-
vent oil from reaching navigable waters
in the •vent of equipment failure oi
human error at the facility.
(2) Du!katorapetanks’(on.shore): Cer
ctssding production facilitIes). Ci) No
FEDISAL REGISTIR. VOL 35, NO. 237—TUESDAY, DECEMUI 11. 1973
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34168
RULES AND REGULA ’flONS
tank should be used for the storage of
oil wileas Its material and constructIon
are compatible with the material stored
and conditions of storage such as pr-
sure and temperature, etc.
( II) All bulk storage tank Installations
should be constructed so that a second-
ary means of containment is provided for
the entire contents of the largest single
tank plus suiriclent freeboard to allow
for precipitation. Diked areas should be
sulflclenlly Impervious to contain spilled
oil. Dikes. contaLnrnent curbs, and pits
are commonly employed for this purpose,
but they may not always be appropriate.
An alternative system could consist of a
complete drainage trench enclosure ar-
ranged so that a spill could terminate
and be safely confined in an ta-plant
catchment basin or holding pond.
(lit) Drainage of rainwater from the
diked area Into a storm drain or an eiTiu-
eni discharge that empties Into an open
water course, take, or pond, and bypass-
ing the In-plant treatment system may
be acceptable 11:
(A) The bypass valve is normally
sealed closed
(B) Inspection of the run-off ruin
water ensures compliance with appli-
cable ater quality standards and will
not cause a harmful discharge as oeI ned
La 40 CFR 110.
(C) The bypass valve is opened, and
resealed following drainage I’: .der re-
sponsible supervision.
(D) Adequate recoros are kept of
such events.
(iv) Burled metallic storage tanks rep-
resent a potential for undetected spills.
A new burled Installation should be pro-
tected from corrosion by coatings,
cathodic protection or other effective
methods cosnpa ie with local soil on-
dittons Such buried tanks should at leaet
be subjected to regular pressure testing.
Cv) Partially burled metallic tanks for
the storage of oil should be avoided, Un-
less the burled section of the shell i ade-
quately coated, since partial burial In
damp earth can cause rapid corrosion of
metallic surfac especially at the esrth/
air interface.
(vi) Aboveground tanks should be
subject to periodic Integrity testing, tak-
Ing Into account tank design (floating
ron’ etc.) and using such techniques as
h urostatic testi ‘,ylsual Inspection or a
system of non-dealnictlve shell thi’kness
testir.g. Comparison records should be
kept where appropriate, and tank sup-
ports and foundations should be In-
eluded in these inspections. In addition,
the outside of the tank should fre-
quently be observed by operating person-
nel for signs of deterioration, leftks
which might ca.wo a spill, or aecuflIlila-
tion of oil Inside diked areas.
(vtl) To control leakage through de-
fective Internal heating coils, the f ol-
lowing factors bould be considered and
applied, as appropriate.
(A) The steam return or exhaust lines
tro internal heating coils which dis-
charge Into an cçen water course should
be monitored for contamination, or
passed through a setUln tank, skimmer,
or’ other seperation or retention system.
(B) The feasibility of inst a lling an ex-
terna.l heating system should also be oun-
sidered.
(VI I I) New and old tank thstaflatlosss
should, as far as practical, be fail-safe
engineered or updated into a fail-sate
engineered Installa t ion to avoid aptUs.
Consideration should be given to provid-
ing one or more of the foilowtflg devices:
(A) High liquid lovel alarms with an
audible or visual signal at a’constantiy
manned operation or surveillance sta-
tion; in smaller plants an audibte air
vent may suff Ice.
(B) Considering size and complexity
of the facility, high liquid level pump
cutoff devices set to stop flow at a pre-
determined tank content level.
(C) Direct audible or code signal corn-
municatlon between the tank gauger and
the pumping station.
CD) A fast response system for deter-
mining the liquid level of each bulk stor-
age tank such as digital computers, tele-
pulse, or direct Vision gauges or their
equivalent.
CE) Liquid level sensing devices should
be regularly tested to insure proper
operation.
( l x) Plant e uents which are dis-
charged Into navigable waters should
have disposal facilities observed fre-
quently enough to detect possible system
upsets that could cause an oil spifi event.
(xl Visible oil leaks which result In a
loss of oil from tank scams, gaskets, rivets
anti bolts sufilciently large to cause the
accumulation of oil In diked areas should
be promptly corrected.
(x l) Mobile or portable c l i storage
tanks (onshore) should be positioned or
located so as to prevent spilled oil from
reaching navigable waters. A secondary
means of conts .inrnpnt, such as dikes or
catchinent basins, should be furnished
for the largest single compartment or
tank. These facilities should be located
where they will not b e subject to periodic
flooding or washout.
(3) Fcc Wt ir ons/er operaUon.s. pump-
ing. and in-plant process (onshore): (ex-
cluding production facUlties). (I) Burled
piping Installations should have a pro-
tective wrapping and coating and should
be caihodically protected If soil condi-
tions warrant. If a section of buried line
is exposed for any reason, It should be
carefully examined for deterioration. If
corrosion dw’ ge is fetmd, .sddltsonal
- ‘nation and corrective acdon should
be taken as indicated by the magnitude
of the damage. An alternative would be
the more frequent use of ezpbeed pipe
corridors or galleries.
(ii) When aplpoline Is not In service.
or In standby service for an extended
time the terminal connection at the
transfer point should be capped or
blank-flanged, and marked as to origin.
(ill) Pipe supports should be properly
designed to n intmIrm &rvnsIcn and cor-
rosion and allow for expar’zlon and con-’
traction.
iv) All abovegi-u md valves and pipe-
lines should be subjected to regular ex-
aminations by operating personnel at
which time the general condition of
items, such as flange joints, expansion
joints, valve glands and bodies, cat.cli
pans, pipeline supports, locking of valves
and metal surfaces should be assessed In
addition, periodic pressure testing ma .s
be warranted for piping in areas where
faculty drainage Is such that a failure
might lead to a spill event.
(v) Vehicular traffic granted entry into
the facility should be warned verbally
or by appropriate signs to be sure that
the vehicle, because of its size, will fbi
endanger above ground piping.
(4) Faculty tank our and tank trucA
loadlng/uraoadcne rack (onshore). (I)
Tank car and tank truck loading/un-
loading procedures should meet the ruin-
Imum requirements and regulation estab-
lished by the Department of Transpor-
tation.
(I I) Where rack area drainage does
not flow in ” a catchsnent basin or treat.
ment fac . •y designed to handle spills. a
quick drainage system should be Used for
tank truck loading and unloading areas
The containment system should be de-
signed to hold at least maximum capacity
of any single compartment of a tank car
or tank truck loaded or unloaded In the
plant.
(III) Art Interlocked warning light or
physical barrier system, or warning
signs, should be provided in loading/un-
loading areas to prevent vehicular de-
parture before complete disconnect of
flexible or fixed transfer lines.
(iv) Prior to filling and departure of
any tank car or tank truck, the lower-
most drain and all outlets of such ve-
hicles should be closely examined for
leakage, and If necessary, Ughtened, ad-
juateti, or replaced, to prevent liquid
leakage while In transIt.
(5) OilproducUcn/aclUties (onshore)
(I) Definition. An onshore production f a-
duty may Include all wells, flowlines
separation equipment, storage facilities.
gathering lines, and an lllQzy non-trans-
portathm-related equipment and facili-
ties in a single geographical oil or gac
field operated by-a single operator.
(11) 014 production /acUUy (onshore)
drainage. (A) At tank batteries and cen-
tral treating stations where an cc1-
dental discharge of oil would have a
reasonable possibility of reaching navi-
gable waters, th. dikes or equivalent re-
quired under 1112.7(c)(l) shnuld-have
drains closed and sealed at i”i times
except when rainwater is being drained
Prior to drainage, thediked area should
be inspected as provided In paragraph
(e) (2) (Iii) (B), C), and CD). Accumu-
hated oil on the rainwater should be
picked up and returned to storage or dis-
posed of in accordance with approved
methods. , -
(B) Thld drainage ditches, road
ditches, and aft traps, sumpe or skim-
mers, 11 such ezls should be Inspected
at regularly scheduled interval, for ac-
cumulation of oil that may have escaped
from nall leaks. Any such accumula-
tion should be removed.
(lit) Oil production /acifltiI (onshore)
bulk storage tanks. (A) No tank should
be.used for the storage of oil unless 1t
matcrlal and construction are compati-
ble with the material stored and the
conditions of storage,
FEDIIAL IEOISTEI, VOL. 38, NO. 237—T1JEDAY, DECEMBII 11, 1973
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RULES AND REGULATIONS
34169
(B) A]] tank battery and central treat.-
ing plant Installations should be provided
with a seoondary mean.g of containment
for the entire contents of the largest sin-
gle tank If feasible, or alternate systems
such as those outlined In I ll2. )(c)(1).
Drainage from undiked areas should be
safely confined In a catchment basin or
holding pond
(C) Al ] tanks containing oil should be
visually examined by a competent per-
son for oondjtlon and need (or jnalnte-
nance on a scheduled periodic besLs.
Such examination should Include the
foundation and supports of tanks that
are above the surface of the ground.
(D) New and old tank battery Instalia-
tious should, as far as practical, be fall-
sale engineered or updated Into a fail-
safe engineered Installation to prevent
spills. Consideration choulct be given to
one or more of the following:
(2) Adequate tank capacity to assure
that a tank will not overfill should a
pun per/gauger be delayed In making his
regular rounds.
(1) Overflow equalizing lines between
tanks so that a full tank can overflow to
an adjacent tank.
(3) Adequate vacuum -protection to
prevent tank collapee during a pipeline
run,
(4) High level sensors to gencr .te and
transmit an alarm signal to t3’ computer
where facilities are a “rt a oesnputer
production control system.
(Lv) FacWty trans/er opera fleas, o
prc.ductlon facUlty (onshore). (A) Alt
above ground valves and pipeilnes should
be examined periodically on a scheduled
basis for general condition of Items suoh
as flange joints, valve glands and bodies,
drip pans, pipeline supports, pumping
well polish rod etu ng boxes, bleeder and
gauge valves.
(B) Salt water (oil field brine) dis-
possi facilities should be examined often..
particularly following a sudden change in
atmospheric temperature to detect pos-
sible system upset.! that could cause an
oil discharge
(C) Producuion facilities should have
a program of flowline maintenance to
prevent pllls from this source. The pro-
gram should Include periodic examina-
(ions, corrosion protection, flowline re-
piacetneid, and dequate records, as ap-
propriate, for this individual facility.
(61 Oil drilling and workover faculties
(onshore) (I) Mobile drilling or workover
equipment should be positioned or lo-
cated so as to prevent spilled oil from
reaching navigable waters
(II) Depending on the location, catch-
ment basins or diversion structures may
be necessary to lnterccpt and contain
spills of fuel, crude oil, or oily drilling
fluids.
(Ill) efore drilling below any casing
string or during workover operations, a
blowout prevention (BOP) assembly and
well control system should be installed
that. Is capable of controlling any well
head pressure that Is expected to be
encountered while that BOP a.ssesnbly Is
on the well. Casing and BOP InstallatIons
should be Iii accordance with State reg-
ulatory agency requirements.
(7) Oil drilling, production, or work-
over /actlitla (offshore). (I) Definition:
“An oil drilling, production or workoves
fkdiluly (offshore)” may Include all drill-
ing or workover equipment, wells, flow-
lines, gathe.zlng lines, platforms, and
auxiliary nontransportation - related
equipment end facWtie8 in a single geo-
graphical oil or gas field operated by a
single operator.
(II) Oil drainage collection equipment
should be used to prevent and control
sniall oil spillage around pumps, glands.
valves, flanges, expansion joints, hoses.
drain lines, separators, treaters, tanks.
and allied equipment. Drains on the
facility should be controlled and directed
toward a central collection sump or
equivalent collection system sufficient to
prevent discharges of ci i Into the naviga-
ble waters of the United States. Where
aralna and sumpa are not practicable
oil contained in collection equipment.
should be removed as often as necessary
to prevent overflow.
(ill) For facilities employing a sump
system, sump and drains should be ade-
quately sized and a spare pump or equiv-
alent method should be available to
remove liquid from the sump and assure
that oil does not escape. A regular sched-
uled preventive maintenance Inspection
and testing program should be employed
to assure reliable operation of the liquid
removal system and pump start-up de-
vice. Redundant automatic sump pumps
and control devices may be required on
some InstallatIons.
( lv) In areas where separators and
treaters are equipped with dump valves
whose predominant mode of faIlure Is In
the closed position and pollution risk Is
high, the facility should be specially
equipped to prevent the escape of oil.
This could be accomplished b ’ extending
the flare line to a diked area lithe sepa-
rator Is near shore, equipping It with a
high liquid level sensor that will auto-
ma.ical]y shut-In wells producing to the
separator, parallel redundant dump
valves, or other feasible alternatives to
prevent oil discharges.
(v) Atmospheric storage or surge tanks
should be equipped with high liquid level
sensing devices - or other acceptable al-
ternatives to prevent oil discharges
(vl) Pressure tanks should be equipped
with high and low prcssure sensing tie-
vices to act ate an alarm and/or con-
trol the flow or other acceptable alterna-
tives to prevent oil dlscharges,
(vii) Tanks should be equipped with
suitable corrosion protection.
(viii) A written procedure for Inspect-
ing and testing poUutlon prevention
equipment and systems should be pre-
pared and maintained at the facility.
Such ‘procedures, should be included as
part Of- the- SPCC Plan.
(lx) ‘rusting and 1nspe ’tlon of the pol-
lution preventinn equlçaicnt and systems
at the facility should be oond ted by the
owner or operator on a scheduled pen-
od.lc basis commensurate with the com-
plexity, conditions and circumstances of
the facility or other appropriate regula-
tions.
(x) Surface and subsurface well shut-
In valves and devices in use at the facil-
ity should be sufficiently described to
determine method of activation or con-
trol, e.g., pressure dLfferentlal. change In
fluid or flow conditions, combination of
pgessure and flow, manual or remote con-
trol mechanisms. Detailed records for
each well, while not necessarily part of
the plan should be kept by the owner or
operator. -
(xi) Before drilling below any casing
string, and during workover operations
a blowout preven$er (HOP) s,sseznbly and
well control system should be Installed
that is capable of controlling any well-
head pressure that is expected to be en-
countered while that BOP assembly Is
on the well. Casing and BOP Installations
should be In accordance with State reg-
ulatory agency requirements.
(xli) Extraordinary well control meas-
ures should be provided should emer-
gency conditions, including fire, loss of
control and other- abnorma.l conditions.
occur. TIle degree of control system re -
dundancy should vary with hazard ex-
pesure and probable consequences of
failure. It Is recommended that surface
shut-in systems have redundant or “fall
close” valving. Stthsurf ace safety Valves
may not be needed In producing wells
that will not flow but should be Installed
as required by applicable State regula-
tions. -
(xiii) In order that there will be no
misunderstanding of JoInt and separate
duties and obligations to perform work
In a safe and pollution free manner,
written Instructions should be prepared
by the owner or operator for contractors
and subcontractors to follow whenever
contract activities Include servicing a
.well o r systems appurtenant to a well or
pressure vesseL—Such Instructions and
procedures should be maintained at the
offshore production facility. Under cer-
tain circumstances and conditions such
contractor sctlvlUes may require the
presence at the facility of an authorized
representative of the owner or operator
who would intervene when decessary to
prevent a spill event,
(x lv) All ninnifolds (headers) should
be equipped with check valves on indi-
vidual flowilnes. -
(xv)’ Ifrthe shut-In well pieasure is
greater than the working presstlre of the
flo’wlina and manifold valves up to and
Including the header valves associated
with that individual flowilne, the flow-
line should be equipped with a high pres-
sure sensing device and shutin valve at
the wellhead unless provided with a pres-
sure relief system to prevent over pres-
suring. -
(xvi) All pipelines appurtenant to the
facility should be protected from corro-
slon. Methods used, such as protective
coatings or cathodic protection, should
be discussed.
(xvii) Sub-marine pipelines appurten-
ant. to the facility should be adequately
protected against environmental stresses
and other activities such as fishing
operations.
(xviii) Sub-marine pipelines appurten-
ant to the facility should be In good
FEDESAL IEGISTIS., VOL 31, NO. 337—TUESDAY, DECEMIEI 11, 1973
-------
31170
RULES AND REGULATiONS
operating condition at all tLmes and in-
spected on a scheduled periodic basis for
failures. 8uch Inspections should be
documented and maintained at the
facility.
8) Inspections and records. Inspee-
ions required by this part should be i
accordance with written procedures de-
veloped for the taclilty by the owner or
operator These written procedures end
a record ol the Inspections, signed by the
appropriate supervisor or inspector,
should be made part of the 8PCC Plan
and maintained for a period of three
yenrs
(9) Sccurfti, (cxcti1dlng oil production
/aciiiUes). U) All plants handling, proc-
essing. anti storing oil shoUld be tufly
fcnced, and entrance gates should be
locked and/or guarded when the plant
is not in production or Is unattended.
111) The master flow and draIn valves
and any other valves that will permit
direct outwcrd flow of the tank’s con-
tent to the surface should be securely
locked In the closed position when In
non-operating or non-standby status.
(lii) The starter control on all oil
pumps should be locked In the •• ff
position or located at a site accessible
c ily to authorized personnel when the
pumps are In a non-operating or non-
standby status.
liv) The loadlng/unloadlng coni-
tlons of oil pipelines should be s’. .urely
capped or blank-flangt i wbr. not In
service or standby service Lor an es-
tended time. This security practice
should also apply to pipelines that are
emptied of liquid content either by
draining or by Inert gas pressure.
lv) Fac.lllty lighting should be corn-
mensurate with the type and location of
the facility. ConsideratIon should be
given to: (A) Discovery of spills oc-
curring during hours of daitness. both
by operating personnel, If preseat, and
by non-operating personnel (tZ gen-
era! pIlbile, local police. etc.) and (B)
prevention of spills occurring through
acts of vandalism.
(10) Personnel, training and spill
prevention procedures. (1) Owners or op-
erators are responsible for properly In-
structing their personnel in the operation
end maintenance of equipment to pre-
vent the discharges of oil and applicable
pollution control la”a, rules and regale.-
(11) P.’xch applicable facility Should
have a designated person who Is secoimt-
able for oil spill prevention and who re-
ports to line management.
(111) Owners or operators should
schedule and conduct spill prevention
briefings for th x operating personnel
at intervals frequent enough to aesure
adequate uztderstanding of the B?CV
Plan for that facility. Buch briefings
houid highlight and desalbe known
spill events or failures, mathmetloolng
components, and recently developed jre’
cautionary measures.
MemorT.ndom of t’ndevstsndtng b.twe.n
the 8ewet8J7 of ‘l ’r a .portalkm and the Ad-
mintatrator at the EnvIronmental Protection
Agency. -
orcvron .ones
The nv1ronmental Protection Agency and
the Department of TransportatIon agree that
for the purposes of LxScuUve der 11548.
the term.
(1) ‘ No portation-rslated onshore
md oflkhore facilities” means:
(A) Plied onthor. and odthors ‘oil well
hag fadhltle. Including afl equipment
and appurtenances related thereto used In
drillIng operations for exploratory or develop-
ment wells, but ezctudlng any terminal facil-
ity. unit or process Integrally associated with
the handling ce tranif erring of oil In bulk to
or from a vessel.
IB) Mobile onshore and offshore oil well
d.ruhlng pts . ormt., barges, trucks, or other
mobile facilitie. Including all equipment anti
appurtenances related thereto when such
mobile facUlties are Sled In position for the
purpose of drilLing operations for exploratory
or development veil.. but excluding any ter-
minal faculty, UUR or procee. Integrally as-
ocIatsd with the bsn ing or transferring of
oil in bulk to or free. a ye..ct.
(C) Fixed onshore ..nd offshore OU pz’cduc-
lion Itruoturee , platforms, derrick ., arid rigs
Including all equipment and appurtenances
related thereto, as well as completed wells
and the wellheed separators, oil .epezstors,
Snd storage aciliiles used In the production
of oil, but excluding any terminal facility,
unit or proreer Integrally associated with
the handling or transferring of CU in bulk
to or from a vessel.
(D) ?(obile onshcwe end offshore oil pro-
duction facilities lnclud.ing all equipment
end appurtenance. relatod.thtreto as well
as completed wells and wellhead equipment.
piping from weilbeads to oil esparitoll, oil
seperatora, and storage faciUtles u rd In the
produCtion of oil when tuch mobile fscllIUee
are Szsd In poeltion for the purpose of oil
production ogeraUona, but excioding any
tennlnel facility, nLl or process Integrally
associated with the handling or transferring
of CU In bulk to or from a yelad. -
(B) Ott raftntng , facilIties including an
equipment and appurtenances related
thereto is well as tn-plant processIng unite,
storage unite, piping, drainage systems and
waste trea ent uinto usot In the rednlng
of oil, but excluding any terminal facility.
unit or psocres integrally associated with the
handling or transferring of c’t 1n bulk to ut
from a vessel.
(F) Oil steinga Including all
equipment and appurtenance. related
thereto as Well as exed bulk plant storage,
terminal oil storage facilities, continuer stor-
age. pumps and drainage systems used In the
storag, of oil, but excluding inline or break.
out storage tank, needed for the o 1inucu 5
operation of a pIpeline system - and any
terminal facility, unit or p1uo Integrally
associated with the handling or transferring
of oil In bulk to or from a vessel.
(0) industrial, conunerdal. agrlcultu.rr’
or pubUc facilitIes which use and store o i
but .xcluding any terminal facility, twit 0
process Integrally s.siociat.d with the han
dung or transferring of oil in bulk to or (ron
a vessel.
(H) Waste treatment facilitIes Ineludin
In-plant pIpelines, enuent discharge liner
and storage tank., but excluding waste b ’e t-
merit facilities Io eted on vessel. and termi-
Del storage tanks and appurtenance. inr tile
reception of oily ballast water or tank wash
trig. from vessels and as,oclated systems used
for off-loading vessels,
(I) Loading racks, transfer hose ., 106dm g
M ists and other equipment which ire op
purtenant to a nontsanaportation-reiatcG
facility or terminal facility end which are
used to transfer oil in bulk to or front high.
way vehicle, c i railroad rare.
J) highway ehlcles and railroad cars
which are used for the transport of oil er-
clusirely wIthIn the confines c i a flontrans-
portatlon-reisted facility and which are not
intended to transport oil In interstate or In-
trastete commerce
(K) Pipeline systems which are used i c e
the trP.neport of c li exclusively within ilh.
cotifineti of a nontransportatlon-related facil-
ity Or terminal facility and which are riot in -
tended to transport oil In Interstate w
Intrastate commerce, but excluding pipeline
systems used to transfer oil In bulk to ot
from a vessel.
(2) “transportmtlon-reiated onshore aJ1r
offshore facilities” means:
(A) Onshor, and oftshor, t.rmlnai Iscili -
ties including transfer hoses, loading arnu.
and oilier equipment and appurtenance..
used for the purpose of handling or trani-
ferrtng oIl in bulk to or from a vessel a’
well as storage tanks and appurtenances fer
the reception of oily ballast watse or tank
washings from vessels, but excluding tee-
mIna,l wait, treatment facilities as’ ter-
minal oil storage facUlties.
(B) Transfer hosos,..loadlng a lms and
other equipment appurtenant to a non-
transportation-related facility which is u Sed
to transfer oil In bulk to or from a teasel
(C) Interstate and Intrastate onshore artd
off ibor pipelIn, systems including pumpt
s.itd appurtenances ielated thereto a. well
as In-line or breakout s age tanks nieded
for th. continuotis operation of a pipeline
system, and pipeilnas from o shore and oS•
shore oil production faculties, but excluding
onshor, arid offsbos piping-from Weltheadv
to oil separator. and pipelines which are
used for the transport of oil ee.lueively
within the couftn.e of a tiontransportattort -
related facility or terminal facility end
which are not intended to tnn e. ’t c li in
Interstat, or Intrastate oce.mere. or to
transfer oil In bulk to or from a vee t .
(1)) HIghway vehicles and rallro .C rr.rti
whith are used foi the transport of oU in
interstate or intrastate commerce and th .
equIpment and appurtenance. related
thereto, arid equipment used for the fuelior
of locomotive units, as- well a. th. rights-
01-Way on which they operate. LBcluded are-
highway vehiclea and railroad cars and mc-
liv. power used ezolustveiy wIthin the con-
Snas of a nontranspoflatlon-relatsd adlihtT
or t rminsX facility end which are Lot In-
tended for us. in Interstate or intrastate
IFP. Doc.’ )3—2544e Piled 12—lO—73;e:45 ami
PfOEIAL REQ1STIt, VOL 35, P40, 237—TUESDAY, DECEM5E 11, 1973
-------
Thursday
April 2, 1987
Part IV
Environmental
Protection Agency
40 CFR Part 110
Water Programs Dtscharge of Oil; Final
Rule
BEST COPY AVAILABLE
-------
10712 Federal Register / Vol 52. No. 63 / Thursday, April 2. 1987 I Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
4OCFR Part 110
IFRL 3119-6)
Water Programs; Discharge of Oil
AGENCY: Environmental Protection
Agency (EPA)
ACTION: Final rule
SUMMARY: The Environmental Protection
Agency is amending the discharge of oil
regulation (40 CFR Part 110). which
implements section 311 of the Clean
Water Ad (CWA) The original
regulation established a trigger fur
notifying the federdi government of oil
discharges that are harmful to public
he ith or welfare The regulation
defined a hurmiul quantity as the
amount of oil that violates applicable
water quality standards or causes a film
or sheen upon or discoloration of the
surface of the water or adjoining
shorelines or causes a sludge or
emulsion to be deposited beneath the
surface of the water or upon adjoining
shorelines It has come to be known as
the “sheen regulation”
Today’s regulation incorporates the
1977. 1978, and 1980 amendments to
section 311 of the CWA and implements
section 18(m)(3) of the Deepwater Port
Act (DWPA) of 1974 by designating a
harmful quantity for DWPA purposes In
addition, the Agency is responding to
two suggestions by industry for
modifications to the requirements of 40
CFR Part 110 The intended effect is to
upgrade the oil spill notification
requirements
EFFECTIVE DATE: May 4. 1987
FOR FURTHER INFORMATiON CONTACT:
hubert Watters, Response Standards
and Criteria Branch, Emergency
Response Division (WH—548/B), U S
Environmental Protection Agency. 401 M
Street, SW, Washington. DC 20460.
(202) 382—2403. or the RCRA/Superfund
Hotline. (800) 424—9348 (in Washington.
DC. 382—3000)
SUPPLEMENTARY INFORMATION: The
proposed rulemaking was published on
pages 9776—9783 of the Federal Register
of March 11, 1985, and invited comments
for 60 days ending May’10. 1985 The
comment period was subsequently
extended to luly 1. 1985 Comments
were received from over 50 sources, and
today’s preamble summarizes the
comments. suggestions. and actions
taken
The contents of the preamble are
listed in the following outline
I tniroduciion
II Ch.ingr’s from Proposed to Final Rute
III Statutory Provisions Affecting the Oil
Discharge Regulation
A 1977, 1978, and 1980 Siatutory
Amendments
I Extension of Geographical Scope
2 Modification of Harmful Quantity
3 Exemption of Discharges Sublect to
Section 402 oF the CWA
4 Exemption of Discharges Permitted
Under MARPfl’ “‘‘a
B Deepwater Port Act of 1974
IV Other Sections of the Oil Discharge
Regulation
V Requests for Changes in the Oil
Discharge Regulation
A Volumetric Aliemiiiives to Sheen Test
B Special Uae Applications of Oil
VI Summary of Supporting Analyses
A Classification and Rrgulatcry Impact
Analysis
B Regulatory Flexibility Act
C Paperwork Reduction Act
VII List of Sub 1 ects in 40 CFR Purl 110
I Introduction
On March ‘ I I. 1985. the Environmental
Protection Agency (EPA) proposed
amendments to the discharge of oil
regulation (40 CFR Part 110) The March
11. 1985 preamble discussed in detail the
nature and purpose of the proposed
amendments
Today. EPA is promulgating final
amendments to the regulation in
preparing the amendments to the
regulation. EPA has carefully considered
all of the public comments submitted on
the proposed amendments and is
making some modifications in response
to those comments Major issues raised
by commenters are addressed In this
preamble A summary of all comments
and EPA’s response to each is Included
in the Responses to Comments
Documents, which may be found in the
public docket for this rulemaking
Section II of this preamble
summarizes those changes made to the
March 11. 1985, proposed rule Staiutory
provisions, addressed in Section III of
this preamble. include the following
I Extension r , ‘ pe of
section 311 of the Clean Water Act (CWA)
from the contiguous zone seaward to
approximately 200 miles
2 Modification of the harmful quantity
definition from discharges of such quantIties
of oil thai “wilt be harmful” to the public
health or welfare of the United States to such
quantities that may be harmful” to the
public health or welfare of the United States
3 Exemption of oil discharges subject to
CWA section 402 National Pollutant
Discharge Elimination System (NPDES) from
coverage under section 311 provisions
4 Incorporation of the provisions under the
International Convention for the Prevention
of Pollution from Ships 1973 as modified by
the Protocol of 1978 IMARPOL 73/78). Annex
5 Definition of harmful quantities of oil for
purposes of section lSlm)l3) of the Deepwater
Port Act oF 1974 (DWPAJ
Section IV discusses other sections of
40 CFR Part 110, and Section V
addresses two suggested changes
requested by the regulated community
for which comments were solicited in
the preamble to the proposed rule They
are
I A request by Chevron to consider u
volumetnc amount of oil discharge use
trigger for notification to replace the sheen
test
2 A request by Esgard that EPA exempt itS
vegetable oil product, a corrosion inhitiitor in
ballast tanks, from the oil di,chiirge
notification requirements
Section VI presents a summary of
supporting analyses. and SeLtion VII
provides a list of subiccto addrchs’d by
thts rulemaking
II, Changes From Proposed To Final
Rule
This section summarizes the
substantive changes thai have bei’n
made to the proposed rule Four
definitions have been modified slightly
and one has been deleted Modification’.
have also been made to the 8eCIiOflS of
the rule concerning applicability.
prohibited discharges. demonstration
protects. notice, and DWPA dtsch.irges
A copy of the final rule Indicating nIl
changes from the proposed rule ha
been placed in the docket for this
rulemaking and is available for piililic
inspection The following summary is
organized in the same order as the
discharge of oil regulaiton (40 CFR Pin
110) itself.
Section 1101 The definition of
“applicable water quality standards”
has been amended to be consistent with
the EPA water quality regulation 40
CFR Part 131 The proposed definition in
§ 110 1 stated that applicable water
quality standards were State stand.irds
“adopted by the State and approvi’d by
EPA or promulgated by EPA ‘lii
contrast, 40 CFR 131 21(c) Stdtl’s th,it
A State water quality standard remains in
effect even though disapproved by EPA. until
the Slate revises it or EPA promulgiltea a ruii’
thai supersedes the State water quiiiity
standard
Accordingly the words “and
approved by EPA” have been di’Ictt’il
from the definition of applic.tble w,iR’r
quality standards in § 1101 of ho unit
rule
A reference to section 311 of the CWA
has been added to the definition of
“discharge” to clarify that a different
definition, as provided in § 11011.
applies to the DWPA
The regulatory explanation of the 1977
amendment language which extended
the scope of section 311’s coverage
beyond 12 miles has been deleted from
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Federel Ra ster Vol. 52. No. 63 / Thursday. April 2, 1987/ Rules and Regulations
10713
40 CFR Part 110 because a number of
comments Indicated confusion regerding
the scope of the specific statutory
language and the applicability of
discharge reporting requirements within
the area covered by the language. Under
the pre-1977 slatutrry language of
sectIons 311 (bJ1 .g and (b)(5). all
proM ted dlsdtnrges of osi In the
territorial sees and conlignee. zones
must be reported. With the enactment of
the 1977 CWA amendments, however.
Cost u Inserted additional language In
section Slllb)13) which provided that
prohibited discharges ‘In coenection
with activities under the Outer
Continental Shelf Land, Act or the
Deepwater Port Act of 1974. or that may
affect natural resources belonging to,
appertawing to. or under the exclusive
management authority of the United
States (Including reso under the
Magnuson Fishery Conservation and
Management ACIr must be reported.
Since the Ju isdiction of the three
eta tutes referenced In the 1977
amendments extends within as well as
beyond the contiguous zone.’ there was
some question as to whether discharges
withIn the zone now need cniy be
reported If they are actually in
connection with” one of the three
additional statutes. EPA believes that
the correct Interpretation of section
31l(b)13) is that oil discharges of oil In
the territorial sees and contiguous zone
that create a sheen must continue to be
reported. Discharges of oil beyond the
contiguous zone, however, that create a
sheen need only be reported if they ate
“in connection with activities” under the
Outer Continental Shelf Lands Act, the
Deepwater Part Act, or may affect
natural resources subject to U.S.
management authority under the
Magnuscm Fishery Conservation and
Management Act. Today’s rulemakmg
clarifies this issue by simply specifymg
appropriate reporting requirements in
terms of whether the discharge and
resulting sheen occurred in the
territorial sea, the contiguous zone, os
beyond 12 miles.
The definition of “cal” has been
expanded to indinie references to both
the CWA and the DWPA definitions of
oiL Because oil Is defined dtffereutly In
the DWPA than in the CWA and is used
I Spec fically. the Deepwatet Poet Ad of 19 I
regulat poeb bey d •the I via l biboJ the
United State, laciudgiga oaa c,rm . ,ent.
and equipment, such., pçetinca. located seaward
of the high water mar’s The Outsr Continental S ,elf
Lands Act governs the Oslo,’ Cv.,Ih, . ,th,I Swtf.
which t i beyEd ‘ svIgabte wls ns ’ and d
Magniasea Fis vy Coa...naltoa and M. , , ant
Act establiabesa fia}wry conjervatwo war. wtuch
lies beyond the temiorlal aes of the United
Slates -
in both contexts in the rule, the Agency
believes It is desirable to provide
reference, to both of these definition. of
ohm 1i0 ,l.
The rvle,ence to the Canal Zone has
been deleted from the definitio, of
“United States.” The CWA no Longer
applies to the Canal Zone isa result of
the Panama Canal Treaty of 1977 and
the Panama Canal Act of 1979(22 U.S.C.
3601 et seq.).
Section 1102 A sentence has been
added to the end of this section on
applicability to indicate that the
regulations also aauna uje term
“discharge” for purposes of section
18 1m)(3) of the DWPA.
Secboo 11 (18 (formerly 1107). This
aection sets forth the provisions of CWA
section 311 (b)(3), which generally
prohibits oil discharges In quantities as
may be harmful, except for discharges
permitted under MARPOL 73f75. The
Agency believes that the MARPOL
exemption extends to discharges under
the DWPA as well. Section 1 a) (l) of
the DWPA provides. In relevant part.
that”. . . the treaties of the United
States shall apply to a deepwater port
end to activities connected,
associsted. c i’ potentially Interfering
with the use or operation of any such
port.. .•‘. Because MARPOL 73/78 Is a
“treaty of the United States,” EPA
interp ret 0 octtIuli iu uh1) as authorizing
the application of MARPOL 73/78
provisions to discharges wider the
DWPA and, therefore, has also provided
for an exemption of MARPOL 73f78
permitted discharges from DWPA
requirements. This point ha, been
clarified in the final rule, and the section
on discharges defined for purposes of
the DWPA ( 11011 in the final rule) has
been modified to except discharges
permitted under MARPOL 73/78.
Section 1109(formerly f 11010) In
response toe comrnentey’s
recommendation to delete the
geographic scope language from
proposed f 110 10. the language has
been replaced with the phrase “under
section 311 of the Act “The Agency
concurs with commenter’s statement
that the r “ - ‘ 10.9la to provide
waiver authority to the Administrator.
and therefore it is unnecessary to repnnrt
the geographic scope in f 110.9.
Section 110.10(forrnerly * 110.11). The
Agency bee amended f 11010 to make it
consistent with Coast Guard discharge
reporting regulations by incorporating
the language in 33 CFR 153.203. as
amended on May 16. 19’36 (51 FR 17902).
Section 11011 (formerly 1108). In
the final rule, the section concernmg
discharges defined for purposes of the
DWPA has been moved to the end of the
regulation. This section has been
modified to except discharges from
properly functioning vessel engines
(which are not deemed to be harmful for
CWA purposes) end discharges
permitted by MARPOL 73/78. The
proposed rule contained an exception
for DWPA discharges sublec? to section
402 oF the CWA. but this exception has
been deleted. There Is nothing in the
language or legislative history of the
DWPA to suggest that Congress
contemfdeted such an exception
UI. Statutory Provision. Affecting the
Oil Discharge Regulation
This section of the preamble describes
the flue amendments to the sheen rule
that were required by changes to the
CWA and by the DWPA. Commeniera
generally expressed support for these
regulatory changes. Muspr issues ruttteii
b commeniers concerning each oF the
changes are discussed below
A 2977, 1978. and 19w) Statutory
A mendm ,,nts
1. Extension of Geogrophicoi Scope
- In the 197? amendment, to the CWA
(Pub L -.217) , Congress expanded the
geographical scope of section 311
beyond the contiguous zone, which
extends seaward to 12 miles. to include
oil discharges in connection with a
variety of activtt,les out to
approximately miles. Specifically.
sections 311 (b) and (c) of the Act were
amended to apply not only to dtschur8es
of oil into navigable waters and the
contiguous zone. but also to such
discharges—
in conneciton with activities under the Outer
Continental ,elf Land, Act or the
Deepw.ter Part Act of 1074. or thai may
aCect natural resources belonging to.
epoertatning to. os’ under the esdu ,,i e
manageiriesi authority of the Untied States
(tncIuding resources under the Fishery
Conservatton and Management Act of 1976)
133 U SC 1321 (b) and Id)
The Agency has amended the
jurisdictional provisions of 40 CFR Port
110 to reflect the expanded scope of
section 311 in f 110.5.
One comrnenter acknowledged that
the proposed extension of geographical
scope is consistent with the CWA
amendments, but had reservations about
the extension because of”the sheer size
of the area to be included The
commenter asserted that the extension
“will exacerbate the U S Coast Guard s
inabilIty to investigate spills.” EPA
notes that the major purpose of these
amendments to the oil discharge rule is
to implement statutorily mandated
changes ‘The abilty of the Coast Guard
to investigate spil!s in the extended area
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10714 Federal Register / Vol. 52. No. 83 I Thursday, April 2. 1987 I Rules and Regulations
ckpends. of course, on tho number of
ti ř area at any one time,
•liscretion, the existence of
‘.ands for Coast Guard
,i ,t v , ,i particular time, and the
resources In their
,.t’r .iubmitted on this rule, the
Cu ‘ ard has nct indicated any
concern about their ability to carry Out
necessary investigations.
2. Modification of Harmful Quantity
In 1978, Congress modified the
harmful quantity criteria of section 311
from discharge of oil that “will be
harmful” to discharges that “may be
harmful.” More specifically, Congress
modified the scope of prohibited
discharges under section 311(b) (4) from
quantities the “discharge of which, at
such time, locations, circumstances, and
conditions, will be harmful” to such
quan ities the “discharge of which may
be harmful” (Pub. L 95—576) Section
311(bl(3) wee also amended to reflect
this change.
The original oil sheen test was
promulgated pursuant to the pre-1978
standard of “will be harmful “The
Agency views the revised statutory
standard “may be harmful” as being. at
a minimum, at least as environmentally
stringent and protective as the prior
“will be harmful” standard, as discussed
in more detail below, EPA has reviewed
sr’ ntific research on the environmental
effect of oil spills. It has assessed State
and Federal experience in implementing
the present “oil sheen” test, and it has
carefully considered the alternatives
suggested by commenters On the basis
of this review, the Agency has
determined that the “oil sheen” is an
appropriate, effective, and practical test
for harmful quantities of oil under
section 311(b)(4) of the CWA As
discussed later in this preamble, the
Agency has made the same
determination for discharges under
section 18(m)(3) of the DWPA.
A number of commenters recognized
that the replacement of “determined to
be harmful” for “as may be harmful” in
theregulations at 40 CFR Part 110 would
be consistent with the CWA
anlendments Some of these commenters
advocated, however, adoption of a
qu ntitative definition of harmful
quantity of oil discharge using a
volumetric trigger as an alternative to
thetaheen test. The scientific support for
the oil sheen test together with the
merits of adopting a volumetric trigger
are addressed in detail in the discussion
in Section V A. concerning Chevron’s
proposal for a volumetric substitute to
the,sheen test
3. Ł empt,an of Discharges Subject to
Section 402 of the CWA
In the 1978 amendments to the CWA,
Congress also modified the definition of
“discharge” in section 311(a)(2) to
exclude from section 311 coverage three
types of discharges that a e subject to
the National Pollutant Discharge
Elimination System (NPDES) regulations
under section 402 and the enforcement
provisions of section 309. Specifically,
Congress provided that the following
discharges be excluded from section 311
coverage’
(A) discharge. in compliance with a
permit under section 402 of this Act, (B)
discharges re.uii u i uin uculubiances
identified and reviewed and made s part of
the public record wiih respect to a permit
Issued or modified under section 402 of this
Act, and sub eci to a condition in such
permit. and IC) continuous or anticipated
intermittent discharges from a point source.
identified Ins permit or permit application
under section 402 of this Act, which are
caused by events occumng within the scope
of relevant opportunity or treatment systems
Congress intended this amendment to
clarify which section of the CWA
governs discharges of oil and hazardous
substances from point sources holding
NPDES permits Foreseeable or chronic
point source discharges that are
permitted under section 402. arid that
are either due to causes associated with
the manufacturing or other commercial
activities in wh rb •“ie rtI rbMrger is
engaged or due to the 3peratlon of the
treatment facilities required by the
NPDES permit, are to be regulated under
the NPDES program “Classic spill”
situations are subject to the
requirements of section 311 Such spills
are governed by section 311 even where
the discharger holds a valid and
effective NPDES permit under section
402
Several commenters suggested a need
for EPA to clarify the three categories of
excluded discharges EPA provided an
extensive explanation of these
exclusions in the March ii, 1985,
preamble to the proposed rule, and the
Agency intends at the pesent time to
continue this interpretation of the CWA
provisions, which was based on the
language in 40 CFR 117 12 promulgated
in 1979 for repol lauw qu,intiiics of CWA
hazardous substances This
interpretation, however, is currently
being reevaluated by the Agency in the
context of the present NPDES program
and the interpretation of”federally
permitted releases” under the
Comprehensive Environmental
Response, Compensation, and Liability
Act of 1930 (CERCLA) The A8ency
intends to address this issue more fully
n a forthcoming rulemaking on CERCLA
federally permitted releases.
4. E.xempt ion of Discharges Permitted
Under MARPOL 73/78
Annex I of the International
Convention for the Prevention of
Pollution from Ship,, 1973. as modified
by the Protocol of 1978 (MARPOL 73/
78). entered into force on October 2. 1983
(see 48 FR 45704—45727, October 6, 1983)
The purpose of MARPOL 73/78, which
supersedes the International Convention
for the Prevention of Pollution of he Scd
by Oil, 1954, Is to eliminate marine
poilution from ships. In 1980, th Act to
Prevent Pollutton from Ships
implemented portions of MARPOL 73/
78 Specifically, section 13(b) of Pub L
98—478 amended section 311(bl(3)(r ) of
the CWA to exempt certain discharges
into waters seaward of the territorial
sea permitted under MARPOL 3/78
Such discharges include the operational
discharge of limited quantities of oil’
water mixtures from shps Thus.
discharges into those waters from ships
made in compliance with the
requirements of Regulation 9 of
MARPOL 73/78, Annex I (as
implementcd through 33 CFR Parts 151
and 157), are not subject to notification
and liability provisions under the CWA
even if they would otherwise be of “a
quantity that may be harmful” under the
CWA The MARPOL exemption does
not apply, however, to discharges into
the internal waters and the territorial
seas of the United States Such
discharges must satisfy the CWA
harmful quantity discharge standard
even if the MARPJL 73/78 dischaige
standards are ‘iet Section 1106 of the
sheen rule now includes this exemption
One comrnenter pointed out that a for
greater amount of the oil discharged into
the world’s oceans comes from tankers
rather than from U S. Outer Continental
Shelf production operations and
therefore recommended that if an
exemption is granted to ships covered
under MARPOL 73/78. a volumetric
trigger should be set for offshore
platforms that operate in the same
waters and discharge le8s oil In
response to this comment, the Agency
points out that the principal purpose of
this regulatory revision is to incoi ,Ortiie
Congress’ specific exernptton for
MARPOL permitted releases The
Agency also notes, however. thai the
standard under MARPOL is
concentration’based rather than
volumetri, and that Regulation 9 of
MARPOL ,‘3/78 applies to all “ships”
operating in the marine environment
Such “ships” include all vessels iind
both fIxed and floating platforms Thus,
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Federal -Register I Vol. 52. No. 63 I Thursday. April 2. 1987 / Rules and Regulations
10715
the MARPOL 73/78 exemption includes
certain operational discharges from
ofrahore pie tiouns as well as from
vesseLs (lee Regulation 21of MARPOL
73/78). Furthermore. some otfiihore
platforms operate under NPDES permits
with oil discharge Limits . and discharges
in compliance with such permits are
also excluded from discharge of oil
regulation coverage. The Agency has
decided to reta(n the existing reporting
trigger far discharges horn offshore
platforms at this time.
B. Deepwater Port Act of 1974
The Deepwater Port Act (DWPA) of
1974 (33 U.S.C. 150-1524) applies to the
,nstruction end operation of deepwater
ports In waters beyond the territorial
limits of the United Stales, including
associated components arid equipment.
such as pipelines, located seaward of
the high water marl . It contains
provisions that prohibit the discharge of
oil into the marine environment from a
d epwater port, from a veesel that las
rdceived oil from another vessel at such
aport, and from vessels within a port’s
safety zone. The DWPA also establishes
deepwater port licensee and vessel
owner or operator liability for cleanup
costs and damages that result from a
discharge of oil. Other features of the
DWPA include discharge notification
requirements, penalty provisions, and
the establishment of the Deepwoter Port
Liability Fund. The fund is liable.
without regard to fault, for all cleanup
costs and damages in excess of those
actually compensated by a liable
deepwater port licensee or vessel owner
operator.
Action under each of the key pollution
provisions of the DWPA is triggered by
a’ discharge of oil in harmful quantities.
Section 18(rn (3) of the DWPA defines
‘diccharge” in terms of those “quantities
‘d l oil determined to be harmful pursuant
to regulations issued by the
dministrator of the Envutnmental
rotection Agency” (33 U S.C.
1517(m (:)). in the proposed rule, EPA
used the sheen test to complete the
definition.
Several commenters favored, in one
form or another, a volumetric trigger for
discharges under the DWPA After
carefully reviewing the comments
gubn ,itte and considering them in light
61 the statutory language of section
iB(m)(3) of the DWPA and its supporting
legisiative history. EPA has decided to
use the sheen test in the final rule to
define ‘harmful quantities” for purposes
of the DWPA. The Coast Guard, which
has the responsibility for irnplementing
the requirements of the DWPA, agrees
with this position. Both EPA and the
coast Guard believe that Congress
Intended that the DWPA definition of
harmful quantity bathe same as the
CWA definition In the oil discharge rule.
Accordlngto the legislative history of
the DWPA. Congress expected the
/tdniixiistrator”. . . to define harmful
qua otlues of oil as dafined In
regulations issued under sei.tion 311 of
the Federal Water Pollution Control
Act” (Sen. Rep. No. 93-1217.93rd Cong.
2nd Seas. (1974)). As noted by
commentate, the section 311 CWA
harmful quantity determination was
promulgated by the Department of the
Interior in 1970 anti adopted by EPA In
1971. When Longress enacted the
DWPA In 1974 it speclflcally chose in
section 18(in)(3) to define the word
“discharge” in terms of “regulations
issued by the Administrator of the
Environmental Protection Agency”. As
the legislative history noted above
makes explicitly clear, the regulati .ns
Congress was referring to were those
issued under section 311 of the CWA
Those regulations defined harmful
quantities in 1974 in precisely the same
terms as today’s rulemaking. Therefore.
EPA and the Coast Guard believe the
rule adopted today at 40 CFR 11011
fulfills Congressional direction in this
regard. Moreover, as discussed below,
the Agency believes that the sheen test
is an appropriate definition of harmtul
quantities for purposes of the DWPA.
One corn : ‘ ‘ed iata from
the Louisiana Offshore Oil Port (LOOP)
monitoring program to show that there
were no me ssurable short.term or long-
- term harmful effects that could be
attributed to oil spilia from the LOOP.’
A review of the data submitted.
however, suggests that the monitoring
program was not specifically designed
to assess the impacts of spills that have
actually occurred at the LOOP.
Moreover, the inconclusive indications
that these data provide are more than
offset in EPA’s view by other scientific
studies and research in the .ecord that
clearly demonstrate a connection
between oil spills and adverse
environmental effects, both at offshori..
oil platforms and other open ocean
areas, as well as In controlled
laboratory rnnriit,nne Frir this reason
also, EPA believes that the
determination in today’s rulemaking that
the oil sheen is an appropriate harmful
quantity standard is reasonable and
fulls supportable.
Another cornmenter argued that the
sheen test does not correspond with
either actual or potential harm from
‘The LOOP is the only operaiing deepwaier port
in ihe United Slate, iii located sipproeimsiely 8
miles off the coast of Louisiana in the Cult of
Mexico
deepwater port-related releases, which
by definition, occur outside territorial
waters. According to the commenter. the
regulations assume that the same
quantity of oil wl’;h presents a
potential threat to the public health or
welfare of the United Statts when
spilled in navigable waters or in the
contiguous zone creates s comparable
potential for he-rn when discharged at a
remote offshore location The
coinmenter challenges this assumption.
citing a 1974 study by the U.S. Army
Corps of Engineers on different areas of
marine environmental sensitivity. It
should be noted that this study dces not
state th..,t there is no harm from oil spills
offshora, but rather, that there is likely
to be less harm from oil spills offshore
than from those Inshore. Other
researchers have related the potential
for harm from an oil spill to distance
from shore, by noting that the potential
for harm increases as water depths
decrease from thousands ti’ hundreds of
feet. EPA believes that such a potential
for harm exists at the LOOP because
contrary to the commenter’s suggestion
that the LOOP represents a ‘remote
offshore location,” the depth of the
water surrounding the LOOP platform is
in fact on the order of one hundred feet
Furthermore, as mentioned previously.
the DWPA definition of deepwater port
includes pipelines and other
compnnents and equipment iocaied
seaward of the high water marl. rhus.
LOOP di charges may occur within as
well as beyond terr (onal waters
Another commenter has indicated
concern that unlike section 311 of the
CWA, the provisions of the DWPA,
specifically 33 U.S C 1517(c)(1),
statutorily mandate a response action in
every instance of a reported discharge.
regardless of extreme weather
conditions and resulting safety hazards
that cleanup actions may entail The
Coast Guard, however, declines to adopt
this interpretation of the DWPA As
explained in their comment letter of may
9,1985 (OS—9—43 in the public docket).
the Coast Guard interprets the
provisions of the DWPA to give th-
Coast Guard discretionary authority to
determinc whether or not a response is
necessary when a diacherge occurs
IV. Other Sections of the Oil Discharge
Regulation
A few commencers recommended
changes to other sections of the oil
discharge regul8tion, particularly to
§j 1101 and 110 Ho! the proposed rule
For reasons discussed in the Responses
tO Comments documents, the Agency
has decided not to Incorporate these
changes into the final rule
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10710 Federal Register I Vol 52. No. 83 I Thursday, April 2, 1987 / Rules and Regulations
V. Requests For changes La the Oil
Discharge Regulation
A t. oh,meir,c Alternatives to Sheen
Test
Chevron U.S.A.. Inc., of Sian Francisco,
Califorma, has commented to EPA that
the sheen test under section 311 of the
CWA is too stringent and that
alternative, volumetric limits would
pro iide sufficient water quality
protection at a lesser coat to the
company. Chevron has suggested that
the teportable quantity threshold bt ’
ch8nged to I barrel (42 gallons), except
where water quality stand8rds are more
stringent. The company maintains that
spills of less than I barrel “rarely. if
ever, cause environmental damage.”
Chevron claims, in material submitted to
EPA. that approximately 75 percent of
the spills it reports are of under I barrel
andlestimates that the cost to the
company is $500 to $6000 per spill
report Some commenters have urged
that a volumetnc test be adopted for
harmful quantity determinations under
the DWPA. as well
Alarge number of commenters
expressed support for the sheen test
rait er than a volumetric test Several
com 1 menters cited the greater
enfdrceability. admtrnstrative ease, and
higHer level of environmental protection
affdrded by the sheen test A few
cothmenters pointed to the success of
the’ heen test in promoting prompt
reporting and preventing larger spiiis. as
well as in encouraging spi 1 i prevention
and cleanup by industry The
can 4 menters also noted the problems
inh rent in a volumetric reporting
trigger, including the potent .il for
ensironmental harm From small
quantities of oil in the Aquatic
environment: these commenters
ass rted that a volumetric trigger would
Idil to account fordiffering susceptibility
of iater to damage from oil They noted
that the receiving waters and type of oil
spilled affect the environmental impact
more than the quantity of oil spilled.
Gommenters opposed to the sheen test
raised questions about environmental
harm and concerns about the stringency
of The requirement Several comrnenters
favoring a volumetric alternative to the
she’en test also addressed administrative
anc policy issues as outlined below and
de’tdiled in the Responbes to Comments
documents
1 Environmental 1-farm Issues
he majority of commenters opposing
th sheen test expressed the belief that
smbll oil spills do not have a significant
irr pact on marine ecosystems A few of
thetcommenters referred to the fact that
many scientific sti’dies have been
conducted since the Department of the
Interiors 1970 determinatIon that a
sheen represents a “harmful quantity” of
oil For example, one suggested that
many scientific studies have proven
small quantities of oil to be harmless.
and another asserted that EPA ha
failed to consider new data in Its
decision to retain the sheen test. Of all
the commenters who expressed these
opinions, only Uiiee 5 u i 1 i it d extensive
documentation of scientific studies and
literature reviews, which they felt
illustrated the substantial amount of
recent research that could support a
volumetric reporting trigger. One of the
commenters also recommended that
EPA review the 1985 National Academy
of Sciences study on the subject of oil
pollution
EPA has carefully reviewed the recent
scientific literature on environmental
effects of oil pollution, including
documents submitted by commenters
and other documents referenced in
comment letters or compiled in the
public docket during the comment
period. EPA believes that the literature
clearly demonstrates that discharges of
small quantities of oil cause
environmente’ ‘ “ ‘ission paper
outlining the Agency’s position end
citing specific documents in support of
that position has been p t aced in the
public docket
Many types of adverse effects from oil
have been extensively documented,
proving harmful effects from oil spills
and chronic pollution in inland waters.
in coastal environments, and in waters
beyond 12 miles from shore, Evidence
from reviews of laboratory studies
further demonstrates that very small
amounts 01 3i1. e g. less than I mg/L (I
ppm), can have leth8l and sublethal
effects on a wide variety of organisms.
The National Academy of Sciences
(NAS). in its 1985 comprehensive
review, noted that “low concentrations
(less than I mg/L) of petroleum
hydrocarbons can apparently interfere
with the noru u , LJVIIUIIUL marine
organisms, espacially the more fragile
components such as the larval and
juvenile forms of the marine food
chain.” The review articles and reports
prepared by industry representativec
that argue strongly for the commenters’
position are either limited in their
citation of scientific lilerature or highly
selective in the concjsions drawn. The
limited evidence cited by commenters to
show little or no harm from uil
discharges generally applies only to
certain areas of chronic pollution (e g.
Milford Haven, United Kingdom),
certain types of harm (e.g. permanent
harm on a broad scale), or certain
organisms As discussed in the NAS
report and In EPA’s discussion paper.
The studies of chronically polluted areas
in the Gulf of Mexico that were cited by
commenters are controversial and have
been criticized by some scientists for
their methodology end conclusions
Commenters provided no evidence
disputing the widely recognized types a!
physical harm that may result from
floating sheens of oil such as
asphyxiation of fish and benthic fauna
due to coating by oil, harm to waterfowl
because of loss of buoyancy or toss of
Insulating capacity of feather .. and
adverse aesthetic effects of fouled
shorelines and beaches
Moreover, some ccimmenters appear
to have defined potential harm as
permanent biological harm on a broad
scale There simply is no persuasive
indication In the statute that Congress
Intended this narrow interpretation of
the harmful quantity standard. In fact.
the Congressional policy expressed in
CWA section 311(b)(1) “that there
should hz ,io discharges of oil’
(eiii hasis added) suggests just the
opposite
Equally important, nothing in the
legislative history of the CWA or in
judicial interpretations of the Act
suggests that a demonstration of
permanent harm on a bro,id scale is
required. Congress stated in the 1978
CWA Amendments that a prohibited
discharge need only be a quantity that
may be harmful. In cases such as US v
Al/antic Richfield Company, 429 F Supp
830. 837 (ED Pa ,1977). the courts have
suggested that Congress believed thdt
even transitory pollution of waters was
deleterious to the environment
Many of the studies submitted by
commenters support the fact that small
oil spills do cause harm in certain
waters (e g. spawning grounds.
estuaries) Many opponents of the sheen
test concede that coastal and inland
areas and sensitive habitats may be
vulnerable to damage from low levels of
oil pollution. and many admit that there
r iay be at least temporary harm
Documents compiled in the public
docket clearly show that sm8ll amounts
of oil are harmful in a variety of
locations and circumstances, including
spawning grounds and sensitive habitats
beyond 12 miles from shore EPA has
therefore chosen to retain the shei test
as an environmentally protective
reporting trigger for purposes of both tt-e
CWA and the DWPA
Several commeriters favored the
establishment of different oil discharge
reporting triggers for different waters to
ensure that the more stringent sheen test
would be used for environmentally
sensitive areas, while a less stringent
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Federal Register I VoL 52, No. 03 I Thursday, April 2, 1987 / Rules and Regulations
10717
volumetric test would be applied to teas
environmentally senaitlve waters. To the
extent that they favor Tetairnng the
sheen test for certain waters. EPA
agrees with these cornmenters. EPA
further believes that the sheen test must
be applied to alt waters to ensure
certain, consistent and effective
Implementation of the harmful quantity
standard. A single reporlirig trigger is
entirely consistent with Congressional
Intent as reflected In the 1978 CWA
amendments, which eliminated the
requirement that a determination of
harm must consider the specific ‘times,
locations, circumstances, and
conditions” o le given spilt. Senator
Muakie. In the debates on these
amendments, stated that the
determinations of harmful quantities
under CWA section 311 “are nationally
applicable, before-the-fact decisions and
are not expected to reflect the uiynad of
actual circumstances that may occur”
(Congressional Record at 519053.
December 15. 1977). In the case of
hazardous substances, which, like oil,
are covered by CWA section 311, EPA
has previously expressed the view that
Congress intended a single reportable
‘quantity to apply to all waters, As
stated in the 1978 preamble to
regulations establishing reportable
quantities far hazardous substances,
“Congress was aware that requiring
tailoring of such determinations to water
body type and other circumstances is
administratively unwise and could
prevent achievement of the goats of the
(Clean Waterj Act” (43 FR 10491, March
13. 1978). EPA believes that this same
principle should apply to discharges of
oil. EPA continues to believe that a
single reporting trigger is a practical and
environmentally sound requirement. It is
true that discharges of the same amount
of oil into different bodies of water may
result in different degrees of harm. The
boundaries and differentiation of
vanous ecologically significant waters,
however, are not clearly defined nor
readity discernible. Waters seaward of
the territorial seas or the contiguous
zone, which may contain neustonic
communities or productive fisheries, can
be sensitive to small spills As
sensitivity ci individual aquatic
environments to c,il is dependent on
much more than lust distance from
shore, EPA believes that it would be
impractical to establish varying oil
discharge reporting requirements for
different waters The sheen test,
identifying a single threshold for all
waters, provides a clear and definitive
tngger for the reporting requirements of
40 CFR Part 110. A single reporting
trigger for all waters is thus practicaL
effective, and iui 1 y reflective of
Congressional intent underlying both
section 311 of the CWA and sect iofl
18(mJ(3) ci the DWPA.
Several commenters argued that the
sheen test wilt result in over reporting of
discharges that may not be harmful.
This argument. however, Is true of any
reporting trigger including the
volumetric test. Moreover, any reporting
trigger may in addition to requiring the
reporting of some discharges that are
not harmful, also allow some harmful
discharges logo unreported. In
comparison to the sheen teBt, for
example, the volumetric triggers
advocated .. neniers would
allow nonreporting ala large number of
spills that may be harmful both on an
individual and cumulative basis EPA
believes that a sheen is an appropriate
Indicator of a discharge of harmful
quantities of oil. A sheen Is typically
associated with discharges containing
concentrations of oil in the 10 to 20 ppm
range. In this regard. it is worth noting
that Regulation 11161 of MARPOL 73/78
defines clean ballast as either ballast
that does not exceed 15 ppm, or ballast
that. if discharged into clean, caIrn
water on a clear day. would not produce
a visible sheen. Thus, for purposes of
thi definition, a discharge causing a
sheen may be roughly equated to a
discharge with a concentratwn of 15
ppm. As detailed in the Agency’s
discussio iublic docket,
adverse biological effects From oil occur
at concentrations many times lower
than 10—20 ppm. Furthermore, as noted
above, the physical properties of
floating sheens themselves may cause
harm, such as coating birds’ leathers
and fouling beaches.
2. Administrative and Policy Issues
Some commenters suggested that a
volumetric trigger would reduce the
number of api 1 1 repcrta. With a reduction
in reports. commenters asserted that
there will be less of a paperwork burden
on both industry and the implementing
agencies and less need for
administrative follow-up procedures
such as inspections EPA recognizes that
in some cases reporting is already
required under qpriaralp regulatory
systems created under me Outer
ContinentaL Shelf Lands Act (OCSLA).
under MARPOL 73)76. and under
section 402 of the CWA. For facilities
regulated under the OCSLIJ. a!! spills or
leakage of oil or waste materials must
be reported to the Director of the
Minerals Management Service under 30
CFR 25043 and OCS Order Number 7
The additional cost of complying wi h
the reporting requirements under section
311 of the CWA would be minimal for
these facilities.
In light of comments from
implementing aguncies. EPA believes
that the cost of reporting under 40 CFR
Part 110 are not excessive For example.
a State agenc3 IOhio EPA) estimated
that the actual reporting phone cull lo
the National Response Centers toll.Irce
number normally takes less than 15
minute .. Furthermore. Ohio EPA has
found that its data storage and
admtnistratlve-coets have generally
been less than $20 per reported spill
The Coast Guard pointed out thai the
costs of reporting small spiiis are very
small In comparison to spill prevention
and corrective action expenditures In
response to EPA’s request for
Information on administrative cosis uf
respondIng to small spills, the Coast
Guard suggested that spill response
costs vary with the level of response
required The cost per assessment will
not be reduced, according to the Coast
Guard. by a change to a volumetric
standard because each report would still
need lobe assessed to determine the
actual amount discharged. Furthermore.
the volumetric test may not reduce the
overall costs of the regulation nor
simplify Its administration because there
are additional implementBtion
considerations associated with a
volumetric test that are not associated
with current notification requiremenis
The coats of installing, maintaining. and
repairing any required oil monitoring
devices could be substantial Field
verification costs of the releaser as well
as the State. Coast Guard, or EPA would
likely increase for a given spill, if
observer, were required to determine
the quantity spilled rather than simply
the existence of a sheen
Several comrnenters expressed the
belief that the adoption of a volumetric
standard would not entail a reduction in
‘their cleanup operations The
commentera asserted that their
commitment to cleanup of all spills
should continue under the volumetric
standard EPA commends the
commenters’ desire For the continued
cleanup of all spills EPA believes,
however, that the Coast Guard a efforts
to ensure cleanup will suffer in cases of
spills that do not meet the volumetric
threshold and are therefore unreported
Moreover, if, as commenters assert.
voluntary leanup of all spills will take
place, EPA does not believe that the
requirement of toll-free telephone
reporting places an undue additional
burden on vessels and facilities
handling oil
A few oher commenters expressed
the opinion that a volumetric reportimi8
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10718
Federal Register / Vol. 52, No. 63 I Thursday, April 2, 1987 / Rules and Regulations
trigger would be supenor to the sheen
lest because the appearance of a sheen
often depends on weather conditions
and water turbulence. However, as
discussed below, accurate volun,etnc
determinations also can be dependent
on weather and water conditions The
Agency believes that any potential
shortcoming of the sheen test in
particular circumstances are far
outweighed by its overall usefulness.
simplicity, and enforceability. A sheen
provides a dear indication of a
reportable discharge. enabling a
responsible party to identify easily
which discharges must be reported and
facilitating third party (e.g.. citizen)
complaints or reports.
EPA alsO believes that the difficulty
involved in determining the quantity of
oil discharged. as evidenced in data
From regulatory agencies. is one factor
that makes a volumetnc reporting trigger
less effective than the sheen test. In
many cases, the reports of 0)1 spills are
extremely Inaccurate. In addition. a
volumetnc trigger may provide an
incentive for underestimatrng the
quantity discharged. in cases when an
estimate of slick area and ihickness
must be made, an observer may require
specitil training. Even under optimal
viewtng conditions, with a reference
scale,available for comparing
dimensions, only rough estimates of
volume may be 7ossible. Moreover, in
less than optimal viewing conditions
(e g . poor weather. turbulance,
darkness), it is not clear that even rough
estimates would be possible. Finally.
any time-consuming determination of
the amount spilled would be contrary to
the api1 1 reporting program goal of
immediate notification and quick
response to possible environmental
threats
Many commenters suggested that a
volurpetnc .‘eporling trigger would be
consistent with the present reportable
quantity (RQ) criteria for hazardous
substdnces. EPA notes that an important
purpose of the RQ program is to provide
a readily implementoble and easy to
unddrstand reporting tngger for a
diverse set of hazardous substances.
EPA believes that the sheen tedt
satisfies this same regulatory objective
for oil The sheen test has been shown
to b a successful notification trigger for
oil under a vanety of circumstances The
sheen test takes advantage of the
physical properties of oil. wnich cause a
film.’sheen. or discoloration upon the
surface of the water. Because oil
generally floats, the sheen test may be
used 1 to provide a more simple. easily
enforced, and reliable alternative to a
volumetric trigger
B. Special Use Applications of 0,1
EPA has authority under the CWA.
section 311 (b)(3)(B). and Executive
Order 11735 (38 FR 21243) to permit the
discharge of oil “In quantities and at
times and locations or under such
circumstances or conditlons as the
Agency determines not to be harmful
Thus. EPA may grant exemptions to
section 311(b) and the sheen regulation
under appropriate circumstances The
Agency has received a request for an
exemption for vegetable oil products
used to prevent Ralt water corrosion in
the oallast tanks and void spaces of
ships and semisdn. rigs.
Several comments were received on this
issue There was disagreement among
the commenters as to whether vegetable
oil products cause harm.
EPA has decided not to exempt the
reporting of vegetable oil product
discharges under the oil discharge rule
The Agency has reviewed the materials
cited by commenters on the impacts of
vegetable oils and believes that these
materials do not support the conclusion
that these oils do not cause
environmental harm Some harmful
environmental effects of vegetable oils
are similar to those of petroleum bits
and include drowning of waterfowl.
fishkills due to increased biological
oxygen demand, asphyxiation of benthic
life, and adverse aesthetic effects
Finally, the Age” l,,.iin,.n,’ hat the
reporting requirement does not pose
such a burden that it would deter the
application of a useful vegetable oil
product
VI. Summary of Supporting Analyses
A C/ossification and Regulatory Impact
Analysis
Regulations must be classified as
major or nonma jot to satisfy the
rulemaking protocol established by
Executive Order 12291 E,O 22291
established the following criteria for a
regulation to qualify as a major rule.
1 An annual effect on the economy of $100
million or more
2 A m&ipor increase in costs or prices for
consumers, individual industries. Federal.
Siaie. or local government agencies, or
gevgraphic regions
3 Significant saverse eitects on
competition, employment, investment.
productivity. innovation, or on the ability of
United Siaiea-ba.ed enierprise. to compete
with foreign’baaed enterprises in domestic or
export markets
The amended regulation is a nonma jot
rule because the Agency has concluded
that it meets none of the above criteria.
An analysis has estimated that the
upper bound total of annual economic
costs from notification requirements.
spill investigations, and Increased
cleanup liability is $3.8 million, well
below the $100 million standard for a
major rule classification Data
supportIng this conclusion are in the
rulemaking docket.
This regulation was submitted to
0MB for review under Executive Order
122g1.
B Regtilo Wry Flexibility Act
In accordance with the Regulatory
Flexibility Act of 1980, Agencies must
evaluate the effects of a regulation on
“small ent,ties. That Act recognizes
three types of such entitles:
I Small businesses (specified by Small
Duelnes. Admlni trotioa regulatIons).
2. Small organization. (independently
owned. nondosninant In their field. nooprofiti
and
3. Small governmental jurisdictions
iserving communitIe, with fewer than 5.000
people).
If the rule is likely to have a
“significant impact on a substantial
number of small entities.” the Act
requires that a Regulatory flexibility
Analysis be performed. EPA certifies
that the amended regulation will not
have a significant impact on a
subsiantial number of small entities
There may be some Incremental costs of
compliance owing the extension of
jurisdiction beyond the contiguous zone
to approximately 200 miles These costs
will, however, be borne by companies
larger than those defined as small
entities.
The regulated industry is dominated
by a few dozen major corporations
Because regulatory costs will ultimately
be borne by these mator corporations.
the expected compliance costs will not
affect any identifiable group of small
entities and thus a Regulatory flexibility
Analysis is not required
C Paperwork Reduction Act
Information collection requirements
contained in this rule have been
approved by the Office of Management
and Budget (0MB) under the provisions
of the Paperwork Reduction Act of 1911 (1.
44 USC 3501 etseq and have been
assigned 0MB control numoer 2050—
0046.
List of Subjects In 40 CFR Part 110
Administrative practice and
procedure, Coastal zone. Continental
shelf, Environmental protection.
Fisheries. Hazardous substances.
lntergo’ ernmental relations. Liabilities.
Marine resouces. Natural resources. Oil
pollution, Penalties, Petroleum, Public
health. Reporting and recordkeeping
requirements. Rivers. Treaties. Vessels.
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Fedez L Regular I Vol.52. No. S3 1 Thuze 1ay., Apfl 2.19W I Rnlu d Regalatlona
11 1719
Water pol1ut a c troI. Watei
resources. WalensLay I.
24. i .
Los M .1’—’
For reasons set out In the preamble. 40
CFR Part 110 Is revised to read as
follows
PART I —O!SC fAf ICE OF OIL
5e
110.2 DeRaU
110.3 AppHcab
110.3 Utachargei Late navl abIa waters c i !
saidi qualaUfle. as ray be )Iami!UL
120.4 DIIJtaTge into conrl uoa, ne of
sathqvenb6e,aieyb,hannfd
110.2 O a ’gs beyosd c I vvos.m e of
thqs .mtit4 sssceybsha r L
110.8 DLuc1i .proIIk
110.7 Excapboo Lot v I aa.
t1 Oisp an .
110.2 Demoastration pzol asis .
110.10 Notlca.
110.11 Dlsdiarge at Deepwalar PWls.
uthedry Sees. 311 Ib (3J and [ bull and
5O1 a). Fedara? Wat t Polhitlo Conbol Act.
as amended 35 tLSC 1321 fbjfs end rblrt ?
and l i (aTh ose. 1l( )etbe9 .. .l. ,-
P&1 Act of 1974 USC. l 3 Ł
11135.38 FR 31243.3 CFR Part, 1971-1975
COAP.. .
O,flnI ons.
As used. La this part. th€ tcflowutg
tá’me shall have the meaning Indicated
below’
Acr means tie Federal Waler
Pollutloa Control Act, as amended. 33
U.S.C. 1251 et seq.. also known as the
Clean Water Act:
Admtnlstrator means the
Administrator of the Environmental
Protection Agency (EPA)
‘Applicaf le water qeaHty s1andard
mesas Slate water qeahty standards
adopted by the State pm ’aaant to section
3 1fl of the Act or pi-umutgeted by A
p irsuant to that section:
zone” reams the entire
ne established or to be bl’tshed by
the United States vnderarticte24olthe
CTthon on the Thrdosial Sea and
the Ctig rs Zorre
“Deepweter porn’ mean, or offshore
facibty or doftoed La SPLhrn . (3)(10) of
the Deepweter Port Ad of 1974 (33
U.S.C. 15o2(1O )
“DIsc arge.” when used relation to
section 311 of the Act, ir Indes. but Is
n t limited to. any spilling. leaking.
p’um ping, pouring, emitting. emptying, or
dumping, but excludes (A) discharges in
c ompI1ance with a permit under section
402 of the Act, (B) discharges resulting
f om circumstances Identified and
ieviewed and made a part of the public
record with respect to a permit issued or
modified under section 402 of the Act.
and subject to a condition I a sorh
permit. ord ( contlaorua or
enIid ated. latermLLt dIsdxargei. from
a point source. identifled lii a permit or
permIt applicaikim sades secL o(
the Act, that arecasised by evm a
owi3r wIthin the scope of .almnt
ope,a&L u realmenz $y,hosi
‘MARPOL73J7a ’ means lbs
International C... r the
Prevention of Pollution from Ships. 1973.
as modifledby the Protocol of 19Th
reladngthertoA .nnrcL ócla
re atr. poibdica fr o l end whlcb
cd Into force or October 2. 1
“Nav able watees” ors the waters
of the LJm States. IiirhidIi g the
terTtkntal sees. The tens 1udes .
a) All waters that m ridy uwd.
were med In the past. or..ay hi
storeptibla to . - Ii Iatersta*e ot
camrerco. todeding all waters t ore
atA$edto the ebband ow of the tide
Ib) l tate waters. Iac}.dr
interstate wetlarida
(c) All other wa such or lafrastate
Lakes. rivers. treeme IirvMdav
in mlttent etraiws) . mmiflata,
sordflats end wetland ,, the i .
degradation or desin tion of whithi
would affeci or nat al1 t mierstate or
fort aee itw4ndmg eny snth
water
(1) That are or could be med by
interstate or foreign traveler, for
recreational or other purpoeer
(2) Prom which fish or aheflEsh are or
could be laken end sold In interstate or
foreign commerce:
(3) Thai are used or could be used for
induotrial pel’pc see by tndes?iies In
interstate comnaerce
(d) All impoundments of waters
otherwise defined as navigable waters
tinder thea BecProTr
te) Tributaries ol ’waters Identified in
paragraphs (a) throngil (d) of this
section. including adjacent welteridr:
and
(1) Wetlands adiacent to waters
identified i” ‘.) through (e)
of this section: Provided. That waste
treatment systems (other than cooling
ponds meeting the criteria of this
paragraph ure not waters of the United
States
“NPDES” means National Pollutant
Discharge Elimination System:
“Offshore facility” means any facibly
of any kind located in, on. or undar any
of the navigable waters of the Uu ted
States, and any facility of any kind that
is subject to the jurisdiction of the
United States and is locuted in. on, or
under any other wateis, other than a
vessel or a public vessel:
“Oil”, when used in relation to section
311 of the Act, means o’l of any kind or
in any form, including, but not limted to.
petroleum. [ twi oil, sledge. cal refuse.
and & rained with was other than
dies d spod. ‘Ott. when u r
relM es to secttor 1B m) 3) of ttre
DespbvatlT Post Ad of 1974. has the
meaning p. ...ded Ia sect t 3 14J of the
Deepweter Port Act of 1974,
“Onshore facility” means any faciluy
(Including. bet not mf1ed to. motor
vehicles and rolling stock) of any kind
located In. on. or under any land withic
the United Staler, other than submerged
len d :
‘Person includes an Individual, firm,
corpcratfon, a socIatlon, and a
parthership:
“Public vessel” means a vessel owned
orbareboat chartered and operated by
the United States. or by a State or
political subdivisIon thereof, or by a
foreIgn nation, except when sucb vessol
La engaged La commerce:
“Sheen” means an iridescent
ap aarance on the surface of watan
“SIud ” means an a e t a o f oil or
oil and other matter of any kind an any
form other than dredged spoii having a
cA ,. . .d . ,*cffk gravity equivalent to
or greater than water:
“United Statea” meana the States, the
District of Colombia. the
Commonwealth of Pberto Rico. Gunrn
American Samoa. the Virgin Islands.
and the ‘fl’uet TerTitory or the Pacific
Islartdr.
“yasser means every description of
watercraft or other artificial contrivance
used, orcapabte of being used, as a
means of transportation on water other
than a public veaaeh and
‘lWetlands means those areas that
are Inundated or saturated by surfiice or
ground water at a frecj,i.iency or duration
surncient to support, and that under
normal circumstances do support, a
prevelr’i of vegetahon tyjacally
adapted for bit in saturated soil
coeslitxrs. Wetlands generally include
playa lake,. awampo. morsbes. bogs an J
similar ares, such as slough,, prairie
potholes, wet meadows, prairie nvcr
overflows. nindflats, isatorat ponds
f 1102 Appflc.sbmty
The regulations ci this part apply to
the discharg of oil prohibited by
section 3I1(b) 3} of the Act. This
Includes certain discharges Into or upon
the navigable waters of the United
States or ad oining shoi’elinea or nato or
upu the waters c i the contiguous zone.
or in connectioia with activities under
the Outer Continental Shelf Lands Act
or the Deepwater Port Act of 1974 or
that may affect natural resources
belonging to. appertaining to. or under
the exclusive management authority of
the United States (including resources
-------
10720 Federal Register I Vol. 52, No. 63 / Thursday. April 2, 1987 / Rules end Regulations
un’der the Magnuson Fishery
Conservation and Management Act).
The regulations of this part also define
the term “discharge’ for purposes of
section 18(m)(3) of the Deepwater Port
Act of 1974.88 provided under 110.11
of this part.
* 110.3 Dlschargs into navfgabi. watsrs of
such quantities as may b. harmfuL
For purposes of section 311(b) of the
Act, discharges of oil Into or upon the
navigable waters of the United States or
adjoining shorelines in such quantities
that It has been determined may be
harmful to the public health or welfare
of:the United States, except as provided
iri * 110.7 of this part, include discharges
of oil that:
(a) Violate applicable water quality
standards, or
(b) Cause 8 film or sheen upon or
discoloration of the surface of the water
or ad oining shorelines or cause a sludge
o emulsion to be deposited beneath the
surface f the water or upon adjoining
shorelines,
* 110.4 DIscharge Into contiguous zone of
such quantities as may be harmfuL
For purposes of section 311(b) of the
Act, discharges of oil into or upon the
waters of the contiguous zone in such
q(iantities that It has been determined
may be harmful to the public health or
welfare of the United Stales, except as
provided in § 1107. Include discharges
of oil that:
(a) Violate applicable water quality
standards, or
1 (b) Cause a film or sheen upon or
discoloration of the surface of the water
or adjoining shorelines or cause a sludge
o’r emulsion to be deposited beneath the
surface of the water or upon adjoining
shorelines.
§ 110.5 Discharge beyond contiguous
zone of such quantities as may be harmful.
For purposes of section 311(b) of the
Act, discharges of oil into or upon
v’aters seaward of the contiguous zone
in connection with activities under the
Quter Continental Shelf Lands Act or
the Deepwater Port Act of 1974 or that
may affect natural resources be nging
to. appertaining to. or under the
exclusive management authority of the
United States (including resources under
the Magnuson Fishery Conservation and
Management Act) In sich quantities that
I) has been determined may be harmful
the public health or welfare of the
United States, except as provided in
§ 1107. Include discharges of oil that:
(a) Violate applicable water quality
standards, or
(b) Cause a film or sheen upon or
discoloration of the surface of the water
or adloining shorelines or cause a sludge
or emulsion to be deposited beneath the
surface of the water or upon adjoining
shorelines.
*110.6 Dlscharg. prohlbitsd.
As provided in section 311(b)(3) of the
Act, no person shall discharge or cause
or permit to be discharged into or upon
the navigable wRieru nf the United
States or adpoining shorelines or into or
upon the waters of the contiguous zone
or into or upon waters seaward of the
contiguous zone in connection with
activities under the Outer Continental
Shell Lands Act or the Deepwater Port
Act of 1974, or that may affect natural
resources belonging to, appertaimng to,
or under the exclusive management
authority of the United States (Including
resources under the Magnuson Fishery
Conse”vation and Management Act) any
oil in such quantities as may be harmful
as determined in H 1103, 110.4. and
1105, except as the same may be
permitted in the contiguous zone and
seaward under MARPOL 73/78, Annex
I. as provided in 33 CFR 151.09.
§ 110.7 Exception for vesiet .nglnss.
For purpc 311(b) of the
- Act, discharges of oil from a properly
functioning vessel engine are not
deemed to be harmful, but discharges of
such oil accumulated in a vessel’s bilges
shall not be so exempt
* 110.8 Dlspersanta,
Addition of dispersants or emulsifiera
to oil to be discharged that would
circumvent the provisions of this part is
prohibited.
§ 110.9 Demonstration projects.
Notwithstanding any other provisions
of this part, the Administrator may
permit the discharge of oil, under section
311 of the Act. in connection with
research, demonstration projects, or
studies relating to the prevention,
control, or abatement of oil pollution.
§ 110.10 Notic..
Any person in charge of a vessel or of
an onshore or offshore facility shall, as
soon as he or she has knowledge of any
discharge of oil from such vessel or
facility In violation of § 110.6.
immediately notify the National
Response Center (NRC) (800-424—8802,
In the Washington. DC metropolitan
area. 426—2875). If direct reporting to the
NRC is not practicable, reports may be
made to the Coast Guard or EPA
predesignated On-Scene Coordanator
(OSC) for the geographic area where the
discharge occurs. All such reports shalt
be promptly relayed to the NRC. if ills
not possible to notify the NRC or the
predealgnated OCS Immediately, reports
may be made Immediately to the nearest
Coast Guard unit, provided that the
person in charge of the vessel or
onshore or offshore facility notifies the
NRC as soon as possible. The reports
shall be made in accordance with such
procedures as the Secretary of
Transportation may prescribe. The
procedures for such notice are set forth
in Ii S Coast Guard regulations, 33 CFR
Part 153. Subpart B and in the Nationul
Oil and Hazardous Substances Pollution
Contingency Plan, 40 CFR Part 300.
St bpart E (Approved by the Office of
Management and Budget under the
control number 2050-0046)
* 110.11 Discharge St deepwater ports.
(a) Except as provided isi paragraph
(b) below, for purposes of section
18(rr,)(3) of the Deepwater Port Act of
1974, the term “discharge” shall include
but not be limited to. any apiiling.
leaking, pumping, pouring, emitting.
emptying, or dumping into the menne
environment of quantities of oil that
(1) Violate applicable water quality
standards, or
(2) Cause a film or sheen upon or
discoloration of the surface of the waler
or adjoining shorelines or cause a sludge
or emulsion to be deposited beneath the
surface of the water or upon adjoining
shorelines
(b) For purposes of section 18(m)(3) of
the Deepwater Port Act of 1974. the term
“discharge” excludes:
(1) Discharges of oil from a properly
functioning vessel engine. (including an
engine on a public vessel), but not
discharges of such oil accumulated in a
vessel’s bilges (unless in compliance
with MARPOL 73/78, Annex I), and
(2) Discharges of oil permitted under
MARPOL 73/78, Annex I
IFR hoc 87—7283 Filed 4—i—k17 845 arnj
BiWNO COOS 5550-60-U
-------
Monday
July 1, 1991
Part 11
Environmental
Protection Agency
40 CFR Part 28
Non-APA, Consolidated Rules of Practice
for Administrative Assessment of Civil
Penaflies; Proposed Rule
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29996
Federal Register / Vol. 56. No. 126 / Monday, July 1,1991/ Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 28
[ FRL—3693—31
Non-APA, Consolidated Rules of
Practice for Administrative
Assessment of Clvii Penalties
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: EPA today proposes non-
APA, consolidated rules of practice for
its administrative assessment of civil
penalties under (1) sections 309(g)(2)(A)
and 3flfb)(6) (A) and fB) [ i) of the Clean
Water Act (CWA), 33 U.S.C.
13 19(g)(2)(A) and 1321(b)(6)(A) and
(ll)(i) ‘1: (2) section 109(a) of the
Comprehensive Environmental
Response. Compensation. and Liability
Act (CERCLA), 42 U.S.C. 9609(a), for
violations of provisions specified in
section 109(a) of CERCLA: (3) certain
actions under sections 325(b)(1), (c)(1).
(c)(2) and (d) of the Emergency Planning
and Community Right-to-Know Act
(EPCRA). 42 U.S.C. 11045(b)(1), [ c)(1),
(c)(2) and (d); and (4) civil penalties
under part C of the Safe Drinking Water
Act (SDWA). 42 U.S.C. 300h, in penalty-
only orders under this part or in
penalty/compliance orders under this
part Although the substantive
requirements of the various statutes
differ, each authorizes the Administrator
to assess civil penalties without
recourse to the Administrative
Procedure Act (APA). 5 U S.C 551 at
seq. EPA i8 taking today’s action to
consolidate and harmonize in a single
regulation the various procedural
guidances and regulations which it
presently employs in response to
Congressional direction to provide
streamlined procedure for the
assessment of certain administrative
penalties, and to establish procedures
for Class I administrative penalty
assessment pursuant to section 4301(b)
of the Oil Pollution Act of 1990. which
amends section 3 11(b)(6) of the Clean
Water Act. The authority to assess
administrative penalties was granted
and made immediately effective under
the Clean Water Act by the Water
Quality Act of 1987. effective February
4, 1987. and the Oil Pollution Act of 1990,
effective August 18, 1990; under the Safe
Drinking Water Act by the Safe
Code referei,cea to 33 U S C 1321 anticIpate
codification of elemenis ci ihe Oi Pollution Act of
1990, Public Law No. 101—380.104 Stat 484. ai that
local ion
Drinking Water Act Amendments of
1986, effective June 19, 1988, and under
CERCLA and EPCRA by provisions of
the Superfund Amendments and
Reauthorization Act (SARA). effective
October 17, 1986. Non-APA
adrnimstrative penalty authority is
granted to the Administrator explicitly
by sections 309(g)(2)(A) and 311(bfl6)(A)
and (Bili) of the Clean Water Act, 33
U.S C. § 1319(g)(2)(A) and 1321(b)(6)(A)
and (B)(i), and section 1423(c) of the
Safe Drinking Water Act. 42 U.S C.
300h—2(c). In the case of CERCLA and
EPCRA, the non-APA authority is
implicit because Congress specifically
prescribed the use of the Administrative
Procedure Act for the Administrator’s
assessment of Class 11 penalties under
CERCLA and EPCRA but was silent as
to procedures to be used to assess other
civil penalties.
Congress has expressed its preference
for streamlined administrative penalty
procedures designed to assure
protection of basic constitutional
liberties, which also advance the goals -
of compliance with environmental
requirements through the deterrent
effect of rigorous and efficient
enforcement actions. See, e g., Sen. Rep.
99-50, 99th Cong., 1st Sess. 26 (1985),
reprinted in A Legislative History of the
Water Quality Act of 1987, volume 2. at
1448.
DATES: Comments on this proposed rule
must be submitted on or before August
30, 1991.
ADDRESSES: Persons may mail
comments on this proposed rule to
David Drelich or Elyse DiBiagio-Wood.
Office of Enforcement. Water Division
(LE—134W), room 3109, U S
Environmental Protection Agency, 401 M
St SW., Washington, DC 20480. The
adrnirnstrative record of this rulemaking
is available and persons may inspect
comments at that address.
FOR FURTHER INFORMATION CONTACC
David Drelich (202—382—2949) or Elyse
DiBiagio-Wood (202—475—8187), Office of
Enforcement, Water Division (LE—
134W). U.S Environmental Protection
Agency, 401 M St. SW., Washinglon. DC
20460.
SUPPLEMENTARY INFORMATION: On
February 4. 1987, Congress amended
section 309 of the CWA. 33 U.S C 1319.
by passage of section 314 of the Water
Quality Act, Public Law 100—4, to
authorize the Administrator to assess
civil penalties for violations of the
CWA. The amendments to Section 309
created a new subsection 309(g) and
established two classes of
administratively assessed civil
penalties, which differ with respect to
maximum assessment and prescribed
procedure.
CWA Class Ii administrative
penalties may not exceed $125,000 and
are required by law to be assessed in
accordance with section 554 of the
Administrative Procedure Act (APA). 5
U.S C. 554. Therefore, the Agency has
chosen to use 40 CFR Part 22—EPA’s
Consolidated Rules of Practice
Governing the Admin Istrative
Assessment of Civil Penalties and
Revocation or Suspension of Permits—
for the administrative assessment of
Class 11 civil penalties. Class 1
administrative penalties may not exceed
$25,000. An assessment action under
Class I must provide the respondent a
reasonable opportunity to be heard and
to present evidence, but is not subject to
sections 554 and 556 of the APA. Class I
penalties under the CWA are presently
assessed in accordance with Procedural
Guidance for Class I Proceedings. which
was published in the Federal Register.
See 52 FR 30730 (August 17, 1987). The
text of the procedural rules proposed
today which relate to section 309(g) of
the Clean Water Act. 33 U.S.C. 1319(g).
will in the near future supersede as
guidance the 1987 procedural guidance
for CWA Class I actions.
On August 18. 1990, the President
signed into law the Oil Pollution Act of
1990, Public Law 101—380, 104 Stat. 484,
which had been passed unanimously by
both houses of Congress. Section 4301(b)
of the Act amended section 311(b)(6) of
the Clean Water Act by replacing the
existing text with Class I and Class II
penalty procedures drawn from section
309(g) of the Act, as created by the
Water Quality Act of 1987. The maior
differences between section 309(g) and
new section 3i1(b)(8) are that Class I
proceedings under section 311(b)(6) are
not subject to participation by public
commenters, that section 311(bJ(6)
actions are not subject to a State
consultation requirement, and that both
classes of proceedings are available
both to the Administrator and the
Secretary of the department in which
the Coast Guard is operating The text of
the procedural rules proposed today
which relate to section 311(b)(6) of the
Clean Water Act, 33 U.S.C. 1321(b)(6).
will in the near future. be followed as
guidance by the Environmental
Protection Agency as the penalty
assessment procedure pending the
Administrator’s formal promulgation of
regulations.
On June 19. 1988, the Safe Drinking
Water Act was amended to provide for
the administrative assessment of civil
penalties under both Part B [ the Public
Water Supply Program (PWS)l and Part
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Federal Register / Vol. 56, No. 126 / Monday, July 1, 1991 / Proposed Rules
C [ the Underground Injection Control
Program (UIC)) of the SDWA. Pubhc
Law 99—339, 100 Stat. 642 (l986).
Section 1423(c) of the SDWA, 42
U.S C. 300h—2 (c), which applies to
underground injection activities.
provides for administrative assessment
of civil penalties of not more than $5,000
for each day of violation of an
applicable UIC program requirement
regarding oil and gas production and
recovery, up to a maximum of $125000.
That subsection also authorizes
administrative penalties of not more
than $10,000 per day for each day of
violation of other applicable UIC -
program requirements, up to the same
maximum of $125,000. While this section
of the Act requires notice and an
opportunity to be heard, Congress
specifically provided that these hearings
are not subject to section 554 and 556 of
the APA. The provisions of this portion
of the SDWA have been implemented
under the statute and implementing
Agency guidance issued November 28.
1986.
SARA became law on October 17,
1986. Title I of SARA amended CERCLA
by adding Section 109, 42 U.S.C. 9609,
which authorizes the President to assess
civil penalties for violations of specified
provisions of CERCLA. Title 111 of
SARA, 42 U.S.C. 11001 et seq.. is also
known as EPCRfiI, Section 325(b) of
E.PCR.A, 42 U.S.C. 11045(b). authorizes
the Administrator to assess civil
penalties for violations of section 304 of
EPCRA, 42 U.S.C. 11004. Section
325(c)(1) of EPCRA. 42 U.S.C.
11045(c)(1), authorizes the Administrator
to assess civil penalties for violations of
sections 312 and 313 of EPCRA. 42
U S C. 11022 and 11023.
Section 109 of CERCLA, 42 U S C.
* 9609, and section 325(b) of EPCRA. 42
U S C. 11045(b), establish two classes of
admirustrative penalties, which differ
with respect to procedure and maximum
assessment. The provisions for Class 1
penalties allow for a maximum penalty
of $25,000 per violation. The provisions
for Class II penalties authorize a
maximum penalty of $25,000 per day of
violation and a maximurn penalty of
$75,000 per day of violation for a second
or subsequent violation. Congress
explicitly subjected these Class II
proceedings to section 554 of the APA, 5
U.S C 554, and consequently EPA
Within part 8. section 14141g)(3U0) of the
SOWA, 42 usc 300 5—31 5113)(Bl. which applies to
drinking waler supplier., provide. for a maximum
adminiatra Live penalty asee.smenl ol $5 000 for the
violation of a PWS compliance order end
spociuicetly require, notice arid an opportunity for a
hearing in accordance with the APA Thu P OVI5IOfl
is therefore administered under 40 CFR pen 22. and
is not aubject to these proposed rule.
administers these proceedings under 40
CFP . Part 22, and shalt riot administer
them under these proposed rules.
Section 325(c) of EPCRA, 42 U.S C.
11045(c). is silent as to the type of
administrative hearing procedures to be
employed but authorizes penalties of up
to $25,000 for each violation under
section 325(c) (1), and $10,000 for each
violation under section 325(c)(2) Under
both provisions, separate penalties may
be assessed for each day of violation.
Section 325(d) of EPCRA. 42 U S.C.
11045(d), provides for the assessment of
$25,009 per claim for frivolous trade
secret claims.
Today’s proposed rule will apply to
Class I administrative civil penalty
proceedings under section 109(a) of
CERCLA, 42 U.S C. 9609(a), and section
325(b)(1), (c) [ 1). (c)(2). and (d)(1) of
EPCRA, 42 U.S.C. 11045(b)(1). (c)(1).
(c)(2) and (d)(1) It will apply to
violations of sections 304. 311, 312.
322(a)(2), 323(b). 325(c)(2) and 325(d) of
EPCRA, 42 U.S C. 11004, 11021, 11022,
11042(a)(2). 1 1043(b). and 11045(c)(2) and
(d). respectively. At present, the Agency
pursues violations of the listed sections -
of EPCRA pursuant to 40 CFR part 22.
The Agency solicits comments on
whether it should (1) continue its
exclusive use of part 2.2 for such EPCRA
violations: (2) use part 28 procedures
except for violations of section 313 of
EPCRA, 42 U.S.C. 11023 (as provided by
this proposal); or, (3) exclusively use
part 28 for such EPCRA violations.
EPA is presently administering these
statutes through various guidances and
regulations. Although this approach is
legally effective, the Agency recognizes
the advantages, both to the regulated
community and to itself, of
appropriately consolidating and
harmonizing in a promulgated regulation
its procedural rules for non-APA
enforcement proceedings. Use of a
single set of “Class I” regulations will
reduce confusion by Agency
decisionmakers and enforcement staffs.
provide the regulated commurnty with
an essentially uniform set of procedural
rules, and conform to Congress’ and the
Agency’s desire to employ expedited
penalty assessment procedures The
resulting familiarity with the
proceedings by all participants should
provide for more timely and efficient
proceedings. A uniform administrative
regulation helps assure procedural
fairness through a more consistent
administration of fundamentally similar
statutory provisions.
The Agency recognizes, however, the
need for certain distinctions in these
regulations based upon varying
statutory or program requirements. The
29997
proposed regulation incorporates these
distinctions. The Safe Drinking Water
Act and section 309(g) of the Clean
Water Act, for example. authorize
interested persons to partic!pate in
administrative penalty proceedings.
while CERCLA. EPCRA. and section
311(b)(6)(B)(i) of the CWA do not. The
proposed rules therefore include public
participation rights for SDWA and CWA
309(g) proceedings alone See, e g.
§* 28.2(g). 26.20(c) and 28.26(g)(5).
EPA also recognizes that the
administrative imposition of penalties
may affect constitutionally protected
interests of those against whom actions
have been taken, and has taken
precautions to ensure that individuals
subject to a finding of liability for a civil
penalty will have all the protections that
due process of law requires. These
include, for example, an impartial
Presiding Officer, the right to a hearing
on liability with a right of cross-
examination, and a final Agency action
solely based on the administrative
record and applicable law. In the
interest of streamlining the
administrative proceeding, these rules
contain short time deadlines; limit the
length of legal arguments; limit the
scope and time for administrative
discovery, ban adnitnistrative appeals;
and, in Safe Drinking Water Act and
Clean Water Act 309(g) actions, limit the
participation of commenters.
EPA believes that this proposal
provides all of the procedure necessary
to meet constitutional due process
requirements under the leading Supreme
Court case. Mathews v. Lldridge. 424
U.S 3 9 (1976) In that case, the Supreme
Court set out a three-part test for
determining whether the administrative
procedure provided to an individual
prior to the deprivation of a property
interest by the government meets the
due process requirements of the Fifth
Amendment. The Malhewstest involves
balancing the magnitude and nature of
the individual interest at stake, the
benefit of additional procedures in
reducing the risk of erroneous
deprivation of that interest, and the
governmental interest in not providing
such additional procedures. Although
the procedures proposed today
streamline the adjudicatory process
provided for analogous administrative
hearings under the APA, the proposed
rules eliminate none of the
constitutional elements of such hearings.
These procedures allow a full
opportunity for the person subject to an
administrative penalty to review and
challenge the evidence of violation and
degree of sanction Since these
procedures allow for a complete. though
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29993
Federal_Register LV . 56, No. 12.8 (Monday. July 1, 1991 f Proposed Rules
striamhned, adjudication, there would
be little benefit to the respondent in
more extensive or attenuated
pror edures. but more than a little cost to
the Agency and the public.
EPA has tailored its procedures here
for use in the less complex cases
Congress intended would be subject to
expedited administrative penalty
proceedings. Not only did Congress
indicate a strong public interest in
streamlined administrative penalty
proceedings, as discussed above, but
EPA also anticipates issuing an
increasing number of orders as part of
its enforcement efforts under these new
authorities. As a result, there may be a
potentially dramatic increase in the
number of these hearings. Subjecting all
of these actions to the more traditional.
APA-style adjudications would
enormously Increase the costs and
personnel time incurred for such
hearings and cause significant delays.. It
would decrease the important deterrent
value of these enforcement efforts and
potentially cripple enforcement efforts
Agency-wide by overwhelming the
Agency’s Administrative Law Judges. In
response to these concerns, today’s
proposal provides for several Limovative
procedures. Further, the Agency does
not expect it will be able to draw its
Presiding Officers from the existing
ranks of EPA’s Administrative Law
Judges. Presiding Officers under this rule
are to be neutral Agency attorneys, but
not necessarily Administrative Law
Judges. See 28.2(n ). Establishing a
supplementary corps of Agency
decisionmakers will enable EPA to
conduct many more administrative
penalty actions than is presently
possible.
Therefore, under the Mathews
criteria, these proposed procedures
provide all the process due for
assessment of administrative penalties
under the new authorities.
Two aspects of these proposed rules
deserve special mention. First, the
Agency’s tentative decision not to
entertain comments on the
recommended decision was reached
after reviewing the applicable judicial
decision, discussed below, and after
carefully balancing the interests of the
parties and the Agency in having an
additional comment opportunity against
the expressed intent of Congress to
streamline the administrative process
for the types of violations covered by
these rules, See S Rep. No. 50, P9th
Cong. let Sess.. cited above, and H.
Rep 962, 99th Cong.. 2d Sees. 207
(October 3, 1980) (regarding section 109
of CERCLA. 42 U.S.C. 9609).
An examination of existing case Law
c isclosed only one case. Koniag. Inc..
the Village of Vyak v. Andrus. 580 F.2d
601 (I) C. dr.), cert. denied. 439 U.S.
1052 (1978 ) . which suggests that due
process requires that the parties be
permitted to submit briefs on
recommended adriunistrative decisions
before a final decision is rendered. The
Agency concluded this case is
distinguishable, however, on both the
facts and applicable Law.
The Koniag case involved a decision
by the Secretary of the Interior as to the
eligibility of a native Indian tribe to
assert claims to traditional Ind ian lands.
A decision by the Secretary of Interior
denying the Indians eligibility to claim
property was rendered without giving
the Indians any access to two
intermediate recommended decisions
end despite explicit Congressional
direction for tribal participation in the
Secretary’s deterrnrnation. Under
today’s proposal, EPA will publish the
Presiding Officer’s recommended -
decision at the time of its transmission.
and is following a general Congressional
mandate to establish expedited
enforcement procedures.’ In Koniog, the
statute under which the rights of the
Indians to assert claims to property was
being determined did not prescribe any
procedures for conducting the beatings
but did prescribe that a decision shcmld
be reached with “maximum
participation by Natives in decisions
affecting their rights and property.” 580
F.Zd at 609. Under the facts of that case
and applicable indian law, and in the
absence of congressional authorization
to the contrary, the court held that the
Indians should be accorded due process
in accordance with the APA, which
provides for interim appeals.
Unlike Interior’s practices described
in Koniag. the rules proposed today are
in response to explicit or implicit
statutory direction to conduct hearings
whLch are not subject to section 554 or
558 of the APA. In addition, the property
interest being protected under the two
laws are quite different. In Koniog. the
Secretary’s decision to deny eligibility
prevented the Indians from laying claim
to their aboriginal lands. The purpose of
the procedures proposed today,
however, is to determine appropriate
liability for violations of environmental
laws.
‘Ftxrlhcr. under t 2a28(kj of the piopo e4 ruiea.
the Peaid n 0!flcer may sobclt from the pertlea
propoeed recommended findinga of fad arid
conctuatona of taw. and such submtuions u ie
made available to the Regional Admmiauator
pureuani to U Z82. b ( 5) and 28v(al(zl.Compaze
580 F2d at 605.115(1111 appeara that the Secretary
did not even see the propoeed fmding of fed
aubmitted by the villagea to the gthnmistraflve law
judgea.’
There does not appear to be any
inconmstency with the Koniag case or
denial of due process under these rules.
Under the proposed rules, Agency
decisions must be based on the
administrative record. The rules provide
ample opportunity for the parties to
Introduce relevant factual and legal
information into the administrative
record during the conduct of an action,
require that the Presiding Officer’s
recommended decision contain findings
of fact and conclusions of law based on
the record and that the decision be
made public. 28 27(b). The proposed
rules have stringent neutrality
requirements for the Presiding Officer at
* 28.4(c), and as a further check on the
exercise of hia authority allow either
party to request his replacement if his
conduct exceeds permissible
boundaries See § 28 13(a). The
recommended decision is public and the
Regional Administrator must, pursuant
to * 2 8.28(a). either adopt the
recommended decision, or write a
different decision which contains both
his findings of fact and conclusions of
law based on the record arid explains
why he rejected the Presiding Officer’s
recommended decision. This procedure
fully protects the respondent’s ability to
appeal the final Agency action to federal
court, based on the administrative
record (which includes the
recommended decision) and applicable’
law. See sections 309(g)(8)(A) arid
311(b)(6)(G) of the Clean Water Act, 33
U.S C. 1319(g )(8)(A) and 1321(b)(8J(C)
section 1423(c)(6) of the Safe Drinking
Water Act. 42 U.S.C. 300h-.2(c)(6);
section 109fa)(4) of CERCLA, 42 U.s C.
9609(a) [ 4 ) . and section 325(f) of EPCRA,
42 U.S.C. 11045(1).
Nevertheless, because the issue
requires a balancing between the
benefits of an additional comment
opportunity end the Intent of Congress
for art expedited procedure, the Agency
requests ccm.uients on adding a short
comment opportunity on the Presiding
Officer’s decision. To be consistent with
the other sections of the regulations,
which expedite decisionrnaking, this
opportunity should be limited in time
and scope First, corriments by any party
regarding the Presiding Officer’s
recommended exercise of the Agency’s
discretion, would be limited to the
record and available remedies of law.
Second, the comments would be made
in a specific time (eg., ten days) after
the recommended decision, and be brief
(e.g.. five pages or less).
Second. to streamline the
administrative process, EPA has
decided to prohibit interim.
administrative appeals. EPA believes
-------
Federal Register /Vol. 56. No. 128 / Monday. July 1. 1991 1 Proposed Rules
29999
thpt no respondent would be
unconstitutionally prejudiced by this
reform. Any appeal to the Administrator
of a Regional Administrator’s decision
would be based on the administrative
record and applicable law, and argue
that the Regional Administrator acted
illegally or outside his discretion. Those
are the precise grounds available to any
respondent in a judicial appeal under
applicable law, Consequently, the
Agency’s prohibition of administrative
appeals merely eliminates an appellate
redundancy—the sequential availability
of the same appeal before the
Administrator and a district court.
The Agency considered, but rejected.
explicitly authorizing the Presiding
Officer to take the final Agency action.
without recourse to a recommended
decision or consultation with any other
Agency officer. The Agency has
concluded that the procedure it proposes
will provide a clearer record of decision.
and that the appropriate Agency
decisionmaker in significant penalty
actions should be the Regional
Administrator or his delegate. These
rules do not explicitly prohibit a
Regional Adiniruatrator from delegating
his authority to take a final Agency
action in an action conducted under this
part to any other neutral officer,
including the Presiding Officer, but the
Agency does not expect such a
delegation to occur in significant penalty
actions.
EPA is not changing the scope of its
Consolidated Rules of Practice (40 CFR
part 22). In programs under part 22,
either the underlying statute or existing
practice provides the basis for the use of
the more traditional, APA-based
procedures. For the programs affected
by today’s proposal, however, the
Agency believes that its new approach,
which provides a greater emphasis on
settlement and the finality of Regional
decisions, will carry out Congressional
intent in the enforcement of the
environmental laws.
Many of the provisions of tht8
proposal interrelate, such as the section
on prohibited communication, definition
of the administrative record, and
prohibition of administrative appeals.
These proposed regulations should
therefore be read as a whole, not as a
collection of distinct and unrelated
sections.
SECTION-BY-SECTION ANALYStS
Subpart A—General Provisions
Section 28 ‘1 Purpose and Scope
This section describes the purpose of
the rules the Agency proposes today,
which is to set forth procedures for the
timely and efficient initiation and
administration of administrative orders
under the several referenced statutory
provisions. EPA believes that this is
consistent with the aim of Congress to
establish expedited or informal
administrative enforcement procedures
under these provisions. See Sen. Rep.
99—50. 99th Cong., 1st Sess. (1985).
reprinted in A Legislative History of the
Water Quality Act of 1987, volume 2., at
1448 (Section 309(g) of the Clean Water
Act); Sen. Rep. 99—56, 99th Cong.. 1st
Seas. (1985), at 17—18 (Safe Drinking
Water Act): and Sen. Rep. 99—11. 99th
Cong., 1st Seas. (1985) at 9 (cERCLA).
To that end, the Agency proposes to
adopt procedures within these proposed
rules, such as limitations on documents
and prehearing exchanges, various
deadlines, and the unavailability of
administrative appeals, that will provide
a speedy and efficient resolution to
actions taken under this proposed part.
Nothing In this proposed part affects
the right of the Agency to take
appropriate administrative action. such
as requu’lng information, making
Inspections, or Issuing compliance
orders, or initiating civil or criminal
actions where authorized by law, or
taking any other lawful action.
Section 28.2 Definitions.
The definitions section is
comprehensive and exclusive for those
terms it defines. The Agency
consciously chose not to employ the
usual method of saying the defined word
“includes” or “includes but is not limited
to.” Consequently, the definitions for
“Administrative record” and “Public
notice” are long and detailed but, like
other definitions provided in the rule,
exclusive, Each definition is as specific
as is necessary to employ It effectively
within the proposed part. “Person,”
although not specifically defined by
these proposed regulations, is
understood by the Agency to have the
meaning provided for that term by
applicable law.
(a) Administrative complaint. In each
action initiated under these proposed
procedures, the administrative
complaint must state with reasonable
specificity the nature of the alleged
violations in order to ensure that the
respondent receives fair notice. The
complainant must propose a penalty as
authorized by the applicable law. This
requirement does not mean that an
administrative complaint must name a
sum certain as requested relief, it does
mean that a complainant may not
request more in penalties than is
authorized by the applicable statute. In
actions under the Safe Drinking Water
Act in which the complainant is seeking
compliance as well as penalties, the
administrative complaint may also
propose a reasonable time for
compliance. In certain SDWA actions,
however, such as failure to provide
information or monitor an injection well,
it is inappropriate for an administrative
complaint to provide additional time for
compliance with the law. Finally, in
order to ensure the regularity of Agency
administrative enforcement practice anc
as a matter of sound administrative
practice, this definition requires a
certification of the legal sufficiency of
the administrative complaint by Agency
counsel.
The Agency considered, but rejected.
the use of the term “proposed order”
instead of “administrative complaint.”
Section 309(g)(2)(A)(1) of the Clean
Water Act. 33 U.S.C. 1319(g)(2)(A)(1).
refers to a “proposed order,” as does
section 1423(c)(3)fB) of the Safe Drinking
Water Act, 42 U.S.C. 300h—2(c)(3) [ B).
However, because constitutionally
protected interests are at stake in these
proceedings, EPA does not believe that
it Bhould purport to make “findings” in
an order before it has provided the
respondent with an opportunity for a
hearing on liability. In an administrative
complaint, the enforcement staff of the
Agency makes allegations as to liability.
and (except in certain consent
proceedings) only after the respondent’s
opportunity for a hearing regarding
liability may a neutral Agency official
make any “findings” of violative
conduct. Consequently, although two
statutes refer to a “proposed order,”
EPA believes that the initiating
document in an action under this part is
more appropriately styled an
“administrative complaint.” The Agency
notes that in the Class I provisions of
the Oil Pollution Act of 1990. Congress
dropped the reference to “proposed
order” in favor of a reference to a
“proposal to assess [ a] penalty” Section
4301(b) of Public Law No 101—380.
(b) Administmtive record The
Agency proposes a definition of
administrative record sufficiently
comprehensive to include all material
information required by the Regional
Administrator to take a final Agency
action to a decision under this part. A
document is not and cannot be part of
the administrative record unless it is
filed with the Hearing Clerk and fits one
of the criteria provided by paragraphs
(1) through (18) of this subsection. 4
in certain Clean Waler Act and Sale Drtnking
Water Act cases, a proposed consent orier end
accompanying written explenahon are lodged with
the Hearing Clerk pursuant to * 2&zslb) r’f these
proposed rules—not flied—and therefore .Io not
meet the filing criterion established ui this
Cent ,n,, O
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Parties, corumenters. or other persons
may not add documents to the
administrative record at will. Except re.
the case of a proposed consent order.
documents nominated or submitted by a
party or any other person to the Hearing
Clerk do not, by that act alone, become
part of the adnnnislrative record. If a
participant fails to meet a deadline for
the submission of a document for
inclusion in the adzntrustrative record.
the late submission is excluded from the
administrative record. See 28.2 (b) (9)
and (15] and 28.4(b)(1O). The Agency is
proposing to limit burdensome
submissions and unsolicited pleadings
and legal arguments in actions under
this part. See. e.g., 28.8 (Limitations on
written legal arguments and statements).
The limitations and restrictions, which
are designed to improve the speed and
efficiency of hearings conducted under
this proposed rule. may not be
circumvented by parties flooding the
record with volummous documents. It
will, however, be possible for a person
to add a document into the
administrative record if. pursuant to
paragraph (15). the Presiding OffIcer
finds it relevant to the action and not
otherwise excluded from. the record by
the limitations of this part -
Under § 28.16(e) of the proposed rule,
appropriate Agency staff shall open the
administrative record “upon issuance of
the administrative complaint.” Except as
provided by § 28.17 of this proposal.
documents filed with the Hearing Clerk
are available to the public for Inspection
and copying, and in Clean Water Act
and Sale Drinking Water Act actions the
Agency is proposing to provide notice of
their availability according to the
requirements of H 28.2(q)(11) and
28.16(d) of this part. Documents
concerning an action that are not filed
with the Hearing Clerk remain outside
the disclosure rules of § 2817 of this
part, but may remain subject to the
Freedom of Information Act and the
applicable restrictions referenced in
§ 28 17. The administrative record will
be certified by the Presiding Officer at
the time of the transmission ala
recommended decision. § 28.27(a)(1).
The Regional Administrator files with
the Hearing Clerk any subsequent
additions to the record pursuant to
§ 28 28(d). In those cases where there is
no recommended decision (i ,, when
signatory parties propose that the
definition Theac documcnt. are excluded from the
adrnlniatrniive record by deliniii a, except to ibe
ecient provided by tS 28. 1bU5J end 28.2.8kb)
(concerning en alternative deflr tIen of toed for
ccn nt proceedinga ) Other docwneni. filed with
the Hearing Clerk are aleo outside the
adminiatrative record If they fail to fit oae of the
criteria a! paragraph. (i) through (18).
Regional Arirninictrator approve a
consent order), the administrative
record—without the late evening
certification of the Preaidmg Officer—is
comprised of documents filed with the
Hearing Clerk by the participants. See
§ 28.22(b)(5).
Paragraph (1) provides that
documentation relied upon by the
complainant that supports the
allegations as to liability in the
administrative complaint, upon filing
with the Hearing Clerk, become part of
the adminietrative record. Paragraph (1)
does not refer to documents relating to a
proposed penalty or, In the case of the
Safe Drinking Water Act, a compliance
remedy. “Documentation” as used in
this paragraph does not refer to
privileged internal Agency
communications, such as penalty
settiement calculations. attorney-client
communications, or memoranda relating
to the complainari.t’a decision to initiate
the action. The documentation required
by this paragraph rela tea only to factual
matters, such as reports submitted by
the respondent to the Agency. or
relevant portions of inspection reports.,
that support an allegation that the
respondent has violated applicable law.
Paragraph (2) provides that the
administrative record also inchides,
upon Its filing with the Hearing Clerk,
any Agency record of a previously
adjudicated violation by the respondent
of any federal pollution control or
environznental statute or regulation.
Paragraph (3) includes in the
administrative record both the
administrative complaint and proof of
its service, when filed with the Hearing
Clerk. Filing the administrative
complaint opens the administrative
record. See 28.16(e).
Paragraph (4) applies only in an action
undertaken pursuant to section 309(g) of
the Clean Waler Act and implements
section 309(g)(1) of the CWA. 33 U.S.C.
1319(g)(1), which requires that the
Administrator consult with the “State in
which the violation occurs” before
assessing an administrative civil
penalty. See § 28.19. This provision does
not require that a summary of such a
consultation become part of the
administrative record, only that the fact
that the consultation occurred, or that
the State received an opportunity to
consult, be recorded.
Paragraph (5) provides that a copy of
the public notice required by § 28.16(d)
in Clean Water Act and Safe Drinking
Water Act actions and proof of its
publication are part of the
administrative record upon being filed
with the Hearing Clerk,
Paragraph (6) provides that, upon
fling with the Hearing Clerk, the record
of the designation of the Presiding
Officer is part of the administrative
record. A Presiding Officer may be
designated pursuant to the terms of
§ 28.13(b) or § 28.16 (h), or upon the
request by a Presiding Officer that he be
replaced pursuant to * 28 12(c)(3) or
otherwise. A Region may have a
standing Presiding Officer who hears all
cases under this part.
Paragraph (7) provides that the date of
lodging of a proposed consent order
under the Clean Water Act or Safe
Drinking Water Act becomes part of the
administrative record of an action under
this proposed part. The date of lodging
is significant to the record of the action
because, pursuant to § 28.22 [ b)(2), the
action is suspended upon its lodging.
This paragraph does not provide that the
proposed consent order upon lodging
itself becomes part of the administrative
record; it does aoL See § 28.2(b)
( ‘AcIministnrtive recwv’ means the
following documents that are filed with
or by the Hearing Clerk.. .“, [ emphasis
added]) and § 2B2(b)(1 t)(iii) :
(“AthninistrvLive record means.
[ a ny relevant document which the
Presiding Officer finds will assist in the
timely and efficient resolution of the
action and is not. . . (1]odged with the
Hearing Clerk pursuant to
§ 28.22(bJ(1)(i) of this part”). See also
2&4 c)(5).
Paragraph (8) ensures, in conjunction
with § 28.4(a) and (h), that all sigruficant
actions by the Presiding Officer are
reduced to a signed writing, filed with
the Hearing Clerk and thereafter made
part of the adnimistrative record.
Paragraph (9) references relevant
provisions of the proposed rules which
lurut document length and require or
allow the filing of documents with the
Hearing Clerk. This paragraph provLdes
that if the filing is timely and otherwise
conforms to applicable requirements.
such documents are to become part of
the administrative record in the action.
Conversely, the penalty for untimely
filing with the Clerk—or the filing of
overlong documents—is that the
documents are excluded from the
administrative record and may not be
admitted by the Presiding Officer
pursuant to § 28.2(bJ(15). For example, in
order to become part of the
administrative record, comments by the
public on the adnunistrotl%e complaint
must be timely according to the
requirements of § 28 20(c) of the
proposed rule. The identity of persons
who become commenters (and
subsequently listed by the Hearing Clerk
pursuant to 28.Slb} of thr proposed
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part) are included by this paragraph as
pail of the administrative record of an
action wider this proposed part.
Paragraph (10) includes in the
adminiBtrative record, upon its filing
with the Hearing Clerk, the record of
arty hearing conducted under § 28.28 of
the proposed part. The Presiding Officer
must create and file such a record
pursuant to § 28.26 (j) of this part.
Paragraph (ii) provides that the
recommended decision of the Presiding
Officer is part of the administrative
record of the proceeding According to
§ 28.27(b), the Presiding Officer is
required to file the recommended
decision with the Hearing Clerk at the
time of its transmission to the Regional
Administrator.
Paragraph (12) includes in the
administrative record, upon filing with
the Hearing Clerk, the record of various
actions of the Regional Administrator or
Administrator which occur after the
Presiding Officer’s role in an action is
concluded, or which concern decisior.s
by the Regional Administrator relating
to the Presiding Officer.
Paragraph (13), wl4ch refers only to
proceedings under section 309(g) of the
Clean Water Act, includes in the
administrative record any evidence
presented to the Regional Administrator
pursuant to * 28.30 regarding a petition
to set aside an order. Evidence
presented by a commenter that is not
determined by the Regional
Administrator to be “material evidence
not considered in the issuance of the
order” (see section 309(g)(4)(C) of the
CWA, 33 U.S.C. 1319(g)(4)(C), and
4 28.30(a)) is included in the
administrative record for the purpose of
allowing judicial review of the decision
of the Regional Administrator whether
or not to set aside an order under
4 28 30(c)
Paragraph (14) provides that certain
Agency policies are part of the
administrative record—those that
concern the assessment of a civil
penalty, but not those that relate to how
the Agency settles with a respondent on
a civil penalty. As used in this proposal,
a “policy concernIng the assessment of
an administrative penalty” does not
include a penalty settlement-only policy
(or such portion of a more
comprehensive penalty policy that
addresses settlement penalty
calculations). For example, this
subsection does not reFer to the Clean
Water Act Penalty Policy for Civil
Settlement Negotiations, a settlement-
only policy; Issued on February 11, 1986.
See also, eg., 4 § 28.2(b)(15)(ii),
28.4(c)(5) and 2826 (d) and (e).
Paragraph (15) describes the residual
authority of the Presiding Officer to add
documents to the administrative record
which are not otherwise excluded by the
provisions of the proposed rule. The
admission of such documents must
promote the purpose of the proposed
rules—the timely and efficient
resolution of an action. The Presiding
Officer should not admit documents of
attenuated relevance into the record.
Under this standard. the admission of
voluminous records Is to be discouraged.
A Presiding Officer may not admit
documents into the record which ignore
length or scope limitations, which are
submitted too late, or are excluded
entirely by the rule against prohibited
communication. He also may not admit
documents as they relate to the parties’
settlement positions in this or analogous
actions, relate to a challenge of a final
State or Agency action, or are excluded
by sanction, whether imposed by an
Agency decisionmaker or by operation
of the proposed rule. Compare
4 4 28 4ta){1) [ xi ), and 28.13(c). and
28.24(e)(2) (sanctions imposed by
Agency decisionmaker) with
4 28 24(e)(1) (sanctions imposed by
operation of law.)
The limitations and sanctions
established at some length and detail in
these rules are the means to achieve the
purpose of timely and efficient
adiudications, and limit the size of the
administrative record accordingly. The
Presiding Officer has the authority to
include in the record documents not
otherwise barred from the record to
avoid injustice or to improve the
Regional Administrator’s understanding
of relevant facts which bear on any final
Agency action he may take. As staled in
§ 28.14(a) of this proposal, the action of
the Presiding Officer in allowing or
disallowing the introduction of
documents into the administrative
record is not subject to any interlocutory
administrative appeal.
Paragraph (16) provides that any
record of recusal by an Agency
decisionmaker, upon filing with the
Hearing Clerk, is part of the
administrative record.
Paragraph (17) provides that any
record of the respondent’s payment of a
civil penally is included as part of the
administrative record of an action under
the proposed rule. See also 4 28 5(d).
Paragraph (18), which relates only to
an underground injection control action
requiring compliance, provides that any
record of the respondent’s compliance
with the terms of the administrative
order is included as part of the
administrative record of an action under
the proposed rule. See also 4 28 5(d).
(c) Administrator. Administrator is
defined as the Administrator of the
United States Environme ital Protection
Agency, or his delegate. See. eg., 4 28 29
(sua sponte review). fri any matter in
which the Regional Administrator acts
in a decisionmakuig capacity under the
proposed rule, the definition provided in
subsection (s) will apply.
(d) A,gency. Agency is defined as the
United States Environmental Protection
Agency.
(e) Agency counsel. Agency counsel i.
any enforcement attorney assigned to
the action.
(I) Agency decisiozuvaker. Agency
decisionmaker means any Agency
employee who takes final Agency action
in an action under this proposed part. or
any Agency employee who is not art
“interested person” as defined by
subsection (k), who advises such a
person.
(g) Commenier. This term applies only
to actions undertaken pursuant to the
Safe Drinking Water Act and section
309(g) of the Clean Water Act and
implements the requirements of section
309(g)(4) of the CWA, 33 U.S C.
1319(gJ(4), and section 1423(c)(3) of the
SDWA, 42 U.S.C. 300h-2(c)(3). A
“commenter” has specific rights under
those statutes to participate in the
administrative process. Consequently.
the term “participant” in 4 28.2(1) and
elsewhere in this proposed part, for
purposes of the Safe Drinking Water Act
and section 309(g) of the Clean Water
Act, includes “coinmenters.”
This definition and the deadline of
§ 28.20(c) of the proposed rule
distinguish between active participants
in ‘ta CWA and SDWA penalty
proceedings, ai d those who wish only t
communicate with the Agency on the
subject of the proceedings. The Agency
notes that the comments of persons whc
do not become participants in the
proceeding do become part of the
administrative record if they are
submitted pursuant to the requirements
of 4 28.20(c)(1). The requirements for
“participant” (“commenter” as
“participant”) status are: (1) Timeliness;
(2) self-identification; and (3) submission
of appropriate comments. EPA believes
[ hat these requirements are reasonable.
administratively necessary, and do not
unfairly burden members of the public
ho wish to participate in the action.
The requirements set forth in this
subsection and in 4 28.20(c) allow EPA
to Identify early in the administrative
process a complete list of comnienters,
and thereby Improve the efficiency and
timeliness of the proceedings. As a
matter of fairness to the parties. and to
promote timely and efficient actions,
persons who nominate themselves as
commenters after the deadline
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Federal Register / Vol. 56, No. 126 / Monday, July 1, 1991 / Proposed Rules
prescribed in § 28.20(c) may not qualify
as participants in the proceeding
(h) Complainant. Complainant is
defined as the Agency, acting through
the official who initiates an action or is
authorized to conclude an action by
consent under this proposed part It is
possible that two different individuals
may carry out these different roles. For
example, a Regional program division
director may have the responsibility of
initiating enforcement actions, but the
Deputy Regional Administrator may
have the authorization to sign consent
orders if comsnenters are participating in
a Clean Water Act or Safe Drinking
Water Act action. Because the
complainant will be represented by
Agency counsel (see § 28 6), it is Agency
counsel who is to receive service and
notice as the “complainant.” See
§ 28.9(c).
Ci) Consent order. This definition
describes the basic elements that must
appear in every consent order issued
pursuant to this part, whether under
§ 28.22(a) or * 28.28(b). The
requirements of paragraphs (1) and (2)
are common to all adnurustrative orders
the Agency may issue under this part.
The essential elements of paragraphs
(3), (4) and (5) are also the same as other
orders under this part. See § 2828 (a)
and (b). The requirements of paragraphs
(6) through (8) are being proposed to
promote finality and to ensure
consistency in Agency settlement
practice Paragraph (9) sets forth the
common legal dictum that all terms of
the settlement are to be included in the
written agreement.
Specific requirements are listed in
paragraphs (1) through (6) to ensure that
all consent orders recite certain basic
information about the legal and factual
bases of the action, the payment terms
of the settlement, costa and the like In
each consent order the respondent must
either admit, or neither admit nor deny,
the allegations underlying the
consented-to relief. For that reason, in
order to establish an administrative
record supporting the imposition of a
civil penalty or (in the case of the
SDWA) the requirement for compliance,
or both, paragraphs (2) and (3) reference
“uncontested” findings of fact by the
Agency.
The requirements are intended to
assure that all parties (and cornmenlers,
where applicable) are put on notice of
certain ramifications of entering into an
order on consent, such as the waiver by
parties of their right to appeal and the
special rights accorded commenters
under the SDWA and section 309(g) of
the CWA to challenge the settlement.
Finally, the requirements that the
consent order take into account
appropriate statutory penalty factors,
and that compliance remedies ordered
are reasonably related to the
respondent’s violation of law, are
intended to ensure that all settlements
are entered into only after the Agency
has considered the appropriate statutory
criteria. Although this recitation must
appear in the consent order, an analysis
of how the factors apply to the action is
not required to be set forth in the
consent order. It is enough (hat the
terms of the order be sufficiently
supported by the administrative record
so that the issuance of the order is
within the discretion of the Agency.
(j) Document. Document is broadly
defined and includes, for example.
memoranda, transcriptions, tape or
video recordings. maps, photographs.
and drawings. The definition of
document should be quite liberally
applied. “Written legal arguments or
statements” as described ni § 28.8 are
types of “documents” which are further
limited by operation of § 28.8.
(k) Interested person. Interested
person is broadly defined to include
both Agency and non-Agency persons
who have an active interest in the
outcome of the administrative
enforcement proceeding. The agent of a
non-Agency participant may be an
unpaid agent, and may include either a
person not employed by the Agency or
an Agency employee who acts as an
agent on behalf of the non-Agency
participant’s interest in the action.
(I) Participant. “Participant” as used
in a proceeding under the Safe Drinking
Water Act or section 309(g) of the Clean
Water Act includes each party and any
commenter as used in an action under
any other statute governed by these
proposed rules, it has the same rnearung
as “party.” See the definitions of
complainant, respondent, and
commenter in § 28.2 (g). (h) and (t).
(m) Party. Party is defined as any
complainant or any respondent who has
timely responded in an action under the
proposed rules (and has not been
sanctioned by a finding of default by the
Presiding Officer). See the definitions of
complainant and respondent in 28.2 (h)
and (t)
(n) Presiding Officer. The Agency is
proposing to limit Presiding Officers to
attorneys because it anticipates
significant legal issues may arise in
proceedings under this part, and
recognizes the advantage in timeliness
and efficiency to all participants of
having a legal expert preside over such
proceedings.
10) Proceedrng. The proposal
distinguishes between the terms
“hearing.” “proceeding” and “action.”
The term “hearing” is limi ted to the
trial-type procedures of § 28.26 as it
relates toiiability issues. Proceeding is
more broadly defined as any activity
involving the parties conducted by the
Presiding Officer under these proposed
rules. As used in this proposal,
“proceeding” does not include any
action taken by the Administrator or
Regional Administrator, or any
negotiations among the participants
without the presence of the Presiding
Officer. “Action” is the term the Agency
uses to encompass all activity in a case
from its initiation to final Agency action
(p) Prohibited communication.
Prohibited communication is broadly
defined—with one minor exception—as
an expartecommunicatiori between an
interested person and an Agency
decisionmaker that regards the merits of
an action, the substance of settlement
negotiations or a lodged proposed
consent order, or the substance of a
Presiding Officer’s recommended
decision. This definition should be read
in conjunction with the definitions of
‘interested person” and “Agency
decisionmaker,” as well as the rule in
§ 28.12 against prohibited
communication, the unavailability of
administrative appeal established by
§ 28.14(a) of this proposal. the
limitations on requests for
reconsideration established by
§ 28.14(b) of this proposal, the default
penalty procedure implemented by
§ § 28.20 (d) and (e) and 28.21 of this
proposed part, and the consent order
procedure for certain Clean Water Act
and Safe Drinking Water Act actions set
forth in § 28.22(b) of this part.
The minor exception to the rule,
concerning the communication between
signatory parties and the Regional
Administrator during the lodging period
of a proposed consent order, has effect
only if there is a non-signatory
respondent to the action, As noted in the
discussion below of § 28.21(b), in a
default situation, a respondent who has
failed to meet the applicable response
deadline of § 2820 is not defined as a
“party” pursuant to § 282(m). and
consequently the Agency counsel
communicating with the Presiding
Officer pursuant to § 28 21 of the
proposed rules is not subject to the
restrictions of § 28.Z(p) or § 28 12. The
Agency counsel has no ability to
provide a defaulted respondent with an
opportunity to participate in § 28 21
proceedings.
(q) Public notice. This subsection
applies only to actions brought under
the Safe Drinking Water Act and section
309(g) of the Clean Water Act. Section
28.16(d) of this proposal requires and
describes how and when the Agency is
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30003
to oUfy the public and the affected
State agency. The elements of the
written notice are set forth in
paragraphs [ 1) through (11) of this
proposed subsection. The element of
paragraph (4) relating to authorization
by rule applies only to actions taken
under the SDWA, and paragraph (10)
also applies only to the SDWA. The
purpose of the public notice provision Is
to implement applicable statutory
requirements of the Clean Water Act
and Safe Drinking Water Act to provide
notice of the commencement of the
action to the public and to provide
members of the public with the
opportunity to participate.
(r) Recommended decision. This
subsection defInes the elements and
form of a recommended decision and
describes the range of possible
recommended decisions the Presiding
Officer may transmit to the Regional
Administrator. See also § § 28 27(a)(3)
and 28.28.
(s) Regional AdminisLrvtor. Regional
Administrator is defined as the
Administrator of the Regional Office of
the Agency or his delegate. In a
Headquarters.initlated action, the term
“Regional Administrator” means the
Administrator of the Environmental
Protection Agency.
(t) RespondenL A person may be a
respondent even if that person did not
commit the violative act, but is legally
responsible under the applicable inw for
the redress of the violation alleged. This
includes persons who may have liability
under a vicarious liability doctrine (such
as joint tortfeasors, or owners or
operators), responsible organizational
officials, persons who may be jointly
and severally liable, or entities who may
be liable under an aiding. abetting.
commanding or procuring theory, such
as described for criminal cases in 18
U.S.C. 2. The proposed rules do not
purport to impose liability where there
is none under the applicable law
governing the action. A defaulted
“respondent” is not a “party” or
“participant” Compare this subsection
with § 28.2 (I) and (m).
(u) Response. The response to the
administrative complaint is equivalent
to the answer to a complaint in a civil
case filed in federal court, The
respondent has the burden of going
forward at this point in a proceeding if
the respondent wishes to contest a
complainant’s allegation of fact or
conclusion of law regarding liability, or
wishes to contest the complainant’s
request for relief. See § § 28 10(b) and
23.20(d). The respondent or the
respondent’s counsel, if any, must sign
the response and provide the name,
address and ‘elephone number of the
respondent and the respondent’s
counsel, if he is so represente±
Section 28.3 Number and Gender
The section provides the standard rule
of interpretation that words in the
singular include the plural, where
appropriate, and vice versa, and that
words in the masculine gender also
indicate the feminine gender. where
appropriate, and vice versa.
Section 28.4 Presiding Officer
Under this proposal, the Regional
Administrator will designate a Presiding
Officer to oversee the proceedings
within twenty days after the service of
the administrative complaint. See
§ 28.16(h). The Agency intends that any
actions requiring a Presiding Officer
occurnng before then will result in the
immediate appointment of a Presiding
Officer, In those Regions in which there
is a standing “Judicial Officer,” that
official may be authorized to act as a
Presiding Officer for purposes of this
Part in the interim between the service
of an administrative complaint and
proceedings under this part.
The Agency has not included specific
qualification requirements In the
regulation for the Presiding Officer,
except that the individual be a lawyer
who is neutral to the controversy. See
also § § 28.2(n) and 28.4(c). The Agency
fully anticipates that senior attorneys,
preferably with litigation experience
and a thorough understanding of the
administrative process and
environmental issues, will be selected to
hear these cases. EPA has not included
these requirements for the Presiding
Officer as elements of the proposed
regulations because it does not want to
arbitrarily preclude otherwise
competent attorneys from consideration,
especially in the early stages of its
administrative penalty program. Since
EPA must, through regulation or
otherwise, set qualifications for its
Presiding Officers, the Agency solicits
comment on this issue.
The authorities, duties, and limitations
of the Presiding Officer are listed in
§ 284 (a), (b), and (c), respectively
(a) Authority. The Presiding Officer is
authorized to take certain actions,
described in paragraph (a)(1), only by a
signed writing filed with the Hearing
Clerk, Because of their significance.
these actions must be memorialized in
writing. Under § 28.4(a)(l)(xi). the
Presiding Officer may impose a sanction
upon a participant if such a sanction is
necessary to aid in the efficient and
impartial administration of justice under
this proposed part. Sanctions may
include, for example, the striking of a
cause of action or a defense, making a
finding of default as to liability, or
limiting or eliminating a cornnienter’s
right to participate in an action.
Paragraph (a)(2) provides authority to
the Presiding Officer to take minor or
ministerial actions without requiring a
signed writing, and also provides
residual authority for the taking of
necessary actions. -
(b) Duties, This subsection lists the
Presiding Officer’s duties. Paragraph (4)
requires the Presiding Officer to
memorialize his actions whenever
required by paragraph (a)(1). as well as
requiring him to memonalize any
deadlines he establishes, and to
memorialize any significant action he
takes under paragraph (a)(2). The
requirement for the recording of
deadlines is important for determining
which documents are eligible for
inclusion in the administrative record,
See * 28.2(b) (9) and (15). The Presiding
Officer is also required to maintain
order and adjudicate allegations arising
in actions under this proposed part
efficiently and impartially. The
Presiding Officer shall at all times act in
a timely fashion,
(c) Limitations. The limitations
established in this subsection, together
with the provisions of § 28.13(a), are
intended to maintain impartial and
timely decisionmaking in actions under
part 28.
Should the Presiding Officer violate a
limitation imposed by this subsection or
substantially fail to comply with the
requirements of § 28.4(b), a party may.
with supporting affidavits, request the
Regional Administrator to designate an
alternate Presiding Officer. See
§ 28.13(a) In response, the Regional
Administrator must provide a written
decision to the parties outlining the
underlying findings and reasons for his
decision on the request. The Regional
Administrator may sanction the
requesting party upon denying a request
and determining that the requesting
party acted for purposes of delay or for
any other improper purpose § 28 13 (b)
and (c).
The requirement of paragraph (CIII)
that the Presiding Officer not ha e “any
prior connection with the action before
him” is intended to ensure that the
Presiding Officer comes to the
proceeding as a neutral. This prohibition
is not intended to bar a Presiding Officer
from knowledge of the relevant statute,
relevant agency policies, or the persons
appearing before him in the proceeding
The Agency believes that one of the
advantages of administrative penalty
proceedings is the potential use of
experts as Presiding Officers, and views
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such expertise and experience as a
benefit, not as a disability.
The requirement of paragraph (c)(2)
that the Presiding Officer not have “any
interest in the outcome of the action
before him” prohibits the Presiding
Officer (ton i having any financial
interest, personal interest, or career
interest in the outcome of the action.
Any interest of these sorts could result
in the Presiding Officer having an
apparent or real interest in the outcome
of the proceeding.
The Limitation in paragraph (c)(3)
regarding the Presiding Officer’s
initiating or knowingly engaging in
prohibited communication protects the
neutrality of the administrative process.
The limitation is carefully drawn.
however, to exclude innocent contact by
the Presiding Officer with an interested
person who may attempt to compromise
the officer under the proposed rules by
attempting to communicate with him
despite the regulatory prohibition. lithe
Presiding Officer is aware he has been
contacted exparte by an interested
person, under * 28.12(b) he must
disclose the contact to the other
participants if it was “significant or
prejudicial” and, if such communication
was by a participant, upon request of
any participant he shall conduct an
appropriate show cause proceeding
under that subsection. The * 28.12 rule
against prohibited communications is,
among other things, intended to
safeguard the Presiding Officer from the
possibility of the conflict of interest
referenced in the discussion above of
paragraph (c)(2).
The Agency notes that the prohibition
against prohibited communication
prohibits contacis between the Presiding
Officer and interested persons regarding
the substance of any settlement
negoliations between the parties, or
regarding the substance of any lodged.
but unapproved. consent order See
§ 28 2(p)(2). The Presiding Officer may,
however, communicate with the
participants regarding the existence or
scheduling of any such negotiations, so
long as their content is not
communicated to him. The Presiding
Officer is notified by the Hearing Clerk
of the fact of lodging of a proposed Safe
Drinking Water Act or Section 309(g)
Clean Water Act consent order. See
§ 28 22(b)(4).
The limitation on the Presiding
Officer’s authonty to delay an
administrative proceeding under
paragraph (c)(4) conforms to the goal of
timely and efficient proceedings
described by * 28.1. These rules do not
limit the abilities of the participants to
request information under applicable
statutes and regulations (see, eg.. § 28.1
[ “Nothing in this part shall affect the
authority of the Administrator to
implement or enforce any other
provision of law”]); however, except as
allowed in limited circumstances by
§ 28.24(c) (2), the Agency seeks to
prohibit participants from delaying a
proceeding by the use of information
requests. such as requests for
information under the Freedom of
information Act, 5 U.S.C. 552. If the
Presiding Officer agrees to delay an
action because of a party’s request for
or failure to produce information except
as allowed under § 28.24(c)(2). the
Presiding Officer is subject to
replacement under this paragraph and
§ 2813. The proposed rules provide
appropriate opportunities for obtaining
needed information, and provide
sanctions for a participant’s refusal to
provide required information in a timely
fashion. See § 28.24(e)(1).
Under paragraph (c)(5) and
§ 28.2(b)(15)(ii) the reasoning of a party
regarding the negotiation of a settlement
may not become part of the
administrative record, and may not be
required by the Presiding Officer or
other participants in an action. Such
rationales and calculations are highly
confidential and are privileged
information. To allow the Presiding
Officer or any Agency decisionmaker to
require the disclosure of such
information would chill the settlement
process and is therefore not permitted
under these rules. Agency policy
documents governing settlement,
although publicly available, are not
discoverable under the information
exchange rules of § 28.24. Such policy
documents as they relate to settlement
are l±ewise not binding on Agency
decisionmakers (as defined in § 25 2(b))
in resolving actions under this Part.
Consequently, in a proceeding under
this Part a Presiding Officer or an
opposing party may not require the
production of Agency settlement policy
documents or any specific calculations
the Agency may have made pursuant to
such a policy.
As noted in the discussion of § 28 26,
paragraph (c)(5) promotes the possibility
of settlement by ensuring that the
Presiding Officer not allow the
introduction of settlement offers into
evidence in a proceeding The
provisions of 282(p)( 2 ) and 284(c)(5)
ensure that the parties are not
preludiced by settlement negotiations
and remain in control of settlement
discussions. Settlement positions are not
relevant to the function of the Presiding
Officer, and are potentially preludicial
to the litigation positions of the parties.
The irrelevancy of settleni ents in other
cases is even greaten each case is
different on its facts: Consideration by
the Presiding Officer of settlements in
other cases would chill settlements
generally, and would unduly delay the
proceedings while irrelevant materials
were considered. Consequently. such
information is barred from the
administrative record and consideration
of such materials is grounds for
replacement of the Presiding Officer. See
also ** 28.2 (b)(15)(i;) and (p)(2). 2812
and 2813(a).
The prohibition of paragraph (c)(6J
restates and gives effect to the limitation
on the scope of the proceedings under
the proposed Part. If the Presiding
Officer allows a “challenge to a final
State or Agency action,” the Presiding
officer is subject. as is true for any
violation of a limitation under this
subsection, to replacement under
§ 28.13(a). See also § 28.2(bJ(15)(iij.
Paragraph (c)(7) prohibits the
Presiding Officer from dismissing an
administrative complaint. As provided
by subpart D, if an administrative
complaint does not state a cause of
action, it shall be withdrawn by the
Regional Administrator. See
H 28.2(r)(1), 28.27(a)(3) and
28.28 [ a](2Hi).
Section 28.5 Hearing Clerk
This section sets forth the duties and
responsibilities of the Hearing Clerk In
almost all cases, the Hearing Clerk will
be a Regional employee, but in those
cases in which the complainant is a
Headquarters official, and the action
initiates at Headquarters. the Hearing
Clerk will be a Headquarters employee.
Subsection (a) provides that once a
Presiding Officer is desi g uated by the
Regional Administrator under { 28 16(h).
the Hearing Clerk shall immediately
notify, in writing the complainant and
each respondent of the name of the
Presiding Officer. However, for purposes
of administrative convenience, in Safe
Drinking Water Act and section 309(gl
Clean Water Act actions the Clerk is to
notify each commanter of the
designation under § 28.16(h) at the same
time—upon the close of the comment
period. lithe Regional Administrator
designates a new Presiding Officer
under § 28 13(b). the Hearing Clerk shall
immediately notify all participants of
that event.
Subsection (b) requires the Hearing
Clerk to create and maintain a list of
any persons who, by the close of the
public comment period, become
commenters under the Safe Drinking
Water Act or section 309(g) of the Clean
Water Act by fulfilling the requirements
of * 28 2(g ) and § 2820(c). The names of
persons who are cominenters become
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30005
pan of the administrative record
pursuant to those subsections and
§ 28.2(b)(9) of these proposed rules, and
any organization of that information by
the Hearing Clerk pursuant to this
subsection would also be publicly
available. -
hi Safe Drinking Water Act and
section 309(g) Clean Water Act actions
in which a commenter participates,
following the close of the public
comment period subsection (c) requires
the } earing Clerk to notify the
respondent. complainant, any
cornmenters, and the Presiding Officer
of the name and address of each
participant. In the case of the
complainant, the Hearing Clerk shall
provide the name and address of
Agency counsel.
Although the name of the respondent.
for example. will be known to every
participant. if the respondent is
represented by counsel, counsel’s name
and address shall be provided. (The
name and address of the respondent’s
counsel. if any, will be provided in the
response to the administrative
complaint. See * 28.2 [ u].) The
coriplainant will be notified by service
on Agency counsel. See * 28.9(c). If any
other participant Is represented by
another person, the Hearing Clerk
should provide the name and address of
the participant’s representative. See the
definitions of “conirnenter,”
‘respondent,” and “participant” at
§ 28 2 (g). (1), and (t).
The requirement of subsection (d) that
the Hearing Clerk record the date of
receipt of a document does not thereby
make it part of the administrative
record. Recording the date of receipt of
a document from a non-participant will
merely demonstrate whether such a
document was received pursuant to the
deadline of § 28.20(c). Documents under
this subsection include proof of payment
of an assessed penalty, and
administrative order compliance reports
under the Safe Drinking Water Act.
Subsection (e) requires the Hearing
Clerk to keep the Presiding Officer
apprised of all filings in the action by
notifying him of the receipt of any
documents filed by the respondent,
complainant, or any commenters.
However, a filing does not become part
of the administrative record unless it
meets the requirements of § 28 2(b) of
this proposed part. In some actions, the
Presiding Officer has discretion under
§ 2 2(b)(15) to decide whether a filing
becomes part of the administrative
record (The Presiding Officer, however,
is prohibited from reviewing proposed
consent orders or written explanations
lodged under § 28 22 [ bJ of this part.) In
such actions, the Presiding Officer may
also have to decide other issues, such as
whether a filing occurs pursuant to the
requirements. such as timeliness, of
§ 28.z(b)(9). No person may appeal such
a decision by the Presiding Officer. See
§ 28,14(a).
Subsection (1) requires the Hearing
Clerk to properly maintain and to
provide to non-signatory participants
any proposed consent order lodged in a
SDWA or CWA 309(g) action pursuant
to § 2822(b) of this part.
Under subsection (g), the Hearing
Clerk shall bill any costs relating to the
copying of documents in the public
record.
Under subsection (h) the Clerk is to
return the disapproved proposed order,
and any explanation of ii, to the
signatory parties so that the Presiding
Officer may not be inadvertently
influenced by it.
Subsection (i) provides that the
Hearing Clerk will perform any other
ministerial and clerical duties the
Presiding Officer may require to assist
him in carrying out his responsibilities
under this proposed part.
Subsection (j) provides that the
Hearing Clerk will assist the Regional
Administrator in carrying out functions
under this part. This includes recording
and maintaining documents the Regional
Administrator files under * 28.28(d).
Section 28,8 Representation by
Counsel
This section provides that the
respondent and any cornrnenters may be
represented by counsel at any stage of
an action under this part. This section
further provides that the complainant
shall be represented by Agency counsel
in all verbal and written communication
with any Agency decisionmaker. The
proposed regulation does not require
that Agency counsel represent the
complainant in negotiations with other
participants.
Section 287 Computation of Time
This proposed section is modeled in
part on 40 CFR 22 07, the Agency’s rules
for computation of time and service for
other Jaws it administers.
(a) Computation of days. The time
period is to begin to run on the day after
the act, event or default takes place. The
lust day of the period is to be included,
unless the last day falls on a Saturday,
Sunday or federal holiday, in which case
the last day to act will be extended to
the end of the following business day.
(b) Time of notice. The proposed rule
provides that whenever service of a
notice, pleading or other document is by
mail or other substituted form of service,
five days be added to the prescribed
period for the person served to act. The
Agency considered using the three day
rule of the Federal Rules uf Civil
Procedure, but is proposing a five day
rule to be consistent with 40 CFR part
22, because the resultant delay is not
very consequential. if the party noticed
has signed a receipt of service, the date
of receipt is the date of notice.
(c) Time of compliance. Except as
otherwise provided, this subsection
provides that the time of compliance
with a deacthne imposed pursuant to
this part is deemed to occur on the date
of a personal response or the date of the
postmark (or equivalent proof) of a
mailed or messengered response.
Section 288 Limitations on Written
Legal Arguments or Staternc’nts
The purpose of these limitations is to
improve the speed and efficiency of the
hearings conducted under this proposed
rule by requiring succinct legal
arguments and statements and to
prevent the participants from flooding
the record with arguments or
documentation not relevant to the
action. Good cause for authorizing
additional submissions under this part
would be for the purpose of promoting a
more efficient, equitable and timely
administration of the proceedings.
Documents that do riot conform to the
requirements of this section cannot
become part of the administrative
record unless the parties have lodged a
proposed consent order that is not
disapproved (see H 28.2jbJ and
28.22 [ b)L5]), and may not otherwise be
considered by the Regional
Administrator in his decision in an
action under this proposed part See
H 28.2(b)(9) and (15)(ii),2827(a)(1), and
28.28(a)(1) Limitations under this
section applicable to legal arguments or
statements do not apply to supporting
factual documents, such as affidavits,
unless so ordered by the Presiding
Officer.
Section 213.9 Service of Documents
(a) Bypai-ticipanls Participants in the
action may serve all pleadings and other
papers, except a subpoena or the
administrative complaint, personally or
by certified or first class mail, postage
prepaid. A certificate of service must be
attached to all papers served (By
contrast, pursuant to § 2811(b) and
28 16(c), the Hearing Clerk serves a
subpoena or the administrative
complaint either personally or by
certified mail, return receipt requested’)
The onginal of all papers served,
including the original certificate of
service, must be simultaneously filed
with the Hearing Clerk. The compIain int
files the adnu.nistrative complaint with
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the Hearing Clerk upon its issuance. See
28.16(e).
“Pleadings” include, for example,
administrative complaints and
responses (and their amendments).
motions, briefs legal statements, and
any notice of withdrawal of an
administrative complaint. The term does
not include any proposed consent order
lodged pursuant to 2822(b), which is
not provided to the Presiding Officer, or
information exchanged pursuant to
§ 28.24, which pursuant to { 28 24(d) is
served upon the Presiding Officer, but
not filed with the Hearing Clerk or
provided to participating cominenters.
The parenthetical regarding
‘messengered service” allows
participants to use alternate forms of
service, such as U.S. Next Day Mail, or
certain private deliverers with receipt
and trace capscii-y that are at least as
fast and reliable as first class or
certified mail.
(b) By the Heoring Cier*, This section
places with the Hearing Clerk the
primary responsibility for serving
participants with ‘notices, rulings, orders,
arid other documents issued by Agency
decisionniakere. For example, the
Hearing Clerk is required to notify each
participant of the appointment of a
Presiding Officer ( 285(afl arid the
identity of all participants in the action
( 28.5(c)). the scheduling of any
proceeding to take place under these
rules, and is required to serve each
participant with a copy of the Presiding
Officer’s recommended decision, the
decision of the Regional Administrator,
and other rulings, such as the entry of a
default order. NotifIcation of
cornxnenters in Sale Drinking Water Act
or section 309(g) Clean Water Act
actions of the scheduling of proceedings
does not in arty way invest the
comrnenters with the right to participate
in prehearing conferences or other
aspects of the proceedings limited by
this proposed Part to the parties alone.
(c) Upon counsel Other than service
of the administrative complaint, which
is to be served upon the person named
in the complaint, all service made upon
a participant who is represented by an
attorney shall be made upon that
person’s attorney, unless otherwise
ordered by the Presiding Officer.
Section 28 10 Parties ’ Burdens of Going
Forward, Proof and Persuasion
This section describes the regulatory
burdens on the parties of presenting and
defending the action before the
Presiding Officer.
(a) Complainant’s burden of going
forward. The complainant has the initial
burden of presenting a prima facie case
supporting the cause of action alleged in
the administrative complaint and a
request for relief. That is. the -
complainant must make allegations
which, if true, would be sufficient to
show that the respondent may be
sub jected to providing relief under the
law. See 28.16(a).
(b) The respondent has the burden
within the deadlines imposed by § 28.20
(a) and (b) of claiming (1) that the
allegations as to liability in the
complaint are untrue or that it is
otherwise not liable for the redress of
the violations alleged, and (2) that the
relief requested by the complainant
should not be granted. In addition.
where the complainant is seeking a
penalty, a respondent who has met the
deadlines imposed by § 28.20 (a) arid (b)
carries the burden of going forward no
later than the deadline imposed by the
Presiding Officer under § 28 23(b)(3) to
provide all information requested by the
complainant relating to the respondent’s
- inability to pay a civil penalty and
relating to the respondents economic
benefit received from alleged violations
of applicable law.
(c) Parties’ joint burden of going
forwarcL This subsection applies only to
actions under the Safe Drinking Water
Act and section 309(g) of the Clean
Water Act in which cominenters are
participating. The parties who submit a
proposed consent order for approval by
the Regional Administrator are jointly
responsible, upon the request of the
Regional Administrator pursuant to
§ 28.224b)(l)(u) and 28.28(bJ(1), for
providing the Regional Administrator
with the legal bases for signing it. If a
consent order has been lodged, the
Regional Administrator may not rely on
the Presiding Officer for advice. See also
§ § 28.2(p). 28.4(c)(3). 28.12 and 28.13.
(d) Complainant’s burden of proof. In
any hearing as to liability held under
§ 28.26. the complainant has the burden
of proving its case as to liability. To do
so, it must prove every fact it has
alleged us an element of the violation.
and that the respondent has contested,
by a preponderance of the evidence. A
“preponderance” of the evidence is the
greater weight; the complainant must
present evidence which, when judged by
its weight, value and credibility, is more
convincing than the opposing evidence
offered by the respondent. If
comxnenters participate in a Safe
Drinking Water Act or section 309 [ gj
Clean Water Act liability hearing, the
Presiding Officer is to determine
whether the preponderance of evidence
as presented by all participants
demonstrates each fact necessary to
prove liability.
(e) Parties’ burden of persuasion. in
proceedings other than fact-finding
§ 28 26 hearings on liability, no formal
burden of proof applies. Instead, the
proponent of any legal argument mad
to the Presiding Officer bears a burden
of persuasion, that is, of convincing the
Agency decisiomnakers that the legal
position asserted is correct and should
be adopted in the action.
When the complainant seeks a civil
penalty, the complainant must carry the
burden of persuasion—before the
Presiding Officer transmits a
recommended decision to the Regional
Administrator—that the penalty sought
is appropriate in light of the statutory
factors and documents submitted to the
Hearing Clerk for inclusion in the
administrative record. Under these
proposed regulations, the complainant
does not incur this burden until the
Presiding Officer conducts either a
default proceeding tinder § 28.21 or a
remedy proceeding under § 28.25 or
28.26(h).
Because penalty issues are matters of
persuasion rather than proof, the
coiriplainant is not subject to an
information request regarding the basis
for a requested assessment of a civil
penalty under either § 28.11 (Subpoenas)
or § 28.24 (Information exchange). The
Presiding Officer has no authority to
require the complainant to carry the
burden of persuasion as to requested
relief prior to a § 2821, § 28.25, or
§ 28.26(h) proceeding. Statutory penalty
factors are set out in sections 309(g)(3J
and 311 ( I i) (8) of the Clean Water Act, 33
U.S.C. 1319 [ g)(3) and 1321(b118),
Section 1423(c)(4)IB) of the Safe Drinking
Water Act, 42 U.S.C. 300h— 2(c)(4)(B),
109(a)(3) of CERCLA. 42 U.S C.
9609(a)(3). and Section 32.5(b)(1)(C) of
EPCRA, 42 U.S.C. 11045(b)(1)(C) (for
Class I emergency notification violations
only). No specific statutory factors are
provided for administrative penalties
authorized by sections 315(c)(2) and Cd)
of EPCRA, 42 U.S.C. 11045(c)(2) and (d)
If the respondent has not met its burden
of going forward regarding its inability
to pay a civil penalty, the complainant
carries no burden on this issue; the
respondent will be deemed able to pay
the maximum statutory penalty. See
§* 2810 [ b) (2J and 28.24(e)(1)(iii) If the
respondent has not met its burden of
going forward regarding any economic
benefit it has enjoyed as a result of its
violations, the complainant likewise
carries tic burden. but the amount that
the Presiding Officer may recommend
and the Regional Administrator may
impose in the absence of any support ii
the administrative record should be a
token or symbolic amount.
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30007
Section 28.2! Subpoenas -
This section sets forth the authority of
the Presiding Officer to subpoena
itnesses and documents, and the
procedure for doing so. This authority is
provided explicitly by the applicable
statutes, as noted below. The penalty for
the violation of an Agency subpoena is
prcvided by applicable law. See
sections 309(g)(10) and 311(b)(6)(1) of the
Clean Water Act, 33 U.S.C. 1319(g)(1O)
and 1321(b){6)(1); section 1423(c)(8) of
the Safe Drinking Water Act. 42 U.S.C.
300h—2(c)(8); section 109(a)(5) of
CERCLA. 42 U.S.C. 9609(a)(5); and
section 325(fl(2) of EPCRA. 42 u.s.c.
11045(f)(2).
(a) Issuance. The authority of the
Presiding Officer to issue subpoenas is
statutorily based. In the case of the
Clean Water Act sections 309(g)(10) and
311(bJ(6)(I) provide the authority; in the
case of the Safe Drinking Water Act.
section 1423(c)(8) provides the authority;
in the case of CERcLA., section
109(a)(5) and in the case of EPCRA.
section 325(fl(Z). See 33 u.s.c.
1219(g)(l0) and 1321(b)(8)(I) and 42
USC. sections SOOh—2(c)(a), 9609(a)(5)
and 11045(Q(2). The Clean Water Act,
CERCLA and EPCRA provide. in
relevaiit part, that the Agency “may
issue subpoenas for the attendance and
testimony of witnesses and the
production of relevant papers, books, or
documents In connection with hearings”
under the adinmistrative penalty
provisions cited In § 28.1. In the case of
CERCLA, this authority among others is
delegated to the Adniloistrator by
Executive Order 12580 (January 23,
1987). The SDWA provides a more
expansive authorization than other
statutes to be governed by this part by
allowing the issuance of subpoenas “in
connection with administrative
proceedings under this subsection.” To
the extent that the SOWA may authorize
Investigatory subpoenas that authority
is outside the scope of this part. under
§ 281 ‘Nothing In this part shall affect
the authority of the Adrninist.rator to
implement or enforce any other
provision of law.” See also * 2824(a)
(“Excepi ...by authorization of law
outside the scope of this pert, this
section provides exclusive authority for
the provision of Information by
parties ....“)
Subpoena authority under this section
is available to support a Liability hearing
under § 28.26 (see discussion of
§ 28.10(e) above) and subpoenas are to
be issued at the discretion of the
Presiding Officer. The parties have a
right only to request the issuance of a
subpoena. The scope of subpoenas
issued by the Presiding Officer under
this subsection is limited to the scope of
a § 28.28 hearing as to liability, under
no circumstance may a subpoena be
used as a “fishing expedition” or as a
supplement or replacement for
information exchange under § 28.24.
(b) Service. The proposed rules
establish subpoena service requirements
that are the same for the service of the
ad ministrative complaint upon the
respondent. In the case of a witness not
otherwise involved in a proceeding,
there is an equivalent need to
conclusively establish the Agency’s
personal lurisdiction over the person
receiving the subpoena.
(c) Filing with Heanng Clerk Section
2 8 .2( 1 , 1 ( 8) provides that each subpoena
issued under this section is to become
part of the certified admnimstrative
record. Information produced Lri
response to the subpoena at a liability
hearing will become part of the
administrative record if the Presiding
Officer admits it into evidence pursuant
to § 28.28 (d) and (i). See also
* 28.2(b)(9).
Section 28.22 Prohibited
Common icat ion
This section of the proposed rule
prohibits certain communications and
establishes procedures for curing any
problem created by the communication.
(a) Prohibition. This subsection
prohibits certain communication, as
specifically defined by § 28 2(p),
between any interested person (defined
by * 28 2(k) ) and any Agency
decmsionntaker (defined by § 28.2(f)).
(b Not ification and investigation.
This subsection charges the Presiding
Officer with the responsibility for
notifying im mediately each participant
in a proceeding of the occurrence of any
prohibited communication. If reçuested
by a participant, under certain
circumstances the Presiding Officer
must conduct a proceeding in order to
determine whether to impose any
sanction against a participant for the
prohibited cornniunication.
Cc) Sanctions or recusal. This
subsection establishes the Presiding
Officer and Regional Administrator’s
authority to impose sanctions against
any participant who is responsible for a
prohibited communication and describes
the duty of recusal of any Agency
decisionmaker who “has initiated or
knowingly engaged in prohibited
communication” lf the decisionmaker
has initiated or knowingly engaged in
such communication with a defaulted
respondent—a non-participant, but
nonetheless an “interested person”—
that Agency official shall recuse himself
or be subject to replacement under
§ 28. 13.
The Presiding Officer is the
sanctioning official in an action until he
has transmitted the recommended
decision, except during a suspension of
an action under § 28.22(b)(2).
Sanctioning is otherwise the
responsibility of the Regional
Administrator.
Recusal is required only where the
Agency decisionmaker bears some
responsibility for the prohibited
communication or where the
communication is so prejudicial as to
preclude the decisionmaker from fairly
deciding the action. lithe decision.rnaker
has been contacted as to the merits of
an action by a person whom the Agency
official does not know as an interested
person, the official, who may be
blameless and not influenced by the
communication, should not recuse
himself on the basis of that contact
alone. Any Agency decisionmakerrriay,
however, recuse himself for cause at any
time in an action,
Sect ion 28.23 Request for on Alternate
Presiding Officer
This section serves to ensure that the
duties and limitations imposed on the
Presiding Officer by * 284 (b) and (c)
are respected.
(a) Request. As previously noted, an
improper delay (* 28.4(c)(4fl,
involvement in settlement (* 28 4(c) (3)
and (5)), reconsideration of final Agency
action ( I 28 4(c)(6)), and dismissal of an
administrative complaint ( 28 4{cJ(7)).
are grounds for replacement of the
Presiding Officer. Replacement in such
circumstances goes beyond the usual,
stated grounds for such actions in other
administrative adjudicatory
proceedings The possibility of
replacement emphasizes and helps carry
out the provisions of these rules which
are intended to make the subject
proceedings simpler and quicker than
more traditional proceedings.
In addition, under this proposed part.
the Presiding Officer has no “equitable’
power knowingly to disregard or
suspend any provision of the part itself.
Such an action would represent one %say
in which the Presiding Officer may
substantially fail “to comply with his
duties under § 284(b).” The Agency
does not intend, however, that Presiding
Officers be subject to disqualification
for occasional. inadvertant mistakes in
the application of proposed part 28.
(b) Decision. This subsection provides
that a decision by the Regional
Administrator to grant or deny such a
request must be in writing and provide
the basis for the decision. The action of
the Regional Administrator is to be fited
with the Hearing clerk and become part
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of the administrative record of the
action. See fi 28.2 (b) 112), 28.5W and
2t28(d).
(c) Sanctions. This subsection allows
the Regional Administrator to impose
sanctions (other than fine or
imprisonment) on any party making a
request for an alternate Presiding
Officer for delay or other improper
purposes. This authority is intended to
deter dilatory, frivolous, or otherwise
inappropriate disqualification requests.
Section 2&74 Unavoi lab ilily of
Administrative Appeal: bmitotion on
Requests for Reconsideration
(a) Unavailability o,fodrninistrative
appeal. This provision establishes the
absolute unavailability of an -
administrative appeal of any action of
the Presiding Officer or the Regional
Adrninistrator in an action under this
proposed part. The Agency takes
seriously congressional instructions that
ft resolve administrative enforcement
actions quickly. See legislative histories
cited in discussion of § 28.1. above. EPA
intends to promote efficient and timely
administrative resolutions of actions -
undertaken pursuant to this jart by
establishing the ultimate procedural
authority of the Presiding Officer over a
proceeding conducted under this part
and the ultimate administrative
authonty of the Regional Administrator
(subject only to the Administrator’s
review authority under 1 28.29) over
actions undertaken under this part.
Under the proposal, if a person tries to
appeal administratively any action by
an agency decisionmaker. this would
constitute a prohibited communication
under § 1 282(p) and 28.12 ( 8), and
subject the nominal “appellant” to
sanctions under § 28.12(c).
The Agency notes, in this coni ext. that
(1) any recommended or proposed
recommended findings of fact and
conclusions of law provided by the
Presiding Officer to the participants
under § 28.25(e) and (2) any
determination of genuine issues of fact
under § 28.25(1) are neither final Agency
action for purposes of an appeal. nor
appealable administratively on an
inlerlocutory basis Such niatenals are
provided to the participants only to
clanfy the legal basis of the remainder
of the action.
The unavailability of an
administrative eppeal does not affect
the right of any person authorized by
applicable law to receive appropriate
judicial review of a final Agency action.
( Ii) Limitation on requests for
reconsideration. This subsection
prohibits any person from requesting the
Presiding Officer to reconsider the
recommended decision, but does not
prohibit participants from requesting the
Presiding Officer to reconsider rulings
made bafore the transmission of the
recommended decision to the Regional
Administrator pursuant to * 28.27(a).
This subsection recognizes, for purposes
of section 309( 8 fl4)(C) of the Clean
Water Act and * 28.30, that a
cornrnenter may request a Regional
Administrator to reconsider the issuance
of an order assessing a penalty. See also
* 28.28(f)(l). A person who violates the
prohibition of this subsection is subject
to sanction for initiating or engaging in a
prohibited communication. See
fl 28.2(p) and 2.8.12.
Section 28.15 Prospective Effeci of this
Port
This procedural section provides that
the rules are prospectively effective.
This part will not apply in any action
initiated before its effective date, except
where it has been adopted as procedural
guidance. Any action initiated by the
issuance of an administrative complaint
on or after its effective date will be
governed by the proposed rules.
Subpart fl—Prehearing
Section 28.18 Initiation of Action
This section establishes hew the
Agency shall initiate an action under
this proposed part. The complainant
issues the administrative complaint.
provides for its service, provides public
notice of its service in Clean Water Act
and Safe Drinking Water Act actions.
and opens the administrative record by
the filing ci i the administrative complaint
and certificate of service. In opening the
record, the complainant may also file
anticipatory motions, including motions
for summary determination, accelerated
decision, and for remedy upon decault.
See § 28,16 (e) and (f).
In certain cases under these rules,
EPA anticipates that many actions.
especially under EPCRA and CERCLA.
may be decided very quickly. These
early resolutions could be obtained
through the complainant, at the time the
complaint is filed, by. for example: (1)
Filing documentation of its liability and
remedy case. (2) Satisfying all but its
supplemental information exchange
obligations by declaring it has produced
all known information that will
constitute its case against the
respondent and by notifying the
respondent it will request no additional
information pursuant to § 28.24. and (3)
FLling anticipatory motions with
supporting materials, in the alternative.
for either summary determination and
an accelerated recommended decision
under * 28.25, or a default remedy under
* 2821—depending on whether or not
the respondent appears by the deadline
established under * 2820.
The effect of this approach is to
reduce significantly the time needed for
the Presiding Officer to transmit a
recommended decision to the Regional
Administrator. For example, in a case in
which the complainant flIed all the
documentation in a case, declined the
opportunity for later information
requests, and also filed alternative
anticipatory motions, the respondent
would have thirty days to answer both
the administrative complaint and the
motion for an accelerated recommended
decision. 6 If the respondent failed to
answer, the Presiding Officer could
transmit a recommended decision based
on default as soon as thirty days after
the filing of the administrative
complaint. See * 1 28.19(e) and U). 28.20
(a) (d) and (e), 28.21 and 28.27(a).
(Because of the early filing of the default
remedy motion, there is no need for an
additional thirty days under I 2821 [ b))
If the respondent answers, the Presiding
Officer may transmit an accelerated
recommended decision as soon as thirty
days after the pTehesring conference, or
approximately sixty days after the
response is filed. See * § 28.16 (e) and
In, 28.20 (a), 28.23(c), 28.25 and 28.27 (a).
Under this section. the Hearing Clerk
notifies the Agency decisionmaker of
the initiation of the action and proof of
service of the administrative complaint
and, if the Presiding Officer has not
already been designated. the Regional
Administrator aasigns a Presiding
Officer to the action.
In this proposal. the Agency treats the
administrative complaint as analogous
to a judicial complaint filed in United
States district court. The Agency is
following a notice pleading rule, and
requires only that the administrative
complaint allege each element of
liability of each claim and propose a
penalty or, i tt the case of the Safe
Drinking Water Act. propcse a penalty
and compliance with the law. Under this
rule, at the outset of the action the
complainant bears only the burden of
coming forward with the Lability
elements of the complaint and a request
for relief. The complainant has no
burden to prove its allegations as to
liability or carry a burden of persuasion
as to the assessment of an appropriate
penalty or compliance remedy until later
in the action. See 4 28.10 and
accompanying preamble discussion. The
‘The time r resolution described in this
para rspb may be atsmicd by thirty days LI the
mpoc4ent ceriittes ic the Hearing Cn that be
bad made a eritlemeni otTer within thirty dai sot
n ivIn3 die adtmnlairamfve complaint. See
I 252O(bJ 2j.
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complainant may not be required to
justify its penalty request upon the filing
uftheadminjstrative coraplaint any
more than f the penalty request had
been flied in a federal districl court.
The Agency believes that. in
proceediaga such as th a proposed
today, and unlike Agency practice
developed under the Consolidat.ed Rules
of Practice at 4OCFR part 22., itis
inappropriate to require the complainant
to carry a burden of persuasion upon the
initiation of the action. Consequently, at
the outset of a action, the Agency will
be free in the administrative complaint
to request “up to” the statutory
maximum or to request a specific dollar
amount, in either case taking into
accour.t whatever statutory penalty
factors may apply. As a result of
Beparalmg the penalty JnstLfication from
the administrative complaint, Agency
Presiding Officers will consider
statutory penalty assessment criteria
and the administrative record developed
before them an reaching a recommended
decision. arid not any ? gency policy
governing on’y settlement requirements.
In most cases, EPA anticipates that
the partie. will reach a settlement of the
dispute. In that cirQunstanoe. and if the
action is one in which a oonunenter
participates under the Safe 1]sinkmg
Water Act or section 309j ) of the Clean
Water Act and the Regional
Admiiustrator requests a written
explanation of the settlement, the
burden of justifying the penalty under
the applicable law wdl be shared. See
* 28.10(c) end 28. bj(1J(ii). in the
remaining actions, in instances of
default or litigation, the burden of
persuasion will fall on the complainant
at a later stage, after the opportunity to
develop information on the violations.
and at a (lute when the burden is inure
appropriately borne. See * * 28 10(e)
26 21(b), 28.24, and 28.25 end 28.26 (h) (1)
and(k).
(a) issuance of adminis rat:ve
complainL This subsection sets forth the
substantive statutory claims to which
these proposed consolidated
administrative enforcement regulations
apply.
ParagTaph (1) tracks the statutory
language of Section 309 (g)(1) of the
CWA, 33 USC 13l9(gJ(i). which
authorizes the issuance of
administrative complaints for penalties
whenever the Administrator has a good
faith basis o believe that any person
has violated various sections of the
CWA or permit conditions or limitations
implementing such sections of the CWA.
These proposed rules are intended to
cover on’y the no-called “Class I ”
admirns ratwe complaints, which are
not sub- ject to the requirements ofi.he
Administrative Procedure Act (‘APA”).
5 U.S.C. 54 and 556. See CWA section
309(g)(2)(A), 33 U.S C. 1319(g)(2)jA).
Clean Water Act Class I proceedings are
limited by statute to actions for civii
penalties only.
Paragraph (2) tracks the statutory
ldi1 age of section 311(b)(6 (A ) of the
CWA, 33 U.S.C. 1S21fb)(6) A), which
authorizes the issuance of
administrative complaints far penalties
whenever the Adinnnstrator has a good
faith basis for believing that any owner,
operator, or person ni charge of any
vessel, onshore facility, or offshore
facility has violated section 3fl(b)(3) of
the CWA or is violating regulations
issued pursuant to Section 3 11(j) of the
Act, 33 U.S.C. 1321 fbj(3) and (j)
Paragraph (3) provides for the
initiation of administrative actions
authorized by section 14.25(c) of the
SDWA. 42 U S.C. 300h-2(c) , relating to
violations of the requirements of an
applicable underground injection control
program, under these proposed
regulations. Section 1423(c) of the Safe
Drinking Waier.Ast authorizes the
issuance alan adnimistrative complaint
seeking both compliance and civil
penalties for past violations, and these
proposed niles have been drafted to
enable Agency decisionrnakems to
fashion the complete relief contemplated
by the statute. Under the first sentence
of this paragraph, the Administrator
may seek both compliance and civil
penalties against a person who “is
violating” applicable law’ur.der the last
sentence, the Administrator may seek
civil penalties against a person who
“has violated” applicable law. “but such
violation has ceased and its cause has
been remedied.” In the latter case, there
is no need for an order requiring
compliance. A violation has not ceased,
however, if itis intermittent, the Agency
understands “cessation” to mean an
effective, permanent solution to the
violations has been adopted.
Paragraph [ 4) identifies the underlying
CERCLA c1aim that may be
administratively adludicaled under
these proposed regulations Specifically,
so-called “Class t ’ civil penalties
authorized by section 109(a)(1) of
CERCLA, 42 U.s C. 9609(a)(1), for
violations of the following substantive
provisions of CERCLA may be sought
under these proposed procedures-
Violations of sections 103 (a) and (Ii).
1 )3(d) (2) and i( , violations of orders
issued under Section 122 [ d)(3) and.,
pursuant to section 122(1) of CERCLA.
failures or refusals to comply with
administrative orders, consent decrees
or other agreements entered into under
section 122 of CERCLA. 42 U S.C. 9603
30C09
(a). (b), and (d)(2), 9608.9622 (d)f 3) and
( I).
Paragraphs (5) through (8) set forth the
viclations of EPCR.A. 4.2 U.S.C. 11001 et
.ceq.. that may be admmistratrve!y
adjudicated under these proposed rules.
F.PCRA violations arising under Section
313,42 U.S C. 11(123, are outside the
scope of this proposaL See discussion
above in introductory preamble.
Paragraph (5) provides that violations
of section 304 of Title I I I, 42 U S.C. 11004
(emergency notification), are subject to
so-called “Class I” civil penalties under
section 325 b)(1)(A), 4.2 U.S.C.
§ 11045(bJ(1 (A). Paragraph (6) sets forth
that violations of section 312 of EPCRA.
42 US.C. 11022, are subject to cavil
penalties assessed pursuant to section
325(cX1)ofEl( RA, 42 U.S.C.
11045(c) (l). Paragraph (7) provides that
violations of Sect;ons 311 (material
safety data sheets) and 323(b) (provision
of information to health professionals,
etc), 42 U.S.C. 11021 and 11043(b), end
failures to famish information pursuant
to sections 322(a ) 2) of Title ill
(pertauiuig to trade secrets). 42 U.S.C.
11042(a) (2) are subject to penalties
assessed under section 3Z5. c)(2), 42
U.S C. 11045(c)(2). Paragraph ts)
provides that trade secret claims under
section 325(d)(1), 42 U.S.C. 1l045çd )(1),
are subject to penalties as provided
therein.
(b) Notice of respoiident ’s opporh.in:ty
for he ring. This subsection requires the
complainant to notify Ihe respondent of
his right to a bearing to determine
whether or not there was a violation of
applicable law, the consequences of his
failure to respond to the administrative
complaint, and the applicability of this
Part. This notification may occur by
cover letter to the administrative
complaint, inclusion in the text of the
complaint. or any other appropriate
means The requirement in paragraph (3)
may be satisfied by noting the
applicability of the rules arid where they
are published.
(c) Service of administrative
compIaint Special service rules apply tu
the service of the administrative
complaint to ensure that all parties
receive effective notice of the
commencement of the action Where the
respondent is a corporation. (he
administrative complaint must be
addressed to the attention of eitho: the
president of the corporation or the -
corporation’s registered agent for
service of process. However, where
respondent is any entity, including a
corporation, partnership or
unincorporated association, the
signature of any employee or agent or
respondent authorized to sign for
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Federal Register / Vol. 56, No. 126 / Monday. July 1, 1991 / Proposed Rules
cerTified mail in the ordinary course of
that employees duties is sufficient to
properly complete service of the
administrative complaint under these
rules Where respondent is a natural
person, service is complete upon the
signature of any person of suitable age
and discretion at respondent’s residence
or. if the violation is alleged to have
occurred in connection with
respondent’s proprietorship of a
business or other entity, by such
signature at the address of said entity. If
respondent is a State, a municipal
corporation. or other governmental
entity, the administrat ive complaint
should be addressed to the chief
executive officer of such entity or his
authorized agent to receive certified
mail If the complainant is unable to
complete service either personally or by
certified mail, the complainant may
complete service by any other means
consistent with the requirements of due
process.
(d) Notice of administrative
camp /a / aL This provision implements
the requirements of the Safe Dri.nld.ng
Water Act arid section 309 (g) of the
Clean Water Act to provide public
notice upon the initiation of an
administrative action. See, e.g.. section
309(g) of the CWA, 33 U.S.C. 1319(g).
The complainant is to provide public
notice no later than the time of proof of
service. Consequently, based on the
most efficient approach. a complainant
may provide such public notification at
any time between the issuance of the
complaint and the receipt of proof of
service. Because this statutory
requirement describes a duty owed by
the Agi .cy to the public, failure by the
Agency 10 provide timely notice would
not provide a respondent with any
defense to an action under this part. If
the Agency provides such notice through
publication, its date of submission of the
notice to the publicaiion. rather than the
date of publication itse i satisfies the
public notification deadline of this
subsection
This provision requires that those
members of the public that have
requested notice be given such notice by
first-class mail. The Agency does not by
this provision intend to obligate itself to
seek out individual members of the
public on a case-by-case basis. Rather,
the Agency will attempt to inform
members of the public of the initiation of
actions under these proposed rules
where, for example, the Agency has set
up an appropriate mailing list and
invited members of the public to place
their names on the mailing list, or where
a member of the public requests that it
be informed of the initiation of certain
types of actions by the Agency. This
subsection also provides that potentially
affected members of the public be given
notice in a manner reasonably
calculated to provide such notice. Again.
the Agency does not intend by this
provision to obligate itself to personally
notice to all members of the public
potentially affected by an
administrative proceeding commenced
pursuant to these proposed rules.
Rather, the Agency intends ordinarily to
fulfill its statutory obligation by. for
example. publishing notices of the
commencement of the action in a local
newspaper of general circulation or
through other media.
The Agency expects that in many
cases affected States will place
themselves on notification mailing lists.
Nothing in this pan prevents a
complainant from notifying any State or
any person of the commencement of an
action.
(e) Opening of the administrative
record The complainant shall open the
administrative record by filing the
administrative complaint and a
certificate of service with the Hearing
Clerk upon mailing of the adrainistrative
complaint. The complainant may file
additional documents, such as any
documentation underlying allegations as
to liability, anticipatory motions, and
any cover letter sent to the respondent.
Documents filed under this subsection
are available to the public under § 28 17,
although they are not yet certified as
part of the ailministrative record by the
- Presiding Officer.
Nothing in this proposal requires the
complainant to make public or file
additional documents underlying the
issuance of the administrative complaint
before any prehearing exchange in an
action Ultimately, the submission of
such documentation is required before
the Presiding Officer certifies the
administrative record to the Regional
Administrator pursuant to § 2827(a) In
every administrative proceeding under
this proposed part, including consent
and default proceedings. there must be
an identifiable administrative record,
since the Regional Administrator must
have access to the administrative record
of the proceeding to make an
independent inquiry into the
appropriateness of the relief. See
Katzson Brothers, fat. v. EPA, 839 F.Zd
1396 (lath Cir. 1988)
(fl Anticipatory mctions by
camp Joinont This subsection provides
explicit authority supporting an
accelerated motion practice that enables
the Presiding Officer to act on the merits
at the earliest possible time See general
discussion of this section above.
(g) Notification of Agency
decisionmcker This subsection requires
the Hearing Clerk to notify the Presiding
Officer, if there is a standing assignmen
of a Presiding Officer, or the Regional
Administrator, if no Presiding Officer
has been assigned. of the issuance and
comp]etion of service of the
administrative complaint. If no Presiding
Officer has been assigned, the
notification of the Regional
Administrator pursuant to this
subsection serves to inform the Regional
Administrator of the need to appoint
such an officer by the time required by
subsection (hi of this section.
(h) Designation of Presiding Qffzcer.
The proposed rules require the Regional
Administrator to appoint the Presiding
Officer within twenty days of the
issuance of the administrative
complaint. The Regional Administrator
may accomplish this by either
appointing a Presiding Officer to each
action on an individual basis or, at his
option, by implementing a standing or
rotational appointment system. In so’me
Regions, the Regional Administrator
may authorize the standing Judicial
Officer to act as Presiding Officer until a
response is filecli
The twenty day rule is intended to
provide the parties with a forum for the
resolution of disputes prior to the
deadline for respondent’s filing of his
response pursuant to § 28.20 of the
proposed rules. If the Regional
Administrator, for whatever reason,
fails to appoint a Presiding Officer
within twenty days. jurisdiction of the
Agency to initiate the action is not
affected. However, the right of the
respondent to make any preliminary
legal argument shall not be prejudiced
by the Regional Administrator’s delay.
Section 28.17 Availability of
Documents Filed with the Hearing Clerk
This section allows members of the
public an opportunity to review
information relating to the Agency’s
enforcement action. Documents’ on file
with the Hearing Clerk do not
necessarily represent the administrative
record on which the Regional
Administrator will base his decision in
the action Certification of the complete
record does not occur until the Presiding
Officer transmits a recommended
decision. In addition, some documents
held by the Hearing Clerk may be
ineligible for inclusion in the
administrative record See § 28 2(b)
Subsection (a) addresses the Agency’s
obligation to honor valid claims of
confidential business information made
by the respondent. when such claims
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30011
ha;e been properly filed with the
Agency.
Subsection (b) imposes a mandate on
the Agency to treat the filed documents
in such a way as to reasonably guard
against tampering, destraction. kiss or
theft.
Subsection (c) addresses and imposes
existing Agency rules governin,g
reproduction costs. Fees for
reproduction of records are pphcable
to this proposed rule.
Section 28.78 Withdrvwal or
Amendment of Adrninistrotit’e
ComplozaL
This section establishes the forms and
deadlines for withdrawal or amendment
of the administrative complaint by the
complainant and for nolif irtg the other
participants of any withdrawal or
amendment
(a) Withdrawal of administrct,ve
complaint. This subsection provides that
the complainant may withdraw the
adrrimistrative complaint without
prejudice (1) as of right any time before
the applicable deadline of 28.20 (a)
and (b). or the respondent’s response,
whichever is aooner or (2) by
stipulation with the respondeni or by
permission of the Presiding Officer at
any time after the applicable deadline
prescribed in 28,20 (a) end (b) or the
respondent’s response, whichever is
sooner.
(b) Amendment of admirdstrative
complaint. ’This subsection provides that
the complainant may amend the
complaint (1) as of right, any time before
the expiration of the applicable deadline
of 28.20 a) and (b) of the proposed
rule or the ‘respondent’s response.
whichever is sooner or (2J by
stipulation’with the respondent or
permission of the Presiding Officer after
expiration of the’epplicable * 2820 (a)
and (b) deadline or the respondent’s
response in the action.
Section 2819 Consultation with State
fSection 309(g) of the Cle,o.n Water Act
only]
Section 309( g)(i) of the Clean Water
Act, 33 U S.C. § 1319(g)(1). specifies that
“alter consultation with the Stale in
which the violation occurs” the
Administrator may “assess a class I
civil penalty,,. under this subsection
This section implements That statutory
requ rement for consultation with the
appropriate State agency. The Slate’s
opportunity for consultation must occur
within thirty days of the respondent’s
receipt of the administrative compLaint
The Agency may provide an opportunity
for consultation by any reasonable
means, including notifying the
appropriate State official of the
initiation of the action by letter, by
telephone, or ‘m person. The record of
the fact of consultation or, as applicable,
the opportunity for consultation, shall
become part of the administrative
record. The substance of the
consultation is not required to be part of
the administrative record. See
§ 28.2(b)(4).
The Agency is’under no statutory
obligation. and no obligation imposed
under this proposed part, to consult with
the affected State prior ta the initiation
of en action under section 309(g) of the
Clean Water Act. 33 U.S.C. 1319(g). The
statute requires consultation only once
and only before assessment of a civil
penalty, which is final Agency action.
EPA has decided in this proposal to
curtail its discretion to consult with the
affected State at later stages of a section
309(g) action only because such Late
consultation would interfere ‘ith the
timely and efficient administration of
this part. EPA interprets the statutory
consultation requirement togoverri the
federal relationship between two
sovereigns—the affected State and the
United States—and not to invest any
defenses or rights in a respondent in a
Clean Waler Act enforcement action.
Section 28.20 Res? nses to
Administrative Complaint.
This section of the proposed rules
establishes the deadlines for the
respondent and (in the case of the Safe
Drinking Water Act and Section 309 [ gJ
of the Clean Water Act) the public’s
participation in actions undertaken
pursuant to these proposed rules. it also
provides for the respondents
amendment of his response, and
describes the effect of the respondents
failure to make a timely response or to
deny an allegation as to liability in the
administrative complaint.
(a) Rcspondents deadline. This
subsection requires the respondent to
reply to the administrative complaint by
filing with the Hearing Clerk a timely
response, which is to become part of the
admimstrau e record pursuant to
§ 28 2(b) 9). This response is due ithjn
thirty days of receipt of the
administrative complaint or. iF
applicable, within thirty days of receipt
of the Regional Administrator’s
disapproval of a proposed consent
order. See * 28 2(u) for The required
elements of a response if a respondent
does not timely provide a response. he is
not a “party” or “participant’ under this
proposed port, and is subject to the
admission and waiver provisions of this
section
An administrative action under this
part may conclude in a consent order
without the filing of a response if certain
preconditions are met In a CERCLA,
EPCRA, or CWA 311(b)(6) action. the
parties may reach an agreement before
the response is due, In that situation, the
action concludes upon their compliance
wth § § 28.2(i) and 28.22 (a)(l).
In a proceeding under the Safe
Drink [ n Vi’atcr Act or section 309(g) of
the Clean Water Act. the parties cannot
conclude an action without allowing
time for corrirneriters to participate.. The
procedure varies depending on whether
the commenters’ deadline precedes the
respondent’s and whether any
con’.menters participate in the action.
See § § 28 16(d) and 28.20(c). lithe
commentar’s deadline precedes the
respondent s § 26.20(a) deadline, and no
comrnenter participates in the action,
the parties may conclude the action
before the response is due under
§ 28 20(a). In many cases, however, the
comrnenter’s deadline will Tall after the
respondent’s § 28 20(a) deadLine In that
circumstance, if a consent order is to
moot the requirement for a response, the
parties must extend the respondent’s
deadline under § 28,20(b) beyond the
comnirienters’ deadline. l,f no commenters
participate in the action, the parties may
conclude’the action without the filing of
a response by memorializing a consent
order before the respondent’s § 28 20(b)
deadline. § 28.22(a). If a commenter
participates, the parties may lodge a
proposed consent order with the
Regional Administrator under § 28.22(b).
If the Regional Administrator approves
the lodged consent order pursuant to
§ 28.28(b), no response need be filed.
See § 28.22 (a), (b) (‘1) arid 2).
(ii) Extension of respondent’s
deadline, Paragrapb (1) allows the
complainant, in concert with the
respondent, to extend the respondent’s
deadline to respond to the
administrative complamt up to 120 days
after the respondent’s receipt of the
administrative complaint Pursuant to
paragraph (2), upon notice of an offer of
a penalty settlement by the respondent
hich has been timely filed with the
Hearing Clerk, the deadline for IKe
response is extended by thirty days The
purpose is to allow the parties to engage
in informal settlement negotiations. The
substance of the offer shall not lie filed
with the Hea nng Clerk, but only a not ica
as to the fact of its aicistence Presiding
Officer5 may not become involved in the
substance of any settlement offers See
preamble to § 28 4(cJ(5)
The Presidmg Officer may not extend
a respondent’s deadline.
The Agency considers approximately
lots months a reasonable period of time
to allow the parties to attempt to reach a
settlement of the action, while imposing
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a time limit on negotiations that will
assist in the timely resolution of actions
The e proposed rules impose no
obligation on the pert of the Agency to
settle, or to provide any extension Arty
extension granted must be by a written
stipulation filed with the Hearing Clerk
within thirty days after service of the
administrative complaint upon the
respondent These rules do not authorize
any extension of a respondent’s
deadline based upon the date of the
Regional Adrrnnistrator’s disapproval of
a proposed consent order under
§ 28 26(bfls). Consequently if the
Regional Administrator disapproves a
proposed consent order more than
eighty nine days after service of the
administrative complaint, pursuant to
this subsection the respondent’s
deadline for a response is not later than
thirty days after the disapproval.
EPA favors the resolution of disputes
in the most timely end effective manner
possible, and is particularly concerned
that, it not burden small or
unsophisticated respondents with
unnecessary proceedings. During the
time before the answer to the complaint
is due, the parties may agree to
alternative forms of dispute resolution,
such as various forms of arbitration or
mediation. Use of these means may
result in a consent order, or proposed
consent order, or may result in the
voluntary withdrawal of the complaint
by the Agency, if that is appropriate.
Consequently. these proposed rules
favor the settlements of disputes If,
however. these alternative approaches
do not resolve the dispute at this early
stage, the respondent would have to file
an answer to the administrative
complaint by the deadline provided
under § 2820 (a) or (b), whichever
applies EPA solicits comments on the
use of alternative dispute resolutions
prior to the answer being filed in an
action arid solicits suggestions as to
types of appropriate alternatives.
(c) Deodhne for public comment and
participation This subsection applies
only to actions undertaken pursuant to
the Safe Drinking Water Act and section
309(g) of the Clean Water Act See
section 1423(cj(3 ) of the SOWA, 42
U S C 300h—2(c)(3). and section 309(g)(4)
of the CWA. 33 USC. 1319(g 4). which
require an opportunity for public
participation in these proceedings The
Agency recognizes that an individual
may wish to submit comments for the
record, although not become an active
participant in the proceeding In that
case, such timely comments within the
scope of the action wilt become part of
the administrative record of the action,
pursuant to § 28 2(b)(9) (Comments that
are untimely or go beyond the scope of
the administrative complaint, however.
would not qualify under § 28 2(b)(9) and
(15) to become part of the admirustratire
record) If the person wishes to become
a participant—a “commenter” per the
definition of § 28.2(g)—that person
would timely have to identify himself to
the Hearing Clerk as a commenter,
submit appropriate comments or note
what allegations in the complaint he wül
address through his participation in the
action, and provide the Clerk with a
return address. The thirty day deadline
provided in this subsection should run
almost concurrently with the thirty days
provided to the respondent, since under
§ 2816(d) of the proposed rules, the
public notice is to be provided ‘no later
than the time of proof of service of the
administrative complaint.”
Although the public may submit
comments in proceedings under
CERCLA, EPCRA and CWA 311(b)(6) ,
such comments do not automatical’y
become part of the administrative
record of the action unless admitted by
the Presiding Officer pursuant to
§ 28 2(b)(15) These proposed rules do
not provide any opportunity for a
member of the public to become a
participant in a CERCLA. EPCRA or
CWA 311(b)(6) proceeding.
(d) Admission. This subsection
provides that if the respondent fails to
make a timely response, or fails to deny
any allegation included in the
administrative complaint, the
unopposed allegations as to liability are
deemed admitted for purposes of the
action, and may not later be contested-
(e) Waiver This subsection provides
that if the respondent fails to make a
timely response. the respondent shall
have waived its opportunity to appear in
the action for any purpose, including
receiving notice of further proceedings
or opposing the arguments of Agency
counsel in any default penalty
proceeding under § 2821 of these
proposed rules. See also Moose Oil Co.
v United Stoles, Civ No 88—1178E
(N U N Y August 6. 1990) and Regis v.
United States, Civ No 68—1379E
(“J U N Y August 6. 1990) (Holding that
timely appeals to district court unçier
SDWA § 1423(c) (6). 42 U S C 300h—
2(c)(6), would not be upheld on due
process grounds when the respondents
had failed to avail themselves of their
right to request a hearing and the
Agency had substantial evidence in the
record to support its orders)
(1) Amendment of response This
subsection governs the amendment of
responses to the administrative
complaint
Paragraph (fl(i) authorizes a
respondent who has timely responded to
the complainant’s administrative
complaint to amend his response rio
later than thirty days after the
complainant amends the adroinistra tire
complaint pursuant to § 28.18
Paragraph (fl(2) authorizes a
respondent to amend his response up to
thirty days before the date set for a
summary determination of liability
under § 28 25 or a liability hearing under
§ 26 26. whichever occurs first, (1) if the
complainant agrees or (2) ii the
Presiding Officer permits only “upon a
finding of good cause shown, and a
finding that such an amendment would
not prejudice the complainant” Good
cause may be present, for example. ii
the respondent can show that he had
incompetent counsel. or was unable to
help in his defense The complainant
may be prejudiced. for example. if
allowing amendment of the response
would provide the respondent with an
unfair advantage, or an inappropr.ate
delay.
Section 28.2! Default Proceedings
If the respondent fails timely to
respond pursuant to § 28.20 (a) or (b).
there are three important consequences
which ensue First, all allegations in the
complaint which are unanswered or not
denied are deemed admitted Second,
and most importantly. if the complainant
has stated a cause of action, the
respondent will be deemed in default
Third. the respondent shall have waived
its opportunity to appear in the action
for any purpose. including contesting the
complainant’s arguments for the
imposition of a penalty A respondent
who fails timely to respond to the
adniinislxative complaint is not defined
as a “participant” per § 282 (l) Further.
a defaulting respondent waives the right
to appear in the action “for any
purpose.” § 2820(e) Consequently. the
Clerk is not required under § 28 9(b) to
notify a defaulting respondent of a
§ 2821 default proceeding
If a respondent is sanctioned by a
Presiding Officer pursuant to § 28 4 (a)
with a finding of default, as to the
complainant’s claim or claims to which
there has been a default, the respondent
is no longer a “party” or “particip6nt” in
the act on See § 28 2 (l) and (m) In the
case of the sanction of default, which
the Agency expects a Presiding Officer
to consider in only ihe most egregious
c rcumstances of misconduct or
recalcitrance, the person in default, for
purposes of this section. from that time
forward is treated for the purpose of the
defaulted claim as ii he had failed
timely to respond pursuant to § 28.20 (a)
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30013
or(b). Default proceedings are
bifurcated into a determination of
liability and the determination of an
appropriate remedy.
(a) Determination of liability. Under
subsection (a). the only factor to be
considered by the Presiding Officer in
determining liability is whether the
complaint states a cause of action. If the
Presiding Officer finds that the
complaint states a cause of action, he is
to direct the entry of the respondent’s
default in the administrative record. At
that point, the allegations of fact and
conclusions of law as to liability
included in the administrative complaint
become recommended findings of fact
and conclusions of law that the
Presiding Officer will transmit in a
recommended decision to the Regional
Administrator. As noted earlier, all
allegations unanswered or not denied
are deemed admitted. if the Presiding
Officer determines that the complaint
does not state a cause of action, the
Presiding Officer shall permit
amendment of the complaint or shall
recommend that the Regional
Administrator withdraw the
administrative complaint. Any
withdrawal of an administrative
complaint under this proposed Part is
without prejudice, since there is no
ruling on the merits of the action. See
§ 28 18(a).
Under § 28 4(c)(7) of this roposed
Part, the Presiding Officer may not
“ [ djisrniss the administrative
complaint”
(b) Determination of remedy. Where a
determination of liability has been made
by the Presiding Officer and made part
of the administrative record by the
I-fearing Clerk, the Presiding Officer
shall require the submission of a written
argument by the complainant regarding
the appropriate civil penalty to be
assessed. The complainant must provide
such an argument even if the
administrative complaint requested the
assessment of a specific sum. This
submission should include any
supporting documents and must be
submitted within thirty days of receipt
of the entry of respondents default If
complainant submits such information
upon opening the administrative record
under § 28 16(e), there is no need for the
thirty day period to run. A failure by the
complainant to provide written
argument to the Presiding Officer under
this section may result in a failure by the
complainant to carry its burden of
persuasion as to remedy. A3 the
respondent has waived its opportunity
to appear in any action by failing timely
to respond, this communication by the
complainant to the Presiding Officer is
not a prohibited communication. See
§ 28.2(p)(1).
Depending on the statute under which
the complainant is proceeding, specific
statutory factors must be addressed in
the written argument st pporting the
proposed penalty. For penalty actions
under section 309(g) of the CWA,
CERCLA and section 325(b) of EPCRA,
Congress has instructed the Agency to
consider “the nature, circumstances,
extent and gravity of the violation or
violations and, with respect to the
violator, ability to pay, any prior history
of such violations, the degree of
culpability, economic benefit or savings
(if any) resulting from the violation, and
such other matters as justice may
require.” Section 109(a)(3) of CERCLA,
42 U.S.C. 9609(a)(3), and section
325(b)(1)(C) of EPCRA, 42 U.s c.
11045(b)(1)(C). See also section 309(g)(3)
of CWA, 33 U.S.C. 1319(g)(3)
(substantively identical provision). The
statutory factors applicable to actions
under section 311(b)(6) of the Clean
Water Act are “the seriousness of the
violation or violations, the economic
benefit to the violator, if any, resulting
from the violation, the degree of
culpability involved, any other penalty
for the same incident, any history of
prior violations, the nature, extent, and
degree of success of any efforts of the
violator to minimize or mitigate the
effects of the discharge, the economic
impact of the penalty on the violator,
and any other matters as justice may
require.” 33 U.S.C. 1321(b)(B) For
penalty actions under the SDWA, the
argument is limited to the seriousness of
the respondent’s violation or violations,
any economic benefit respondent
enjoyed resulting from the violation, any
history of such violations, any good faith
efforts by the respondent to comply with
the applicable requirements, the
economic impact of the penalty on the
respondent, and such other matters as
justice may require. Section 1423(c)(3)(B)
of SDWA, 42 U.S C 300h—2(c)(3)(B).
The complainant has the burden of
presenting arguments to the Presiding
Officer—the burden of persuasion—
regarding the assessment of an
appropriate civil penalty See § 28 10(e)
The complainant, however, does not
have the burden of persuading Agency
decisionmakers regarding the civil
penalty based on the respondents
inability to pay, or regarding the
respondent’s economic savings, if the
respondent has failed to come forward
with that information by the applicable
deadline. See § § 28.10 (b)(2) and (e) and
2824 (b)(2) and (c) By defaultir.g, the
respondent has admitted all allegations
and has waived its right to appear in the
action. A default results in an
unrebuttable presumption that the
respondent can pay any assessed
penalty and has enjoyed an economic
benefit. See § § 28.10(b) and 28.20 (d)
and (e) In the absence of any showing
by the complainant as to the amount of
economic benefit, however, the
Presiding Officer may take appropriate
official notice of any relevant
miormation on that subject, or may
assign a token amount as the economic
benefit.
In addition, for SDWA actions in
which the complainant is requesting
compliance, the burden of persuasion
regarding the reasonableness of the
requested relief rests with the
complainant.
The Presiding Officer shall prepare
and transmit his recommended decision
to the Regional Administrator, as
outlined in § 28 27, after reviewing the
written argument and the administrative
record. The remaining procedures are
identical to those used for contested
actions. See Subpart D—.Post.Hearing If
the Regional Administrator issues an
order assessing a penalty, the Regional
Administrator shall make findings of
fact which establish the Agency’s
subject matter jurisdiction and the
respondent’s violation of applicable law,
shall set forth conclusions of law, and
shall assess an appropriate penalty after
taking into account, and providing a
discussion of. the application of penalty
factors he must consider under
applicable law. This requirement
explicitly addresses the decision in
Katzson Brothers. Inc. v. EPA. The
respondent shall pay any civil penalty
assessed no later than thirty days
following the effective date provided in
the order pursuant to § 28 31 Upon the
failure of a respondent to pay an
assessed penalty, the Agency may
collect the penalty under applicable law.
See, e g, section 309(g)(9) of the Clean
Water Act, 33 U S C. 1319(g)(9)
Section 2822 Consent Order
(a) Agreement of parties. The parties
may agree to settle any administrative
action brought under this proposed rule
by entering into a consent order at any
time prior to the taking of final Agency
action This settlement must comply
with § 282(i). Except in cases in which a
cornmenter has participated under the
Safe Drinking Water Act or section
309(g) of the Clean Water Act, the action
may not conclude until the parties file
the consent order with the Hearing
Clerk and provide a copy to the
Presiding Officer The Presiding Officer
has no authority under these rules to
disapprove or void a consent order
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Federal Register/ Vol. 56, ,No. ‘120 / Monday, uly 1. 1991 / Proposed RuJes ’
signed by the parties pursuant ta this
sectror. . . Any consenr order signed by the
parties under this section has the force
and effedof an order signed by the
RegionarAdnimistrator under § 28.28
upon filing with the Hearing Clerk,.
except that the signatory respondent’s
waiver of his appeal nghts under this
subsection andj 28.2(i)(8) provides for
greater finality, In the case of a SDWA
or CWA 309(g) action in which a
ccmmeiiter participates, the Regional
Administrator must approve and issue
each proposed consent order before it
may become effective. Under the SDWA
and CWA 309(g). the effective dale of a
consent order is subject further to the
rights of comnienters. See § 282 8 ( 1) (1)
and (3).
The rules limit the scope of the
settlement to the allegations set forth in-
the administrative complaint and the
legality of the relief agreed to by the
parties. See § 28.2(i) and 28.28(b) (1).
(b) Submission of pr’opos’ed cvriseat
order. This subsection sets forth
procedures for the consideratiortof
consent orders. by the Regional
Administrator in Safe Drinking Water -
Act or Clean Water Act 309(g) actions in
which a commen .tet participates.
In otheractiona involving settlement
under this part. the parties may
conclude-the action (see subsection (a)
of this section), but because all timely.
public comment under the SDWAand
CWA 389(g) is part of the administrative
record, and because the final Agency
action must be based on the
administrative record, under paragraph
(bfli) the thirty day public comment
period set forth by 28.20(c) must run
before parties in a SDWA or CWA
309(g) action can lodge a proposed
settlement. It also requires that the
parties, upon the request of the Regional.
Administrator, provide a written
explanation of the legality of the
proposed order. See also § 28.10(c). No
consent order lodged under this
paragraph may be given effect unless
the Regional Administrator approves it
pursuant to § 28.28(b). Consequently.
pursuant to § 28.22 (b)(1)(i) and (b)(4).
all timely public comments will be made
available to the Regional Administrator
before he makes a decision on whether
or not to approve the proposed consent
order Under section 3091g) of the Clean
Water Act. the delay in lodging the
consent order until the comment period
has run will also n’unrnnze the
possibility that the Regional
Administrator would be required under
§ 28 30(b) to set aside an order on
consent for failure to consider material
evidence, since cornmenters would have
had en opportunity to provide the
Agency decisionmaker with necessary
material information to consider in
making a decision on the legality of the
proposed consent order. See also section’
309(g)(4)(C) of the Clean Water Act. 33
U.S.C. § 1319(g)(4)(CJ. The parties may
satisfy the requirement o.f subparagraph
(b)(1)(ii) in whatever form may be
appropriate,, from a cover letter to a
brief with supporting documentation.
Paragraph (b)(2) provides for the
automatic suspension of proceedings
upon the lodging of the consent order.
Paragraph (b)(3) requires that the
complainant’ shall serve any non-
signatory participant. i.e.. any
commenter or any non-settling
respondent, with a copy of the proposed
consent order when the’ consent order as
lodged, and notify the participant of’ the
suspension of the proceeding pending
action of the Regional Administrator
The non-signatory participants may not
communicate with the Presiding Officer
or Regional Administrator regarding the
merits of the proposed consent order.
See § 28.2(p)(ZJ and 28.12(c)(2).
Paragraph (b)(4) recites the
obligations of the Hearing Clerk upon
the lodging of a SDWA or CWA 309 (gJ
proposed conseraLorder. Under the
Rules.. the Hearing Clerk shall not
provide the Presiding Officer with a’
copyof the proposed consent order, but
only notification that is has been
received and transmitted to the Regional
Administrator. The ( residing Officer
needs to know of the lodging of the
proposed consent order in order to
oversee the suspension of the
proceeding pursuant to § 28.22fb) [ 2) of
the proposed rules. However, because
the Presiding Officer may be called upon
to provide the Regional Administrator
with a recommended decision in the
event of the Regional Administrator’s
disapproval of the proposed consent
order, the Presiding Officer is not to
read or discuss with any person the
proposed settlement terms See
§ § 28.2(p)(2) and 28.13(a).
Paragraph (b)(5) establishes an
inclusive, alternate definition of the
administrative record for proceedings
concluded pursuant to this subsection
and § 28 2 8 (b). 1! the parties ha e agreed
to settle their dispute, there is no need to
limit the scope of the administrative
record underlying that resolution, or to
expend Agency resources determining
the boundaries of s ri appropriate record.
J-fcweven in the case of a partial
settlement. use of this alternative
definition does not support the inclusion
in the administrative record in the still-
active remainder of the action of any
documents filed with the Hearing Clerk..
The certifiable administrative record for
any remaining issues is defined by
§ 28.2(b).
A proposed consent order is not filed
with the Hearing Clerk by the parties.
but lodged. It therefore becomes part of
the admimstrntive record only if the
proposed order is ultimately approved
See § 28.28(d). Paragraph (b )(5) ensures,
in concert with H 28.2(p)(2) and 28.12(a)
(defining and prohibiting prohibited
communication) that, in the event the
Regional Administrator ref ects a
proposed settlement and the action is
thereafter adjudicated on the merits, the
Presiding Officer does not make a
recommended decision to the Regional
Administrator bared in any part on the
parties’ settlement positions previously
rejected by the Regional Ad.rninistrator,
and further ensures that the Presiding
Officer is not involved in any settlement
discussions between the parties See
also § 28 4(c)(3) and 28.13(a)
(concerning grounds for requesting an
alternate Presiding Officer).
Additionally, the rules contemplate
that the Presiding Officer will not be
privy to the actual terms of the
settlement unless the consent order is
approved and issued by the Regional
Administrator, § 28.5 (b). Compare
§ § 28.2(p)(2), 28.4(c)(5), 28.13(a) and
28 22fb)(5) with { 28.27(a)(1J (providing
for the Presiding Officer’s certification
of the administrative record). This
limitation is intended to avoid
prejudicing the Presiding Officer in the
event that the Regional Administrator’
d.isap proves the proposed settlement,
necessitating that the action continue.
This approach is similar to that
employed by the federal court system in
its dual use of so-called settlement
judges as well as trial judges. The
Agency does not intend that either party
should risk compromising its litigation
position by agreeing to a settlement
proposal that would be available to the
Presiding OffIcer, this would discourage
settlement, and the Agency intends by
these rules to promote the settlement of
disputes.
Section 28.23 Prehearing Conference
This section provides for a prehearing
conference between the Presiding -
Officer and the parties in order to
consider matters which toay expedite
the disposition of the proceedings, as
v el! as to set the time and place for
further proceedings. The Agency
anticipates that, upon the filing of a
response. the Presiding Officer will
promptly issue a directive to the parties
%%hlch (1) schedules the time, and, if the
conference is conducted in person, the
place of the prehearing conference; and
(2) ach ises the parties of the matters
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whi h wilt be the subject of the
prehearing conference.
(a) Time and form of conference. To
promote the efficient and timely
initiation arid athninistration of actions
brought under this rule, 28 23
establishes a strict time frame in which
the Presiding Officer must hold the
preheanng conferenCe. Accordingly,
subsection (a) requires a prehearing
conference be held no later than thirty
days following the filing of the response.
In all cases the Presiding Officer shall
memorialize his rulings no later than
fifty days following the filing of a
response. See § 28.23 (a) and (d). In
some cases, it may be advisable for the
parties to appear before the Presiding
Officer in person: however, the Agency
expects that in many cases, the
prehearing conference will be conducted
by telephone.
(b) Purposes of conference. This
subsection sets forth the purposes of the
preheanng conference. if no party
requests an information exchange. the
Presiding OffIcer may not schedule one.
The Presiding Officer may, within his
discretion, further limit the scope of the
information exchange (8ee also
§ 28.24(b)), although the Agency does
not anticipate such limitations occurrmg
unless the parties have entered into a
stipulation that moots the usefulness of
a more complete information exchange.
if the complainant has already filed
with the Hearing Clerk oil
documentation the Agency intends to
provide in the action, and states that the
Agency seeks no further information
from the respondent, the Presiding
Officer may forego all but
supplementary exchanges, since
elimination of the initial exchange
would speed the action by as much as
sixty days without prejudicing either
party.
(c) T . rne and place of further
proceedings Under paragraph (c)(1), the
Presiding Officer is to set a time and
place for a proceeding on the merits,
such as a summary determination of
liability or an accelerated recommended
decision under § 28 25 or a hearing
under § 28.26. The proceeding may be
scheduled to occur no sooner than thirty
days following the prehearing
conference. This interval allows the
parties time to prepare. Under
paragraph (c)(2), either party may.
however, within ten days of receipt of
notice of the scheduling of the further
proceedings, request in writing that the
Presiding Officer schedule such
proceeding at a different time or
location.
(d) Prehearin ,g order. Subsection (d)
provides that, within twenty days
following the prehearing conference, the
Presiding Officer shall issue a written
prehearing order to memorialize the
rulings the Presiding Officer made at the
prehearing conference, including rulings
on such procedural issues as the time
and place of further proceedings and, if
appropriate, deadlines for the
submissions of stipulations of fact or
amendments to the pleadings. The
Presiding Officer may also set forth any
stipulations of fact or conclusions of law
agreed to by the parties during the
prehearing conference. The Agency is
aware that certain unforeseen
circumstances may arise after the
prehearing order is issued and therefore
subsection (d) provides that the
Presiding Officer may modify the
prehear’ing order as necessary to aid in
the efficient administration of justice.
The deadline for the parties to complete
the exchange of information as provided
for in the prehearing order may not be
modified under this subsection. hi Clean
Water Act and Safe Drinking Water Act
actions, however, the Presiding Officer
may delay the completion of an
exchange pursuant to § 26.24(c)(2).
Section 28.24 information Exchange
This section establishes the authority
of the parties to require the provision of
information under the relevant
administrative enforcement hearing
provisions of applicable law. Nothing in
this section or this proposed part affects
the right of the Agency to gather
information under other applicable law,
such as section 308 of the Clean Water
Act, 33 U.s c. 1318, section 1423(c)(8) of
the Safe Drinking Water Act. 42 U.S C.
300h—2(c)(9), or section 104(e) of
CERCLA, 42 U S.C. 9604(e), or the right
of any person to request information of
the Agency under other applicable law.
See § 281,
(a) Authority. This subsection sets
forth the exclusive role of this section in
information exchanges. and provides
that this section is available only if a
respondent is a “party” in the action.
See § 262(m) and 26.20(e) The
Presiding Officer has no authority under
this part to require parties to provide
any more information than this section
explicitly authorizes.
(b) Scope of exchange. Discovery is
not constitutionally or statutorily
required in this forum. See Chemical
Waste Management v. EPA, 873 F.2d
1477 (D.C. Cir. 1989) and NLRS V
Inierboro Contractors, Inc.. 432 F.2d 854
(2d Cir. 1970) The Agency proposes to
strictly limit administrative discovery to
expedite and simplify litigation under
this part This approach is implicitly
authorized by Congress, since it helps
the Agency carry out the purposes of the
adnunistrat.ive enforcement authorities
of the relevant statutes. See the
legislative materials referenced in the
discussion above of § 28.1 and Davis.
Administrative Law Treatise. vol. 1.
§ 5.03. Operation of this part does not
prevent the parties from voluntarily
agreeing to widen the scope of a
prehearing exchange: they may stipulate
to other means or subjects of discovery.
Under subsection (b), the information
that may be exchanged is limited to (1)
documents intended to be introducpd at
proceedings under this part for purposes
other than the impeachment of a
witness’ testimony and not already filed
with the Hearing Clerk under § 28.16(e)
(see § 28.2 [ b] [ 1J and 28.16(e) regarding
documents the complainant may have
filed at the time the action is initiated):
(2) witness lists, qualifications of expert
witnesses and the subject matter of
intended witness testimony; and (3)
information known to the respondent
relating to the respondent’s inability to
pay a civil penalty or relating to any
economic advantage accruing to the
respondent as a result of his alleged
violations of law. Other forms of
discovery, including the taking of
depositions, issuance of requests for the
production of documents, and requests
for admissions, are not permitted unless
stipulated to by the parties pursuant to
subsection (a). Documents filed by the
complainant with the Hearing Clerk
pursuant to § 28 16(e) are already
available to adverse parties under
§ 28.17.
(c) Timing of exchange. This
subsection governs the timing of the
information exchange. Paragraph (1)
applies to actions under all applicable
laws, paragraph 2) applies only to the
Clean Water Act and Safe Drinking
Water Act.
The sixty day deadline in paragraph
(c)(1) ensures that litigation under this
part be as quick and efficient as
possible, and does not allow undue
delays in scheduling information
exchanges. If it would be more efficient,
the Presiding Officer may schedule more
than one round of information exchange,
as long as the final round concludes
within sixty days from the date of the
prehearing conference. Where
appropriate, and in particular in
instances in which the complainant has
announced the filing of its liability and
remedy case and forgoes requesting
additional information of the
respondent. the Presiding Officer may
eliminate all exchange except for
supplemental exchange. See preamble
discussion to § 2816.
The sixty day deadline of § 28 24(c)(1)
is not amendable by a prehearing order
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Federal Register / Vol. 56, No. 1W’ / Monday, ruly 1. 1991 / Proposed Rures -
issued’urrder § 28.2 [ cfl. but hi crean
Wate - Act a dSafe-Dnnking-Water Act -
actions, the-Presiding Officer may
extend the-exchange deadline according
to the terms of § 28.24(c)(2). Unlike’
CERCliA, for example, in wInch
Congre&s expressed a prefereoce-for
expedited settrements in a- “special
notlce”provision under Section 122fe-),
42 U S ,C. 9622 (čJ, the CWA end SDWA
contain no specific expediled settlement
language. The Agency also anticipates
that unlike CERCLA and EPC’RA. the
CWA andSDWA violations subject t
this part wifl not be primarily reporting
violations. Litigation in water cases may
at times require an extension of the
sixty day mformation exchange
deadline’ of j 28.24 [ c)(1J.
Since the- partiea may extend the
respondent’s deadline to 121) days under
§ 2 5.20(c), participBte in a prehearing
conference 30 days following that, and’
receive-60 days for-the exchange of
infarmetiorr, they will have as-much as
seven months! grace before facing a
fInal administrative discovery deadline ’
In addition, in afl actions the parties-
may supplement the exchange’ of
iniormation with newly learned
information-regarding witnesses and the
introduction oFdocun,ents, EPA does
not believe that seven months is an
unreasonably short period of time izr
which to-prepare-for limited discovery in
an administrative action.’
Because irewiuformnatian concerning
witnesses ordocirrnents may develop
after an information response deadline
passes, the parties may supplement
iriformatmrrpro’trided under
§ 28.24 [ b)(l); if a party chooses not to-
provide suppleTnentary information,
§ 28 24 [ e)’prevei-its use of such
witnesses or documents- EPA therefore
expects parties to voluntarily
supplement information on these
subjects. In any dispute over when a
supplementing requested .party became
aware of the supplementary
information, the requested party bears
the bnrden olgoing forward and of
proof, since that-party has the best
access to relevant facts
The Agency does not anticipate that
issues regarding a respondent’s inability
to pay a clvi ! penalty-or economic
bench received’ will ma tenafly change
in the intet,n-t between the end of the
preheanng order discovery pci-md arid a
determination of remedy, and. therefore.
in considering the need for effective
administrative penalty proceedings
against the unlikelihood of a material
change in a respondent’s financial
position, has struck a balance by not
providing for an opportunity to
supplement the information exchange on
these issues. lithe-respondent does not
provide information on those subjects
by the prehearirig order deadline (as it
may be extended pursuant to
§ 25 24(c)(2) in Clean WaterAzt and
Safe Drinking Water Act actions).
subparagraph (e)(1) (flu) and (uvj
sanctions apply.
The seven day ruie is proposed to
discourage the abusive litigation
practice of delaying a response until the
eve of a hearing, and then flooding the
requester with boxes of unsorted and
often largely unresponsive documents. If
such an event occurs, or if the Presiding
Officer deternunes that the party
providing the supplemental infonna Lion
had such information on hand before the
initial exchange deadline set forth in the
preheanngorder, the sanctions of
§ 2824(e) apply. tinder 28.24 [ c)(1), the
Presiding Officer may not allow. without
good cause, a party’s supplemental
response to a request for witness
information to be provided later than
seven days before a summary
determination of Liability under § 2825
a liability hearing under § 2526, or a
determinetron of remedy. whichever
occurs firsi -
Paragraph (2) provides that in a CWA
or SDWA action, the-Presiding Officer
may under this paragraph, for good
cause shown, extend the deadline far
the exchange of information for a peruxi
not to exceed 30 days. Good cause for
delaying the exchange includes the
illness of apatticipant or the imminence
(but not Just possibility) of settlement.
but does riot include neglect or
inattention by the parties or their
counseLto the demands of the
adrnuustrative action. The Agency
intends that the Presiding Officer will
promptly respond to a request for a
delay The parties may subsequently
request individual extensions of up to 30
days each, based on a showing of good
cause for each such subsequent request.
(d) Service Subsection (d) provides
that each party shall serve the
information upon each other party and
the Presiding Officer rnformation
exchanged under this section is not by
definition of § 282(b) part of the-
administrative record of the proceeding.
except as the Presiding Officer may
include it under § 28 2(b)(15) and
28 27(a)(1) The proposed rules provide
for service upon the Presiding Officer. so
that he may oversee compliance with
the requirements of this section or
summarily determine, on his own
initiative, whether there are grounds for
a summary determination of liability or
for an accelerated recommended
decision The Agency expects the
Presiding Officer to include all such
relevant documents in the
administrative record in any action in
which the Presiding Officer sue sponte
makes such a determination. See
§ 28.2(b)(15] and 28.25(d)(2).
(e) Sanctions. This subsection
establishes both mandatory arid
discretionary sanctions for failure to
comply with the requirements of § 28 24
See AJ?CO v. U.S. Depai-tmentof
Energy, 769 F.Zd 771, 755-96 (D.C. Cir.
1984) (an administrative agency may
establish sanctions in hearing
procedures as part ofa general grant of
authority by the legislature) For
example, LI a party fails timely to
provide the name and all supporting
information regarding any witness it
intends to present at a hearing under
§ 2826 of this proposed part. such
witness may not be presented. Similarly.
if a party fails timely to produce a
document ii intends to introduce at such
a hearing. that document may not be
introduced to prove the truth of what it
asserts. It may, however, be introduced
solely to impeach the testimony of an
adverse witness. The Presiding Officer
may also impose additional sanctions
that are-just and proper (short of fine or
imprisonment) on a party that fails to
comply fully with the requirements of
this section.
Section 2825 Summary Determination
and Accelerated Recommended
Decision
This section authorizes summary
adjudication of the allegations, without
further proceedings. either upon the
request of a party. or on the initiative of
the Presiding Officer, whenever the
Presiding Officer finds there are no
material facts in dispute and a party is
entitled to judgment as a matter of law
It also authorizes the Presiding Officer
to accelerate the transmittal of his
recommended decision to the Regional
Administrator if there is no compellirg
need for additional fact-finding on
remedy issues
(a) Irntiation. Paragraph [ a)(l)
provides that either party may request a
summary determination or an
accelerated recommended decision at
any tune after service of the response
until 30 days before the time set for a
§ 28 26 liability hearing The Presiding
Officer may. howeier, for good cause
shown, groat a party leave to file a
request for summary determination at
any time before the close of the liabil:ty
hearing. Under paragraph (a)(2), the
Presiding Officer may on his own
summarily determine any of the
allegations only after the time for the
exchange of information pursuant to
§ 2824 has run arid only after he has
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30017
ex(mined the entire administrative
record. The Presiding Officer may
accelerate the transmittal of the
recommended decision upon finding
liability in a summary determination or
upon stipulation as to liability by the
parties, if there is no need for further
fact-finding as to remedy.
(b) Response. Under this subsection,
the party against whom a request for
summary determination or accelera ted
recommended decision has been made
may serve a response to the request or a
counter-request for summary
determination or for art accelerated
recommended decision, or both, within
20 days of his receipt of the request,
unless (1) the Presiding Officer
establishes a different schedule, or (2)
the request was made more than twenty
days before the response to the
complaint was due, in which case the
response to the motion cannot be due
before the answer response deadline of
§ 28.20 (a)(1). A party against whom a
counter-request baa been made may,
under this subsection, serve a response
to the counter-request within 20 days of
his receipt of the counter-request Such a
response is not to be considered an
argument in reply for purposes of 28.8
of these rules. -
The parties must serve copies of the
request, the response, or the counter-
request, as appropriate, on each
participant in the action and file the
original with the Hearing Clerk See
§ 28.9. Whether the parties can submit
reply briefs is discretionary with the
Presiding Officer under 28.6, however.
the Agency anticipates that reply briefs,
but not sur-reply briefs, will be allowed
in most summary determinations Any
legal argument filed under this section
must comply with the limitations in
§28.8.
(c) Form and record of argumenL
Although the Presiding Officer has the
discretion to require oral argument of
each participant under subsection (c).
the Agency expects that the majority of
requests and counter-requests for a
summary determination or an
accelerated recommended decision will
be decided on the pleadings The
Presiding Officer may not entertain
argument regarding settlement pos [ tlons
or allow collateral attacks on Agency
action in argument under this section
This subsection also requires that the
Presiding Officer maintain and file a
permanent record of any oral argument
under this section
(d) Basis forr-iiiing This subsection
sets forth the Presiding Officer’s basis
for ruling on summary determination or
accelerating a recommended decision.
This subsection provides the basis for a
decision to grant or deny a request for
summary determination, or on his own
decide to grant a complete or partial
summary determination. See also
§ 2B.2.5(a)(2). ‘CompelLing need,” as
used here, refers to the need of the
Agency decistonmakers to have an
adequate record upon which to base
final Agency action and represents a
stringent standard to be met before
testimony is allowed on the subject of
remedy. If the Presiding Officer finds
that accelerating a recommended
decision is not appropriate, he shall
schedule a proceeding under § 28 26(h).
(e) Deterrwnatzon of liability. if the
Presiding Officer renders a summary
determination on less than all of the
allegations, he shall issue a ruling which
specifies which allegations are
materially in dispute and which
allegations are not materially
controverted. The Presiding Officer shall
prompt]y serve such ruling on each
participant and the action shall continue
on the allegations for which there is a
material controversy. At the time the
Presiding Officer resolves the remaining
issues in the action, be shall incorporate
the elements of his ruling into the
recommended decision he transmits to
the Regional Administrator.
(f) Determination of genuine issue of
fact. if the Presiding Officer denies a
request for summary determination, he
shall promptly issue to each participant
his ruling on the matter and the action
shall continue on the factual allegations
in dispute. His ruling is not subject to
appeal. See § 2&141a).
(g) Supplementcztiun of adzrnwstrazive
record. This subsection requires the
Presiding Officer to include in the
administrative record those exchanged
documents that he considered in making
a summary determination on his own
initiative. Such documents may not
become part of the administrative
record unless the Presiding Officer files
them with the Heanng Clerk pursuant to
§ 28.2(b) of this part.
Subpart C—Hearing
Section 28.26 Hearing
This section has been proposed to
ensure a fair arid impartial hearing for
the respondent, advance the
Congressional interest in timely and
efficient administrative enforcement
ections and, in the case of the Safe
Drinking Water Act and section 339(g)
of the Clean Water Act, provide for the
participation of commenters.
As stated throughout this preamble.
the proposed rules attempt both to
promote expeditious proceedings arid to
protect the interests of justice. Toward
that end, the Presiding Officer is
authorized under subparagraph (b)(2)(iv)
to lunit the number of witnesses and the
scope and extent of both the direct and
cross-examlr.atton and subsections (d)
and (e) confirm that respondents (or
other participants) may oct make
counterclaims or cross-claims within the
administrative forum. See, e.g.. section
509(b)(2) of the Clean Water Act, 33
U S C. 1359(b)(2): see also § § 281 and
2&4(c)(6). Should a party or other
participant wish to engage in affirmati’ e
litigation with the Agency, it may dci so
to the extent authorized by statute or
regulation in the apprcpnate judicial
forum, or in another administrative
forum.
(a) Scope of hearing. The proposed
rules contemplate that the issues that
must be administratively adjudicated
under this part be limited to the
resolution of disputed allegations
necessary for the trier of fact to rule on
liability issues. Consistent with the aim
of streamlining the administrative
adjudicatory process, the Agency
encourages the Presiding Officer, where
appropriate. to have the parties enter
into stipulations setting forth all
undisputed issues of fact and defining
disputed issues of fact prior to the
commencement of the hearing. See
§ 28.23 b)(1) (preheariztg order). Remedy
issues may be addressed pursuant to
this section in the participants’ dosing
argument, whether under subsection (i)
or (k], or in the specific remedy
proceeding established under subsection
(h) Remedy issues are not addressed
within the adjudicative context set forth
in the remainder of this section.
Ib) Conduct of hearing The overriding
intent of the procedures set forth for the
conduct of liability hearings under this
section is that the Presiding Officer
conduct a liability hearing that meets all
requirements of procedural due process
Subsection (bJ sets forth the duties and
authorities of the Presiding Officer in
conducting a proceeding to determine
liabihty in an action under this part
(c) Testimony. Subsection (c) pro’ ides
for the taking of tesitmony in any form
that is most eff.cient under the
circumstances, at the discretion of the
Presiding Officer. The Agency
anticipates that the most efficient form
of testimony may vary from program to
program. hi water actions, for example,
EPA anticipates the primary use of oral
testimony, in CERCLA actions, EPA
expects written testimony to
predominate. No matter what form of
testimony is per-rnitted, the proposed
rules contemplate that the Presiding
Officer will make adequate provis’ori to
ensure that each party retains its right of
cross-examination if the witness is
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30018
available to tci: .fy or is subject to a
subpoena.
(d) Admission of evidence As is
typical in administrative proceedings.
strict adherence to the Federal Rules of
Evidence is not required by the
proposed rules. With one exception. all
testimony or documentation that is
“relevant, material or of significant
probative value” including hearsay, is
admissible, as long as the witness
presentmg the information is subject to
cross-examination by any opposing
party. See 28.28(f).
The fact that the Presiding Officer is
not required to apply the Federal Rules
does not preclude the Presiding Officer
from relying on the Federal Rules (or
other evidentiary rules) as guidance. in
whole or sri part, in making evidentiary
rulings in a liability hearing. The only
requirement under this part is that all
evidence admitted meet the criteria for
admissibility set forth above. ut see,
limitation on scope of cross-examination
in § 28 26(f). Where authenticity or
identification is in dispute. this
subsection also authorizes the Presiding
Officer to require the authentication of
any writing or the identification of voice
communications.
(e) Official notice. The substantive
standard for the taking of “official”
notice under this subsection so derived
from Rule 201 of the Federal Rules of
Evidence. Like the Federal Rule, the
proposed rule is intended to govern only
notice of adjudicative facts, not
legislative facts. “Adjudicative facts,”
are described in the Notes of the
Advisory Committee on Proposed
[ Federal] Rules as those facts ‘to which
the law is applied in the process of
adjudication.” Unlike the Federal Rule,
however, under the proposed rule, the
Presiding Officers decision to take
official notice is discretionary in all
cases, whereas Federal Rule 201(d)
requires the court to take judicial notice
‘if requested by a party and supplied
with the necessary information”
Further, the Presiding Officer may not
take official notice of facts relating to
settlement, as described in § 28.4(c)(5),
or facts relating to a person’s challenge
to a final State or Agency action.
(f ) Cross-examination Subsection (fi
has been designed to be generally
consistent with Rule 611(b) of the
Federal Rules of Evidence, although in
these proposed regulations cross-
examination is limited to the scope of
the direct examsnation These rules do
not allow a party to use cross-
examination as a supplement to the
limited and exclusive administrative
discovery process provided by § 2824.
Parties may cross-examine a witness
presented by a comm enter to the same
extent as if the witness had been
presented by an opposing party.
(g) Elements and order of
presentation. This subsection descr:bes
the usual agenda for a liability hearing
under this proposed part. The order and
content of such a hearing may be altered
by the Presiding Officer on a case-by-
case basis. The proposed rules
contemplate that each party has an
opportunity to make an opening
statement (with the Agency making its
opening statement first), that the Agency
put on its prima facie case, and that the
respondent thereafter has an
opportunity to present its defense.
It is only by leave of the Presiding
Officer that parties may present rebuttal
and our-rebuttal testimony, except that
any party has the right to present
rebuttal testimony after any cornmenter
witnesses are heard In the case of the
SDWA and section 309(g) of the CWA.
under paragraph (5) cornmenters may.
after presentation of the parties’ cases-
in-chief, offer into evidence a witnesses’
previously identified testimony. The
twenty day notification requirement
upon commenters set forth iii this
paragraph is analogous to requirements
imposed upon the parties under the
information exchange rule in § 28.24,
and is intended to reduce unfairness and
surprise. Unlike the parties, comrnenters
are not subject 1o prehearing
administrative discovery. See § 28.24
(h) Remedy issues The Agency
recognizes that there may be actions in
which underlying facts which are
material to statutory penalty assessment
factors, or, in the case of the Safe
Drinking Water Act, which d rectly bear
on the reasonableness of the requested
remedy, are so deeply disputed that the
Presiding Officer may have a compelling
need to hear testimony on subject of
remedy Remedy testimony is
appropriate when other means of
establishing an adequate record fail
(i) Closing argument Participants ay
present oral closing arguments at the
discretion of the Presiding Officer, and
such closing arguments should address
both liability and remedy issues The
participants may submit documenla ion
supporting their argument If the
Presiding Officer does not allow oral
closing argument, the Agency
anticipates that he would solicit the
submission of written proposed
recommended findings of fact and
conclusions of law as to liability arid
remedy under subsection (k) in order to
ensure that he hears remedy arguments
j) Heari-ig record. Subsection (i)
requires the Presiding Officer to create a
verbatim record of the hearing by any
permanent arid reliable means, and file
it with the Hearing Clerk The filed
record is part of the adrninistratii e
record of the proceeding pursuant to
§ 28.2(b)(1O).
(k) Findings and conclusions.
Subsection (j) authorizes the Presiding
Officer to solicit from the participants’
proposed recommended findings of fact
and conclusions of law as to liability
and remedy, along with any supporting
documentation regarding the remedy,
prior to submitting his recommended
decision to the Regional Administrator.
Subpart D—Post-Hearing
Section 28.27 Recommended Decision
(a) Preparation and transmission
This subsection requires that the
Presiding Officer shall, following an
appropriate determination of the
complainant’s legal claim (under § 28 21.
§ 28.25, or § 2826), or following a
remedy determination (1) Certify the
administrative record as complete and
in compliance with the requirements of
this part; [ 2) Make the administrative
record available to the Regional
Administrator- and, (3) Prepare and
transmit a recommended decision to the
Regional Administrator.
In concert with the definition of
‘recommended decision” set forth at
§ 28 2(r), this subsection requires that
the Presiding Officer base his
recommended decision on the
administrative record and consider any
penalty factors required by applicable
law The purpose of this subsection is to
ensure that the recommended decision
clearly sets forth the legal and factual
bases underlying any final Agency
action undertaken by the Regional
Administrator The Presiding Officer’8
authority to prescribe a remedy is
limited to recommending the ithdrav al
of the administrative complaint or
recommending the issuance of an order
In the case of a recommended decision
concerning the appropriateness of a
compliance order under section 1423(c)
of the Safe Drinking Water Act, 42
U S C 300h—2. the Presiding Officer is
also requred to provide an explanation
of the reasonableness of the
recommended remedy
The purpose and effect of this
subsection assures that any
recommended decision by the Presiding
Officer and, ultimately final Agency
action by the Regional Administrator is
based on the administrative record,
includes consideration of all the
statutory penalty assessment [ actors
and expresses appropriate reasons for
each factual or legal conclusion These
provisions embody constitutional due
process requirements and further
provide any reviewing court with a clear
Federal Register 1 Vol. 56, No. 126 / Monday, july 1, 1991 / Proposed Rules
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Federal Register / Vol. 56, No. 126 / Monday, Iu.ly 1, 1991 / Proposed Rules
3.0019
administrative
record and the reasoning imderlying its
deci ion.
(b) Publication. This subsection
requires the Presiding Officer to file a
copy of his recommended decision with
the Hearing Clerk at the time of its
transmittal to the Regional
Administrator. The Hearing Clerk is
required to serve each participant iith a
copy of the recommended decision.
§2 8 .9 (b ).
Publication of the recommended
decision does not invest any participant
or other person with any procedural
rights not already described in this
proposed part or under applicable law.
In particular, the publication of the
recomendad decision does not
authorize its recipients to make motions
to the Presiding Officer fur his
reconsideration or withdrawal of the
recommendation, does not affect the
prohibition against prohibited
coimnunication set forth in * 28,12. and
does not authorize adzninistrative
appeals prohibited by § 28.14(a) of this
proposed part. Publication of the
recommended decision does not
authori.zeany person to provide a
document of any kind to the Regional
Administrator regarding his decision
under * 28.28. Such communication is
not to be considered by the Regional
Administrator under § 28.2(b), and may
result in sanctions against the person
submitting the document. § 28.12(c).
SectIon 28.28 Decision of the Regional
Administrator
This section sets out the form of and
criteria for the Regional Administrator’s
decision resolving the action, discusses
the method of public notice of such
decision, and establishes the effective
date of any order issued by the Regional
Administrator under this part It also
provides that the Regional
Adininustrator’s decision constitutes
final Agency action for the purposes of
any right of judicial review. This section
does not provide for a briefing
opportunity for participants in the action
to lobby the Regional Administrator on
his decision. See preamble discussion
regarding § 28.27(d) The purpose of this
section is to describe the procedures the
Regional Administrator shall follow in
concluding actions taken under this part
in a manner that provides a clear
statement of the factual and legal bases
for the decision and creates arid
preserves a record for any judicial
appeal.
(a) Coat ested or defouit order. This
subsection sets forth the alternative
remedies which may be ordered by the
Regional Administrator as a result of
proceedings under this proposed part
and provides that the Regional
Adrnirustrator’s decision must be based
on applicable law and the
administrative record, which includes
the recommended decision of the
Presiding Officer. See § 28.2(b)(11).
In accordance with this subsection,
upon receipt of the Presiding Officers
recommended decision, the Regional
Administrator may either withdraw the
complaint if the Administrator
concludes that the complainant has riot
sustained its burden of proof. or issue an
order granting the requested relief, in
whole or in part. Any decision by the
Regional Administrator under this part
must be in writing, supported by clear
reasons based on the administrative
record and applicable law, and include
a statement of the right to judicial
review and of the procedures and
deadlines for obtaining judicial review.
In the case of section 309(g) of the Clean
Water Act. 33 U.S.C. 1319(g). the order
shall also note the right of a cornrnenter
to petition for a penalty proceeding in
accordance with § 28.26(h) of this rule. If
the Regional Administrator rejects the
recommendation of the Presiding
Officer, the explanation for that
rejection is to be reduced to writing and
made part of the administrative record.
See § 26.28(d).
In any order issued under this part the
Regional Administrator is required to (1)
make findings of fact which establish
the Agency’s subject matter jurisdiction
and the respondents violation of’
applicable law, and (2) set forth
conclusions of law. In the case of a
penalty order, the decision must include
a discussion of the applicable penalty
factors which were considered in the
assessment of a penalty under the
particular statute and set forth the
penalty assessed in the case of a
comphance. order under the Safe
Drinking Water Act, the decision must
also include an explanation of the
reasonableness of the required
compliance, including the
reasonableness of the time provided for
compliance.
(b) Consent Order. This subsection
sets forth the criteria for the Regional
Adrruriistrator’e review of a proposed
consent order in a Clean Water Act or
Safe Drinking Water Act action in which
a corunienter participates
This subsection takes into account the
limitations imposed on the Presiding
Officer when the parties lodge a
proposed consent order. Because the
Presiding Officer does not certify the
administrative record in a consent order
proceeding (see § 28.27(a)(1)), the
administrative record in the case of a
proposed consent order is defuicd to
include “all documents that have been
filed with the Hearing Clerk by the
participants before the time the
proposed consent order is lodged and
any written explanation of the legality
of the proposcd order submitted
by the parties .‘ § 2&22(b](5) Since
the Presiding Officer may not see a
proposed consent order, he may not
advise the Regional Administrator e.s to
its legality. Consequently, upon the
Regional Administrator’s request. the
parties themselves advise the Regional
Administrator. See also §,f 2.3.10(c).
28.22(b)(1 )(ii) arid 28.28 (b)(1). In order to
avoid the Presiding Officer’s knowledge
of the proposed consent order or
reasons for it, the parties’ explanation
becomes part of the administrative
record only if the Regional
Adnumstrator approves the proposed
order. See § , 28.5(m), 2&22(b)(5) arid
28 28(d). For similar reasons, the
Regional Adrrun.istrator’s explanation to
the parties of his disapproval of a
proposed consent order may riot become
avmiable to the Presiding Officer by
becoming part of the administrative
record. See § 28.5(h) and 28.28(d).
(c) Publication. This subsection
provides that the Hearrng Clerk shall
send a copy of any signed order
(whether by consent or not) by the
Regional Administrator to the Presidir.g
Officer and each participant within
seven days of the decision. The Regional
Administrator therefore must promplty
provide his signed order to the Heanr.8
Clerk. The Regional Adniinistrator is to
send a copy of each contested or default
order to the Administrator to enable the
Administrator to determine whether to
suspend implementation cf the order for
the purpose of reviewing its conclusions
of law under * 28.29.
(d) Corn plelion of administraln’e
r cord This subsection provides for the
completion of the administrative record
after the Presiding Officers role in en
action is concluded. Certain actions
taken by the Regional Administrator or
Administrator occur after the Presiding
Officer has transmitted a recommended
decision, and this subsection provides
the means by which those actions
become part of the administrative
record See also § 28 2(b).
(e) Date of issuance The decis.c,n is
deemed issued five days following the
date of maihng of the Regional
Administrator’s Order to the
respondent. This period of Lime
conforms to the five day rule for the
presumption of mail delivery prescribed
by §287(b). -
(I) Effective date. This subsection
provides that any order issued under
this part becomes effective thirty days
after issuance unless the Adrnirustrator
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Federal Register/VOL 56, No. 126 1 Monday. July 1. 1991 / Proposed Rules
sus ends the implementation of the
order under § 28.29, a judicial appeal is
taken under the provisions of the
applicable statute or, in the case of
section 309(g) of the Clean Water Act, if
a commenter flies a timely petition [ or
reconsideration under § 28.30. No person
may stay the effective date of an
administrative order by attempting to
appeal it administratively. See
§ 28.14(a). No interested person (as
defined by § 28,2(k)) may lobby the
Administrator to suspend
implementation of the order under
§ 23.29. See § 28.2 (b) and (p), 28.12.
and 2814.
(g) Final Agency action. This
subsection provides that the decision of
the Administrator to approve a consent
agreement or issue an order constitutes
final Agency action on its effective date
for the purposes of any judicial appeal.
Withdrawal of the complaint, however.
does not constitute final Agency action
under this part. Withdrawal of an
administrative complaint, therefore, is
without prejudice to the complainant.
See also § 28.18 (e).
Section 28.2.9 Sua Sponte Review
This section authorizes the
Administrator to review rulings by
Regionat Administrators in actions
under this proposed part on issues of
law, but does not authorize the
Administrator to become involved in
fact-fmnding. or to second guess the
amount of a penalty issued by the
Regional Administrator, or to overturn
orders issued on consent. The Agency
anticipates that the review authority
will be exercised infrequently, but
believes that this authority is necessary
to ensure a consistent Agency position
on applicable law. Without a provision
for uo sponte review, the Agency would
have no opportunity to reconcile
conflicting regional decisions, or to
reconcile inconsistencies with the
interpretation of law provided by the
federal courts.
The thirty-day period for the
Administrcitor’a review matches the
thirty-day lelay of the effective date of
a § 28 28 order. Consequently, the
review period will not create any
additional period of uncertainty
regarding the finality of the Regional
Administrator’s decision.
The Administrator is to withdraw a
Regional Administrator’s order if the
Administrator determines that the
Agency lacks jurisdiction to assess a
penalty or compliance remedy. or if the
Administrator determines that the
respondent is not liable under
applicable law. The Administrator is to
remand an administrative order if he
determines that elements of the
respondent’s liability are different from
those found by the Regional
Administrator, and the remedy should
be conformed to the amended
conclusions of law, or if he finds that the
order does not meet the requirements of
§ 28.28 (a)(3), such as a failure to provide
clear reasons for the decision The
Admi..istrator shall allow the Regional
Administrator’s order to issue
unchanged if the Administrator, upon
review, finds the order legally sufficient
and agrees with aU material conclusions
of law.
Parties are not permitted under these
regulations administratively to appeal
adverse rulings. See § 28.2(b) and [ p).
2812 and 28.14(a).
Section 28.30 Petition to Set Aside an
Order. [ Sect ion 309(g) of the Clean
Water Act Only.)
(a) Initiation. This subsection
implements section 309(g)(4)(C) of the
Clean Water Act, 33 U.S C. 1319(g)(4)(C),
which gives commeriters the right to
petition for a hearing on the penalty
within 30 days of issuance of an order if
the coramenter was given no
opportunity (other than that provided by
§ 28.20(c)) to present argument or
information in a proceeding conducted
under § 28.21. § 28.22. § 28.25. or § 28.26
of this proposed part. For purposes of
this part, a “cominenter participating in
(the) action” must meet the
requirements of 28.2(g) and
28 20(c)(2) to have standing to request a
Regional Administrator to set aside a
§ 28.28 order.
(b) Granting of petition. The Regional
Administrator is to grant such a petition
and set aside the order as to its
assessment of a penalty if he finds that
the comrnenter is presenting material
evidence not considered in the order,
and that either the Presiding Officer bad
riot afforded the commenter an
opportunity for argument in the
proceeding or the Regional
Administrator had issued the order on
default or on consent without
conducting a proceeding under § 2825 or
§ 28.26. If the Regional Administrator
grants such a petition. he is to instruct
the Presiding Officer to redetermine the
penalty through an appropriate penalty
proceeding
(c) Denial of petition. This subsection
authorizes the Regional Administrator,
pursuant to the terms of Section 309(g)
of the Clean Water Act, to deny a
petition to set aside an order if the
commenter fails to provide him with
material evidence not considered in the
issuance of the challenged order. As
required by statute, such a denial.
together with the reasons for the denial.
shall be published in the FederaL
Register. Section 309(g)(4)(C) of the
CWA, 33 U.S.C § 1319(g) [ 4)(C).
Section 28.31 Payment of Assessed
Penalty
This section specifies the time and
method of payment of assessed
penalties. Contested or default penalties
must be paid within thirty days of the
effective date of the order assessing
them, while consent penalties shall be
paid according to the terms of the
consent order. Respondent is to pay by
certified or cashier’s check, unless that
requirement is waived by the Presiding
Officer for good cause In no case shall
the Presiding Officer waive the
condition of payment by certified or
cashier’s check when such a waiver may
endanger the Agency’s receipt of funds
The payment is to be sent to the address
provided by Agency counsel, or set forth
in the order. Penalties paid pursuant to
section 311(b)(6) of the Clean Water Act.
33 U.s C. § 1321(b)(6), are to be paid to
the Oil Spill Liability Trust Fund,
established under section 9509 of the
Internal Revenue Code of 1986. 26 U.S C.
9509, as required by section 2002( 5) of
Public Law 101—380. the Oil Pollution
Act of 1990.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq., whenever an
agency is required to publish a general
notice of rulemaking for any purposed or
final rule, it must prepare and make
available for public comment a
regulatory flexibility analysis that
describes the impact of the rule on small
entities (1 e., small businesses, small
organizations, and small governmental
jurisdictions). The Administrator may
certify, however, that the rule will not
have a significant economic impact on a
substantial number of small entities In
such circumstances. a regulatory
flexibility analysis is not required
This regulation will not impose
significant costs on any small entities
The overall economic impact on small
entities is expected to be slight La
addition, the rule is procedural arid does
not impose additional regulatory
requirements on small entities
Accordingly. I hereby certify that these
regulations will not have a significant
impact on a substantial number of small
entities These regulations. therefore. do
not require a regulatory flexibility
analysis. -
Executive Order No. 12291
Under Executive Order 12291, the
Agency must judge whether a regulation
is “major” and thus subject to the
requirement to prepare a Regulatory
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Federal Register / Vol. 56, No. 126 / Monday, JuJy 1, 1991 / Proposed Rules
30021
Impact Analysis. The notice published
today is not major because the proposed
rule will not result in an effect on the
economy of $100 million or more, will
not result in increased costs or prices,
will not have significant adverse effects
on competition, employment,
investment, productivity, and
innovation, and will riot significantly
disrupt domestic or export markets.
Therefore, the Agency has not prepared
a Regulatory Impact Analysis under the
Executive Order,
Paperwork Reduction Act
These proposed rules do not contain
any information collection requirements
subject to 0MB review under the
Paperwork Reduction Act of 1980 (44
U.S C. 3501 et seg).
List of Subjects in 40 CFR Part 28
Administrative practice and
proci’dure, Hazardous substances,
Penalties, Superfund, Water pollution
control.
Dated June 11, 1991.
William K ReilIy
Admin,stralar.
Therefore, it is proposed that 40 CFR
be amended by adding the following
new part 28 as follows:
PART 28—CONSOLIDATED RULES OF
PRACTICE GOVERNING THE
ADMINISTRATIVE ASSESSMENT OF
CLASS I CIVIL PENALTIES UNDER
THE CLEAN WATER ACT, THE
COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION, AND
LIABILITY ACT, AND THE
EMERGENCY PLANNING AND
COMMUNITY RIGHT-TO.KNOW ACT.
AND THE ADMINISTRATIVE
ASSESSMENT OF CIVIL PENALTIES
UNDER PART COF THE SAFE
DRINKING WATER ACT
Subpart A—General ProvIsIons
Sec
281 Purpose and scope
282 Definitions
263 Number and gender.
284 Presiding Officer.
285 Hearing Clerk
286 Representation by Counsel
287 Computation of time.
288 Limitations on written legal arguments
or statements
289 Service of documents
2810 Parties burdens of going forward.
proof and persuasion
2811 Subpoenas
2812 Prohibited communication
2813 Request for alternate Presiding
Officer,
2814 Unavailability of administrative
uppeal. limitation on requests for
reconside ra lion
2815 Prospective erfect of this Part
Subpart B—Pre hearing
2816 Initiation of action.
2817 Availability of documents flIed with
the Hearing Clerk.
2818 Withdrawal or amendment of
admmistrative complaint.
28.19 Consultation with State [ Section
309(g) of the Clean Water Act onlyj.
2820 Responses to administrative
complaint.
2821 Default proceedings
28.22 Conient orders
2823 Prehearing conference.
2824 Information exchange
2825 Summary determination arid
accelerated recommended decision.
Subpart C—Hearing
2826 Liability heanng
Subpart D—Post-Hea’tng
28.27 Recommended decision
2828 Decision of the Regional
Administrator.
28.29 Sua sponte review.
2830 Petition to Bet aside an order (Section
30G(g) of the Clean Water Act only].
2831 Payment of assessed penalty.
Authority. 33 U.S.C. 1319(g) and 1321 (b) 16).
42 U.S C 9609(a), 42 USC. { 11045(b)(1),
(c)(l). (c)(2) and (d) and. 42 USC. 30Gb—
2(c).
Subpart A—General Provisions
§ 28.1 Purpose and Scope.
This part sets forth procedures for the
efficient and timely initiation and
administration of administrative actions
under sections 309(g)(2)(A) and
311(b)(6](A) and (B)(i) of the Clean
Water Act (CWA), 33 U.S.C.
I 319(g)(2)(A) and 1321(b)(6)(A) and
(B)(i), certain actions under section
1423(c) of the Safe Drinking Water Act
(SDWA), 42 U S C. 300h—2(c), section
109(a) of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA), as amended by the
Superfund Amendments and
Reauthorization Act (SARA). 42 U S C.
O609(a) and, certain actions under
section 325(b)(1), (c)(1), (c)(2), and (d) of
the Emergency Planning and Community
Right-To.Know Act (EPCRA). 42 U.S C
fl045(b)(1), (c)(1), (c)(2) and (d) Nothing
in this part authorizes any person to
challenge in any action commenced
under this part any final State or Agency
action, including the validity or
reasonableness of any applicable permit
or permit condition or (in the case of the
Safe Drinking Water Act), any
regulation establishing an authorization
by ruie. Nothing in this part shall affect
the authority of the Administrator to
implement or enforce any other
provision of law.
28.2 DefinItions.
(a) Administrative complaint means a
document issued by the complainant
that:
(1) Names one or more respondents;
(2) Alleges one or more violations of
applicable law, stating with reasonable
specificity the nature of the alleged
violations;
(3) Proposes a penalty be assessed
upon the respondent as authorized by
applicable law;
(4) [ Safe Drinking Water Act
compliance actions only] Seeks
respondent’s compliance with
applicable law and may propose a
reasonable time for achieving
compliance; and
(5) Is certified by signature of Agency
counsel as a legally sufficient pleading
(b) Administrative record means
(except for purposes of proposed SDWA
and CWA 309(g) consent orders lodged
pursuant to § 28.22Cb) and
28 28(b) of this part) the following
documents that are filed with or by the
Hearing Clerk:
(1) Documentation relied upon by the
complainant to support the allegations
as to liability which were set forth in the
administrative complaint;
(2) Any record held by the Agency of
any previously adjudicated violation by
the respondent of any federal pollution
control or environmental statute or
regulation;
(3) The administrative complaint and
proof of its service;
(4) (Sect on 309(g) of the Clean Water
Act only] The record or summary of the
complainant’s consultation or provision
of opportunity for consultation with the
State in which the alleged violations
occurred;
(5) [ Safe Dnnking Water Act and
Section 309(g) of the Clean Water Act
only] A copy of the public notice
provided by the complainant pursuant to
§ 2816(d) of this part and proof of its
publication:
(6) The record of the designation of
the Presiding Officer;
(7) ISafe Drinking ‘iater Act and
Section 309(g) of the Clean Water Act
only] A memonalization of the date of
lodging of any proposed consent order,
(8) Each action, including the issuance
of a subpoena pursuant to § 2811(a) of
this part, memorialized in writing and
signed by the Presiding Officer.
(9) Each document that is timely
submitted by any participant or any
member of the public pursuant to the
requirerrients and subject to the
limitations established pursuant to
§ § 232(g), 28 4(a), 28 8. 289(a). 28 13(a),
28 20(a—c) and (f), 2821(b), 28 22 e)(1).
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Federal Register / VoL 56,No . i2& / Monday. J’uly I. 1991 / Proposed Rules
28.25(a)(11 and (b), 28.26 [ d)(e](h) (1) arid
(k). and 28.3Ota) of this part:
(10) A verbatim record or
transcription of any liability hearu ,g
held under 28.20 of this part or of any
oral argument regarding a determination
of remedy presented pursuant to this
part;
(11) Any recommended decision of the
Presiding Officer:
(12) Any document filed by the
Regional Administrator pursu.ant to
§ 28.28(d) of this part
(13) [ Section 309(g) of the Clean Water
Act only) Any evidence regarding the
respondent in an action under this part
presented by a participating commenter
to the Regional Administrator and
timely filed with the Hearing Clerk as
part of a request to set aside an order
pursuant to § 28.30(a) of this part and
section 309(g)(4)(CJ of the Clean Water
Act. 33 U.S.C. 1319(g)(4) C).
(14) Any applicable Agency policy
(excluding any Agency policy, or portion
thereof, that applies to settlement of a
penalty claimi concerning the
assessment of an administrative
penalty, and any information relevant to
a penalty determination under such
policy;
(15) Any relevant document which the
Presiding Officer finds will assist in the
timelyand efficient resolution of the
action arid which is not:
(i) A prohibited communication as
defined by subsection (p) of this section;
(ii) Excluded from the administrative
record by the failure of a particIpant to
meet a deadline or other requirement
regarding a document referenced by
paragraph [ b)(9J of this subsection.
excluded by operation of § 28.2(b)(151.
§ 28 4(c) (5) or (6) or § 28.24(e](1) of this
part, or excluded by any sanction an
Agency decisionmaker imposes
pursuant to this part in connection with
the conduct of an actiom or
(iii) (Safe Drinking Water Act and
Section 309(g) of the Clean Water Act
only] Lodged with the Hearing Clerk
pursuant to § 28.22(bJ(1) (i) of this part.
(16) Any record of recusal by an
Agency decisionrnaker.
(17) Any record of payment of an
assessed civil penalty submitted
pursuant to § 28.31 of this part; and
(18) [ Safe Drinking Water Act
compliance action only) Any record of
the respondent’s compliance with the
terms of the administrative order.
(c) Administrator means the
Administrator of the United States
Environmental Protection Agency or hi
delegate.
(dJ Agency means the United States
Environmental Protection Agency.
(e) Agency counsel means any Agency
attorney who represents the
complainant in art action under this part;
(fJ Agency decisionrnajcer means the
Presiding Officer, the Regional
Adrnimstrator. the Administrator, or any
neutraLAgency employee who advises
the Regional Administrator or
Administrator relating to the ment.s of
an action under this part,
(g) (Safe Drinking Water AcL and
Section 309(g) of the Clean Water Act
only] Commen tar means any person
(other than a party) or representative of
such person who, by the deadline
prescribed by § 28.20(c) of this part:
(1) Declares in writing to the Hearing
Clerk that for purposes of the noticed
action he is providing comments
pursuant to the Clean Water Act or Safe
Drinking Water Act, whichever applies.
arid intends to participate in the action;
(2) Submits comments on the
allegations set forth in the
administrative complaint or the relief
proposed in the administrative
complaint, or both, or specifies such
allegations or proposed relief upon
which he will comment and
(3) Provides the Hearing Clerk with a
return address.
(h) Complainant means the Agency.
acting through any Agency employee
authorized by the Mmirustrator to
initiate an action under this Part or
authorized to conclude such an action.
in whole or in part, upon consent;
(i) Consent order means a written
order, issued by the Regional
Administrator and agreed to by one or
more respondents, consisting
(1) Uncontested findings of fact by the
Agency and stipulations by the parties
establishing sublect matter junsdiction;
(2) Uncontested findings of fact by the
Agency establishing the respondent’s
violation of applicable law which has
been alleged in the administrative
complaint
(3) An order consented to by the
parties which assesses a civil penalty
that explicitly takes into account the
penalty factors applicable under law
arid (in the case of the Safe Drinking
Water Act] a compliance remedy which
is reasonably related to the respondent’s
violation of law;
(4) [ Section 309(g) of the Glenn 11’ater
Act only]. In any action in which a
comrnenter is participating pursuant to
§ 28.2(g) arid 28.20(c)(2) of this part, a
statement that any coinmenter to the
action under this part and section 309(g)
of the Clean Water Act. 33 U.S C.
1319(g). may petition the Regional
Administrator to set aside the order
under § 28.20 of this part.
(5) [ Safe Drinking Water Act only]. In
any action in which a commenter is
participating pursuant to § 28.2(gl and
28.20 (c)(2j of this part, a statement that
any commenter to the action under this
partand section 1423(c) of the Safe
Drinking Water Act, 42 T.LS C. 300h-2(c).
may file in the appropriate federal
district court an appeal of a final
consent order pursuant to section
1423(c) [ 6) of the Sare Drinking Waler
Act, 42 U.S.C. 300h.-2(cJ(6), within thirty
days of the dat.e the final consent order
is issued;
(6) A statement that the respondent
waives its right under applicable law to
file in the appropriate federal court an
appeal of the consent order
(7) Provisions requiring payment of
the agreed civil penalty pursuant to
* 28.31 of this part:
(8) A statement. that each signatory
party shall bear its own costs and fees:
arid
(9) All terms of the agreement as
authorized by applicable law.
(j) Document means any record or
collection of information maintained in
a discrete physical form;
(k) interested person means any
(1) Agency employee or contractor
who may or does investigate, litigate, or
present information or evidence.
arguments. or the position of the Agency
in the action before the Presiding
Officer, or who advises such an Agency
employee regarding the action;
(2) Agency employee who actively
participated at any time, directly or as a
supervisor, in any preparation.
investigation or deliberations resulting
in the issuance of the administrative
complaint:
(3) Person who the complainant may
arrange to have appear as a witness on
its behalf in the action; and
(4) Non-Agency participant, witness
or agent of a non-Agency participant, or
defaulted respondent. -
(I) Participant means any party or (in
the case of the Safe Drinking Water Act
or section 309(g) of the Clean Water
Act) any cormnenter.
(in) Party means the complainant, or
any respondent who has complied with
the requirements of § 28.20(a) or (b) of
this part and who has not been
sanctioned by the Presiding Officer with
a finding of default.
(n) Presiding Officer means an
Agency attorney who is to preside over
an action conducted pursuant to this
part, and who is to make a
recommended decision thereon.
(o) Proceeding means any hearing,
determination or other activity involving
the parties conducted by the Presiding
Officer pursuant to the requirements of’
this part.
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30023
(p) Prohibited communication means
any ommunication. documentary or
oral, between an interested person and
an Agency decisionmuker (except
between certain interested persons and
the Regional Administrator pursuant to
28.22 [ bj [ 1] of this part), regarding:
(1) The merits of an action under this
part, without each other party to the
action having had an opportunity
simultaneously to participate in or
respond to such communication:
(2) The substance of’ any settlement
negotiation between parties or the
substance of any proposed consent
order lodged with the Hearing Clerk; or
(3) The substance of a recommended
decision set forth by the Presiding
Officer pursuant to 28.2(r) and
28.27(a)(3) of this part.
(q) [ Safe Drinking Waler Act and
Section 309(g) of the Clean Water Act
only]. Public notice means a document
consisting of:
(1) The name and address of the EPA
office initiating the referenced action:
(2) The name and address of the
respondent, and the activity and facility
or site which the administrative
complaint addresses:
(3) A brief description of the businesa
or activity conducted by the respondent:
(4) Any permit number and pernut
issuance date referenced by the
administrative complaint, or (in the case
of the Safe Drinking Water Act) arty
regulation establishing an authorizaton
by rule referenced by the administrative
complaint;
(5) A brief description of the
allegations of violations in the
administrative complaint and the relief
proposed by the complainant,
(6) The name, address and telephone
number of the Hearing Clerk from whom
interested persons may obtain further
information;
(7) A brief statement of the
opportunity for any member of the
public to subnut written comments on
the administrative complaint to the
Hearing Clerk, and the deadline for the
submission of such comments;
(8) A brief description of the
procedure by which a member of the
public may become a participant in an
action pursuant to 282(g) and
28 20(c) of this part;
(9) A brief statement of the authority
of the Regional Administrator to issue
an order upon default if respondent fails
to file a response within the time period
specified in § 28.20 of this part;
(10) (Safe Drinking Water Act only A
brief, general description of the name or
general description of the receiving
formation and the location of the well
field, or each existing, new or proposed
injection well, whichever applies; and
(11) A brief statement describing the
location and availability (pursuant to
28.17 of this part) of documents filed
with the Hearing Clerk in the action.
(r) Recommended decision means a
document written by the Presiding
Officer, in the form of a decision by the
Regional Administrator pursuant to the
requirements of § 28.28(a)(3] of this part.
which recommends that the Regional
Administrator either:
(1) Withdraw the administrative
complaint on the basis that the
administrative complaint does not state
a cause of action or that the allegations
of fact and conclusions of law in the
administrative complaint are not
supported by the administrative record;
or
(2) Issue an order on the basis that the
administrative record and applicable
law support such an order,
(s) Regional A dminist rotor means the
Administrator of any Regional Office of
the Agency or his delegate. hi a case
where an authorized Agency
Hen dquarters employee initiates an
action under this part, the term
“Regional Administrator” as used in
these rules shall mean the
Administrator.
(t) Respondent means any person
named in the caption of an
administrative complaint, or
representative of such person who the
complainant alleges is liable for the
redress of any violation alleged in the
complaint,
(u) Response means a document.
responsive to the administrative
complaint and signed by the respondent.
that consists of the name, address and
telephone number of the respondent
and, if the respondent is represented by
counsel, also includes the name, address
and telephone number of the
respondent’s counsel and that.
(1) Admits liability, or
(2) Denies liability in whole or in part
and specifies each allegation of fact or
conclusion of law as to liability which is
in dispute and the specific factual or
legal grounds for the respondent’s
defense, and
(3) Opposes or agrees to pay the
proposed penalty in the administrative
complaint and (in the case of the Safe
Drinking Water Act) opposes or agrees
to comply with the relief requested in
the administrative complaint regarding
the regulation, schedule, or other
requirement of (he applicable
underground injection control program
that is alleged in the administrative
complaint to have been violated, or
both.
§ 28.3 Numbel’ and gender.
For purposes of this part, words in the
singular also include the plural and
words in the masculine gender also
include the feminine and vice versa, as
appropriate.
§ 28.4 PresIding Officer.
(a) Authority. (i) The Presiding Officer
may by a signed filing with the Hearing
Clerk:
(i) Issue a subpoena pursuant to
§ 28.11 of this part;
(ii) Allow the withdrawal or
amendment of an administrative
complaint pursuant to § 28.18 (a)(2) or
(b)(2) of this part;
(iii) Determine liability, direct entry of
default as to liability, and conduct a
default remedy determination
proceeding pursuant to * 2821 of this
part, - .
(iv) Allow amendment of a resoonse
pursuant to § 28.20(f)(2) of this part,
(v) Set alternate limitations cii written
legal arguments or statements pursuant
to § 28,8 of this part;
(vi) Issue or modify a preheanng order
pursuant to § 28.23(d) of this part;
(vii) Schedule and further limit
information exchange pursuant to
23.23(b)(2) of this part, and (in a Clean
Water Act or Safe Drinking Water Act
action) delay information exchange
pursuant to § 28.24(c)(2) of this part,
(viii) Reschedule proceedings
pursuant to § 2822 of this part;
(ix) Make a summary determination
pursuant to § 28,25 of this part;
(x) Notify participants of the
occurrence of a prohibited
coinmurucation pursuant to § 28 12(b) of
this part;
(xi) Impose sanctions (other than by
fine or imprisonment) pursuant to
§ § 2812(c) arid 28 24(e)(2) of this part or
to aid in the maintenance of order and
the efficient and impartial
administration of justice.
(xii) Certify the administrative record
and set forth and transmit a
recommended decision pursuant to
§ 28.27(a) of this part; and
(xiii) Waive payment conditions
pursuant to § 28 31(b) of this part. and
(2) The Presiding Officer may.
(i) Except as more specifically
provided by paragraph (a)(1) of this
section, schedule and take certain
administrative actions in conducting any
proceeding pursuant to § 28 25 or § 2826
of this part and
(ii) Except as more specifically
authorized or limited by paragraphs (a)
and (c) of this section and the
requirements of this part, take any other
action specifically authorized oy this
part or necessary to conduct an action
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under this part which will aid in the
efficient and impartial administration of
justice.
(b) Duties. The Presiding Officer shall
in a timely fasbion
(1) Carry out his duties as required by
this part;
(a) Oversee and direct the activities of
the Hearing Clerk in an action under this
part
(3) Schedule activities of the
participants pursuant to the
requirements of this part;
(4] Mernonalize in a signed writing
filed with the Hearing Clerk:
(I) Any action he takes pursuant to his
authority provided by paragraph (all)
of this section;
(ii) Any deadline he establishes
pursuant to his authority provided by
subsection (a) of this section; and
(iii) Any significant action he takes
pursuant to his authority provided by
paragraph (a)(2) of this section: and
(5) Except as liniited by paragraph (c)
of this section and the requirements of
this part, take any other action
necessary for the maintenance of order
and for the efficient and impartial
adjudica lion of allegations arising in an
action under this part.
(c) Limitations The Presithri Officer
shall not:
(1) Have any prior connection with
the action before him including the
performance or supervision of
investigative or prosecutonat functions;
(2) Have any interest in the outcome
of the action before him;
(3) Initiate or knowingly engage in any
prohibited communication with any
interested person or fail to disclose any
attempt by any interested person to
initiate or engage in any prohibited
cornrnunica tion;
(4) Grant an extension. delay,
continuance or stay to a participant
based on a participant’s request for
information pursuant to law outside the
scope of this part;
(5) Allow the introduction of any
document or testimony into the
administrative record relating to
settlement of the instant action or of any
other action.
(6) Hear or consider any challenge to
a final State or Agency action, including
the issuance of any applicable permit or
(in the case of the Safe Drinking Water
Act) the promulgation of any applicable
authorization by rule; or
(7) Dismiss the administrative
corn plaint
28.5 Hearing Clerk,
The Regional Administrator shall
designate a Hearing Clerk. The Heanng
Clerk. in addition to carrying out his
duties as specified elsewhere by this
part, shall:
(a) immediately notify in writing the
complainant and each respondent of the
name of the Presiding Officer designated
under § 2816(h) of this part, and (in the
case of the Safe Drinking Water Act and
section 309(g) of the Clean Water Act)
the Hearing Clerk shall notify in writing
each corninenter upon the close of the
comment period provided pursuant to
§ 28.20(c) of the name of the Presiding
Officer designated under § 28.16(h) of
this part. The Hearing Clerk shall
immediately notify in writing each
participant of the name of any Presiding
Officer designated under § 28.13(b) of
this part;
(b) (Sale Drinking Water Act arid
section 309(g) of the Clean ‘Water Act
only) create and maintain a list of all
comm enters identified under § 28 2(g)
and 28.20(c) of thia part;
(c) (Safe Drinking Water Act and
section 309(g) of the Clean Water Act
only) In any action in which a
commenter participates pursuant to
§ 26 2O(c)(2) of t.his part, immediately
after the deadline prescribed by
§ 28.20(c) of this part notify the
Presiding Officer and each participant of
the name and address of each,
participant in the action, and of the
name and address of Agency counsel
and counsel for the respondent. if anyr
(d) Record the date of receipt of each
document received regarding the action
or (in the case of a Safe Drinking Water
Act compliance order) regarding the
respondent’s compliance with the terms
of the order:
(e) Immediately notify the Presiding
Officer of the receipt of any document
filed with the Clerk by any participant
( I) (Safe Drinking Water Act and
section 309(g) of the Clean Water Act
only) Maintain securely and make
a ailable to each non-signatory
participant each document lodged
pursuant to the requirements of
§ 28 22(b) of this part;
(g) Sill any costs accrued under
§ 28 17(c) of this part:
(h) [ Safe Drinking Water Act and
section 309(g) of the Clean Water .4ct
only) Remove from the file arid return to
the signatory parties any proposed
consent order and supporting -
explanation upon the disapproval of
such proposed order by the Regional
Administrator pursuant to § 28 28(b) of
this part:
(i) Perform such other ministerial and
clerical matters as required by the
Presiding Officer to assist him in
carrying out his responsibilities under
this part. and
b) Perform such ministerial and
clerical matters as required by the
Regional Administrator or
Administrator to assist hum in carrying
out his responsibilities under this purL
§ 28.S Representation by counseL
A respondent or comnienter may be
represented by counsel at any stage of
an action conducted under this part. The
complainant shall be represented by
Agency counsel in all proceedings under
this part.
§ 28.7 ComputatIon of tUne.
(a) CompufoLion of days In computing
any period of time in an action under
this part. the day of the event from
which the designated period runs shall
not be included. Saturdays. Sunda s
and federal holidays shall be included.
except that when a deadline fails on a
Saturday, Sunday. or federal holiday,
the deadline shall be extended to the
next business day.
(hi Time of notice. Except as
specifically provided elsewhere in this
part. for purposes of this part, notice
shall be deemed given at the time of
personal service, or five days after the
date of mailing or other means of
substituted service, except that if notice
is provided by certified mail, return
receipt requested. (or its equivalent
pursuant to § 28.9 of this part) notice
occurs on the date that the return receipt
(or its equivalent) is signed.
fc) Time of compliance Except as
provided otherwise by the Presiding
Officer or § 28.24(c)(1) of this part. a
participant shall be deemed to have
complied with a deadline under this part
if the participant either responds
personally or posts the response by first
class mail (or any other messengered
service that is no less speedy and
reliable) by the applicable deadline
§ 28.6 Llmitattons on written egai
arguments or statements.
Any written legal argument or
statement submitted to the Presiding
Officer by a participant in an action
under this part shall be double spaced
and typed in pica (twuhe point) or
larger type Except as otherwise
provided by this part, further limited by
the Presiding Officer, or otherwise
authorized by the Presiding Officer for
good cause shown, no written legal
argument or statement, exclusive of any
supporting documentation. may exceed
(a) Twelve pages. if an initial
argument:
(b) Six pages. if a responsive
argument. and
(c) Three pages, if an argument in
reply specifically authorized by the
Presiding Officeri or
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30025
(dJ Ten pages. ii a statement
specifically authorized by the Presiding
Officer.
§ 28.9 Service ol documents.
(a) Bypartkipantt. Except as
otherwise provided by this part. each
participant in an action simultaneously
shall serve with an attached certificate
of service upcm each other participant
and the Presiding Officer. personally or
by first class or certified mail (or any
other m r of messengered service
that isno less reliable or speedy), a copy
of each pleading and shall file the
original pleading and the attached
certificate of service with the Hearing
Clerk.
(b) By the HeUring Clerk. Except as
otherwise provided by this part, the
Hearing C}arkpromptly shall serve with
an attached certificate of service upon
each participant. personally or by first
class or certified mail (or any other
manner of messengered service that is
no less reliable or speedy), any notice.
ruling. order, or other document issued
by the Presiding Officer, Regional
Administrator, or Administrator.
(c) Upon cowi.seL Except for service of
the administrative complaint or as
otherwise ordered by the Presiding
Officer, any service made upon a
participant whi:i is represented by an
attorney shall be made by serving the
participant’s attorney.
§ 28.10 Partles’burdens of goIng forward,
proof arid persuasion.
(a) Complainant sbm ’den of going
forward. The complainant has the
burden pursuant to § 28.16(a) of this part
of presenting a cause of ection and
request for relief in the admi.nistrative
complaint
(b) Respondent’s burden of going
forward The respondent has the burden
of timely presenting
(1) In its responsive pleading made
pursuant to § 28 2(u) and 28 20 of this
part any exculpatory statement as to
liability and any statement opposing the
complainant’8 request for relief
proposed in the administrative
complaint, and
(2) All information requested by the
complainant pursuant to § 28 24(b)(2) of
this part and known to the respondent.
(c) Part ies’JoIrn burden of going
forwarrL [ Safe Drinking Water Act and
section 309(g) oF the Clean Water Act
only.] Each signatory to a lodged
proposed consent order shares the
burden, upon the request of the Regional
Administrator pursuant to
§ 28.22(b)(1)(iij of this part, of presenting
to the Regional Administrator
information sopporting the legal bases
of the proposed order.
(d) Comp!ainant’s burden of proof.
Except where the respondent has failed
to carry a burden of going forward as to
a given matter under paragraph (b)(i) of
this section, in any hearing under § 28.26
of this part the complainant has the
burden of proving each allegation of fact
in the administrative complaint by a
preponderance of the evidence.
(e) Parties’ burden of persuasion.
Except where the respondent has failed
to carry a burden of going forward as to
a given matt under paragraph (b)(2) of
this section. in. any proceeding under
this part the proponent of an argument
to the Presiding Officer has the burden
of persuasion.
§28.11 Subpoenas.
(a) Issuance. The Presiding Officer
may. on his own initiative or at the
request of a party, subpoena the
testimony of witnesses or the production
of documents, or both, for a hearing as
to liability conducted pursuant to § 28.28
of this part, in order to determine the
truthfulness of any allegation as to
liability included in the administrative
complaint or statement as to liability
made in the response.
(b) Service. The Presiding Officer
shall serve the subpoena upon its
recipient in the manner prescribed for
the service of an adznirustrative
complaint pursuant to § 28.16(c) of this
part.
(c) Filing with Hearing Clerk. The
Presiding Officer shall file a. copy of the
subpoena with the Hearing Clerk, who
shall serve it on the parties in the
manner required by § 289(b) of this part.
§ 28.12 ProhIbited communication.
(a) Prohibition. No interested person
or Agency decisionmaicer shall initiate
or engage in any prohibited
commimica lion.
(b) Notification and opportunity for
invesb,gat;on If during proceedings
under this part the Presiding Officer
receives or becomes aware of a
prohibited communication by any
interested person, he shall immediately
notify each participant of the
circumstances and substance of the
communication If a participant in the
action initiated or engaged in any
prohibited communication as defined by
§ 26 2(p)(2) of this part or a prohibited
communication as defined by
§ 26 2(p)(1) of this part which v as
significant or prejudicial. or caused it to
be made, the Presiding Officer shalt
upon the request of any participant
require the participant who so
communicated or caused the
communication lobe made, to the extent
consistent with justice and applicable
low, to show cause why that
participant’s claim or interest in the
action should not be denied,
disregarded, or otherwise adversely
affected on account of such
communicatiari.
(c) Sanctions orrecuso]. (1) Except as
otherwise provided in paragraph (c)(2)
of this section, the Presiding Officer
may, at any time before transmission of
a recommended decision under
§ 28.27(a) [ 3) of this part, impose a
sanction on any participant who has
initialed or engaged in a prohibited
communication in violation of paragraph
(a) of this section, or caused such
communication to be made.
(23 The Regional Administrator may,
at any time following transmission of a
recommended decision under § 28 27(a)
of this part, impose a sanction (other
than by fine or imprisonment) on any
participant who, after such
transmission, has initiated or engaged in
a prohibited communication in violation
of paragraph (a) of this section. or
caused such cornrnurucation to be made
[ Safe Drinking Water Act and Section
309(g) of the Clean Water Act onlyj
During any suspension of proceedings
pursuant to § 2822(b)(2J of this part. the
Regional Administrator may impose a
sanction (other than by fine or
imprisonment) on any participant who
has initiated or engaged in a prohibited
cornmurucation, or caused such
communication to be made.
(3) Any Agency decision.maker i ho
has initiated or knowingly engaged in
prohibited communication shall recuse
himself from further participation in the
action except as a witness.
§ 28.13 Request for an alternate Presiding
Officer.
(a) Request A party may. by filing
s ith the Hearing Clerk a legal argument
with supporting affidavits, request the
Regional Administrator to designate an
alternate Presiding Officer on the basis
that the Presiding Officer has not met a
limitation imposed by § 28.4(c) of this
part or has substantially failed to
comply with his duties under § 284(b) of
this part
(b) Decision The Regional
Administrator’s decision on a request
for an alternate Presiding Officer shall
be in writing and shalt be supported by
findings The Regional Administrator
shall grant the request and designate all
alternate Presiding Officer if he
determines that the challenged Presiding
Officer has not met a limitation imposed
by § 284(c) of this part or has
substantially failed to comply with the
requirements of § 28.4(b) of this parL
The Regional Administrator shalt deny
the request if he determines, as
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applicable, that the challenged Presiding
Officer has at all times met the
limitations imposed by § 28.4(c) of this
part or has substantially complied with
the requirements of § 28.4(b) of this part.
(c) Sanctions. The Regional
Administrator may sanction the
requesting party (other than by fine or
imprisonment) if he denies a request
made pursuant to paragraph (a) of t.his
section and deternunes that the
requesting party acted for purpose of
delay or otherwise did not make the
request in good faith.
28.14 UnavailabilIty of administrative
appeal; limitation on requests for
reconsideration.
(a) Unavailability of adrninistrath’e
appeal. No person may administratively
appeal any ruling, decision, or other
action of the Presiding Officer or
Regional Administrator, whether
interlocutory or final, made or taken in
connection with an action under this
part. Na person may administratively
appeal the issuance of a subpoena
issued pursuant to § 28.11 of this part.
(b) Limitation on requests for
reconsideration. No person may request
the Presiding Officer to reconsider the
terms of a recommended decision
transmitted to the Regional
Administrator pursuant to § 28.27(a) of
this part. Except as otherwise provided
by § 2830 of this part, no person may
request reconsideration of any ruling.
decision, or other action of a Regional
Administrator or the Administrator,
whether interlocutory or final, made or
taken under this part.
§ 28.15 ProspectIve effect of this part
This part operates prospectively and
shall govern any action that is initiated
by the issuance of an administrative
complaint on or after the effective date
of this part.
Subpart B—Prehearlng
§ 28.16 initiation of action.
(a) Issuance of administrative
complaint. If the complainant has
information that:
(1) (Section 309(g) of the Clean Water
Act only) Any person has violated
section 301, 302, 308, 307. 308. 318, or 405
of the Clean Water Act (33 U SC
§ 1311.1312, 1316, 1317, 1318. 1328 or
1345). or has violated any permit
condition or limitation implementing any
of such sections in a permit issued under
Section 402 of the Clean Water Act. 33
U.S C 1342. by the Regional
Administrator or by a State, or in a
permit issued under section 404 of the
Clean Water Act, 33 U.S.C 1344. by a
Stale, the complainant may issue an
administrative complaint.
(2) [ Section 31 1(b)(6) of the Clean
Water Act only) Any owner, operator.
or person in charge of any vessel.
onshore facility, or offshore facthty
(i) Has discharged oil or a hazardous
substance in violation of section
311(b) (3J of the Clean Water Act 33
U.S.C. 1321(b)(3), or
(.i) Fails or refuses to comply with any
regulation issued under section 311( 1) of
the Clean Water Act, 33 U.S.C. 1321(j),
to which that owner, operator, or person
in charge is subject, the complainant
may issue an administrative complaint.
(3) [ Safe Drinking Water Act only]
Any person is violating the requirement
of an applicable underground injection
control program, the complainant may
issue an administrative complaint which
alleges such violation and either
proposes a penalty or proposes a
penalty and compliance, as authorized
by section 1423(c) of the SDWA, 42
U.S C. 300h—2{c). An administrative
complaint proposing compliance shall
propose that the respondent comply
with the regulation, schedule, or other
requirement of the applicable
underground injection control program
that is alleged to have been violated, if
the complainant has information that a
person has violated the requirement of
an applicable underground injection
control program, but such violation has
ceased and its cause has been remedied,
the complainant may issue an
administrative complaint which
proposes a penalty for that person’s
violation but does not propose
compliance.
(4) [ CERCLA only) A person has
failed or refused to comply with the
requirements of an administrative order
or agreement entered pursuant to
section 120 of CERCLA (42 U.S C. 9620),
a consent decree or agreement entered
pursuant to section 122 of CERCLA (42
U.S.C. 9622), or has violated the
requirements of section 103 (a) or (b) of
CERCLA, 42 U.S.C. 9603 (a) or (b)
(relating to notice to National Response
Center) section 103(d)(2) of CERCL.A, 42
U S C. 9603(d)(2) (relating to the
destruction of records and related
subjects). section 108 of CERCLA. 42
U.S C. 9608 (relating to financial
responsibility and related subjects); or
an order issued wider section 122(d)(3)
of CEECLA. 42 U.S.C. 9622(d)(3)(relatmg
to settlement agreements far action
under section 104 [ b ) of CERCL ,A, 42
U.S C. 9604(b)), the complainant may
issue an administrative complaint.
(5) (Section 325(b) (1) of EPCRA only)
Any person has violated the
requirements of section 304 of EPCRA..
42 U.S C. 1100.4 the complainant may
issue an administrative complaint.
(6) [ Section 325(c)(1) of EPCRA only 7
Any person has failed to provide acces..
or failed to prepare, have, make
available or submit information as
required by section 312 of EPCRA. 42
U.S.C. 11022. the complainant may issue
an administrative complaint.
(7) [ Section 325(c)(2) of EPCRA only.
except as it may apply to reporting
requirements under section 313 of
EPCRA] Any person has violated any
requirement of section 311 or 323(b) of
EPCRA. 42 U.S.C. 11021 or 11043(b), or
has failed to furnish information to the
Administrator as required by section
322(a)(2) of EPCRA, 42 U.S C.
11042(a)(2), the complainant may issue
an administrative complaint
(a) (Section 325(dj(1) of EPCRA only,
except as it may apply to trade secrecy
claims under section 313 of EPCRAJ Any
person has submitted a trade secret
claim in violation of the requirements of
section 325 [ dfli) of EPCRA, 42 U S C.
11045(d)(1), the complainant may issue
an administrative complaint.
(b] Notice of respondent’s opportunity
for hearing At the time of the issuance
of the administrative complaint, the
complainant shall notify the respondent
in writing of:
(1) The respondent’s opportunity to
respond to the administrative complaint
pursuant to § 2820 of this part,
(2) The consequences of the
respondent’s failure to respond to the
administrative complaint by the
applicable deadline; and
(3) The applicability of this part to the
administrative action initiated against
him
(c) Service of administrative
complaint. Any authorized Agency
employee shall serve the administrative
complaint upon the respondent
personally or by sending it to the
respondent by certified mail, return
receipt requested. If the respondent is a
corporat ion. the complainant shall serve
the President of the corporation or the
corporation’s registered agent for
service of process. If the respondent is
an unincorporated business, a
partnership, or any other form of
unincorporated association, the
complainant shall serve any person
authorized by applicable law to receive
ser ice of process If the respondent is a
federal agency. State or State agency. or
a local unit of government, the
complainant shall serve its chief
executive officer, or its authorized agent
for service of process. Service on the
respondent is complete upon acceptance
of personal service or when the return
receipt is signed by any employee or
agent of the respondent who in the
ordinary course of business is
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30027
authorized to sign for certified mail on
behalf of the respondent. If personal
service is ineffective and if certified mail
is refused or unclaimed, the complainant
shall serve the respondent by another
appropriate means. In such case, service
is complete upon the execution of
substituted service.
(d) Nof ice of administrative
complain:. ISafe Drinking Water Act
and section 309(g) of the Clean Water
Act only] No later than the time of proof
of service of the administrative
complaint, the complainant shall
provide a copy of the public notice of an
action under this part to the public by
providing notice by first class mail to
any person who requests such notice
and by providing notice to potentia.liy
affected persons in a manner reasonably
calculated to provide such notice.
(e) Opening of the admjnist .rvt.zve
record. Upon issuance of the
administrative complaint, the
complainant or Agency counsel shall
open the administrative record by filing -
with the Hearing Clerk appropriate
documents, which shall include the
administrative complaint and attached
certificate of service, and which may
include any evidence of violations, any
information relevant to the assessment
of a civil penalty or the imposition of a
SDWA compliance remedy by the
Regional Administrator, and any
anticipatory motions (including motions
for summary determination, accelerated
decision, and remedy upon default) with
any supporting legal arguments and
affidavits.
(I’) Anticipatory motions by
complainant. Notwithstanding any other
provision of this part, at any time before
the respondent’s deadline for the
response pursuant to § 2820 (a) or (b) of
this part, whichever applies, the
complainant may anticipatorily move
for a default remedy pursuant to
§ 28 21(b) of this part, or for summary
determination as to liability or an
accelerated recommended decision
pursuant to § 28.25 of this part.
(g) Notification a/Agency
decisionmaher. Upon issuance of the
administrative complaint and upon
receipt of proof of service, the Hearing
Clerk immediately shall so notify the
appropriate Agency decisionniaker.
(h) Designation of Presiding Officer.
The Regional Adinirust.rator shati
designate a Presiding Officer for the
referenced Agency action no later than
twenty days after the date of service of
the adnunistrauve complaint.
§ 26.17 AvailabilIty of documents filed
with Hearing Clerk.
The Hearing Clerk shall maintain
securely and shall make available at
reasonable times for inspection and
copying by any person documents filed
with the Hearing Clerk pursuant to this
part, subject to any:
(a) Provision of law restricting the
public disclosure of confidential
business information;
(b) Restriction necessary to insure the
physical security of the filed documents;
and
(c) Agency rule governing the costs of
copying Agency records.
§ 26.18 Withdrawal or amendment of
administrative corripIa nt.
(a) Withdrawal of administ rat/ye
complaint. The complainant may
withdraw the administrative complaint
without prejudicr
(1) Unilaterally and as of right at any
time before the deadline prescribed by
§ 28 20 (a) or (1,) of this part (whichever
applies), or the date of the respondent’s
filing of a response in the action,
whichever is sooner; or
(2) y stipulation with the respondent
or by permission of the Presiding Officer
at any time after the deadline prescribed
by § 28 20 (a) or (b) of this part
(whichever applies), or the date of the
respondent’s filing of a response in the
action, whichever is sooner.
(b) Amendment of administrative
complaint. The complainant may amend
the administrative complaint.
(1) Unilaterafly and as of right at any
time before the deadline prescribed by
* 2820 (a) or (b) of this part (whichever
applies), or the date of the respondent’s
filing of a response in the action.
whichever is sooner; or
(2) By stipulation with the respondent
or by permission of the Presiding Officer
at any time after the deadline prescribed
by § 2&20 (a) or (b) of this part
(whichever applies), or the date of the
respondent’s filing of a response in the
action, whichever 18 sooner.
f 28.19 ConsultatIon with State [ Section
309(g) of the Clean Water Act only]
The complainant shall, within thirty
days of the respondents receipt of the
administrative complaint, provide the
State agency with the most direct
authority over the matters which are the
subject of the action under this part an
opportunity for consultation on the
referenced Agency action
§ 28.20 Responses to admInistrative
complaint
(a) Respondent’s deadline The
respondent shall file with the Hearing
Clerk a response within thirty days after
receipt of:
(1) The administrative complaint, or,
(2) [ Safe Drinking Water Act and
section 309(g) of the Clean Water Act
only] If applicable, the Regional
Administrator’s disapproval of a
proposed lodged consent order pursuant
to § 28.28(b)(2) of this part.
(b) Extension of respondent’s
deadline. For the purpose of engaging in
informal settlement negotiations
between the complainant and
respondent the deadline for the
respondent to file a response pursuant
to paragraph (a)(1) of this section shall
be extendecL
(1) For any period stipulated by the
complainant and respondent (but in no
event for longer than ninety days
following such deadline), by filing such
stipulation with the Hearing Clerk
within thirty days alter respondent’s
receipt of the administrative complaint.
or
(2) For t.hirty days following such
deadline in the case of an offer of a
penalty settlement by the respondent, by
filing notice of the existence of such an
offer with the Hearing Clerk within
thirty days after the respondent’s receipt
of the administrative complaint.
(c) Deadline for public comment and
participation. [ Safe Drinking Water Act
and section 309(g) of the Clean Water
Act only) Any member of the public
may, within thirty days after receipt of
the notice provided pursuant to
* 28,16(d) of this part:
(1) Submit written comments on the
administrative complaint to the Hearing
Clerk identified in the notice: or
(2) Become a participant in the action
by meeting the requirements of § 28.2(g)
of this part.
(d) Admission. Each uncontested
allegation in the administrative
complaint as to liability is deemed
admitted by the respondent. whether by
the respondent’s failure to make a
timely response pursuant to paragraph
(a) or (b) of this section, whiche . er
applies, or by the respondent’s failure in
a timely response to deny such
allegation included in the administrative
complaint.
(e) Waiver. If the respondent fails to
make a timely response pursuant to
paragraph (a) or (b) of this section.
whichever applies, the respondent shafl
have waived its opportunity to appear in
the action for any purpose.
(fl Amendment of response A
respondent who has timely responded
pursuant to paragraph (a) or (b) of this
section, whichever applies, may:
(1) As of right amend Its response
%%ithin thirty days following the
complainant’s amendment of the
administrative complaint pursuant to
§ 28 18 of this part, or
(2) Amend it response no later than
thirty days prior to the date set for the
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first proceeding on the merits under this
part upon stipulation with the
complainant or by permission of the
Presiding Officer upon a finding of good
cause shown and upon a finding that
such amendment would not prejudice
the complainant
28.21 Default proceedIngs.
(a) Determinat ion of liability. If the
respondent fails timely to respond
pursuant to § 28.20 (a) or (b) of this part
or the Presiding Officer determines the
respondent’s conduct warrants
imposition of the sanction of default as
to liability, the Presiding Officer, on his
own initiative, shall immediately
determine whether the complainant has
stated a cause of action
(1) If the Presiding Officer determines
that the complainant has stated a cause
of action, the Presiding Officer shall
direct the Hea .ng Clerk to enter the
respondent’s default as to liability in the
administrative record. Upon entry, the
allegations as to liability included in the
administrative complaint shall be
deemed recommended findings of fact
and conclusions of law.
(2) If the Presiding Officer determines
that the complainant has not stated a
cause of action, the Presiding Officer
shall:
(i) Allow the complainant to amend
the adrnnistrative complaint pursuant to
§ 28.18(b)(2) of this part, or
(ii) Set forth that determination in a
recommended decision to the Regional
Administrator pursuant to § 28.27(a)(3)
of this part and shall recommend that
the Regional Administrator withdraw
the administrative complaint.
(b) Determination of remedy. In any
action under this part in which the
Hearing Clerk has-entered a default as
to liability, the complainant shall submit
within thirty days of receipt of the entry
of default a written argument (with any
supporting documentation) regarding the
assessment of an appropriate civil
penalty and (in the case of the Safe
Drinking Water Act) regarding the
requirement for compliance, subject to
the following limitations.
(1) (CERCLA. section 309(g) of the
Clean Water Act and Section 325(b) of
EPCRA only) The argument shall be
limited to the nature, circumstances,
extent and gravity uf the violation or
violations and, with respect to the
respondent, ability to pay, any prior
history of such violations, the degree of
culpability, the economic benefit or
savings (if any) respondent enjoyed
resulting from the violation, and such
other matters as justice may require.
(2) (Section 311(b)(6) of the Clean
Water Act only]. The argument shall be
limited to the seriousness of the
iolation or violations, the economic
benefit to the violator, if any, resulting
from the violation, the degree of
culpability involved, any other penalty
for the same incident, any history of
prior violations, the nature, extent, and
degree of success of any efforts of the
violator to minimize or mitigate the
effects of the discharge, the economic
impact of the penalty on the violator.
and any other matters as justice may
require.
(3) [ Safe Drinking Water Act only].
The argument as to penalty shall be
limited to the seriousness of the
respondent’s violation or violations, the
economic benefit (if any) respondent
enjoyed resulting from the violation, and
any history of such violations, any good
faith efforts by the respondent to comply
with the applicable requirements, the
economic impact of the penalty on the
respondent, and such other matters as
justice may require. The argument as to
compliance shall be limited to the
reasonableness of the time required for
compliance, if any, and the necessity for
any interim requu ements, such as
reporting requirements, that may be
included in any compliance order.
§ 28.22 Consent orders.
(a) Agreement of parties. (1) Except as
specifically provided by paragraph (b) of
this section, at any time before final
Agency action, the complainant and a
respondent may conclude an action, in
-whole or in part, by agreeing upon a
civil penalty and (in the case of the Safe
Drinking Water Act) a compliance
remedy which is reasonably related to
the respondent’s violation of law The
parties shall memorialize such an
agreement in the form of an Agency
consent order and serve it pursuant to
§ 28 9(a) of this part Upon service, a
consent order signed by the complainant
and a respondent has the force and
effect of a unilateral order which has
been signed by the Regional
Administrator under § 2828 of this part,
except that a signatory respondent may
not appeal such a consent order to the
appropriate federal court.
(2) If the filing of the consent order
%ith the Hearing Clerk pursuant to
paragraph (a)(1) of this section does not
wholly conclude the action
(i) The parties shall inform the
Presiding Officer of the issues that
rerra:n unresolved, and
(ii) The Presiding Officer shall
promptly inform the parties or the
remaining parties of the schedule of the
remaining proceedings.
(b) Submission of proposed consent
order [ Safe Drinking Water Act and
section 309(g) of the Clean Water Act
only) In any action in which a
comrnenter is participating or may
participate pursuant to § 28.2(g) and
26.20(c)(2) of this part, and in which the
parties have reached an agreement on
the terms of a consent order pursuant to
paragraph (a) of this section:
(1) The parties shall
(i) Sign a prcposed consent order and
lodge it with the Hearing Clerk no
sooner than the deadline established for
public comment and participation
pursuant to § 28 20(c) of this part, and
(ii) Upon the request of the Regional
Administrator, lodge a written
explanation of the legality of the
proposed consent order with the
Hearing Clerk.
(2) If the parties have complied with
the requirements of paragraph (b)1)(i)
of this section. the action shall be
suspended until the Regional
Administrator approves or disapproves
the proposed consent order pursuant to
§ 28 28(b) of this part.
(3) The complainant shall serve each
non-signatory participant in the action
with a copy of the proposed consent
order at the time the parties lodge the
proposed order pursuant to paragraph
(b)(1)(i) of this section and notify each
non-signatory participant of the
suspension of the action occurring
pursuant to paragraph (b)(2) of this
section and of the provisions of
§ § 28 2(p), 284(c) and 28.12 of this part
which prohibit communication with the
Presiding Officer or the Regional
Administrator regarding the substance
of the proposed order.
(4) Upon receipt of a proposed
consent order lodged pursuant to
paragraph (b)(1)(i) of this section, the
Hearing Clerk shall notify the Presiding
Officer of its receipt. transmit the
proposed order to the Regional
Admin strator, and make all documents
filed with the Hearing Clerk by the
participants available to the Regional
Administrator Upon receipt of a written
explanation lodged pursuant to
paragraph (b)(1)(ii) of this section, the
Hei’.ring Clerk shall transmit the
explanation to the Regional
Administrator
(5) Upon appro al by the Regional
‘\dministrator of a proposed consent
order pursuant to § 2828(b) of this part.
all docurncn*s that have been filed ith
the Hearing Clerk by the participants
before the time the proposed consent
order is lodged and any written
explanation of the legality of the
proposed order submitted to the
Regional Administrator by the parties
pursuant to paragraph (b)(1)(ii) of this
section are deemed to constitute the
administrative record underlying the
appro ed consent order.
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30029
‘16) Upon disapproval by the Regional
Administrator of a proposed consent
order pursuant to § 28.28(b) of this part.
the Presiding Officer shall promptly
reschedule any previously suspended
proceedings, and the action shall resume
according to the provisions of this part.
§ 28.23 Prehearlng Conference.
(a] Time and form of conference. In
any action in which the respondent
timely responds pursuant to § 28.20 (a)
or (b) of this part, the Preaid.mg Officer
shall hold a prehearing conference
among all the parties to the action not
later than thirty days after such
response. The Presiding Officer may
conduct the conference in person or by
telephone.
(b) Purposes of conference. At the
prehearing conference the Presiding
Officer:
(1) Shall establish a time and place for
further proceedings in the action
pursuant to the requirements of
paragraph (c) of this section;
(2) Shall, upon request of any party.
schedule an exchange of information as
appropriate, and subject to the
hrnitations of § 28.24 of this part, where
appropriate, on his own impose
additional limitations on the scope of an
exchange of information between the
parties;
(3) May attempt to simplify issues and
help the parties to stipulate to facts not
in dispute;
(4) May explore the necessity or
desirability of amendments to the
pleadings; and
(5) May discuss any other appropriate
subject.
Ic) Time and p/ace of further
proceedings (3) The Presiding Officer
shall schedule a proceeding on the
merits of the action and, as may be
required, any other proceeding Except
as otherwise provided by paragraph
(c)(2) of this section, each proceeding
shall be conducted at an appropriate
Agency office The Presiding Officer
shall schedule the proceeding on the
merits to take place no sooner than
thirty days following the date of the
prehearing conference conducted
pursuant to this section. or no sooner
than seven days following the
completion of any information exchange
scheduled pursuant to § 2824(c) of this
part (exclusive of any supplemental
exchange pursuant to § 28.24(c)(1)),
whichever is later.
(2) Any party, on the basis of
necessity. may request in writing within
ten days of receipt of the notice of such
proceeding that the Presiding Officer
schedule such a proceeding at a time or
location other than that initially
specified by the Presiding Officer. The
Presiding Officer shall promptly grant or
deny such a request..
(d) Prehearing order. The Presiding
Officer shall issue to the participants a
prehearing order no later than twenty
days following the conference which
shall mernonalize the rulings of the
Presiding Officer made at the prehearing
conference. The Presiding Officer may.
to aid the efficient administration of
justice, modify the preheanng order as
necessary, except as limited by
§ 28 24(c) of this part.
§ 20.24 Information exchange.
(a)Authori!y. Except by stipulation of
the parties which is filed with the
Hearing Clerk, by the issuance of a
subpoena pursuant to § 28.’fl of this
part, and by authorization of law
outside the scope of this part. this
section provides exclusive authority for
the provision of information by parties
and provides such authority only in an
action in whicb the respondent has
timely responded to an administrative
complaint pursuant to § 20.20 (a) or [ b)
of this part.
(b) Scope of exchonge. Subject to
paragraph (a) of this section. and subject
to any further limitation imposed by the
Presiding Officer in a prehearing order
issued pursuant to § 28.23(b)(2) of this
part:
(1) Each party, upon request by an
opposing party, shall provide, in writing,
to the requestor only:
(i) The name of each witness it
intends to present at any proceeding
under § 28.25 of this part. as well as a
brief description of the witness’
connection to the action, the witness’
qualifications (in the case of an expert
witness), and the sublect matter of the
intended testimony: and
(ii) Each document (other than a
document to be used solely for purposes
of impeachment) it intends to introduce
at any proceeding under § 2625 or
§ 2826 of this part and which has not
been filed with the Heanng Clerk
pursuant to § 28 16(e) of this part; and
(2) Respondent, upon request by
complainant, shall prcvide to the
complainant in writing all information
requested by the complainant and
known to the respondent relating to.
(i) The respondent ’s inabi ity to pay a
civil penalty; and
(ii) The respondent’s net profits.
delayed or avoided costs, or any other
form of economic benefit resulting from
any activity or failure to act by the
respondent which is alleged in the
administrative complaint to be a
violation of applicable law,
(c) Timing of exchange. (1)The parties
shall conduct the exchange of
information according to the schedu.lo
established by the Presiding Officer
pursuant to § 28.23 (b) and fd) of this
part. but except as provided for by
paragraph (c)(2 ) of this section and a
continuing right to supplement described
below, under no circumstance shall such
exchange conclude later than sixty days
after the date of the prehearing
conference. The parties may supplement
information requested pursuant to
paragraph (b)(i) of this section if such
supplementary information becomes
known to the requested party after the
applicable information response
deadline established by the Presiding
Officer. Except for good cause shown,
the supplementing party shall complete
service to the requestor of such
supplemental information by no later
than seven days prior to the date set for
the noticed proceeding.
(2) [ Clean Water Act and Safe
Drinking Water Act only]. The Presiding
Officer may. for good cause shown,
extend the deadline for the parties to
provide information as required by
paragraph (b) of this section for a period
not to exceed thirty days. The Presiding
Officer may grant, in sequence.
subsequent extensions of up to thirty
days each upon an individual showing
of good cause for each extension.
(d} Service. Each party simultaneously
shall serve each set of information
requests or responses to an information
request personally orby first class or
certified mad (or any other manner of
messengered service that is no less
speedy and reliable), with an attached
certificate of service, upon the other
party and the Presiding Officer. If,
pursuant to the requirement of
paragraph (a) of this section, the parties
have stipulated to any other exchange of
information, the parties shall promptly
provide such information to the
Presiding Officer.
(e) Sanctions. (1) Any party that fails
timely.
[ i) To provide the name and all
supporting information required
pursuant to paragraph (b) [ ’l)(i) of this
section regarding any witness may not
present that witness at a proceeding
under § 26 26 of this part.
ii] To produce a document required
pursuant I c paragraph (b)(lliui) of this
section may not submit, or have
submitted, such a document for the
administrative record at a proceeding
under § 2825 or § 28 26 of this part, or
0th erwise;
(iii) To provide to complainant any
information required pursuant to
paragraph (b)(2)(i) of tIns section
concerning an inability to pay a civil
penalty may not submit, or have
submitted, any information for the
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Federal Re s er I Vol. SB. t o . 128 / Monday. J:nly i, i9 i / Propo Rrxles
admrmst.rafive record. cancer ing its
inabth y ’ to pa the civil penalty
requested byeomplainar and
(iv) To provide to camplain rit any
inlormalion required pursuant to
paragraph 6bK2)t t) of this section
concerning ne r profits,. delayed or
avoided costs,, or any ether form of
economic. bentht resulting fro n any
activity orlaileretn.act by the-
respondent which. is aUe La the
adn .nistratjve complaint to be a-
violationof applicable law. may not
submit, or have submitted.,, any
information for the adimnistrative
record art such sublecL
(2 Except a& specifically provided, in
paragraph: (e)(lla.f this section the
Presiding Off:icar has thacretion to
impose on arty’party that. fails. t .o comply
with the requirements of this section.
any sanction that is lust. and proper.
§ 28 25 Summary determination sad
accelerated recommeridecf decision
(a) lmtic€ [ on. In any action in which u
respondent has timely responded to air
sdmirustrativecortiplaint pursuant to
2 .20 [ a) or b} of this part
(1) Any party may requeat, by legal
argument with or without supporting
affidavits, tha4 the Presiding Officer
sun -imari1 ”sfetermine any allegation as-
to liability being adjudicated oa the
basis that there is no genuine is&ue of
material fact for determination
presented by-the administrative record
and any exchange of information. Any
party may also request. bylega
argument with or without supporting
affid -vits, that the Presiding Officer
accelerate his-recommended decision on
the basis that there is no compelling
need. for-further tact-finding concerning
remedy. The requesting party shalt serve
the request at least thirty days. before
any date set for a liability hearing,
except that upon leave granted by the
Presiding Officer forgood cause shown,
the requesting party may file the request
at any time before the close of the
liability hearing.
() The Presiding Officer , .atany b
following the mitral deacilme for the
exchange of informa ton under 2&23
and 2824 of this part and. before. the
commencement of a Liabihty heanfrig.
arid upon exaxmniatioo of the entire
administratrve ’ record. and any exchange
ofinfornatiomrby-thepa-rhes . may on his
own initiative summa.rily determine that
a party is entitled, to judgmenias tn
Liability as a matter of law.
(3 Upon summ uiily determining
liability pursuant to this section, or upon
stipulation by the partres as to liability.
the Presiding 018 cer may on his own
initiative and without further fact-
finding acce’erate the recommended
decision. En reaching the recommended
decision, the Presiding Officer shall
cor ider the apphcab ’le factors se.t ferth
i 2 8 2 1 (h ) of th art and (In thacase.
of a compliance remedy under the Safe
Drinlong WaterArt) shall canst r the
reasonableness of the remedy
(b) Response. Any-party against
whom a request far- summary
deteammatna ox accelerated
recommended decision has been made
shall serve a response to the request or
a counter-request no later than twenty-
days following receipt of the opposing
party’s request, or thirty days following
the service-of the adinirastrative
complaint, whichever is latec, unless the
Presiding Officer establishes a different
schedule. Any party against whom a
counter-request nnder this subsection
has been made may serve a response to
the counter-request no later than twenty
days following receipt of the counter-
request, unless. the Presiding Officer
establishes a different schedule. A party
opposing a request or couirter-request
for .immary determination shall show,
by affidavit or by other documentation,
that the administrative record and any
exchange of information present a
genuine issue of material fact as to’
liabihty.A party opposing a request for
an accelerated recommended decision
shall show, by affidavit or by other
documentation, that there f a
compelling need for the introduction of
testimony material to the assessment of
a civil penalty or [ in the case of the Safe
Drinking Water Actl the inipos tiori of a
compliance remedy.
(c) Form and record ofi argument.
After receipt of all information
associated with a request or counter-
request under this section from all
parties, or pursuant to paragraph (a)(2)
or (a)(31 of this section, the Presiding
Officer may require oral argument of
each participant in order to aid the
administration of justrce.The Presiding
Officer shaLl riot allow argument
regarding rn.atters. barred from the
adininistrativerecordiby operalion of
§ 284(c) (5) or (6) of this part If the
Presiding Officer allows rebuttal
argument, such. rebuttal shall be allowed
only to the parties. The Presiding Officer
shalL create by written. electrornc. or
tither perma.nerit and reliable means a
verbatim record of any oral argument
presented pursuant to this section and.
shall file that record with the Hearing
Clerk.
(d) Basis far ruling. (1) The Presiding
Officer shall rule on a request for
summary determination oran.
accelerated recommended decision.
tinder paragraph (a)(1) of tins 5ectioa.
promptly afterhe finds, busecion the
odministrative’record , ,any excha-nge. of
information, and any arguniento of the
paicipaxrts. whether the participants
present ageninne issue of material fact
as to lu 1-thtyath whether a party is
en tilled. to pidgmeni as to liabthty as a
mattel-QI law.. The Presiding Officer
shall rule on. a request for an
accelerated recommended decision
based on whether there is a compelling
need for further fact-finding. If the
Presiding Officer denies a request for an
accelerated decision, the Presiding
Officer shall promptly schedule an
appropriate proceeding pursuant to
§ 28.28(h) of this part to develop the
a dimnistra bra record regarding an
appropriate remedy.
(2) The Presiding Officer shall on his
own initiative sununarily determine that
a party is entitled to judgment as to
liability as a matter of law if he finds,
based on an examination of the
administrative record and any
information exchanged by the patties.
that the participants present nogenwrie
issue of material fact as to lIability and
a party is entitled to judgment as to
liability asa matter of law.
(elDeterrrnnatian ofliabifity. If the
Presiding,Officer determines that a party
is entitled to judgment as to liabthty as a
matter of law by means. of summary
determination, the Presiding Officer
shall prepare any written recommended
finding of fact arid any conclusion of
law corresponding to such
determination. If the Presiding Officer
does not accelerate a recommended
decision, the Presiding Officer shaLt
promptly serve each participant witha
copy of such recommended finding and
conclusion of law. If the Presiding
Officer accelerates the recommended
decision,, upon completion of the
rccommended decision the Presiding
Officer shall follow the procedures
prescrLbed. by § 28.27 of this part.
(f) Determinolion of genume issae of
fact. The Presiding Officer shall deny a
request for summary determination of
liability if he finds the administrative
record and any exchange of information
by the parties present a genuine issue of
material fact. If the Presiding Officer
denies a request for summary
determination, or denies such a request
in part, the Presiding Officer shall
prcmptly issue to each participant a
written ruling as to the existence of a
genuine issue of material fact as to
liability and the reasons for the ruling,
and the action shell continue ott the
factual allegations over which the
participants have demonstrated the
existence of a genuine issue.
(g) Supples’rentation of administrative’
record l it any action. in which the
Presiding Offleerhas on. his o ,wn
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30031
initiative determined that a party is
entitled to judgment as to liability as a
ma tier of law pursuant to paragraph
- (a)(2) of this section. and has based that
determination in any part on any
document provided pursuant to § 28.24
of this part that is not otherwise within
the administrative record, the Presiding
Officer shall incorporate such document
into the administrative record pursuant
to 2B.2(b)(15) of this part by filing it
with the Hearing Clerk. The Presiding
Officer shaU not incorporate in the
administrative record any document -
barred from the administrative record
by operation of § 28 4(c) (5) or (6) of this
part.
Subpart C—Hearing
§ 26.26 LiabIlity hearing.
[ a) Scope of hearing. Except as
otherwise specifically set forth in
paragraphs (l i) 1 (1) and (k) of this section,
the Presiding Officer shall conduct any
hearing pursuant to this section
necessary to determine the truthfulness
of any unresolved allegation of fact (or
conclusion of law based on an -
unresolved question of fact) as to
liability which was set forth in the
administrative complaint.
[ b) Conduct of hearing. (1) The
Presiding Officer shall conduct a fair
and impartial proceeding in which each
participant has a reasonable opportunity
to be heard and to present evidence.
(2) The Presiding Officer may:
Ii) Administer the oath or affirmation
of a witness;
(ii) Require the authentication of any
written exhibit or statement;
(iii) Examine witnesses to clarify the
administrative record; and
(iv) Limit ihe number of witnesses and
the scope and extent of any direct
examination or cross-examination under
this section as necessary to protect the
interests of justice and conduct a
reasonably expeditious hearing
(c) Testimony. Each witness shall
testify in the form determined by the
Presiding Officer to be most efficient in
resolving an issue Forms of testimony
include oral testimony provided in
person or by other means, and written
or otherwise recorded testimony.
Testimony shalt be limited to facts
regarding liability and shall not include
issues of law
[ d) Admission o [ evidcnce. The
Presiding Officer shall decide which
documents and testimony shall be
admitted into evidence. The Presiding
Officer shaLl admit all evidence which is
relevant, material, or of significant
probative value. The Presiding Officer
shall not admit evidence barred from the
administrative record by operation of
§ 28.4(c) (5) or (6) of this part.
(e) Offici ai no!,ce. Except as
prohibited by § 28.4(c) (5) or (6) of this
part, the Presiding Officer may take
cfficial notice of matters judicially
noticed in the federal courts, of other
facts within the specialized knowledge
and experience of the Agency, and of
matters that are not reasonably in
dispute and are commonly known in the
community or are ascertainable from
readily available sources of known
accuracy. Prior to taking official notice
of a matter, the Presiding Officer shall
give the parties an opportunity to show
cause why such notice should not be
taken.
(I) Cross-examination. Any opposing
party has a right of cross.examination
after the introduction of a witness’
direct testimony. A party shall not cross-
examine regarding a matter that is
outside the scope of the direct
examination. (Safe Drinking WaterAct
and section 309(gl of the Clean Water
Act only) The Presiding Officer shall not
allow a commenter an opportunity to
cross-examine a party’s witness. Agency
counsel has the right to the first cross-
examination of a commeriter’s witness.
(g) Elements and order of
presentation. The elements of a liability
hearing are set forth in paragraphs (g)
(1) through (6) of this section. Unless
otherwise directed by the Presiding
Officer, the order of the hearing shall be
as follows:
(1) Agency counsel may summarize
the factual bases cf the administrative
complaint and intended witness
testimony.
(2) The respondent may summarize
the factual bases of the response and
intended witness testimony.
(3) Agency counsel may offer any
inculpatory testimonial or other
evidence within the scope of the
hearing
(4) Respondent may offer any
exculpatory testimonial or other
evidence within the scope of the
hearing
15) (Safe Drinking Water Act and
section 309(g) of the Clean Water Act
only Any commenter may introduce
testimonial or other evidence within the
scope of the hearing under this section if
such evidence concerns an allegation
identified by the commenter pursuant to
§ § 282(g) and 2820 (c ) of this part,
subject to the following limitations
(i) The commenter may offer into
evidence a witness’ testimony only if the
commenter had notified all other
participants at least twenty days prior
to the commencement of the liability
hearing of the name of the witness, a
brief description of the witness’
connection to the action, his
qualifications (in the case of an expert
witness), and the subject matter of the
witness’ intended testimony.
(ii) The commenter may offer into
evidence a document only if the
commeriter had provided a copy of such
document to all other participants at
least twenty days prior to the
com mencement of the hability hearing.
(6) At the discretion of the Presiding
Officer, the parties moy present rebuttal
testimony within the scope of evidence
introduced at the hearing, except (in the
case of the Safe Drinking Water Act and
section 309(g) of the Clean Water Act)
the parties shall have the right to
present rebuttal testimony in response
to any testimony presented by a
commenter’s witness.
(h) Remedy issues. The Presiding
Officer has the discretion, based on a
compelling need for additional fact-
finding on issues material to remedy, to
allow the participants to introduce
testimony on such issues. The Presiding
Officer shall not allow testimony if the
issues can be appropriately explored by
use of legal argument and affidavits, or
by the submission by the participants of
written recommended findings of fact
and conclusions of law pursuant to
paragraph (k) of this section. If the
Presiding Officer allows such testimony,
he shall ccnduct such proceeding in the
most timely and efficient manner
possible In any such proceeding, the
Presiding Officer shall consider any
applicable Agency policy (except any
Agency policy, or portion thereof, that
applies to settlement of a penalty claim)
concerning the assessment of an
administrative penalty.
(i) Closing argument After all
evidence has been presented at the
hearing, the Presiding Officer may allow
the participants to present an oral
closing statement regarding issues of
liability and of remedy. and may allow
the participants to submit any
documentation regarding remedy
Ii) Hearing record The Presiding
Officer shall create by written,
electronic, or other permanent and
reliable means a verbatim record of the
hearing and shall file that record with
the Hearing Clerk.
(k) Findings and conclusions The
Presiding Officer may request the
participants to submit, within a
reasonable time after the conclusion of
the hearing, proposed recommended
findings of fact and conclusions of law,
as well as any documentation regarding
remedy. The Presiding Officer shall,
after the conclusion of a hearing and the
submission of any documents requested
pursuant to this section, follow the
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3 83
Federal Register / Vol. 58, No. 128 / Monday, Jaly 1. 1q91 / Proposed Rules
procedures pz cuhed by § 2&27 cif thi&
part.
SU8PART 0—POST-HEARING
§ 2827 oxw ndM declslon.
(a) Preparotioir anransmj sswn-.
Within a reasonable time follcwing any-
remedy proceedIng pursuant to
§ 28 21(b), § 28.25cr 28 28(Pij of this
part, or upon a determination by the
Presidi g Officer pursuant to
28.21(aJ(2 )fli) or § 2g 2S of thfs part
tha1 the ’compfai iunrhas faded tocorly
its burden of go ig forward pursuant to
the provisions o5 2810(a) of this part,
or upon a determ*iatien by the Presiding
Officer that the oonipinftrssrt has failed
to cony ’ any burde,t of proof pursuant to
§ 28.1O [ dJ and 28.2&of this part, the-
Presiding Officer shaTh
(1) Certify the ’adinfnfstrotiva record
as eomp}eth’ to date and 1st compharice
with a ll requirements of this port
(2) Make the administrative record
available to the Regionat AdministraXor
and -
(31 Prepare and’ transmil a
recomwemled decision to the Regkinai
Acfminisfrator.
(bI PubffcaliorL The PresidIng QI cer
shafl file a copy of the recommended
decision wilJL the Rearing Clerk at the
time of its transmittal to the 2.egionai
Adminfatrajor and: the Efearirig Clerk
immediately shall serve each partic.ipant
with a copy of the recommend
decision.
§ 2&Z8 Decisional the Reglonat
Admin1sttat - -
(a Contestedordefozr1torder In any
action in which the Re orial
Administrator receives a recuinmended
decision from the Presiding Officer, the
Regional Admirnstrator shall:
(1) Hase his decrsioti on the
administrative record and the applicable
law;
(Z) Within a reasonable time following
receipt of the Presiding Officer’s
recommended decision
(i) Withdraw the adniintstrati e
complaint on the basis that the
adn ’urustrative complaint does not state
a cause of action or that the allegations
of fact and conclusions of law in the
administrative complaint are not
supported by the administrative record.
or
(ii) Issue an order on the basis that the
administrative record and applicable
law support such an order and
(ilL) If the RegionaL AdministraLor
rejects the recommendation of the
Presiding Officer in whole or in part.
provide a written explanation. for that
refection that states each. pouitof
disagreement with the recommendation
of the Presiding Officer.
(3) Upon issuanco of an order
pursuant toa phtah1e law. provide a
written decision that issuppor d b
clear reasons id the administrative
recQrd and inctudes astatementof the
right of ludJciaLrevIew awiof the-
praced.usea sad dea U .iaes for olitaining
judiciaL review. The order shall be
wmpriaed c i the Regional
Adniims tin tora findings of fact which
estabLish the Agency’s subiect ma1t
jurisdiction and the respondents
viclation.ofari ,apphcable law as.
alleged in the admuijsirative complain1
conchisionsof Law, assesemeni of an
appropriate penalty after taking into
account all applica.ble statutory penalty
fan an L. Lf applicable (in the case of
the SafeDrinking Water Act),
requiremeni of compliance with
applicable requirements. [ Section 3t (g)
of the Clean Wa ,ter-Act enlyl. hi
action izLwhichia caznmenl r is
participating ptaauauiatc § 28.Ztg} and
2&.20(c)(2) .oL this part, the order shall
state that the comzlienter has the eight to
petitioa to- set aside the order pursuant
to §2&3Oofthispasl.
[ b’j Consent o rder. [ Sale- Drinking
Water Act arid section 3O9(g) of the
Clean WaA Act on1y ]
(lj in any artica in which the Regionail
Administrator receives a pr po ed
consent order-from the Hearing Clerk
pursuant to 28..22(bJ(4} of this part, the
Regional Administrator shall determine
whether the-proposed consent order
meets the requixenienbof this part and
applicable law by reviewing the
proposed order, the administrat ive
record, and an& written eicplanatioa of
the legality of the order submitted upon.
his request by the signatory parties.
(2) Within a reasonable tune following
its receipt, without amendment and by
his signature the Regional Admimsirator
shall either approve and issue or
disapprove the proposed consent order.
If the Regional Adtniwstrator
disapproves the proposed consent orden
he shall provide the signatory parties
with a written, explanation for the
disapproval based on Lbs factors set
forth in paragraph-(h)(1) oussection.
(c) PubLication. The Hearing Clerk
shall, within, seven days of the-sigrungof
an order by the-Regional Administrator
under this section, send a copy of the
order
(1) To the Presiding Officer., eadi
participant, and any defaulted
respondent, and
(2) To the Adnuaistrator, if the order
was issued pursuant to paragraph [ a) of
this section.
(d) CompIeLwzz of administrative
record. The Regional Administrator
shall file with the 1-fearing CLerk the
record af any sanction he imposes under
28.1.2 [ c )(2 ) or § 28.13(c) of this part.
any decision he makes regardi a
request for an alternate Presiding
Officer under 2813(b) of this part. any
written. e%plamsatson submitted by the
parties pursuant to § 282Z(b)(1)(n) of
this part in support of a consent order
that has been appra’secL by the Regional
Administrator.. any action 01 the
Admnistratcirpursua.nt to § 22.29 of this
part, any written e lanation. ala
rejection of the recommendation of the
Presiding Officer-pursuant to paragraph
(a)(2J(iiil of this section.. any order the
Regional Administrator issues pursuan.t
to this section, any other significant
action he takes in an. action under this
Part other than a written explanation of
his disapproval of a proposed consent
order, arid (in the case of an action
pursuant to section 309 [ gJ of the Clean
Water Ad) any evidence submitted by-a
petitioner pursuant to- § 28.30 of this part
and any decision to grant a petition
pursuant to § 2 5.30(b) of this part.
fr) Dtrte of isstzcrrce’. For purposes of
appeal, an order of the Region.aF
Adininistrator pursuant to- this part shall
be deemed to- be issued five days
following the date of mailing of the
Regional Adinü iistrat’or’s order-to
respondent.
(fJ Effectwe date: Any order issued
pursuant to- this part becomes effective
thirty days following its date- of issuance
unless before tha4. date:
T) [ Section a09(gJ of the Clean Water
Act only]. An appeal is taken pursuant
to section 309(g ) [ 8 of the Clean’ Waler
Act. 33 U S C. 13T9 gH8), or a commenter
files a timely petition pursuant to § 28 30
of this part if the Regional
Admrrnstrator denies such a petition. the
order becomes elfechee thirty days after
such. deni ,a1
(2) [ Section 311(b) (6) of the Clean
Water Act onlyJ An appeal is taken
pursuant to section 311(b)(6)(G) of the
Clean WaterAct. 33 U.S.C.
I 32 (b)(&) (C);
(3) [ Safe Drinking Water Act only]- An
appeal is taken pursuant to Section
1423(c)(6) of the Safe Drinking Water
Act. 42 1J.SC 300h—2(c)(6):
[ 4) [ CERCLAonIyJ_An appeal is taken
pursuant to section 109(a)(4) of
CERCLA. 42 U.S C. 9& 9(a) ( .t);
(5) [ EPCRA only) An appeal is taken
pursuant to section. 325(flll) of EPCP A.
42 U.S.C. 11045(flfl). or
(6) The Admunstrator suspends the
implementatiini aS the orrier pursuant in
§ ZB.29 of this part.
(g) FioaiAge.vcycrcrioii. The issuance
of an. order by the Regional
Admenztratorpn uani t this section
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Federal Register / Vol. 56, No. 126 I Monday, July 1, 1991 / Proposed Rules
30033
constitutes final Agency action on its
effective date for purposes of the
Administrative Procedure Act, 5 U.S.C.
551.
§ 28.29 Sua sponte review.
The Administrator may, on his own
initiative, within thirty days of the date
of issuance by the Regional
Administrator of a contested or default
order under § 28.28(a) of this part.
suspend implementation of such order
for the purpose of reviewing its
conclusions of law or its sufficiency
pursuant to § 28 28(a)(3) of this part. The
Administrator, after such review. may
amend its conclusions of law, withdraw
the order, remand the order for
appropriate action by the Regional
Administrator, or may allow the order to
issue unchanged. In any action in which
the Administrator acts pursuant to this
section. the provisions of § 28 28 of this
part shall apply, except that:
(a) The Regional Administrator whc
issued an order shall be deemed the
recommending Presiding Officer for
purposes of § 28.28;
(b) Upon suspension of the order, the
Administrator who suspended an order
shall be deemed the Regional
Administrator for purposes of § 28.28:
(c) The Regional Administrators
order, except for its findings of fact.
shall be deemed a recommended
decision; the Regional Administrator’s
findings of fact are findings of fact for
purposes of this part and not subject to
review by the Administrator
(d) If the Administrator does not
amend the Regional Administrator’s
conclusions of law nor determine that
the order is insufficient pursuant to
§ 28 28(a)(3) of this part. the Regional
Administrator’s determination of
remedy is not subject to review, if the
Administrator does amend the Regional
Administrator’s conclusions of law or
determines such insufficiency, the
Regional Administrator’s determination
of remedy shall be remanded by the
Administrator to the Regional
Administrator for appropriate action,
except that if the Administrator
determines the respondent is not liable
at all under applicable law, the
Administrator shall withdraw the
administrative complaint and the order
of the Regional Administrator without
remand;
[ e) If the Administrator allows the
order w issue unz.har.ged. the
requirements of § 28.28(a)(3) of this part
shall not apply;
(f) If the Administrator withdraws,
amends or remands the order, the
requirement of § 28.28(a)(3) of this part
to make findings of fact and to order a
remedy shall not apply; and
(g) The Administrator’s decision to
suspend implementation of an order
shall not be deemed final Agency action
for the purposes of § 28 28(g) of this part
or the Administrative Procedure Act, 5
U SC. 551.
§ 28.30 PetItion to set aside an order.
[ Section 309(g) of the Clean Water Act
only]
(a) Initiation. In any action under
section 309(g) of the Clean Water Act, 33
U.S C, 1319(g), in which the Regional
Administrator has issued an order
pursuant to § 28.28 of this part, any
commenter participating in that action
may, no later than thirty days after the
date of issuance of the order under
§ 28 28(e) of this part, petition the
Regional Administrator to set aside the
order and to provide a hearing on
liability or a proceeding on the penalty if
the commenter at the time of petitioning
files with the Hearing Clerk material
evidence not considered in the issuance
of the order and:
(1) The Presiding Officer had failed to
afford the commenter an opportunity to
present information in a proceeding
conducted under § 28 25 or § 28 26 of
this part in the referenced Agency
action, or in an action concluded by
consent order under § § 28 22(b) and
28 28(b) of this part, or
(2) The Regional Administrator issued
the order pursuant to § § 28 21 and
28 28(a) of this part after the respondent
had timely failed to respond to the
administrative complaint pursuant to the
requirements of § 28.20 of this part or
was defaulted by sanction, without the
commenter having had an opportunity to
present information in a proceeding
conducted under § 28.25 or § 28 26 of
this part in the referenced Agency
action
Ib) Granting of petition. The Regional
Administrator shall grant the petition
and set aside the order if he finds that
the petitioner meets the requirements of
paragraph (a) of this section. If the
Regional Administrator grants the
petition, he shall instruct the Presiding
Offlcer to conduct an appropriate
proceeding pursuant to § 28.21(b),
§ 2.825 or § 28.26 of this part.
(c) Denial of petition. The Regional
Administrator shall deny the petition if
he determines that the petitioner has
failed to meet the requirements of
paragraph (a) of this section. If the
Regional Administrator denies the
petition, he shall notify the complainant,
the petitioner and the respondent by
certified mail, return receipt requested.
and shall publish notice of such denial
in the Federal Register, together with his
reasons for the denial.
§ 28.31 Payment of assessed penalty.
Except as may be otherwise provided
by applicable law and the provisions of
any consent order, the respondent shall
pay within thirty days of the effective
date of the order any civil penalty
assessed pursuant to this part by
forwarding to the address provided by
the complainant a cashier’s or certified
check. payable to:
(a) [ Safe Drinking Water Act. EPCRA
and section 309(g) of the Clean Water
Act onlyj “Treasurer, The United States
of America.”
(b) [ Section 311(b)(6) of the Clean
1A’ater Act only] “Oil Spill Liability
Trust Fund.”
(c) [ CERCLA only] “EPA Hazardous
Substance Superfund”
The respondent shall note on each
check in payment the case title and
docket number of the administrative
action. The respondent shall
simultaneously send notice of payment
to the Hearing Clerk The Presiding
Officer may waive the requirement of
payment by cashier’s or certified check
for good cause shown. In no case shall
the Presiding Officer waive the
requirement of payment by certified or
cash:er’s check if such a waiver may
endanger the Agency’s receipt of funds
(FR Doc 91-45344 Filed 6—28—91. 645 aml
BLL.UNG CODE 6560-50-U
-------
S-3 10999 000I(OO)(21—OCT-9!-13 4847)
Tuesday
October 22, 1991
Part U
Environmental
Protection Agency
40 CFR Part 112
Oil Pollution Prevention; Non•
transportation-related Onshore and
Offshore Facilities; Proposed Rules
Printed on Recycled Paper
F4717 FMT.. [ 1632J 1-07-88
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Feder.1l Register I Vol 56, No. 204 .1 Tuesday, October 22, 1991 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 112
(SW H-FRL-3671—41
RIM 2050-ACG2
OH Pollution PreventIon; Non-
transportatIon-related Onshore and
Offshore Facilities
AGENCY: Environmental Protection
Agency (EPA)
ACTION: Proposed rule.
SUMMARY: The U S. Environmental
Protection Agency is proposing to revise
the OLI Pollution Prevention regulation
(40 CFR part 112) promulgated under
section 311(j)(1) (CJ of the Clean Water
Act (CWA). as amended by the Oil
Pollution Act of 1990 This proposed ruie
establishes requirements for Spill
Prevention. Control, and
Countermeasures (SPCC) Plans to
prevent spills of oil by non-
transportation-related onshore and
offshore fa ‘ties into the waters of the
United State or adjoining shorelines
The proposed revision involves changes
in the app] icability of the regulation and
the required procedures for the
completion of SPCC Plans, as well as
the addition of a facility notification
provision. The proposed rule also
reflects changes in the jurisdiction of
section 311 of the CWA made by 1977
and 1976 amendments to the CWA
DATES: EPA will consider comments
submitted on or before December 23,
1991
ADDRESSES:
Comments Comments should be
submitted in triplicate to. Emergency
Response Division, Attention Superfund
Docket Clerk. Docket Number SPCC—IP,
Superfund Docket, room M2427, U S
Environmental Protection Agency. 401 M
Street, SW , Washington, DC 20460
Docket Copies of materials relevant
to this rulemaking are contained in the
Superfund Docket, room M2427 at the
U S Environmental Protection Agency. -
401 M Street, SW.. Washington. DC
20460 [ Docket Number SPCC-IP ) The
docket is available for inspection
between the hours of 9 a m and 4 p m..
Monday through Friday. excluding
Federal holidays Appointments to
review the docket should be made by
calling 1—2O2/ R0—3046 The public may
copy a maximum of 267 pages from any
regulatory docket at no cost. If the
number f pages copied exceeds 267.
however, a charge of 15 cents will be
incurred for each page after 100 pages
FOR FURTHER INFORMATION COHTACT.
Monica L McEaddy, Response
Standards and Criteria Branch.
Emergency Response Division (OS—210) ,
US Environmental Protection Agency.
401 M Street. SW., Washington, DC
20460 at 1—202—260—1358 or Bobbie
Lively-Diebold at 1—703--35&--8774. the
ERNS/SPCC Information tine at 1—202--
260-2342. or RCRA/Superfund Hotline
at 1—800—424—9346 (in the Washington.
DC metropolitan area. 1—703—920—9810)
The Telecommunications Device for the
Deaf (TDD) Hotline number is 1—800-
553—7672 (in the Washington. DC
metropolitan area. 1—703—480—3323)
SUPPLEMENTARY iNFORMATioN: The
contents of today’s preamble are listed
in the following outline
I Introduction
A Statutory Authority
B Background of this Rulemaking
C The Oil Pollution Act or 1990 [ OPA)
II General Issues
A Notification
B Contingency Planning
C New Discretionary Provisions
ill Propo cd Changes in Each Section oF 40
CFR Part 112
A Section 1121—General Applicability
and Notification
U Section 112 2—Definitions
C Section 112 3—Requiremerits to
Prepare and Implement a Spill
Prevention. Control, and
Countermeasures Plan
13 Section 112 4—Amendment of SPCC
Plans by Regional Administrator
E Section 112 5—Amendment of SPCC
Plans by Owners or Operators
F Section 112 6—Civil Penalties for
Violation of the Oil Pollution Prevention
Regulation
C Section 112 7—Spilt Prevention.
Controt, a ad Countermeasures Plan
General Requirements
H Section 112 8—Spill Prevention.
Control, and Countermeasures Plan
Requirements (or Onshore Facilities
(Excluding Production Facilitiest
I Section 112 9—Spill Prevention.
Control, and Countermeasures Plan
Requirements for Onshore Oil Production
Facilities
Section 112 10—Spill Prevention.
Control, and Countermeasures Plan
Requirements for Onshore Oil Drilling
- and Workover F citities
K Sectipn 11211—Spill Prevention,
Control, and Countermeasures Plan
Requirements for Offshore Oil Drilling.
Production, or Workover Fdcilities
IV Relationship to Other Programs
A Underground Storage Tanks
B Siate Programs
C Superfund Amendments and
Reauthorization Act of 1986 (SARAj Title
Itt Integration With Local Emergency
Planning
D Wellhead Proteciion
E Flood-Related Requirements
F Occupational Safety and Healih
Administration
V Requesi for Comments
Vi Regulatory Anutysei
A Economic Analyses
6 Executive Order No 12291
C Regulatory Flexibility Act
0 Paperwork Reduction Act
List of Subjects
1. Introduclion
A SLalutory Authority
Section 3 11(l)(1)lC) of the Federal
Waler Pollution Control Act, 33 U SC
1251 e seq. also known as the Clean
Water Act (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 The authority to regulate
non-transportation-related onshore and
offshore facilities under section
311(j)(1) C) of the CWA was delegated
by the President to the Administrator of
the U S Environmental Protection
Agency (EPA or the Agency) by
Executive Order 11735 In this same
Executive Order, authority over onshore
and offshore transportation’related
facilities and vessels was delegated to
the department in which the U S Coast
Guard (USCG) is operating (currently.
the U S Department of Transportation)
A Memorandum of Understanding
(MOU) between the Secretary of
Transportation and the EPA
Administrator, dated November 24. 1971
(36 FR 24080). establishes the
responsibilities of EPA and the
Department of Transportation for
purposes of administering their
respective spill prevention programs
The definitions set forth in this MOU
(i e. the definitions of “non-
transportation-related onshore and
offshore facilities” and “transportation-
reLated onshore and offshore facilities”)
are included as an appendix to 40 CFR
part 112.
B Background of This Rulemaking
The Oil Pollution Prevention
regulation. also known as the Spill
Prevention, Control, and
Countermeasures (SPCC) regulation.
was originally promulgated on
December11. 1973 (38 FR 34164), under
the authority of section 311(j)(1){C) of
the CWA The regulation established
spill prevention procedures. methods.
and equipment requirements for non-
transport ation-related facilities with
abovegrourid (non-buried) oil storage
capacity greater than 1,320 gallons (or
greater than 660 gallons aboveground in
a single tank) or buried underground oil
storage capacity greater than 42.000
gallons Regulated facilities were also
limited to those that, because of their
location, could reasonably be expected
to discharge oil into the navigable
S—3 10999 O2(99X2 I -OCT—9 I—I) 48 49)
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Federal Resister I Vol. 56, fNo. . U4 ,‘ iuesuuy. uLwuti
waters of the United States or adjoining
shorelines.
in addition to the Oil Pollution
Prevention regulation. EPA has
promulgated related regula tLOflS defining
oil discharges that may be harmFul (40
CFR part 210) and procedures for
imposing the civil penalties provided for
in the Oil Pollution Prevention
regulation (40 CFR part 114) As
described below, penalty provisions
have been revised by the Oil Pollution
Act of 2990 (OPA) The USCG has
promulgated regulations on oil pollution
prevention for vessel transfer facilities
(the USCG regulations do not apply to
pipelines or other modes of
transportation) (33 CFR part 154)
pursuant to the November 24, 1971.
MOU described above. The USCC also
has promulgated requirements for the
reporting of oil discharges (33 CFR part
153). arid regulations relating to
discharges from ships (33 CFR part 155)
Two previous revisions have been
made to the Oil Pollution Prevention
regulation On August 29. 1974, the
regulation was amended 139 FR 31602) to
set out the Agency’s policy on civil
penalties for violation of the CWA
section 311 requirements On March 26.
2976. 40 CFR part 212 was again
amended (41 FR 12567), primarily to
clarify the criteria for determining
whether or not a facility is subject to the
regulation Other revisions made in the
March 26, 1976, rule clarified that SPCC
Plans must be in written form and
specified the procedures for
development of SPCC Plans for mobile
facilities.
Implementation of the re8ulatton since
the 1976 revisions has indicated a need
for other changes. primarily for purposes
of clarification and simplification
Changes in 40 CFR part 112 also have
been made necessary by amendments to
CWA section 311
On May 20, 1980 (45 FR 33814), EPA
proposed revisions to the Oil Pollution
Prevention regulation similar to
revistonc proposed today These
proposed revisions would have refle ted
changes in the jurisdiction of CWA
section 311 made by the 1977 CWA
amendments Also proposed were
requirements concerning new facilities.
the content of SPCC Plans, the
availability of SPCC Plans For review by
EPA personnel, and the review of SPCC
Plans by owners or operators
One of the revisions proposed on May
20. 2980, was a clarification that certain
“guidelines’ in § 112.7 are mandatory
rather than discretionary 8ased on a
subsequent decision by the Agency that
the proposed modifications to 40 CFR
part 112 were not required at that time,
the revisions proposed on May 20. 1980,
were not finalized, As described below,
however, continuing experience with
administering this program
demonstrates a need for the
clarifications to 40 CFR 1127
Accordingly, the Agency is proposing
certain changes to 40 CFR 2127 that are
similar to those proposed on May 20.
1980
On January 2. 1988, the collapse of a
four-million-gallon aboveground storage
tank owned by the Ashland Oil
Company in Floreffe, Pennsylvania,
resulted in a spill oF approximately 3 8
million gallons of diesel fuel. Of this
amount, approximately 750.000 gallons
of dieset fuel were released into the
Monorigahela River This event led to
the formation of an Oil Spill Prevention,
Control, and Countermeasures Program
Task Force (the SPCC Task Force) to
examine Federal government regulations
governing spills of oil from aboveground
storage tanks The SPCC Task Force
was composed of senior personnel from
EPA Headquarters. Regional offices.
other Federal agencies. and State offices
with significant oil spill response
responsibilities. The Task Force issued
its findings and recommendations in a
May 13. 1988. report) The Task Force
report focused on the prevention of large
catastrophic spills, but made
recommendations art many aspects of
the Federal oil spill prevention, control.
and countermeasures program
The SPCC Task Force recommended
that EPA clarify that certain provisions
described in the Oil Pollution Prevention
regulation in terms that could be
interpreted as guidelines are required
practices The Task Force also
recommended (hat EPA establish
additional technical requirements for all
facilities subject to the regulation. and
that EPA expand the scope of the
regulation to include requirements for
facility-specific oil spill contingency
planning The Task Force further found
that EPA does not have an adequate
inventory of facilities subiect to the
regulation and recommended that EPA
gather specific information about these
facilities (e g the number of
aboveground storage tanks at a facility).
The Task Force also recommended
strengthening the facility inspection
program to better identify violations and
enforce compliance A subsequent
General Accounting Office (GAO) report
contained similar recommendations 2
us En ’ ironmerital Proieciion Agency. The Oil
Spill Provenhion. Control. And Countermeasure.
Program Tast Force Report. inienm I’inel Report.
May 13, 1988 This document i i availabLe for
inspeciion at the Superfund Docket, room M2427.
tJ S EPA 401 M Sireei. SW, Waahun 5 ion. DC 20480
General Accounting Orlice “Iflt8fld Oil Spilt.
Stronger Regutaiion end Entorcemeni Needed io
As a result of major oil spills such as the
Ashland Oil Company spill discussed
previously and the findings from the
SPCC Task Force and the GAO reports.
EPA is today proposing revisions to 40
CFR part 112
EPA has decided to address the SPCC
Task Force findings and
recommendations, together with OPA
requirements. in two phases A two-
phase approach has been chosen
because several of the Task Force
recommendations require further
informa lion gathering and analysts
before determining specific additional
changes to the existing regulation.
whereas other recommendations can be
implemented more readily Phase One
revisions, which include provisions that
generally do not require substantial
additional Agency data gathering Ic g.
technical amendments to clarify
regulatory language. notification
requirements). are being proposed
today Phase Two revisions, which will
be addressed in a separate rulemaking
and proposed at a later date, will
address other, more substantive
regulatory recommendations, such as
facility-specific contingency planning
and aboveground storage tank integrity
testing requirements, Phase Two will
also implement applicable requirements
of the OPA For further discussion of the
Phase Two revisions as they relate to
the OPA. see Section 1 C of this
preamble
After consideration of comments
received in response to this proposed
rule, a final rule will be promulgated In
addition to a general request for
comments, the Agency requests
comments on specific proposed
revisions throughout the preamble The
provisions are also summarized in
Section V of this preamble If the
comments received indicate sufficient
need, the Agency will consider holding a
public hearing on the proposed revisions
to permit further expression of views
prior to the final rulemaking EPA will
publish a notice of its intent to hold any
such public hearing in the Federal
Register Any statements made at such a
hearing would be included in the public
record of the rulemaking
C. The Oil Pollution Ac! of 1990 (OPA)
The OPA was signed into law by the
President on August 18, 1990. The OPA
contains significant modifications to
many of the provisions of section 311 of
the CWA, including section 311(jJ. The
Avoid Future tncidenui” February 1989 IGAO/
RCED—89—85) Thus document is available icr
inspection at the Superfund Oockei room M2427
US EPA. 401 M Street SW Washington DC 20400
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Federal Register / Vol. 56, No. 204 / Tuesday. October 22. 1991 / Proposed Rules
specific language of section 321ffl(l)(C).
however, is not changed The principal
provisions of the OPA thai will impact
the 5 1CC program are summarized
below
Section 1004 of the OPA sets a
number of limits on liability of owners
or operators of vessels and facilities for
oil spills to U S waters The liability
limits include $350 million for onshore
facilities and deepwaler ports. $75
million plu\ remo al costs for offshore
facilities. . ‘LI Ł1,200 per gri.n ton or up
to 510 million, whichever is greater. for
tank vessels The President must report
to the Congress on the desirability of
adjusting these liability lLrnits, and EPA
is addressing this issue for onshore, non-
transportation-related facilities. There is
no Liability limit when spills are caused
by willful misconduct or gross
negligence or by violation of Federal
safety. construction, or operating
regulations. or in cases of failure or
refusal to report the discharge. failure to
cooperate in uil removal actions, or
comply with orders issued by the
Federal agency in charge of cleanup.
Under OPA section 1002. (he scope of
damages for which oil dischargers may
be liable is expanded to include
damages for injury to. or los’s of
subsistence use of, natural resources.
damages for injury to property. loss of
revenues, profits. or earning capacity,
and costs of public services during or
after oil removal activities
The OPA establishes that the Oil Spill
Liability Trust Fund under section 9509
of the Internal Revenue Code of 1966
shall be used to pay for removal costs
and damages not recovered from
responsible parties The existing fund
under CWA section 3 1 1(k) and other 0,1
spill compensation and liability funds
are dissolved, the assets and liabilities
of these funds are consolidated in the
Oil Spill Liability Trust Fund
Section 4113 of the OPA requires the
President to conduct a study on whether
liners or other secondary means of
containment should be used to prevent
or help detect leaks from onshore bulk
oil storage facilities EPA is currently
undertaking such a study and will
prepare a Report to Congress on the
results
Under OPA section 424J1(a]. Federal
authority under the CWA for the
removal of oil and hazardous
subs tantes defined under the CWA ts
expanded, for example. the Federal
government is required to direct removal
actions for discharges posing a
substantial threat to the public health or
welfare of the U S Also, new
discretionury authority to direct the
spiller’s removal actions under other
circumstances has been adin d to
existing authorities
OPA section 4202 amends CWA
section 311 (l) to require the development
of Area Contingency Plans to help
ensure the removal of a worst-case spill
from a vessel or facility in or near the
area covered by the plan The President
must designate inland and coastal areas
for which plans are to be prepared. and
for each of these areas, an Area
Committee must be established
consisting of qualified Federal. State,
and local officials Each Area
Committee in inland areas must prepare
an Area Contingency Plan and submit it
to the President The President must
then review each plan and either
approve or require amendments to it
Section 4202 of the OPA also amends
CWA section 3 1 1 (t) to require that the
President issue regulations for owners or
operators of certain facilities and
vessels to prepare response plans for
worst-case oil and hazardous
substances discharges Onshore
facilities that can cause “substantial
harm’ in the event of a worst-case spill
must submit their plans to the President.
Of these plans, the President must
review and issue determinations on
plans for onshore facilities that can
cause “significant and substantial
harm”
Although the changes to the SPCC
regulation proposed today do not
directly incorporate requirements of the
OPA, the notification requirement
proposed today will assist in the
implementation of many of these OPA
requirements This requirement will
provide information on the number and
location of facilities, as well as the size
and number of tanks at each one EPA
expects that implementation uf many of
the OPA provisions related to non-
transportation-related facilities will be
,delegated to EPA in a forthcoming
Executive Order As described in
seclion II A of this preamble. the facility
data devejoped as a result of the
notification requirement will assist EPA
in its implementation of the response
planning provisions of OPA section 4202
in Phase Two,
The SPCC Task Force concluded that
aboveground storage tanks without
secondary containment pose a
particularly significant threat to the
environment The Phase One
modifications would retain the existing
requirement for facility owners or
opera tor9 who are unable to provide
certain structures or equipment for oil
spill prevention, including secondary
containment, to prepare facility-specific
oil spill contingency plans in lieu of the
prevention systems In developing the
Phase Two modifications. EPA will
consider whether facility owners or
operators with aboveground storage
tanks, as well as others, should be
required to prepare racility.specific
contingency plans Phase Two
modifications will also address the
requirements of a properly designed
contingency plan and, as described
abo e. will implement additional OPA
requirements for (acuity response
Icontingency) plans as appropriate
Section 4301 of the OPA increases
penalties under the CWA for tiolations
resulting from discharges of oil or
hazardous substances Section 4301(al
amends the CWA to protide more
stringent penalties for failure to notify
the appropriate Federal agenc) of a
discharge The OPA provides for
Imprisonment of up to five years and a
fine not exceeding $250,000 for an
individual, or not more than $500 000 for
an organization Section 4301)b)
establishes the penalty for f,iilure to
comply with regulations under CWA
section 31 1( 1 ) at $25,000 per day of
violation In addition to these ci.’il
penalties. section 4301( bl establishes
administrative penalties of $10,000 per
violation, not to exceed $25000 for Class
I penalties, and 510.000 per day per
violation, not to exceed $125,000 for
Class II penalties
Section 4301(c) provides that
violations of the prohibition on
discharges of oil or hazardous
substances in amounts that may be
harmful are subject to criminal penalties
established under section 309lc) of the
CWA These penalties are $2500 to
$25,000 and up to one year imprisonment
for negligent violations. $5.000 to $50,000
and up to three years imprisonment br
knoning violations, and up to $230 000
for SI million for organizations) and up
to 15 years imprisonment for knowing
endangerment
II. General lssues
A Notification
The SPCC Task Force found in its
review of the SPCC program that
information concerning the numbers
storage capacities. and locations of
above ground oil storage facilities is
needed to effectively administer the
SPCC program Therefore. EPA is
proposing to require that all facilities
that are currently subtect to the Oil
Pollution Prevention regulation by i irtue
of their aboveground oil storage
capacity. or that are oihervĽise subtect
to the CWA and have abo e ground
storage capacity greater than 1.320
gallons (or greater than 660 gallons in a
single container), notify the Agency of
certain SPCC-related facility -
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ch’aracteristics Partially buried tanks
and bunkered tanks, as defined in
proposed § 112 2. are included in
determining the capacity of
aboveground storage. and facilities with
such tanks are subject to the notification
requirement. In addition, EPA is
proposing that all facilities that become
subject to this regulation in the future by
virtue of their aboveground oil storage
capacity must notify the Agency prior to
beginning operations at the facility
Many facilities subject to the Oil
Pollution Prevention regulation by virtue
of their underground storage capacity
are already subject to notification
requirements under the Underground
Storage Tank (UST) program (40 CFR
part 280). and EPA is proposing to
exempt many such UST-regulated
facilities from the Oil Pollution
Prevention regulation The remaining
SPCC-regulated facilities with only
underground storage tanks, as defined in
proposed § 112 2( .), would not be
subject to the proposed notification
requirement The proposed notification
provision in § 112 1(e) would require
that facility owners and operators
furnish their names, the name and
address of the facility, the number and
size of aboveground oil storage tanks at
the facility, the facility’s total
aboveground oil storage capacity; the
distance of the facility to the nearest
navigable waters, the facility’s Dun &
l3radstreet D-U.N-S number, if available,
and the facility’s primary Standard
Industrial Classification, if applicable
and available This information is to be
supplied using a proposed standard
form, which is included as appendix B of
today’s proposed regulation In addition.
the Agency is considering requiring
information on the latitude and
longitude of the facility, location of
environmentally sensitive areas and
potable water supplies, presence of
secondary containment, spill history,
leak detection equipment and alarms.
age of tanks, and potential for adverse
weather This additional information
would assist in implementing the facility
response plan requirements that are
mandated by the OPA The facility
response plan requirements will be
proposed in the Phase Two rulemaking
Specifically. the information may be
useful in determining which facilities
could reasonably be expected to cause
“substantia,I harm” or ‘significant and
substantial harm’ by discharging into
the navigable waters, adjoining
shorelines, or the exclusive economic
zone and, therefore, must submit their
facility response plan EPA requests
comments on collecting this additional
information through the notification
form. EPA also requests comments on
additional information that could be
used in developing Area Plans or in
Implementing the community right-to-
know program described in section IV C
of this preamble.
The Agency proposes that the owner
or operator of the facility would
complete and send the form to the SPCC
program office at EPA l-leadquarters
within two months of the effective date
of the final rule. The proposed
notification would be a one-time
requirement, a facility would not be
required to notify EPA of changes in
owner(s). operator(s), or the other
required information elements Any
owner or operator who fails to notify or
knowingly submits false information in
a notification would be subject to a civil
penalty The Agency specifically
requests comment on the proposed
notification requirement and the
proposed notification form.
The Agency expects to use data
collected under the proposed
notification requirement to develop a
data base of facility-specific
information This data base may also
include information on spills (obtained
from spill reports submitted by facilities
or from the Emergency Response
Notification System (ERNS)) and
various other types of information The
Agency will use the information in the
data base to more effectively allocate
SPCC program resources by prioritizing
inspections and enforcement efforts and
by determining the need for additional
prevention requirements for certain
categories of facilities (such as facilities
with the potential to threaten major
drinking water supplies or sensitive
ecosystems)
The Agency is particularly interested
in comment on alternate methods of
facility notification In particular. EPA is
aware that facilities may already be
;.r quired to submit Material Safety Data
- Sheets (MSDSs) and other information
to State Eme gency Response
Commissions (SERCs), Local Emergency
Planning Committees (LEPCs). and local
fire departments under sections 311 and
312 of Title Ill of the Superfund
Amendments and Reauthorization Act
of 1986 (SARA Title lit) Comments are
solicited concerning ways that these
data submissions may be used to
establish an inventory of facilities
subject to this proposed rule
B. Contingency Planning
EPA believes that facility-specific
contingency planning in coordination
with local authorities is an important
part of any spill related preparedness
program The SPCC Task Force
recommended that the Oil Pollution
Prevention regulation be revised to
require the inclusion of contingency
plans in facility SPCC Plans, and that
these plans be coordinated with existing
State and local contingency planning
groups.
EPA believes that, in general, a
facility-specific contingency plan should
contain provisions for discovery of a
spilt, emergency notification procedures.
the name of the spill response
coordinator, procedures for identifying
personnel and equipment that may be
needed, available equipment lists,
available personnel lists, an
identification of hazards, a vulnerability
analysis. and an event and fault tree
analysis
The vulnerability analysis identified
areas of immediate concern following a
spill event and provides an estimate of
the area most likely to be affected
Examples of areas to be identified in the
vulnerability analysis include, but are
not limited to, population centers,
wetlands. wellhead protection areas.
and areas that may be inhabited by
endangered species In addition, the
vulnerability analysis should identify
sensitive ecosystems requiring special
protection and drinking water suppliers
who must be notified if a release occurs
An event and fault tree analysis will
identify potential spill scenarios It is
usually based on prior spills at the
facility and can be used to estimate
possible sources of leaks, spill sizes.
pathways. and causes of spills at other
facilities Case studies of major spills
show that close attention should be paid
to the methods by which equipment and
personnel may be obtained Finally, the
contingency plan should address
disposal of recovered oil, used sorbents.
and other materials The Agency’s
experience at various spill sites also
demonstrates the importance of
addressing the location of off-site spill
pathways in the contingency plan
Above all, a contingency plan needs to
be workable and easy to follow in
emergency situations Facility personnel
should be trdined in the contingency
plan procedures to improve their
understanding of the plan and ensure
that it is properly followed in
emergencies.
The Agency is proposing in today’s
notice only to require elementary
contingency planning steps that are
currently included in most existing
SPCC Plans, such as the inclusion in a
facility’s Plan of a list of contacts (e g
the facility response coordinator, the
l ”Jational Response Center (NRC)) EPA
is also proposing to clarify an existing
requirement that facilities without - -
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_!!d!ral Register I Vol. 56, No. 204 / Tuesday, October 22. 1991 / Proposed Rules
-secondary containment or diversionary
measures complete a site-specific
contingency plan Because as part of
Phase Two EPA is currently considering
requirements for more comprehensive
facility-specific contingency plans in
response to the recommendations of the
Task Force and the requirements of the
OPA. the Agency wishes to provide an
opportunity for commenters to submit
c.dditional information and
recommendations on contingency
pla 1 ining during the develc,jrnent of such
requirements Therefore, EPA is
requesting comments and supporting
data on oil spill contingency planning
needs.
C. New Discretionary Provisions
In addition to proposing changes to
clanfy and strengthen the Oil Pollution
Prevention regulation. EPA is proposing
a number of provisions as
recommendations, These new provisions
are described individually in Section 111
of this :eamble Among the new
recommendations are the following two
provisions
Propased 4’ 712 8(o9(4) Itis
recommended that facilities have all
burled piping tested for integrity and
leaks annually or have buried piping
monitored monthly in accordance with
the provisions of 40 CFR part 260. In
addition, it is recommended that records
of the testing or monitoring be kept for
five years (does not apply to offshore
facilities or production facilities)
Proposed §1128(d)(5) Itis
recommended that facilities post vehicle
weight restrictions to prevent damage to
underground piping (does not apply to
offshore facilities or production
facilities)
EPA is proposing these two provisions
and other provisions as
recommendations rather than
requirements The Agency is concerned
that these provisions may not for all
facilities achieve the standard of
provisions based on good engineering
practice. which is the basic standard of
the regulation. EPA. however believes
that implementation of these provisions
at most facilities would contribute to the
facilities’ overall effort to prevent oil
discharge and to mitigate those spills
that may occur Consequently. EPA is
propostng these discretionary provisions
so that the owners and operators of
facilities subtect to the Oil Pollution
Pr.çvention Regulation can decide
whether the suggested practices are
‘1 he ciiangc from the use of “pipetine io
piping is is etimun8ie any possible confusion
bciwcrn iiw regutsiion s use of pipeline 8nd
pipelines regui.iied by DOTs Office of Pipeiine
Silty
warranted under the existing regulatory
requirements. At many facilities the
proposed provisions are consistent with
the general requirement that the SPCC
Plan be prepared in accordance with
good engineering practices At the same
time, the Agency recognizes that for
some facilities implementation of these
provisions is inappropriate for
technological or other reasons or is not
necessary because of other facility-
specific practices or circumstances For
such facilities, not implementing these
discretionary provisions would be
consistent with the existing requirement
concerning good engineering practices
The Agency requests comments and
supporting data (including information
on likely envircnmental impacts or
benefits) regarding whether these
discretionary provisions should be made
requirements EPA is particularly
interested in receiving comments and
information on the advisability of
establishing the two provisions as
requirements for large facilities, but as
recommendations for small facilities
This is consistent with the SPCC Task
Force recommendation that EPA
regulate larger facilities more stringently
than smaller facilities EPA considered
defining a “large facility” for this
specific purpose as a facility with more
than 42,000 gallons of SPCC-regulated
storage capacity The Agency believes
that larger volumes of oil stored at a
facility increases the chances of a spill
occurring, and that spills from large-
capacity facilities may be greater in
magnitude than those from smaller
facilities, thus posing a greater potential
threat to the waters of the United States
Section 311(jfl l)(C) of the CWA.
however, does not explicitly authorize
differential requirements based on
facility size EPA is also requesting
comment on the option of applying these
provisions as requirements to all sizes of
- SPCC-regulated facilities under
- § 311(j)(1)(i) of the CWA.
In addition, EPA is requesting
- ‘ comments on two other practices that
are not included in the proposed
revisions. These practices are
• That owners and operators of
facilities affix a signed and dated
statement to the SPCC Plan indicating
that the revision has taken place and
whether or not amendment of the Plan is
required
• That owners and operators of
onshore facilities other than production
facilities state the design capabilities of
their drainage system in the SPCC Plan
if the system is relied upon to control
spills or leaks
EPA believes that these practices may
improve the quality of a facility’s SPCC
Plan and may be appropriate to include
in the Oil Pollution Prevention
regulation as discretionary pract’
The Agency has not included th
practices in the proposed rule bec - .. e
of the lack of data for the benefits likely
to result from these practices EPA
specifically reqoests comme’ is
regarding the extent to which these
provisions would further improve the
effectiveness of the Oil Pollution
Prevention regulation
Ill Proposed Changes in Each Section of
40 CFR Part 112
In this section. the principal changes
and clarifications being proposed today
to each of the sections of 40 CFR part
112 are discussed and explained Minor
grammatical and editorial changes also
have been made to the text of the
proposed rule To more effectii.ely
organize § 1127. it has been divided into
five separate sections (proposed
§ 1127,1128 2t29,11210,and l lZl l)
based on facility type This
reorganization will aid in the
clarification of SPCC Plan requirements
for different types of facilities
A Section 112 1—Cenerol App/icc hi /i I;’
and Notification
The geographic scope of the
applicability of the Oil Pollution
Prevention regulation. which is s’ n
paragraphs (a). (b). and (d l of § 1 s
proposed to be extended to conform
with the 1977 CWA amendments that
extended the geographic scope of EPA’s
authority under CWA section 321 CWA
section alllb)(1) as amended in 1977,
establishes a national policy prohibiting
discharges of oil or hazardous
substances into or upon the navigable
waters of the United States or adjoining
shorelines, or into or upon the waters of
the contiguous zone. or in connection
with activities under the Outer
Continental Shell Lands Act or the
lJeepwater Port Act of 1974. or that may
affect natural resources belonging to.
appertaining to. or under the exclusive
management authority of the United
States lincluding resources under the
Magnuson Fishery Conservation and
Management Act) As a result. ihe
applicability of the SPCC regulations as
stated in paragrophs (al and (b) of
§ 1121 and in subsequent paragraphs of
the rule is proposed to be revised to
reflect the statutory language
In light of amendments to the CWA in
2978. EPA is revising the phrase
“harmful quantities” in § 112 1(b) The
revised phrase—”quantities that may be
harmful, as described in part 110”
includes oil discharged in quantit
violate applicable water quality
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sTandards, cause a film or sheen upon or
discoloration of the surface of the water
o adjoining shorelines, or cause a
sludge or emulsion to be deposited
beneath the surface of the water or upon
adjoining shorelines (40 CFR 110 3)
Since the implementation of the SPCC
regulation in 1973. EPA has received
numerous questions concerning the
scope of the definition of oil Section
311(a)(1) of the CWA defines “oil” as
“oil of any kind or in any form,
including, but not limited to, petroleum,
fuel oil, sludge. oil refuse, and oil mixed
with wastes other than dredged spoil.”
EPA interprets this definition to include
crude oil and refined petroleum products
as well as non-petroleum oils such as
vegetable and animal oils The Agency
solicits comments on the
appropriateness of this interpretation for
the SPCC program
The facilities, equipment. and
operations that are exempt from this
regulation are described in § 112 1(d)
EPA is proposing several changes to this
section In proposed paragraph (d)(1)(i),
a reference to proposed § 112 1(b)(1).
which delineates the scope of the Oil
Pollution Prevention rule, has been
added
To avoid duplicative and
unnecessarily burdensome regulation.
the Agency is proposing in the new
§ 112 1(d)l4) to exerrtpt underground
storage tanks (defined by proposed
§ 112 2(v)) that are now subject to the
technical requirements of EPA’s
Underground Storage Tank (UST)
program (40 CFR part 280) In addition.
EPA is proposing in § 112 1(d)(2)(i) to
exclude the capacity of UST-regulated
underground storage tanks from the
c,.ilculdtion of underground oil storage
capacity made to determine whether a
facility is subject to this regulation
Under proposed § 112 7(a)(3), however,
a.iy facility subject to this regulation -
must have the location and contents of
,ill tanks marked on the facility diagram
for informational purposes
Notwithstanding differences in the
scope and focus of the SPCC and UST
programs, EPA believes thdt the UST
tpchnic.il requirements codified in 40
CFR p,irt 280 are consistent with the
underlying regulatory purposes of the
SPCC program and are equally
protective for purposes of preventing
discharges of oil into waters of the
United States For example. under the
UST program. new and existing tanks
must meet specific corrosion protection
requirements, be equipped with
Amendments 0 the CWA made by the O1’i\ in
1 $XI broaden the concept of qu,intities thai ma be
)idrmlul to include not only the public health or
weilure bui utau the environment
catchment basins, automatic shutoff
devices, and alarms, and be subjected to
periodic tank tightness testing. These
requirements achieve a level of
protection needed to ensure that a
discharge of oil will not reach bodies of
water protected by the CWA
It is important to note that the
proposed § 112 i(d)(2)(i) and
§ 112 1(d)(4) exemptions apply only to
UST-regulated tanks that meet the
definition of “underground storage tank”
proposed in § ‘112 2(v) The proposed
rule makes this clear in § 112 1(b)(3). by
providing that “bunkered tanks” and
“partially buried tanks” (defined by the
proposed § 112 2(c) and § 112.2(n).
respectively), as well as tanks in
subterranean vaults, are considered -
aboveground storage tanks for the
purposes of this regulation and are
subject to the requirements of the
regulation. Compared to completely
buried tanks, spills from these tanks are
more likely to enter surface waters
regulated under the CWA For further
discussion of the relationship of the
SPCC program to the UST program. see
Section IV A of this preamble
EPA is proposing in both § 112 l(d)(2)
(i) and (ii) to exempt from the
calculation of storage capacity. tanks
and facilities that are “permanently
closed.” as defined in the proposed
§ 112 2(o) This proposed approach
results from experience gained by EPA
in administering the SPCC program.
which indicates that tanks and facilities
properly closed on a permanent basis
need not continue maintaining current
SPCC Plans. Such tanks and facilities
cannot reasonably be expected to
discharge oil in quantities that may be
harmful in the manner described in the
proposed § 112 1(b)(1). Therefore, the
Agency is proposing to exempt oil
storage tanks meeting the criteria for
being “permanently closed” in proposed
§ 112 2(o) and facilities at which all
tanks,are permanently closed The
Agency has considerable experience
with applying the criteria to show that
they are appropriate for defining SPCC-
regulated facilities that do not represent
a significant threat of a discharge of oil
in quantities that may be harmful
However, the Agency specifically
solicits comments art the
appropriateness of these criteria,
including supporting data and
descriptions of suggested alternative
criteria for defining “permanently
closed” tanks,
Facilities with some permanently
closed tanks, where other tanks contain
sufficient capacity and are not
permanently closed, remain subject to
this regulation unless otherwise
exempted under § 112 1(d) The Agency
has also found that, in contrast to
facilities and tanks that are permanently
closed, facilities and tanks used for
standby storage. seasonal storage. or
temporary storage can reasonably be
expected to discharge oil as described in
proposed § 112 1(b)(i) EPA is, therefore.
clarifying in proposed § 112 1(b)(2) that
such facilities and tanks are not
considered permanently closed
To avoid redundancy with the
requirements of the U S Department of
the Interior’s Minerals Management
Service (MMS), the Agency is proposing
in § 112 1(d)(3) to exempt from this
regulation offshore oil production or
exploration facilities subject to MMS
Operating Orders, notices, and
regulations This proposal is based on
analysis of the MMS Operating Orders
and the conclusion that they require
adequate spill prevention, control, and
countermeasures practices that are
directed more specifically to the
facilities subject to these requirements
As described in section ll.A of this
preamble. EPA is proposing a new
facility notification requirement as
§ 112 1(e) Notification would be
provided to EPA on a standard form,
which is proposed as appendix B of 40
CFR part 112
EPA is proposing to amend current
§ 112 1(e) (redesignated as proposed
§ 112 1(f)) to clarify that adherence to
the SPCC regulation does not relieve
facility owners and operators from
complying with applicable local, State,
and Federal regulations These
regulations include, but are not limited
to, those issued by the USCG, the
Occupational Safety and Health
Administration (OSH’\). the Federal
Emergency Management Agency
(FEMA). and EPA’s UST program The
Agency is also proposing that owners
and operators consider current
applicable regulations. standards. and
codes, including certain standards and
recommended practices established by
the American Petroleum Institute (API)
(series 12, 620. and 630). the National
Fire Protection Association (NFPA) (30
and 30A). the American Society of
Mechanical Engineers (ASME)
Standards, the National Association of
Corrosion Engineers (NACE) Standards,
American National Standards Institute
(ANSI) (B31 3), and Underwriters
Laboratories (UL) Standards. in
determining practices that may be
required for particular facilities by the
requirement that all SPCC Plans be
prepared in accordance with good
engineering practice The standard of
good engineering practice. which applies
to all SPCC Plans. will require that
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appropriate provisions of applicable
-codes, standards, and regulations be
incorporated into the SPCC Plan for a
particular facility
S Section 122 2—Definitions
Definitions for the following terms
have been proposed to be revised,
added or modified as fol lows
A definition of’ discharge has been
revised to reflect changes to the definition in
the 1978 amendrnenis io the CWA
Discharges in compliance wiih a permit under
section 402 of the CWA are not considered a
discharge for the purposes of this part
• A definition of”nsvigable waters has
been revised to conform vviih revisions to the
regulation on the discharge of oil 140 CFR
pan 110)
• A definition ci “offshore facility” has
been revised to ccnforrn w:th the CWA and
the March 8, 1990 revisions to the NCP
Offshore facilities are any facility of any kind
located in. on. or under any of the navigable
saters of the United States, and any facility
of any kind that is subtect to the turisdiction
of the United States and is located in. on. or
under any other waters
• A definition of ‘United States” has been
revised to conform with revisions to the
definition of the United States in the 1978
amendments to the CWA The
Commonwealth of the Northern Mariana
Islands has been added to the definition
• A definition of ‘contiguous tone” has
been added to conform with the amendments
to the CWA in 1978 and the March 8, 1990.
revisions to the NCP
• A definition of “wetlands” has been
added to define the term as used in the
definition of “navigable waters “ The
definition conforms with the definition in the
oil discharge regulation (40 CI ’S part 110)
• Definitions for the terms “breakout tank”
and “bulk storage tank” have been added to
ctsrify the distinction between facilities
regulated by DOT and EPA EPA regulates
facilities with bulk storage tanks Breakout
tanks are used to compensate for pressure
surges or control and maintain pressure
through pipelines These tanks are frequently
in’line end are regulated by DOT
• A definition of “bunkered tank” has been
added to clarity that bunkered tanks are a
subset of “partially buried tanks “ Bunkered
tank means a tank constructed or placed in
the groand by cutting the earth and
recovering in a manner whereby the tank
breaks the natural grade of the land As such,
bunkered tanks are subtect to the provisions
ot 40 CER part 112 as sboveground tanks
• A definition of “facility” has been added
based on the MOD between the Secretary of
Transportation and the EPA Administrator
dated November 24, 1971 (36 FR 24080J More
detailed scussion of the types of facilities
covered is in Appendix A
• Definitions of “oil production facilities
lonshore)” and “oil drilling production or
workover facilities loffahorel” have been
moved from existing 112 7lel(slli( and
* tt2 Yfe)(7J(iJ, respectively
• A definition of “partially buried tank”
has been edded to clarify the distinction
between partially buried tanka and
underground storage tanks, the latter being
defined in this proposed rulemaking for SPCC
purposes as those tanks completely covered
with earth Partially buried tanks .ire subtect
to the provisions of 40 C f ’ S part lt2as
abo’veground tanks
A definition of “permanently closed -
scas added to clarify the scope of facilities
and tanks excluded from coverage by this
part EPA solicits comments on the
requirement to ensure that tank vapors
remain below the lower explosive limit
• A definition of “SPCC Plan ‘has been
added to further explain its purpose and
scope The Plan provides a written
explanation of a facility s compliance with
the requirements of the regulation. including
equipment manpower, procedures. and steps
to prevent, control, and provide adequate
countermeasures to an oil spill -
• The definition of “spill event” was
modified to correspond to the changes
described in the applicability section of this
rule relating to the expanded scope of CWA
lunisdiction
• A definition for “storage capacity” has
becn added to clanfy that it includes the total
capacity of a tank or container capabli of
storing oil or oil mixtures Because the
percentage of oil in a mixture is determined
by the operator and can be changed at will,
the total capacity of a tank or container is
considered in determining applicability under
this part, regardless of whether the tank or
container is filled with oil or a mixture of oil
and another substance, as long as the mixture
would violate standards ri 40 CFR part 110
• A definition of “underground storage
tank” has been added The SPCC program
defines the term more narrowly than the UST
program under ROSA Subtitle I Under the
SPCC program. EPA proposes to regulate any
tanks that are not completely buried as
aboveground tanks, because tanks with
exposed surfaces exhibit a potential to
discharge into navigable waters and
adtoinsng shorelines See also the discussion
in the preamble regarding the relationship
between the SFCC and the UST programs
•EPA is not proposing any changes to
the deftntlsos’i of “oil” )except its
redesignation from § 112 2(a) to
§ 112 2 (i))
C. Secbo 7123—Requirement to
Prepare and Implement a Spill
Prevention, Control. and
Countermeasures P lon
This section describes Ihe
requirements for the preparation and
implementation of SPCC Plans Most of
the proposed modifications to § 1123
have been provided for clarification
I lowever, in paragraph (b) of the current
rule, a new facility is required to prepare
a Plan within six months after
operations begin and to implement the
Plan within one year In proposed
paragraph (b). a new facility is required
to prepnre arid fully implement a Plan
before beginning operations, unless an
extension has been granted by the
Regional Administrator (proposed
§ 112 5(a) requires that Plans be
amended before any change is made
that materially affects the facility’s
potential for discharge of oil into the
waters of the United States) E\perien a
with the implementation of this
rogulatton shows that many types of
failures occur during or shortly follov.ing
facility startup and that virtually all
prevention containment and
countermeasures practices are a part of
the facility design or construction
Therefore, the Agency believes that new
facilities should be required to plan and
execute the provisions governing spill
prevention pnor to starting operations
EPA assumes for the purpose of this
proposed provision that all existing
facilities subtect to this rule have had
their SPCC Plans prepared since the
regulation was issued, therefore, only
new facilities would be affected by this
proposed change in timing for the
submittal of their Plans
EPA also assumes in § l i Z 3(c) that
owners/operators of existing onshore
and offshore mobile or portable facilities
have prepared and implemented a
facility SPCC Plan as required by
§ 112 3(6 ), therefore, only new facilities
are affected by the change in timing for
the submission of the SPCC Plans
Additional requirements concerning
Plan certification by a Registered
Pro fess ional Engineer are specified in
§ 112 3(d) The existing language states
that “no SPCC Plan shall be effective to
satisfy the requirements of this part
unless it has been reviewed by a
Registered Professional Engineer and
certified to by such Professional
Engineer By means of this certification
the engineer, having examined tire
facility and being familiar with the
provisions of this part, shall attest that
the SPCC Plan has been prepared in
accordance with good engineering
practices. Such certification shall in no
way
This existing language states that the
Professional Engineer (PE) rntist only be
certified. The Agency is solicit ing
comments on the advantages and
disadvantages associated with the PE
being registered in the State in which
the facility is located and the additional
requirement that this PE should not be
an employee of the facility or have any
other direct financial interest in the
facility
The U S Ceneral Accounting Office
(GAO), in a 1989 report, “Inland Oil
Spills. Stronger Regulation and
Enforcement Needed to Avoid Future
Incidents” (CAO/RCED—89—65). ‘ -
recommended that EPA evaluate the
advantages and disadvantages of
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requiring facilities to obtain certification
from independent engineers
The Agency notes that not having the
PE otherwise associated with the facility
may avoid any potential conflicts of
interest or appearance of conflicts of
interest that could arise from allowing
an employee of a regulated party to
certify a SPCC Plan The Agency also
notes that a requirement that a PE be
licensed in the State in which the facility
is located would allow the State
licensing board to more easily address
the actions of the PE under its
jurisdiction, and that the PE may have
greater familiarity with the State and
local requirements related to the facility
under review
The Agency notes that disadvantages
associated with the above approaches
have been expressed by several
organizations. who object to such
requirements as challenging the integrity
of professional engineers They also
point out that these requirements would
impose substantial costs without
enhancing the integrity of the
certification process
To assist the Agency in addressing the
GAO and Task Force recommendations
cited above. EPA specifically solicits
comments or data regarding the
ramifications of requiring that the
certifying professional engineer not be
an employee of the owner or operator
In addition, under the proposed rule,
the Engineer must attest that required
testing has been completed aed that the
Plan meets the requirements of
regulation for the facility. These
revisions promote the Agency’s intent in
the original promulgation of § 112 3(d)
that SPCC Plans be certified by a
Registered Professional Engineer
exercising independent judgment The
Agency intends these new requirements
to be met when a new Plan is prepared
after promulgation of this proposed rule.
or an existing Plan is amended, pursuant
to § 1125. During inspections for
compliance with the current SPCC
requirements, some facility owners ana
operators have argued that they have
not interpreted the current regulatory
language to require that the certifying
Engineer physically visit the facility EPA
believes the current regulatory language
(e g. requiring the engineer to examine
the facility) clearly requires the
certifying Engineer to visit the facility
prior to certifying the SPCC Plan The
proposed change clarifies this
requirement by specifying that the
Professional Engineer must be
physically present to examine the
facility
As described in paragraph (e). the
SPCC Plan must be available at a
facility if the facility is normally
attended eight hours per day. Some
owners or operators at facilities
operating one shift per day have
interpreted this requirement as not
applying to a facility that is in operation
only seven and one half hours per day,
deducting ai,alf hour for lunch The
Agency strongly believes that to be most
useful in preventing and mitigating
discharges, the SPCC Plan must be an
integral part of manned facility
operations Therefore, the Agency has
chosen a four-hour minimum attendance
requirement in the proposed rule to
ensure that facilities operating one shift
per day are required to maintain SPCC
plans at the facility
In paragraph (f). the owner or operator’
of new facilities described in paragraph
(b) may in defined circumstances apply
for an extension of time to comply with
the requirements of this part Existing
facilities described in paragraphs (a)
and (c) have had since 1973 to comply
with the requirement and have their
SPCC Plans in place, and therefore, this
pro ision does not apply to those
facilities
D Section 112 4—Amendment of SPCC
Plons by RegionalAdministraior
This section describes the review of a
Plan by the Regional Administrator in
the event of certain types of spills and
procedures for requiring an amendment
to the Plan In proposed paragraph
(a)(4). owners or operators are required
to provide the Regional Administrator
with information on the name and
address of any registered agent In some
instances, a registered agent of the
owner or operator may have information
needed by the Regional Administrator
The Regional Administrator may also
need to contact the agent with further
questions or transmit his review of the
Plan back to the agent
In proposed paragraph (a)(10),
information on the nature and volume of
oil spilled is required, in addition to the
information currently required
Information on the nature and volume of
oil spilled provides the Agency with
additional information to identify select
problem areas where additional
regulatory emphasis may be needed.
EPA also believes that this information
will assist the Regional Administrator in
determining if amendment of the SPCC
Plan is necessary and in determining
future oil pollution prevention policies.
In proposed paragraph (b), the
references to § 112 3(a). (b), end (c) have
been deleted because the times allowed
in these paragraphs for the preparation
and implementation of the Plan are
proposed for deletion
Paragraph (c) of the current rule
requires that a complete copy of all
information provided to the Regional
Administrator be provided to the State
agency in charge of water pollution
control activities in which the facility is
located Proposed paragraph (c) would
require that the information be sent to
the State agency in charge of oil
pollution control activities The EPA is
proposing this change because it is the
appropriate agency to contact in many
States
In proposed § 112 4(d), a sentence h is
been added that discusses the re’. ie
the Regional Administrator of materials
submitted under proposed § 112 7(d)
Proposed § 112 7(d) requires among
other things. the owner or operator to
submit to the Regional Administrator
certain materials, such as a contingency
plan, if the installation of structures or
equipment listed in § 112 7(c) is not
practicable
E Section 172 5—Amendment of SP ’C
Plans by Owners or Operators
EPA is proposing to revise § 112 5(a)
to require that Plans be amended before
any change is made in facility design.
construction, operation, or maintenance
affecting the facility’s potential for
discharge of oil into waters of the
United States unless an extension has
been granted by the Regional
Administrator This provision is
consistent with the provision proposing
that SPCC Plans for new facilities be
prepared and implemented before
facility operations begin. EPA is also
proposing to clarify which changes
require Plan amendments by listing the
following types of changes as examples’
(1) Commission or decommission of
tanks: (2) replacement, reconstruction,
or movement of tanks: (3)
reconstruction, replacement. or
installation of piping systems: (4)
construction or demolition that might
alter secondary containment structures:
or (5) revision of standard operation or
maintenance procedures at a facility
These examples are not an exclusive list
of changes that require a Plan
amendment
The owner or operator of a facility
subject to § 112 3(a). (b), or (c) is
required by the current § 112 5(b) to
review and evaluate the facility SPCC
Plan at least every three years. and to
amend the Plan within six months to
include more effective prevention and
control technology if (1) Such
technology will significantly reduce the
likelihood of a spill from the facility, and
(2) the technology has been field-proven
at the time of the review
The current § 112 5(c) states that, to
be effective, all amendments to a
facility’s Plan must be certified by a
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Professional Engineer in accordance
wilhjj’IZ 3(d) EPA is proposing an
exception to this provision for any
changes to the SPCC Plan emergency
contact list (required by the proposed
§ 1 12 7la)(3)(ix)) This change does not
affect the technical lengineering aspects
of the SPCC Plan, or the characteristics
of the facility and, therefore, does not
require certification by a Professional
Engineer It is important that the SPCC
Plan emergency contact list be current in
order to rapidly respond to spills
F Section 112 5 —Civil Pen a/ties for
Violotion of Oil Pollution Prevention
Regulation
This section describes the penalties
associated with failure to comply with
certain listed sections of the rule In this
proposed rule. § 112.1(e). 1127. 1128.
1129. 112 10. and 11211 are added to the
list of required provisions
The OPA changes the penalty
structure under the CWA (see Section
I C of this preamble. Oil Pollution Act of
1990. for charges in liability limits and
penalties) All violations of this
regulation on or after August 18. 1990
are sublect to the procedures set out in
section 311 of the CWA as amended by
the OPA The Agency is reviewing the
need for clarifying changes to § 112 6
and to 40 CFR part 114 in light of the
OPA amendments
C Section 212 7—Spill Prevention.
Control. ond Countermeasures P/on
General Requirements
The Agency is proposing to separate
existing provisions of 40 CF’R l I Z 7 into
five sections ( § 1127. 112 8. 1129.
112 10. and 112 ii) based on facility
type Proposed § 1127 provides general
requirements for preparing SPCC Plans
while § 1128. 1129, 112 10. and 11211
address detailed Plan requirements for
onshore facilities (excluding production
facilities), onshore production facilities,
onshore oil drilling and workover
facilities, and offshore oil drilling,
production, and workover facilities.
respectively The purpose of the
reorganization of the current § 1127 is
for clarity and ease in using the
regulation but is not intended to make
substantive changes to the regulation.
the new regulatory citations created by
the reorganization do nQt by themselves
require rewriting or recertification of
SPCC Plans.
Section 112 3(a ) of the current rule
requires that SPCC Plans be prepared in
accurdan e with § 112.7. The Agency
believes, however, that clarification oi
the existing regulation is necessary
because nf confusion on the part of
some owners or operators who have
interpreted the current rules use of the
words “should” and “guidelines” as
indications that compliance with
applicable provisions of § 112.7 is
optional The current regulation requires
that all SPCC Plans be prepared in
accordance with good engineering
practice. The Agency originally
promulgated § 1127 (now reorganiied
as proposed § 1127, 1128,1129. 112 10.
and 112 11) to require that SPCC Plans
be prepared in accordance with the
appropriate provisions in that section in
the belief that such practices are good
engineering practice for facilities
described in the regulation However.
the regulatory language “should” was
used in most provisions to provide
flexibility for facilities with unique
circumstances that could show that such
practices do not represent good
engineering practice
To eliminate any misunderstanding.
the words “requirements” and “shall’
have generally been substituted for the
words “guidelines” and “should” in the
proposed revisions to § 1127, 1128.
1129.11210. and 11211
Nevertheless, because of the
differences in facility design. the Agency
continues to recognize that it is not
always feasible or consistent with good
engineering practice to mandate the
same requirements for every facility to
prevent and to contain oil spills Thus,
the Agency has reviewed each of the
provisions of proposed § 1127, 1128,
1129, 112 10, and 11211 and, where
appropriate, is proposing the provision
as a recommendation for consideration
by Facility owners or operators in
evaluating the requirements of good
engineering practice
Furthermore, as is the case in the
current regulation. the proposed revision
continues to provide for deviation from
the requirements of § 1127 where the
owners or operators cannot meet the
specific requirements set forth in the
ru,le A new proposed technical waiver
in § 112 7(a)l2) allows for the owner or
operptor to provide equivalent alternate
protection that is not specified in
§ 112 7(ck112 8, 1129. 112 10. and
112.11 EPA. in the exercise of its
authority to inspect Facilities and SPCC
plans. of course, retains the authonty to
find thai such alternative methods of
protection do not provide equi’ aIent
protection
In addition to clarifying language. the
Agency has proposed in today’s rule two
other series of changes. First, the
Agency has specified many of the
inspection and monitoring time periods
referred to in § § 112 7. 1128, 1129.
112.10, and 112 I i. In the current rule.
many time periods are determined by
the owner or operator and listed in the
SPCC Plan, in accordance with good
engineering practice The Agency is
proposing to define most of the time
periods, while leaving only a few to
interpretation by the owner or operator
By specifying time periods based on
engineering practice. the Agency intends
to provide the regulated community with
greater certainty concerning its
obligations However, because of the
diversity of facilities subtect to this
regulation. not all time periods can be
standardized based on engineering
practice
Second. in various places in il 1128
and 1129 of the proposed rule.
recommendations have been added to
follow relevant industry standards or
recommended practices. such as API
series 12. 620, 650, and 2000, ASME
831 3, 8961. and section VIII, NFPA 30,
3 1. and 31a, and IJL 142 While the
prnpesed rule does not specifically
incorporate these standards the Agency
believes that adherence to appropriate
industry standards is, in most cases
strong evidence of adherence to good
engineering practice The Agency
recommends that these publications and
others on recommended practices and
procedures be consulted when
developing a Plan
The following discussion foruses on
revised provisions, new requirements.
and new recommendations in each
paragraph in proposed § 1127
ln § 112 7(a) of the current rule,
facilities are required to include in the
Plan information about spill events
occurring prior to the effective date of
the original Oil Pollution Prevention rule
[ 1973) Because such information has
little current relevance, the provision is
proposed to be deleted Proposed
paragraph (a) includes a general
description of the SPCC Plan, which is in
the introductory text of § 1127 of the
current rule Four new paragraphs have
been proposed for addition to paragraph
a)
In proposed paragraph la)l2l
deviation from the requirements of
paragraph (c) of this section and the
requirements of § 1128, 1129. 112 10.
and l i Z i i , which apply to a specific
facility and which include specific
provisions for structures and equipment.
is allowed, as long as that equivalent
protection is provided by other means
This provision is intended to provide
much of the flexibility to incorporate
differences in a diversp regulated
community that was previously intended
by the use of the regulatory language
“should “ Taken together with
provisions clearty defined as
requirements, this provision provides a
clearer description of the Agency’s
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expectations for the purposes of Plan
preparation
Proposed paragraph (afl3) clarifies the
chiirzicteristics of a facility that must be
described in the Plan, including unit-by-
unit storage capacity, type and quantity
of oil stored, estimates of quantity of
oils potentially discharged, possible spill
pathways. spill prevention measures,
spill control measures, spill
countermeasures, provisions for
disposal of recovered mate’ials, and a
contact list with appropriate phone
numbers The description of the
Facility’s physical plant must also
include a facility diagram on which the
location and contents of all tanks must
be marked, regardless of whether the
tanks are sublect to all the provisions of
40 CFR part 280 A complete facility
diagram will assist ii i response actions
Proposed paragraph (aJ(4) requires
documentation in the Plan to enable a
person reporting a spill to provide
essential information (based on Agency
experience) to organizations on the
contact list As the result of Agency
experience during emergency
conditions, proposed paragraph (a)(5)
requires that portions of the Plan
describing procedures to be used in
emergency circumstances be organized
in a manner to make them readily
useable in an emergency
Paragraph lb) of the proposed rule
f 112 7(b) of the current r.i.ile) changes
the ‘should’ to ‘shall” for purposes of
clarification Section 112 7 1c) of the
current rule lists appropriate
containment and diversionary structures
and requires that dikes, berms. or
retaining walls be sufficiently
impervious to contain spilled oil A
proposed revision to this paragraph
clarifies that the eniire containment
system, including walls and floor, must
be impervious to oil for 72 hours EPA
believes that the specificity of a 72.hour
standard provides the regulated
community with greater clarification
and flexibility than the phase
“sufficiently impervious” currently in
the regulatior
The Agency recognizes that spills
occur white facilities are unattended,
however, EPA believes that most
facilities are attended at some time
dii ring a 72.hnur period Therefore, a
containment system that is impervious
to oil for 72 hours will allow time for
discovery and removal of an oil spill in
most cas s This requirement is
consistent with the provision for diked
areas surrounding bulk storage tanks in
proposed § 112 8(c)lZ) Another
proposed revision to this paragraph
clarifies and further defines the phrase
‘containment system that is impervious
to oil” as being a system constructed so
that spills will not permeate, drain or
in Filtrate or otherwise escape to surface
waters before cleanup occurs
The Agency is aware that for certain
facilities, such as some electrical
substations that have gravel beds
surrounding equipment to prevent
electrical and fire hazards, compliance
with proposed § 112.7(c) may not be
practicable For these facilities,
§ 112 7(d) of the current rule describes
the procedures for facilities where the
installation of structures and equipment
listed in paragraph (c) is not practicable
The Agency believes that the alternative
requirements of § 112 7(d) provide the
regulated community with additional
flexibility on complying with the Oil
Pollution Prevention regulation while
fulfilling the intent of the CWA
The proposed rule would add several
new requirements First, facilities would
be required to conduct integrity testing
of tanks every five years at a minimum
This is in contrast to the proposed
requirement in § 112 8(c)(6) for integrity
testing of tanks every ten years at
facilities, that are able to incorporate
secondary containment features In
addition, the proposed rule would
require facilities without secondary
containment to conduct integrity and
leak testing of the valves and piping
every year at a minimum Annual testing
has been proposed because valve and
piping system failures are a major
contributor to oil spills s
The current § 112 7 ld) requires that a
strong oil spill contingency plan and a
written commitment of manpower.
equipment, and materials for spill
control and removal be provided for
facilities without secondary
containment Since these facilities do
not have oil spill technology that uses
secondary containment, prevention and
countermeasures become of primary
importance and these measures will
have to be implemented immediately to
present spills from reaching navigable
waters Proposed paragraph (d) clarifies
that the co’ntirigency plan must be
provided to the Regional Administrator
In addition, proposed paragraph (d)
references proposed § 1124 (d) , allows
the Regional Administrator to approve
the Plan or require amendment of the
Plan,
The contingency plan is a subsection
of an SPCC Plan An SPCC Plan can be
divided into two mator concepts (1)
Design. operation. and maintenance
procedures to prevent and control spills,
and (2) how a facility’s personnel are to
Twnivc perceni of ati reieaaea arc cauaed by
pipe ieaka and waive fatiurea ‘ Aboveground
Siorage Tank incideni informaiion Proicci,” APi
Waatungion oc Oecember 20 ieaa
respond to a discharge The contingency
plan is designed to deal with the second
concept. It is proposed that the
contingency plan shall be a separate
section of the SPCC Plan because it
would be more accessible during
emergencies.
One of the first steps in developing a
contingency plan is to define the
potential hazard Requirements to define
a hazard are in § 112 7(b) Typically, to
determine the potential hazard, the
following would be examined’ Potential
failures, the size of a spill resulting from
each type of failure, how fast and long
the spill event would take to occur, and
what the spill might impact To
determine what the spill may impact.
the potential spill size, rate of flow, and
direction of travel needs to be analyzed
The OPA requires facilities that pose a
substantial threat or harm (a g . facilities
without secondary containment) to the
navigable waters to prepare a facility
specific response plan. This requirement
will be addressed in Phase II revisions
to the SPCC regulation
Paragraph (dfl i) of the corrent rule
states that an oil contingency plan must
follow the provisions of 40 CFR part 109
the proposed paragraph no longer refers
to 4.0 CFR part ‘109. but, specifies basic
requirements for an oil contingency
plan The proposed revisions to this
paragraph would require that the Plan
include a description of response plans.
personnel needs, methods of mechanical
containment, removal oi spilled oil, and
access and availability of sorbents.
booms, and other equipment Proposed
paragraph (dill) would require that the
Plan not rely upon response methods
other than containment and physical
removal of oil from the water, unless
such response methods have been
approved for the contingency plan by
the Regional Administrator The
additional approval for the actual use of
dispersants and other chemicals to
respond to oil spills in nat gable waters
would continue to be governed by 40
CER part 300, subpart J of the National
Contingency Plan
Proposed paragraph ld)(2) contains a
recommendation that the facility owner
or operator consider factors such as
financial capability in making the
wrLtten commitment of manpower.
equipment. and materials.
Section 112 7(e) of the existing
regulation lists the provisions specific to
various types of facilities This section
has been reorganized and divided into
§ 112 8, 1129 112 10. and 11211 The
remaining paragraphs in proposed in
* 112.7 are discussed below
Proposed Section 112 7(e) Ins pection,
lusts and records This is § 112 7(e)(8)in
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the turrent regulation A facility should
continually conduct self-inspections and
regular maintenance on its equipment
In the proposed rule, alt records of
inspeCtiOnS and tests are to be
maintained with the SPCC Plan because
these records need to be readily
accessible to EPA personnel and the
certifying PE The proposed rule changes
from three to five years the period for
which records of inspections and all test
results (along with the written
procedures for performing the
inspections and testsl must be
maintained with the SPCC Plan The
records of tests. inspections, and
maintenance should be updated
continuously Ii these records were part
ol the Plan, as stated in the existing rule.
the Plan would need to be amended
each Lime old records were removed and
new records added The use of
“rriaintained with’ is intended to
eliminate this problem
The proposed rule change from three
to five years for retention of records of
inspections, test results, arid written
procedures for performance is consistent
with the Federal statute of limitations on
assessment of civil penalties for SPCC
regulatory violations Extending this
requirement to five years will ensure
that facility owners or operators have
records needed to establish compliance
with the Oil Pollution Prevention
regulation. The provision requiring
inclusion of aLl records of test results is
a clarification of what inspections
include
Proposed 112.7/f) Personnel,
training, and spill pie veniwn
procedures This section is § 112.7(e)(10)
in the current regulation. Included in this
section are reqinrernenis for training
facility personnel. A new
recommendation that training exercises
be conducted yearly and that new
employees be trained within their first
week of work is proposed in
§ 112 7(f)(1) A high percentage of spills
are caused by operator error, therefore.
training and briefings are important for
the safe and proper functioning of a
facility Training encourages up-to-date
planning for the control and response to
a spill Training courses help sharpen
operating and response skills, introduce
the latest ideas and techniques, and
promote contact with the emergency
response organization and familiarity
with the PCC Plan Refresher training
must be carried out in a consistent and
regular mariner to ensure currency and
capability of employees New
employees may have a higher
proli.ibility for operation errors and,
therefore, need training .19 soon as
possible after their employment Facility
training in emergency response
operations could be held in conjunction
with local contingency planning efforts
in accord with SARA Title I I I
requirements
Proposed § 112 7(g) Security
(excluding oil production facilities)
This section is § 112 71e)(9) in the
current regulation Requirements for
fencing, locks, lighting, and other
security measures at facilities are
described in this section
Vandalism is a factor in many spills
from facilities, therefore, there is a need
for adequate and effective security to
prevent access to the site by
unauthorized persons and to prevent
tampering with equipment and tanks
Paragraph (e)(9((iij of the current rule
requires that master flow and drain
valves be securely locked in the closed
position when in non-operating or non-
standby status fleca use of changes in
technology and the use of manual and
electronic valving, the Agency believes
that this provision should be clarified to
require closure of valves, however, the
method of securing valves is left to the
discretion of the facility and good
engineering practice. as described in
proposed § ‘112 7 (g)(2)
Paragraph (cfl9)(iv) of the current rule
requires that the loading/unloading
connections of oil pipelines be securely
capped or blank-flanged when not in
service or stand-by service for an
extended time Proposed paragraph
(g)(4J clarifies “an extended time” to be
a time greater than ‘six months” This
time period is based on experience in
the Regions Regional personnel found
that some spills were caused by loading
or unloading oil through the wrong
pipeline or turning the wrong valve
when the pipeline in question was
ctually out-of-service, Since this rule
applies to facilities and tanks operating
seasonally and since a number of
loading! unloading connections are used
seasonally, a period of six months is
pt oposed
Proposed c 712 7(h) Facility tank car
and tank track loading/unloading rack
(eAc/uding offshore facilities) This
section is § 112.71e)(4) in the current
regulation Because many onshore
facilities subject to the SPCC regulation
have tank car and tank truck loading/
unloading racks, this paragraph was
kept in the general applicability section
Proposed 112 7(i) This section
references conformance with the
applicable provisions in proposed
§ 1128.1129 112 10, and 11211 and if
more stringent, with State rules,
regulations. and guidelines
H Section 7128 Spill Prevention.
Control, and Countermeasures P/on
Requirements for Onshore Foci/jtjr
(Excluding Production Facilities)
This section combines § 112. 7(c)l1 ’),
112 7(e) 2), and 112 7(efl3) of the current
regulation The word “plant” is changed
to “facility” to clarify EPA’s intent
Current § 112 7(e)(1) discusses facility
drainage systems and is proposed to be
renumbered as pnrngrniph (b)
Proposed § 112 8(b)(3) clarifies that
only undiked areas of a facility’s
property that are located such that they
have a reasonable potential to be
contaminated by an oil spill are required
to drain into a pond. lagoon. or
catchment basin A good SPCC Plan
should seek to separate rcimonably
foreseeable sources of contamination
and non-contamination
in proposed § 112 B(b)(4), “plant
drainage” is changed to “facility
drainage”, “ditches” is changed to
‘drainage” to clarify the meaning of the
section It is proposed that spilled oil
shall be retained in the plant rather than
returned to the plant This change
follows the spill prevention and control
intent of this rule Furthermore, it should
be easier to retain spilled oil rather than
retrieve oil that has been spilled and
discharged from the facility This shot
enhance efforts to prevent the dischar ,
from reaching navigable haters
Current § 112. 7(e) (i)(v) is proposed as
§ 112 8 (b)l5) and has been reworded to
improve its clarity
Proposed § 112,8(bl(6] includes a
clarification that compliance with the
SPCC regulation does not preclude the
need for owners or operators to comply
with the requirements of Federal. State
and local agencies such as those for
facilities in areas subiect to flooding
The Plan should address these
additional measures related to flooding
This is consistent with the FEMA
promulgated requirements in 44 CFR
part 60 for aboveground storage tanks
locuied in flood hazard areas For
further discussion of FEMA’s flood plain
management requirements. see section
IV E of this preamble
Current § ‘112 7(c)(2) discusses bulk
storage containers and is proposed to be
renumbered as § 112 8(cJ Proposed
§ 112 Otdill) contains a new
recommendation that tanks conform
with relevant industry standards as
“goad engineering practice ‘ Paragraph
(e)(2)(iil of the current rule requires that
tank installations include a secondary
mc.irts of containment for the contents
of the largest single tank nd sufficient
freeboard to allow for precipitatii 1
Although the current rule and the
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prop’bied revisions do not set a standard
for “sufficient” freeboard, EPA
recommends Freeboard sufficient to
contain a 25-year storm event Certain
facilities may have equipment such as
electrical transformers that contain
significant quantities of oil for
operational purposes rather than storage
purposes EPA has determined for safety
and other considerations that such oil
filled equipment should not be sublect to
the provisions of proposed § 112.8(c) or
§ 1 129(d) addressing bulk storage
containers at onshore facilities because
the primary purpose of this equipment is
not the storage of oil in bulk
Consequently. facilities with equipment
containing oil for ancillary purposes do
not need to provide secondary
containment for this equipment nor
implement the other provisions of
proposed § 1128 (c) or § 112 9(d) Oil-
filled equipment must meet other
applicable SPCC requirements including
the general requirements and the
requirements of § 1227. including
§ 112 7(c). to provide appropriate
containment and or diversionary
structures to prevent discharged oil from
reaching a navigable water course, The
general requirement for secondary
containment, which can be provided by
various means including drainage
systems, spill diversion ponds. etc, will
provide for safety and also meet the
goals of section 311(t)(1](cI of the CWA
The oil storage capacity of the
equipment. however, must be included
in determining the total storage capacity
of the facility, which determines
whether a facility is subject to the Oil
Pollution Prevention regulation The
Agency believes that this interpretation
will ensure that facilities containing oil
storage capacity above the quantity cut-
offs prepare SPCC Plans while, at the
same time, recognizing that certain
types of equipmqpt use oil in specialized
ways for which the provisions of
propoced § 112 6(c) or § 112 9(d) are not
necessary
The SPCC Plan, ho ever, will not
require that specific oil spills prevention
measures designed for storage tanks.
such as dikes, be installed EPA also
solicits comments and data that might
identify operational rather than storage
uses of oil, other than electrical
transformers, for facilities that may not
currently use secondary containment as
a common industry practice
l’he current rule also requires that
diked areas must be sufficiently
impervious to contain spilled oil The
proposed ‘ 112 6(cJ(2) clarifies that
these diked areas must be able to
contain spilled oil for at least 72 hours
(see previous discussion of § 112 7(c) in
this preamble)
Current paragraph (e)(2)(iv) addresses
underground metallic storage tanks and
is proposed to be renumbered as
§ 112 8(c)(4) Because tanks currently
subtect to the technical requirements of
the L iST regulation (40 CFR part 280)
would be generally exempted from
SPCC requirements under proposed
§ 112 1(dfl4), proposed § 112 8(c)(4)
would only apply to tanks not covered
by the UST requirements
Paragraph (e)(2)(iv) in the current rule
requires buried tanks to be subjected to
regular pressure testing Under proposed
§ ‘112 8(c)(4), regular leak testing is
recommended for such tanks leak
testing is specified. rather than pressure
testing, in order to be consistent with
many State regulations The Agency is
not proposing to require leak testing
under the Oil Pollution Prevention rule
until further data are generated The
Agency is aware that this technology is
evolving rapidly with new volumetric
testing designs, acoustic detection
methods, and tracer gas techniques in
various stages of commercial
development EPA’s Office of
Underground Storage Tanks will be
reviewing these new techniques and
subsequently may issue technical
requirements for tanks for which
technical provisions under 40 OFt part
260 are currently deferred These
technical provisions may be
incorporated into this regulation
Under § 112 7(e)(2)(v) of the current
rule, partially buried metallic tanks are
to be avoided unless the shell is coated
Under proposed § 112 8(cfl s). it is
recommended that partially buned or
bunkered metallic tanks be avoided
altogether If such tanks are used,
however. they must be protected from
corrosion by coatings. cathodic
Fotection, or other methpds This
proposed provision is consistent with
the requirements for completely buried
tanks
Paragraph (e)(2)(vi) of the current rule
requires that aboveground tanks be
subtect to periodic integrity testing and
lists suggested testing techniques
Proposed § 112 8(c l(6) specifies that the
testing must be performed e ery ten
years and when material repairs are
conducted An example of such testing
is a full hydrostatic test performed when
a tank is reconstructed or when the tank
has undergone major repairs or major
alterations A major repair or alteration
may include removing or replacing the
annular plate ring, replacement of the
tank bottom, or jacking of a tank shell
CPA believes that a ten-year testing
interval is standard industry practice
although many types of tanks, such as
those storing types of crude oil, may
require more frequent testing In
addition to hydrostatic testing. visual
testing, and a system of non-destructive
shell testing. as listed in the current rule,
the Agency recommends such
techniques as radiographic. ultrasonic,
or acoustic emissions testing for testing
the integrity of aboveground tanks The
Agency does not believe that visual
tests alo:ie are sufficient for an integnty
test, and that they should be used in
combination with the aforementioned
techniques
Studies of the Ashland oil spill
suggest that the tank collapse resulted
from a brittle fracture in the shell of the
tank Adequate fracture toughness of the
base metal of existing tanks is an
important consideration in spill
prevention, especially in cold weather
Although no definitive non-destructive
test exists for testing fracture toughness.
the API 550 standard establishes
material toughness criteria that reduce
the risk of brittle fracture, therefore, the
Agency recommends that this standard
be used as a starting point
Section 112 7(e)(2flvii) of the current
rule discusses the factors to be
considered to control leakage from
defective internal heating coils Under
paragraph (e)(2)(viiflA) of the current
rule, steam return or exhaust lines from
internal heating coils that discharge into
an open water course must be monitored
or passed through a settling tank.
skimmer, or other separation or
retention system In proposed
§ 112 8(c)l7)(i). the Agency recommends
that these systems be designed to hold
the entire contents of the affected tank,
be of sufficient size to contain a spill
that may occur when the system is not
being monitored, or have fail-safe oil
leakage detectors The revision in
proposed § 112 8(c((7)(ii) claHfies that
ocosidera lion of the feasibility of
installing an external heating system is
a discretionary provision
Paragraph (efl2)(viii) of the current
rule lists several devices to ensure that
new and old tank installations are fail-
safe engineered, one or more of thete
devices is required at a facility Testing
frequency of these devices may vary
depending on the type of sensor and the
manufacturer The Agency is not
specifying a time frame for testing
sensing devices. but recommends
regular testing in accordance with
manufacturer specifications and
schedules Proposed § 112.8(c)(8)(v)
allows for the use of other newly
developed sensing devices if these
devices will provide equivalent
protection consistent with § 112 7(a)
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Federal Register I VoL 56, No 204 / Tuesday, October 22, 1991 / Proposed Rules
Paragraph (e)(2J (x) of the current rule
;equires that oil leal’ s Iron , tank seams.
gaskets, rivets, and bolts sufficiently
large to cause accumulation of oil in
dil’cd areas be promptly corrected.
Proposed § 112 8(c)(10) adds a
requirement that the accumulated oil or
oil-contaminated materials must be
removed within 72 hours from the time
the spill event occurs. This time frame is
consistent with the requirement for
diked areas as specified in proposed
§ 112 7(c)
Paragraph (e)(2) (xi) of the current rule
discusses the requirements for mobile or
poriable oil storage tanks In proposed
§ ‘112 8 )c)(1t). it is recommended that
these systems have a secondary means
of containment for the largest container
Since many mobile and portable tanks
are sited for a short duration at
construction sites and moved frequently
from location to location, EPA
recognizes that it will not always be
feasible to have secondary containment
If it is not technically feasible, the SPCC
plan should include a complete
discussion of why it is riot feasible, and
state the countermeasures to be used in
case of a spill
Section 1 12.7(e(3 ) of the current
regulation discusses facility transfer
operations, pumping, and in-plant
process and is proposed to be
renurribered § 112 8(d) The current
§ 112 7(e )(3)(i) requires that buried
piping installations have a protective
coating and be cathodically protected if
soil conditions warrant Proposed
§ 112 8(d)(1j requires protective coaling
and cathodic protection for new or
replaced buried piping, regardless of soil
conditions Based on EPA experience.
the Agency believes that all soil
conditions warrant protection of buried
piping However, the Agency is not
requiring currently in-place buried
piping to have a protective wrapping
and be cathodically protected The
owner or operator of a facility in the
past may have determined that soil
conditions do not warrant these
protection methods Further, the Agency
also believes that the activities
associated with replacing all
unprotected buried piping would
possibly cause more spills than it would
prevent The proposed paragraph would
allow facilities the option c i complying
with other corrosion protection
standards For piping specified in 40 CFR
part 280
In proposed § 112 8(dJ(1J, it is
recommended th,it piping installations
shall be placed aboseground whenever
possible The Agency encourages the
pl v enient of these installations in leak.
proof galleys th,it feed to lie facility’s
oil/water separator Paragraph (e)(3)(ii)
of the current rule ‘equires that the
terminal connection of oil pipelines be
securely capped or blank-flanged sshen
not in service or in stand-by service for
an extended time Proposed paragraph
(dj(2) clarifies “an extended time” to be
“six months or mcre”
Proposed § 112 8 (d)(4 ( clarifies that all
abovegrourid valves, piping. and
appurtenances must be subjected to
monthly examinations In the current
rule, this provision requires ‘regular”
examinations of ‘aboveground valves
and pipelines only It has been the
Agency’s experience that other
appurtenances may be a mater cause of
oil spills and should be regularly
examined The current rule also suggests
that periodic pressure testing may be
warranted for piping in certain areas
The proposed rule recommends that
facilities conduct annual integrity and
leak testing of buried piping or monitor
buried piping monthly following the
monitoring requirements of 40 CFR part
280 In addition, records of this testing or
monitoring are to be maintained for a
period of at least five years (see section
Ill G,and § 1127(e)) The Agency
recommends that all valves, pipes. and
appurtenances conform to relevant
industry codes, such as ASME
Standards
Proposed § ‘112 8(d )(5) adds a
recommendation that facilities post
vehicle weight restriction to prevent
damage to underground piping
I Section 1129 Spill Prevention.
Control, and Countermeasures Plon
Requirements for Onshore Oil
Production Facilities
This section is § 112 7(e](5) in the
current regulation. Paragraph (e) (5J(ii)(8)
of the current rule requires that
accumulations of oil from ditches, oil
traps. sumps. or skimmers be removed
Proposed § 112 9(c)(2) clarifies that oil’
contaminated soil, as well as
accumulation of oil, must be removed
EPA encourages facilities to remove
such accf mulntionis immediately. or
within the 72 hour required period if
immediate removal is not feasible EPA
recognizes that many production
facilities are not staffed during a given
72 hours. and therefore cleanup and
discovery times may lag EPA solicits
comments on the appropriate amount of
time for discovery and removal of
spilled oil at production facilities
Proposed § 112 9(c)(3) is a new
recommendation, for oil production
facilities in areas subtect to flooding,
that the Plan address additional
precautionary measures related to
flooding rEMA’s requirements for
abovegroond storage tanks located in
flood hazard areas are discussed in
Section IV E of this preamble
Proposed § 112 9(d( (1) contains a
recommendation that tanks conform
with relevant industry standards, sin-i.
to the recommendation in proposed
§ 112 8(c) Paragraph (c)(5)(iii)lB) in the
current rule requires secondary
containment for he contents of the
l irgest single tank, if feasible, the
proposed revision in § 112 9 1d)(2)
clarifies that the ccnta ’ ment must
include sufficient freeboard to allow for
precipitation Agency experience has
determined that freeboard for
precipitation at production fdcilities to
be very important because ihese
facilities are frequently left unattended
and water is more likely to accumulate
in diked areas Paragraph (e)(5l(iii)lC) of
the current rule requires that production
tanks must be visually examined on a
scheduled periodic basis Proposed
§ 112 9(d )(31 clarifies that the
examination must occur at least once a
year It is also proposed that facility
owners and operators be required to
maintain the schedule and records for
examinatiots of tanks for a period of
five complete years, irrespective of
changes in ownership (see Section III C
and § 112 7(e))
Paragraph fe)(5) (iv) (A) of the current
rule requires that aboveground valves
and piping be examined periodically o
a scheduled basis Proposed § 112 9(e)
clarifies that the examination must
occur monthly, that the schedule of
examinations must be included in the
SPCC Plan, and that records must be
maintained for five years (see Section
Ill C , and § 1127(e)) EPA has found
that failures in a facility’s internal piping
system are a major cause of oil spills
The Agency believes that monthly
examinations will prose effectise in the
discovery and rcmediation of potential
problems Paragraph (e)(5)(iv) [ B) of the
current rule requires oil Field brine
disposal facilities to be examined often
EPA is not proposing a change to this
requirement because the circumstances
of location and staffing schedules vary
greatly for such facilities EPA, however
suggests that weekly examination will
be an appropriate engineering standard
for most facilities Low temperature
conditions, sudden temperature changes.
or periods of low flow rates may require
more frequent inspections
Paragraph (d115 )(ivHC) of the current
rule requires production facilities to
have a program of flowline maintenance
at the facility’s transfer operations LPA
is proposing to change this requirement
to a recommendation because the
circumstances of locations staffing. and
design vary greatly for production
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544 iZ5
facilities EPA suggests that monthly
examinations are appropriate for most
faci lit es
/ Section 17210 Spill Prevention.
Control. and Countermeasures Plan
Requirements for Onshore Oil Drilling
and Workover Facilities
This section is § ‘112 7(e)(6) in the
current rule and includes requirements
for onshore oil drilling and workover
facilities Paragraph (e)(6)(i) of the
current rule requires that mobile drilling
or workover equipment be located so as
to prevent spilled oil from reaching
navigable waters
Proposed § 112 10(d) requires that
when necessary:’ a blowout prevention
assembly and well control system be
installed that is capable of controlling
any anticipated welihead pressure that
is expected to be encountered while that
blowout assembly is on the well EPA
recognizes (hat a blowout prescnlion
assembly is not necessary where
pressures are not great enough to cause
a blowout (gauge negative) and need not
be reqwrcd in all cases However, a
gauge negative reading must be
evaluated in conjunction with an
examination of the known history of the
pressures encountered when drilling on
the oil reservoir The history of the
reservoir may indicate that a blowout
prevention assembly and well control
system is needed Where the history of
the reservoir is not known, then a
blowout prevention assembly and we 1 t
control system must be installed
K Section 11211 Spill Prevention,
Control, and Countermeasures P/an
Requirements for Offshore Oil Driil,n , ’,
Production, or Worko vet Facilities
This section is § 212 7(e )(7) in the
current regulation and includes the
requirements for offshore oil drilling.
production, and workover facilities The
definition of these facilities has been
moved to § 112 2 (p) Numerous other
editorial changes h.ive been made to
clarify the intent of this section
As indicated iii § 112 11(b) of this
proposed re ula Lion offshore oil drilling.
production, and workover facilities thai
are subject to the Operating Orders.
notices, and regulations of the MMS are
not subpect to this part Paragraph
(el(7fliij of the current rule requires
removal of oil in collection equipment as
often as necessary to prevent overflow.
The proposed § 112 11(c) has been
amended to require removal of collected
oil at lc, st once a year EPA believes
hat yearty oil removal will prevent
buildup of accumulated oils. A
protracted removal period could lead to
an accidental excess buildup and
resu]tdnt overflow
Paragraph (e)(7)(iii) of the current rule
requires a regularly scheduled
maintenance program for the liquid
removal and pump start-up device
Because offshore facilities have less
ability to control spills in navigable
waters than onshore facilities, their
containment devices are particularly
important In the proposed § 112 11(d),
“regularly scheduled” is clarified as
“monthly”
With regard to corrosion protection in
proposed § 112 11(h). the Agency
recomr ends that the appropriate NACE
standards be followed in determining
suitable corrosion protection for tanks
Proposed § 112 11(j) cites simulated spill
testing as a preferred method to test and
inspect oil spill prevention equipment
and systems Experience has
demonstrated that properly maintained
and functioning pollution prevention
equipment is the most cost-effective
way to control oil spills These systems
are crucial at offshore oil drilling.
production, and workover facilities
where a reduced ability to prevent oil
from reaching navigable waters exists
Therefore, proposed § 112 11(j) has also
been revised to require scheduled
periodic testing and inspection of
p&lution prevention equipment not less
than monthly
Paragraph (e)(7)(x) of the current rule
requires the owner or operator to
describe well shut-in valves and devices
and to keep detailed records for each
well Proposed § 112 11(k) clarifies that
this documentation must be maintained
at the facility for a period of no less that
five years (see Section Ill G and
§ 112 7(e))
Paragraph (e)(7)(xii) of the current rule
describes extraordinary well control
measures for emergency conditions In
proposed § 11211(m). such measures are
restated as recommendations Further
measures will be examined in the
context of spill contingency planning
Contingency planning will be a major
topic of the Phase Two rulemaking and
the provisions in this proposed
paragraph will be reviewed at that time
The order of sections in the current
§ 112 7(e)(7J(xiii) has been changed for
clarity Section 112 7(e)(7)(xiii) of the
current rule is proposed to be
renumbered as § 122 Il (s). and
paragraphs (el(7)(xiv) through
(e)(7)(xviii) of the current rule are
proposed to be renumbered as § 112 11
(n) through (r). accordingly
IV. Relationship to Other Programs
A Underground Storage TanAs
A number of underground and
aboveground petroleum storage tanks
(as defined by the proposed revisions to
40 CFR part 112) are subject to both the
Oil Pollution Prevention regulation and
the UST regulation (40 CFR part 280)
issued under subtitle I of the Resource
Conservation and Recovery Act
(RCRA)
A goal of both the SPCC and UST
programs is to prevent releases of
petroleum. although there are
differences in applicability, approach.
and the regulated community For
example, the current Oil Pollution
Prevention regulation is applicable to
the owners or operators of facilities (1)
Possessing either underground storage
capacity greater than 42.000 gallons of
petroleum (or any other oil), or total
aboveg uund storage capacity greater
than ‘1320 gallons of oil (or greater than
660 gallons of oil in a single
aboveground tank), and (2) that, because
of their location, could reasonably be
‘expected to discharge oil into or upon
the navigable waters of the United
States or adjoining shorelines The UST
regulations apply to owners or operators
of underground petroleum tank systems
(as defined in 40 CFR part 280) that have
a volume at least ten percent beneath
the surface of the ground (The UST
program also regulates underground
storage tanks containing hazardous
substances as defined by the
Comprehensive Environmental
Response. Compensation, and Liability
Act. as amended (CERCLA))
In addition, the SPCC program is
designed to protect surface waters.
whereas the liST program under RCRA
subtitle us intended, in part. to provide
protection for ground water Finally, the
regulatory focus of the SPCC and UST
programs currently differs significantly
as they relate to underground storage
tanks The SPCC program regulates
facilities with relatively large
underground storage capacity, whereas
the bulk of the currently regulated
universe under the UST technical
standards (40 CFR part 280) is small-
capacity USTs at facilities such as
gasoline filling stations Because EPA
believes that the UST program offers
equivalent protection. EPA is proposing
to exclude from SPCC coverage (with
two limited exceptions described below]
underground storage tanks that are
covered by all of the UST program
provisions in 40 CFR part 280
It is important to note that application
of the technical standards under the
UST regulation has been deferred for
several types of UST systems, including
systems with field-constructed tanks (40
CFR 260 1O(c)(5)) Therefore, such
systems are not “subject to all of the
UST provisions” and, thus, are subject
to SPCC reqwrements under this
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Federal Register / Vol 56, No. 204 / Tuesday, October 22, 1991 / Proposed Rules
proposal Further, this exclusion from
SPCC coverage for underground storage
tanks subject to all UST program
provisions is limited to USTs meeting
the proposed SPCC regulation definition
of an underground storage tank. i e.. a
tank completely covered with earth The
definition used in the UST program. 40
CFR part 280, is broader and includes
partially buried tanks The SPCC
program proposes to regulate any tanks
that are not completely buried because
tanks with exposed surfaces exhibit a
greater potential to discharge into
navigable waters of the United States
and other surface waters Thus. a
facility may have some tanks that are
exempt from SPCC requirements and
sonic tanks that are not exempt
The applicability of 40 CFR part 112 is
limited to facilities with underground or
aboveground capacity as previously
outlined ft e . facilities possessing
underground oil storage capacity greater
than 42.000 gaUons, total aboveground
oil storage c 0 pacity greater than 1.320
gallons. or oil storage capacity greater
than 660 gallons in a single aboveground
tank) As a result of the proposed
exclusion from SPCC program coverage
for tanks currently subject to all UST
program provisions in 40 CFR part 280.
the calculation of a facility’s
underground storage capacity should
not include those tanks
Finally, there is a qualification in this
proposed rule that affects the general
exclusion for USTs currently regulated
under 40 CFR part 280 Although an UST
m.iy be exempt from the SPCC
requirements, if the facility has non-
exempt tanks for which it must prepare
a facility SPCC Plan, the location and
contents of the exempt tanks must be
marked on the facility diagram All
tanks must be marked on the facility
diagram so that response personnel are
able to easily identify dangers from
either fire or explosion, or physical
impediments during spill response
activities. tn addition, facility diagrams
may be referred to in the event of design
modifications
B Stole Programs
State and local governments are
encouraged to supplement the Federal
SPCC program using their own
authorities An increasing number of
States have established or are
considering State-authorized oil
pollution prevention programs Some of
the Stat programs have imposed
requirements more stringent than the
Federal requirements or have added
new requirements. such as tank
licensing, tank standards, and location
specifications In addition, many States
are currently assessing the adequacy of
related programs or are considering
legislation on aboveground oil storage
tanks Compliance with the SPCC
program requirement does not alleviate
the responsibility of owners and
operators of affected facilities to comply
with these various State requirements
C Superfund Amendments and
Reauthorization Act of 1986 (SARA)
Title ill Integration With Local
Emergency Planning
Section 311 of the CWA does not
authorize EPA to delegate elements of
the SPCC program to the States The
Agency does recognize. however, that
local officials, such as lire marshals,
frequently inspect the tnstallation of
aboveground storage tanks to enforce
local codes and are often the first on-
scene responders to oil spills Therefore..
to ensure better local involvement and
awareness ala potentially harmful spill.
the Agency is proposing to require that
the facility SPCC Plan include telephone
numbers to contact various local
authorities. The Agency believes that
this contact list will aid in emergency
planning and response in the event of an
oil spill
Beyond this, coordination between
Federal/State/local agencies is possible
through additional authorities—in
particular. sections 311 and 312 of the
Emergency Planning and Community
Right .to-Know Act (EPCRA) or SARA
Title lIt (42 U.S C. 11021, 110221. These
provisions require facilities that are
directed to prepare or have available
material safety data sheets (MSDSs)
under regulations of the Occupationdl
Safety and Health Administration
(OSHA). to submit MSDSs and annual
inventory data for “hazardous
chemicals’ to State Emergency
Response Committees (SERCs) Local
Emergency Planning Committees
(LEPCsI, and fire departments. if the
amount present on site at any time
,,‘exceeds specified threshold levels
Petroleum products fall within the
definition of “hazardous chemicals”
under SARA Title Ill. This reporting
requirement affects all types of facilities
Beyond State-authorized oil pollution
prevention programs. the community
right-to-know requirements of sections
a l l and 312 of SARA Title I II can be an
effective component of State and local
involvement in spill prevention and
control activities Specifically, by
receiving MSDSs for all petroleum and
other hazardous chemical facilities, the
LEPC. using hazard analysis techniques.
can establish priorities for addressing
hazards in the community. Instead of
addressing a regula ted population of
over 400,000 fdcili ties. as the Federal
government does in the SPCC program.
each LEPC can identify and focus on
smaller population of priority local
facilities in evaluating preparedness
available response rcsources and
preparing a local emergency respons 1
plan. thus supplementing and
complementing the Federal SPCC
program. and later, local area comnl.iti’i’
plans The LEPC. industries, and othi’r
interest groups can develop a
constructive dialogue that assists in
developing prevention techniques and
identifying procedures for responding in
releases EPA expects to work closel
with States to de etop mechanisms for
sharing information about facilities md
oil spills to improve the protection of
navigable waters from discharges of (Ill,
and human health and the environment
In addition to coordination among
Federal. State, and locat regulatory
entities under SARA Title Ill. facility
owners or operators should ensure th.it
their contingency plans. developed
under the SPCC regulations. are
compatible and coordinated with local
emergency plans. including those
developed under SARA Title Ill As
discussed in Section Il of this preamble.
although the proposed revisions to the
SPCC regulation do not amend
materially the contingency planning
requirements contained in the existing
regulation, EPA will address this issue
in depth in the Phase Two modificati
to the regulation To implement the
provisions of the OPA, EPA will propose
to require certain facilities to prepare
and submit a plan for responding, to ihe
maximum extent practicable, to the
largest foreseeable discharge in adverse
weather conditions Under the current
regulation. facilities are required to
implement a contingency plan when it is
impracticable to implement certain oil
spill prevention practices
D WelThead Protection
Compliance with the reqeirements of
section 311 of the CWA and their
facility’s SPCC Plan does not alleviate
the need for facility owners or operators
to be in compliance with State Wel lhead
Protection (WHP} programs required by
section 2428 of the Safe Drinking Water
Act ISDWA) Many public water supply
wells are located in permeable
formations bordering streams or surface
waters, which at times recharge these
surface waters These wells may be
vulnerable to contamination if an oil
spill should occur and, therefore. may
require added protection WhIP
programs are designed to protect public
water supply wells located in these type
of settings
Section 1428 of the SDWA requires
that each State adopt and submit to. -
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EPA, a WHP program that, at a
mini mum
Specifies the duties c f State
.icies. local government entities, and
public water supply systems with
respect to the development and
implementation of programs,
• For each wellhead, determines the
welihead protection area (WI-IPA). as
defined in section 14281e1. based on all
reasonably available hydrogeologic
information.
• Identifies within each WHPA all
potential arithropogenic sources of
contaminants that may have adverse
effects on human health
• Describes a program that contains.
as appropriate, technical and financial
assistance, implementation of control
measures, education. training, and
demonstration projects to protect the
water supply within WHPAs from
Contaminants.
• Includes contingency plans for the
provision of alternative drinking water
supplies in the event of contamination.
• Includes a requirement to consider
all potential sources of such
contaminants within the expected
welihead area of a new waler well,
which ser es a public water supply
system. and
• Includes a requirement for public
-ticipation in the development of the
IP program
- i this time. EPA has received WHP
submittals for review from 30 States
This proposed rule indicates that
owners and operators must comply with
both the State WUP program and the
SPCC regulations Meeting the
requirements of the SPCC program does
not necessarily ensure compliance with
a State WHP program
Ł F/ood.Relakid Requirements
In § ‘112 8(b)(6) arid § 112 9(c)(3) of the
proposed rule, it is recommended, in
accordance with Executive Order 11988.
Floodplain Management, that the SPCC
Plan address precautionary measures
for facilities in locations sublect to
flooding The National Flood Insurance
Program (NFIP) definition of structures
includes .ibuveground oil storage tanks
At a minimum, acceptable mitigation
measures are specified in Executive
Order 11908 and reference the NFIP’s
flood loss reduction sta’.dards, those
standards should be addressed in the
SPCC Plan for al,oveground storage
tanks located in a flood hazard area
Standards for newly constructed or
substantially improved aboveground
stor ige tanks arc contained in 44 CFR
3.
l’lP requires, amon.g other things.
that tanks be designed so that the
lowest floor is elevated to or above the
base flood level or be designed so that
the structure below the base level is
watertight with a1ls substantially
impermeable to the passage of water.
with structural components having the
capability of resisting hydrostatic and
hydrodynamic loads, and with the
capability to resist effects of buoyancy
For structures that are intended to be
made watertight below the base flood
level, a Registered Professional Engineer
must develop and/or review the
structural design. specifications, and
plans for construction, and certify that
they have been prepared to accordance
with accepted standards of practice
Addtionally. the NFIP has specific
standards for coastal high hazard areas
Existing tanks located in coastal high
hazard areas will be subject to high
velocity waters, wave action. and the
accompanying potential for severe
erosion and scour Retrofitting measures
for tanks should be tailored to the
unique hazards of the coast and may
include flood protection works.
floodproofing, and other modifications
to facilities that will reduce the damage
potential In complying with the
requirements of the SPCC regulation
while developing a SPCC Plan, owners
or operators are encouraged to consider
and comply with the requirements in 44
CF’R 60 3.
* Occupational Safely and Health
dm Iflistration
A number of aboveground storage
tanks are subject to OSHA requirements
under 29 CFR 1910 106 OSHA regulates
occupational settings where flammable
and combustible liquids are present
Requirements for tanks and ancillary
equipment, secondary containment.
inspections and testing, and contingency
planning are set forth in the OSHA
regulations
OSHA requires tanks to be spaced
three t&20 feet apart, and proper venting
and fire resistant upports to be
installed API 620 and 2000, the ASME
Boil r and Pressure Code, ANSI 31. and
UL standards are incorporated into
OSHA guidelines Dikes must be able to
contain 100 percent of each tank’s
capacity. the dike walls must average
six feet in height. and earthen dikes
must be more than three feet in height
and two feet in width at the top OSHA
requires only a one-time test (including
hydrostatic testing) for strength and
tightness. however, compliance with
ASME, API, or UL standards must be
rnaiked on all tanks prior to use
OSI-IA requirements outlined in 29
CFR 1910 106 are important to good spill
prevention programs and should be
incorporated into SPCC Plans whenever
doing so represents good engineering
practice.
V. Request For Comments
As discussed in section II of this
preamble. the Agency is soliciting
comments and data on the proposed
notification requirements. spill
contingency planning needs, the
discretionary natare of certain
provisions, and the possibility of making
certain provisions requirements only for
large facilities Also in Section II of the
preamble. EPA requests comments on
other practices that are not proposed at
this time, including (1) That owners or
operators attach a signed and dated
statement to the SPCC Plan upon
completion of Plan review, and (2) that
owners or operators of onshore faciliiies
other than production facilities describe
the design capabilities of their drainage
systems in the SPCC Plan Section Ill of
the preamble contains a request for
comments on the advantages and
disadvantages associated with the
professional engineer being registered in
the State in which the facility is located
and the additional requirement that the
professional engineer not be an
employee of the facility or have any
direct financial ties to the facility EPA
also solicits comments and data on
criteria for defining “permanently
closed” tanks
]n addition to the specific requests
described above, EPA solicits comments
and information on several other issues
One particular issue involves facilities
with equipment. sucti_as electrical
transformers, that contain significant
quant ties of oil used for operational
purposes As described in section III H.
the Agency has determined that 5uch
equipment is not subject to the
pro ’ isions addressing bulk storage
containers EPA solicits comments on
whether there are examples of other
facilit ,es with similar equipment
containing oil for ancillary purposes that
should not be subject to the proposed
bulk storage provisions. Also. EPA
solicits comments from owners or
operators of facilities with SPCC plans
currently in place as to whether they
believe existing plans would be
adequate to meet the requirements of
the regulation. as proposed In particular
the Agcnc/ would like comments on this
issue from o neis arid operators of
farms, electrical facilities, and facilities
storing food oils Including information
as to the extent to which the proposed
requirements may impose new
compliance costs
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V i. Regulatory Analyses
A. Economic Analyses
EPA has prepared two preliminary
economic analyses to support today’s
proposed rule, an initial economic
impact analysis and a supplemental
cost/benefit analysis Both analyses
estimate the societal benefits resulting
from fewer oil spills, and the ecunr’mic
effects on the SPCC-regulated
community on the following proposed
revisions (1) The proposed one-time
notification form (2) The proposed
regulatory language modifications, and
(3) two new proposed discretionary
practices However, these two analyses
differ primarily in assumptions
regarding how the regulated community
would interpret certain proposed
revisions, and, therefore, how the
behavior of SPCC-regula ted facilities
would change - -
The initial economic impact analysis
developed cost estimates only for the
proposed notification form No costs or
benefits were estimated for the
proposed changes in regulatory language
and the two new proposed discretionary
practices because these were assumed
not to alter significantly the behavior of
the SPCC-regula ted community Based
on the findings of the initial economic
impact analysis. the proposed rule
would be expected to be non-major
because the economic effects would
result in estimated costs of
approximately $99 million during the
first year the rule is in effect and
approximately $200,000 in each
subsequent year The present value of
the cost, discounting at 10-percent over
a 10-year period, is about $10 million
EPA performed an additional analysis
to estimate the economic effects of the
proposed rule based on alternative
expectations about how the regulated
community would interpret certain
proposed revisions Specifically, a
supplemental cost/benefit analysis was
performed to estimate the economic
effects of (1) Certain proposed revisions
(described in Section II ! of the
preamble) to the regulatory language
based on the assumption that a
substantial proportion of the regulated
community would need to change their
beha ior to camply with these
provisions, and (2) two new proposed
discretionary provisions (described in
Section I I C of the preamble) based on
the assumption that a substantial
proportion of the regulated community
would need to change their behavior as
a result of these new requirements The
estimated cost and benefits of the
proposed notificatiun form as ca -id
in the initial analysis also were
presented Based on this supplemental
analysis. the proposed rule would be a
major rule as defined by Executive
Order No 12291. because the annualized
estimated cost (based on a 10-year time
horizon and a 10-percent discount rate)
is about $145 million Both the
“Economic Impact Analysis of the
Proposed Revisions to the Oil Pollution
Prevention Regulation” and the
“Supplemental Cost/Benefit Anilysis of
the Proposed Rt”tisions to the Oil
Pollution Prevention Regulatioii’ are
available for inspection as part of the
administrative record for this proposed
regulation (Docket Number SPCC—i P)
This record is available to the public in
room M2427 at the U S Environmental
Protection Agency. 401 M Street SW.
Washington. DC 20460 The estimated
cost and benefits of the three groups uf
proposed revisions are summari7ed
below
The present and annualized value of
the cost and benefit estimates of the
proposed notification form, based on a
10-year time horizon and a 10-percent
discount rate, are presented in Table I
TABLE 1 —PROPOSED NOTIFICATION PROVISION
Benefits
Cosis
ai oenef Is
Present Value
$26 million
siC rrulhon
‘
$16 rniison
Annualized
$.,i 2 rniilioi
$i 5 mason
$26 mili. n
The monetiset benelils as a result of iris pcopose’d noiilicaiion lom were estimated in the suppienlenial cosl/benetil analysis The meihodoic’gy riser1 I .
estimate these benefits us included in appendii 2-A and 2-B of me Suppiemenial Cosi/Benetui Analysis of the Proposed Revisions io the Oil PoiIui ’on Prcventuo
Reguiatuon EPA invuies comment on both ihe methodology used and ii’ie results otiauned especiaiiy unlormation which rnughi indicate Dial sui)stafltiat beneliis C
costs hava been included
Tables 2 and 3 show the present and
annualized value of the cost and benefit
estimates of the proposed regulatory,
language changes and the two new -
proposed discretionary provisions
These estimates were developed in the
supplemental cost/benefit analysis.
based on assumptions about how the
behavior of the regulated community
would change as a result of interpreting
these proposed re isions as substanti e
changes in required conduct
TABLE 2 —‘PROPOSED CHANGES iN REGULATORY LANGUAGE
I Banel uis
j
Cosis
Net beret’s
Present Value
$1,000 million
$441
million
$559 million
‘
Annualized
$1628 million
$71 a
million
$91 0 mitiicn
The cost estimates for the proposed
changes in regulatory language
presented above are based on a detailed
analysis of six of approximately 60
changes in regulatory language
(“should” to “shall” changes) These
mator provisions are expected to
generate the largest total costs and,
therefore, are expected to capture
virtually all compliance cost for all
SPCC-regulated facilities to comply with
all the “should” to “shall” regulatory
changes The methodology used to
estimate these costs is included in
appendix i—C of the Supplemental Cost/
Benefit Analysis of the Proposud
Revisions to the Oil Pollution Previ’ntio
Regulation EPA insites comment on
both the methodology used and the
results obtained, especially information
which might indicate that substantial
benefits or costs have been included
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TABLE 3 —PROPOSED DISCRETIONARY PROVISIONS
- Benefits
Costs
Net benefits
Upper Bound
Present value
Annualized
Lower Bound
Proseni Value
Annualized
$495 million
sso S million
$248 million
$404 million
$441 million
$71 8 million
$441 million
$71 8 million
$54 million
58 7 million
5—193 million
5— 31 4 million
While upper and lower bound monetary benelil estimates were developed in the supplemon’3i cost/benefit analysis, upper and lower bound cost estimates for
these two new proposed discretionary provisions were not developed in the initial economic analysis
In addition, EPA is solicIting
comments on two other practices that
are not included in todays proposed
revisions but are described in section
II C of this preamble Specifically, these
two provisions are (1) A statement by
the facilIty owner or operator that the
SPCC Plan review has occurred, and (2)
a statement to be included in the SPCC
Plan that addresses the design
capabilities of a facility’s drainage
system to control oil spills or leaks By
recommending that facility owners or
operators state that a triennial review
has been performed. EPA would expect
to increase the degree to which upper
management takes an active role to
ensure that the Oil Pollution Prevention
regulation is fully implemented at the
facility Increased managerial oversight
may improve the overall quality and
effectiveness of SPCC Plans, thereby
reducing the number and severity of
spills from SPCC-regulated facilities
Similarly. by Including in the Plan a
written statement indicating the
adequacy of the facility’s drainage
system in handling leaking oil, those
facility personnel responsible for
drafting this statement could be
encouraged to take a more active role to
ensure that these existing systems are
adequately designed to control oil leaks.
While cost estimates were developed for
these two practices, monetized benefit
estimates were not developed because
these two provisions involve paperwork
activities and no data or case studies i
are available to adequately analyze the
degree to which their implementation
will lead to avoided oil spills EPA
requests data and analysis indicating
the extent to which these
recommendations would further
improve the effectiveness of the Oil
Pollution Prevention regulation, as well
as data a d analysis Concerning
appropriate analytical methods to
estimate these benefits and costs.
especially information indicating how
the Agency could improve its analytical
methods prior to promulgation of the
final rule The present value of the cost
ol these two provisions is estimated at
$128 million
In summary, the present value of the
cost of the proposed rule based on the
results of the supplemental cost/benefit
analysis for the proposed notification
form, the proposed changes in regulatory
language, and the two new proposed
discretionary provisions is estimated at
about $892 million, while the present
value of the monetized benefits range
from $1 3 billion to $1 5 billion Based on
these preliminary analyses, the present
value of the monetized benefit estimate
exceeds the cost by about $382 to $539
million In addition, quantified estimates
of the benefits associated with the
proposed revisions analyzed include
only two benefits associated with
reducing the number of oil spills
avoided cleanup costs and the value of
the lost product (i e. the value of the
product in commerce prior to being lost
in a spill) In addition. society is
expected to gain other benefits in the
form of avoided losses to commercial
and recreational fishing and other
resource damages, avoided lost
recreational opportunities including
beach use, boating. and waterfowl
hunting. avoided damage to private
property, and avoided public health
risks, among others EPA invites
comments on the methodology used to
estimate these benefits and costs.
especially information indicating how
..the Agency could improve its analytical
method prior to promulgation of the final
rule
B. Executive Order No 1229!
Executive Order (E 0) No. 12291
requires that regulations be classified as
major or non-major for purposes of
review by the Office of Management
and Budget (0MB). According to E 0
No 12291, major rules are regulations
that are likely to result in
(1) An annual effect on the economy
of $100 million or more, or
(2) A major increase in costs or prices
for consumers, individual industries,
Federal. State, or local government
agencies, or geographic regions. or
(3) Significant adverse effects on
competition employment, investment,
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreign-
based enterprises in domestic or export
markets Based on the assumption that
regulated parties interpret both the
proposed changes in regulatory language
and the two new proposed
recommendations as requiring
substantive changes in conduct, the
results of economic analyses performed
by the Agency indicate that the
proposed rule is expected to be major
rule because the annual estimated costs
would exceed $100 million Specifically,
the upper bound annualized value of the
cost of the proposed rule is estimated to
be $145 million and the annualiied value
of the benefit estimate is expected to
range from $207 million to $248 million
This proposed rule has been submitted
to 0MB for review as required by EQ
No 12291.
C Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
requires that a Regulatory Flexibility
Analysis be performed for all rules that
are likely to ha a “significant impact
on a substantial number of small
entities.” To determine whether a
Regulatory Flexibility Analysis was
necessary for this proposed rule, a
preliminary analysis was conducted
The results of Regulations. Chapter 6,
January 1991, available for inspection in
Room M2427 at the US Environmental
Protection Agency, 401 M Street. SW,
Washington. DC 20460) Therefore,
because this proposed rule is not
e’4pected to have a significant impact on
small entities, EPA certIfies that no
Regulatory Flexibility Analysis is
necessary.
D Paperwork Reduction Act
The information collection
requirements in this proposed rule will
be submitted for approval to 0MB as
required by the Paperwork Reduction
Act. 44 U S C 3501 et seq A draft
Information Collection Request (ICR)
document has been prepared by EPA
(ICR No. 154801) and a copy may be
obtained from Sandy Farmer,
Information Policy Branch (PM—223Y).
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i3 . Environmental Protection Agency,
401 M Street. SW.. Washington, DC
20460 or by calling 1—202—260—2740
Public reporting burden for the
proposed notification form affecting all
SPCC-reguiated facilities is estimated to
range from one half hour to ‘1 5 hours per
response. sod the reporting burden for
the recommended recordkeeping
provision affecting medium and large
SPCC-regulated facilities is estimated to
range from 5 hours to 10 hours annually
Overall, the public reporting burden for
both proposed provisions is estimated to
range from one half an hour to 11 5
hours with an average reporting burden
of approximately 1 9 hours per response
These reporting burden estimates
include the time required for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, storing the data, estimating
the information required, and
completing and reviewing the collection
on information.
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 (PM—
223), U S Environmental Protection
Agency, 401 M Street. SW., 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 “The
final rule will respond to any 0MB or
public comments on the information
collection requirements contained in this
proposal.
List of Subjects in 40 CFR Part 112
Fire prevention. Flammable materials.
Materials handling and storage. Oil
pollution, Petroleum. Tanks, Water
pollution control. Water resources
Dated October 3. 1901
William K Reilly.
A dminist rotor
For the reasons set out in the
preamble, title 40. chapter 1. part 112 of
tb Code of Federal Regulations. is
proposed to be amended as set forth
below
I Part 112 is revised to read as
follows
PART 112—OIL POLLUTION
PREc4’ENTION
Sec
112 1 Ceneral applicability and notification
1122 Definitions
1123 Requirement to prepare and
implement a Spill Preventior.. Control,
and Countermeasures Plan
Sec
1124 Amendment of Spill Prevention.
Control, and Countermeasures Plan by
Regional Administrator
1125 Amendment of Spill Prevention,
Control, and Countermeasures Plan by
owners or operators
3126 Civil penalties for violation of the Oil
Pollution Prevention regulation
1127 Spill Prevention, Control, and
Countermeasures Plan general
requirements
1328 Spill Prevention. Control, and
Countermeasures Plan requirements for
onshore facilities (excluding production
facilities)
1129 Spill Prevention, Control, and
Countermeasures Plan requirements for
onshore oil production facilities
11210 Spill Prevention. Control and
Countermeasures Plan requirements for
onshore oil drilling and workover
ía cili ties
11211 Spill Prevention, Control and
Countermeasures Plan requirements for
offshore oil drilling production or
workover facilities
Appendix A—Memorandum of
Understanding Between the Secretary of
Transpoilation and the Administrator of the
Environmental Protection Agency Section
Il—Definitions
Appendix B—Notification Form For Oil
Storage Tanks
Authonty 33 U SC 1321 and 1361, E 0
11735. 36 FR 21243 3 CF’R 1971—1975 Comp . p
791
PART 112—OIL POLLUTION
PREVENTION
§ 112 1 G.n.cal applicability and
oottf lc .atton.
(a) This part establishes procedures.
methods, equipment. and other
requirements to prevent the discharge of
oil from non-tronsportalion-retated
onshore and offshore facilities into or
upon the navigable waters of the United
States or adjoining shorelines, or into or
upon the waters of the contiguous zone.
or in connection with activities under
the Outer Continental Shelf Lands Act
or the. Deepwater Port \ct of 1974, or
thaI may affect natural resources.
belonging to. appertaining to. or under
the exclusive management authority of
the United States (including resources
under the Magnuson Fishery
Conservation and Management Act)
(b) Except as provided in paragraph
(d) of this section
(1) This part applies to owners or
operators of non-transportation.rclated
onshore and offshore facilities engaged
in drillin8. producing. gathering, storing.
processing. refining, transferring.
distributing, or consuming oil and oil
products, which due to their location
could re isonably be expected to
discharge oil in quantities that may be
harmful, as described in part 110 of this
chapter. into or upon the navigable
waters of the United States or adjoining
shorelines, or into or upon the writ’
the contiguous zone, or in connect
with activities under the Outer
Continental Shelf Lands Act or the
Deepwater Port Act of 1974. or that m i
affect natural resources belonging to.
appertaining to, or under the exclusive
management authority of the United
Slates (including resources under the
Magnuson Fishery Conservation and
Management Act)
(2) This part applies to facilities
ha tng containers that are used for
standby storage, for seasonal storage or
for temporary storage. or not otherwise
considered “permanently closed” under
§ 112 2(o)
(3) This part applies Ic facilities
having ‘ bunkered tanks” and “parttall
buried tanks” dS defined in § 112 2(c)
and § 112 2(n), respectively, as well as
tanks in subterranean vaults. all of
which are considered aboveground
storage containers for the purposes of
this part
(c) As provided in section 313 of the
Clean Water Act (CWA). departments.
agencies. and instrumentalities of the
Federal government are sublect to these
regulations to the same extent as any
person. except for the provisions of
§ 1326
(d) Except as provided n paragr
(e) of this section and the first sentence
of § 112 7)a)(3), this part does not apply
to
(1) Facilities, equipment. or operations
that are not subject to the jurisdiction of
the En ironmental Protection Agency
(EPA) under section 311(lflh)(C) of the
CWA. as follows
(i) Onshore and offshore facilities
that, doe to their location, could not
reasonably be expected to discharge oil
as described in § 112 1(b)(1) of this p.Irt
This determination shall be based solc.l,’
upon a consideration of the geogr.iphic il
and location 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, equipment or other structures.
which may serve to restrain, hinder.
contain, or otherwise prevent a
discharge of oil from reaching navigable
waters of the United States or adjoining
shorelines, and
(ii) Equipment or operations of vessels
or transportation-related onshore and
offshore facilities that are subject to
authority and control of the Department
of Transportation. as defined in the
Memorandum of Understand 1 ng -
between the Secretary of Transportation
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54631
and the EPA Administrator, dated
November 24 1971. 36 FR 24080
(2) Those facilities that meet both of
the following requirements
(i) The underground storage capacity
of the facility is 42.000 gallons or less of
oil For purposes of this exemption, the
underground storage capacity of a
facility does not include the capacity of
underground storage tanks, as defined in
§ 112 2(v), that are currently subject to
the technical requirements of 40 CFR
part 280 The underground stora8e
capacity of a facility does not include
the capacity of underground storage
tanks that are permanently closed.’ as
defined in § 112 2(o)
(ii) The aboveground storage capacity
of the facility is 1.320 gallons or less of
oil, provided no single container has
capacity in excess of 660 gallons For
purposes of this exemption the
dboveground storage capacity of a
facility does not include the capacity of
tanks that are underground storage
tanks as defined in § 112 2(%) or that are
permanently closed’ as defined in
§ 112 2(o)
(3) Offshore oil drilling. production. or
workover facilities that are subject to
the Operating Orders, notices, and
regulations of the Minerals Management
Service
(4) Underground storage tanks, as
defined in § 112 2(v). at any facility.
where such tanks are subject to the
technical requirements of 40 CFR par
280
(e) Notification requirements (1)
Notification must be provided by the
owner or operator of facilities that are
subject to EPA jurisdiction under the
CWA dnd have total aboveground
storage capacities greater than 1.320
gallons of oil or aboveground storage in
.i single container greater than 660
gallons of oil The owner or operator of
these facilities must submit a written
notice to EPA by (Insert date Iwo
months after date of publication of the
fiiiaI ru/c) This notice is required on a
onc time basis for current fdcility
owners or operators Owners or
operators of facilities that begin
operations or who increase storage
c.ipacity so as to comply under the
turisdiction of this rule after (Insert date
GO daj’s after date of publication of the
fiiial rule) also must notify the Regional
Administrator before beginning facility
operations
(2) The written notice shall include the
following(i) The name of the owner
and/or operator of the facility,
(ii) l he name, address, and zip code
of the facility, and
(iii) A listing of the total number and
5i70 of aboveground tanks at the facility,
total ,ibo eground storage capacity of
the facility, distance to the nearest
navigable waters, and where applicable
and available, the facility’s primary Dun
& Bradstreet number and the primary
Standard Industrial Classification
(3) The notice does not require
information concerning the number and
size of underground storage tanks
defined in § 112 2(v)
(1) This part provides for the
preparation and implementation of Spill
Prevention, Control, and
Countermeasures (SPCC) Plans
prepared in accordance with § § 112 7.
1128. 1129. 112 10. and 11211 designed
to complement existing laws.
regulations. rules, standards, policies.
and procedures pertaining to safety
standards, fire prevention, and pollution
prevention rules, to form a
comprehensive balanced Federal/State
spill prevention program to minimize the
potential for oil discharges. The SPCC
Plan shall address all relevant spill
prevention, control, and
countermeasures necessary at the
specific facility Compliance with this
part does not in any way relieve the
owner or operator of an onshore or an
offshore facility from compliance with
other 7ederal. State, or local laws
§ 112.2 DefinItions.
For the purposes of this part (a)
Breakout tank means a container that is
part of a pipeline facility regulated by
the Department of Transportation and is
used solely for the purpose of
compensating for pressure surges or to
control and maintain the flow of oil
through pipelines Such tanks are
frequently in-line.
(b) Bulk storage tank means any
container used to store oil These tanks
are used for purposes including, but not
limited to, the storage of oil prior to ‘ise,
while being used, or prior to furtht’r
distribution in commerce.
(c) Bunkered tank means a storage
tank constructed or placed in the ground
by cutting the earth and recovering in a
manner wl ereby the tank breaks the
natural grade of the land
(d) Contiguous zone means the zone
established by the United States under
Article 24 of the Convention of the
Territorial Sea and Contiguous Zone.
that is contiguous to the territorial sea
and that extends nine miles seaward
from the outer limit of the territorial
area
(e) Discharge includes, but is not
limited to. any spilling, leaking.
pumping, pouring, emitting. emptying. or
dumping, but excludes discharges in
compliance with a permit under section
402 of the CWA. discharges resulting
from circumstances identified, reviewed.
and made a part of the public record
with respect to a permit issued or
modified under section 402 of the CWA.
and subject to a condition in such
permit, or continuous or anticipated
intermittent discharges from a point
source, identified in a permit or permit
application under section 402 of the
CWA. that are caused by events
occurring within the scope of relevant
operating or treatment systems For
purposes of this part, the term
“discharge” shall not include any
discharge of oil that is authorized by a
permit issued pursuant to section 13 of
the River and Harbor Act of 1899 (30
Stat 1121, 33 U S C. 407)
(1) Facility means any mobile or fixed,
onshore or offshore building. structure.
installation, equipment. pipe. or pipeline
used in oil well drilling operations, oil
production, oil refining, oil storage, and
waste treatment, as described in
Appendix A to this part The boundaries
of a facility may depend on several site-
specific factors, including, but not
limited to. the ownership or operation of
buildings. structures, and equipment on
the same site and the types of activity at
the site
(g) Navigable waters means the
waters of the United States, including
the territorial seas The term includes
(1) All waters that dre currently used,
were used in the past, or may be
susceptible to use in interstate or foreign
commerce, including all waters subject
to the ebb and flow of the tide.
(2) All interstate waters, including
interstate wetlands.
(3) All other waters such as intrastate
lakes, rivers, streams (including
intermittent streams), mudflats.
sandflats, wetlai ds, sloughs. prairie
potholes, wet meadows, playa lakes, or
natural ponds, the use, degradation. or
destruction of which could affect
interstate or foreign .ommerce including
any such waters’
(i) That are or could be used by
intcrstate or foreign traselers for
recreational or other purposes. or,
(uI From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce, or,
(iii) That are used or could be used for
industrial purposes by industries in
interstate commerce,
(4) All impoundments of waters
otherwise defined as waters of the
United States under this section,
(5) Tributaries of waters identified in
paragraphs (g)(1) through (4) of this
section.
(6) The territorial sea and
(7) Wetlands adjacent to haters
(other than waters that are themselves
wetlands) identified in paragraphs (g)(1)
through (6) of this section - -
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Waste treatment systems. including
- treatment ponds or lagoons designed to
meet the requirements of the CWA
(other than cooling ponds as defined in
-40 CFR 123 11Cm) which also meet the
criteria of this definition) are not waters
of the United States,
(h) Offshore facility means any
facdity of any kind (other than a vessel
or public vessel) located in. on, or under
any of the navigable waters of the
United States, and any facility of any
kind that is subiect to the jurisdiction of
the United States and is Located in. on,
or under any other waters,
(i) Oil means oil of any kind or in any
form, including, but not hmited to.
petroleum, fuel oil, sludge. oil refuse.
and oil mixed with wastes other than
dredged spoil
Ci) Oil drilling. production, or
worhover facilities (offshore) may
include all drilling or workover
equipment, wells. flowlines. gathering
tines, platforms, and auxiliary non-
transportation-related equipment and
facilities in a single geographical oil or
gas field operated by a single operator
(k) Oil production facilities (onshore)
may include all wells, flowlines.
separation equipment, storage facilities.
gathering lines, and auxihary non-
transportation-related equipment and
facilities in a single geographical oil or
gas field operated by a single operator
(I) Onshore facility means any facility
of any kind located in, n, or under any
land within the United States, other than
submerged lands
(m) Owner or operator means any
person owning or operating an onshore
facility or an offshore facility, and in the
case of any abandoned offshore facility.
the person who owned or operated or
maintained such facility immediately
prior to such abandonment
In) Partially buried tonic means a
storage tank that is partially inserted or
constructed in the ground. but not fully
covered with earth -
(o] Permanently closed is any tank or
facility that has been closed in the
following manner
(1) All liquid and sludge must be
removed from each tank and connecting
lines Any waste products removed must
be disposed of in accordance with alt
applicable State and Federal
requirements
(2) Each tank must be rendered Free of
explosive vapor by testing the tank with
a combustible gas indicator, or
explosi 4 iietcr, or other type of
atmospheric monitoring instrument in
order to determine the lower explosive
limit (LEL) The EPA and Occupdtional
Safely and Health Administration
standard for a hazardous atmosphere.
based on extensive industrial
experience, is one that contains a
concentration of combustible gas, vapor,
or dust greater than 25 percent of the
LEL of the material Provisions must be
made to eliminate the danger imposed
by the tank as a safety hazard due to the
presence of flammable vapors Facilities
are to ensure that closure is permanent.
and that the tank vapors remain below
the LEL
(3) All connecting lines must be
blanked off, and valves are to be closed
and locked Conspicuous signs are to be
posted on the tank warning that it is a
permanently closed tank and that
vapors above the LEL are not present
(p) Person includes an individual,
firm. corporation, association, or a
partnership
(q) Regional .Administrotor means the
EPA Regional Administrator or a
designee of the Regional Administrator,
in and for the Region in which the
facihty is located
(r) SPCC P/an or Plan means the
document required by § 112 3 of this part
that details the equipment. manpower.
procedures. and steps to prevent.
control, and provide adequate
countermeasures to an oil spill The Plan
is a written description of the facility’s
compliance with the procedures in this
part.
(s) Spill event means a discharge of
oil as described in § 112 i(bfll) of this
part
(tJ Storage capacity of a tank ‘r
container, for purposes of determining
the applicability of this part. means the
total capacity of the tank or container,
whether the tank or container is filled
with oil or a mixture of oil and other
substances
(u) Transportation-related and non’
transportation-related, as applied to an
onshore or offshore facility, are defined
in Appendix A of this part, the
Memorandum of Understanding
between the Secretary of Transportation
and the EPA Administrator, dated
,-November 24, 1971. 36 FR 24080
(v) Underground storngo tank means
any tank completely covered with earth
Tanks in subterranean vaults, bunkered
tanks, or partially buried tanks are
considered aboveground storage
containers for the purpose of this part
(wJ United States means the States,
the District of Columbia the
Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana
Islands. Guam, American Samoa, the
U.S Virgin Islands, arid the Pacific
Island Governments
lx) Vessel means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a
means of transportation on water, other
than a public vessel
(y) Wetlands means those areas that
are inundated or saturated by surface or
ground water at a frequency or duration
sufficient to support, and that under
normal circumstances do support. a
prevalence of vegetation typically
adapted for life ui saturated soil
conditions Wetlands generally include
playa lakes, swamps, marshes, bogs,
and similar areas such as sloughs.
prairie potholes. wet meadows prairie
river overflows. mudflzits. and natural
ponds
§ 112 3 RequIrement to prepare and
tmplcment a Spilt Preyentuon, Control, and
Counterme aures Plan
(a) Owners or operators of onshore
and offshore facilities in operation on or
before (Insert date 60 days after doic’ of
publication of the final rule) thai have
discharged or, due to their location.
could reasonably be expected to
discharge oil as described in
§ fl2 1(h)( 1) of this part. shall maintain
a prepared and fully implemen ted
facility SPCC Plan in writing and in
accordance with § 112 7. and in
accordance with § 1128,1129. 112 10.
and 112 11 as applicable to the facility
(b) Owners or operators of onshore
and offshore facilities that become
operational after (Insert date 60 days
after date of publication of the final
rule), and could reasonably be expect’
to discharge oil as described in
§ 112 1(b)(1) of this part. shall prepara
facility SPCC Plan in accordance with
§ 1127, and in accordance with any of
the following sections that apply to the
facility § 1126. 1129, 112 10. and
112 11 The Plan shall be prepared and
fully implemented before a facility
begins operations unless an extension
has been granted by the Regional
Administrator as provided For in
paragraph (1) of this section
(c) Owners or operdtors of onshore
and offshore mobile or porta tile
facilities, such as onshore drilling or
warkover rigs, barge mounted offshore
drilling or workoscr rigs and portable
fueling facilities shall prepare.
implement. and maintain a fdciliiv SPCC
Plan as required by paragraph (a) (hI,
and (d) of this section The owners or
operators of such facility need not
prepare a new Plan each time the
facility is mused to a new site 1 he Plan
ma be a general plan. prepared in
accordance s’ith § 112 7. and in
accordance with § 11210 and 112 11
where applicable to the facility, using
good engineering practice When the
mobile or portable facility is mused, it
must be located and in t,il (pd using the
spill presention practices outlined in
Plan for the facility No mobile or
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portable facility subject to this
regulation shall operate unless the Plan
has been implemented The Plan shall
only apply while the facility is in a fixed
(non-transportation) operating mode
(d) No SPCC Plan shall be effective to
satisfy the requirements of this part
unless it has been reviewed by a
Registered Professional Engineer and
certified by the Registered Professional
ngineer By means of this certification,
the Engineer shall attest (1) That the
Engineer is familiar with the
requirements of this part. (2) that the
Engu’ieer h s ‘.isited and examined the
facility (3) that the Plan has been
prepared in accordance with good
engineering practice and with the
requirements of this part. (4) that
required testing has been completed.
and (5) that the Plan is adequate for the
fdcllity Such certification shall in rio
way relie e the owner or operator of an
onshore or offshore facility of the duty
to prepare and fully implement such
Plan in accordance with § 112 7, in
accordance with § 1128, 112 9,11210,
and 112 11 where applicable, and as
required by paragraphs (a). (b). and (c)
of this section
(e) Owners and operators of a facility
for which a facility SPCC Plan is
required pursuant to paragraph (a). (b).
or (c) of this section shall
( Il Maintain a complete copy of tI’
Plan at the facility if the facility is
normally attended at least four houri.
per day. or at the nearest field office it
the f-icility is not so attended, and
(2) Have the Plan available for the
Regional Administrator or authorized
representatite for on-site eview during
normal working hours
(1) Extensions of time
(1) The Regional Administrator may
authorize an extension of time for the
preparation and full implementation of a
Plan beyond the time permitted for the
preparation and iniplernentation of a -
Pl.in pursuant to paragraph (b) of this
section where it is determined that the
owner or operator of a facility sRbject to
paragraph (b) of this section cannot fully
comply with the requirements of this
part as a result of either nonavailability
of qualified personnel, or delays in
construction or equipment delivery
beyond the control and without the fault
of such owner or operator or their
respective agents or employees
(2) Any owner or operator seeking an
extencion of time pursuant to paragraph
(f)(1) of this section may submit a letter
of request to the Regional
Administrator Such letter shall include
(i) A copy of the Plan, if completed.
(ii) A full explanation of the cause for
any such delay and the specific aspects
of the l’lan affected by the delay.
(iii) A full discussion of actions being
taken or contemplated to minimize or
mitigate such delay.
(iv) A proposed time schedule for the
implementation of any corrective
actions being taken or contemplated.
including interim dates for completion of
tests or studies, installation and
operation of any necessary equipment.
or other preventive measures In
addition, such owner or operator may
present additional oral or written
statements in support of the letter of
request
(3) The submission of a letter of
request for extension of time pursuant to
paragraph (f)(2) of this section shall in
no way relieve the owner or operator
from the obligation to comply with the
requirements of § 112 3(b) Where an -
exten5ion of time is authorized by the
Regiondl Administrator for particular
equipment or other specific aspects of
the Plan, such extension shall in no way
affect the owner’s or operator’s
obligation to comply with the
requirements of § 112.3(b) with respect
to other equipment or other specific
aspects of the Plan for which an
extension has not been expressly
authorized
§ 1124 Amendment of Spltt Prevention,
Control, and Countermeasures Plan by
Regional Administrator.
(a) Notwithstanding compliance with
§ 112 3, whenever a facility subject to
§ 112 3(a). (b) or (c) has discharged. in a
single spill event, more than 1,000 U.S
gallons of oil as described in § 112 1(a).
or discharged oil as descrtbed in
§ 112 1(b)(1) in two spill events
occurring within any consecutive twelve
month period, the owner or operator of
such facility shall submit o the Regional
Administrator, within 60 days from the
time such facility becomes subject to
this section. the following
(1) Name of the facility.
(2) Name(s) of the owner or operator
ofihe facility,
(3) Location of the facility.
(4) Name and address of the
registered agent of the o s nor or
operator, if any.
(5) Date and year of initial facility
operation.
(5) Maximum storage or handling
capacity of the facility and norma) daily
throughput.
(7) Description of the facility,
including maps, flow diagrams, and
topographical maps.
(8) A complete copy of the Plan with
any amendments.
(9) The cause(s) of such spill.
including a failure analysis of the
system or subsystem iii which the
failure occurred.
(10) Exactly what and how much was
spilled.
(11) The corrective actions and/or
countermeasures taken, including an
adequate description of equipment
repairs and/or replacements,
(12) Additional preventive measures
taken or contemplated to minimize the
possibility of recurrence, and
(13) Such other information as the
Regional Administrator may reasonably
require pertinent to the Plan or spill
event
(b) Section 1124 shall not apply until
the expiration of the time permttted for
the preparation and implementation of
the Plan pursuant to § 112 3(f)
(c) The owner or operator shall send
to the agency in charge of oil pollution
control activities in the State in which
the facility is located a complete copy of
all information provided to the Regional
Administrator pursuant to paragraph (a)
of this section. Upon receipt of such
information such State agency may
conduct a review and make
recommendations to the Regional
Administrator as to further procedures
methods, equipment, and other
requirements for equipment necessary to
prevent and to contain discharges of oil
from such facility
(d) After review of the SPCC Plan for
a facility subject to paragraph (a) of this
section. together with all other
information submitted by the owner or
operator of such facility, and by the
State agency under paragraph (c) of this
section. the Regional Administrator may
require the owner or operator of such
facility to amend the Plan if she/he finds
that the Plan does not meet the
requirements of this part or that
amendment of the Plan is necessary to
prevent and to contain discharges of oil
from such facility After review of the
materials submitted by the owner or
operator of a facility as required in
§ I i2 7(d). the Regional Administrator
may approve the Plan or require
amendment of the Plan
(e) When the Regional Administrator
proposes to require an amendment to
the SPCC Plan, the facibty operator shal’
be notified by certified mail addressed
to. or by personal delivery to, the facility
owner or operator, that the Regional
Administrator proposes to require an
amendment to the Plan, and the terms of
such amendment shall be specified If
the facility owner or operator is a
corporation. a copy of such notice also
shall be mailed to the registered agent, il
any. of such corporation in the State
where such facility is located. Within 30
days from receipt of such notice, the
facility owner or operator may sj.ibmit
written information, views. end
S—3t0999 0023(Ot)(2t-OCT-9 1—t3 i 22)
4701 1’MT FiR ‘Ull 12-7R-qn
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54634
—==- --__
- argumenla on the amendment After
considering all rclcviinl muterird
presentud, hi Rcgionid Ailriijnistrator
shall nuilly t I , , fiu ilit no her or
operator of lilly iimtntlnit.nl riquired or
shall resund 1111’ noti r Th( dosendroent
required by Ui l ioriiiI Aclni;nistrator
shall bei unit port of di Phi 11 30 days
after such flhiiji ‘ uiihi’ . lw Regional
Administrc 6 p, 1 for ‘otl c hiti r. specifies
anothr ’r diii tee dii I c I hi oo our or
operator of ho 116 dit hliiIfl implement
the arni’iiiinii lit ul thut’ Phiii ,i . OOfl OS
possible, hut bit liitcr thou months
alter the •ii iul ’iiijiii i. it lii &iiii . pin of
the Pluni, iiiilr• , liii Ri
ifi.. iiniiihi , .r ddte
(I) An 0Wfli’ (i (ipirillot too’ uppeal a
decision ouidi ti thi Ri ’ ii,ii 0 l
Administraiii,r r(•(lIiirll In ,inii’iidment
to the S cc t’i l hi’ lilijwiil sii.ilt be
rriade to ttui• }:PA Adliulili’,lriik)r arid
roust be riiiiili. in Wiitiii i o utluin 30 days
of receipt iii th 0 hut I ci’ lb (liii the F e ional
Adminisi rh tur riutuiring th. irni ’ndmenl
A compkp- copy of the ii ipc,.iil lutist
sent to thi R gitun 11 ( i\drn 1 i’ii t rotor at
the time the lijilirlil us ninth’ 1 he appeal
shall Contiuri ii tear and concise
statement of tb, issues and points of
fact in thi (luSt It tils niui contain
additioninl uilforifli itii,n Ii or the oo nor
or operator, or miii iin ’ other person
The EPA Admhiiusiri un iir her/his
designee folly nui tidihitieni 1 h
unformatiu,i from thy owner or operator.
or from any other j ’r en Thi’ EPA
Administriitor or tier/his dcsigiiee shall
render a dnit 1316)11 within (30 dues of
receiving thu uipji(iil iiid shteill notify the
owner or Oluerilliur of liii
§ 112 5 Amendment Ot Split Preventt 0 n,
Control, and Counlermeasures Plan by
owners or Operators
(a) Owot-ri. I c.upi’ro thu s of mdi ties
subject to § i t :t ii ). ( d or ft shall
amend th SPC(: Miiii fm tim ii Facility in
accordance with § , 4 rid with
§ 1128,1120, 11210, nod i j where
applicable, whit 1 there is ii CtILIIigC in
facility di’qig 0 , (aiiisti uctuon, operation,
or maintenunu. thiit lilittertiully affects’
the facihitys phuteiitiiil tO dust hiirge oil as
described in § liz 1 (hfli ) iii this port
Changes ni’i 1 uir uli : iirni.iiilouent of the
Plan include. hut iire not luilliteui to
Commission or ulu -con , , , 100 f
replacement rut ui\struct 0n, or
movement of tiiiik , recolistrur lion.
replacement. oi liuiinttiiti i of piping
systems, coii tniu ,.iion or (tuniohition that
might alter Seci,Iuluir . Coiituuinmcnt
structures, or i( ’Vl3lOfl of stiiflchiurd
operation üi iOlihiiteiihun( t prureijores at
a facility
(b) Not ’ ’ii hit uii)ttiiug vuinphinnc—e viith
paragraph (iii of hlii section, owners
and operators of fuieilj j’ 5 subject to
S-310999 tX)N(Ot )( i-OC —Q I— 13 St 25)
§ 112.3 (a). (b). or (c( shall complete a
review and evaluation of their
respective Plans at least once every
three years from the date such facility
becomes subject to this part As a result
of this review and evaluation, the owner
or operator shall amend the SPCC Plan
within six months of the review to
include more eflective prevention and
control technology if (1) Such
technotogy with significantly reduce the
likelihood of a spilt event from the
facility, and (2) such technology his
Leeo field-proven at the time of the
review
(c( Except for changes to the contact
lust required by § u2 71a113)hix). no
amendment to a Plan shall be effecti C
to satisfy the requiremen t s of this
section unless it has been certified by a
Registered Professional Engineer in
accordance with § 3j2 3(d)
§ 1126 Cuvit penaittes ton vuotationu ot the
Oil Pollution Prevention regutalion
Owners or operators of facilities
subject to § 1123 (a). lb) or (c) who
violate the requirenncots of part 112 by
failing or refusing to comply oith any of
the provisions of § 112 3 (e ). 1123. 3124.
1125.1127.1128.1129.11210 or’11211
shall be liable for a ctvil penalty in
accordance with the CWA. as amended
by the OPA of 1990
§ 112.7 Split PreventIon, Control, and
Countermeasures Plan generat
requirements
(a) The SPCC Plan shall be a carefully
thought-out written description of the
facility’s compliance with the
requirements of all applicable elements
of § 112 7.112 13, 1129, 112 10. and
11211 and shall be prepared in
accordance with good engineering
practice The Plan shall have the full
approval of management it a level with
authority to commit the necessary
resources to fully implement the Plan
• (1) The complete Plan shall follow the
sequence outlined below, arid include a
discussion of the facility’s conformance
with the reçuircmcnts listed
(2) The Plan may deviate from the
requirements in paragraph (c) of this
section and § 1128. 3129.11210. and
11211, where applicable to a specific
facility provided equivalent protection us
provided by some other means of spill
prevention, control, or countermeasures
Where the Plan does not conform to the
applicable requirements ol paragraph (c)
of this section or § § 1128. 1129. 112 10.
and 112.11. the Plan shall state the
reasons for non.conformance and
describe in detail alternate methods and
how equtvalent protection will be
achieved The Regional Administrator
can overrule the waiver/equivalent
alternative measure if it is not
adequately protective
3) The complete Plan must dcsc
the facility’s physical plant and unct . -
a facility diagram which must ha c the
location and contents of all tanks
marked The Plan iriust also address lii
following
1) Unit-by-unit storage r.ipacilv.
(ii) Type and quantity of oil stored
(iii) Estimates of quantity of oils
potentially discharged
(i’ ) Possible spill pathways.
I’- I Spill prevention measures.
including procedures for routine
handling of products (loading.
unloading arid Fiicilii transfers. etc
(vi) Spill controls such as sccood,ur
containment around tanks and other
structures, equipment and procedurt”.
for the control of a discharge
(vii) Spill countcrmpacures for spill
discovery. response. and cteartup
(facilutys cap bulutv and those that
might be required of a contrantoul
(viii) Disposal of neco cred material’
in dccordance v.ith applicable legal
requirements, and
(ix) Contact list and phonic numbers
for the facility response coordinator
National Response Center. cleanup
contractors. lire depani ments. Local
Emergency Planning Committee State
Emergency Response Commission a
downstream water suppliers who mi.
be contacted In case of a discharge to
navigabte waters
(4) Dncumentaiion in the Plan shall
enable a person reporting a spill to
provide information on the e ’acI
address and phone number of the
facility the spIll date and time, the type
of material spilled. estimates of the total
quantity spilled, estimates of the
quantity spitted into nu igable water.
.the source of the spill, a description of
the affected medium the cause of the
spill, any damages or unlunues caused be
the spill, actions being used to stop
ramove. and mitigate the effects of the
discharge. whether an evacuation may
be needed and the names of individuals
and/or organizations ho have also
been contacted
(5) Portions of the Plan describing
procedures to be used in emergencY
circumstances shall be organized in a
manner to make them readily useabl in
art emergency with appropriate
supporting material Included as
appendices
(b) Experience has indicated that a
reasonable potential for oil discharge
front tank overflow rupture. or leakage.
and faulty ancillary equipment exists
Therefore, the Plan shall include a
prediction of the direction rate of flow.
and total quantity of oil that could be
Federal Register / Vol . 56, No. 204 / Tuesday. October 22. 1991 / Proposed Rules
4701,FMT... [ 16.301 ..12-28-90
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Federal Register I Vol 56, No. 204 / Tuesday, October 22, 1991 I Proposed Rules
54635
discharged from the facility as a result
of each mator type of failure
(c)-Appropriale containment and/or
drainage control structures or equipment
to prevent discharged oil from reaching
a nasigable water Course shall be
pros ided The entire containment
system. including walls and floor, shall
be impervious to oil for 72 hours and
shall be constructed so that any
discharge from a primary containment
system. such as a t,ink or pipe. will riot
permeate. drain, infiltrate, or otherwise
escape to surface ss’ ,iters before cleanup
occurs One or more of the following
presention systems or its equivalent
shall be used as a minimum
(11 Onshore facilities
(i) Dikes, lierms or retaining walls.
(ii) Curbing.
(iii) Culvertirig guticrs. or other
drainage systems.
(iv) Weirs, booms or other barriers,
(s) Spill diversion ponds.
(vi) Retention ponds. or
(vii) Sorb”nt materials
(2) Offshore facilities
(i) Curbing. drip pans. or
(ii) Sumps and collection systems
(d) When ills determined that the
installation of structu-es or equipment
listed in § 112 7(c) to pres ent discharged
oil from reaching the navigable waters is
not practtcdble from dfl onshore or
offshore facility, the owner or operator
shall clearly demonstrate such
impracticability, conduct integrity
testing of tanks every five years at a
minimum, conduct integrity and leak
testing of the valves and piping every
year at a minimum, and provide the
Regional Administrator for approval
under § 112 4(d) the following
(1) An oil spill contingency plan that
must include, at a minimum, a
description of response plans. personnel
needs, and methods of mechanical
containment, steps to be taken for
-emoval of spilled oil, access and
. v.iilability of sorbents, booms, arid
other equipment, and such other
information as required by the Regional
Administrator The oil spill contingency
plan is part of the Plan and, therefore is
suhlict to review and approsal by the
Regional Administrator The oil spill
contingency plan shall be a stand-alone
section of the SPCC Plan Oil spill
contingency plans provided to satisfy
the provisions of this paragraph shall
not rely in whole or in part upon the use
of dispersanes and other chemicals
listi d under subpart J of the ,itional
Contingency Pl,in (NCP) (40 CFR part
300) unless the Regional Administrator
explir ly ippros es th rn lusion of such
noitliods in the contingency plan A
si’p.ir.itc dod additional app os al is
required by subpart I of the \CP for the
use of such dispersants arid other
chemicals
(2) A written commitment of
manpower. equipment, and materials
required to control expeditiously arid
remove any quantity of oil that may be
discharged ttis recommended that the
owner or operator consider factors such
as financial capability in making a
written commitment of manpower.
equipment. and materials
(e) Inspection, tests, and records
Inspections and tests required by this
part shall be in accordance with written
procedures developed for the facility by
the owner or operator or the certifying
engineer These written procedures and
a record of the inspections and tests,
signed by the appropriate supervisor or
inspector, shall be maintained with the
SPCC Plan and maintained for a period
of five years
(f) Personnel training and spill
preveiition procedures (1) Owners or
operators are responsible for properly
instructing their personnel in the
operation anO maintenance of
equipment to prevent discharges of oil
and in applicable pollution control laws,
rules, and regulations Training
exercises should be conducted at least
yearly for all personnel. and training
should be given to new employees
within one week of beginning work
(2) Each applicable facility shall have
a designated person who is accountable
for oil spu 11 prevention and who reports
to line management
(3) Owners or operators shall
schedule and conduct spill prevention
briefings for their operating personnel at
least once a year to assure adequate
understanding of the SPCC Plan for that
facility Such briefings shall highlight
and describe known spill events or
failures, malfunctioning components.
and recently developed precautionary
measures
(g) Security (e.scluding oil production
fcici/ities)
(1) Itis rec mmended that all plants
handling, processing. and storing oil be
fully fenced and when fenced, entrance
gates shall be locked and/or guarded
when the plant is not in production or is
unattended
(2) The master flow and drain valves
and any other valves permitting direct
outward flow of the tank’s contents to
the surface shall have adequate security
measures to ensure that they remain in
the closed position when in non-
operating or non.standby status
(3) ‘I he starter control on all pumps
shall be locked in the “oir’ position and
tie located at a site accessible only to
authorized personnel when the pumps
arc in a non-operating or non-standby
status
(4) The loading/unloading connections
of oi 1 piping shall be securely capped or
blank-flanged when not in service or
when in standby service for a period of
six months or more This security
practice also shall apply to piping that us
emptied ol liquid content either by
draining or by inert gas pressure
(5) It is recommended that facility
lighting be commensurate with the type
and location of the facility
Consideration shall be given to (i)
Discos ery of spills occurring during
hours of darkness, both by operating
personnel. if present. and by non-
operating personnel (the general public.
local police, etc ) and (ii) prevention of
spills occurring through acts of
- vandalism
,(h) Facility tank car andtank trucA
loading/unloading rack (excluding
offshore facilities) (1) Tank car and
tank truck loading/unloading
procedures shall meet the minimum
requirements and regulations
established by State or Federal law
(2) Where rack area drainage does not
flow into a catchment basin or treatment
facility designed to handle spills, a quick
drainage system shall be used for tank
truck loading and unloading areas The
containment system shall be designed to
hold at least the maximum capacity of
any single compartment of a tank car or
tank truck loaded or unloaded in the
plant
(3) An interlocked warning light or
physical barrier system. or warning
signs. shall be provided in loading!
unloading areas to prevent vehicular
departure before complete
disconnection of flexible or fixed
transfer lines
(4) Prior to filling and departure of any
tank car or tank truck, the lower-most
drain and all outlets of such vehicles
shall be closely examined for leakage.
and, if necessary. tightened. adjusted. or
replaced to prevent liquid leakage while
in transit
(i) In addition to the minimal
presention standards listed under
§ 112 7 (c), (e), (f), (g). and (h). sections
of the Plan shall include a complete
discussion of conformance with the
applicable requirements and other
effective spill prevention and
containment procedures listed in
§ 1128, 1129,11210. and 11211 (or. if
more stringent, with State rules.
regulations. and guidelines)
§ 112 8 Spill Prevention, Controt, and
Countermeasures Ptan requirements br
onshore facilities (exciuding production
faculties)
(a) In addition to the specific spill
pros ention and containment procedurils
S— ) 10999 OO2StOi)(2i_OCT_9i_l1 5129)
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54636
Federal Register / Vol 56, No 204 / Tuesday October 22, 1991 / Proposed Rules
listed under this section, onshore
facilities (excluding production
facilities) must also address the general
requirements listed under § 112 7 in the
SPCC Plan
(b) Facility drainage (onshore).
(excluding production facilities) (1)
Drainage from diked storage areas shall
be restrained by valves or other positive
means to prevent a spll or other
excessive leakage of oil into the
drainage system or in-plant effluent
treatment system, except where facility
systems are designed to handle such
leakage Diked areas may be emptied by
pumps or electors, however, these shall
be manually activated and the condition
of the accumulation shall be examined
before starting to ensure no oil will be
discharged into the water
(2) Flapper-type drain valves shall not
be used to drain dilced areas Valves
used for the drainage of diked areas
shall, as far as practical, be of manual.
npen-and-closed design When facility
drainage drains directly into water
courses and not into wastewatcr
treatment plants. retained storm water
shall be inspected as provided in
paragraphs (cfl3) (ii). (iii), and (iv) of this
section before drainage
(3) Facility drainage systems from
undiked areas with a potential for oil
spill contamination shall flow into
ponds, lagoons. or catchment basins
designed to retain oil or re4urn it to the
iacility. It is recommended that
catchmeni basins not be located in
areas subtect to periodic flooding
(4) If facility drainage is not
engineered as above, the final discharge
tiE all in-plant drainage shall be
“quipped with a diversion system that
would, in the e .ent of an uncontrolled
spill retain oil in the facility
(5) Where drainage waters are treated
.n more than one treatment unit, it is
iecommended that natural hydraulic
‘ mw be used If pump transfer is needed.
iwo “lift” pumps shall be provided, and
.it least one of the pumps shall be
pros ided. and at least one of the pumps
shall be permanently installed when
.,urh treatment is continuous Whatever
techniques are used, facility drainage
systcnis shall be adequately engineered
so that, in the event nf equipment failure
or human error at the faciliiy. oil will be
nrevented from reaching navigable
is Liters of the United States, adjoini g
shorelines, or other waters that would
be affectecL.by discharging oil as
described in § 112 1(bl(1) of this part
(6) For facilities in locations subject to
flooding it is recommended that the
SPCC Plan address additional
requirements for events that occur
during a period of flooding
(c) Bulk storage containers (onshore).
(cxrluthng product ion facilities) (1) No
tank sha ll be used for the storage of oil
unless its material and construciion are
compatible with the material stored and
conditions of storage such as pressure.
temperature, etc It is recommended that
the construction, matenals, installation,
and use of tanks conform with relevant
portions of industry standards such as
API, NFPA, UL, or ASME standards,
which are required in the application of
good engineering practice for the
construction and operation of the tank
(21 All bulk storage tank installations
shall be constructed so that a secondary
means of containment is provided for
the entire contents of the largest single
tank and sufficient freeboard to allow
for precipitation Diked areas shall be
sufficiently impervious to contain spilled
oil for at least 72 hours Dikes,
containment curbs, and pits are
commonly employed for this purpose.
but they may not always be appropriate
An alternate system could consist of a
complete drainage trench enclosure
arranged so that a spill could terminate
and be safely confined in an in-plant
catchment basin or holding pond
(3) Drainage of rainwater from the
diked area into a storm drain or an
effluent discharge emptying into an open
watercourse, lake, or pond. and
bypassing the in-plant treatment system
may be acceptable if
(i) The bypass valve is normally
sealed closed
(ii ) Inspection of the run’ofI rainssater
ensures compliance with applicable
water quality standards and will not
cause a discharge that may be harmful.
as described in 40 CFR part 110
(iii) The bypass valve is opened. and
resealed following draining under
responsible supervision
(i’.)Adequate records are kept of such
events
- - (4) Underground metallic storage
tanis represent a potential for
undetected spills A nets buried
installation shall be protected from
corrosion by coatings. cathodic
protection, or other effer.tise methods
compatible with local soil conditions It
is recommended that such buried tanks
at least be subtected to regular leak
testing
(51 It is ierornmended that parti.ilty
buried or bunkered metallic tanks be
avoided, since partial burial in earth can
cause rapid corrosion of metallu
surfaces, especially at the earth/or
interface Partially buried and bunkered
tanks shall be protected froni corrosion
by cn.itings. cathodic protection. or
other effective methuds compatible with
local soil conditions
(6) Aboveground tanks shall be
subtect to integrity testing every ten
years and when material repairs etc
are done, taking into account tank
design (floating roof, for example) md
using such techniqpes or combinations
of such techniques as h drostaiic
testing. radiographic testing visual
inspections, ultrasonic testing. acoustic
emissions testing. or a system of non-
destructive shell testing Comparison
records shall he kept and tank supports
and foundations shall be included in
these tnspections In addition, the
outside of the tank shall frequc’ntl he
obserted hy operating personnel for
signs of deterioration leaks or
accumulation of oi 1 inside diked .ire.rs
(7f To control le.ikage through
defecti ’. e internal heating coils
(i) The sti’.irri return or exh.iost lint’s
from internal heating coils, ;s hirh
discharge into an open .iier course
shall be monitored for contamin.ttiun nr
passed through a settling tank skimmer
or other separation or retention system
It is recommended that these systems lii’
designed to hold the entire contents of
the affected tank, br of sufficient size to
contain a spill that may occur sshen the
system is not being monitored or
observed or have fail-safe oil leakage
detectors
(ii) It is recommended that the
feasibility of installing ,in externill
heating system also be considered
(8) New and otct tank inslall,itiiins
shall, as fur ‘is practical be fail-safe
engineered or updated into .i fail s.ife
engineered installation to avoid spills
One or more of the Follussing de s ices
shall he provided
hI ft tgh liquid level a firms ss ith .in
a udilile or s isua t signal at .i constant lv
manned operation or sort eill.inre
station in smaller pl.ints an audilili’ air
vent may suffice
(ii) Considering sue and rompti’xitv of
the factlits high liquid I i’ s el pump e toff
de s ices set to stop flow ,it
predetermined tank content lesel
(iii) Direr! .iudilile or code sign.if
comniunic.ituen hetween the i.ink ginger
and the pomping static’n
(iv) A ft st i esponsi’ s stem for
determining the tiquid let el of cii h bulk
storage t.ink. cu.h as digit.it coniputri s
tetepulse, ur direct vision gauges iir their
equivalent
(s I Other deco cc ran he i onsiderc’d
for installation as ,ilti’rnate
technologies. ‘is aflcissed under
§ fl27fa1)2f
(vt) Liquid level si’nsing des icc’s sli,itl
be reguli rly u’stc’d to ensure proper
oper.it ion
)‘1J Lffluients that .i r” disi h.irged into
navig.iblc’ waters shall h,i’. c’ disposal - -
S—3t0999 0026(OI)(2t-OCT-9t-t3 51 321
4701 F’MT 110.30 1. .12-28-90
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Federal Register / Vol 56. No 204/ Tuesday, October 22. 1991 / Proposed Rules
54637
fa€ilities obser ed frequently enough to
detect possible systerri’upsets that could
cause an oil spill e ent
T1t ) Visible oil leaks, hich result in a
loss of oil from tank seams, gaskets,
ri’. ets. and bolts sufficiently large to
cause the accumulation of oil in diked
areas, shall be promptly corrected
Accumulated oil or oil contaminated
materidls resulting from such discharge
shall be completely remo’.ed ‘.‘.ithin 72
hours from the time the spill e’.ent
occurs
(11) Mobile or portable oil storage
tdnks (onshore) shalt be positioned or
located so as to pre ’ .ent oil discharges
It is recommended that a secondary
means of containment, such as dikes or
catchmcnt basins, be furnished for the
largest single compartment or tank It is
recommended that these facilities be
located s’.here they will not be subject to
periodic flooding or washout
(d) Facility transfer opcraiioris.
pumping. and :n.plant procesc (onshore)
(excluding production facilities) (1) It is
recommended that all piping shall be
placed aboveground. where possible
New or replaced buried piping
installations shall have a protective
wrapping and coating and shall be
cathodically protected or otherwise
satisfy the corrosion protection
standards for piping in 40 CFR part 280
If a section of buried line is exposed for
any reason, it shall be carefully
examined for deterioration If corrosion
damage is found, additional
examination and corrective action shall
be taken as indicated by the magnitude
of the damage It is recommended that
buried piping installations comply to the
extent applicable ‘ . ith all of the relevant
provisions in 40 CFR part 280
(2) When piping is not in service or in
standby ser’. ice for six months or more,
the terminal connection at the transfer
puint shall be capped or blank.fianged.
and marked as to origin
(3) Pipe supports shall be properly
designed to minimize abrasion and
corrosion and allow for expansion and
contraction
(4) All aboveground ‘.alves, piping.
and appurtenances shall be subjected to
monthly examinations by operating
personnel, at which time the general
condition of items such is flange joints.
expansion joints, valve glands and
bodies, catch pans. pipe supports.
locking of valves, and metal surfaces
shall be ssessed In addition. it is
recommended that facility o’.’.ners or
operators conduct annual integrity and
k.ik testing (if buried piping or monitor
buried piping on a monthly basis
Records of such testing or monitoring
shall he maintained br fi’. e ‘ .‘ears It is
recommended that all ‘.als’es, pipes. and
appurtenances conform to relevant
industry codes such as ASME
standards
(5) Vehicular traffic granted entry into
the facility shall be warned orally or by
appropriate signs to be sure that the
ehicle, because of its size. will not
endanger aboveground piping or other
oil transfer operations It is
recommended that weight restrictions
be posted. as applicable, to prevent
damage to underground piping
§ 1129 SpillPreventton,Controt, and
Countermeasures Ptan requirements for
onshore oil production facttities
(a) In addition to the specific spill
prevention and containment procedures
listed under this section. onshore
production facilities must also address
the general requirements listed under
§ 1127 in the SPCC Plan
(b) Onshore oil production facilities
are defined in § 112 2(k)
(c) Oil production facility (onshore)
drainage (1) At tank batteries and
central treating stations ‘ . here an
accidental discharge of oil would have a
reasonable possibility of reaching
navigdble wdters, the dikes or
equivalent measures required under
§ 112 7(c)(1) shall have drains closed
and sealed at all times. except when
rainwater is being drained Prior to
drainage, the diked area shall be
inspected and actions taken as provided
in § 112 8(c)(3) (ii), (iii), and (iv).
Accumulated oil on the rainwater shall
be removed and returned to storage or
disposed of in accordance with
approved methods
(2) Field drainage ditches, road
ditches, and oil traps. sumps, or
skimmers, if such exist, shall be
inspected at regularly scheduled
intervals for accumulation of oil or oii-
contaminated soil that may have
escaped from small leaks Any such
‘accumulations shall be renioved within
72 hours
(3) For Tacilities in locations subject to
flooding, it is recommended that the
SPCC Plan address additional
requirements for events that occur
during a period of flooding
(d) Oil production facility (onshore)
bulk stora ,’e tanks (1) No tank shall be
used for the storage of oil unless its
material and construction are
compatible with the material stored and
the conditions of storage It is
recommended that the construction.
materials. installation, and use of now
tanks conform with relevant portions of
industry standards, which are required
in the application of good engineering
practice for the construction and
operation of the tank
(2) All tank battery and central
treating plant installations shall be
provided with a secondary means of
containment for the entire contents of
the largest single tank in use and
sufficient freeboard to allow for
precipitation, if feasible, or alternate
s stems, such as those outlined in
§ 112 7(c)(1) Drainage from undiked
areas sho ’ . ng a potential for
cont rnination shall be safely confined
in a catchment basin or holding ponii
(3) All tanks containing oil shall be
‘ .isually examined for deterioration and
maintenance needs at least once a year
Such e’..amination shall include the
foundation and supports of tanks above
the ground surface The schedule and
records [ or examinations of tanks shall
be maintained by the owner or operator
for a period of five complete calendar
years irrespective of changes in
owners hip
14) It is recommended that new and
old tank battery installations, as far as
practical. be fail-safe engineered or
updated into a fail-safe engineered
installation to pre’. ent spills It is
recommended that appropriate API,
NFPA. and ASME standards be
referenced Consideration shall be given
to providing one or more of the
following
(i) Adequate tank capacity to assure
that a tank will not overfill if a pumper!
gauger is delayed in making regular
rounds
(ii) O’.erflow equalizing lines between
tanks so that a full tank can overflow to
an adjacent tank
(iii) Adequate vacuum protection to
prevent tank collapse during a pipeline
run
(iv) High level sensors to generate and
transmit art alarm signal to the computer
where facilities are a part of a computer
production control system
(e) Facility transfer operations. oil
production Jacility (onshore) (1) All
aboveground valves and piping shall be
examir ed monthly for general condition
of items such as flange loints. valve
glands and bodies, drip pans. pipe
supports, pumping welt polish rod
stuffing boxes, bleeder and gauge
es The schedule of examinations
shall be included in the SPCC Plan and
records of the examinations shall be
maintained for a period of five years
(2) Salt water (oil field brine) disposal
facilities shall be examined often,
particularly following a sudden change
in atmospheric terrperalure. to detect
possible system upsets capable of
causing an oil discharge.
(3) Production facilities shall have a
program of fib’.’. line maintenance to
pre’. ent spills from this source It is - -
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54638
Federal Register / Vol 56, No 204 / Tuesday. October 22, 1991 I Proposed Rules
recommended that the program include
monthly e>.aminations. corrosion
- protection. flowline replacement, and
adequate records
- § 112 10 SpIll Prevention, Control, and
Countermeasures Plan requirements for
onshore ott drilling and workover facilities
(al In addition to the specific spill
prevention arid containment procedures
listed under this section. onshore oil
drilling and workover facilities must
also address the general requirements
listed under § 1127 in the SPCC Plan
fb) Motiile drilling or worko er
equipment shalt be positioned or located
so as to prevent spilled oil discharges
(c) Depending on the location.
catchment basins or diversion 1ructures
may be necessary to intercept and
contain spills of fuel, crude oil, or oily
drilling fluids
d) Before drilling below any casing
string or during workover opera tions, a
blowout presention fBOP) assembly and
well control system shalt be installed.
when necessary. that is capable of
controlling any we .ll-head pressure
expected to be encountered while that
HOP assembly is on the well Casing and
HOP installations shall be in accordance
with Stale regulatory agency
requirements
§ 112.11 Split Prevention, Control, and
Countermeasures Plan requirements for
off shore oil drilling, production, or
workover facilities
fa) In addition to the specific spill
prevention and containment procedures
listed under this section. offshore oil
drilling, production or workover
facilities must also address the general
requirements listed under § ‘ 12 7 in the
SPCC Plan
(b) Offshore oil drilling production.
and workover facilities are defined in
§ 112 2(1 ). As provided in § 112 1(d)(3j.
such facilities that are subject to the
Operating Orders, notices, and
regulations of the Minerals Management
ServiLe are not subject to this part
(c) Oil drainage collection equipment
shall be used to prevent and control
small oil spillage around pumps. glands
val’.es. flanges. expansion joints. hoecs
drain lines, separators, treaters, tanks,
and allied equipment Facility diains
shall be controlled and directed toward
a central collection sump or equivalent
collection system sufficient to prevent
the facility from discharging oil as
described in § 112 llb) [ 1) of this part
Where drains and sumps are not
pract 4 cable, oil contained in collection
equipment shall be remos ed as often as
necessary to prevent overflow, but not
less than once a year
(d) For facilities eriiploving a sump
system, the sump and drains shall be
adequately sized and a spare pump or
equivalent method shall be available to
remove liquid from the si-imp and assure
that oil does not escape A monthly
preventive maintenance inspection and
testing program shall be employed to
assure reliable operation of the liquid
removal system and pump start-up
device Redundant automatic sump
pumps and control devices may be
required on some installations
(e) Al facilities with areas where
separators and treaters are equipped
with dump val es for which the
predominant mode of failure is in the
closed position and pollution risk is
high, the facility shall be specially
equipped to prevent the escape of oil
Prevention of escaped oil can be
accomplished by extending the flare line
to a diked area if the separator is near
shore equipping the separator with a
high liquid level sensor that will
automatically shut-in wells producing to
the separator, installing parallel
redundant dump valves or using other
feasible alternatives to prevent oil
discharges
(f) Atmospheric storage or surge
containers shall be equipped with high
liquid level sensing devices or other
acceptable alternatives to prevent oil
discharges
(g) Pressure tanks shall be equipped
wiih high and low pressure sensing
devices to activate an alarm ind/or
control the flow or with other
acceptable alternatives to prevent oii
discharges
(h) Tanks shall be equipped with
suitable corrosion protection It is
recommended that appropriate National
Association of Corrosion Engineers
standards for corrosion protection be
folio wed
(i) A ritten procedure for inspecting
and testing pollution prevention
equipment and systems shall be
prepared and maintained at the Iacilitv
Such procedures shall be included is
part of the SPCC Plan
Testing and inspection of the
pollution prevention equipment and
systems at the facility shall be
conducted by the owner or operator on a
scheduled periodic basis, but not less
than monthly. commensurate with the
complexity. conditions, and
circumstances of the facility or other
appropriate regulations Simulated spill
testing shall be the method used for
testing and inspecting human and
equipment pollution control and
countermeasures systems rinless the
owner or operator demonstrates that
another method provides equivalent
alternative protection
(k) Surface and subsurface well shut-
in salves and devices in use at the
facility shall be sufficiently descrilii
determine their method of acti atii,n ir
control, e g . pressure differential
change in fluid or flow conditions
combination of pressure and flu.’
manual or remote control mechai
Detailed records for erich well. whili mt
necessarily part of the Plan, shill bi’
kept by the owner or operator for a
period of not less than five years
(I ) Before drilling below any casing
string and during workos er oper.iiion’.
HOP preventor assembly and i-sell
control system shall be installed ti,it
capable of controlling any well.he,id
pressure expected to be encountered
shile that HOP assemble is on tho isell
Casing .ind flOP installations shall hi’ iii
accordance with State regulatory rigcni
requirr’meiits
(m} II is recommended that
e tr.iordinarv i-s cli control meisiiri’c Ii ’
pros ided if emergency conditions
including fire loss of control md uthi’r
,ibnorrn.ii conditions occur it is
recommended that the degree of eoniriil
system redundancy sare ssith li,iz,ird
exposure and probable conseqiien ti- iii
failure it is recommended ih.it surf.o
shut-in systems include redundant or
“fail close” i-ohs ing Subsurface s,ifci
valves may not be needed in producing
wells that will not flow but they stiinild
be installed as required liv .ipptic.itili’
State regut.itions
(n) All manifolds (headers) shaP
equipped with check s,ilses on
ind sidual flowlines
(oh If the shut-in i-s hl pressure is
greater than the working pressure 0 f hi’
flowline and manifold tses up to arid
including the header als c’s associated
ss ith that mdi - dual floss line the
flowline shall be equipped with a high
pressure sensing des ice and shut-in
i-alsc at the wellht’id unless pros ided
with a pressure relief sr’stem to pros cat
o er-prc’ssuriflg
(p) All piping appurtenant to the
facility shall be protected from
corrosion It is recommended hit the’
method used, sui,,h is protectise
coatings or cathodic protection, be
discussed
(qI Sub-marine piping .ippurti’n.iiit to
the facility shall be adequately
protected against ens ironnim’rital
stresses and other ,ii.ti\ ities such as
fishing operations
(r) Sub-marine piping appurtenant to
the 1.icility shall be in good opc’r.iting
condition at all times and incp ted on a
scheduled pc’riodic basis for Failures
Such inspections shall be doc,umenicd
arid maintained at the f,mcihii’, for a
period of fuse ‘ears
(s) To prevent iuiusunderstandiiug o
joint and separate dutias and
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4701 FMT 110.301 12-28-90
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obligations for performing work in a safe
and pollution-free manner, it is
recommended that written instructions
beprepared by the ass n cr or operator
for contractors and subcontractors to
follow whenever contract activities
include servicing a well or systems
appurtenant to a well or pressure sessel
Such instructions and procedures shall
be maintained at the offshore
production facility Under certatn
circumstdnces and conditions, such
contractor activities mas’ require the
prcsenct’ dl the facility of an authorized
ripresentatit’e of the owner or operate.
who would intervene when necessary to
present a spill event
Appendix A—Memorandum of
Understanding Between the Secretar ) of
Transportation and the Administrator of the
Fnvironmental Protection Agency
Sict,o,i //—Defi:utians
I he Ens ironmenidl Protection Agency and
ihi’ l)eparimerti of Trancport.iiion agree ihat
for the purposes of Executi’.e Order 11548
ihe term
Ii) Vu ,, lro ,isportot,i,ii-r ,’/uti’el Oils/lore oiid
urrshon facilities mv ,ins
ixid onshore and offshore 1)11 well
drilling facilities including .ill equipment and
ippurienances related ihcreto used in dritling
opera lions for explore br’. or des clopment
welts, bui excluding any terminal facility,
unit or process intr ’gratts ascociiied with the
liaiidliiig or transferring of oil in bull. io or
from .1 s essel
(I)) Mobile onshore and offshore oil well
drilling plelforms barges. trucks or other
mobile facililics including all cqutpmeni and
appurtenances related thereto when such
mobile facilities arc fixed in position for the
purpose of drilling opera lions for exploratory
or development ssclls but excluding an ’
ti’rminal ficiliiv unit or process integrally
,issuci,ited with the handlirtg or transferring
of oil in bulk to or from a essel
Id Eised onshore and offshore oil
production structures plaiforms derricks
,iiid rigs including all equipmciii md
•ippiirtcnanccs related iliereio as well as
completed wells and the ss ellhe d separators.
oil separators. md storage facilities used in
the production of oil but excluding any
ierrniiial f.icilitv unit or process iniegrally
associated with the handling or transferring
of oil in bull. to or from a vessel
ID) Mobile onshore and offshore oil
production facilities including all equ,pment
and appurtenances related thereto as well as
completed wells and wellhead equipment.
piping from wellheads to oil separators, oil
separators and storage facilities used in the
production of oil when such mobile facilities
dre fixed in position for the purpose of oil
production operations hut excluding any
terminal facility unit or process integrally
associated with the handling or transferring
of oil in bulk to or from a vessel
(E) Oil refining facilities including all
equipment and appurtenances related thereto
as sscll is in-plant processing units storage
units piping drainage systems and waste
treatment units used in the refining of o;l but
excluding an terminal facility unit or
process integrally associated with the
handling or transferring of cii in bulk to or
from a sessel
(F) Oil storage facilities including all
equipment and appurtenances related thereto
as ssell as fixed hulk plant storage, terminal
oil storage facilities, consumer storage
pumps and drainage systems used in the
storage of oil hut excluding inline or
breakout storage tanks needed for the
continuous operation of a pipeline system
and an’. terminal facility, unit or process
iniegr .mllv associated with the handling or
transferring of oil in bulk to or from a vessel
(C) industrial, commercial agricultural or
public facilities which use and store oil but
excluding any terminal Facility, unit or
process integrally associated with the
handling or transferring of oil in bulk to or
from a vessel
(H) V,isie treatment facilities including in-
plant pipelines effluent discharge Itnes and
storage tanks, but excluding waste treatment
facilities located on vessels and terminal
storage tanks and appurtenances for the
reception of oily ballast water or lank
washings from vessels and associated
systems used for off loaiung vessels
(II Loading racks transfer hoses loading
arms and other equipment which are
appurtenant to a non transportation-related
facility or terminal fdcilitv and which are
used to transfer oil in bulk to or frotv
highway vehicles or railroad cars
( II Highway sehicles and railroad cars
which are used for the transport of oil
exclusively within the confines of a non-
transportation-related facility and which are
not intended to transport oil in interstate or
intrastate commerce
(K) Pipeline sy stcms which are used for the
transpoi t of oil exclusively within the
confines of a non transportation-related
fac.lity or terminal facility and which are not
intended to transport oil in interstate or
intrastate commerce. but excluding pipeline
systems used to transfer oil in bulk to or from
a sessel
(2) Transportation related onshore and
offshore facilities means
(A) Onehore and offshore terminal
facilities including transfer hoses, loading
arms and other equipment and appurtenances
used for the purpose of handling or
transferring oil in bulk to or From a vessel as
well as storage tanks and appurtenances for
the reception of oily ballast water or tank
washings from ‘.easels but excluding
terminal waste treatment facilities and
terminal oil storage facilities
(B) Transfer hoses, loading arms and other
equipment appurtenant to a non-
transportation-related laciliiy which is used
to transfer oil in bulk to or from a s-csscl
(C) interstate and unirastaic onshore and
offshore pipeline systems including pumps
and appurtenances related thereto aS well as
in-line or breakout storage tanks needed for
the continuous operation of a pipeline
system and pipelines from onshore and
offshore oil production facilities but
excluding onshore and offshore piping from
wellheads to oil separators and pipelines
which are used for the transport of oil
exclusively within ihe confines of a non-
transportation-related facility or terminal
facility and which dre not intended to
transport oil in interstate or intrastate
commerce or to transfer oil in bulk to or from
a sessel
(D) Highway sehicles and railroad cars
which are used for the transport of oil in
interstate or intrastate commerce and the
equipment and appurtenances related
thereto and equipment used for the fueling of
locomotive units as well as the rights-of-wa)
on which they Operate Excluded arc highway
vehicles and raiLroad cars and motive power
used exclusively within the confines of a non-
transportation related facility or terminal
facility and which are not intended for use in
interstate or intrastate commerce
BiLLiNG CODE 6560—SO-U
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Wednesday
February 17,1993
Part II
Environmental
Protection Agency
40 CFR Part 112
Oil Pollution Prevention; Non-
Transportation-Related Onshore Facilities;
Proposed Rule
Friday
April 9, 1993
Part VII
Environmental
Protection Agency
40 CFR Part 112
Oil Pollution Prevention;
CORRECTION;
Proposed Rule
f RecycledlRecyclable
Pnntod On paper that conlatna
at ansi 50% recydad fiber
=
-------
Wednesday
February 17, 1993
S
‘U
Part Ii
Environ mental
Protection Agency
40 CFR Part 112
Oil Pollution Prevention; Non-
Transportation-Related Onshore Facilities;
Proposed Rule
e
I
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8824
Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 112
[ SW H-FRL 4556-2]
RIN 2050-AD 30
Oil Pollution Prevention; Non-
Transportation-Related Onshore
FacIlities
AGENCY: U.S. Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: This proposed rule would
revise the Oil Pollution Prevention
regulation. originally promulgated
under the Clean Water Act (CWA). The
proposed revision would incorporate
new requirements added by the Oil
Pollution Act of 1990 that direct 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. Other regulatory changes to
strengthen the existing regulation also
are proposed.
DATES: Comments must be submitted on
or before April 19, 1993.
ADDRESSES: Comments: Comments
should be submitted in triplicate to:
Emergency Response Division.
Attention: Superfund Docket Clerk.
Docket Number SPCC—2P, Superfund
Docket, room M2427 (mail code OS—
24S), U.S. Environmental Protection
Agency, 401 M Street, SW., Washington,
DC 20460.
Docket: Copies of materials relevant to
this rulemaking are contained in the
Superfund Docket, room M2427 at the
U.S. Environmental Protection Agency,
401 M Street, SW., Washington, DC
20460 (Docket Number SPCC—2P1. 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 page
copied after 100 pages, plus a $25.00
administrative fee.
FOR FURThER INFORMATION CONTACT:
Bobble Lively-Diebold, Response
Standards and Criteria Branch,
Emergency Response Division (OS—210),
U.S. Environmental Protection Agency,
401 M Street, SW., Washington, DC
20460 at 703—35&—8774; the ERNS/
SPCC Information line at 202—260—2342:
or the RCRA/Superfund Hotline at 800—
424—0346 (in the Washington, DC
metropolitan area, 703—920—9810). The
Telecommunications Device for the Deaf
(TDD) Hotline number is 800—553—7672
(in the Washington, DC metropolitan
area, 703—486—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. This Rulemaking
11. Alternative Approaches for Identifying
Facilities Subject to Facility Response
Plan Requirements
A. Option One
B Option Two
Ill. Proposed Approach for the
Implementation of Facility Response
Plan Requirements
A. Procedures and Deadlines—5S 112.20
(a) Through (e)
B Selection Criteria—S 112 20(f) and
Appendix C
C Environmentally Sensitive Areas—
Appendix D
D. Definition of Worst Case Discharge—
Appendix E
E. Tiered Response Planning
F. The Determination and Demonstration
of Adequate Response Capability—
Appendix F
C Response Plan Elements—5 112.20(g)
and (h). and Appendix C
IV. Relationship of Facility Response Plan
Requirements to Other Programs
V. Proposed Revisions to Existing 40 CFR
part 112 Plan Requirements
A Prevention Training
B. Ensuring Against Brittle Fracture
C. SPCC Plan Amendment
D. Authority to Require Preparation of
Plans
E Submission of Plans That Contain a
Waiver of Technical Requirements
VI. Other Technical Considerations Not
Proposed
VII Regulatory Analyses
A. Executive Order 12291
B. Regulatory Flexibility Act
C Paperwork Reduction Act
I. Introduction
A. Stat utoly 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 requires the President to issue
regulations that require owners or
operators of tank vessels or offshore
facilities or 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)(1)(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)(1)(C). The President has
delegated the authority to regulate non-
transportation-related onshore facilities
under section 311(j)(1)(C) of the CWA to
the U.S. Environmental Protection
Agency (EPA of the Agency). See
Executive Order 12777, section 2(b)(1) ,
56 FR 54757 (October 22, 1991).
superseding Executive Order 11735, 38
FR 21243. By this same Executive
Order, 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
Intenor (DCI). A Memorandum of
Understanding (MOU) between the
Secretary of Transportation and the EPA
Administrator, dated November 24.
1971 (36 FR 24080), establishes the
definitions of non-transportation-related
facilities and transportation-related
facilities The definitions from the MOU
are included in appendix A to 40 CFR
part 112.
B. The Oil Pollution Act of 1990
The CPA 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, and
establish an expanded research and
development program. The Act
establishes a new Oil Spill Liability
Trust Fund, administered by the United
States Coast Guard (USCG). As provided
in sections 2002(b), 2003, and 2004 of
the OPA, the new Fund replaces the
fund established under section 311(k) of
the CWA and other oil pollution funds
Section 4 202(a) of the CPA amends
CWA section 3 11(j) to require
regulations that provide that owners or
operators of facilities 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 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.” Today’s
proposed revisions address only plans
for responding to thscharges of oil.
Implementation of the OPA provisions
addressing hazardous substance
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Federal Register I Vol. 58, No. 30 I Wednesday, February 17, 1993 / Proposed Rules
8825
response plans will be addressed in a
ubsequent rule.
CWA section 311(j)(5)(C) sets forth
.ertain minimum requirements for
facility response plans. The plans must:
• Be consistent with the requirements
of the National Oil and Hazardous
Substances Pollution Contingency Plan
(NO’) and Area Contingency Plans
(ACPs);
• Identify the qualified individual
having full authority to implement
removal actions, and require immediate
communications between that
individual and the appropriate Federal
officiel 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)(D), additional
review and approval provisions apply to
response plans prepared for onshore
facilities that, because of their location,
‘could reasonably be expected to cause
‘s:gnificant and substantial harm” to
the environment by discharging into or
on the navigable waters or adjoining
shorelines or the exclusive economic
zone.” (emphasis added) Pursuant to
authonty delegated in Executive Order
12777, EPA is responsible for the
following activities for each of these
response plans at non-transportation-
related onshore facilities:
• Promptly review the response plan;
• Require amendments to any plan
that does not meet the section 311(j)(5)
requirements;
• Approve any plan that meets these
requirements; and
• Review each plan periodically
thereafter.
The OPA requires that owners or
operators of facilities that could cause
“substantial harm” to the environment
by discharging oil must submit their
response plans to EPA (as delegated by
the President in Executive Order 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 CPA 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 facility may be allowed to operate
without an approved response plan for
up to two years after the facility submits
a plan that Is to be reviewed, 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, or a substantial threat of such
a discharge.
Under the CPA, facility owners or
operators who fail to comply with
section 3 11(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 3 11(j). In addition to these civil
penalties, CPA 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, end
up to $10,000 per day per violation, not
to exceed $125,000 for Class 11 penalties.
Revisions to the penalty provisions are
applicable to violations occurring after
the August 18, 1990, enactment of the
OPA. Violations occurring before
enactment of the CPA remain subject to
penalty provisions originally set forth in
CWA section 311.
C, This Rulemaking
As discussed in section I A of this
Preamble, the Agency proposes
revisions to the Oil Pollution Prevention
regulation to implement OPA response
plan requirements as well as several
other technical requirements. After
consideration of comments received in
response to this proposed rule, a final
rule will be promulgated. If comments
received indicate sufficient need, the
Agency will consider holding a public
hearing on the proposed revisions to
permit further expression of views prior
to the final rulemaking. EPA will
publish a notice of its intent to hold any
public hearing in the Federal Register.
Any statements made at such a hearing
would be included in the public record
of the rulemaking. Until the Agency
promulgates a final rule that
implements the provisions of CWA
section 311(j)(5), owners and operators
of onshore, non-transportation-related
facilities that handle oil may use this
proposed rule as guidance to meet the
CWA’s requirements for facility
response plans.
II. Alternative Approaches for
Identifying Facilities Subject to
Response Plan Requirements
The Agency investigated two
approaches to Identifying facilities
subject to facility response plan
requirements (facilities that could cause
“substantial harm” to the environment)
under this proposed rulemaking. The
major differences between the
approaches are: (1) The extent of the
regulated community affected by the
response plan requirements, and (2) the
process to determine which facilities
could cause “substantial harm” to the
environment, including the selection
method and criteria. The two
alternatives are outlined briefly below
followed by a more detailed discussion
of each option. EPA proposes the first
option but requests comment on the
relative merits of both options.
Under Option 1, EPA would propose
to implement the OPA response plan
requirements as follows:
• Facilities that could cause
“substantial harm” to the environment
by discharging oil into navigable waters
or adjoining shorelines must prepare
and submit a facility response plan to
EPA; and
• The Agency will review for
approval, all plans submitted by
facilities Identified as having the
potential to cause “significant and
substantial harm” to the environment
from such discharges.
This option in part would use a
process by which owners or operators
would determine whether their facility
could cause “substantial harm” to the
environment. To complete the self-
selection process, owners or operators
would be required to evaluate their
facility against a set of published criteria
arranged in a flowchart. The criteria
include: Storage capacity, proximity to
sensitive environments and drinking
water supplies, marine transfer
operations, adequacy of secondary
containment, and spill history. EPA Is
considering several alternative
threshold levels for the storage capacity
criterion. Facilities meeting one or a
combination of the above criteria would
be determined to have the potential to
cause “substantial harm” and would
have to prepare and submit a response
plan to the appropriate Regional
Administrator (RA). In addition, the RA
would have the authority to determine
that any regulated facility, regardless of
the results of the self-selection screening
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8826 Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
process, has the potential to cause
“substantial harm” based on similar
criteria and taking into account other
site-specific characteristics and
environmental factors. To determine
whether a facility could cause
“significant and substantial harm” to
the environment, the RA would
consider other criteria in addition to the
factors used in the “substantial harm”
determination.
Under Option 2, EPA would propose
to require that:
• All regulated facilities would have
to prepare a response plan;
• Facilities that could cause
“substantial harm’ to the environment
by discharging into water bodies or
adjoining shorelines would have to
submit their plans to EPA;
• The Agency would review for
approval plans submitted by facilities
that could cause “significant and
substantial harm’ to the environment
from such discharges; and
• Certain small, low.risk facilities
with secondary containment structures
would be allowed to prepare an
abridged version of a response plan.
EPA would select “substantial harm”
and ‘significant and substantial harm”
facilities using risk-based screening
criteria and Regional knowledge.
A Option One
Under Option 1, EPA would propose
to implement the CWA section 311(j)(5)
requirements that (1) The owner or
operator of a facility that could cause
“substantial harm” prepare and submit
a response plan, and (2) facilities that
could cause “significant and substantial
harm” to the environment have their
plans promptly reviewed for approval
by EPA This approach is consistent
with the OPA legislative history, which
supports the Agency’s position that only
a subset of all submitted onshore facility
response plans would be reviewed and
approved. See H,R. Rep. No. 101—653.
101st Cong 2d Sess. 1991 at p. 150.
“Substantial Harm” Facility Selection
Process and Criteria
Under this option, several processes
would be used to identify those
facilities required to prepare arid submit
response plans. Facility owners and
operators would be required to evaluate
their facilities for the potential to cause
“substantial harm” to the environment
using criteria published in the proposed
rule. Owners and operators would be
aided in this evaluation by a flowchart
designed to determine whether a facility
meets the criteria and has the potential
to cause “substantial harm.”
Instructions for the use of the flowchart
would be provided to help owners and
operators apply the criteria. Under this
option, owners or operators of facilities
determined not to have the potential to
cause “substantial harm” would be
required to certify that their facility did
not meet the criteria as contained in the
flowchart.
The criteria that would be used to
help Identify the universe of
“substantial harm” facilities would
include facility storage capacity,
proximity to sensitive environments and
drinking water supplies, the existence of
secondary containment, spill history,
and the nature of the facility’s marine
transfer operations. As described in
soction ILI.B of this preamble, in
addition to oil storage capacity end the
proximity to potable water supplies and
environmentally sensitive areas (which
are elements specifically referenced in
the OPA Conference Report, see H.R.
Rep. No. 101—653, 101st Cong. 2d Sess.
1991 at p. 150), EPA has determined
that the remaining criteria are elements
that are closely related to the potential
for a facility to cause “substantial harm”
to the environment as a result of a
discharge of oil. EPA has arranged the
criteria in a flowchart (sea appendix C)
that shows the decision tree by which
owners and operators would determine
whether their facility could pose
“substantial harm” to the environment.
As presented in the flowchart, a
facility would be determined to have the
potential to cause “substantial harm” to
the environment if either of the
following two screening criteria are met:
(1) The facility’s total oil storage
capacity is greater than or equal to 1
million gallons, and one of the
following is true:
The facility is located at a distance
(as calculated using the appropriate
formula in appendix C or an alternative
formula considered acceptable by the
Regional Administrator) such that a
discharge from the facility would shut
down operations at a public drinking
water intake;
The facility is located at a distance
(as calculated using the appropriate
formula in appendix C or an alternative
formula considered acceptable by the
Regional Administrator) such that a
discharge from the facility could cause
injury to an environmentally sensitive
area;
• 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; or
• The facility has had a reportable
spill greater than or equal to 10,000
gallons within the last 5 years.
(2) The facility transfers oil of any
kind over water to or from vessels and
has a storage capacity greater than or
eq l to 42,000 gallons.
EPA recognizes that large-capacity
facilities have a greater potential for
causing spills and subsequent
environmental damage. EPA also
considered an alternative storage
capacity cut-off of 200,000 gallons
under the first screen for Option 1. EPA
requests comment on the
appropriateness of the use of the I
million gallon or 200,000 gallon size
cut-off in the determination of
“substantial harm” and information on
any data relevant to this factor.
Under this option, the RA would have
the authority to screen facilities using
the same criteria that facility owners or
operators would use under the self-
selection process. This step will serve to
verify that owners or operators are
applying the screening criteria correctly.
To determine substantial harm, the R.A
could also evaluate the risk posed by a
facility using, among other things,
general risk factors (i.e., proximity to
sensitive environments and drinking
water intakes) similar to the specific
criteria discussed above. Moreover,
because of the potential variation in
site-specific characteristics and
environmental factors, as well as the
possible relevance of factors not
specified in the criteria provided for
owners and operators to screen their
facilities, the RA would maintain the
ability to consider other risk-based
factors in making his or her
determination Regional knowledge
about the compliance history of a
particular facility, as well as other site-
specific circumstances that affect the
risk of harm from a discharge. are
examples of such factors EPA solicits
comment on the appropriateness of
these criteria for use by the facility
owner or operator and the RA to
determine whether a facility could
cause ‘substantial harm” to the
environment
“Significant and Substantial Harm”
Facility Selection Process and Criteria
Under Option 1, the RA would further
assess the risks posed by an individual
facility in order to identify the subset of
“substantial harm” facilities that could
cause both “significant and substantial’
harm to the environment In making this
determination, the RA would use the
“substantial harm” factors as well as
other information, including
information from submitted plans,
facility compliance history. age of tanks,
proximity of discharge sources to
navigable waters and additional areas of
environmental concern, Regional site
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8827
.characteristics. and local impacts on
ublic health. Although based on a set
(national criteria, this prioritization
may differ from Region to Region
depending on the relative importance of
certain factors within a particular area.
In addition to those facilities identified
to meet the OPA’s August 18, 1993,
deadline, EPA also may in the future
identify additional facilities as having
the potential to cause “significant and
substantial harm.” As stated above,
those facilities identified as having the
potential to cause “significant and
substantial harm” to the environment
would be required to have their
response plans reviewed for approval.
EPA solicits comment on the
appropriateness and relative importance
of the selection criteria in the RA’s
determination of ‘significant and
substantial harm.” Also, the Agency
requests comment on whether the RA
should consider additional facility
characteristics, such as the complexity
and throughput of a facility’s operations
and type of product stored in the
determination of “significant and
substantial harm.”
B. Option Two
EPA also is considering a second
pproach to the implementation of
response plan requirements, based on
the authority contained in CWA
subsections 311(j) (1) and (5). Under this
option, all regulated facilities 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.
Under this appreach, only
“substantial harm” facilities would be
required to submit plans to EPA and
“significant and substantial harm”
facilities would have their plans
reviewed arid approved. All other
owners and operators subject to the
regulation would only have to prepare
a facility response plan that would be
kept at the facility.
Facility Selection Process and Criteria
The responsibility to determine
“substantial harm” and “significant and
substantial harm” facilities under this
approach would rest entirely with the
Agency. The RA would determine
which facilities fall within each
category using the risk-based screening
criteria discussed under Option 1. The
remaining aspects of Option 2 are
essentially similar to those presented
under Option 1.
UI. Proposed Approach for the
Implementation of Facility Response
Plan Requirements
EPA proposes Option 1 for identifying
facilities subject to response planning
requirements. Only owners or operators
of facilities that could cause
“substantial harm” to the environment
would be required to prepare and
submit plans. EPA would then review
and approve only those plans submitted
by facilities that could cause
“significant and substantial harm” to
the environment. Risk-based criteria for
evaluating the potential to cause
“substantial harm” and “significant and
substantial harm” are published In
§112.20(0 of today’s proposed rule. The
“substantial harm” determination
would be accomplished, in large part,
through a facility self-determination
process which uses the criteria in
proposed § 112.20(fl(l) in conjunction
with the flowchart proposed in
appendix C to the rule. In addition, each
RA would have the authonty to
determine that other facilities could
cause “substantial harm” to the
environment based on the specific
criteria in proposed § 112.20(0(1) or the
general factors in proposed
§ 112.20(0(2), including other site-
specific characteristics and
environmental factors that may be
relevant The “substantial harm” criteria
are discussed in detail in Section III B
of this preamble. In applying these
factors, the RA may seek input on
specific facilities from other agencies
such as the USCG The PA also may
consider petitions from the public to
determine whether a facility could
cause “substantial harm” to the
environment. Those facilities submitting
plans would be required to include a
response plan cover sheet (as provided
in appendix C), which indicates that the
information contained in the plan is
accurate and which provides a basic
summary of facility information
including the results of the self-
selection for the “substantial harm”
determination. Under proposed
§ 112.20(e), facilities not required to
submit plans would be required to
maintain on-site a certification form
indicating that the facility was
determined not to pose the threat of
“substantial harm” to the environment.
EPA’s formulas for distance were
designed to be simple to use. However,
facilities may calculate planning
distances using more sophisticated
formulas, which take into account
broader scientific or engineering
principles, or local conditions. Such
alternative formulas may result in
different planning distances than those
d.tstances calculated using EPA’s
proposed formulas in appendix C. If an
owner or operator chooses to use an
alternative formula and determines that
the facility could not cause substantial
harm, the owner or operator must attach
to the certification form a brief
explanation of the formula and its
reliability, and demonstrate how
calculations were made. In addition, the
owner or operator would be required to
notify the PA in writing that an
alternate formula was used to determine
that the facility does not pose a threat
of substantial harm. More information
concerning the use of alternative
formulas is provided in section ffl.B of
this Preamble and in appendix C of the
proposed rule
To determine whether a facility could
cause “significant and substantial
harm” to the environment, the PA
would consider the “substantial harm”
criteria in proposed § 112.20(0(2) as
well as additional factors in proposed
§ 112.20(0(3), including site-specific
information relating to such things as
local impacts on public health. Section
H1,B of this preamble discusses the
criteria to be used by RAs in their
determination of a facility’s potential to
cause “significant and substantial
harm” to the environment.
A Pmceduros and Dead)ines—.gg 112.20
(a) through (e)
1. Preparing, Submitting, and Reviewing
Plans
As discussed above, the Agency
proposed two ways a facility can be
screened as having the potential to
cause “substantial harm”, one involving
a self-effectuating process and the other
involving an Agency determination.
EPA may identify some facilities as
having the potential to cause
“substantial harm” that may not have
been identified in the self-selection
process.
Se1f-SeIection— 112 20(a) The
owner or operator of an existing facility
that meets the criteria proposed in
§ 112.20(f)(1) would be required to
prepare end submit a facility response
plan to the appropriate PA by February
18, 1993. in order to meet the OPA
deadline for plan submission. EPA
proposes in § 112.20(a)(2) that owners or
operators of all regulated facilities must
determine whether a response plan is
required for their facility based on the
“substantial harm” criteria, Proposed
§ 112.20(0(1) would require that an
owner or operator use the flowchart in
appendix C to apply these criteria.
Appendix C provides information that is
necessary for the owner or operator to
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8828 Federal Register I Vol. 58, No. 30 / Wednesday, February 17, 1993 I Proposed Rules
correctly apply certain of the criteria
prqposed in § 112.20(0(1).
The Agency recognizes that self-
selection may occur after February 18,
1993, because of new facilities coming
on-line and existing facilities
subsequently meeting the criteria for
“substantial harm” as a result of a
change in operations or site
characteristics. To ensure consistency
with the overall requirement to prepare
and implement a Spill Prevention,
Control, and Countermeasure (SPCC)
Plan as proposed in the Phase One
Notice of Proposed Rulemaking (NPRM)
(56 FR 54630; October 22. 1991), EPA
proposes in § 11220(e)(2) that: (1)
Newly constructed facilities be required
to prepare end submit a response plan
prior to the start of operations
(adlustments to the response plan can be
made and submitted to the Agency 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 be required to
prepare and submit a response plan
prior to the implementation of changes
at the facility. For example, a facility
located near an environmentally
sensitive area that plans to increase its
maximum oil storage capacity to one
million gallons subsequently would be
determined (according to the flowchart
in appendix C) to have the potential to
cause “substantial harm.” A facility
planning such a change would be
required to prepare and submit a
response plan prior to commencing the
new operation. An existing facility,
however, may become subject to the
response plan requirements through one
or a combination of unplanned events,
such as experiencing a reportable spill
or the identification of a sensitive
environment adjacent to the site during
the ACP development process as
described in section Ill.C of this
preamble. These factors would cause the
facility to meet the criteria for
“substantial harm” as described in the
flowchart. For example. a facility with
a total storage capacity greater than one
million gallons that experiences a
reportable spill exceeding 10,000
gallons would meet the proposed
“substantial harm” criteria as indicated
In the flowchart in appendix C. In the
event of such an unplanned change in
a facility’s risk classification, the owner
or operator would be required to
prepare and submit a response plan to
the RA within six months of when the
change occurs (see proposed
§ 112.20(a)(2)( iv )).
Agency Determination/Notification
for Substantial Harm—.5 212.20(b). As
proposed In § 112.20(b), In the event the
Agency determines that a facility may
pose a threat of “substantial harm”
based on the factors in proposed
§ 112.20(0(2), the RA would notify In
writing the owner or operator of the
facility that he or she is required to
prepare and submit a facility response
plan. To make such a determination, the
RA could apply the factors as specified
in the flowchart for facility self.
selection. Non.notiflcation by the RA
would not exempt facilities from the
requirement to prepare and submit
response plans by February 18, 1993. if
they meet the self-selection criteria in
the proposed flowchart in appendix C.
Under this approach. facilities
identified by the RA as having the
potential to cause “substantial harm.”
including new facilities and facilities
undergoing a change in operations or
facility.specific charactenstics, would
have six months after notification to
prepare and submit a response plan to
the appropriate R.A In addition to those
facilities identified to meet the OPA’s
February 18, 1993, deadline, EPA also
may in the future identify additional
facilities as having the potential to cause
“substantial harm” to the environment.
Plans submitted by those facilities
identified by the RA as having the
potential to cause “substantial harm” to
the environment will be reviewed by the
RA to determine if the facility has the
potential to cause “significant and
substantial harm” ta the environment.
EPA proposes in § 112.20(f)(2)(ii) to
allow interested members of the public
or Federal, State, or local agencies an
opportunity to petition the RA to
determine whether a specific facility
could cause ‘substantial harm” to the
environment. Under this process, the
petitioner would have the opportunity
to submit in writing a discussion of how
the “substantial harm” criteria proposed
in § 112.20(f)j2)(i) apply to the facility
in question. The RA would evaluate
such petitions in making a
determination of whether the facility
could cause “substantial harm” to the
environment. The factors the RA would
consider to determine whether a facility
could cause “substantial harm” are
discussed in section IV.B of this
preamble.
Agency Determination/Notification
for Significant and Substantial Harm—
§122.20(c). As proposed in
§ 112.20(c)(1), the RA would notify in
writing the owner or operator of a
facility determined to have the
potential, based on the criteria in
proposed § 112.20(0(3), to cause
“significant and substantial harm” that
his or her response plan will be
reviewed for approval. This process
would allow facility owners or operators
the opportunity to seek, if necessary.
authorization from the RA to operate
temporarily without an approved
response plan. In addition to those
facilities identified to meet the OPA’s
August 18, 1993, deadline, EPA in the
future also may identify additional
facilities as having the potential to cause
“significant and substantial harm “As
proposed in § 112.20(c)(1), RAs would
be required to periodically review
approved response plans from facilities
determined to have the potential to
cause “significant and substantial
harm” to the environment, in addition
to reviewing plans submitted to meet
the OPA deadline. EPA solicits
comment how frequently the RA should
review approved facility response plans,
and, in particular, whether three years
is an appropriate period between plan
review. The following section discusses
additional revisions proposed in
§ 112.20(c),
OPA Deadlines for “Substantial
Harm” and “Significant and Substantial
Harm” Facilities The CPA sets forth
specific timing requirements for when
facility owners or operators must
prepare and submit response plans to
the RA, and the consequences of not
submitting a plan when required. If the
owner or operator of a facility required
to prepare and submit a plan to the RA
has not done so by February 18, 1993,
that facility must stop handling, storing.
or transporting oil. Further, a facility not
operating in compliance with the
response plan after August 18, 1993,
must stop handling, storing, or
transporting oil
The OPA does not specifically
address events occurring after the
statutory deadlines and leaves
implementation of the facility response
plan requirement with regard to
facilities identified after the statutory
deadline to the discretion of the Agency
The Agency interprets the statute as not
requiring that a facility determined to
have the potential to cause “substantial
harm” to the environment that has not
submitted a facility response plan by
February 18. 1993. must stop handling,
storing, or transporting oil until such a
plan is submitted, if the determination
is made after February 18, 1993. The
Agency believes its interpretation of the
OPA, which allows six months from the
time of discovery or notification that a
facility could cause “substantial harm
to prepare and submit a plan, is
reasonable and consistent with the
objectives of the CPA EPA requests
comment on the choice of a six-month
time frame versus a shorter period for
development of a plan.
According to the CPA, a facility
required to have its response plan
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8829
ieviewed and approved must stop
indling, storing, or tran8porting oil
iless the plan has been approved by
August 18, 1993. However, as indicated
In the OPA Conference Report (H.R.
Rep. No. 101-653, 101st Cong., 2d Sass.
1991 at p. 151), the number of plans
requiring review may prevent the RAs
from reviewing all response plans by the
statutory deadline. Thus, CWA section
311(j)(5)(F) allows the owner or operator
of a facility to seek Federal
authorization to operate for up to two
years after the plan has been submitted
for approval if the owner or operator has
certified that he or she has ensured by
contract or other federally-approved
means the availability of private
personnel and equipment necessary to
respond, to the maximum extent
practicable, to a worst case discharge or
substantial threat of such a discharge.
As discussed in section I.B of this
preamble, a related OPA requirement is
that response plans shall identify, and
ensure by contract or other federally.
approved means the availability of
private personnel and equipment
necessary to remove a worst case
discharge. Although the response plan
would already identify such resources,
the requirement to certify their
availability is necessary only when plan
pproval is required and cannot take
Lilace before the statutory deadline.
Such a situation could arise if a large
number of plans require approval. The
Agency proposes in § 112.20(c)(2) that if
notified by EPA that a submitted
response plan requires approval nd
that approval will not be forthcoming
prior to the August 18, 1993, deadline,
the owner or operator of the facility has
30 days to certify and provide a copy of
a signed contract or other approved
means demonstrating the availability of
adequate resources. The RA would
determine whether the response
resources identified in the facility’s
response plan were adequate.
Guidelines for the determination and
demonstration of adequate response
capability are discussed in detail in
Section HLF of this preamble.
2. Owner or Operator Participation in
RA Determination
EPA considered several options for
allowing the owner or operator to
participate in the RA’s determination
process. Under one option, the Agency
would allow an owner or operator to
appeal the M’s determination that a
facility poses a threat of “substantial
Lharm” or “significant and substantial
!mrm.” Under this option, the Agency
would use the procedures described in
§ 112.4(f) of the existing regulation, The
appeal would have to be made to the
EPA Administrator In writing within 30
days of notification by the RA that the
facility could cause “substantial harm”
or “significant and substantial harm” to
the environment. The appeal would
have to contain a clear and concise
statement of why the facility does not
pose a threat of “substantial harm” or
“significant and substantial hann” and
could contain other information the
owner or operator believes to be
relevant to the determination. The EPA
Administrator or his or her designee
would then render a decision on the
appeal and would notify the owner or
operator of the decision.
Under a second option, EPA would
allow no formal Agency appeals process
for determinations of “substantial
harm” or “significant and substantial
harm.” As a third option, EPA would
select an intermediate approach that
would allow the facility owner or
operator to provide information and
data and to consult with the RA about
the determination. Following this
consultation, the RA would make a final
determination on whether the facility
could cause “substantial harm” or
“significant and substantial harm” to
the environment. The Agency solicits
comment on an appeals process for
determinations of “substantial harm”
and “significant and substantial harm”
by the RA, Also, the Agency requests
comment on a process to allow an
owner or operator of a facility that could
cause “significant and substantial
harm” to appeal a decision by the RA
not to approve a facility response plan.
3. Plan Resubmiltal—Sectionhl2.20(d)
As discussed above, the RA would.
periodically review approved facility
response plans from facilities
determined to have the potential to
cause “significant and substantial
harm’ to the environment. Proposed
S 112.20(d)(1) would require the owner
or operator to resubmit the plan for
approval within 60 days of each
material change in the plan. A material
change is one that could affect the
adequacy of a facility’s response
capabilities, such as the ability to
resj)ond to a worst case discharge.
Examples of material changes include:
a significant change in facility capacity,
configuration, or type of oil handled;
changes in the capability or availability
of response contractors; and changes in
spill prevention equipment or response
procedures which may affect the
potential for a discharge to cause
“significant and substantial harm” to
the environment. In addition, CWA
section 311(j)(5)(C) requires that a
facility response plan be consistent with
the ACP. Therefore, a review of the ACP
(when It is made available and annually
thereafter) might prompt changes to the
facility response plan that could trigger
plan resubmittal (e.g., identification of
sensitive environments that could be
affected by a discharge from the
facility). Plan revisions that affect only
names or phone numbers (e.g., changes
to the emergency notification list)
would not require resubmission for
approval under proposed § 112.20(d)(2),
EPA proposes in § 112.20(d)(2).
however, that owners or operators
submit changes to the notification list to
the appropriate RA, as the revisions
occur. The Agency requests comment on
the proposed requirement to submit
changes in the call-down list to the RA.
4. Facilities Not Posing “Substantial
Harm” to the Environment—Section
112.20(e)
Facilities that are determined not to
have the potential to cause “substantial
harm” would not be required to prepare
and submit a response plan as described
In proposed § 112.20. Such facilities,
however, that have determined that the
installation of structures or equipment
listed in § 112.7(cWi) is not practicable
are required under the existing
regulation to prepare but not submit “a
strong oil spill contingency plan.” As
discussed in section V of this preamble,
EPA proposes to clarify the existing
requirement to provide “a strong oil
spill contingency plan” by referencing
the proposed response plan
requirements contained in § 112.20.
EPA proposes in § 112.20(e) to require
that owners or operators of those
regulated facilities not submitting
response plans complete and maintain
at the facility with the SPCC Plan a
certification form (see appendix C) that
indicates that the facility is determined
not to have the potential to cause
‘substantial harm” to the environment
as indicated by the “substantial harm”
flowchart published in appendix C.
B. Selection Criterw—S 112.20(f) and
Appendix C
The following paragraphs present a
discussion of the criteria that would be
used to select “substantial harm” and
“significant and substantial harm”
facilities. The criteria proposed In
§ 112.20ffl to determine facilities that
could cause “substantial harm” to the
environment include: Type of marine
transfer operation; oil storage capacity;
lack of secondary containment;
proximity to environmentally sensitive
areas; proximity to public drinking
water intakes; and spill history. For self-
selection purposes under § 112.20(a),
the “substantial harm” criteria In
proposed S 112.20(0(1) have been
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arranged in a flowchart (see appendix C
to the rule) to be used by owners and
operators in determining if they must
submit a response plan to the Agency
for their facility. The proposed
flowchart is a decision tree that
indicates the combinations of these
criteria that would lead to the
determination that a facility could cause
“substantial harm” to the environment.
Appendix C also provides additional
information in Attachment C—rn (i.e.,
distance calculations) that is used to
apply the criteria in the flowchart. EPA
recognizes that the owner or operator of
a regulated facility may determine that
a facility has the potential to cause
substantial harm to the environment
without having to assess every criterion
in the flowchart.
RAs would apply general ‘substantial
harm” factors in § 112.2o(fl(2), which
are broader than the specific criteria set
forth for owners or operators in making
their determination of a facility’s
potential to cause “substantial harm” to
the environment. In addition to the
“substantial harm” factors, Ms would
be able to consider additional factors in
making their determination of a
facility’s potential to cause “significant
and substantial harm” to the
environment, including: The age of a
facility’s tanks; proximity to navigable
waters and environmental areas of
concern; spill frequency; as well as
other facility-specific and Regional-
specific information (e.g . local impacts
on public health) The Agency requests
comment on the appropriateness and
relative importance of the following
factors in the determination of
“substantial harm” through self.
selection or RA determination.
“Substantial Harm” Criteria
Type of Transfer Operation. Because
of the complex nature of their
operations, marine transfer facilities are -
more likely to experience spill events
into navigable waters and adjoining
shorelines than other facilities, Such
facilities are immediately adjacent to
navigable waters and transfer oil on a
regular basis Moreover, transfers to or
from vessels (e.g., barges) at these
facilities often involve large quantities
of oil. As such, spills that do occur often
enter directly into navigable waters and
may involve significant quantities of oil.
Therefore, EPA proposes in
§ 112.20(f)(1)(i) that any regulated
facility that transfers oil products over
water to or from vessels, and that has a
total oil storage capacity greater than or
equal to 42,000 gallons, has the
potential to cause “substantial harm” to
the environment and must submit a
facility response plan.
Many sites at which oil Is transferred
in bulk to or from a vessel are likely to
include both transportation-related
transfer facilities regulated by the USCG
and non-transportation-related oil
storage facilities regulated by EPA. This
combination of transportation-related
and non-transportation-related facilities
will be considered a complex and will
be subject to multi-agency jurisdiction.
EPA and the USCG have coordinated to
ensure that “substantial harm” selection
criteria are similar in nature for both
agencies. This cooperation will lead to
consistency between the agencies in the
determination of “substantial harm” for
facilities that transfer oil products to or
from vessels over water. EPA and the
USCG would use similar criteria,
including transfers over water of oil to
or from a vessel to determine
“substantial harm.” Thus certain
facilities regulated by EPA (oil storage
facilities) and the tJSCG (marine transfer
facilities) would be determined to have
the potential to cause “substantial
harm” to the environment under both
EPA and USCG regulations. EPA
requests comment on the
appropriateness of this substantial harm -
criterion as it may apply to facilities that
fuel vessels.
Oil Storage Capacity. The oil storage
capacity of the facility is another factor
that would be considered in evaluating
the potential for “substantial harm”
posed by facilities. The larger the
quantity of oil present, the larger the
potential spill and the resulting
environmental impact. Large discharges
are also more likely to escape secondary
containment and may damage nearby
tanks, as occurred dunng the Ashland
Oil spill. Weakened tank integrity is of
greater concern for tanks with large
storage capacities where the resulting
forces on the tank (created by large fluid
volumes) are greater. The Agency
proposes in § 112.20(f)(1)(ii) that any
facility with a total oil storage capacity
greater than or equal to one million
gallons in combination with one of the
following four “substantial harm”
criteria would be determined under the
self-selection process to have the
potential to cause “substantial harm” to
the environment, lack of secondary
containment, proximity to
environmentally sensitive areas,
proximity to public drinking water
intakes, or spill history.
Lock of Secondary Containment The
importance of secondary containment as
a means of preventing spills from
reaching navigable waters is well
documented. In a 1989 incident in Port
Arthur, Texas, nearly 6 million gallons
of crude oil were released from a storage
tank, but none of the oil reached nearby
navigable waters because of the
presence of adequate secondary
containment. Such incidents, where the
entire amount of oil released from the
tank remains within a secondary
containment structure, are not
reportable spills under 40 CFR part 110.
Secondary containment structures.
which meet the standard of good
engineering practice for purposes of 40
CFR part 112, can take many forms
including banns, dikes, retaining walls,
curbing, culverting, gutters, or other
drainage systems. As described in
§ 112.7(e)(2)(ii), secondary containment
at bulk storage facilities must be able to
hold the entire contents of the largest
single tank plus have sufficient
freeboard to allow for precipitation.
The central role of secondary
containment as a preventive mechanism
is underscored by the existing provision
in § 112.7(d) that requires a facility
owner or operator to provide a strong oil
spill contingency plan when it is
determined that the installation of
structures or equipment to prevent
discharged oil from reaching navigable
waters is not practicable. Given the
importance of secondary containment,
the Agency proposes in
§ 112.20(f)(1)(ii)(A) that any facility with
an oil storage capacity greater than or
equal to one million gallons, which
lacks secondary containment for all
storage tanks, would be determined to
have the potential to cause “substantial
harm” to the environment.
Proximity to Environmentally
Sensitive Areas. A facility’s proximity to
environmentally sensitive areas
increases the potential for a spill to
reach and damage these areas, in the
event secondary containment measures
fail.
Therefore, such proximity is an
important consideration in the
assessment of the existence of a throat
of “substantial harm.” The Agency
proposes in § 112.20ffl(1)(ii)(B) that any
facility with an oil storage capacity
greater than or equal to one million
gallons that is located at a distance such
that a discharge could cause injury to
(e.g , damage or negatively affect
productivity or ability to propagate) an
environmentally sensitive area would be
determined to have the potential to
cause “ substantial harm” to the
environment.
EPA proposes in § 112.2 to define
“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
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8831
definition is derived from the definition
of “injury’ in the Natural Resources
Damage Assessments Final Rule at 43
CFR part 11 (51 FR 27727. August 1,
1986), which encompasses the phrases
“injury,” “destruction,” and “loss.” The
language proposed at 40 CFR 112.2
differs only in that hazardous
substances are not included in the
definition because today’s response plan
rulemaking does not address hazardous
substances The definition of”injury” is
applied by natural resource trustees to
assess the damage to natural resources
from oil spills Because natural resource
trustees have extensive experience in
evaluating the impacts of oil spills on
natural resources based on this
definition, the Agency believes that the
definition is an appropriate gauge to
assess the potential to cause substantial
harm to the environment, EPA requests
comment on the appropriateness of
defining ‘injury” in such a manner
Appendix D identifies areas that may
be considered environmentally
sensitive As discussed in section III.A
of this preamble, the owner or operator
would be required to apply the
“substantial harm” criteria in
con junction with the flowchart
contained in appendix C. For purposes
of self-selection, Attachment C—Ill to
appendix C provides formulas that
owners or operators could use to
determine appropriate distances from
the facility for environmentally
sensitive areas Owners or operators
may use an alternative formula(s) as
long as it achieves results consistent
with the purposes of this requirement
and is considered acceptable to the RA
EPA considers an acceptable alternative
formula to be one that is equivalent in
terms of reliability and analytical
soundness. As proposed at
§ 112 20(a)(3), owners or operators that
use an alternative formula would be
required to provide documentation with
the response plan cover sheet on the
reliability and analytical soundness of
the formula EPA does not anticipate
that extensive documentation will be
necessary to ass ss the appropriateness
of alternative formulas. Accordingly,
owners or operators need only provide
basic information on the origin and
nature of the formula as well as an
example of how it was used to
determine the appropriate distance for a
particular facility. Owners or operators
that use an alternative formula should
consider the formula acceptable unless
notified otherwise by the appropriate
RA.
Appendix C to this part contains
several different distance calculations
based on oil transport on different types
of media (i e , fast-moving waters, still
lakes and ponds, and land). EPA expects
that the distance calculation for a fast-
moving water body will apply to most
of the facilities that complete the
substantial harm screen. This
calculation is based on the velocity of
the water body and the time intervals
for the arrival of response resources.
The flow velocity of the water body has
a direct effect on how far the oil will
travel before response actions can be
employed to contain the release. For
moving water bodies, velocity is
determined through the use of an
equation that models the flow of water
in open channels To calculate the
velocity, owners or operators would
need to obtain information on river
characteristics from the sources listed in
Table 2 of appendix C Similarly. the
more time it takes for emergency
response personnel and equipment to
arrive on-scene and deploy containment
measures, the farther downstream the
released oil will travel from the origin
of the spill in highly populated areas,
where a significant volume of marine
traffic is present, response resources
will be able to arrive on-scene more
quickly than in remote areas. The
response times provided in Attachment
C—Ill of appendix C are consistent with
the response times guidelines of the
USCG for spill response contractors to
arrive on-scene. A three-hour time
period has been added to factor in the
deployment of equipment. Facilities
with oil storage capacities of greater
than or equal to 1 million gallons are
believed to have the potential to
discharge oil in quantities that could
cause injury to a sensitive environment
located within the downstream distance
calculated by the formula. For owners or
operators of facilities that could
discharge into a still water body. EPA
has provided an alternative formula to
determine the relevant distance In
addition, appendix C provides
information on how owners or operators
should consider overland flow in the
distance calculations EPA requests data
and comment on the appropriateness of
the distance calculations in appendix C
for inland areas. In addition, the Agency
requests comment on the
appropriateness of using specified
distances from the facility (e g., 40 miles
downstream) in the determination of
proximity to these areas.
Proximity to Public Drinking Water
Intakes A facility’s proximity to
drinking water intakes increases the
potential for a spill to reach and
contaminate or render inoperable these
intakes. The OPA Conference Report
states that the criteria developed to
determine “substantial harm” and
“significant and substantial harm”
facilities should include location of
potable water supplies (see H.R. Rep.
No. 101—653, 101st Cong. 2d Sess 1991
at p. 150) Therefore, EPA has included
proximity to drinking water intakes as 8
factor to consider in the determination
of the potential to cause “substantial
harm” to the environment.
An example of a discharge that
affected potable water suppli is is the
January 1988 spill in Florefle,
Pennsylvania, when the rupture of an
aboveground storage tank allowed
750,000 gallons of diesel oil to escape
containment, flow into a storm drain
located in an adjacent parking lot, and
subsequently reach the nearby
Monongahela River. As a result of the
spill, more than 70 communities in
three States stopped drawing water from
the river. Such an interruption of public
drinking water supplies can threaten the
health and safety of affected
communities.
The Agency proposes in
§ 112.20(fl(1)(ii)(C) that any facility with
an oil storage capacity greater than or
equal to one million gallons that is
- located such that a discharge would
shut down a public drinking water
intake would be determined to have the
potential to cause “substantial harm” to
the environment. EPA would define
public drinking water intakes as those
covered by the Safe Drinking Water Act.
The Agency solicits comment on
whether private drinking water supplies
should be included in the criteria for the
determination of “substantial harm.” As
previously discussed for
environmentally sensitive areas,
Attachment C—Ill to appendix C
provides formulas that owners or
operators could use in calculating
appropriate distances from the facility
for purposes of the assessment of the
risk of effecting public drinking water
intakes. EPA proposes that an
alternative distance formula(s)
acceptable to the RA could also be used
in this determination As discussed
above for environmentally sensitive
areas, owners or operators that use an
alternative formula would be required to
provide documentation on the
reliability and analytical soundness of
the formula.
Spili History Spill history is an
important factor to consider in the
assessment of risk to the environment
posed by a particular facility. Because
larger spills can cause greater damage to
the environment, the size of past spills
may be an indication of the potential for
a facility to cause “substantial harm” to
the environment EPA proposes in
§ 112.20(fl(1)(ii)(D) that any facility that
has a total oil storage capacity greater
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than or equal to one million gallons and
that in the past five years has had a
reportable spill greater than or equal to
10,000 gallons would be determined to
have the potential to cause “substantial
harm” to the environment. The Agency
requests comments as well as data on
the appropriateness of the use of a spill
size of 10,000 gallons for this cnterion,
as well as information on alternate spill
sizes.
Additional Criteria for Use by the
Regional Administrator in the
Determination of “Significant and
Substantial Harm”
Discussed below are factors proposed
in § 112 20(fl(3) that may be used by the
RA, in addition to those contained in
§ 112 20(fl(2), to determine whether a
facility could cause “significant and
substantial harm” to the environment
For purposes of determining
“substantial harm,” the RA would
consider whether a facility meets one of
the factors in § 112 20(0(2). Facilities
that meet one or more of the
“substantial harm” criteria, in
combination with any of the additional
factors discussed below, can present a
greater risk of harm to the environment
For purposes of making the “significant
and substantial harm” determination,
therefore, the RA would consider
whether a facility meets one or more of
the “substantial harm” factors in
combination with the following factors.
EPA solicits comment on the
appropriateness of the RA’s use of the
following factors for the determination
of “significant and substantial harm.”
Frequency of Past Spills In addition
to the size of previous spills (as
discussed under the section on
“substantial harm” criteria), the
frequency of spill events is another
important factor in assessing the
potential for causing harm to the
environment. A facility that has
experienced multiple spills in the last
five years may pose a greater risk of
experiencing a spill event in the future
than those facilities that have not had a
spill. Multiple spills in a relatively short
time period may have a cumulative
effect on the impacted environment.
Moreover, frequency of spills may be an
indication of poor operating practices or
a lack of training or prevention
measures. Examples of facilities that
have had several spills in a single year
include a facility in Baltimore,
Maryland that reported 44 separate spill
incidents from 1989 to 1990 and a
facility in Tupman, California that
reported 14 spills in 1990 ranging in
volume from 504 gallons to 3,780
gallons.
Proximity to Environmental Areas of
Concern. To assist owners or operators,
appendix D identifies areas that may be
environmentally sensitive for purposes
of the substantial harm determination
Appendix D also identifies additional
areas of concern that the RA may
consider to identify “significant and
substantial harm” facilities,
Proximity to Navigable Waters The
proximity of a facility to navigable
waters often directly influences the
probability that a discharge, which
escapes secondary containment, will
reach such waters. Often, the most
environmentally damaging spills, such
as the Ashland Oil spill, occur at
facilities whose boundaries border
navigable waters. For example, all 20
worst case spills documented in the
Technical Background Document which
supports the Phase Two rulemaking
occurred at facilities whose closest
opportunity for discharge was located
within one-half mile of navigable
waters.
Tank Age EPA has identified tank age
as an additional factor that may be
related to the potential for a facility to
cause “significant and substantial
harm” to the environment Older tanks
tend to have weakened structural
integrity, depending on the maintenance
history of the tank, increasing the risk
of a spill. American Petroleum Institute
(API) Standard 653 requires that the
internal inspection intervals of tanks
must not exceed 20 years This limit on
the inspection interval reflects the age at
which structurally related failures are
more likely to occur.
Criteria EPA Considered but is not
Proposing Natural hazards ani high-
risk environments may be other
important factors in the assessment of
the risk of a facility posing “substantial
harm” to the environment. Facilities
that are located in areas prone to natural
hazards (i.e., floods, hurricanes, and
earthquakes) may pose a greater threat
to the environment. Case studies from
the Technical Background Document
which support this proposed
rulemaking indicate that facilities
susceptible to such events are more
likely to have multiple tank failures and
may have greater spill volumes than
comparable facilities located outside
these areas. For example, in November
1990, heavy rains and flooding washed
away two aboveground storage tanks at
a facility in Alaska and caused a 16,000
gallon spill into Diomede Harbor.
Examples of large spills that involve
facilities located in hurricane zones are
well documented. Most recently, on
September 17, 1989, Hurricane Hugo
destroyed five 4.2 million gallon oil
storage tanks on the south coast of St.
Croix, U.S Virgin Islands Over 420,000
gallons of crude and No 6 oil were
discharged from the damaged tanks,
with 42,000 gallons of oil reaching the
waters of Limetree Bay.
In addition to risks posed by natural
hazards, proximity to high-risk
environments may be another important
factor to consider in assessing the
potential for a facility to cause harm to
the environment Karst and unstable
terrains and areas with ground water
concerns (e.g.. recharge zones) are
examples of such high-risk
environments that may deserve
consideration For example, a tank
located on unstable terrain, such as a
sink hole could fail, releasing its
contents to the ground water, if the
substrate providing a foundation for the
tank were to shift suddenly by a
significant amount. For tanks located
near certain ground water zones that
have a direct connection to surface
waters, discharges that enter the ground
water have the potential to reach surface
waters.
EPA does not have sufficient data
available in a form that will substantiate
including natural hazards and high-risk
environments among the criteria for
“substantial harm” determination and is
therefore not proposing them in today’s
rulemaking. The Agency requests
comment and supporting data on
natural hazard factors and high-risk
environments as indicators for
“substantial harm” determination.
The Agency also considered
proximity to cooling water intakes for
electric utilities (including nuclear
power plants), as a risk factor for use in
the determination of the threat of
“substantial harm.” Utilities need
substantial lead time in the event of a
spill to shut down operations or
implement alternative cooling
mechanisms. Failure to shut down
operations prior to contamination could
lead to significant public health risks.
EPA requests comments and supporting
data on whether cooling water intakes
or other intakes, such as those for
commercial process water or irrigation
water should be considered in the
assessment of the potential for a facility
to cause “substantial harm” to the
environment. In addition, EPA solicits
comment on other criteria, such as the
type of product stored, throughput, and
number and size of transfer operations,
that should be included in the self-
selection process or that the RA should
consider in making determinations of
“substantial harm” and “significant and
substantial harm” for specific facilities.
The Agency requests comment on
whether more specific criteria should be
used by the RA to identify those
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8833
facilities that could cause significant
and substantial harm to the
environment
C. Envimnmentally Sensitive Areas—
Appendix D
Tho proposed rule provides that
facilities and RAs must consider
proximity to environmentally sensitive
areas to determine the potential for a
facility to cause “substantial harm” to
tha environment. These areas may
includr wetlands, National and State
parks, critical habitat for endangered!
threatened species, wilderness and
natural areas, marine sanctuaries,
conservation areas, preserves, wildlife
areas, scenic and wild rivers, seashore
and lakeshore recreational areas, and
critical biological resources areas, An
interagency “Sensitive Environments
Technical Workgroup” provided input
to ensure that consistent criteria were
applied in identifying areas that may be
of concern for facility-specific plans and
ACPs.
As AC? development proceeds, Area
Committees will identify and prioritize
specific locations within the boundaries
of their areas. These newly-identified
environmentally sensitive areas will
eventually be incorpo-ated into the
ACPs. Many ACPs may not be
established prior to the OPA deadline
i for response plan submission, Thus,
EPA proposes in § fl2.20(g)(2) that,
upon completion of the AC? (for the
Area in which the facility is located),
facility owners or operators must review
and, as necessary, revise their facility
response plan to incorporate
information, such as additions to the list
of sensitive areas and the designetion of
priority areas for protection as reflected
in the AC?.
In addition, the BA would have the
authority to determine, on e case-by-
case basis, additional areas that possess
ecological value (e.g., unique local areas
or habitats) The Agency requests
comment on whether additional areas
should be considered, such as shallow
aquifers used as drinking water supplies
or critical habitats closely hydrological
linked to surface water that are subject
to contamination by discharges of oil,
EPA is particularly interested in
receiving comment on whether tbe list
should include welihead protection
areas as defined in section 1428 of the
Safe Drinking Water Act.
The Agency believes that in some
areas of the country there is anecdotal
information indicating problems in
ground water caused by oil spills from
onshore facilities This could be
especially true for areas with high water
tables EPA requests that commentars
provide us examples of this type of
ground water contamination. In
addition, EPA would like commenters
to provide comments on what action, if
any, the Agency should take to address
such oil spills.
EPA has compiled information in
appendix D (Attachments 13 —i, 13—il, and
D—III) to help owners and operators
identify specific geographical areas
which may be among sensitive
environments. Attachment D—l provides
a list of the Federal agencies responsible
for management of the environmentally
sensitive areas. For more information on
the various types of areas listed
(including snaps), owners or operators
can contact the responsible agency.
Attachments D—lT and 13— r n would help
owners and operators identify sensitive
environments by providing information
on designated critical habitats for
National Marine Fisheries Service
species and marine sanctuary and
estuarine reserves and also may be
useful to owners and operators in
preparing response plans if they are
required.
In addition, EPA has included in
appendix D other reference information
on sensitive environments that may be
useful to facility owners or operators
during plan preparation. Specifically,
attachments D-IV and 13—V are intended
to help owners end operators prioritize
sensitive areas according to their
vulnerability to damage from oil spills
for purposes of planning the
deployment of response resources.
EPA recognizes that those areas
defined as environmentally sensitive
will change as the various Federal and
State agencies responsible for
designating the areas periodically
update their lists. Owners and operators
are expected to ensure that facility
response plans reflect the listings of
sensitive environments published to a
point in time 6 months prior to plan
submission For example, plans
submitted to meet the February 18,
1993, deadline would need to consider
sensitive environments designated by
the responsible agencies (see
Attachment 0—I of appendix 0) as of
August 18, 1992 A 6-month cutoff point
for considering environmentally
sensitive areas would also apply in
situations whara plans are periodically
updated or resubmitted br approval of
a material change. Six months is
believed to be a reasonable period to
incorporate new information on
sensitive environments and is consistent
with other time frames related to the
submission of materials to EPA under
the Oil Pollution Prevention regulation.
The Agency requests comments on the
appropriateness of a 6-month cutoff
point for the consideration of sensitive
environments.
D. Definition of Worst Case Discharge —
Appendix Ł
OPA section 4202 (a) requires that the
President issue regulations providing
that owners and operators of tank
vessels, offshore facilities, and certain
onshore facilities prepare and submit
response plans for responding, to the
maximum extend practicable, to a worst
case discharge of oil or a hazardous
substance. Today’s proposal would
identify the onshore, riontransportation-
related facilities that would be sub)ect to
this requirement, as described in section
I.B of this preamble.
OPA section 4201(b) defines “worst
case discharge” as’ (1) In the case of a
vessel, a discharge iii adverse weather
conditions of its entire cargo. end (2) in
the case of an onshore or offshore
facility, the largest foreseeable discharge
in adverse weather conditions The OPA
Conference Report (H.R. Rep. No 101—
653, 101st Cong., 2d Seas. 1991) states
that, in the case of facilities, a more
general definition of worst case is used
because it is difficult to describe the
entire capacity of some fixed facilities,
such as pipelines. According to the
Conference Report, Congress intends
facility owners or operators to prepare
plans for responding to discharges that
are worse than either the largest spilt to
date at the facility or the maximum
probable spill for that facility type
Options for Regulatory Definition
In § 1121, EPA proposes a regulatory
definition of worst case discharge for
onshore facilities Specifying the
definition is important because to
prepare a response plan for a worst case
discharge, a facility owner or operator
must determine a planning quantity that
corresponds to the amount of oil that
could be discharged under worst case
circumstancas. The facility’s worst case
discharge volume will significantly
affect the resources nocessary to
implement the plan.
EPA considered three options for
defining worst case discharge: (1) A
discharge equal in amount to the
aboveground stcrage capacity of the
entire site or installation; (2) a discharge
equal in amount to 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
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8834 Federal Register I Vol. 58,No . 30 / Wednesday, February 17, 1993 / Proposed Rules
subdivisions,’ whichever is greater; and
(3) a discharge equal iii amount to 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 several parameters, including
the adequacy of secondary containment
and proximity to navigable waters.
EPA proposes Option 3 to determine
a facility’s worst case discharge for
response planning Option 3 would
allow the definition of worst case
discharge to reflect differences among
facilities based on location and the
presence of secondary containment. The
Agency concludes that these factors best
reflect the flexibility represented by the
definition of a worst case discharge for
a facility (1 e , the lergest foreseeable
discharge irs adverse weather
conditions), and best reconcile the
differences between worst case
discharges for vessels and facilities The
definition reflects the fact that a facility
with adequate secondary containment,
as defined in existing § 112.7(e)(2)(ii), is
not likely to discharge its entire capacity
in adverse weather conditions, as
opposed to a vessel which may lose its
entire cargo since there is little to
prevent all of the released oil from a
vessel froni directly entering the water
Finally, this option is consistent with
the intent of the OPA The legislative
history of the OPA states that the worst
case discharge for a facility should
describe a discharge ‘that is worse than
either the largest spill to date or the
maximum probable spill for that facility
type “ See H R Rep No 101—653, 101st
Cong 2d Sess, 1991 at p. 147).
The Agency proposes in § 112.2 to
define “adverse weather” as the weather
conditions that make it difficult for
response equipment and personnel to
cleanup or remove spilled oil. These
conditions include significant wave
height, ice, extreme temperatures,
weather-related reduced visibility, and
fast currents EPA has included
guidelines in appendix F (see Table I of
appendix F) to the rule to assist owners
or operators in evaluating the
operability of response equipment Ci e.,
I Tanks that are pennanersily manifolded together
are defined as tanks that are designed, installed.
and/or operated in such a manner that the multipie
tanks function as one storage unit As such failure
of a single tank in the system could lead to the
release of the capacity of more than a single
interconnected tank Tanks permanently
manilolded logehier within a common secondary
containment area are considered tobe single tanks
for purposes of this calculation. ii each tank is
separated by iniemal dividing structures
oil recovery devices and boom) for
various sea states and wave heights.
AcPs also may contain information
concerning other conditions in the area
that are significant factors in evaluating
the operability of equipment.
Although Option 1, which defines a
worst case discharge as a discharge
equal to the total aboveground storage
capacity at the site, is comparable to the
definition of worst case specified in the
OPA for vessels (i a., the entire cargo),
there are no documented spills of the
entire capacity of a multi-tank facility
with secondary containment into
navigable waters.
For purposes of this determination,
Option 2 would define the worst case
discharge as an amount equal to 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. For many regulated facilities
(those with only one tank), the option is
identical to Options I and 3. Evidence
from case studies, however, suggests
that spills caused by flooding,
hurricanes, and earthquakes at multi-
tank sites may involve discharges of oil
greater than the capacity of the single
largest tank, spills caused by natural
disasters often involve releases of oil
from more than one tank. Although the
planning quantity for worst case
discharge could be described by the
combined capacity of a group of
aboveground tanks permanently
manifolded together within a common
secondary containment area lacking
internal subdivisions, EPA recognizes
that a multiple tank failure may involve
tanks from distinct secondary
containment systems, end the definition
described above is merely a planning
quantity
Worst Case Discharge Calculation
Worksheets
Under proposed Option 3, facility
owners or operators would calculate the
worst case discharge volume for their
facilities, USi rig worksheets developed
by EPA This approach is consistent
with the concept in the OPA Conference
Report that planning for a worst case
discharge involves a facility-specific
determination. These proposed
worksheets are provided in appendix E
of 40 CFR part 112. Part A of appendix
E contains the worst case discharge
calculation for storage facilities. A
separate worksheet has been developed
for production facilities (part B of
appendix E), because of the added
concerns associated with production
volumes at such facilities. Unlike
storage facilities, which handle a set
amount of oil, production facilities must!
consider throughput and the potential
for oil contained in the underground
natural reservoir to escape containment
during extraction operations. EPA
proposes in § 112 20(h)(5)(i)(A) that if
the RA determines that the worst case
discharge volume calculated by a
facility is not appropriate or that the
parameters in the worksheet are not
appropriate for a particular type of
facility, the RA may specify the worst
case discharge amount to be used for
response planning at that facility The
RA could make such a case-by-case
determination during the review of
response plans prepared by facilities.
In the event the RA finds it necessary
to determine the worst case discharge
volume, the RA will consider the same
factors addressed by the worksheet (i.e,
secondary containment and proximity
to navigable waters), in the specific
context of the facility in question as
well as other facility-specific
circumstances that may be relevant to
the calculation. An example of how the
RA might tailor the criteria to the
specific circumstances at a facility
involves a regulated facility with
underground storage tanks Completely
burted storage tanks, such as those at
service stations, may have the potential
to cause spills to surface waters when
tanks are overfilled. The RA would
consider the quantity of product stored,
as well as the proximity to surface
waters in arriving at a worst case
discharge volume.
For owners and operators of storage
facilities with a single aboveground
tank, the worst case discharge volume
would be the entire storage capacity of
the tank To assist owners and operators
of other onshore storage facilities and
production facilities in calculating a
worst case discharge volume, the
worksheets integrate the use of
secondary containment and proximity
to navigable waters For production
facilities, the presence of storage tanks
and the production volume for
exploratory wells and production wells
must also be considered in the
calculation. The worst case scenario is
influenced by the extent of spill
prevention and containment measures
in place A spill et a facility with
secondary containment structures may
have negligible environmental impact,
while a comparable spill at a facility
without such structures may result in
the entire capacity of the facility
reaching navigable waters. The presence
of secondary containment at a facility,
therefore, influences the final calculated
worst case discharge volume. Proximity
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8835
to navigable waters is also an important
factor in the assessment of the worst
case discharge volume Based on the
goals of the OPA and the Oil Pollution
Prevention regulation, the definition of
what constitutes a worst case spill is
directly influenced by the potential for
the spill to reach navigable waters,
To complete the worksheets in
appendix E for production facilities and
multiple tank storage facilities, owners
or operators would first determine
whether secondary containment, as
described in § 1127 of the existing
regulation, is present for each storage
tank or group of tanks at the facility. If
such secondary containment is not
present, a final worst case discharge
volume is calculated based in part on
the total aboveground storage capacity
without secondary containment (for
storage facilities) or total aboveground
storage capacity without secondary
containment plus the production
volume of the well with the highest
output at the facility 2 (for production
facilities). If secondary containment is
present for some tanks, the owner or
operator calculates a potential worst
case volume based on whether the
facility is adjacent to navigable waters.
If the facility is not adjacent to navigable
waters, the worst case discharge amount
is 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 for
any tanks without secondary
containment. For purposes of this
calculation, tanks within a common
secondary containment area that have
adequate internal subdivisions are
considered single tanks whose capacity
would not be combined. If the facility is
adjacent to navigable waters the worst
case discharge amount is adjusted
upwards by a factor of 10 percent of the
capacity of tanks with secondary
containment EPA solicits comment on
the overall approach and specific factors
in the proposed worksheets in appendix
E.
As discussed above, tanks that are
permanently manifolded together are
tanks with common piping that are
designed, installed, and/or operated as a
single storage unit. Because the
potential discharge amount is greater for
a system of tanks permanently
As defined, onshore oil production facilities
nay include all wells, flowlines, separation
xluipment, storage facilities. gathoring lines, and
auxiliary non.transporiation related oqulpment and
Facilities in a single 8asgraphical oil or gas operated
by a single operator
mani folded together, EPA proposes that
the worst case discharge planning
amount be increased to reflect the
combined capacity of all tanks in the
system. EPA recognizes that certain tank
systems where tanks are connected by
piping may not be operated as a single
unit. Owners or operators of facilities
with tanks that are connected by
common piping or piping systems that
can demonstrate to EPA that the system
does not operate as a single unit would
not have to plan for the combined
capacity of all tanks in the system but
the capacity of the single largest tank.
EPA proposes to require that such
evidence be provided to the RA in the
model response plan under the
discussion of worst case discharge in
the discharge scenarios section.
EPA requests comment on allowing a
reduction in the worst case discharge
planning amount from 100 percent (110
percent for facilities adjacent to
navigable waters) of the capacity of the
largest single tank or group of tanks
down to 50 percent for facilities with
adequate secondary containment in
place for oil storage containers. 3 The
Agency also requests comment on the
appropriateness of further rec uctions in
the worst case discharge volume (i.e., up
to 100 percent) for facilities with
adequate secondary containment for all
storage containers. Under this approach,
the presence of secondary containment
would allow the owner or operator to
reduce the worst case discharge
planning amount and the corresponding
amount of response resources. EPA
specifically solicits comment on the
implication for response capability of a
reduction in the worst case discharge
planning amount and data on the
potential cost savings associated with
any such reductions in planning
quantity.
As proposed in appendix E, the
production volume for each production
well (producing by pumping) would be
determined from the pumping rate of
the well multiplied by 1.5 times the
number of days the facility is
unattended. For each exploratory well
(and production well producing under
pressure) 10,000 feet deep or less, the
production volume refers to the
maximum 30-day forecasted well rate
For each exploratory well (and
production well producing under
pressure) deeper than 10,000 feet, the
production volume refers to the
maximum 45-day forecasted well rate
EPA specifically requests comment and
3 Only tanks with secondary conta Inment would
be eligible for this reduction, for tanks without
secondary containment, the entire capacity of the
tanks would be included in the worst case
discharge amount
data on the appropriateness of using a
30-day forecasted well rate (for wells
less than or equal to 10000 feet deep)
or 45-day forecasted well rate (for wells
greater than 10,000 feet deep) as
production volumes in the calculation
of the worst case discharge amount at
facilities with exploratory wells and
production wells producing under
pressure.
EPA realizes that under the proposed
self-selection process, smaller facilities,
including many small production
facilities are unlikely to screen as
having the potential to cause
“substantial harm” to the environment.
RAs, however, may determine that any
regulated facility, regardless of its
storage capacity could cause substantial
harm to the environment Thus, the
worksheets for production facilities may
be necessary under circumstances in
which the RA selects, for example. a
production facility storing relatively
small amounts of oil, a manne transfer
facility with less than 42,000 gallons, or
a facility with a storage capacity of less
than 1 million gallons. -
Worst Case Discharge Calculation for
Complexes
As discussed in section lll.B of this
preamble, a complex is a facility that
has both transportation-related and non-
transportation-related components and
is therefore subject to the response plan
requirements of more than one
authority Each component of a complex
would have an associated worst case
discharge amount. The Agency expects,
however, that the likelihood of each
component experiencing a worst case
discharge simultaneously is small EPA
proposes in § 1 ’12.20(h)(5)(i)(C) that a
worst case discharge volume at a
complex be the larger of the amounts
calculated pursuant to the respective
regulations that appiy for each
component of the facility. The Agency
requests comment on the
appropriateness of this method in the
determination of a worst case discharge
for a complex
E Tiered Response Planning
The Agency proposes in § 112 20(h)(5)
that facility owners and operators
prepare plans for responding to lesser
discharges, as appropriate, in addition
to a worst case discharge as required by
the OPA. This tiered response planning
by facilities that are determined to have
the potential to cause “substantial
harm” to the environment will help
ensure protection of public health and
welfare and the environment by
facilitating effective response to
discharges to navigable waters or
adjoining shorelines Proposal of a
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tiered planning approach is consistent
with other agencies (such as the
USCG’s) implementation of OPA
response planning requirements
EPA considered proposing that
owners or operators prepare response
plans for responding to worst case
discharges only. The Agency concluded
that a plan only for a response to a worst
case discharge would not necessarily be
effective in a response to a lesser
discharge and that lesser discharges may
pose a serious threat to navigable
waters, especially from the cumulative
effects of several discharges Over 70
percent of all spills reported to the
Federal government in 1989 and 1990
(approximately 48,000 incident reports
were received by the National Response
Center during that time) were less than
100 gallons and over 90 percent were
less than 1,000 gallons. Preparing for an
appropriate response to such smaller
spills could lead to better overall
protection of the nations navigable
waters. In addition, various sizes of
discharges could require different types
and amounts of equipment. products.
and personnel. Planning for various
levels of spills would allow facility
owners or operators to begin to respond
to any size discharge prior to the arrival
of personnel and resources under
contract with the facility and would
provide insight into the most likely spill
situations and should reveal many
potential problems that could surface
during actual discharges. Planning for
these problems would enable facility or
contractor response personnel to
respond quickly and appropriately to a
range of spill events.
The Agency recognizes that this tiered
planning approach may not be
appropriate for all facilities, including
those where the range of possible spill
scenarios is small. For example.
responding to a worst case discharge at
a small, one-tank facility (release of
entire capacity of the tank) may be
similar in approach to responding to a
lesser spill (release of a portion of the
capacity of the tank) at that facility.
These responses would not require a
significantly different response strategy
or level of response resources Owners
and operators of Large, multi.tank
storage and production facilities,
however, are among those who would
be required to plan for spill events of
different sizes, because the range of spill
scenarios could very greatly at such
faciliti. s For example, although small
spills could be handled by company
response personnel, large spills may
require the resources of outside parties.
The Agency examined several options
for the determination of these additional
planning quantities. One approach
would be to use facility.speciflc
planning quantities by basing the
amount on actual operations and spill
history at a facility Although this
option would account for the
tremendous diversity of regulated
facilities, it cannot be applied in a
simple manner by owners and
operators. A second option would be to
establish standard amounts for the
entire regulated community. A third
option, which EPA proposes today in
§ 112.20(h)(5), would establish limited
ranges for alternate discharge amounts.
Although large facilities would still
need to plan for three discharge
amounts under this method, 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
ranges
In addition to planning for a worst
case discharge, under proposed
§ 112.20, facility owners and operators
would be required to plan for (1) a small
spill, defined as any spill volume less
than or equal to 2,100 gallons, but not
to exceed the calculated worst case
discharge, 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, but not to
exceed the worst case discharge. For
facilities whose worst case discharge is
a medium spill, the owner or operator
would plan for two amounts, a worst
case spill and a small spill. Similarly.
for facilities whose worst case discharge
is a smell spill, the owner or operator
would plan only for a worst case
discharge
EPA realizes that under the proposed
self.selection process, smaller facilities
are unlikely to qualify as having the
potential to cause “substantial harm” to
the environment. RAs, however. may
determine that any regulated facility,
regardless of its storage capacity and
number of tanks, could cause
“substantial harm” to the environment.
Thus, the collapsing nature of the
proposed tiered planning approach may
be relevant under circumstances in
which the RA selects a facility storing
relatively small amounts of oil (i a.. less
than 36,000 gallons).
For complexes (i.e., facikties
regulated by both EPA end USCG). the
owner or operator would first determine
a medium planning quantity for the
transportation-related and non.
transportation-related components at
the facility. The owner or operator
would then compare the medium
planning amounts for each component
of the facility. Following this
comparison, the owner or operator
would select the larger of the quantities
as the medium tiered planning amount
for the overall facility.
The ranges for these alternate
planning quantities were determined
through a statistical analysis of spills
reported to the Emergency Response
Notification System (ERNS) data base. A
discharge of 1,300 gallons is the average
reported discharge in ERNS For a small
spill. an amount up to 2,100 gallons is
believed to represent a realistic
planning quantity that will allow
owners or operators to prepare for
operational-type spills that occur
relatively frequently. Selection of 36,000
gallons was based on the 99.5th
quantile This means that 99 5 percent
of future spills are expected to be less
than approximately 36.000 gallons. To
provide greater flexibility in
establishing a medium planning
amount, EPA proposes in
§ 112.20(h)(5)(i) to allow owners or
operators to plan for 36,000 gallons or
10 percent of the capacity of the largest
tank at the facility, whichever is less.
Planning for a spill of this size
represents a practical and realistic
intermediary planning level. The
Agency solicits comment on the
selection of these standard planning
amounts, including information on
other methods to identify standard
amounts, such as being planning
quantities on the definition of minor,
medium, and major discharges in 40
CFR part 300 Under the NCP a minor
oil discharge means a discharge to the
inland waters of less than 1,000 gallons
or a discharge to coastal waters of less
than 10,000 gallons; a medium oil
discharge means a discharge to the
inland waters of 1,000 to 10.000 gallons
or a discharge to coastal waters of
10,000 to 100,000 gallons, and a major
oil discharge means a discharge to the
inland waters of 10,000 to 100,000
gallons or a discharge to coastal waters
of more than 100,000 gallons. To the
extent that response resources are
currently geared to spills of these sizes,
such ranges may be appropriate for
establishing tiered planning amounts
Also, EPA requests comments on the
option of using facility-specific
planning cjuantities as well as
information from other options in the
determination of these alternate
amounts.
F The Determination and
Demonstration of Adequate Response
Capability
I The Determination of Response
Resources—Appendix F
To ensure the availability of private
personnel and equipment necessary to
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8837
respond, to the maximum extent
practicable, to a worst case discharge,
contracts or other approved means (as
proposed in § 112.2 of today’s proposed
rule) may include:
• A written contractual agreement
with a response contractor. The
agreement must identify and ensure the
availability of the necessary personnel
or equipment within appropriate
response times;
• Certification that the necessary
personnel and equipment resources.
owned and operated by the facility
owner or operator, are available to
respond to a discharge within
appropriate response times;
• Active membership 4 in a local or
regional oil spill removal organization,
which has identified and ensures
adequate access through membership to
necessary personnel and equipment
within appropriate response times in
the specified geographic areas; or
• Other specific arrangements
approved by the RA upon request of the
owner or operator.
In appendix F to the rule, EPA
provides guidelines for the types and
amounts of equipment and response
times that are needed to respond to spill
ofa given size. Similar guidelines were
originally developed by the USCG for
vessel response plans and facility
response plans for marine
transportation-related onshore facilities.
EPA has adapted the USCG’s proposed
guidelines for use by non-
transportation-related onshore facilities
(1 e., facilities regulated by 40 CFR part
112) in complying with the OPA
requirement to identify and ensure
adequate resources. The guidelines
describe procedures for determining the
‘maximum extent practicable” quantity
of resources and response times for
responding to a worst case discharge
and other discharges, as appropriate.
These procedures identify practical and
technical limits on response capabilities
that an individual facility owner or
operator can contract for in advance and
on response times for resources to arrive
on scene. The guidelines are intended to
assist owners or operators of facilities in
preparing response plans and EPA in
reviewing plans. The Agency requests
comment on the procedures contained
in appendix F of the rule for the
determination and evaluation of
required response resources. In
addition, EPA solicits comment on
whether the guidelines are appropriate
for planning for inland spills by
Membership in a spill response cooperation
must ensure ready access to the organization’s
response resources for the arrangement to be
acceptable to the RA for the purposes of this
regulation
facilities regulated by the Oil Pollution
Prevention regulation.
EPA proposes at § 112.2 a definition
of “maximum extent practicable” to
mean 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. EPA interprets the
phrase “to the maximum extent
practicable” to include considerations
such as the technological limitations
associated with oil discharge removal
(a g., boom effectiveness and equipment
recovery rates in adverse weather), and
the practical and technical limits of
response capabilities of individual
owners or operators. This interpretation
is consistent with the OPA Conference
Report (H.R Rep. No 101—653, 101st
Cong., 2d Sess. 1991 at p. 150). To
address these limitations, the guidelines
in appendix F establish operability
criteria for oil recovery devices and
boom as well as caps on response
resources that facility owners or
operators should identify and ensure as
being available, through contract or
other approved means. The caps reflect
an estimate of the response capability at
a given facility that is considered a
practical nationwide target tobe met by
1993 Recognizing that the OPA
Conference Report suggests a significant
increase in commercial removal
resources may be needed in most areas
of the country to comply with the
national planning and response system,
EPA is soliciting comment on the
anticipated effects this provision may
have on the oil spill response industry.
2. Verification of Response Capability
As previously discussed, plan drafters
would need to identify and verify
response resources when preparing
plans. EPA would evaluate such
arrangements during the plan review
stage, to ensure the contractual
availability of equipment and personnel
from contractors identified in response
plans to provide response resources
This process would require that
evidence of contracts or agreements
with response contractors be included
in the response plan so that the
availability of resources can be verified
during plan review Agency reviewing
officials may need to take additional
steps to determine that contractors or
cooperatives do possess, and maintain
in a ready condition, the necessary
response inventory to handle the size of
spills for which they contract
One option to provide review officials
with more information would be to
establish a contractor certification or
approval program. The State of
Washington has instituted a contractor
certification program and the USCG is
considering the development of
contractor approval procedures for spill
response contractors under a separate
rulemaking. Among the relevant factors
in the assessment of contractor
arrangements might be proximity to the
facility as it effects response times, the
adequacy of equipment and personnel
resources, the contractor’s past
performance and safety record, and the
number of additional facilities the
contractor has agreed to support. The
Agency requests comment on the
criteria for evaluating contractor
agreements, a mechanism for approving
response contractors, and the
advisability of establishing a response
contractor approval process.
C Response Plan Elements—
§S 112 20(g) and (h), and Appendix C
The elements for response planning
proposed in § 112.20 of this nile are
designed to guide a facility owner or
operator in gathering the information
needed to write a response plan for the
facility’s worst case discharge and, as
described in section IILE of this
preamble, for discharges smaller than a
worst case discharge. The proposed
response plan elements address
requirements under CWA section
311(j)(5) (as amended by the OPA). as
well as additional elements that EPA
has determined are necessary to ensure
the integrity of the response plan The
OPA Conference Report suggests that
facility response plans should be
consistent with but not duplicative of
plans prepared under other Federal
programs, and EPA encourages owners
or operators to incorporate into the
response plan information required by
other Federal programs. Some of these
programs are discussed in Section IV of
this preamble. Owners or operators need
not prepare a separate plan to comply
with the Oil Pollution Prevention
regulation if they have already prepared
a plan for the State in which the facility
is located, provided that the State plan
addresses the requirements and
includes all the elements described in
§ 112 20(h) and is cross-referenced
appropriately. Proposed § 112.20(h)
would require that response plans
contain an emergency response action
plan to be kept at the front of the
response plan binder or under a
separate cover that accompanies the
overall plan.
EPA considered a requirement for
certification by a Registered Professional
Engineer for certain portions of the
response plan, such as determination of
worst case discharge, and solicits
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Federal Register / Vol 58. No. 30 / Wednesday, February 17, 19 3 I Proposed Rules
comment on this option The contents of
a response plan would be subject to
review during routine inspections by
On-Scene Coordinators (OSCs) or during
State inspections. In addition, the RA
would review the contents of response
plans from facilities identified as posing
a threat of “significant and substantial
harm,’ before granting approval EPA
solicits comment on which professions
may be suitable for evaluating and
certifying the contents of the response
plan if EPA determines a certification
requirement is appropriate. in
particular, the Agency requests
comment on the suitability of Certi lied
Hazardous Materials Managers to
perform the plan certification function
in accordance with CWA section
331(j)(5), proposed § 112 20(g) would
require that a facility response plan be
consistent with the NCP and with ACPs
described in section IV of this preamble
For example. the OPA requires
amendments to the NCP that establish
procedures and standards for removing
a worst case discharge of oil and for
mitigating or preventing a substantial
threat of such a discharge Also, the
OPA requires the preparation of ACPs
designed to augment the capabilities for
responding to worst case discharges
when implemented in conjunction with
the NCP The discussion of worst case
discharge in a facility response plan
should be consistent with the
procedures and standards laid out under
these broader plans To ensure such
consistency EPA proposes in
§ 112 20(g)(2) to require that owners or
cperators, review on an annual basis
appropriate parts of the NCP (a g
subparts A through D) and, when
available, the applicable ACP and revise
the response plan as necessary. As
discussed in section Ill C of this
preamble. ACPs may not be available in
time for owners or operators to review
them before initial response plan
preparation Owners or operators are
encouraged to obtain from local or
Regional sources (e g.. Regional
Response Teams (RRTs) or OSCs) the
details of the AC? for the area in which
their facility is located, and develop
their facility response plans
accordingly. Proposed § 112 20(g) also
states that facility owners or operators
should coordinate with the local
emergency planning committee (LEPC)
and State emergency response
commission (SERC) when developing
their facility response plans to ensure
consistency with the local emergency
response plan required under section
303 of title Ill of the Superfund
Amendments and Reauthorization Act
of 1986 (SARA Title iii).
Model Response Plans
Today. EPA includes in appendix C to
the rule a model response plan to assist
owners and operators in addressing the
required elements outlined in proposed
§ 112.20(h). The organization of the
model plan and the information to be
contained in it are representative of the
format and level of detail needed to
address the required response plan
elements in an acceptable manner A
response plan, as shown in appendix C.
would be required for facilities that are
determined to have the potential to
cause “substantial harm” to the
environment EPA recognizes that, in
certain cases, information required in
the model response plan is similar to
information currently maintained in the
facility’s SPCC Plan. In these cases,
owners or operators can simply
reproduce the information and include
a copy in the response plan
As discussed in section II I A of this
preamble, EPA proposes in
§ 112 20(a)(2)U)—(iv) to require that all
facilities submitting a response plan
must complete and return to EPA a
Response Plan Cover Sheet with the
response plan The cover sheet is
intended to provide the Agency with
basic information concerning the facility
and would be used by Regions to check
the “substantial harm” self-
determination process. A copy of the
cover sheet is included as Attachment
C—lI of appendix C along with
instructions for completion of the form
The cover sheet provides space for’
Basic facility information, responses to
the “substantial harm’ flowchart
contained in appendix C, worst case
discharge amount, additional facility
characteristics li.e , latitude and
longitude, and proximity to navigable
waters), and certification.
A blank copy of a model response
plan is included as appendix G of 40
CFR part 112 Affected facilities (those
that could cause “substantial harm”)
would prepare (1) a response plan that
meets the requirements of 5 112.20(g)
and (h) as reflected in the model
response plan provided in appendix C,
or (2) a comparable State or other
Federal agency response plan that is
appropriately cross-referenced and
meets the requirements of 112 20(g)
and (h) A facility response plan would
include a discussion of the following
elements
Emergency Response Action Plan—
§ 112 20(hfll) In order to facilitate
response actions. EPA proposes that
facility owners or operators be required
to compile key sections of the overall
response plan into an emergency
response action plan that is maintained
in an accessible location. The sections
of the action plan maybe photocopies
or condensed versions of the forms
included in the associated sections of
the overall response plan EPA proposes
that the following information be
included in the action plan in format
specified in proposed § 112 20(h)(1)
• Emergency Response Coordinator
information—from the Facility
information Section:
• Emergency Notification Phone
List—from the Emergency Response
Section,
• Spill Response Notification Form—
from the Emergency Response Section;
• Equipment List and Location—from
the Emergency Response Section:
• Facility Response Team—from the
Emergency Response Section.
• Evacuation Plan—from the
Emergency Response Section;
• immediate Action—from the Plan
implementation Section: and
• Facility Diagram—from the
Diagrams Section.
The action plan is designed to provide
the facility owner or operator with
information on critical steps to sfabilize
the source of the spill, notify the
appropriate people, and prevent the
spread of spilled oil The action plan
would be kept in the front of the overall
facility response plan or in a separate
binder that accompanies the overaU
plan
Facility Informa tion—S I i2,20(h)(2)
The requirement in CWA section
31t (j)(5) to designate a facility
emergency response coordinator is
addressed in proposed § 112 20 (h)(2)
The facility information section of the
model response plan provides space to
identify a qualified individual having
full authority, including contracting
authority, to implement removal
actions. The Agency requests comment
on whether facility owners and
operators should be required to
designate an alternate emergency
response coordinator. This section also
provides space to include additional
facility information, much of which may
be obtained from the facility’s existing
SPCC Plan Other items include general
facility information such as the facility
name, address, telephone number,
owner and operator. and longitude and
latitude in minutes and degrees
Emergency Response—S 112 20(h)(3)
The model plan contains space in the
emergency response section to address
the CWA section 311(j)(5) requirement
that the emergency response coordinator
be able to immediately communicate
with the appropriate Federal official and
the persons providing personnel and
equipment (a g., a spill response
contractor) To facilitate compliance
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with this requirement. the section
contains space for a telephone list of
people or organizations to contact in the
event of a discharge, including the
National Response Center. the facility’s
own and/or contracted response teams,
local response teams, local hospitals,
and local radio stations (if evacuation is
necessary). Notification of the National
Response Center is required under
regulations implementing CWA section
311(b). (See 33 CF’R part 153,40 CFR
part 300, and 40 CFR 117.21 ) The
contact list should be accessible to all
facility employees to ensure that, in case
of a discharge, any employee on site
could immediately notify the
appropriate parties. A notification
checklist also is included in this section
of the model plan The checklist
outlines the information to relay to
response officials, such as information
on (he spill amount, material, impact of
the spill, and response actions.
The CWA requires that a facility
response plan describe the response
actions of persons at the facility. This
requirement is addressed in the
emergency response section of the
model plan, which provides space to
include a detailed description of the
duties of the emergency response
coordinator and other response
personnel during a response to a
discharge
Pursuant to CWA section 311(j)(5),
owners or operators must identify and
ensure by contract or other means
acceptable to EPA (e g , participation in
a spill response cooperative in lieu of an
individual contract) the availability of
private personnel and equipment
necessary to respond, to the maximum
extent practicable, to a worst case
discharge The OPA Conference Report
indicates Congress contemplated
creating a system in which private
parties supply the bulk ofequipnient
and personnel needed for response to
large oil spills See OPA Con [ erence
Report,HR. Rep No 1O1—653,1O1 t
Cong, 2d Sess 1991 at p. 148 The
model response plan provides space to
identify companies that will provide
such personnel and equipment
Evidence of contracts or agreements
with response contractors must be
included in this section so that the
availability of resources can be
identified, As discussed in Section I I I F
of this preamble, the contract or
response agreement will be subject to
review by the appropriate EPA Regional
office to ensure that the agreement
provides adequately for response,
mitigation, and prevention.
Response capability may also be
provided through the use of internal
response personnel and equipment
resources. The model plan provides
space for a list of the facility’s response
personnel and response equipment,
including its location and operational
status and the date the equipment was
last tested.
Also included in the emergency
response section of the model plan are
guidelines for preparing evacuation
plans for the facility and surrounding
community. Additional information on
the guidelines that may be helpful in the
preparation of on evacuation plan can
be obtained from the Handbook of
Chemical Hazard Analysis Procedures
prepared by EPA, DOT, and the Federal
Emergency Management Agency
(FEMA). Evacuation routes must be
shown on a diagram of the facility
Hazard Evaluation—5 I 12.20(hJ(4). A
hazard evaluation section is included in
the model response plan. Hazard
evaluation is a widely used industry
practice that allows 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 EPA, DOT, and FEMA and the
Hazardous Materials Emergency
Planning Guide (NRT—i), prepared by
the National Response Team are good
references for conducting a hazard
analysis. The hazard evaluation will
provide information for developing
discharge scenarios for a worst case
discharge and medium and small
discharges. This section of the response
plan provides space for a hazard
identification, a vulnerability analysis,
and an analysis of the potential for a
discharge This information allows the
facility owner or operator to evaluate
day’to-day operations for potential
discharges and to change standard
operating procedures if a potential for a
discharge is discovered
As part of the hazard evaluation, EPA
proposes that owners or operators
identify what the potential effects of the
discharges would be on the affected
environment To assess the range of
areas potentially affected, owners or
operators shall consider the distances
calculated in the substantial harm
determination process discussed in
section llI.B of this preamble Those
owners or operators that have made a
substantial harm determination without
performing the distance calculation
should use the appropriate formula in
appendix C or an alternative method to
quantitatively evaluate the appropriate
range of potentially affected areas
Also in the hazard evaluation section
of the model response plan, the owner
or operator would provide information
on the facility’s discharge history (ii any
have occurred) including dates, causes,
amounts discharged, and response
actions. Information collected for
purposes of meeting the existing
§ 112.4(a) requirements may be used to
document spill history in the response
plan.
Discussion of Tiered Planning
Scenarios—S I 12.20(h)(5). The
discharge scenario section provides for
discussions of specific discharge
scenarios. As discussed in section II1.E
of this preamble, EPA proposes a tiered
approach to response planning that
considers smeller, more probable
discharge quantities in addition to the
worst case discharge specified in the
OPA. Therefore, in addition to the
development of a scenano which uses
the ‘worst case discharge” amount
calculated from the worksheet in
Appendix E, the owner or operator of a
facility must plan and prepare for small
and medium discharge quantities, as
appropriate. When describing each
discharge scenario, the owner or
operator would consider facility
operations and factors that effect the
response effort, such as the potential
direction of the discharge and impact on
the surrounding area.
As discussed in section I II E of this
preamble, owners or operators of
complexes would determine planning
quantities for the transportation-related
and non-transportation-related
components of the facility. The owner
or operator would then compare the
corresponding worst case discharge and
medium planning amounts, as
appropriate, for each component of the
facility In each case, the owner or
operator would select the larger of the
two amounts as the appropriate
planning quantity.
Discharge Detection—s 112 20(h)(6)
The prompt discovery of a discharge
and the initiation of effective response
actions are critical to minimize the
damage caused by a discharge The
discharge detection section provides
space for describing the discharge
detection systems, human or automated,
in use at the facility. Often, the choice
of a human or automated system
depends on the size and complexity of
facility operations.
Plan impThmeritation—5 112 20(h)(7)
The CWA roquirement that facility
owners or operators describe response
actions to ensure the safety of the
facility and to mitigate or prevent
discharges, or substantial threats of
discharges, is proposed in
§112,20(h)(7). The plan implementation
section of the model response plan
contains space for describing such
response actions, including the steps
facility personnel would follow to
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mitigate and respond to each discharge
described in § 112 20(h)(5); the amount
of personnel and equipment that will be
needed to respond to the specific
discharge under consideration; plans to
dispose of contaminated materials,
debris, and recovered product; required
Federal or State permits (e.g.. Resource
Conservation and Recovery Act (RCRA)
permits for disposal of contaminated
materials), and measures to provide for
containment and drainage.
As discussed in section III.F of this
preamble, EPA has provided guidelines
in appendix F of the rule to establish
appropriate personnel and equipment
levels and response times for given spill
sizes. Owners and operators are
encouraged to use these guidelines to
determine the quantity of resources that
must be identified and available,
through contract or other approved
means, for responding to a worst case
discharge and other discharges.
Facility Se)f-lnspection. Training, and
Meeting Logs—S ii 2 20(h)(8) In the
model plan, the facility self-inspection,
training, and meeting logs section
provides space to include inspection
checklists for tanks, secondary
containment, and response equipment
and logs for discharge prevention
meetings Much of the recordkeeping
information contained in this section is
required by the existing Oil Pollution
Prevention regulation. Therefore,
portions of the self-inspection, training.
and meeting logs section may be
completed by compiling information
from other parts of existing SPCC Plan.
Moreover, information collected for
purposes of meeting § 112.4(a)
requirements may be used to document
spill history in the response plan.
The CWA also requires owners or
operators to describe training and
periodic unannounced drills to be
carried out under the response plan. In
the model plan, the training section
provides space to include a series of
logs for recording unannounced or
“mock alert” drills and staff training
related to emergency response. The
model response plan in appendix C
provides recommendations for planning
mock alert drills. The Agency requests
comment on how frequently such
unannounced drills should be
conducted.
Diagrams—S I 12.20(h)(9). This
section of the model response plan
describes diagrams for the site plan and
the drainage plan. Such diagrams help
facility personnel identify the nearest
opportunity for a discharge to reach
navigable waters and help responders
visualize location and layout
information so they can act promptly
during time critical situations.
Secunty—.5 112.20(h)(1O) A security
section is included in the model
response plan and provides space to
address existing Oil Pollution
Prevention provisions contained in 40
CFR 112.7, as well as several additional
items being proposed in the Phase One
rule. This section provides for a
description of the facility’s security and
should, as appropriate, include items
such as emergency cut off locations,
fencing, guards, lighting, valve and
pump locks, and pipeline connection
caps.
The Agency requests public comment
on the appropriateness and level of
detail of the information required in the
model response plan as well as other
information that may be necessary for
an effective response plan. For more
information on the organization of the
model response plan and specific
information to be included in the plan,
see the “Technical Background
Document to Support the Phase Two Oil
Pollution Prevention Rulemaking,”
available for inspection in room M2427
at the U.S. Environmental Protection
Agency. 401 M Street, SW., Washington.
DC 20460 lDocket Number SPCC—2PJ.
IV. Relationship of Facility Response
Plan Requirements to Other Programs
I USCG, Minerals Management Service
(MMS), and Other Federal Agencies
In developing this proposed rule, EPA
has coordinated with the DOT
(including the USCG) and the Minerals
Management Service (MMS) throughout
this rulemaking process to ensure that
the response plans for transportation-
related facilities and non-transportation-
related offshore facilities are consistent,
to the degree possible, with the plans for
non-transportation-related onshore
facilities required under this regulation.
This coordination should help avoid
any duplication of effort on the part of
the regulated community in complying
with these regulations. For example, a
complex described in section III.B of
this preamble as an onshore site or
installation that has both transportation-
related and non-transportation-related
components (a g , a marine transfer
facility with above ground storage
tanks), need prepare only one response
plan with separate sections addressing
each component. Separate sections may
be needed in the plan to address
different regulatory provisions or
various definitions that may apply to
the different components.
EPA would allow USCG OSCs the
opportunity to review response plans of
non-transportation-related onshore
facilities subject to 40 CFR part 112.
Specifically, a USCG OSC would be
given an opportunity to review and
comment on any submitted facility
response plan (whether transportation-
related or non-transportation-related) for
a facility geographically located within
the USCG’s area of responsibility, as the
predesignated OSC. For response
purposes, the NCP divides the United
States into inland and coastal zones.
The USCG and EPA are assigned
responsibility for predesignating OSCs
for the coastal and inland zones,
respectively. Final approval of the
response plan would remain with EPA
for facilities subject to 40 CFR part 112
Any objection to the response plan
raised by a USCG OSC would be
considered by the RA for final approval
of the plan and any issues would be
quickly resolved through interagency
discussions.
The Agency also has worked with
members olDOL, NOAA, the Fish and
Wildlife Service, and the National Park
Service to define sensitive
environments Coordination with other
departments and agencies in this area is
critical given the anticipated changes to
the NCP and the relationship of those
proposed changes to facility response
planning requirements.
2. 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 NC? 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
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 NC? is published.
as mandated under OPA section
4201(c), facility response plans should
be consistent with the current NCP,
ACPs, mandated under CWA section
311(j)(4) end prepared by Area
Committees comprised of qualified
personnel of Federal, State. and local
agencies. are required to ensure, when
implemented in conjunction with other
elements of the NC?, the removal of a
worst case discharge from a facility
operating in or near the area covered by
the plan. ACPs will cover discharges
affecting all U.S. waters and adjoining
shorelines. EPA and the USCG are
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8841
responsible for developing A Ps for the
inland and coastal zones, respectively.
Until ACPs have been developed.
facility response plans should be
consistent with existing OSC
contingency plans in the coastal zone
and Federal RCPs in the inland zone
3 RCPtA
EPA regulations in 40 CFR part 264
(Subpart D) promulgated under RCRA
establish requirements for owners and
operators of hazardous waste facilities
to use in developing facility-specific
contingency plans. The plans must
include response procedures; a list of all
persons qualified to act as a facility
emergency coordinator; a list of all
emergency equipment and, when
required, decontamination equipment at
the facility, evacuation plans, when
evacuation could he 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
re-processing and refining facilities. To
avoid duplication of effort. owners or
operators of facilities subject to the
regulations in 40 CFR parts 264 and 279
may incorporate these RCRA provisions
and the response-planning requirements
of other applicable Federal regulations,
into their facility-response plans.
4 EPCRA or SARA Title Ill
EPCRA requires LEPCs to develop
local emergency response plans for their
community and review them at least
annually Under EPCRA, facilities are
required to notify the SERC and LEPC
if they have “extremely hazardous
substances” present above threshold
planning quantities In addition, upon
request of the SERC or LEPC, the facility
is required to provide the LEPC with
any information necessary to develop
and implement the LEPC plan Because
of this requirement that certain facilities
participate in emergenry planning
under EPCRA, it is likely that some
overlap may exist with response plan
requirements outlined in today’s
p r p osa
The OPA Conference report stated
that owners or operators of facilities
subject to this regulation should ensure
that facility response plans are
consistent with plans required by other
programs See OPA Conference Report.
H.R Rep. No 101—653, 101st Cong. 2d
Sess. 1991 at p. 151 Therefore, a facility
response plan shoild be consistent with
the LEPC plan for the community in
which the facility is located. To ensure
such coordination, facility owners or
operators should review the appropriate
LEPC plan. In addition, upon request of
the LEPC or SERC, the facility should
provide a copy of the response plan to
the LEPC
5 Clean Air Act
Under section 112(r) of the Clean Air
Act (CAA), as amended, owners and
operators of facilities with “regulated
substances” above a specified threshold
quantities will be required to prepare
risk management plans (RMPs), which
must include a hazard assessment
(including, among other things, an
evaluation of worst-case accidental
releases), a prevention program, and a
response program Owners and
operators are to provide a copy of the
RMPs to the State, local planning and
response authorities, and the Chemical
Safety and Hazard Investigation Board
Section 112(r)(7)oftheCAA requires
that the hazard assessment evaluate
worst case accidental releases, estimate
potential release quantities, and
determine downwind effects including
potential exposures to effected
populations Owners or operators must
also develop an emergency response
program that includes specific actions to
be taken in response to a release
including procedures for notifying the
public and response agencies,
emergency health care, and employee
training measures EPA is currently
developing regulations to implement the
new CAA requirements, including a list
of regulated substances and threshold
quantities.
EPA anticipates that facilities affected
by both regulations can prepare one
response plan that meets the Oil
Pollution Prevention regulation
requirements for oil and the Clean Air
Act requirements for chemicals EPA
plans to develop guidance to assist
facilities in this respect and requests
comment from facilities affected by both
regulations on whether the planning
requirements can be met in a single
plan.
V. Proposed Revisions to Existing 40
CFR Part 112 Plan Requirements
EPA proposes to clarify the
requirement at § 112 7(d) for a facility
owner or operator to provide a strong oil
spill contingency plan when the
installation of appropriate containment
or thversionary structures or equipment
to prevent discharged oil from reaching
U.S waters is determined to be
impracticable. As proposed in
§ 112.7(d)(1), reference to a strong oil
spill contingency plan is replaced with
reference to the facility response plan as
described in proposed §11220 A
response plan prepared under such
circumstances need not be submitted to
the RA unless otherwise required by the
rest of today’s proposed rule, but, would
be maintained at the facility with the
SPCC Plan. No change is proposed to
the circumstances that trigger the
requirement to provide such a plan
The Agency proposes several
additional regulatory changes
recommended in the May 13, 1988,
report by the interagency SPCC Task
Force formed in response to the
Ashland Oil spill and a subsequent
report by the General Accounting Office
(GAO) entitled “Inland Oil Spills”
(GAO/RCED—89--65). These proposed
changes include requiring the SPCC
Plan to address training and methods of
ensuring against brittle fracture In
addition, the Agency proposes revisions
to (1) Give RAs authority to require
amendment, modification, and
submission of a Plan when it does not
meet the requirements of 40 CFR part
112. (2) give RAs authority to require
preparation of Plans by owners or
operators of previously exempted
facilities when necessary to achieve the
goals of the CWA, and (3) require
submission of the Plan when an owner
or operator invokes a waiver to certain
technical requirements of this
regulation The proposed revisions
would apply to all regulated facilities
unless otherwise noted, not just those
facilities that are subject to the proposed
response plan requirements under new
CWA section 311(j)(5) (i e., “substantial
harm” facilities).
For more information on the basis for
the proposed regulatory changes
discussed below, see the “Technical
Background Document to Support the
Phase Two Oil Pollution Prevention
Rulemaking,” available for inspection in
room M2427 at the U S Environmental
Protection Agency, 401 M Street, SW..
Washington, DC 20460 [ Docket Number
SPCC—2P)
A Prevention Training
Data from ERNS indicate that a
significant number of oil discharges are
caused by operator error In 1989, ERNS
spill report data show that human error
was the cause of 123 percent of all
spills at fixed facilities Operator error
can take many forms. One of the most
common operating errors is failure to
close valves, which can lead to large
spills when oil products are
subsequently transferred in bulk. For
example, in 1988, over 336,000 gallons
of oil were released as a result of a valve
that was left open by a facility worker
at Sri Ashland Chemical Company
facility in Arkansas Pass, Texas.
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Overfilhing due to operator error during
transfers is another common cause of
spills The overfllhng of a tank at the
Colonial Pipeline facility in Greensboro,
GA in 1989 resulted in an oil release of
2]0,000 gallons.
EPA believes that operator error is
more likely to be a factor in causing
spills where operations regularly
involve transfers of oil products (e g
filling of tanks and related equipment.
and loading and unloading of vehicles,
tank cars, and vessels to or from tanks)
Incidents that involve operator error
where large quantities of oil products
are transferred can lead to greater
amounts of oil being released to
navigable waters
Proper training of employees involved
with transfer operations at oil storage
and handling facilities can reduce the
occurrence of operator-related spills and
reduce the severity of impacts from
spills that do occur Training, therefore.
is important for the safe and proper
functioning of a facility and encourages
up.to-date planning for spill control and
response. Training courses help sharpen
operating arid response sills, introduce
the latest ideas and techniques. and
promote interaction with the emergency
response organization and familiarity
with the SPCC Plan Furthermore,
sections 311(0(5) and 311(l)(7) of the
CWA, added by the OPA, reinforce the
importance of training EPA recognizes
that the amount of facility-specific
training should vary depending on the
complexity of operations (e g., number
of tanks and transfer points, throughput
presence of sophisticated pumping or
s ’itching equipment. etc ) at regulated
facilities For certain types of regulated
facilities, characterized by small-scale,
relatively simple operations involving
ahoveground storage tanks, the need for
extensive facihty specific training is less
critical
The current Oil Pollution Prevention
regulation provides that owners or
operators are responsible for properly
instructing their personnel in the
operation and maintenance of
equipment to prevent discharges of oil
and in applicable pollution control laws
and regulations The Phase One NPRM
proposes requiring all personnel to
participate in yearly training exercises
It also proposes to require that training
be administered to new personnel
within one week of beginning work.
Additionally, the Occupational Safety
and Health Administration (OSHA)
requires that personnel who are
expected to respond to and control
hazardous materials discharges undergo
formal worker health and safety training
before starting work and receive
refresher training at regular intervals
OSHA considers petroleum products
and gases to be hazardous materials.
EPA proposes in § 112 7 (f) to require
that owners or operators of facilities that
transfer or receive greater than or equal
to 10,000 gallons of oil in a single
operation more than twice per month on
average or greater than or equal to
50000 gallons in a single operation
more than once per month on average
would be required to initiate a training
program as follows
a All employees who are involved in
oil-handling activities, such as the
operation or maintenance of oil storage
tanks or the operation of equipment
related to storage tanks, would be
required to receive 8 hours of facility-
specific training within one year of the
effective date of this regulation or the
date that the facility becomes subject to
this requirement
• In subsequent years, employees
would be required to undergo 4 hours
of refresher training
• Employees hired after the training
program has been initiated, however,
would be required to receive 8 hours of
facility-specific training within one
week of starting work and 4 hours each
subsequent year.
The proposed facility-specific training
includes, but is not limited to, the
following areas’ training in correct
equipment operation and maintenance,
general facility operations, discharge
prevention laws and regulations, and
the contents of the facility’s SPCC Plan
Such facility training would be
documented in the facility response
plan.
These proposed training requirements
are in addition to any health and safety
training requirements that regulated
facilities may be subject to under OSHA
regulations at 29 CFR 1910 120 and
under identical worker protection
standards at 40 CFR part 311 that apply
to employees in States without OSHA-
approved State plans.
EPA regards 8 hours of faci lily-
specific training as a minimum training
requirement for facilities characterized
by complex operations involving the
transfer and storage of oil For these
facilities. addthonal facility-specific
training may be necessary to ensure that
employees are adequately prepared to
respond to spills.
EPA recognizes that many facilities
already have spill prevention training
programs that meet or exceed the levels
proposed in § 112.7W. Such facilities
would not be required to implement
additional training measures.
As proposed, the training
requirements would apply only to
facilities that transfer large quantities of
oil on a regular basis and not to smaller
or less active transfer facilities, where
the risk of the discharge of significant
quantities of oil to navigable waters may
be less. EPA requests comment on the
appropriateness of the transfer
frequency and amount criteria for a
facility to be subject to the proposed
training requirements EPA also requests
comment on the appropriateness of
restricting the training requirements to
those facilities determined to have the
potential to cause “substantial harm” to
the environment as discussed in Section
IIl.A of this preamble The Agency
solicits information on the current
practices at various types of regulated
facilities and comment about the
amount of facility-specific training that
is appropriate for personnel at different
types and sizes of facilities. In addition,
EPA requests comment on whether the
8-hour minimum requirement for new
employees is too high for certain types
of facilities, such as service stations.
Also, EPA requests comment on the
appropriate level of annual refresher
training at small facilities that -
experience little or no employee
turnover from year to year
EPA considered allowing facilities to
maintain current training practices. with
no mandatory minimum training hour
requirements However, this option may
not be sufficient to alleviate the problem
of spills related to human error
In addition, employees are required to
participate in unannounced drills,
which tests the facility response plan,
on an annual basis Drill organizers
should limit the number of people who
know about the exercise Drills should
be carefully planned out and response
teams notified in advance of sounding
appropriate alarms The actions taken
by the response team during the drill
should be noted and addressed in a
debriefing session to follow the exercise
EPA proposes that such unannounced
drills shall be recorded in the facility
response plan.
B Ensuring Against Brittle Fracture
The failure of Ashland Oil Company’s
four million gallon aboveground storage
tank n January 1988 was the result of
brittle fracture As illustrated by the
collapse of this tank, brittle fracture may
cause sudden and catastrophic tank
failure, resulting in potentially serious
damage to the environment and loss of
oil In the aftermath of the Ashland Oil
spill, EPA and industry representatives
identified a basic set of conditions that
seek to identify risk of brittle fracture,
including shell temperature, the level of
tank contents, and the presence of
existing surface flaw Reported cases of
tank failure due to brittle fracture have
occurred after tank erection, during the
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Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
8843
performance of a hydrostatic test (such
as the failure of a storage tank at ESSO’s
refinery in Fawley, U.K., in 1952),
during the first filling in cold weather,
after a change to lower temperature
service, such as was the case in the
Ashland Oil spill, or after a repair or
alteration (see p. 5—28 the “Technical
Background Document to Support the
Phase Two Oil Pollution Prevention
Rulemaking,” available for inspection in
room M2427 at the U S Environmental
Protection Agency, 401 M Street, SW.,
Washington. DC 20460 [ Docket Number
SPCC—2Pj.
Consequently. EPA proposes in
§ 112 7(i) to require facility owners or
operators to evaluate their field.
constructed tanks for the risk of failure
due to brittle fracture, by adhering to
appropriate industry standards
contained in API Standard 653 entitled
Tank Inspection. Repair, Alteration, and
Reconstruction Section 112 7(i)
incorporates by reference section 3
(Brittle Fracture Consideration) of API
Standard 653 This incornoration by
reference will be submitted for approval
to the Director of the Federal Register in
accordance with 5 U.S C. 552(a) and 1
CFR part 51. Copies of API Standard 653
may be inspected at the Superfund
Docket, U S Environmental Protection
Agency. 401 M Street, SW., room
M2427, Washington, DC Also, EPA
proposes in § 112.7(j) a conforming
change to reflect the addition of the
proposed brittle fracture requirements
in § 112.7(i).
The evaluation for the risk of failure
due to brittle fracture would be triggered
by a repair or alteration to the tank, or
a change in service As defined in
§1122 of the proposed rule. ‘repair”
means any work necessary to maintain
or restore a tank or related equipment to
a condition suitable for safe operation.
Typical examples include the removal
and replacement of material (such as
roof, shell, or bottom material, including
weld metal) to maintain tank integrity,
the re-leveling or jacking of a tank shell,
bottom, or roof, the addition of
reinforcing plates to existing shell
penetrations, and the repair of flaws,
such as tears or gouges. by grinding or
gouging followed by welding. As
defined in § 112.2 of the proposed rule,
“alteration” means any work on a tank
or related equipment involving cutting,
burning, welding, or heating operations
that changes the physical dimensions or
configuration of a tank Typical
examples include the addition of
manways and nozzles greater than 12-
inch nominal pipe size and an increase
or decrease in tank shell height,
Under API standard 653. evaluation of
the potential hazard for brittle fracture
involves a review of a tank’s
construction materials, operational
history. repairs, material stored, and
other factors identified as useful in
predicting a tank’s performance. The
evaluation also could result in more
extensive testing (such as a hydrostatic
test). A flowchart of brittle fracture
considerations contained in API
Standard 653 is shown In Appendix H
to the rule. In accordance with API
Standard 653 and good engineering
practice. if the evaluation indicates that
the tank is at risk of failure due to brittle
fracture, the owner or operator would be
required to rerate the tank or modify the
tank’s operation to prevent failure. The
Agency proposes the approach
described above because it is consistent
with current industry standards and
will apply to a greater range of industry
tanks at risk.
EPA does not propose to require that
shop-fabricated tanks be evaluated for
brittle fracture. Such tanks are generally
not as susceptible to brittle fracture
failure after a change in service because
design criteria are tailored to meet the
needs of many operating conditions
including variances in pressures,
material stored, and temperature In
addition, shop.fabricated tanks are
generally much smaller ranging in
capacity from 3,000 to 31,500 gallons,
and therefore are less prone to suffer
catastrophic failure due to brittle
fracture, Field-constructed tanks are
usually designed and built to meet a
specific type of operating condition and
can be much larger in size. Shop-
fabricated tanks may present a lower
risk of causing substantial harm to the
environment as a result of discharges to
U.S. waters or adjoining shorelines than
larger. field-constructed tanks The
Agency requests comments and data on
the proposed requirement to evaluate
field-constructed tanks for the risk of
failure due to brittle fracture under
certain circumstances
As an alternative, the Agency
considered requiring all tanks to
undergo a full hydrostatic test to
determine their potential for brittle
fracture Under this option, a
hydrostatic test would have to be
performed even on tanks that are not
considered prone to brittle fracture by
industry standards. Moreover, existing
tanks would have to be taken out of
service during testing, causing potential
disruption to facility operations. Also.
EPA considered not requiring facilities
to perform any additional evaluations or
tests beyond those required for other
regulations. No other regulations were
identified, however, that require tests to
specifically evaluate the potential for
brittle fracture.
C. SPCC Plan Amendment
Section 112.4 of the current Oil
Pollution Prevention regulation requires
the owner or operator of a facility to
submit the facility’s SPCC Plan to the
RA when the facility has experienced
either a discharge of more than 1,000
gallons or two reportable spill events
within a twelve month period. The RA
can then review the Plan and may
require that the Plan be amended Under
current § 112.3(e), a facility owner or
operator must make the Plan available
to the Agency for on-site review, but the
rule does not provide explicit authority
for the RA to require Plan amendment
except under the circumstances
described in § 112,4. Because Plan
amendment may be necessary to protect
navigable waters and adjoining
shorelines even before spill events
occur. EPA proposes to give the RA
specific authority to require Plan
submission and amendment at any time.
Proposed § 112.4(d) amends the existing
language to incorporate this provision
and states that the RA may require Plan
amendment whenever the Plan does not
meet the requirements of 40 CFR part
112 or when Plan amendment is
necessary to prevent and control
discharges This broader authority
would include the right of the RA to
require amendment following plan
review: the rule would clarify the RA’s
authority to require amendments in
other situations not specified under the
existing regulation.
D. Authority To Require Preparation of
plans
Although the CWA provides EPA
broad authority to regulate non-
transportation-related onshore facilities,
current § 112 1(d) exempts certain
facilities Under the proposed Phase
One rule, the § 112 1(d) exemptions
would be broadened to include totally
buried underground storage tanks
subject to the requirements of EPA’s
underground storage tank regulation at
40 CFR part 280 Under today’s
proposal, § 112.1(g) would be added to
allow the RA to require otherwise
exempted facilities, on a case-by-case
basis, to prepare and implement SPCC
Plans where needed to protect navigable
waters and adjoining shorelines. Thus. a
facility that would be exempted from
the Oil Pollution Prevention regulation
on the basis of its underground storage
tanks being subject to 40 CFR part 280
may nevertheless have to comply with
the requirements of the Oil Pollution
Prevention regulation at the discretion
of the RA. The RA would exercise this
discretionary authority when necessary
to carry out the purposes of the CWA.
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8844 Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1993 I Proposed Rules
The determination would be based on
the presence of environmental concerns
not adequately addressed under the
UST regulation.
Based on the requirements in the UST
regulaLion, EPA expects that it will be
necessary for the RA to exercise this
authority in very few cases. Moreover,
some of the SPCC Plan requirements
that apply to aboveground tank systems
would not represent good engineering
practice for certain underground tanks.
For example, the requirement for
secondary containment as described in
current § 112.7(c) is not considered good
engineering practice for completely
buried underground tanks.
Following a preliminary
determination, the RA will provide a
written notice to the facility owner or
operator stating the reasons why the
facility needs to prepare a SPCC Plan.
The owner or operator would have the
opportunity to provide information and
data and to consult with the Agency
about the need to prepare and submit a
plan. Following this consultation, the
RA will make a final determination on
whether the facility is required to
prepare and implement a SPCC Plan. If
the RA makes a final determination that
a SPCC Plan is necessary to carry out
the purposes of the CWA, the owner or
operator must prepare the plan within
six months nf the RA’s decision and
implement the Plan as soon as possible,
but not later than one year after the final
determination has been made
E Submission of Plans Thai Contain a
Waiver of Technical Requirements
Under the proposed Phase One
regulation, a facility’s SPCC Plan need
not conform to certain technical
requirements 0140 CFR part 112 if
equivalent protection is provided. No
provision was made in the Phase One
proposal, however, for notification to
EPA when a facility owner or operator
invokes this waiver. Proposed
§ 112.7(a)(2) of today’s proposed rule
would require the owner or operator to
submit the Plan to the RA in this
circumstance. Thus, EPA staff will have
the opportunity to review the Plan and
determine whether the measures
described in the Plan do indeed provide
equivalent protection The Agency
solicits comment on whether
submission of the entire plan for the RA
to make this determination is necessary
V! Other Technical Considerations Not
Proposed
EPA is examining several additional
recommendations made in the SPCC
Task Force Report and the GAO report
on inland oil spills, including
provisions relating to Plant security;
corrosion protection; lightning strike
protection; leak detection; and
certification of tank installation plans.
EPA is not proposing regulatory changes
at this time but is soliciting comment
and cost information on these
considerations
improvement of plant security can
reduce the number of discharges that
occur as a result of vandalism Section
112.7(e)(9) of the current Oil Pollution
Prevention regulation contains a
number of requirements concerning
plant security, including provisions on
fencing and lighting. The Agency
requests comment on the need for
additional measures to mitigate
potential environmental harm posed by
discharges from different types of
facilities, arid whether certain
provisions should be discretionary for
any or all facilities.
Metallic aboveground storage tanks
are susceptible to corrosion, which may
lead to leakage or the discharge of a
tanks entire contents. For metallic
aboveground tanks, the primary
corrosive concern involves tank bottoms
arid the types of foundations
constructed for them The UST
regulation at 40 CFR 280 20 requires
owners or operators of underground
storage tanks to ensure that releases due
to corrosion are prevented for as long as
the tank system is used to store
regulated substances, such as petroleum
products Cathodic protection is a
common method used to protect USTs
from corrosion (40 CFR 280.31). The
Agency solicits comment and cost data
on the use of cathodic protection to
prevent corrosion on aboveground
storage tanks. EPA also requ sts
comment and cost effectiveness data on
other methods of preventing leaks due
to corrosion
Lightning strikes on aboveground
storage tanks and fires resulting from
the strikes can contribute to discharges
of oil. Although various industry groups
have published recommended practices
and precautionary measures for owners
or operators to follow to avoid lighting
strikes, there are currently no Federal
regulations in effect concerning
lightning strike protection for
aboveground storage tanks. EPA
requests comment on the costs end
benefits of installing lightning
protection systems, such as an air
terminal system, overhead ground wire
system, the Faraday Cage system, or
combinations of these systems on
aboveground storage tanks.
Early detection of small oil leaks from
above ground storage tanks may alert
owners or operators to needed repairs or
other spill prevention or mitigation
measures and thus prevent substantial
environmental damage and save the
expense of cleaning up larger quantities
of oil that may subsequently leak from
the tanks. Section 112.7(e)(2)(vi) of the
current Oil Pollution Prevention
regulation requires operating personnel
to frequently observe the outside of a
tank for signs of deterioration, leaks, or
accumulation of oil inside diked areas.
Small leaks near the bottom of a tank,
however, often are hard to detect
visually. The Agency is therefore
requesting comment and cost
effectiveness information on other leak
detection methods for aboveground
tanks, such as ultrasonic testing and
inventory reconciliation, Also, the
Agency requests comment on the
appropriateness of testing underground
piping for leaks and data on
methodologies.
The current Oil Pollution Prevention
regulation requires facility owners or
operators to have a Professional
Engineer review and certify that their
SPCC Plans have been prepared in
accordance with good engineering
practices. This requirement, however,
does not address specific facility
procedures such as tank installation.
UST regulations at 40 CFR 280.20(e ), on
the other hand, require certification of
corn pliance with proper installation
practices and of the qualifications of
tank installers. The Agency requests
comment on appropriate methods to
ensure that aboveground tanks are
properly installed, such as certification
of installation plans and/or installation
monitoring by a professional engineer or
other qualified individual.
V!! Regulatory Analyses
A Executive Order 12291
Executive Order (E.O) 12291 requires
that regulations be classified as major or
non-major for purposes of review by the
Office of Management and Budget
(0MB). According to E.O 12291, major
rules are regulations that are likely to
result in:
(1) An annual effect on the economy
of $100 million or more, or
(2) A major increase in costs or prices
for consumers, individual industries,
Federal, State, or local government
agencies. or geographic regions, or
(3) Significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreign-
based enterprises in domestic or export
markets.
An economic analysis performed by
the Agency. available for inspection in
room M2427 at the U.S Environmental
Protection Agency, 401 M Street, SW.,
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Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1993 I Proposed Rules
8845
Washington, DC 20460, shows that this
proposed rule is major because it would
result in estimated costs to affected
facilities of approximately $140.6
million during the first year that the n ile
is in effect and approximately $60.9
million in each subsequent year. At a
10-percent interest rate over 10 years,
the annualized costs are $73.2 million.
Of the total estimated costs, $93.7
million of the first-year costs and $54.0
million of the subsequent-year costs
result from the facility response plan
requirements proposed in § 112.20.
Approximately $12.6 million of the
first-year costs and $6.3 million of the
subsequent-year cost are attributable to
the other technical requirements. The
proposed revisions pertaining to
enforcement of the Oil Pollution
Prevention regulation (I.e., amendments
to the SPCC Plan, notification of a
waiver of technical requirements, and
preparation of SPCC Plans by previously
exempted facilities) are estimated to
result in costs of $2.3 million in the first
year and $0.5 million in subsequent
years. In addition, it is estimated that
facilities will expend $32 0 million In
the first year to read and understand the
proposed revisions. This economic
analysis estimates costs and benefits for
facilities currently suhject to the Oil
Pollution Prevention regulation. The
first-year, subsequent-year, and
annualized costs of the proposed
revisions to affected facilities are
presented in Table 1. The estimates
presented assume that facility response
plans reduce the costs and damages
caused by oil spills by 30 percent,
which is one of the key assumptions in
the analysis.
TABLE 1 —TOTAL COST TO AFFECTED FACILITIES OF THE PROPOSED RULEMAKING
AuIe Iamlliaflzalion
FacilIty response plan
Tra ing $81/gallon
$340 ljbarrel
BrIllia Iracture
Nol Estimated
$30/gallon
$127 libarrel
$81/gallon..
$3,415t’bantl
$31/gallon
$1.297dbarrel -
Not Ealimaled
Proposed revision
Flret-year costs
Subsequent-year co
Annualized value
o totsi coats
Rule famlJlaflzation .,,, .
Facility response plan . . .
Tra nlng
Blithe fracture
ArnerCrnenls lo s cc plan .
Nolihicallon of waiver 01 technIcal requiramenls
Preparallon of SPCC plans by previously es-
emplad facIlities
Total ..
$32 0 millon
$93 7 mIllIon ..,.
$11 0 millIon . .
$1 6 million
$12,900
St S mIllIon .. .
$08 million , -
$1406 mwlon - ,,, ,
$0 ...
$54 0 mthlon
$47 mIllion
$1 6 mIllion
$12$00 ,,, , ...
$147,250 ,
$03 million , - ..
5809 mIllion .
$52 million
$599 million
$57 mIllion
$1 6 mIllion
$12,900
$03 millIon
$04 million
$732 millIon
EPA also is estimated to incur costs to includes an assessment of the the proposed n ile in the Regulatory
process, review, and approve facility environmental benefits associated with Impact Analysis based on currently
response plans and to process and the proposed revisions This benefit available data. The cost effectiveness of
review SPCC Plans and other estimate includes only the benefits of the proposed revisions also are
information submitted as a result of the avoided clean-up costs, value of lost presented in terms of the total estimated
three proposed revisions related to product, and avoided natural resource cost to society per unit volume of
enforcing the regulation. EPA estimates damages as a result of the prevention of spilled oil addressed by the proposed
that it will process approximately 6,500 oil spills or the mitigation of the revisions, This measure of cost
response plans and review and approve severity of spills that do occur. Other effectiveness is calculated by dividing
approximately 2,000 response plans in damages caused by oil spills, such as the total estimated costs to affected
the first two years after the revisions damage to private property, lost profit facilities and the government by the
take effect at a cost of $1.2 million in the by business, public health risks, and total number of barrels (or gallons) of oil
first year and $1.1 million in the second foregone existence/option value have that is estimated not to be spilled as a
year. EPA also will incur costs of $3.1 not been quantified EPA recogn zas that result of the proposed revisions or, if
million in the first year and $0.5 million the methodologies to value certain spilled, is addressed more effectively as
each year thereafter to implement the benefits of avoiding oil spills or
other proposed revisions At a 10- mitigating their effects are contentious a result of the proposed revisions Table
percent interest rate over 10 years, the and new or revised methodologies 2 presents the cost effectiveness of the
annualized costs to EPA are $1.2 currently are under study by other proposed revisions based on the
million government agencies. For illustrative assumption that facility response plans
The Regulatory Impact Analysis (RIA) purposes, the Agency has presented reduce the costs and damages caused by
prepared in support of this rule also monetary estimates of these benefits of oil spills by 30 percent.
TABLE 2 —COMPARISON OF ESTIMATED TOTAL ANNUALIZED COSTS AND BENEFITS
Proposed revision
Estmaled costs per avoided volume 01 sPilled
oIl at 30 percent level 01 effectiveness for re-
sponse plans
Eadmaled costs
per avoided barrel
c sp illed oil 51 57
percent level 01 .1.
lectivenesa for re-
aponse plans
Not Estimated
$ lWgahlon
$889ftaS
$31/gallon
$1 ,3o3bsrmel
Not Eslimaled
Amendments 01 SPCC plan
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8846
Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
TABLE 2.—CONPARIs0N OF ESTiMATED TOTAL ANNUAUZED COSTS AND BENEFITS—Continued
m
Estimated coats per avoided volume c SPIlled
oil at 30 percent level of etiectivoness for ro-
0058
Estimated costs
per avoided barrel
of s ed at 57
percent level of of.
foctiveneas for re-
sponse plans
NotifIcation of waiver of technIcal requirements.. ... -
Preparation of SPCC plans by previously exempted ladlitles. . ...
Not Estimated - .
Not Estimated
Not Estimated
Not Estimated
Alternative assumptions about the
effectiveness of facility response plans
yield different estimates of the net
benefits For example, estimated costs of
facility response plans equal estimated
benefits 8t 8 57 percent effectiveness
level. At levels of effectiveness less than
57 percont. estimated costs of the
response plan requirement exceed
estimated benefits. Conversely, at
effectiveness levels greater than 57
percent, estimated benefits of the
response plan requirement exceed the
estimated costs The cost effectiveness
of the proposed revisions also is
presented in Table 2 at an assumed
effectiveness level of 57 percent. This
proposed rule has been submitted to
0MB for review as required by E 0.
12291.
B Reguia tory Flexibility Act
The Regulatory Flexibility Act of 1980
requires that a Regulatory Flexibility
Analysis be performed for all rules that
are likely to have a “significant impact
on a substantial number of small
entities.” To determine whether a
Regulatory Flexibility Analysis was
necessary for this proposed rule, a
preliminary analysis was conducted.
The results of the preliminary analysis
indicate that this proposed rule will not
have significant adverse impacts on
small businesses because small
businesses are unlikely to be affected by
the facility response planning, training,
or brittle fracture requirements, which
account for the majority of the total
costs of the proposed rulemaking (see
the “Regulatory Impact Analysis of the
Proposed Phase Two Revisions of the
Oil Pollution Prevention Regulation,”
Chapter 8, September 1992, available for
inspection in room M2427 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.
C Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to 0MB
under the Paperwork Reduction Act, 44
U.s.c. 3501 et seq An Information
Collection Request (ICR) has been
prepared by EPA (ICR No. 1630.01) and
a copy may be obtained from Sandy
Farmer, Information Policy Branch
(PM—223Y); U.S. Environmental
Protection Agency, 401 M Street, SW,,
Washington, DC 20460, or by calling
(202) 260—2740
The collection of information required
to prepare facility response plans is
estimated to have a public reporting
burden varying from Ito 256 hours per
response in the first year, with an
average of 5 hours per response, and to
require an average of 0 65 hours per
recordkeeper annually. This includes
time to review instructions and
guidance, search existing data sources,
gather and maintain the data needed,
and complete arid review the collection
of information. In subsequent years, the
facility response plan requirement is
estimated to have a public reporting
burden that varies from 0—99 hours per
response. with an average of 1 hour per
response, and to require an average of
0.6 hours per recordkeeper annually.
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 (PM—
223Y), U.S Environmental Protection
Agency, 401 M Street SW., 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 “The
final rule will respond to any 0MB or
public comments on the information
collection requirements contained in
this proposal
List of Subjects in 40 CFR Part 112
Fire prevention, Flammable materials,
Materials handling and storage, Oil
pollution, Oil spill response, Petroleum,
Reporting and recordkeeping
requirements, Tanks, Water pollution
control, Water resources.
Dated: january 19, 1993.
William K. Reilly,
Administrator
For the reasons set out in the
preamble, part 112, title 40, chapter I of
the Code of Federal Regulations, as
proposed to be revised at 56 FR 54630,
October 22. 1991, is proposed to be
amended as follows:
PART 112—OIL POLLUTION
PREVENTION
1. The authority citation for part 112
is revised to read as follows:
Authority: 33 USC 1321 end 1361, E 0
12777 (3 CFR. 1991 Camp , p. 3511
2. Section 112.1, as proposed at 56 FR
54630, is amended by revising
paragraphs (d) introductory text and
(d)(4), and by adding paragraph (g) to
read as follows: -
§ 112.1 General applicabIlity and
notification.
S * S S S
(d) Except as provided in paragraphs
(a) and (g) of this section and the first
sentence of § 112 7(a)(3), this part does
not apply to:
(4) Underground storage tanks, as
defined in § 112 2(v), at any facility.
where such tanks are subject to the
technical requirements of 40 CFR part
280, except that such tanks shall be
marked on the facility diagram as
provided ing 112 7(a)(3)
(g) Notwithstanding paragraph (d) of
this section, the Regional Administrator
may require any facility subject to the
jurisdiction of EPA under section 311(j)
of the CWA to prepare and implement
an SPCC Plan or applicable parts
thereof
(1) Following a preliminary
determination, the Regional
Administrator will provide a written
notice to the facility owner or operator
stating the reasons why the facility
owner or operator needs to prepare an
SPCC Plan
(2) The owner or operator may
provide information and data and may
consult with the Agency about the need
to prepare and submit a Plan.
(3) Following this consultation, the
Regional Administrator will make a
final determination regarding whether
the facility is required to prepare and
implement an SPCC Plan
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Federal Register I Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
8847
(4) If the Regional Administrator
makes a final determination that an
SPCC Plan is necessary to carry out the
purposes of the CWA, the owner or
operator must prepare the Plan within
six months of that determination and
implement the Plan as soon as possible,
but not later than one year after the final
determination has been made.
3. Section 112.2, as proposed at 56 FR
54630, is amended by removing the
paragraph designations (a) through (y).
and inserting the following new
definitions in alphabetical order, to read
as follows:
§ 112.2 DefinItions.
. S *
* S
Adverse weather means the weather
conditions that make it difficult For
response equipment and personnel to
cleanup or remove spilled oil.
Alteration means any work on a tank
or related equipment involving cutting,
burning, we’ding, or heating operations
that changes the physical dimensions or
configuration of a tank.
• * * — I
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 CWA.
Contracts or other approved means
include.
(1) A written contractual agreement
with a response contractor that
identifies and ensures the availability of
the necessary personnel or equipment
within appropriate response times.
(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,
(3) Aciive membership in a local or
regional oil spill removal organization
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: or
(4) Other specific arrangements
approved by the Regional Administrator
upon request of the owner or operator.
Injury means a measurable adverse
change, Bither long- or short-term, in the
chemical or physical quality or the
viability of a natural resource resulting
either directly or indirectly from
ixposure to a discharge of oil, or
bxposure 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. The appropriate
limitations for such planning are
available technology and the practical
and technical limits on an individual
facility owner or operator.
a * * a a
Repair means any work necessary to
maintain or restore a tank or related
equipment to a condition suitable for
safe operation.
a a S S S
Worst case discharge for an onshore
non-transportation-related facility
means the largest foreseeable discharge
in adverse weather conditions, based on
the factors described in appendix E to
this part.
4. Section 112.4, as proposed at 56 FR
54633, is amended by redesigneting
paragraph Id) as paragraph (d)(1). by
revising newly designated paragraph
(d)(1). and by adding a new paragraph
(d)(2) to read as follows
§ 112.4 Amendment of Spill Prevention,
Control and Countermeasures Plan by
Reglonai Administrator.
* * * a a
Id) (1) The Regional Administrator
may require the owner or operator of
any facility subject to this part to submit
the information listed in paragraphs
(8)(1} through (a)(8) of this section and
such other information as the Regional
Administrator may request After review
of the information submitted, or after
on-site review of a facility’s Plan, the
Regional Administrator may require the
owner or operator of such facility to
amend the Plan if the Plan does not
meet the requirements of this part or if
amendment of the Plan is necessary to
prevent or control discharges of oil from
such facility into or upon the waters
described in §112 1(a) of this part
(2) After review of the materials
submitted by the owner or operator of
a facility as required in § 112 7(d) of this
part, the Regional Administrator may
approve the Plan or require amendment
of the Plan
* * * * S
5. Section 112.7, as proposed at 56 FR
54634, is amended by revising
paragraphs (a)(2) , the introductory text
of paragraph (d), arid paragraphs (d)(i),
(0(1). and U) and by adding a new
paragraph (j) to read as follows
112.7 SpIll Prevention, Control, and
Count.fmeasuru Plan general
requirements.
(a) * * *
(2) The Plan may deviate from the
requirements in paragraph (c) of this
section and § 112 8, 112.9, 112.10. and
112.11, where applicable to a specific
facility, provided equivalent protection
is provided by some other means of spill
prevention, control, or countermeasures.
Where the Plan does not conform to the
applicable requirements of paragraph (c)
of this section or § 112.8, 112.9. 112.10,
and 112.11, the Plan shall state the
reasons for nonconformance and
describe in detail alternate methods and
how equivalent protection will be
achieved. The owner or operator of the
facility shall submit the Plan to the
Regional Administrator together with a
transmittal letter describing how the
Plan contains equivalent protection
measures in lieu of certain requirements
in 40 CFR part 112. If the Regional
Administrator determines that the
measures described in the Plan do not
provide equivalent protection, the
Regional Administrator may require
amendment of the Plan, following the
procedures in § 112.4 (a) and (I ).
(d) When it is determined that the
installation of structures or equipment
listed in § 112.7(c) to prevent discharged
oil from reaching the navigable waters is
not practicable from any facility, the
owner or operator shall clearly
demonstrate such impracticability;
conduct integrity testmg of tanks every
five years at a minimum; conduct
integrity and leak testing of the valves
and piping every year at a minimum;
and providing the following
(1) The facility response plan
described in § 112 20
a a • a *
(0 Personnel, training, and spiii
prevention procedures (1) Owners or
operators of facilities, which transfer or
receive greater than or equal to 10,000
gallons of oil in a single operation more
than twice per month on average, or
greater than or equal to 50,000 gallons
in a single operation more than once per
month on average, shall be responsible
for the proper instruction of their
personnel in the operation and
maintenance of equipment to prevent
discharges of oil and in applicable
pollution control laws, rules, and
regulations.
(i) All personnel who are involved in
oil-handling activities shall receive at
least 8 hours of training by (insert date
one year after the effective date of the
final rule], and at least 4 hours in
subsequent years. Such training
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8840 Federal Register I Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
includes, but is not limited to, subjects
such as correct equipment operation
and maintenance. general facility
operations, discharge prevention lows
and regulations, and the contents of the
facility’s SPCC Plan.
(ii) In the case of new employees. 8
hours of training shall be given to such
personnel within the first week of their
employment.
(iii) All such personnel shall also
participate in unannounced drills, to be
conducted at least annually.
(I) If a field-constructed aboveground
tank undergoes a repair, alteration, or a
change an service, the facility owner or
operator shall evaluate the tank for risk
of failure due to brittle fracture, and, as
necessary, take appropriate action ira
accordance with Section 3 of Tank
inspection, Repair, Alteration, and
Reconstruction, January 1991, American
Petroleum institute, API Standard 653.
This incorporation by reference will be
submitted for approval to the Director of
the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51.
Copies may be obtained from the
American Pet.roleum Institute, 1220 L
Street NW., Washington DC 20005.
Copies may be inspected at the
Superfund Docket U.S. Environmental
Protection Agency, 401 M Street, SW.,
room M2427, Washington, DC. A
flowchart of brittle fracture
considerations contained in API
Standard 653 is contained in appendix
H to this part.
J In addition to the minimal
prevention standards listed under
§ 112.7 (c), (a). (I), (g), (h), and (i),
sections of the Plan shall include a
complete discussion of conformance
with the applicable requirements arid
other effective spill prevention and
containment procedures listed in
§ 112 8, 112,9, 112.10, and 112.11 (or,
if more stringent, with State rules,
regulations, and guidelines).
6. Section 112.20 is added to read as
follows
• 112.20 FacIlity response plane.
(a) (1) 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 ad)oining shorelines shall
prepare a facility response plan end
shall submit a response plan that
satisfies the requirements of this section
to the Regional Administrator.
(2) A facility shall be subject to the
requirements of paragraph (a)(1) of this
section if it satisfies the criteria in
paragraph (0(1) of this section or if the
Regional Administrator makes a
determination pursuant to paragraph (b)
of this section.
(1) For a facility that Is in operation on
or before February 18, 1993, and is
required to prepare and submit a
response plan based on the criteria In
paragraph (0(1) 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 C to this part, to
the Regional Administrator on or before
February 18, 1993.
(ii) For a newly constructed facility
that commences operation after
February 18. 1993, end is required to
prepare and submit a response plan
based on the criteria in paragraph (0(1)
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 C to this part, to the Regional
Administrator prior to the start of
operations.
(iii) For a facility required to prepare
and submit a response plan after
February 18, 1993, as a result of a
planned change in design, construction,
operation, or maintenance that renders
the facility subject to the criteria in
paragraph (1)(1) 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 G to this part. to
the Regional Administrator before the
portion of the facility undergoing
change commences operations.
(iv) For a facility required to prepare
and submit a response plan after
February 18, 1993, as a result of an
unplanned event or change an facility
characteristics that renders the facility
subject to the criteria in paragraph (0(i)
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 G 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 to one contained in
appendix C to this part to evaluate the
criterion in paragraph (f)(1)(ii)(B) or
(f)(1)(ii)(C) of this section. the owner or
operator shall attach documentation to
the response plan cover sheet contained
in appendix C to this part that
demonstrates the reliability and
analytical soundness of the alternative
formula.
(b)(i) 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 based on the factors in
paragraph (0(2) of this section. If the
Regional Administrator notifies in
writing the owner or operator 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 after such written notification.
(2) The Regional Administrator shall
review plans submitted by such
facilities to determine whether the
facility could cause significant and
substantial harm to the environment by
the discharge of oil.
(c)(1) The Regional Administrator
shall determine whether a facility,
because of its 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, based on
the factors in paragraph (f)(3) of this
section If a facility is determined to
have the potential to cause significant
and substantial harm to the -
environment, the Regional
Administrator shall notify fri writing the
owner or operator of the facility and
(i) Promptly review the facility
response plan,
(u) Require amendments to any
response plan that does not meet the
requirements of this section;
(iii) Approve any response plan that
meets the requirements of this section,
and
(iv) Review each response plan
periodically thereafter.
(2) A facility owner or operator who
is notified in writing that the facility’s
response plan will require review and
approval by the Regional Administrator
and that such approval will not be
forthcoming by August 18, 1993. may
operate the facility without an approved
response plan for up to two years from
the date of plan submission in
compliance with statutory requirements,
provided that:
Ci) The facility owner or operator
certifies in wnting within 30 days of
such notification to the Regional
Administrator that the owner or
operator 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 or the substantial threat of
such a discharge from the facility; and
(ii) The contracts or agreements cited
in the facility’s certification are valid
and enforceable by the parties.
(d)(i) The owner or operator of a
facility determined to have the potential
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Federal Register / Vol. 58, No. 30 / Wednesday , February 17. 1993 / Proposed Rules
8849
to cause significant and substantial
harm to the environment pursuant to
paragraph (0(3) of this section shall
revise and resubmit the response plan
for approval within 60 days of each
facility change that materially may
affect the potential for a discharge to
cause significant and substantial harm
to the environment, 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 change in the oil spill removal
organizations that provide equipment
and personnel to respond to spills
described in paragraph (h)(5) of this
section and/or a material change in their
capabilities;
(iv) A material change in the facility’s
spill prevention and response
equipment or emergency response
procedures;
(v) Any other changes that materially
affect the implementation of the
response plan.
(2) Except as provided In paragraph
(d)(i) of this section, amendments to
personnel and telephone number lists
included in the response plan do not
require prior approval by the Regional
Administrator, Facility owners or
operators shall provide a copy of such
changes to the appropriate Regional
Administrator as the revisions occur.
(e) If the owner or operator of a
facility determines pursuant to
paragraph (a)(2) of this section that its
facility does not have the potential to
cause substantial harm to the
environment, 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 to one
contained in appendix C to this part is
used to evaluate the criterion in
paragraph (fRl)(ii)(B) or (0(1)(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 alternative formula and shall notify
the Regional Administrator in writing
that an alternative formula was used.
(1) (1) A facility shall be deemed to
have the potential to cause substantial
harm to the environment pursuant to
paragraph (a) of this section, ii it meets
any of the following criteria applied in
accordance with the flowchart
contained in appendix C to this part:
(i) The facility transfers oil over water
to or from vessels and has a total 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 storage tank within
each storage area;
(B) The facility is located at a distance
(as calculated using the appropriate
formula in appendix C to this part or an
alternative formula considered
acceptable by the Regional
Administrator) such that a discharge
from the facility could cause injury to
an environmentally sensitive area as
described in appendix D to this part;
(C) The facility is located at a distance
(as calculated using the appropriate
formula in appendix C to this part or an
alternative formula considered
acceptable by the Regional
Administrator) such that a discharge
from the facility would shut down a
public drinking water intake; or
(D) The facility has had a reportable
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 cause substantial harm to the
environment pursuant to paragraph (b)
of this section, the Regional
Administrator may consider the
following.
(A) Type of transfer operation;
(B) Oil storage capacity;
(C) Lack of secondary containment;
(D) Proximity to “environmentally
sensitive areas” defined in Appendix D
to this part and other areas determined
by the Regional Administrator to
possess ecological value;
CE) 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
navigable waters or adjoining
shorelines
(ii) Any person who believes a facility
subject to this section may cause
substantial harm to the environment
from a discharge of oil may petition the
Regional Administrator to determine
whether the facility meets the criteria in
paragraph (0(2)(i) of this section. Such
petition shall include a discussion of
how the criteria in paragraph (f)(2)(i) of
this section apply to the facility in
question.
(3) To determine whether a facility
could cause significant and substantial
harm to the environment, the Regional
Administrator may consider the factors
in paragraph (0(2) of this section as well
as the following:
Ci) Proximity to environmental areas
of concern defined in Appendix D to
this part;
(ii) Frequency of past spills;
(iii) Proximity to navigable waters:
(iv) Age of oil storage tanks; and
(v) Other facility-specific and Region-
specific information, including local
impacts on public health,
(g)(1) 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, and shall be
updated periodically. 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 LII of the Superfund
Amendments and Reauthorization Act
of 1986. 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 Substance Pollution
Contingency Plan and applicable Area
Contingency Plan annually and revise
the facility response plan to ensure
consistency with these plans.
(h) A response plan shall follow the
format of the model facility-specific
response plan included in appendix G
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 specific format in
appendix G to this part shall have an
emergency response action plan as
specified in paragraph (h)(i) to this part
and be supplemented with a cross-
reference section to identify the location
of the elements listed in paragraphs
(h)(2) through (h)(io) of this section. In
order to meet the requirements of this
part, a response plan shall address the
following elements, as reflected in
appendix G to this part:
(1) Emergency Response Action Plan
The response plan shall include an
emergency response action plan in the
format specified below 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:
Ci) The identity and telephone number
of an emergency response coordinator
who is the qualified individual having
full authority, including contracting
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8850 Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
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
emergency response coordinator and the
appropriate Federal official 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.
Cv) A description of response
personnel capabilities, including the
duties of persons at the facility during
a response action arid their response
times and qualifications;
(vi) Plans for evacuation of the facility
arid surrounding communities;
(vii) A description of immediate
measures 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 of the facility, the identity and
tenure of the present owner and
operator, and the identity of an
emergency response coordinator
(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,
(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
emergency response coordinator 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
limes arid 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 surrounding communities,
(viii) A diagram of evacuation routes;
and
(ix) A description of the duties of the
emergency response coordinator
identified in paragraph (h)(i) 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;
(Ci Identify the character, exact
source, amount, and extent of the
release, as well as the other items
needed for notification;
(Dl 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).
(G) Assess and implement prompt
removal actions to contain and remove
the substance released;
(H) Coordinate rescue arid response
actions as previously arranged with all
response personnel;
(U Obtain authority to immediately
access company funding to initiate
cleanup activities; and
(J) Direct cleanup activities until
properly relieved of this responsibility,
(x) Guidelines that describe
procedures to identify response
resources to meet the facility response
plan requirements of this section are
provided in appendix F to this part
(4) Hazard evaluation The response
plan shall discuss the facihty s known
or reasonably identifiable history of
discharges reportable under 40 CFR part
110 for the entire tile 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 the 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 is located such that a
discharge could cause substantial harm
to the environment.
(5) Tiered planning scenarios. The
response plan shall include discussion
of specific scenarios for:
(i) A worst case discharge, as
calculated using the appropriate
worksheet in appendix E 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;
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 the facility.
whichever is 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.
(6) Discharge detectwn systems The
response plan shall describe the
procedures and equipment used to
detect discharges.
(7) Plan implementation. The
response plan shall describe:
Ci) 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 eqwpment 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, training, and
meeting logs The response plan shall
include
(i) A checklist and record of
inspection for tanks, secondary
containment, and response equipment;
(ii) A description and record of
training exercises and periodic
unannounced drills to be carried out
under the response plan, and
(iii) Logs of discharge prevention
meetings.
(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.
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8851
7. Part 112, as proposed to be revised
at 56 FR 54630, is amended by adding
Appendices C through C to read as
follows
Appendix C to Part 112—Determination
of Substantial Hann
1 0 Introduction
The flowchart provided in Attachment C—
I shows the decision tree by which owners
and operators will decide whether their
facility ‘could reasonably be expected to
cause substantial harm to the environment by
discha-ging into or on the navigable waters,
adjoining shorelines, or the exclusive
economic zone “In addition, the Regional
Administrator (RA) has the discretion to
identify facilities that must prepare and
submit facility-specific response plans to
EPA regardless of the self-determination
results The owner or operator or a regulated
facility may determine that a facility has the
potential to cause substantial harm to the
environment without having to assess every
criteria in the flowchart
2 (1 Flowchart for the Determination of
Substantial Harm
Facilities that meet one or both of the
following two criteria are identified as posing
a potential risk of substantial harm to the
environment in the event of a discharge and
must prepare and submit a facility-specific
response plan to EPA in accordance with
appendix C of this part’
(1) The facility transfers oil over water to
or from vessels and has a total storage
capacity greater than or equal to 42,000
gallons
(2) The facility’s total oil storage capacity
is greater than or equal to one million
gallons. and one 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,
• The facility is located at a distance (as
calculated using the appropriate formula in
Attachment C—Ill or an alternative formula
considered acceptable by the RA) such that
a discharge from the facility could cause
injury to an environmentally sensitive area,
as defined in appendix D of this part,
• The facility is located at a distance (as
calculated using the appropriate formula in
Attachment c—rn or an alternative formula
considered accpetable by the RA) such that
a discharge from the facility would shut
down a public drinking water Intake: or,
• The facility has had a reportable spill In
an amount greater than or equal to 10,000
gallons within the last five years
2.1 Description of Screening Criteria for the
Substantial Harm Flowchart
(1) Transportation-Related Facilities
Greater Than or Equal to 42.000 Gallons
Where Operations Include Over-Water
Transfer of Oil—A transportation-related
facility with a total 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
(2) Lack of Secondary Containment at
Facilities With a Total Storage Capacity
Greater Than or Equal to One Million
Gallons—Any facility with a total storage
capacity greater than or equal to one million
gallons without secondary containment
sufficiently large to contain the capacity of
the largest tank within each storage tank area
must submit a response plan to EPA A
secondary containment area that is
“sufficiently large” must contain the
maximum capacity of the largest tank within
a single containment area plus an allowance
for precipitation Secondary containment
structures, which meet the standard of good
engineering practice for the purposes of this
part. include berrns, dikes, retaining walls,
curbing, cuiverting, gutters. or other drainage
systems
(3) Proximity to Environmentally Sensitive
Areas at Facilities With a Total Storage
Capacity Greater Than or Equal to One
Million Gallons—A facility with a total
storage capacity greater than or equal to one
million gallons must submit its response plan
if it is located at a distance such that a
discharge from the facility could cause injury
to an environmentally sensitive area, as
defined in appendix D of this part “Injury”
is defined in §1122 of this part This
definition of”injury” is denved from the
Natural Resource Damage Assessments rule
at 43 CFR part 11
Owners or operators may determine the
distance at which an oil spill could cause
injury to an environmentally sensitive area
usIng the appropriate formula presented in
Attachment C—Ill of this appendix or an
alternative formula considered acceptable by
the RA
(4) Proximity to Public Drinking Water
In takes at Facilities With a Total Storage
Capacity Greater Than or Equal to One
Million Gallons—A facility with a total
storage capacity greater than or equal to one
million gallons must submit its response plan
if it is located at a distance auth that a
discharge from the facility would shut down
a drinking water intake The dIstance at
which an oil spiii from an SPCC-regulated
facility would shut down a drinking water
intake may also be calculated using the
appropriate formula presented In Attachment
C—Ill or an alternative formula considered
acceptable by the RA
(5) Facilities That Have Experienced
Reportable Spills in an Amount Greater Than
or Equal to 10,000 Gallons Within the Past
Five Years and That Have a Total Storage
Capacity Greater Than or Equal to One
Million Gallons—A facIlity’s spill history
within the past fivo years shall be considered
in the evaluation for substantial hat-rn Any
facility with e total storage capacity greater
than or equal to one million gallons that has
experienced a reportable spill in an amount
greater than or equal to 10,000 gallons within
the past five years must submit a response
plan to EPA
3 0 Certification Form far Facilities That Do
Not Pose Substantial Harm
Facilities that do not meet the substantial
harm criteria listed in Attachment C—I must
complete a certification of substantial harm
determination form and maintain the form as
part of their SPCC Plan. The certification of
substantial harm determination form Is
provided in Attachment C—Il The owner or
operator is required to notify the RA in
writing that an alternative formula was used
to determine that the facility does not pose
a threat of substantial harm. The
documentation that demonstrates the
reliability nd analytical soundness of the
alternative formula must be maintained at the
facility
Attachment C—I
BILuNO CODE eSeO-60-P
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8852 Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1903 / Proposed Rules
Flowchart for the Determination of Substantial Harm
Does the facility have a maximum
storage eapacicy greater than or
equal to 42,000 gallon.s and do
the operations include over water
transfers of oil to or from vesseIs
No
Does the facility have a maximum
storage capacity reatcr than or
equal to one million gallons?
No
Submit Response Plan
Yes
Is the facility without adequate
secondary containment for each
aboveground storage area sufficiently
large to contain the capacity of
the largest abovegmund storage
tank within that storage area?
No
No
Is the faciLity located at a distance’ such
chat a discharge from the facility
would chut down a public
drinking water intake’
No
Within thc past five years, has the
facility cirperienced a reportable
spill in an amount greater than
or equal to 10,000 gallons
I-
No
Yes
Yes
• Calculate iiaing the appropriate
formula in Aruchnient C 11l or
an alternative lormula considcrcd
ac prahle by the RA
Is the facility located at a distance’
such that a discharge from the facility
could eause injury to an environmentally
sensitive area as defined in Appendix D’
Hi
No Submittal of Response Plan
Except at RA Discretion
IWNo CODE 1610 -60-C
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Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
8853
Attachment C—II.—Certthc&tlon of
Substantial Harm Determination Form
Facility name
Facility address
1. Does the facility have a maximum storage
capacity greater than or equal to 42,000
gallons and do the operations Include
over waler transfers of oil to or from
vessels?
Yes______ No______
2. Does the facility have a maximum storage
capacity greater than or equal to one
million (1000000) gallons and is the
facility without secondary containment
for each aboveground storage area
sufficiently large to contain the capacity
of the largest aboveground storage tank
within the storage area?
Yes______ No______
3 Does the facility have a maximum storage
capacity greater then or equal to one
million (1,000,000) gallons and is the
facility located at a distance (as
calculated using the appropriate formula
in Attachment C—Ill or an alternative
forrnulai considered acceptable by the
RA) such that a discharge from the
facility could cause Injury to an
environmentally sensitive area as
defined in Appendix D?
Yes_____ No_____
4 Does the facility have a maximum storage
capacity greater than or equal to one
million (1,000.000) gallons ar.d is the
facility located at a distance (as
calculated using the appropriate formula
in Attachment C—Ill or an alternative
formula’ considered acceptable by the
RA) such that a discharge from the
facility would shut down a public
drinking water intake?
Yes______ No______
5 Does the facility have a maximum storage
capacity greater than or equal to one
million (1.000,000) gallons and within
the past 5 years, has the facility
experienced a reportable spill in an
amount greater than or equal to 10,000
gallons?
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
‘If an alternative formula is used, documont tion
of the reliability and analytical aoundness of the
alternative formula ifluii be attached to this form
Attachment C-lIl.---C&lculatlon of the
Planning Distance
As part of the substantial harm
determination, the facility owner or operator
must evaluate whether the facility Is located
at a distance which could cause Injury to an
environmentally sensitive area or disrupt
operations at a drinking water intake To
quantify that distance. EPA considered oil
transport mechanisms over land and on still
and moving navigable waters After assessing
oil transport over land, the primary concern
for calculation of a planning distance Is the
transport of oil In navigable waters,
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 amval of response
resources The still water formula accounts
for the spread of discharged oil over the
surface of the water
EPA’s formulas were designed to be simple
to use However, facilities may calculate
planning distances using more sophisticated
formulas, which take into account broader
scientific or engineering principles, or local
conditions Such alternative formulas may
result in different planning distances than
EPA’s formulas If an alternative formula is
used to establish the appropriate distance to
sensitive environments or drinking water
intakes and it is determined that the facility
does not pose substantial harm, the owner or
operator is required to notify the RA in
wnting Documentation must be maintained
at the facility to demonstrate the reliability
and analytical soundness of the alternative
formula Those facilities that meet the
substantial harm cnteria and use an
alternative formula to determine the planning
distance must attach the documentation that
demonstrates the reliability and analytical
soundness of the alternative formula to the
response plan cover sheet in appendix C of
this part The owner or operator of a
regulated facility may determine that a
facility has the potential to cause substantial
harm to the environment without havLng to
perform a planning distance calculation For
facilities that meet the substantial harm
determination because of inadequate
secondary containment or spill history, as
listed in the flowchart in Attachment C—I,
calculation of the planning distance is
unnecessary For facilities that do not meet
the substantial harm criteria for secondary
containment and spill history listed in the
flowchart, calculation of a planning distance
far proximity to sensitive environments and
drinking water intakes is required, unless it
is clear that these areas would be impacted
without performing the calculation
Alternative formulas are subject to review
by the RA However, such formulas shall be
deemed adequate unless the RA notifies the
owner or operator in writing of specific
technical objections
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 models the flow of water in
open channels The Chezy-Manning equation
contains three variables which must be
determined by facility owners and operators
Manning’s Roughness Coefficient, n, can be
determined from Table I The hydraulic
radius. r, can be evaluated using the average
mid-channel depth from charts provided by
the sources listed in Table 2 The average
slope of the river, a, can be determined using
topographic maps that can be ordered from
the U S Geological Survey, as listed in Table
2 For farther information on fluid flow, refer
to Open Channel Hydraulics by VT. Chow,
published by McGraw Hill in ‘1959
Table 3 contains specified time intervals
for arrival of response resources at the scene
of a discharge The response times listed in
Table 3 are consistent with the U S Coast
Guard’s (USCC) proposed rulemaking for
response plans Response resources should
be prepositioned to arrive at the discharge
site within 12 hours of the discovery of an
oil discharge in Higher Volume Port Areas
and Great Lakes, and 24 hours in all other
river, inland and nearshore areas as defined
in this attachment The specified time -
Intervals have been adjusted upward to
include a three hour time period for
deployment of booms and other response
equipment. The designated Higher Volume
Port Areas listed in the definitions section
are example areas covered in the proposed
IJSCG tank vessel response plan regulation
The RA may identify additional areas as
appropnate
Oil Transport on Moving Navigable Waters
The facility owner or operator should use
the following formula to calculate the
planning distance’
d=vxtxc, where
d the distance downstream from a facility
within which an environmentally
sensitive area could be injured or
drinking water intake would be shut
down in the event of an oil discharge (in
miles),
v the velocity of the riverlnavigable water of
concern (in ft/sec) as determined by
Chezy-Manriing’s equation (see below
and Tables I and 2),
the time interval specified in Table 3 based
upon the type of water body and location
(in hours), and
c constant conversion factor 068 sec.mile/
hr’ft (3600 sec/hr+5280 ftimile)
Chary-Manning’s equation is used to
determine velocity
v=1 5/no. 2 )xsi
where
v=the velocity of the river of concern (in IV
secl
n=Manning’s Roughness Coefficient from
Table I
r=tho hydraulic radius, the hydraulic radius
cart be approximated for parabolic
channels by multiplying the average
mid-channel depth of the river (in feet)
by 667 (sources for obtaining the mid-
channel depth are listed in Table 2)
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8854
Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
s=the average slope of the river (unltless)
obtained from topographic maps
supplied by the U.S Geological Survey
listed in Table 2
TABLE 1.—MANNING’S ROUGHNESS
COEFFtCIENT FOR NATURAL STREAMS
Stream description
Rou 1 phnessoo .
Minor streams (Tog Width <100 It)
Clean
Straight
003
Winding
004
Sluggish (Weedy, deep pools)
No trees or bnjsti
006
Trees and/or brush .
0 10
Major streams (‘Top Width >100 It)
Regular Section (no boulders.’
bruSh)
0035
Irregular Section (brush)
0 05
Note Coefficients are presented for high flow rates
at or near flood stage
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
Distnbution Branch
(N/CG33)
National Ocean Service
Riverdale, Maryland 20737—1199
Phone (301) 436—6990
There will be a charge for matenals 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 Coastai and Great
Lakes Waters
Canadian Hydrographic Service
Department of Fishenes and Oceans In.
stitute
P0 Box 8080 -
1675 Russell Road
Ottawa, Ontano 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.
Alchafafaya, and other flyers)
U S Army Corps of Engineers
Vicksburg Distnct
P0 Box 60
Vicksburg, Mississippi 39180
Phone (601) 634—5000
Charts of Upper MississippI River and Il-
linois Waterway to Lake Michigan
U S Army Corps of Engineers
Rock Island Distnct
P.O Box 2004
Rock island, Illinois 61204
Phone (309) 788—6412
Charts of Missoun River
U S Army Corps of Engineers
Omaha Distnct
TABLE 2.—SOURCES OF A AND S FOR
THE CHEZY-MANNING EQUATION—Con-
tinued
6014 US Post Office and Courthouse
Omaha, Nebraska 68102
Phone (402) 221—3900
Charts of Ohio River
U S Army Corps of EngIneers
Ohio River Division
P0 Box 1159
Cincinnafi, Ohio 45201
Phone (513) 684—3002
Charts of Tennessee Valley Authority
Reservoirs, Tennessee River and Tub-
utanes
Tennessee Valley Authonty
Maps and Engineenng Section
416 Union Avenue
Knoxville, Tennessee 37902
Phone (615) 632—2921
Charts of Black Warnor River, Alabama
River, Tombigbee River,
Apalachicola River and Pearl River
U S Army Corps of Engineers
Mobile Distnct
P 0 Box 2288
Mobile, Alabama 36628—0001
Phone (205) 690—2511
The average slope of the nver (s) may be ob-
tained from topographic maps
U S Geological Survey
Map Distnbution
Federal Center
Bldg 41
Box 25286
Denver, Colorado 80225
Additional information can be obtained
from the following sources
(1) The State Department of Naval Re-
sources (DNR) or the State Aids to
Navigation office,
(2) A knowledgeable local manna opera-
tor, or
(3) A knowledgeable local water author-
ity (i e, State waler commission)
The average slope of the river(s) can
be determined from the topographic
maps using the following steps
• Locate the facility on the map.
• Find the Normal Pool Elevation at
the point of release from the facility into
the water (A).
• Find the Normal Pool Elevation of
the drinking water intake or
environmentally sensitive area 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 drinking water intake or
environmentally sensitive area is
unknown).
• If the Normal Pool Elevation is not
available, the elevation contours cast be
used to find the slope. Determine
elevation of the water at the point of
release fro.n 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.
• Determine the distance (in miles)
between the facility and the drinking
water intake or environmentally
sensitive area (C).
• Use the following formula to find
the slope, which will be a unitless
value’
Average Slope= [ (A — B) (ft)/C (miles)Jx
Ii mile/5280 feeti
If it is not feasible to determine the
slope and mid-channel depth as
required by the Chezy.Manning
equation, 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 owners and operators repeat the
measurement under a variety of
conditions to obtain the most accurate
estimate of the surface water velocity.
The planning distance calculations for
moving and still navigable waters are
based on discharges of persistent oils
released in worst case discharge
volumes Persistent oils are of concern
because they can remain in the water for
significant periods of time and can
potentially exist in large quantities
downstream. Owners and operators of
facilities that store persistent as well as
non-persistent oils may use an
alternative formula provided it is
acceptable to the RA. The volume of oil
discharged is not included as part of the
planning distance calculation for
moving navigable waters. Facility
owners and operators that will complete
this part of the substantial harm
determination are those with facility
capacities greater than or equal to one
million gallons. It is assumed that these
facilities are capable of having an oil
discharge of sufficient quantity to cause
in;ury to a sensitive environment or
shut down a drinking water intake.
While owners and 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
determination, they should use a
planning distance calculation in the
development of facility-specific
response plans.
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Federal RegLster / Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
TABLE 3.—SPECIFIED TIME INTERVA l.
8855
Higher volume port areas and Groat Lakes
Other areas
Shoreline
Rivers
and inland
..
12 hour anival + 3 hour deployment — 15 hours ..
l2hours+3hourdeployment= l5hours ..
. 24 hours + 3 hour deployment 27 hours
24 hours+3hourcieplOyment 27hours
Definitions
Great Lakes includes the Great Lakes
(Superior, Michigan, Huron, Erie and
Ontario) plus their connecting and tributary
waters including the Calumet River as Far as
Thomas J O’Brien Lock and Controlling
Works (between mile 326 and 327), the
Chicago River as far as the east side of the
Ashland Avenue Bridge (between mile 321
end 322), and the Saint Lawrence River as far
east as the lower exit of the Saint Lanibert
Lock
Higher Volume Port Area Includes
(1) Boston, MA
(2) New York, NY
(3) Dolware Bay and River, 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)
(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 and Sacramento
River, CA
(14) Straits of Juan de Fuca and Puget Sound,
WA
(15) Prince William Sound. AK
(16) others as specified by RA
Inland Area the area shoreward of the
boundary lines defined in 46 CFR Part 7,
except in the Gulf of Mexico In the Gulf of
Mexico, inland areas include the area
shoreward of the lines of demarcation
(COLREG lines asdefined in 33 CFR sections
80 740-80 850) The inland area does not
include the Great Lakes or rivers and canals
River and Canals’ bodies of water confined
within the inland area that have a controlled
navigable depth of 12 feet or less, including
the lntracoastal Waterway
Example of the Planning Distance
Calculation
The following example provides a sample
calculation using the planning distance
formula for a facility discharging into the
Monongahela River,
(1) Solve for v by evaluating n, r, and s for
the Chezy-Manning equation:
n=0 035 From Table I 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.
s=1 3x 10 ” whore A = 727 feet. B = 710 feet,
and C = 25 miles,
Solving
((727 ft—710 ft)125 mllesjx(1 rnlle/5280
feetl=1 3x10 4
r=13 33 feet The average mid-channel depth
is found by averaging the mid-channel
depth for each mile along the length of
the nver between the facility and the
drinking water intake or the
environmentally sensitive area (or 20
miles downstream if applicable). This
value is multiplied by 0 667 to obtain the
hydraulic radius The mid-channel depth
is found on the chart of the Monongahela
River
Solving
r=0 667x20 feetcl3.33 feet
Solve for v using
v=1 5/nxr xs 1 ’ 2 .
v=(1.5/O 0351x(13 33) ”x(1 3x10 4 )” 2
v=2.73 feet/second
(2) Find t from Table 3. For the
Monongahela River, the resource response
time is 27 hours
(3) Solve for planning distance, d.
d=vxtxc
d=(2 73 ft/sec)x(27 hours)x(O 68 sec.milel
hr.ft)
d=50 miles
Therefore, 50 miles downstream is the
appropriate planning distance for this
facility
Oil Tronsport on Still Wafer
For bodies of water including lakes or
ponds which do not have a measurable
velocity, the spreading of the oil over the
surface must be considered Owners and
operators of facilities located next to still
water bodies may use an alternative means of
calculating the planning distance if it is
acceptable to the RA If an alternative
formula is used, documentation of the
reliability and analytical soundness of the
alternative calculation must be attached to
the response plan cover sheet 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
2000,000 gallons is used
The surface area covered by a spill on still
water, Ai. can be determined by the
following formula 1 , where V is the volume of
the spill in gallons’
A 1 =10 3 V 3 14
V=2,000,000 gallonsxo 13368 ft 3 /
gallon=267,360 ft 3
1 Huang. J C and Monaatero. F C. 1982 Review
of the State.of.the-the Art of Oil Pollution Models
Final report submitted to the Amencan Petroleum
Institute by Raytheon Ocean Systems. Co . Ea3t
Providence, Rhode Island
A 1 =10 5 x(267,360) 3 ’ 4
Ai=1 18x10 9 ft 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)
The area of a circle=i&
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
A 2
A 2 =(nr 2 )/2
Solving for the radius, r, using the
relationship Ai=A 2
I 18x10 9 =Orr 2 )/2
r=27,404 ft
27,404 ft÷5,270 ft/mile =5 2 miles
Assuming a 20 knot wind under storm
conditions’
I knot=i 15 miles/hour
20 knotsxl 15 miles/hour/knot=23 mlhr
Assuming that the oil slick moves at 3%
of the wind’s speed 2.
23 miles/hourxo 03= 69 miles/hour
To estimate the distance that the oil will
travel, the time required for response
resources to arrive at different geographic
locations according to Table 3 Is used
For Higher Volume Port Areas and Great
Lakes 15 hrsxO 69 m/hr=10 4 miles
For other areas 27 hrsxo 69 m/hr=18 6 miles
The total distance that the oil will travel from
the point of release
Higher Volume Port Areas and Groat Lakes
10 4+5 2 miles or approximately 16
miles
Otherareas 186+52 miles or
approximately 24 miles
Oil Transport O ’ver Land
Facility owners or operators must evaluate
the potential for oil to be transported over
land to waters of the United States The
owner or operator should 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
As discharged oil travels over land, it may
enter a storm drain or open concrete channel
intended for drainage An evaluation of the
flow of oil in concrete pipes and channels
2 0i1 Prevention & Control National Spill Control
School, Corpue Christi Staie University. Thirteenth
Edition. May 1990
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8856
Federal Register I Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
reveals that the travel time through the length
of the drain is virtually instantaneous For
this reason, it is assumed that once oil
reaches such an inlet, It will flow Into the
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 channel and pipe flow The
ranges listed below reflect minimum and
maximum velocities used as design criteria,
it is shown that the time required for oil to
travel through a storm drain or open channel
to navigable water is negligible and can be
considered instantaneous. The velocities are’
For open channels
maximum velocity=2 5 feet per second
minimum velocity=3 feet per second
For storm drains:
maximum velocity=25 feet per second
minimum velocity=2 feet per second
Assuming a length of ˝ mile from the
point of discharge through a open concrete
channel or concrete storm drain to a
navigable water, the travel times (distance/
velocity) are
3 The design velocities were obtained from
Howard County. Maryland Department of Public
Works Storm Drelna e DesIgn Manual
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 at a velocity of 2 feet per
second
The distances that should be considered to
determine the planning distance are
illustrated in Figure 1 The relevant distances
can be described as follows
D1=Distance from the nearest opportunity for
release. X 1 , to storm drain or open
channel leading to navigable water
D2=Distance through storm drain or open
channel to navigable water
D3=Distance downstream from outfall within
which an environmentally sensitive area
could be injured or a drinking water
intake would be shut down as
determined by the planning distance
formula
D4=Distance from the nearest opportunity for
release, X 2 , to an environmentally
sensitive area not associated with
navigable water
Facility owners and operators whose
nearest opportunity for discharge is located
within 1/2 mile of a navigable water should
complete the planning distance calculation
or an alternative formula acceptable to the
R.A Facilities that are located at a distance
greater than /2 mile from a navigable water
should also calculate a planning distance if
they are in close proximity to storm drains
or environmentally sensitive areas.
Storm drains or concrete drainage channels
that are located in close proximity to the
facility provide a direct pathway to navigable
waters Figure 1 depicts the configuration of
a facility and denotes the storm drain as Dl
If D I is less than or equal to ˝ mile, a
discharge from the facility could pose
substantial harm since the travel time
through the storm drain to the navigable
water (D2) is instantaneous Even if the
facility is located at a distance greater than
˝ mile from the navigable water, the storm
drain provides direct access to the water,
regardless of the length of the drainage pipe.
In this case, the owner or operator should
calculate a planning distance
A facility’s proximity to an
environmentally sensitive area, as depicted
in D4 of Figure 1 should also be considered,
regardless of the distance from the facility to
navigable waters Factors to be considered in
assessing oil transport over land to sensitive
environments and storm drains should
include the topography of the surrounding
area, drainage patterns. man.made barriers
(excluding secondary containment
structures), and soil distribution and
porosity
BILUNG CODE 6560-60-P
-------
- Figure 1 -
Top
View
D4
Envlronmentalty
Sensitive Area
Not to scale **
Nearest opportunliy
for release
1
Storm Sewer
• — — _
.. .U
—— — —
D2
I1
WNO co o c
D3
( lng te or i
lntak
Environmental
Sensitive Area
‘4
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8858 Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
Appendix D to Part 112.—
Environmentally Sensitive Areas
Proximity to environmentally sensitive
areas has been identified as a factor in the
substantial harm evaluation To assist owners
and operators in identifying these areas,
environmentally sensitive areas may include
a variety of areas, such as Wetlands,
National and State parks, critical habitats for
endangered/threatened species. wilderness
and natural areas, marine sanctuaries,
conservation areas. preserves, wildlife areas,
scenic end wild rivers, seashore and
lakeshore recreational areas, and critical
biological resource areas
Other environmental areas that may be
considered by the Regional Administrator
(SAl to determine whether a facility poses
significant and substantial harm to the
environment include Federal and State lands
that are research natural 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, bird nesting areas,
designated migratory routes, and designated
seasonal habitats The RA may determine, on
a case-by-case basis, that additional areas that
possess ecological significance are
considered to be environmentally sensitive
for the purposes of this regulation
Attachment C—Ill of appendix C of this part
provides a method for owners and operators
to determine if the facility is located at a
distance such that a discharge from the
facility could cause injury to an
environmentally sensitive area The distance
calculation is based on oil transport on fast
moving and still waters and over land
“Injury” is defined in §1122 of this part
This definition of “injury” is derived from
the Natural Resource Damage Assessments
rule at 43 CFR part I I
The attachments to this appendix provide
environmental information to facility owners
and operators for the development of
response plans The attachments also provide
information regarding the boundaries of
environmentally sensitive areas located near
the facility and prioritize vulnerable areas for
protection in the event of a discharge
Attachment fl—I provides a list of responsible
Federal agencies for specific environmental
resources Critical habitats for designated
endangered/threatened species have been
designated as environmentally sensitive
areas Further information to assist owners
and operators to delineate boundaries on
critical habitats for endangered/threatened
species identified by the National Marine
Fisheries Service (NMFS) is provided in
Attachment D—ll National Marine
Sanctuaries (NMS) and National Estuarine
Research Reserves (NERR) are listed in
Attachment D—III The sanctuaries and
reserves are protected by various Federal
regulations In order to prioritize and allocate
sufficient resources for oil containment and
recovery in the event of a discharge,
Attachments D—IV and fl—V present a
comparison of the vulnerability of certain
aquatic ecosystems to oil discharges
Attachment fl—tV presents a list of aquatic
habitats, their importance, and vulnerability
to oil discharges Attachment fl—V ranks
several aquatic habitats on their relative
vulnerability to oil This prioritized list will
help owners and operators to direct their
initial spill response to the most critical
areas
Areas considered as environmentally
sensitive will change as the various Federal
and State agencies responsible for
designating the areas periodically update
their lists Owners and operators are
expected to ensure that facility response
plans reflect the listing of sensitive
environments published to a point in time 6
months prior to plan submission For
example, plans submitted to meet the
February 18, 1993, deadline would only need
to consider sensitive environments
designated by responsible agencies in
Attachment D—l as of August 18, 1992 A 6-
month cutoff point for considering
environmentally sensitive areas would also
apply in situations where plans are
periodically updated or resubmitted for
approval of a material change.
Attachment D—I.—Responsible Federal
Agencies for Specific Environmental
Resources
For more information on the following
areas, owners and operators should contact
the responsible agency listed below. These
agencies will provide assistance, including
mops, for the areas under their jurisdiction
Areas
Respon a bie
tederal agency
Wetlands, as defined in 40 CFR
EPA’
2303
CrItical habitat for designated or
NOMJFWS
proposed endangered/threat-
ened species
Habitat used by designated or pro-
NO AJFWS
posed endangered/threatened
specIes or marine mammals de-
fined as depleted
Marine sanctuaries , -
NOAA
National parlia
DOL/NPS
Federal wilderness areas
USDA
Coast Zone Management Act des-
NOM
grated areas
National estuary program
NOAA
Near coastal waters program
EPA’
areas
Clean lakes program critical areas
EPA’
National monuments
DOT
National seashore recreational
DOIJNPS
areas
National lakeshore recreatIonal
001
areas
NatIonal preserves
DOl
National wildlIfe refuges
NOANFWS
Coastal barrier resource system
FWS
(units, undeveloped, partially de-
ve l ope
National river reach designated as
EPA’
recroatronat
Federal or state designated scenic
DOt
or WIld river
National conservation areas -,
DOI/BLM
Hatcheries - ..
FWS
Waterfowl management areas
FWS
‘Where EPA La desIgnated as the responsible
agency, the Information will be provided by the
appropriate Regional office
NOTE Please contact Stale or local agencies for
Information on resources they manage
Acronyms
BLM—Bureau of Land Management
DOI—Department of Interior
EPA—Environmental Protection Agency
FWS—Fish and Wildlife Service
NOAA—National Oceanic and Atmospheric
Administration
NPS—National Park Service
USDA—United States Department of
Agriculture
Attachment D-Il —Critical Habitats and
Endangeredfrhreatened Species
1. Designated Critical Habitat for National
Marine Fisheries Service (NMFS) Species
The following locations have been
designated as critical habitats for NMFS
species These habitats are considered
environmentally sensitive areas and are
preserved by the government Habitat
boundaries for the NMFS species listed
below are identified in the 50 CFR parts 226
and 227. This list is not all-inclusive Facility
owners and operators should contact the
appropnate NMFS region listed in Section 3
of this attachment for further information
NMFS spades
location
Hawaiian monk seal
Leatherback sea turtle
35 Stellar sea lion rook’
NW Hawaiian Islands
Sandy Pt - Si Croix,
USVI
Alaska/N Pacific Coast
es’y sites
Winter-run chinook salm-
Sacramento River, CA
on
2 Seasonal Critical Habitats
Primary seasonal habitat areas for
endangered species as identified in recovery
plans and other technical documents are
listed below Facility owners and operators
should contact the appropriate NMFS region
listed in Section 3 of this attachment for
further information
Northern Right Whale (Final Recovery Plan,
December 1991)
Florida—Georgia coast from 28°N to 32°N
during the months of December through
March Calving and nursery area
Cape Cod—Massachusetts Bay during the
months of March—September Primary
feeding areas
Great South Channel on the western edge
of Georges Bank and Jeffrey’s Ledge during
the months of March—September Primary
feeding area
Humpback Whale—East Coast Population
(Final Recovery Plan, November 1991)
Gulf of Maine, Great South Channel
Stellwagen Bank, and effrey’s Ledge during
the period from mid-April through mid-
November Primary feeding area
Silver Bank and Navidad Bank off the coast
of Puerto Rico. coastal areas off the northwest
coast of Puerto Rico, and the U S Virgin
Islands from mid-December through early
April Calving and nursery area
Humpback Whale—West Coast Population
(Final Recovery Plan, November 1991)
Hawaiian Islands (Central North Pacific
stock) and Guam (Western North Pacific
stock) from December—April Calving and
nursery area
Central and western Gulf of Alaska,
including Prince William Sound. Shelikof
Straight, Barren Islands and the southern
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Federal Register I Vol. 58, No. 30 / Wednesday. February 17, 1993 / Proposed Rules
8859
coastline of the Alaska peninsula during the
months of May—November Primary feeding
58
Inside Passage and coastal waters of the
southeast Alaska panhandle from Yakutat
Bay south to Queen Charlotte Sound during
the months May—November. This area
includes Glacier Bay, by Straight, Stephens
Passage/Frederick Sound, Seymour Canal,
Sitka Sound, Cape Fairweather, Lynn Canal,
Sumner Straight. Dixon Entrance, the west
coast of Prince Wales Islands, and the
Fairweather grounds which is an offshore
bank Primary feeding area.
Shortnose Sturgeon (NOAA Technical Report
NMFS 14 end FAO Fisheries Synopais No
140)
The following east coast rivers and bays
should be included Kennebec River,
Andrescoggin River, Montsweag Bay,
Memmack River, Connecticut River, Hudson
River, Delaware River, Wacoamaw River
(including Winyah Bay), Lake Marion-
Wateree River, lower Savannah River,
Altamaha River, Ocurnulgee River, and St
Johns River
Gray Whale (5 Year Status Review)
Northern Bering and southern Chukchi
Seas Primary feeding areas
Unlike other whale species, the gray whale
is particularly vulnerable during its
migration period because it migrates very
close to shore In areas such as Monterey end
Point Conception it migrates within two
niles of shore The entire west coast from
laska to the Mexican border should be
listed during the migration periods
Southbound migration is during the months
of October—December, and northbound
migration is from mid-February to April
Sacramento River Winter-run Chinook
Salmon should be revised to reflect the
revised critical habitat proposal, 57 FR
36626—36632, August 14, 1992
(1) Sacramento River from Keswick Dam
(River Mile 302) to Chipps Island (River Mile
0) at the westward margin of Sacramento-San
Joaquiri Delta,
(2) all waters from Chipps Island westward
to Carquinez Bridge. including Honker Bay,
Grizzly Bay, Suisan Bay, and Carquinez
Straight,
(3) all waters of San Pablo bay from San
Pablo Bay to the Golden Gate bridge
3 NOAA National Marine Fisheries Service
Regional Offices
NMFS Northeast Region. Richard B Roe,
Director, One Blackburn Drive, Gloucester.
MA 01930, Tel (508) 281—9250
NMFS Southeast Region, Andrew Kemrnerer,
Director. 9450 Koger Blvd . St Petersburg.
FL 33702, Tel. (813) 893—3141
NMFS Northwest Region, Rolland Schmitten,
Director, 7600 Sand Point Way NE, Seattle.
WA 98115—0070, Tel (206) 526—6150
FMFS Southwest Region, Gary Matlock.
Acting Director, 501 West Ocean Blvd.,
Suite 4200, Long Beach, CA 90802—4213,
Tel (310) 980—4001
NMFS Alaska Region, Steven Pennoyer,
Director, Post Office Box 21668, Juneau,
AK 99802, Tel (907) 586—7221.
Attachment D-III.—Marine Sanctuary and
Fatuarine Reserves
The following sanctuaries and reserves are
protected by Federal regulations:
National ma-
av-
(NMS)
Location
Regulation
Monitor
NMS
North Cam-
line
15 CFR part 924
KeyLargo
NUS
Florida
l SCFRpar l929
Channel Is-
lands
CalifornIa
15 CFR part 935
NMS
Point Reyosi
Farallon
CalifornIa
15 CFR part 936
Island
NMS
boo Key
NMS
Florida
15 CFR part 937
Grays Root
NMS
Georgia
15 CFR part 938
Fagatele
Bay NMS
AmerIcan
Samoa
15 CFR part 941
Cordell Bank
NMS
CalifornIa
15 CFR part 942
Florida Keys
NMS
Florida
pending’
Flower Get-
den Banks
Texas
15 CFR part 9.43
NMS
National estuarine re-
search reserve (NEAR)
Wells NEAR Rachel Carson Refuge,
ME
Great Bay NEAR Durham, NH
Waquoft Bay NEAR Massachusells
Narragansett Bay NEAR Rhode Island
Hudson River NEAR New Voit
Old Woman Creek NEAR Huron, OH
Chesapeake Bay NEAR, Annapolis, MD
MD
Chesapeake Bay NERR, Gloucester Pt,
VA
North Carolina NEAR Wilmington, NC
Sapeio Island NEAR Georgia
Jobos Bay NERR Guayama, PA
Apaiachlcoia Rivet NEAR Florida
Rookery Bay NEAR Naples, FL
Weeks Bay NEAR Fairtiope. AL
Tijuana River NEAR Impertai Beach, CA
Elithorn Slough NEAR Watsonviiie, CA
Soulh Slough NEAR Charleston. OR
Padilla Bay NEAR Ml Vernon, WA
Watmanu Valley NEAR Oahu, HI
Information orr those sanctuaries and reserves can
be found In the reg .ilalions
—National Marine Sanctuary Program (15 CFR
pan 922)
—National Estuarina Research Reserve Pro-
gram (15 CFR part 921)
‘Currently designated a National Marina Sanctuarl
by the Office ol Ocean and Coastal Resource
Management. Sanctuaries and Reserves DivisIon
Publication in Federal Register is pending
For additional information on area
boundaries for all sites, and proposed
Sanctuaries and Estuarine Reserves contact
Office of Ocean and Coastal Resource
Management, Sanctuaries and Reserves
Area of concern
DivIsion, 1825 Connecticut Avenue, NW,
room 714, Washington. DC 20235
Attachment D-.IV.—Vulnerability of Aquatic
Ecosystems
Habllat
fmportarice
Vuinerabiiity
to oil dis-
charges
Intertidal shore
Sandy Beach
Moderate
Rocky Shore
High
Tidal Flat
Bird nesting and
feeding
High
Intertidal wet-
lands
Marshes
Breeding for
nursery
grounds for fish
and wildiife,
erosion conirol.
end nutrient
trap
Low-high
Mangroves
Subtidal systems
Nigh
Seagrass
Fish feeding and
nursery, sedi
ment contaIn-
ment and sta-
bilization
High
Coral Reef
Soft Bottom
High
High
Rocky
Moderate
Fisheries
-
Offshore
Commercial fish-
Low (except
ones
spawning)
Nearshore
Moderate-
High
Coral Reef -
Freshwater
High
Fast Flowing
Fisheries
Moderate
Large River
FIsheries
Moderate
Ponds
Aquacutture
High
Lakes
Fisheries
Low
Tundra/Taiga
High
SOURCE Uniled States Department of the interior,
Fish and Wildlife Service Nalionai Wetlands
Research Center
Attachment D-V.—Vulnerebility Scale of
Aquatic Habitats Impacted by Oil Spills
This attachment ranks aquatic habitats by
their relative degree of vulnerability to oil
spills The most vulnerable habitats are those
with the lowest number corresponding to the
order of importance Facility owners and
operators should use the scale to direct initial
recovery efforts to the most critical areas
urder of im-
portance
Habitat
Subtidal soft bottoms, seagrass corn-
murtilies and freshwater systems
which once impacted may incur
bog-term damage
Sheitered marshes arid mangrove
coasts, difficult to clean
Sheltered estuanne lidai flats, natural
cleansing may take years
Sheilarod rocky coasts, oil may not
be washed off for months, residual
toxicity low but may alter habtat
and slow recovery process
Corai Reefs
Gravei beaches, oil penetrales up to
60 cenlimeters and persists as a
mousse for long periods
Mixed sand and gravel beaches, pen-
etration of oh and rapid burial, oil
may persist for year, mechanical
cleanup may cause sigriiticant ero-
sion
2
3
3-4
4
5
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8860
Federal Register I Vol. 58, No. 30 / Wednesday, February 17, 1993 I Proposed Rules
Order of Im-
portance
Habitat
6
Eqosed, compacted tidal lIst, cit
penetrates deeply
7 .,
Medium-coarse gratned sand beach-
es, oil penetration lIkely.
8
FIat, fine-gralned sand beaches, com-
paction prohibits oil penetration
9
ErodIng wave-cut platforms, good
wave action
10. ..
E osed or clued rock headlands,
good wave action
SOURCE United States Department of the Intetlor,
Fish and Wildlife Service National Wetlands
Research Center
Appendix E to Part 112—Determiantion of a
Worst Case Discharge
Instructions
Owners end operators are required to
complete this worksheet if It is determined
(from appendix C of this part) that the facility
could cause substantial harm to the
environment by self-selection or RA
determination. The calculation of a worst
case discharge is use for emergency planning
purposes, and is required in § 112 20 for
facility owners and 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 should be taken Into
consideration. Owners and operators would
be required to determine the facility’s worst
case discharge from either part A for onshore
storage facilities, or part B for onshore
production facilities The worksheet
Integrate., a facility’s use of secondary
containment and its proximity to navigable
waters
For onshore storage facilities and
production facilities, permanently
manifolded 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. In a worst case
discharge scenario a single failure could
cause the release 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 volume would be based
on the capacity of the largest tank within e
common secondary containment area or the
largest tank within a single secondary
containment area, whichever is greater.
For permanently manifolded tanks that
function as one storage unit, the worst case
discharge would be based on the combined
storage capacity of all manifolded tanks or
the cap8city of the largest single tank within
a secondary containment area, whichever is
greater. For purposes of this determination,
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
For production facilities, the presence of
exploratory wells, production wells, and
storage tanks must be considered in the
calculation Part B takes these additional
factors into consideration and provides steps
for their inclusion in the total worst case
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 volume is calculated within each section
of the worksheet, the final worst case amount
is dependent on the risk parameter that
results In the greatest volume.
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 UScx also
requires response plans from transportation-
related facilities to address a worst case
discharge of oil, a separate calculation for the
worst case discharge volume for USCG-
related facilities is included in the interim
final rule which amends 33 CFR part 154 (58
FR 7330, February 5, 1993) All “complexes”
must compare both calculations for worst
case discharge derived by EPA and USCG
and plan for whichever volume is greater
Part A Worst Case Discharge Calculation for
Onshore Storage Facilities’
Part A of this worksheet is to be completed
by owners or operators of SPCC-regulated
facilities (excluding oil production facilities)
if it Is determined that the facility could
cause substantial harm to the environment by
self.selection or RA determination, as
presented in Appendix C of this part
If you are the owner or operator of a
production facility, please proceed to Part B
Al Single-Tank Facilities
For facilities containing only one
aboveground storage tank, the worst case
volume equals the capacity of the storage
tank.
—Final Worst Case Volume
____________Gal
—Do not proceed further,
A2 Secondary Containment—Multiple Tank
Facilities
Are all aboveground storage tanks or
groups of aboveground storage tanks at the
facility without adequate secondary
containment? 2 _______________(YIN)
a If the answer is yes, the final worst case
volume equals the total aboveground oil
storage capacity at the facility
—Final Worst Case Volume.
____________Gal
—Do not proceed further,
b If the answer is no, calculate the total
aboveground capacity of tanks without
adequate secondary containment. If all
aboveground storage tanks or groups of
aboveground storage tanks at the facility have
adequate secondary containment. ENTER ‘0”
(zero). ________________Gal.
“Storage facilities” represent all facilities
sublect to this part, excluding oil production
facilities
‘Secondary containment is defined in
S 112 7(e)(2l 0140 CFR Part 112. revised as of July
1. 1992 Acceptable methods and structures for
containment are given in 5112 7(c)(I) of4O CFR
Part 112, revised as of July 1, 1992
—Proceed to question A3.
A3. Distance to Navigable Waters
a Is the nearest opportunity for discharge
(I a., storage tank, piping, or flowline)
adjacent to a navigable water? 3
____________(YIN)
b. If the answer is yes, calculate 110% of
the capacity of the largest single aboveground
storage tank within a secondary containment
area or 110% of the combined capacity of a
group of aboveground storage tanks
permanently manifolded tog”ther, 4
whichever is greater, PLUS THE VOLUME
DETERMINED IN QUESTION A2(b)
—Final Worst Case Volume’
___________Gal
—Do not proceed further
c If the answer is no, calculate the capacity
of the largest single aboveground storage tank
within a secondary containment area or the
combined capacity of a group of aboveground
storage tanks permanently manifolded
together. whichever is greater, PLUS THE
VOLUME FROM QUESTION A2(b)
—Final Worst Case Volume 6
____________Gal.
Part B Worst Case Discharge Calculation for
Onshore Production Facilities
Part B of this worksheet Is to be completed
by owners or operators of SPCC-regulated oil
production facilities that are determined by
the RA to have the potential to cause
substantial harm and are required to prepare
and submit a response plan 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
BI Single-Tank Facility
For facilities containing only one
aboveground storage tank, the worst case
‘Nevigable waters are defined in 40 CFR Part
110
For one or more independent aboveground
storage tanks within a secondary containment area,
this amount is simply 110% of the capacity of the
largest tank Permanently mansfolded 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 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 R.A.
the worst case discharge volume would be based on
the capacity of 110% of the largest tank within a
common secondary containment area or 110% of
the largest tank in a single containment area,
whichever is greater For permanently manliolded
tanks that function as one storage unit, the worst
case discharge volume would be based on 110% of
the combined storage capacity of all masufolded
tanks or 110% of the largest single tank within a
secondary containment area, whichever is greater
For purposes of this determination, permanently
manifolded tanks that are separated by internal
divisions for each tank are considered to be single
tanks and Individual manilolded tank volumes are
not combined
‘lithe volume determined in Question A3(b) is
greater than the total aboveground storage capacIty
of the facility, fill in the lesser of these t o volumes
in the space provided
All ‘complexes” lointly regulated by EPA and
USCG muSt also calculate the worst case discharge
for the transportation-related portions of the facility
and plan for whichever volume is greater
-------
Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1993 I Proposed Rules
8861
volume equals the capacity of the
eboveground storage tank plus the
production volume of the well with the
highest output (forecasted output for
exploratory wells and production wells
producing under pressure) at the facility. 7
—Final Worst Case Volume
____________ Gal
—Do not proceed further.
B2. Secondary Containment—Multiple Tank
Facilities
Are all aboveground storage tanks or
groups of aboveground storage tanks at the
facility without adequate secondary
containment? ______________ (YIN)
a If the answer is yes, the final worst case
volume equals the total aboveground oil
storage capacity without adequate secondary
containment plus the production volume of
the well with the highest output (forecasted
output for exploratory wells and production
wells producing under pressure) at the
facility?’
—Final Worst Case Volume:
____________ Gal
—Do not proceed further
b If the answer is no, calculate the total
aboveground capacity of tanks without
adequate secondary containment If all
aboveground storage tanks or groups of
aboveground storage tanks at the facility have
adequate secondary containment, ENTER “0.’
(zero) ________________________ Gal
—Proceed to question B3
B3 Distance to Navigable Waters
a Is the nearest opportunity for discharge
(i e , storage tank, piping, or flowline)
adjacent to a navigable water?
_____________ (Y/N)
b If the answer to the above question is
yes, calculate 110% of the capacity of the
largest single aboveground storage tank
within a secondary containment area or
110% of the combined capacity of a group of
aboveground storage tanks permanently
manifolded together, 8 whichever is greater.
production volume for each production
well (producing by pumping) is determined from
the pumping rate of the well multiplied by 1 5
times the number of days the facility is unattended
For each exploratory well (and production well
producing under pressure) 10.000 feet deep or less.
the production volume refers to the maximum 30.
day forecasted well rate for the exploratory well or
production well producing under pressure
For each exploratory well (and production well
producing under pressure) deeper than 10,000 feet.
the production volume refers to the maximum 45
day forecasted well rate for the exploratory well or
production well producing under pressure
a For one or more independent aboveground
storage tanks within a secondary containment area.
this amount is simply 110% of the capacity of the
largest tank Permanently manifolded 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 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 volume would be based on
the capacity of 110% of the largest tank within a
common secondary containment area or 110% of
the largest tank in a single containment area.
plus the production volume of the well with
the highest output (forecasted output for
exploratory wells producing under pressure),
PLUS THE VOLUME FROM QUESTION
B2(b). 9
—Final Worst Case Volume.
_____________ Gal
—Do not proceed further
c If the answer to the above question is no,
calculate the capacity of the largest single
aboveground storage tank within a secondary
containment area or the combined capacity of
a group of aboveground storage tanks
permanently manifolded together, whichever
as greater, plus the production volume’ of
the well with the highest output (forecasted
output for exploratory wells producing under
pressure), PLUS THE VOLUME FROM
QUESTION B2(b).
—Final Worst Case Volume 10
___________ Gal
Appendix F to Part 112—Guidelines for
Determining and Evaluating Required
Response Resources for Facility
Response Plane
I Purpose
I I The purpose of this appendix is to
assist in the identification of response
resources necessary to meet the requirements
of § 112 20 These guidelines should be used
by the facility owner or operator in preparing
the response plan and by the Regional
Administrator (RA) in reviewing facility
response plans
2 Equipment Operability and Readiness
2 1 All equipment identified in the
response plan should be designed to operate
in conditions based on location and season
As a result, it is difficult to identify a single
catalogue of response equipment that will
function effectively in each geographic
location
2 2 If applicable, facilities handling or
storing oil in more than one operating
environment, as indicated in Table I, should
identify equipment capable of successfully
functioning in each operating environment
2 3 When identifying equipment in the
response plan. a facility owner or operator
should consider the inherent limitations of
the operability of equipment components and
response systems’ The criteria in Table I
should be used for evaluating the operability
whichever is greater For permanently manifolded
tanks that function as one storage Unit, the worst
case discharge volume would be based on 110% of
the combined storage capacity of all manifolded
tanks or 110% of the largest single tank within a
secondary containment area, whichever is greater
For purposes of this determination, permanently
manifolded tanks that are separated by internal
divisions for each tank are considered to be sIngle
tanks and individual manlfolded tank volumes are
not combined
9 1f the volume determined in Question B3(b) is
greater than the total aboveground storage capacity
of the facility, fill in the lesser of these two volumes
in the apace provided
‘°All “complexes” jointly regulated by EPA and
IJSCG must also calculate the worst case discharge
fo the transportation.related portions of the facility
and plan for whichever volume ii greater
In a given environment These criteria reflect
the general conditions in certain operating
areas.
2.4 Table I lists criteria for oil recovery
devices and boom. All other equipment
necessary to sustain or support response
operations in a geographic area should be
designed to function in the same conditions.
For example, boats which deploy or support
skimmers or boom should be capable of being
safely operated in the significant wave
heights listed for the applicable operating
environment.
2.5 Facility owners or operators should
refer to the applicable Area Contingency Plan
(ACP), when available, to determine if ice,
debris, and/or weather.related visibility are
significant factors in evaluating the
operability of equipment. The AcP may also
identify the average temperature ranges
expected in the facility’s geographic area. All
equipment identified in a response plan
should be designed to operate within the
specified conditions or ranges
2 6 This appendix provides guidance on
response resource mobilization and response
times The distance to the facility from the
storage location of the response resources
should be used in determining whether the
resources can arrive on scene within the time
required A facility owner or operator should
include the time for notification, -
mobilization, and travel time of resources
identified to meet the small, medium, and
worst case discharge requirements in the
response plan An on-water speed of 10 knots
and a land speed of 35 miles per hour should
be assumed for calculating the travel time to
the site of the discharge. unless the facility
owner or operator can demonstrate
otherwise
2 7 In identifying equipment, the facility
owner or operator should list the storage
location, quantity, and manufacturer’s make
and model as required In appendix C of this
part For oil recovery devices, the effective
daily recovery rate, as determined using
section 6 of this appendix, should be
included A facility owner or operator is
responsible for ensuring that the identified
boom has compatible connectors
3 Determining Response Resources Required
for Small Discharges
3 1 A facility owner or operator should
ensure that sufficient response resources are
available for responding to a small discharge.
A small spill is defined as any spill volume
less than or equal to 2,100 gallons, but not
to exceed the calculated worst case
discharge
3 2 “Complexes,” which are facilities
regulated by EPA and U S Coast Guard
(USCG), must also consider planning
quantities for the transportation.related
transfer portion of the facility. The USCG
planning level synonymous with the small
discharge is termed the average most
probable discharge The USCG interim final
rule which amends 33 CFR part 154 (58 FR
7330, February 5, 1993) defines the average
most probable discharge as a discharge of 50
barrels (2,100 gallons) Because “complexes”
must compare spill volumes for a small
discharge (2,100 gallons) and an average most
probable discharge (2.100 gallons). and the
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8862 Federal Register / Vol. 58, No. 30 I Wednesday, February 17, 1993 I Proposed Rules
two planning quantities are Identical,
complex facilities must plan for small spills
less than or equal to 2,100 gallons.
3.3 Whore applicable, the following
resources should be available in the event of
this type of discharge.
3 3 1 1.000 feet of containment boom end
a means of immediate deployment
3 3 2 Oil recovery devices with an
effective daily recovery rate equal to the
amount of oil discharged in a small spill.
within two hours of the detection of an oil
discharge
3.3 3 Oil storage capacity for recovered
oily material as indicated in section 8 2 of
this appendix
4 Determining Response Resources Required
for Medium Discharges
4 1 A facility owner or operator should
ensure that sufficient response resources are
available for responding to a medium
discharge of oil from a facility This response
will require resources capable of containing
and collecting up to 36.000 gallons of oil or
10 percent of the capacity of the largest
aboveground storage tank, whichever is less
4 2 “Complexes” regulated by EPA and
US G must also consider planning quantities
for the transportation-related transfer portion
of the facility The IJSCG planning level
synonymous with the medium discharge is
termed the maximum most probable
discharge The US(X interim final rule
which amends 33 (YR part 154 (58 FR 7330;
February 5. 1993) defines the maximum most
probable as a discharge of 1,200 barrels
(50,400 gallons) or 10 percent of the worst
case discharge, whichever is less Owners
end operators of “complexes” must compare
spill volumes for a medium discharge and a
maximum most probable discharge and plan
for whichever quantity is greater
4 3 Oil recovery devices identified to
meet the applicable medium discharge
volume planning criteria, should be able to
arrive 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 Attachment C—Ill of appendix C of
this part
4 4 Because rapid control, containment,
and removal of oil is critical in reducing spill
impact. the effective daily recovery rate for
oil recovery devices should equal 50 percent
of the planning volume applicable to the
facility as determined in section 4 1 of this
appendix The effective daily recovery rate
for oil recovery devices identified in the plan
should be determined using the criteria in
section 6 of this appendix
4 5 In addition to oil recovery capacity,
the plan should identify and ensure the
availability of, through contract or other
approved means, sufficient quantity of boom
available within the recommended response
times for oil collection and containment and
protection of shoreline areas The response
plan should identify and ensure the
availability of the quantity of boom available
through contract or other approved means
4 6 The plan should indicate the
availability of temporary storage capacity to
meet the requirements of section 8 2 of this
appendix If available storage capacity is
insuffIcient to meet this requirement, then
the effective daily recovery rate should be
derated 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 areas. The facility’s
largest aboveground storage tank volume is
840.000 gallons Ten percent of this capacity
is 84,000 gallons Since 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 rate should be 50 percent of
the planning volume, or 18,000 gallons per
day. The ability of oil recovery devices to
meet this capacity should be calculated using
the procedures in section 6 of this appendix.
Temporary storage capacity available on-
scene should equal twice the daily recovery
rate as indicated in section 8.2 of this
appendix, or 36,000 gallons per day. The
facility owner or operator would use this
information to identify and ensure the
availability of. through contract or other
approved means, the required response
resources The facility owner should also
need to identify how much boom is available
for use
5 Determining Response Resources Required
for the Worst Case Discharge to the
Maximum Extent Procticable
5 1 A facility owner or operator should
specify the availability of sufficient response
resources to respond to the worst case
discharge as calculated using appendix E of
this part Section 7 describes the method
used in determining adequate response
resources for a worst case discharge. A
worksheet is provided as Attachment F—I 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” regulated by EPA and
USCG must also consider planning for the
worst case discharge at the transportation.
related portion of the facility Because the
US(X also requires response plans from
transportation.related facilities to address a
worst case discharge of oil in the interim
final rule which amends 33 CFR part 154 (58
FR 7330. February 5, 1993), a separate
calculation for the worst case discharge
volume has been developed for USCX-related
facilities. All complex facilities must
compare both calculations of worst case
discharge derived by EPA and UScX and
plan for whichever volume is greater
5 3 Oil spill recovery devices (i e.,
equipment and resources) identified to meet
the applicable worst case discharge planning
volume should be able to arrive on the scene
of a discharge within the time specified for
the applicable response tier listed below’
TIer 1
(his)
Tier 2
(his)
TIer 3
(his)
Higher volume port
area
GreatLakes -
All other river, Inland,
an l nearshore areas
6
6
12
30
30
36
54
54
60
The three levels of response tiers apply to
the amount of time in which response
equipment and resources should 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 should arnve
at the scene of the spill within 12 hours, the
second tier of response resources should
arrive within 36 hours, and the third tier of
response resources should arrive within 60
hours
5 4 The effective daily recovery rate for
oil recovery devices identified in the
response plan should be determined using
the criteria in section 6 of this appendix The
storage locations of all equipment used to
fulfill the requirements for each tier should
be identified The owner or operator of a
facility whose required daily recovery
capacity exceeds the applicable contracting
caps in Table 5 should identify sources of
additional equipment, its location, and the
arrangements made to obtain this equipment
during a response While general listings of
available response equipment may be used to
identify additional sources, the response plan
should identify the specific sources and
quantities of equipment that a facility owner
or operator has considered in their planning
5 5 In addition to oil spill recovery
davices, a facility owner or operator should
identify and ensure the availability of, -
through contract or other approved means,
sufficient quantities of boom that can arrive
on-scene within the required response times
for oil containment and collection and
protection of shorelines areas
5.6 A facility owner or operator should
identify the availability of temporary storage
capacity to meet the requirements of section
8 2 of this appendix If available storage
capacity is insufficient to meet this
recommendation, then the effective daily
recovery rate should be derated to the limits
of the available storage capacity.
6 Determining Effective Daily Recoverj Rate
for Oil Recovery Devices
6 1 Oil recovery devices identified bye
facility owner or operator should include
information on the manufacturer, model, and
effective daily recovery rate These rates
should be used to determine whether there
is sufficient capacity to meet, to the
maximum extant practicable. the applicable
planning criteria for a small discharge,
medium discharge. and worst case discharge.
6 2 For the purposes of determining the
effective daily recovery rate of oil recovery
devices, the following method should be
used This method considers potential
limitations due to available daylight.
weather, sea state, and percentage of
emulsified oil in the recovered material
6.2 1 The following formula should be
used to calculate the effective daily recovery
rate
R=Tx24 hoursxE
R—Effectivo daily recovery rate
1—Throughput rate in barrels per hour
(nameplate capacity)
E—20% Efficiency factor (or lower factor
as determined by R.A)
6 2 2 For those devices in which the
pump limits the Ihroughput of liquid.
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Federal Register / Vol. 58, No. 30 I Wednesday, February 17. 1993 / Proposed Rules
8863
throughput rate should be calculated usIng
the pump capacity
6 2 3 For belt- or mop-type devices, the
throughput rate should be calculated using
the speed of the belt or mop, surface area of
the belt or mop in contact with the water
surface; and the oil encounter rate, For
purposes of this calculation, the assumed
thickness of oil should be Ľ inch
6 3 As an alternative to 6.2, a facility
owner or operator may provide adequate
evidence that a different effective daily
recovery rate 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
F631—80, P808—83 (1988)
6 3 1 The following formula should be
used to calculate the effective daily recovery
rate under this alternative
R=DxU
R—Effective daily recovery rate
D—Average oil recovery rate in barrels per
hour (Item 26 in P808—83, Item 13.1 15
in F63 1—80, or actual performance data)
U—Hours per day that a facility owner or
operator can document capability to
operate equipment under spill
conditions Ten hours per day should be
used unless a facility owner or operator
can demonstrate that the recovery
operation can be sustained for longer
pe. iods
64 A facility owner or operator
submitting a response plan should provide
data that supports the effective daily recovery
rates icr the oil recovery devices listed The
following is an example of these calculations
A weir skimmer identified in a response
plan has a manufacturer’s rated throughput at
the pump of 267 gallons per minute (gpm)
T=267 gpm=381 barrels per hour
R 381x24x 2 1 .829 barrels per day
After testing using ASTM procedures, the
skimmers 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 gprn = 314 barrels per hour
R = 314 x 12 = 3,768 barrels per day
The facility owner or operator will be able
to use the higher rate if sufficient temporary
oil storage capacity is available
7 Calculating Planning Volumes foro Worst
Case Discharge
7 1 A facility owner or operator shall plan
for a response to the facility’s worst case
discharge volume of oil The worst case
discharge calculation worksheet appears In
appendu E of this part Planning foron-
water recovery should take into account a
loss of some oil to the environment due to
evaporative and natural dissipation, potential
increases in volume due to emulsification,
and the potential for deposit of o l on the
shoreline
7 2 The procedures discussed in sections
7 2 1—7,2 4 should be used to calculate the
.annlrig volume for response resources used
a facility owner or operator in determining
uie required on-water recovery capacity’
7 2,1 The following should be
determined the worst case discharge volume
of oil In the facility, the appropriate group(s)
for the type of oil handled or stored at the
facility (persistent (Groups 2, 3. 4) or non-
persistent (Group 1)), and the geographic
location of the facility. See Attachment F—2
for definitions of persistent and non-
persistent oils. Facilities that handle or store
oil from different oil groups should calculate
each group separately. This Information
should be used with Table 2 to determine the
percentages of the total volume required for
removal capacity planning Table 2 divides
the volume Into three categories: Oil lost to
the env1rcnment oil deposited on the
shoreline: end oil available for on-water
recovery.
7.2.2 The on-water oil recovery volume
for response resources should be adjusted
using the appropriate emulsification factor
found in Table 3.
7 2.3 The adjusted volume is multiplied
by the on-water oil recovery resource
mobilization factor found in Table 4,
resultIng In total on-water oil recovery
capacity in barrels per day that should be
identified or contracted to arrive on-scene
within the applicable time for each response
tier. The on-water resource recovery
mobilization factor depends on the operating
area end the three response tiers For higher
volume port areas and the Great Lakes, as
defined in Attachment C—ill of appendix C,
of this part, the contracted tiers of resources
should be located so that they can arrive 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 river, inland.
and near shore areas, response resources
should arrive within 12, 36, and 60 hours for
tiers 1, 2. and 3, respectively
7.2.4 The resulting on-water recovery
capacity in barrels per day for each tier is
used to identify response resources necessary
to sustain operations In the applicable
geographic area The equipment should be
capable of sustaining operations for lhe time
period Specified in Table 2 A facility owner
or operator should Identify and ensure the
availability of, through contract or other
approved means, 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, then a facIlity owner or operator
should contract only for the quantity of
resources required to meet the cap, but
should identify sources of additional
resources as IndIcated In sectIon 54 of this
appendix The owner or operator of a facility
whose planning volume exceeds the cap In
1993 should make arrangements for
additional capacIty to be under contract by
1998 The process should be repeated In 1998
and 2003 For a facility that carries multiple
groups of oil, the required effective daily
recovery capacity for each group should be
calculated before applying the cap
7.3 The procedures discussed in sections
7.3.1—7.3.3 should be used to calculate the
plannIng volume for response resources for
identifying shoreline cleanup capacity.
7 3.1 The following should be
determined The worst case discharge
volume of oil for the facIlity, the appropriate
group(s) for the type of oil handled or stored
at the facility Ipersistent (Groups 2. 3,4) or
non-persistent (Group 1)1; and the geographic
area(s) In which the facility operates For a
facility storing oil from different groups, each
group should be calculated separately Using
this information, Table 2 should be used to
determine the percentages of the total volume
of oil required for shoreline cleanup resource
planning
7 3 2 The shoreline cleanup planning
volume for resource planning should be
adjusted to reflect an emulsification factor
using the same procedure as described in
section 7.2 2.
7.3.3 The resulting volume should be
used to Identify response resources necessary
for shoreline cleanup.
7.4 The following Is an example of the
procedure described above: A facility with a
270,000 barrel (11 3 million gallons) capacity
for #6 oil (specific gravity .96) is located in
a higher volume port area The facIlity Is on
a peninsula and has docks on both the ocean
and bay side. The facility has four
aboveground 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 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 Lank area, which is capable of
holding 100,000 barrels (4 2 million gallons)
plus sufficient freeboard
The worst case discharge for the facility Is
calculated by adding the capacity of all
aboveground storage tanks without secondary
containment (80.000 barrels) plus 110% of
the capacity of the largest aboveground tank
inside secondary containment (110%x90,000
barreis=99,000 barrels) The additional 10
percent is added to the capacity of the tanks
because the facility is located adjacent to
navigable water The resulting worst case
discharge volume is 179,000 barrels or 7 52
million gallons
S.nce the guidelines for tiers 1,2. and 3 for
inland and nearshore exceed the caps
Identified in Table 5, the facility owner
should contract for 10.000 barrels per day
(bpdj for tier 1, 20,000 bpd for tier 2, and
40,000 bpd for tier 3 Resources for the
remaining 8,795 bpd for tier 1, 11325 bpd for
tier 2, and 10,120 bpd for tier 3 should be
Identified but not contracted for In advance
The facility owner or operator should also
identify or contact for quantities of boom
identified in their response plan for the
environmentally sensitive areas within the
area potentially impacted by a worst case
discharge from the facility Appendix D
presents a listing of environmentally
sensitive areas and Attachment C—Ill of
appendix C provides a method for calculating
a planning distance to sensitive areas and
drinking water intakes which may be
impacted in the event of a worst case
discharge
8 Additional Equipment Necessary to
Sustain Response Operations
8 1 A facilIty owner or operator should
ensure that sufficient numbers of trained
personnel and boats, aerial spotting aircraft.
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8864 Federal Register I Vol. 58, No. 30 / Wednesday, February 17, 1993 I Proposed Rules
containment boom, sorbent materials, boom the affective daily recovery rates from devices will reduce the overall volume of
anchoring material., and other supplies are equipment identified in the plan. Because of oily material that requires storage
available to sustain response operations to the inefficiencies of oil spill recovery 8 3 A facility owner or operator should
completion. A facility owner or operator is device., response plans should identify daily ensure that their oil spill removal
not required to list these resources, but storage capacity equivalent to twice the organization has the capability to arrange for
should certify their availability, effective daily recovery rate required on disposal of recovered oil products Specific
8.2 A facility owner or operator should scene. This capacity may be reduced if a
evaluate the availability of adequate facility owner or operator can demonstrate disposal procedures will be addressed in the
temporary storage capacity necessaiy to meet that the efficiencies of the oil recovery applicable ACP
TABLE 1.—RESPONSE RESOURCE OPERATING CRITERIA OIL RECOVERY DEvicEs
Operating
Significant
wave
heIght’
Sea state
River . . . . . .
Inland .
Great Lakes , ..,.
Boom Use
Boom property .
Significant wave heI i1’ . . .. ...
Seastate . . .
Boom height—In (dritl plus freeboard), ... ... .
Reseive buoyancy to weIght ratio ... . . . . . ..
Total tensile sirength—fte ..
Skirt fabric tensile elrength—be . ..
Skirt Iabrlc tear strength—ti. .. . .
River
51
1
6-18
2 1
4.500
200
100
511001
3 feet
54 feet
Inland
53
2
18-42
2 1
15-20.000
300
100
1
2
2—3
Great Lakes
54
2—3
18-42
2 1
15-20.000
300
100
‘Oil recovery devices arid boom shouki be at least capable of operating In wave heights up to and Including the values hsied In Table 1 for each operating
environment
TABLE 2.—REMOVAL CAPACITY PLANNING TABLE
Spill location
Nearshorańnland Great Lakes
Rivers and canals
Sustalnabltlty of on-water oil recovery
4 clays
3 clays
Oil group
Percent nat.
urel disslpa.
don
Percent re-
covered
floating oil
Percent nat-
ural dissipa-
lion
Percent re•
covered
floating oil
1—Non.parsiatenl oIls
2—tight crudea
3—Medium crudea and fuels ..
4—Heavy crudes end fuels .
80
50
30
10
20
50
50
50
10
30
50
70
80
40
20
5
10
15
15
20
10
45
65
75
For planr9ng purpoaes. non-petroleum ott must be considered a Group 4 persistent oil
TABLE 3 —EMULsIFIcATIoN FACTORS FOR PETROLEUM OIL GROUPS 1
Non-persistent oil
Groupi . . . 10
Persistent oIl
Group2 . .. . . . . . 18
(roup3 .. . . ... . .-- 20
Group4 .. . 14
See Attachment F—2 for group designations for non-persistent and persistent oils
TABLE 4 —CN-WATER OIL RECOVERY RESOURCE MOBILIZATION FACTORS
Area Tier I Tier 2 Tier 3
River .... 30 40 60
InlanwNoarshore Great Lakes 15 25 40
NOTE These mobilizatIon factors are for total resources mobilized, not incremental response resources
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Federal Register / Vol. 58, No. 30 I Wednesday, February 17, 1993 / Proposed Rules
8665
TABI& 5—RESP0NSE C P&atun CAPS BY GEoGRAPH Ic AREt
Tierl
T I
er2
TIer3
February 16, 1993
All except r ivers end canals, Greet Lakes
Greet Lakes.. .
Rivers arid canals
, , ..
10K bblatday .
5K l&day
1,500 bblsiday
..
.
20K bbls’dey
10K DbIs/day
3.000 bbls/day
40K bbla/dey
20K bb s1dey
8.000 bbls)day
Februery 18. 1998
All except rivers end canals, Great Lakes
GreatLekes . ..
Rivers ...
February 18. 2003
.
. ,,
. ,
12 5K bbla/dey
8 a5Kbb ia/day
t8 l Sbb ie/dey
,
25K bblslday
t23kbtils/day
3, l s obbla/dey
.. .
.,
50K bbls/dsy
2SKx ia/eey
7,500bbtaiday
All except rivers end canels, Greet Lakes
,
.. .
TBO . .. .
TOO
TUB
GreatLakea .
T OO
TOO
.
TUB
Rivers and canals . .
..
...
T OO
TBD
.
TOO
Note The caps show cumulative overall eltectiva daily re very rele, not Incremental Increases
TBD To Be Determined
Attachment F—i—Worksheet to Plan
Volume of Response Resources for
Worst Case Discharge
Fart Background Information
Step IA) Calculate Worst Case Discharge
in barrels (Appendix E of this part)
Step (B) Oil Group 1 (Table 3 and
Attachment F—2) __________
Step (C) Geographic Area (choose one)
DNearshore/1.nlartd Great Lakes
Dot River and Canals
Stop (Dl Percentages of Ott (Tabte 2)
Percent Lost to Natural Dissipation
( D i )
Percent Recovered Floating Oil
_______(D2)
Percent Oil Onshore __________(D3)
Step (Ei) On-Water Recovery
Step (02) x Slap (A )
100
Step (E2) On-Shore Recovery
Step (03) x Step (A )
100
Tier 3 __________Step (El) x Step (F)
x Step (G3)
Fart II I Shoreline Cleanup Volume
(barrels/day) Step (E2) x
Step (F)
Part IV Response Cop on ly By
Geographic Areo (Table 5) (Amount
needed tc be contracted for, barrels/dey)
Tier I ( (1 )
Tier 2 __________(J2)
Tiara ______(J3)
Part V Amount Needed to be Identified,
but not Contacted for in Advance
(barrels/day)
Tier 1 __________Part it Tier 1—Step
(Ill
Tier 2 __________Part I ! Tier 2—Step
4J2)
Tier 3 _________Pert Ii Tier 3—x
Step ()3)
________ Note: To convert to gallons/day,
multiply the quantities in Part Il—Pan
V by 42
Example to Attachment F-i—
Worksheet to Plan Volume of Response
_________ Resources for Worst Case Discharge
Pert I Background Information
Step (A) Calculate Worst Case Discharge
in barrels (Appendix E of this part).
- 179,000
Step (B) Oil Group 1 (Table 3 and
Attachment F—2), 4
Step (G) Geographic Area (choose one)
X—Nearshore/Inland Great Lakes
or River and Canals
Step (Dl Percentages of Oil (Table 2)
Percent Lost to Natural Dissipation;
10 (Di)
Percent Recovered Floating Oil: 50
( 02)
Percent Oil Onshore; 70 (D3)
Step (El) On-Water Recovery
Step (D2) x Slap (A)
69.500
Step (F) Emulsification Factor (Table 3)
Step (C) On-Water Oil Recovery
Resource Mobilization Factor (Table
4)
Tier 1 ( Cl )
Tier 2 ________(G2)
Tier 3 __________ (C3)
Attachment F—i continued—Worksheet
to Plan Volume of Response Resources
for Worst Case Discharge (continued)
Part U On-Water Recovery Capac ity
(barrels/day)
Tier I _________Step (El) x Step IF)
1< Stop (Ci)
Tier 2 _________Step (El) x Step (F)
x Step (Gz)
‘Facilities storing multiple groups of oil should
prepare a sepszete worksheet for asch group
125,300
Step (F) Emulsification Factor (Table 3):
1.4
Step (G) On-Water Oil Recovery
Resource Mobilization Factor (Table
4)
Tier 1;0 15 (Cl)
Tier 2; 0 25 (C2)
Tier 3; 0.40 (G3)
Part I( On-Water Recovery Copacity
(barrelsfd ay)
Tier 1; 16,795
Step (El) xSlep (F) x Step (Ci)
Tier 2; 31,325
Step (El) xStep (F) xStep (G2)
Tier 3; 50,120
Step (El) x Step (F) x Step (C3)
Part 111 Shoreline Cleonup Volume
(barrels/day), 175.420
Step (52) x Step (F)
Part IV Response Capocity by
Geographic Area (Table 5)
(Amount needed to be contracted for in
barrels/day l
Tier 1, 10,000 UI)
Tier 2, 20,000 ( 12)
Tier 3.40,000( 13)
Part V Amount Needed to be Ident if ied,
but not Contacted for in Advance
(barrels/day)
Tier 1; 8,795
Part II Tier I—Step (Ji) Step Q3)
Tier 2: 11,325
Part II Tier 2—Step 112)
Tier 3: 10.120
Part I l Tier 3—x
Note: To convert to gallons/day, multiply
the quantities in Fart li—Part V by 42
Attachment F—2
Attachmertl F—2—Deflnition, of Non-
Persistent and Persialent Oils
Stop (E2) On-Share Recovery
Step (03 1 x Step (A)
100
100
‘Facilities itonng multiple groups of oil should
prepare a esparete worbheot for each group
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8866 Federal Register / Vol. 58, No. 30 I Wednesday, February 17, 1993 / Proposed Rules
Non-persistent or Group I oil includes
(1) a petroleum-based oil that, at the time of
shipment, consists of hydrocarbon
fractions
(i) at least 50% of which by volume, distill
at a temperature of 340 degrees C (645
degrees F). and
(ii) least 95% of which by volume, distill
at a temperature of 370 degrees C (700
degrees F).
(2) a non-petroleum oil with a specific
gravity less than 0 8
Non-petroleum oil—oil of any kind that is
not petroleum-based It includes, but is not
limited to. animal and vegetable oils
Persistent oil includes
(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
0) Group Il—specific gravity less than 0 85
(ii) Group Ill—specific gravity between
0 85 and less than 0 95
(iii) Group (V—specific gravity 095 or
greater
(2) a non-petroleum cii with a specific
gravity of 08 or greater These oils are
further classified based on specific
gravity as follows
(i) Group li—specific gravity between 0 8
and less than 0 85
(ii) Group Ill—specific gravity between
o 85 and less than 0 95
(iii) Group (V—specific gravity of 095 or
greater.
Appendix G—Facihty-Specific
Response Plan
7.jble of Contents
1 0 Standard Faciliiy-Specific Response
Plan
11 Emergency Response Action Plan
1 2 FacIlity Information
1.3 Emergency Response Information
131 Notification
13 2 Equipment
1 3 3 Personnel
13 4 Evacuation Plans
L3.5 Coordinator’s Duties
1 4 Hazard Evaluation
1.4 1 Hazard Identification
1 4 2 VulnerabilIty Analysis
1 4 3 Analysis of the Potential for a Spill
1 4 4 FacilIty 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 Smell,
Medium, and Worst Case Spills
1 7,2 Disposal Plans
1 7.3 Containment end Drainage Planning
1 8 Self Inspection. Training. end
Meeting Logs
1 8 1 Facility Self Inspection
1 8 1 1 Tank Inspection
1 8 1 2 Response Equipment inspection
1 6 1.3 Secondary Containment
Inspection
1 8.2 Mock Alert Drills
1621 MockAlertDrillLogs
1 8 3 Training end Meetings Logs
I B 3 1 Personnel Training Logs
1.8 3 2 Discharge Prevention Meeting
Logs
1 9 Diagrams
1 10 Security
2 0 Response Plan Cover Sheet
3 0 Definitions
4 0 Acronyms
5 0 References
1.0 Standard Facility-Specific Response
PThn
Introduct ion
Owners or operators of facilities regulated
under this part. which pose a threat of
substantial harm to the environment by
dischargtng oil into water bodies or adjoinLng
shorelines, are required to prepare and
submit facility-specific response plans to
EPA in accordance with the provisions In
this Appendix Facility owners or operators
shall determine whether theLr facility poses
substantial harm by using the flowchart
presented in Attachment C—I of Appendix C
to the proposed rule Response plans roust be
sent to the appropriate EPA Regional office
The attached Figure C—i lists each EPA
Regional office and the EPA section and
address where owners and operators should
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 inlormation
currently maintained in the facility’s SP X
Plan In these cases, owners and operators
may reproduce the information and Include
a photocopy In the response plan
BILUNO CODE 8650-60-P
-------
FIGURE G -
EPA REGIONAL OFFICES FOR
RESPONSE PLAN SUBMITTAL
11
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8868
Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
I I Emergency Response Action Plan
Several sections of the response plan will
be co 1ocated and tabbed for easy access by
response personnel during an actual
emergency or oil spill. This collection of
sections will 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 should be tabbed for quick reference
The Action Plan may be maintained in the
front of the same binder that contains the
complete response plan or it may be
contained in a separate binder. In the latter
case, both binders should be kept together so
that the entire plan can be accessed by the
Emergency Response Coordinator and
appropriate spill response personnel The
Emergency Response Action Plan shall be
made up of the following sections:
I Emergency Response Coordinator
lnformation—(Section 1 2) partial
2 Emergency Notification Phone List—
(Section 3 1) complete
3 Spill Response Notification Form—
(Section 1 3 1) complete
4. Equipment List and Location—(Section
1 3.2) complete
5 Facility Response Teain—(Section 3 3)
partial
6 Evacuation Plan—(Section 1 3 4)
condensed
7. Immediate Actions—(Section 1 7)
condensed
8 Facility Diagram—(Sect ion 1 9) complete
Collectively, the actions described in the
sections listed above represent those which
should be taken to stop the source of the
spill, notify the appropriate people. and
initiate procedures to prevent or minimize
the spreading of oil
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
Facility name and location Enter facility
name and street address of the facility. 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.
thtitude and Longitude Enter the latitude
end longitude of the facility Include degrees,
minutes, and seconds of the main entrance of
the facility
WeJihead 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) The
response plan requirements In tho Wellhead
Protection Program are outlined by the State
in which the facility resideB.’
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 Ust the
address of the owner, if the two are different
Emergency Response Coorthnator Write
the name of the emergency response
coordinator 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, address, emergency phone number,
and specific training experience
Date of Oil Storage Start .up Enter the year
which the present facility first started storing
oil
Current Operation Briefly describe the
facilities operations and include Standard
Industry Classification (SIC) code
Dates and Type of Substanfio ,i Expansion’
Include information oct 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 storage capacity
The data provided should 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
Location (Street Address)
City
State
Zip
County
Phone Number
Latitude
Degree
Minutes
Seconds
Longitude
Degree
Minutes
Seconds
WeUhead Protection Area
Owner
Owner Address (if different from Facility Ad.
dress)
Location (Street Address)
City
State
Zip
County
Phone Number
Operator (if not Owner)
Emergency Response Coordinator(s)
‘States with EPA approved Welihead Psoioction
programs are Arkansas. Connecticut. Delaware.
Illinois, Louisiana, Maine, Maryland,
Massachuseiti. Nevada. New I-tampshire. New
Mexico, New York, Oklahoma, Puerto Rico. Rhode
Island, Texas and Vermont (as of August. 19921
Name.
Position
Address.
Emergency Phone Number
Date of Oil Storage Start-up
Current Operation
Date(s) and Type(s) of Substantial
Expansion(s) (Attach additional sheets If
necessary)
1 3 Emergency Response Information
The information provided in thia section
should 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
I 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 should include all the
appropriate phone numbers for the facility
These numbers should be verified eacb time
the plan Is updated The contact list should
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 should be provided to the
National Response Center (NRC) and other
response personnel All information on this
checklist should 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 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. equipment testing. and location
of the equipment When appropriate, the
amount of release that emergency response
equipment can handle and any limitations
(e g launching sites) should be described
4 Section 1 3 3 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 training Three different
forms are included in this section First, the
Emergency Response Personnel List is to be
composed of personnel employed by the
facility whose duties involve responding to
emergencies. including oil spills even when
they are not physically present at the site An
example of this type of person may be the
Building Engineer.in-Charge or Plant Fire
Chief Second. the Facility Response Team
List is to be composed of personnel
(referenced by job title/position) and
contractors that will respond irnniediately
upon discovery of an oil spill or other
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Federal Register_/ Vol. 58, No. 3D / Wednesday, February 17, 1993 / Proposed Rules
8869
emergency These are to be persons normally
on the facility premises or primary response
contractors (i.e the first people to respond).
Examples of these personnel would be the
Facility Hazardous Materials (HAZM.AT)
Spill Team 1, Facility Fire Engine Company
1. Production Supervisor, or Transfer
Supervisor. Tbe lest form is a list of the
Emergency Response Contractors (both
pnmaiy and secondary) retained by the
facility These should be listed also on the
second form described above Any changes in
contractor status should be reflected En
updates to the response plan Evidence of
contracts with response contractors should
be included so that availability of resources
can be verified. Company personnel must be
able to respond immediately and adequately
if contractor support is not available
S Section 1.3 4 lists factors that should be
considered when preparing an evacuation
plan
S Section 1 3 S references the facility
response coordinators’ responsibilities in the
event of an emergency
This information should aid In the
assessment of the facility’s ability to respond
to a worst case discharge and identify
additional assistance that may be needed In
addition, it is recommended that the facility
produce a wallet-size card containin8
checklist of the immediate response and
notification steps to be taken in the event of
an oil discharge
Date of Last Update
1 3 2 Notification
Emergency Notification Phone List W}iom
To Notify
Reporter’s Name
Date
Facility Name
Owner Najne
Facility Identification Number
Date and Time of Each NRC Notification —
Organization
Phone number
National Re-
sponse Center
(NRC)
Factltty Re-
sponse Coordi-
nator
Evening Phone
Company Re-
sponse Team
Evening Phone
On-Scene Coor-
dinator (OSC)
Evening Phone
Area Committee
Evening Phone
Local Response
Teem (Fire
D ept ./Coopera-
tives)
Fire Marshall
Evening Phone
State Emergency
Response
Commission
(SERC)
Evening Phone
State Police
Organization
Phone number
10
Local Emergency
Planning Corn.
mittee (LEPC).
11.
Local Water Sup
ply System.
Evening Phone
12.
Weather Report
13
Local Television!
Radio Station
for Evacuation
Notification.
14.
Hospitals
Spill Response Notification Form
Reporters Last Name __________First
Ml
Phone Numbers ( ) —
Company
Organization Type
Position
Address
City
State
Zip
Were Materials Released ________(YIN)?
Confidential ________(YIN)?
Meeting Federal Obligations to Report
(Y/N)?
Date Called
Calling for Responsible Party (Y/N)?
Time Called
hi cadent Description
Source and/or Cause of Incident
Date ______— —______
Time of Incident _____AMIPM
Incident Address/Location
Nearest City
State
Court ly
Zip
Distance from City
Units
Direction from City
Section
i owoship
Range
Container Type
Tank Capacity
Units
Facility Capacity
Units
Facility Latitude ._Degrees .__Minutes
._ ._Soconds
Facility Longitude _Degreos _Msnutos
Seconds
Material
CHRIS Code
Response Action
Actions Taken To Correct, Control or
Mitigate Incident
Impact -
Number of injurIes
Number of Deaths
Were there Evacuations ________(YIN)?
Number Evacuated
Was there any Damage (YIN)?
Damage in Dollars (approKimate)
Medium Affected
Description
More information about Medium
Add:tsono/ infoi-rnat,on
Any information about the incident not
recorded elsewhere In the report?
Collar Notifications
EPA _______(YIN)?
USCG ______(YIN)?
State ________(YIN)?
Other _______(YIN)?
Describe
1 3 2 Equipment
Date of Last Update.
Equipment List
Last Inspection or Equipment Test Date —
Inspection Frequency
Regional Response Team (RRT) approval. —
I Skinimners/Pumps—Operational Status —
Type, Model, and Year (Type) _____(Model)
______(Year) ______
Number
Capacity gal 1mb
Daily Effective Recovery Rate
Storage Location
Released QuantIty
Unit of Measure
Material Released in Water
Quantity
( ) —
Unit/Measure
1—8O --4 24—8802
I
2
3
4
5
6
7
8
9
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8870
Federal Register I Vol. 58, No. 30 / Wednesday, February 17, 1993 I Proposed Rules
Date Fuel Last Changed
2 Booms—Operational Status
T) pe Model. and Year (Type) (Model)
_______(Year) _______
Number
S ze
Containment Area _________sq ft
Storage Location
3 Chemicals Stored (Dispersants listed on
EPA’s NCP Product Schedule)
Type
Treatment Capacity
Storage Location
Has facility applied for permit to use above
listed dispersants
State (YIN) ______ Federal (YIN) ______
Name and State of On-Scene Coordinator
(OSC) authorizing use
Date Authorized
4 Dispersant Dispensing Equipment—Oper-
ational Status
T pe and Year
Capacity
7 Communication Equipment (include oper-
ating frequency and channel and/or cellular
phone numbers)—Operetional Status
Type and Year
Quantity
Storage Location/Number
8 Fire Fighting and Personnel Protective
Equipment—Operational Status
Type and Year
Quantity
Storage Location
9 Other (e g. Heavy Equipment, Boats and
Motors)—Operational Status
Type and Year
Quantity
FACILITY RESPONSE TEAM
Coordinator
Response ems
(minutes)
Phone (dayI
eYer r1g)
If the facility uses contracted help in en
emergency response situation, the owner/
operator must provide the contractors names
and review the contractors’ capacity to
provide adequate personnel and equipment
Date of last update.
EMERGENCY RESPONSE CONTRACTORS
Contractor
Phone
Response
time
Contract
2
.
3
—
4
—
2 3 4 Evacuation Plans
Stordge Location
Response Time (Minutes)
5 Sorbcnts—Operationai Status
T PC and Year Purchased
Amount
Absorption Capacity gal
Storage Location
6 Hand Tools-Operational Status
Type and Year
1 3 3 Personnel
Date of last update
EMERGENCY RESPONSE PERSONNEL
COMPANY PERSONNEL
Name
Phone’
Re-
sponse
time
Respon-
‘ °9
action
Training
type)
date
2__.
3_
4_
5_.__
6_
7_
8_
9_
10 —
11 —
12_
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
Phone number to be used when person Is not on-
Based on the analysis of the facility, as
discussed elsewhere in the plan. a facility-
wide evacuation plan should be developed
In addition, plans to evacuate parts of the
facility or surrounding communities 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) When
developing evacuation plans. consideration
should be given to the following
1 Location of stored materials.
2 Hazard imposed by spilled material,
3 Spill flow diroc,tion.
4 Prevailing wind direction and speed,
5 Water currents, tides, or wave conditions
(if applicable).
6 Arrival route of emergency response
personnel and equipment,
7 Evacuation routes.
$ Alternative routes of evacuation;
9 Transportation of Injured personnel to
nearest emergency medical facility,
10 Location of alarm/notification systoms,
11 The need Coma centralized check-in
area for evacuation validation (roll call),
Date of last update
Amount
Date Purchased
Storage Location
• Note Include evidence of coniracis agreements
with response contractors to ensure U e availability of
persorinet 8fld e uIprnent
Quantity
Storage Location
site
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Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1993 I Proposed Rules
8871
12 Selection of a mitigation command
center, and
13 Location of shelter at the facility as an
Dption to evacuation
When preparing this section of the
response plan, the Handbook of Chemical
Hazard Analysis Procedures by the Federal
Emergency Management Agency (FEMA).
Department of Transportation (DOT), and
EPA should be referenced. The Handbook of
Chemical Hazard Analysis Procedures is
available from FEMA, Publication Office,
500 C Street. SW , Washington. DC 20472.
(202) 646—3484
1 3 5 Coordinators Duties
Duties of the Emergency Response
Coordinator
The duties of the designated emergency
response coordinator or an adequately
trained and qualified person appointed by
the coordinator are specified by the rule in
§ 112 20(h)(3)(ix) The coordinator’s duties
must be described and be consistent with the
minimurn requirements in the rule, In
addition, the emergency response
coordinator and any qualified appointee
must be identified with the Facility
Information in section 1 2
1 4 Hazard Evaluation
This section asks the facility owner!
operator to examine the facility’s operations
closely and to predict where releases could
occur Hazard evaluation is a widely used
industry practice that allows owners and
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 Federal Emergency
Management Agency 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 and operators in
planning for potential releases, 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 releases In
addition, special hazards to workers and
emergency response personnel’s health and
safety should be evaluated, as well as the
facility’s spill history
1 4 1 Hazard Identification
The following directions should be used
for completing the Tank and Surface
lnlpOundrnont (SI) forms that are part of this
section Similar worksheets should be
developed for any other typo of storage
containors
I List each tank at the facility with a
separate and distinct identifier. Begin
aboveground tank identifiers with an “A”
and below ground tanks identifiers with a
“B”, or submit multiple sheets with the
boveground tanks and below ground tanks
on separate sheets
2 Use gallons for the maximum capacity
of a tank, and use square foot for the area
3, Using the appropriate identifiers and the
following instructions, fill in the appropriate
forms
• 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.
• Substance Stored—For each tank or SI
identified, record the material that Is stored
therein lithe tank or SI Is used to store more
than one material, ilat all the stored
materials
• Quantity Stored—For each material
stored in each tank or SI. report the average
volume of material stored on any given day.
• 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
refebricetion was completed should be
recorded in parentheses next to the year
installed For each SI, record the surface area
of the impoundment and the year it went into
service
• 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
• 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 should 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 release of
oil or hazardous substances durmg transport
processes Those operations may include
loading and unloading of trucks, railroad
cars, or vessels The volume of material
involved In transfer operations should be
estimated,
B Day to day operations that may present
a risk of releasing oil or 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) The volume
of material involved In these operations
should be estimated
C The secondary containment volume
associated with each tank and/or transfer
point at the facIlity The numbering scheme
developed on the tables should be used to
identify each containment area Capacities
should 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 release volumes
that a negative or positive change in that
throughput may cause
Date of last update
HAZARD IDENTIFICATION TANKS *
Sub-
Ink
stance
stored
h
sub-
stance)
Ouan -
thy
Ions)
Tank
Maxi-
mum
r
(gal)
Fall-
• (Tank-any container that stores oti)
Attach as many sheets as necessary
Date of last update
HAZARD IDENTIFICA ’flON SURFACE
IMPOUNDMENTS (SI)
SI No
Sub-
Ouan-
st
(ga)
ur-
ar8a)
y
;
ca c•
(gal)
Fall.
Attach as many sheets as necessary
1 4 2 Vulnerability Analysis
The vulnerability analysis should address
the potential effects (I e • to human health,
property, or the environment) of a spill.
Attachment C—Ill to appendtx C of this part
provides a method that owners or operators
could use to determine appropriate distances
from the facility to environmentally sensitive
areas and drinking water intakes Owners
and operators could use an alternative
formula that is considered acceptable by the
RA If an alternative formula is used,
documentation of the reliability and
analytical soundness of the formula must be
attached to the response plan cover sheet
This analysis should be prepared for each
facility, and should include discussion of the
vulnerability of
1 Water intakes (drinking, cooling, or
other).
2 Schools,
3. Medical facilities,
4 Residential areas,
5. Businesses;
6 Wetlands or other environmentally
sensitive areas, 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
including terrestrially sensitive
2 ReFer to Appendix D of the proposed nile For the
listing of environmentally sensitive areas
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Federal Register / Vol. 56, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
8672
environments, aquatic environments, and
unique habitats
I 3 Anolys:softJiePotentialforaSpill
Each owner or operator should analyze the
probability ofa spilt occurring at the facility
This analysis should be quantitative.
incorporating factors such as tank age, spill
history, horizontal range of a potential spiii,
and vulnerability to natural disaster. This
analysis will provide Information for
developing discharge scenarios for a worst
casr discharge and smell and medium
discharges and aid in the development of
techniques to reduce the size and frequency
of spiiis The owner or operator may need to
research the age of the tanks and the spill
history at the facility.
1 4 4 Spill Hut oy
Briefly describe the facility’s reportable
spill 3 history for the entire life of the facility.
including
I Date of discharge(s),
2. List oldischarge 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:
B. Steps taken to reduce possibility of
recurrence;
9. Total storage capacity of the tank(s) or
Impoundment(s) from which the material
discharged,
10 Enforcement actions:
11 Effectiveness of monitoring equipment.
and
12. D .scription of how each spiii was
detected
The information solicited in this section
may be similar to requirements in §112 4(a)
of the October 22, 1991 proposed revisions to
the Oil Pollution Prevention rule (56 FR
54612) Any duplicate information in
§ 112 4(e) may be photocopied and Inserted
1 5 Discharge Scenarios
In this section, the owner or operator Is
asked to provide a description of the facility’s
worst case discharge. as well as a small and
medium spill, as appropriate. A tiered
planning approach has been chosen because
the responsi. actions to a api11 (i.e.. necessary
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. In this discussion.
the owner or operator should discuss the
potential direction of the spill pathway.
1 5 1 Small and Medium Discharge
To address tiered planning requirements.
the owner or operator must consider types of
facility-specific spill scenarios that may
As described in 40 CFR part 110, reportable
iptils are those that Ia) Viotelo applicable waler
quality standards, or (b) cause a film or sheen upon
or discoloration of the surface of the water or
adlolising shorelinea or cause a &lud e or emulsion
In be deposited beneath the surfece of the waler or
upon adiolnins Acrelinas
conb-lbute to a small or medium spill. The
scenarios should account for all the
operations that take place at the facility,
including but not limited to.
1. Loading and unloading of surface
transportation;
2. FacilIty maintenance.
3 FacilIty PlPin8;
4 PumpIng stations and slumps,
5. Storage tanks;
6 VehIcle refueling, and
7. Age and condition of facility and
components.
The scenarios should also consider factors
that affect the response efforts required by
the facility. These include but are not limited
to:
I Size of the spill;
2. ProximIty to downgrad lent wells,
waterways, and drinking water intakes,
3. Proximity to environmentally sensitive
areas.
4 LIkelihood that the discharge will travel
offsite (i a.. topography, drainage),
5. Location of the material spilled (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, end
10 Direction of spill pathway
1 5 2 Worst Case Discharge
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 and operators
to use when calculating worst case discharge
are presented In Appendix E 1040 CFR part
112. 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 should
be addressed Depending on the adequacy of
secondary containment and the proximity to
navigable waters, the worst case discharge
may be (1) The total aboveground oil storage
capacity (plus production capacity if
applicable) for facilities without adequate
secondary containment, (2) the capacity of
the largest single tank within a common
secondary containment area or the combined
capacity of a group of aboveground tanks
permanently manifolded together within a
common secondary containment area,
whichever is greater, plus an additional
quantity for any tanks without secondary
containment (plus production volume If
applicable). (3) uio% of the capacity of the
largest single tank within a secondary
containment area or 110% of the combined
capacity of a group of tanks within a common
secondary containment area, whichever is
greater (plus production volume if
applicable), or (4) a combination of the
above.
For onshore storage facilities and
production facilities, permanently
manifolded 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 In this section
of the response plan, owners and operators
must provide evidence 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 volume would be based
on the combined storage capacity of all
manifold tanks or the capacity of the largest
single tank within the secondary
containment area, whichever is greater For
permanently man ifoided tanks that function
as one storage unit, the worst case discharge
would be based on the combined storage
capacity of all manifolded tanks or the
capacity of the largest single tank within a
secondary containment area, whichever is
greater For purposes of the worst case
discharge calculation, permanently
man ifolded tanks that are separated by
internal divisions for each tank are
considered to be single tanks and individual
mamfolded tank volumes are not combined.
1 6 Discharge Del eclzon Systems
In this section, the owner or operator
should provide a detailed description of the
procedures and equipment used to detect
discharges A sectinn on spill detection by
personnel end a discussion of automated
spill detection, if applicable, should be
included for both during regular operations
and after hours In addition, the owner or
operator should discuss how the reliability of
any automated system will be checked and
how frequently the system will be inspected.
2 6 2 Discharge Detection by Personnel
In this section. owners and operators
should describe the procedures and
personnel that will detect any sp ii or
uncontrolled release of oil or hazardous
materiel A thorough discussion of facility
inspections should be included In addition.
a description of initial response actions
should be addressed See section 1 3 1 of the
response plan for emergency response
information
1 6 2 A utamaied Discharge Detection
In this section, facility owners and
operators must describe any automated spill
detection equipment that the facility has in
place This section should 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 aisn
be included.
2 7 Plan Implementation
In this section. facility owners and
operators must explain in detail how to
implement the facility’s emergency response
plan by describing response actions to be
carried out under the plan to ensure the
safety of the facility and to mitigate or
prevent discharges described in section 1.5
This section includes the idontification of
response resources for small, medium, and
worst case spills, disposal plans. and
containment and drainage planning A
distinct list of those personnel ho would be
involved in the cleanup should be identified
Procedures that the facility will use, where
appropriate or necessary, to update their plan
alter a spiii event and the time frame to
update the plan must be described
-------
Federal Register / Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
8873
I 71 Response Resources for Small,
Medium, and Worst Case Spills
Once the spill scenarios have been
Identified in section 1.5 of the model
response plan, the owner or operator should
identify and describe implementation of the
response actions The facility should
demonstrate accessibility to the proper
response personnel end equipment to
effectively respond to all of the Identified
spill scenarios Guidelines for the
determination end demonstration of adequate
response capability are presented in
Appendix F to 40 CFR part 112 in addition,
steps to expedite the cleanup of spilis must
be discussed At a minimum, the following
items should be addressed.
1. Emergency plans for spill response,
2 Additional training,
3 Additional contracted help,
4 Access to additional equipmentiexperts;
5 Ability to Implement plan including
training and practice drills,
172 Disposal Plans
Facility owners end 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 should be
accounted for In the disposal plan include
‘1 Recovered product.
2 Contaminated soil,
3 Contaminated equipment and materials,
including drums, tank parts, valves, and
shovels.
4 Personnel protective equipment,
5 Decontarninatiois solutions,
6 Adsorbents, and
7 Spent Chemicals
These plans must be prepared in
accordance with Federal (a g . the Resource
Conservation and Recovery Act (RCRAII.
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 of those
plans
Material
Disposat
facility
LocatIon
RCRA per.
nWrnan
test
1__________
2__...... ,
3_
4_
—
—
—
—
—
—
—
—
—
1 73 Containment and Drainage Planning
A propor plan to contain and control a spill
through drainage may limit the threat of
barn to human health arid the environment
This section should describe how to contain
and control a spill through drainage.
including
I The available volume of containment
(use the information presented in section
1 4 1 of this document),
2. The route of drainage from storage and
insfer areas,
3 The construction materials used in
irainago troughs.
4 The typo and number of valves and
separators used In the drainage system,
5 Suxnp pump capacities;
6 The containment capacity of wan’s and
booms that might be used and their location
(see Section 1 3 2). and
7. Other cleanup muterials,
In addition, facility owners and operators
must meet the inspection and monitoring
requirements for drainage contained In the
SPCC regulation
A copy of the containment and drainage
plans from the Facility’s SPCC Plan may be
Inserted in this section, IncludIng any
diagrams of those plans INote A proposed
general permit for stormwater drainage may
contain additional requirements I
1 8 Self ‘inspection, Training, and Meetng
Logs
TraIning and meeting logs shall be
included in the response plan to aid facility
owners, operators, and employees in spill
prevention awareness and response
requirements. Logs must be kept For facility
mack alert drills, personnel training, and
spill prevention meetings Much of the
recordkeaping information contained In this
section is required by the existing SPCC
regulation
1 8 2 Facility Self-Inspection
Pursuant to 112 7(e)(8) of the rule in 40
CFR part 112, revised as of July 1, 1992, each
facility should conduct self’inspect ions and
Include the written procedures and records
of inspections in the SPCC Plan The
inspection should include the tanks,
secondary containment, and response
equipment at the facility The inspection of
tanks and secondary containment required by
the SPCC regulation and records of those
inspections should be cross-referenced in the
response plan The inspection of response
equipment is a new 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 live years
1 8 11 Tank Inspection
Tank Inspection Checklist
The tank inspection checklist presented
below has been included as part of SP(X
guidance for inspections end monitoring If
information in this section duplicates
information required in § 112 7(e) of the
October 22. 1991 proposed revisions to the
Oil Pollution Prevention regulation (56 FR
54612) it may be photocopied end inserted
1 Check tanks for leaks, specifically
looking for
A. Drip marks,
B Discoloration of tanks,
C Puddles containing stored material,
D Corrosion.
E Cracks, end
F. Localized dead vegetation
2 Check foundation for
A Cracks,
B Discoloration,
C Puddles containing stored 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 on
valves or seals, and
F Localized dead vegetation
TANK/SURFACE IMPOUNDMENT INSPECTION
LoG
Inspector
T nlc or St
No
Date
Comments
1 8 1 2 Response Equipment Inspection
Response Equipment Checklist
Using the Emergency Response Equipment
List provided in section 1 1 2 of the response
plan. describe each type of equipment.
checking for the following
I Inventory (item end 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)
6 Shelf life (present age, expected
replacement date)
Please note any discrepancies between the
list and the actual equipment available
RESPONSE EQUIPMENT INSPECTION LOG
ruse section 1 32 as cliecktlsll
Date Conimenis
Inspector
-------
8874 Federal Register I Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Ruies
2 8 1 3 Secondary Containment Inspect ion
Secondary Containment Checklist
Inspect the secondary containment (as
described in sections 1.4 1 and 1 7.2 of the
plan), checking the following
I Dike or berm system.
A Level of precipitation in dike/available
capacity
B Operational status of drainage valves
C Dike or berm penneability
C Debns
E Erosion
F. Permeability of the earthen floor of
diked area
G Location/status of pipes, inlets, drainage
beneath tanks, etc
2 Secondary containment
A Cracks
B Discoloration
C Presence of stored material (standing
liquid)
D Corrosion
E Valve conditions
3 Retention end drainage ponds
A Erosion
B Available capacity
C Presence of stored material
D Debris
E Stressed vegetation
Dunng inspection, make note of
discrepancies in any of the above mentioned
items, and report them immediately to the
proper facility personnel. Additionally.
duplicate information from § 112 7(c) of the
October 22, 1991 proposed revisions to the
Oil Pollution Prevention rule (56 FR 54612)
may he photocopied and inserted here
1 8 2 Mock A/err Drills
Mock alert drills, as required by CWA
section 311(i)(5). are part of the response plan
and should be detailed below During the
drills, actions taken by the response team,
both predicted and unpredicted. should be
noted, and any problems that arise should be
resolved as soon as possible
1 8 2 2 Mock Alert Drill Logs
Mock Alert Drill Log
Date
Company ________________
Response Coordinator
Emergency Scenario
Local Response Team’s Response Time —
Contracted Personnel Response Time
Facility Personnel Response Time
Notes
Changes to be Implemented
Time Table for Implementation’
183 TroiningandMeetingLogs
Owners and operators are required by
§ 112 20(o)(8) tc keep a personnel training log
that should include a record of all formal
response training received by each employee
Personnel training logs and discharge
Prevention meeting logs are Included in
SuCtions 1 8 3 1 and 1 8 3.2 respectIvely.
P18 17• i6
Response tratn.
Ing /dete and
ra.in er ol
Prevention
training/date
and numb€r Of
hours
hours
2.9 Diagrams
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 Equipment transportation routes, and
H. Direction of spill flow from release
points.
3. The Site Evacuation Plan Diagram
should include
A Site plan diagram wIth evacuation
route(s), and
B Location of evacuation regrouping areas
120 Security
Section 112 7(e)(9) of 40 CFR part 112.
revised as of July 1. 1992, requires facilities
to maintain a certain level of security, as
appropnate. In this section, a desoiption of
the facility security should be provided
including
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
Section 112 7(g) of the October 22, 1991
proposed revisions to the Oil Pollution
Prevention rule (56 FR 54612) contains
similar requirements Duplicate information
may be photocopied and inserted in [ his
section
2 0 Response Plan Cover Sheet
A three page. computer-readable form has
been developed to be completed and
__________ __________ ___________ submitted to the RA by owners and operators
who are required to prepare and submit a
facility-specific response plan The cover
sheet (Attachment G—i) is intended to
accompany the response plan and provide
the Agency with basic information
concerning the facility. This section will
describe the Response Plan Cover Sheet and
The facility-specific response plan should provide instructions for its completion
include the following diagrams Additional
diagrams that would aid in the development Page One—Facility information
of response plan sections may also be Owner/Operator of Facility Enter the name
included of the owner of the facility (if the owner is
I The Site Plan Diagram should include the operator) Enter the operator of the
and identify facility ii otherwise, lithe owner/operator of
A. The entire Facility to scale, the facility is a corporation, enter the name
B Above and below ground bulk storage of the facility’s principle corporate executive
tanks, Enter as much of the name as will fit in each
C The contents and capacities of bulk section.
storage tanks, Facility Ma ine Enter the proper name of
D. The contents and capacity of drum the facility
storage areas. Largest Tank Capacity Enter the capacity
E the contents and capacities of surface in GALLONS of the largest aboveground
Impoundments. storage lank at the facility.
F Process buIldings; Maximum Storege Capacity Enter the total
G Transfer areas: maximum capacity in GALLONS of oil
H. Secondary containment systems aboveground storage tanks et the facility
(location and capacity). Number of Tanks Enter the number of all
I Structures where hazardous materials are abovcground storage tanks at the facility
stored or handled, including materials stored
and capacity of storage; Page Two—Facility Information
Location of communication and Enter the street address, city. State, zip
emergency response equipment; and code, and phone number of the facility in the
K. Location oF electrical equipment which appropriate boxes
contains oil Dun and Brodstreet Number Enter the
2 The Site Drainage Plan Diagram should facility’s Dun and Bradstreet number if
include, available.
A. Major sanitary and storm sewers, Standard lndiistn& Ciassifcation (SIC)
manholes, and drains, Code Enter the facility’s SIC code as
1 83 1 Personnel Training Logs
PERSONNEL TRAINING
1 8 3 2 Discharge Prevention Meetings Log
Discharge Prevention Me t1ng
Date.
Attendees
Subtect/issue Required ac- implernenta-
identified tion lion date
-------
Federal Register I Vol. 58, No. 30 / Wednesday, February 17, 1993 / Proposed Rules
8875
determined by the Office of Management and
Budget
Worst Case Discharge Amount Using
information from the worksheets in appendix
E, enler the amount of the worst case
discharge in GALLONS
Page Three—Determination of Substantial
Harm
Using the flowchart provided in
Attachment C—i of appendix C, blacken the
appropriate circle to each question.
Explanations to referenced terms can be
found In appendix C. if an alternative
formula to the ones described in Attachment
C—Ill 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.
Additional Information
Latitude and Longitude Enter the facility
latitude and longitude in degrees, minutes,
and seconds.
Facility Distance to Navigable Waters
Enter the nearest distance between an
opportunity for discharge (i e.. storage tank,
piping. or flowline) and a navigable water,
Certification
Complete this block after all other
questions have been answered.
BILUNO CODE 6660-60-C
-------
t id G.2 -.
P e I of 3
CORRECT MARK
ENCORRECF MARKS
0O
EXAMPLE:
NAME
PA
coo
C
.
c )
(!,) (!) ( )
o O ) (
P
LAST NAME - FIrst 15 letters
FIRST NAME F,r t 12 letterg
0000’QOOQCOQCOQO
D( )( ) D cp)w
® ®c!® c ®®
© ‘© t G®©
)
®
(R)( )
®®
)t
00000000000c
®®®®®
©©
( )
®®
I ”
I I I Jcj tj)
a
®®®®© D©L©®
4 I IU I
® L ®U
• ® g g
p f ) ( ) (
® !)® ®®® ®®®®®
‘! ® ®®® ®®®®® &
Ft ®®
u
8
) 1
®
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®
(!)(!)
‘
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®s
c ( )
RH
P
©
®®
®( T©
U
P
t
s s s
T T T
®
-
i
LARGEST
TANK CAPACrTY
(GALLONS)
( ci
® :‘ci
ci ci’a ci c i ci
ci
ci
c ci’
® jj
c !® c !® ci
MAXIMUM
STORAGE CAPAC 1Y
(GALLONS)
Coci
cicici
o (ö ®
ci
®i
® 4
6
ci !
! ®.i
9®
Fleet 20 lettere
000000000000 D0000
Illililil
• i
®®L LU
00
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g
®®®®®®®®®®®®®®®®®®®c?2
c ®®®®®®®®®®®
®®®®®®®®®®®
®®®®®®
® ®®®
fl
®ci
®ci
3
NUMBER
OF TANKS
ci a c i
i .
—
GENERAL INFORMATION
Pt repoi1b bircien fer the
onlection of tfib Iiforrna?jtxi
lbi uted to from one hoes
to 270 hxn p r por e the
Mt ye , with on a oge of 5
houri pec re%)eree Ihe eslt’note
bdudes t r* fes rw iew*i
efruct’onj iocrd g e
data qscea. Qatheib g the data
needed arid c rŘ thg and
re iow g the c ectIon of
hformotbn Send con-fnents
eg &ia the burden estimate
at the 1ormotlan. hckidng
s ggectiore tot zeducb g the
b ,den to O ef, Infonriotlon
Polcy 8itrich. PM-223 US
Envimrrnentc Protection Agency.
)I M Street. SW Wc ik gton.
DC 20 ) and to the OMen of
hformatlan and Rogubtary Attn! ,
Offlce 01 Management and B dQet.
Vibtt*rglon , DC 20503
IMPORTANT OWNER / OPERATOR OF FACILITY
This form is intended to
be computer readable
To complete this form,
entirely (1.11 in the de red
nick with bladc or blue
ink Please do not fold,
staple, or mutilate this
fonn. Retuni this form
In a 9” a 12” envelope
Please pnnt requested
information in BOXES for
each individual questiort.
FACILITY NAME
INSTRUCTIONS
‘This form IS designed to
acti)mpany a ttibrnrtted
Response Plan
Explanations and detailed
IflStrudiOflS n be found in
Appendix G.
Facility IflIOriflatJon contained
here will be returned with the
Response Plan
I
-------
Att hment G-2 (Continued)
Page 2 of 3
• REMEMBER
USE BLACK OR BLUE INK
DO NOT FoLD. STAPLE. OR MIrr1LATE Ti-Its FORM
FACILITY ADDRESS (Street address. route or box)
Indicate. b the .ddresa by fltbn.g
in the blank cktte at the top of the column
ii
ii
Ii
II
I
I
I
1111
o:oco::cco:o cccc c
8BB j )B )B( B( (?
c çc cç ç ç cc
( p(p( D ( )D( (D(p( (p
!®(E E( E ®E CE
CG@ G©G CCG O
CL ,3 L®
® ®
O(0 01 (0(0 0 0 0
>(
(LF) L(! ! P
LRR
® TT ©T CTT
©pu puuuu
‘!.Y VYYY(y Y
o®@’oD @O
RDcI@ cj : L:
o (
a a’i
‘!® ®
®jc cj
a aa
- j
66 66
‘ ®(L 2 ! I! ! ! ! ®L(!ac
®!® cL C8
‘I :9
DUN & BRADSTREET
NUMBER
Coo .
i
ia
‘
C o: :
S’S t
0!
c
!
8 8
A
8
C
E
F
C
A
c
F
L
R
F
R
S
T
srAr oARii INDUSTRIAL I
CIASSIICAT1O ( SIQJ
0
a
2
®
9
a
4
4
7
FACilItY PlIONE NUMBER
a a
cade
liii
222222
993383
44444
55555A1
* X I KI
6&8 _ j
7 7 7 7 7171
-
8 8 8 8 8181
i I
999
liii
2222
3938
4444
7 7 7 7
8 8 8 8
0
9999
D
SC
I T C
HAR(
AILON5
SE
AMOUNT
;
oc
id
s
6 6
i
8 5
9 9
o Coc
‘ ‘D]C’Ud
i C2
3
a
jx a
6 )E6 s
7 ! 2
e ce
9 C C9
w
D
(C
1 I
•11
p..
C D
-I
-------
Attachment G-2 (Continue,zl)
Page 3 of 3
Does the facility operation indude over-water transfers of oil
to or from vessels and does the facility have a maximum
capacity greater than or equal to 42,000 gallons?
Does the lity lack adequate s ondary containment (or
each aboveground storage area sufficiently large to contain
the capacity of the lar?est aboveground storage tank within
that storage area and is the total storage capacity greater than
or equal to one niilbon gallons?
Is the facility located at a disbnce that would shut down a
public drinlung water intake and is the total storage capacity
gre er than or equal to one million gallons’
Is the facility located at a distance that could cauce
injury to an environmentally sensitive ama as
referenced in Appendix D and is the total storage
capacity greater than or equal to one miflion gallons?
Within the past ve years. has the facility experienced a
reportabk spil1 exceeding 10,000 gallons and is the total
storage capacity greater than or equal to one million gallons?
oci
ye1 ]
Fob]
l i
00
no
obi
) CS fl°
00
yes no
• Explanations of the above referenced terms can be found in Appendix C. If an
alternabve formula to the ones contained in Attachment C-ill is used to establish
the appropriate distance to sensitive environments or drinking water intakes,
docuntent.ation of the reliability and analytical soundness of the lormula must be
attached to this form.
ADDITIONAL INIORMATION
mm.
we.
®
it
Co
r
aci
®. :
® :
L ?
6
I
6
6
j
®
!
®
LONGITUDE
(DEGREES: WES’T)
mhi
s
a
a
ci
1
i
®
®
!
®
.
‘®
®
FAC [ IJTY DISTANCE TO NAVIGABLE WATERS
riU the ai,cop.t te circle.
O -2/4mile 0
1/4 . 2/2 mile 0
1/2-1 mile 0
>In,IJe 0
• REMEMBER
USE RLUE OR BLACK INK
DO NOT FOLD, STAPLE. OR M1J LLATE This FORM
I certify under penalty of law that I have personally examined arid am f rnIHar with the I.n.forrriation
nubmitted in this document. and that based on nay Inquiry of those Individuals responsible for
obtaining lnfor-i-natiots. I believe that the submitted Information is -ue, accurate, arid complete.
Stnatu r c
Name (please type or ; 4nt)
T ttIc
LATTI1JDE
(DEGREES’ Ł1ORTh
Date
iU 4O cooe es8o-6o -c
-------
Federal Register / Vol. 58, No. 30 I Wednesday, February 17, 1993 I Proposed Rules
8879
3 0 Definitions
Navigable Waters Navigable waters
include all waters that are used in interstate
or foreign commerce, all interstate waters
including wetlands, and all intrastate waters
(e g , lakes, rivers, streams, intermittent
streams, mudflats. sandflats, wetlands
sloughs, prairie potholes, wet meadows,
plays lakes, or natural ponds)
Oil Oil In any kind or in any form,
including, but not lunited to petroleum, fuel
oil, sludge, oil refuse and oil mixed with
wastes other than dredged spoil.
Production Focthty’ 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.
Worst Case Discharge See section
112 2(m) Worksheets to calculate worst case
discharge volume are included in appendix
E.
Environmentally Sensitive Areas See
apptindix D.
Wellheod Protection Area The surface and
subsurface area surrounding a water well or
weilfield, supplying a public water system,
through which contaminants are reasonably
likely to move toward and reach such water
well or wollfIeld
4 0 Acronyms
AC?. Area Contingency Plan
CHRIS’ Chemical Hazards Response
Information System
CWA Clean Water Act
DOT Department of Transportation
EPA Environmental Protection Agency
FEMA. Federal Emergency Management
Agency
gal: Gallons
HAZMAT: Hazardous Materials
LEPC: Local Emergency Planning Committee
NCP National Oil and Hazardous Substances
Pollution Contingency Plan
NRC National Response Center
NRT. National Response Team
OPk Oil Pollution Act of 1990
OSC. On-Scene Coordinator
RA. Regional Administrator
RCRA: Resource Conservation and Recovery
Act
RRT. Regional Response Team
SARA. Superfund Amendments and
Reauthorization Act
SERC State Emergency Response
Commission
SDWA Safe Drinking Water Act of 1986
SI. Surface Impoundment
SIC Standard Industry Codes
SP(X’ Spill Prevention, Control and
Countermeasures
US( : unIted States Coast Guard
5 0 References
Concawe, 1982 Methodologies for Hazard
Analysis and Risk Assessment in the
Petroleum Refining and Storage lndustiy
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.
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, Notional Status’
A Report to the President Washington, DC
U.S Government Printing Office
Offshore inspection and Enforcement
Division 1988 Minerals Monogement
Service, Offshore Inspection Program
National Potential Incident of
Noncompliance (PINC) List Reston, VA.
IFR Doc 93—3396 Filed 2—16—93, 8 45 am)
BlUiNG CODE 5540-40-P
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Friday
April 9, 1993
-
— — —
N ]
Environ mental
Protection Agency
40 CFR Part 112
Oil Pollution Prevention; Correction;
Proposed Rule
Part VII
I
,t.
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19030
Federal Register / Vol. 58, No. 67 / Friday, April 9, 1993 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 112
(SW 14—FRL 4612-7]
RIN 2050-AD 30
Oil Pollution Prevention; Non-
Transportation-Related Onshore
Facilities; Correction
AGENCY: U.S. Environmental Protection
Agency (EPA).
ACTiON: Proposed rule; corrections .
SUMMARY: To ensure consistency with
the regulatory text, EPA is correcting
errors in the technical appendices to the
proposed rule for facility response plans
required by the Oil Pollution Act (OPA)
of 1990, which appeared in the Federal
Register on February 17, 1993.
DATES: Comments on the February 17,
1993, proposed rule (58 FR 8824), as
corrected by this notice, must be
submitted on or before Apnl 19, 1993.
FOR FURThER INFORMATION CONTACT:
Bobbie Lively-Diebold, Response
Standards and Criteria 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—920—9810). The
Telecommunications Device for the Deaf
(TDD) Hotline number is 800—553—7672
(in the Washington. DC metropolitan
area, 703—486—3323).
SUPPLEMENTARY INFORMATION:
Background
EPA published a proposed rule in the
Federal Register on February 17, 1993
(58 FR 8824), that would revise the Oil
Pollution Prevention regulation, 40 CFR
part 112, originally promulgated under
the authority of section 311(j) of the
Clean Water Act. The proposed revision
would incorporate new requirements
added by section 4202(a) of the OPA,
Public Law 101—380, 104 Stat. 484,
subtitle B that directs 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. The proposed rule would
affect owners and operators of non-
transportation-related onshore facilities.
Need for Correction
The proposed rule contained minor
errors that may be misleading and
should be corrected. In addition,
although referenced in the preamble and
regulatory text and available in the
public docket, appendix H was
inadvertently omitted from the
proposed rule.
Correction of Publication
Accordingly, the proposed rule is
corrected as follows:
1. On page 8851. in the first column,
Amendment 7 which reads, ‘7. Part
112, as proposed to be revised at 56 FR
54630. is amended by adding
appendices C through C to read as
follows:” is corrected to read as follows:
“7. Part 112, as proposed to be revised
at 56 FR 54630, is amended by adding
appendices C through H to reed as
follows:”
2 On page 8851, in the second
column, in the first full paragraph under
section 2 1, the text which reads, “(1)
Transportation-Related Facilities
Greater Than or Equal to 42,000 Gallons
Where Operations Include Over-Water
Transfer 010,1—A transportation-
related facility with a total storage
capacity greater than 4 2.000 gallons that
transfers oil over water to or from
vessels must submit a response plan to
EPA.” is corrected to read as follows:
“(1) Facilities Greater Than or Equal
to 42,000 Gallons Where Operations
Include Over-Water Transfers of Oil—A
facility with a total storage capacity
greater than 42,000 gallons that transfers
oil over water to or from vessels must
submit a response plan to EPA.”
3. On page 8851, in the second
column, in the second full paragraph
under section 2.1, in line 8, “each” is
corrected to read “any”.
4. On page 8852, within the second
box down on the right side of the page
that contains the substantial harm
criterion for secondary containment,
“each” is corrected to read “any”.
5. On page 8853, in the first column,
in paragraph number “2”, in line 5,
“each” is corrected to read “any”.
6. On page 8854, in the second
column, in Table 2, under item (1),
“State Department of Naval Resources”
is corrected to read “State Department
of Natural Resources”. -
7. On page 8858, in the second
column, in Attachment D-l, the entry in
the first column “Areas” which reads
“Habitat used by designated or
proposed endangered/threatened
species or marine mammals defined as
depleted” is corrected to read “Habitat
used by designated or proposed
endangered/threatened species or
marine mammals”.
8. On page 8878, within the second
question on the left side of the page that
addresses the substantial harm criterion
for secondary containment, “each” is
corrected to read “any”.
9 On page 8879, following appendix
C, appendix H is added as follows.
BILLING CODE 16 50-6G -M
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APPENDIX U TO PART 112 - -
BRITTLE FRACTURE CONSIDERATIONS IN API STANDARD 653
S
i i ,
Note This does not
exempt tanks (rem other
isydroicci requirements
stipulated in this standaid
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19032 Federal Register / Vol. 58, No. 67 / Friday, April 9, 1993 / Proposed Rules
Authority: 33 U.S.C. 1321 and 1381; E.O.
12777 (3 CFR, 1991 Camp.. p. 351).
Dated March 31, 1993.
Walter W. Kovalkk, Jr.,
ActingAssatant Administrator.
[ FR Doc. 93—8393 Piled 4—4-43; 8:45 em)
m ac cooc e
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a — —
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—
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Friday
October 22, 1993
Part III
Environmental
Protection Agency
40 CFR Part 300
National Oil and Hazardous Substances
Pollution Contingency Plan; Proposed
Rule
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54702
Federal Register I Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
4OCFR Part 300
[ FRL—4544—8j
National Oil and Hazardous
Substances Pollution Contingency
Plan
AGENCY: Environmental Protection
Agency (EPA).
ACTiON: Proposed rule.
SUMMARY: The U.S. Environmental
Protection Agency (EPA or “the
Agency”) is today proposing revisions
to the National Oil and Hazardous
Substances Pollution Contingency Plan
(NcP). The Oil Pollution Act of 1990
(OPA) amends existing provisions of the
Clean Water Act (CWA) and creates
major new authorities addressing oil
and, to a lesser extent, hazardous
substance spill response. The revised
CWA requires the President to revise the
NCP to reflect these changes. The OPA
specifies a number of revisions to the
NCP that are intended to enhance and
expand upon the current framework,
standards, and procedures for response.
The last revisions to the NCP were
promulgated on March 8. 1990. The
proposed revisions will affect all NCP
subparts except F (State Involvement in
Hazardous Substance Response) and I
(Administrative Record for Selection of
Response Action).
DATES: Comments must be received on
or before December 20, 1993.
ADDRESSES: Comments: Comments
should be submitted in triplicate to
Emergency Response Division. Attn:
Superfund Docket Clerk, Docket
Number NCP—R2/A, Superfund Docket,
room M2427, U.S. Environmental
Protection Agency. 401 M Street, SW., -
Washington, DC 20460.
Docket: Copies of materials relevant to
the rulemaking are contained in the
Superfund Docket, room M2427, U.S.
Environmental Protection Agency, 401
M Street. SW.. Washington. DC 20460.
(Docket Number NcP—R2/A) This
docket is available for inspection
between the hours of 9 am and 4 pm.
Monday through Friday, excluding
federal holidays. Appointments to
review the docket may be made by
calling 202—260—3046. The public may
copy a maximum 267 pages from any
regulatory docket at no cost. If the
number of pages copied exceeds 267,
however, a charge of $0.15 will be
incurred for each page after page 100.
FOR FURThER INFORMATION CONTACT: Ms.
Elizabeth Zeller, Emergency Response
t)ivision (5202—C), U.S. Environmental
Protection Agency, 401 M Street, SW.,
Washington, DC 20460, or call 703—603—
8780.
SUPPLEMENTARY INFORMATION: The
contents of today’s preamble are listed
in the following outline:
I. Introduction
A. Statutory Authority
B. Background of This Rulemaking
11. RevIsions to the NCP
Subpart A: Introduction
Subpart B: Responsibility and Organization
for Response
Subpart C: Planning and Preparedness
Subpart D. Operational Response Phases for
Oil Removal
Subpart E: Hazardous Substance Response
Subpart C: Trustees for Natural Resources
Subpart H Participation by Other Persons
Subpart J: Use of Dispersants and Other
Ill. Regulatory Analyses
A. ‘xecutive Order 12291
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
I. Introduction
A. Stat utoiyAutiionty
Under section 311(d) of the Clean
Water Act (CWA), as amended by
section 4201 of the Oil Pollution Act of
1990 (OPA), Public Law No. 101—380,
and pursuant to authority delegated by
the President in Executive Order (E.O.)
No. 12777, the U.S. Environmental
Protection Agency (EPA), in
consultation with the member agencies
of the National Response Team (NRT),
is today proposing revisions to the
National Oil and Hazardous Substances
Pollution Contingency Plan (NcP), 40
CFR part 300. Some of the major goals
of the OPA that affect the NCP include
expanding prevention and preparedness
activities and enhancing the response
capability of the federal government.
One of the primary purposes of the
NO’ is to provide for efficient,
coordinated, and effective action to
minimize adverse impact from oil
discharges and hazardous substance
releases.’ Today’s revisions are intended
to incorporate changes made by the
OPA that have expanded federal
removal authority, added
responsibilities for federal on-scene
coordinators (OSCs), and broadened
coordination and preparedness planning
requirements.
The OPA was enacted to strengthen
the national response system. The OPA
provides for better coordination of spill
contingency planning among federal,
state, and local authorities. The addition
of the National Strike Force
‘Throughout the N , “dIscharge” also Includes
“substantial threat of discharge,” and “release” also
means “threat of release.”
Coordination Center (NSFCC), for
example, would relieve equipment and
personnel shortages that have interfereL
with response to oil spills posing
particularly significant environmental
or human health threats. Today’s rule
proposes to revise the NCP to
implement a strongly coordinated,
multi-level national response strategy.
The national response strategy,
contained primarily in subparts B and D
of the NCP, would contain the
framework for notification,
communication, logistics, and
responsibility for response to discharges
of oil, including worst-case discharges
and discharges that pose a substantial
threat to the public health or welfare of
the United States.2 The amended NCP
would further strengthen the federal
OSC’s ability to coordinate the response
on scene and would also incorporate a
new level of contingency planning—
Area Committees and area contingency
plans (ACPs). These committees and
plans are designed to improve
coordination among the national,
regional, and local planning levels and
to enhance the availability of trained
personnel, necessary equipment, and
scientific support that may be needed to
adequately address all discharges,
The major revisions to the NO’ being
proposed today reflect changes the OPA
made to section 311 of the CWA. These
changes increase Presidential authority
to direct oil spill and hazardous
substance cleanup and augment
preparedness and planning activities on
the part of the federal government, as
well as vessel and facility owners and
operators. For example, revised CWA
section 3 11(c) requires the President to
direct removal actions for discharges
and substantial threats of discharges
posing a substantial threat to the public
health or welfare. Revised section
311(d) requires a number of specific
changes to the NCP, including the
establishment of “criteria and
procedures to ensure immediate and
effective (fjederal identification of, and
response to, a discharge, or the threat of
a discharge, that results in a substantial
threat to the public health or welfare of
the United States.”
Section 3 11(d) also mandates the
establishment of procedures and
standards for removing a worst-case
discharge of oil and for mitigating or
preventing a substantial threat of such a
discharge. Furthermore, this section
requires the NCP to establish a fish and
wildlife response plan “for the
S Throughout the NCP. the term “substantial
threat to the public health or welfare” Is used
Interchangeably wIth “substantial threat to the
public health or welfare of the United SLates.”
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Federal Register / Vol. 58, No. 203 / Friday. October 22. 1993 I Proposed Rules
54703
related facilities are to submit response
plans and which of these plans are to be
reviewed and approved by EPA,
requirements for the preparation of
those plans, and criteria for EPA’s
review and approval of the submitted
plans. The Agency proposed these
regulations on February 17, 1993 (58 FR
8824). EPA will develop a data base to
track both facilities and facility response
plans. USCG and the Department of the
Interior (DOl) will develop similar
regulations, requirements, criteria, and a
data base for offshore and
transportation.related facilities and
vessels.
B. Background of This Rulemaking
The President signed the OPA on
August 18, 1990, after both houses of
Congress passed the Act unanimously.
After several similar proposals had been
unsuccessful over the past 15 years.
Congress enacted this legislation partly
in response to the Exxon Valdez spill
and several other incidents, including
the Mega Borg and the American Trader
spills.
The NCP was most recently revised
on March 8, 1990 (55 FR 8666) pursuant
to the Superfund Amendments and
Reauthorization Act of 1986 (SARA).
The 1990 revisions, focusing on
hazardous substance response.
reorganized the NCP to describe more
accurately the sequence in which
response actions are taken pursuant to
the NcP, clarified existing language on
roles, responsibilities, and activities of
affected parties, and incorporated
changes required by SARA as well as
those suggested by program experience.
II. Revisions to the N P
Authority and Applicability (Section
300.2)
The citation of section 311 of the
CWA as an authorizing statute for the
NCP is proposed to be revised to reflect
the amendment of the CWA by the OPA
and the implementing Executive Order.
Scope (Section 300.3)
This section has been revised to
reflect a change in CWA section 311(c)
by adding a reference to the exclusive
economic zone and deleting certain
other language that describes the
geographic coverage of the NCP.
A reference to on-scene coordinator
(OSC) contingency plans is proposed to
be replaced by a reference to ACP5.
Further information regarding this
change can be found in the discussion
of § 300.110. National Response Team,
and § 300.210, Federal contingency
plans.
EPA also is including a discussion of
the Federal Response Plan (FRP) in
several sections of today’s revisions to
the NcP. including § 300.3(d). The FRP,
signi d by 27 federal departments and
agencies in April 1992, was developed
under the Disaster Relief Act of 1974, as
amended by the Stafford Disaster Relief
Act of 1988. The FRP establishes a
foundation for coordinating federal
assistance to supplement state and local
response efforts to save lives, protect
public health and safety. and protect
property in the event of a natural
disaster, catastrophic earthquake, or
other disaster incident declared a major
disaster by the President.
The delivery of federal assistance is
facilitated through 12 annexes, or
Emergency Support Functions (ESFs),
which describe a single functional area
of response activity: Transportation.
communications, public works, fire
fighting. information and planning,
mass care, resources support, health and
medical services, urban search and
rescue, hazardous materials, or food.
The Hazardous Materials annex, ESF
#10, addresses releases of oil and
hazardous substances that occur as a
result of a natural disaster or
catastrophic event and incorporates
preparedness and response actions
carried out under the NCP. EPA serves
as the Chair of ESF #10 and is
responsible for overseeing all
preparedness and response actions
associated with ESF #10 activities All
NRT/RRT departments and agencies
serve as support agencies to ESF #10.
The current NCP in § 300.3(c)
indicates that actions taken pursuant to
the N P shall “conform to the
provisions of the international joint
contingency plans.” EPA is proposing to
modify this section to clarify that
response actions taken pursuant to an
international joint contingency plan
must be consistent with the NCP. to the
greatest extent possible.
Abbreviations (Section 300 4)
EPA is proposing to add new
abbreviations used in the NCP to this
section.
Definitions (Section 300.5)
EPA is proposing a number of changes
to definitions currently included in the
N P. The term “Biological additives” is
proposed to be changed to
“Bioremediation agents” to reflect that
“nutrient additives,” which are
bioremediation agents currently
immediate and effective protection,
rescue, and rehabilitation of, and the
minimization of risk of damage to, fish
and wildlife resources and their habitat
that are harmed or that may be
jeopardized by a discharge.” Section
311(d)(2)(G) authorizes consideration of
“other spill mitigating devices and
substances” for inclusion on the NC?
Product Schedule, and section
311(d)(2)(L) requires the establishment
of procedures for the coordination of
activities of OSCs, Area Committees,
U.S. Coast Guard (1.JSCG) strike teams,
and District Response Groups (DRGs).
Section 311(j)(2) of the CWA requires
that a national response unit, included
in today’s proposed revisions as the
NSFCC, be established in Elizabeth City,
North Carolina. The NSFCC “shall
compile and maintain a comprehensive
computer list of spill removal resources,
personnel, and equipment” and “shall
provide technical assistance” to federal
OSCs. Section 311(j)(2) provides that the
NSFCC will also coordinate efforts to
remove worst-case discharges. Pursuant
to section 311(j)(3), the USCG must
establish DRGs in each of the 10 USCG
districts to provide “technical
assistance, equipment, and other
resources” to federal OSCs to assist their
response activities. Pursuant to section
311(d)(2)(K), OSCs must be designated
for each area for which an ACP is
required to be prepared.
Section 311(j)(4) addresses the
development of an expanded national
oil spill response planning system.
Under this section, Area Committees,
which are composed of qualified
federal, state, and local agency
personnel, are directed to develop ACPs
that will address planning and
response-related issues and concerns, . Subpart A—Introduction
induding removal of worst-case - Subpart A, the preface to the NC?,
discharges, responsibilities of owners contains statements of purpose,
and operators and government agencies authority, applicability, and scope. It
in removing discharges,.ond procedures also explains the abbreviations and
for obtaining an expedited decision defines the terms used in the NC?.
regarding the use of dispersants.
Section 4202(b)(4) of the OPA
requires that the President issue
regulations within two years of
enactment for owners or operators of
certain vessels and facilities to prepare
response plans to address, among other
matters, response to a worst-case
discharge to the maximum extent
practicable These facility response
plans must be consistent with the NC?.
For onshore facilities that can cause
“significant and substantial harm” in
the event of a worst-case spill, these
plans must be approved by the federal
government. Pursuant to E.O. 12777,
EPA Is developing regulations that
include the criteria for determining
which onshore, non-transportation-
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54704
Federal Register / Vol. 58, No. 203 / Friday, October 22. 1993 / Proposed Rules
available in the marketplace, are
included under the term. EPA is also
preparing changes to the definition to
reflect the current definition of
bioremediation in the scientific
community and to focus on the
discernible effect of the agent, rather
than the purpose of its use.
The definition of “Chemical agent”
has been revised in today’s proposed
rule to provide examples of chemical
agents and to clarify that the term does
not include sorbents.
“Claim” has been expanded in today’s
proposed rule to include separate
definitions for purposes of a discharge
under the CWA and a release under
CERCLA.
Currently, the definition of
“Discharge” includes threats of
discharges. Today’s proposal would add
the word “substantial” before the phrase
“threat of discharge” in order to more
closely match the language in the OPA.
“Miscellaneous oil spill control
agent” is proposed to be revised to
clarify that the term does not include
bioremediation agents. sorbents, or
surface washing agents.
EPA is proposing to modify the
definition of “Preliminary assessment”
to clarify that it applies only in the
CERCLA context.
“Remove or removal” has been
expanded in today’s proposal as a result
of the OPA’s change to the CWA
definition to include the containment of
oil or hazardous substances. Additional
detail from the CWA definition further
explaining the term “welfare” also has
been included. Further, monitoring of
action to remove a discharge has been
added to the definition to clarify that
costs of those activities designed to
evaluate the effectiveness of CWA
removal actions are considered to be
part of the removal and give rise to
liability in cost recovery cases.
Scientific research and development
specifically has not been included in
this definition.
“Specified ports and harbors” is
proposed to be revised to include the
requirement that they be identified in
area contingency plans.
The definition of “State” is proposed
to be revised to clarify that § 300,515(b)
addresses treatment of Indian tribes as
states for purposes of cERCLA.
The definition of “Trustee” has been
expanded in today’s proposed rule to
reflect the fact that, in the case of
discharges covered by the OPA, trustee
may also refer to a foreign government
official who may pursue claims for
damages under the OPA,
The definitions of “Facility,” “Oil,”
and “Person” have been expanded in
today’s proposal to include their
definitions under section 1001 of the
OPA in addition to their current
ER LA definitions.
The term “Oil pollution fund” has
been replaced by “Oil Spill Liability
Trust Fund” in today’s proposed rule.
The definition of “United States” now
references the OPA, in addition to
CERCLA. in today’s proposal.
Finally, EPA is proposing to
incorporate in the NCP new definitions
based on provisions in the OPA,
provisions added to the CWA by the
OPA, and other changes being proposed
for the NGP today. Thus, in today’s rule,
EPA is proposing the addition of the
following new definitions: “Area
Committee,” “Area contingency plan,”
“Claimant,” “Coast Guard District
Response Group,” “Damages,”
“Exclusive economic zone,” “Federal
Radiological Emergency Response
Plan,” “Federal Response Plan,”
“Indian tribe,” “Lead administrative
trustee,” “National Pollution Funds
Center,” “National response system,”
“National Strike Force,” “National
Strike Force Coordination Center,”
“Removal costs,” “Responsible party.”
“Sorbents,” “Spill of national
significance,” “Surface washing agent.”
“Tank vessel,” and “Worst case
discharge.”
Subpart B—Responsibility and
Organization for Response
Subpart B describes the
responsibilities of federal agencies for
response and preparedness planning
and describes the organizational
structure within which response takes
place. It lists the federal participants in
the response organization. their
responsibilities for preparedness
planning and response, and the means
by which state and local governments.
Indian tribes, and volunteers may
participate in preparedness and
response activities. The term “federal
agencies” is meant to include the
various departments and agencies
within the Executive Branch of the
federal government.
The changes being proposed in
subpart B reflect specific changes to
response organization and
responsibilities made by the OPA, as
well as revisions to clarify existing
provisions and conform to changes
being made elsewhere in this proposal.
There are a number of important
changes to the organization for planning
and response being proposed. reflecting
the creation of a new national response
strategy in the OPA, These changes
include the addition of several new
entities, each of which is discussed in
detail in this preamble. A brief overview
of this organization and how the various
entities involved are expected to
interact is provided here to introduce
the more detailed, comprehensive
discussions that follow.
The OSC ( 300.120) is the key actor
in the national response system. The
OSC is the lead federal official at the
scene of a discharge, responsible for
taking whatever actions are necessary,
consistent with federal law, to remove
the threat posed. All other entities in the
national response system are intended
to utilize their expertise to support the
OSC during a response action.
Coordination between the OSC and
other components of the national
response system is critical to the success
of the oil spill response program,
The national response system
functions as an incident command
system, which is an organized approach
to effectively control and manage
operations at an emergency incident.
The individual in charge of an incident
command system is the senior official
responding to the incident: for the
national response system. this
individual is the OSC.
The national response system, typical
of an incident command system, can
expand or contract to accommodate the
response effort required based on the
size and complexity of a particular
discharge. Responses for small
discharges may be performed by a
relatively small number of individuals
who together assume all functions of the
national response system. Responses to
larger. more complex discharges may
require additional personnel to fill each
position in the national response system
and carry out the difficult time-
consuming efforts to control the
discharge. Whatever the complexity of
an incident may be, requiring
( implementation of the national response
system ensures there will be one
individual who makes decisions and
provides instructions. This system
should result in reduced confusion,
improved safety, better organized and
coordinated response actions, and more
effective mana ement of the incident.
National policy making, preparedness
planning, and coordination are the
responsibility of the multi-agency NRT
( 300.110). In carrying out these
responsibilities, the NRT addresses
issues of general applicability across
agencies, sites, and programs. In some
situations, particularly those that
transect regional boundaries, the NRT
may be activated as an incident-specific
team to support the OSC’s emergency
response efforts. In that capacity, its roir
generally will consist of bringing the
widest possible range of resources to
bear and providing expertise and insight
consistent with its position as the senior
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Federal Register I Vol. 58, No. 203 / Friday. October 22, 1993 / Proposed Rules
54705
level support organization in the
national response structure.
The Regional Response Teams (RRTs)
( 300.115) are designed to function in
much the same way as the NRT, except
on a regional level. The standing RRT
serves as a planning and coordination
body. while incident.specific RRTs are
formed from appropriate RRT member
agencies in a limited number of
situations, such as when a discharge
transects state boundaries or poses a
substantial threat to the public health or
welfare. Key responsibilities of the
incident-specific RRT are monitoring
the response, providing
communications support, making
recommendations to the OSC consistent
with the RRT’s expertise, and
mobilizing resources available in the
region, as requested by the OSC in
specific response situations.
The NSFCC ( 300.145(a)),
administered by the USCG. is a new
entity that will focus its efforts on
identifying, coordinating, and
mobilizing all public and private spill
removal resources, both personnel and
equipment. The NSFCC administers the
USCG strike teams ( 300.145(a)), which
are available to the OSC for a variety of
response needs, including the provision
of specialized knowledge and
equipment. The NSFCC will support the
activities of and serve asa resource for
the OSC. NRT. and RRT to ensure that
all appropriate resources are brought to
bear in a given response situation.
The new DRGs created by the OPA
( 300 145(g)) provide a framework for
each USCG district to deliver its entire
response capability to the removal of a
spill within its borders. These groups
will provide an efficient mechanism for
the OSC to call upon the wide-ranging
skills, experience, and equipment of the
USCG district staff. Because DRGs
represent strictly USCG resources, they
will not eliminate the need for incident-
specific RRTs, which can provide
expertise and resources from any of the
RRT’s member agencies. When spills
cross USCG district lines, DRGs can
work with the NSFCC to ensure that
their response efforts are fully
coordinated.
In addition to the response-oriented
entities described above, the OPA
creates a new system of Area
Committees and ACPs within the
national planning structur’ (see subpart
C). The Area Committees are composed
of federal, state, and local
representatives; their primary
responsibility is ACP development.
Area Committees are planning bodies,
not response entities, although members
of the Area Committees may have
specific roles during response
operations. ACPs are intended to
provide detailed information on the
geographic area covered by the plan and
the response resources available within
the area. They should complement other
required planning activities by
providing a level of localized site-
specific detail unavailable in either the
National or regional contingency plans.
ACPs will be prepared under the
direction of an OSC, who should drew
on the expertise of the above described
entities (in addition to state and local
resources).
Use of the Term “Direct”
The NCP currently uses the term
“direct” to describe broadly and
generally the OSC’s role in removal
response operations, particularly those
that are, at least initially, federally
funded. The term is a shorthand
expression for a wide range of
management responsibilities of the OSC.
The term “direct” is used in this sense
in § 300.115(b)(2), 300.120(a),
300.120(e), and 300.135(a).
The OPA amends section 311(c) of the
CWA to strengthen federal removal
authority. One new feature of this
authority is the ability to “direct”
response actions under sections
311(c)(1)(B)(ii) and (c)(2)(A). Today’s
proposed changes also use the term
“direct” to describe a potential OSC role
in situations other than federally funded
actions or private party cleanups being
monitored by the OSC. “Direct,” in this
latter sense, is intended to convey more
than management responsibility, and
includes specific legal authority of the
OSC to guide the activities of all parties
responding to a discharge. This revised
and expanded response authority is
described in greater detail in the
preamble discussions to subpart D,
Operational Response Phases for Oil
Removal, and subpart E, Hazardous
Substance Response.
Duties of President Delegated to Federal
Agencies (Section 300.100)
This section is proposed to be revised
to incorporate references to the OPA
and its implementing Executive Order.
General Organization Concepts (Section
300.105)
This section is proposed to be revised
to incorporate Area Committees and
A Ps into the list of organizational
elements in § 300.105(c) and to make
minor editorial changes. Figure 1 also is
proposed to be revised to reflect changes
made in today’s proposal.
National Response Team (Section
300.110)
Section 300.110 proposes to include a
number of changes that reflect new
language contained in the OPA and
revisions to other provisions in the
proposed rule. Modifications are
proposed to reflect the addition of Area
Committees to the national response
structure. The term “area contingency
plan,” for example, is proposed to be
used in place of the existing “OSC
contingency plan” (see preamble
discussion of § 300.2 10, Contingency
Plans Under the National Response’
System).
The functions of the NRT, such as
developing recommendations for
response training, reviewing regional
responses, and activation to support
response actions, remain unchanged for
the most part. However, a number of
changes are proposed. Section
300.110(e) is proposed to be revised to
clarify the role of the NRT with regard
to recommending changes to the NcP.
Specifically, the NRT is now expected
to recommend, to the Administrator of
EPA, changes to the N P including
drafting of regulatory language.
Paragraph (h), which details the direct
planning and preparedness
responsibilities of the NRT also is
proposed to be revised. Section
300.110(h)(5) is proposed to be modified
to indicate that coordination procedures
should be developed “in coordination
with the NSFCC, as appropriate.”
Coordination with the NSFCC is
appropriate in the case of discharges of
oil and releases of hazardous substances
under CWA section 311. Section
300.110(h)(6) is proposed to be modified
to make the NRT responsible for
facilitating research in support of
response activities This change is
proposed to enhance the NRT’s role n
research activities in light of the
emphasis placed on such activities by
the OPA. The NRT is also now
responsible for developing a national
exercise program, in coordination with
the NSFCC, to ensure nationwide
preparedness and coordination
( 300.110(h)(9)). This new
responsibility reflects the new CWA
requirement (section 311(j)(7)) for
periodic area response drills.
A conforming change is proposed in
paragraph (j) of this section. The
language of 300.110(j)(1)(iii) currently
states that the NRT should be activated
as an emergency team when an oil
discharge or hazardous substance
release involves a “significant threat to
the public health or welfare or the
environment.” This last phrase is
proposed to read “substantial threat to
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public health or welfare or the
environment” to reflect revisions made
to CWA section 311(c) by the OPA.
In addition to circumstances where
discharges or releases pose a substantial
threat to the public health or welfare or
the environment, the OSC may.
depending on the circumstances of the
discharge or release, request activation
of the NRT to assist in responding to
worst case discharges. in the event of a
worst case discharge, the OSC shall
“take whatever additional response
actions are deemed appropriate” (see
§ 300.324). Because the OPA definition
of worst case discharge (see § 300.5)
focuses on weather conditions and
relative amounts of discharged contents
from a vessel or facility, not on the
absolute size of a discharge, the size of
a worst case discharge and its effects on
the public health or welfare or the
environment could vary greatly. For
example, in the case of a discharge
during a severe thunderstorm from an
onshore facility that contained 150
gallons of fuel oil, the effects of a
discharge of all 150 gallons might be
confined to a relatively small area.
Under these circumstances, local
response capability probably would be
sufficient. By contrast, if multiple
onshore facilities located along major
rivers containing 100.000 gallons of fuel
oil ruptured dunng a hurricane,
discharging their entire contents into
the river, the OSC could request
activation of the NRT to assist in
coordinating local and regional response
resources, or otherwise supporting the
response.
Regional Response Teams (Section
300 115)
The language in § 300.115 is proposed
to be changed to reflect the new
language contained in the OPA and
revisions to other provisions in the
proposed rule. Furthermore, the
language in § 300.115 (a) and (b) will be
changed to ensure consistency between
ACPs and regional contingency plans
(RCPs). This includes tasking the RRTs
with providing guidance to Area
Commiuees to ensure inter-area
consistency within each region.
Section 300.115(g) also is proposed to
be changed to reflect the addition of the
Area Committee structure. New CWA
section 311(j)(4) gives the President the
responsibility to appoint members to the
Area Committees. The President
delegated this authority to the Secretary
of Transportation and the EPA
Administrator in Executive Order
12777. However, because RRT members
are well positioned to determine who
from their own agencies are most
qualified to work with OSCs in
developing and maintaining AcPs.
today’s proposed rule gives the RRTs
the opportunity to nominate Area
Committee candidates,
Further conforming changes have
been made to §300.115(i)(9) to reflect
the addition of AGPs to the national
response system. It is important to note
that RRTs will not merely consider
changes to ACPs, as they do for OSC
contingency plans in the existing rule.
Rather, the proposed NCP would
provide that the RRT recommend
modifications to ACPs.
Several other changes are proposed
for § 300.115. The language of
§ 300.115(h) is proposed to be changed
to clarify that Indian tribes are not
governed by state law. Section
300.115(i)(6) is proposed to be modified
to conform to new § 300.910. Thus,
RRTs and Area Committees would share
responsibility for creating
preauthorization plans for the use of
dispersants, surface washing agents, and
bioremediation agents. This new
language reflects the incorporation of
Area Committees into the preexisting
planning process concerning the use of
chemical agents. Section 300.115(i)(11)
is proposed to be added to reflect the
RRT’s role in the national exercise
program (see preamble discussion of
§ 300.110, supra, for explanation of this
pro ram)
Finally, § 300.115(j) would state that
RRTs may be activated as incident-
specific response teams if a spill is a
worst case discharge as described in
§ 300.3 24.
On-scene Coordinators and Remedial
Project Managers: General
Responsibilities (Section 300.120)
New CWA section 311(d)(2)(K) will
require the NGP to designate a federal
OSC for each area for which an ACP is
required. Section 300.120 of the NCP
currently requires EPA and the USCG to
predesignate OSCs for all portions of
each region.
In a Federal Register notice of April
24, 1992 (57 FR 15201). USCG Captains
of the Port (COTPs) were designated
OSCs for coastal areas for which an AD’
is required under CWA section 311(j).
These new designations are the same as
existing OSC designations made by the
USCG. EPA Regional Administrators are
authorized to designate OSCs for inland
areas for which an AD’ is required. The
EPA Regions will consider their existing
designations when making these newly
required designations to minimize or
avoid duplication or overlap of
responsibilities among OSCs. These new
designations are discussed in a new
§ 300.120(b). Remaining subsections
have been re-lettered accordingly.
Newly designated § 300.120(e) also is
proposed to be changed to reflect the
OSC’s responsibilities concerning the
new area planning concept. Specifically.
the proposed N P would indicate that
OSCs are responsible for overseeing
development of A Ps in cooperation
with RRTs.
Notification and Communications
(Section 300.125)
Section 300.125(a) is proposed to be
revised to eliminate the need for the
NRC to notify FEMA of evacuation
situations. As discussed later in the
preamble ( 300.135), FEMA no longer
performs evacuations.
Determinations to Initiate Response and
Special Conditions (Section 300.230)
Prior to the OPA, CWA sectIon 311(d)
gave the federal government the
discretionary authority to take certain
actions in cases where a marine disaster
created a substantial threat of a
pollution hazard to the public health or
welfare of the United States (including,
but not limited to, fish, shellfish,
wildlife, and the public and private
shorelines and beaches). These actions
included: (1) Coordinating and directing
all public and private efforts to remove
a discharge, or an imminent discharge of
large quantities of oil or a hazardous
substance from a vessel; and (2)
removing, and if necessary, destroying
the vessel without regard to any
provisions of law governing the
employment of personnel or the
expenditure of appropriated funds. This
CWA response authority for marine
disasters was deleted by the OPA. thus
existing § 300.130(b)(3) and (c) are
deleted in today’s proposal.
CWA section 311(c)(2), as amended
by the OPA, now requires he federal
government to direct removal actions in
response to a similar, but broader class
of events—any discharge of oil or a
hazardous substance (regardless of
whether it qualifies as a “marine
disaster,” and whether it is from a
vessel, offshore facility, or onshore
facility) that is of such a size or
character as to be a substantial threat to
the public health or welfare of the
United States. In directing removal
actions in the case of a discharge that
poses a substantial threat to public
health or welfare of the United States,
the President may act without regard to
any other provision of law governing
contracting procedures or employment
of personnel by the federal government
and may destroy the vessel that is
discharging or threatening to discharge.
Section 311(c)(1), as amended by the
OPA. continues to provide discretionary
authority to the President to direct or
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54707
monitor all federal, state, and private
actions to remove any discharge of oil
or a hazardous substance that does not
pose a substantial threat to the public
health and welfare of the United States.
These changes, as well as an effort to
clarify the distinction between CWA
and CERCLA authorities are reflected In
new § 300.130(b) and redesignated
300.130(c) (formerly (b)(2)).
Specifically, proposed § 300.130(b)
describes the new OPA authorities
(discussed above) in the case of a
discharge of oil or a CWA hazardous
substance. Re-designated § 300.130(c)
discusses existing authority for
responding to releases of CERCLA
hazardous substances.
Additionally, § 300.130(d) is proposed
to be revised to reflect the new language
on the authority to issue administrative
orders that is contained in CWA section
311(e), as amended by the OPA. Section
3 11(e) authorizes the President. upon
determining that there may be an
imminent and substantial threat to the
public health or welfare of the United
States, to take any other action,
including issuing an administrative
order, that may be necessary to protect
the public health and welfare of the
United States. This new authority
allows EPA and USCG officials to issue
an order to protect public health
expeditiously. without pursuing the
relatively time-consuming process of
having the Attorney General initiate a
civil judicial action. This section also
h’s been modified to clarify the
distinction between authorities for oil
and CWA hazardous substance
discharges on the one hand
( 300.1 30(d)(lfl, and CERCLA
hazardous substance releases on the
other ( 300.130(d)(2)). Finally, the
language in § 300.130(d)(1) has been
changed to track new language in the
OPA. Specifically, the phrase “that
there is an imminent and substantial
threat “ has been changed to “that
there may be an imminent and
substantial threat *
A number of clarifying changes are
proposed for § 300.130(f) in order to
eliminate any possible confusion about
the applicability of the FRERP. The
FRERP is activated during any
peacetime radiological emergency that
is or will be expected to have a
significant radiological effect in the U.S.
or its territories requiring multi-federal
agency support. Non-FRERP radioactive
releases should be addressed in
accordance with the NCP as
appropriate, but It is important for EPA
and USCG officials to work In
coordination with the FRERP if that
plan is in effect.
A new § 300.130(i) is proposed to be
added to describe the role of Federal
Response Plans. More detail on the
Federal Response Plan is included in
today’s proposal under the preamble
discussion of proposed 5300.3.
Response operations (Section 300.135)
In addition to several minor editorial
changes made in §5300.135(d) and
300.135(e), a number of clarifying
changes are proposed in these sections.
Paragraph (c) describes the requirement
for the OSC/RPM to collect information
about discharges and releases. As part of
this duty. under today’s proposed
revisions the OSCFRPM would be
required, to the extent practicable, to
determine whether a discharge is a
worst case discharge and whether the
discharge or release poses a substantial
threat to the public health or welfare of
the United States. This change has been
proposed to reflect the incorporation of
these OPA concepts into the revised
NQ’ (worst case discharges and
substantial threats to the public health
or welfare are discussed in detail in the
preamble discussion of §5300.322 and
300.324).
The first sentence in paragraph (g)
concerning FEMA is proposed to be
deleted because FEMA no longer
performs evacuations. In addition, the
language requiring the OSC/RPM to
evaluate incoming information and
immediately advise FEMA of potential
major disaster situations has been
changed from “shall” to ‘should.” This
revision has been proposed because the
relationship between the OSC/RPM and
FEMA is now detailed in the new
Federal Response Plan.
Section 300.135(h) is proposed to ho
modified to provide for a potentially
greater role for OSHA and HHS on
worker health and safety issues.
Specifically, their role can now go
beyond “advice” and include whatever
“assistance” is necessary and
appropriate.
Section 300.135(j) is proposed to be
revised to reflect more accurately the
policy on notification of natural
resource trustees and a new OPA
requirement for consultation with
affected trustees on the appropriate
removal action to be taken in
connection with an oil spill.
Specifically, the policy requires that
trustees be notified of all discharges and
releases, not only those that are injuring
or may injure natural resources; the
OPA requires trustees to assess natural
resource damage resulting from
discharges. which necessitates that they
be notified of every discharge or release.
This requirement need not be met by
the OSC/RPM personally, bait he or she
must ensure that trustees are notified.
Thus, the NCP states Itihe OSCJRPM
shall ensure that the trustees for natural
resources are promptly notified of
discharges or releases,”
In the event of an oil discharge, the
OSC is also required, pursuant to OPA
Section 1011. to consult with the
affected trustees on the appropriate
removal action to be taken. This
requirement is reflected in new
language contained in § 300.135(j)(2).
Section 300.135(k) is proposed to be
revised to clarify the requirement that
the OSC/RPM consult with the
Department of the Interior or the
Department of Commerce (NOA.A) and,
if appropriate, the cognizant federal
land managing agency. tn the event of
a discharge or release that may affect
endangered or threatened species. This
change from discretionary to mandatory
consultation is proposed to reflect an
Endangered Species Act requirement
that the responsible federal agency be
notified after such an occurrence.
Multi-regional response (Section
300.140)
Conforming changes are proposed in
this section to reflect the new provisions
addressing AcPs and the elimination of
OSC Contingency Plans.
Special teams and other assistance
available to OSCs/RPMs (Section
300.145)
This section is proposed to be revised
and reorganized to better describe
existing resources and incorporate new
resources available as a result of the
OPA. Special teams are federally Funded
and may provide resources locally to the
OSC/RPM. These teams may provide the
following: scientific information.
manpower, equipment, support
information systems, training, cleanup
expertise, and public information
coordination assistance. Section 300.145
details these special teams and other
assistance available to OSCs/RMs.
National Strike Force (NSF)
The discussions of the strike teams
and Public information Assist Team
(currently §5300 .145(a) and (g)) are
proposed to be revised and consolidated
with a new discussion of NSFCC.
Combined, they are now presented as
the National Strike Force in proposed
§ 300.145(a).
Strike Teams
Revised CWA section 3’11(d)(2)(C)
authorizes the establishment of Coast
Guard strike teams consisting of (1)
personnel “trained, prepared, and
available to provide necessary services
to carry out the National Contingency
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Plan;” (2) “adequate oil and hazardous
substance pollution control equipment
and material;” and (3) “a detailed oil
and hazardous substance pollution and
prevention plan, including measures to
protect fisheries and wildlife.” The
Conference Committee Report
accompanying the OPA states that strike
teams are to be available upon request
by any OSC to provide assistance.
guidance, and training (HR. Rep. No.
101—653, 101st Cong. 2d Sess. at p. 149).
Strike teams are considered to be part of
the NSF “special team” within the
meaning of § 300.145.
Each strike team is designed to airlift
highly skilled pollution response
experts to the scene of a discharge to
assist and advise the OSC. They can
assist in coordination with contractors,
private party responders, civic
volunteers, state and local government
responders, and the media. Their
expertise in vessel salvage and
inventory of specialized oil response
equipment can be critical to initial first
aid response.
Under the current NO’. a single strike
team covers the Atlantic and Gulf coast
regions. and a second covers the Pacific
coast. Immediately following the Exxon
Valdez spill. the USCG conducted a
study to determine the need, if any, for
additional strike teams. The study
determined that an additional strike
team was required. with a configuration
similar to the two existing teams. The
proposed revisions to § 300.145(a)
would create a new strike team for the
Atlantic coast, retain the current
Atlantic and Gulf Coast strike team
solely for the Gulf coast, and retain the
current strike team on the Pacific coast.
OSCs can request strike team support
through the RRT, NSFCC, National
Response Center (NRC), or directly
through the commanding officer of the
appropriate strike team.
National Strike Force Coordination
Center
Revised CWA section 311(j)(2)
establishes a National Response Unit at
Elizabeth City, North Carolina. Today’s
proposed revisions would add the
NSFCC, in § 300.145( 8), as part of the
NSF special team, satisfying the
requirement for the National Response
Unit. All requirements. responsibilities,
and duties of the National Response
Unit are assumed by the NSFCC. The
name is proposed to be changed to
reflect more accurately its function in
coordinating response resources rather
than participating directly in response
operations.
CWA section 311(j)(2) provides that
this entity: (1) Shall compile and
maintain a comprehensive list of spill
removal resources, personnel, and
equipment that is available worldwide
and within each designated area: (2)
shall provide technical assistance,
equipment, and other resources
requested by an OSC; (3) shall
coordinate use of private and public
personnel and equipment to remove a
worst case discharge and to mitigate or
prevent a substantial threat of such a
discharge; (4) may provide technical
assistance in the preparation of ACPs;
(5) shall administer Coast Guard strike
teams and provide technical assistance;
and (6) shall review and maintain on
file ACPs. The OPA Conference Report
explains that this provision is intended
to create a system in which private
parties supply the bulk of any
equipment and personnel needed for oil
spill response in a given area (H.R. Rep.
No. 653. 101st Cong. 2d Sess. at p. 148
(1990)). In addition, the NSFCC is
designed to reduce the OSC’s time
demands for logistical organization by
coordinating use of private and public
response personnel and equipment for a
worst case discharge. The Report
emphasizes that the National Response
Unit (i.e., the NSFCC), in its
coordination of private and public
response resources, should avoid
duplication of private initiatives (Id.).
The NSFCC will provide technical
assistance to the OSC in: (1) Selecting.
locating, end employing specialized
pollution response equipment (such as
booms and skimmers) that would be
effective in responding to specific
problems at the site; (2) establishing
site-specific equipment and manpower
requirements to monitor and conduct
clean-up operations; (3) establishing the
necessary site-specific logistics
requirements for the local transportation
of equipment into spill area receiving
and staging areas: and (4) planning day-
to-day response operations after a spill.
Scientific Support Coordinators
A revised discussion of scientific
support coordinators (SSCs) is included
as § 300.145(d) which more accurately
describes the roles and capabilities of
these individuals. Section 300.145(d)
also would introduce into the NO’ the
concept of the lead administrative
trustee who would be a federal natural
resource trustee who is designated on an
incident-by-incident basis and chosen
by the other federal trustees whose
natural resources are affected by the
incident. The lead administrative
trustee would facilitate effective and
efficient communication between the
OSC and the other federal natural
resource trustees during response
operations. The lead administrative
trustee also would be responsible for
applying to the OSC for access to federal
response resources on behalf of all
trustees for initiation of damage
assessment and claims for injuries to
natural resources. These response
resources include both response
equipment and financial resources. (The
lead administrative trustee also is
discussed in § 300.155, 300.305, and
300.615 of this proposed rule.)
Radiological Emergency Response
Teams
The current NO’ in § 300.145(f) refers
to Radiological Assistance Teams. This
paragraph is proposed to be modified to
update this reference to “Radiological
Emergency Response Teams” and to
clarify that requests for their support
may be made through the NRC or
directly to the EPA Radiological
Response Coordinator in the Office of
Radiation Programs.
District Response Groups
New CWA section 311(j)(3) mandates
the establishment of Coast Guard DRGs
for each of the Coast Guard districts.
Today’s proposal incorporates the DRGs
in § 300.145(g) as “other assistance.”
CWA section 311(j)(3) provides that
each DRG shall consist of USCG
personnel and equipment for each port
within the district, additional pre-
positioned equipment, and a district
response advisory staff. Section 311(j)(3)
also indicates that each DRG: (1) Shall
provide technical assistance,
equipment, and other resources when
required by an OSC through the RRT co-
chair, (2) shall maintain all USCG
response equipment within its district:
(3) may provide technical assistance in
the preparation of ACPs; and (4) shall
review each of those plans that affect its
area of geographic responsibility. The
entity referred to in the OPA as the
“district response advisory staff” will be
known as the District Response
Advisory Team (DRAT) and will consist
of several full-time spill professionals
who will be available to provide
technical assistance to the OSC through
the RRT co-chair in the event a spill
exceeds local response capabilities. The
DRAT staff will help ensure that ACPs
in different areas within the district are
compatible and that pro-staged response
equipment is available to address spills
exceeding local response capabilities.
The pre-staged equipment would
include equipment owned by
contractors and other private parties, as
well as the USCG.
The Conference Report states that the
USCG should give priority emphasis to
several factors in determining where to
locate the DRG personnel and pro-
positioned equipment, including: (1)
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The availability of facilities for loading
and unloading heavy or bulky
equipment by barge: (2) the proximity to
an airport capable of supporting large
military transport aircraft; (3) the flight
time to provide response to oil spills in
all areas of the Coast Guard district with
the potential for marine casualties; (4)
the availability of trained local
personnel capable of responding in an
oil spill emergency; and (5) areas where
large quantities of petroleum products
are transported (l-LR. Rep. No. 101-653,
101st Cong., 2d Sess., at p. 149).
Each ofthese Factors is important In
ensuring adequate capability to respond
to oil spills requiring a substantial
commitment of clean-up resources.
During the response to the Exxon
Va/ c /az spill, equipment adequate to
contain and clean up the spilled oil was
not available during the initial days of
the incident. In addition, staging (i.e.,
assembly) of equipment had to be
performed at the scene of the spill from
mobile platforms, requiring that the
equipment be lowered from aircraft or
delivered by boat. The small airstrip at
Valdez could not accommodate large
transport planes that are capable of
carrying booms, skimmers, and other oil
spill response equipment. Furthermore,
personnel trained to move such
equipment were not available locally.
All of these factors exacerbated the slow
delivery of clean-up equipment,
allowing the oil spill to spread across
larger areas.
The new DRGs create a framework by
which each USCG district is able to
deliver its full resources in the most
efficient manner to respond to an actual
discharge or to a substantial threat of a
discharge.
National Pollution Funds Center (NPFC)
Title I of the OPA sets out
requirements and procedures for the Oil
Spill Liability Trust Fund (OSLTF),
Executive Order 12777, section 7,
delegates those OPA functions
respecting payment of removal costs
and daims and deterrnLning consistency
with the NCP to the Secretary of the
Department in which the Coast Guard is
operating. The NPFC has been
established by the Secretary of
Transportation and the 1 . 1 5CC
Commandant to implement these
functions. Today’s proposal would
make the NPFC a special team under
§ 300.14 5. The NPFC’s responsibilities
include:
• Providing OSLTF moneys for
removal actions and to initiato natural
resource damage assessments;
• Implementing procedures for
presentation. filing, processing,
settlement, and adjudication of claims
against the OSL’I’F;
• Paying appropriate costs, damages.
and claims, including activities to
process. settle, and administratively
adjudicate such costs, damages, and
qlaims, resulting from oil discharges;
• Issuing Certificates of Financial
Responsibility to those owners and
operators that have demonstrated the
ability to pay for costs and damages that
may be incurred by their vessel in the
event of a discharge;
• Recovering money from responskble
parties for costs and damages resulting
from oil discharges to the full extent of
liability under the law: and
• Establishing procedures for
assigning project numbers, fund
ceilings, and related accounting data fon
(1) Incident-specific removal activities
performed by federal OSCs; (2) incident.
specific removal activities by states as
described in the preamble discussion of
§ 300.180; (3) the initiation of natural
resource damage assessment activities
as described in the preamble discussion
of subpart G; and (4) claims, as
described in § 300.700(h).
Concentrating 051SF responsibilities
in the NPFC should help to ensure that
the OSC is not preoccupied with
funding issues during a response. In this
sense, the NPFC is similar to the other
special teams described in § 300.145
that provide specialized expertise to
support the OSC’s response efforts.
Emergency Task Forces
Section 300.145(b) is proposed to be
deleted in today’s rule and the
subsequent sections would be
renumbered. This change is proposed
because the requirement formerly
contained in section 3ll(cKZI of the
CWA has been revised by the OPA to
eliminate th language addressing
requirements for emergency task forces
in major ports. As noted in the preamble
discussion of “specific requirements for
inland and coastal zones” in subpart C,
the duties of these emergency task
forces have been assumed by Area
Committees in the coastal zone.
Worker Health and Safety (Section
300 .150 )
Section 300 150(a) is proposed to be
revised to clarify that the national
response system is an incident
command system (see discussion of
incident command system elsewhere in
the preamble discussion of subpart B).
The phrase ‘with plans approved under
section 18 of the 0 514 Act” is proposed
to be moved from paragraph (e) to
paragraph (c).
Public Information and Community
Relations (Section 300.155)
The language of today’s proposed rule
reflects the proposed role of the lead
administrative trustee in coordinating
information dissemination relating to
natural resource damage assessments.
(See discussion of lead administrative
trustee in the preamble discussion of
§ 300.145(d).)
The implementation of 300.155 may
vary across sites as a result of the OPA
and associated changes made elsewhere
in this proposal. Specifically.
§ 300.3 22 (c) and 300.415(c) now
provide greater opportunities for the
OSC to seek support in disseminating
information to the public in the case of
substantial threats to the public health
or welfare. Specific OSC responsibilities
described in § 300.155 may be delegated
by the OSC to lead agency or RRT
officials to permit the OSC to focus his
or her efforts on directing activities
associated with the actual removal
actions being taken , For more detail on
how responses to substantial threats to
the public health or welfare will be
conducted, see the preamble
discussions for § 300.322 (c) and
300.4 15(c ).
Documentation and Cost Recovery
(Sect ion 300 160)
Language in § 300.160(a112)
concerning OSC reports is proposed to
be deleted because of the decreased
importance of these reports in the
revised NCP. (See preamble discussion
of 300 165. immediately following.)
QSC Reports (Section 300.165)
Today’s proposed revisions to the
NCP would delete the current
requirement in § 300 165 to prepare
OSC reports for all responses to major
discharges or releases. The original
purpose of the OSC report was to
summarize activities at the site and to
communicate lessons learned, discuss
any problems encountered in the
response, and recommend
improvements which need to be shared
throughout the response community. In
the March 8, jgq o, revisions to the NCP
(55 FR 8666), EPA recognized that OSC5
have extensive responsibilities and that
responding to discharges and releases is
a higher priority than drafting the OSC
report. Consequently, the Agency
extended the deadline for completing
OSC reports from 60 days to one year
after completion of the response action
or when requested by the RRT.
Recently, EPA has reassessed the
desirability of requiring an OSC report
for all responses to major discharges or
releases. The already considerable time
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demands placed on the OSC have
increased dramatically with the
enactment of t he OPA. New OSC
responsibilities under the OPA include
chairing the Area Committees,
overseeing the drafting of ACPs, and
directing responses to discharges that
pose a substantial threat to the public
health or welfare. Preparing the OSC
report is an additional paperwork
burden that is not statutorily mandated.
Furthermore, the most important
information contained in the OSC
report—lessons learned in specific
responses—is expected to be available
from other materials prepared by the
OSC. including the pollution report and
the OSC log book. These documents
could also be used for enforcement
purposes in lieu of the OSC report.
Today’s rule, therefore, proposes to
delete the § 3 00.165 requirement to
prepare OSC reports following a major
discharge or release. Suction 300.165,
however, retains the authority of the
RRT to request that an OSC report be
prepared on a case-by-case basis. The
authority of the NRT to do likewise has
been added.
Paragraph (c), which details the
format of the OSC report, is proposed to
be deleted. This change is consistent
with a decreased importance of OSC
reports in the revised NCP.
Federal Agency Participation (Section
300 170)
The introduction to this section is
proposed to be modified to track more
closely the language used in OPA
section 1006(c) and CERCLA section
107(j) regarding the functions of natural
resource trustees. Also, references to
Area Committees and ACPs are
proposed to be added. Finally, the
words “facilities or” are proposed to be
added to § 300.170(d) to correct an
apparent oversight in previous NCP
revisions.
Federal Agencies: Additional
Responsibilities and Assistance (Section
300.175]
Language in this section is proposed
to be clarified to make the agency
descriptions listed in the NCP more
complete and up-to-date. For example,
the DOC description is proposed to be
expanded to include providing
information on the sensitivity of coastal
environments to clean-up and
mitigation methods. The DO!
description is proposed to be expanded
to include its expertise in determining
the effects of oil and hazardous
substances on natural resources through
the Fish and Wildlife Service. In
addition, the Minerals Management
Service description is proposed to be
changed to reflect its expertise regarding
oil spill response technology research
and oversight of offshore oil/gas
exploration and production facilities.
Finally, the description of the National
Park Service is proposed to be expanded
to detail its expertise in responding to
threats to park system lands and
resources.
Section 300.175(b) is proposed to be
revised to include a description of the
General Services Administration, which
has been added to the list of
participating federal agencies since the
NCP was last revised. This section is
proposed to be further revised to clarify.
in the Department of Justice description,
the role of agency counsel and to
include a more detailed and accurate
description of FEMA’s roles and
responsibilities. In addition, the
description of OSHA’s responsibilities
is proposed to be changed to better
reflect OSHA’s commitment to active
participation in response. Finally, the
description of HHS is proposed to be
rewritten to better reflect the duties of
that department.
State and Local Participation in
Response (Section 300.180) and
Nongovernmental Participation (Section
300.185)
Section 300.180(b) is proposed to be
added to clarify the significant role
played by state and local officials in
preparing ACPs. The term “state” in
§ 300.180 is also meant to encompass
Indian tribes. This understanding
reflects the definition of “state”
contained in § 300.5, which states that
Indian tribes are included as states for
the purposes of the NCP. Also, the
reference to subpart D of the NO’ in
proposed § 300.180(e) will be
eliminated. This was apparently an
oversight in previous NO’ revisions that
eliminated references to section 311 of
the CWA from this provision.
Conforming changes are proposed to be
made to §6300.180 and 300.185 to
reflect the new language of CWA section
311(j) as amended by the OPA,
particularly with regard to the
preparation of facility and vessel
response plans and the integration into
ACPs of technical and scientific
information. Finally, it should be noted
that, in accordance with OPA section
1012(d)(1) and (d)(2) and E.O. 12777,
the USCG, upon request of a state
Governor or pursuant to an agreement
with a state, not including Indian tribes.
may obligate the OSLTF for payment in
an amount not to exceed $250,000 per
incident for removal costs consistent
with the NO’. These funds may be used
only for the immediate removal of a
discharge, or the mitigation or
prevention of a substantial threat of a
discharge of oil.
Subpart C—Planning and Preparedness
Subpart C describes the levels of
contingency planning under the
national response system and cross-
references state and local emergency
preparedness activities under SARA
title III. The changes being proposed in
subpart C today reflect OPA
requirements for Area Committees and
ACPs as well as for a Fish and Wildlife
and Sensitive Environments Plan.
Area Committees/Area Contingency
Plans
The OPA expands the existing
planning and response framework in
several ways. As discussed earlier, the
OPA establishes the NSFCC and USCG
DRGs and also creates a new
requirement for facility and tank vessel
response plans. In addition, the OPA
creates an area-level planning and
coordination structure to supplement
national, regional, state, and local
contingency planning efforts. Amended
CWA section 311(j)(4) establishes Area
Committees and ACPs as the primary
components of this structure. OPA
section 4202(b) requires the President to
designate areas for which the Area
Committees are established. Through
Executive Order 12777 (56 FR 54757,
October 18, 1991). the President
delegated to the Administrator of EPA
responsibility for designating the areas
and appointing the committees for the
“inland zone” (as defined in NO’
§ 300.5). The USCC was given
responsibility for designating areas and
appointing Area Committees for the
“coastal zone” (as defined in § 300.5).
This section of the preamble describes
the general requirements for Area
Committees and ACPs, The next section
describes how these requirements are to
be implemented in the inland and
coastal zones, respectively.
Area Committees
Area Committees are to consist of
members appointed by the President
from qualified personnel of federal,
state, and local agencies. Area
Committees have three primary
responsibilities: (1 Preparation of ACPs;
(2) working with stat and local officials
to enhance contingency planning and
“assure pro-planning of joint response
efforts, including appropriate
procedures for mechanical recovery,
dispersal. shoreline cleanup, protection
of sensitive environmental areas, and
protection. rescue, and rehabilitation of
fisheries and wildlife;” and (3) working
with state and local officials “to
expedite decisions for the use of
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54711
dispersants and other mitigating
substances and devices.”
Including local, state, and federal
representatives on Area Committees
would facilitate the development of a
comprehensive plan, ensure
coordination among various response
plans, and discourage unnecessary
duplication of planning efforts. In
addition, the Area Committee structure
will allow response experts, as well as
persons, groups, and agencies with
concerns and responsibilities for the
environmental integrity of an area, to
play a role in the planning process. In
today’s proposal, a new § 300.205(c) has
been added to incorporate Area
Committees into the existing planning
and coordination structure and to
describe their responsibilities.
Area Committees are encouraged to
solicit advice, guidance, and expertise
from all appropriate sources (e.g.,
facility owners and operators, shipping
company representatives, cleanup
contractors, emergency planning and
response officials, marine pilots
associations, members of academia,
environmental advocacy groups.
response organizations, and concerned
citizens). The Area Committees may
establish subcommittees as necessary to
accomplish the preparedness and
planning tasks. The SSC, an NSF
representative, and members of the
DRAT also will be available to assist the
Area Committee as consultants.
Area Contingency Plans
CWA section 311(j)(4) requires each
Area Committee, under the direction of
the OSC for its area, to prepare an ACP
for its area. The statute requires that
each AD’:
(1) When implemented in conjunction
with the ND’ be adequate to remove a
worst case discharge, and to mitigate oi
prevent a substantial threat of such a
discharge, from a vessel, offshore
facility, or onshore facility operating in
or near the area;
(2) Describe the area covered by the
plan, including the areas of special
economic or environmental importance
that might be adversely affected by a
discharge. In describing areas of special
economic and environmental
importance, several lactors should be
considered, including but not limited to
the presence and proximity of natural
resources, environmentally sensitive
areas, and population concentrations:
the location of drainage basins and
appropriate geographic and/or
topographic features; the location of
water supplies; and beaches, ports,
recreational areas, areas of seasonal
significance, and migratory bird
flyways. Compliance with this
requirement may be accomplished in
part through the Fish and Wildlife and
Sensitive Environments Plan (discussed
later in this preamble), which is to be a
part of an AD’;
(3) Describe in detail the
responsibilities of an owner or operator
and of federal, state, and local agencies
in removing a discharge, and in
mitigating or preventing a substantial
threat of a discharge. These
responsibilities should include specific
duties, tasks, personnel, and equipment
expected, and the stage of response in
which they are expected (i.e., initial
response, long-term remediation);
(4) List the equipment (including
flrefighting equipment). dispersants or
other mitigating substances and devices,
and personnel available to an owner or
operator and federal, state, and local
agencies, to ensure an effective end
immediate removal of a discharge, and
to ensure mitigation or prevention of a
substantial threat of a discharge;
(5) Descnbe the procedures to be
followed for obtaining an expedited
decision regarding the use of
dispersants;
(6) Describe in detail how the plan is
integrated into other ACPs and vessel,
offshore facility, and onshore facility
response plans approved under CWA
section 311(j), and into operating
procedures of the NSFCC, and
(7) Include any other information the
President requires.
The contents of an AD’ are not
limited to these elements but may
include other information relevant to
the statutory requirements (e.g., the
geographical area’s facilities, vessel
traffic, oil transportation industry, and
environmental characteristics).
CWA section 311(j)(4)(D) requires that
each AD’ be reviewed and approved by
jhe President (delegated to EPA and the
USCG in Executive Order 12777) and be
periodically updated by the Area
Committee.
Today’s proposal would create a new
§ 300.210(c) that describes the
requirement to prepare ACPs and the
required contents of such plans.
AD’s are similar in purpose to the
OSC contingency plans described in
current § 300.210(d). OSC contingency
plans identify probable locations of
discharges or releases, the available
resources to respond to multi-media
incidents, where such resources can be
obtained, waste disposal methods and
facilities consistent with local and state
plans, and a local Structure for
responding to discharges or releases.
Existing OSC contingency plans in the
coastal zone may already describe an
area and plan similar to the ACPs
required by the CW . In addition, EPA
Regions generally have not exercised
their authority to draft OSC contingency
plans for the inland zone because other
plans, including RD’s and title 111 local
emergency response plans, were
considered to be adequate to provide for
a wall-coordinated response. For these
reasons. EPA proposes to delete
§ 300.210(d). Nonetheless, Area
Committees may wish to use existing
OSC contingency plans and/or RD’s in
developing AD’s. As part of today’s
proposed revisions, all references to
“OSC Contingency Plans” in the ND’
would be changed to “area contingency
plans.”
The existing requirement in
§ 300.210(d) (2) that OSC plans be
coordinated with all appropriate
response plans—especially with title Ill
local emergency response plans—has
been incorporated in § 300.210 (c)(2) of
today’s proposal to apply to ACPs.
Today’s proposed § 300.210(c)(3)(C)
notes that lengthy equipment lists need
not be included in the body of the AD’,
but may be provided in an appendix or
by reference to other relevant emergency
plans.
As one part of an overall preparedness
program, CWA section 311(j)(7) requires
periodic unannounced drills of removal
capability in areas for which AD’s are
required and under relevant tank vessel
and facility response plans. These drills
may include participation by federal,
state, and local agencies, the owners and
operators of vessels and facilities in the
area, and private industry. The NSFCC,
together with the cognizant program
managers of the USCG and EPA, would
act as a clearinghouse for these
exercises, participating in the
development, execution, and evaluation
process. The Administrator and the
Secretary of the department in which
the Coast Guard is operating may
publish annual reports on these drills,
including an assessment of the
effectiveness of the plans and a list of
amendments made to improve plans.
The NSFCC may, in con junction with
the cognizant program managers of the
USCG and EPA, conduct unannounced
area or multi-area exercises. Today’s
proposal would create a new § 300.212
that describes the requirement for these
area response drills.
Specific Requiremen!s For Inland and
Coastal Zones
Under the current ND’, EPA and the
USCG have taken different approaches
to planning and preparedness in the
inland and coastal zones respectively.
For example, the USCG has Emergency
Task Forces required under CWA
section 31 1(dll2Rc). ‘Multiple-Agency
Local Response Teams” (MALRTs) exist
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in several ports. As noted above. EPA
has relied more on RCPs and Title Ill
local emergency response plans rather
than develop numerous OSC
contingency plans. Similarly. EPA and
the USCG have now chosen to build
upon different features of the existing
oil spill planning and response structure
in ensuring that all navigable waters and
adjoining shorelines are sub ect to an
ACP. Specifically, while the USCG is
using its Captain of the Port structure
for the coastal zone. EPA is initially
using the 13 RRTs and their associated
geographical areas for the inland zone.
inland zone—EPA. The existing NO’
divides the United States, its terntones,
and its possessions. including portions
of the high seas, mb 13 areas of
responsibility (40 FR 300.105(b) and
(d)). These areas correspond to the ten
standard federal regions with the
exception of the separate areas
established for (1) Puerto Rico and the
U.S. Virgin Islands of Region II: (2)
Alaska of Region X; and (3) Hawaii,
Guam, Northern Mariana Islands,
Pacific Island Governments, and
American Samoa of Region IX. Each of
these areas is covered by its own RRT
and RCP. Each of the 13 areas of
responsibility is divided further into
coastal and inland zones.
EPA has designated these 13 RRT
areas” as the initial areas for which
ACPs must be prepared in the inland
zone (57 FR 15198, April 24. 1992). EPA
Regional Administrators may designate
new subregional geographic areas and
appoint Area Committees for them. In
the process of designating subregional
areas in the inland zone, every section
within a region may be screened. If
smeller or subregional areas are
designated within a region, EPA intends
to publish the subregional designations
in the Federal Register at a later date.
Designation of subregional areas is to
be based on an analysis of the potential
risk of oil spills and the environmental
sensitivity of areas within each region.
Analysis of these geographic areas
would include consideration of the
following criteria. The pattern of past
spills and the likelihood of future spills;
the presence and proximity of natural
resources, environmentally sensitive
areas, and population concentrations;
the concentration of facilities, pipelines,
and transportation routes within the
region; the location of drainage basins
and appropriate geographic andlor
topographic features; the location of
water supplies; and the location and
capabilities of existing preparedness
and response organizations. These
criteria are consistent with the
requirements in CWA section
311(j)(4)(C) that each AC? “describe the
area covered by the plan, including the
areas of special economic or
environmental importance that might be
damaged by a discharge.” EPA believes
that the relevant information is
generally available.
Pursuant to E.O. 12777. the EPA
Administrator has designated the 13
RRTs to serve as the initial Area
Committees for each region (57 FR
15200. April 24, 1992). RRTs have the
desired composition, functions, and
experience initially to fulfill the role of
Area Committees. RRTs are composed of
representatives of the 15 federal
agencies having a broad range of
environmental responsibilities, state
agency representatives, members of
Indian tribes, and local representatives
(as arranged by the state’s
represent8tive). RRTs are officially
designated for interagency and
intergovernmental planning and
coordination of preparedness and
response actions at the regional level.
They are responsible for developing
RCPs to address oil and hazardous
substance spills (see NO’ § 300.115).
The EPA Administrator has delegated
to the Regional Administrators authority
to designate a different Area Committee
or committee members. OSCs should
develop the AC? in close collaboration
with the Area Committee; Area
Committee members must be active in
the planning process if the plan is to be
effective.
For all subregional areas, each RRT
agency will recommend representatives
to EPA Regional Administrators (or
appointment to Area Committees. In
addition to the RRT agency
representatives, there will be
appropriate representatives from each
state and Indian tribe and from local
government in the area, including
representatives of State Emergency
Response Commissions (SERCs) and
Local Emergency Planning Committees
(LEPCs).
The RRT will serve as the Area
Committee for the balance of the region
not covered by any newly designated
subregional areas and their committees,
unless the Regional Administrator
designates a different committee for the
balance of the region. This will ensure
that all navigable waters and adjoining
shorelines are subject to an AC?.
As provided in OPA section
4202(b)(1)(B), ACPs for the inland zone
are to be submitted to EPA. The
Regional Administrator shall approve
ACPs for the inland zone. In cases
where the RRT is not serving as the Area
Committee or where subregional areas
have been designated, the Regional
Administrator will request the RRTs to
review proposed ACPs and provide
recommendations regarding approval.
Coastal zone—USCG. The USCG has
designated areas for the coastal Area
Committees and noted the designation
of COTPs as OSCs for the coastal zones
(57 FR 15201, April 24, 1992). The
USCG designated contingency planning
areas based on the 47 COTP areas. The
areas covered by the COTPs are smaller
than the RRT areas and include major
river systems associated with ports.
Each COTP zone is described in USCG
regulations at 33 CFR part 3. The USCG
designated as areas those portions of the
COTP zone that are within the “coastal
zone,” as defined by the NC?.
In E.O. 12777. the USCG was
delegated authority to appoint Area
Committees for the coastal zone. Area
Committees will replace the Emergency
Task Forces formerly required under
section 311(c)(211c) oftheCWA and the
MALRTs. which currently exist in
several ports. Although the Area
Committee is not a response
organization, it is anticipated that most
committee members will have specific
roles in the response structure.
Federal agency members of the Area
Committee should be recommended by
the RRT member agencies for
appointment by the OSC. Primary state
representatives to the Area Committee
should be chosen by the lead agency
designated by each governor for
pollution preparedness and response.
For states with more than one agency
involved in pollution related missions,
the OSC should ask each agency to
consider representatives from these
agencies. For local membership. the
USC should coordinate with LEPCs.
As part of their planning activities.
the Area Committees should address the
desirability of using appropriate
dispersants, surface washing agents,
surface collecting agents,
bioremediation agents, or miscellaneous
oil spill control agents listed on the NCP
Product Schedule, and the desirability
of using appropriate burning agents. The
AC?s should, as appropriate, include
applicable preauthorization plans and
address the specific contexts in which
such products should and should not be
used. The preauthorization plans should
address factors such as the potential
sources and types of oil that might be
spilled, the existence and location of
environmentally sensitive resources that
might be impacted by spilled oil,
available product and storage locations,
available equipment and adequately
trained operators, and the available
means to monitor product application
and effectiveness. RRTs have the
authority to review and approve.
disapprove, or approve with
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54713
thédification the preauthorization plans.
as appropriate. Approved
preauthorization plans should be
included in the AG’. For dispersarits
and other mitigating substances,
devices, or technologies not pre-
approved, the AC? should outline the
process established by the RRT for that
region for an expedited decision
regarding the use of these items.
For areas in the coastal zone, the Area
Committee should forward the
completed AC? to the District
Commander via the District Chief of the
Marine Safety, Security, and
Environmental Protection Division for
review and approval. The district will
be respon ible for distributing the AC?
to the NSFCC and the RRT for review
and comment. The district will compile
and review the comments received and
recommend to the District Commander
that the plan be approved or returned
for correction. The AC? review process
will verify that all issues are addressed,
including consistency with the NO’,
ad’jacent coastal and inland zone AG’s,
and other federal, state, and regional
plans.
Fish and Wi ld l ife and Sensitive
Environments P /an
Today’s proposed revisions to the
NC? set forth the requirements for a
response strategy addressing fish and
wildlife and sensitive environments.
The Fish and Wildlife and Sensitive
Environments Plan would be an annex
to each AG’ and would include new
provisions for the RRTs, OSCs. and Area
Committees regarding appropriate
planning and preparation for potential
spills. Pursuant to CWA section
311(d)(2)(M), as amended by OPA
section 4201(b). the President is
required to include in the revisions to
the NC? a ‘fish and wildlife response
plan * * for the immediate and
effective protection, rescue, and
rehabilitation of, and the minimization
of risk of damage to, fish and wildlife
resources and their habitat that are
harmed or that may be jeopardized by
a discharge.” Also, CWA section
311ffl(4XB) (il and (ii) and section
311(j)(4)(cJ(ii), added by the OPA
section 4202(a), call for the assurance of
joint preplanning by the Area
Committees, including “ *
protection of sensitive environmental
areas, and protection. rescue, and
rehabilitation of fisheries and wildlife”
and a description of “the area covered
by the plan. including the areas of
special economic or environmental
importance that might be damaged by a
discharge.” Based on tho expenence end
recommendations of the U.S. Fish and
Wildlife Service (FWS) and NOAA,
today’s proposal integrates a broad
range of factors to incorporate into this
new response plan. The new Fish and
Wildlife and Sensitive Environments
Plan would include a “fish and
wildlife” component addressing the
‘specific criteria contained in new CWA
section 311(d)(2)(M). Based on general
authority contained in CWA section
311(d)(2), there also would be a
“sensitive environments” component
that incorporates consideration of
broader factors designed to complement
the specific fish and wildlife criteria in
order to better ensure achievement of
the goals underlying the new
requirements.
Sensitive environments for the
purposes of this section are considered
to be those areas identified in the EPA’s
Hazard Ranking System (HRS),
Appendix A of 40 C?R part 300, without
their associated HRS weights. In
addition to those areas recognized in the
HRS list, additional areas have heen
identified for inclusion in the definition
of sensitive environments under this
section. They include wetlands,
national forests, national conservation
areas, various state lands, biological
resource areas, and sources of drinking
water. These additional inclusions are
considered sensitive environments
under this section because they offer
habitat to fish and wildlife, are critical
habitat, are areas designated for
protection under a state or federal
policy, contain significant biological
resources other than fish and wildlife,
or are more susceptible to adverse
impacts from oil or spectflc
countermeasures. Water bodies that are
utilized for drinking water are
considered a sensitive environment
because of the direct and dependent
relationship of the water bodies to the
overall quality of the ecosystem
The requirement in CWA section
311(d)(2)(M) is proposed to be met
through an annex to each AC?
developed by the Area Committees, in
consultation with the FWS, NOAA, and
other interested parties, including state
fish and wildlife conservation officials
and Indian tribes. Today’s proposed rule
is intended to provide the framework for
the Area Committees to develop
consistent and compatible annexes for
the protection of and mitigation of
injury to fish and wildlife resources and
sensitive environments.
Each annex is to:
• Identify and establish priorities for
protection of fish and wildlife resources
and habitats, and other sensitive
environments;
• Provide a mechanism for use during
response to a discharge to expeditiously
define protection priorities:
• Identify the potential effects of
response and countermeasure activities
on fish and wildlife, their habitats, and
sensitive environments and prioritize
the appropriateness of such activities in
specific areas,
• Provide for preapproval of
appropriate removal actions in specific
areas;
• Plan for monitoring to evaluate the
effectiveness of response activities in
protecting fish and wildlife, their
habitats, and sensitive environments;
• Identify end provide for the
acquisition and use of necessary
response capabilities to protect fish and
wildlife, their habitats, and sensitive
environments;
• Identify appropriate state and
federal agency contacts responsible for
fish and wildlife rescue and
rehabilitation as well as necessary
permits or other legal requirements to
carry out fish and wildlife response
activities;
• Identify training required under the
Occupational Safety and Health
Administration (OSHA) and SARA for
volunteers in fish and wildlife response
activities and the means for securing
such training durin a response; and
• Define the requirements for
evaluating the compatibility between
this annex and non’federal response
plans on issues affecting fish and
wildlife, their habitats, and sensitive
environments,
In addition to the framework provided
in the proposed rule, guidance will also
be developed by NOAA and the FWS,
in consultation with other federal
natural resource agencies, and provided
to the Area Committees This guidance
will cover collection and management
of annex-related information and
requirements. classification and
sensitivity of different environments to
oil or hazardous substances, and the
environmental considerations of
different defensive measures used to
mitigate the impacts of a discharge.
The existing spill response system
under the NC ’ already addresses many
of the provisions of the OPA and has
many components that address
protection of fish and wildlife and their
habitats. For example, § 300.330
addresses Phase Ill wildlife rescue and
conservation planning and response
activities, in addition, § 300.3t0
addresses minimizing the threat to the
environment during removal actions
and selection of defensive actions, such
as chemical or physical
countermeasures (see § 300.900) that are
most consistent with protection of the
environment. Coordination among the
RRT, state fish and wildlife
conservation agencies, OSCs, federal
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54714 Federal Register I Vol. 58, No. 203 I Friday, October 22, 1993 / Proposed Rules
SSCsas well as federal, state, and
Indian tribal trustees, and other public
and private response agencies, both
during contingency planning and actual
spill response activities presently
includes steps to: (1) Identify resources
and habitats at risk; (2) establish
priorities for areas of protection; (3)
rescue and rehabilitate wildlife; and (4)
facilitate consistency and compliance
with laws for protection of fish and
wildlife.
The integration into the Fish and
Wildlife and Sensitive Environments
Plan of the numerous objectives listed
in the CWA. as amended by the OPA,
is designed to ensure consideration of
the various elements that comprise a
comprehensive approach to ensuring
“the immediate and effective
protection” of fish and wildlife, their
habitat, and other sensitive
environments. Inclusion of the sensitive
environments cornpunent would offer
the most effective approach for planning
to avoid orrnitigate spill-induced
injuries in areas that have been
identified under this designation and
therefore have an elevated level of
importance in addition to fish and
wildlife populations and their habitat.
Sensitive environments may include a
human-use component which can
translate to economically important
environmental areas, such as national
and state seashore recreational areas.
These sensitive environments also may
be susceptible to the direct impacts of
oil or susceptible to the effects of
response actions. These areas may be
determined to be sensitive because of
the economic value of the natural
resource (e.g., from both a recreational
or commercial perspective), or they may
be habitat that is considered “unique”
(such as aquaculture areas, fishing
grounds, or seasonal habitats). For
example, in the Exxon Voider spill in
1989, one of the richest marine fisheries
habitats in the United States was
contaminated. Both the fish and
shellfish of this area form a complex
ecosystem that supports other species,
including man. Many of the species
affected by the spill had a commercial,
recreational, and subsistence value.
Other examples of sensitive
environments identified under this
section are archeological and Indian
tribal sites. During the Exxon Voider oil
spill, such sites were destroyed from the
direct effects of the oil and from the
effects caused by response actions.
Many of these sites were originally
located in specific areas because of a
particular characteristic in nature. The
inclusion of these sites under the
definition of sensitive erwironments
will help to preserve the historical and
cultural importance found in these sites
and their original association with the
environment.
Sensitive environments may also
include bodies of water that are of
importance for fish and wildlife habitat
and human use, such as areas that
include drinking water supplies. For
example, in January 1988, the rupture of
an aboveground storage tank owned by
the Ashland Oil Company allowed
750,000 gallons of diesel oil to spill
indirectly into the Monongahela River at
Floreffe, Pennsylvania. As a result of the
contamination of the Monongahela
River by the spill, more than 70
communities had to shut down their
drinking water supplies. Identification
of these areas as sensitive would lead to
the appropriate preplanning necessary
to protect the natural resource.
This proposed rule is designed to
provide the framework for Area
Committees to develop consistent and
compatible annexes to the AtPs for the
protection and mitigation of injury to
fish and wildlife resources, their habitat,
and sensitive environments. These
ACP5 will contain criteria for use by the
OSC for the “protection of sensitive
environmental areas, and protection,
rescue, and rehabilitation of fisheries
and wildlife.” The resources identified
in the ACPs should be prioritized
regarding their sensitivity to oil and
specific countermeasures. Such a
prioritization would allow the OSCs to
better address the threats to fish and
wildlife, their habitat, and sensitive
environments. Preplanning for
dispersants and bioremediation
products and burning agents is required
for inclusion in the AcP by subpart J.
Such planning must reflect local
environmental conditions. Such issues
are within the purview of the RRTs and
should be coordinated with them.
Additional guidance regarding
collection and management of ann3x.
related information and requirements,
the classification and sensitivity of
different environments to oil or
hazardous substances, and the
environmental considerations of
different defensive measures used to
mitigate the impacts from a discharge
will be developed by NOAA and the
FWS, in consultation with other
qualified federal agencies, and provided
to the Area Committees. The process of
developing Fish and Wildlife and
Sensitive Environments Plans for AcYs
should involve the appropriate qualified
federal, state, and Indian tribal trustees.
The creation of this annex is not
intended to duplicate existing
coordination mechanisms nor to
replicate plans and other data that have
already been developed to protect fish
and wildlife resources. Rather, the
intent is to strengthen response
capability, and make more compatible
the multiple efforts that are initiated to
protect. rescue, and rehabilitate those
resources and to minimize risk or
impact to their habitats from a
discharge.
The Fish and Wildlife and Sensitive
Environments Plan, which is to be an
annex to the ACP, is intended to ensure
compatibility between various possible
response activities and measures to
protect fish and wildlife resources, their
habitat, and other special areas of
ecological sensitivity that may be
adversely affected by a discharge. As a
consequence. the effectiveness of the
OSC in removing a discharge and
mitigating oil spill effects in a timely
fashion should be enhanced through
coordinated and integrated efforts.
Experience has shown that pre-planning
and response activities are most
effective when accomplished at the
local level because coordination and
response activities can more accurately
focus on local fish and wildlife, their
habitats, and sensitive environments of
an area.
Mechanisms that currently exist to
accomplish the necessary identification,
ranking, planning, end assignment of
duties in order to carry out effective
response activities (e.g., RRTs, RCPs.
EPA Regional Offices. LEPCs, and the
USCG Marine Safety Office) will exist
through the Area Committees and ACPs.
In addition, many federal and state
agencies. as well as many private
organizations, have tools available to
identify resources and habitats at risk
and can support the identification and
prioritization of fish and wildlife
resources and sensitive environments,
both during contingency planning and
incident response. For example.
NOAA’s coastal environmental
sensitivity index maps rank shoreline
area sensitivities to spilled oil. The FWS
and state wildlife resource agencies
facilitate and implement rescue and
rehabilitation efforts as well as consult
with the OSC on wildlife protection
activities during a discharge. In
addition, the federal SSCs synthesize
technical information for the RRTs and
the OSCs on the effects of defensive
actions (see § 300.145). They also assist
in planning for and responding to
discharges of oil or hazardous
substances to minimize environmental
impacts. including impacts to fish and
wildlife, their habitats, and sensitive
environmental areas.
The Conference Committee’s Report
on the OPA indicates that the provision
adding a new requirement for a fish and
wildlife plan was added by section 2002
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Federal Register / Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
54715
of the House bill (H.R. Rep. No. 653.
101st Congress, 2nd Session at p. 147
(1990)). The language of the House bill,
which was not included in the statute
as enacted, included a number of
specific provisions addressing the actual
contents of a fish and wildlife plan. For
example, the House bill specified that
the plan incorporate procedures
assigning responsibilities and
facilitating communication among
federal, state, and local agencies with
expertise in these matters. In addition,
the House bill required the plan to
provide for early identification and
pnoritization of fish and wildlife and
their habitat threatened by a spiii.
The specific provisions of the House
bill that were to be included in the plan
clearly were intended to ensure that fish
and wildlife priorities would be taken
into account when conducting
immediate and effective response
actions. As enacted, the statute reflects
this intent, but does so through a more
general requirement that leaves the
details of implementation to the
discretion of federal agencies (in
coordination with appropriate state
officials) developing the revised N .
To the extent these provisions can best
effectuate the goals of the CPA’s
requirement to develop a fish and
wildlife plan. the proposed rule adopts
in part the approach reflected by some
of the specific provisions that would
have been required by the House bill.
Other elements—such as the
identification and ranking of sensitive
environmental areas, defining
environmental consequences of
different kinds of response actions, and
coordinating various response plans
with regard to aspects concerning fish
and wildlife resources and habitat—
have been added because of their
interrelation with the protection of fish
and wildlife and their habitats. This
approach satisfies the intent of the CPA
for a comprehensive approach in
preparing Fish and Wildlife and
Sensitive Environments Plans.
This comprehensive approach is of
particular importance because the
requirement for a Fish and Wildlife and
Sensitive Environments Plan will be
implemented primarily at the level of
A Ps developed under CWA section
311(j)(4). The biological diversity of fish
and wildlife and their habitat between
different regions and areas of the
country necessitates a thorough
consideration of all relevant factors that
are critically important.
OPA not only expands planning
requirements for dischargers by
requiring that certain onshore facilities.
offshore facilities, and tank vessels
prepare and submit response plans, but
also reinforces the importance of
environmental protection by requiring
that such plans consider the
environmental consequences of a worst
case discharge or a substantial threat of
such a discharge (CWA section
311(fl(5)). It also requires that ACPs
prepared under section 311(j)(4)
describe how vessel and facility
response plans will be integrated with
the ACPs.
An annex addressing various
components of the Fish and Wildlife
and Sensitive Environments Plan would
be prepared on a scale appropriate to
various scenarios as defined by OPA
and implementing regulations. Some
Area Committees may need to prepare
several Fish and Wildlife and Sensitive
Environments Plans because of the size
or environmental complexity/diversity
of their area. However, it is critical that
consistent or standardized evaluation
methodologies and terminology be used
among these annexes, within a region,
and, as appropriate, between adjacent
regions. In addition, there should be
consistency on these environmental
issues with vessel and facility response
plans, including those for pipelines, that
are within the purview of the Area
Committee. Although the CPA
considers pipelines within the
definition of “facility,” the
environmental considerations required
in planning for a pipeline spill can be
more complex than those of fixed
facilities because of the potential variety
of habitats traversed by a long.distance
pipeline. Past experience has shown
that very sensitive environments can be
impacted by pipeline leakage. as
happened in the Santa Clara River in
1991 when 76,000 gallons of oil
impacted 12 miles of endangered
species habitat in California.
Consequently, because of the variety of
sources of discharges and the
potentially wide range of geographic
areas to be included in a response plan
by a single source (e.g., single pipeline
or vessel with several ports), it is
essential to have consistency in
methodology, terminology, and
classifIcation of sensitive environments
among all facility, pipeline, and vessel
plans within the area covered by an
A P and between adjacent areas and
regions.
Because effective response
countermeasures are dependent upon
timely decisions and actions, this
proposed revision places a new
emphasis upon preplanning for
approval of removal actions. Because
appropriate and rapid removal actions
are Intended to avoid or lessen injuries
to fish and wildlife, their habitats, and
other sensitive environments, pro-
approval of such actions, many of which
are dependent upon application within
the first 1—2 days following a discharge.
should allow an OSC more options in
implementing an effective response
strategy and thus minimize adverse
environmental impact. It is also being
proposed that for certain removal or
mitigation strategies. a plan for
monitoring the effects of
countermeasures be included in the
annex to ensure that the benefits of oil
removal are not offset by the adverse
effects of the specific application of the
removal action. Research on past spills
has suggested that the removal action
can sometimes cause more harm than
the oil spill itself; therefore, monitoring
and evaluating the environmental
benefit of certain response
countermeasures is justified.
Discharges of oil may give rise to
potential liability under the CWA, as
revised by the OPA. The discharger is
also subject to prosecution under both
civil and criminal provisions of several
federal and state laws regulating fish
and wildlife. The “taking” of fish and
wildlife is defined in various ways
under the laws which protect these
species, but generally includes not only
non-permitted hunting or fishing, but
also deaths and injuries caused by other
means, including discharges of oil, as
well as harassment, live capture,
handling, and holding in captivity (or
attempting to engage in any such
activity), which may be elements of a
response action. Some of these laws
regulating fish and wildlife “taking”
provide for emergency permit
authorities. Thus, the proposed rule
calls for the Fish and Wildlife and
Sensitive Environments Plan to address
advance planning to identify legal
constraints and provide for appropriate
permitting and law enforcement
investigative support regarding fish and
wildlife, including the Endangered
Species Act (ESA) section 7
consultations and permits issued under
the authority of the ESA, the Marine
Mammal Protection Act and Migratory
Bird Treaty Act, the Marine Protection,
Research. and Sanctuary Act, related
state laws, and laws regulating activity
in other sensitive environments. This
would facilitate response actions and
reduce the risk that agencies responsible
for fish and wildlife are unable to carry
out their responsibilities, which could
be detrimental to rescue and
rehabilitation of wildlife, as well as
interfering with potential law
enforcement and damage assessment
activities.
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Federal Register / Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
Other Changes in Subpart C
In § 300.200 of today’s proposed rule
the phrase “describes the federal, state,
and local planning structure: provides
for levels of federal contingency plans”
has been changed to “describes the
three levels of contingency planning
under the national response system” to
more accurately describe the contents of
this subpart. Similar references to the
national response system have been
added to § 300.210.
Throughout this subpart, EPA is
proposing to change all references to the
“Emergency Planning and Community
Right-to-Know Act of 1986” to “title III”
(see § 300.200). The title III requirement
for the LEPC to designate a community
emergency coordinator is proposed to be
added to § 300.205(e) of today’s
proposed rule to make the NCP
consistent with title Ill.
Title III requires LEPCs to prepare a
comprehensive emergency plan and
review the plan annually or more
frequently as needed. EPA has
consistently encouraged LEPCs (e.g., see
Hazardous Materials Emergency
Planning Guide) to consider chemical
hazards at all facilities—not just those
“subject” to section 302 of title III—
when developing the comprehensive
emergency plan. Today’s proposal
would delete the word “subject” from
§ 300.215(a) in recognition of the fact
that other facilities (e.g., those
submitting material safety data sheets
(MSDSs) under section 311 and tier I
and II reports under section 312) should
be included in a comprehensive plan
under title Ill.
Subpart D—Operat:onal Response
Phases for Oil Removal
Subpart D of the NO’ generally sets
forth requirements for procedures to
respond to discharges of oil. These
requirements are intended to clarify the
responsibilities of OSCs. other federal
and state government personnel, and
responsible parties in ensuring that
responses to oil discharges are sufficient
to protect public health and welfare and
the environment.
The OPA requires revisions to several
sections in subpart D. The most
significant changes are the requirements
that the NO’ include cnteria and
procedures for response to discharges
that result in substantial threats to
public health or welfare of the United
States, and procedures and standards for
preventing, mitigating, and removing a
worst-case discharge. These changes are
included in two new sections of today’s
proposed rule, § 300.322 and 300.324,
respectively. Additional proposed
revisions include a provision dealing
with spills of national significance
(SONS) ( 300.323), the deletion of
§ 300.330 (“Wildlife conservation”),
which is being replaced by new
language in § 300.210. and revisions to
conform to changes being made
elsewhere in today’s proposed rule.
In revising the NO’. the desirability of
further distinguishing between the
response requirements for oil discharges
on one hand and releases of hazardous
substances, pollutants, and
contaminants on the other hand became
evident. In order to assist participants
and responders under the national
response system, as well as other
interested persons. in implementing and
understanding the NO’, EPA is
proposing to include a new appendix to
the rule. This appendix to the NO’
would consolidate in one place all
provisions of the NO’ relevant to oil
spill response, including the
organizational structure and procedures
to prepare for and respond to oil
discharges. It can serve as a single
source of direction and guidance to
OSCs, as well as a consolidated source
of information for other interested
parties regarding the requirements and
procedures applicable to oil spill
response. The wording may vary in
some instances between the appendix
and the various subparts of the NO’.
Generally, this has resulted from the
need to paraphrase or restructure certain
passages to address oil discharges only.
Nothing in the appendix changes the
substantive requirements, meaning, or
policy contained in the body of the
NO’.
Phase I—Discovery or Notification
(Section 300.300)
Pursuant to OPA section 4301 (a),
revised section 311(b)(5) of the CWA
provides that the “Iflederal agency shall
immediately notify the appropriata State
agency of any State which is, or may
reasonably be expected to be, affected
bythedischargeofoil * .“Astate
that may reasonably be expected to be
affected by a discharge would include
any state that water current, prevailing
weather patterns, and other factors
indicate is in the direct path of a
discharge or any state in which response
personnel will be activated or used. To
ensure the proper notification of state
agencies, today’s proposal would
modify tho language of § 300.300(d) to
indicate that the OSC must notify the
appropriate state agency.
Section 300.300(d) also has been
revised in today’s proposal to reference
the ACP along with the RCP as plans
that will guide the OSC’s activities.
Phase JI—Preliminazy Assessment and
Initiation of Action (Section 300.305)
New section 311(c) of the CWA
describes federal removal authority for
discharges or substantial threats of
discharges. This section authorizes the
President to: (1) Conduct or arrange for
the removal of a discharge, or mitigate
or prevent the threat of a discharge; (2)
monitor cleanup by state or private
personnel; (3) direct federal, state, or
private actions to remove a discharge, or
mitigate or prevent the threat of a
discharge; and (4) remove and, if
necessary, destroy a vessel by whatever
means are available. Pursuant to E.O.
12777. this authority was delegated to
EPA for discharges occurring in the
inland zone and to the USCG for
discharges occurring in the coastal zone.
Furthermore, CWA section 311(c)(2)
now requires the President to direct
federal, state, and private removal
actions if the discharge or substantial
threat of a discharge may pose a
“substantial threat to the public health
or welfare of the United States.” This
requirement replaces and expands upon
former section 311(d), which authorized
the federal government, in the case of a
marine disaster, to coordinate and dire
all public and private efforts directed at
the removal or elimination of a threat,
and to summarily remove and, if
necessary. destroy the vessel.
Section 300.305(c) describes the
process by which the OSC decides the
appropriate extent of federal
involvement in response actions.
Currently, § 300.305(c) provides that the
OSC must make reasonable efforts to
have the responsible party take proper
response actions; if this is not successful
or appropriate, the OSC must decide
whether to initiate a federal response.
Today’s proposed revisions retain as an
option the possibility of allowing the
responsible party to take the lead where
the OSC determines this approach will
result in immediate and effective
response action. The reason for this
change is that under the amended CWA,
it is clear that the OSC rather than the
responsible party determines the
appropriate coi’rse of action for
response. In an effort to prevent cost
recovery problems, proposed
§ 300.305(c) would add the provision
that an OSC should “notify the
responsible party of the potential
liability for federal response costs.” At
the same time, the proposed rule
incorporates the changes described
above, including giving the OSC
authority to direct response actions.
The OSC’s authority with respect to
directing the actions of the responsible
party applies equally to “private
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54717
resources” hired by the responsible
party to assist in responding to a
discharge. When an OSC directs an oil
discharge response, the responsible
party’s contracted private resources will
take direction from the OSC on-scene.
OSC direction shall have the same
primacy for private resources as it does
the responsible party’s resources
involved in an oil discharge response.
The authority of the President to
“direct” removal of discharges allows
the OSC to fashion the federal role, as
appropriate, to ensure that removal
activity is adequate to protect public
health or welfare, without necessarily
requiring the federal government to use
its own resources exclusively to perform
the cleanup. “Directing” the removal
activity could involve a range of federal
roles, from taking over all response
action (and seeking cost recovery later).
to ordering action to imposing specific
procedures and requirements on the
response effort and directly supervising
their implementation. to coordinating
all federal, state, and private party
efforts involved in the response through
more general oversight and guidance.
The OSC may direct the response to
require the responsible party to use
proper cleanup techniques or resources,
to prevent further impact to the
environment caused by the response, or
to mitigate the threat to the public
health or welfare of the United States.
Today’s changes are intended to reserve
for the OSC broad and flexible authority
to direct the removal of all discharges.
including those that may pose a
substantial threat to the public health or
welfare of the United States. Section
300.322, discussed below, would
provide a complete discussion of the
criteria for identifying a substantial
threat to the public health or welfare of
the United States and the requirement
that the OSC direct the response in all
such cases. In all cases where the OSC
elects or is required to direct the
response, the OSC should declare
unequivocally to spill response
participants as soon as practicable that
the federal government will direct the
response.
It should be noted that federal
agencies from which the OSC requests
assistance may be reimbursed in
accordance with the provisions of 33
CFR subchapter M. Specific interagency
reimbursement agreements may be used
when necessary to ensure that the
federal resources will be available for a
timely response to a discharge of oil.
OPA section 10 11 addresses the issue
of consultation on the selection and
termination of removal actions. Of
relevance to N P § 300.305 is the
requirement that the President consult
with affected natural resource trustees
on the appropriate removal action to be
taken in connection with any discharge
of oil. This requirement would be
implemented in the N P by revising
§ 300.305(d) to include the requirement
to consult with the affected trustees. In
this regard, certain lands specially
designated by Congress may require a
greater degree of care in carrying out
response activities than in normal
circumstances. These special needs
should be addressed in area contingency
planning, specifically the Fish and
Wildlife and Sensitive Environment
Plan annexes to AcPs. Special
designations include units of the
National Park System, National Wildlife
Refuges, and Wilderness areas. In such
cases, consultation with affected
trustees should, at a minimum, include
discussion of barrier placement. debris
burning, and any use of biological and
chemical treatments.
Today’s proposal would revise
§ 300.305(d) to incorporate an expanded
notification requirement to better
effectuate the purposes of the OPA.
Thus, natural resource trustees are to be
notified in the case of any discharge of
oil, not only those where the OSC
believes natural resources are or may be
injured. EPA anticipates that details of
notification protocols will be included
in the Fish and Wildlife and Sensitive
Environments Response Plan annex to
the ACPs. It should also be noted that
the USCG will promulgate regulations
detailing the lead administrative
trustee’s authority to access federal
response resources on behalf of all
trustees.
Section 300.305(b)(4), which required
the OSC to ensure that authority exists
for undertaking additional response
actions, has been deleted in its entirety
‘ in today’s proposed rule. The OPA
amendments to CWA section 311 and
subsequent delegations grant the OSC
the authority to take whatever removal
action he or she deems necessary upon
notification or discovery of a discharge.
Phase J1l—.-Containment,
Countermeasures, Cleanup, and
Disposal (Section 300 310)
Today’s proposed changes to the N P
include new language in § 300.310. The
new text references the ACP prepared
under § 300.210(c), and directs that the
A P should be consulted for
appropriate procedures to obtain an
expedited decision regarding the use of
dispersants and other products listed on
the N P Product Schedule. These
procedures are one of the elements of
ACPs addressed in revised CWA section
311(j)(4).
Today’s proposal also modifies the
list of examples of defensive actions in
paragraph (a) to indicate that the use of
physical barriers should be considered
when necessary to protect not only
natural resources, but sensitive
ecosystems as well.
Finally, language has been proposed
to be added to § 300.3 10(c) to provide
guidance on how RRT and ACP
guidelines might address disposal plans
for oil spill response.
Phase I V—Document at ion and Cost
Recovery (Section 300.315)
This section has been revised in
today’s proposed ru)e to reflect the
establishment of the OSLTF and to
ensure consistency with the USCG’s
own regulations on documentation (33
CFR subchapter M). which are
undergoing revision and are expected to
be promulgated before promulgation of
today’s proposed revisions to the NCP.
Also, new paragraph (c) reflects
proposed changes in § 300.165 regarding
the preparation of OSC reports.
National Response Prior,t,es (Section
300.317)
In addition to the general procedures
and patterns for response, today’s
proposal includes a description of the
overall priorities for responding to
discharges of oil. New § 300.317
formalizes the following priorities that
the OSC should consider during an oil
discharge:
• The safety of human life, including
search and rescue efforts;
• The stabilization of the situation to
prevent further damage, including
securing the source of the spill andtor
removing the remaining oil from the
container (vessel, tank, or pipeline) to
prevent additional spillage; and
• Coordination of containment,
removal, and disposal efforts.
These priorities should facilitate the
OSC’s ranking the importance of
response actions. These priorities reflect
the fact that every event is multifaceted
and must be approached in a step-by-
step, logical manner The language of
proposed § 300.317 is broad and does
not preclude the consideration of other
priorities that may arise on a site-
specific basis.
The safety of human life must be the
top priority during every response
action. Training. expertise. forethought.
and experience all contribute to
developing a response approach that
ensures the safety of all. Search and
rescue efforts directed toward crew
members or response personnel fall
within this category. Responders must
ensure their own safety in order to avoid
greater threats to public health and
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Federal Register / Vol. 58. No. 203 I Friday, October 22, 1993 / Proposed Rules
welfare from a discharge. Next, the site
of the discharge must be stabilized. All
efforts expended during stabilization
should focus on saving a vessel, facility,
or other source that is discharging oil so
that it is not damaged further (for
example, by collision,fire, or
explosion). Any of these situations can
threaten response personnel and the
environment and compound the effects
of the incident. Securing the source of
the spill could involve a range of actions
as simple as closing a valve or as
complicated as removing a substantial
amount of oil from a leaking tank. The
goal is to reduce the need for follow-up
response action. Finally, the OSC
should use containment and removal
tactics in a coordinated manner to
ensure a timely, effective response that
minimizes damage to the environment.
All priorities in this section should be
considered concurrently, but safety and
stabilization are the highest priorities.
The OSC should not delay containment
and removal decisions and should take
appropriate actions to prevent
additional discharges because
environmental damage begins as soon as
a discharge occurs.
The pnorities outlined above are not
intended to restrict the discretion of the
OSC in directing or monitoring
responses to oil discharges. The OSC
must quickly assess all facets of an
incident and immediately commence
appropriate response actions. Each
incident will present some unique
problems for the OSC to address. These
problems should be viewed in
conjunction with the priorities outlined
above, and the OSC should act
accordingly. Therefore, although the
priorities in this section outline the
general model for a response. they do
not preclude the OSC from developing
individual tactics for responding to
individual incidents. The national
response priorities should help those
outside the response community to
recognize that response efforts to
address an oil discharge include critical
elements beyond containment and
removal activities.
Genera! Pattern of Response (Section
300.320)
Section 300.320(a) has been revised
and reorganized in today’s proposal for
greater clarity, to reflect changes made
to the CWA by the OPA, and to reflect
revisions being made elsewhere in this
proposal. For example, § 300.320(a)(1),
the procedures to be followed in the
event of an actual or potential major
discharge, was moved to
§ 300.320(a)(2)(i) to present an OSC’s
responsibilities in a more orderly
fashion.
Because of the changes required by
the CPA amendments to CWA section
311, existing subsection (b) no longer
adequately addresses all spill scenarios.
Therefore, today’s rule proposes to
incorporate former subsection (b) into
subsection (a) to present a clear and
concise general pattern of response that
an OSC should follow after receiving a
report of a discharge. The new spill
scenarios created by the CWA section
311. as amended, are a part of this
framework.
To make this section more clear, EPA
is proposing to add “type” to “size” as
spill classification characteristics. These
“types” (i.e., substantial threat to the
public health or welfare and worst case
discharge) are discussed extensively in
their own preamble sections (S 300.322
and 300.324, respectively).
Although size and type of discharge
involve some overlap, there are cases
where a particular spill will demand the
response action only one size or type
classification addresses. For this reason,
EPA believes that all of these spill types
and sizes are necessary to guarantee
effective spill response.
Currently, paragraph (b) describes
four response scenarios in the case of a
discharge. As written, it essentially
consolidates requirements discussed in
various other sections of the NCP,
particularly § 300.305, 300.310, and
300.315. At the same time, the CWA..
now includes two new response
scenarios (i.e., substantial threats to the
public health or welfare, and worst case
discharges) and provides the OSC with
a broader range of potential actions in
the case of a discharge. These new
response scenarios are addressed in
§ 300.322 and 300.324. and the USC’s
expanded authorities have been
included in § 300.305. As a result, EPA
concluded that, because current
paragraph (b) would require significant
restructuring to accurately reflect the
OPA’s amendments to CWA section 311
and because its essential provisions
were addressed in other sections (e.g.,
former § 300 320(b)(3)(iii) would now be
addressed in § 300.335), it could be
eliminated from the NCP without
affecting the document’s explanation of
response to oil discharges.
EPA is proposing to add a new
paragraph (b) to incorporate the
language of section 1011 of the OPA
regarding completion of removals. That
language indicates that a removal shall
be considered completed when so
determined by the President (here
delegated to the OSC) in consultation
with the Governor or Governors of the
affected states. Section 1011 goes on to
Indicate that this determination shall
not preclude additional removal actions
under applicable state law. As describec
in the Conference Report, ‘(o)rdinarily,
removal costs incurred by a Governor
after the President has determined that
cleanup is complete will not be
recoverable from the Fund unless the
President determines that the additional
costs were necessary to maintain the
level of cleanup previously approved by
the President, Reimbursement may be
sought. however, from the responsible
party, or from the responsible party’s
guarantor, for all removal costs covered
by this (provision)” (H.R. Rep. No. 101—
653, 101st Cong., 2d Sess. at p. 112),
Along with this provision, an additional
sentence has been added in today’s
proposal (i.e.. “(w)hen the OSC
considers removal complete, OSLTF
removal funding shall end”) to clarify
the availability of the OSLTF.
Further discussion of the
requirements of § 300.3 20 Is included
below in order to facilitate a
comprehensive discussion of new
§ 300.3 22, Response to substantial
threats to public health or welfare.
Three Release Scenarios: Substantial
Threats to Public Health or Welfare
(Section 300.322); Spills of National
Significance (Section 300.323); and
Worst Case Discharges (Section 300.324
As noted above, the CWA now
includes two new response scenarios,
i.e.. substantial threats to public health
or welfare and worst case discharges.
EPA is today proposing a third scenario
for inclusion in the NGP. spills of
national significance. This overview
explains the relationship among the
three; each one is described separately
in detail below.
As discussed below, discharges
posing substantial threats to public
health or welfare are to be identified by
looking at a number of factors, including
size and character of the discharge and
the potential effects on public health
and the environment. Thus, it is not
only how much oil is discharged, but
also its proximity to humans and
sensitive environmental systems.
Discharges classified as substantial
threats may be both large and small,
depending upon where they occur and
other factors. Most discharges are not
expected to be identified by OSCs as
substantial threats to public health or
welfare.
Spills of national significance are a
rare subset of those discharges defined
as posing substantial threats to public
health or welfare. Generally, these will
be only those spills where the potential
impacts are extremely severe. The key
difference that would set them apart
from other spills posing substantial
threats is the need for particularly
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54719
extensive coordination and
communication in order to respond
adequately in a timely manner. SONS
has been established as a distinct
scenario to address this need to support
the OSC in these areas.
Worst case discharges may be
substantial threats to public health or
welfare (and SONS). but may differ from
spills posing substantial threats to
public health or welfare in at least
several ways. For example, worst case
discharges are measured specifically in
relation to other possible spills at that
same facility or vessel, rather than ali
spills generally. In other words, each
facility or vessel has its own worst case
scenario, which is not dependent on
spills occurring at other facilities or
vessels. In addition, worst case
discharges are not characterized in
terms of the threat they pose to public
health or welfare, but rather by size in
relation to a vessels or facility’s
capacity. Finally, the OPA suggests that
a vessel or facility has only one event
that would be its worst case, whereas
there may be many different specific
circumstances and factual settings that
could pose a significant threat to public
health or welfare.
Response to Substantial Threats to
Public Health or Welfare (Section
300.322)
CWA section 311(d)(2)U), added by
section 4201(b) of the OPA, requires the
NCP to include “criteria and procedures
to ensure immediate and effective
federal identification of, and response
to, a discharge, or the threat of a
discharge, that results in a substantial
threat to the public health or welfare of
the United States.” Today’s proposal
would add a new § 300.322 to address
identification of and response to oil -
discharges posing a substantial threat to
the public health or welfare. Discussion
of response to substantial threats to
public health or welfare from hazardous
substance releases is included later in
this preamble under subpart E.
The proposed approach combines
proven procedures with additional
requirements that together will ensure
that Congressional objectives in adding
this provision are fully addressed. This
new section also reflects CWA section
311(c)(2)(B), which authorizes the
President to act “without regard to any
other provision of law governing
contracting procedures or employment
of personnel by the Federal
government” in removing or arranging
for the removal of the discharge, or
mitigating or preventing the substantial
threat of the discharge, and removing
and, if necessary, destroying a vessel
discharging, or threatening to discharge,
by whatever means are available.
Identification of Discharges That May
Pose a Substantial Threat to the Public
Health or Welfare
CWA section 311(c)(2 )(A), as
amended by the OPA. indicates that a
“substantial threat to the public health
or welfare” is defined by the size or
character of the discharge and that
“public health or welfare” includes, but
is not limited to, “fish, shellfish,
wildlife, other natural resources, and
the public and private beaches and
shorelines of the United States.” The
Conference Report on the OPA provides
some insight into the types of incidents
that could be characterized as a
substantial threat to public health or
welfare by citing three examples: (1)
The Exxon Valdez spill in Alaska’s
Prince William Sound; (2) the American
Trader incident in California’s coastal
waters; and (3) the spill and substantial
threat of a larger spill from the Mega
Borg in the Gulf of Mexico (H.R. Rep.
No. 101—653, 101st Congress, 2d Sess.,
atp. 146). These three incidents
exhibited the following characteristics:
• The Exxon Valdez spilled over 10
million gallons of oil, resulting in large
fish and bird kills and extensive oil
deposits on beaches and the shoreline.
• The American Trader discharged
397,000 gallons of oil, threatening
California’s largest wildlife sanctuary.
• The Mega Borg released 50,000
gallons of oil, with a threatened spill of
38 million gallons. This incident posed
a threat to bays and estuaries containing
birds and shellfish.
Although these examples involve
coastal spills and threats of spills.
substantial threats to public health or
welfare could also result from spills or
threats of spills to inland waters. For
example, at an Ashland Oil Company
facility in Floreffe, Pennsylvania,
750,000 gallons of diesel oil were
discharged into the Monongahela River.
This incident disrupted the water
supply of approximately 2.7 million
residents of communities along the
Monongahela and Ohio Rivers and
caused the death of an estimated 10,000
fish and 2,000 birds, as well as other
serious ecological damage. The spill
also resulted in schools and businesses
being closed in many of these
communities. These effects are
comparable to the effects associated
with the examples cited in the
Conference Report.
In addition, the Senate noted that
some smaller spills, such as those that
occurred in June 1989 off the Rhode
Island coast and in the Delaware River,
can pose substantial threats to public
health and welfare (S. Rep. No. 94, 101st
Cong., 1st Sess., at p. 18). The Greek
tanker World Prodigy grounded on
Brenton Reef, spilling 6,873 barrels of
No. 2 fuel oil near Newport, Rhode
Island. The Uruguayan tanker
Presidente Rivera, carrying 452,000
barrels of fuel oil, grounded and leaked
7,310 barrels into the Delaware River.
New § 300.322(a) focuses on the broad
factor categories cited in the legislation
for identifying “substantial threats,” i.e..
size of the discharge, character oF the
discharge, and public health or welfare
(including fish, wildlife, other natural
resources, and beaches and shorelines),
However, the language leaves open the
possibility that other factors may be
considered as well EPA’s intent is to
provide a reliable framework for
determining which spills may present a
“substantial threat,” but to leave the
OSC with the discretion to decide, on a
case-by-case basis, whether a specific
discharge or threat of discharge may
pose a substantial threat to the public
health or welfare.
The factor categories mentioned above
encompass many specific elements that
may be considered if relevant, based on
the circumstances of the discharge. For
instance, in evaluating the size of the
discharge, the OSC should consider
factors such as the quantity of oil
discharged, the quantity threatened to
be discharged, and the rate of discharge.
In considering the character of the
discharge, the OSC should, as
appropriate, evaluate the characteristics
(e g., toxicity) of the oil discharged. the
potential for explosion or fire, and the
rate at which the oil is likely to spread
and dissipate considering weather and
water conditions. In assessing the
potential effect on public health or
welfare, the OSC should, as appropriate,
take into account the threat of serious,
irreparable, or immediate harm or
damage to human populations, drinking
water, and food supplies (including
subsistence resources), and proximity to
environmentally sensitive areas,
including fish and wildlife and their
habitats (including breeding areas,
feeding grounds. nurseries, wetlands,
significant concentrations of birds,
mammals, threatened or endangered
species, and other living resources).
The proposed revision authorizes the
OSC to consider other factors, as
appropriate. One such factor that may
be considered by the OSC is the
capacity of locally available response
resources, If such response capacity is
limited, the time necessary to bring
adequate response equipment and
personnel to the scene of the discharge
may be increased substantially and the
discharge may become more severe and
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Federal Register / Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
affect a larger area. For example, in the
Exxon Valdez incident, response
equipment and personnel were at least
36 hours from the discharge. By the time
these resources arrived at the scene, the
discharge had become much more
extensive and difficult to control.
Another factor that may be appropriate
is the response record of the discharger.
For example, if the OSC is aware of
significant spilis that have not been
addressed adequately by the discharger
in the past. the OSC may conclude that
a substantial threat would be more
likely to result.
Upon considering the relevant
information concerning the
characteristics of the discharge, the OSC
shall, under today’s proposal. conduct
an evaluation of the threat posed based
on (1) the USC’s experience assessing
other discharges, and (2) consultation.
as appropriate, with senior lead agency
officials and readily available
authorities on issues outside the OSC’s
technical expertise. The senior official
would likely be the District Commander
in the case of USCC-lead responses. The
appropriate senior official in EPA-lead
response would be the Regional
Administrator. An example of a
situation where such senior-level
consultation may be appropriate would
be if the OSC believes that there is an
unusually high level of public interest
in the incident, and policy guidance and
other insight from senior management
may be useful. Examples of technical
consultations would include situations
where other lead agency OSCs have
specialized knowledge of, or experience
responding to the type of oil discharged
from the same or similar facilities.
Based on the examples provided in
the legislative history and experience
over the years, EPA anticipates that the
malority of discharges, or threats of
discharges, will not be identified by
OSCs as substantial threats to the public
health or welfare within the meaning of
CWA sections 311(c)(2) and 311(d)(2)(I);
rather, only those discharges or threats
of discharges with the most serious
potential consequences will qualify.
Response to Substantial Threats to
Public Health or Welfare
Currently, § 300.320(a) of the NO’
outlines a general pattern of response
that an OSC should follow after
receiving a report of a discharge. The
process described leaves considerable
discretion with the USC in carrying out
response efforts. First, if the discharge is
an actual or potential major discharge.
the OSC should immediately notify the
RRT, including the trustees of affected
natural resources in accordance with the
applicable ACP. the affected state, if
appropriate, and the NRC. The OSC
should then investigate the report to
determine the threat posed to public
health or welfare, the type and quantity
of the polluting material, and the source
of the discharge. The USC should
officially classify the size of the
discharge and determine the course of
action to be followed. The USC also
should determine whether the
discharger is properly carrying out
removal (i.e.. the cleanup is sufficient to
minimize or mitigate threats to public
health and welfare and the
environment, and removal actions are
consistent with applicable regulations.
including the NCP).
As part of this general response
process. the NCP uses a series of
discharge classifications to delineate
appropriate activities in each situation.
This existing classification system
currently includes consideration of
substantial threats to public health or
welfare. Section 300.5 of the NCP
describes three size categories of
discharges: (1) A minor discharge is a
discharge to inland waters of less than
1,000 gallons or a discharge to coastal
waters of less than 10,000 gallons; (2) a
medium discharge is a discharge of
1,000 to 10,000 gallons to inland waters
or 10,000 to 100,000 gallons to coastal
waters; and (3) a major discharge is a
discharge of more than 10,000 gallons to
inland waters or more than 100,000
gallons to coastal waters. This section
provides that “lalny oil discharge that
poses a substantial threat to public
health or welfare or the environment or
results in significant public concern
shall be classified as a major discharge.
regardless of (these size
classifications).”
EPA has carefully re-examined these
response procedures and concluded that
for discharges that may pose substantial
threats to the public health or welfare.
additional measures would further
enhance the ability of the federal
government to ensure immediate and
effective response. Section 300.322 has
been added in today’s proposal to
describe response procedures for these
situations. Specifically, proposed
§ 300.322(c) would require that if the
discharge is identified as posing a
substantial threat to the public health or
welfare, the OSC must specifically
assess opportunities for the use of
various special teams and other
assistance described in § 300.145. These
special teams are capable of providing
public affairs assistance.
communications support, advice, and
assistance for oil removal; have
knowledge of shipboard damage control;
have access to specialized containment
and removal equipment; and have rapid
transportation available. Special teams
also include the Environmental
Response Team (ERT), established by
EPA in accordance with its disaster and
emergency responsibilities. The ERT has
expertise in treatment technology,
biology, chemistry, hydrology, geology,
and engineering. Other available
assistance includes the NSFCC.
established under section 311(j)(2) of
the CWA (and described more fully in
§ 300.145), and USCG DRGs established
under section 311(j)(3) (also described
in § 300.145), both of which can provide
technical assistance, equipment, and
other resources that may be needed by
an OSC. NOAA can also provide SSCs.
who have specialized expertise on
coastal environmental considerations
for spill response and planning,
including spill trajectory modeling,
environmental consequences of removal
countermeasures, chemical analyses.
information management, and response
strategies that minimize environmental
impact
Proposed § 300.322(c) also requires
the OSC to request that the RRT be
activated immediately. This differs from
the current requirement for medium or
major discharges that the USC
recommend activation of the RRT, if
appropriate. The RRT has two major
components: (1) A standing team that
consists of representatives of each
federal agency that is a member of the
NRT, state government representatives.
and local government representatives;
and (2) an incident-specific team that is
formed from the standing team when
the RRT is activated for a response. On
incident-specific teams, participation by
RRT member agencies is directed
toward the technical nature of the
incident and its geographic location (see
§ 300.115(b)).
Beyond these two obligations.
proposed § 300.322(c) also authorizes
the OSC to take whatever additional
response actions are deemed
appropriate, including but not limited
to, implementation of the A P as
required by section 311(j)(4)oftheCWA
or the relevant tank vessel or facility
response plan required by section
311(j)(5) of the CWA.
Proposed § 300.322(c) also provides
that in the case of a substantial threat to
the public health or welfare, the lead
OSC may request the agency or RRT to
dispatch appropriate personnel to the
scene of the discharge to assist the USC
with technical support and public
information and interagency
coordination efforts. It is anticipated
that the USC will identify in ad ’ance
those activities that can be performed by
others and then assign such activities to
appropriate personnel.
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54721
The function of these personnel is to
relieve the OSC of duties indirectly
related to actual removal actions so that
the OSC can focus on directing response
operations. This added support is
particularly important when a
substantial threat to the public health or
welfare exists, because such a situation
is likely to be of increased interest and
concern to the media and the public. In
these situations, the significant effort
required to keep all parties adequately
informed of the circumstances of the
discharge and the response measures
that are being taken should not fall on
the OSC. During the first hours and days
following the grounding of the Exxon
Valdez, competing demands of this
nature strained the OSC’s ability to
control the response effort. Typically in
response operations, there is a relatively
brief period of time in which action
must be taken to minimize potential
damage within any given specific set of
conditions If action is not taken
decisively during this “window of
opportunity,” the ability to control the
response most effectively may be lost.
As an example. when the USCG is the
lead agency for the response and lead
agency senior level involvement has
been deemed appropriate, the added
support for public information and
interagency coordination efforts may be
provided by the District Commander.
The presence and participation of the
District Commander reflects the Coast
Guard’s military chain of command
with respect to its response structure;
however, the OSC will remain in charge
of operational aspects of the response.
The function of the senior level officials
will be to serve as a focal point for
satisfying the demands for information
on the status of the response from the
press, local, state, and national elected
officials, arid the public Thus, the
additional staffing can help insulate the
OSC from competing time demands that
might otherwise divert the OSC’s
attention from d;recting response
operations.
Finally, proposed § 300.322(c) also
requires the lead agency to send a
contracting officer to the scene of the
discharge at the request of the OSC.
Although EPA recognizes that CWA
section 311(c)(2)(B), as amended by
OPA section 4201(a), renders invalid all
customary contractual procurement
restrictions, this requirement is
included to facilitate expedited
contracting agreements that may be
required due to the nature of the
incident.
Spills of National Significance (Section
300.323)
EPA is today proposing a new section
intended to enhance the federal
gpvernment’s ability to manage the
response to SONS. A SONS is defined
in § 300.5 of today’s proposed rule as a
spill that, due to its extreme severity.
size, location, or actual or potential
impact on the public health, welfare, or
the environment, requires extraordinary
coordination of federal, state, local, and
responsible party resources to contain
and clean up. EPA expects these spills
tobe infrequent. Over the past 20 years,
only two oil spills might have been
designated as SONS: The 1979 Ixtoc
well blowout in the Gulf of Mexico and
the 1989 Exxon Valdez spill.
In situations such as these.
coordinating resources at the national
level and managing relations among
various government officials and the
public requires significant time and
effort. This may divert attention away
from the actions necessary to respond to
the spill itself, which, in the case ole
SONS, would be expected to be
particularly complicated. Furthermore,
while OSCs are thoroughly familiar with
their regions or districts, they may be
less knowledgeable about areas outside
their regions or districts. The OSC in
charge of responding to a spill that
affects several regions, districts, or
countries may benefit from
communication assistance to identify
and coordinate resources, evaluate site
specific conditions, and assess threats to
the environment.
For these reasons, EPA is today
proposing a “strategic management”
framework designed to assist the OSC in
dealing with resource administration,
government coordination, public
relations, and communication. The
Administrator of EPA and the
Commandant of the USCG may declare
a discharge to be a SONS. In the case of
a SONS in the inland zone of the United
States, the Administrator may designate
a senior Agency official to assist the
OSC in: (1) Communicating with
affected parties, the public, and the
media, and (2) coordinating federal.
state, local, and international resources
at the national level. This strategic
coordination would involve, as
appropriate, the NRT, RRT(s), the
Governor(s) of affected state(s), the
mayor(s) or other chief executive(s) of
local government(s), and the responsible
party. The “assistance” in support of the
OSC is intended to relieve the OSC of
certain communication/coordination
burdens associated with directing
response efforts. It does not mean the
designated senior Agency official is
subordinate to the OSC. This official
will simply fill the role of the OSC for
these specific, limited activities,
Fore SONS in the coastal zone, the
Commandant may activate a National
incident Task Porce (NITF).
Membership on the NITF would be
determined by the USCG, who will
include a National lncident Commander
(NIC). a flag officer (e.g., admiral or
above) appointed by the Commandant; a
chief of staff, filled by the commanding
officer of the NSFCC; an area operations
coordinator, the predesignated OSC for
the area affected by the SONS; and
federal, state, local, and responsible
party representatives.
The USCG will develop a protocol to
establish lines of authority for SONS
response activities and facilitate
coordination between the USCG OSC
and the NITF. This protocol will
delineate lines of communication and
identify critical functions and key
personnel in the case of a SONS, and
provide standard operating procedures
for administrative management.
Response to Worst Case Discharges
(Section 300.324)
CWA section 311(d)(2)(fl, added by
OPA section 4201(b), requires the NCP
to include “procedures and standards
for removing a worst case discharge of
oil, and for mitigating or preventing a
substantial threat of such a discharge.”
New § 300.324 would be added by
today’s proposal to address this new
requirement.
Section 4201(b) adds a new definition
for “worst case discharge” to CWA
section 311(a)(24) as follows. “(A) in the
case of a vessel, a discharge in adverse
weather conditions of its entire cargo;
and (B) in the case of an offshore facility
or onshore facility, the largest
foreseeable discharge in adverse
weather conditions.”
According to the OPA Conference
Report (H.R. Rept. No. 653, 101st Cong.,
2nd Sess. at p. 147 (1990)), Congress
phrased the definition of a worst case
discharge from a facility more generally
than the definition of a worst case
discharge from a vessel because it may
be more difficult to describe the entire
contents of some kinds of facilities, such
as pipelines. The Report indicates that
the term “largest foreseeable discharge”
from a facility is intended to
characterize “a case that is worse than
either the largest spill to date or the
maximum probable spill for that facility
type.” An example of a facility worst
case would be the loss of the entire
contents of a facility’s single oil storage
tank into navigable waters.
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A number of other OPA provisions
also include planning and response
requirements for worst case discharges:
• OPA section 4202(a) adds new
CWA section 311(j)(5) authorizing the
President to issue regulations that
require owners or operators of tank
vessels and certain facilities to prepare
and submit to the President a plan for
responding, to the maximum extent
practicable. to a worst case discharge
and to a substantial threat of such a
discharge.
• OPA section 4202(a) adds new
section 311(j)(4) to the CWA, which
provides that each Area Committee
must prepare an ACP for its area that,
when implemented in conjunction with
the N P, will be adequate to remove a
worst case discharge and to mitigate or
prevent a substantial threat of such a
discharge.
• New CWA section 311(j)(2)(C)
requires that the Natiünal Response Unit
(i.e., the NSFCC) ‘shall coordinate use
of private and public personnel and
equipment to remove a worst case
discharge. and to mitigate or prevent a
substantial threat of such a discharge
Currently, § 300.320 in subpart D
descnbes a general process for response
to discharges of oil. Today’s proposed
rule would expand this process with
additional procedures to be followed in
the case of substantial threats to the
public health or welfare ( 300.322).
EPA continues to believe that the
existing process, with today’s proposed
changes regarding substantial threats to
the public health or welfare, would in
large part adequately address all
discharge situations Use of this revised
process. in con junction with
implementation of the other CWA
“worst case discharge” requirements
listed directly above, should provide, in
virtually all cases, the appropriate
framework for removing worst case
discharges, and for.mitigating or
preventing substantial threats of such
discharges. There may be a few cases,
however, (e.g., situations of
unforseeably large discharges), where
the implementation of these various
requirements would prove to be
inadequate. In those cases, the USC
would be expected to take whatever
additional actions are necessary to
ensure effective and immediate removal
of the discharge by whatever means are
available.
Specifically, today’s proposal would
modify the response structure by adding
a new § 300.324 directing the USC (in
the case of a worst case discharge) to: (1)
Notify the NSFCC; (2) require
implementation of the tank vessel and
facility-specific response plans required
under the OPA that are intended to
specifically address response to worst
case discharges and substantial threats
of such discharges; (3) implement the
AO designed to work in conjunction
with the NGP to remove worst case
discharges and substantial threats of
such discharges; and (4) take whatever
additional actions are necessary to
respond to the situation at hand. These
proposed additions to the current
response process would provide an
appropriate response framework for
removing worst case discharges. In the
event that a worst case discharge also
results in a substantial threat to the
public health or welfare or the
environment, the proposed
requirements of § 300.322, as well as the
requirements of § 300.324, would apply.
Wildlife Conservation (Section 300.330)
Today’s proposal would delete this
section and replace it with a new
§ 300.210(c)(4) regarding the Fish and
Wildlife and Sensitive Environments
Plan. CWA section 311(d) requires the
N P to include “a fish and wildlife
response plan, developed in
consultation with the FWS, the National
Oceanic and Atmospheric
Administration (NOAA), and other
interested parties (including state fish
and wildlife conservation affiliates) for
the immediate and effective protection,
rescue, and rehabilitation of, and the
minimization of risk of damage to fish
and wildlife resources and their habitat
that are harmed or that may be
jeopardized by a discharge.” The Fish
and Wildlife and Sensitive
Environments Plan is more fully
described in the preamble to § 300.210.
Funding (Section 300.335)
Section 9001 of the OPA provides that
the revolving fund established under
CWA section 3 11(k) and the funds
authorized by the Deepwater Port Act,
the Outer Continental Shelf Lands Act,
and the Trans-Alaska Pipeline
Authorization Act are transferred to the
OSLTF established pursuant to section
9509 of the Internal Revenue Code of
1986. The proposed revisions to the
language of § 300.335(c) reflect the OPA
amendments.
Under section 1012 of the OPA, the
OSLTF is available to pay for certain
removal costs, other specified costs
determined by the President to be
consistent with the NCP, and costs
associated with implementation,
administration, and enforcement of the
OPA, including the costs of monitoring
removal actions. Section 1001 defines
“removal costs” for purposes of the
OPA to encompass costs related only to
a discharge or threat of a discharge of
oil. These removal costs include: Costs
of containment and removal of oil from
water and shorelines and monitoring
state and private action to remove a
discharge; and costs of taking other
related actions necessary to minimize or
mitigate a threat to the public health
and welfare or the environment,
including, but not limited to adverse
impact to fish, shellfish, wildlife, public
and private property, shorelines and
beaches.
The OPA definition of the term “oil”
is similar to the broad definition in
CWA section 311, except that any
petroleum specifically listed or
designated as a hazardous substance
under CERCLA is excluded. As a
consequence, it appears that there is no
overlap in the funding and liability
provisions of CERCLA and title I of the
OPA. Certain petroleum refining
industry wastes, for example, are
specifically listed CERCLA hazardous
substances; response to discharges of
such wastes normally would be paid for
under CERCLA, not the OPA, even if the
wastes might also come within the CWA
definition of “oil.”
Proposed changes to § 300.335(a) are
intended to clarify that the decision to
access the OSLTF and conduct federal
removal actions is solely the OSC’s and
may be taken at any time that, in his or
her judgment. it is required. Also,
separate, comprehensive procedures for
accessing the OSLTF (33 CFR
subchapter M) are referenced.
Subchapter M is itself undergoing
revision to reflect new provisions
contained in the OPA and those changes
are expected to be in place before
today’s revisions to the NCP are issued
as a final rule.
Proposed changes to § 300.335(b)
would remove the requirement that
federal agencies be the sole funding
source for their removal activities.
Under the OPA, certain costs may be
eligible for reimbursement from the
OSLTF.
EPA is proposing to delete the
original text of § 300.335(c) in its.
entirety to reflect the establishment of
the OSLTF, which replaces several
previously existing funding sources. In
addition, language regarding cost
documentation procedures has been
deleted from this section, and now is
addressed in proposed § 300.3 15.
Section 300.335(c) now indicates that
procedures for funding natural resource
damage assessments may be found in 33
CFR subchapter M.
Section 300.335(e) would be revised
by today’s proposed rule to clarify that
funding of a response to a discharge
from facilities and vessels owned by the
federal government is, like funding for
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54723
response at facilities and vessels
operated or supervised by the federal
government, the responsibility of the
owning agency. EPA deleted much of
the language previously included in
§ 300.335(f) because those funding
issues are now addressed in 33 CFR
subchapter M.
Subpart E”—Hazardous Substance
Response
This subpart contains a detailed plan
covering authorized activities involved
in abating and remedying releases or
threats of releases of hazardous
substances or pollutants or
contaminants. Certain provisions of the
OPA address releases of hazardous
substances. These provisions include
amendments to section 311 of the CWA.
which establishes federal planning and
response authority for both oil
discharges and CWA hazardous
substance releases)
The N P establishes a framework for
response to releases of hazardous
substances. The term “hazardous
substance” is defined in NO’ § 300.5.
and generally includes substances
designated as hazardous or toxic under
section 311(b)(2)(A) of the CWA, section
102 of CERCLA, section 3001 of the
Resource Conservation and Recovery
Act, section 307(a) of the CWA. section
112 of the Clean Air Act. or section 7
of the Toxic Substances Control Act.
Today’s proposal does not alter the
definition of “hazardous substance.”
The OPA expands federal response
authority within the framework
established by the CWA for discharges
of oil and releases of CWA hazardous
substances; CWA section 311(c)
authonty does not extend to substances
designated only under the other statutes
listed above The CWA authorizes the
designation of hazardous substances in
sections 307(a) and 311(b)(2)(A). Since
the CWA became law in 1972, some 400
substances have been listed as
hazardous under its provisions (see 40
CFR part 116).
CWA section 311(c) authorizes the
President to direct the response to a
discharge of oil or release of a CWA
hazardous substance “(i) into or on the
‘The OPA actually refers to “discharges” of
hazardous substances, rather than “release,” The
has for some time, however, defined
“discharge” to refer only to oil and “release” to
refer to hazardous substances, pollulante, and
contaminants This was done to simplify the
regulatory language and eliminate the need to
continually modify the term “discharge” with “of
oil” or “of CWA hazardous substances “Thus, the
NCP will use the term “release” when discussing
OPA requirements regarding CWA hazardous
substances, but will modify it as appropnate to
clarify that those requirements do not app’y to the
complete universe of CERCI .A hazardous
substances
navigable waters; (ii) on the adjoining
shorelines to the navigable waters: (iii)
into or on the waters of the exclusive
economic zone; or (iv) that may affect
natural resources belonging to,
appertaining to, or under the exclusive
management authority of the United
States.” (A release that meets the above
criteria will hereafter in this preamble
be referred to as a release “to navigable
waters.”) Under CWA section 311(c)(2),
if an actual or threatened discharge or
release poses a substantial threat to the
public health or welfare of the United
States, the President is required to direct
the response.
Genera! (Section 300.400)
To acknowledge the statutory
authority for the changes to CWA
section 311 regarding hazardous
substances discussed imniediaely
above, EPA has added in today’s
proposal a reference to CWA section
311(c) to clarify that it is a source of
authority for some of the requirements
set forth in this subpart.
Discovery or Notification (Section
300.405)
EPA is proposing to add language to
this section that clarifies how a release
may be discovered and how certain
releases may be reported. New
§ 300.405(81(7) would recognize that
certain hazardous substance releases
may be discovered through reports
submitted in accordance with section
311(b)(5) of the CWA. Section
300.4o5(fl(3) would state that
notification of the Radiological
Response Coordinator in the case of a
release involving radioactive material
may be accomplished directly by the
OSC or through the NRC.
Removal Site Evaluation (Section
300 410)
In the event of an actual or threatened
release of a hazardous substance to
navigable waters, § 300 410(e) (1) and
(2) of today’s proposed rule would
require the OSC to determine (1) if the
hazardous substance is a CWA
hazardous substance; and (2) if so,
whether the actual or threatened release
may pose a substantial threat to the
public health or welfare of the United
States. If the first condition is met, the
OSC may choose to direct all federal,
state, and private actions to remove the
release. If both conditions are met, the
OSC is required to direct response
efforts. The OSC must make these
determinations for every release of a
hazardous substance to navigable waters
that is being evaluated for a possible
removal action.
The framework provided in today’s
proposal for identifying and responding
to actual or threatened releases of CWA
hazardous substances to navigable
waters that may pose a substantial threat
to the public health or welfare of the
United States is consistent with the
proposal included in subpart D, where
the same process is described with
respeci to oil discharges.
Identifying a Release Posing a
Substantial Threat to the Public Health
or Welfare of the United States
In determining whether the actual or
potential release may pose a substantial
threat to the public health or welfare of
the United States, the OSC should focus
on the broad factor categories cited in
the legislation for identifying
“substantial threats.” These are the size
of the release, character of the release,
and public health or welfare of the
United States (including fish, wildlife,
other natural resources, and beaches
and shorelines). However, the new CWA
authonty leaves open the possibility
that other factors may be considered, as
well. EPA’s intent is to provide a
reliable framework for determining
which releases may present a
“substantial threat,” but to give the OSC
discretion to decide whether a specific
release or threat of release results in a
substantial threat to the public health or
welfare of the United States. A more
expansive discussion of I denti lying
substantial threats is given in the
preamble discussion to § 300 322 in
subpart D. That discussion is applicable
in the case of a release of a CWA
hazardous substance to navigable waters
as well, because EPA believes the
response procedures discussed there
generally are effective for hazardous
substance releases.
This conceptual framework would be
included in proposed § 300.410(e),
which describes procedures for
determining whether an actual or
threatened CWA hazardous substance
release to navigable waters may pose a
substantial threat to the public health or
welfare of the United States The
remaining paragraphs in this section
have been renumbered accordingly.
(Changes made to new § 300.410(h) are
the result of other changes made by the
OPA in the area of natural resources
Discussion of natural resource.related
changes is in the preamble discussion
for subpart C
Removal Action (Section 300 415)
Currently NC !’ § 300 415 describes a
general pattern of response that an OSC
must follow in conducting a hazardous
substance removal action. However, the
process outlined leaves considerable
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discretion with the OSC in carrying out
response efforts. First, the lead agency
reviews the removal site evaluation. If a
responsible party is known, an effort is
made to determine whether it can and
will perform the necessary removal
action promptly and properly. If the
responsible party does not perform the
removal, the lead agency may take any
appropriate removal action to abate.
prevent, minimize, stabilize, mitigate, or
eliminate the release or the threat of
release.
EPA has re-examined these response
procedures and concluded that, for
actual or threatened releases of CWA
hazardous substances to navigable
waters that may pose a substantial threat
to the public health or welfare of the
United States, additional measures
would Further enhance the ability of the
federal government to ensure immediate
and effective response. A new paragraph
(c) is proposed to be added to § 300.4 15
(and the remaining paragraphs
renumbered accordingly) to describe
additional response procedures for
actual or threatened “substantial threat”
releases. Specifically, proposed
§300.415(c) requires that if the actual or
threatened release is identified as
posing a substantial threat to the public
health or welfare of the United States,
the OSC shall assess opportunities for
the use of various special teams and
other assistance described in § 300. 145,
as appropriate. These special teams are
capable of providing public affairs
assistance, communications support.
advice, and assistance for oil and
hazardous substance removal; have
knowledge of shipboard damage control:
have access to specialized containment
and removal equipment; and have rapid
transportation available Special teams
also include the ERT, est8blished by
EPA in accordance with its disaster and
emergency responsibilities. The ERT hal
expertise in treatment technology,
biology, chemistry, hydrology geology,
and engineering. Other available
assistance includes the NSFCC and
USCG DRGs (see § 300.14 5), both of
which can provide technical assistance.
equipment. and other resources that
may be needed by an OSC. NOAA can
also provide SSCs, which provide
specialized expertise on coastal
environmental considerations for spill
response and planning. including spill
trajectory modeling, environmental
consequences of removal
countermeasures, chemical analyses,
information management, and response
strategies that minimize environmental
impact.
li addition, proposed § 300.415(c)
would require the OSC to request that
the RRTbe activated immediately and
authorizes whatever additional response
actions are deemed appropriate.
Proposed § 300.415(c) also provides
that, in the case of a substantial threat
to the public health or welfare, the OSC
may request the lead agency or RRT to
dispatch appropriate personnel to the
scene of the release to assist the OSC
with technical support and public
information and interagency
coordination efforts. It is anticipated
that the OSC will identify in advance
those activities that can be performed by
others, and then assign such activities to
appropriate personnel.
This added support is particularly
important when a substantial threat to
the public health or welfare of the
United States exists because such a
situation is likely to be of increased
interest and concern to the media and
the public. In these situations, the
significant effort required to keep all
parties adequately informed of the
circumstances of the release and the
response measures taken should not fall
on the OSC. These other officials will be
able to serve as a focal point For
satisfying the demands for information
on the status of the response from the
press. local, state, and national elected
officials, and the public. Thus, the
additional staffing can help insulate the
OSC from competing time demands that
might otherwise divert the OSC’s
attention from directing response
operations.
Proposed § 300.415(c) would require
the lead agency to send a contracting
officer to the scene of the release at the
request of the OSC. Although EPA
recognizes that CWA section
311(c)(2)(B), as amended by OPA
section 4201(a), eliminates the
obligation to comply with all customary
cŕntractual procurement restrictions,
this requirement is included to facilitate
expedited contracting agreements that
may be required due to the nature of the
incident.
EPA is proposing to add the word
“CERCLA” to all relevant removal
action references in order to distinguish
these actions from CWA removal
actions.
Finally, worst case discharges and
SONS are not discussed in subpart E, as
they are in subpart D. The OPA created
worst case discharges only in relation to
oil discharges, not releases of hazardous
substances or pollutants or
contaminants. Similarly, the new spill
classification of SONS, as proposed in
§ 300.323 of today’s rule, would apply
only to oil discharges.
Subpart G—Trustees for Natural
Resources
Section 1006 and other sections of the
OPA address natural resource damages
resulting from oil spills and the role of
trustees. These new statutory provisions
necessitate certain changes to subpart G
and other subparts of the N P. and also
require the promulgation of new damage
assessment regulations. The latter
regulations were promulgated by
NOAA, in consultation with EPA. FWS,
and the heads of other affected agencies,
in a separate advance notice of proposed
rulemaking (see 55 FR 53478, December
28, 1990).
Section 1006 of the OPA provides that
liability for natural resource damages
shall be to the United States
Government. a state government, an
Indian tribe, or to a foreign government.
Natural resource trustees can claim
monetary damages from responsible
parties for intury to. destruction of, loss
of, or loss of use (including subsistence
use and revenues) of such resources.
Federal officials authorized by the
President and the authorized
representatives of Indian tribes, state,
and foreign governments act as public
trustees to recover damages for injury to
natural resources under their
trusteeship.
The OSLTF can be used for initiating
the assessment of natural resource
damages and for developing and
implementing plans for restoration by
federal, state, and Indian tribal trustees.
OPA section 6002(b) provides for
immediate funding to initiate the
assessment of natural resource damages
without appropriation. All requests to
the NPFC for payment for this activity
must be made through the lead federal
trustee designated at the time of the
incident. Procedures for funding the
initiation of natural resource damage
assessment are covered in 33 CFR
subchapter M.
Foreign trustees are newly designated
under OPA section 1006(b). The trustees
assess natural resource damages and
develop and implement plans for
restoring, rehabilitating, replacing, or
acquiring equivalent natural resources
under their trusteeship. Restoration
plans developed by OPA trustees are
subject to public notice, comment, and
opportunity for hearing.
Designation of Federal Trustees (Section
300.600)
Currently, subpart C lists section
311(f115) of the CWA as one of the
relevant authorities for trustee activities.
Section 2002(a) of the OPA excludes the
applicability of section 311(f) to oil
spills governed by the liability
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54725
pidi’isions in section 1002. At the seine
time, OPA section 1006 provides new
authority for trustee designation and
functions under the OPA. There lore,
today’s revision proposes to add
references to OPA section 1006. The
current CWA provision in section 3 11(1)
continues to provide authority in the
case of discharges for which there is
CWA liability, rather than OPA liability.
The language concerning natural
resources in § 300.600 (a) and (hi is
proposed to be changed to track more
closely the definition of natural
resources contained in section 1001 of
the CPA. ln addition, the term
“protected” is proposed to be replaced
by “controlled” throughout this section
to more accurately reflect the trustees’
responsibilities for natural resources.
Section 300.600(b) describes the
situations under which natural resource
trustees are authorized to act pursuant
to section 107(fl of GERCLA, section
3 11 (1 1( 5) of the CWA. and section 1006
of the OPA. Each trustee has
responsibilities For protection of
resOurces mitigation and assessment of
damage; end restoration, rehabilitation,
replacement, or acquisition of resources
equivalent to those affected. In these
roles, trustees are responsible for
providing advice to the USC on
environmental issues, including
appropriate removal countermeasures,
that should be considered in the ACP;
for providing timely recommendations
to the USC during an incident for the
application of various removal
countermeasures; for initiating a
preliminary survey of the area affected
by a discharge to determine if trust
resources are, or potentially may be,
affected; and for carrying out a damage
assessment of the area in order to
recover monies to restore, rehabilitate,
replace, or acquire equivalent natural
resources Preplanriing and coordination
for both response end damage
assessment activities are spocifically
required at the regional and area levels,
both dunngthe area end regional plan
preparation and during specific
incidents when cocrdinatj on must be
with the predesigna led USC.
The Department of Commerce
description of trustee responsibilities in
§ 300.600(b)(1) is also proposed to be
changed. The phrase “or using” is
proposed to be added to indicate that
many migrating and/or pelagic species
do use the waters navigable by deep
draft vessels and tidally influenced
waters that are not necessarily found
year round, or specifically, in or under
the water at all times , This phrase is
meant to include natural resources that
spend a portion of their life cycle in
waters of the U S. exclusive economic
zone feeding, migrating, breeding, or
using the area as critical habitats. An
example o I”using” would be marine
mammals that migrate in and out of U.S
waters, feed and breed in U.S. waters,
and feed in the open sea and foreign
* waters. Many species that inhabit or
utilize the marine ecosystem, may not
be acknowledged as a natural resource
protected by the Department of
Commerce under the NCP without this
language. Finally, the language
concerning anadromous fish is proposed
to be changed to more accurately reflect
the Secretary of Commerce’s
trusteeship.
State Trustees (Section 300.605)
Today’s proposed regulation expands
§ 300.605, “State trustees,” to encourage
governors to designate a lead
representative to coordinate among all
state offices with trustee responsibilities
and the RRT and USC. The lead state
trustee’s representative (who may serve
on the Area Committee) should have
ready access to appropriate state
off icials with ewQ ironmental protection,
emergency response, and natural
resource responsibilities. This
mechanism will help avoid parallel
state damage assessment activities by
providing a means for state
representatives to have input into
federal planning and response efforts
Foreign Trustees (Section 300.612)
This new provision is proposed to be
added to address the language in section
1006 of the OPA recognizing the role of
foreign trustees. These trustees are to act
on behalf of their governments for
natural resources belonging to, managed
by, controlled by, or appertaining to
those governments.
Responsthihtzes of Trustees (Section
300 625)
Sections 300.615(d 1 12) and
300 615(c)l3) are proposed to be added
to reflect the trustee’s responsibilities in
the event of an oil spill that affects
natural resources pursuant to sect io n
100& of the OPA.
In additior., §300 615(d114)is
proposed to be added to reflect the
authority of the federal trustees to
initiate damage assessments pursuant to
OPA section 6002.
Subpart H—Participation by Other
Persons
Addition of Statutory Authorities/or the
Recovery of 01) Response Costs
The focus of this subpart is on those
authorities that allow persons other than
governments to respond to releases and
to recover necessary response costs
Currently, subpart H only addresses
participation by individuals, private
entities, potentially responsible parties,
and foreign entities eligible to submit
claims for reimbursement for response
actions from the Hazardous Substance
Superfund (for example, claims made
under CERCLA sections 1l1(a112) and
‘122(bHl)). The current subpart H does
not address claims for response to
discharges of oil.
However, section 1013 of the CPA
authorizes reimbursement for responses
to discharges of oil from the OSLTF. In
today’s rule, EPA is proposing to
incorporate in subpart H a reference to
the procedures that apply to claims
made by other persons responding to
such discharges (S 300 700(h))
The current subpart U is
supplemented by 40 CFR part 307,
which contains the forms and detailed
procedures required by section 112(b)(1)
of CERCLA for filing CERCLA response
claims. The 1. 1 5CC will in the near
future prornu]gate a similar supplement
to today’s proposed subpart H. as
required by CPA section 1013(e ),
describing the procedures and operation
of the NPFC
The NPFC can pay uncompensated
removal costs and uncompensated
damages from the CSLTF pursuant to
section 10h2(a) 4) of the CPA Claimants
should submit claims to either the
designated responsible party or NPFC as
specified in advertising If the
responsible party declines to pay the
claim or fails to settle the claim within
go days, then the claim may be
submitted to the NPFC Any claims
received by agencies other than the
NPF’C should be immediately forwarded
to the NPFC.
Questions regarding claims should be
referred to the NPFC However, if a
responsible party/guarantor has
advertised for claims, potential
claimants can be referred directly to the
responsible party/guarantor If any third
party interest in filing claims is noted or
expected as a result of an incident, the
PJPFC case officer should be notified
prampily
The language in §300 700(al
concern ing both OPA and CERCLA
response actions is also proposed to be
changed. Section 300.700(a) currently
provides that any person may undertake
a response action to reduce or eliminate
a release of a hazardous substance,
pollutant, or contaminant. Today’s
proposed rule would place limits on
this authority pursuant to language
contained in CWA section 311(c)(2)
which requires the Federal Government
to direct discharges posing a substantial
threat to the public health or welfare of
the United States
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Subpart I—Use of Dispersants and
Other Chemicals
Section 311(d)(2)(G) of the CWA, as
amended by the OPA, requires that the
NCP include a schedule identifying
“dispersants, other chemicals, and other
spill mitigating devices and substances,
if any, that may be used in carrying out”
the NCP. Currently, the use of
dispersarits, other chemical agents, and
bioremediation agents to respond to oil
spills in U.S. waters is governed by
subpart J of the NC? (40 CFR 300.900).
Section 300.910 of subpart J concerns
the authorization of the use of products
on the NCP Product Schedule and
specifies the conditions under which
OSCs may authorize the use of
dispersants, other chemicals, and other
spill control agents. Under existing
§ 300.910(a), OSCs may authorize the
use of products on the Product
Schedule, with the concurrence of the
EPA and state representatives to the
RRT and, when practicable, in
consultation with the DOC and DOt
natural resource trustees.
Sections 300.915 and 300.920
describe the data requirements and the
process for adding products to the
Product Schedule. To list a product on
the Schedule, subpart J currently
requires a manufacturer to submit
technical data on the product to EPA.
Data on dispersants, surface collecting
agents, and miscellaneous oil spill
control agents must include the results
of the Revised Standard Dispersant
Toxicity Test set for these products in
appendix C of the NCP. Data on
dispersants must also include the
results of the Revised Standard
Dispersant Effectiveness Test, also set
forth in appendix C. These tests may be
conducted at the expense of the
manufacturer and may be performed by
any qualified laboratory.
The raw data and a summary of the
results from these tests are then
submitted to EPA, where they are
reviewed to confirm that the data are
complete and that the specified
procedures were followed. Generally.
EPA does not confirm these data in
independent tests. The data
requirements for placement of a product
on the Product Schedule are designed to
provide sufficient data for OSCs to judge
whether and in what quantities a
product may be used to control a
particular discharge.
Inclusion of a product on the Product
Schedule means only that the data
submission requirements have been
satisfied. The listing of a product on the
Schedule does not mean that the
product is recommended or authorized
for use on an oil discharge. In addition,
placement of a product on the Product
Schedule does not imply that EPA has
confirmed the safety or effectiveness of
the product or in any other way
endorsed the product for the use listed
or for other uses. The purpose of the
standardized testing procedures set
forth in appendix C is to ensure that
OSCs hove comparable data regarding
the toxicity, effectiveness, and other
characteristics of different products.
Other Spill Mitigating Devices and
Substances
Section 4201 of the OPA amends
CWA section 311(cX2XG) (now section
311 (d)(2)(G)) to add “other spill
mitigating devices and substances” to
the items that may be identified by the
NCP Product Schedule. Consequently,
EPA is proposing to revise subpart Jto
include “other spill mitigating devices
ann substances “Specifically. the
phrase “other spill mitigating devices
and substances” is being added to
§ 3 00.900(a).
EPA interprets the phrase “other spill
mitigating devices and substances” to
include certain products that are
currently listed under the miscellaneous
oil spill control agent category on the
Product Schedule. EPA believes that
Congress’ primary intent in regulating
products under the NC? Product
Schedule is to protect the environment
from possible deleterious effects caused
by the application of these products. As
stated in the Conference Report for the
OPA (H.R. Rep. 101—653, 101st Cong.,
2d Sess at p. 147 (1990)), in preparing
the NCP Product Schedule, “the
President should consider the long- and
short-term effects on the environment of
spill mitigating devices and substances,
and select those which are least harmful
to the environment.” Therefore, EPA is
not interpreting the phrase “other spill
mitigating devices and substances” to
include mechanical devices such as
pumps, booms, or skimmers, which
present no such environmental dangers
through their use. Although EPA
believes that the use of mechanical
devices, by themselves, will not create
deleterious effects on the environment,
commenters are encouraged to provide
information on whether and how the
improper use of these devices could
result in negative environmental effects.
Preouthorizat,on of Product Use and the
Role of Area Committees
Section 300.910 sets forth the
provisions for the authorization of the
use of products on the NC? Product
Schedule by OSCs in response to oil
spills. Under existing § 300.910(e), RRTs
are encouraged, as part of their
contingency planning efforts, to make
preauthorization decisions with respect
to the use of certain dispersants or
chemical agents in their area of
geographical responsibility. lithe
appropriate state RRT representatives
and the DOC and DOI natural resource
trustees approve in advance the use of
certain products under specified
circumstances, the OSC may authorize
the use of the products when a spill
occurs without obtaining specific
concurrences. The preauthorization of
the use of regulated products by OSCs
is currently an optional process. In the
past, the preauthorization option under
§ 300.910(e) has been used relatively
infrequently. Although some RRTs have
developed preauthonzation plans for
the use of products in response to oil
spills, the overall election to make use
of this option has been less
comprehensive than EPA envisioned
when this provision was developed.
As discussed previously, the OPA
amended the CWA to create a system of
Area Committees, which are to consist
of members appointed by the President
from qualified personnel of federal.
state, and local agencies. The statute
expands the existing planning and
response framework by creating an area-
level planning end coordination
structure, with the Area Committees and
ACPs as the primary features of this
structure. Under the CWA, Area
Committee responsibilities include
enhancing contingency planning and
ensuring preplanning of joint federal.
state, and local response efforts, and
expediting decisions on the use of
dispersants and other spill mitigating
devices and substances. The ACPs must.
among other things, include a list of the
equipment. dispersants or other spill
mitigating devices and substances and
personnel available to ensure an
effective and immediate removal of a
discharge and to ensure mitigation or
prevention of a substantial threat of a
discharge, and a description of the
procedures to be followed for obtaining
an expedited decision regarding the use
of dispersarits (see CWA section
3t1(j)(4)).
Because preauthorization can promote
timely action in response to an oil spill,
EPA is proposing to make the existing
preauthorization option mandatory.
Existing § 300.910(e) would be revised
and moved to become new § 300.910(a).
Given the creation of the system of Area
Committees mandated by the OPA, EPA
is proposing to revise new § 300.910(a)
to require that the Area Committees be
actively involved in the
preauthorization process. Under this
new paragraph, RRTs and Area
Committees, as part of their planning
activities, must address the desirability
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Federal Register I Vol. 58, No. 203 / Friday. October 22, 1993 f Proposed Rules
54727
of osing appropriate products on the
Product Schedule and the desirability of
using appropriate burning agents. In
addition, the results of this planning
should address, in either the RCP. ACP,
or a corresponding preauthorization
pian, the specific contexts in which
these products should and should not
be used. This provision, however,
would not require RRTs and Area
Committees to specifically address the
use of every product on the Product
Schedule in their RCPs, ACPs, or
corresponding preauthorization plans.
Section 300.910(a) also is proposed to
be revised to authorize the RRTs to
review and either approve, disapprove,
or approve with modification the
preauthorization plans developed by
Area Committees, as appropnate. EPA
believes that the RRTs should serve in
an advisory and approval role regarding
preauthorization plans developed by the
Area Committees because the RRTs’
expertise in oil spill response would be
a valuable asset in the development of
these preauthorization plans. In
conducting the preauthorization process
described in new § 300.910(a), the RRTs
and Area Committees should work
together closely. In order to facilitate the
best possible response, it is important
that the regional.level and area leve)
contingency planning efforts of the
RRTs and Area Committees,
respectively, are coordinated closely
with each other and are consistent.
In addition, for the sake of
consistency with the case by•case
authorization process descnbed in new
paragraphs (b), (c), and (d) of § 300.910,
EPA is proposing to revise § 300.910(a)
to require approval by the EPA RRT
representative (in addition to the state
representative’s approval now required)
for certain products under specified
circumstances, as described in the
preauthorization plan. This would allow
the OSC to authorize the use of these
products when a spill occurs without
having to obtain specific concurrences
in situations where time is of the
essence.
in a number of instances (e.g., in the
inland waters), RRTs may fulfill the role
of the Area Committees. In these
instances, coordination between the two
separate entities will be facilitated to the
extent the R.RT addresses both regional.
level and area.level contingency
planning.
Revised § 300.910(a) states that
preauthorization plans may address, but
should not be limited to, factors such as
the potential sources and types of oil
that might be spilled, the existence and
location of environmentaLly sensitive
resources that might be impacted by
spilled oil, available dispersants and
storage locations, available equipment
and adequately trained operators, and
the available means to monitor
dispersant application and
effectiveness. RRTs and Area
Committees also may want to consider
the use of a zoned approach in the
development of preauthorization plans.
A number of existing preauthonzation
plans use critena to classify coastal
waters into three dispersant use zones
that are defined by ocean depth.
currents, biological parameters,
nearshore human activities, and time
required for response. When developing
preaut.horization plans, RRTs and Area
Committees also should take into
account the provisions in the Fish and
Wildlife and Sensitive Environments
Plans that will be incorporated into each
AG’.
EPA also would like to stress that the
OPA seeks to expedite preauthorization
decisions. These decisions can be
negative; for example, areas may be
designated in which the use of certain
dispersants or other spill mitigating
devices and substances is prohibited
As a result of the proposed
reorganization of § 300.910 to
emphasize preauthorization in the use
of products on the NCP Product
Schedule, existing § 300 910(a) would
be moved to become new § 300.910(b).
This paragraph is proposed to be revised
to clarify that the case.by.case
authorization provisions apply only to
spill situations that are not addressed in
a preauthorization plan. Existing
paragraphs (b). (c), and (dl of § 300.910
would be moved to become new
paragraphs (c). (d), and (e) of the same
section, respectively. The language of
new § 300.9 10(d) is proposed to be
reworded for the sake of clanty.
Additional Testing and Data
Requirements
EPA is proposing to add new
§ 300.910 (f) to clarify the authority of
the RRTs regarding the testing and data
requirements for listing products on the
N P Product Schedule. This new
provision would specifically allow the
RRTs, when developing
preauthonzation plans, to require the
performance of supplementary toxicity
and effectiveness testing in addition to
the test methods specified Lii § 300.915
and described in appendix C. For
example, RRTs could require
manufacturers to conduct additional
dispersant effectiveness testing using
grades of oil other than that which is
specified by the dispersant effectiveness
test method or could require additional
toxicity testing on test species other
than those designated under the
stipulated toxicity test method. This
supplementary testing might be required
because of existing site.specific or area-
specific concerns, such as the existence
of a sensitive indigenous species that
plays a critical role in the local sensitive
environment or has special commercial
value.
EPA is clarifying the authority of the
RRTs concerning product testing
requirements to provide more relevant
information to RRTs for their response
and contingency planning efforts. The
test methods described in appendix C
are intended to provide a basic set of
test procedures that will provide
baseline data for comparison of
products on a national basis. The new
provision now would specifically
provide that RRTs may require
supplementary effectiveness and
toxicity testing in order to obtain data
that will be more specific and relevant
to the area-specific and site.specific
conditions of spills for which they are
responsible
NCP Product Schedule Listing Process
Since the Exxon Voider spill, nearly
60 products have been added to the NCP
Product Schedule, bringing the total
number of products on the Schedule to
nearly 100. Because of this proliferation
of products on the Schedule, there has
been increased interest among users,
particularly OSCs, for the establishment
of some type of criteria to limit the
products considered in a given spiil
situation. As a result, EPA is today
proposing to revise the process under
which some products, specifically
dispersants, are listed on the Product
Schedule These proposed revisions to
the listing process, which may result in
a reduction of the number of products
on the Schedule, are designed to
provide more useful and reliable data to
OSCs
in order to place a dispersant on the
NC? Product Schedule, subpart
currently requires that the manufacturer
conduct specific toxicity and
effectiveness tests and submit the
corresponding technical product data to
EPA. However, subpart J does not
require that any minimum standards or
criteria be met for a dispersant to be
listed on the Schedule. Given the recent
proliferation of products on the
Schedule, including dLspersants, EPA is
proposing to establish an effectiveness
threshold or acceptability criterion for
listing dispersants on the NC? Product
Schedule.
Only those dispersants that meet or
exceed the established effectiveness
•The elfectivenoss of an oil dispersant is
measured by its ability to disperse a surface slick
of oil Into the waler column and to hold the
emulsion there
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54728 Federal Register / Vol. 58, No. 203 I Friday, October 22, 1993 / Proposed Rules
threshold would be listed on the
Schedule. EPA is not proposing to
establish a threshold or acceptability
criterion for dispersant toxicity because
toxicity tends to be more relative. Also,
EPA believes that the best approach to
regulating dispersants is to provide
OSCs and Area Committees with the
toxicity data and allow them to make
decisions on dispersant use by weighing
the toxicity data against the
effectiveness data for those dispersants
that meet or exceed the effectiveness
threshold. For example, in a particular
location of possible dispersant use, an
OSC may opt to use or an Area
Committee may preplan for the use of a
highly effective, but highly toxic
dispersant. In a different location, the
OSC or Area Committee may decide to
use a moderately toxic, but less effective
dispersarit. In either situation, the OSC
and Area Committee would know that
the selected dispersant. at the very least,
meets the level of effectiveness
established by the effectiveness
acceptability criterion.
EPA is also proposing to change the
manner in which the required
dispersant effectiveness and toxicity
tests are performed. Subpart J currently
requires that dispersant manufacturers
arrange with qualified laboratories to
conduct the specified effectiveness and
toxicity tests for their products
However, given the establishment of an
effectiveness acceptability criterion for
dispersants. EPA believes it is necessary
to maintain as much consistency and
reproducibility in the dispersant
effectiveness testing results as possible.
Therefore, EPA believes that it is
appropriate for EPA to conduct the
required effectiveness tests for
dispersants
Only those dispersants that meet or
exceed the established effectiveness
acceptability criterion, and are therefore
eligible to be listed on the Schedule,
would be tested for toxicity, in
accordance with the required toxicity
testing protocol discussed below. Due to
the fact that toxicity tests would be
performed only on those dispersants
that attain or exceed the effectiveness
threshold. EPA is also proposing that
EPA conduct the required dispersant
toxicity tests
Dispersant manufacturers are still
required to submit to EPA the other
technical product data specified in
§ 300.915(a), along with a two-liter
sample of their product for the purposes
of EPA performing the required
effectiveness and toxicity tests.
EPA is focusing its efforts concerning
revisions to the listing process and the
establishment of effectiveness
acceptability criteria on dispersants
because these products constitute a
large portion of the products on the
Schedule (i.e., there are over 40
dispersants currently listed on the
Schedule). In addition, effectiveness
testing protocols for dispersants are
more numerous and well established
EPA envisions that the proposed listing
process for dispersants will serve as a
model or pilot program. and that
effectiveness acceptability criteria for
the other categories of products (such as
surface washing agents or
bioremediation agents) will be
established under subpart J when the
effectiveness testing protocols for these
products are standardized or validated.
Accordingly, effectiveness testing
protocols are currently being developed
for other categories of products, but are
not being proposed today.
Dispersant Acceptability Criterion
As discussed above, under existing
subpart J there is no requirement that
the percent effectiveness of a dispersant
be above a certain threshold value in
order for the dispersant to be listed on
the Schedule. When compared to the
requirements of other countries, this
lack of an established minimum
effectiveness level for dispersants
represents the exception rather than the
rule. For example. Brazil and Canada
require effectiveness values of 50
percent or greater, while France and
Norway require values of 60 percent or
greater. In China and Japan. dispersant
effectiveness must be 60 percent or
greater after a 30-second mix time, and
20 percent or greater after a 10-minute
mix time.
EPA is proposing to establish a 50
percent effectiveness acceptability
criterion for listing dispersants on the
NCP Product Schedule. EPA believes
‘that the 50 percent threshold strikes an
effective balance between restrictiveness
and leniency in listing dispersants on
the Schedule, is generally consistent
with the effectiveness thresholds
established by other countries, and
allows for a broad range of dispersants
at various levels of technical
development to be used. Also,
Paragraph I of Article 604 of the 1988
U S -Canada Free Trade Agreement
states that “to the greatest extent
possible. and taking into account
international standardization activities.
each Party shall make compatible its
standards-related measures and
procedures for product approval with
those of the other Party.” As discussed
above, Canada uses a dispersant
effectiveness threshold of 50 percent.
EPA recognizes that some degree of
variability will be inherent in the
dispersant effectiveness test results, In
order to allow for this variability, EPA
is proposing to establish the dispersant
effectiveness acceptability criterion at
50 percent. plus or minus 5 percent. In
other words, a dispersant tested in
accordance with the required Swirling
Flask testing protocol (discussed below)
would have to attain an effectiveness
value of 45 percent or greater (i.e., 50
percent minus 5 percent) to be listed on
the Product Schedule.
It should be noted that dispersants
currently listed on the Product Schedule
also would have to attain an
effectiveness value of 45 percent or
greater to continue to be listed on the
Schedule. Dispersants currently listed
on the Schedule would remain on the
Schedule until EPA has conducted the
necessary tests. After these tests have
been performed, manufacturers of those
dispersants that do not attain an
effectiveness value of 45 percent or
greater would be notified in writing by
EPA that, within a specified period of
time, their dispersants will be removed
from the Product Schedule.
EPA is proposing to add new
§ 300.920(a) to revise the listing process
for placing dispersants on the Product
Schedule and to establish the 45 percent
effectiveness acceptability criterion.
Existing paragraphs (a) and (b) of
§ 300.920 are being revised to become
new § 300.920(b). As is currently the
case, manufacturers of products other
than dispersants need only submit the
technical product data required by
§ 300.915 to have those products listed
on the Product Schedule.
After EPA has received the required
technical product data and a two-liter
sample of the dispersant from the
manufacturer, EPA would conduct the
required Swirling Flask effectiveness
test, as specified in appendix C to the
NCP. EPA would then conduct the
required dispersant toxicity test, as
specified in appendix C, but only for
those dispersants that attained an
effectiveness value of 45 percent or
greater.
EPA is also proposing to add new
§ 300 ,920(a)(5) to establish a process for
those dispersant manufacturers that may
disagree with EPA’s decision to not list
their dispersants on the Product
Schedule. Within 30 days of receipt of
EPA’s notification to not list the
dispersant on the Schedule, the
manufacturer would have to submit in
writing to the Administrator of EPA a
clear and concise statement with
supporting facts and technical analysis
demonstrating that EPA’s decision was
incorrect The Administrator or a
designee may request additional
information from the dispersant
manufacturer, or any other person, and
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Federal Register / Vol. 58, No. 203 / Friday. October 22, 1993 / Proposed Rules
54729
thŕy provide for a conference between
EPA and the manufacturer, if
appropriate. The Administrator or a
designee would render a final Agency
decision within 60 days of receiving the
statement (or within 60 days of
receiving requested additional
information, if appropriate).
Existing paragraphs (a)(7). (8). and
(12) of § 300.9Th are proposed to be
revised, and new § 300.920(a) is
proposed to be added. to state that EPA
will perform the required effectiveness
and toxicity tests for dispersants. In
addition, the order of existing
paragraphs (a)(7) and (8) of 300.915 is
proposed to.be reversed to reflect the
order in which the tests will be
performed by EPA (i.e., the dispersant
effectiveness test will be performed
before the dispersant toxicity test).
Consistent with current EPA policy,
manufacturers of products other than
dispersants will be required to arrange
for qualified laboratories to perform the
specified effectiveness and toxicity tests
for their products.
Dispersont Effectiveness Testing
Protocol
Dispersants are defined in § 300.5 of
the NC? as “those chemical agents that
emulsify, disperse, or solubilize oil into
the water column or promote the surface
spreading of oil slicks to facilitate
dispersal of the oil into the water
column.” Section 300.920 of the NC?
currently requires that the Revised
Standard Dispersant Effectiveness Test
(RSDET) be performed and the test data
be submitted to EPA in order for a
dispersant to be placed on the NC?
Product Schedule. The objective of this
test is to measure the degree of
dispersion that each particular chemical
produces.
EPA, USCG, and other federal
agencies have expressed a number of
concerns regarding this effectiveness
testing protocol, including. Skepticism
about whether No. 6 fuel oil is readily
dispersable: concern that the oil/water
ratios are unrealistic; questions
regarding the stability of the dispersion
d&iring the testing procedure; and
concern that the energy levels utilized
in the test are unrealistic. Also, the test
is classified as a pumped tank type of
test, which can create local regions of
extremely high shear conditions that
may cause misleading test results. The
RSDET procedure is also cumbersome
and relatively expensive because it
requires specialized laboratory
equipment, relatively skilled laboratory
technicians, and a substantial amount of
laboratory time, and it results in a large
volume of wastewater.
A number of laboratory studies have
been performed to compare the test
results from different effectiveness
testing apparatus and procedures.
Reviews of these results demonstrate
that there are poor correlations in
effectiveness data among the various
test methods. Several recent studies
have indicated that this lack of
correlation is a function of settling time,
energy applied, natural dispersion, and
the oil-to-water ratio used in the
apparatus.5 When these parameters are
adjusted, however, test results from
most apparatus are similar. This
suggests that a simple, repeatable, and
fast test can be chosen to make
determinations of dispersant
effectiveness.
Currently, over 35 dispersant
effectiveness testing protocols have been
developed, and approximately ten are
used worldwide today Approximately
five dispersant effectiveness field tests
have also been developed.6
Considering the wide range of
effectiveness tests available, and the
relative advantages and disadvantages of
each, EPA convened a panel of experts
to address the issue of dispersant
effectiveness. In April 1991. U.s. and
international experts were invited to
EPA’s facility in Edison, NJ to discuss
the current state•of the-art on dispersant
use and effectiveness. Over 45 scientists
attended, representing the U.S., Canada,
the United Kingdom, France, Norway,
and the Netherlands. As a result of this
meeting. EPA initiated a laboratory
evaluation of three dispersant
effectiveness testing protocols that were
recommended by the meeting
participants.
The three effectiveness tests that were
reviewed in detail were the RSDET, the
Swirling Flask test (used by researchers
in Canada and expected to be adopted
as the Canadian standard regulatory
test), and the IFP-Dilution test (used in
France and Norway). Six test oils and
three dispersants were evaluated in
varying combinations using these three
effectiveness testing protocols.
Screening efforts were used to focus on
the most appropriate oil/dispersant
combination for detailed study; that
combination was deterrnrned to be
Prudhoe Bay crude oil and the
dispersant Corexit 9527. This
combination is also the most likely to be
encountered in real-world situations in
U.S. coastal waters
The conclusions reached by EPA
through this research were that the three
testing protocols produce similar
effectiveness results, but that the
Swirling Flask test is faster, less
expensive, simpler, and requires less
operator skill Table I presents a
summary of the data obtained by EPA
through its evaluation of the dispersant
effectiveness testing protocols A copy
of the report documenting this research,
entitled Chemical Oil Spill Dispersants
Evaluation of Three Laboratory
Procedures for Estimating Performance,
is available in the public docket for
today’s proposed rule
TABLE 1 .—SUMMARY DATA FOR DISPERSANT EFFECTIVENESS TESTING PROTOCOLS
Test method
Estimate ot
disrnl
RSD)
Test runs/B
Cost/test
o I
RSDET
Swirling Flask
IFP-Ddution
<35
<35
<35
2
24—36
4—5
$2,280
1,225
3,160
$600
21
195
High
Low
Me urn
High
Low
Medium
‘See Fingas. Mervin F.. Mark A Bobra, and
Ronald K. Velicogna. Laboralmy Studies on the
Chemical and Natural D:spez obiiity of Oil
Proceedings of the 5987 Oil Spil t Conference.
American Petroleum I’istitute. Wa htngion. I) C.
1987. pp 24 1—246. and Ciayton. lohn K. Jr end
lames K. Payne. Chemical Oil Spill Din pernanis
Updale Stote.o/4he.Art on Mechanisms of Actions
and Factors Influencing Performance with
Emphasis on Laboratory Studies. Final Report
prepared by Science Applications International
Corporation for U S Envtronmernei Protect ion
Agency, 1992
‘See Clayton, John K. Jr.. Siu•Fai Tsang. Victoria
Frank. Paui Maraden, and john ilarringion.
Chemical Oil Spill Dispersan ls Evaluoiion of Three
Laborulory Procedures for Estimating Performance.
Final Report prepared by Science Applications
international Corporalion for U S Environmental
Protection Agency. 1992. available in the public
docket for this rulemaking
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54730
Federal Register / Vol. 58, No. 203 / Friday. October 22, 1993 1 Proposed Rules
Based on the results of this research,
EPA is proposing to change the
dispersant effectiveness testing protocol
required by subpart I from the RSDET to
the Swirling Flask test. The Swirling
Flask test specifies the use of both
Prudhoe Bay crude and South Louisiana
crude oils. The final percent
effectiveness value under this testing
protocol is an average of the values
achieved for each of these two test oils.
New § 300.915(aX l) and appendix C to
the NGP is proposed to be revised to
reflect this change; appendix C would
include a description of the Swirling
Flask testing protocol.
EPA recognizes that there may be
other dispersant effectiveness testing
protocols. either for laboratory or field
use that may warrant further
investigation. Commenters are
encouraged to provide information
regarding any such testing protocols.
Dispersont Toxicity Testing Protocol
The major objective of toxicity testing
is to provide data on the relative
toxicities of chemicals on commonly
used test species under standardized
conditions. Subpart J of the NCP
currently requires that toxicity tests be
conducted on dispersants. surface
collecting agents , and miscellaneous oil
spill control agents using the Revised
Standard Disporsant Toxicity Test.
For this test, saltwater mummichogs
(Fijnthj los heterochtus) and brine
shrimp (Anemia sauna) are used to
determine the toxicity of the chemical
being tested. In addition, tests are
conducted to determine the toxicity of
No. 2 fuel oil alone and in a 1:10
mixture of chemical to oil. in order to
determine the toxicity of the test
chemicals, various concentrations of
these chemicals are prepared using a
synthetic seawater solution as a
standard medium. As an aid in “.
comparing results from different
laboratories, a toxicity test is also
conducted using a reference chemical
toxicant, dodecyl sodium sulfate (DSS).
Control tests, which expose the
organisms to the seawater solution
alone, are also conducted.
At the end of the specified test period,
a Median Lethal Concentration, or
is calculated using the observed
mortalities of the organisms from the
toxicity tests. An LC is the
concentration of a particular test
material (chemical, oil, or mixture) thet
is lethal 1o50 percent of the organisms
over the course of the test. Using the
LCyi data, the toxicity of a chemical can
be compared to that of oil and a mixture
of the two. The relative toxicities of
various chemicals (dispersonts, surface
collecting agents. and miscellaneous oil
spill control agents) can also be
compared.
As discussed above, the Revised
Standard Dispersant Toxicity Test
utilizes the saltwater mummichog and
the brine shrimp as its required test
species for fish and invertebrates,
respectively. Analytical laboratories, in
solicited letters to EPA and industry
participants, raised questions at a
workshop on dispersant toxicity testing
held in New Orleans in 19896
concerning the validity and advisability
of using these species as the test species
for the toxicity testing required by
subpart j. Specifically, they suggested
that the test species for fish be changed
from Fundulus to a more commercially
available and easily cultured species.
The suitability ofArtemjaas the
invertebrate test species was also
questioned.
The 1990 American Society for
Testing and Materials (ASTM) annual
publication states that test species
should be selected based on availability;
commercial, recreational, and ecological
importance; past successful use; and
ease of handling in the laboratory. In
addition to these criteria, the 1989
Stondord Methods for the Examination
of Water and Wostewoter notes that the
availability of methods For rearing
organisms tn the laboratory and a
knowledge of their requirements should
be considered. Although the
mummichog is a generally available
species in the wild, it is not widely
cultured in the laboratory.
Consequently, these fish may be
obtained from environrnental]y diverse
natural sources and, as a result, have
differing sensitivities to, and tolerances
of, pollutants. Using such fish as the test
species introduces genetic differences.
seasonal variations, differences in
nutritional state and susceptibility to
disease, and variation in availability
over the course of a year. This
introduces an additional source of
variability into the tests, and toxicity
data based on such tests are
questionable.
As a result, EPA is proposing to
change the required fish toxicity test
species from Fundulus heteroclitus to
Men idrn beryllino, the silverside.
Silversides are widely found along the
entire United States east and Gulf
‘Cep ea of these leltura may be inspected al the
public docket for this rulemaking at Room 2424,
U S EPA. Oi M Si SW LG, Washington. DC
20460
See Duke, Thomas and Gary Peurazzolo, ada,
Oil oS Thsperbont Toxicity Testing. Proceedin gs of
o Workshop on Techn.icoi Specifications. U.S
Department of the interior. New Orleans. J anuary
1989, available for inspection in the public docket
for this rulemaking
coasts. A comparable variety of the east
and Gulf coast silverside is found alon e
the Pacific coast. ln contrast to
mummichogs, silversides are easily
farmed and cultured in the laboratory,
which allows for greater comparability
of toxicity data generated by testing
silversides. Silversides are also
significantly more sensitive to
pollutants than are rnummichogs, and
EPA has existing data concerning the
sensitivity of silversides to pollutants.
Conducting toxicity tests on
invertebrates is important because of
their diversity and abundance in the
marine environment, their commercial
importance, and their sensitivity to oil
and oil-related compounds. There has
been some concern expressed by
industry that the brine shrimp specified
in EPA ’s standard toxicity test is not a
sufficiently sensitive organism. Again,
this issue was raised at the 1989 New
Orleans workshop on dispersant toxicity
testing. Also, the Minerals Management
Service noted at this workshop that
Anemia would not be considered an
endemic species for most spills.
Consequently, EPA is proposing to
change the required invertebrate toxicity
test species from Anemia saline to
Mysidopsis hohia, the mysid shrimp.
Mysids are mere sensitive to pollutants
than are brine shrimp. Mysids are else
widely found in U.S. coastal waters a ’
can be easily farmed and cultured in the
laboratory.
EPA is proposing to revise the
required dispersant toxicity testing
protocol contained in appendix C to
reflect this change in the specified
toxicity test species and to make
corresponding technical revisions. The.
proposed revisions also would require
the use of larval fish instead of adult
fish , The current requirement that
di spersants. surface collecting agents,
and miscellaneous oil spill control
agents undergo the specified toxicity
testing would not be changed. In
addition, products proposed for listing
under the new surface washing agent
category would be required to undergo
this toxicity testing In an attempt to
provide OSCs and Area Committees
with the most up-to-date and useful data
regarding products on the Schedule.
EPA also proposes to require that
dispersants, surface collecting agents,
and miscellaneous oil spill control
agents presently listed on the Schedule
undergo toxicity testing in accordance
with the revised testing protocol.
Surfoce Washing Agents
Products currenfly listad on the NC.
Product Schedule are divided into four
basic categories: Dispersants, surface
collecting agents. biological additives,
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Federal Register / Vol.58, No. 203 / Friday. October 22, 1.993 / Proposed Rules
54731
and miscellaneous oil spill control
agents. Dispersants are those agents that
have approximately the same solubility
in water and oil and will cause oil to be
dispersed into the water column in the
form of fine droplets. A number of the
products currently listed under the
dispersant category on the Product
Schedule are surface washing agents
(also known as beach cleaning agents)
that remove oil from solid surfaces, such
as beaches and rocks, through a
detergency mechanism and do not
involve dispersing or solubilizing the oil
into the water column. The mechanisms
of dispersion and detergency are quite
different, and research has shown that a
product that is a good surface washing
agent is a poor dispersant and vice
versa. 0 Therefore, in order to provide a
more accurate and comprehensive list of
products available to OSCs during e
spill event, EPA is proposing to add a
separate category to the NCP Product
Schedule for surface washing agents.
Those surface washing agents that are
currently listed under the dispersant
category would ho moved to the new
surface washing agent category.
EPA is proposing to add new
§300.915(b) to establish the surface
washing agent category on the Product
Schedule and to define the data
requirements that must be satisfied in
order to list a surface washing agent on
the Schedule. The technical product
data requirements for surface washing
agents are similar to those required for
dispersants, with the exception of the
required effectiveness testing protocol.
EPA has conducted research on various
surface washing agent effectiveness
testing protocols and may propose a
required effectiveness testing protocol
for surface washing agents at a later
date.
Existing paragraphs (b), (c), (d), and
Ce) of §300.915 would be moved to
become new paragraphs (cJ, Cd) . Ce), and
( U of the same section, respectively.
Also, e definition of surface washing
agents is proposed to be added to
§ 300.5.
Btoremediotton Agents
Existing § 300 915(c) sets out the data
requirements that must be satisfied in
order to have a biological additive listed
on the Product Schedule, specifically
vSae Fmgas. Mervin F., Robert Stoodley. Nanci
Stone. Russet Hottins, end tan Bier, Testing the
Effectiveness of Sp :ll.Treoting Agents Lobozorosy
Test Development and initial Results Proceedings
of the 1992 Intemot tonal Oil Spill Confe rence ,
Sponsored by U.S Coast Gu&d. &nerican
Petroleum institute. U.S EPA, San Diego. CA. 1991.
pp. 411—114, end Fingas. Merv,Gord Stoodley.
Gary Hams. and Ariane Hele. Eve)uotion of
Chemical Beach Cleaners, Environment Canada.
Ottawa. Onteno
either “microbiological cultures” or
“enzyme additives.” The regulation.
however, does not include specific data
requirements for “nutrient additives,”
which are bioremediation agents
currently available in the marketplace.
In fact, a number of the products
currently listed on the Schedule under
the biological additive category are
nutrient additives, Therefore, for the
sake of accuracy and completeness, EPA
is proposing to rename new §300.915(d)
“Bioremediation Agents” and to add
new § 300.9 iS(d3(i0) to create a
subcategory on the Schedule for
“nutrient additives.”
New § 300.9i5(d)(io) would provide
specific date requirements for nutrient
additives, requiring submission to EPA
of a listing of each component of the
total formulation,by cbamical name and
percentage by weight, and the optimum
storage conditions. These data are
important for OSCs, particularly when
making decisions on whether to use a
nutrient additive at a particular
location.
New § 300.915(d119) would combine
the data requirements for
microbiological cultures and enzyme
additives, which are contained in
existing paragraphs (c)(8) and (9) of
§ 200.9 15, under the heading of
“biological additives.” EPA is proposing
to add new paragraphs (d)(9)(i) IA) and
(ii)(A) to § 300.915 to require
submission to EPA of a listing of each
component of the total formulation of
biological additives, other than
microorganisms or enzymes,
respectively. This data requirement is
being added because biological
additives currently available in the
marketplace are rerely pure
microbiological cultures or enzyme
additives, and the additional
components may be potentially toxic or
harmful to the environment.
Also, the definition oI”bio]ogical
additives” in § 300 ,5 would be revised
for clarification and to reflect the
changes discussed above, in particular.
* * for the specific purpose of
encouraging biodegradation * *
would be changed to” * * and that
will significantly increase the rate of
biodegradation * * “ to reflect the
current definition of bioremediation in
the scientific community and to focus
on the discernible effect of the agent,
rather then on the purpose of its use.
Thoremedsotion Agent Testing Protocols
Bioremediation agents are defined in
the NCP as microbiological cultures,
enzyme additives, or nutrient additives
that are deliberately introduced into an
oil discharge and that will significantly
increase the rate olbiodegradetion to
mitigate the effects of the discharge.
Currently, to list a bioremedietion agent
on the NC!’ Product Schedule, there are
no requirements concerning specified
effectiveness and toxicity tests. EPA
today is proposing to establish required
effectiveness and toxicity testing
protocols for listing bioremediation
agents on the Schedule.
The ability of bacteria to degrade
petroleum hydrocarbons has been
recognized for decades. Immediately
following the Exxon VoIder oil spill in
March of 1969, EPA and other federal
and state agencies received numerous
offers of assistance from bioremediation
agent manufacturers end vendors.
Research conducted by EPA in Prince
William Sound, Alaska, following the
Exxon Voider spilt demonstrated that
fertilizer-enhanced microbial
communities were highly effective in
their ability to degrade the Alaska North
Slope crude oit spilled on the beaches
Since the Exxon VoIder spill, there
has been an increased focus on the use
of bioremediation agents to respond to
oil spills. Over 30 biorernediation agents
have been listed on the Product
Schedule since the Exxon Vcidez spill
Given this increased fccus on the use of
bioremedietion agents, EPA recognized
the need for some type of standard
testing protocols to provide baseline
data for the comparison of the
effectiveness and toxicity of the
different bioremediatton agents
available in the marketplace. At the time
of the Exxon Vo!dez spill, however,
there were no existing or accepted
bioremediation agent testing protocols
In November 1989, EPA requested
that the National Environmental
Technology Applications Corporation
(NETAC) assemble a panel of scientific
experts from all areas involved with
bioremediation research to develop
standard testing protocols for comparing
the effectiveness and toxicity of
different bioremedi at ion agents NETAC
is a non-profit corporation created in
1988 under a cooperative agreement
between EPA’s Office of Research and
Development (ORD) and the University
of Pittsburgh Trust to atsist in the
commercialization of innovative
environmental technologies
The laboratory-scale bioremedsation
testing protocols being proposed today
are the first in a series of methods being
developed by the Oil Spill
Bioremediatton Products Protocol
Development Panel, which operates
under the auspices of the Treatab ility
Protocol DeveLopment Subcommittee of
the Bioremediation Action Committee
(BAC). The BAC is an affiliation of
academia, government, and industry
representatives who are working
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Federal Register / Vol. 58, No. 203 / Friday. October 22, 1993 I Proposed_Rules
collectively to expand the responsible
use of biotechnology for the prevention
and remediation of environmental
contamination. The Products
Development Panel was assembled and
is directed through the efforts of
NETAC. NETAC also serves as the chair
of the Treatability Protocol
Development Subcommittee, and as
such, works to facilitate the
development of a screening process to
determine the remediation capabilities
of bioremediation agents or methods A
copy of the report documenting this
research, entitled Oil Spill
Bioremedicition Products Testing
Pro oco Methods Manual, is available
in the public docket for today’s
proposed rule.
The format of the bioremediation
agent testing protocols being proposed
today is designed to be a generic
approach. This results in test
parameters, such as shaker speed. water
temperature, water composition. and oil
type, being set at specific values Where
possible, average or “middle of the road
values’ were selected for these
parameters to allow these protocols to
screen a broad product base and to
account for a variety of environmental
conditions The objective of these
protocols is to provide empirical
laboratory evidence that evaluates a
bioremediation agent’s ability to
enhance biodegradation as compared to
the natural population and indicates the
toxicity of the combined product. oil,
and any metabolic by-products
The bioremediation agent
effectiveness testing protocol evaluates
product efficacy in the laboratory using
shaker-flask studies and standard
bioassay analyses. The protocol uses
Alaska North Slope crude oil and Gulf
Breeze coast seawater, which are both
available from NETAC’s Bioremediatioir
Products Evaluation Center (BPEC). The
effectiveness testing protocol uses both
chemical and microbiological analyses
to determine product effectiveness at a
standard temperature, salinity, and
oxygenation by evaluating the following
criteria (1) The relative change in
aliphatic and aromatic oil constituents
at various time intervals; and (2) the
total hydrocarbon degrading microbial
activity. The chemical analysis uses a
high resolution gas chrornatograph/mass
spectrometer (GC/MS) because of its
high degree of chemical separation and
spectral resolution. The microbiological
analysis is conducted to determine and
monitor the viability of the microbial
cultures being studied. Under this
procedure, microbial enumerations of
hydrocarbon degraders are performed at
each sampling event using a microliter
Most Probable Number (MPN)
determination.
Under the bioremediation agent
toxicity testing protocol, toxicity tests
are conducted for specific fish (Menidsa
berythna , silversides) and invertebrate
(Mysadopsss bahia. mysid shrimp)
species on the combined product and
oil effluent using 7-day chronic
estimator methods. This test represents
the least complex dosing regimen suited
for the estimation of the chronic effects
of a bioremediation agent. The 7-day
chronic test will provide an estimate of
toxicity relative to survival of the
organism and provide measures of
toxicity in the form of a no observed
effective concentration (NOEC) and
lowest observed effective concentration
(LOEC). Products are tested alone and in
combination with a water-soluble
fraction (WSF) of crude oil. The test
does not account for toxicity as a
function of the physical adherence!
trapping of the organism by the product
plus an oil slick, and makes the
assumption that toxicity to organisms
not associated with the slick will be a
function of the direct interaction of the
organism with the slick and the
associated product. The product
constituents are reviewed using existing
mammalian toxicity data to determine if
any special precautions need be taken
with application methods, rates, or
timing to protect indigenous wildlife
Based on the results of the research
discussed above. EPA is proposing to
establish the bioremediation agent
testing protocols under subpart J.
Paragraphs (7) and (8) of new
§300 915(d) and appendix C to the NCP
would be revised to reflect this change;
appendix C would include a description
of the new effectiveness and toxicity
testing protocols in order to have their
products listed on the Product
Schedule, manufacturers of
bioremediation agents would have to
provide to EPA the effectiveness and
toxicity data specified by these
protocols. In an attempt to provide
OSCs and Area Committees with the
most up-to.date and useful data
regarding products on the Schedule.
EPA would also require that biological
additives presently listed on the
Schedule undergo effectiveness and
toxicity testing in accordance with the
new bioremediation agent testing
protocols.
NETAC has established a facility, the
BPEC, that is available for conducting
these tests. Product manufacturers or
vendors may choose to have their
products tested at commercial testing
laboratories. If manufacturers or vendors
choose to have the required tests
performed by commercial laboratories.
quality control/quality assurance
procedures established by EPA must b
met.
The bioremediation agent testing
protocols discussed above have
undergone verification testing and have
been reviewed by an expert panel. EPA
is proposing these protocols today and
including them in appendix C so that
the public may review and comment on
them. EPA recognizes that there may be
other bioremediation agent effectiveness
and toxicity testing protocols, either for
laboratory or field use, that may warrant
further investigation. Commenters are
encouraged to provide information
regarding any such testing protocols.
Miscellaneous Oil Spill Control Agents
Existing §300.915(e) (new
§ 300.915(0) sets out the data
requirements that must be satisfied in
order to have a miscellaneous oil spill
control agent listed on the Product
Schedule. EPA is proposing to add new
§ 300.915(fl(4), which requires that
manufacturers of miscellaneous oil spill
control agents submit to EPA a brief
description of the recommended uses of
their product and how their product
works. EPA believes that, due to the
wide range of products included under
the miscellaneous category, this is
important and valuable information fo
OSCs to have in their decisionmakirig
capacity. As a result oF this addition.
existing paragraphs (e)(4) to (12) of
§ 300.915 would be moved to become
new paragraphs (0(5) to (13) of the same
section, respectively.
Soj-bents
EPA does not interpret the phrase
“other spill mitigating devices and
substances” to include sorbents. EPA
believes that the use of sorbents, by
themselves, does not create deleterious
effects to the environment, and for the
same reasons stated above, believes it is
inappropriate to include sorbents on the
NCP Product Schedule. Consequently,
as has been EPA policy in the past, EPA
will not regulate sorbents under subpart
J. EPA is proposing to add a definition
of sorbents to § 300.5, to revise the
definitions of chemical agents and
miscellaneous oil spill control agents in
§ 300.5, and to add new § 300.915(g) to
clarify that sorbents will not be listed on
the Product Schedule
Sorbents are essentially inert and
insoluble materials that are used to
remove oil and hazardous substances
from water through a variety of sorpticr
mechanisms. Specifically, sorbents
work through adsorption (in which thL
oil or hazardous substance is attracted
to the sorbent surface and then adheres
to it). absorption (in which the oil or
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Federal Register / Vol. 58, No. 203 I Friday, October 22, 1993 I Proposed Rules
54733
hazardous substance penetrates the
pores of the sorbent material), or a
combination of these two mecharusms.
Sorbents are generally manufactured in
particulate form for spreading over an
oil slick or as sheets, rolls, pillows, or
booms.
Currently available sorbents usually
consist of one or more of the following
materials, (1) Organic products, such as
peat moss or straw, cellulose fibers or
cork, corn cobs, or chicken, duck, or
other bird feathers; (2) miners)
compounds, such as volcanic ash or
perlite, or vermiculite or zeolite; or (3)
synthetic products, such as
polypropylene, polyethylene,
polyurethane, or polyester. Synthetic
sorbents arO presently more abundant
than sorbents composed of either
organic products orinineral
compounds A large ma)ority of
synthetic sorbents are composed of
polypropylene, a plastic-based fiber
mada from petroleum products.
EPA believes that the use of sorbents
does not create deleterious effects to the
environment because these materials are
essentially inert and insoluble in water
and because the basic components of
sorbents are non-toxic. The use of
sorbents has been part of responso
efforts to virtually all past oil spills,
without causing problems or deletenous
effects to the environment. Sorbent
materials of some kind are presently
used in all phases of oil spill cleanups
By their very nature, the components
of organic and mineral sorbents are non-
toxic. EPA conducted a review of
several lists and data bases of hazardous
substances and toxic materials to
analyze the toxicity of the primary
components of synthetic sorbents, i.e
polypropylene, polyethylene,
polyurethane, and polyester. The results
of this review indicate that these
substances are also non-toxic,
None of these four substances are
included in the first or second 100
substances listed under SARA section
110 They are not listed as extremely
hazardous substances (EHSs) under
SARA section 302 or as toxic chemicals
under SARA section 313. In addition,
they are not designated as hazardous
substances under G3tCLA The Aquatic
Information Retrieva] data base
(AQLHRE), which provides information
on the aquatic toxicity of various
substances, does not include any of
these substances, Also, the lntegrated
Risk Information System (IRIS) and the
Health Effects Assessment Summary
Tables (HEASTI in do not include any of
these substances. Although three of
to IRIS and i- lEAST arc published by EPA ’s Office
of Research and Development
these four substances (polypropylene,
polyethylene. and polyurethane) are
listed in the Registry of Toxic Effects of
Chemical Substances (RTECS), the data
for mice and rat studies i i appear to
indicate that the toxicity of these
pubstances is low or negligible.
As stated above, the large majority of
synthetic sorbents are composed of
polypropylene. According to various
manufacturers’ Material Safety Data
Sheets (MSIJSs), 2 the polypropylene
products are non-toxic, pose no acute or
chron ic health hazards, and are not
expected to create any adverse
environmental impacts. In addition, the
MSDSs indicate that the polypropylene
products are expected to: (i) Have a low
biological oxygen demand and cause
little oxygen depletion in aquatic
systems. (2) have a low potential to
affect aquatic organisms. secondary
waste treatment micro-organisms, and
the gerrmnation and growth of some
plants; and (3) be resistant to
biodegradation, but are unlikely to
bioconcentrate.
Because the primary components of
synthetic sorbents are essentially
insoluble and not biodegradable, i3 the
breakdown of these products is not a
concern. Alihough sunlight or
ultraviolet light could cause a
degradation of the synthetic sorbent
material, it is very unlikely that the
sorbent material would remain in the
water long enough to allow for this to
occur because sorbent materials are
usually removed from the water after a
short period of time.
EPA also intends to continue its
policy of not listing sorbents on the NCP
Product Schedule because EPA believes
that there are no added benefits in
listing sorbents and because listing
sorbents would create an overly large
and unwieldy Schedule. There are
currently hundreds of different sorbents
available in the marketplace. Listing all
of these products on the Product
Schedule would increase the size of the
Schedule by a factor of at least two or
three This would create a significantly
less useful Product Schedule because of
the substantially increased quantity of
data thai OSCs would have to evaluate
in spt t1 situations,
“Copies of these data may be inspecied at the
public docket for this tulernaking
“Copies of these MSDSs may be inspected ai ihe
public docket for this rulemaking
“See Mark. Hannan and DonaLd Ottuner, ads,
Kirk.Othmer Encyclopedic of Chemical Technology.
lohn Wiley and Sons, New York. 1982. Goiselin.
Robed E . Roger P Sns,th, end Harold C. Hodge.
Clinical Toxicology of Commerc ial Products.
WIllisma and Wilkins, Baltimore. 1984 and
Windhole, Martha, ed The Merck mdcx. Merck &
Co ,lnc. Rahwey. NJ, 1983
Recent technological advances in the
Field of oil spill control agents have led
to the development of products that, in
some cases, are difficult to distinguish
between sorbents or spill control
chemicals. ln addition, several of the
products currently listed on the Product
Schedule under the miscellaneous oil
spill control agent category could be
considered “chemisorbents” and have
been informally referred to as sorbents
by their manufacturers. These products,
sped fically i’iscoelastic enhancing
agents. areadded to oil spills to alter the
physical behavior of the spilled oil and
thereby facilitate its removal
EPA would like to clarify that it
considers viscoelastic enhancing agents
to be spill control chemicals, and not
sorbents,’ These agents do not meet the
definition of sorbents being proposed to
be added to § 300.5. Consequently, these
agents will be listed on the Product
Schedule under the miscellaneous oil
spill control agent category.
EPA recognizes that evolving
technologies may result art the
production of sorbent materials that do
not necessarily fit the definition of
sorbents being proposed in § 300.5. In
such cases, EPA believes that it is
important and necessary for EPA to
review technical product data,
including toxicity data, for these sorbent
materials As a result, EPA is proposing
to add new § 300.91 5(g113). which
requires manufacturers of sorbent
materials that consist of materials other
than those listed in EPA’s definition of
sorbents to submit to EPA the technical
product data specified for miscellaneous
oil spill control agents in new
§ 300.915ffl, EPA will review these data
and determine whether specific sorbents
should he listed on the Product
Schedule under the miscellaneous oil
spill control agent category EPA will
inform sorbent manufacturers in
writing, within 60 days of the receipt of
the technical product data, ci its
decision. If EPA determines that a
specific sorbent material does not have
tobe listed on the Schedule, EPA will
provide a letter stating this decision to
the sorbent manufacturer. EPA is also
proposing to revise § 300S20(c) 10
include the technical product data
submissions for sorbents discussed
above under the provisions allowing
assertions of confidential business
information.
EPA is proposing to add new
§ 300 915(g$4). which requires
manufacturers of sorbent materials that
‘‘See itie classification of viscoelastic enhancing
agents. such sa Elastol. in the Oil Spilt !ntelligence
Peport—Thc lnrernisi:onal Oil Spi)l Control
Threctoiy, Eleverala Ed it ion 199:—fl, ceiter
Infonnaijon Corp. Arlington. MA
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Federal Register / Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
tonsist solely of the materials listed in
EPA’s definition of sorbents to sign a
written certification stating this fact.
When making a decision on the use of
a specific sorbent material, an OSC may
request a copy of this written
certification and the sorbent
manufacturer or vendor would have to
provide this certification to the OSC.
This new paragraph contains a model
statement that should be included in the
written certification. Any person who
knowingly and willfully provides any
false information as part of a sorbent
written certification may. upon
conviction, be fined and/or imprisoned
in accordance with 18 U.S.C. 1001. If
the sorbent material in question consists
of materials other than those listed in
EPAs definition of sorbents, but EPA
has determined that the sorbent does
not need to be listed on the Product
Schedule, the manufacturer or vendor
should provide to the OSC the letter
from EPA stating thu. fact.
In the past, EPA has received
complaints from sorbent manufacturers
that they are being put at a disadvantage
in the marketplace because their
products are not being listed on the
Product Schedule. EPA does not believe
that this is the case The listing of a
product on the Product Schedule does
not mean that EPA approves.
recommends, licenses, certifies, or
authorizes the use of that product on an
oil spill, rather, the listing of a product
means only that data have been
submitted to EPA as required by subpart
J of the NcP.
Section 311(d)(2)(G) of the CWA
requires that the NCP include a
schedule identifying “dispersants, other
chemicals, and other spilJ mitigating
devices and substances, if any, that may
be used in carrying out” the NCP. As
explained above, EPA does not interpret
“duspersants, other chemicals, and other
spill mitigating devices and substances”
to include sorbents and, therefore,
sorbents are not listed on the Product
Schedule This does not mean, however.
that sorbents cannot be used by OSCs in
response to discharges of oil. On the
contrary, the fact that sorbents are not
listed on the Product Schedule means
that OSCs can use these products
without being subject to the provisions
in § 300.910 governing the authorization
of use of products listed on the Product
Schedule. In order to clarify this, EPA
is proposing to add new § 300.915(g)(2),
which states that EPA does not require
technical product data submissions for
sorbents and does not include sorbents
on the NCP Product Schedule.
As stated above, EFA believes that the
use of sorbents, by themselves, does not
create deleterious effects to the
environment. However, EPA solicits
comment and information on whether
the improper use of these products
could result in negative environmental
effects.
Mixed Products
EPA is proposing to add new
§ 300.915(h). which would require that
manufacturers of products that consist
of materials that meet the definitions of
two or more of the product categories
contained on the Product Schedule
would have to submit to EPA the
technical product data specified for
each of those categories. For example,
the manufacturer of a product that
contains both dispersant and
bioremediation agent materials would
be required to submit to EPA the
technical product data specified for both
of these categories. In general, EPA
would handle mixed products on a case-
by-case basis and may not require that
all of the specified product data be
submitted. Consequently, EPA
recommends that manufacturers of
mixed products consult with EPA before
submitting any technical product data
For the example given above, EPA may
determine that, for the dispersant
material, only toxicity data is necessary.
After EPA has reviewed the submitted
technical product data and performed
any required duspersant effectiveness
and toxicity tests, if appropriate, it
would make a determination on
whether and under which category the
mixed product should be listed on the
Schedule.
Other Changes
EPA is proposing to revise the data
requirements in § 300.915 to update and
correct citations to specific testing
protocols. Section 300.915(aXll)(iii)
would be revised to state that EPA test
methods 601 (Purgeable Halocarbons
(Standard Method 6230 B)) and 606
(Organochlorine Pesticides and PCBs
(Standard Method 6630 C)) should be
used for chlorinated hydrocarbon
analyses. This change would clarify an
existing requirement in an attempt to
avoid the confusion experienced by
product manufacturers in the past. EPA
is also proposing to streamline the data
requirement language for surface
collecting agents aid miscellaneous oil
spill control agents in new paragraphs
(c)(8) and (f)(9) of § 300.915,
respectively, to reference the data
requirements for dispersants in
§ 300.915(a)(9), rather than listing the
exact same data requirements several
times for different product categories.
III. Regulatory Analysis
A. Executive Order 12291
E.O. 12291 requires that regulations
be classified as major or non-major for
purposes of review by the Office of
Management and Budget (0MB).
According to E.O. 12291, major rules are
regulations that are likely to result in:
(1) An annual effect on the economy
of $100 million or more; or
(2) A major increase in costs or prices
for consumers, individual industries,
federal, state, or local government
agencies, or geographic regions; or
(3) Significant adverse effects on
competition, employment, investment.
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreign.
based enterpnses in domestic or export
markets.
An economic analysis performed by
the Agency. available for inspection in
room M2427 at the U.S. Environmental
Protection Agency, 401 M Street, SW.,
Washington, DC 20460, shows that this
proposed rule is non-major because it
would result in estimated costs of
approximately $33.4 million during the
first year that the rule is in effect and
approximately $11.5 million in each
subsequent year. At a 10 percent interes’
rate over 10 years. the annualized cost
are approximately $16.2 million.
Virtually all costs are incurred by the
federal government and, in particular.
by the USCG and EPA
The economic analysis prepared in
support of this rule also includes a
qualitative assessment of the
environmental benefits associated with
the proposed revisions The NCP
revisions are expected to lead to
quicker, more efficient, and more
appropriate responses to discharges of
oil and releases of hazardous
substances. The benefits that would
result from such improvements (i.e.,
preventing oil spills from occurring or
mitigating the severity of the spills that
do occur) are assumed to be substantial.
Benefits include avoided clean-up costs
and natural resource damages as well as
reductions in other damages caused by
oil spills, such as damage to private
property. lost profit by business, public
health risks, and foregone existence/
option values. This proposed rule has
been submitted to 0MB for review as
required by E.0 12291.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
requires that a Regulatory Flexibility
Analysis be performed for all rules tha
are likely to have a “significant impact
on a substantial number of small
entities.” To determine whether a
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54735
Rigulatory Flexibility Analysis was
necessary for this proposed rule, a
preliminary analysis was conducted (see
the “Economic Impact Analysis of the
Proposed Revisions to the National Oil
and Hazardous Substance Pollution
Contingency Plan,” Chapter 5, October
1992, available for inspection in room
M2427 at the U.S. Environmental
Protection Agency. 401 M Street, SW..
Washington, DC 20460). The results of
the preliminary analysis indicate that
this proposed rule will not have
significant adverse impacts on small
businesses because such entities are
unlikely to be affected by revisions to
the federal planning and response
mechanism for pollution incidents,
Proposed revisions to subpart J would
impose certain additional requirements
on small manufacturers of dispersants
and bioremediation agents seeking to
list products on the NCP Product
Schedule. However, the analysis
revealed that the proposed revisions
would not significantly impact the
economic viability of such concerns as
tha market is currently structured.
Under the proposed rev] sions, certain
local government agencies Ie.g., LEPCs)
would be required to play a supporting
role in developing AGPs. The analysis
revealed that fulfilling this role would
not place a significant burden on a
substantial number of such entities,
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.
C. Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to 0MB
under tho Paperwork Reduction Act, 44
U.S.C. 3501 et seq. An Information
Collection Request (ICR) has been
prepared by EPA (ICR No. 1664.01) and
a copy may be obtained from Sandy
Fanner, Information Policy Branch
(PM—223Y), 13.5. Environmental
Protection Agency, 401 M Street, SW,
Washington, DC 20460, or by calling
(202) 260—2740. Tho collection of
information required to preparo and
submit materials for listing a product on
the NCP Product Schedule is estimated
to have a public reporting burden
varying from 12 to 36 hours per
response in the first year and
subsequent years. with art average of 25
hours per response. This includes time
to review instructions and guidance,
search existing data sources, gather and
maintain the data needed, and complete
and review the collection of
information. There is no record keeping
burden associated with listing a product
on the NGP Product Schedule.
Send comments regarding the burden
estimate or any other aspect of this
collection of in formation, including
suggestions for reducing this burden, to
Chief, Information Policy Branch (PM—
223Y), U.S. Environmental Protection
Agency, 401 M Street, SW, 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 “The
final rule will respond to any 0MB or
public comments on the information
collection requirements contained in
this proposal.
List of Subjects in 40 CFR Part 300
Air pollution control. Chemicals,
Hazardous materials, Hazardous
substances, Incorporation by reference.
Intergovernmental relations, Natural
resources, Occupational safety and
health, Oil pollution. Reporting and
recordkeeping requirements. Superfund.
Waste treatment and disposal, Water
pollution control, Water supply
Dated September 30, 1993
Carol M. Brewner,
Administrator
For the reasons set out in the
preamble, it is proposed to amend title
40, Part 300 of the Code of Federal
Regulations as follows-
PART 300—NATIONAL OIL AND
HAZARDOUS SUBSTANCES
POLLUTION CONTINGENCY PLAN
1. The authority citation for part 300
is revised to read as follows
Authority: 42 U SC 9601—9657.33 U SC
1321(d). E 0 11725. 38 FR 21243, Ł0
12580,52 FR 2923, Ł0. 12777, 56 FR 54757
2. Subparts A. B, C, D, G, H, and J are
revised, Subpart E is amended by
revising paragraph (a) of § 300.400, by
revising paragraph (a) and paragraph
(fl(3) of 300 405, and by revising
§ 5300 410 and 300.415
Subpart A—Introduction
Subpart B—ResponsibIlity and
OrganIzation for Response
300 100 Duties of President delegated to
federal agencies
300.105 General organization concepts
300 110 National Response Team
300 115 Regional Response Teams
300 120 On-scene coordinators end
remedial project managers General
responsibilities
300 125 Notification and communications
300.130 Determinations to initiate response
and special conditions
300.135 Response operations
300.140 Multi-regional responses
300,145 Special teams and other assistance
available to OSCsIRPMs
300.150 Worker health and safety.
300 155 Public information and community
relations.
300.160 Documentation and cost recovery
300.165 OSC reports
300 170 Federal agency participation
300.175 Federal agencies’ Additional
responsibilities and assistance
300 180 State and local participation in
response
300.165 Nongovernmental part icipation
Subpart C—PlannIng and Preparedness
300 200 General
300 205 Planning and coordination
structure
300 210 Federal contingency plans
300 212 Area response drills.
300 215 Title Ill local emergency response
plans
300 220 Related Title Ill issues
Subpart D—Operational Response Phases
tor 011 Removal
300.300 Phase I—Discovery or notification
300.305 Phase li—Preliminary assessment
and initiation of action
300.310 Phase Ill—Containment,
countermeasures, cleanup, and disposal
300 315 Phase tV—Documentation and coil
recovery
300 317 National response priorities
300 320 General pattern of response
300.322 Response to substantial threats to
public health or welfare
300 323 Spills of national significance
300 324 Response to worst case discharges
300 335 Funding
* * * t p
Subpart C—Trustees for Natural Resources
300 600 Designation of federal trustees
300 605 State trustees
300 610 Indian tribes
300 612 Foreign trustees
300 615 Responsibilities of trustees
Subpart H—ParticIpation by Other Persons
300 700 Activities by other persons
• . • * *
Subpart 4—Use of Dlspersants and Other
Chemicals
300.900 General
300 905 NCP Product Schedule
300 910 Authorization of use
300 915 Data requirements
300 920 Addition of products to schedule
* a * * *
Subpart A—Introduction
§ 300.1 Purpose and oblectives.
The purpose of the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP) is to provide
Sec
300 1
300 2
300 3
300 4
300 5
300 6
300 7
Purpose and obiectives
Authority and applicability
Scope.
Abbreviations
Definitions
Use of number and gender
Computation oI time.
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Federal Register I Vol. 58, No. 203 / Friday. October 22, 1993 / Proposed Rules
ilie organizational structure and
procedures for preparing for and
responding to discharges of oil and
releases of hazardous substances.
pollutants, and contaminants.
§ 300.2 AuthorIty and applicability.
The NCP is required by section 105 of
the Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980, 42 U.S.C. 9605, as amended
by the Superfund Amendments and
Reauthorization Act of 1986 (SARA),
Public Law 99—499, (hereinafter
CERCLA), and by section 311(d) of the
Clean Water Act (CWA), 33 U.s.c.
1321(d), as amended by the Oil
Pollution Act of 1990 (OPAL Public Law
101—380. In Executive Order (E.O.)
12777 (56 FR 54757, October 22, 1991).
the President delegated to the
Environmental Protection Agency (EPA)
the responsibility for the amendment of
the NCP. Amendments to the NC? are
coordinated with members of the
National Response Team (NRT) prior to
publication For notice and comment.
This includes coordination with the
Federal Emergency Management Agency
IFEMA) and the Nuclear Regulatory
Commission in order to avoid
inconsistent or duplicative requirements
in the emergency planning
responsibilities of those agencies. The
NC? is applicable to response actions
taken pursuant to the authorities under
CERCLA and section 311 of the CWA.
as amended.
§ 300.3 Scope.
(a) The NCP applies to and is in effect
for:
(1) Discharges of oil into or on the
navigable waters of the United States.
on the adjoining shorelines, the waters
of the contiguous zone, into waters of
the exclusive economic zone, or that
may affect natural resources belonging -
to. appertaining to, or under the
exclusive management authority of the
United States. (See sections 311(c)(1)
and 502(7) of the CWA.)
(2) Releases into the environment of
hazardous substances, and pollutants or
contaminants which may present an
imminent and substantial danger to
public health or welfare.
(b) The NCP provides for efficient,
coordinated, and effective response to
discharges of oil and releases of
hazardous substances, pollutants, and
contaminants in accordance with the
authorities of CERCLA and the CWA. It
provides for:
(1) The national response organization
that may be activated in response
actions. It specifies responsibilities
among the federal, state, and local
governments and describes resources
that are available for response.
(2) The establishment of requirements
for federal, regional, and area
contingency plans. It also summarizes
state and local emergency planning
requirements under SARA Title III.
(3) Procedures for undertaking
removal actions pursuant to section 311
of the CWA.
(4) Procedures for undertaking
response actions pursuant to CERCLA.
(5) Procedures for involving state
governments in the initiation,
development, selection, and
implementation of response actions.
pursuant to CERCLA.
(6) Designation of federal trustees for
natural resources for purposes of
CERCLA and the CWA.
(7) Procedures for the participation of
other persons in response actions.
(8) Procedures for compiling and
making available an administrative
record for response actions.
(9) National procedures for the use of
dispersants and other chemicals in
removals under the CWA and response
actions under cERCLA.
(C) In implementing the NO’,
consideration shall be given to
international assistance plans and
agreements, security regulations and
responsibilities based on international
agreements. federal statutes, and
executive orders. Actions taken
pursuant to the provisions of any
applicable international 1 oint
contingency plans shall be consistent
with the NCP, to the greatest extent
possible. The Department of State shall
be consulted, as appropriate, prior to
taking any action which may affect its
activities.
(d) Additionally. the NO’ applies to
and is in effect when the Federal
Response Plan and some or all its
Emergency Support Functions (ESFs)
are activated.
§ 300.4 AbbrevIations.
(a) Department and Agency Title
Abbreviations.
ATSDR—Agency for Toxic Substances end
Disease Registry
CDC—Centers for Disease Control
DOC—Departrnerit of Commerce
DOD—Department of Defense
DOE—Department of Energy
DOi—Department of the Interior
DOJ—Dcpartment of Justice
DOL—Department of Labor
DOS—Department cf State
DOT—Department of Transportation
EPA—Environmental Protection Agency
FEMA—Federal Emergency Management
Agency
GSA—General Services Administration
HHS—Departznent of Health and Human
Services
NIOSH—National institute for Occupational
Safety end Health
NOAA—National Oceanic end Atmospheric
Administration
RSPA—Researih and Special Programs
Administration
USC —’Uniied States COaSt Guard
USDA—U nited States Department of
Agriculture
Note: Reference is made in the NCP to both
the Nuclear Regulatory Commission and the
National Response Center In order to avoid
confusion, the NCP will spell cut Nuclear
Regulatory Commission and use the
abbreviation “NRC” only with respect to the
National Response Center.
(b) Operational Abbrevicfl,ons.
AC—Area Committee
ACP—Area Contingency Plan
ARAR5—Applicable or Relevant and
Appropriate Requirements
CERCLIS—CERCLA Information System
CRC—Community Relations Coordinator
CRP—Community Relations Plan
DRAT—District Response AdvLSory Team
DRG—District Response Group
ERT—Environ mental Response Team
ESF—Emergency Support Function
FCO— Federal Coordinating Officer
FRERP—Federal Radiological Emergency
Response Plan
FRP—Federat Response Plan
FS—Feasibility Study
HRS—Hazard Ranking System
LEPC—Local Emergency Planning Committee
NCP—National Contingency Plan
NPFC—Nationa) Pollution Funds Canter
NPL—National Priorities List
NRC—National Response Center
NRS—National Response System
NRT—Nationai Response Team
NSF—National Strike Force
NSFCC—National Strike Force Coordination
Center
O&M—Operation and Maintenance
OSC—On ’Scene Coordinator
OSLTF .—OiI Spill Liability Trust Fund
PA—Preliminary Assessment
PIAT—Public Information Assist Team
RA—Remedial Action
RCP—Regional Contingency Plan
RD—Remedial Design
RERT—Rudiological Emergency Response
Team
Ri—Remedial investigation
ROD—Record of Decision
RPM—Remedial Protect Manager
RRC—Regional Response Center
RRT—Regional Response Team
SAC—Support Agency Coordinator
SERC—Stale Emergency Response
Commission
Si—Site inspection
SMOA—Superfund Memorandum of
Agreement
SONS—Spill of National Significance
SSC—Scientific Support Coordinator
USFWS—United States Fish and Wildlife
Service
§300.5 DefinItions.
Terms not defined in this section ha
the meaning given by CERCLA, the
OPA, or the CWA.
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54737
Activation means notification by
telephone or other expeditious manner
or, when required, the assembly of some
or all appropriate members of the RRT
orNRT.
Alternative water supplies as defined
by section 101(34) of CERCLA, includes,
but is not limited to, drinking water and
household water supplies.
Applicable requirements means those
cleanup standards, standards of control,
and other substantive requirements,
criteria, or limitations promulgated
under federal environmental or state
environmental or facility siting laws
that specifically address a hazardous
substance, pollutant. contaminant,
remedial action, location, or other
circumstance Found at a CERCLA site.
Only those state standards that are
identified by a state in a timely manner
and that are more stringent than federal
requirements may be applicable.
Area Committee (AC) as provided for
by CWA sections 311(a1118) and (j)(4),
means the entity appointed by the
President consisting of members from
qualified personnel of federal, state, and
local agencies with responsibilities that
include preparing an area contingency
plan For an area designated by the
President.
Area contingency plan (AcP) as
provided for by CWA sections
311(a)(19) and (j)(4), means the plan
prepared by an Area Committee that is
developed to be implemented iii
conjunction with the NCP and RCP, in
part to address removal of a worst case
discharge and to mitigate or prevent a
substantial threat of such a discharge
from a vessel, offshore facility, or
onshore facility operating in or near an
area designated by the President
Bioremediatson agents means
microbiological cultures, enzyme
additives, or nutrient additives that are
deliberately introduced into an oil
discharge and that will significantly
increase the rate of biodegradation to
mitigate the effects of the discharge.
Burning agents means those additives
that, through physical or chemical
means, improve the combustibility of
the materials to which they are applied.
CERCLA is the Comprehensive
Environmental Response,
Compensation, and Liability Act of
1980, as amended by the Superfund
Amendments and Reauthorization Act
of 1986
CERCLIS is the abbreviation of the
CERCLA Information System, EPA’s
comprehensive data base and
management system that inventories
and tracks releases addressed or needing
to be addressed by the Superfund
program. CERCLIS contains the official
inventory of ERCLA sites and supports
EPA’s site planning and tracking
functions. Sites that EPA decides do not
warrant moving further in the site
evaluation process are given a “No
Further Response Action Planned”
(NFRAP) designation in c ERCLIS. This
• means that no additional federal steps
under ERCLA will be taken at the site
unless future information so warrants.
Sites are not removed from the data base
after completion of evaluations in order
to document that these evaluations took
place and to preclude the possibility
that they be needlessly repeated.
inclusion of a specific site or area in the
CERCLIS data base does not represent a
determination of any party’s liability,
nor does it represent a finding that any
response action is necessary. Sites that
are deleted from the NPL are not
designated NFRAP sites. Deleted sites
are listed in a separate category in the
CERCLIS data base.
Chemical agents means those
elements, compounds, or mixtures that
coagulate, disperse, dissolve, emulsify.
foam, neutralize, precipitate, reduce,
solubi iize, oxidize, concentrate, congeal.
entrap, fix, make the pollutant mass
more rigid or viscous, or otherwise
facilitate the mitigation of deleterious
effects or the removal of the pollutant
from the water Chemical agents include
biological additives, dispersants,
sinking agents. miscellaneous oil spill
control agents, and burning agents, but
do not include sorberits
Claim for purposes of a release under
cERCLA, means a demand in writing for
a sum certain; for purposes of a
discharge under CWA, it means a
request, made in writing for a sum
certain, for compensation for damages
or removal costs resulting From an
incident.
Claimant as defined by section 1001
of the OPA means any person or
government who presents a claim for
compensation under title I of the OPA
Coastal waters for the purposes of
classifying the size of discharges, means
the waters of the coastal zone except for
the Great Lakes and specified ports and
harbors on inland rivers.
Coastal zone as defined for the
purpose of the NCP, means all United
States waters subject to the tide, United
States waters of the Great Lakes,
specified ports and harbors on inland
rivers, waters of the contiguous zone,
other waters of the high seas subject to
the NCP, and the land surface or land
substrata, ground waters, and ambient
air proximal to those waters. The term
coastal zone delineates an area of
federal responsibility for response
action. Precise boundaries are
determined by EPA/USCG agreements
and identified in federal regional
contingency plans.
Coast Guard District Response Group
(DRG as provided for by CWA sections
311 (a)(20) and (j)(3). means the entity
established by the Secretary of the
department in which the USCG is
operating, within each USCG district,
and shall consist of: The combined
USCG personnel and equipment,
including marine rirelighting
equipment, of each port in the district;
additional propositioned response
equLpment; and a district response
advisory team.
Community relations means EPA’s
program to inform and encourage public
participation in the Superfund process
and to respond to community concerns.
The term “public” includes citizens
directly affected by the site, other
interested citizens or parties, organized
groups, elected officials, and potentially
responsible parties
Community relations coorthnato)
means lead agency staff who work with
the USC/RPM to involve and inform the
public about the Superfund process and
response actions in accordance with the
interactive community relations
requirements set forth in the Ne!’.
Contiguous zone means the zone of
the high seas, established by the United
States under Article 24 of the
Convention on the Territorial Sea and
Contiguous Zone, which is contiguous
to the territorial sea and which extends
nine miles seaward from the outer limit
of the territorial sea
Cooperative agreement is a legal
instrument EPA uses to transfer money,
property, services, or anything of value
to a recipient to accomplish a public
purpose in which substantial EPA
involvement is anticipated during the
performance of the project.
Damages as defined by section 1001
of the OPA means damages specified in
section 1002(b) of the Act, and includes
the cost of assessing these damages
Discharge as defined by Section
311(a)(2) of the CWA. includes, but is
not limited to, any spilling, leaking,
pumping, pouring, emitting, emptying,
or dumping of oil, but excludes
discharges in compliance with a permit
under section 402 of the CWA,
discharges resulting from circumstances
identified and reviewed and made a part
of the public record with respect to a
permit issued or modified under section
402 of the CWA, and subject to a
condition in such permit, or continuous
or anticipated intermittent discharges
from a point source, identified in a
permit or permit application under
section 402 of the CWA, that are caused
by events occurring within the scope of
relevant operating or treatment systems
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54739
effective and effl ient communication
between the OSC and the other federal
natural resource trustees during
response operations and is responsible
for applying to the OSC for access to
federal response resources on behalf of
all trustees for initiation of damage
assessment and claims for injuries to
natural resources.
Lead agency means the agency that
provides the OSC/RPM to plan and
implement response actions under the
NCP. EPA, the USCG, another federal
agency, or a state (or political
subdivision of a state) operating
pursuant to a contract or cooperative
agreement executed pursuant to section
104(dlil) of CERCLA, or designated
pursuant to a Superfund Memorandum
of Agreement (SMOA) entered into
pursuant to subpart F of the NCP or
other agreements may be the lead
agency for a response action. In the case
of a release of a hazardous substance,
pollutant, or contaminant, where the
release is on, or the sole source of the
release is from, any facility or vessel
under the jurisdiction, custody, or
control of Department of Defense (DOD)
orDepartrnent of Energy (DOE), then
DOD or DOE will be the lead agency.
Where the release is on, or the sole
source of the release is from, any facility
or vessel under the jurisdiction,
custody. or control of a federal agency
other than EPA, the USCG, DOD, or
DOE, then that agency will be the lead
agency for remedial actions and removal
actions other than emergencies. The
federal agency maintains its lead agency
responsibilities whether the remedy is
selected by the federal agency for non-
NFL sites or by EPA and the federal
agency or by EPA alone under CERCLA
section 120 The lead agency will
consult with the support agency, if one
exists, throughout the response process.
Management of migration means
actions that are taken to minimize and
mitigate the migration of hazardous
substances or pollutants or
contaminants and the effects of such
migration. Measures may include, but
are not limited to. management of a
plume of contamination, restoration of a
drinking water aquifer. or surface water
restoration.
Miscellaneous oil spill control agent is
any product, other than a dispersant.
sinking agent, surface washing agent,
surface collecting agent, bioremediation
agent, burning agent, or sorbent that can
be used to enhance oil spill cleanup,
removal, treatment, or mitigation.
Notional Pollution Funds Center
(NPFC) means the entity established by
the Secretary of Transportation whose
function is the administration of the Oil
Spill Liability Trust Fund (OSLTF).
Among the NPFC’s duties are: PToviding
appropriate access to the OSLTF for
federal agencies and states for removal
actions and for federal trustees to
initiate the assessment of natural
resource damages; providing
appropriate access to the OSLTF for
claims; and coordinating cost recovery
efforts.
National Priorities List (NPL) means
the list, compiled by EPA pursuant to
CERCLA section 105, of uncontrolled
hazardous substance releases in the
United States that are priorities for long-
term remedial evaluation end response.
Notional response system (NRS) is the
mechanism for coordinating response
actions by all levels of government in
support of the OSC/RPM. The NRS is
composed of the NRT, RRTs, OSCIRPM,
1RPM. Area Committees, and Special
Teams and related support entities.
During oil spill response or a hazardous
substance removal action, the NRS
functions aa i - nci4eee umand
system-tICS ) under the direction of the
OSC. Typical ciLsn-l S , the NRS is
capable of expanding or ’ ontracting to
accommodate the response effort
required by the size or complexity of the
discharge or release.
National Stake Force (NSF) isa
special team established by the USCG,
including the three USCG Strike Teams,
the Public In formation Assist Team
(PIAT), and the National Strike Force
Coordination Center. The NSF is
available to assist OSCs/RPMs in their
preparedness and response duties.
National Strike Force Coordination
Center (NSFCCI, authorized as the
National Response Unit by CWA
sections 311 (a)(23) and (j)(2), means the
entity established by the Secretary of the
department in which the USCG is
operating at Elizabeth City, North
Carolina with responsibilities that
include administration of the USCG
• Strike Teams, maintenance of response
equipment inventories and logistic
networks, and conducting a national
exercise program.
Nat urn! resources means land, fish,
wildlife, biota, air, water, ground water,
drinking water supplies, and other such
resources belonging to, managed by,
held in trust by, appertaining to. or
otherwise controlled by the United
States (including the resources of the
exclusive economic zone defined by the
Magnuson Fishery Conservation and
Management Act of 1976), any state or
local government, any foreign
government, any Indian tribe, or, if such
resources are subject to a trust
restriction on alienation, any member of
an indian tribe.
Navigable waters as defined by 40
CFR 110.1, means the waters of the
United States, including the territorial
seas. The term includes’
(a) All waters that are currently used,
were used in the past, or may be
susceptible to use in interstate or foreign
commerce, including all waters that are
subject to the ebb and flow of the tide;
(b) Interstate waters, including
interstate wetlands:
(c) All other waters such as intrastate
lakes, rivers, streams (including
intermittent streams), mudflats,
sandflats, and wetlands, the use,
degradation, or destruction of which
would affect or could affect interstate or
foreign commerce including any such
waters:
(1) That are or could be used by
interstate or foreign travelers for
recreational or other purposes:
(a) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce,
(3) That are used or could be used for
industrial purposes by industries in
interstate commerce,
(dl All impoundments of waters
otherwise defined as navigable waters
under this section;
(e) Tributaries of waters identified in
paragraphs (a) through (d) of this
definition, including adjacent wetlands;
and
(f) Wetlands adiacent to waters
identified in paragraphs (a) through te)
of this definition’ Provided, that waste
treatment systems (other than cooling
ponds meeting the criteria of this
paragraph) are not waters of the United
States.
Offshore facility as defined by section
101(17) of CERCLA and section
311(a)(11) of the CWA, 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 which 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,
Oil as defined by section 311(a)(1)of
the CWA, means oil of any kind or in
any form, including, but not limited to,
petroleum, fuel oil, sludge, oil refuse,
and oil mixed with wastes other than
dredged spoil Oil, as defined by section
1001 of the OPA means oil of any kind
or in any form, including, but not
limited to, petroleum. fuel oil, sludge,
oil refuse, and oil mixed with wastes
other than dredged spoil, but does not
include petroleum, including crude oil
or any fraction thereof, which is
specifically listed or designated as a
hazardous substance under
subparagraphs (A) through (F) of section
101(14) of the Comprehensive
Environmental Response,
Compensation, and Liability Act (42
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U.s.c. 9601) and which is subject to the
provisions of that Act.
Oil Spill Liability Trust Fund (OSLTF)
means the fund established under
section 9509 of the Internal Revenue
Code of 1986 (26 U.S.C. 9509).
Qii.scene coordinator (USC) means
the federal official predesignated by
EPA or the USCG to coordinate and
direct federal responses under subpart
D, or the official designated by the lead
agency to coordinate and direct removal
actions under subpart E of the N P.
Onshore facility as defined by section
101(18) of cERCLA, means any facility
(including, but not limited to. motor
vehicles and rolling stock) of any kind
located in. on. or under any land or non.
navigable waters within the United
States: and, as defined by section
311(a)(10) of the CWA. means any
facility (including, but not limited to,
motor vehicles and rolling stock) of any
kind located in. on. or under any land
within the United States other than
submerged land
On-site means the areal extent of
contamination and all suitable areas in
very close proximity to the
contamination necessary for
implementation of the response action
Operable unit means a discrete action
that comprises an incremental step
toward comprehensively addressing site
problems. This discrete portion of a
remedial response manages migration.
or eliminates or mitigates a release,
threat of a release, or pathway of
exposure. The cleanup of a site can be
divided into a number of operable units.
depending on the complexity of the
problems associated with the site
Operable units may address
geographical portions of a site, specific
site problems, or initial phases of an
action, or may consist of any set of
actions performed over time or any
actions that are concurrent but located
in different ports of a site.
Operation and maintenance (O&M)
means measures requLred to maintain
the effectiveness of response actions
Person as defined by section 101(21)
of CERCLA. means an individual, firm,
corporation, association, partnership.
consortium, joint venture, commercial
entity, United States government, state,
municipality, commission, political
subdivision of a state. or any interstate
body. As defined by section 1Q01 of the
OPA, person means an individual,
corporation, partnership, association,
state, municipality, comrrnssion, or
political subdivision of a state, or any
interstate body.
Pollutant or contaminant as defined
by section 101(33) of cERCLA, shall
include, but not be limited to, any
element, substance, compound. or
mixture, including disease-causing
agents, which after release into the
environment and upon exposure,
ingestion, inhalation, or assimilation
into any organism, either directly from
the environment or indirectly by
ingestion through food chains, will or
may reasonably be anticipated to cause
death, disease, behavioral abnormalities,
cancer, genetic mutation, physiological
malfunctions (including malfunctions in
reproduction) or physical deformations,
in such organisms or their offspring.
The term does not include petroleum.
including crude oil or any fraction
thereof which is not otherwise
specifically listed or designated as a
hazardous substance under section
101(14) (A) through (F) of CERCLA, nor
does it include natural gas, liquified
natural gas, or synthetic gas of pipeline
quality (or mixtures of natural gas and
such synthetic gas). For purposes of the
NC ?, the term pollutant or contaminant
means any pollutant or contaminant
that may present an imminent and
substantial danger to public health or
welfare.
Post-removal site control means those
activities that are necessary to sustain
the integrity of a Fund.fInanced removal
action following its conclusion. Post-
removal site control may be a removal
or remedial action under CERCLA. The
term includes, without being limited to.
activities such as relighting gas flares,
replacing filters, and collecting leachate.
Preliminary assessment (PA) under
CERCLA means review of existing
information and an off-site
reconnaissance, if appropriate, to
determine if a release may require
additional investigation or action. A PA
may include an on-site reconnaissance,
if appropriate.
Public participation, see the
definition for community relations.
Public vessel as defined by section
311(a)(4) of the CWA, means a vessel
owned or bareboat-chartered and
operated by the United States, or by a
state or political subdivision thereof, or
by a foreign nation, except when such
vessel is engaged in commerce.
Quality assurance project plan
(QAPP) is a written document,
associated with all remedial site
sampling activities, which presents in
specific terms the organization (where
applicable). objectives, functional
activities, and specific quality assurance
(QA) and quality control (QC) activities
designed to achieve the data quality
objectives of a specific project(s) or
continuing operation(s). The QAPP is
prepared for each specific project or
continuing operation (or group of
similar prolects or continuing
operations). The QAPP will be prepared
by the responsible program offIce,
regional office, laboratory, contractor,
recipient of an assistance agreement, or
other organization. For an enforcement
action, potentially responsible parties
may prepare a QAPP subject to lead
agency approval.
Release as defined by section 101(22)
of cERCLA, means any spilling, leaking,
pumping, pouring, emitting. emptying,
discharging. injecting, escaping.
leaching, dumping, or disposing into the
environment (including the
abandonment or discarding of barrels,
containers, and other closed receptacles
containing any hazardous substance or
pollutant or contaminant), but exctudes:
Any release which results in exposure
to persons solely within a workplace,
with respect to a claim which such
persons may assert against the employer
of such persons: emissions from the
engine exhaust of a motor vehicle,
rolling stock, aircraft, vessel, or pipeline
pumping station engine: release of
source, byproduct, or special nuclear
material from a nuclear incident, as
those terms are defined in the Atomic
Energy Act of 1954, if such release is
subject to requirements with respect to
financial protection established by the
Nuclear Regulatory Commission under
section 170 of such Act, or, for the
purposes of section 104 of CERCLA or
any other response action, any release of
source, byproduct. or special nuclear
material from any processing site
designated under section 102(a)(i) or
302(a) of the Uranium Mill Tailings
Radiation Control Act of 1978: and the
normal application of fertilizer For
purposes of the NC?, release also means
threat of release.
Relevant and appropriate
requirements means those cleanup
standards, standards of control. and
other substantive requirements, criteria.
or limitations promulgated under
federal environmental or state
environmental or facility siting laws
that, while not “applicable” to a
hazardous substance, pollutant,
contaminant, remedial action, location,
or other circumstance at a ERCLA site.
address problems or situations
sufficiently similar to those encountered
at the ERCLA site that their use is well
suited to the particular site. Only those
state standards that are identified in a
timely manner and are more stringent
than federal requirements may be
relevant and appropriate.
Remedial design (RD) means the
technical analysis and procedures
wh .h follow the selection of remedy for
a site and result in a detailed set of
plans and specifications for
implementation of the remedial action.
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-Remedial investigation (RI) is a
process undertaken by the lead agency
to determine the nature and extent of
the problem presented by the release.
The RI emphasizes data collection and
site characterization, and is generally
performed concurrently and in an
interactive fashion with the feasibility
study. The RI includes sampling and
monitoring, as necessary, and includes
the gathering of sufficient information to
determine the necessity for remedial
action and to support the evaluation of
remedial alternatives.
Remedial project manager (RPM)
means the official designated by the
lead agency to coordinate, monitor, or
direct remedial or other response
actions under subpart E of the NCP.
Remedy or remedial action (RA)
means those actions consistent with
permanent remedy taken instead of. or
in addition to, removal action in the
event of a release or threatened release
of a hazardous substance into the
environment, to prevent or minimize
the release of hazardous substances so
that they do not migrate to cause
substantial danger to present or future
public health or welfare or the
environment. The term includes, but is
not limited to, such actions at the
location of the release as storage.
confinement, perimeter protection using
dikes, trenches, or ditches, clay cover,
neutralization, cleanup of released
hazardous substances and associated
contaminated materials, recycling or
reuse, diversion, destruction.
segregation of reactive wastes, dredging
or excavations, repair or replacement of
leaking containers, collection of
leachate and runoff, on-site treatment or
incineration, provision of alternative
water supplies, any monitoring
reasonably required to assure that such
actions protect the public health and
welfare and the environment arid, where
appropriate, post-removal site control -
activities. The term includes the costs of
permanent relocation of residents and
businesses and community facilities
(including the cost of providing
“alternative land of equivalent value” to
an Indian tribe pursuant to CERCLA
section 126(b)) where EPA determines
that, alone or in combination with other
measures, such relocation is more cost-
effective than, and environmentally
preferable to. the transportation, storage,
treatment, destruction, or secure
disposition off .site of such hazardous
substances, or may otherwise be
necessary to protect the public health or
welfare; the term includes off-site
transport and off-site storage. treatment.
destruction, or secure disposition of
hazardous substances and associated
contaminated materials. For the purpose
of the N P. the term also includes
enforcement activities related thereto
Remove or removal as defined by
section 311(a)(8) of the CWA, refers to
containment and removal of oil or
h 9 zardous substances from the water
and shorelines or the taking of such
other actions as may be necessary to
minimize or mitigate damage to the
public health or welfare (including, but
not limited to, fish, shellfish, wildlife,
public and private property, and
shorelines and beaches) or to the
environment. For the purpose of the
NcP, the term also includes monitoring
of action to remove a discharge. As
defined by section 101(23) of CERCLA.
remove or removal means the cleanup
or removal of released hazardous
substances from the environment; such
actions as may be necessary taken in the
event of the threat of release of
hazardous substances into the
environment; such actions as may be
necessary to monitor, assess, and
evaluate the release or threat of release
of hazardous substances; the disposal of
removed material, or the taking of such
other actions as may be necessary to
prevent, minimize, or mitigate damage
to the public health or welfare or to the
environment, which may otherwise
result from a release or threat of release.
The term includes, in addition, without
being limited to. security fencing or
other measures to limit access.
provision of alternative water supplies,
temporary evacuation and housing of
threatened individuals not otherwise
provided for, action taken under section
104(b) of CERCLA, post-removal site
control, where appropriate, and any
emergency assistance which may be
provided under the Disaster Relief Act
of 1974. For the purpose of the NC?. the
term also includes enforcement
activities related thereto.
Removal costs as defined by section
1001 of the OPA, means the costs of
removal that are incurred after a
discharge of oil has occurred, or in any
case in which there is a substantial
threat of a discharge of oil, the costs to
prevent, minimize, or mitigate oil
pollution from such an incident
Respond or response as defined by
section 101(25) of CERCLA. means
remove, removal, remedy, or remedial
action, including enforcement activities
related thereto
Responsible party as defined by
section 1001 of the OPA, means the
following:
(a) Vessels—In the case of a vessel,
any person owning, operating, or
demise chartering the vessel
(b) Onshore facilities—In the case of
an onshore facility (other than a
pipeline), any person owning or
operating the facility, except a federal
agency, state, municipality,
commission, or political subdivision of
a state, or any interstate body. that as
the owner transfers possession and right
to use the property to another person by
lease, assignment. or permit.
(c) Of/shore facilities—In the case of
an offshore facility (other than a
pipeline or a deepwater port licensed
under the Deepwater Port Act of 1974
(33 U.S.C. 1501 et seq.)), the lessee or
permittee of the area in which the
facility is located or the holder cia right
of use and easement granted under
applicable state law or the Outer
Continental Shelf Lands Act (43 U.S.C
1301—1356) for the area in which the
facility is located (if the holder is a
different person than the lessee or
perrnittee). except a federal agency,
state, municipality, commission, or
political subdivision of a state, or any
interstate body, that as owner transfers
possession and right to use the property
to another person by lease, assignment,
or permit.
(d) Deepwoter ports—In the case of a
deepwater port licensed under the
Deepwater Port Act of 1974 (33 U S C
1501—1524), the licensee.
(e) Pipelines—In the case of a
pipeline, any person owning or
operating the pipeline
(fl Abandonment—In the case of an
abandoned vessel, onshore facility,
deepwater port, pipeline, or offshore
facility, the persons who would have
been responsible parties immediately
prior to the abandonment of the vessel
or facility
SARA is the Superfund Amendments
and Reauthorization Act of 1986 In
addition to certain free-standing
provisions of law, it includes
amendments to CERCLA. the Solid
Waste Disposal Act, and the Internal
Revenue Code Among the free-standing
provisions of law is Title Ill of SARA,
also known as the “Emergency Planning
and Community Right-to-Know Act of
1986” and Title IV of SARA, also known
as the “Radon Gas and Indoor Air
Quality Research Act of 1986 “Title V
of SARA amending the Internal Revenue
Code is also known as the “Superfund
Revenue Act of 1986.”
Sinking agents means those additives
applied to oil discharges to sink floating
pollutants below the water surface.
Site inspection (SI) means an on-site
investigation to determine whether
there is a release or potential release and
the nature of the associated threats The
purpose i to augment the data collected
in the preliminary assessment and to
generate, if necessary, sampling and
other field data to determine if further
action or investigation is appropriate
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Size classes of discharges refers to the
Following size classes of oil discharges
which are provided as guidance to the
OSC and serve as the criteria for the
actions delineated in subpart D of this
part. They are not meant to imply
associated degrees of hazard to public
health or welfare, nor are they a
measure of environmental injury. Any
oil discharge that poses a substantial
threat to public health or welfare or the
environment or results in significant
public concern shall be classified as a
major discharge regardless of the
following quantitative measures:
(a) Minor discharge means a discharge
to the inland waters of less than 1,000
gallons of oil or a discharge to the
coastal waters of less than 10.000
gallons of oil.
(b) Medium discharge means a
discharge of 1,000 to 10,000 gallons of
oil to the inland waters or a discharge
of 10,000 to 100,000 gallons of oil to the
coastal waters.
Ic) Major discharge means a discharge
of more than 10,000 gallons of oil to the
inland waters or more than 100,000
gallons of oil to the coastal waters.
Size classes of releases refers to the
following size classifications which are
provided as guidance to the OSC for
meeting pollution reporting
requirements in subpart B of this part.
The final determination of the
appropriate classification of a release
will be made by the OSC based on
consideration of the particular release
(e.g., size, location, impact, etc.):
(a) Minor release means a release of a
quantity of hazardous substance(s),
pollutant(s), or contaminant(s) that
poses minimal threat to public health or
welfare or the environment.
(b) Medium release means a release
not meeting the cntena for classificaticin
as a minor or major release.
(c) Mojor release means a release of
any quantity of hazardous substance(s),
pollutant(s), or contaminant(s) that
poses a substantial threat to public
health or welfare or the environment or
results in significant public concern
Sorbents means essentially inert and
insoluble materials that are used to
remove oil and hazardous substances
from water through adsorption. in
which the oil or hazardous substance is
attracted to the sorbent surface and then
adheres to it; absorption, in which the
oil or hazardous substance penetrates
the pores of the sorbent material; or a
combination of the two. Sorbents are
generally manufactured in particulate
form for spreading over an oil slick or
as sheets, rolls, pillows, or booms. The
sorbent material may consist of, but is
not limited to, the following materials:
(a) Organic products —
( 1) Peat moss or straw;
(2) Cellulose fibers or cork;
(3) Corn cobs;
(4) Chicken, duck, or other bird
feathers.
(b) Mineral compounds—
( 1) Volcanic.ash or perlite;
(2) Vermiculite or zeolite.
(c) Synthetic products—
(1) Polypropylene;
(2) Polyethylene;
(3) Polyurethane;
(4) Polyester.
Source control action is the
construction or installation and start-up
of those actions necessary to prevent the
continued release of hazardous
substances or pollutants or
contaminants (primarily from a source
on top of or within the ground, or in
buildings or other structures) into the
environment.
Source control maintenance measures
are those measures intended to maintain
the effectiveness of source control
actions once such actions are operating
and functioning properly, such as the
maintenance of landfill caps and
leachate collection systems.
Specified ports and harbors means
those ports and harbor areas on inland
rwers, and land areas immediately
adjacent to those waters, where the
USCG acts as predesignated on-scene
coordinator. Precise locations are
determined by EPAFUSCG regional
agreements and identified in Federal
Regional Contingency Plans and Area
Contingency Plans.
Spill of national significance (SONS)
means a spill that due to Its severity.
size, location, actual or potential impact
on the public health and welfare or the
environment, or the necessary response
effort, is so complex that it requires
extraordinary coordination of federal,
state, local, and responsible party
resources to contain and cleanup the
discharge.
State means the several states of the
United States, the District of Columbia,
the Commonwealth of Puerto Rico,
Guam, American Samoa, the U.S. Virgin
Islands, the Commonwealth of the
Northern Marianas and any other
territory or possession over which the
United States has jurisdiction. For
purposes of the NCP, the term includes
Indian tribes as defined in the NCP
except where specifically noted. Section
126 of CERCLA provides that the
governing body of an Indian tribe shall
be afforded substantially the same
treatment as a state with respect to
certain provisions of CERCLA. Section
300.515(b) of tue NO’ describes the
requirements pertaining to Indian tribes
that wish to be treated as states under
cERci A.
Superfund Memorandum of
Agreement (SMOA) means a
nonbinding, written document executed
by an EPA Regional Administrator and
the head of a state agency that may
establish the nature and extent of EPA
and state interaction during the
removal, pre-remedial, remedial, andlor
enforcement response process. The
SMOA is not a site-specific document
although attachments may address
specific sites. The SMOA generally
defines the role and responsibilities of
both the lead and the support a encies.
Supe4und state con tract is a joint,
legally binding agreement between EPA
and a state to obtain the necessary
assurances before a federal-lead
remedial action can begin at a site. In
the case of a political subdivision-lead
remedial response, a three-party
Superfund state contract among EPA,
the state. and political subdivision
thereof, is required before a political
subdivision takes the lead for any phase
of remedial response to ensure state
involvement pursuant to section
121 ( 1 1(1) of CERCLA. The Superfund
state contract may be amended to
provide the state’s CERCLA section 104
assurances before a political subdivision
can take the lead for remedial action.
Support agency means the agency or
agencies that provide the support
agency coordinator to furnish necessary
data to the lead agency, review response
data and documents, and provide other
assistance as requested by the OSC or
RPM. EPA, the USCC, another federal
agency, or a state may be support
agencies for a response action if
operating pursuant to a contract
executed under section 104(d)(1) of
fIRCLA or designated pursuant to a
Superfund Memorandum of Agreement
entered into pursuant to subpart F of the
NCP or other agreement. The support
agency may also concur on decision
documents.
Support agency coordinator (SAC)
means the official designated by the
support agency, as appropriate, to
interact end coordinate with the lead
agency in response actions under
subpart E of this part.
Surface collecting agents means those
chemical agents that form a surface film
to control the layer thickness of oil.
Surface washing agent is any product
that removes oil from solid surfaces,
such as beaches and rocks, through a
detergency mechanism and does not
involve dispersing or solubilizing the oil
into the water column.
Tank vessel as defined by section
1001 of the OPA means a vessel that is
constructed or adapted to carry, or that
carries oil or hazardous material in bulk
as cargo or cargo residue, and that: (1)
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Is a vessel of the United States; (2)
operates on the navigable waters; or (3)
transfers oil or hazardous material in a
place sublect to the hurls diction of the
United States.
Threat of discharge or release, see
definitions for discharge and release.
Threat of release, see definition for
release
Treatment technology means any unit
operation or series of unit operations
that alters the composition of a
hazardous substance or pollutant or
contaminant through chemical.
biological, or physical means so as to
reduce toxicIty, mobility, or volume of
the contaminated materials being
treated. Treatment technologies are an
alternative to land disposal of hazardous
wastes without treatment.
Trustee means an official of a federal
natural resources management agency
designated in subpart C of the NC? or
a designated ’state official or Indian tribe
or. in the case of discharges covered b
the OPA, a foreign government officia,
who may pursue claims for damages
under section 107(0 of CERCLA or
section 1006 of the OPA.
United States when used in relation to
section 311(a)(5) of the CWA, means the
states, the District of Columbia, the
Commonwealth of Puerto Rico, the
Northern Mariana Islands, Guam,
American Samoa, the United States
Virgin Islands, and the Pacific Island
Governments. United States, when used
in relation to section 101(27) of GERCLA
and section 1001(36) of the OPA,
includes the several states of the United
States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam,
American Samoa, the United States
Virgin Islands. the Commonwealth of
the Northern Mananas, and any other
territory or possession over which the
United States has jurisdiction.
Vessel as defined by section 101(28)
of CERCLA, means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a
means of transportation on water: and,
as defined by section 311(a)(3) of the
CWA, means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a
means of transportation on water other
than a public vessel.
Volunteer means any individual
accepted to perform services by the lead
agency which has authonty to accept
volunteer services (examples: See 16
U.S.C 742f(c)). A volunteer is subject to
the provisions of the authorizing statute
and the NC?.
Worst case discharge as defined by
section 311(a)(24) of the CWA, means,
in the case of a vessel, a discharge in
adverse weather conditions of its entire
cargo. and, in the case of an offshore
facility or onshore facility, the largest
foreseeable discharge in adverse
weather conditions.
§ 300.6 Use of number end gender.
As used in this regulation, words in
the singular also include the plural and
words in the masculine gender also
include the feminine and vice versa, as
the case may require
§300.7 Computation of time.
In computing any period of time
prescribed or allowed in these rules of
practice. except as otherwise provided,
the day of the event from which the
designated period begins to run shall
not be included. Saturdays, Sundays,
and federal legal holidays shall be
included. When a stated time expires on
a Saturday, Sunday, or legal holiday, the
stated time period shall be extended to
include the next business day.
Subpart B—Responsibility and
Organization for Response
§ 300.100 Duties of President delegated to
federal agencies.
In Executive Orders 12580 and 12777,
the President delegated certain
functions and responsibilities vested in
him by the CWA, cERCLA. and the
OPA
§ 300.105 General organization concepts.
(a) Federal agencies should
(1) Plan for emergencies and develop
procedures for addressing oil discharges
and releases of hazardous substances.
pollutants, or contaminants,
(2) Coordinate their planning,
preparedness, and response activities
with one another,
(3) Coordinate their planning,
preparedness. and response activities
with affected states, local governments,
and private entities; and
(4) Make available those facilities or
resources that may be useful in a
response situation, consistent with
agency authorities and capabilities.
(b) Three fundamental kinds of
activities are performed pursuant to the
NC ?:
(1) Preparedness planning arid
coordination for response to a discharge
of oil or release of a hazardous
substance, pollutant, or contaminant;
(2) Notification and communications,
and
(3) Response operations at the scene
of a discharge or release
(C) The organizational elements
created to perform these activities are
(1) The National Response Team
INRT), responsible for national response
and preparedness planning, for
coordinating regional planning. and for
providing policy guidance and support
to the Regional Response Teams (RRTs)
NRT membership consists of
representatives from the agencies
specified in § 300.175(b).
(2) R.RTs, responsible for regional
planning arid preparedness activities
before response actions, and for
providing advice and support to the
OSC or RPM when activated during a
response, RRT membership consists of
designated representatives from each
federal agency participating in the NRT
together with state and (as agreed upon
by the states) local government
representatives.
(3) The OSC and the RPM, primarily
responsible for directing response
efforts and coordinating all other efforts
at the scene of a discharge or release
The other responsibilities of OSCs and
RPMs are described in § 300.135.
(4) Area Committees, responsible for
developing, under direction of the OSC.
Area Contingency Plans (ACPs) for each
area designated by the President,
Responsibilities of Area Committees are
described in § 300.205(c).
(d)(1) The organizational concepts of
the national response system are
depicted in the following Figure 1
BILLJNO CODE 6360.60-P
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54744
Federal Register / Vol. 58, No. 203 / Friday, October 22. 1993 I Proposed Rules
Figure 1
National Response System Concepts
• The same federal agencies parbcipate on both the Na onal Response Team (NRT)
and the Regional Response Team (RRT). Federal agencies on the RRT are
represanled by regional staff. Abbreviations used In th figure are e Ialned
In §3004
Discharge or
Release Incident
I -
plannIng & preparedness
§300.205
s coot W 4
-------
Figure 2-- Standard Regional Boundaries for Ten Regions
1:4
0
GUAM
NORTHERN MARIANA
ISLANOS
PACIFiC ISLAND
GOVERNMENTS
AMERICAN & UOR
11
I
BIWNO cOOE ss.o-oo-c
VIRGIN 1ANO6
PUERTO RICO
c i
-------
Figure 3 —
U.S. Coast Guard Districts
Atlantic and Pacific Area Commands
Guam
Nothsm IIariu a Islands
P Island Go mm.nts
Arnsrlcan Samoa
h District
I Honolulu
C
7th District
Miami
PuenD Rkx
Wgin Islands
I
CA)
CD
C,)
C)
CA
0
0 -
pa
CD
CA
pa
CA
U’
C,
a
C,
1
I
SILIJIG c ‘ c
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Federal Register / Vol. 58, No. 203 1 Friday, October 22, 1993 / Proposed Rules
54747
- S 300.110 NatIonal Response Team.
National planning and coordination is
accomplished through the NRT.
(a) The NRT consists of
representatives from the agencies named
in § 300 175(b) Each agency shalt
designate a member to the team and
sufficient alternates to ensure
represent at ion, as agency resources
permit. The NRT will consider requests
for membership on the NRT from other
agencies. Other agencies may request
membership by forwarding such
requests to the chair of the NRT.
(b) The chair of the NRT shalt be the
representative of EPA and the vice chair
shall be the representative of the USCG,
with the exception of periods of
activation because of response action.
During activation, the chair shall be the
member agency providing the OSC/
RPM, The vice chair shall maintain
records of NRT activities along with
national, regional, and area plans for
response actions.
(c) While the NET desires to achieve
a consensus on alt matters brought
before it, certain matters may prove
unresolvable by this means In such
cases, each agency serving as a
participating agency on the NRT maybe
accorded one vote in NRT proceedings.
(d) The NET may establish such
bylaws and committees as it deems
appropriate to further the purposes for
which it is established.
Ce) The NET shall evaluate methods of
responding to discharges or releases.
shalt recommend any changes needed in
the response organization, and shall
recommend to the Administrator of EPA
changes to the NCP designed to improve
the effectiveness of the national
response system, including drafting of
regulatory language
(1) The NRT shall provide policy and
program direction to the RRTs
(g) The NRT may consider and make’
recommendations to appropriate
agencies on the training, equipping, and
protection of response teams and
necessary research, development,
demonstration, and evaluation to
improve response capabilities.
(h) Direct planning and preparedness
responsibilities of the NRT include
(1) Maintaining national preparedness
to respond to a major discharge of oil or
release of a hazardous substance,
pollutant, or contaminant that is beyond
regional capabilities;
(2) Publishing guidance documents
for preparation and imp lementation of
SARA Title lit local emergency response
plans;
(3) Monitoring incoming reports from
all RRTs and activating for a response
action, when necessary,
(4) Coordinating a national program to
assist member agencies in preparedness
planning and response, and anhancing
coordination of member agency
preparedness programs;
(51 Developing procedures, in
coordination with the NSFCC, as
appropriate, to ensure the coordination
of federal, state, and local governments,
and private response to oil discharges
and releases of hazardous substances,
pollutants, or contaminants;
(6) Monitoring response-related
research and development, testing, end
evaluation activities of NET agencies to
enhance coordination, avoid
duplication of effort, and facilitate
research in support of response
activities;
(7) Developing recommendations for
response training and for enhancing the
coordination of available resources
among agencies with training
responsibilities under the NO ’,
(8) Reviewing regional responses to
oil discharges and hazardous substance,
pollutant. or contaminant releases,
including an evaluation of equipment
readiness and coordination among
responsible public agencies and private
organizations, and
(9) Assist in developing a national
exercise program, in coordination with
the NSFCC. to ensure preparedness and
coordination nationwide
(i i The NRT will consider matters
referred to it for advice or resolution by
an RET.
{j) The NET should be activated as an
emergency response team.
(3) When an oil discharge or
hazardous substance release
(i) Exceeds the response capability of
the region in which it occurs;
(u I Transects regional boundaries, or
(iii) Involves a substantial threat to
the public health or welfare or the
environment, substantial amounts of
property, or substantial threats to
natural resources,
[ 2) If requested by any NET rneaiber
(k) When activated for a response
action, the NRT shall meet at the call of
the chair and may.
(1) Monitor and evaluate reports from
the OSC/RPM and recommend to the
OSC/RPM, through the RET, actions to
combat the discharge or release;
(2) Request other federal, state, and
local governments, or private agencies.
to provide resources under their existing
authorities to combat a discharge or
release, or to monitor response
operations; and
(3) Coordinate the supply of
equipment, personnel, or technical
advice to the affected region from other
regions or districts
§300.115 Reglonat Response Teams.
(a) Regional planning and
coordination of preparedness and
response actions is accomplished
through the RRT. In the case of a
discharge of oil, preparedness activities
will be camed out in conjunction with
Area Committees, as appropriate. The
RRT agency membership parallels that
of the NET, as described Zn § 300.110.
- ‘but also includes state and local
representation. The RRT provides’
(1) The appropriate regional
mechanism for development and
coordination of preparedness activities
before a response action is taken and for
coordination of assistance and advice to
the OSCJRPM during such response
actions; and
(2) Guidance to Area Committees, as
appropriate, to ensure inter-area
consistency and consistency of
individual ACPs with the RCP and NCP
(b) The two principal components of
the RRT mechanism are a standing
team, wh ch consists of designated
representatives from each participating
federal agency, state governments, and
local governments (as agreed upon by
the states), and incident-specific teams
formed from the standing team when
the RET is activated for a response. On
incident-specific teams, participation by
the RET member agencies will relate to
the technical nature of the incident and
its geographic location
(1) The standing team’s jurisdiction
corresponds to the standard federal
regions. except for Alaska. Oceania in
the Pacific, and the Caribbean area, each
of which has a separate standing RET
The role of the standing RET includes
communications systems and
procedures. planning, cocrdinati on,
training, evaluation, preparedness, and
related matters on a regionwide basis It
also includes coordination of Area
Committees for these functions in areas
within their respective regions. as
appropriate
(2) The role of the incident-specific
team is determined by the operational
requirements of the response to a
specific discharge or release
Appropriate levels of activation and lor
notification of the incident-specific
RET, including participation by state
and local governments, shall be
determined by the designated RRT chair
for the incident, based on the RCP The
incident-specific RRT supports the
designated OSC/RPM The designated
OSCI RPM directs response efforts and
coordinates all other efforts at the scene
of a discharge or release
(c) The representatives ofEPA and the
USCO shall act as co-chairs of RRTs
except when the RET is activated When
the RET is activated for response
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54748
Federal Register / Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
actions, the chaIr shall be the member
agency providing the USC/RPM.
(d) Each participating agency should
designate one member and at least one
alternate member to the RRT. Agencies
whose regional subdivisions do not
correspond to the standard federal
regions may designate additional
representatives to the standing RRT to
ensure appropriate coverage of the
standard federal region. Participating
states may also designate one member
and at least one alternate member to the
RRT. Indian tribal governments may
arrange for representation with the RRT
appropriate to their geographical
location. All agencies and states may
also provide additional representatives
as observers to meetings of the RRT.
le) RRT members should designate
representatives and alternates from their
agencies as resource personnel for RRT
activities, including RRT work
planning. end membership on incident-
specific teams in support of the OSCs/
RPMs.
(1) Federal RRT members or their
representatives should provide OSCsI
RPMs with assistance from their
respective federal agencies
commensurate with agency
responsibilities, resources, and
capabilities within the region. During a
response action, the members of the
RRT should seek to make available the
resources of their agencies to the OSC/
RPM as specified in the RCP and ACP
(g) RRT members should nominate
appropriately qualified representatives
from their agencies to work with OSCs
in developing and maintaining ACPs
(hI Affected states are encouraged to
participate actively in all RRT activities.
Each state governor is requested to
assign an office or agency to represent
the state on the appropriate RRT; to
designate representatives to work with
the RRT in developing RCPs, to plan for,
make available, and coordinate state
resources; and to serve as the contact
point for coordination of response with
local government agencies, whether or
not represented on the RRT The state’s
RRT representative should keep the
State Emergency Response Commission
(SERC), described in § 300.205(d).
apprised of RRT activities and
coordinate RRT activities with the
SERC. Local governments are invited to
participate in activities on the
appropriate RRT as provided by state
law or as arranged by the state’s
representative. Indian tribes are also
invited to participate in such activities.
(i) The standing RRT shall
recommend changes in the regional
response organization as needed, revise
the R P as needed, evaluate the
preparedness of the participating
agencies and the effectiveness of A Ps
for the federal response to discharges
and releases, and provide technical
assistance for preparedness to the
response community. The RRT should:
(1) Review and comment, to the
extent practicable, on local emergency
response plans or other issues related to
the preparation, implementation, or
exercise of such plans upon request of
a local emergency planning committee;
(2) Evaluate regional and local
responses to discharges or releases on a
continuing basis, considering available
legal remedies, equipment readiness,
and coordination among responsible
public agencies and private
organizations, and recommend
improvements;
(3) Recommend revisions of the NO’
to the NRT, based on observations of
response operations;
(4) Review USC actions to ensure that
RCPs and ACPs are effective;
(5) Encourage the state and local
response community to improve its
preparedness for response;
(6) In coordination with Area
Committees. conduct advance planning
for use of dispersants, surface washing
agents, surface collecting agents.
burning agents, bioremediation agents,
or other chemical agents in accordance
with subpart J of this part;
(7) Be prepared to provide response
resources to major discharges or releases
outside the region;
(8) Conduct or participate in training
and exercises as necessary to encourage
preparedness activities of the response
community within the region;
(9) Meet at least semiannually to
review response actions carried out
during the preceding period, consider
changes in RCPs, and recommend
changes in ACPs,
(10) Provide letter reports on RRT
activities to the NRT twice a year. no
later than January31 and July 31. At a
minimum, reports should summcnze
recent activities, organizational changes,
operational concerns, and efforts to
improve state and local coordination.
and
(11) Ensure maximum participation in
the national exercise program for
announced and unannounced exercises.
(j)(1) The RRT may be activated by the
chair as an incident-specific response
team when a discharge or release.
(i) Exceeds the response capability
available to the OSCIRPM in the place
where it occurs;
(ii) Transects state boundaries;
(iii ) May pose a substantial threat to
the public health or welfare or the
environment, or to regionally significant
amounts of property; or
(iv) Is a worst case discharge. as
described in §300 324. RCPs shall
specify detailed criteria for activation of
RRTs.
(2) The RRT will be activated during
any discharge or release upon a request
from the OSC/RPM, or from any RRT
representative, lathe chair of the RRT.
Requests for RRT activation shall later
be confirmed in writing Each
representative, or an appropriate
alternate, should be notified
immediately when the RRT is activated.
(3) Dunng prolonged removal or
remedial action, the RRT may not need
to be activated or may need to be
activated only in a limited sense, or may
need to have available only those
member agencies of the RRT who are
directly affected or who can provide
direct response assistance.
(4) When the RRT is activated for a
discharge or release, agency
representatives shall meet at the call of
the chair and may:
(i) Monitor and evaluate reports from
the OSC/RPM. advise the OSC/RPM on
the duration and extent of response, and
recommend to the OSC/RPM specific
actions to respond to the discharge or
release;
(ii) Request other federal, state, or
local governments, or private agencies.
to provide resources under their existing
authorities to respond to a discharge or
release or to monitor response
operations,
(iii) Help the USC/RPM prepare
information releases for the public and
for communication with the NRT.
(iv) If the circumstances warrant,
make recommendations to the regional
or district head of the agency providing
the USC/RPM that a different OSCI RPM
should be designated; and
(v) Submit pollution reports to the
NRC as significant developments occur
(5) At the regional level, a Regional
Response Center (RRC) may provide
facilities and personnel for
communications, information storage.
and other requirements for coordinating
response. The location of each RRC
should be provided in the RCP,
(6) When the RRT is activated,
affected states may participate in all
RRT deliberations. State government
representativec participating in the RRT
have the same status as any federal
member of the RRT.
(7) The RRT can be deactivated when
the incident-specific RRT chair
determines that the OSC/RPM no longer
requires RRT assistance.
(8) Notification of the RRT may be
appropriate when full activation is not
necessary, with systematic
communication of pollution reports
other means to keep RRT members
informed as to actions of potential
concern to a particular agency, or to
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Federal Register I Vol. 58, No. 203 / Friday, October 22, 1993 I Proposed Rules
54749
ssist in later RRT evaluation of
regionwide response effectiveness.
(k) Whenever there is insufficient
national policy guidance on a matter
before the RRT, a technical matter
requiring solution, a question
concerning interpretation of the NCP, or
a disagreement on discretionary actions
among RRT members that cannot be
resolved at the regional level, it may be
referred to the NRT. described in
§ 300.110, for advice.
§300.120 On-scene coordinators and
remedial project managers: General
responsIbi lities.
(a) The OSC/RPM directs response
efforts and coordinates all other efforts
at the scene of a discharge or release. As
part of the planning and preparedness
for response, OSCs shall be
predesignated by the regional or district
head of the lead agency. EPA and the
IJSCG shall predesignate OSCs for all
areas in each region, except as provided
in paragraphs (c) and (d) of this section.
RPMs shall be assigned by the lead
agency to manage remedial or other
response actions at NFL sites, except as
provided in paragraphs (c) and (d) of
this section.
(1) The USCG shall provide OSCs for
oil discharges, including discharges
from facilities and vessels under the
jurisdiction of another federal agency.
within or threatening the coastal zone.
The USCG shall also provide OSCs for
the removal of releases of hazardous
substances. pollutants. or contaminants
into or threatening the coastal zone,
except as provided in paragraph (b) of
this section The USCG shall not
provide predesignated OSCs for
discharges or releases from hazardous
waste management facilities or in
similarly chronic incidents. The USCG
shall provide an initial response to
discharges or releases from hazardous
waste management facilities within the
coastai zone in accordance with
Department of Transportation (DOT)!
EPA Instrument of Redelegation (May
27, 1988) except as provided by
paragraph (b) of this section. The IJSCG
OSC shall contact the cognizant RPM as
soon as it is evident that a removal may
require a follow-up remedial action, to
ensure that the required planning can be
initiated and an orderly transition to an
EPA or state lead can occur.
(2) EPA shall provide OSCs for
discharges or releases into or
threatening the inland zone and shall
provide RPMs for federally funded
remedial actions, except in the case of
state-lead federally funded response and
as provided in paragraph (b) of this
section. EPA will also assume all
remedial actions at NFL sites in the
coastal zone, even where removals are
initiated by the IJSCG. except as
provided in paragraph (b) of this
section.
(b) In general, USCG Captains of the
Port (COTP) shall serve as the
designated OSCs for areas in the coastal
zone for which an ACP is required
under CWA section 3 1 1( J) and EPA
Regional Administrators shall designate
OSCs for areas in the inland zone for
which an ACP is required under CWA
section 311(j).
(C) For releases of hazardous
substances, pollutants, or contaminants,
when the release is on, or the sole
source of the release is from, any facility
or vessel, including vessels bareboat.
chartered and operated, under the
jurisdiction, custody, or control of DOD,
DOE, or other federal agency.
(1) In the case of DOD or DOE, DOD
or DOE shall provide OSCsIRPMs
responsible for taking all response
actions; and
(2)In the case of a federal agency
other than EPA, DOD, or DOE, such
agency shall provide OSCs for all
removal actions that are not
emergencies and shall provide RPMs for
all remedial actions.
(d) DOD will be the removal response
authority with respect to incidents
involving DOD military weapons and
munitions or weapons and munitions
under the jurisdiction, custody, or
control of DOD
(e) The OSC is responsible for
overseeing development of the AfJ’ in
the area of the OSC’s responsibility
ACPs shall, as appropriate, be
accomplished in cooperation with the
RRT, and designated state and local
representatives. The OSC coordinates,
directs, and reviews the work of other
agencies, Area Committees, responsible
parties. and contractors to assure
compliance with the NCP, decision
document, consent decree,
administrative order, and lead agency-
approved plans applicable to the
response.
(I) The RPM is the prime contact for
remedial or other response actions being
taken (or needed) at sites on the
proposed or promulgated NFL, and for
sites not on the NPL but under the
jurisdiction, custody, or control of a
federal agency. The RPM’s
responsibilities include:
(1) Fund-financed response. The RPM
coordinates, directs, and reviews the
work of EPA. states and local
governments, the U.S. Army Corps of
Engineers, and all other agencies and
contractors to assure compliance with
the NCP. Based upon the reports of
these parties, the RPM recommends
action for decisions by lead agency
officials. The RPM’s period of
responsibility begins prior to initiation
of the remedial investigation/feasibility
study (PJIFS), described in § 300.430,
and continues through design, remedial
action, deletion of the site from the NFL,
end the CERCLA cost recovery activity.
When a removal and remedial action
occur at the same site, the OSC and
RPM should coordinate to ensure an
orderly transition of responsibility.
(2) Federal-lead non-Fund-financed
response. The RPM coordinates, directs,
and reviews the work of other agencies,
responsible parties, and contractors to
assure compliance with the NCP,
Record of Decision (ROD), consent
decree, administrative order, and lead
agency-approved plans applicable to the
response. Based upon the reports of
these parties. the RPM shall recommend
action for decisions by lead agency
officials. The RPM’s period of
responsibility begins prior to initiation
of the RI/FS, described in § 300 430, and
continues through design arid remedial
action and the CERCLA cost recovery
activity. The OSC and RPM shall ensure
orderly transition of responsibilities
from one to the other.
(3) The RPM shall participate in all
decision-making processes necessary to
ensure compliance with the N P,
including, as appropriate, agreements
between EPA or other federal agencies
and the state. The RPM may also review
responses where EPA has preauthorized
a person to file a claim for
reimbursement to determine that the
response was consistent with the terms
of such preauthorization in cases where
claims are filed for reimbursement
(g)(1) Where a support agency has
been identified through a cooperative
agreement, Superfund Memorandum of
Agreement (SMOA), or other agreement,
that agency may designate a support
agency coordinator (SAC) to provide
assistance, as requested, by the OSC/
RPM. The SAC is the prime
representative of the support agency for
response actions
(2) The SAC’s responsibilitLes may
include:
(i) Providing and reviewing data and
documents as requested by the OSC/
RPM during the planning, design, and
cleanup activities of the response
action; and
(ii) Providing other assistance as
requested.
(h)(i) The lead agency should provide
appropriate training for its OSCs, RPMs,
and other response personnel to carry
out their responsibilities under the NCP.
(2) OSCs/RPMs should ensure that
persons designated to act as their on-
scene representatives are adequately
trained and prepared to carry out
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Federal Register / Vol. 58, No. 203 I Friday, October 22, 1993 / Proposed Rules
a t [ ons under the NcP, to the extent
practicable.
§300.125 NotificatIon and
communications.
(a) The National Response Center
(NRC). located at USCG Headquarters, is
the national communications center,
continuously manned for handling
activities related to response actions.
The NRC acts as the single point of
contact for all pollution incident
reporting, and as the NRT
communications center. Notice of
discharges must be made telephonically
through a toll free number or a special
local number (Telecommunication
Device for the Deaf (TDD) and collect
calls accepted). (Notification details
appear in § 300.300 and 300.405.) The
NRC receives and immediately relays
telephone notices of discharges or
releases to the appropriate
predesignated federal OSC. The
telephone report is distributed to any
interested NRT member agency or
federal entity that has established a
written agreement or understanding
with the NRC. The NRC evaluates
incoming information and immediately
advises FEMA of a potential major
disaster situation.
(b) The Commandant, USCG. in
conjunction with other NRT agencies.
shall provide the necessary personnel.
communications, plotting facilities, and
equipment for the NRC.
(c) Notice of an oil discharge or
release of a hazardous substance in an
amount equal to or greater than the
reportable quantity must be made
immediately in accordance with 33 CFR
part 153, subpart B, and 40 CFR part
302, respectively. Notification shall be
made to the NRC Duty Officer, HQ
USCG, Washington, DC, telephone (800)
424—8802 or (202) 267—2675. All notices
of discharges or releases received at the
NRC will be relayed immediately by
telephone to the OSC.
§ 300.130 DetermInations to initIate
response and special conditions.
(a) In accordance with CWA and
cERCLA, the Administrator of EPA or
the Secretary of the department in
which the USCG is operating, as
appropriate, is authorized to act for the
United States to take response measures
deemed necessary to protect the public
health or welfare or environment from
discharges of oil or releases of
hazardous substances, pollutants, or
contaminants except with respect to
such releases on or from vessels or
facilities under the jurisdiction,
custody, or control of other federal
agencies.
(b) The Administrator of EPA or the
Secretary of the department in which
the USCG is operating, as appropriate, is
authorized to initiate and, in the case of
a discharge posing a substantial threat to
public health or welfare is required to
initiate and direct, appropriate response
activities when the Administrator or
Secretary determines that any oil or
CWA hazardous substance is discharged
or there is a substantial threat of such
discharge from any vessel or offshore or
onshore facility into or on the navigable
waters of the United States, on the
adjoining shorelines to the navigable
waters, into or on the waters of the
exclusive economic zone, or that may
affect natural resources belonging to,
appertaining to, or under exclusive
management authority of the United
States; or
(c) The Administrator of EPA or the
Secretary of the department in which
the USCG is operating, as appropnate, is
authorized to initiate appropriate
response activities when the
Administrator or Secretary determines
that any hazardous substance is released
or there is a threat of such a release into
the environment, or there is a release or
threat of release into the environment of
any pollutant or contaminant which
may present an imminent and
substantial danger to the public health
or welfare.
(d) In addition to any actions taken by
a state or local government, the
Administrator of EPA or the Secretary of
the department in which the USCG is
operating may request the U.S. Attorney
General to secure the relief from any
person, including the owner or operator
of the vessel or facility necessary to
abate a threat or, after notice to the
affected state, take any other action
authorized by section 311 of the CWA
or seclion 106 of CERCLA as
appropriate, including issuing
administrative orders, that may be
necessary to protect the public health or
welfare, if the Administrator or
Secretary determines:
(1) That there may be an imminent
and substantial threat to the public
health or welfare or the environment of
the United States, including fish,
shellfish, and wildlife, public and
private property, shorelines, beaches,
habitats, and other living and nonliving
natural resources under the jurisdiction
or control of the United States, because
of an actual or threatened discharge of
oil or a CWA hazardous substance from
any vessel or offshore or onshore facility
into or upon the navigable waters of the
United States; or
(2) That there may be an imminent
and substantial endangerment to the
public health or welfare or the
environment because of a release of a
CERCLA hazardous substance from a
facility.
(e) Response actions to remove
discharges originating from operations
conducted subject to the Outer
Continental Shelf Lands Act shall be in
accordance with the NC ?.
(f) Where appropnate, when a
discharge or release involves radioactive
materials, the lead or support federal
agency shall act consistent with the
notification and assistance procedures
described in the appropriate Federal
Radiological Plan. For the purpose of
the NC ]’, the Federal Radiological
Emergency Response Plan (FRERP) (50
FR 46542, November 8, 1985) is the
appropriate plan. Most radiological
discharges and releases do not result in
FRERP activation and should be
handled in accordance with the NC?
However, releases from nuclear
incidents subject to requirements for
financial protection established by the
Nuclear Regulatory Commission under
the Price-Anderson amendments
(section 170) of the Atomic Energy Act
are specifically excluded from CERCLA
and NC? requirements.
(g) Removal actions involving nuclear
weapons should be conducted in
accordance with the joint Department of
Defense, Department of Energy, and
Federal Emergency Management Agenc)
(FEMA) Agreement for Response to
Nuclear Incidents and Nuclear Weapons
Significant Incidents (January 8, 1981)
(h) If the situation is beyond the
capability of state and local
governments and the statutory authority
of federal agencies. the President may,
under the Disaster Relief Act of 1974,
act upon a request by the governor and
declare a major disaster or emergency
and appoint a Federal Coordinating
Officer (FCO) to coordinate all federal
disaster assistance activities. In such
cases, the OSC/RPM would continue to
carry out OSC/RPM responsibilities
under the NC?, but would coordinate
those activities with the FCO to ensure
consistency with other federal disaster
assistance activities
(i) En the event of a declaration of a
major disaster by the President, the
Federal Emergency Management Agency
(FEMA) may activate the Federal
Response Plan (FR?). A Federal
Coordinating Officer (FCO), designated
by the President, may implement the
FR? and coordinate and direct
emergency assistance and disaster relief
of impacted individuals, business, and
public services under the Robert T
Stafford Disaster Relief Act. Delivery of
federal assistance is facilitated through
twelve functional annexes to the FR?
known as Emergency Support Functions
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54751
(ESFs). EPA coordinates activities under
ESF #10—Hazardous Materials, which
addresses preparedness and response to
hazardous materials and oil incidents
caused by a natural disaster or other
catastrophic event. In such cases, the
OSC/RPM should coordinate response
activities with the FCO, through the
incident ’specific ESF #10 Chair, to
ensure consistency with federal disaster
assistance activities.
§300.135 Response operations.
(a) The OSCJRPM. consistent with
§ 300.120 and 300.125, shall direct
response efforts and coordinate all other
efforts at the scene of a discharge or
release. As part of the planning and
preparation for response, the OSCs/
RPMs shall be predesignated by the
regional or district head of the lead
agency.
(b) The flrst federal official affiliated
with an NRT member agency to arrive
at the scene of a discharge or release
should coordinate activities under the
NCP and is authorized to initiate, in
consultation with the OSC, any
necessary actions normally carried out
by the OSC until the arrival of the
predesignated OSC This official may
initiate federal Fund.financed actions
only as authorized by the OSC or, if the
OSC is unavailable, the authorized
representative of the lead agency
(c) The OSCIRPM shall, to the extent
practicable. collect pertinent facts about
the discharge or release, such as its
source and cause; the identification of
potentially responsible parties. the
nature, amount, and location of
discharged or released materials, the
probable direction and time of travel of
discharged or released materials;
whether the discharge is a worst case
discharge as discussed in § 300.324: the
pathways to human and environmental
exposure; the potential Impact Ofl
human health, welfare, and safety and
the environment, whether the discharge
or release poses a substantial threat to
the public health or welfare as
discussed in §300.322; the potential
impact on natural resources and
property which may be affected.
priorities for protecting human health
and welfare and the environment, and
appropriate cost documentation.
(d) The OSC’s/RPM’s efforts shall be
coordinated with other appropriate
federal, state, local, and private
response agencies. OSCs/RPMs may
designate capable persons from federal,
state, or local agencies to act as their on-
scene representatives. State and local
governments, however, are not
authorized to take actions under
subparts D arid E of the NO’ that
involve expenditures of the Oil Spill
Liability Trust Fund or CERCLA funds
unless an appropriate contract or
cooperative agreement has been
established.
(e) The OSCIRPM should consult
regularly with the RRT and NSFCC, as
appropriate, in carrying out the NCP
and keep the RRT and NSFCC, as
appropriate, informed of activities
under the N P
(I) The OSC/RPM shall advise the
support agency as promptly as possible
of reported releases.
(g) The OSC/RPM should evaluate
incoming information and immediately
advise FEMA of potential major disaster
situations
(h) in those instances where a
possible public health emergency exists,
the OSCIRPM should notify the
Department of Health and Human
Services (HHS) representative to the
RRT. Throughout response actions, the
OSCIRPM may call upon the HHS
representative for assistance in
determining public health threats and
call upon the Occupational Safety and
Health Administration (OSHA) and
HHS for assistance on worker health
and safety issues.
(i) All federal agencies should plan for
emergencies and develop procedures for
dealing with oil discharges and releases
of hazardous substances, pollutants, or
contaminants from vessels and facilities
under their jurisdiction All federal
agencies, therefore, are responsible for
designating the office that coordinates
response to such incidents in
accordance with the NCP and applicable
federal regulations and guidelines.
(1)11) The OSC/RPM shall ensure that
the trustees for natural resources are
promptly notified of discharges or
releases
(2) The OSC or RPM shall coordinate
all response activities with the affected
natural resource trustees and, for
discharges of oil. the OSC shall consult
with the affected trustees on the
appropriate removal action to be taken
(k) Where the OSC1RPM becomes
aware that a discharge or release may
affect any endangered or threatened
species or their habitat, the OSC/RPM
shall consult with the Department of
Interior (DOl). or the Department of
Commerce (DOC) (NOAA) and, if
appropriate, the cognizant federal land
managing agency.
(I) The OSCIRPM is responsible for
addressing worker health and safety
concerns at a response scene, in
accordance with § 300 150.
(m) The OSC shall submit pollution
reports to the RRT and other appropriate
agencies as significant developments
occur during response actions, through
communications networks or
procedures agreed to by the RRT and
covered in the REP.
(n) OSCsIRPMs should ensure that all
appropriate public and private interests
are kept informed and that their
concerns are considered throughout a
response, to the extent practicable,
consistent with the requirements of
§300.155 of this part.
§ 300.140 MultI-regional responses.
(a) Ifs discharge or release moves
from the area covered by one ACP or
RCP into another area, the authority for
response actions should likewise shift.
If a discharge or release affects areas
covered by two or more ACPs or RCPs.
the response mechanisms of each
applicable plan may be activated In this
case, response actions of all regions
concerned shall be IuUy coordinated as
detailed in the RcPs and ACPs
(b) There shall be only one OSC and!
or RPM at any time during the course of
a response operation Should a
discharge or release affect two or more
areas, EPA. the USCG, DOD, DOE, or
other lead agency. as appropriate, shall
give prime consideration to the area
vulnerable to the greatest threat, in
determining which agency should
provide the OSC and/or RPM The RRT
shall designate the OSC and/or RPM if
the RRT member agencies who have
response authority within the affected
areas are unable to agree on the
designation The NRT shall designate
the OSC and/or RPM ii members of one
RRT or two adjacent RRTs are unable to
agree on the designation
(c3 Where the USCG has initially
provided the OSC for response to a
release from hazardous waste
management facilities located in the
coastal zone, responsibility for response
action shall shift to EPA or another
federal agency, as appropriate
§300.145 Special teams and other
assistance available to OSCs/RPMs.
(a) The NSF is a special team
established by the USCC, including the
three USCG Strike Teams, the Public
Information Assist Team (FIAT), and the
NSFCC The NSF is available to assist
OSCs/RPMs in their preparedness and
response duties
(1) The three Strike Teams (Atlantic.
Gulf. and Pacific) provide trained
personnel and specialized equipment to
assist the OSC in training for spill
response. stabilizing and containing the
spill. and in monitoring or directing the
response actions of the responsible
parties and/or contractors The USC has
a specific team designated for initial
contact and may contact that team
directly for any assistance
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Federal Register / Vol. 58, No. 203 1 Friday, October 22, 1993 / Proposed Rules
(2)The NSFCC can provide the
following support to the USC:
(i) Technical assistance, equipment
and other resources to augment the USC
staff during spill response.
(ii) Assistance in coordinating the use
of private and public resources in
support of the OSC during a response to
or a threat of a worst case discharge of
oil.
(iii) Review of the area contingency
plan, including an evaluation of
equipment readiness and coordination
among responsible public agencies and
private or anizations.
(iv) Assistance in locating spill
response resources for both response
and planning, using the NSFCC’s
national and international computerized
inventory of spill response resources.
(v) Coordination arid evaluation of
pollution response exercises.
(vi) Inspection of district
prepositioned pollution response
equipment.
(3) PLAT is an element of the NSFCC
staff which is available to assist OSCs to
meet the demands for public
information during a response or
exercise. Its use is encouraged any time
the OSC requires outside public affairs
support. Requests for PIAT assistance
may be made through the NSFCC or
NRC.
(b)(l) The Environmental Response
Team (ERT) is established by EPA in
accordance with its disaster and
emergency responsibilities. The ERT has
expertise in treatment technology,
biology, chemistry, hydrology, geology.
and engineering.
(2) The ERT can provide access to
special decontamination equipment for
chemical releases and advice to the
OSC/RPM in hazard evaluation; risk
assessment: multimedia sampling and
analysis program; on-site safety,
including development and
implementation plans, clean-up
techniques and priorities; water supply
decontamination and protection;
application of dispersants;
environmental assessment; degree of
clean-up required; and disposal of
contaminated material.
(3) The ERT also provides both
introductory and intermediate level
training courses to prepare response
personnel.
(4) OSCIRPM orRRT requests for ERT
support should be made to the EPA
representative on the RRT; EPA
Headquarters. Director, Emergency
Response Division; or the appropriate
EPA regional emergency coordinator.
(c) Scientific Support Coordinators
(SSCs) may be designated by the OSC
(and RPM in the case of EPA SSCs) as
the principal advisors for scientific
issues, communication with the
scientific community, and coordination
of requests for assistance from state and
federal agencies regarding scientific
studies. The SSC strives for a consensus
on scientific issues affecting the
response, but ensures that differing
opinions within the community are
communicated to the USC/RPM
(1) Generally, SSCs are provided by
NOAA in the coastal zones, and by EPA
in the inland zone. OSCIRPM requests
for SSC support can be made directly to
the SSC assigned to the area or to the
agency member of the RRT. NOAA SSCs
can also be requested through NOAA’s
SSC program office in Seattle, WA.
NOAA SSCs are assigned to USCG
Districts and are supported by a
scientific support team that includes
expertise in environmental chemistry.
oil slick tracking, pollutant transport
modeling, natural resources at risk,
environmental tradeoffs of
countermeasures and cleanup, and
information management.
(2) During a response, the SSC serves
on the federal OSC’s/RPM’s staff and
may, at the request of the OSC/RPM.
lead the scientific team and be
responsible for providing scientific
support for operational decisions and
for coordinating on-scene scientific
activity. Depending on the nature and
location of the incident, the SSC
integrates expertise from governmental
agencies, universities, community
representatives, and industry to assist
the USC/RPM in evaluating the hazards
and potential effects of releases and in
developing response strategies
(3) At the request of the USC, the SSC
may facilitate the USC’s work with the
lead administrative trustee for natural
resources to ensure coordination
between damage assessment data
collection efforts and data collected in
support of response operations.
(4 ) SSCs support the Regional
Response Teams and the Area
Committees in preparing regional and
area contingency plans and in
conducting spill training and exercises
For area plans, the SSC provides
leadership for the synthesis and
integration of environmental
information required for spill response
decisions in support of the USC.
(d) For marine salvage operations,
QSCs/RPMs with responsibility for
monitoring, evaluating, or supervising
these activities should request technical
assistance from DOD, the Strike Teams,
or commercial salvors as necessary to
ensure that proper actions are taken.
Marine salvage operations generally fall
into five categories’ Afloat salvage;
offshore salvage; river and harbor
clearance, cargo salvage; arid rescue
lowing. Each category requires different
knowledge and specialized types of
equipment The complexity of such
operations may be further corn poundeo
by local environmental arid geographic
conditions. The nature of marine
salvage and the conditions under which
it occurs combine to make such
operations imprecise, difficult,
hazardous, and expensive. Thus.
responsible parties or other persons
attempting to perform such operations
without adequate knowledge,
equipment, and experience could
aggravate, rather than relieve, the
situation.
(e) Radiological Emergency Response
Teams (RERTs) have been established
by EPA’s Office of Radiation Programs
(ORP) to provide response and support
for incidents or sites containing
radiological hazards Expertise is
available in radiation monitoring,
radionuclide analysis. radiation health
physics. and risk assessment RERTs can
provide on-site support including
mobile monitoring laboratories for field
analyses of samples and fixed
laboratories for radiochemical sampling
and analyses Requests (or support may
be made 24 hours a day via the NRC or
directly to the EPA Radiological
Response Coordinator in the Office of
Radiation Programs. Assistance is also
available from DOE and other federal
agencies.
(flU) DRGs assist the OSC by
providing technical assistance.
personnel, and equipment, including
pre.positioned equipment. Each DRG
consists of all Coast Guard personnel
and equipment, including marine
firefighting equipment. in its district.
additional pre-positioned equipment.
and a District Response Advisory Team
(DRAT) that is available to provide
support to the OSC in the event that a
spill exceeds local response capabilities.
Each DRG:
(i) Shall provide technical assistance,
equipment, and other resources, as
available, when requested by an OSC
through the USCG representative to the
RET,
(ii) Shall ensure maintenance of all
USCG response equipment within its
district,
(iii) May provide technical assistance
in the preparation of the ACP, and
(iv) Shall review each of those plans
that affect its area of geographic
responsibility
(2) In deciding where to locate
personnel and pre-positioried
equipment, the USCG shall give priority
emphasis to
(i) The availability of facil;ties for
loading and unloading heavy or bulky
equipment by barge;
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54753
(ii) The proximfty to an airport
capable of supporting large military
transport aircraft;
(iii) The flight time to provide
response to oil spills in all areas of the
Coast Guard district with the potential
for marine casualties;
(iv) The availability of trained local
personnel capable of responding in an
oil spill emergency; and
(v) Areas where large quantities of
petroleum products are transported.
(g) The National Pollution Funds
Center (NPFC) is responsible for
implementing those portions of Title I of
the OPA that have been delegated to the
Secretary of the department in which
the Coast Guard is operating. The NPFC
is responsible for addressing funding
issues arising from discharges and
threats of discharges of oil. The NPFC:
(1) Issues Certificates of Financial
Responsibility to owners and operators
of vessels to pay for costs and damages
that are incurred by their vessels as a
result of oil discharges,
(2) Provides funding for various
response organizations for timely
abatement and removal actions related
to oil discharges;
(3) Provides equitable compensation
to claimants who sustain costs and
damages from oil discharges when the
responsible party fails to do so;
(4) Recovers monies from persons
liable for costs and damages resulting
from oil discharges to the full extent of
liability under the law: and
(5) Provides funds to initiate natural
resource damage assessments.
§300.150 Worker health and safety.
(a) Response actions under the NCP
will comply with the provisions for
response action worker safety and
health in 29 CFR 1910.120. The NRS
meets the requirements of 29 CFR
1910.120 concerning use of an incidenr
command system.
(b) In a response action taken by a
responsible party, the responsible party
must assure that an occupational safety
and health program consistent with 29
CFR 1910.120 is made available for the
protection of workers at the response
site.
(c) In a response taken under the NCP
by a lead agency, an occupational safety
and health program should be made
available for the protection of workers at
the response site, consistent with, and
to the extent required by, 29 CFR
1910.120. Contracts relating to a
response action under the NCP should
contain assurances that the contractor at
the response site will comply with this
program and with any applicable
provisions of the Occupational Safety
and Health Act of 1970 (29 U.S.C 651
et. seq.) (OSH Act) and state laws with
plans approved under section 18 of the
OSH Act.
(d) When a state, or political
subdivision of a state, without an
OSHA-approved state plan is the lead
agency for response, the state or
political subdivision must comply with
standards in 40 FR part 311,
promulgated by EPA pursuant to section
126(fl of SARA.
(e) Requirements, standards, and
regulations of the OSH Act and of state
OSH laws not directly referenced in
paragraphs (a) through (d) of this
section, must be complied with where
applicable. Federal OSH Act
requirements include, among other
things, Construction Standards (29 CFR
part 1926). General Industry Standards
(29 CFR part 1910), and the general duty
requirement of section 5(a)(1) of the
OSH Act (29 U.S.C. 654(a)(1)). No action
by the lead agency with respect to
response activities under the N P
constitutes an exercise of statutory
authority within the meaning of section
4(b)(1) of the OSH Act. All
governmental agencies and private
employers are directly responsible for
the health and safety of their own
employees.
§300.155 Public Information and
community relations.
(a) When an incident occurs, it is
imperative to give the public prompt,
accurate information on the nature of
the incident and the actions underway
to mitigate the damage. OSCs/RPMs and
community relations personnel should
ensure that all appropriate public and
private interests are kept informed and
that their concerns are considered
throughout a response. They should
coordinate with available public affairs/
community relations resources to carry
out this responsibility.
(b) An on-scene news office may be
established to coordinate media
relations and to issue official federal
information on an incident. Whenever
possible, it will be headed by a
representative of the lead agency. The
OSC/RPM determines the location of the
on-scene news office, but every effort
should be made to locate it near the
scene of the incident. If a participating
agency believes public interest warrants
the issuance of statements and an on-
scene news office has not been
established, the affected agency should
recommend its establishment. All
federal news releases or statements by
participating agencies should be cleared
through the OSC/RPM. Information
dissemination relating to natural
resource damage assessment activities
shall be coordinated through the lead
administrative trustee. The designated
lead administrative trustee may assist
the OSC/RPM by disseminating
information on issues relating to damage
assessment activities. Following
termination of removal activity,
information dissemination on damage
assessment activities shall be through
the lead administrative trustee.
(c) The community relations
requirements specified in § 300.415,
300.430, and 300.435 apply to removal,
remedial, and enforcement actions and
are intended to promo e active
communication between communities
affected by discharges or releases and
the lead agency responsible for response
actions. Community Relations Plans
(CRPs) are required by EPA for certain
response actions. The OSC/RPM should
ensure coordination with such plans
which may be in effect at the scene of
a discharge or release or which may
need to be developed dunng follow-up
activities.
§ 300.160 DocumentatIon and cost
recovery.
(a) For releases of a hazardous
substance, pollutant, or contaminant,
the following provisions apply:
(1) During all phases of response, the
lead agency shall complete and
maintain documentation to support all
actions taken under the NO’ and to
form the basis for cost recovery. In
general, documentation shall be
sufficient to provide the source and
circumstances of the release, the
identity of responsible parties, the
response action taken, accurate
accounting of federal, state, or private
party costs incurred for response
actions, and impacts and potential
impacts to the public health and welfare
and the environment. Where applicable.
documentation shall state when the
NRC received notification of a release of
a reportable quantity.
(2) The information and reports
obtained by the lead agency for Fund-
financed response actions shall, as
appropriate, be transmitted to the chair
of the RRT. Copies can then be
forwarded to the NRT, members of the
RRT, and others as appropriate
(3) The lead agency shall make
available to the trustees of affected
natural resources information and
documentation that can assist the
trustees in the determination of actual
or potential natural resource injuries.
(b) For discharges of oil,
documentation and cost recovery
provisions are described in § 300.315.
(c) Response actions undertaken by
the participating agencies shall be
camed out under existing programs and
authorities when available. Federal
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54754 Federal Register F Vol. 58. No. 203 / Friday, October 22, 1993 I Proposed Rules
agencies are to make resources
dvŕilable, expend funds, or participate
in response to discharges and releases
under their existing authority.
Interagency agreements may be signed
when necessary to ensure that the
federal resources will be available for a
timely response to a discharge or
release. The ultimate decision as to the
appropriateness of expending funds
rests with the agency that is held
accountable for such expenditures.
Further funding provisions for
discharges of oil are described in
§ 300.335.
(d) The Administrator of EPA and the
Administrator of the Agency for Toxic
Substances arid Disease Registry
(ATSDR) shall assure that the costs of
health assessment or health effect
studies conducted under the authority
of CERCLA section 104(i) are
documented in accordance with
standard EPA procedures for cost
recovery. Documentation shall include
information on the nature of the
hazardous substances addressed by the
research, information concerning the
locations where these substances have
been found, and any available
information on response actions taken
concerning these substances at the
location.
3300.165 OSC repels.
(a) As requested by the NRT or RRT,
the OSCIE.PM shall submit to the NRT
or RRT a complete report on the
removal operation and the actions
taken. The RRT shall review the OSC
report and send to the NRT a copy of the
OSC report with its comments or
recommendations within 30 days after
the RRT has received the OSC report.
(b) The OSC report shall record the
situation as it developed, the actions
taken, the resources committed, and the
problems encountered
§300.170 Federal agency participation.
Federal agencies listed in § 300.175
have duties established by statute,
executive order, or Presidential
directive which may apply to federal
response actions following, or in
prevention of. the discharge of oil or
release of a hazardous substance,
pollutant. or contaminant. Some of
these agencies also have duties relating
to the restoration, rehabilitation,
replacement, or acquisition of
equivalent natural resources injured or
lost as a result cf such discharge or
release as described in subpart C of this
part. The NRT, RRT, and Area
Committee organizational structure, and
the NO’, RCPs and ACPs, described in
5 300.219, provide for egencies to
coordinate with each other in carrying
out these duties.
(a) Federal agencies may be called
upon by an OSC/RPM during response
planning and implementation to
provide assistance in their respective
areas of expertise, as described in
§ 300.175, consistent with the agencies’
capabilities and authoritias.
It) In addition to their general
responsibilities, federal agencies should:
( 1) Make necessary information
available to the Secretary of the NRT,
RRTs, Area Committees, and OSCs/
RPMs.
(2) Provide representatives to the NRT
and RRTs and otherwise assist RRTs
and OSCs, as necessary, in formulating
RCPs and ACPs.
(3) Inform the NRT, RRTs, and Area
Committees, consistent with national
security considerations, of changes in
the availability of resources that would
affect the operations implemented
tinder the NCP.
(c) All federal agencies are
responsible for reporting releases of
hazardous substances from facilities or
vessels under their jurisdiction or
control in accordance with section 103
of CERCLA.
(d) All federal agencies are
encouraged to report releases of
pollutants or contaminants or
dischargas of oil from facilities or
vessels under their jurisdiction or
control to the NRC.
§300.175 Federal agencies: Additional
responsibilities and assistance.
(a) During preparedness planning or
in an actual response. various federal
agencies may be called upon to provide
assistance in their respective areas of
expertise. as indicated in paragraph (b)
of this section, consistent with agency
legal authorities and capabilities.
(bI The federal agencies include.
( ii USCC. as provided in 14 U S.C. 1—
3, is an agency in DOT, except when
operating as an agency in the United
States Navy (USN) in time of war. The
USCG provides the NRT vice chair. co-
chairs for the standing RRTs. and
predesignated OSCs for the coastal zone,
as described in § 300.120(alll). The
USCG maintains continuously manned
facilities which can be used for
command, control, and surveillance of
oil discharges and hazardous substance
releases occurring in the coastal zone.
The USCG also offers expertise in
domestic and international fields of port
safety and security, maritime law
enforcement, ship navigation and
construction, and the manning.
operation, and safety of vessels and
marine facilities. The USCC may enter
into a contract or cooperative agreement
with the appropriate state in order to
implement a response action.
(2) EPA chairs the NRT and co-chairs
with the USCG, the standing RRTs;
provides predesignated OSCs for all
inland areas for which an ACP is
required under CWA section 311(j) and
for discharges and releases occurring in
the inland zone and RPMs for remedial
actions except as otherwise provided;
and generally provides the SSC (or
responses in the inland zone. EPA
provides expertise on environmental
effects of oil discharges or releases of
hazardous substances, pollutants. or
contaminants, and environmental
pollution control techniques. EPA also
provides legal expertise on the
interpretation of CERCLA and other
environmental statutes. EPA may enter
into e contract or cooperative agreement
with the appropriate state in order to
implement a response action.
(3) FEMA provides guidance. policy
and program advice, and technical
assistance in hazardous materials,
chemical, and radiological emergency
preparedness activities (including
planning, training, and exercising).
FEMA’s primary point of contact for
administering financial end technical
assistance to state and local
governments to support their efforts to
develop and maintain an effective
emergency management and response
capability is the State and Local
Programs and Support (SLPS)
Directorate.
(4) DOD has responsibility to take all
action necessary with respect to releases
where either the release is on, or the
sole source of the release is from, any
facility or vessel under the jurisdiction,
custody, or controL of DOD. DOD may
also, consistent with its operational
requirements and upon request of the
OSC. provide locally deployed USN oil
spill equipment and provide assistance
to other federal agencies on request. The
following two branches of DOD have
particularly relevant expertise:
(i) The United States Army Corps of
Engineers has specialized equipment
and personnel for maintaining
navigation channels, for removing
navigation obstructions, for
accomplishing structural repairs, and
for performing maintenance to
hydropower electric generating
equipment. The Corps can also provide
design services, perform construction,
and provide contract writing and
contract administrative services for
other federal agencies.
(ii) The USN is the federal agency
most knowledgeable and experienced i
ship salvage, shipboard damage control,
and diving. The USN has an extensive
array of specialized equipment and
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54755
personnel available for use in these
areas as well as specialized
containment, collection, and removal
equipment specifically designed for
salvage-related and open-sea pollution
incidents
(5) DOE generally provides designated
OSCs/RPMs that are responsible for
taking all response actions with respect
to releases where either the release is
on, or the sole source of the release is
from, any facility or vessel under its
urisdiction, custody. or control.
including vessels bareboat-chartered
and operated In addition, under the
FRERP. DOE provides advice and
assistance to other OSCs/RPMs for
emergency actions essential for the
control of immediate radiological
hazards. Incidents that qualify for DOE
radiological advice and assistance are
those believed to involve source, by-
product. or special nuclear material or
other ionizing radiation sources.
including radium, and other naturally
occurring radionuclides, as well as
particle accelerators. Assistance is
available through direct contact with the
appropriate DOE Radiological
Assistance Coordinating Office
(6) The Department of Agriculture
(USDA) has scientific and technical
capability to measure, evaluate, and
monitor, either on the ground or by use
of aircraft, situations where natural
resources including soil, water, wildlife,
and vegetation have been impacted by
fire, insects and diseases, floods,
hazardous substances, and other natural
or man-caused emergencies The USDA
may be contacted through Forest Service
emergency staff officers who are the
designated members of the RRT
Agencies within USDA have relevant
capabilities and expertise as follows
(i) The Forest Service has
responsibility for protection and
management of national forests and
national grasslands The Forest Service
has personnel, laboratory, and field
capability to measure, evaluate,
monitor, and control as needed, releases
of pesticides and other hazardous
substances on lands under its
jurisdiction
(ii) The Agriculture Research Service
(ARS) administers an applied and
developmental research program in
animal and plant protection and
production; the use and improvement of
soil, water, and air, the processing,
storage, and distribution of farm
products, and human nutrition. The
ARS has the capabilities to provide
re 6 ulation of. and evaluation and
training for, employees exposed to
biological, chemical, radiological, and
industrial hazards In emergency
situations, the ARS can identify.
control, and abate pollution in the areas
of air, soil, wastes, pesticides. radiation,
and toxic substances for ARS facilities
(iii) The Soil Conservation Service
(SCS) has personnel in nearly every
county in the nation who are
knowledgeable in soil, agronomy,
engineering, and biology. These
personnel can help to predict the effects
of pollutants on soil and their
movements over and through soils.
Technical specialists can assist in
identifying potential hazardous waste
sites and provide review and advice on
plans for remedial measures.
(iv) The Animal and Plant Health
Inspection Service (APHIS) can respond
in an emergency to regulate movement
of diseased or infected organisms to
prevent the spread and contamination of
nonaffected areas
(v) The Food Safety and Inspection
Service (FSIS) has responsibility to
prevent meat and poultry products
contaminated with harmful substances
from entering human food channels In
emergencies, the FSIS works with other
federal and state agencies to establish
acceptability for slaughter of exposed or
potentially exposed animals and their
products In addition they are charged
with managing the Federal Radiological
Emergency Response Program for the
USDA.
(7) DOC. through NOAA. provides
scientific support for response and
contingency planning in coastal and
marine areas, including assessments of
the hazards that may be involved.
predictions of movement and dispersion
of oil and hazardous substances through
trajectory modeling, and information on
the sensitivity of coastal environments
to oil and hazardous substances and
associated clean-up and mitigation
methods, provides expertise on living
marine resources and their habitats,
including endangered species, marine
mammals and National Marine
Sanctuary and National Estuarine
Research Reserve ecosystems; provides
information on actual and predicted
meteorological, hydrological, ice, and
oceanographic conditions for marine,
coastal, and inland waters, and tide and
circulation data for coastal and
territorial waters and for the Great
Lakes
(8) HHS assists with the assessment.
preservation, and protection of human
health and helps ensure the availability
of essential human services. HHS
provides technical and nontechnical
assistance in the form of advice,
guidance. and resources to other federal
agencies as well as state and local
governments
(i) The principal HHS response comes
from the U S Public Health Service and
is coordinated from the Office of the
Assistant Secretary for Health, and
various Public Health Service regional
offices. Within the Public Health
Service, the primary response to a
hazardous materials emergency comes
from Agency for Toxic Substances and
Disease Registry (ATSDR) and the
Centers for Disease Control (CDC) Both
ATSDR and CDC have a 24-hour
emergency response capability wherein
scientific and technical personnel are
available to provide technical assistance
to the lead federal agency and state and
local response agencies on human
health threat assessment and analysis,
and exposure prevention and
mitigation. Such assistance is used for
situations requiring evacuation of
affected areas, human exposure to
hazardous materials, and technical
advice on mitigation and prevention
CDC takes the lead during petroleum
releases regulated under the CWA and
OPA while ATSDR takes the lead during
chemical releases under CERCLA Both
agencies are mutually supportive
(ii) Other Public Health Service
agencies involved in support during
hazardous materials incidents either
directly or through ATSDR/CDC include
the Food and Drug Administration, the
Health Resources and Services
Administration, the Indian Health
Service, and the National Institutes of
Health
(iii) Statutory authority for HHS/
National Institutes for Environmental
Health Sciences (NIEHS) involvement in
hazardous materials accident prevention
is non.regulatory in nature and focused
on two primary areas for preventing
community and worLer exposure to
hazardous materials releases (A)
Worker safety training and (B) basic
research activities Under section 126 of
SARA, NIEHS is given statutory
authority for supporting development of
curricula and model training programs
for waste workers and chemical
emergency responders Under section
118(b) of the Hazardous Materials
Transportation and Uniform Safety Act
(I-IMTUSA), NIEHS also administers the
Haz.mat Employee Training Program to
prepare curricula and training for
hazardous materials transportation
workers In the basic research arena.
NIEHS is authorized under section 311
of SARA to conduct a hazardous
substance basic research and training
program to evaluate toxic effects and
assess human health risks from
accidental releases of hazardous
materials Under Title IX, section 901(h)
of the Clean Air Act Amendmentc,
NIEHS also is authorized to conduct
basic research on air pollutants, as well
as train physicians in environmental
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health. Federal research and training in
bezardous materials release prevention
represents an important non-regulatory
activity and supplements ongoing
private sector programs.
(9) DOl may be contacted through
Regional Environmental Officers
(REOs), who are the designated
members of RRTs. Department land
managers have jurisdiction over the
national park system, national wildlife
refuges and fish hatcheries, the public
lands, and certain water projects in
western states. In addition, bureaus and
offices have relevant expertise as
follows:
(1) United States Fish and Wildlife
Service (USFWS): Anadromous and
certain other fishes end wildlife.
including endangered and threatened
species, migratory birds, and certain
marine mammals; waters and wetlands;
effects on natural resources; and
laboratory/research facilities.
(ii) Geological Survey. Geology,
hydrology (ground water and surface
water), and natural hazards.
(iii) Bureau of Land Management:
Minerals, soils, vegetation, wildlife,
habitat, archaeology, and wilderness;
and hazardous materials.
(iv) Minerals Management Service:
Oversight of offshore oil and gas
exploration and production facilities
and associated pipelines and pipeline
facilities under the Outer Continental
Shelf Lands Act and the CWA; and oil
spill response technology research.
(v) Bureau of Mines’ Analysis and
identification of inorganic hazardous
substances and technical expertise in
metals and metallurgy relevant to site
cleanup.
(vi) Office of Surface Mining Coal
mine wastes and land reclamation
(vii) National Park Service General
biological, natural, and cultural resource
managers to evaluate, measure, monitor.
and contain threats to park system lands
and resources, archaeological and
historical expertise in protection,
preservation, evaluation, impact
mitigation, and restoration of cultural
resources; emergency personnel
(viii) Bureau of Reclamation’
Operation and maintenance of water
projects in the West; engineering and
hydrology; and reservoirs.
(ix) Bureau of Indian Affairs
Coordination of activities affecting
Indian lands; assistance in identifying
Indian tribal government officia Is
lx) Office of Temtorial Affairs.
Assistance in implementing the N P in
American Samoa, Guam, the Pacific
Island Governments, the Northern
Mariana Islands, and the Virgin Islands.
(10) The Department of Justice (DOJ)
can provide expert advice on
complicated legal questions arising from
discharges or releases, and federal
agency responses. In addition, the DOJ
represents the federal government,
including its agencies, in litigation
relating to such discharges or releases.
Other legal issues or questions shell be
directed to the federal agency counsel
for the agency providing the OSC/RPM
for the response.
(11) The Department of Labor (DOL).
through OSHA and the states operating
plans approved under section lB of the
OSH Act, has authority to conduct
safety and health inspections of
hazardous waste sites to assure that
employees are being protected and to
determine if the site is in compliance
with:
(ii Safety and health standards and
regulations promulgated by OSHA (or
the states) in accordance with section
126 of SARA and all other applicable
standards; and
(ii) Regulations promulgated under
the OSH Act and its general duty clause.
OSHA inspections may be self-
generated. consistent with its program
operations and objectives, or may be
conducted in response to requests from
EPA or another lead agency, or in
response to accidents or employee
complaints. OSHA may also conduct
inspections at hazardous waste sites in
those states with approved plans that
choose not to exercise their jurisdiction
to inspect such sites On request, OSHA
will provide advice and assistance to
EPA and other NRT/RRT agencies as
well as to the OSC/RPM regarding
hazards to persons engaged in response
activities. Technical assistance may
include development and maintenance
of site safety plans and work practices.
assistance with exposure morntoring.
and help with other compliance
questions OSHA may also take any
other action necessary to assure that
employees are properly protected at
.such response activities. Any questions
about occupational safety and health at
these sites should be referred to the
OSHA Regional Office.
(12) DOT provides response expertise
pertaining to transportation of oil or
hazardous substances by all modes of
transportation. Through the Research
and Special Programs Administration
(RSPA). DOT offers expertise in the
requirements for packaging, handling,
and transporting regulated hazardous
materials.
(13) The Department of State (DOS)
will lead in the development of
international joint contingency plans. It
will also help to coordinate an
international response when discharges
or releases cross international
boundaries or involve foreign flag
vessels. Additionally, DOS will
coordinate requests for assistance from
foreign governments and U.S proposals
for conducting research at incidents that
occur in waters of other countries.
(14) The Nuclear Regulatory
Commission will respond, as
appropriate, to releases of radioactive
matenals by its licensees, in accordance
with the NRC Incident Response Plan
(NUREC.-0728) to monitor the actions of
those licensees and assure that the
public health and environment are
protected and adequate recovery
operations are instituted. The Nuclear
Regulatory Commission will keep EPA
informed of any significant actual or
potential releases in accordance with
procedural agreements. In addition, the
Nuclear Regulatory Commission will
provide advice to the OSC/RPM when
assistance is required in identifying the
source and character of other hazardous
substance releases where the Nuclear
Regulatory Commission has licensing
authority for activities utilizing
radioactive materials.
(15) The General Services
Administration (GSA) provides logistic
and telecommunications support to
federal agencies, During an emergency
situation, GSA quickly responds to aid
state and local governments. The type of
support provided might include leasing
and furnishing office space, setting up
telecommunications and transportation
services, and advisory assistance
(16) The National Response Center
(NRC). located at USCG Headquarters. is
the national communications center,
continuously manned for handling
activities related to response actions.
The NRC acts as the single federal point
of contact for all pollution incident
reporting and as the NRT
communications center These response
actions include. Oil and hazardous
substances, radiological, biological.
etiological, surety materials, munitions.
and fuels. Notice of discharges must be
made telephonically through a toll free
number or a special local number
(Telecommunication Device for the Deaf
(TDD) and collect calls acccpted.) The
telephone report is distributed to any
interested NRT member agency or
federal entity that has established a
written agreement or understanding
with the NRC Each telephone notice is
magnetically voice recorded and
manually entered into an on-line
computer data base The NRC tracks
medium, major, and potential major
spills and provides incident summaries
to all NRT members and other interested
parties. The NRC evaluates incoming
information and immediately advises
FEMA of a potential major disaster or
evacuations situation. The NRC
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54757
provides facilities for the WRT to use in
coordinating a national response action,
when required; assists in arra ngements
for regular as well as special NRT
meetings and maintains information on
the time and place of such meetings;
and sends representatives to RRT
meetings as appropriate. The NRC is
available to assist all NRT agencies as
needed
§300.180 State and local participation in
response.
(a) Each state governor is requested to
designate one state office/representative
to represent the state on the appropriate
RRT. The state’s office/representative
may participate fully in all activities of
the appropriate RRT. Each state
governor is also requested to designate
a lead state agency that will direct state-
lead response operations. This agency is
responsible for designating the OSC/
RPM for state-lead response actions,
designating SACS for federal-lead
response actions, and coordinating/
communicating with any other state
agencies, as appropriate. Local
governments are invited to participate
in activities on the appropnate RRT as
may be provided by state law or
arranged by the state’s representative.
Indian tribes wishing to participate
should assign one person or office to
represent the tribal government on the
appropriate RRT
(b) Appropriate local and state
officials (including Indian tribes) will
participate as part of the response
structure as provided in the ACP.
(ci in addition to meeting the
requirements for local emergency p]ans
under SARA section 303, state and local
government agencies are encouraged to
include contingency planning for
responses, consistent with the NO’,
RCF, and ACP in all emergency and
disaster planning
Cd) For facilities not addressed under
CERCLA or the CWA, states are
encouraged to undertake response
actions themselves or to use their
authorities to compel potentially
responsible parties to undertake
response actions,
(e) States are encouraged to enter into
cooperative agreements pursuant to
section 104 (c)(3) and (di of ERCLA to
enab)e them to undertake actions
authorized under subpart E of the NCP.
Requirements for entering into these
agreements are included in subpart F of
the NCP. A state agency that acts
pursuant to such agreements is referred
to as the lead agency. In the event there
is no cooperative agreement, the lead
agency can be designated in a SMOA or
other agreement.
(I) Because state and local public
safety organizations would normally be
the first government representatives at
the scene of a discharge or release, they
are expected to initiate public safety
meas ires that are necessary to protect
public health and welfare and that are
consistent with containment and
cleanup requirements in the NO’, and
are responsible for directing evacuations
pursuant to existing state or local
procedures.
§300.185 Nongovernmental partlcipatloa.
(a) Industry groups, academic
organizations, and others are
encouraged to commit resources for
response operations. Specific
commitments should be listed in the
RCP and ACP. Those entities required to
develop tank vessel and facility
response plans under CWA section
311(j) must be able to respond to a
worst-case discharge to the maximum
extent practicable, and should commit
sufficient resources to implement other
aspects of these plans.
Ib) The technical and scientific
information generated by the local
community, along with information
from federal, state, and local
governments, should be used to assist
the OSC/RPM in devising response
strategies where effective standard
techniques are unavailable. Such
information and strategies will be
incorporated into the ACP, as
appropriate The SSC may act as liaison
between the OSC/RPM and such
interested organizations.
Cc) ACPs shall establish procedures to
allow for well organized, worthwhile,
and safe use of volunteers, including
compliance with §300 150 regarding
worker health and safety. ACPs should
provide for the direction of volunteers
by the OSC/RPM or by other federal,
state, or local officials knowledgeable in
contingency operations and capable of
providing leadership. ACPs also should
ulentify specific areas in which
volunteers can be used, such as beach
surveillance, logistical support, and bird
and wildlife treatment. Unless
specifically requested by the OSC/RPM,
volunteers generally should not be used
for physical removal or remedial
activities If, in the judgment of the
OSC/RPM, dangerous conditions exist,
volunteers shall be restricted from on-
scene operations.
(d) Nongovernmental participation
must be in compliance with the
requirements of subpart H of this pan if
any recovery of costs will be sought.
Subpart C—Planning and
Preparedness
§ 300,200 General.
This subpart summarizes emergency
preparedness activities relating to
discharges of oil and releases of
hazardous substances, pollutants, or
contaminants; describes the three levels
of contingency planning under the
national response system, and cross-
references state and local emergency
preparedness activities under SARA
title I II, also known as the “Emergency
Planning and Community Right-to-
Know Act of 1986” but referred to
herein as “title III.” Regulations
implementing title Ill are codified at 40
CFR subchapter F
§300.205 PlannIng and ceordinatton
structure.
(a) National As described in
§ 300.110 . the WRI is responsible for
national planning and coordination.
(b I Begional. As described in
S 300.115, the RRTs are responsible for
regional planning and coordination
(c) Area. As required by section 311(j)
of the CWA, under the direction of the
federal OSC for its area, Area
Committees comprising qualified
personnel of federal, state, and local
agencies shall be responsible for.
(1) Preparing an ACP for their areas
(as describad in § 300.210(c));
(Z) Working with appropriate federal,
stale, and local officials to enhance the
contingency planning of those officials
and to assure pre-planning of joint
response efforts, including appropriate
procedures for mechanical recovery,
dispersal, shoreline cleanup, protection
of sensitive environmental areas, and
protection, rescue, and rehabilitation of
fisheries and wildlife: and
(3) Working with appropriate federal,
state, and local officials to expedite
decisions for the use of dispersants and
other mitigating substances ond devices
(d) State. As provided by sections 301
and 303 of title 11 1, the SERC of each
state, appointed by the Governor, is to
designate emergency planning districts,
appoint Local Emergency Planning
Committees (LEPCs), supervise and
coordinate their activities, and review
local emergency response plans. which
are described in § 300.215. The SERC
also is to establish procedures for
receiving and processing requests from
the public for information generated by
title Ill reporting requirements and to
designate an official to serve as
coordinator for information.
(e) Local. As provided by sections 301
and 303 of title I II, emergency planning
districts are designated by the SERC in
order to facilitate the preparation and
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implementation of emergency plans.
Each LEPC is to prepare a local
emergency response plan for the
emergency planning district end
establish procedures for receiving and
processing requests from the public for
information generated by title III
reporting requirements. The LEPC is to
appoint a chair and establish rules for
the LEPC. The LEPO is to designate an
official to serve as coordinator for
information and designate in its plan a
community emergency coordinator.
§ 300.210 Federal contingency plans.
There are three levels of contingency
plans under the national response
system: The National Contingency Plan,
RU ’s, end AU’s These plans are
available for inspection at EPA regional
offices or USCG district offices.
Addresses and telephone numbers for
these offices may be found in the United
States Government Manual, issued
annually, or in local telephone
directories.
(a) The National Contingency Plan
The purpose and obiectives, authority,
and scope of the NCP are described in
§ 5300. 1 through 300.2.
(b) Regional Contingency Plans. The
ERTs, working with the states, shall
develop federal RCPs for each standard
federal region, Alaska, Oceania in the
Pacific, and the Caribbean to coordinate
timely, effective response by various
federal agencies and other organizations
to discharges of oil or releases of
hazardous substances, pollutants, or
conteminants. R U ’s shall, as
appropriate, include information on all
useful facilities and resources in the
region, from government, commercial,
academic, and other sources , To the
greatest extent possible, RCPs shall
follow the format of the NCP and be
coordinated with state emergency
response plans, ACPs, which are
described in 5 300.210(c), and title Ill
local emergency response plans, which
are described in ç300.215. Such
coordination should be accomplished
by working with the SERCs in the region
covered by the RCP RCPs shall contain
lines of demarcation between the inland
and coastal zones, as mutually agreed
upon by USCG and EPA.
(ci Area Contingency Plans (i) Under
the direction of an OSC and subject to
approval by the lead agency, each Area
Committee, in consultation with the
appropriate RRTs, Coast Guard DRGs,
the NSFCC, SSCs, LEPCs, and SERCS,
shall develop an A U ’ for its designated
area. This plan, when implemented in
conjunction with other provisions of the
NC?, shall be adequate to remove a
worst case discharge under § 300.324.
and to mitigate or prevent a substantial
threat of such a discharge, from a vessel,
offshore facility, or onshore facility
operating in or near the area.
(2) The areas of responsibility may
include several title 111 local planning
districts, or parts of such distncts. In
developing the AC?, the OSC shall
coordinate with affected SERCs and
LEPCs. The AC? shall provide for a well
coordinated response that is integrated
and compatible, to the greatest extent
possible, with all appropriate response
plans of state, local, and non-federal
entities, and especially with title II I
local emergency response plans.
(31 The AC? shall include the
following:
(i) A description of the area covered
by the plan, including the areas of
special economic or environmental
importance that might be damaged by a
discharge;
(ii) A description in detail of the
responsibilities of an owner or operator
and of federal, state, and local agencies
in removing a discharge, and in
mitigating or preventing a substantial
threat of a discharge;
(iii) A list of equipment (including
firefig.hting equipment). dispersants. or
other mitigating substances and devices,
and personnel available to an owner or
operator and federal, state, and local
agencies, to ensure an effective and
immediate removal of a discharge, and
to ensure mitigation or prevention of a
substantial threat of a discharge (this
may be provided in an appendix or by
reference to other relevant emergency
plans (e.g., state or LEPC plans), which
include such equipment lists);
(iv) A description of procedures lobe
followed for obtaining an expedited
decision regarding the use of
dispersants; and
(v) A detailed description of how the
plan is integrated into other AU’s and
tank vessel, offshore facility, end
onshore facility response plans
approved by the President, and into
qperating procedures of the NSFCC.
4)(i) In order to provide for
oordinated, immediate and effective
protection, rescue, and rehabilitation of,
and minimization of nsk of injury to,
fish and wildlife resources and habitat,
Area Committees shall incorporate into
each AC? a detailed annex containing a
Fish and Wildlife and Sensitive
Environments Plan that is consistent
with the RU’ and NC?. The annex shall
be prepared in consultation with the
USFWS and NOA,A and other interested
natural resource management agencies
and parties. It shall address fish and
wildlife resources and their habitat, and
shall include other areas considered
sensitive environments in a separate
section of the annex, based upon Area
Committee recommendations. The
annex will provide the necessary
information and procedures to
immediately and effectively respond to
discharges that may adversely affect fish
and wildlife end their habitat and
sensitive environments, including
provisions for a response to a worst case
discharge. Such information shall
include the identification of appropriate
agencies and their responsibilities,
procedures to notify these agencies
following a discharge or threat of a
discharge, protocols for obtaining
required fish and wildlife permits and
other necessary permits, and provisions
to ensure compatibility of annex-related
activities with removal operations.
(ii) The annex shall:
(A) ldentify and establish priorities
for fish and wildlife resources and their
habitats and other important sensitive
areas requiring protection from any
direct or indirect effects from discharges
that may occur. These effects include,
but are not limited to. any seasonal or
historical use, as well as all critical,
special, significant or otherwise
designated protected areas.
(B) Provide e mechanism to be used
during a spill response for timely
identification of protection priorities of
those fish and wildlife resources and
habitats and sensitive environmental
areas that may be threatened or injurec
by a discharge. These include as
appropriate, not only marine and
freshwater species. habitats, and their
food sources, but also terrestrial wildlife
and their habitats that may be affected
directly by onshore oil or indirectly by
oil-related factors, such as loss or
cnntamination of forage The
mechanism shall also provide for
expeditious evaluation and appropriate
consultations on the effects to fish and
wildlife, their habitat, and other
sensitive environments from the
application of chemical
countermeasures or other
countermeasures not addressed under
paragraph (c)(3lliii) of this section.
(C) Identify potential environmental
effects on fish and wildlife, their
habitat, and other sensitive
environments resulting from removal
actions or countermeasures, including
the option of no removal Based on this
evaluation of potential environmental
effects, the annex should establish
priorities for application of
countermeasure and removal actions to
habitats within the geographic region of
the AC?. The annex should establish
methods to minimize the identified
effects on fish and wildlife because of
response activities, mcluding. but not
limited to: Disturbance of sensitive areas
and habitats; illegal or inadvertent
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taking or disturbance of fish and
wildlife or specimens by response
personnel; and fish and wildlife, their
habitat, and environmentally sensitive
areas coming in contact with various
cleaning or bioremediation agents.
Furthermore, the annex should identify
the areas where the movement of oiled
debris may pose a risk to resident.
transient, or migratory fish and wildlife.
and other sensitive environments and
should discuss measures to be
considered For removing such oiled
debris in a timely fashion to reduce
such risk.
(D) Provide for pre.approval of
application of specific countermeasures
or removal actions that, if expeditiously
applied, will minimize adverse spill-
induced impacts to fish and wildlife
resources, their habitat, and other
sensitive environments. Such pre-
approval plans must be consistent with
paragraphs (c)(3) (‘I and (iii) of this
section and subpart J requirements. and
must have the concurrence of the
natural resource trustees.
(E) Provide monitoring plan(s) to
evaluate the effectiveness of different
countermeasures or removal actions in
protecting the environment. Monitoring
should include “set-aside” or “control”
areas, where no mitigative actions are
taken.
(F) Identify and provide for the
acquisition and utilization of necessary
response capabilities for protection.
rescue, and rehabilitation of flsh and
wildlife resources and habitat. This may
include appropriately permitted private
organizations and individuals with
appropriate expertise and experience.
The suitable organizations should be
identified in cooperation with natural
resource law enforcement agencies.
Such capabilities shall include, but not
be limited to, identification of facilities
and equipment necessary for deterring
sensitive fish and wildlife from enterin
oiled areas, and for capturing, holding,
cleaning, and releasing injured wildlife
Plans for the provision of such
capabilities shall ensure that there is no
interference with the OSC’s removal
operations.
(C) Identify appropriate federal and
state agency contacts and alternates
responsible for coordination of fish and
wildlife rescue and rehabilitation and
protection of sensitive environments;
identify and provide for required fish
and wildlife handling and rehabilitation
permits necessary under federal and
state laws; and provide guidance on the
implementation of law enforcement
requirements included under current
federal and state laws and
corresponding regulations
Requirements include, but are not
limited to procedures regarding the
capture. transport. rehabilitation, release
of wildlife exposed to or threatened by
oil, and disposal of contaminated
carcasses of wildlife.
(I-I) Identify and secure the means for
providing, if needed, the minimum
required OSHA and EPA training for
volunteers, including those who assist
with injured wildlife.
(I) Define the requirements for
evaluating the compatibility between
this annex and non-federal response
plans (including those of vessels.
facilities and pipelines) on issues
affecting fish and wildlife, their habitat,
and sensitive environments.
§ 300.212 Area response drills.
The OSC periodically shall conduct
drills of removal capability (including
fish and wildlife response capability).
without prior notice, in areas for which
ACPs are required by § 300.210(c) and
under relevant tank vessel and facility
response plans
§ 300.215 TItle Ill local emergency
response plans.
This section describes and cross-
references the regulations that
implement title Ill These regulations
are codified at 40 CFR part 355.
(a) Each LEPC is to prepare an
emergency response plan in accordance
with section 303 of title II I and review
the plan once a year, or more frequently
as changed circumstances in the
community or at any facility may
require. Such title III local emergency
response plans should be closely
coordinated with applicable federal
ACPs and state emergency response
plans.
§ 300.220 Related Title Ill Issues.
Other related title III requirements are
found in 40 CFR part 355.
Subpart D—Operational Response
Phases for Oil Removal
§ 300.300 Phase I—Discovery or
notification.
(a) A discharge of oil may be
discovered through
(1) A report submitted by the person
in charge of a vessel or facility, in
accordance with statutory requirements,
(2) Deliberate search by patrols;
(3) Random or incidental observation
by government agencies or the public; or
(4) Other sources
(b) Any person in charge of a vessel
or a facility shall, as soon as he or she
has knowledge of any discharge from
such vessel or facility in violation of
section 311(b)(3) of the CWA,
immediately notify the NRC If direct
reporting to the NRC is not practicable,
reports may be made to the USCG or
EPA predesignated OSC for the
geographic area where the discharge
occurs. The EPA predesignated OSC
may also be contacted through the
regional 24-hour emergency response
telephone number. All such reports
shall be promptly relayed to the NRC. If
it is not possible to notify the NRC or
predesignated OSC immediately, reports
may be made immediately to the nearest
Coast Guard unit. In any event such
person in charge of the vessel or facility
shall notify the NRC as soon as possible
(c) Any other person shall, as
appropriate, notify the NRC of a
discharge of oil.
(d) Upon receipt of a notification of
discharge. the NRC shall promptly
notify the OSC. The OSC shall ensure
notification of the appropriate state
agency of any state which is. or may
reasonably be expected to be, affected
.by the discharge. The OSC shall then
proceed with the following phases as
outlined in the RCP and ACP
§300.305 Phase Il —PrelImInary
assessment and inItiation of action.
(a) The OSC is responsible for
promptly initiating a preliminary
assessment.
(b) The preliminary assessment shall
be conducted using available
information, supplemented where
necessary and possible by an on-scene
Inspection. The OSC shall undertake
actions to
(1) Evaluate the magnitude and
severity of the discharge or threat to
public health or welfare or the
environment,
(2) Assess the feasibility of removal;
and
(3) To the extent practicable, identify
potentially responsible parties
(c) Except in a case when the OSC is
required to direct the response to a
discharge that may pose a substantial
threat to the public health or welfare of
the United States (including but not
limited to fish, shellfish, wildlife, other
natural resources, and the public and
private beaches and shorelines of the
United States), the USC may allow the
responsible party to voluntarily and
promptly perform removal actions,
provided the OSC determines such
actions will ensure an effective and
immediate removal of the discharge or
mitigation or prevention of a substantial
threat of a discharge. If the responsible
party does conduct the removal, the
OSC shall ensure adequate surveillance
over whatever actions are initiated. If
effective actions are not being taken to
eliminate the threat, or if removal is not
being properly done, the OSC should, to
the extent practicable under the
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54760 Federal Register / Vol. 58, No. 203 / Friday. October 22, 1993 I Proposed Rules
-circumstances, so advise the responsible
party. lithe responsible party does not
respond properly the OSC shall take
appropriate response actions and should
notify the responsible party of the
potential liability for federal response
costs incurred by the USC pursuant to
the OPA and CWA. Where practicable,
continuing efforts should be made to
encourage response by responsible
parties.
(1) In carrying out a response under
this section. the OSC may:
(i) Remove or arrange for the removal
of a discharge. and mitigate or prevent
a substantial threat of a discharge, at any
time:
(ii) Direct or monitor all federal, state,
and private actions to remove a
discharge; and
(iii) Remove and, if necessary, destroy
a vessel discharging. or threatening to
discharge, by whatever means are
available
(2)11 the discharge results in a -
substantial threat to the public health or
welfare of the United States (including,
but not limited to fish, shellfish.
wildlife, other natural resources, and
the public and private beaches and
shorelines of the United States), the
OSC must direct all response efforts, as
provided in § 300 322(b) of this part.
The OSC should declare as
expeditiously as practicable to spill
response participants that the federal
government will direct the response
The OSC may act without regard to any
other provision of the law governing
contracting procedures or employment
of personnel by the federal government
in removing or arranging for the removal
of such a discharge
(d) The OSC shall ensure that the
natural resource trustees are promptly
notified in the event of any discharge of
oil, to the maximum extent practicable
as provided in the Fish and Wildlife and
Sensitive Environments Plan annex tb -
the ACP for the area in which the
discharge occurs The OSC and the
trustees shall coordinate assessments,
evaluations, investigations, and
planning with respect to appropriate
removal actions The OSC shall consult
with the affected trustees on the
appropriate removal action to be taken
The trustees will provide timely advice
concerning recommended actions with
regard to trustee resources potentially
affected. The trustees also will assure
that the OSC is informed of their
activities in natural resource damage
assessment that may affect response
operations When circumstances permit.
the OSC shall share the use of response
resources with the trustees, provided
trustee activities do not interfere with
response actions. The lead
administrative trustee shall, as
appropriate, apply to the USC for access
to federal response resources on behalf
of all trustees
§300.310 Phase ill—Containment,
countermeasures, cleanup, and disposal.
(a) Defensive actions shall begin as
soon as possible to prevent, minimize,
or mitigate threat(s) to the public health
or welfare or the environment. Actions
may include but are not limited to:
Analyzing water samples to determine
the source and spread of the oil;
controlling the source of discharge;
measuring and sampling; source and
spread control or salvage operations,
placement of physical barriers to deter
the spread of the oil and to protect
natural resources and sensitive
ecosystems; control of the water
discharged from upstream
impoundment; and the use of chemicals
and other materials in accordance with
subpart J of this part to restrain the
spread of the oil and mitigate its effects.
The A P prepared under § 300.210(c)
should be consulted for procedures to
be followed for obtaining an expedited
decision regarding the use of
dispersants and other products listed on
the N P Product Schedule.
(b) As appropriate, actions shall be
taken to recover the oil or mitigate its
effects Of the numerous chemical or
physical methods that may be used, the
chosen methods shall be the most
consistent with protecting public health
and welfare and the environment
Sinking agents shall not be used.
(c) Oil and contaminated materials
recovered in cleanup operations shall be
disposed of in accordance with the RCP,
ACP, and any applicable laws,
regulations, or requirements RRT and
ACP guidelines may identify the
disposal plans to be followed during an
oil spill response and may address: The
sampling, testing, and classifying of
recovered oil and oiled debris: the
segregation and stockpiling of recovered
oil and oiled debris; prior state disposal
approvals and permits. and the routes.
methods (e g recycle/reuse, on-site
burning, incineration, landfilling. etc.),
and sites for the disposal of collected
oil, oiled debris, and animal carcasses.
§300.315 Phase IV—Oocumentation and
cost recovery.
(a) All OSLTF users need to collect
and maintain documentation to support
all actions taken under the CWA In
general, documentation shall be
sufficient to support full cost recovery
for resources utilized arid shall identify
the source and circumstances of the
incident, the responsible party or
parties, and impacts and potential
impacts to public health and welfare
and the environment Documentation
procedures are contained in 33 CFR
subchapter M.
(b) When appropriate, documentation
shall also be collected for scientific
understanding of the environment and
for research and development of
improved response methods and
technology. Funding for these actions is
restricted by sect ion 6002 of the OPA
(c) OSCs shall submit USC reports to
the NRT or RRT, only if requested, as
provided by § 300.165.
(d) OSCs shall ensure the necessary
collection and safeguarding of
information, samples, and reports
Samples and information shall be
gathered expeditiously during the
response to ensure an accurate record of
the impacts incurred. Documentation
materials shall be made available to the
trustees of affected natural resources
The OSC shall make available to
trustees of the affected natural resources
information and documentation in the
OSC’s possession that can assist the
trustees in the determination of actual
or potential natural resource injuries
(e) Information and reports obtained
by the EPA or USCG OSC shall be
transmitted to the appropriate offices
responsible for follow-up actions
§ 300.317 NatIonal response priorItIes.
(a) Safety of human life must be giver.
the top priority during every response
action. This includes any search and
rescue efforts in the general proximity of
the discharge and the insurance of
safety of response personnel
(b) Stabilizing the situation to
preclude the event from worsening is
the next priority All efforts must be
focused on saving a vessel that has been
involved in a grounding, collision, fire.
or explosion, so that it does not
compound the problem. Comparable
measures should be taken to stabilize a
situation involving a facility, pipeline,
or other source of pollution Stabilizing
the situation includes securing the
source of the spill and/or removing the
remaining oil from the container (vessel,
tank, or pipeline) to prevent additional
oil spillage, to reduce the need for
follow-up response action, and to
minimize adverse impact to the
environment.
(c) The response must use all
necessary containment and removal
tactics in a coordinated manner to
ensure a timely, effective response that
minimizes adverse impact to the
environment
(d) All parts of this national responsr
strategy should be addressed
concurrently, but safety and
stabilization are the highest priorities
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54761
th OSC should not delay containment
and removal decisions unnecessarily
and should take actions to minimize
adverse impact to the environment that
wins as soon as a discharge occurs, as
well as actions to minimize further
adverse environmental impact from
additional discharges.
(e) The priorities set forth in this
section are broad in nature, and should
not be interpreted to preclude the
consideration of other priorities that
may anse on a site -specifIc basis.
§ 300.320 General pattern of response.
(a) When the OSC receives a report of
a discharge. actions normally should be
taken in the following sequence:
(1) Investigate the report to determine
pertinent information such as the threat
posed to public health or welfare or the
environment, the type and quantity of
polluting material, and the source of the
discharge.
(2) Officially classify the size (i.e.,
minor, medium. mayor) and type (i.e.,
substantial threat to the public heaLth or
welfare, worst case discharge) of the
discharge and determine the course of
action to be followed to ensure effective
and immediate removal, mitigation, or
prevention of the discharge. Some
discharges that are classified as a
substantial threat to the public health or
welfare may he further classified as a
spill of national significance by the
Administrator of EPA or the
Commandant of the USCC. The
appropnate course of action may be
prescribed in § 30O.322, 300.323, and
300.324.
(i) When the reported discharge is an
actual or potential major discharge.
immediately notify the RRT, including
the affected state, if appropriate, and the
NRC, and ensure notification of the
natural resource trustees, as required by
§ 300.305(d)
(ii) When the investigation shows that
an actual or potential medium discharge
exists, the OSC shall recommend
activati,in of the RRT, if appropriate.
(iii) When the investigation shows
that an actual or potential minor
discharge exists, the OSC shall monitor
the situation to ensure that proper
removal action is being taken.
(3) lIthe OSC determines that
effective and immediate removal,
mitigation, or prevention of a discharge
can be achieved by private party efforts,
and where the discharge does not pose
a substantial threat to the public health
or welfare of the United States,
determine whether the responsible party
or other person is properly carrying out
removal. Removal is being done
properly when:
(i) The cleanup is fully sufficient to
effectively and immediately remove,
minimize, or mitigate threat(s) to public
health and welfare and the
environment. Removal efforts are
ijnproper to the extent that federal
efforts are necessary to remove,
minimize further, or mitigate those
threats; and
(ii) The removal efforts are in
accordance with applicable regulations,
including the NCP.
(4) Where appropriate, determine
whether a state or political subdivision
thereof has the capability to carry out
any or all removal actions. If so, the
OSC may arrange funding to support
these actions
(5) Ensure prompt notification of the
trustees of affected natural resources in
accordance with the applicable RCP and
A C ?.
(b) Removal shall be considered
complete when so determined by the
OSC in consultation with the Governor
or Governors of the affected states
When the OSC considers removal
complete, OSLTF removal funding shall
end. This determination shall not
preclude additional removal actions
under applicable state law.
§ 300.322 Response to substantial threats
to publtc health or wellare.
(a) As pad of the investigation
described in § 300.220, the OSC shall
determine whether a discharge results
in a substantial threat to public hea]th
or welfare (including, but not limited to,
fish, shellfIsh, wildlife, other natural
resources, and the public and private
beaches and shorelines of the United
Stales). Factors to be considered by the
OSC in making this determination
include, hut are not limited to, the size
of the discharge, the character of the
discharge. and the nature of the threat
to public health or welfare. Upon
obtaining such information, the OSC
shall conduct an evaluation of the threat
posed, based on the OSC’s experience in
assessing other discharges, and
consultation with senior lead agency
officials and readily available
authorities on issues outside the OSC’s
technical expertise.
(b) If the investigation by the OSC
shows that the discharge poses or may
present a substantial threat to public
health or welfare of the United States,
the OSC shall direct all federal, state, or
private actions to remove the discharge
or to mitigate or prevent the threat of
such a discharge, as appropriate. In
directing the response in such cases, the
OSC may act without regard to any
other provision of law governing
contracting procedures or employment
of personnel by the federal government
to:
(1) Remove or arrange for the removal
of the discharge;
(2) Mitigate or prevent the substantial
threat of the discharge: and
(3) Remove and, ii necessary, destroy
a vessel discharging, or threatening to
discharge, by whatever means are
available.
Ic) in the case of a substantial threat
to public health or welfare of the United
States, the OSC shall:
(1) Assess opportunities for the use of
various special teams and other
assistance described in § 300.145.
including the use of the services of the
NSFCC, as appropriate,
(2) Request immediate activation of
the RRT, and
(3) Take whatever additional response
actions are deemed appropriate,
including, hut not limited to,
implementation of the AC? as required
by section 31 1ffl(4) of the CWA or
relevant tank vessel or facility response
plan required by section 311 1()t5) of the
CWA.
When requested by the OSC, the lead
agency or RRT shall dispatch
appropriate personnel to the scene of
the discharge to assist the OSC. This
assistance may include technical
support in the agency’s areas of
expertise and disseminating information
to the public. The lead agency shall
ensure that a contracting officer is
available on scene, at the request of the
OSC.
§ 300.323 SpIlls 01 natIonal significance
(a) A discharge may be classified as a
spill of national significance ISONS) by
the Administrator of EPA for discharges
occumng in the inland zone and the
Commandant of the USCG for
discharges occurring i ii the coastal zone
(b) For a SONS in the inland zone, the
EPA Administrator may name a senior
Agency official to assist the OSC in:
(1) Communicating with affected
parties and the public; and
(2) Coordinating federal, state, local,
and mternational resources at the
national level.
This strategic coordination will involve,
as appropriate, the NRT, RRT(s). the
Governor(s) of affected state(s), and the
mayor(s) or other chief executive(s) of
local government(s).
(c) For a SONS in the coastal zone, the
USCG Commandant may name a
National Incident Commander (NIC)
who will assume the role of the OSC in:
(1) Communicating with affected
parties and the public, and
(2) Coordinating federal, state, local,
and international resources at the
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Federal Register / Vol. 58, No.203 I Frida October 22, 1993 / Proposed Rules
national level. This strategic
coordination will involve, as
appropriate, the NRT, RRT(s), the
Governor (s) of affected state(s), and the
mayor(s) or other chief executive(s) of
local government(s).
§ 300.324 Response to worst case
discharges
(a) lithe investigation by the OSC
shows that a discharge is a worst case
discharge or there is a substantial threat
of such a discharge, the OSC shall:
(1) Notify the NSFCC;
(21 Require, where applicable.
implementation of the worst case
portion of an approved tank vessel or
facility response plan required by
section 3 1 1( 1 1(5) of the CWA;
(3) implement the worst case portion
of the ACP required by section 311(9(4)
of the CWA; and
(4) Take whatever additional response
actions are deemed appropriate.
(h I Under the direction of the OSC.
the NSFCC shall coordinate use of
private and public personnel and
equipment , including strike teams, to
remove a worst case discharge and
mitigate or prevent a substantial threat
of such a discharge.
§300.335 Funding.
(a) The OSLTF is available under
certain circumstances to fund removal
of oil performed under section 311 of
the CWA Those circumstances and the
procedures for accessing the OSLTF are
described in 33 CFR subchapter M. The
responsible party, is liable for costs of
federal removal and damages in
accordance with section 311(1) of the
CWA. section 1002 of the OPA, and
other federal laws.
(b) Where the OSC requests assistance
from a federal agency, that agency may
be reimbursed in accordance with the
provisions of 33 CFR subchapter M.
Specific interagency reimbursement
agreements may be used when
necessary to ensure that the federal
resources will be available for a timely
response to a discharge of oil.
(c) Procedures foT funding the
initiation of natural resource damege
assessment are covered in 23 CFR
subchapter M.
(d l Response actions other than
removal, such as scientific
investigations not in support of removal
actions or law enforcement, shall be
provided by the agency with legal
responsibility for those specific actions.
(e) The funding of a response to a
discharge from a federally owned,
operated , or supervised facility or vessel
is the responsibility of the owning.
operating . or supervising agency.
( 0 The following agencies have funds
available for certain discharge removal
actions:
(1) EPA may provide funds to begin
timely discharge removal actions when
the OSC is an EPA represantative.
(2) DOD has two specific sources of
funds that may be applicable to an oil
discharge under appropriate
circumstances. This does not consider
military resources that might be made
available under specific conditions.
0) Funds required for removal of a
sunken vessel or similar obstruction of
navigation are available to the Corps of
Engineers through Civil Works
Appropnations, Operations and
Maintenance, General
(ii) USN may conduct salvage
operations contingent on defense
operational commitments, when funded
by the requesting agency. Such funding
may be requested on a direct cite basis.
(3) Pursuant to Title I of the OPA, the
state or states affected by a discharge of
oil may act where necessary to remove
such discharge. Pursuant to 33 CFR
subchapter M states may be reimbursed
from the OSLTF for the reasonable costs
incurred in such a removal.
Subpart E—Hazardous Substance
Response
§ 300.400 Ganaral.
(a) This subpart establishes methods
and criteria for determining the
appropriate extent of response
authorized by cERCLA and CWA
section 311(c):
(i) When there is a release of a
hazardous substance into the
environment, or
(2) When there is a release into the
environment of any pollutant or
contaminant that may present an
imminent and substantial danger to the
public health or welfare,
* * * * *
§ 300.405 DIscovery or notification.
(a) A release may be discovered
through:
(1J A report submitted in accordance
with section 103(a) of CERCLA, i e,
reportable quantities codified at 40 CFR
part 302;
(2) A report submitted to EPA in
accordance with section 103(c) of
ERCLA;
(3) Investigation hy government
authorities conducted in accordance
with section 104(e) of CERCLA or other
statutory authority;
(4) Notification of a release by a
federal or state permit holder when
required by its permit;
(5) Inventory or survey efforts or
random or incidental observation
reported by government agencies or the
public;
(6) Submission of a citizen petition tc
EPA or the appropriate federal facility
requesting a preliminary assessment, in
accordance with section 105(d) of
CERCLA;
(7) A report submitted in accordance
with section 311(b)(5) of the CWA; and
(8) Other sources.
* S S * *
(0 * • *
(3) If radioactive substances are
present in a release, the EPA
Radiological Response Coordinator
should be notified for evaluation and
assistance either directly or via the NRC.
consistent with § 300.130(e) and
300.145(0.
* * * * S
§300.410 Removal site evaluation.
(a) A removal site evaluation includes
a removal preliminary assessment and.
if warranted, a removal site inspection
(b) A removal site evaluation of a
release identified for possible CERCLA
response pursuant to § 300.415 shall, as
appropriate, be undertaken by the lead
agency as promptly as possible. The
lead agency may perform a removal
preliminary assessment in response to
petitions submitted by a person who is
or may be, affected by a release of a
hazardous substance, pollutant, or
contaminant pursuant to § 300.420 [ b)(5).
(c)(1) The lead agency shall, as
appropriate, base the removal
preliminary assessment on readily
available information A removal
preliminary assessment may include,
but is not limited to.
(i) Identification of the source arid
nature of the release or threat of release;
(ii) Evaluation by ATSDR or by other
sources, for example, state public health
agencies. of the threat to public health;
(iii) Evaluation of the magnitudo of
the threat;
(iv) Evaluation of factors necessary to
make the determination of whether a
removal is necessary; and
(v) Determination of whether a
nonlederal party is undertaking proper
response.
12) A removal preliminary assessment
of releases from hazardous waste
management facilities may include
collection or review of data such as site
management practices, information from
generators, photographs, analysis of
historical photographs, literature
searches, and personal interviews
conducted, as appropriate.
Id) A removal site inspection may 1.
performed if more information is
needed. Such inspection may include a
perimeter (i.e , off.site) or on•site
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54763
inspection, taking into consideration
whether such inspection can be
performed safely.
Ie](1)As part of the evaluation under
this section. the USC shall determine
whether a release governed by CWA
section 311(c)(2), has occurred.
(2) If such a release of a CWA
hazardous substance has occurred, the
OSC shall determine whether the
release results in a substantial threat to
the public health or welfare. Factors to
be considered by the OSC in making
this determination include, but are not
limited to, the size of the release, the
character of the release, and the nature
of the threat to public health or welfare.
Upon obtaining relevant elements of
such information, the USC shell
conduct an evaluation of the threat
posed, based on the OSC’s experience in
assessing other releases, and
consultation with senior lead agency
officials and readily available
authorities on issues outside the OSC’s
technical expertise.
(I) A removal site evaluation shall be
terminated when the OSC or lead
agency determines’
( ) There is no release;
(2) The source is neither a vessel nor
a facility as defined in §3005 of the
NC?;
(3) The release involves neither a
hazardous substance, nor a pollutant or
contaminant that may present an
imminent and substantial danger to
public health or welfare,
(4) The release consists of a situation
specified in § 300.400 (b) (1) through (31
subject to limitations on response;
(5) The amount, quantity. or
concentration released does not warrant
federal response:
(El A party responsible for the release,
or any other person. is providing
appropriate response, and on-scene
monitoring by the government is not
required; or
(7) The removal site evaluation is
completed.
Ig) The results of the removal site
evaluation shall be documented.
(h) The OSC or lead agency shall
ensure that natural resource trustees are
promptly notified in order that they may
initiate appropriate actions, including
those identified in subpart C of this
part The USC or lead agency shall
coordinate all response activities with
such affected trustees
(1) If the removal site evaluation
indicates that removal action under
§ 300 415 is not required, but that
remedial action under § 300 430 may be
necessary, the lead agency shall, as
appropriate, initiate a remedial site
evaluation pursuant to § 300.420
§ 300.415 Removal actien,
(a)(1) In determining the appropriate
extent of action to be taken in response
to a given reLease, the lead agency shall
first review the removal site evaluation,
any information produced through a
remedial site evaluation, if any has been
done previously. and the current site
conditions, to determine if removal
action is appropriate.
(2J Where the responsible parties are
known, an effort initially shall be made,
to the extent practicable, to determine
whether they can and will perform the
necessary removal action promptly and
properly.
(3) This section does not apply to
removal actions taken pursuant to
section 104(b) of CERCL.A The criteria
for such actions are set forth in section
104(b) of CERCLA
(b)(i) Al any release, regardless of
whether the site is included on the
National Priorities List (NFL), where the
lead agency makes the determination,
based on the factors in paragraph (bflZl
of this section, that there is a threat to
public health or welfare or the
environment, the lead agency may take
any appropriate removal action to abate,
prevent, minimize, stabilize, mitigate, or
eliminate the release or the threat of
release.
(2) The following factors shall be
considered in determining the
appropriateness of a removal action
pursuant to this section.
(i) Actual or potential exposure to
nearby human populations, animals, or
the food chain from hazardous
substances or pollutants or
contaminants;
(ii) Actual or potential contamination
of drinking water supplies or sensitive
ecosystems,
(iii) Hazardous substances or
- pollutants or contaminants in drums,
barrels, tanks, or other bulk storage
containers, tbat may pose a threat of
release:
(iv) High levels of hazardous
substances or pollutants or
contaminants in soils largely at or near
the surface, that may migrate;
(v) Weather conditions that may cause
hazardous substances or pollutants or
contaminants to migrate or be released,
(vi) Threat of fire or explosion,
(vii) The availability of other
appropnate federal or state response
mechanisms to respond to the release,
and
(viii) Other situations or factors that
may pose threats to public health or
welfare or the environment
(3) If the lead agency determines that
a removal action is appropriate, actions
shall, as appropriate, begin as soon as
possible to abate, prevent, minimize,
stabilize, mitigate, or eliminate the
threat to public health or welfare or the
environment. The lead agency shall, at
the earliest possible time, also make any
necessary determinations pursuant to
paragraph (b)(4) of this section.
(4) Whenever a planning period of at
least six months exists before on-site
activities must be initiated, and the lead
agency determines, based on a site
evaluation, that a removal action is
appropriate
(i)The lead agency shall conduct an
engineering evaluation/cost analysis
(EE/CA) or its equivalent The ES/CA is
an analysis of removal alternatives for a
site.
(ii) If environmental samples are to be
collected, the lead agency shall develop
sampling and analysis plans that shall
provide a process for obtaining data of
sufficient qualily and quantity to satisfy
data needs Sampling and analysis plans
shall be reviewed and approved by EPA
The sampling and analysis plans shall
consist of two parts.
(A) The field sampling plan, which
describes the number, type. and location
of samples and the type of analyses, and
(B) The quality assurance prolect
plan, which describes policy,
organization, and functional activities
and the data quality objectives and
measures necessary to achieve adequate
data for use in planning and
documenting the removal action
(5) CERCLA fund.financed removal
actions, other than those authorized
under section 104(b) of CERCLA, shall
be terminated after $ 2 million has been
obligated for the action or 12 months
have elapsed from the date that removal
activities begin on-site, unless the lead
agency determines that
Ii) There is an immediate risk to
public health or welfare or the
environment, continued response
actions are immediately required to
prevent, limit, or mitigate an emergency.
and such assistance will not otherwise
be provided on a timely basis, or
(ii) Continued response action is
otherwise appropriate and consistent
with the remedial action to be taken
(c)(1) In carrying out a response to a
release of a CWA hazardous substance,
as described in CWA sec’ion
311(c)l1)(Al, the USC may
(i) Remove or arrange for the removal
of a release, and mitigate or prevent a
substantial threat of a release, at any
time,
(ii) Direct or monitor all federal, state,
and private actions to remove a release,
and
(iii) Remove and, if necessary, destroy
a vessel releasing or threatening to
release CWA hazardous substances, by
whatever means are available
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inform the community of actions taken,
respond to inquiries, and provide
information concerning the release. All
news releases or statements made by
participating agencies shall be
coordinated with the OSC/RPM. The
spokesperson shall notify, at a
minimum, immediately affected
citizens, state and local officials, and,
when appropriate, civil defense or
emergency management agencies.
(2) For ERCLA actions where, based
on the site evaluation, the lead agency
determines that a removal is
appropriate, and that less than six
months exists before on-site removal
activity must begin, the lead agency
shall:
(i) Publish a notice of availability of
the administrative record file
established pursuant to § 300.820 in a
major local newspaper of general
circulation within 60 days of initiation
of on-site removal activity;
(ii) Provide a public comment period,
as appropriate, of not less than 30 days
from the time the administrative record
file is made available for public
inspection, pursuant to § 300.820(b)(2):
and
(iii) Prepare a written response to
significant comments pursuant to
§ 300.820(b)(3).
(3) For EERCLA removal actions
where on-site action is expected to
extend beyond 120 days from the
initiation of on-site removal activities,
the lead agency shall by the end of the
120-day period:
(‘) Conduct interviews with local
officials, community residents, public
interest groups, or other interested or
affected parties, as appropriate, to solicit
their concerns, information needs, and
how or when citizens would like to be
involved in the Superfund process;
(ii) Prepare a formal community
relations plan (CRP) based on the
community inter-views and other
relevant information, specifying the
community relations activities that the
lead agency expects to undertake during
the response; and
(iii) Establish at least one local
information repository at or near the
location of the response action. The
information repository should contain
items made available for public
information. Further, an administrative
record file established pursuant to
subpart I of this part for all removal
actions shall be available for public
inspection in at least one of the
repositories. The lead agency shall
in form the public of the establishment
of the information repository and
provide notice of availability of the
administrative record file for public
review. All items in the repository shall
be available for public inspection and
copying.
(4) Where, based on the site
evaluation, the lead agency determines
that a ERCLA removal action is
a9propriate and that a planning period
of at least six months exists prior to
initiation of the on-site removal
activities, the lead agency shall at a
minimum:
(U Comply with the requirements set
forth in paragraphs (nH3)(i), (ii), and (iii)
of this section, prior to the completion
of the engineering evaluation/cost
analysis (EEFCA), or its equivalent,
except that the information repository
and the administrative record file will
be established no later than when the
SE/CA approval memorandum is
signed;
(ii) Publish a notice of availability and
brief description of the ES/CA in a
major local newspaper of general
circulation pursuant to § 300.820;
(iii) Provide a reasonable opportunity,
not less than 30 calendar days, for
submission of written and oral
comments after completion of the EE/
CA pursuant to § 300.820(a). Upon
timely request, the lead egency will
extend the public comment period by a
minimum of iS days; and
(iv) Prepare a written response to
significant comments pursuant to
§ 300.820(a).
• * * * *
Subpart (3—Trustees for Natural
Resources
§ 300.600 DesIgnation of tederat trustees.
(a) The President is required to
designate in the NCP those federal
officials who are to act on behalf of the
public as trustees for natural resources.
Federal officials so designated will act
pursuant to section 107(f) of CERCLA,
section 311( 0(5) of the CWA, and
section 1006 of the OPA Natural
resources means land, fish, wildlife,
biota, air, water, ground water, drinking
water supplies, and other such
resources belonging to, managed by,
held in trust by, appertaining to, or
otherwise controlled (hereinafter
referred to as “managed or controlled”)
by the United States (including the
resources of the exclusive economic
zone).
fbi The following individuals shall be
the designated trustee(s) for general
categories of natural resources. They are
authorized to act pursuant to section
107(f) of CERCLA, section 311(0(5) of
the CWA, or section 1006 of the OPA
when there is injury to, destruction of,
loss of, or threat to natural resources as
a result of a release of a hazardous
substance or a discharge of oil.
Notwithstanding the other designations
in this section, the Secretaries of
Commerce and the Interior shall act as
trustees of those resources subject to
their respective management or control.
(1) Secretary of Commerce. The
Secretary of Commerce shall act as
trustee for natural resources managed or
controlled by DOC or by other federal
agencies and that are found in or under
waters navigable by deep draft vessels,
in, under, or using tidally influenced
waters, or waters of the contiguous
zone, the exclusive economic zone, and
the outer continental shelf, and in
upland areas serving as habitat for
marine mammals and other protected
species. However, before the Secretary
takes an action with respect to an
affected resource under the management
or protection of another federal agency,
he shall, whenever practicable. seek to
obtain the concurrence of that other
federal agency. Examples of the
Secretary’s trusteeship include marine
fishery resources and their supporting
ecosystems; most anadromous fish;
certain endangered species and marine
mammals; and the resources of National
Marine Sanctuaries and National
Estuarine Research Reserves.
(2) Secretary of the Interior. The
Secretary of the Interior shall act as
trustee for natural resources managed or
controlled by the DO!. Examples of the
Secretary’s trusteeship include
migratory birds: certain anadromous
fish, endangered species, and marine
mammals; federally owned minerals,
and certain federally managed water
resources. The Secretary of the Interior
shall also be trustee for those natural
resources for which an indian tribe
would otherwise act as trustee in those
cases where the United States acts on
behalf of the Indian tribe
(3) Secretary for the land managing
agency. For natural resources located
on, over, or under land administered by
the United States, the trustee shall be
the head of the department in which the
land managing agency is found. The
trustees for the principal federal land
managing agencies are the Secretaries of
DO!, USDA, DOD, and DOE.
(4) I-lead of authorized agencies. For
naturel resources located in the United
States but not otherwise described in
this section, the trustee shall be the
head of the federal agency or agencies
authorized to manage or control those
resources.
§ 300.605 State trustees.
State trustees shall act on behalf of the
public as trustees for natural resources
within the boundary of a state or
belonging to, managed by. controlled by,
or appertaining to such state. For the
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purposes of subpart G of this part, the
definition of the term “state” does not
include Indian tribes. The governor of a
state is encouraged to designate a state
lead trustee to coordinate all state
trustee responsibilities with other
trustee agencies and with response
activities of the RRT and OSC. The
state’s lead trustee would designate a
representative to serve as contact with
the OSC. This individual should have
ready access to appropriate state
officials with environmental protection,
emergency response, and natural
resource responsibilities. The EPA
Administrator or USCG Commandant or
their designees may appoint the state
lead trustee as a member of the Area
Committee. Response strategies should
be coordinated between the state and
other trustees and the USC for specific
natural resource locations in an inland
or coastal zone and should be included
in the Fish and Wildlife and Sensitive
Environments Plan annex of the Ac!’.
§300.610 IndIan tribes.
The tribal chairmen (or heads of the
governing bodies) of Indian tribes, as
defined in § 300.5 or a person
designated by the tribal officials, shall
act on behalf of the Indian tribes as
trustees for the natural resources
belonging to, managed by, controlled by,
or appertaining to such Indian tribe, or
held in trust for the benefit of such
Indian tribe, or belonging to a member
of such Indian tribe, if such resources
are subject to a trust restriction on
alienation When the tribal chairman or
head of the tribal governing body
designates another person as trustee, the
tribal chairman or head of the tribal
governing body shall notify the
President of such designation. Such
officials are authorized to act when
there is injury to, destruction of, loss of,
or threat to natural resources as a result
of a release of a hazardous substance.
§300.612 Foreign trustees.
Pursuant to section 1006 of the OPA,
foreign trustees shall act on behalf of the
head of a foreign government as trustees
for natural resources belonging to,
managed by, controlled by, or
appertaining to such foreign
government.
§300.615 Responsibilities ot trustees.
(a) Where there are multiple trustees,
because of coexisting or contiguous
natural resources or concurrent
jurisdictions, they should coordinate
and cooperate in carrying out these
responsibilities.
(b) Trustees are responsible for
designating to the RRTs and the Area
Committees, for inclusion in the RO’
and the AC!’, appropriate contacts to
receive notifications from the OSCs/
RPMs of discharges or releases.
(c)(1) Upon notification or discovery
of injury to, destruction of, loss of, or
threat to natural resources, trustees may,
pursuant to section 107(0 of CERCLA,
or section 311(f)(5) of the CWA, take the
following or other actions as
appropriate:
(i) Conduct a preliminary survey of
the area affected by the discharge or
release to determine if trust resources
under their jurisdiction are, or
potentially may be, affected;
(ii) Cooperate with the USC/RPM in
coordinating assessments,
investigations, and planning;
(iii) Carry out damage assessments; or
(iv) Devise and carry out a plan for
restoration, rehabilitation, replacement,
or acquisition of equivalent natural
resources. In assessing damages to
natural resources, the federal, state, and
indian tribe trustees have the option of
following the procedures for natural
resource damage assessments located at
43 CFR part 11.
(2) Upon notification or discovery of
injury to, destruction of, loss of. or loss
of use of. natural resources, or the
potential for such, resulting from a
discharge of oil occurring after August
18, 1990, the trustees, pursuant to
section 1006 of the OPA, are to take the
following actions:
(i) In accordance with OPA section
1006(e), determine the need for
assessment of natural resource damages,
collect data necessary for a potential
damage assessment, and, where
appropriate, assess damages to natural
resources under their trusteeship: and
(ii) As appropriate, and subject to the
public participation requirements of
OPA section 1006(c), develop and
implement a plan for the restoration,
rehabilitation, replacement, or
acquisition of the equivalent, of the
natural-resources under their
trusteeship;
(3)(i) The trustees, through the lead
administrative trustee, shall provide
timely advice on recommended actions
concerning trustee resources that are
potentially affected by a discharge of oil.
This may include providing assistance
to the USC in identifying!
recommending pro-approved response
techniques and in predesignating
shoreline types and areas in ACPs.
(ii) The trustees shall assure, through
the lead admirjstrative trustee, that the
USC is informed of their activities
regarding natural resource damage
assessment that may affect response
operations in order to assure
coordination and minimize any
interference with such operations.
(iii) When circumstances permit, the
OSC shall share the use of federal
response resources (including but not
limited to aircraft, vessels, and booms tc.
contain and remove discharged oil) with
the trustees, providing trustee activities
do not interfere with response actions
The lead administrative trustee shall, as
appropriate, apply to the OSC for access
to federal response resources on behalf
of all trustees for initiation of damage
assessment and claims for injuries to
natural resources.
(d) The authority of federal trustees
includes, but is not limited to the
following actions:
(1) Requesting that the Attorney
General seek compensation from the
responsible parties for the damages
assessed and for the costs of an
assessment and of restoration planning,
and
(2) Participating in negotiations
between the United States and
potentially responsible parties (PRPs) to
obtain PRP-financed or PRP.coriducted
assessments and restorations for injured
resources or protection for threatened
resources and to agree to covenants not
to sue, where appropriate
(3) Requiring, in consultation with the
lead agency, any person to comply with
the requirements of CERCLA section
104(e) regarding information gathering
and access.
(4) Initiating damage assessments, as
provided in OPA section 6002.
(e) Actions which may be taken by
any trustee pursuant to section 107( 1) of
CERCLA, section 311(f)(5) of the CWA,
or section 1006 of the OPA include, but
are not limited to, any of the following.
(1) Requesting that an authorized
agency issue an administratvve order or
pursue injunctive relief against the
parties responsible for the discharge or
release; or
(2) Requesting that the lead agency
remove, or arrange for the removal of, or
provide for remedial action with respect
to. any oil or hazardous substances from
a contaminated medium pursuant to
section 104 of CERCLA or section 311
of CWA.
Subpart H—Participation by Other
Persons
§ 300.700 ActivIties by other persons.
(a) Genera!. Except as provided (e.g.,
in CWA section 311(c)), any person may
undertake a response action to reduce or
eliminate a release of a hazardous
substance, pollutant, or contaminant
(b) Summary of CERCL/t authon ties.
The mechanisms available to recover
the costs of response actions under
CERCLA are, in summary
(1) Section 107(a), wherein any
person may receive a court award of his
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or-her response costs, plus interest, from
the party or parties Found to be liable,
(2) Section 111(a)(2). wherein a
private party, a PR? pursuant to a
settlement agreement, or certain foreign
enlities may file a claim against the
Fund for reimbursement of response
costs;
(3) Section 10 6(b) , wherein any
person who has complied with a section
106(a) order may petition the Fund for
reimbursement of reasonable costs, plus
interest; and
(4) Section 123. wherein a general
purpose unit of local government may
apply to the Fund under 40 CFR pal
310 for reimbursement of the costs of
temporary emergency measures that are
necessary to prevent or mitigate injury
10 human health or the environment
associated with a release
(c) Section 107( a) cost recover ,
actions. (1) Responsible parties shall be
liable for all response costs incurred by
the United States government or a state
or an Ind ian tribe not inconsistent with
the NOP.
(2) Responsible parties shall be liable
for necessary costs of response actions
10 releases of hazardous substances
incurred by any other person consistent
with the NCP
(3) For the purpose of cost recovery
under section 107(a)(4)(B) of CERCLA
Ii) A privale party response act ton
will be considered “consistent with the
NCP” if the action, when evaluated as
a whole, is in substantial compliance
with the applicable requirements in
paragraphs (c) (51 and (6) of this section,
and results in a cERCLA.quality
cleanup; and
lii) Any response action carried out in
compliance with the terms of an order
issued by EPA pursuant to seLt ion 106
of CERCLA, or a consent decree entered
into pursuant to section 122 of cERCLA,
will be considered “consistent with the
NCP,’
(4) Actions under §300 700(cRl) will
not be considered “inconsistent with
the NC?,” end actions under
§ 300 700(c)(2) will not be considered
not “consistent with the NC?,” based on
immaterial or insubstantial deviations
from the provisions of 40 CFR part 300.
(5) The following provisions of this
part are potentially applicable to private
party response actions’
(i) Section 300 150 (on worker health
and safety);
(ii) Section 300 60 (on
documentation and cost recovery);
(iii) Section 300 400(c)(1), (4), (5), and
(7) (on determining the need for a Fund-
financed action); (e) (on permit
requirements) except that the permit
waiver does not apply to private party
response actions; and (g) (on
identification of ARARS) except that
applicable requirements of federal or
state law may not be waived by a private
party;
(iv) Section 300.405(b), (c), and (d)
(on reports of releases to the NRC);
(v) Section 300,410 (on removal site
evaluation) except paragraphs ( 0 (5) and
(6);
(vi) Section 300.4 15 (on removal
actions) except paragraphs (a)(2),
(b)(2)(vii), (bU S). and (g); and including
§ 300 415(j) with regard to meeting
ARARS where practicable except that
private party removal actions must
always comply with the requkremen ls of
applicable law;
(vii) Section 300 420 (on remedial site
evaluation);
(viii) Section 300.4 30 (on Rl/FS and
selection of remedy) except paragraph
(fXI)(iillCll6) and that applicable
requirements of federal or state law may
not be waived by a private party; and
(ix) Section 300 435 (on RD/P .S and
operation and maintenance).
(6) Private parties undertaking
response actions should provide an
opportunity for public comment
concerning the selection of the response
action based on the provisions set out
below, or based on substantially
equivalent state and local requirements
The following provisions of this part
regarding public participation are
potentially applicable to private party
response actions, with the exception of
administrative record and infonnation
repository requirements stated therein
(i) Section 300 155 (on public
information and community relations),
(ii) Section 300 415(n) (on community
relations during removal actions),
(iii) Section 300 430(c) (on
community relations during Rl/FS)
except paragraph (c)(5),
(iv) Section 300.430(0 (2), (3), and (6)
(on community relations during
selection of remedy); and
(v) Section 300.435(c) (on community
relations during RD/RA and operation
and maintenance).
(7) When selecting the appropriate
remedial action, the methods of
remedying releases listed in Appendix
D of this part may also be appropriate
to a private party response action
(81 Except for actions taken pursuant
to CERCLA section 104 or 106 or
response actions for which
reimbursenient from the Fund will be
sought. any action to be taken by the
lead agency listed in paragraphs (c)(5)
through (c)(7) of this section may be
taken by the person carrying out the
response action.
(d) Section 111(a)(2) claims. (1)
Persons, other than those listed in
paragraphs (d)(i) (i) through (iii) of this
section, may be able to receive
reimbursement of response costs by
means of a claim against the Fund The
categories of persons excluded from
pursuing this claims authority are:
(i) Federal government;
(ii) State governments, and their
political subdivisions, unless they are
potentially responsible parties covered
by an order or consent decree pursuant
to section 122 of CERCLA; and
(iii) Persons operating under a
procurement contract or an assistance
agreement with the United States with
respect to matters covered by that
contract or assistance agreement. unless
specifically provided therein.
(2) In order to be reimbursed by the
Fund, an eligible person must notify the
Administrator of EPA or designee prior
to taking a response action and receive
prior approval, i.e , “preauthorization ,”
for such action
(3) Preauthorization is EPA ’s prior
approval to submit a claim against the
Fund for necessary response costs
incurred as a result of carrying out the
NC?. All applications for
preauthorization will be reviewed to
determine whether the request should
receive priority For funding EPA, in its
discretion. may grant preauthorization
of a claim Preauthorization will be
considered only for.
(1) Removal actions pursuant to
§ 300 415;
(ii) CERCLA section 104(b) activities,
and
(iii ) Remedial actions at National
Priorities List sites pursuant lo
§ 300.435.
(4) To receive EPA’s prior approval,
the eligible person must.
(i) Demonstrate technical and other
capabilities to respond safely and
efFectively to releases of hazardous
substances, pollutants, or contaminants.
and
(ii) Establish that the action will be
consistent with the NCP in accordance
with the elements set forth in
paragraphs (c) (5) through (8) oF this
section
(5) EPA will grant preauthorization to
a claim by a party it determines to be
potentially liabla under section 107 of
CERCLA only in accordance with an
order issued pursuant to section 106 of
CERCLA. or a settlement with the
federal government in accordance with
section 122 of CERCLA.
(6) Preauthorization does not establish
an enforceable contractual relationship
between EPA and the claimant
(7) Preauthorization represents EPA’s
commitment that if funds are
appropriated for response actions, the
response action is conducted in
accordance with the preauthorization
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decision document, and costs are
reasonable and necessary,
reimbursement will be made from the
Superfund, up to the maximum amount
provided in the preauthorization
decision document.
(8) For a claim to be awarded under
section 111 of CERCLA, EPA must
certify that the costs were necessary and
consistent with the preauthorization
decision document.
(e) Section 106(b) petition. Subject to
conditions specified in CERCLA section
106(b). any person who has complied
with an order issued after October 16.
1986 pursuant to section 106(a) of
CERCLA. may seek reimbursement for
response costs incurred in complying
with that order unless the person has
waived that right.
(f) Section 123 reimbursement to local
governments. Any general purpose unit
of local government for a political
subdivision that is affected by a release
may receive reimbursement for the costs
of temporary emergency measures
necessary to prevent or mitigate injury
to human health or the environment
subject to the conditions set forth in 40
CFR part 310. Such reimbursement may
not exceed $25,000 for a single
response.
(g) Release from liability.
Implementation of response measures
by potentially responsible parties or by
any other person does not release those
parties from liability under section
107(a) of cERCLA, except as provided
in a settlement under section 122 of
cERCLA or a federal court judgment
(h) Oil Pollution Act Claims. Claims
are authorized to be presented to the
OSLTF under section 1013 of the OPA,
for certain uncompensated removal
costs or uncompensated damages
resulting from the discharge, or
substantial threat of discharge. of oil
from a vessel or facility into or upon the
navigable waters, adjoining shorelines,
or exclusive economic zone of the
United States. Anyone desiring to file a
claim against the OSLTF may obtain
general information on the procedure
for filing a claim from the Director,
National Pollution Funds Center. Suite
1000, 4200 Wilson Boulevard,
Arlington. Virginia 22203—1804. (703)
235—4756.
* a * * a
Subpart J—Use of Dispersants and
Other Chemicals
§300.900 General.
(a) Section 311(d)(2)(G) of the Clean
Water Act requires that EPA prepare a
schedule of dispersants, other
chemicals, acd other spill mitigating
devices and substances, if any, that may
be used in carrying out the NCP. This
subpart makes provisions for such a
schedule.
(b) This subpart applies to the
navigable waters of the United States
and adjoining shorelines, the waters of
the contiguous zone, and the high seas
beyond the contiguous zone in
connection with activities under the
Outer Continental Shelf Lands Act,
activities under the Deepwater Port Act
of 1974, or activities that may affect
natural resources belonging to,
appertaining to, or under the exclusive
management authority of the United
States, including resources under the
Magnuson Fishery Conservation and
Management Act of 1976.
(c) This subpart applies to the use of
any chemical agents or other additives
as defined in subpart A of this part that
may be used to remove or control oil
discharges.
§ 300.905 NCP Product Schedule.
(a) Oil Discharges. (1) EPA shall
maintain a schedule of dispersants and
other chemical or bioremediation
products that may be authorized for use
on oil discharges in accordance with the
procedures set forth in § 300.910. This
schedule, called the NCP Product
Schedule, may be obtained from the
Emergency Response Division (5202—C),
U.S. Environmental Protection Agency.
401 M Street, SW., Washington, DC
20460. The telephone number is 1—202—
260-2342.
(2) Products may be added to the NCP
Product Schedule by the process
specified in § 300.920
(b) Hazardous Substance Releases
IReserved l
§ 300.910 AuthorIzation of use.
(a) RRTs and Area Committees shall
address, as part of their planning
activities, the desirability of using
appropriate dispersants. surface
washing agents, surface collecting
agents. bioremediation agents, or
miscellaneous oil spill control agents
listed on the NC? Product Schedule,
and the desirability of using appropriate
burning agents. RCPs and ACPs shall, as
appropriate, include applicable
preauthorization plans and address the
specific contexts in which such
products should and should not be
used. In meeting the provisions of this
paragraph. preauthorization plans may
address factors such as the potential
sources and types of oil that might be
spilled, the existence and location of
environmentally sensitive resources that
might be impacted by spilled oil.
available product and storage locations,
available equipment and adequately
trained operators, and the available
means to monitor product application
and effectiveness RRTs shall review
and either approve, disapprove, or
approve with modification the
preauthorization plans developed by
Area Committees, as appropriate.
Approved preauthorization plans shall
be included in the appropriate RCPs and
ACPs. If the RRT representatives from
EPA and the states with jurisdiction
over the waters of the area to which a
preauthorization plan applies and the
DOC and DO! natural resource trustees
approve in advance the use of certain
products under specified circumstances
as described in the preauthorization
plan. the OSC may authorize the use of
the products without obtaining the
specific concurrences described in
paragraphs (b) and (c) of this section.
(b) For spill situations that are not
addressed by the preauthorization plans
developed pursuant to paragraph (a) of
this section, the OSC, with the
concurrence of the EPA representative
to the RRT and, as appropriate, the
concurrence of the RRT representatives
from the states with jurisdiction over
the navigable waters threatened by the
release or discharge, and in consultation
with the DOC and DO! natural resource
trustees, when practicable. may
authorize the use of dispersants. surface
washing agents. surface collecting
agents, bioremediation agents. or
miscellaneous oil spill control agents on
the oil discharge. provided that the
products are listed on the NCP Product
Schedule.
(c) The OSC, with the concurrence of
the EPA representative to the RRT and,
as appropriate, the concurrence of the
RRT representatives from the states with
jurisdiction over the navigable waters
threatened by the release or discharge,
and in consultation with the DOC and
DO! natural resource trustees, when
practicable, may authorize the use of
burning agents on a case.by.case basis
(d) The OSC may authorize the use of
any dispersant. surface washing agent.
surface collecting agent, other chemical
agent, burning agent. bioremediation
agent, or miscellaneous oil spill control
agent, including products not listed on
the NCP Product Schedule, without
obtaining the concurrence of the EPA
representative to the RRT and, as
appropriate, the RRT representatives
from the states with jurisdiction over
the navigable waters threatened by the
release or discharge, when, in the
judgment of the OSC, the use of the
product is necessary to prevent or
substantially reduce a hazard to humar
life. Whenever the OSC authorizes the
use of a product pursuant to this
paragraph, the OSC is to inform the EPA
RRT representative and, as appropriate.
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Federal Register / Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
54769
the RRT representatives from the
affected states and, when practicable,
the DOC/DOI natural resources trustees
of the use of a product, including
products not on the Schedule, as soon
as possible. Once the threat to human
life has subsided, the continued use of
a product shall be in accordance with
paragraphs (a), (b). and (c) of this
section.
(e) Sinking agents shall not be
authorized for application to oil
discharges.
(1) When developing preauthorization
plans, RRTs may require the
performance of supplementary toxicity
and effectiveness testing of products, in
addition to the.test methods specified in
§ 300.915 and described in Appendix C
to part 300, due to existing site-specific
or area-specific concerns.
§300.915 Data requirements.
(a) Dispersants. (1) Name, brand, or
trademark, if any, under which the
dispersant is sold.
(2) Name, address, and telephone
number of the manufacturer, importer.
or vendor.
(3) Name, address, and telephone
number of primary distributors or sales
outlets.
(4) Special handling and worker
precautions for storage and field
application. Maximum and minimum
storage temperatures, to include
optimum ranges as well as temperatures
that will cause phase separations.
chemical changes. or other alterations to
the effectiveness of the product.
(5) Shelf life.
(6) Recommended application
procedures, concentrations, and
conditions for use depending upon
water salinity, water temperature, types
and ages of the pollutants, and any other
application restrictions
(7) Effectiveness EPA will conduct
the effectiveness tests for dispersant
effectiveness. using the Swirling Flask
effectiveness test methods described in
appendix C to this part 300.
Manufacturers shall submit a one liter
sample of their dispersant to EPA for the
purposes of EPA conducting these
effectiveness tests. Manufacturers are
also encouraged to provide data on
product performance under conditions
other than those captured by these tests.
(8) Dispersant Toxicity. EPA will
conduct the toxicity tests for dispersant
toxicity, using the standard toxicity test
methods described in appendix C to this
part 300. Manufacturers shall submit a
one liter sample of their dispersant to
EPA for the purposes of EPA conducting
these toxicity tests.
(9) The following data requirements
incorporate by reference standards from
the 1991 or 1992 Annual Books of
ASTM Standards. American Society for
Testing and Materials. 1916 Race Street,
Philadelphia. Pennsylvania 19103. This
incorporation by reference was
approved by the Director of the Federal
Register in accordance with 5 U.S.C.
552(a) and I CFR part 51.’
(i) Flash Point—Select appropriate
method from the following:
(A) ASTM—D 56—87, “Standard Test
Method for Flash Point by Tag Closed
Tester;”
(B) ASTM—D 92—90, “Standard Test
Method for Flash and Fire Points by
Cleveland Open Cup;”
(C) ASTM—D 93—90, “Standard Test
Methods for Flash Point by Pensky-
Martens Closed Tester;”
(D) ASTM—D 1310—86, “Standard
Test Method for Flash Point and Fire
Point of Liquids by Tag Open-Cup
Apparatus:” or
( ) ASTM—D 3278—89, “Standard
Test Methods for Flash Point of Liquids
by Setaflash Closed-Cup Apparatus.”
(ii) Pour Point—Use ASTM—D 97—87,
“Standard Test Method for Pour Point of
Petroleum Oils.”
(iii) Viscosity—Use ASTM—D 445—
88, “Standard Test Method for
Kinematic Viscosity of Transparent and
Opaque Liquids (and the Calculation of
Dynamic Viscosity).”
(iv) Specific Gravity—Use ASTM—D
1298—85(90), “Standard Test Method for
Density, Relative Density (Specific
Gravity), or API Gravity of Crude
Petroleum and Liquid Petroleum
Products by Hydrometer Method.”
(v) pH—Use ASTM—D 1293—84(90),
“Standard Test Methods for pH of
Water.”
(10) Dispersing Agent Components.
Itemize by chemical name end
percentage by weight each component
of the total formulation. The percentages
will include maximum, minimum, and
average weights in order to reflect
quality control variations in
manufacture or formulation. In addition
to the chemical information provided in
response to the first two sentences,
identify the major components in at
least the following categories: surface
active agents. solvents, and additives.
(11) Heavy Metals. Cyanide. and
Chlorinated Hydrocarbons. Using
standard test procedures, state the
concentrations or upper limits of the
following materials:
(i) Arsenic, cadmium, chromium,
copper, lead, mercury, nickel, zinc, plus
“Copies of these standards may be obtained from
the publisher. Copies may be inspected at the U S
Environmental Protection Agency, 401 M St ,SW,
Room LC. Washington. DC, or at the Office of the
Federal RegIster, 800 North Capitol Street, NW,
Room 700. WashIngton. DC 20408.
any other metals that may be reasonably
expected to be in the sample. Atomic
absorption methods should be used and
the detailed analytical methods and
sample preparation shall be fully
described.
(ii) Cyanide. Standard calorimetric
procedures should be used.
(iii) Chlorinated hydrocarbons. Gas
chromatography should be used and the
detailed analytical methods and sample
preparation shall be fully described. At
a minimum, the following test methods
shall be used for chlorinated
hydrocarbon analyses: EPA Method
601—Purgeable halocarbons (Standard
Method 6230 B) and EPA Method 608—
Organochiorine pesticides and PCBs
(Standard Method 6630 C). 16
(12) The technical product data
submission shall include the identity of
the laboratory that performed the
required tests, the qualifications of the
laboratory staff, including professional
biographical information for individuals
responsible for any tests, and laboratory
experience with similar tests. is the
responsibility of the submitter to select
competent analytical laboratories based
on the guidelines contained herein. EPA
reserves the right to refuse to accept a
submission of technical product data
because of lack of qualification of the
analytical laboratory, significant
variance between submitted data and
any laboratory confirmation performed
by EPA, or other circumstances that
would result in inadequate or inaccurate
information on the dispersing agent.
(b) Surface washing agents. (1] Name,
brand, or trademark. if any. under
which the surface washing agent is sold.
(2) Name, address, and telephone
number of the manufacturer, importer.
or vendor.
(3) Name, address, and telephone
number of primary distributors or sales
outlets.
(4) Special handling and worker
precautions for storage and field
application. Maximum and minimum
storage temperatures, to include
optimum ranges as well as temperatures
that will cause phase separations.
chemical changes. or other alterations to
the effectiveness of the product.
(5) Shelf life.
(6) Recommended application
procedures, concentrations, and
uoThese test methods may be obtained from
Standard Methods for the Examination of Water and
Wastewater. 17th Edition. American Public Health
Association, 1989. or Method 601—Purgeable
halocarboris, 40 CFR part 136 and Method 606—
Organochtonne pesticide and PCBs. 40 CFR part
138. Copies may be inspected at the US
Environmental Protection Agency. 401 M St.. SW.,
Room LG. Washington. DC. or at the Office of the
Federal Register. 800 North Capitol Street. NW.
Room 700. Washington. DC 20408.
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54770
Federal Register / Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
conditions for use depending upon
water salinity, water temperature. types
and ages of the pollutants, and any other
application restrictions.
(7) Toxicity. Use standard toxicity test
methods described in appendix C to this
part 300.
(8) Follow the data requirement
specifications in paragraph (a)(9) of this
section.
(9) Surface Washing Agent
Components. Itemize by chemical name
and percentage by weight each
component of the total formulation. The
percentages will include maximum,
minimum, and average weights in order
to reflect quality control variations in
manufacture or formulation. hi addition
to the chemical information provided in
response to the first two sentences,
identify the major components in at
least the following categories: Surface
active agents. solvents, and additives.
(10) Heavy Metals, Cyanide, and
Chlorinated Hydrocarbons. Follow
specifications in paragraph (a)(11) of
this sectic .
(11) Analytical Laboratory
Requirements for Technical Product
Data. Follow specifications in paragraph
(a)(12) of this section. In addition,
laboratories performing toxicity tests for
surface washing agent toxicity must
demonstrate previous toxicity test
experience in order for their results to
be accepted.
(c) Surface collecting agents (1)
Name, brand, or trademark, if any.
under which the product is sold.
(2) Name, address, and telephone
number of the manufacturer, importer,
or vendor.
(3) Name, address, and telephone
number of primary distributors or sales
outlets.
(4) Special handling and worker
precautions for storage and field
application. Maximum and minimum
storage temperatures, to include
optimum ranges as well as temperatures
that will cause phase separations,
chemical changes, or other alterations to
the effectiveness of the product.
(5) Shelf life.
(6) Recommended application
procedures, concentrations, and
conditions for use depending upon
water salinity, water temperature, types
and ages of the pollutants, and any other
application restrictions.
(7) Toxicity. Use standard toxicity test
methods described in appendix C to this
part 300.
(8) Follow the data requirement
specifications in paragraph (a)(9) of this
section.
(9) Test to Distinguish Between
Surface Collecting Agents and Other
Chemical Agents.
(i) Method Summary—Five milliliters
of the chemical under test are mixed
with 95 milliliters of distilled water and
allowed to stand undisturbed for one
hour. Then the volume of the upper
phase is determined to the nearest one
milliliter.
(ii) Apparatus.
(A) Mixing Cylinder: 100 milliliter
subdivisions and fitted with a glass
stopper.
(B) Pipettes: Volumetric pipette. 5.0
milliliter.
(C) Timers.
(iii) Procedure—Add 95 milliliters of
distilled water at 220 C. plus or minus
3°C, to a 100 milliliter mixing cylinder.
To the surface of the water in the mixing
cylinder, add 5.0 milliliters of the
chemical under test. Insert the stopper
and invert the cylinder five times in ten
seconds. Set upright for one hour at 22°
C, plus or minus 3°C, and then measure
the chemical layer at the surface of the
water. If the major portion of the
chemical added (75 percent) is at the
water surface as a separate and easily
distinguished layer. the product is a
surface collecting agent.
(10) Surface Collecting Agent
Components. Itemize by chemical name
and percentage by weight each
component of the total formulation. The
percentages should include maximum,
minimum, and average weights in order
to reflect quality control variations in
manufacture or formulation. in addition
to the chemical information provided in
response to the first two sentences,
identify the mayor components in at
least the following categories Surface
action agents. solvents, and additives.
(ii) Heavy Metals, Cyanide. and
Chlorinated Hydrocarbons Follow
specifications in paragraph (o)(i1) of
this section.
(12) Analytical Laboratory
Requirements for Technical Product
Data. Follow specifications in paragraph
(b)(li) of this section.
(d) Bioremediation Agents (1) Name,
brand, or trademark, if any. under
which the agent is sold.
(2) Name, address, and telephone
number of the manufacturer, importer,
or vendor.
(3) Name, address, and telephone
number of primary distributors or sales
outlets.
(4) Special handling and worker
precautions for storage and field
application. Maximum and minimum
storage temperatures.
(5) Shelf life.
(6) Recommended application
procedures, concentrations, and
conditions for use depending upon
water salinity, water temperature, types
and ages of the pollutants, and any other
application restrictions.
(7) Bioremediation Agent
Effectiveness. Use bioremediation agent
effectiveness test methods described in
appendix C to this part 300.
(8) Bioremediation Agent Toxicity.
Use bioremediation agent toxicity test
methods described in appendix C to this
part 300.
(9) Biological additives.
(i) For microbiological cultures,
furnish the following information:
(A) Listing of each component of the
total formulation, other than
microorganisms, by chemical name and
percentage by weight.
(B) Usting of all microorganisms by
species.
(C) Percentage of each species in the
composition of the additive.
(D) Optimum pH, temperature. and
salinity ranges for use of the additive.
and maximum and minimum pH.
temperature. and salinity levels above or
below which the effectiveness of the
additive is reduced to half its optimum
capacity.
(E) Special nutrient requirements. if
any.
(F) Separate listing of the following.
and test methods for such
determinations: Salmonella, fecal
coliform. Shigella. Staphylococcus
Coagulase positive, and Beta Hemolytic
Streptococci.
(ii) For enzyme additives, furnish the
following information:
(A) Listing of each component of the
total formulation, other than enzymes.
by chemical name and percentage by
weight.
(8) Enzyme name(s)
(C) International Union of
Biochemistry (LU B ) number(s).
(D) Source of the enzyme.
(E) Units.
(F) Specific Activity
(G) Optimum pH. temperature. and
salinity ranges for use of the additive,
and maximum and minimum pH.
temperature. and salinity levels above or
below which the effectiveness of the
additive is reduced to half its optimum
capacity.
(H) Enzyme shelf life
(I) Enzyme optimum storage
conditions
(10) For nutrient additives, furnish
the following information:
(i) Listing of each component of the
total formulation by chemical name and
percentage by weight.
(ii) Nutrient additive optimum storage
conditions.
(11) Laboratory Requirements for
Technical Product Data. Follow
specifications in paragraph (b)(11) of
this section.
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Federal Register / Vol. 58, No. 203 I Friday, October 22, 1993 / Proposed Rules
54771
(e) Burning agents EPA does not
require technical product data
submissions for burning agents and does
not include burning agents on the NCP
Product Schedule.
(I’) Miscellaneous oil spiii control
agents. (1) Name, brand, or trademark,
if any. under which the miscellaneous
oil spill control agent is sold.
(2) Name, address, and telephone
number of the manufacturer, importer,
or vendor
(3) Name, address, and telephone
number of primary distributors or sales
outlets
(4) Brief description of recommended
uses of the product and how the product
works
(5) Special handling and worker
precautions for storage and field
application Maximum and minimum
storage temperatures, to include
optimum ranges as well as temperatures
that will cause phase separations,
chemical changes, or other alternatives
to the effectiveness of the product.
(6) Shelf life.
(7) Recommended application
procedures. concentrations, and
conditions for use depending upon
water salinity, water temperature. types
and ages of the pollutants, and any other
application restrictions
(8) Toxicity. Use standard toxicity test
methods described in appendix C to this
part 300.
(9) Follow the data requirement
specifications in paragraph (a)(9) of this
section.
(10) Miscellaneous Oil Spill Control
Agent Components Itemize by chemical
name and percentage by weight each
component of the total formulation, The
percentages should include maximum.
minimum, and average weights in order
to reflect quality control variations in
manufacture or formulation In addition
to the chemical information provided in
response to the first two sentences,
identify the major components in at
least the following categories surface
active agents. solvents, and additives.
(ii) Heavy Metals, Cyanide. and
Chlorinated Hydrocarbons Follow
specifications in paragraph (a)(11) of
this section
(12) For any miscellaneous oil spill
control agent that contains
microbiological cultures, enzyme
additives, or nutrient additives, furnish
the information specified in paragraphs
(d)(9) and (d)(io) of this section. as
appropriate
(13) Analytical Laboratory
Requirements for Technical Product
Data. Follow specifications in paragraph
(b)(li) of this section.
(g) Sorbents (1) Sorbent material may
consist of. but is not limited to, the
following materials:
(i) Organic products—
(A) Peat moss or straw;
(B) Cellulose fibers or cork;
(C) Corn cobs:
(D) Chicken, duck, or other bird
feathers.
(ii) Mineral compounds—
(A) Volcanic ash or perlite:
(B) Vermiculite or zeolite.
(iii) Synthetic products—
(A) Polypropylene;
(B) Polyethylene:
(C) Polyurethane:
(D) Polyester.
(2) EPA does not require technical
product data submissions for sorbents
and does not include sorbents on the
NO’ Product Schedule.
(3) Manufacturers that produce
sorbent materials that consist of
materials other than those listed in
paragraph (g)(1) of this section shall
submit to EPA the technical product
data specified for miscellaneous oil spill
control agents in paragraph (0 of this
section and EPA will consider listing
those products on the NCP Product
Schedule under the miscellaneous oil
spill control agent category. EPA will
inform the submitter in writing, within
60 days of the receipt of technical
product data, of its decision on adding
the product to the Schedule.
(4) Certification OSCs may request a
written certification from manufacturers
that produce sorbent materials that
consist solely of the materials listed in
paragraph (g)(1) of this section prior to
making a decision on the use of a
particular sorbent material The
certification at a minimum shall state
that the sorbent consists solely of the
materials listed in §300 915(g)(1) of the
NCP. The following statement, when
completed, dated, and signed by a
sorbent manufacturer, is sufficient to
meet the written certification
requirement:
ISORBENT NAMEI is a sorbent material
and consists solely of the materials listed in
§300 915(g)(1) of the NCP
(h) Mixed products Manufacturers of
products that consist of materials that
meet the definitions of two or more of
the product categories contained on the
NCP Product Schedule shall submit to
EPA the technical product data
specified in this section for each of
those product categories. After review of
the submitted technical product data,
and the performance of required
dispersant effectiveness and toxicity
tests, if appropriate, EPA will make a
determination on whether and under
which category the mixed product
should be listed on the Schedule.
§ 300.920 Addition of products to
Schedule.
(a) Dispersants. (1) To add a
dispersant to the NCP Product
Schedule, the technical product data
specified in § 300 915(a) must be
submitted to the Emergency Response
Division (5202—C), U.S Environmental
Protection Agency, 401 M Street, SW..
Washington, DC 20460.
(2) After the receipt of the required
technical product data. EPA will
conduct the required Swirling Flask
tests, as specified in appendix C to this
part 300. for dispersant effectiveness. In
order to be added to the Schedule, a
dispersant must attain an effectiveness
value of 45 percent or greater.
(3) EPA will conduct the required
toxicity tests for dispersant toxicity. as
specified in appendix C to this part 300,
after it has performed the required
effectiveness tests and only for those
dispersants that attain an effectiveness
value of 45 percent or greater, and are
therefore eligible for addition to the
Schedule
(4) EPA will inform the submitter in
writing, after the receipt of the required
technical product data and after EPA
has performed the required effectiveness
tests and toxicity tests, if applicable, of
its decision on adding the dispersant to
the Schedule
(5) Request for review of decision, (i)
A submitter of dispersant technical
product data whose product did not
meet the minimum 45 percent
effectiveness threshold and, therefore,
could not be listed on the NCP Product
Schedule may request the Administrator
of EPA to review the Agency’s
determination The request must be
made in writing within 30 days of
receipt of the notification to not list the
dispersant on the Schedule The request
shall contain a clear and concise
statement with supporting facts and
technical analysis demonstrating that
EPA’s decision was incorrect
(ii) The Administrator or his designee
may request additional information
from the submitter, or from any other
person. and may provide for a
conference between EPA and the
submitter, if appropriate The
Administrator or his designee shall
render a decision within 60 days of
receiving the request, or within 60 days
of receiving requested additional
information, if appropriate, and shall
notify the submitter of his decision in
writing
(b) Surface washing agents, surface
collecting agents. bioremediation
agents, and miscellaneous oil spill
contml agents (1) To add a surface
washing agent, surface collecting agent.
bioremediation agent, or miscellaneous
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54772
Federal Register / Vol. 58, No. 203 I Friday, October 22, 1993 I Proposed Rules
oil spill control agent to the NCP
Product Schedule, the technical product
data specified in § 300.9 15 must be
submitted to the Emergency Response
Division (5202—C), U.S. Environmental
Protection Agency. 401 M Street, SW.,
Washington. DC 20460. 11 EPA
determines that the required data were
submitted, EPA will add the product to
the Schedule.
(2) EPA will inform the submitter in
writing, within 60 days of the receipt of
technical product data, of its decision
on adding the product to the Schedule.
(c) The submitter may assert that
certain information in the technical
product data submissions, including
technical product data submissions for
sorbents pursuant to §300.915(g)(3). is
confidential business in formation. EPA
will handle such claims pursuant to the
provisions in 40 CFR part 2, subpart 8.
Such information must be submitted
separately from non-confidential
information, clearly identified, and
clearly marked “Confidential Business
Information “If the submitter fails to
make such a claim at the time of
submittal, EPA may make the
information available to the public
without further notice.
(d) The submitter must notify EPA of
any changes in the composition.
formulation, or application of the
dispersant. surface washing agent.
surface collecting agent. bioremediation
agent. or miscellaneous oil spill control
agent. On the basis of this data. EPA
may require retesting of the product if
the change is likely to affect the
effectiveness or toxicity of the product.
Ce) The listing of a product on the
NC? Product Schedule does not
constitute approval of the product. To
avoid possible misinterpretation or
misrepresentation, any label.
advertisement, or technical literature
that refers to the placement of the
product on the NCP Product Schedule
must either reproduce in its entirety
EPA’s written statement that it will add
the product to the NCP Product
Schedule under § 300 920 (a)(4) or
(b)(2). or include the disclaimer shown
below. If the disclaimer is used, it must
be conspicuous and must be fully
reproduced. Failure to comply with
these restrictions or any other improper
attempt to demonstrate the approval of
the product by any NRT or other U.S.
Government agency shall constitute
grounds for removing the product from
the 4CP Product Schedule.
* * * * *
Disclaimer
IPRODUCr NAME) is on the U.S.
Environmental Protection Agency’s NCP
Product Schedule This listing does NOT
mean that EPA approves, recommends,
licenses, certifies, or authorizes the use of
IPRODUC’F NAME) on an oil discharge This
listing means only that data have been
submitted to EPA as required by subpart J of
the National Contingency Plan. § 300.915.
. p a a S
3. Appendices C and E are revised to
read as follows:
Appendix C to Part 300—Swirling
Flask Dispersant Effectiveness Test,
Revised Standard Dispersant Toxicity
Test, and Bioremediation Agent
Effectiveness and Toxicity Tests
Table of Contents
1.0 introduction
2.0 Swirling Flask Dispersant Effectiveness
Test
3 0 Revised Standard Dispersant Toxicity
Test
4 0 Bioremediation Agent Effectiveness Test
5 0 Bioramediation Agent Toxicity Test
6 0 Summary Technical Product Test Data
Format
References
List of Illustrations
Figure Number
1 Swirling Flask Test Apparatus
2 Process for Conducting Bioremediation
Agent Toxicity Test
List of Tables
Table Number
1 Major Ion Composition of “Instant
Ocean” Synthetic Sea Salt
2 Test Oil Characteristics
3 Oil Standard Solutions Concentrations in
Final DCM Extractions
4 Synthetic Seawater (Toxicity Test)
S Test Oil Characteristics No 2 Fuel Oil
6 Compounds Used in Five.Point
Calibration Curve
7 Primary Ions Monitored for Each Target
Analyte
8 Operating Conditions and Temperature
Program of CC/MS
9 Summary of Operating Conditions for
Bioremediation Agent Toxicity Test
1 0 Introduction
1.1 Scope and App hcation The methods
described below apply to “dispersants.
surface washing agents. surface collecting
agents. bioreniediation agents. and
miscellaneous oil spill control agents”
involving subpart J (Use of Dispersants and
Other Chemicals) in 4OCFR part 300
(National Oil and Hazardous Substances
Pollution Contingency Plan) They are
revisions and additions to the EPA’s
Standard Dispersant Effectiveness and
Toxicity Tests (1) The new Swirling Flask
Dispersant Effectiveness Test is used only for
testing dispersants. The Revised Standard
Dispersant Toxicity Test is used for testing
dispersants. as well as surface washing
agents. surface collecting agents. and
miscellaneous oil spiii control agents. The
bioremediation agent effectiveness and
toxicity tests are used for testing
bioremediation agents only The
Environmental Protection Agency (EPA) will
conduct the effectiveness and toxicity tests
for dispersants, while the manufacturers of
the other types of products will be
responsible for conducting the effectiveness
and toxicity tests required for their products
1.2 Definitions The definitions of
dispersants. surface washing agents. surface
collecting agents. bioremedietion agents. and
miscellaneous oil spill control agents are
provided in 40 CFR 3005
2 0 Swirling Flask Dispersant Effectiveness
Test
2.1 Summary of Method This protocol
was developed by Environment Canada to
provide a relatively rapid and simple testing
procedure for evaluating dispersant
effectiveness (2). It uses a mod fied
Erlenmeyer flask to which a side spout has
been added for removing subsurface samples
of water near the bottom of the flask without
disturbing a surface oil layer Seawater and
a surface layer of oil are added to the flask.
Turbulent mixing is provided by placing the
flask on a standard shaker table at 5O rpm
for 20 minutes to induce a swirling motion
to the liquid contents. Following shaking. the
flask is immediately removed from the shaker
table and maintained in a stationary position
for 10 minutes to allow the oil that will
reform a slick to return to the water’s surface.
A sample of water for chemical analysis is
then removed from the bottom of the flask
through the side spout, extracted with
methylene chloride (DCM). and analyzed for
oil content by WV-visible absorption
spectrophotometry at wavelengths of 340,
370. and 400 nm (2)
2 2 Apparatus Modified Erlenmeyer
Flask. Use 125-mI glass Erlenmeyer flasks
that have been modified to include an
attachment of a glass side spout that extends
from the bottom of the flask upward to the
neck region, as shown in Figure 1.
Shal er Table Use a shaker table with
speed control unit with variable speed (40—
400 rpm) and an orbital diameter of
approximately 0 75 inches (2 cm) to provide
turbulence to solutions in test flasks.
Spectrophotomeier Use a UV-visible
spectrophotometer capable of measuring
absorbance at 340, 370, and 400 nm. A
Hitachi Model 13—2000 or equivalent is
acceptable for this purpose
Glassware. Glassware should consist of 5-
.10-, 25., 100-, and 500.ml graduated
cylinders: 125-mi separatory funnels with
Teflon stopcocks. and 10-. 100-. and 1.000-
ml volumetric flasks end micropipettes.
2 3 Reagents Synthetic Seawater. The
synthetic sea salt “lnstant Ocean,”
manufactured by Aquarium Systems of
Mentor. OH, can be used for this purpose.
The synthetic seawater solution is prepared
by dissolving 34 g of the salt mixture in 1
liter of distitled water (i e., a salinity of 34
pptt. Table 1 provides a list of the ion
composition of the seasalt mixture.
BlUiNG COOS 6560-60-P
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Federal Register I Vol. 58, No. 203 I Friday, October 22, 1q93 I Proposed Rules
54773
Figure 1
Swirling Flask Te8t Apparatus
oiIslIck—
seawater plus
dispersed oil —0
suspension
‘ř—slde spout
BIUJNO CODE 65e0-60-C
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54774
Federal Register / Vol. 58. No. 203 / Friday, October 22.1993 /__Proposed Rules
TABLE 1.—MAJOR ION COMPOSITION
OF INSTANT OCEAN SYNTHETIC SEA
SALT
Major ion
Percent
v t
Ionrc con-
centration at
s ppt cain-
ity (mg/I)
Chloride (CI-) ...
Sodium (NA) ...
Sulfate (SO 4 -) . ..
Magnesium (Mg )
Calcium (Ca °) ...
Potassium (K) .
Bicarbonate
(I’lCO 3 -)
Borori(B)
Strontium (Sr *) .
Solids Total ...
Water
Total
47470
26.280
6602
3 230
1.013
1 015
0.491
0015
0001
18,740
10.454
2,631
1.256
400
401
194
60
7.5
86.11
1388
34,089.50
9999
Following the preparation, the saltwater
solution is allowed to equilibrate to the
ambient temperature of the laboratory arid
should be in the range of 22 ±3 °C
Test Oil Two EPA/American Petroleum
Institute (API) standard reference oils,
Prudhoe Bay and South Louisiana crude,
should be used for this test These should be
obtained only from the Industrial Chemicals
Repository. EPA Environmental Monitoring
Systems Laboratory, Cincinnati, OH, 45268
(James Longbottom. Custodian. (513) 569-.
7325) These oils have been thoroughly
homogenized. as well as characterized
physically and chemically for previous EPA
and API studies Various selected parameters
are presented in Table 2
TABLE 2.—TEST OIL
CHARACTERISTICS
Prudhoe Bay
crude oil
South Louise-
ana crude oil
Specific gray-
0.894 kg/I .
0,840 kg/i.
Ityi.
API gravity I
Sulfur
26 8 degrees
lO3wt%....
37.0 degrees
0.23wt%
SuUur corn-
pounds,
profile.
Nitrogen
Vanadium ..
Nickel
Simulated dis-
020 wt%
21 mg/I
11mg/i
0.031 wl%.
0.95 mg/i
11mg/i
tillation pro-
file
Infrared spec-
trum.
UV fluores-
cence
pec1rum.
Pour point ...
Viscosity
at 40° C ....
+ 25°F
14 09 cST ...
0°F
3.582 cST.
at 100° C ..
4059 cST ...
1.568 cST.
Index
210
2.
I At 15°C.
2Nol calculable when viscosity at 100° C is
less than 2 0.
Methyl ene Chloride (Dichioroniethane-
DCM). Pesticide Quality. For extraction of all
sample water and oil-standard water
samples
2 4 Pretest Preparation Preparation and
Analysis of Oil Standards Standard
solutions of oil for calibrating the UV-visible
spectrophotometer are prepared with the
specific reference oils end dispersent used
for a particular set of experimental test runs.
For expenments with no dispersant. only oil
is used to make the standard solution For
experiments with the oil plus dispersant, the
standard is made with a 1.10 (v v) mixture of
the dispersant to the test oil (i.e., a
dispersant-to-oil ratio of 1:10). This ratio is
used in the test tank with dispersant added.
The presence of water and certain
dispersants in 0CM extracts can effect
absorbance readings in a spectrophotometer.
All standard solutions of oil (and dispersant.
if present) should be prepared in a stepwise
manner that reflects the analytical protocol
used for the experimental water samples.
To prepare the standards, prepare a parent
oil’DCM standard by mixing I part oil (plus
1/10 part premixed dispersant, if applicable)
to9 parts DCM lie., 1:10 dilution of the oil
v v). Add a specific volume of the parent oil-
DCM standard to 30 ml of synthetic seawater
in a separatory funnel Extract the oil-water
mixture with 5-mi volumes of DCM after 15
seconds of vigorous shaking followed by a2
minute stationary period to allow for phase
separation for each extraction. Repeat the
extraction using a total of three 5-mi portions
010CM Adjust the final 0CM volume for the
combined extracts to 20 ml with 0CM in a
25-mi graduated cylinder
The quantities of oil used to achieve the
desired concentrations in the final 20-mi
0CM extracts for the standard oil-solutions
are summarized in Table 3 Specific masses
for oil amounts in standards are determined
as volumes of oil multiplied by the density
of the oil.
TABLE 3.—OIL STANDARD SOLUTIONS: CONCENTRATION IN FINAL 0CM EXTRACTIONS 1
Final oil concentration (mg/mI of
0CM)
Final extract volume (ml of 0CM)
Total amount of oil in standard (mg)
Volume of parent o it-DCM std
(RI) added to saltwater
40
20
1 0
050
010
005
20.0
200
20.0
200
200
200
800
40.0
20.0
100
20
10
890
440
220
110
22
11
‘Assuming an Oil density of 09 g mI and an extraction efficiency of 100% for oil from the 30-mi of seawater.
Linear Stability Calibration of U V-Visible
Spectrophotometer Before DCM-ex tracts of
dispersed oil-water samples can be analyzed
for their oil content, the UV-visible
spectrophotometer must meet an instrument
stability calibration criterion This criterion
is determined with the six oil standards
identified in Table 3. Determine the
absorbance of standards at each of the three
analytical wavelengths (i e.. 340, 370. and
400 run) Determir.e the response factors
(RFs) for the test oil at each of the three
analytical wavelengths using the following
equation’
RF =C/A (1)
where.
RF = Response factor at wavelength x
(x = 340, 370, or 400 nm)
C = Oil concentration, in mg of oilfml
of DCM in standard solution
= Spectrophotometric absorbance of
wavelength x
instrument stability for the initial
calibration is acceptable when the RFs for the
five highest standard extracts of oil are <20%
different from the overall mean value for the
five standards If this criterion is satisfied,
analysis of sample extracts can begin RFs for
the lowest concentration (0.05 mgoil/ml
0CM) are not included in the consideration
because the absorbance is close to the
detection limit of the spectrophotometer
(with associated high variability in the value)
for the 1-cm path-length cell used for
measurements. Absorhances 3.5 are not
included because absorbance saturation
occurs at and above this value
If one or more of the standard oil extracts
do not meet this linear-stability criterion,
then the “offending” standard(s) can be
prepared a second time (i e., extraction of the
specified amount of oil from 30-mi or
seawater for the “offending’ standard
according to the pretest preparation
procedure). If replacement of the reanalyzed
standard solution(s) in the standard curve
meets the linear-stability criterion lie . no RF
>20% different from the overall mean), then
analysis of sample extracts can begin.
If the initial-stability criterion is still not
satisfied, analysis of sample extrect cannot
begin and the source of the problem (e.g.
preparation protocol for the oil standards.
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Federal Register I Vol. 58. No. 203 1 Frtday, October 22, 1993 I Proposed Rules
54775
spectrophotometer stability, etc ) must be
corrected
The initial six-point calibration of the tJV-
visible spectrophotorneterat the oil
concentrations identified is required at least
once per test day.
2 5 Test Procedure Preparation of
Premised Dispersant Oi l Prepare a prernixed
dispersant oil by mixing 1 part dispersant to
to parts o il Store this mixture in a glass
container
The dispersant effectiveness test
procedures are listed in steps 1—20-
1 Prepare 4 replicates (same test oil and
dispersant ), one control (i.e. no clispersaiit)
and one method blank and run at the same
time on the shaker table.
2. Add 120±2 ml of synthetic seawater to
each of the modified 125-mi glass Erlenmeyer
flasks Measure and record the water
temperature
3. Place the flasks securely into the
attached slot on the shaker table.
4 Carefully add 100 p1 of an otl-dispersant
solution onto the center of the waters surface
using a positive displacement pipette
5 Agitate the flasks for 20±1 minutes at
150±10rpm on the shaker table
5 After the 20±1 minutes shaking. remove
the flasks from the shaker table and allow
them to remain stationary for 10±1 minutes
fur oil droplet settling
7. At the conclusion of the 10-minute
settling period, carefully decant a 30-mi
sample through the side spout of the test
flasks into a 50-mI graduated cylinder.
Note: Discard the first 1—2 ml of sample
water to remove nonhomogeneous water oil
initially contained in the spout
$ Transfer the samples from the graduated
cylinder into a 125- or 250 -mI glass
separatory funnel fitted with a Teflon
stopcock
9 Add 5 nil of pesticide-quality DCM to
the separatory funnel and shake vigorously
for is seconds Release the pressure carefully
from the separatory funnel throiash the
stopcock into a fume hnod
10 Allow the funnel to remain in a
stationary position for 2 minutes to allow
phnse-separatton of the water and 0CM
11 Drain the DCM layer from the
separatory funnel into a glass-stoppered. 25-
ml graduated glass cylinder
12 Repeat the DCM-extraction process two
additional times
13 Combine the three extracts in the
graduated cylinder and adtust the final
volume to 20-mI with additional DCM
14 Analyze the samples using a UV-
spectrophotometer at 340. 370. and 400 nm-
wavelengths and determine the quantity of
oil as follows
C 1 = (AIJ x (RF ) x (Vc,cM) x (V 1 /V )
(2 )
where-
C . = Total mass of dispersed oil in
swirling flask at wavelength x (x =
340, 370, or 400 nm)
A 1 = Spectrophotometnc absorbance at
wavelength x
RF,, = Mean response factor at
wavelength x (determined frcm
equation i)
= Final volume of DcM-extract of
water sample (20 roll
= Total water volume in swtrling
flask vessel (120 ml)
V = Volume of water extracted for
dispersed oil content (30 ml)
is Obtain three concentration values for
oil in each experimental water sample (340,
370. and 400 nm)
16 Determine the mean of three values as
follows
= ¶C , + C 3 , , + C 4 i 0 )13 (3)
Note: Means will be used for all
dispersion-performance calculations.
Samples where one of the values for C ,
C, 0 . or C is more than 30% different from
C,,.. , 0 will be flagged. Whenever oil
measurements are flagged as having a
concentration based on one wavelength as
>30% dtfferent from C,, , raw data will be
evaluated to establish that the measurements
are valid In addition, attempts will be made
to correlate the difference to oil type.
dispersant test, or dispersant used. If no
errors or correlations are apparent and <10%
of all oil measurements are flagged. the mean
concentration data will be used in the
calculation for dispersant performance and
the subtect data will be flagged
17 Determine the dispersant performance
(i e.. percent of oil that is dispersed. or EFF)
based on the ratio of oil dispersed in the test
system to the total oil added to the system
as follows
EFF (in %) = (C, pICto-r) x 100 (4)
where:
= Mean value for total mass of
dispersed oil in the swirling flask
determined by spectrophotometric
analysis
CTar = Total mass of oil initially added
to the experimental swirling flask
18 Calculate EFF using equation 4 for
coupled experiments with and without
dispersant (EFF 1 and EFF , respectively)
EFFC is the effectiveness of the control and
represents natural dispersion of the oil in the
lest apparatus EFFd is the measured
uncorrected value
19! Calculate the final dispersant
performance of a chemical dispersant agent
after correcting for natural dispersion using
equation 5.
EFF 0 =EFF 0 —EFF (51
where’
EFFr, = % dispersed oil due to
dispersant only
EFF = % dispersed oil with dispersant
added
EFFC = % dispersed oil with no
dispersant added
20 Calculate the average dispersant
effectiveness value by summing the corrected
values IEFF 0 ) for each of the four replicates
for each of tha two test oils and dividing this
sum by eight.
2 6 Pe4brmonce cnterion The dispersant
product tested will remain in consideratiun
for addition to the NCP Product Schedule if
the average dispersant effectiveness, as
calculated in section 2.5 above, is at least
45% (i.e . s0%±5% )
2 7 Quality Control (QC) Procedures for
Measurements of O il Concentrations Ut ’-
visible Spectrophotometric Measurements At
least 5% of all UV-vistble spectrophotometric
measurements will be performed in duplicate
as a QC check on the analytical measurement
method The ebsorbance values for the
duplicates should agree within ±5% of their
mean value
Method Blanks Analytical method blanks
involve an analysis of seawater blanks (i e -
seawater but no oil or dispersant in a
swirling flask vessel) through testing and
analytical procedures (3. pp 79—801 Method
blanks are analyzed with a frequency of at
least I for every 12 experimental swirling
flask samples Oil concentrations in method
blanks must be <5% of that occurring for
iOO% thspersion of oil in testing apparatus
3 0 Revised Standard Dispersont Toxicity
Test
3 1 Summary of Method The standard
toxicity test for dispersants and other
products involves exposing two species
(Menitha beryllino (silvergidesl and
Mysidopsis ba/na (mysid shrimp)) to five
concentrations of the test product and No 2
fuel oil alone and in a 1 lOmixtureof
product to oil To aid in comparing results
from assays performed by different workers,
reference toxicity tests are conducted using
dodecyl sodium sulfate f OSS) as a reference
toxicant The test length is 96 hours for
Menidia and 48 hours for Myszdopsis L.Cjos
are calculated based on mortality data at the
end of the exposure period (for method of
calculation, see section 3 6 below)
3 2 Selection and Preparation of Test
Materials Test Organisms Men idia beryl/rna
Obtain fish (silversides) from a single source
far each series of toxicity tests tri house
cultures are recommended wherever i i is
cost-effective, however, organisms are
available from comniercial suppliers
Information on the source of test organisms
and any known unusual condition to which
fish were exposed before use should be
included in the data report Use of animals
previously treated with pesticides or
chemotherapeutic agents should be avoided
Organisms should not be used if they appear
to be unhealthy, discolored, or show signs of
stress Use 7-day old larval fish
Fish shnuld be cultured in accordance with
the methods outlined in Middaugh, et al, (5)
There should be no need to acclimate
argantsms to the 25±1°C temperature
recommended for the toxicity tests if
laboratory stock cultures of Menidia are
maintained at the recommended culture
temperature of 25±1°C If test organisms must
be obtained from a commercial source, it may
become necessary to acclimate test fish to the
test temperature of 25±1°C, a p1- I of 8 0±0 2.
and 20±2 ppt salinity since changes in
temperature may occur during shipping
Eliminate groups of fish having a mortality of
more than 10% during the first 48 hours, and
mare than 5% thereafter During acclimation.
organisms should be maintained on a diet of
freshly hatched .Artensia (brine shrimp)
nauplii Feed the fish daily to satiation
during the acclimation period, and once
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54776
Federal Register I Vol. 58, No. 203 / Friday , October 22, 1993 I Proposed Rules
daily during the 96-hour test Care should be
taken daily to remove excess food and fecal
material from beakers during the test. Use
only those organisms that feed actively and
that appear to be healthy Organisms should
be free of disease, external parasites. and any
signs of physical damage or stress Discard
any fish in ured or dropped while handling.
Mysidopsis bahia Several methods for
culturing Mysidopsis bohio (mysid shrimp)
may be used and are noted in appendix A of
Methods for Measuring the Acute Toxicity of
Effluents and Receiving Waters to Freshwater
and Marine Organisms (6) To ensure
uniformity of mysids. recently hatched
mysids should be collected daily from stock
cultures and identified by the date of hatch.
Mysids used in 48-hour tests should be from
a single day’s collection, but may have an age
range of 5—7 days old In cases where in-
house cultures of mysids are unavailable.
organisms may be purchased from a
commercial source Information on the
source of test organisms should be submitted
in the data report
Preparation of Experimental Water.
Filtered natural seawater is recommended for
use since it represents a natural source of
saltwater containing an inherent population
of microorganisms Synthetic seawater
formulated according to the following
method can serve as an acceptable alternative
to filtered, natural seawater for toxicity tests
performed in laboratories in which natural
seawater is unavailable
Synthetic Seawater Formation To prepare
standard seawater, mix technical-grade salts
with 900 liters of distilted or demineralized
water in the order and quantities listed in
Table 4 These ingredients must be added in
the order listed and each ingredient must be
dissolved before another is added Stir
constantly after each addition during
preparation until dissolution is complete
TABLE 4.—SYNTHETtC SEAWATER
[ Toxicity testi
Satt
(g )S
NaF
19
SrC1 2 s6H 2 O
130
H 3 BO 2 ...
200
KEr
670
KC1
4660
CaC1 2 .2H 2 0
7330
Na,5O 4 ..
2,6600
MgC1 2 • 6H 2 O
3,3300
NaC1
15,650 0
Na ,Si0 3 ’9H 2 0 . . .- .
130
EDTA2
04
NaHCO 3
133.0
water, as
I Amount added to 900 titers of
descnbed in the text
2 Ethytenediaminetetraacetate letra sodium
satt.
Add distilled or demineralized water to
make up to 1,000 liters. The pH should now
be 8.0±0.2. To attain the desired salinity of
20±1 ppt. dilute again with distilled or
demineralized water at time of use
3.3 Sampling and Storage of Test
Materials Toxicity tests are performed with
No 2 fuel oil having the characteristics
defined in Table 5 Store oil used for toxicity
tests in sealed containers to prevent the loss
of volatiles and other changes. For ease in
handling and use, it is recommended that
1.000-mt glass containers be used To ensure
comparable results in the bioassay tests, use
ails packaged and scaled at the source,
Dispose of unused oil in each open container
on completion of dosing to prevent its use at
a later date when it may have lost some of
its volatile components Run all tests in a
bioassay senes with oil from the same
container and with organisms from the same
group collected or secured from the same
source
TABLE 5.—TEST Ott .
CHARACTERISTICS: No. 2 FUEL OIL
Charactenstic
Gravity (°API)
32.1
42.8
Viscosity kinematic at
100°F(cs)
2.35
300
Flash point rF)
150
Pour point (°F)
0
Cloud point (°F)
10
Sutfur(wt%)
035
Aniline point (°F)
125
180
Carbon residue (wt %)
0 16
Water (vol %)
0
Sediment (wt %)
0
Aromatucs (vol %) ....
10
15
Distittahon.
IBP (°F)
347
407
i0%(°F)
402
456
50% (°F)
475
530
90% (°F)
542
606
End Point (°F)
596
655
Neutralization No
0 05
3 4 General Test Conditions and
Procedures for Toxicity Tests Temperature
For these toxicity tests, use test solutions
with temperatures of 25±1°C
Dissolved Oxygen and Aeration
Menitho Because oils contain toxic,
volatile materials, and because the toxicity of
some water’soluble fractions of oil and
degradation products are changed by
oxidation, special care must be used in the
oxygenation of test solutions. Aeration
during the test is generally not recommended
but should be used to maintain the required
dissolved oxygen IDOl in cases where low
DO is observed The DO content of test
solutions must not drop below 60%
saturation during the first 48 hours of a static
acute (96-hour) test and must remain
between 40—100% after the first 48 hours of
the test Aeration at a rate of 100±15 bubbles
per minute is supplied by a serological
pipette as needed for maintenance of DO. If
aeration is necessary. alt test chambers
should be aerated At this rate, and with the
proper weight of fish, DO concentration
should remain slightly above 4 ppm over a
96-hour period Take DO measurements
daily.
Mysidopsis Achieve sufficient DO by
ensuring that the surface area to volume ratio
of the test solution exposed is large enough.
Oxygen content should remain high
throughout the test because of the low
oxygen demand of the organisms Aeration Is
not recommended during 48-hour acute
toxicity tests unless the DO falls below 60%
saturation.
Controls With each fish or mysid test or
each series of simultaneous tests of different
solutions, perform a concurrent control test
in exactly the same manner as the other tests
and under the conditions prescribed or
selected for those tests. Use the diluent water
alone as the medium ro which the controls
are held. There must be no more than 10%
mortality among the controls during the
course of any valid test.
Reference Toxicant To aid in comparing
results from tests performed by different
workers and to detect changes in the
condition of the test organisms that might
lead to different results, perform reference
toxicity lests with reagent grade DSS in
addition to the usual control tests. Prepare a
stock solution of DSS immediately before usa
by adding 1 gram of DSS per 500 ml of test
water solution Use exploratory tests before
the full scale tests are begun to determine the
amount of reference standard to be used in
each of the five different concentrations.
Number of Organisms At a minimum. 20
organisms of a given species are exposed for
each test concentration For the toxicity test
procedures using Menitho, place to fish in
each of two tars. For the toxicity tests using
Mysidopsis. place 10 larvae in each of two
containers.
Transfer of Organisms Organisms should
be handled as little as possible in order to
minimize stress Transfer Menidio and
Mysidopsis from the acclimatization aquaria
to the test chambers with a pipette or a wide-
bore, smooth glass tube (4 loB mm internal
diameter) fitted with a nibber bulb Dip nets
should be avoided when handling larval fish
and mysids. Do not hold fish out of the water
longer than necessary and discard any
specimen accidentally dropped or otherwise
mishandled during transfer
Mysidopsis To have the mysids ready for
study. mysids may be sorted 24 hours prior
to initiation of the 48-hour test Transfer the
mysids to a beaker containing a small volume
of water, this vessel serves as a holding
chamber during randomized transfer of the
organisms to test solutions Mysids are
randomly selected from the batch of mysids
in the holding chamber, and transferred to
50-m I beakers containing a small volume of
seawater One mysid is added per beaker
using a small piece of flexible 500-pm
screening until all of the beakers contain one
mysid The process of random selection and
sorting is continued until the appropriate
number of mysids has been delivered to each
of the 50 ’ml beakers The mysids are gently
released from the SD-mI beakers into larger
beakers filled with an appropriate volume of
20-ppt seawater (25°C) to bring the total
volume to 200 ml The beakers are randomly
placed into a temperature-controlled water
bath to acclimate overnight at 25°C,
The mysids are transferred to larger
beakers (1-liter) for the 48-hour test after the
addition of 800 ml of the test solution. A total
of 10 mysids per beaker are used for 48 ’hour
acute toxicity tests. A minimum of two
replicate chambers are used for each test
concentration and control
Menidia and Myszdopsis are fed 50 brine
shrimp nauptii/organism daily dunng the 96-
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Federal_Register / Vol. 58. No. 203 I Friday. October 22, 1993 / Proposed Rules
54777
hour and 48-hour tests Excess food should
be removed daily by aspirating with a
pipette
Test Duration and Observations Menidia
Observe the number of dead fish in each test
container and record at the end of each 24-
hour period. Fish are considered dead upon
cessation of respiratory and all other overt
movements, whether spontaneous or in
response to mild mechanical prodding
Remove dead fish as soon as observed
Also note and report when the behavior of
test fish deviates from that of control fish
Such behavioral changes would include
variations in opercular movement.
coloration, body orientation, movement.
depth in container, schooling tendencies, and
others. Abnormal behavior of the test
organisms (especially during the first 24
hours) is a desirable parameter to monitor in
a toxicity test because changes in behavior
and appearance may precede mortality
Toxicants can reduce an organism’s ability to
survive natural stresses, In these cases, the
mortality is not directly attr Ibuted to the
toxicant, but most certainly is an indirect
effect Reports on behavioral changes during
a toxicity test can give insight into the non-
acute effects of the tested material
At the end of the 96-hour period, terminate
the fish tests and determine the LC,o values
The acute toxicity test is terminated after
four days of exposure The number of
surviving fish are counted and recorded for
each chamber in accordance with standard
EPA methods (6) The LC is calculated
using survival data from the test in
accordance with the methods described in
the guidelines (6)
Mysidopsis Terminate the mysid test after
48 hours of incubation To count the dead
animals accurately. place the exposure
vessels on a light table such that light passes
through the bottom of the vessel Most of the
dead mysids will be on the bottom of the
beaker and can readily be seen against the
background of the light table Also search the
top of the liquid for mysids trapped there by
surface tension Exercise caution when
determining death of the animals
Occasionally. an animal appears dead, hut
closer observation shows slight niovernent of
an appendage or a periodic spasm of its
entire body For these tests, animals
exhibiting any movement when touched with
a pipette tip are considered alive Account
for all test animals to ensure accuracy since
Mysidopsis ba/na may disintegrate or be
cannibalized by other mysids Consider
individuals not accounted for as dead
At the end of 48 hours of exposure.
terminate the mysid assay and determine the
LC,, values in accordance with the methods
described in the guidelines (6)
Physical and Chemical Determinations
Menidia Determine the temperature, DO, and
p11 of the test solutions before the fish are
added end at 24-, 48-. 72-. and 96-hour
exposure intervals It is necessary to take
measurements from only one of the replicates
of each of the toxicant series
Myszdopsis. Determine the temperature.
DO, and pH of the test solutions before the
nauplii are added and at the 24- and 48-hour
exposure interval Measure DO and pH in
only one of the replicates of each of the
toxicant series
Testing Laboratory An ordinary heated or
air-conditioned laboratory room with
thermostatic controls suitable for maintaining
the prescribed test temperatures generally
will suffice to conduct the toxicity tests
Where ambient temperatures cannot be
controlled to 25±1 ‘C, use water baths with
the necessary temperature controls
Test Con to:ners For tests with fish or
mysids, use 1-liter glass beakers measuring
approximately 10cm in diameter. In
conducting the test, add to each beaker 1 liter
of the test solution or seawater formulation
aerated to saturation with DO To add the
liter volume easily and accurately, use a large
volume (1-literl graduated cylinder
Process all required glassware before each
test Immerse in normal hexane for 10
minutes Follow this with a thorough rinse
with hot tap water, three hot detergent
scrubs, an additional hot tap-water rinse, and
three rinses with distilled water Oven or air
dry the glassware in a reasonably dust-free
atmosphere
3 5 Preparation of Test Concentrations
Menidia Place test tars (approximately 22 5
cm in height, 1 5cm in diameter, ‘i i cm in
diameter at the mouth) containing 2 liters of
synthetic seawater on a reciprocal shaker
The shaker platform should be adapted to
hold firmly six of the toxicity test tars Add
the desired amount of the petroleum product
(if applicable) under test directly to each test
jar Dispense the appropriate amount of
toxicant (if applicable) into the tars with a
pipette. Tightly cap the test tars and shake for
5 minutes at approximately 315 to 333 2-cm
10 75-inch) strokes per minute in a reciprocal
shaker or at approximately 150 to 160 rpm
on orbital shakers At the completion of
shaking, remove the ;ars from the shaker and
dispense I liter of the mixture to each of the
1-liter glass beakers Randomly place beakers
in a constant-temperature water bath or
room, take water quality measurements, add
fish, and initiate aeration
Mysidopsis To prepare test solutions for
products and oil/product mixtures, blend or
mix the test solutions with an electric
blender having speeds of o.0O0 rpm or less.
a stainless-steel cutting assembly, and a 1-
liter borosilicate tar To minimize foaming.
blend at speeds below 10,000 rpm
For the product test solution, add 550 ml
of the synthetic seawater to the tar, then with
the use of a gas-tight calibrated glass syringe
with a Teflon-tipped plunger. add 0 55 ml of
the product and mix for 5 seconds
For the oil test solution, add 550 ml of the
synthetic seawater to the tar Then with the
use of a gas-tight calibrated glass syringe
equipped with a Teflon-tipped plunger, add
0 55 ml of the oil and mix for 5 seconds
For the oil/product mixture, add 550 ml of
the synthetic seawater to the mixing ar
While the blender is in operation, add 05 ml
of the oil under study with the use of a
calibrated syringe with a Teflon-tipper
plunger and then 005 ml of the product as
indicated above 8lend for 5 seconds after
addition of product These additions provide
test solutions of the product. oil, and the oill
product mixture at concentrations of 1,000
ppm
Immediately after the test solutions are
prepared. draw up the necessary amount of
test solution with a gas-tight Teflon-tipped
glass syringe of appropriate size and dispense
into each of the five containers in each series
If the series of five concentrations to be tested
are 10, 18, 32, 56. and 100 ppm. the amount
of the test solution in the order of the
concentrations listed above would be as
follows 10, 18, 32, 56. and 100 ml
Each time a syringe is to be filled for
dispensing to the series of test containers.
start the mixer and withdraw the desired
amount in the appropriate syringe while the
mixer is in operation Turn off immediately
after the sample is taken to limit the loss of
volatiles
Use exploratory tests before the full-scale
test is set up to determine the concentration
of toxicant to be used in each of the five
different concentrations After adding the
required amounts of liquid, bring the volume
in each of the test containers up to 800 ml
with the artificial seawater To ensure
keeping each of the series separate, designate
on the lid of each container the date. the
material under test, and its concentration
When the desired concentrations are
prepared. gently release into each beaker the
10 test Mysidops:s (previously transferred
into 200 ml of medium) This provides a
volume of i liter in each test chamber A pair
of standard cover glass forceps with flat, bent
ends is an ideal tool for handling and tipping
the small beaker without risk of
contaminating the medium
After adding the test animals. incubate the
test beakers at 25±1 C for 48 hours
Recommended lighting is 2.000 lumens/mt
(200 ft-c) of diffused, constant, fluorescent
illumination
Wash the blender thoroughly after use and
repeat the above procedures for each series
of tests Wash the blender as follows rinse
with normal hexane. pour a strong solution
of laboratory detergent into the blender to
cover the blades, fill the container to about
half of its volume with hot tap water, operate
the blender for about 30 seconds at high
speed. remove and rinse twice with hot tap
water, mixing each rinse for S seconds at
high speed. and then rinse twice with
distilled water, mixing each rinse for 5
seconds at high speed
3 6 Co /cu Joting and Reporting At the tnd
of the test period, the toxicity tests are
terminated and the LC 31 values are
determined
Ca lculations The LCv, is the concentration
lethal to 50% of the test population Ii can
be calculated as an interpolated value based
on percentages of organisms surviving at two
or more concentrations, at which less than
half and more than half survived The LC
can be estimated with the cid of computer
programs or graphic techniques flog paper)
The 95% confidence intervals for the LCw
estimate should also be determined
Reporting The test product and oil and
their source and storage are described in the
toxicity test report Note any observed
changes in the experimental water or the test
solutions Also include the species of fish
used. the sources, size, and condition of the
fish, data of any known treatment of the fish
for disease or infestation with parasites
before their use, and any observations on the
fish behavior at regular intervals during the
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Federal Register / Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
tests In addition to the calculated LC 50
values, other data necessary for interpretation
(e g , DO, pH. other physical parameters, and
the percent survival at the end of each day
of exposure at each concentration of toxicant)
should be reported.
3 7 Summary of Procedures Menidia
I Prepare adequate stocks of the
appropriate standard dilution water.
2 Add 2 liters of the standard dilution
water to the test jars Each test consists of 5
replicates of each of S concentrations of the
test material, a control series of S beakers,
and a standard reference series of 5 different
concentrations for a total of 35 beakers
Simultaneous performance of toxicity tests
on the oil, product. and oil/product mixture
requires a total of 105 beakers.
3 Add the determined amount (quarter
points on the log scale) of test material to the
appropriate pars. Preliminary tests will be
necessary to define the range of definitive
test concentrations.
4 Cap the jars tightly with the Teflon-lined
screw caps and shake for 5 minutes at 315
to 333 2-cm (0.75.inch) strokes per minute on
a reciprocal shaker.
5. Remove the pars from the shaker, take
water quality data, dispense I liter of
solution to the i-liter glass beaker, and add
10 acclimated fish per beaker
6 Aerate with 100±15 bubbles per minute
through a 1-mi serological pipette, as needed,
to maintain DO above 4 0 mg/I
7. Observe and record mortalities, water
quality, and behavioral changes every 24
hours.
8 After 96 hours, terminate the test, and
calculate LC values and corresponding
confidence limits.
Mysidopsis.
1. Initiate the procedure for hatching the
Mysidopsis in sufficient time before the
toxicity test is to be conducted so that 5—7
day old larvae are available
2 With the use of a small pipette, transfer
10 Mysidopsis into small beakers, each
containing 200 ml of the proper synthetic
seawater
3 To prepare the test stock product and oil
solutions, add 550 ml of the artificial
seawater to the prescribed blender par By
means of a gas-tight glass syringe with a
Teflon-tipped plunger. add 0.55 ml of the
product (or oil) and mix at 10,000 rpm for 5
seconds To prepare the test stock oil/product
mixture, odd 550 ml of the standard seawater
to the blender jar. While the blender is in
operation (10.000 rpm), add 0.5 ml of the oil,
then 005 ml of the product with the use of
a calibrated syringe with a Teflon-tipped
plunger. Blend for 5 seconds after edding the
product. One ml of these stock solutions
added to the 100 ml of standard seawater in
the test containers yields a concentration of
10 ppm product. oil, or oil/product
combination (the test will be in a ratio of 1
part product to 10 parts of oil).
4 Each test consists of 5 replications of
each of 5 concentrations of the material
under study, a control series of 5 beakers and
a standard reference series of 5 dIfferent
concentrations, for a total of 35 beakers.
Simultaneous performance of toxicity tests
on the oil, product, and oil/product mixture
requires a total of 105 beakers. Immediately
after preparing the test solution of the
product or oil/product solution, and using an
appropriately sized syringe, draw up the
necessary amount of test solution and
dispense into each of the five containers in
each series
Each time a syringe is to be filled for
dispensing to the series of test containers,
start the mixer and withdraw the desired
amount in the appropriate syringe while the
mixer is in operation. Turn mixer off
immediately after the sample is taken to limit
the loss of volatiles. After adding the
required amount of the test oil/product or
product mixture, bring the volume of liquid
in each of the test containers up to 800 ml
with the artificial seawater.
When the desired concentrations have
been prepared, gently release into each
beaker the 10 mysids previously transferred
into 200 ml of medium This provides a
volume of I liter in each test chamber,
5. Wash the blender as prescribed for each
series of tests.
6 incubate the test beakers at 25±1 C for
48 hours with the prescribed lighting
7. Terminate the experiment after 48 hours,
observe and record the mortalities, and
determine the LC s and corresponding
confidence limits
4 0 Bioremediotion Agent Effectiveness Test
4 1 Sunimozyof Method The
bioremediation agent effectiveness testing
protocol is designed to determine a product’s
ability to biodegi-ade oil by quantifying
changes in the oil composition resulting from
biodegradation The protocol quantifies the
disappearance of saturated hydrocarbons and
polynuclear aromatic hydrocarbons (PAHs).
The sample preparation procedure partitions
the oil phase into a neutral solvent (hexane)
To effectively accomplish the goals of the
testing protocol. it is necessary to normalize
the concentration of the various analytes in
oil to a non.biodegradable biomarker. hopane
(7).
The test method targets the relatively easy
to degrade normal alkanes and the more
resistant and toxic PAHs. It normalizes their
toncentrations to C 17o(H),21 (H)-hopane
on an oil weight basis (mgC,o17a(H).21 (H)-
hopane/kg oil, mg target analyte/kg oil),
The analytical technique uses a high
resolution gas chromatogs’aph/mass
spectrometer (GC/MS) because of its high
degree of chemical separation and spectral
resolution. CC/MS has long been used to
study the weathering and fate of oil spilled
into the environment For quantitative
analyses, the instrument is operated in the
selective ion detection (SIM) mode at a scan
rate of greater than 1 5 scans per second to
maximize the linear quantitative range and
precision of the instrument. The sample
preparation method does not exclude
analysis of selected samples by CC/MS in the
full scanning mode of operation to
qualitatively assess changes in the oil not
accounted for by the SIM approach.
Performed concurrently with the chemical
analysis described above is a microbiological
analysis The microbiological analysis is
performed to determine and monitor the
vIability of the microbial cultures being
studied. Under this procedure, microbial
enumerations of hydrocarbon degraders are
performed at each sampling event using a
microtiter Most Probable Number (MPN)
determination
4 2 Apparatus. The following materials
and equipment are required for the protocol
Appropriate flasks and other glassware.
sterile tubes, graduated cylinders (100-mI),
D I water: p-iodonitrotetrazolium violet dye.
weighing pans or paper. 250-mI borosilicate
glass Erlenmeyer flasks with screw tops.
Pasteur pipettes. laboratory notebook:
microtiter MPN plates (24-well) multi-
channel pipetting device; dilution tube and
caps, autoclave, environmental room or
incubator, balance accurate to 0 1 mg (XD—
400), Hewlett-Packard 5890/5971 CC/MS
instrument equipped with a DB—5 capillary
column (30 m, 0.25-mm! D ,and 0.25-pain
film thickness) and a split/splitless injection
port operating in the splitless mode; and an
autosarnpler for testing multiple samples
4 3 Reagents and Culture Medium.
Preparation of Seawater, All products are
tested in unfiltered Gulf Breeze coast
seawater’, which is available from the EPA/
Office of Research and Development’s (ORD)
Environmental Research Laboratory, Sabine
Island, FL, 32561—5299. The seawater is used
within seven days of collection No microbial
inoculum is added
Preparation of Oil A medium weight crude
oil. Alaska North Slope (ANS). is artificially
weathered by heating to 521°F to remove the
light end hydrocarbons prior to expenmenta’
start-up. The method is described in the Draft
International Standard ISO/DIS 8708 “Crude
Petroleum Oil—Determination of Distillation
Characteristics Using 15 Theoretical Plates
Columns” by the International Organization
for Standardization (8) The ANS crude oil
can be obtained from the National
Environmental Technology Applications
Corporation’s (NETAC) Bioremediation
Products Evaluation Center (BPEC).
University of Pittsburgh Applied Research
Center, 615 William Pitt Way. Pittsburgh, PA,
15238. (412) 826—5511. The crude oil is
heated to 374°F under atmospheric pressure
The system is then cooled and placed under
vacuum (20 mm Hg). The oil is reheated to
521°F, then allowed to cool to between 230—
250°F. The oil is nitrogen blanketed and
stored.
Preparation of Mineral Nutrient Solution. If
a commercial product is a microbial
inoculum and does not contain its own
nutrients, a mineral nutrient solution will be
provided if requested by the product
manufacturer or vendor. If a commercial
product contains its own nutrients, no
further nutrients will be added The nutrient
solution is a modified salt solution and is
described below.
Nutrient Preparation’
1. N&P Salts. The following salts are added
to distilled water and made up to a I .000-mI
volume. Adjust final pH to 7.8 The solution
is sterilized by autoclaving at 121 °C at 15
psig for 20 minutes or by filtering through a
sterile 0 22 jim membrane filter.
‘ThIs protocol was developed using the Gulf
Breeze coast seawater. To ensure the reproducibilliy
of test results, this type 01 seawater should be used
when conducting this test
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Federal Register / Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
54779
Na 2 HPO 4 .2H 2 —18.40 8
KNO,—76.30 g
2 MgSO 4 .7H O solution. Dissolve 22.50 g
in 1,000 ml distilled water. The solution is
sterilized by autoclavingat 121°Cat 15 psig
(Or 20 minutes.
3. CaCI solution Dissolve 27 50 g in 1,000
ml of distilled water The solution is
sterilized by autoclaving at 121°C at 15 psig
for 20 minutes.
4. FeCI 3 .6H 2 0 solution. Dissolve 0 25 g in
1,000 ml of distilled water The solution is
sterilized by autoclaving at 121CC at 15 psi 8
for 20 minutes
5. Trace Element Solution. The following
salts are added to distilled water and made
up Ion 1,000-mi volume The solution is
sterilized by autoclaving at I2VC at 15 psig
for 20 minutes.
MnSO 4 .H 2 0—30.2 mg
H 3 B0 3 —57.2 mg
ZnSOa.7H 2 0—.42.8 mg
(NH 4 )6Mo,O —34.7 mg
Final Concentrations
Ten (10) ml of solution I and 2 ml of
solutions 2—5 are added to non-sterile
seawater and made up to a I .000-mI volume
Immediately prior to test start-up This
seawater/mineral nutrient solution is used
for all flasks containing products requiring
nutrient supplements and for the flasks
containing no commercial additive. Seawater
without the above nutrient solutions is used
for products containing their own source of
nutrients
4.4 Pretest Preparation Experimental
Setup. The procedure consists of an
experimental shaker flask setup and the
specific set of microbiological and chemical
analyses that are performed on individual
product samples.
The following test flasks are prepared.
1. Product Treatment. Three product flasks
containing oil, seawater (with or without
nutrients as appropriate), and the cormnercial
product being tested for each sampling event
(12 total for each of four sampling events).
2 Nutrient Treatment Three nutrient
flasks containing oil and seawater (with
nutrients) for each sampling event (12 total
for each of four sampling events)
3 Control. Three flasks containing oil and
seawater without nutrients for each sampling
event (12 total for each of four sampling
events).
The tutal number of flasks needed for a
test, knowing that each test consists of a
control, nutrient treatment, and product
treatment, is 36 flasks.
For each test, a sheet listing the number of
flasks, types of cot trals, number of
replicates, product to be tested, and other
information Is prepared. The following steps
should be adhered to for the experimental
setup:
1. Borosllicate glass Erlenrneyer flasks
(250-mI) are thoroughly cleaned and
autoclaved for 20 minutes at 120 °C at 15 psi,
than dried in the drying oven.
2. Flasks are labeled with the appropriate
code: Product or control, sample day, and
letter indicating replicate
3. 100 ml of seawater is added to each
flask.
4 For nutrient and product treatments that
require the addition of nutrients. seawater
containing the nutrient solution is prepared.
5. Pasteur pipettes should be sterilized in
advance. Break off the tip to provide a larger
opening prior to sterilization.
6. Pour the approximate amount of oil to
be used from the large stock bottle into a
sterile beaker. Keep the beaker covered when
oil is not being removed.
7. The labeled flasks containing seawater
and other additions, as necessary, are placed
on the balance The flask is tared. The
appropriate amount of oil (500 mgI is added
drop by drop using a sterile Pasteur pipette
with the tip broken off to provide a wider
opening. Care is taken to avoid splashing the
oil or getting it on he sides of flasks
Precautions are taken when handling and
charging the flasks to minimize the
likelihood of contamination by exogenous
microbes This includes using a new sterile
pipette for each series of flasks.
8. Tho weight of the oil is recorded in the
laboratory notebook.
9 The product is prepared and added to
the appropriate flasks according to the
manufacturer’s or vendor’s instructions
10. Flasks are carried upright and carefully
placed in the holders on the shaker table to
minimize the amount of oil that might adhere
to the side of the flasks Flasks in which a
significant amount of oil is splashed on the
sides are redone.
II. The prepared flasks are shaken at 200
rpm at 20°C until such time that they will
be removed for sampling
Sampling The control and treatments
(nutrient and product flasks) are sampled
four times over a 21 ‘day period day 0. day
5, day 13, and day 21. The entire flask is
sacrificed for analysis. A 0.5-mI aliquot is
removed from each flask for the
microbiological analysis The remainder of
each flask is used for the chemical analysis
Specific procedures for both the
microbiological and chemical analysis are
described below. At the time of each
sampling event, physical observations of
each flask should be recorded
4 5 Microbiological Analysis To
determine and monitor the viability of the
microbial cultures being studied, microbial
enumerations of hydrocarbon degraders are
performed at each sampling event using a
microtiter MPN determination,
Media Preparation Media for microbial
enumerations are carefully prepared
according to manufacturer’s or other
instructions and sterilized using appropriate
methods,
General Media Treatment Buy Bushnell-
Haas broth in quantities to last no longer than
one year Use media on a first-in, first-out
basis. When practical. buy media in quarter-
pound multiples, rather than one-pound
multiples to keep supply sealed as long as
possible. Keep an inventory of media,
Including kind, amount, lot number,
expiration date, date received, and date
opened Check inventory before reordering
media. Discard media that are caked,
discolored, or show other deterioration.
Sterile Saline (pH adjusted).
1. Weigh 30 g of NaCI.
2. Dissolve in enough water to make 1,000
ml.
3. Adjust pH to 8 0 with NaOH IbM and
0 SM).
4 Sterilize by autoclaving for 15 minutes
at 15 psig
Standard Nutrient Concentrate (add 2 ml
to each JOO ml of Bushnell1-loos medium for
MPN 5)
1. Weigh compounds listed below, dissolve
in DIH 2 O, dilute to 1 liter
Potassium Phosphate. monohasic K} 1 2 P0 4 . —
0633 g
Potassium Phosphate. dibasic KiHPO*—
1 619 g
Sodium Phosphate. dibasic Na 2 HPO 4 —2 486
8
Ammonium Chloride NH 4 CI—3 850 g
Magnesium Sulfate, heptahydrate
M 8 SO 4 .7H 2 0—4 500 g
Calcium Chloride, dihydrate CaCl 2 .2H 2 0—
7 290g
Ferric Chloride. hexohydrate FeCI 3 s6H 2 O—
0 250 g
Trace Elements
Manganese Sulfate, monohydrate
MnSO 4 .l-1 2 0—-6 04 mg
Boric Acid H 3 Bo 3 —I1 44 mg
Zinc Sulfate, heptahydrate ZnSO 4 .7H 2 0—
856mg
Ammonium Moybdate. tetrahydrate
(NH 4 ) 6 M0,0 24 .4H,O—6 94 mg
2 Adiust pH to 6 0
3 Stir solution for approximately 3 hours,
then filter through a Buchner funnel using #1
paper, which will retain approximately 3 8 g
of insolubles
4 Then filter through a 0 45 micron filter
into sterile bottles
5. Cap bottles, label, and store in
refrigerator until used
Quality Assurance/Quality Control (QA/
QC):
I Periodically check the effectiveness of
sterilization using commercially available
tapes or Bacillus steorothermophilus spore
suspensions. following the in$t.ructions with
these products
2 Maintain a media log book that includes
the dates, kinds and amounts of media made.
pH. and any problems or observations
3 Before use, check plates and tubes for
signs of contamination, drying, or other
problems
Safety/Special Precautions
1 Note any safety or other precautions for
particular media.
2. Note precautions to be followed when
using the autoclave
3. Use gloves and other protective clothes
when handling media
4 Use care in handling not media
Microbial Enumeration Standardized
techniques for performing microbial
enumerations are described below
Diluhans’
I Remove 05 ml of water from each flask
to be tested and add it to a tube of 4 5 ml
sterile buffered saline (see Media Preparation
section above). This is the i0- dilution
Note: Minimize the amount of oil that
adheres to the tip of the pipette when
performing this procedure Any oil on the
pipette should be rinsed back into the flask
with the appropriate solvent Use the solvent
that will be used for the extraction procedure
being carried out
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Federal Register I Vol. 58. No. 203 I Friday. October 22. 1993 / Proposed Rules
2 Mix the contents of the first dilution
tube by forcefully pipetting the fluid up and
down several times.
3 Using sterile techniques, remove 0.5 ml
from the first dilution tube and add it to a
second tube containing 4 5 ml of sterile
buffered saline
4 Repeat this procedure for a total of 8
serial 10-fold dilutions. A fresh sterile pipette
should be used for the preparation of each
dilution On day 0. samples are taken out to
dilutions of 10’. On all other days, samples
are taken out to dilutions of l0 . Note that
on each day a straight seawater sample is
taken and diluted to 10
Inoculating MPN Plates (Oil Degrader)
I Prepare sufficient sterile Bushnell.Haas
(B—H) broth (see Media Preparation section
above) to fill the number of wells required for
the test (1.75 mI/well)
2 Add I ml of standard nutrient
concentrate (see Media Preparation section
above) to each 100 ml of B—H media.
3 Using sterile technique. add 1.75 ml of
B-H broth to each well.
4. Label the top of the plate with the proper
dilution for each row
5 Add 0 1 ml of fluid from each dilution
tube to each well in the appropriate row.
starting with the most dilute.
6 After adding the fluid to all the wells.
add 20 p1 of ANSS2I oil to the top of each
well.
7. Incubate each plate at 20°C.
8. After 14 days of incubation, add 100 p1
of p-iodotetrazolium violet dye (50 mg/b ml
of D I water) to each well to determine
growth
9. View plates against a white background
to determine if color is present Development
of a purple or pink color upon standing for
20 minutes constitutes a positive test
10 Record the number of positive wells
and the dilutions at which they occur.
Quality Assurance/Quality Control
I Check pH of medium before preparing
wells (pH should be approximately 8 0)
Adjust pH. if necessary. with dilute NaOH
2 Keep prepared tetrazolium violet dye
solution in the refrigerator in an amber bottle
when not in use
3 Have all laboratory personnel
periodically run MPNs on the same sample
to test precision
Safety/Special Precautions’
I Use sterile technique in preparing
solutions, dilutions, plates. and MPN wells.
2 Do not pipette potentially hazardous
solutions by mouth.
3 Autoclave all plates and wells before
discarding
4 6 Chemical Analysis of Oil
Composition CC/MS Procedure Steps 1—10
below should be followed when conducting
the CC/MS procedure
I After 0.5,13, and 21 days of rotary
shaking and incubating at 20°C, the reaction
vessels are sacrificed by adding hexano to the
contents Prior to the addition of hexane, a
0 5-mI sample of the aqueous phase is
removed for the microbiological analysis.
2. A surrogate recovery standard Is
prepared In the following manner. 200 mg of
d, 0 -phenanthrene and 200 mg of 5cr-
androstane are measured into a 500-mi
volumetric flask and hexane is added to the
mark to produce a 400 -ng/pl stock solution.
A 0.5-mi aliquot of the surrogate solution is
added to each test flask.
3. Fifty (50) ml of hex ,ane is placed in a
Teflon squeeze bottle. The 0 5-mI pipette
used to remove the water sample from the
shaker flask is rinsed with hexane from the
squeeze bottle. The hexane remaining in the
bottle is emptied into the flask so that the
total volume of hexane added to the flasks is
exactly 50 ml. The final concentration of
surrogates in each flask from step 2 is 4 ng/
Ii hexane. The aliphatics and hopane data
should be corrected for percent recovery of
the So-androstane surrogate and the
aromatics for the drn-phenanthrene surrogate.
4. A stir bar is added to the flasks and the
hexane/seawater mixture is allowed to stir
for at least 10 minutes. Note that the stirring
should be vigorous enough that the two
layers are thoroughly mixed.
5 The flask is set aside to allow the hexane
and water layers to partitIon. This may take
5—10 minutes for some products and up to 3
hours for others if the product has caused
formation of an emulsion.
6 The contents of the flask are placed into
a separatory funnel, and 30 ml of the water
fraction is emptied into a 50-mI vial. The pH
of the water is adjusted to 3.0. The vial is
sealed with a Teflon-lined cap and stored at
4°C. This water layer is kept as a
precautionary measure. If the CC/MS
analysis of the hexane layer Indicates
recovery of <85% for C ,17a(H),21 (H)-
hopane relative to surrogate recovery
standards (durphenanthrene and 5cr-
androstane), then the water layer should be
extracted again using three separate
extractions with methylene chloride followed
by concentrating to 0 1 ml, and analyzing by
CC/MS (SIM)
7 After draining approximately the first 10
ml of the hexane layer. 30 ml of the hexane
layer is dried by passing it through a funnel
packed with anhydrous sodium sulfate
directly into a 50-mI sample vial
Note: The sample vial should have a
Teflon-lined cap.
8 Before the gravlmetric analysis is
attempted. all the asphaltones should be
removed from the dried hexane layer. This Is
accomplished by centrifuging the dried
hexane extract at 4°C for 15 minutes at 3,000
rpm. Ten (10) ml of the supernatant Is placed
in a small vial and concentrated to dryness
by nitrogen blowdown techniques If the oil
is severely biodegraded. a larger volume of
hexane may be necessary for the gravimetric
analysis The residue is weighed 3 times for
the gravimetric weight of oil This is an
Important and necessary step that will enable
reporting the data on an oil weight basis. The
increase in hopane concentration with time,
relative to the initial source of oil, is a
measure of the amount of oil degraded. The
percent depletion of the oil can be estimated
by the following equation:
% total oil depletion = (1—H 0 /H ,) X 100
(6)
where’
H 0 =C 17a(H),21 (H)-hopane concentration
in the source oil
H 1 =C 17cr(H),21 (H)-hopane concentration
in the degraded oil
Individual analyte depletion can be
estimated by the Following equation
% analyte depletion = (1— (C,/G,) x (I-L I
H,)) x 100 (7)
where:
C,=analyte concentration in the degraded oil
C 1 =analyte concentration in the source oil
The hopane-normalized concentration of
analytes is computed by the followin8
equation:
hopane-normalized analyte conc. = (100
— % analyte depleted) x C 0 +100
(8)
9. The hexane level of the remaining
portion of the extract is marked on the vial
with a grease pencil At this point, samples
are properly labelled and stored at 4°C for
later analysis
10. One (1) ml of the hexane extract is
placed into a 1.5-mI vial for use on the
autosampler of the CC/MS instrument. To
this solution, 20 p1 of a 500-ng/pl solution of
the Internal standards is added The final
concentration of the internal standards in
each sample is 10 ng/pl. This solution
contains 4 deuterated compounds’ d-
naphthalene, d, 0 -anthracene, d, 2 -chrysene.
and d 12 -perylene in methylene chloride.
Quality Assurance/Quality Control At the
start of any analysis period, the mass
spectrometer (MS) is tuned to PFTBA by an
autotune program to reduce operator
variability (generally. the Hewlett-Packard
quicktune routine will be used). An
instrument blank and a daily standard are
analyzed prior to analysis of unknowns.
Internal standards are combined with the
sample extracts and co-injected with each
analysis to monitor the instrument s
performance during each run. Miscellaneous
information that should be included on the
acquisition form include operator’s name,
sample name, sample preparation
information, method information. CC column
number. and EMV setting If the instrument
is operated for a period of time greater than
12 hours, the tune will be checked and
another daily standard analyzed prior to
continuing with analyses
The QA/QC procedure is based on a
modified version of EPA Method 8270(9).
Specifically. the concentrations of internal
standards are 10 ng/pl instead of 40 ng/ iI.
The MS Is calibrated using Method 8270. A
five-point calibration curve is obtained for
each compound iisted in Table 6 The
concentrations used for these curves are 1, 5,
10, 25, and 50 ng/pl in a 90:10 solution of
hexane/methylene chloride The standard
mix (excluding C, 0 1 7 (l-l),21a(H)-hopane) for
this calibration curve may be obtained from
Absolute Standards. Inc., 498 Russell St.,
New Haven, CT, 06513, (800) 368—1131: the
Cxi i 7 ,(H),21a(H)-hopane may be obtained
from Dr. Charles Kennicutt II. Geochemical
and Environmental Research Group, Texas
A&M UnIversity, 833 Graham Rd ,College
Station, TX, 77845, (409) 690—0095.
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Federal Register / Vol. 58. No. 203 / Friday, October 22, 1993 / Proposed Rules
TABLE 6.—COMPOUNDS USED IN FIvE-PoINT CALIBRATION CURVE
54781
ri-aikanes. C10-C35
PriStafle
Chrysane.
Benzo(b)fluoranthene.
Benzo(k)ftuoranthene.
Benzo(e)pyrene.
Benzo(a)pyrene.
Perytene
lndeno(g,h,i)pyrene.
Dibenzo(a,h)anthracer te.
Benzo(1,2,3-cd)perylene.
C 17 (H), 2lcz(H)-hopane
ph I/taste
..
naphthalene
-.
flu ene
dibenzoth lOphefle
phenanthrene
fluoranthene
pyrene
Table 7 lists the primary ions monitored
for each target analyte during CC/MS
analysis in the SIM mode
Genemily Accepted Laboratory Procedures
Samples are imtnedietely logged into the
laboratory, where they will be given a unique
sample identification based on Julian data
and the number logged in. Prior to the
analysis of any experimental samples, a five-
point standard curve is prepared One of the
standard curve concentration levels is
analyzed daily before sample analysis
Relative response factors for all target
analytes should be within 25% of the
standard curve response values at day 0. and
at any sampling event the check standard
percent difference from the initial live-point
calibration must not exceed 20% between the
before and after daily standard mix (see
below).
The collected CC/MS data are initially
processed by a macro routine, which
performs extracted chromatographic plots of
the target compounds. integrates the target
compounds. and shows integration results to
include tabular numbers The integration
values are then transferred to a spreadsheet
format to be quantified Because of the
complexity of the analyte matrix (oil), a very
high degree of manual verification and
reintegration of the spectral data is required
TABLE 7.—PRIMARY IONS MON-
ITORED FOR EACI-1 TARGET ANALYTE
Compound
Ion
ri-alkanes (C, -C 33
pristane
phytane
decalin
C—i decalin
C—2 decalin
C—3 decalun
naphtrtalene
C—i naphthalenes
0—2 naphthalenes
C—3 naphthalenes
C—4 naphthalenes
fluorene
C—i fluorenes
C—2 fluorenes
C—3 fluorenes
dibenzothiophenes
C—i dubenzothuophenes
C—2 dubenzothiophenes
C—3 dibenzothiophenes
anthracene
phenanthrene
C—i phenanthrenes
C—2 phenanthrenes
Compound
C—3 phenanihrenes
fluoranthene/pyrene
C—I pyrenes
0-2 pyrenes
chrysene
C—i chrysenes
C—2 chrysenes
hopanes (177 family)
hopanes (191 family)
steranes (217 family)
benzo(b)fluoranthene
benzo(k)fluoranthene
benzo(e)pyrene
benzo(a)pyrene
perytene
ideno(g,h,i)pyrene
dibenzo(a,h)anthracene
benzo(1 .2,3-cd)perylene
d -naphlhaIene
d u ,r ’anthracene
d,,,-phenanthrene
d 12 chrysene
d 2 perylene
a-androstane
The reliability of this method is dependent
on the QC procedures followed With each
analytical batch (approximately 10 samples).
one procedural blank, one duplicate (one
before and one after all samples). and one
standard source oil are analyzed Surrogate
recoveries should be within 70 to 120%. and
duplicate relative percent difference values
should be ±20%. A control chart of the
standard oil should be prepared and
monitored. Variations of analytes in the
control chart should be no more than 25%
from the historical averages Injection port
discrimination for n-C25 and greater alkanes
must be carefully monitored, the ratio of
relative response factor (RRF) n-C32/RRF n-
C21 alkanes should not be allowed to fall
below 80% The mass discrimination can be
reduced by replacing the quartz liner in the
inlection port after every analytical batch
The instrument’s performance and
reproducibility are validated routinely by
analyzing the reference crude oil standard
All analyses are recorded in instrument logs
detailing operating conditions, date and time.
file name. etc. After analysis, the sample
extracts are archived at refrigeration
temperatures. To document QA/QC. the
following information is contained in the
detailed quantitative reports. Average RRF
derived from the standard curve; RRF from
TABLE 8.—OPERATING CONDITIONS
AND TEMPERATURE PROGRAM OF
GC/MS
Operating conditions
Injector port 290°C
Transfer line 320°C
Total run time 73 minutes
Column flow rate (He) . 1 0 mllminute
Temperature program
Level
Time
mm-
utes
Rate,
minute
Temp
2. O
Time
2.
mm-
utes
1.. .
2
55
280
3
0
5
3
280
310
5
10
5 0 Thoremediation Agent Toxicity Test
5 1 Summary of Method The toxicity test
for bioremediation agents involves exposing
two species (Menidia beryllina (silversides)
and Mysidopsis bahia (mysid shrimp)) to five
concentrations each of a bioromediatton
agent. a crude oil, and a mixture of
bioremediation agent plus oil in a series of
short-term bioassays The testing proceeds
from tests of a relatively short duration (96-
hours) to toxicity tests of 7 days in length
according to the scheme outlined in Figure
2. A 96-hour static, acute range finding test
is conducted with the product to establish a
narrower range of concentrations for the
subsequent 7-day chronic estimator tests to
TABLE 7.—PRIMARY IONS MON-
ITORED FOR EACH TARGET ANALYTE
the daily standard; percent relative standard
deviation, area of target analyte.
concentration determined both on a weight
and volume basis: and values for any
Oft surrogates and internal standards
Instrument Configuration and Calibration
202 A 2-rn) aliquot of the hexane extract prepared
o by the above procedure is intected into a
230 Hewlett-Packard 5890/5971 GCJMS
228 instrument. This instrument is equipped
242 with a DB—5 capillary column (30 m, 0 25-
256 mm I D .and 0 25-jim film thickness) and a
177 split/splitless injection port operating in the
191 splitless mode Table 8 summarizes the
217 temperature program used for the analysis
252 This temperature program has been
252 optimized to give the best separation and
252 sensitivity for analysis of the desired
252 compounds on the Instrument Prior to the
252 sample analysis, a five-point calibration must
276 be conducted on a standard mix of the
278 compounds listed in Table 7 to determine
276 RRFs for the analytes
136
188
188
240
264
260
85
85
85
138
152
166
180
128
142
156
170
184
166
180
194
208
184
198
212
226
178
178
192
206
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54782 Federal Register / Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
be conducted with the bioremedia ion agent agent plus oiL A 96-hour static, acute range water-soluble fraction (WSF) of oil and
and a mixture containing the bioremediation finding test is also conducted using the appropriate (seawater) control.
BIUJ IQ OOCE E5eO-C*-P
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Federal Register / Vol. 58. No. 203 I Friday. October 22. 19 3 / Proposed Rules
54783
Figure 2
Process for Conducting Bloremediation Agent Toxicity Test
Endpoints:
1. LC 50 (Product)
2 NOECs&LOECs
for Product’
Mixture
(Product + Oil)
Sets Range for
Product Concentrations
I
t
Survival NOEC
for Oil
Sets Oil (WSF)
Concentration
Oil
Se ts Range for og
I (WSF) Concentrations
t ____
I
7-Day
Chronic Estimator
Test
For all tests, survival and growth NOECs & LOECs are calculated for both Menidia
and Mysidopsis, and fecundity NOECs & LOECs are calculated for Mysidopsis
only.
Product
(Bioremediation Agent)
Sets Range for
I Product Concentrations
7-Day
Chronic Estimator
Test
7-Day
Chronic Estimator
Test
Endpoints:
1 LC 50 (Oil)
2. NOECs & LOECs
for Oil
Endpoints:
1 LC 50 (Mixture)
2. NOECs & LOECs
for Mixture
BILUNG CODE e3eo-60-C
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54784
Federal Register / Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
Data born this 96-hour test are used in
setting up a 7-day chronic estimator test to
determine the no observed effective
concentration (NOEC) and the lowest
observed affective concentration (LOEC) for
the treatment effects (i e., growth and
survival for both fish and mysids, and
fecundity in mysids) of the specific type of
oil. Tha LOEC is the lowest concentration of
a substance having a statistically significant
adverse effect on the exposed population
when compared to the control, and the NOEC
is the highest concentration of a substance
not having a statistically significant adverse
effect on the exposed population when
compared to the control. The survival NOEC
of oil is subsequently used as the test
concentration for oil used in a 7-day chronic
estimator test of a mixture of bioremediation
agent plus oil,
Seven (7) day chronic estimator tests with
the mixture include both a seawater control
and a control for the oil (WSF at the survival
NOEC). Reference tests using DSS are
conducted to ensure the sensitivity of test
organisms and to aid in comparisons of
results from assays performed by different
workers. The duration of the reference tests
is 96 hours for both Menidia beryllino and
Mysidopsis bahia. The acute range finding
tests are static tests, while the chronic
estimator tests are static-renewal tests.
Methods for the bioremediation agent
toxicity test should follow the basic
recommendations made for conducting acute
(6) and chronic (10} tests with effluents using
silversides and snysids. However, the
guidelines in this Appendix should be
followed in cases where there is
disagreement between the two protocols
Because of a lack of information on the use
of oil and bioremediation agents in the
effluent guidelines, specific information on
preparation of oil sample end oil plus
bioremediation agent mixture will be
provided below. Guidelines for the
preparation of bioremediation agents and the
manufacturer’s recommended application
rate for field use are determined by the
product vendor and should be provided to
the laboratory personnel conducting the
toxicity tests. This information should be
included as part of the necessary
documentation when submitting information
for consideration of a product for inclusion
on the NCP Product Schedule.
Data from the 96-hour acute toxicity range
finding tests are used to derive a
concentration range for the LC, 0 according to
standard methods (6). LC s are calculated
based on mortality data at the end of the 7-
day exposure penod and are calculated
according to the method in Short-term
Methods for Estimating the Chronic Toxicity
of Effluents and Receiving Waters to Marine
end Estuarine Organisms (to). Survival.
growth. and fecundity (for Mysidopsis only)
data are used to calculate NOECs for the 7-
day tests according to the EPA protocol (ID)
Weathered crude oil (ANS52I) is used as
the standard oil for performance of these
toxicity tests. However, product
manufacturers wishIng to evaluate their
product’s toxicity In the presence of other
types of oil may utilize this protocol for
additional toxicity testing of the
bioremediation agent with other kinds of oil
leg., heavy or light crude oil, or refined oils
such as No 2 or No 6 fuel oil)
5.2 Selection and Preparation of Test
Materials Test Organisms Men adia beryllina.
Obtain fish from a single source for each
series of toxicity tests. In-house cultures are
recommended wherever it is cost-effective,
although organisms are available from
commercial suppliers Information on the
source of test organisms and any known
unusual condition to which fish were
exposed before use should be included in the
date report Use of animals previously treated
with pesticides or chemotherapeutic agents
should be avoided Organisms should not be
used if they appear to be unhealthy.
discolored, or show signs of stress. Use 7-day
old larval fish
Fish should be cultured in accordance with
the methods outlined in Middaugh, et al(s ).
There should be no need to acclimate
organisms to the 25- IC temperature
recommended for the toxicity tests if
laboratory stock cultures of Menidie are
maintained at the recommended culture
temperature of 25±1C If test organisms must
be obtained from a commercial source, it may
become necessary to acclimate test fish to the
test temperature of 25±1G. a pH of 8 0±0 2,
and 20±2 ppt salinity since changes in
temperature may occur during shipping
Eliminate groups of fish having mortality of
more than 20% during the first 48 hours, and
more than 5% thereafter.
During acclimation, organisms should be
maintained on a diet of freshly hatched
Anemia (brine shrimp) neuplii Feed the fish
daily to satiation during the acclimation
period. and once daily during the 96-hour
test Care should be taken daily to remove
excess food and feral material from beakers
during the 96-hour test. Use only those
organisms that feed actively and that appear
to be healthy Organisms should be free of
disease, external parasites, and any signs of
physical damage or stress. Discard any fish
inlured or dropped while handling
Mysidopsis Several methods for culturing
Mysidopsis bahia may be used and are noted
in Methods for Measuring the Acute Toxicity
- of Effluents and Receiving Waters to
Freshwater and Marine Organisms (6) To
ensure uniformity of mysids, recently
hatched mysids should be collected daily
from stock cultures and identified by the date
of hatch Mysids used in 96-hour tests should
be from a single day’s collection, but may
have an age range of 5—7 days old In cases
where in-house cultures of mysids are
unavailable, organisms may be purchased
from a commercial source Information on
the source of test organisms should be
submitted in the data report
Preporotion of Experimental Water
Filtered natural seawater (FNS) is
recommended for use since it represents a
naturel source of saltwater containing an
inherent population of microorganisms
Synthetic seawater formulated according to
the following method can serve as en
acceptable alternative to filtered natural
seawater for toxicity tests in laboratories in
which natural seawater is unavailable, and
product effectiveness is not dependent upon
the presence of a natural assemblage of
microorganisms The type of water used Ii e
natural or synthetic) should be identified in
the data report
Synthetic Seawater For mation See section
3.2. Selection and Preparation of Test
Materials for Dispersant Toxicity Test.
Apparatus In addition to the above test
materials, the following equipment is
required for the toxicity tests- An aeration
pump. regulators. end air lines for the air
supply: electronic and top-loading balances:
large polyethylene carboys: fluorescent lights
with timer, glassware. I 1-liter and I 6-liter
Erlenmeyer flask. 24 I -liter beakers, 24 400-
ml beakers, I 1-liter graduated cylinder, and
volumetric and glass pipettes (disposable),
light table, refractometer, shaker table: water
bath: desiccator, and a dissecting microscope
5 3 Sampling and Storage of Test
Materials Toxicity tests are performed with
ANS52I crude oil, an artificially weathered
product having characteristics that define it
as a weathered, medium weight crude oil
ANS521 is prepared according to e draft
method developed by the International
Organization for Standardization (8). and is
described in section 4.3.
Store oil used in toxicity tests in sealed
containers protected from the light to prevent
loss of volatiles and other changes For ease
in handling and use, it is recommended that
1-titer glass containers be used To ensure
comparable results in the toxicity tests, use
oils packaged and sealed at the source
Dispose of unused oil from each open
container on completion of dusing to preven’
its use at a later date when it may have lost
some of its volatile components Run all test.
in a bioassay series with oil from the same
container or lot number, and with organisms
from the same group collected or secured
from the same source
Water-Soluble Fraction The WSF in
toxicity tests is prepared according to an API
method (11). The WSF is prepared by adding
i part oil to 9 parts 20-ppt filtered natural
seawater in a 4-liter Erlenmeyer flask The
contents of the flask are placed on a stir-table
for 20 hours and stirred at a speed such that
the vortex of oil at the top of the container
does not extend more than 25% of the
distance to the bottom of the flask The
mixture is allowed to settte for a minimum
of one hour, end the aqueous portion is
siphoned off
The oil component (WSF) of the oil plus
bioremediation agent mixture is produced in
a similar manner as the oil (WSF) for toxicity
tests using oil only Actual concentrations of
WSF used in the 7-day test may differ for
each type of oil tested, based on NOEC data
from tests with ANSS2 I and mysids. a
concentration of 33% WSF would be added
to the bioremediation agent to prepare the
oil/product mixture. A seawater control and
an oil control are used in addition toa total
of five treatment mixtures. To prepare the
mixtures, a total of five concentrations of
bioremediation agent and one concentration
of oil(i a, the survival NOEC from the 7-day
test with oil only) are used in the 7-day test
Ł4 General Test Conditions and
Procedures for Toxicity Tests. Tern perature
For these toxicity tests, use test solutions of
25±1°C.
Dissolved Oxygen and Aeration Men idia.
Because oils contain toxic, volatile materials,
-------
Federal Register / Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
54785
and because the toxicity of some WSFs of oil
and degradation products are changed by
oxidation, special care must be used in the
oxygenation of test solutions Aeration
during the test is generally not recommended
but should be used to maintain the required
DO in cases where low DO is observed The
DO content of test solutions must not drop
below 60% saturation during the first 48
hours ofa static acute (96-hour) test and must
remain between 40—100% after the first 48
hours of the test A DO reading of 60—100%
saturation must be maintained within each
exposure chamber throughout a 7-day static-
renewal test Aeration at a rate of 100±15
bubbles per minute is supplied by a
serological pipette as needed for maintenance
of DO If aeration is nececsary, all test
chambers should be aerated At this rate and
with the proper weight of fish. DO
concentration should remain slightly above 4
ppm Take DO measurements daily
Mysidopsis Achieve sufficient DO by
ensuring that the surface area to volume ratio
of the test solution exposed is large enough
Oxygen content should remain high
throughout the test because of the low
oxygen demand of the organisms Aeration is
nut recommended during 96-hour acute
toxicity range finding tests unless the DO
falls below 60% saturation
Controls With each fish or mysid test, or
each series of tests of different solutions,
perform a concurrent control test utilizing
filtered natural seawater or other form of
dilution water in exactly the same manner as
the other tests and under the conditions
prescribed or selected for those tests There
must be no more than 10% mortality among
the controls during the course of any valid
test Twenty (20) % mortality is allowed for
7-day chronic estimator toxicity tests using
Mysidopsis
Reference Toxicant See section 3 4.
General Test Conditions and Procedures for
Dispersant Toxicity Test
Number of Organisms For the 96-hour
toxicity test procedures using Menitha. place
10 larval fish in each 1-liter glass beaker Ten
(to) mysids should be placed in each of the
replicate 1-liter beakers for 96-hour toxicity
tests Fifteen (15) fish in a 1-liter beaker
containing 750-mi test solution, and 5 mysids
in a 400-mi beaker containing 150 ml of test
solution are used for the 7-day chronic
estimator tests
‘Transfer of Orgonisms Menitha
Organisms should be handled as little as
possible in order to minimize stress Transfer
Menitho from the acclimatization aquaria to
the test containers with a pipette Dip nets
shouid be avoided when handling larval fish
Do not hold fish out of the water longer than
necessary and discard any specimen
accidentally dropped or otherwise
mishandled during transfer
Mysidopsis To have the mysids ready for
study. mysids may be sorted 24 hours pnor
to initiation of the 96-hour test Transfer
mysids to a beaker containing a small volume
of water, this vessel serves as a holding
chamber during random transfer of the
organisms to test solutions Mysids are
randomly selected from the batch of mysids.
and transferred to 50-ml beakers containing
a small volume of seawater One rnysid is
added per beaker using a small piece of
flexible 500-Mm screening until all of the
beakers contain one mysid The process of
random selection and sorting is continued
until the appropriate number of inysids has
been delivered to each of the SO-mi beakers.
Tl e beakers are filled with an appropriate
volume of 20-ppt seawater (25°C) and placed
into a temperature controlled water bath to
acclimate overnight at 25°C
The mysids are then transferred to the
larger beakers (1-liter or 400-mi for 96-hour
and 7-day toxicity tests, respectively) used as
test chambers. A total of to mysids per
beaker are used for 96-hour acute toxicity
tests and 5 mysids per beaker are used for 7-
day chronic estimator tests Eight replicate
test chambers are used for each test
concentration used in a 7-day toxicity test
Two replicates are used per test
concentration for the 96-hour acute range
finding test
Mysids are fed 50 brine shrimp nauplii/
mysid daily during the acute toxicity range
finding tests and 150 nauplii mysid daily
during the chronic estimator toxicity tests
Excess food should be removed daily by
aspirating with a pipette
Test Dumt;on and Observations Menidio
For duration and observations for the acute
toxicity test, see section 3 4. General Test
Conditions and Procedures for Dispersant
Toxicity Teat.
The chronic estimator test is terminated
after 7 days of exposure The number of
surviving fish are counted for each chamber.
and prepared as a group for drying and
weighing in accordance with EPA Method
1006 (10) Utilizing survival and growth data
from the test, the fullowing endpoints are
determined LCci , and LOEC and NOEC
values for survival and growth in accordance
with the methods described in EPA Method
1006(10)
Mysidopsis Terminate the mysid test after
96-hours of incubation To count the dead
animals accurately. place the exposure
vessels on a light table such that light passes
through the bottom of the vessel Most of the
dead mysids will be on the bottom of the
beaker and can readily be seen against the
- background of the light table Also search the
t’op of the liquid for mysids trapped there by
surface tension Exercise caution when
determining death of the animals
Occasionally, an animal appears dead, but
closer observation shows slight movement of
an appendage or a periodic spasm of its
entire body For these tests, animals
exhibiting any movement when touched with
a pipette tip are considered alive Account
for all test animals to ensure accuracy since
Mysidopsis bahio may disintegrate or be
cannibalized by other mysids Consider
individuals not accounted for as dead
At the end of 96-hours of exposure.
terminate the mysid assay and determine the
LC 50 values in accordance with EPA methods
(61 For 7-day toxicity assays, the effects
measured at the termination of the exposure
period include the LC, 0 . and LOEC and
NOEC values for survival, gyowth, and
fecundity in accordance with the methods
outlined in EPA Method 1007 (10)
Physical and Chemica l Determinations
Determine the salinity, temperature. DO, and
p 1- I of the test solutions befora the fish or
mysids are added to the exposure vessel
These parameters should also be measured at
24-hour intervals during the 96-hour or 7-day
exposure intervals It is necessary to make
measurements from only one of the replicates
of each of tha toxicant series on a given day.
Other water quality parameters (a g - free
ammonia) should be measured at the
initiation of the tests and periodically during
the exposure period (96-hours or 7-days) to
ensure the viability of the test organisms as
high nutrient levels could adversely affect
the test organisms
Testing Laboratory See section 3 4.
Generel Test Conditions and Procedures for
Dispersant Toxicity Test.
Test Containers For tests with Menidia,
use 1-liter glass beakers. For tests with
Mysidopsis. use 1-liter or 400-mI glass
beakers for 96-hour and 7-day toxicity tests.
respectively In conducting the test with
Men:dio or Mysidops:s. add to each of the
beakers a volume of seawater aerated to
saturation with DO Refer to the methods
manuals for the appropriate volume to be
used loran acute or chronic test for the
specific organism (6. 10) To add the
appropriate volume easily and accurately,
use a large capacity (1-liter) graduated
cylinder
Process all required glassware before each
test Immerse in normal hexane for 10
minutes Follow this with a thorough rinse
with hot tap water, three hot detergent
scrubs, an additional hot tap-water rinse, and
three rinses with distilled water Oven or air
dry the glassware in a reasonably dust free
atmosphere.
5 5 Preparation of Test Concentrations
Preparation of Oil The methods to be used
for preparing the working stocks of the oil
WSF are those that are provided in the API
publication No 4249(11), refer to section
35. Preparation of Test Concentration for
Dispersant Toxicity Test, for additional
discussion
The WSF of AN5521 will be prepared by
adding a 9 1 ratio of filtered natural seawater
(20 ppt) and oil to a 4-liter Erienmeyer flask
The mixture is then stirred on a stir plate for
a period of 20 hours The rate of mixing is
adiusted so that the vortex at the surface of
the mixture does not extend >25% of the
distance to the bottom of the container The
mixture is allowed to settle for a period of
1—6 hours to allow the oil and water to
separate The aqueous portion is siphoned off
for immediate use as stock solution This
stock solution represents 100% WSF
Example A 96-hour acute range finding
test is conducted with a range of oil(WSF)
concentrations (i e, 100%, 33%. 11%, 3 3%.
and 11% WSF) plus a seawater control. The
undiluted water soluble fraction (100% WSF)
represents the initial stock that is serially
diluted to produce a lower concentration of
WSF until five concentrations of WSF have
been prepared A minimum of 3.050 ml of
100% WSF is needed when 21-liter
replicates are run per test concentration
1,050 ml is reserved from the higher
concentration to dilute for the next lowest
concentration. The volumes of oil and
seawater needed to achieve these test
concentrations are shown below
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54786
Federal Register / Vol. 56, No. 203 / Friday. October 22. 1993 / Proposed Rules
Concentration ANS521 oil (WSF) (% test media)
Volume (ml)
( 2 e % 1 )
Total (ml)
Excess vol-
1000
330
no
33
11
Control
30500
1O50.Oo I IOOWSF
1O50 0of33WSF
I O500o I11WSF
1050.0oI33WSF
.. . .
21000
21000
21000
21000
2000 0
30500
3t500
31500
31500
31500
20000
100
100
100
100
The estimate derived from the data WSF) with a dilution factor of approximately of lest solution and 15 fish with 4 replicates
generated during the 96-hour acute range 066. per concentration (360 silversides/testL The
finding test is used to narrow the range of Once the 7-day LC, 1 , is determined for test solution is renewed every 24 hours from
concentrations over which the subsequent 7- ANSS2 I, and the NOEC and LOEC values are a stock solution thai is prepared daily Table
day chronic estimator test will be performed determined, the NOEC for survtval will be 9. Summary of Operating Conditions for
Exact procedures for formulation of the oil used as the concentration of oil diluent used Bioremediation Agent Toxicity Test, provides
(WSF) concentrations used for the 7-day test in chronic estimator tests with the a brief synopsis of test parameters for both
are nol provided since the actual bioremediation agents For tests with rnystds. silversides and mysids Information is
concentration range tested is dependent on each snysid test chamber will contain 150 ml provided on the volume needed per chamber
the value obtained in the 96-hour lest The of test solution and S mysids with 8 and can be used to estimate the total volume
preparation of oil (WSF) concentrations replicates per concentration t240 rnysidsi of solution required for each test
should follow the same concept of serial lesti When perionnuig 7-day tests with concentration during 96-hour and 7-day tests
dilution of an initial stock solution (100% sdversi4es, test chambers will contain 750 ml with silversides and mysids
TABLE 9,—SUMMARY OF OPERATING CONDITIONS FOR BIOREMEOIATION AGENT TOXICITY TEST
Operating conditions
96-hour acute range finding test
7-day chronic estimator test
Test type
Wateitatti temperalure
Salinity
Aeration
Test chamber
Renewal solution
Number of treatments
Number ot repticales -- -
Dilutiontactor
Endpoint
Tesl duration
ugrit
Photopenod
Volume
Age ot organisms
Number of organisms
Feeding - - -
Cleaning - -
EPA Manual Reference - -
static
25 °C
20±2 ppt
none, unless <60%
1-liter beaker
none
5+ control
2
—05
LCv,
96-hour
20 uEJm /s (50—100 ftc)
16-h light/B-h dart with phase in/phase out -
1000 in
7 days --
10/beaker
50 Anemia naupliilorganism
pipette excess 1mm cup daily
U S EPA, 1991 (5) - , --
staliC-reneW &.
25 °C
20±2 Ppt
none, unless <60%
1000-mI beaker (fish) 400-mI beaker (mysid)
daily
5+ control
4 (liSh). B (rnysid)
—066
LCia, NOEC, LOEC
7 Y
20 t &m 2 fs (50—100 ftc)
16-h lig ht/B-h dark with phase in/phase out
750 ml (lisfi), 150 ml (mysid)
7 days
15/beaker (fish) 5/beaker (mysid)
50 naupliilmysid 0 1 g naupliimsti (day 0—2)
0 15g nauplii/tish (day 3—6)
pipette excess from cup daily
U S EPA, 1988 (10)
Preparation of Biorernediat:on Agent
Because some of the bioremediation agent
formulations will require the addition of
several components prior to use (e g.,
addition of nutrient component to microbial
component). all calculations of product
concentrations used in acute and chronic
toxicity tests with the product will be based
on the final (combined bioreniediation)
product. This final product is prepared
according to the manufacturer’s insirucilons
found in the product material safety data
sheets (MSDSs) A working stock of 100.000
ppm will be prepared from the final product
Make a stock of 100,000 ppm in a 500-m I
volumetric flask by adding 50 ml or 50 grams
of final product and diluting with seawater
to a final volume of 500 ml. A range finding
test will be conducted to delermine the
concentration range for the chronic estimator
test and will involve preparation of serially
diluted samples of the 100.000 ppm stock
solution to produce the 5 test concentrations
of the bioremediation agent For the acute
range finding tests with seawater as the
diluent, a control and 5 concentrations of
product are prepared with 2 replications of
each concentration
Two types of chronic tests are performed
with the bioremediation agent. a test with the
bioremediation agent only, and a test with
the bioremediation agent plus oi 1 (WSF) The
bioremediation agent concentration is not to
exceed 1.000 ppm unless the manufacturer’s
guidelines indicate that the application rate
will be greater than 1,000 ppm For the
chronic tests With mysids. there will also be
5 concentrations plus a control, conducted in
8 replications: only the NOEC of ANSS2 I oil
will be used as diluent in tests with
biorernediation agent plus oil IWS?). An
example follows that indicates the volume of
bioremediation agent and oil (WSF) at the
NOEC that might be used if one were
performing a 7-day mysid test with a mixture
of bioremediation agent plus oil A similar
approach to preparing test solutions would
be used when performing tests with Menithri
However, the volume of solution needed
should be adlusted to allow for a total of 750
mi/test chamber with S concentrations plus
controls and 4 replicates per concentration
Example (7-day mysid test) Make up stock
solution according to product’s application
instructions in the MSDS If 1.000 ppm is the
only concentration. then 1 2 g of product will
be needed for the lest For stock solution,
make up 10,000 ppm into 150 ml (1 5 ml of
product) The test with oil will require
approximately 250 ml of oil (WSF at the
NOEC) per day, approximately 1,750 ml of
the mixture (bioremediation agent plus oil)
are needed per test
-------
Federal Register / Vol. 58, No. 203 I Friday, October 22, 1993 I Proposed Rules
54787
Bio. agent (mgll ppm)
FNS (i td)
Oil ml
r it
0flc(ml)
5000
200.0
66.7
22.2
7.7
Oil’
FNS ’
1200
169221
1200.0
1200.0
1200.0
1200.0
1200.0
107.8
10000
600
600
600
1800
1800
1800
1800
i 8 0 0
1200
1200
1 Control.
56 Calculating and Reporting At the end
of each test penod, the toxicity tests are
terminated and the LC,, values determrned.
Data resulting from 7-day chronic estimator
tests are also used to determine the LOEC
and NOEC values for survival, growth, and
fecundity, as indicated.
Qi lculat:ons The L.C, 0 is the concentration
lethal to 50% of the test population it can
be calculated as an interpolated value based
on percentages of organisms surviving at two
or more concentrations in which partial
mortality is observed. The LC,o can be
estimated with the aid of computer programs
or graphic techniques (log paper). The 95%
confidence intervals for the LC estimate
should also be determined. Methods for
determining the 96-hour LC, 0 and 7-day LC 10
are found in the EPA methods manuals (6)
and (10), respectively.
LOECs and NOECs are estimated utilizing
survival, growth. and fecundity (determined
for Mysidopsis only) data from the 7-day tests
in accordance with EPA methods (10).
Reporting The bioremediation agent and
oil, and their source and storage should be
described in the toxicity test report. Note any
observed changes in the experimental water
or test solutions. Also, include the species of
fish used; the sources, size, and condition of
the fIsh; and any observations on the
behavior of organisms at regular intervals
during tests (e g . notes on physical
adherence or trapping of organisms in
part iculates associated with the product) in
addition to the calculated LC, 0 values
(method of estimation should be clearly
stated), NOEC and LOEC for survival and
growth should be indicated in the report for
silversides, and NOEC and LOEC for
survival, growth. and fecundity should be
indicated in the report for mysids. Other data
necessary for interpretation (e g, DO, pH.
other physical parameters. and the percent
survival at the end of each day of exposure
at each concentration of toxicant) should be
reported.
5.6 Summary’ of Procedures. As noted in
Figure 2, a series of toxicity tests will be
performed with Menidia ber ,vll,na and
Mysidopsis bohia and will range in duration
from 96-hours (acute range finding tests) to
7-days (chronic estimator tests) The toxicity
tests will Include:
1. 96-hour acute range finding test of
bioremediation agent.
2. 96-hour acute range finding test of WSFs
of ANS5ZI oil
3. Seven (7) day chronic estimator test of
the bioremedlation agent.
4. Seven (7) day chronic estimator test of
WSFs of ANS52I oil.
5. Seven (7) day chronic estimator test of
WSFs of ANS52I oil and the bioremediation
agent.
6. Reference tests using DSS, with both the
silversides and inysids.
The 96-how acute toxicity tests will follow
the guidelines in the EPA manual Methods
for Measuring the Acute Toxicity of Effluents
and Receiving Waters to Freshwater and
M .jrlne Organisms (6) The 7-day chronic
estimator tests will follow the guidelines in
the EPA manual Short-term Methods for
Estimating the Chronic Toxicity of Effluents
and Receiving Waters to Marine and
Estuarine Organisms (10).
96-hour Acute Range Finding Tests The
general sequence of events followed during
set-up, conduct, and breakdown of the 96-
hour acute range finding test is listed below
1. Obtain glassware’ 121-liter beakers and
I i-liter graduated cylinder.
2 Label beakers
3. Add seawater into glassware and check
salinity Add 1.000 ml into 1-liter beakers.
4. Prepare stock solution. Mix the solution
immediately before test begins, cover
solution and store it in the dark.
5. Dose.
6. Randomly count out organisms into each
container and record start time.
7 Data sheets. Measure temperature. pH,
salinity, dissolved oxygen.
8 Feed organIsms: 50 Artemia naupliil
organism/day.
9. Check after 2 hours for mortality,
aberrant behavior (e.g.. animals moving
slowly, swimming spirally), color change, or
opaque color
10. Check test every 0, 24. 48, 72. and 96
hours. Record data on data sheets.
11. Terminate test and calculate LC 50 and
95% confidence intervals
12. QA/QC’ Each control should have no
more then 20% mortality in each replicate,
and the survival rate for all controls should
be at least 90% (10% mortality).
7-day Chronic Estimator Tests. Seven (7)
day chronic estimator tests generally follow
the sequence below.
1. Make up aluminum weigh boats 24
hours in advance Heat in oven 24 hours,
cool, weigh, store in desiccator.
2. Obtain glassware. 48 400-mI beakers; 1
2’liter graduated cylinder; pipettes; and
Erlenmeyer flasks
3. Prepare stock solution. Mix solution
immediately before test begins, cover
solution and keep in the dark.
4. Dose.
5 Randomly count out organisms into each
container and record start tune.
6. Data sheets Measure temperature. pH.
salinity, dissolved oxygen
7 Feed test organisms
8. Check after 2 hours for mortality,
aberrant behavior (e g ,animals moving
slowly or swimming spirallyl. color change.
or opaque color.
9 Check test every 0. 24. 48, 72. 96. 120.
144. and 168 hours. Record data on data
sheets
10 Terminate test.
11 QA/QC A maximum of 20% mortality
is allowed for each replicate control, all
controls together should have a survival rate
of at least 90% (10% mortality)
12. For tests using mysids. determine sex
end record the number of females with and
without eggs.
13. Put total number of organisms from
each replicate cup in separate weigh boat
Dry in oven at 130°F (55°C) for at least 24—
48 hours Weigh and record data.
14. Calculate LC and 95% confidence
interval, and LOEC and NOEC for survival,
growth, and fecundity, as appropriate.
60 Summary Technical Product Test Data
Formal
The purpose of this format is to summarize
in a standard and convenient presentation
the technical product test data required by
the U S. Environmental Protection Agency
before a product may be added to EPA’s NCP
Product Schedule, which may be used in
carrying out the National Oil and Hazardous
Substances Pollution Contingency Plan. This
format, however, is not to preclude the
submission of all the laboratory data used to
develop the data summarized in this format
Sufficient data should be presented on both
the effectiveness and toxicity tests to enable
EPA to evaluate the adequacy of the
summarized data.
A summary of the technical product test
data should be submitted in the following
format The numbered headings should be
used In all submissions The subheadings
indicate the kinds of infoi-mation to be
supplied. The listed subheadings, however,
are not exhaustive; additional relevant
information should be reported where
necessary As noted, some subheadings may
apply only to particular types of agents
-------
54788
Federal Register I Vol. 58, No. 203 1 Friday, October 22, 1993 1 Proposed Rules
I Name, Brand, or Trademark
Ii. Name. Address, and Telephone Number of
Manuf cturer
Ill Name, Address, and Telephone Numbers
of Primary Distributors
IV. Special Handling and Worker Precautions
for Storage and Field Application
1. Flammability.
2. Ventilation
3. Skin and eye contact; protective
clothing: treatment in case of contact.
4. Maximum and minimum storage
temperatures; optimum storage temperature
range; temperatures of phase separations and
chemical changes.
V. Shelf Life
VI. Recommended Application Procedure
1. Application method.
2 Concentration, application rate (a g..
gallons of dispersant per ton of oil).
3. Conditions for use: water salinity, water
temperature, types and ages of polLutants.
VII. Toxicity (Dispersants, Surface Washing
Agents. Surface Collecting Agents. and
Miscellaneous Oil Spill Control Agents)
Matenais tested
Species
LC
(ppm)
(hr.)
Product
No.2fue lo il
Product and No.
2 fuel Oil (1:10).
Menidia beryiMa
MysidopsLs bahsa
Menidiabeiyllrna
Mysidcpsis bahia
Menii,a belyThna
Myssdopszs bah,a
96
48
96
48
96
48
Vlll.(a). Effectiveness (Bioremediation
Agents).
Raw data must be reported according to the
format shown below The first column Lists
the names of the analytes measured by CCI
MS (SIM). the surrogate standards, and
various ratios and sums. In the next three
columns, the concentration of the analytes
(ng/mg oil), the concentration of the analytes
corrected for the recovery of the surrogate
standard (u-androstane for alkanes, d 10 -
phenanthrene for aromatics), and the
concentration of corrected anolytes
normalized against a, -hopane, respectively.
are reported for the first replicate from the
first sampling event, These three columns are
each repeated for the next two replicates.
giving 9 total columns for the product of
interest. The next 9 columns are the same as
the product columns except they are for the
no-nutrient control The last nine columns
are for the nutrient control Thus, a total of
28 columns are needed in the spreadsheet.
This spreadsheet Is for the first sampling
event (day 0). Three more identical
spreadsheets will be needed for each of the
next three sampling events Idays 5. 13. end
21).
Date:
TestingDate. 0. 5. 13. 21 (Circle One)
Initial Oil Weight:
BIOREMEIDIATION AGENT EFFECTIVENESS TEST RAW DATA
Product replicate 1
Product rep-
licate 2
Concentration
Surrogate car-
Normalized to
ngfmg
rected rig/mg
hopane ng/mg
ALKANE ANAL’rrE.
nC- ’l O
nC -il
nC—12
nC—13
nC—14
r iC—15
nC-16
nC—17
Pnstane.
nC—18
Phytane.
nC—19
nC-20
nC—21
nC—22
nC—23
nC—24 ..
nC—25
nC—26
nC—27
nC—28
nC-29
nC-
nC-31
nC-32
nC-33
nC-34
nC-35
nC-36
a-androstane
TotaJ aJkanes.
nC—17: Pnnstane ..
nC—lB. Phytane.
AROMATIC ANALYTE
Naphthalene.
ci Naphthalenes
c2 Naphthalenes
c3 Naphthatenes
04 NaphthaJenes
Dbanzottuopt ien e
-------
Federal Register / Vol. 58, No. 203 / Friday, October 22, 1993 I Proposed Rules 54789
BIOREMEDIATION AGENT EFFECTIVENESS TEST RAW DATA—Continued
Product rep’icate 1
Product rep-
licate 2
Concentration
ng/mg
Surrogate cor-
rected ng/mg
Normalized to
hopane ng mg
Fluorene
ci Fiurenes . .
c2 Flurenes . .
c3 Flurenes .
ci Dibenzothlophenes . ..
c2 Dibenzornlophenes . ..
c3 Dibenzottilophenes .. .
Phenanthrene . . . .
Anthracene . .
ci Phenanthrenes .
c2 Phenanthrenes . ...
c3 Phenanthrenes . ,.
Naphthobenzothio- ..
ci Naphthobenzothio .
c2 Naphthobenzothio
c3 Naphlhobenzothio . ...
Fluoranthene .
Pyrene .
Ci Pyrenes
c2 Pyrenes
Chrysene ... .
Benzo (a) anthracene
ci Chrysenes . .
c2 Chrysenes . . . .
Benzo (b) tluoranth ..
Benzo (k) tluoranth .
Benso (e) pyrene .
Benzo (a) pyrene
Perylene . . . .
lndeno (1,2, 3-cd) per ....
Benro (g, h, i) pyrene - . .
Dibenz (ah) anthrac . . .
a, frhopane ,. .
d8 Naphthatene . . .
diO Phenanthrene . .. . . .
d 2 Chrysene
d12 Perylene
Total aronlatics . . .
Gray weight oil .
No oil degraders/mi
. ..
...
.. .
. . . ..
..
. . .
.
.
..
. . .
.
.
.
.
.
.
For the ctatistical analysis. a report results) generated by the software must be aromatics. giving a total of 8 ANOVAs for a
showing the two-way analysis of variance reported The statistical analyses are product test (2 ANOVAs x 4 sampling
(ANOVA) table created by the software used conducted using the sum of the alkane events) Only if significant differences are
by the investigator must be shown in its concentrations and the sum of the aromatics detected by a given ANOVA will it be
entirety along with the name of the software concentrations from the raw data table Thus, necessary to run a orotected LSD test
package used Another printout showing the two ANOVAs are run for each sampling
mean separation table (protected LSD test event, one for total alkanes and one for total VIII (b) Toxicity (Bioremediation Agents)
Materials tested
Species
LC 1 (ppm)
NOEC & L )(PPm or %
Product .
ANS521 Oil . .
Product and ANS521 Oil .
Menidia beryllina
Mysidop .sis Iaahia -
Menidia ber,’!hna . .. . .
Mysidopsis bahia .. ..
Menidia berymna.
Mysidopsss bahia
96-hr & 7-day
96-hr. & 7-day
96-hr & 7-day
96-hr. & 7-day ..
7-day
7-day
Survival and growth
Survival, growth, and fecun-
dity
Survival and growth
Survival, growth, and fecun-
dity.
Survival and growth
Survival, growth, and fecun-
dity
-------
54790
Federal Register / Vol. 58, No. 203 I Friday. October 22. 1993 / !roposed Rules
IX Microbiological Analysis (Bioremediation
Agents)
X Physical Properties of DispersantlSurface
Washing AgentiSurface Collecting Agent!
Miscellaneous Oil Spill Control Agent
I Flash Point: 1°F)
2 Pour Point 1°F)
3 Viscosity. ________at ________°F Ifurol
seconds)
4 Specific Gravity, _______at _______
5 pH (10% solution if hydrocarbon based)
6 Surface Active Agents (Dispersants and
Sorlace Washing Agents)2
7 Solvents lDispersants and Surface
Washing Agents)
8 Additives (Dispersants and Surface
Washing Agents)
9 Solubility (Surface Collecting Agents)
Xl Analysis for Heavy Metals, Chlorinated
Hydrocarbons. and Cyanide (Dispersants,
Surface Washing Agents Surface Collecting
Agents. and Miscellaneous Oil Spill Control
Agents)
Compounds
Concentration (ppm)
Arsenic
Cadmium
Chromium
Copper.
Lead
Mercury
Nickel
Zinc
Cyanide
Chlorinated Hydro-
carbons
References
(1) L T McCarthy, Jr. I Wilder, and IS
Dorner Standard D:spersont Effectiveness
and Toxicity Tests EPA Report EPA—R2—73-
201 lMay 1973)
(2) M F Fingas. K A Hughes , and M A.
Schwertzer “Dispersant Testing at the
Environmental Emergencies Technology
Division “Proc Tenth Arctic Morine Oils pill
Program Technical Seminar 9 — il lone.
1987 Edmonton. Alberta, Canada
Conservation and Protection, Environment
Canada pp 343—356
(3) 1 K Clayton. Ir , S F-Tsang, V Frank, P
Marsden, and J }-larnngton Chemical Oil
Spill Dispersants Evaluation of Three
Laboratory Procedures for Estimating
Performance Final report prepared by
Science Applications International
Corporation for U S Environmental
Protection Agency. 1992
(4)) R Clayton. Jr and J R Payne
Chemical Oil Spill Dispersonts Update State-
of.the’Art on Mechanisms of Actions and
Factors Influencing Performance With
Emphasis on Labomtory Studies Final repcrt
prepared by Science Applications
International Corporation for U.S
Environmental Protection Agency, 1992.
(5) D P Middaugh. M J Hemmer, and L
Goodman Methods for Spawning. Culturing
it ihe submitter claims that the information
presented under this subheading is confidential.
this information should be submitted on a separate
aheei or paper clearly labeled according to the
subheading and enittied “Confidential
Information”
and Conducting Toxicity-tests With Early Life
Stages of Four Anthennid Fishes the Inland
Silverside, Menidia beiyllina. Atlantic
Silverside, M rnenidia. Tidewater Silverside,
M penisulae. and California Grunion.
Lesthes tenuis. OffIce of Research and
Development. U S Environmental Protection
Agency. Washington , DC EPA 600/8—871004,
1987.
(61 U .S EPA Methods for Measuring the
Acute Toxicity of Effluent. and Receiving
Waters to Freshwater and Marine Organisms
Fourth edition. U.S Environmental
Protection Agency, Washington. DC. EPA
600/4—90/027. 1991
(7) CS Douglas. et al “The Use of
Hydrocarbon Analyses for Environmental
Assessment and Remediation “In. P.T.
Kostecki and E.J. Calabrese feds.).
Contaminated Soils, Diesel Fuel
Contamination Lewis Publishers, Ann
Arbor, MI, 1992
(8) Draft International Standard ISO/D IS
8708 “Crude Petroleum Oil—Determination
of Distillation Characteristics Using 15
Theoretical Plates Columns” International
Organization for Standardization
(9) U S EPA Test Method for Evaluating
Solid Waste SW—846. Third edition U S
Environmental Protection Agency. Office of
Solid Waste and Emergency Response,
Washington. DC. 1986.
(10) U.S EPA. Short-term Methods for
Estimating the Chronic Toxicity of Effluents
and Receiving Waters to Marine and
Estuarine Organisms Environmental
Monitoring and U.S Environmental
Protection Agency, Cincinnati. OH, EPA 600/
4—87/028. 1988
(11) J W Anderson Laboratory Studies on
the Effects of Oil on Marine Organisms
American Petroleum Institute. PubI No
4249. 1975.
Appendix E to Part 300—Oil Spill
Response
Table of Contents
1 0 Introduction
11 Background
1 2 Purpose/objective
1,3 Scope.
1 4 Abbreviations
1 5 Definitions
2 0 National response system
2 1 Overview.
2.2 Priorities
2.3 Responsibility.
3.0 Components of national response
system and responsibilities
3.1 National.
3 1.1 National Response Team.
3 1 2 National Response Center
3.1.3 National Strike Force Coordination
Center
3 2 Regional
3 3 Area.
3 3 i On’scene coordinator
3.3 2 Area Committees
3.3.3 Special teams
4 0 Preparedness activities
4.1 Federal contingency plans
4 1 1 National contingency plan.
4 1 2 Regional contingency plans
4 1 3 Area contingency plans.
4.1 4 Fish and Wildlife and Sensitive
Environments Plan annex
4 2 Relation to others plans.
4 2 1 Federal response plans
4.2 2 Tank Vessel and Facility Response
Plans.
4 3 Pre-approval authority
4 4 Area response drills
5 0 Response operations.
5 1 Phase I—Discovery or notification
5 2 Phase Il—Preliminary assessment and
initiation of action.
5 3 Patterns of response
5 3 1 Determinations to initiate response
and special conditions
5 3 2 General pattern of response
5 3.3 Containment, countermeasures, and
cleanup.
5.3 4 Response to a substantial threat to
the public health or welfare.
5.3.5 Enhanced activities durIng a spill of
national significance
5 3.6 Response to worst case discharges.
5.3.7 Multi-regional responses.
5.3.8 Worker health and safety.
5 4 Disposal
5.5 Natural resource trustees
5 5.1 Damage assessment.
5 5.2 Lead administrative trustee.
S 5 3 On-scene coordinator (OSC)
cocrd ination
554 Dissemination of information.
5.5 5 Responsibilities of trustees.
56 Oil Spill Liability Trust Fund.
5 6.1 Funding
5 6.2 Claims
5 7 Documentation and cast recovery
5.8 National response priorities
6 0 Response coordination
6 1 Nongovernmental participation
6 2 Natural resource trustees.
6 2.1 Federal agencies
6 2.2 State
6 2 3 Indian tribes
6 2.4 Foreign trustees
6 3 Federal agencies
6 4 Othor federal agencies
64 1 Department of Commerce
6 4 2 Department of Justice
6 4 3 Department of Defense.
6 4 4 Department of Health and Human
Services
6 4 5 Department of the Interior.
6 4 6 Department of Labor
6 4 7 Federal Emergency Management
Agency.
6 4.8 Department of Energy,
6 4.9 Department of State.
6 4 10 General Services Association.
6 5 States and local participation in
response
i 0 introduction
1 2 Background
The Oil Pollution Act of 1990 (OPA l
amends the Federal Water Pollution Control
Act (FWPCA). commonly referred to as the
Clean Water Act (CWA), to require the
revision of the National Oil and Hazardous
Substances Pollution Contingency Plan
(NCP). In revising the NCP. the need to
separate the response requirements for oil
discharges and release of hazardous
substances, pollutants. and contaminants
became evident
1 2 PurposelOb/ective
This document compiles general oil
discharge response requirements into one
-------
Federal Register / Vol. 58, No. 203 I Friday. October 22. 1993 / Proposed Rules
54791
appendix to aid participants and responders
under the national response system (NRS)
This appendix provides the organizational
structure and procedures to prepare for and
respond to oil discharges Nothing in this
appendix altars the meaning or policy stated
in other sections or subparts of the NCR
1 3 Scope
(a) This appendix applies to discharges of
oil into or upon the navigable waters of the
United States end adjoining shorelines, the
waters of the contiguous zone, or waters of
the exclusive economic zone, or which may
affect the natural resources belonging to,
appertaining to, or under the exclusive
management authority of the United States
(b) This appendix is designed to facilitate
efficient, coordinated, and effective response
to discharges of oil in accordance with the
authorities of the CWA It addresses
(i) The national response organization that
may be activated in response actions, the
responsibilities among the federal, state, and
local governments, and the resources that are
available for response
(2) The establishment of regional and area
contingency plans
(3) Procedures for undertaking removal
actions pursuant to section 311 of the CWA
(4) Designation of federal trustees for
natural resources for purposes of the CWA.
(5) Procedures for the participation of other
persons in response actions.
(6) Procedures for compiling and making
available cost documentation for response
actions.
(7) National procedures for the use of
dispersants and other chemicals in removals
under the CWA
(c) In implementing the NCR provisions
compiled in this appendix! consideration
shall be given to international assistance
plans and agreements, security regulations
and responsibilities based on international
agreements, federal statutes, and executive
orders Actions taken pursuant to the
provisions of any applicable international
loint contingency plans shall be consistent
with the NCR to the greatest extent possible
The Department of State shall be consulted,
as appropriate, prior to taking action that
may affect its activities
1 4 Abbreviations
This section of the appendix provides
abbreviations relating to oil.
(a) Department and Agency Title
Abbreviations
ATSDR—Agency for Toxic Substances and
Disease Registry
CDC— -Centers for Disease Control
DOC—Department of Commerce
DOD—Department of Defense
DOE—Department of Energy
DOl—Department of the Interior
DOJ—Department of Justice
DOL—Department of Labor
DOS—Department of State
DOT—Department of Transportation
EPA—Environmental Protection Agency
FEMA—Federal Emergency Management
Agency
GSA—General Services Administration
HHS—Department of Health and Human
Services
NIOSH—National Institute for Occupational
Safety and Health
NOAA—National Oceanic and Atmospheric
Administration
OSHA—Occupational Safety and Health
Administration
RSPA—Research and Special Programs
Administration
USGC—United States Coast Guard
USDA—United States Department of
Agriculture
Nole: Reference is made in the NCR to both
the Nuclear Regulatory Commission and the
National Response Center In order to avoid
confusion, the NCP will spell out Nuclear
Regulatory Commission and use the
abbreviation “NRC” only with respect to the
National Response Center
(b) Operational Abbreviations
AC—Area Committee
ACP—Area Contingency Plan
DRAT—District Response Advisory Team
DRG—District Response Group
ERT—Environmental Response Team
ESF—Emergency Support Functions
FCO—Federal Conrdinating Officer
FRERP—Federal Radiological Emergency
Response Plan
FRY—Federal Response Plan
LEPC—Local Emergency Planning Committee
NCR—National Contingency Plan
NPFC—National Pollution Funds Center
NRC—National Response Center
NRS—National Response System
NRT—National Response Team
NSF—National Strike Force
NSFCC—National Strike Force Coordination
Center
OSC—’-On Scene Coordinator
OSLTF—Oil Spill Liability Trust Fund
POLREP—Pollution Report
PIAT—Public Information Assist Team
RCP—Regional Contingency Plan
RERT—Radiological Emergency Response
Team
RRT—Regional Response Team
SERC—State Emergency Response
Commission
SONS—Spill of National Significance
SSC—Scientific Support Coordinator
Definitions
Terms not defined in this section have the
meaning given by GERCLA, the OPA. or the
CWA This appendix restates the NCP
definitions relating to oil
Activotion means notification by telephone
or other expeditious manner or, when
required. the assembly of some or all
appropn ate members of the RRT or NRT
Area Committee IAC) as provided for by
CWA sections 311(afllB) and 113(41. means the
entity appointed by the President consisting
of members from qualified personnel of
federal, state, and local agencies with
responsibilities that include preparing an
area contingency plan for an area designated
by the President
Area contingency plan (ACP) as defined by
CWA sections 311(a11191 and (j)(4) means the
plan prepared by an Area Committee that is
developed lobe implemented in conjunction
with the NCR and RCP. in part to address
removal of a worst case discharge and to
mitigate or prevent a substantial threat of
such a discharge from a vessel, offshore
facility, or onshore facility operating in or
near an area designated by the President
Bioremediation agents means
microbiological cultures. enzyme additives.
or nutrient additives that are deliberately
introduced into an oil discharge and that will
significantly increase the rate of
biodegradation to mitigate the effects of the
discharge
Burning agents means those additives that.
through physical or chemical means,
improve the combustibility of the materials
to which they are applied.
CERCLA is the Comprehensive
Environmental Response. Compensation, and
Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization
Act of 1986
Chemical agents means those elements,
compounds. or mixtures that coagulate.
disperse, dissolve, emulsify. foam, neutralize.
precipitate. reduce. solubihze, oxidize.
concentrate, congeal. entrap. fix, make the
pollutant mass more rigid or viscous, or
otherwise facilitate the mitigation of
deleterious effects or the removal of the oil
pollutant from the water Chemical agents
include biological additives, dispersants.
sinking agents. miscellaneous oil spill
control agents, and burning agents. but do
not include solvents
Claim in the case of a discharge under
CWA means a request. made in writing for
a sum certain, for compensation for damages
or removal costs resulting from an incident.
Claimant as defined by section 1001 of the
OPA means any person or government who
presents a claim for compensation under
Title I of the OPA
Coastal waters for the purpose of
classifying the size of discharges, means the
waters of the coastal zone except for the
Great Lakes and specified ports and harbors
on inland rivers
Coastal zone as defined for the purpose of
the NCR, means all United States waters
subject to the tide, United States waters of
the Great Lakes, specified ports and harbors
on inland rivers, waters of the contiguous
zone, other waters of the high seas subject to
the NCR, and the land surface or land
substrata, ground waters, and ambient air
proximal to those waters The term coastal
zone delineates an area of federal
responsibility for response action Precise
boundaries are determined by ERA/USCG
agreements and identified in federal regional
contingency plans
Coast Guard District Response Group
(DRG) as provided far by CWA sections
311 (a)(20) and ( 1)1 31 . means the entity
established by the Secretary of the
department in which the USGG is operating
within each USCG district and shall consist
of: The combined 1 15CC personnel and
equipment. including firefighting equipment,
of each port within the district, additional
prepositioned response equipment. end a
district response advisory team
Contiguous zone means the zone of the
high seas, established by the United States
under Article 24 of the Convention on the
Territorial Sea and Contiguous Zone, which
is contiguous to the territorial sea and which
extends nine miles seaward from the outer
limit of the territorial sea.
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Damages as defined by section 1001 of the
OPA means damages specified in section
1002(b) of the Act, and includes the cost of
assessing these damages
Discharge as defined by section 311(a)(2) of
the CWA, includes, but is not limited to, any
spilling. leaking. pumping, pouring, emitting.
emptying, or dumping of oil, but excludes
discharges in compliance with a permit
under section 402 of the CWA, discharges
resulting from circumstances identified and
reviewed and made a part of the public
record with respect to a permit issued or
modifled under section 402 of the CWA, and
subject to a condition in such permit. or
continuous or ant.scipated intermittent
discharges from a point source, identified in
a permit or permit application under section
402 of the CWA. that are caused by events
occumng within the scope of relevant
operating or treatment systems. For purposes
of the NCP, discharge also means substantial
threat of discharge.
Dispersants means those chemical agents
that emulsify, disperse, or solubilize oil into
the water column or promote the surface
spreading of oil slicks to facilitate dispersal
of the oil into the water column.
Exclusive economic zone as defined in
OPA section 1001, means the zone
established by Presidential Proclamation
Numbered 5030, dated March 10. 1983,
including the ocean waters of the areas
referred to as “eastern special areas” in
Article 3(1) of the Agreement between the
United States of America and the Union of
Soviet Socialist Republics on the Maritime
Boundary, signed June 1. 1990,
Facility as defined by section 1001 of the
OPA means any structure, group of
structures, equipment. or device (other than
a vessel) which is used for one or more of
the following purposes Exploring for,
dnlling for, producing. storing. handling.
transferring. processing. or transporting oil.
This term includes any motor vehicle, rolling
stock, or pipeline used for one or more of
these purposes
Federal Response Plan (FRP) means the
agreement signed by 25 federal departments
-id agencies in April 1987 and developed
under the authorities of the Earthquake
Hazards Reduction Act of 1977 and the
Disaster Relief Act of 1974, as amended by
the Stafford Disaster Relief Act of 1988
First federal official means the first federal
representative of a participating agency of the
National Response Team to arrive at the
scene of a discharge or a release This official
coordinates activities under the NCP and
may initiate, in consultation with the OSC.
any necessary actions until the arrival of the
predesignated OSC
Indian tribe as defined in OPA section
1001, means any Indian tribe, band, nation,
or other organized group or community, but
not including any Alaska Native regional or
village corporation, which is recognized as
eligible for the special programs and services
provided by the United States to Indians
because of their status as indians and has
governmental authority over lands belonging
to or controlled by the Tribe.
Inland waters for the purposes of
classifying the size of discharges. means
those waters of the United States in the
inland zone, waters of the Great Lakes, and
specified ports and harbors on inland rivers
Inland zone means the environment inland
of the coastal zone excluding the Great Lakes,
and specified ports and harbors on inland
rivers. The term inland zone delineates an
area of federal responsibility for response
action. Precise boundaries are determined by
EPA/USU agreements and identified in
federal regional contingency plans.
Lead administrative trustee means a federal
natural resource trustee who is designated on
an incident-by-incident basis and chosen by
the other federal trustees whose natural
resources are affected by the incident The
lead administrative trustee facilitates
effective and efficient communication
between the OSC and the other federal
natural resource trustees during response
operations and is responsible for appiying to
the OSC for access to federal response
resources on behalf of all trustees for
initiation of damage assessment and claims
for injuries to natural resources.
Lead agency means the agency that
provides the OSC to plan and implement
response actions under the NCP.
Miscellaneous oil spill control agent is any
product. other than a dispersant. sinking
agent, surface washing agent, surface
collecting agent. bioremediation agent.
burning agent. or sorbent that can be used to
enhance oil spill cleanup, removal,
treatment, or mitigation
National Pollution Funds Center (NPFC)
means the entity established by the Secretary
of Transportation whose function is the
administration of the Oil Spill Liability Trust
Fund (OSLTF) Among the NPFCs duties are:
Providing appropriate access to the OSLTF
for federal agencies and states for removal
actions and for federal trustees to initiate the
assessment of natural resource damages;
providing appropriate access to the OSLTF
for claims, and coordinating cost recovery
efforts
National Response System (NRS) is the
mechanism for coordinating response actions
by all levels of government in support of the
OSC. The NRS is composed of the NRT.
RRTs, OSC, Area Committees, and Special
Teams and related support entities
National Strike Force (NSF) is a special
team established by the US G, including the
three USCG Strike Teams, the Public
Information Assist Team (PIAT). and the
National Strike Force Coordination Center
The NSF is available to assist OSCs in their
preparedness and response duties
National Strike Force Coordination Center
(NSFcC), authorized as the National
Response Unit byCWA section 311 (a)(23)
and (j)(2). means the entity established by the
Secretary of the department in which the
USCG is operating at Elizabeth City, North
Carolina, with responsibilities that include
administration of the USCG Strike Teams.
maintenance of response equipment
inventories and logistic networks, and
conducting a national exercise program.
Natural resources means land, fish,
wildlife. blota, air, water, groundwater,
drinking water supplies, and other such
resources belonging to, managed by. held in
trust by. appertalning to, or otherwise
controlled by the United States (including
the resources of the exclusive economic zone
defined by the Magnuson Fishery
Conservation and Management Act of 1976),
any state or local government, any foreign
government, any Indian tribe, or, if such
resources are subject to a trust restriction on
alienation, any member of an Indian tribe
Navigable waters as defined by 40 CFR
110.1 means the waters of the United States,
including the temtorial seas The term
includes
(a) All waters that are currently used, were
used in the past. or may be susceptible to use
in interstate or foreign commerce, including
all waters that are subject to the ebb and flow
of the tide.
(b) Interstate waters, including interstate
wetlands;
(c) All other waters such as intrastate lakes,
rivers, streams (including intermittent
streams). mudflats, sandflats. and wetlands.
the use. degradation. or destruction of which
would affect or could affect interstate or
foreign commerce including any such waters’
(1) That are or could be used by interstate
or foreign travelers for recreational or other
purposes,
(2) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce, and
(3) That are used or could be used for
industrial purposes by industries in interstate
commerce
(d) All impoundments of waters otherwise
defined as navigable waters unde; this
section,
(e) Tributaries of waters identified in
paragraphs (a) through (d) of this definition,
including adjacent wetlands, and
(I) Wetlands adjacent to waters identified
in paragraphs (a) through (e) of this
definition Provided, that waste treatment
systems (other than cooling ponds meeting
the criteria of this paragraph) are not waters
of the United States
Offshore facility as defined by section
311(a)(11) of the CWA 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 which 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
Oil as defined by section 311(a)(1) of the
CWA means oil of any kind or in any form,
including, but not limited to. petroleum, fuel
oil, sludge. oil refuse, and oil mixed with
wastes other than dredged spoil Oil, as
defined by section 1001 of the OPA means
oil of any kind or in any form, including, but
not limited to, petroleum. fuel oil, sludge, oil
refuse, and oil mixed with wastes other than
dredged spoil. but does not include
petroleum, including crude oil or any
fraction thereof, which is specifically listed
or designated as a hazardous substance under
subparagraphs (A) through (F) of section
101(14) of the Comprehensive Environmental
Response, Compensation, and Liability Act
(42 U S C. 9601) and which is subject to the
provisions of that Act.
Oil Spill Liability Trust Fund means the
fund established under section 9509 of the
Internal Revenue Code of 1986 (26 U.S C.
9509)
On-scene coordinator (OSC) means the
federal official predesignated by the EPA or
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the USCC to coordinate and direct federal
response under subpart D
Onshore facihtyas defined by section
31 llal(l0) of the CWA. means any facility
(including. but not limited to. motor vehicles
and rolling stock) of any kind located in. on.
or under any land within the United States
other than submerged land
OnUs tie means the areal extent of
contamination and all suitable areas in very
close proximity to the contamination
necessary for implementation of a response
action
Person as defined by section 1001 of the
CPA. means an individual, corporation.
partnership, association, state, municipality.
commission, or political subdivision of a
state, or any interstate body
Public vessel as delined by section
311(a)(4)of the GWA, means a vessel owned
or bareboat-chartered and operated by the
United States, or by a state or political
subdivision thereof, or by a foreign nation.
except when such vessel is engaged in
commerce
Remove or removal as defined by section
31 1(a((8) of the CWA. refers to containment
and removal of oil or hazardous substances
from the water and shorelines or the taking
of such other actions as may be necessary to
minimize or mitigate damage to the public
health or welfare (including, but not limited
to. fish, shellfish, wildlife, public and private
property, and shorelines and beaches) or to
the environment For the purpose of the NCP,
the term also includes monitoring of action
to remove a discharge
Removal costs as defined by section 1001
of the CPA means the costs of removal that
are incurred after a discharge of oil has
occurred, or in any case in which there is a
substantial threat of a discharge of oil the
costs to prevent, minimize, or mitigate oil
pollution from such an incident
Responsible party as defined by section
1001 of the CPA means the following
Ia ) Vessels—ln the case of a vessel, any
person owning. operating, or demise
chartering the vessel
(b) Onshore focilities—ln the case of an
onshore facility (other than a pipeline), any
person owning or operating the facility,
except a federal agency. staie. municipality.
commission, or political subdivision of a
state, or any interstate body. that as the
owner transfers possession and right to use
the property to another person by (ease.
assignment. or permit
(c) Offshore fociiities—ln the case of an
offshore facility (other than a pipeline or a
deepwater port licensed under the Deepwater
Port Act of 1974 (33 usc 1501 et seq I), the
lessee or permittee of the area in which the
facility is located or the holder of a right of
use and easement granted under applicable
state law or the Cuter Continental Shelf
Lands Act (43 U S C 1301—1356) for the area
in which the facility is located (if the holder
is a different person than the lessee or
permittee). except a federal agency. state,
municipality. cornniission, or political
subdivision of a state. or any interstate body.
that as owner transfers possession and right
to use the property to another person by
lease, assignment. or permit
(d) Deepwotcr ports—In ihe case of a
deepwater port licensed under the Deepwater
Port Act of 1974 (33 U SC. 1501—1524). the
licensee
(e) PipeLines—In the case of a pipeline, any
person owning or operating the pipeline
(f) Abandonment—tn the case of an
abandoned vessel, onshore facility.
deefrater port. pipeline, or offshore facility,
the person who would have been responsible
parties immediately prior to the
abandonment of the vessel or facility
Sinking agents means those additives
applied to oil discharges to sink floating
pollutants below the water surface
Size classes o/’ discharges refers to the
following size classes of oil discharges which
are provided as guidance to the CSC and
serve as the criteria for the actions delineated
in subpart D They are not meant to imply
associated degrees of hazard to public health
or welfare, nor are they a measure of
environmental intury. Any oil discharge that
poses a substantial threat to public health or
welfare or the environment or results in
significant public concern shall be classified
as a major discharge regardless of the
following quantitative measures’
(al Minor discharge means a discharge in
inland waters of less than 1,000 gallons of oil
or a discharge to the coastal waters of less
than 10.000 gallons of oil
lb) Medium discharge means a discharge of
1.000 to 10.000 gallons of oil to the inland
waters or a discharge of 10.000 to 100.000
gallons of oil to the coastal waters
Ic) Major discharge means a discharge of
more than 10.000 gallons of oil to the inland
waters or more than 100,000 gallons of oil to
the coastal waters
Sorbents means essentially inert and
insoluble materials that are used to remove
oil and hazardous substances from water
through adsorption, in which the oil or
hazardous substance is attracted to the
sorbent surface and then adheres to it,
absorption. in which the oil or hazardous
substance penetrates the pores of the sorbent
material, or a combination of the two
Sorbents are generally manufactured in
particulate form for spreading over an oil
slick or as sheets, rolls, pillows, or booms
The sorbent material may consist of. but is
not limited to, the following materials
(a) Organic products—I l) Peat moss or
straw, (2) Cellulose fibers or cork. (3) Corn
cobs, (4) Chicken or duck feathers
(bI Mineral compounds— l i) Volcanic ash
or perlite. (2) Vermiculite or zeolite
Ic) Synthetic products—fl) Polypropylene,
(2) Polyethylene, (3) Polyurethane. (4)
Polyester
Specified ports and harbors means those
ports and harbor areas on inland rivers, and
land areas immediately adlacent to those
waters, where the USCC acts as
predesignated on-scene coordinator Precise
locations are determined by EPA/USCG
regional agreements and identified in federal
regional contingency plans and area
contingency plans
Spill of notional significance (SONS)
means a spill which due to its severity, size.
location, actual or potential impact on the
public health and welfare or the
environment, or the necessary response
effort, is so complex that it requires
extraordinary coordination of federal, state.
local, and responsible party resources to
contain and clean up the discharge
Stole means the several states of the United
States, the District of Columbia, the
Commonwealth of Puerto Rico. Guam,
American Samoa. the u S. Virgin Islands. the
Commonwealth of the Northern Marianas,
and any other territory or possession over
which the United States has purisdiction. For
purposes o( the NCP, the term includes
Indian tribes as defined in the NCP except
where specifically noted.
Surface collecting agents means those
chemical agenis that form a surface film to
control the layer thickness of oil
Surface washing agent is any product that
removes oil from solid surfaces, such as
beaches and rocks, through a detergency
mechanism and does not involve dispersing
or solubilizing the oil into the water column
Tank vessel as defined by section toot of
CPA means a vessel that is constructed or
adapted to carry, or that carries, oil or
hazardous material in bulk as cargo or cargo
residue, and that. i i) Is a vessel of the United
States: (2) operates on the navigable waters:
or (3) transfers oil or hazardous material in
a place subject to the jurisdiction of the
United States
Threat of discharge, see delinition for
discharge
Trustee means an official of a federal
natural resources management agency
designated in subpart C of the NCP or a
designated state official or Indian tribe or. in
the case of discharges covered by the CPA.
a foreign government official, who may
pursue claims for damages under section
1006 of the CPA
United States when used in relation to
section 311(a) 15) of the CWA, mean the
states, the District of Columbia, the
Commonwealth of Puerto Rico, the Northern
Mariana Islands, Guam, American Samoa, the
U S Virgin Islanda. and the Pacific Island
Governments
Vessel as defined by section 31 1(a)(3) of
the CWA means every description of
watercraft or other artificial contrivance
used. or capable of being used, as a means
of transportation on water other than a public
vessel
Volunteer means any individual accepted
to perform services by the lead agency which
has authority to accept volunteer services (for
examples. see 16 U SC 742f(c)) A volunteer
is sublect to the provisions of the authorizing
statute and the NCP
Worst cose dischor,ge as defined by section
311(a)(24) of the CWA means, in the case of
a vessel, a discharge in adveise weather
conditions of its entire cargo. and in the case
of an offshore facility or onsiiore facility, the
largest foreseeable discharge in adverse
weather conditions
2 0 Notional Response System
2.1 Overview
The national response system (NRS) is the
mechanism for coordinating response actions
by all levels of government in support of the
OSC. The NRS is composed of the National
Response Team (NRT), Regional Response
Teams (RRTs). On-scene coordinator (OSC).
Area Committees, and Special Teams and
related support entities The NRS functions
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as an incident command system (ICS) under
the direction of the OSC Typical of an ICS,
the NRS is capable of expanding or
contracting to accommodate the response
effort required by the size or complexity of
the discharge
2 2 Priorities
(a) Safety of human life must be given the
highest priority during every response action
This includes any search and rescue efforts
in the general proximity of the discharge and
the insurance of safety of response personnel
(b) Stabilizing the situation to preclude the
event from worsening is the next priority All
efforts must be focused on saving a vessel
that has been involved in a grounding.
collision, fire or explosion, so that it does not
compound the problem Comparable
measures should be taken to stabilize a
situation involving a facility, pipeline, or
other source of pollution Stabilizing the
situation includes securing the source of the
spill and/or removing the remaining oil from
the container (vessel, tank, or pipeline) to
prevent additional oil spillage, to reduce the
need for follow.up response action, and to
minimize adverse impact to the environment
(c) The response must use all necessary
containment and removal tactics in a
coordinated manner to ensure a timely.
effective response that minimizes adverse
impact to the environment
Ed) All parts of this national response
strategy should be addressed concurrently.
but safety and stabilization are the highest
priorities The OSC should not delay
containment and removal decisions
unnecessarily and should take actions to
minimize adverse impact to the environment
that begins as soon as a discharge occurs, as
well as actions to minimize further adverse
environmental impact from additional
discharges
(el The priorities set forth in this section
are broad in nature, and should not be
interpreted to preclude the consideration of
other priorities that may arise on a site-
specific basis
2 3 Responsibility
(a) The predesignated OSC has the
responsibility to direct response actions and
coordinate all other response efforts at the
scene of an oil discharge or threatened
discharge The OSC monitors or directs all
federal, state, local. and private removal
actions, or arranges for the removal of an
actual or threatened oil discharge. removing
and if necessary. requesting authority to
destroy a vessel Additionally. the CWA
requires the USC to direct all federal, state,
local, and private removal actions to any
incident that poses a substantial threat to the
public health or welfare
(b) Cleanup responsibility for an oil
discharge immediately falls on the
responsible party, unless the discharge poses
a substantial threat to public health or
welfare In a large percentage of oil
discharges, the responsible party shall
conduct the cleanup If the responsible party
does conduct the removal, the OSC shall
ensure adequate surveillance over whatever
actions are initiated
(1) If effective actions are not being taken
to eliminate the threat, or if removal is not
being properly done, the OSC should, to the
extent practicable under the circumstances.
so advise the responsible party If the
responsible party does not respond properly.
the USC shall take appropriate response
actions and should notify the responsible
party of the potential liability for federal
response costs incurred by the OSC pursuant
to the OPA and CWA Where practicable.
continuing efforts should be made to
encourage response by responsible parties
(2) If the Administrator of EPA or the
Secretary of the department in which the
USGG is operating determines that there may
be an imminent and substantial threat to the
public health or welfare or the environment
of the United States (including fish, shellfish,
and wildlife, public and private property.
shorelines, beaches, habitats, and other living
and nonliving natural resources under the
)urisdiction or control of the United States,
because of an actual or threatened discharge
of oil from any vessel or offshore or onshore
facility into or upon the navigable waters of
the United States), the Administrator or
Secretary may request the U S Attorney
General to secure the relief from any person.
including the owner or operator of the vessel
or facility necessary to abate a threat or. after
notice to the affected state, take any other
action authorized by section 311 of the CWA
including administrative orders, that may be
necessary to protect the public health or
welfare
(3) The responsible party is liable for costs
of federal removal and damages in
accordance with section 31110 of the C VA.
section 1002 of the OPA. and other federal
laws
(c) In those incidents where a discharge or
threat of discharge poses a substantial threat
to the public health or welfare of the United
States, the OSC shall direct all federal, state.
-‘Or private actions to remove the discharge or
to mitigate or prevent the threat of such a
discharge. as appropriate The USC s)’all also
request immediate activation of the RRT
(d) During responses to any discharge the
OSC may request advice or support from the
Special Teams and any local support units
identified by the Area Committee Examples
include scientific advice from the Scientific
Support Coordinator ESSC). technical
guidance or prepositioned equipment from
the District Response Group (DRG). or public
information assistance from the National
Strike Force (NSF),
(e) When an oil discharge exceeds the
response capability of the region in which it
occurs, transects regional boundaries, or
involves a substantial threat to the public
health or welfare, substantial amounts of
property. or substantial threats to the natural
resources, the NRT should be activated as an
emergency response team, If appropriate the
RRT Chairman may contact the NRT
Chairman and request the NRT activation
3 0 Components of notional response
system and responsibilities
The NRS is the mechanism for
coordinating response actions by all levels of
government in support of the OSC The NRS
organization is divided into national,
regional. and area levels The national level
comprises the NRT. the National Strike Force
Coordination Center (NSFCC). and the
National Response Center (NRC) The
regional level is comprised of the RRT The
area level is made up of the OSC, Special
Teams, and Area Committees
3 1 Notional
3 1 1 National Response Team (a)
National planning and coordination is
accomplished through the NRT The NRT
consists of representatives from the USCG,
EPA. Federal Emergency Management
Agency (FEMA), Department of Defense
(DOD), Department of Energy (DOE),
Department of Agriculture (DOA).
Department of Commerce (DOC), Department
of Health and Human Services (HHS).
Department of the Interior (DOl). Department
of Justice (DO)). Department of Labor (DOLl.
Department of Transportation (DOT),
Department of State (DOS). Nuclear
Regulatory Commission, and General
Services Administration (GSA) Each agency
shall designate a member to the team and
sufficient alternates to ensure representation.
as agency resources permit The NRT will
consider requests for membership on the
NRT from other agencies Other agencies may
request membership by forwarding such
requests to the chair of the NRT (see Figure
1)
(b) The chair of the NRT shall be the
representative of the EPA and the vice cha’r
shall be the representative of the USCG. with
the exception of periods of activation because
of response action. During activation, the
chair shall be the member agency providing
the OSC The vice chair shall maintain
records of NRT activities along with national.
regional. and area plans for response actions
(C) While the NRT desires to achieve a
consensus on all matters brought before it.
certain matters r”ay prove unresolvable by
this means In such cases, each agency
serving as a participating agency on the NRT
may be accorded one vote in NRT
proceedings.
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Figure 1
B U$G cooe t c
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(dl The NRT may establish such bylaws.
procedures. and committees as it deems
appropnate to further the purposes for which
it is established.
(e) The NRT shall evaluate methods of
responding to discharges. shall recommend
any changes needed in the response
organization, and shall recommend to the
Administrator of EPA changes to the NIP
designed to improve the effectiveness of the
national response system, including drafting
of regulatory language.
(fl The NRT shall provide policy and
program direction to the RRTs.
(g) The NRT may consider and make
recommendations to appropriate agencies on
the training. equipping. and protection of
response teams and necessary research,
development, demonstration, and evaluation
to improve response capabilities.
(h I Direct planning and preparedness
responsibilities of the NRT include:
(1) Maintaining national preparedness to
respond to a mator discharge of oil that is
beyond regional capabilities:
(2) Monitoring incoming reports from all
RRTs and activating for a response action.
when necessary;
(3) Coordinating a national program to
assist member agencies in preparedness
planning and response. and enhancing
coordination of member agency preparedness
programs.
(4) Developing procedures, in coordination
with the NSFCC. as appropriate, to ensure
the coordination of federal, state, and local
governments, and private response to oil
discharges.
(5) Monitoring response-related research
and development. testing. and evaluation
activities of NRT agencies to enhance
coordination, avoid duplication of effort, and
facilitate research in support of response
activities.
(6) Developing recommendations for
response training and for enhancing the
coordination of available resources among
agencies with training responsibilities under
the NCP.
(7) Reviewing regional responses to oil
discharges, including an evaluation of
equipment readiness and coordination
among responsible public agencies and
private organizations; and
(8) Assist in developing a national exercise
program. in coordination with the NSFcC to
ensure preparedness and coordination
nationwide
(i) The NRT shall consider matters referred
to it for advice or resolution by an RRT.
(j) The NRT should be activated as an
emergency response team:
(1) When en oil discharge
(A) Exceeds the response capability of the
region in which it occurs,
(B) Transects regional boundaries; or
(C) Involves a substantial threat to the
public health or welfare, substantial amounts
of property. or substantial threats to natural
resources:
(2) If requested by any NRT member.
(k) When activated for a response action.
the NRT will meet at the call of the chair and
may:
(1) Monitor and evaluate reports from the
OSC and recommend to the OSC, through the
RRT, actions to combat the discharge;
(2) Request other federal. state and local
governments, or private agencies. to provide
resources under their existing authorities to
combat a discharge. or to monitor response
operations: and
13) Coordinate the supply of equipment.
personnel. or technical advice to the affected
region from other regions or districts
3 1.2 NationolBesponse Center. (a) The
NRC. located at USCC Headquarters. is the
national communications canter.
continuously manned for handling activities
related to response actions, including those
involving discharges of oil The NRC acts as
the single point of contact for all pollution
incident reporting. and as the NRT
communications center. Notice of discharges
must be made by telephone through a toll
free number or a special number
(Telecommunication Device for the Deaf
(TDD) and collect calls accepted). Upon
receipt of a notification of discharge. the NRC
shall promptly notify the OSC. The telephone
report is distributed to any interested NRT
member agency or federal entity that has
estabiishad a written agreement or
understanding with the NRC
(b) The Commandant, U&X. in
con unction with other NRT agencies.
provides the necessary personnel.
communications, plotting facilities, and
equipment for the NRC.
(c) Notice of an oil discharge in an amount
equal to or greater than the reportable
quantity must be made immediately in
accordance with 33 CFR part 153, subpart B
Notification will be made to the NRC Duty
Officer HQ USCG. Washington, DC.
telephone (8001 424—8802 or (202) 267—2675
All notices of discharges received at the NRC
will be relayed immediately by telephone to
the OSC.
3 1 3 Nationol Strike Force Coordination
Center. NSFCC. located in Elizabeth City,
North Carolina. may assist the OSC by
providing information on available spill
removal resources, personnel. and
equipment. The NSFIC can provide the
following support to the OSC.
(a) Technical assistance, equipment. and
other resources to augment the OSC staff
during spill response;
(b) Assistance in coordinating the use of
private and public resources in suppcrt of the
OSC during a response to or a threat of a
worst case discharge of oil:
(c) Review of the area contingency plan.
including an evaluation of equipment
readiness and coordination among
responsible public agencies and private
organizations.
(dl Assiatance in locating spill response
resources for both response and planning,
using the NSFIC’s national and international
computerized inventory of spill response
resources.
(e) Coordination and evaluation of
pollution response exercises, and
(I) Inspection of district propositioned
pollution response equipment.
3.2 Regional (a) Regional planning and
coordination of preparedness and response
actions is accomplished through the RRT. in
the case of a discharge of oil, preparedness
activities shall be carried out in con}unction
with Area Committees as appropriate. The
RRT agency membership parallels that of the
NRT, but also includes state and local
representation The RRT provides (1) The
appropnate regional mechanism for
development and coordination of
preparedness activities before a response
action is taken and for coordination of
assistance and advice to the OSC during such
response actions, and (2) guidance to Area
Committees, as appropriate, to ensure inter-
area consistency and consistency of
individual ACPs with the RCP and NC ?.
(b) The two principal components of the
RRT mechanism are a standing team, which
consists of designated representatives from
each participating federal agency. state
governments, and local governments (as
agreed upon by the states), and incident-
specific teams formed from the standing team
when the RRT is activated for a response. On
incident-specific teams, participation by the
RRT member agencies will relate to the
technical nature of the incident and its
geographic location
(1) The standing team’s purisdiction
corresponds to the standard federal regions.
except for Alaska, Oceania in the Pacific, and
the Caribbean area, each of which has a
separate standing RRT The role of the
standing RRT includes communications
systems and procedures. planning.
coordination, training, evaluation,
preparedness. and related matters on a
regionwide basis It also includes
coordination of Area Committees for these
functions in areas within their respective
regions. as appropriate
(2) The role of the incident-specific team
is determined by the operational
requirements of the response to a specific
discharge. Appropriate levels of activation
and/or notification of the incident-specific
RRT, including participation by state and
local governments, shall be determined by
the designated RRT chair for the incident.
based on the RCP The incident-specific RRT
supports the designated OSC The designated
OSC manages response efforts and
coordinates alt other efforts at the scene of a
discharge.
(c)The representatives of EPA and the
USCC shall act as co-chairs of the RRTs
except when the RRT is activated When the
RRT is activated for response actions, the
chair is the member agency providing the
OsC
(d) Each participating agency should
designate one member and at least one
alternate member to the RRT Agencies
whose regional subdivisions do not
correspond to the standard federal regions
may designate additional representatives to
the standing RRT to ensure appropriate
coverage of the standard federal region
Participating states may also designate one
member and at least one alternate member to
the RRT. Indian tribal governments may
arrange with the RRT for representation
appropnate to their geographtcal location.
All agencies and states may also provide
additional representatives as observers to
meetings of the RRT.
(a) RRT members should designate
representatives and alternates from their
agencies as resource personnel for RRT
act Ivities, including RifT work planning, and
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membership on incident-specific teams in
support of the OSCs.
(f) Federal RRT members or their
representatives should provide OSCs with
assistance from their respective federal
agencies commensurate with agency
responsibilities, resources, and capabilities
within the region. During a response action.
the members of the RRT should seek to make
available the resources of their agencies to
the OSC as specified in the RCP and ACP.
(g) RRT members should nominate
appropriately qualified representatives from
their agencies to work with OSCs in
developing and maintaining AcPs.
(h) Affected states are encouraged to
participate actively In all RRT activities Each
state Governor is requested to assign an office
or agency to r present the state on the
appropriate RRT: to designate representatives
to work with the RRT In developing RGPs; to
plan for, make available, and coordinate state
resources for use in response actions; and to
serve as the contact point for coordination of
response with local government agencies,
whether or not represented on the RRT. The
state’s RRT representative should keep the
State Emergency Response Commission
(SERC) apprised of RRT activities and
coordinate RRT activities with the SERC.
Local governments are invited to participate
in activities on the appropriate RRT as
provided by state law or as arranged by the
state’s representative. Indian tribes are also
invited to participate in such activities.
(i) The standing RRT shall recommend
changes in the regional response organization
as needed, revise the RCP as needed, evaluate
the preparedness of the participating
agencies and the effectiveness of ACPs for the
federal response to discharges, and provide
technical assistance for preparedness to the
response community. The RRT should:
(1) Review and comment, to the extent
practicable. on local emergency response
plans or other issues related to the
preparation, implementation, or exercise of
such plans upon request of a local emergency
planning committee.
(2) Evaluate regional and local responses to
discharges on a continuing basis, considering
available legal remedies, equipment
readiness, and coordination among
responsible public agencies and private
organizations, and recommend
improvements;
(3) Recommend revisions of the N P to the
NRT, based on observations of response
operations;
(4) Review USC actions to ensure that RCPs
and ACPs are effective,
(5) Encourage the state and local response
community to improve its preparedness for
response;
(6) In coordination with the Area
Committee, conduct advance planning for
use of dispersants. surface washing agents.
surface collecting agents, burning agents,
bloremediation agents, or other chemical
agents in accordance with subpart) of this
part;
(7) Be prepared to provide response
resources to major discharges or releases
outside the region;
(8) Conduct or participate in training and
exercises as necessary to encourage
preparedness activities of the response
community within the region,
(9) Meet at least semiannually to review
response actions carried out during the
preceding period, consider changes in RCPs.
nd recommend changes in ACP5;
(10) Provide letter reports on RRT activities
to the NRT twice a year, no later than January
31 and July 31; and
(11) Ensure maximum participation in the
national release pro&am for announced and
unannounced exercises.
(j)(l) The RRT may be activated by the
chair as an incident-specific response team
when a discharge:
(A) Exceeds the response capability
available to the USC in the place where it
occurs;
(B) Transects state boundaries;
(C) May pose a substantial threat to the
public health or welfare, or to regionally
significant amounts of property; or
(D) Is a worst case discharge, as defined In
section 1.5 of this appendix
(2) The RRT shall be activated during any
discharge upon a request from the OSC. or
from any RRT representative, to the chair of
the RRT. Requests for RRT activation shall
later be confirmed in writing. Each
representative, or an appropriate alternate,
should be notified immediately when the
RRT is activated.
(3) Dunng prolonged removal or remedial
action, the RRT may not need to be activated
or may need to be activated only in a limited
sense, or may need to have available only
those member agencies of the RRT who are
directly affected or who can provide direct
response assistance.
(4) When the RRT is activated fore
discharge or release, agency representatives
will meet at the call of the chair and may:
(A) Monitor and evaluate reports from the
OSC, advise the OSC on the duration and
extent of response, and recommend to the
USC specific actions to respond to the
discharge.
(B) Request other federal, state, or local
governments, or private agencies. to provide
resources under their existing authorities to
respond to a discharge or to monitor response
operations,
(C) Help the USC prepare information
releases for the public and for
communication with the NRT;
(D) If the circumstances warrant, make
recommendations to the regional or district
head of the agency providing the USC that a
different USC should be designated, and
(E) Submit pollution reports to the NRC as
significant developments occur.
(5) RCPs shall specify detailed criteria for
activation of RRTs.
(6) At the regional level, a Regional
Response Center (RRC) may provide facilities
and personnel for communications,
information storage, and other requirements
for coordinating response The location of
each RRC should be provided in the RCP.
(7) When the RRT is activated, affected
states may participate in all RRT
deliberations. State government
representatives participating in the RRT have
the same status as any federal member of the
RRT.
(8) The RRT can be deactivated when the
incident-specific RRT chair determines that
the OSC no longer requires RRT assistance
(9) Notification of the RRT may be
appropnate when full activation is not
necessary, with systematic communication of
pollution reports or other means to keep RRT
members informed as to actions of potential
concern to a particular agency, or to assist in
later RRT evaluation of regionwide response
effectiveness.
(k) Whenever there is insufficient national
policy guidance on a matter before the RRT.
a technical matter requiring solution, a
question concerning interpretation of the
NO’, or a disagreement on discretionary
actions among RRT members that cannot be
resolved at the regional level, it may be
referred to the NRT for advice
3.3 Area
3.3.1 On-scene coordinator The USC is
the federal official predesignated by EPA or
the USCG to coordinate and direct federal
responses under subpart D of the NCP. The
USCG shall provide OSCs for oil discharges,
including discharges from facilities and
vessels under the jurisdiction of another
federal agency, within or threatening the
coastal zone EPA shall provide OSCs for
discharges into or threatening the inland
zone In carrying out a response. the USC
may direct or monitor all federal, state, and
private actions to remove a discharge The
OSC coordinates, directs, and reviews the
work of other agencies. Area Committees.
responsible parties. and contractors to assure
compliance with the NCP, decision
document, consent decree, administrative
order, and lead agency-approved plans
applicable to the response
3 3 2 Area Committees (a) Area
Committees shall be responsible for: (1)
Preparing an ACP for their areas. (2) working
with appropriate federal, state, and local
officials to enhance the contingency planning
of those officials and to assure pre-planning
of Joint response efforts, including
appropnate procedures for mechanical
recovery, dispersal. shoreline cleanup,
protection of sensitive environmental areas,
and protection, rescue, and rehabilitation of
fisheries and wildlife. and (3) working with
appropriate federal, state, and local officials
to expedite decisions for the use of
dispersants and other mitigating substances
and devices
(b) The USC is responsible for overseeing
development of the ACP in the area of the
USC’s responsibility The ACP, when
implemented in con junction with other
provisions of the NCP, shall be adequate to
remove a worst case discharge, and to
mitigate and prevent a substantial threat of
such a discharge. from a vessel, offshore
facility, or onshore facility operating in or
near the area
3 3.3 Special teams (a) Special teams
include: NOAAIEPA’s SSCs, EPA’s
Environmental Response Team (ERT), and
US ’s NSF, DRGs, and NPFC (see Figure 2).
O1LLU G CODE 6560-60-P
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54798 Federal Register / Vol. 58. No. 203 / Friday, October 22, 1993 1 Proposed Rules
Figure 2
National Response System Spec a1 Teams
PIAT ]
A NET ____
Gulf Pacific
Disthct Sthke Teams
Response ___________
Groups
District
Response
Advisory learn
National
Pollution
Funds Center
osc _____
S entsflc
Support
Coordinator
Enwonmentai
Response
Team
Radioto icaJ
EmerQency
Response Team
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54799
fbI SSCs may be designated by the OSC as
the principal advisors for scientific issues.
communication with the scientific
community, and coordination of requests for
assistance from state and federal agencies
regarding scientific studies The SSC strives
for a consensus on scientific issues affecting
the response. but ensures that differing
opinions within the community are
communicated to the USC
(1) Generally. SSCs are provided by NOAA
in the coastal zones, and by EPA in the
inland zone USC requests for SSC support
may be made directly to the SSC assigned to
the area or to the agency member of the RRT
NOAA SSCs may also be requested through
NOAA’s SSC program office in Seattle, WA.
NOAA SSCs are assigned to USCG Districts
and are supported by a scientific support
team that includes expertise in
environmental chemistry, oil slick tracking.
pollutant transport modeling, natural
resources at risk, environmental tradeoffs of
countermeasures and cleanup, and
information management
(2) During a response. the SSC serves on
the federal USC’s staff and may. at the
request of the OSC. lead the scientific team
and be responsible for providing scientific
support for operational decisions and for
coordinating on-scene scientific activity
Depending on the nature and location of the
incident, the SSC Integrates expertise from
governmental agencies, universities.
community representatives, and industry to
assist the OSC in evaluating the hazards and
potential effects of releases and in developing
response strategies
(3) At the request of the OSC. the SSC may
facilitate the OSCs work with the lead
administrative trustee for natural resources to
ensure coordination between damage
assessment data collection efforts and data
collected in support of response operations
(4) SSCs support the RRTs and the Area
Committees in preparing regional and area
contingency plans and in conducting spill
training and exercises For area plans. the
SSC provides leadership for the synthesis
and integration of environmental information
required for spitl response decisions in
support of the OSC
(c) The ERT is established by the EPA in
accordance with its disaster and emergency
responsibilities The ERT has expertise iii
treatment technology, biology, chemistry,
hydrology, geology and engineering
(1) The ERT can provide access to special
decontamination equipment and advice to
the OSC in hazard evaluation, risk
assessment, multimedia sampling and
analysis program. on-site safety. including
development and implementation plans.
cleanup techniques and priorities, water
supply decontamination and protection.
application of dispersants: environmental
assessment; degree of cleanup required, and
disposal of contaminated material. The ERT
also provides both introductory and
intermediate level training courses to prepare
response personnel
(2) OSC or RRT requests for ERT support
should be made to the EPA representative on
the RRT. EPA Headquarters. Director.
Emergency Response Division, or the
appropriate EPA regional emergency
coordinator
(dl The NSF is a special team established
by the USGG. including the three US G
Strike Teams, the Public Information Assist
Team (FIAT), and the NSFCC The NSF is
available to assist OSCs in their preparedness
and response duties
(1) The three Strike Teams (Atlantic, Gulf,
and Pacific) provide trained personnel and
specialized equipment to assist the OSC in
training for spill response, stabilizing and
containing the spill, and in monitoring or
directing the response actions of the
responsible parties and/or contractors The
USC has a specific team designated for initial
contact and may contact that team directly
for any assistance.
(2) The NSFCC can provide the following
support to the OSC
—Technical assistance, equipment and other
resources to augment the USC staff during
spill response.
—Assistance in coordinating the use of
private and public resources in support of
the USC during a response to or a threat
of a worst case discharge of oil.
—Review of the ACP. including an
evaluation of equipment readiness and
coordination among responsible public
agencies and private organizations.
—Assistance in locating spill response
resources for both response and planning.
using the NSFCC’s national and
international computerized inventory of
spill response resources.
—Coordination and evaluation of pollution
response exercises, and
—Inspection of district prepositioned
pollution response equipment
(3) FIAT is an element of the NSFCC staff
which is available to assist OSCs to meet the
demands for public information during a
response or exercise Its use is encouraged
any time the USC requires outside public
affairs support Requests for FIAT assistance
may be made through the NSFCC or NRC
(e)(1) The DRG assists the OSC by
providing technical assistance, personnel,
and equipment, including pre.positioned
equipment Each DRG consists of all Coast
Guard personnel and equipment. including
marine firefighting equipment. in its district.
additional pre-positioned equipment, end a
District Response Advisory Team (DRAT)
that is available to provide support to the
USC in the event that a spill exceeds local
response capabilities Each DRG’
(A) Shall provide technical assistance.
equipment, and other resources as available
when requested by an OSC through the
UStX representative to the RRT,
(B) Shall ensure maintenance of all 1JSfC
response equipment within its district,
(C) May provide technical assistance in the
preparation of the ACP. and
(Dl Shall review each of those plans that
affect its area of geographic responsibility
(2) In deciding where to locate personnel
and pre-positioned equipment, the USCG
shall give priority emphasis to.
(A) The availability of facilities for loading
and unloading heavy or bulky equipment by
barge.
(B) The proximity to an airport capable of
supporting large military transport aircraft,
(C) The flight time to provide response to
oil spills in all areas of the Coast Guard
district with the potential for marine
casualties.
(D I The availability of trained local
personnel capable of responding in an oil
spill emergency, and
IE) Areas where large quantities of
petroleum products are transported
(I) The NPFC is responsible for
implementing those portions of Title I of the
UPA that have been delegated to the
Secretary of the department in which the
Coast Guard is operating The NPFC is
responsible for addressing funding issues
arising from discharges and threats of
discharges of oil. The NPFC
(1) Issues Certificates of Financial
Responsibility to owners and operators of
vessels to pay for costs and damages that are
incurred by their vessels as a result of oil
discharges,
(2) Provides funding for various response
organizations for timely abatement and
removal actions related to oil discharges.
13) Provides equitable compensation to
claimants who sustain costs and damages
from oil discharges when the responsible
party fails to do so,
(4) Recovers monies from persons liable for
costs and damages resulting from oil
discharges to the full extent of liability under
the law. and
(51 Provides funds to initiate natural
resources damage assessment
(g) The organizational concepts of the
national response system discussed above are
depicted in Figure 3
BiLUNO CODE asao-ae-
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Figure 3
National Response System Organization
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4 0 Preparedness Activities
41 Federal contin gency plans This
section summarizes emergency preparedness
activities relating to discharges of oil and
describes the three levels of contingency
planning under the national response system.
4 1.1 NationalContingency Plan. (a)The
NCP provides for efficient, coordinated, and
effective response to discharges of oil in
accordance with the authonties of the CWA
It provides for’
( l IThe national response organization that
may be activated in response actions and
specifies responsibilities among the federal.
state, and local governments and describes
resources that are available for response:
(2) The establishment of requirements for
federal, regional, and area contingency plans.
13) Procedures for undertaking removal
actions pursUant to section 311 of the CWA.
14) Procedures for involving state
governments in the initiation, development.
selection, and implementation of response
actions.
15) Designation of federal trustees for
natural resources for purposes of the CWA:
16) Procedures for the participation of other
persons in response actions; and
17) National procedures for the use of
dispersants and other chemicals in removals
under the CWA.
fb) In implementing the NCP.
consideration shall be given to international
assistance plans and agreements. security
regulations and responsibilities based on
international agreements. federal statutes.
and executive orders. Actions taken pursuant
to the provisions of any applicable
international joint contingency plans shall be
consistent with the NCR, to the greatest
extent possible The Department of State
shall be consulted. as appropriate, prior to
taking action which may affect its activities
4 1.2 Regionolcontingency plans The
RRTs. working with the states, shall develop
federal RCPs for each standard federal region.
Alaska. Oceania in the Pacific, and the
Caribbean to coordinate timely. effective
response by various federal agencies and
other organizations to discharges of oil, RCPs
shall, as appropriate, include information oq
all usefut facilities and resources in the
region, from government, commercial.
academic, and other sources To the greatest
extent possible, RCPs shall follow ihe format
of the NCR and be coordinated with state
emergency response plans. ACPs. and Title
Ill local emergency response plans. Such
coordination should be accomplished by
working with the SERCs in the region
covered by the RCP RCPs shall contain lines
of demarcation between the inland and
coastal zones, as mutually agreed upon by
the USCC and the EPA
4.1 3 Ama contingency plans (a) Under
the direction of an OSC and subject to
approval by the lead agency, each Area
Committee, in consultation with the
appropnate RRTs. DRGs. the NSFCC. SSCs,
Local Emergency Planning Committees
ILEPCs), and SERCs. shall develop an ACP
for its designated area. This plan. when
implemented in conjunction with other
provisions of the NCP, shall be adequate to
remove a worst case discharge, and to
mitigate or prevent a substantial threat of
such a discharge. from a vessel, offshore
facility, or onshore facility operating in or
near the area
(b I The areas of responsibility may include
several Title Ill local planning districts, or
parts of such districts In developing the
iCP, the OSC shall coordinate with affected
SERCs and LEPCs The ACP shall provide for
a well coordinated response that is integrated
and compatible to the greatest extent possible
with all appropriate response plans of state.
local, and non-federal entities, and especially
with Title Ill local emergency response plans.
Ic) The ACP shall include the following
(1) A description of the area covered by the
plan. including the areas of special economic
or environmental importance that might be
impacted by a discharge.
(2) A description in detail of the
responsibilities of an owner or operator and
of federal, state, and local agencies in
removing a discharge. and in mitigating or
preventing a substantial threat of a discharge.
(3) A list of equipment (including
firefighting equipment). dispersants. or other
mitigating substances and devices, and
personnel available to an owner or operator
and federal. state, and local agencies. to
ensure an effective and immediate removal of
a discharge, and to ensure mitigation or
prevention of a substantial threat of a
discharge (this may be provided in an
appendix or by reference to other relevant
emergency plans (e g . state or LEPC plans l.
which include such equipment lists),
(4) A description of procedures to be
followed for obtaining an expedited decision
regarding the use of dispersants. and
(5) A detailed description of how the plan
is integrated into other ACPs and tank vessel.
offshore facility, and onshore facility
response plans approved by the President.
and into operating procedures of the NSFCC
4 1 4 Fish and Wildlife and Sensitive
Environments Plan annex (a) In order tn
provide for coordinated, immediate and
effective protection, rescue, and
rehabilitation of, and minimization of risk of
injury to, fish and wildlife resources and
habitat, Area Committees shall incorporate
into each AC ? a detailed annex containing a
Fish and Wildlife and Sensitive
Environments Plan that is consistent with the
RCP and NCR The annex shall be prepared
in consultation with the U S Fish and
Wildlife Service (FWS) and NOAA and other
interested natural resource management
agencies and parties It shall address fish and
wildlife resources and their habitat, and shall
include other areas concidered sensitive
environments in a separate section of the
annex, based upon Area Committee
recommendations The annex shall provide
the necessary information and procedures to
immediately and effectively respond to
discharges that may adversely affect fish and
wildlife and their habitat and sensitive
environments, including provisions for a
response to a worst case discharge Such
information shall include the identification
of appropriate agencies and their
responsibilities, procedures to notify these
agencies following a discharge or threat of a
discharge, protocols for obtaining required
fish and wildlife permits and other necessary
permits. and provisions to ensure
compatibility of annex-related activities with
removal operations
(b) The annex shall
(1) Identify and establish priorities for fish
and wildlife resources and their habitats and
other important sensitive areas requiring
protection from any direct or indirect effects
From discharges that may occur. These effects
include, but are not limited to, any seasonal
or histoncal use, as well as all critical,
special. significant or otherwise designated
protected areas
12) Provide a mechanism to be used during
a spill response for timely identification of
protection priorities of those fish and wildlife
resources and habitats and sensitive
environmental areas that may be threatened
or inpured by a discharge. These include as
appropriate, not only marine and freshwater
species, habitats, and their food sources, but
also terrestrial wildlife and their habitats that
may be affected directly by onshore oil or
indirectly by oil-related factors, such as loss
or contamination of forage The mechanism
shall also provide for expeditious evaluation
and appropriate consultations on the effects
to fish and wildlife, their habitat, and other
sensitive environments from the application
of chemical countermeasures or other
countermeasures not addressed under
paragraph (3) of this section.
(3) Identify potential environmental effects
on fish and wildlife, their habitat, and other
sensitive environments resulting from
removal actions or countermeasures,
including the option of no removal Based on
this evaluation of potential environmental
effects, the annex should establish priorities
for application of countermeasure and
removal actions to habitats within the
geographic region of the AC ?. The annex
should establish methods to minimize the
identified effects on fish and wildlife because
of response activities, including, but not
limited to, disturbance of sensitive areas and
habitats, illegal or inadvertent taking or
disturbance of fish and wildlife or specimens
by response personnel, and fish and wildlife.
their habitat, and environmentally sensitive
areas coming in contact with various
cleaning or bioremediation agents.
Furthermore, the annex should identify the
areas where the movement of oiled debris
may pose a risk to resident, transient, or
migratory fish and wildlife, and other
sensitive environments and should discuss
measures to be considered for removing such
oiled debris in a timely fashion to reduce
such risk.
(4) Provide for pre-approval of application
of specific countermeasures or removal
actions that, if expeditiously applied, will
minimize adverse spill-induced impacts to
fish and wildlife resources, their habitat, and
other sensitive environments Such pre-
approval plans must be consistent with
paragraphs (1) and 13) of this section and
subpart J requirements of the NC ?, and must
have the concurrence of the natural resource
trustees.
(5) Provide monitoring plan(s) to evaluate
the effectiveness of different
countermeasures or removal actions in
protecting the environment. Monitoring
should include “set-aside” or “control”
areas, where no mitigative actions are taken
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(6) ldentify end provide for the acquisition
and utilization of necessary response
capabilities for protection, rescue, and
rehabilitation of fish and wildlife resources
and habitat. This may include appropriately
permitted private organizations and
individuals with appropriate expertise and
experience. The suitable organizations
should be identified in cooperation with
natural resource law enforcement agencies.
Such capabilities shall include, but not be
limited to, identification of facilities and
equipment necessary for detemng sensitive
fish and wildlife from entering oiled areas,
and for capturing, holding, cleaning, and
releasing injured wildlife Plans for the
provision of such capabilities shall ensure
that there is no interference with the OSC’s
removal operations.
(7) Identify appropriate federal and state
agency contacts and alternates responsible
for coordination of fish and wildlife rescue
and rehabilitation and protection of sensitive
environments; identify and provide for
required fish and wildlife handling end
rehabilitation permits nectssary under
federal end state laws, and provide guidance
on the implementation of law enforcement
requirements included under current federal
and state laws and corresponding
regulations. Requirements include, but are
not limited to procedures regarding the
capture, transport. rehabilitation, release of
wildlife exposed to or threatened by oil, and
disposal of contaminated carcasses of
wildlife,
(8) Identify and secure the means for
providing. if needed, the minimum required
Occupational Safety end Health
Administration (OSHA) training for
volunteers, including those who assist with
iniured wildlife,
(9) Evaluate the compatibility between this
annex and non-federal response plans
(including those of vessels, facilities and
pipelines) on issues affecting fish and
wildlife, their habitat, and sensitive
environments.
4 2 Relation to Others Plans
4 2 1 Fedeml response plans in the event
of a declaration of a major disaster by the
President. the FEMA may activate the
Federal Response Plan (FRP). A Federal
Coordinating Officer (FCO). designated by
the President, may implement the FRP end
coordinate and direct emergency assistance
and disaster relief of impacted individuals.
business, and public services under the
RobertT. Stafford Disaster Relief Act.
Delivery of federal assistance is facilitated
through twelve functional annexes to the FR?
known as Emergency Support Functions
(ESFs) EPA coordinates activities under 5SF
*10—Hazardous Materials, which addresses
preparedness and response to hazardous
materials and oil incidents caused by a
natural disaster or other catastrophic event.
In such cases, the OSC should coordinate
response activities with the FCO, through the
incident-specific 5SF *10 Chair, to ensure
consistency with federal disaster assistance
activities
4.2.2 Tank Vessel and Facility Response
Plans. (a) Under CWA section 311(j)(5), tank
vessels, offshore facilities, and certain
onshore facilities are required to prepare and
submit response plans for review and
approval by the President for the carnage,
storage. and transportation of oil end
hazardous substances. Separate regulations
published by the appropriate federal agencies
provide for required response plan
development and/or approval.
(hi These plans shall be developed to
coordinate responsible party actions with the
OSC and the ACP response strategies, for
response to oil discharges within the inland
and coastal zones of the United States
43 Pre-approval Authority
(a) RRTs and Area Committees shall
address, as part of their planning activities,
the desirability of using appropriate
dispersants, surface washing agents. surface
collethng agents. bioremedration agents, or
miscellaneous oil spill control agents listed
on the N P Product Schedule, and the
desirability of using appropriate burning
agents. RCPs and ACPs shall, as appropnate.
includ., applicable preauthonzation plans
and address the specific contexts in which
such products should and should not be
used. In meeting the provisions of this
paragraph. preauthorization plans may
address factors such as the potential sources
and types of oil that might be spilled. the
existence end location of environmentally
sensitive resources that might be impacted by
spilled oil, available product end storage
locations, available equipment and
adequately trained operators. and the
available means to monitor product
application and effectiveness RRTs shell
review and either approve. disapprove, or
approve with modification the
preauthorization plans developed by Area
Committees, as appropriate Approved
preauthorization plans shall be included in
the appropriate RO’s and ACPs If the RRT
representatives from EPA and the states with
jurisdiction over the waters of the area to
which a preauthorization plan applies and
the DOC and DOl natural resource trustees
approve in advance the use of certain
products under specified circumstances as
.,.described in the preauthorization plan, the
OSC may authorize the use of the products
without obtaining the specific concurrences
described in paragraphs (b) and (c) of this
section.
Ib) For spill situations that are not
addressed by the preauthorization plans
developed pursuant to paragraph (a) of this
section, the USC, with the concurrence of the
EPA representative to the RRT and, as
appropnate, the concurrence of the RRT
representatives from the states with
)urlsdictson over the navigable waters
threatened by the discharge. and in
consultation with the DOC and DOl natural
resource trustees, when practicable. may
authonze the use of dispersants, surface
washing agents, surface collecting agents.
bioremediation agents. or miscellaneous oil
spill control agents on the oil discharge.
provided that the products are listed on the
NC? Product Schedule.
Ic) The OSC. with the concurrence of the
EPA representative to the RRT and, as
appropriate. the concurrence of the RRT
representatives from the states with
jurisdiction over the navigable waters
threatened by the discharge. and in
consultation with the DOC and DOl natural
resource trustees, when practicable. may
authorize the use of burning agents on a case-
by.case basis
Id) The OSC may authorize the use of any
dispersant, surface washing agent, surface
collecting agent, other chemical agent,
burning agent, bioremedsation agent, or
miscellaneous oil spill control agent,
including products not listed on the NCP
Product Schedule, without obtaining the
concurrence of the EPA representative to the
RRT and, as appropriate, the RRT
representatives from the states with
jurisdiction over the navigable waters
threatened by the discharge. when, in the
judgment of the OSC. the use of the product
is necessary to prevent or substantially
reduce a hazard to human life. Whenever the
OSC authorizes the use of a product pursuant
to this paragraph. the OSC is to inform the
EPA RRT representative and, as appropriate.
the RRT representatives from the affected
states and, when practicable, the DOC/DOl
natural resource trustees of the use of a
product, including products not on the
Schedule, as soon as possible. Once the
threat to human life has subsided, the
continued use of a product shall be in
accordance with paragraphs (a). (bi. and (c)
of this section.
(e) Sinking agents shall not be authorized
for application to oil discharges
(I) When developing preauthorization
plans, RRTs may require the performance of
supplementary toxicity and effectiveness
testing of products, in addition to the test
methods specified in § 300 915 and described
in appendix C to part 300. due to existing
site-specific or area-specific concerns
4 4 Areo response drills The OSC
periodically shall conduct drills of removal
capability (including fish and wildlife
response). without prior notice, in areas for
which ACPs are required and under relevant
tank vessel and facility response plans
5 0 Response Operations
(a) The OSC shall direct response efforts
and coordinate all other efforts at the scene
of a discharge. As part of the planning and
preparation for response, OSCs shall be
predesignated by the regional or district head
of the lead agency
(b) The first federal official affiliated with
an NRT member agency to arrive at the scene
of a discharge should coordinate activities
under the NCP and is authorized to initiate,
in consultation with the OSC, any necessary
actions normally carried out by the OSC until
the arrival of the predesignated OSC. This
official may initiate federal OSLTF-financed
actions only as authorized by the OSC or. if
the OSC is unavailable, the authorized
representative of the lead agency.
(c) The OSC shall, to the extent practicable.
collect pertinent facts about the discharge,
such as its source and cause, the
identification of responsible parties; the
nature, amount, and location of discharged
materials; the probable direction and time of
travel of discharged materials, whether the
discharge is a worst case discharge; the
pathways to human and environmental
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54803
exposure: the potential impact on human
health, welfare, and safety and the
environment: whether the discharge poses a
substantial threat to the public health or
welfare, the potential Lmpact on natural
resources and property which may be
affected: priorities for protecting human
health and welfare and the environment, and
appropnate cost documentation
(d) The OSC’s efforts shall be coordinated
with other appropriate federal, state, local,
and private response agencies. OSCs may
designate capable persons from federal, state,
or local agencies to act as their on-scene
representatives State and local governments,
however, are not authorized to take actions
under subpart D of the NCP that involve
expenditures of the OSLTF unless an
appropriate contract or cooperative
agreement has been established.
(a) The OSC should consult regularly with
the RRT and NSF , as appropriate. In
carrying out the NCP and keep the RRT and
NSFCC. as appropriate, informed of activities
under the NCP.
(I) The OSC should evaluate incoming
information and immediately advise FEMA
of potential major disaster situations.
(g) The OSC Is responsible for addressing
worker health and safety concerns at a
response scene.
(h) In those instances where a possible
public health emergency exists the OSC
should notify the HI-IS representative to the
RRT. Throughout response actions, the OSC
may cell upon the OSHA and HHS
representative for assistance on worker
health and safety Issues.
(i) All federal agencies should plan for
emergencies and develop procedures for
dealing with oil discharges and releases of
hazardous substances, pollutants, or
contaminants from vessels and facilities
under their jurisdiction All federal agencies.
therefore, are responsible for designating the
office that coordinates response to such
incidents in accordance with the NCP and
applicable federal regulations and guidelines
(j)(1) The OSC shall ensure that the natural
resource trustees are promptly notified of
discharges.
(2) The OSC shall coordinate all response
activities with the affected natural resource
trustees and shall consult with the affected
trustees on the appropriate removal action to
be taken.
(3) Where the OSC becomes aware that a
discharge may affect any endangered or
threatened species, or their habitat, the OSC
shall consult with DOl. DOC, NOAA, and, if
appropriate, the cognizant federal land
managing agency.
(k) The OSC shall submit pollution reports
(POLREPs) to the RRT and other appropriate
agencies as significant developments occur
during response actions, through
communications networks or procedures
agreed to by the RRT and covered in the RCP.
(I) The OSC should ensure that all
appropriate public and private interests are
kept Informed and that their concerns are
considered throughout a response, to the
extent practicable.
5.1 Phase I—Discovery or Notification
(a) A discharge of oil may be discovered
through:
(1) A report submitted by the person in
charge of a vessel or facility, in accordance
with statutory requirements:
(2) Deliberate search by patrols;
(3) Random or incidental observation by
government agencies or the public, or
(4) Other sources.
(b) Any person in charge of a vessel or a
facility shall, as soon as he or she has
knowledge of any discharge from such vessel
or facility In violation of section 311(b)(3) of
the CWA, immediately notify the NRC.
Notification shall be made to the NRC Duty
Officer, HQ USCX, Washington, DC,
telephone (800) 424—8802 or (202) 267—2675.
If direct reporting to the NRC is not
practlcable. reports may be made to the
US or EPA predesignated OSC for the
geographic area where the discharge occurs.
The EPA predesignated OSC may also be
contacted through the regional 24-hour
emergency response telephone number. All
such reports shall be promptly relayed to the
NRC. If it Is not possible to notify the NRC
or predesignated OSC Immediately, reports
may be made immediately to the nearest
Coast Guard unit. In any event, such person
in charge of the vessel or facility shall notify
the NRC as soon as possible.
(c) Any other person shall, as appropriate.
notify the NRC of a discharge of oil
(d) Upon receipt of a notification of
discharge, the NRC shall promptly notify the
OSC. The OSC shall ensure notification of
the appropriate state agency of any state
which is, or may reasonably be expected to
be, affected by the discharge. The OSC shall
then proceed with the following phases as
outlined in the R P and A P.
5.2 Phase ll—Prebmrnaiy Assessment and
Initiation of Action
(a) The USC is responsible for promptly
initiating a preliminary assessment
(b) The preliminary assessment shall be
conducted using available information,
supplemented where necessary and possible
by an on-scene inspection. The OSC shall
undertake actions to:
(1) Evaluate the magnitude and severity of
the discharge or threat to public health or
welfare or the environment;
(2) Assess the feasibility of removal, and
(3) To the extent practicable. identify
potentially responsible parties
(c) Except in a case when the OSC is
required to direct the response to a discharge
that may pose a substantial threat to the
public health or welfare (including, but not
limited to fish, shellfish, wildlife, other
natural resources, and the public and private
beaches and shorelines of the United States),
the OSC may allow the responsible party to
voluntarily and promptly perform removal
actions, provided the OSC determines such
actions will ensure an effective and
immediate removal of the discharge or
mitigation or prevention of a substantial
threat of a discharge. If the responsible party
does conduct the removal, the OSC shall
ensure adequate surveillance over whatever
actions are initiated. If effective actions are
not being taken to eliminate the threat, or if
removal is not being properly done, the OSC
should, to the extent practicable under the
circumstances, so advise the responsible
party If the responsible party does not
respond properly, the OSC shall take
appropriate response actions and should
notify the responsible party of the potential
liability for federal response costs incurred
by the OSC pursuant to the OPA and CWA
Where practicable. continuing efforts should
be made to encourage response by
responsible parties.
(1) In carrying out a response under this
section, tile OSC may:
(A) Remove or arrange for the removal of
a discharge, and mitigate or prevent a
substantial threat of a discharge. at any time,
(B) Direct or monitor all federal, state, and
private actions to remove a discharge, and
(C) Remove and, if necessary, destroy a
vessel discharging. or threatening to
discharge. by whatever means are available.
(2) If the discharge results in a substantial
threat to the public health or welfare of the
United States (including, but not limited to
fish, shellfish, wildlife, other natural
resources, and the public and private beaches
and shorelines of the United States), the OSC
must direct all response efforts, as provided
in section 5.3.4 of this appendix The OSC
should declare as expeditiously as
practicable to spill response participants that
the federal government will direct the
response The OSC may act without regard to
any other provision of the law governing
contracting procedures or employment of
personnel by the federal government in
removing or arranging for the removal of
such a discharge.
(d) The USC shall ensure that the natural
resource trustees arc promptly notified in the
event of any discharge of oil, to the
maximum extent practicable as provided in
the Fish and Wildlife and Sensitive
Environments Plan annex to the ACP for the
area in which the discharge occurs The OSC
and the trustees shall coordinate
assessments, evaluations, investigations, and
planning with respect to appropriate removal
actions The OSC shall consult with the
affected trustees on the appropriate removal
action to be taken The trustees will provide
timely advice concerning recommended
actions with regard to trustee resources
potentially affected The trustees also will
assure that the OSC is informed of their
activities in natural resource damage
assessment that may affect response
operations When circumstances permit. the
OSC shall share the use of response resources
with the trustees, provided trustee activities
do not interfere with response actions The
lead administrative trustee shall, as
appropriate, apply to the USC for access to
federal response resources on behalf of all
trustees.
5 3 Patterns of Response
5.3.1 Determinations to initiate response
and special conditions
(a) In accordance with the CWA. the
Administrator of EPA or the Secretary of the
department in which the USCG is operating,
as appropriate, is authorized to act for the
United States to take response measures
deemed necessary to protect the public
health or welfare or environment from
discharges of oil.
(b) The Administrator of EPA or the
Secretary of the department In which the
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Federal Register / Vol. 58, No. 203 I Friday, October 22, 1993 / Proposed Rules
US t is operating. as appropriate. is
authorized to initiate end, in the case of a
discharge posing a substantial threat to
public health or welfare is required to initiate
and direct, appropriate response activities
when the Administrator or Secretary
determines that arty oil is discharged or there
isa substantial threat of such discharge from
any vessel or offshore or onshore Facility into
or on the navigable waters of the United
States, on the adjoining shorelines to the
navigable waters, into or on the waters of the
exclusive economic zone, or that may affect
natural resources belonging to. appertain ing
to, or under exclusive management authority
of the United States.
(ci In addition to any actions taken by a
state or local government, the Administrator
of EPA or the Secretary of the department In
which the USCG is operating may request the
U S Attorney General to secure the relief
from any person. including the owner or
operator of the vessel or facility necessary to
abate a threat or. after notice to the affected
state, take any other action authorized by
section 311 of the CWA. including issuing
administrative orders, that may be necessary
to protect the public health or welfare, if the
Administrator or Secretary determines that
there may be an imminent and substantial
threat to the public health or welfare or the
environment ol the United States, including
fish, shellfish, and wildlife, public and
private property, shorelines, beaches.
habitats, and other living and nonliving
natural resources under the turisdiction or
control of the United States, because of an
actual or threatened discharge of oil from any
vessel or offshore or onshore facility into or
upon the navigable waters of the United
States
(dl Response actions to remove discharges
originating from operat ions conducted
subject to the Outer Continental Shelf Lands
Act shall be in accordance with the NC?
(e) Where appropriate, when a discharge
involves radioactive materials, the lead or
support federal agency shall act consistent
with the notification and assistance
procedures described in the appropriate
Federal Radiological Plan For the purpose of
the NCP. the Federal Radiological Emergency
Response Plan (FRER?) (50 FR 46542,
November 8, 1985) is the appropriate plan.
Most radiological discharges and releases do
not result in FRER? activation and should be
handled in accordance with the NC?
However, releases from nuctear incidents
subject to requirements for financial
protection established by the Nuclear
Regulatory Commission under the Price-
Anderson amendments (section 170) of the
Atomic Energy Act are specifically excluded
from CERCIA and NCP requirements.
( I ’) Removal actions involving nuclear
weapons should be conducted in accordance
with the joint Department of Defense.
Department of Energy, and FEMA Agreement
for Response to Nuclear Incidents and
Nuclear Weapons Significant Incidents
(January 8, 1981).
(g) If the situation is beyond the capability
of state and local governments and the
statutory authority of federal agencies, the
President may, under the Disaster Relief Act
of 1974, act upon a request by the Governor
and declare a malor disaster or emergency
and appoint a FCO to coordinate all Federal
disaster assistance activities In such cases,
the OSC would continue to carry out OSC
responsibilities under the NO’. but would
coordinate those activities with the Ff O to
ensure consistency with other federal
disaster assistance activitiei.
(h) In the event of a declaration ef a major
disaster by the President. FEMA may activate
the FR?. An FCO, designated by the
President. may implement the FRP and
coordinate and direct emergency assistance
and disaster relief of impacted individuals,
business, and public services under the
Robert 1’ Stafford Disaster Relief Act
Delivery of federal assistance is facilitated
through twelve functional annexes to the FRP
known as ESFs. EPA coordinates activities
under ESF 110—Hazardous Materials, which
addresses preparedness and response to
hazardous materials and oil incidents caused
by a natural disaster or other catastrophic
event In such cases, the OSCIRPM should
coordinate response activities with the FCO,
through the incident.specific ESF #10 Chair,
to ensure consistency with federal disaster
assistance activities.
5.3.2 General pattern of response (a)
When the OSC receives a report of a
discharge. actions normally should be taken
in the following sequence
(1) Investigate the report to determine
pertinent information such as the threat
posed to public health or welfare or the
environment, the type and quantity of
polluting material, and the source of the
discharge.
(2) Officially classify the size (i e • minor.
medium, major) and type Ii e , substantial
threat to the public health or welfare, worst
case discharge) of the discharge and
determine the course of action tobe followed
to ensure effective and immediate removal.
mitigation. or prevention of the discharge
Some discharges that are classified as a
substantial threat to the public health or
welfare may be further classified as a spill of
national significance by the Administrator of
EPA or the Commandant of the USCG The
appropriate course of action may be
prescribed in 5.3 4. 5 3 5. and 5.3.6 of this
appendix
(A) When the reported discharge is an
actual or potential ma 3 or discharge.
immediately notify the RRT, including the
affected state, if appropriate. and the NRC,
and ensure notification of the natural
resource trustees
(B) When the investigation shows that an
actual or potential medium discharge exists,
the OSC shall recommend activation of the
RRT. if appropriate
(C) When the investigation shows that an
actual or potential minor discharge exists, the
OSC shall monitor the situation to ensure
that proper removal action is being taken
(3) If the OSC determines that effective and
immediate removal, mitigation. or prevention
of a discharge can be achieved by private
party efforts, and where the discharge does
not pose a substantial threat to the public
health or welfare, determine whether the
responsible party or other person is properly
carrying out removal. Removal is being done
properly when.
IA) The cleanup is fully sufficient to
effectively and immediately remove,
minimize, or mitigate threat(s) to public
health and welfare and the environment.
Removal efforts are improper to the extent
that federal efforts are necessary to remove,
minimize further, or mitigate those threats:
and
(B) The removal efforts are in accordance
with applicable regulations. including the
NC ?.
(4) Where appropriate, determine whether
a state or political subdivision thereof has the
capability to carry out any or all removal
actions If so. the OSC may arrange funding
to support these actions.
(5) Ensure prompt notification of the
trustees of affected natural resources in
accordance with the applicable RCP and
ACP.
(b) Removal shall be considered complete
when so determined by the OSC in
consultation with the Governor or Governors
of the affected states When the OSC
considers removal complete. OSLTF removal
funding shall end This determination shall
not preclude additional removal actions
under applicable state law,
5 3 3 Conra ,nment. coiinrermeasures, and
cleanup. (a) Defensive actions shall begin as
soon as possible to prevent, minimize, or
mitigate threat(s) to the public health or
welfare or the environment Actions may
include but are not limited to Analyzing
water samples to determine the source and
spread of the oil: controlling the source of
discharge, source end spread control or
salvage operations. placement of physical
barriers to deter the spread of the oil and to
protect natural resources and sensitive
ecosystems. measuring and sampling, control
of the water discharged from upstream
impoundment. and the use of chemicals and
other materials in accordance with subpart I
of part 300 of the NCP to restrain the spread
of the oil and mitigate its effects The ACP
should be consulted for procedures to be
followed for obtaining an expedited decision
regarding the use of dispersants and other
products listed on the NC? Product
Schedule
(b) As appropriate, actions shall be taken
to recover the oil or mitigate its effects Of
the numerous chemical or physical methods
that may be used, the chosen methods shall
be the most consistent with protecting public
health and welfare and the environment
Sinking agents shall not be used
Ic) Oil and contaminated matenals
recovered in cleanup operations shall be
disposed of in accordance with the RCP,
AC?, and any applicable laws, regulations. or
requirements RRT and AC? guidelines may
identify the disposal plans to be followed
during an oil spill response and may address:
The sampling, testing, and classifying of
recovered oil and oiled debris, the
segregation and stockpiling of recovered oil
and oiled debris, prior state disposal
approvals end permits, end the routes,
methods (e g recyclefreuse. on-site burning,
incIneration, laridil lling, etc.): end sites for
the disposal of collected oil, oiled debris, and
animal carcasses
53 4 Response too substantial threat to
the public health or welfare. (a) The OSC
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shall determine whether a discharge results
in a substantial threat to public health or
welfare (including, but not limited to. fish.
shellfish. wildlife, other natural resources,
the public and private beaches. and
shorelines of the United States). Factors to be
considered by the OSC in making this
determination include, but are not limited to,
the size of the discharge, the character of the
discharge. and the nature of the threat to
public health or welfare. Upon obtaining
such information, the OSC shall conduct an
evaluation of the threat posed, based on the
OSC s experience in assessingother
discharges and consultation with senior lead
agency officials and readily availr ble
authorities on issues outside the OSC’s
technical expertise.
(b) If the investigation by the OSC shows
that the discharge poses or may present a
substantial threat to public health or welfare.
the OSC shall direct all federal, state, or
private actions to remove the discharge or to
mitigate or prevent the threat of such a
discharge. as appropriate. In directing the
response in such cases, the OSC may act
without regard to any other provision of law
governing contracting procedures or
employment of personnel by the federal
government to:
(1) Remove or arrange for the removal of
the discharge;
(2) Mitigate or prevent the substantial
threat of the discharge. and
(3) Remove arid, if necessary. destroy a
vessel discharging, or threatening to
discharge. by whatever means are available
(c) In the case of a substantial threat to the
public health or welfare, the OSC shall.
(1) Assess opportunities for the use of
various special teams and other assistance.
including the use of the services of the
NSFCC. as appropriate.
(2) Request immediate activation of the
RRT. arid
(3) Take whatever additional response
actions are deemed appropriate, including
but not limited to implementation of the ACP
or relevant tank vessel or facility response
plan
(d) When requested by the 0 5G. the lead
agency or RRT shall dispatch appropriate
personnel to the scene of the discharge to
assist the OSC This assistance may include
technical support in the agency’s areas of
expertise and disseminating information to
the public The lead agency shall ensure that
a contracting officer is available on scene, at
the request of the OSC
5 3 5 Enhanced activities during a spill of
national significance (a) A discharge may he
classified as a SONS by the Administrator of
EPA for discharges occurring in the inland
zone and the Commandant of the IJStX for
discharges occurring in the coastal zone.
(b) For a SONS in the inland zone, the EPA
Administrator may name a senior Agency
official to assist the OSC in: (1)
Communicating with affected parties and the
public. and (2) coordinating federal, state.
local, and international resources at the
national level. This strategic coordination
will involve, as appropriate, the NRT, RRT(s),
the Governor(s) of affected state(s), and the
mayor(s) or other chief executive(s) of local
government(s).
(C) For a SONS in the coastal zone. the
usx Commandant may name a National
Incident Commander (NIC) who will assume
the role the OSC in (1) Communicating with
affected parties and the public; end (2)
coordinating federal, state. local, and
ii(ternaiional resources at the national level
This stralegic coordination shall involve, as
appropriate. the NRT, RRT(s), the
Governor(s) of affected state(s), and the
mayor(s) or other chief executive(s) of local
government(s).
5 36 Response to worst case discharges
(a) If the investigation by the OSC shows that
a discharge is a worst case discharge or there
is a substantial threat of such a discharge, the
OSC shall.
(1) Notify the NSF(X
(2) Require. where applicable,
implementation of the worst case portion of
an approved tank vessel or facility response
plan;
(3) Implement the worst case portion of the
ACP, if appropriate, and
(4) Take whatever additional response
actions are deemed appropriate.
(b) Under the direction of the OSC, the
NSF(X shall coordinate use of private and
public personnel end equipment, including
strike teams, to remove a worst case
discharge and mitigate or prevent a
substantial threat of such a discharge.
5 3.7 Multi.reg:onal responses. (a) Ifs
discharge moves from the area covered by
one ACP or RCP into another area, the
authority for response actions should
likewise shift If a discharge effects areas
covered by two or more ACPs or RCPs. the
response mechanisms of each applicable plan
may be activated In this case, response
actions of all regions concerned shall be fully
coordinated as detailed in the RCPs and
ALPs.
(b) There shall be only one OSC at any time
during the course of a response operation.
Should a discharge affect two or more areas.
EPA, the USCG, DOD, DOE, or other lead
agency, as appropriate, shall give prime
consideration to the area vulnerable to the
greatest threat, in determining which agency
should provide the OSC. The RRT shall
designate the OSC lithe RRT member
agencies who have response authority within
the affected areas are unable to agree on the
designation. The NRT shall designate the
OSC if members of one RRT or two adiacent
RRTs are unable to agree on the designation.
5 3.8 Worker health and safety (a)
Response actions under the NCP shall
comply with the provisions for response
action worker safety and health in 29 CFR
1910.120. The national response system
meets the requirements of 29 CFR 1910 120
concerning use of an incident command
system
(b) In a response action taken by a
responsible party. the responsible party must
assure that an occupational safety and health
program consistent with 29 CFR 1910 120 is
made available for the protection of workers
at the response site.
(c) In a response taken under the NCPby
a lead agency. an occupational safety and
health program should be made available for
the protection of workers at the response site,
consistent with, and to the extent required
by. 29 CFR 1910.120. Contracts relating to a
response action under the NCP should
contain assurances that the contractor at the
response site will comply with this program
and with any applicable provisions of the
Occupational Safety and Health Act of 1970
(OSH Act) and state laws with plans
approved under section 18 of the OSH Act
Id) When a state, or political subdivision
of a state, without an OSHA-approved st ate
plan is the lead agency for response, the state
or political subdivision must comply with
standards in 4OCFR part 311, promulgated
by the EPA pursuant to section 126(0 of the
Superfund Amendments and Reauthorization
Act of 1986 (SARA).
(a) Requirements, standards, end
regulations of the OSH Act and of state OSH
laws not directly referenced in paragraphs (a)
through (di of this section. must be complied
with where applicable Federal OSH Act
requirements include, among other things.
Construction Standards (29 CFR part 1926).
General Industry Standards (29 CFR part
1910), and the general duty requirement of
section 5(a)(’I) of the OSH Act (29 U S C.
654(a)(1)) No action by the lead agency with
respect to response activities under the NCP
constItutes an exercise of statutory authority
within the meaning of section 4(b)(1) of the
OSH Act. All governmental agencies and
private employers are directLy responsible for
the health and safety of their own employees
5.4 Disposal
Oil recovered in cleanup operations shall
be disposed olin accordance with the RCP.
AcP, and any applicable laws. regulations. or
requirements. RRT and ACP guidelines may
identify the disposal plans to be followed
during an oil spill response and may address
The sampling, testing, and classifying of
recovered oil and oiled debris, the
segregation and stockpiling of recovered oil
and oiled debris, prior state disposal
approvals and permits, and the routes.
methods (e g recycle/reuse, on-site burning,
incineration. landfillirig, etc I, and sites for
the disposal of collected oil, oiled debris, and
animal carcasses.
5 5 NaiumI Resource Trustees
55 1 Damage assessment (a) Upon
notification or discovery of injury to,
destruction of. loss of. or threat to natural
resources, trustees may. pursuant to section
1006 of the OPA, take the following actions
as appropriate’
(1) Conduct a preliminary survey of the
area affected by the discharge to determine if
trust resources under their purisdiction are, or
potentially may be. affected.
(2) Cooperate with the OSC in coordinating
assessments, investigations. and planning.
(3) Carry out damage assessments, or
(4) Devise and carry out a plan for
restoration, rehabilitation, replacement. or
acquisition of equivalent natural resources
In assessing damages to natural resources, the
federal, state, and Indian tribe trustees have
the option of following the procedures for
natural resource damage assessments located
at 43 CFR part 11.
(b) Upon notification or discovery of injury
to, destruction of, loss of, or loss of use of,
natural resources, or the potential for such,
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Federal Register / Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
resulting from a discharge of oil occurring
after August 18. 1990, the trustees, pursuant
to section 1006 of the OPA, are to take the
following actions
(1) In accordance with OPA section
1006(e), determine the need for assessment of
natural resource damages. collect data
necessary for a potential damage assessment,
and, where appropriate, assess damages to
natural resources under their trusteeship, and
(2) As appropriate, and subject to the
public participation requirements of OPA
section 1006(c). develop and implement a
pian for the restoration, rehabilitation,
replacement, or acquisition of the equivalent.
of the natural resources under their
trusteeship
(d l) The trustees, through the lead
administrative trustee, shall provide timely
advice on recommended actions concerning
trustee resources that are potentially affected
by a discharge of oil This may include
providing assistance to the OSC in
identifying/recommending pre-approved
response techniques and in predesignating
shoreline types and areas in ACPs.
(2) The trustees shall assure, through the
lead administrative trustee, that the OSC is
informed of their activities regarding natural
resource damage assessment that may affect
response operations in order to assure
coordination and minimize any interference
with such operations
(3) The OSC deploys federal response
resources, including but not limited to
aircraft, vessels, and booms to contain and
remove discharged oil When circumstances
permit. the OSC shall share the use of federal
response resources with the trustees.
providing trustee activities do not interfere
with response actions The lead
administratwe trustee shall, as appropriate.
apply to the OSC for access to federal
response resources on behalf of all trustees
(d) The authority of federal trustees
includes, but is not limited to the following
actions
(1) Requesting that the Attorney General
seek compensation from the responsible
parties for the damages assessed and for the
costs of an assessment and of restoration
planning. and
(2) Participating in negotiations between
the United States and potentially responsible
parties (PRPs) to obtain PRP-financed or PRP-
conducted assessments and restorations for
inpu red resources or protection for threatened
resources and to agree to covenants not to
sue, where appropriate
(3) Initiating damage assessments, as
provided in CPA section 6002.
(e) Actions which may be taken by any
trustee pursuant to section 311(0(5) of the
CWA or section 1006 of the OPA include, but
are not limited to, any of the following.
(ii Requesting that an authorized agency
issue an administrative order or pursue
injunctive relief against the parties
responsible for the discharge. or
(2) Requesting that the lead agency remove.
or arrange for the removal of any oil from a
contaminated medium pursuant to section
311 of the CWA.
55 2 Lead administrative trustee The
lead administrative trustee is a federal
natural resource trustee who is designated on
an incident-by-incident basis and chosen by
the other federal trustees whose natural
resources are affected by the incident The
lead administrative trustee facilitates
effective and efficient communication
between the OSC and the other federal
natural resource tz ,istees during response
operations and is responsible for applying to
the OSC for access to federal response
resources on behalf of all trustees for
initiation of damage assessment and claims
for injuries to natural resources.
55.3 On-scene Coorthnotor (OSC)
coordination (a) The OSC shall ensure that
the natural resource trustees are promptly
notified in the event of any discharge of oil,
to the maximum extent practicable, as
provided in the Fish and Wildlife and
Sensitive Environments Plan annex to the
ACP for the area in which the discharge
occurs. The OSC and the trustees shall
coordinate assessments, evaluations,
investigations, and planning with respect to
appropnate removal actions. The OSC shall
consult with the affected trustees on the
appropriate removal action to be taken.
(b) The trustees will provide timely advice
concerning recommended actions with
regard to trustee resources that are
potentially affected. This may include
providing assistance to the OSC In
identifying/recommending pre-approved
response techniques, and in predesignating
shoreline types and areas in ACPS.
(c) The trustees also will assure that the
OSC is informed of their activities regarding
natural resource damage assessment that may
affect response operations.
5 5.4 Dissemination of information. (a)
When an incident occurs, it is imperative to
give the public prompt, accurate information
on the nature of the incident and the actions
underway to mitigate the damage. OSCs and
community relations personnel should
ensure that all appropriate public and private
interests are kept informed and that their
concerns are considered throughout a
response They should coordinate with
available public aff lrs/community relations
resources to carry out this responsibility.
(b) An on scene news office may be
established to coordinate media relations and
to issue official federal information on an
incident. Whenever possible, it will be
headed by a representative of the lead
agency The OSC determines the location of
the on-scene news office, but every effort
should be made to locate it near the scene of
the incident If a participating agency
believes public interest warrants the issuance
of statements and an on-scene news office
has not been established, the effected agency
should recommend Its establishment. All
federal news releases or statements by
participating agencies should be cleared
through the OSC Information dissemination
relating to natural resource damage
assessment activities shall be coordinated
through the lead administrative trustee. The
designated lead administrative trustee may
assist the OSC by disseminating information
on Issues relating to damage assessment
ectivities. Following termination of the
removal activity, information dissemination
on damage assessment activities shall be
through the lead administrative trustee.
5 5.5 Responsibilities a/trustees (a)
Where there are multiple trustees, because of
coexisting or contiguous natural resources or
concurrent jurisdictions, they should
coordinate and cooperate in carrying out
these responsibilities.
(b) Trustees are responsible for designating
to the RRTs and the Area Committees, for
inclusion in the R P and the ACP.
appropriate contacts to receive notifications
from the OSCs of discharges.
(c)(1) Upon notification or discovery of
injury to, destruction of, loss of, or threat to
natural resources, trustees may, pursuant to
section 311(0(5) of the CWA, take the
following or other actions as appropriate:
(A) Conduct a preliminary survey of the
area affected by the discharge or release to
determine if trust resources under their
jurisdiction are, or potentially may be,
affected;
(B) Cooperate with the OSC In coordinating
assessments. Investigations. and planning;
(C) Carry out damage assessments; or
(D) Devise and carry out a plan for
restoration, rehabilitation, replacement. or
acquisition of equivalent natural resources.
In assessing damages to natural resources, the
federal, state, and indian tribe trustees have
the option of following the procedures for
natural resource damage assessments iocated
at 43 CFR part 11.
(2) Upon notification or discovery of injury
to. destruction of, loss of. or loss of use of.
natural resources, or the potential for such.
resulting from a discharge of oil occurring
after August 18. 1990, the trustees, pursuant
to section 1006 of the OPA, are to take the
following actions:
(A) In accordance with OPA section
1006(e), determine the need for assessment of
natural resource damages, collect data
necessary for a potential damage assessment,
and, where appropriate, assess damages to
natural resources under their trusteeship, and
(B) As appropriate. and subject to the
public participation requirements of OPA
section 1006(c), develop and implement a
plan for the restora (ion, rehabilitation,
replacement, or acquisition of the equivalent.
of the natural resources under their
trusteeship;
(3)(A) The trustees, through the lead
administrative trustee, shall provide timely
advice on recommended actions concerning
trustee resources that are potentially affected
by a discharge of oil This may Include
providing assistance to the OSC in
identifying) recommending pta-approved
response techniques and in predesignating
shoreline types and areas in ACPs.
(B) The trustees shall assure, through the
lead administrative trustee, that the OSC Is
informed of their activities regarding natural
resource damage assessment that may affect
response operations in order to assure
coordination and minimize any interference
with such operations.
(C) When circumstances permit. the OSC
shall share the use of federal response
resources (including but not limited to
aircraft, vessels, and booms to contain and
remove discharged oil) with the trustees.
providing trustee activities do not interfere
with response actions. The lead
admInistrative trustee shall, as appropriate,
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Federal RegistEr / Vol. 58, No. 203 / Friday, October 22, 1993 / Proposed Rules
apply to the OSC for access to federal
response resources on behalf of all trustees
for Initiation of damage assessment and
claims for injuries to natural resources
Cd) The authority of federal trustees
includes, but is not limited to the following
actions.
(1) Requesting that the Attorney General
seek compensation from the responsible
parties for the damages assessed and for the
costs of an assessment and of restoration
planning, and
(2) Initiating damage assessments, as
provided in OPA section 6002.
Ce) Actions which may be taken by any
trustee pursuant to section 1006 of the OPA
include, but are not limited to, any of the
following’
(1) Requesting that an authorized agency
issue an administrative order or pursue
injunctive relief against the parties
responsible for the discharge or release, or
(2) Requesting that the lead agency remove,
or arrange for the removal of. or provide for
remedial action with respect to. any oil from
a contaminated medium pursuant to section
311 of CWA.
5 6 Oil Spill Liability Trust Fund
5 6 1 Funding. (a) The OSLTF is available
under certain circumstances to fund removal
of oil performed under section 311 of the
CWA Those circumstanceq and the
procedures for accessing the OSLTF are
described iç 33 CFR subchapter Ni The
responsible party is liable for costs of federal
removal and damages in accordance with
section 3 11(f) of the CWA, section 1002 of
the OPA. and other federal laws
(b) Response actions other than removal,
such as scientific investigations not in
support of removal actions or law
enforcement, shall be provided by the agency
with legal responsibility for those specific
actions
(c) The funding of a response to a discharge
from a federally owned, operated. or
supervised facility or vessel is the
responsibility of the owning, operating, or
supervising agency
(dl The following agencies have funds
available for certain discharge removal
actions
(1) EPA may provide funds to begin timely
discharge removal actions when the OSC is
an EPA representative.
(2) DOD has two specific sources of funds
that may be applicable to an oil discharge
under appropriate circumstances. This does
not consider military resources that might be
made available under specific conditions.
Ci) Funds required for removal of a sunken
vessel or similar obstruction of navigation are
available to the Corps of Engineers through
Civil Works Appropriations, Operations and
Maintenance, General
(ii) The U S. Navy (USN) may conduct
salvage operations contingent on defense
operational commitments, when funded by
the requesting agency Such funding may be
requested on a direct cite basis.
(3) Pursuant to Title I of the OPA. the state
or states affected by a discharge of oil may
act where necessary to remove such
discharge. Pursuant to 33 (YR subchapter Ni,
states may be reimbursed from the OSLTF for
the reasonable costs incurred in such a
removal.
5 6.2 Cairns. (a) Claims are authorized to
be presented to the OSLTF under section
1013 of the OPA of 1990, for certain
uncompensated removal costs or
uncompensated damages resulting from the
discharge, or substantial threat of discharge.
of oil from a vessel or facility into or upon
the navigable waters, adjoining shorelines, or
exclusive economic zone of the United
States.
(b) Anyone desiring to file a claim against
the OSLTF may obtain general information
on the procedure for filing a claim from the
Director, National Pollution Funds Center,
Suite 1000, 4200 Wilson Boulevard.
Arlington. Virginia, 22203—1g04, (703) 235—
4756.
5.7 Documentation and cost recovery
All OSLTF users need to collect and
maintain documentation to support all
actions taken under the CWA In general.
documentation shall be sufficient to support
full cost recovery for resources utilized and
shall identify the source and circumstances
of the incident, the responsible party or
parties, and impacts and potential impacts to
public health and welfare and the
environment Documentation procedures are
contained in 33 ( YR subchapter M
(b) When appropriate, documentation shall
also be collected for scientific understanding
of the environment and for research and
development of improved response methods
and technology Funding for these actions is
restricted by section 6002 of the OPA
Cc) As requested by the NRT or RET, the
OSC shall submit to the NET or RET a
complete report on the removal operation
and the actions taken The RET shall review
the OSC report with its comments or
recommendations within 30 days after the
RRT has received the OSC report The OSC
report shall record the situation as it
developed, the actions taken, the resources
committed, and the problems encountered
Cd) OSCs shall ensure the necessary
collection and safeguarding of information,
samples, and reports. Samples and
information shall be gathered expeditiously
during the response to ensure an accurate
record of the impacts incurred
Documentation materials shall be made
available to the trustees of affected natural
resources. The OSC shall make available to
the trustees of affected natural resources
information and documentation in the OSC’s
possession that can assist the trustees in the
determination of actual or potential natural
resource injuries
Ce) Information and reports obtained by the
EPA or USCG OSC shall be transmitted to the
appropriate offices responsible for follow-up
actions
5 8 Notional response priori ties
(a) Safety of human life must be given the
top priority dunng every response action.
This includes any search and rescue efforts
in the general proximity of the discharge and
the insurance of safety of response personnel.
(b) Stabilizing the situation to preclude the
event from worsening is the next priority. All
efforts must be focused on saving a vessel
54807
that has been involved in a grounding.
collision, fire, or explosion, so that it does
not compound the problem Comparable
measures should he taken to stabilize a
situation involving a facility, pipeline, or
other source of pollution Stabilizing the
situation includes securing the source of the
spill and/or removing the remaining oil from
the container (vessel, tank, or pipeline) to
prevent additional oil spillage. to reduce the
need for follcw.up response action, and to
minimize adverse impact to the environment
(c) The response must use all necessary
containment and removal tactics in a
coordinated manner to ensure a timely.
effective response that minimizes adverse
impact to the environment
(dl All parts of this national response
strategy should be addressed concurrently,
but safety and stabilization are the highest
prioriti s The OSC should not delay
containment and removal decisions
unnecessarily and should take actions to
minimize adverse impact to the environment
that begin as soon as a discharge occurs, as
well as actions to minimize further adverse
environmental impact from additional
discharges
Ce) The priorities set forth in this section
are broad in nature, and should not be
interpreted to preclude the consideration of
other priorities that may arise on a site’
specific basis
60 Response coordination
6 1 Nongovernmental partici potion
(a) Industry groups. academic
organizations, and others are encouraged to
commit resources for response operations
Specific commitments should be listed in the
RCP and ACP Those entities required to
develop tank vessel and facility response
plans under CWA section 3 11(t) must he able
to respond to a worst case discharge to the
maximum extent practicable and should
commit sufficient resources to implement
other aspects of those plans
(b) The technical and scientific information
generated by the local community, along
with information from federal, state, and
local governments, should be used to assist
the OSC in devising response strategies
where effective standard techniques are
unavailable Such information and strategies
will be incorporated into the ACP. as
appropriate The SSC may act as liaison
between the OSC and such interested
organizations
Cc ] ACPs shall establish procedures to
allow for well organized. worthwhile, and
safe use of volunteers, including compliance
with requirements regarding worker health
and safety ACPs should provide for the
direction of volunteers by the OSC or by
other federal, state, or local officials
knowledgeable in contingency operations
and capable of providing leadership ACPs
also should identify specific areas in which
volunteers can be used, such as beach
surveillance, logistical support. and bird and
wildlife treatment Unless specifically
requested by the OSC. volunteers generally
should not be used for physical removal or
remedial activities If, in the judgment of the
OSC, dangerous conditions exist, volunteers
shall be restricted from on-scene operations
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(d) Nongovernmental participation must be
in compliance with the requirements of
subpart H of the NCP if any recovery of costs
will be sought
62 Natural resource trustees
62 1 Federal agencies (a) The President
is required to designate in the NCP those
federal officials who are to act on behalf of
the public as trustees for natural resources
These designated federal officials shall act
pursuant to section 1006 of the OPA Natural
resources means land, fish, wildlife. biota.
air, water, ground water, drinking water
supplies, and other such resources belonging
to. managed by. held in trust by. appertaining
to. or otherwise controlled (hereinafter
referred to as “managed or controlled”) by
the United States, including the resources of
the exclusive economic zone
(b) The following individuals shall be the
designated trustee(s) for general categories of
natural resources They are authorized to act
pursuant to section 1006 of the OPA when
there is injury to. destruction of. loss of. or
threat to natural resources as a result of a
discharge of oil Notwithstanding the other
designations in this section. the Secretaries of
Commerce and the Interior shall act as
trustees of those resources subject to their
respective management or control
(1) The Secretary of Commerce shall act as
trustee for natural resources managed or
controlled by DOC or by other federal
agencies and that are found in. or under, or
using waters navigable by deep draft vessels.
in. under, or using tidally influenced waters
or waters of the contiguous zone, the
exclusive economic zone, the outer
continental shelf, and in upland areas serving
as habitat for marine mammals and other
protected species However, before the
Secretary takes an action with respect to an
affected resource under the management or
protection of another federal agency. he shall,
whenever practicable. seek to obtain
concurrence of that other federal agency.
Examples of the Secretary s trusteeship
include marine fishery resources and their
supporting ecosystems, most anadromous
fish; certain endangered species and marine.
mammals, and the resources of National
Marine Sanctuaries and National Estuarine
Research Reserves
(2) The Secretary of the Interior shall act
as trustee for natural resources managed or
controlled by DOl Examples of the
Secretary’s trusteeship include migratory
birds, certain anadromous fish, endangered
species. and marine mammals, federally
owned minerals, and certain federally
managed water resources The Secretary of
the Interior shall also be trustee for those
natural resources for which an Indian tribe
would otherwise act as trustee in those cases
where the United States acts on behalf of the
Indian tribe
(3) Secretary for the land managing agency
For natural resources located on, over, or
under land administered by the United
States. the trustee shall be the head of the
department in which the land managing
agency is found The trustees for the
principal federal land managing agencies are
the Secretaries of DOl, USDA, DOD, and
DOE.
(4) Head of Authorized Agencies For
natural resources located within the United
States but not otherwise described in this
section. the trustee is the head of the federal
agency or agencies authorized to manage or
control those resources
6 2 2 State (a) State trustees shall act on
behalf of the public as trustees for natural
resources within the boundary of a state or
belonging to, managed by. controlled by. or
appertaining to such state For the purposes
of section 6 1. the definition of the term
“state” does not include Indian tribes
(b) The Governor of a state is encouraged
to designate a lead state trustee to coordinate
all state trustee responsibilities with other
trustee agencies and with response activities
of the RRT and OSC. The state’s lead trustee
would designate a representative to serve as
a contact with the OSC. This individual
should have ready access to appropriate state
officials with environmental protection.
emergency response. and natural resource
responsibilities The EPA Administrator or
USGG Commandant or their designees may
appoint the lead state trustee as a member of
the Area Committee Response strategies
should be coordinated between the state and
other trustees and the OSC for specific
natural resource locations in an inland or
coastal zone, and should be included in the
Fish and Wildlife and Sensitive
Environments Plan annex of the ACP
62 3 indian tribes The tribal chairmen
(or heads of the governing bodies) of Indian
tribes, as defined in section 1.5. or a person
designated by the tribal officials, shall act on
behalf of the Indian tribes as trustees for the
natural resources belonging to, managed by.
controlled by. or appertaining to such Indian
tribe, or held in trust for the benefit of such
Indian tribe, or belonging to a member of
such Indian tribe, if such resources are
subject to a trust restriction on alienation
When the tribal chairman or head of the
tribal governing body designates another
person as trustee, the tribal chainnan or head
of the tribal governing body shall notify the
President of such designation
62 4 Foreign trustees Pursuant to section
1006 of the OPA, foreign trustees shall act on
-behalf of the head of a foreign government as
trustees for natural resources belonging to.
managed by. controlled by, or appertaining to
such foreign government.
6 3 Federal agencies
(a) Federal agencies listed in this appendix
have duties established by statute, executive
order, or Presidential directive which may
apply to federal response actions following.
or in prevention of, the discharge of oil
Some of these agencies also have duties
relating to the restoration, rehabilitation,
replacement. or acquisition of equivalent
natural resources injured or lost as a result
of such discharge The NRT. RRT. and Area
Committee organizational structure, and the
NCP, RCPs, and ACPs provide for agencies to
coordinate with each other in carrying out
these duties
(b) Federal agencies may be called upon by
an OSC during response planning and
implementation to provide assistance in their
respective areas of expertise. consistent with
the agencies’ capabilities and authorities
(c) In addition to their general
responsibilities, federal agencies should’
(1) Make necessary information available to
the Secretary of the NRT. RRTs. Area
Committees, and OSCs,
(2) Provide representatives to the NRT and
RRTs and otherwise assist RRTs and OSCs.
as necessary. in formulating RCPs and ACPs.
and
(3) Inform the NRT, RRTs, and Area
Committees consistent with national security
considerations, of changes in the availability
of resources that would affect the operations
implemented under the NCP.
(d) All federal agencies are encouraged to
report discharges of oil from vessels or
facilities under their jurisdiction or control to
the NRC
6 4 Other federal agencies
64 1 Department of Commerce (a) The
DOC. through NOAA, provides scientific
support for response and contingency
planning in coastal and marine areas.
including assessments of the hazards that
may be involved, predictions of movement
and dispersion of oil through trajectory
modeling, and information on the sensitivity
of coastal environments to oil and associated
cleanup and mitigation methods, provides
expertise on living marine resources and
their habitats, including endangered species,
marine mammals and National Marine
Sanctuary and National Estuarine Research
Reserve ecosystems; and provides
information on actual and predicted
meteorological, hydrological. ice, and
oceanographic conditions for marine, coastal,
and inland waters, and tide and circulation
data for coastal and territorial waters and for
the Great Lakes In addition to this expertise.
NOAA provides SSCs in the coastal zone, as
described under section 3 3 3 of this
appendix, Special teams
642 Department of Justice The DOJ can
provide expert advice on complicated legal
questions arising from discharges. and
federal agency responses In addition, the
DOJ represents the federal government.
including its agencies, in litigation relating to
such discharges Other legal issues or
questions shall be directed to the federal
agency counsel for the agency providing the
OSC for the response
64 3 Department of Defense The DOD
has responsibility to take all action necessary
with respect to discharges where either the
discharge is on, or the sole source of a
discharge is from. any facility or vessel under
the jurisdiction, custody. or control of DOD
DOD may also, consistent with its
operational requirements and upon request of
the OSC, provide locally deployed USN oil
spill response equipment and provide
assistance to other federal agencies upon
request The following two branches of DOD
have particularly relevant expertise
(a) The United States Army Corps of
Engineers has specialized equipment and
personnel for maintaining navigation
channels, for removing navigation
obstructions, for accomplishing structural
repairs. and for performing maintenance to
hydropower electric generating equipment
The Corps can also provide design services,
perform construction, and provide contract
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54809
writing and contract administrative services
for other federal agencies
(bi The USN is the federal agency most
knowledgeable and experienced in ship
salvage, shipboard damage control, and
diving. The USN has en extensive array of
specialized equipment and personnel
available for use in these areas as well as
specialized containment, collection, and
removal equipment specifically designed for
salvage-related and open-sea pollution
incidents,
6 4.4 Department of Health and Human
Services. The HHS assists with the
assessment, preservation, and protection of
human health and helps ensure the
availability of essential human services I-IHS
provides technical and nontechnical
assistance in the Form of advice, guidance.
and resources to other federal agencies as
well as state and local governments
The principal HHS response comes from
the U.S. Public Health Service and is
coordinated from the Office of the Assistant
Secretary for Health, and various Public
Health Service regional offices Within the
Public Health Service, the primary response
to a hazardous materials emergency comes
from the Agency for Toxic Substances and
Disease Registry (ATSDR) and the Centers for
Disease Control (CDC) Both ATSDR and CDC
have a 24-hour emergency response
capability wherein scientific and technical
personnel are available to provide technical
assistance to the lead federal agency and state
and local response agencies on human health
threat assessment and analysis, and exposure
prevention and mitigation Such assistance is
used for situations requiring evacuation of
affected areas, human exposure to hazardous
materials, and technical advice on mitigation
and prevention. CDC takes the lead during
petroleum releases regulated under the CWA
and OPA while ATSDR takes the lead during
chemical releases under cERCLA Both
agencies are mutually supportive
Other Public Health Service agencies
involved in support during hazardous
materials incidents either directly or through
ATSDR/cDC include the Food and Drug
Administration, the Health Resources and
Services Athninistration, the Indian Health
Service, and the National Institutes of Health
Statutory authority for HHSfNational
Institutes for Environmental Health Sciences
(NIEHS) involvement in hazardous materials
accident prevention is non-regulatory in
nature arid focused on two primary areas for
preventing community and worker exposure
to hazardous materials releases (1) Worker
safety training and 12) basic research
activities. Under section 126 of the SARA,
NIEHS is given statutory authority for
Supporting development of curricula and
model training programs for waste workers
and chemical emergency responders. Under
Section 118(b) of the Hazardous Materials
Transportation and Uniform Safety Act,
NrEHS also administers the Hozmat
Employee Training Program to prepare
Curncula and training for hazardous
materials transportation workers In the basic
research arena, NIEHS is authorized under
Section 311 of SARA to conduct a hazardous
Substance basic research and training
Program to evaluate toxic effects and assess
human health risks from accidental releases
of hazardous materials Under Title IX,
section 901(h) of the Clean Air Act
Amendments, NIEHS also is authorized to
conduct basic research on air pollutants, as
wall as train physicians in environmental
health Federal research and training in
hazardous materials release prevention
represents an important non-regulatory
activity and supplements ongoing pnvate
sector programs.
6 4.5 Department of the Interior The DOl
may be contacted through Regional
Environmental Officers, who are the
designated members of RRTs Department
land managers have jurisdiction over the
national park system, national wildlife
refuges and fish hatcheries, the public lands.
and certain water projects in western states
In addition, bureaus and offices have relevant
expertise as follows
(a) FWS Anadromous and certain other
fishes and wildlife, including endangered
and threatened species. migratory birds, and
certain marine mammals, waters and
wetlands, effects on natural resources, and
laboratory/research facilities
(b) Geological Survey. Geology, hydrology
(ground water and surface water), and natural
hazards.
Ic) Bureau of Land Management’ Minerals,
soils, vegetation, wildlife, habitat,
archaeology, and wilderness.
(d) Minerals Management Service
Oversight of offshore oil and gas exploration
and production facilities and associated
pipeline facilities under the Outer
Continental Shelf Lands Act and the CWA.
and oil spill response technology research.
(a) National Park Service’ GeneraL
biological, natural, and cultural resource
managers to evaluate, measure, monitor, arid
contain threats to park system lands and
resources: archaeological and historical
expertise in protection. preservation.
evaluation, impact mitigation, and
restoration of cultural resources, emergency
personnel.
If) Bureau of Reclamation Operation and
maintenance of w3ter pro)ects in the West.
engineering end hydrology: and reservoirs
(g) Bureau of Indian Affairs Coordination
of activities affecting Indian lands, assistance
in identifying Indian tribal government
officials
(hI Office of Territorial Affairs. Assistance
in implementing the NCP in American
Samoa, Guam. the Pacific Island
Governments, the Northern Mariana Islands,
and the Virgin Islands
64 6 Deportment of Labor The DOL.
through OSHA and the states operating plans
approved under section 18 of the OSH Act.
has authority to conduct safety and health
inspections of hazardous waste sites to assure
that employees are being protected and to
determine if the site is in compliance with:
(a) Safety and health standards and
regulations promulgated by OSHA (or the
states) in accordance with section 126 of
SARA and all other applicable standards, and
(b) Regulations promulgated under the
OSH Act and its general duty clause OSHA
Inspections may be self-generated. consistent
with its program operations and objectives.
or may be conducted in response to requests
from EPA or another lead agency. or in
response to accidents or employee
complaints On request, OSHA shall provide
advice and assistance to EPA and other NRT/
RRT agencies as well as to the OSC regarding
hazards to persons engaged in response
activities Technical assistance may include
development and maintenance of site safety
plans and work practices. assistance with
exposure monitoring, and help with other
compliance questions. OSHA may also take
any other action necessary to assure that
employees are properly protected at such
response activities Any questions about
occupational safety and health at these sites
should be referred to the OSHA Regional
OffIce
64 7 Fed em! Emergency Management
Agency PEMA provides guidance, policy
and program advice. and technical assistance
in hazardous materials, chemical, and
radiological emergency preparedness
activities (including planning, training, and
exercisingl FEMA’s primary point of contact
for administering financial and technical
assistance to state and local governments to
support their efforts to develop and maintain
an effective emergency management and
response capability is the State and Local
Programs and Support Directorate
64 8 Deportment of Energy The DOE
generally provides designated OSCs that are
responsible for taking all response actions
with respect to releases where either the
release is on. or the sole source of the release
is from, any facility or vessel under its
jurisdiction. custody, or control, including
vessels bareboat-chartered and operated In
addition, under the FRERP, DOE provides
advice end assistance to other OSCs/RPMs
for emergency actions essential for the
control of immediate radiological hazards
Incidents that qualify for DOE radiological
advice and assistance are those believed to
involve source, by-product, or special
nuclear material or other ionizing radiation
sources, including radium, and other
naturally occurring radionuclides, as well as
particle accelerators Assistance is available
through direct contact with the appropriate
DOE Radiological Assistance Coordinating
Office
64 9 Department of State The DOS will
lead in the development of international Joint
contingency plans It will also help to
coordinate an international response when
discharges or releases cross international
boundaries or involve foreign flag vessels
Additionally, DOS will coordinate requests
for assistance from foreign governments and
U S. proposals for conducting research at
incidents that occur in waters of other
countnes
6 4 10 General Services Administration
The GSA provides logistic and
telecommunications support to federal
agencies During an emergency situation.
GSA quickly responds to aid state and local
governments The type of support provided
might include leasing and furnishing office
space, setting up telecommunications and
transportation services. end advisory
assistance
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Federal Register / Vol. 58. No. 203 / Friday, October 22, 1993 / Proposed Rules
6 5 Slates and local participation in
response
(a) Each state Governor is requested to
designate one state office/representative to
represent the state on the appropriate RRT.
The state’s office/representative may
participate fully in all activities of the
appropriate RRT Each state Governor is also
requested to designate a lead state agency
that shall direct state lead response
operations. This agency is responsible for
designating the USC for state .lead response
actions, and coordinating/communicating
with any other state agencies. as appropriate.
Local governments are invited to participate
in activities on the appropriate RRT as may
be provided by state law or arranged by the
stat&s representative. Indian tribes wishing
to participate should assign one person or
office to represent the tribal government on
the appropriate RRT.
(b) Appropriate state and local officials
(including Indian tribes) shall participate as
part of the response structure as provided in
the ACP.
(c) In addition to meeting the requirements
for local emergency plans under SARA
section 303, state and local government
agencies are encouraged to include
contingency planning for responses,
consistent with the NCP. RCP, and ACP in all
emergency and disaster planning
(d) For facilities not addressed under the
CWA for oil discharges, states are encouraged
to undertake response actions themselves or
to use their authorities to compel potentially
responsible parties to undertake response
actions
(e) Because state and local public safety
organizations would normally be the first
government representatives at the scene of a
discharge or release, they are expected to
initiate public safety measures that are
necessary to protect the public health and
welfare and that are consistent with
containment and cleanup requirements in the
NCP. and are responsible for directing
evacuations pursuant to existing state or local
procedures.
IFR Doc. 93—25257 Filed 10—21—93: 8 45 aml
BILLING CODE 6seo-ao-
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Friday
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Part UI
Environ mental
Protection Agency
40 CFR Parts 9 and 112
Oil Pollution Prevention; Non-
Transportation-Related Onshore Facilities;
Final Rule
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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
clarification Please ensure that this errata sheet accompanies all copies of the July 1 1994 Federal Register Notice tha
are distributed
Federal
Register
Page
Column
Appendix
Section
Description of Change
34070
1
na
Summary
‘transportation-related’ should be ‘non-transportation-related’
34097
3
na
§ 112.2
Add ‘means’ after the term ‘Contract or other approved
means’
34102
3
C
1.1
1.1.2 Italicize ‘Port Areas.’
1 1 3 Italicize ‘Inland Area’
1 1 4 Italicize ‘Rivers and Canals.’
34105
1
C
Attachment
C-Il
‘Facility Addresses’ should be ‘Facility Address’
34105
1
C
Attachment
C-Il
In footnote 1, add a comma after the word ‘used’
34106
1
C
Table 1
Add leading zeros to all entries, add line before ‘Major
Streams.’
341 06
3
C
2.3
In slope formula, term should be ‘A - B’ (minus sign rather
than a long dash).
34107
1
C
2.6
Term should be ‘727 ft - 710 ft’ (minus sign rather than a
long dash).
34110
3
D
A.2.3
Change ‘A2(b)’ to ‘A.2.2’
34111
1
D
B.2.3
Change ‘62(b)’ to ‘B.2.2’
34111
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D
2.2.3
Change long dashes after ‘30 days’ and ‘45 days’ to minus
signs.
34111
3
D
3 1
Change lon3 dash after ‘30 days’ to a minus sign
34112
1
0
1.28
Replace text with ‘Other definitions are included in § 1122
and section 1.1 of Appendix C.’
34112
3
D
3 3.2
Change ‘is available’ to ‘are available.’
34112
3
D
43
Change’section 1.2’to’section 1.1.’
34114
3
D
7.3
Change ‘Groups 1’ to ‘Group 1
34115
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7.3.1
Do not italicize ‘i.e.’
34115
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D
7.4
Delete ‘for a facility’ in fourth line of section.
34124
1
F
1.1
Change ‘complete’ in item 2 to ‘partial’. Change ‘complete’
in item 3 to ‘partial’.
34135
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F
2.1, 2.2, 2.3
Remove the terms ‘Page One’, ‘Page Two’, and ‘Page Three’
trom section headings.
34136
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Attachment
F-i
Remove ‘0’ from beginning of line under ‘Facility Address.’
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34070
Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 I Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
4OCFR Parts 9and 112
(SW H-FRL 5002-61
RIN 2050-AD3O
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
IDocket 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 $25.00
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
III Regulatory Analyses
A Executive Order 12866
B. Regulatory Flexibility Act
C Paperwork Reduction Act
D Display of 0MB 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)(1)(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)(1)(C).) The President has
delegated the authority to regulate non-
transportation-related onshore facilities
under sections 311(j)(1)(C) and 311(j)(5)
of the CWA to the U.S. Environmental
Protection Agency (EPA or the Agency).
(See Executive Order (E 0.) 12777,
section 2(b)(i), 56 FR 54757 (October
22, 1991), superseding E.O. 11735, 38
FR 21243 ) By this same E 0., 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 (DO!) A
Memorandum of Understanding (MOU)
among EPA, DO!, 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 fror
DO! to EPA. (See E.O. 12777 § 2(i)
regarding authonty 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, tb
new Fund replaces the fund origirlall)
established under section 311(k) of the
CWA and other oil pollution funds.
Section 4202(a) of the OPA amends
CWA section 3 11(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 States has
developed a National Oil and Hazardous
Substances Pollution Contingency Plan
(NC?) (40 CFR part 300) and has
established Area Committees to deveh
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 NC? and ACPs;
• Identify the qualified individual
having full authority to implement
removal actions, and require inirnedi.ate
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(i)(5)(D), 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 adjoimng
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(9(5)
requirements;
• Approving any plan that meets
these requirements; and
• Reviewing each plan periodically
thereafter.
The CWA and the CPA 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
42o2(b)(4), a facility required to prepare
and submit a response plan under the
CPA 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 CPA, 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 CPA
amends CWA section 3 11(b) to
authorize a civil judicial penalty of
$25,000 per day of violation for failure
to comply with regulations under CWA
section 3 11(j). In addition to these civil
penalties, CPA section 4301(b) amends
CWA section 311(b) to authorize
administrative penalties for failure to
comply with section 3 11(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 11 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 I I 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
CPA. Violations occurring before
enactment of the CPA 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 CPA authority over the
same or similar entities.
By E.0. 12777, the President
delegated certain OPA authorities to
EPA, DC I, and DOT. By terms of the
ED., EPA must develop response plan
regulations for onshore non-
transportation-related Facilities, while
the Minerals Management Service
(MM 5) in DOt is granted similar
authority for offshore non-
transportation-related facilities The
USCC 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 subtect to the lurisdiction 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)(i4.)The combined effect
of this definition and the delegations
under E C 12777 gives DCI (MMS)
responsibility for non-transportation-
related fixed offshore facilities in inland
lakes and rivers, (See E.C. § 2(b)(3))
However, EPA, DOl-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 C 12777,
the President authorized EPA, DC1, 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 DOl and DC I,
and the Administrator of EPA signed an
MCU 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
MCU, the term “coast line” is defined
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.O. 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 ONA. Among the
ways EPA has reduced the complexity
of planning requirements for these
facilities is to better align EPA’s
‘The term “environmentally sensitive areu’ hu
been changed to the term “flab and wildlife and
aeneltive envIronments” throughout thte preamble
and the final nile to be consistent with the
terminology used In propoeed revisIons to the N
(See 58 FR 54702) that Implement CPA
requirements The terms have the same meaning
end the change Li not meant to Imply an expansion
In the type. of areas Identified for protection undar
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 CPA
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 guidolines 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 1. I I.
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 USCC
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 NO’ 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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34073
responsibilities among Federal. State.
and local governments; describes
resources available for response;
summarizes State and local emergency
planning requirements under the
Emergency Planning arid 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 con junction 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,
decontaniinati on 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 hsted
“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 EPCR.A, 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 Conferenca
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
Authonty 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)—Submnission of SPCC
Plans for Waiver of Technical
Requuements,
• § 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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H. Summary of Revisions to the Oil
Pollution Prevention Regulation
This section provides a summary of
the response planmng provisions
included in today’s final rule. Section
hA provides a brief summary of the
overall approach to implementation of
response plan requirements In Section
11.8. EPA summarizes and responds to
major issues raised by the public during
the comment penod. Finally, Section
II C provides a section-by-section
discussion of changes from 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(fl(1) 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(fl(l), the factors in
§ 112.20(0(2)(A)—(F), or other site-
specific characteristics and
environmental factors that may be
relevant under § 112.20(fl(2)(G). In
applying these factors, the RA may seek
input on specific facilities from other
agencies such as the USCC 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
facihty could be a “significant and
substantial harm facility,” the RA will
consider the substantial harm criteria in
§ 112.20(0(2) as well as additional
factors in § 112.20(fl(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 critena in
§112 20(0(1)
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—I), 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 majonty 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 intenm 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)(I)(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 appropnate. (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 I ), 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 manne 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 11.5 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 top1 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
topl for two amounts, a worst case
spi 11 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 spili volume for the
transportation-related and non-
transportation-related components at
the facility. (The LJSCG’s term
“maximum most probable discharge” is
generally equivalent to a medium spiii.
See 58 FR 7354 ) The owner or operator
must then compare the medium
planning amounts for each component
cf the facility. Following this
comparison, the owner or operator must
select tho 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 7353.1 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 S
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(jflS)(C)(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 practicabls, 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(sfl. The agreement must identif)
and ensure the availability of the
necessary personnel and equipment
within appropriate response times, and
or
• Written certification that the
necessai’y personnel and equipment
resources, owned or operated by the
facility owner or operator, are available
to respond to a discharge within
appropriate response limes, 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; andior
• Other specific arrangements
approved by the RA upon request of the
owner or operator.
lithe 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
wben listing a USOG-classified OSRO(s)
that has sufficient removal capacity to
recover up to the rate indicated by the
associated caps. (See Sect ion ll.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 nile 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, OPA deadline EPA received over
4,500 plans from owners or operators of
facilities that met the critena 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 OPA
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)(1)(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 a xe 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)(1)(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 subm:tted 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 Administ.rator 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 chang
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
appropnate sections of the NCP and
ACP annually and revise their response
plans accordingly. In addition,
§ 112.20(d)(1) 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, ax
on behalf of, numerous environmenta.
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)(1)(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. CriteriL
provided in § 112.20(0(1) coupled with
RA determinations would be used to
identify “substantial harm facilities”
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3407;
and a subset of “significant and
substantial harm facilities.”
EPA’s second approach was also
based on the authority contained in
CWA sections 311 ) (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 denved 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(fl(1) are only required to
prepare a facility response plan if the
RA independently determines that the
facility is a “substantial harm facility”
Because of the size and diversity of the
regulated community under EPA’s
lurisdiclion pursuant to the OPA and
the tight time frame 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
beb eves that there are facilities that do
not meet the criteria in § 112 20(1111),
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(0(1) 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 I
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)(1)(i)). The cnterion 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 4OCFR 1121,
EPA clearly explains which facilities
fall under its authonty. The section
states that EPA junsdiction 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 I 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 fishkills.
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 I million gallon
or a 200,000 gallon size cut-off for total
storage capacity to determine a
threshold for substantial harm (See
§ 112.ZOffl(1)(ii).)
The Agency received numerous
comments suggesting that the 1 million
gallon cutoff was appropriate A smaller
number of comrnenters including other
Federal government agencies and
environmental associations, indicated
that the size cut-off for substantial harm
should be 200,000 gallons or lower
2 Study prepared for EPA titled “Analysis of Dau
Relating to Facility Size. Oil Discharges. and
Envuiinmenial Effects ‘ Avadab e for inspection in
the Superfund Docket, Room M2615.al the US
Environmentat Protection Agency, 40i M Sired
SW , Washington. DC 20460
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34078 Federal Register / Vol. 59, No. 126 I Friday , July 1, 1994 / Rules and Regulations
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
nsk factor, the Agency also recognizes
that the intent of OPA was not to
exclude certain smaller facilities, such
as those near public dnnlung 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’nsk
facilities that do not meet the critena in
§ 112 20(fl(1) although nonetheless pose
substantial harm.
The Agency decided to identify
certain high-nsk facilities that pose a
threat of substantial harm because of
their size in combination with facility-
specific charactenstics (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 abovegrou.nd 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 I 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 authonty to require a facility
to submit a response plan, regardless of
whether the facility meets the criteria in
§ iiz.z0(O(l) (although the RA
considers these factors as part of the
determination)
In addition, several coinmenters
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
1bid
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
aught not accurately reflect the true
worst case for the facility EPA would he
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
5461 2), to allow owners or operators to
exclude permanently closed tanks (as
defined in § 112 2 of the proposed rule
published on October 22, 1q91) front 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(IXi LXIJ). 58 FR
86491 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 o
substantial harm because of
improvements at the facility that leaL
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 nile, 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 conunenters 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(aX3))
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 USCO
planning distances for discharges into
tidal waters To more accurately account
for the range of movement of spilled o
in certain aquatic environments, EPA
includes in Appendix C of today’s fIna L
rule a section on oil transport in tidal
influence areas as a separate type of
calculation. EPA adopts the tidal
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34079
influence area criteria from the USCG’s
interim final rule for Manne
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 nver 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 tune 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 tunes
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). In
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—Ill 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—ill 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 arid sensitive
environments) in the substantial harm
critenon Many commenters suggested
that EPA allow a facility owner or
operator to use alternative methods or
set distances to determine the
appropnate 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(fl(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, arid 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 cominenters supported
EPA’s choice to incorporate a definition
of “injury” that was already
promulgated under other regulatory
pro_grains.
The Agency carefully considered
com.ments 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), DOl indicates that
the injury defliution 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 I Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
substantial harm), and that the term
“in jury” 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 I 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 pnvate 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 dnnking
water intakes based on the definition of
“public water systems” at 40 FR
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 plRnning
distance to determine substantial harm
if a fad lity 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
Document 4 supporting this rulemaking,
in some cases, contnlnment 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)(1)(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(0(2)) to determine
whether a facility is a “substantial harm
facility” irrespective of the substantial
harm criteria in § 112.20(fl(1). One of
these cominenters 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)(1) 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
The Technical Background Document to
Supporl the Implementation of the OPA Reaponee
Plan RequIrements. U.S EPA, February 1993.
Available for Inapection In the Superlund Docket,
room M2615, at the U.S Environmental Protection
Agency, 401 M Street, SW., Washington. DC 20460.
the relationship of the specified criteria
provided in § 112.20(fl(1) (e.g., the RA
may consider that one criterion is
enough to require a response plan to be
submitted). One cominenter 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)(1). 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 outlin
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
Ac Ps, 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 Ins 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
§ I12.20(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 comnienters
argued that the proposed procedures are
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34081
too burdensome for petitioners and that
the facility owner or operator should
have the responsibility to provide the
necessary information. Comznenters
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 encugh 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(fX2)(u) from the proposed rule
to clanfy 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 ES.
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(0(1), but rather to provide a
reasonable basis, from the factors in
§ 112.ZOtfM2Mi), 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 ES 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
the LEPC.
Determination of Significant and
Substantial Harm
As discussed in Section HA 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(Q(2). arid
additional significant and substantial
harm factors in § 112.20(fl(3).
Several cornmenters 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 critena both within
an EPA Region and across EPA Regions.
Several commenters suggested that EPA
develop a screening mechanism that
would provide the EtA 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 nsk factors
included at § 112.20(1113) of today’s rule.
In general, the screens provide $arious
combinations of the risk factors that
indicate increased levels of nsk posed
by a particular facility. For example, a
facility that has an oil storage capacity
greater than I million gallons and meets
more than one of the risk-based criteria
described in § 112.20(f)(1)(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 EtA’s ability to make case-
by-case determinations based on unique
facility- or location-specific concerns.
One commenter noted that EPA and
the IJSCC chose different approaches for
separating “substantial harm facilities”
and “significant and substantial harm
facilities.” The cominenter said that
EPA ‘s case-by-case determination of
significant and substantial harm is more
subjective than the USCC’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
“Interim Gu idariLe far the DelarminalLon of
SigntCcan and S sbata.nuat Hasm.’ U S EPA, sr a
is, i o u Available for inspeciion in the Superfund
Dockei, Room M2615, ii the 135 Environmental
Protection Agency, 4111 IA Sheet. SW.. Washington.
DC 204aa
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
USCC. it would be difficult to publish
a few general criteria that include the
majonty 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 ES determination) The OPA
Conference Report explicitly states that
significant and substantial harm crfleria
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, 10 1st Cong , Zd
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 critena should not result
in selection of facilities based solely on
the size or age of storage tanks (See H.R.
Rep. No. 101—653, 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 kant
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 EtA
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 essure
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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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 t.rarisportxng 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(fl(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
penodically, 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 NC? and
applicable AC? 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 Rh would review penodically
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 Rh 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 R.A. Some
supported a three-year time period, but
the majority preferred five years A few
commenters expressed concern that
specific reevaluation 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 NC? and the
AC? annually and revise the plan, if
necessary, to be consistent with these
documents (See § 112 20(g)(2).) To
clarify other review requirements, EPA
has reorganized § 112 20(g) by removing
the requirement for penodic review and
update of the plan from paragraph (g)(1)
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
Rh 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 IJSCG interim final
rule for MTR facilities (See 33 CFR part
154 ) Within the five-year period. EPA
will undertake a full reevaluation of th”
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)(1) to
indicate that owners or operators of all
facilities for which a response plan is
required (“substantial harm facilities”
and “sigruficant and substantial harm
facilities”) must revise the plan (and
resubmit relevant portions to the Rh)
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 infprmation 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)(1) has been moved to new
§ 112.20(d)(4) Some comznenters
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 amendment. 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 Rh 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)(1)(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)(1)(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-
specific 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 revises
§ 112.20(d)(I) in the final rule to
indicate that the owner or operator must
submit only relevant portions ef the
plan (i.e.. those portions that were
revised to reflect the snatezial change)
and not the entire resp se plan. This
change will facilitate the pro ss to
revise and submit required Information
within 60 days of the cKangm J . ,g will
review submitted [ ni tiosi far
approval and notify ow or operators
within a reasonable tIm. 11th. plan
amendments are i’ ’ptahle
Appeals PrOC1DU
In the proposed nile. the A cy
requested nn1rn tt .Bowzng t
owner or operator to participate In and
appeal the RA’s determInati of
substantial harm and significant and
substantial harm, and the disapproval of
a facility response plan.
Several comnienters were concerned
that lack of an appeals process would
deprive facility owners or operators of
their due process. Many commenters
supported a formal appeals process,
while others stated that an exchange of
information before en 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(1)) to
ensure due process. Several cominenters
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 information and data to
support the request. The RA would
evaluate the submitted information and
reach a decision on the facility’s risk
classification or the status of plan
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 mechanism 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 using procedures
similar to those in § 112.4(f).
The appeals processes described in
the preceding paragraph are also
available to owners or operators of
facilities that have been classified as
substantial harm or significant and
substantial 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.
Certthcation of Non-Substantial Harm
EPA proposed in §112.20(e) to
requite that owners or operators of those
regulated facilities not submitting
response plans complete and maintain
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 comnmenters 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
commenters 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
commenters 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 assistance to ensure that
certification is done properly (e.g., a
hotline or guidance manual). Several
commenters 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 appropnate 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 are to clarify certain provisions,
improve the organization of the model
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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 maine 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 C of the
proposed rule (Appendix F in the final
rule), the Agency indicated the
Emergency Response Action Plan
(ERAP) shall include a descnption 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 igmuon 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 nsk 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 facihty must be
referenced in the response plan
Sections 112.20 (h)(1)(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
C (Appendix F m 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
In section 1.8 of Appendix C 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 i
the final rule that logs may be included
in the facility response plan or kept a
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
MTh facilities.
Facility Response Plan Certification
In Section IILG 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 t
evaluate and certify the contents of the
response plan if EPA determines a
certification requirement is appropnatc
In particular, the Agency requested
comment on the suitability of Certif
Hazardous Materials Managers to
perform the plan certification function
The Agency received many commejils
on the issue of certification of response
plans. in 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 com.rnenters (those not
affiliated with an environmental
professional organization), almost two-
thirds felt that certification was
unnecessary and cited cost, PE’s
unfamiliarity 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 rn-house
employee could perform the function. In
addition, many commenters who
supported the certification provision
requested that EPA develop uniform
standards for certifying, ranking, an”
approving the use of different types
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
1 § 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 RA 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
maximum extent practicable, to a worst
case chscharge
The comments addressing this issue
were mixed. Commenters, in general,
requested that EPA’s definition more
closely mirror the definition used in the
USCG’s interim final rule for MTR
facilities (See 33 CFR 154.1028.) Some
comrnenters requested that EPA adopt,
in addition to l.he proposed language,
several additional methods that the
USCG included in its definition One
method provides an alternative for use
by all MTh facilities to ensure the
availability of response resources. The
method requires a document that
identifies the resources of the OSRO(s)
capable of being provided within
stipulated response tunes in the specific
geographic area; includes the parties’
acknowledgement that the OSRO(s) will
commit the resources 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 the facility
stating its willingness to respond to a
discharge at the facility and that it has
the specified resources. Cominenters
explained their preference for these two
methods to ensure consistency with the
IJSCG’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 corrimenters supported EPA’s
proposed definition citing its greater
simplicity and flexibility; however,
these commenters stressed that the RA
be granted broad flexibility in exercising
his 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 th 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) (i e., 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) (i e., a local or Regional oil
spill response cooperative).
Finally, EPA’s fourth means has 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 “U-I R. Rep No
101—653, 101st Cong , 2d Sess 1991 at
p. 150
In § 1122 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
the practical and technical limits on an
individual facility owner or operator”
Numerous commenters objected to
EPA’s definition. Many of the
commenters argued that EPA did not
consider economic limits in defining
maximum extent practicable, and that
Congress intended for EPA to evaluate
costs and other economic considerations
in defliung the term. Two cornmenters
suggested that EPA amend the term to
include the word “economic “Another
conimenter 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, arid EPA was remiss in failing
to engage the industry in a discussion of
costs from the industry’s perspective.
This last point, they argued, was
compounding the USCC’s failure to
engage the industry in a “full-blown
discussion of costs” during its
Negotiated Rulemaking on the vessel oil
response plan rule. The commenter
argued further that in determining
“maxini urn extent practicable” for
owners and operators, EPA was required
to factor in public response resources.
One comnienter 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 m
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 private
removal capabilities, and will be
adjusted upward to reflect anticipated
increases in private removal capabilities
through the year 2003 Appendix Ł 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 arid
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 defining
“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 const.ruct 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 arid
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 1 C of this
preamble, EPA and the USCG
participated in a senes 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 t.JSCG’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 maintains 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”
revised to match the USCC’s definitiL
• The defirntion 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 tJSCG’s intenm 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 jurisdictio
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
6 The conditions present in each operating
environment Ii a . significant wave height and sea
state) are listed in Table 3 of Appendix E end will
noririally be conditions present in each
corresponding operating area For example, an
owner or operator whose facility is located on a
river (Ia, the Rivers and Canals operating area) will
normally have to plan to respond to a spill using
equipment capable of functioning in the Rivers and
Canals operating environment. (i a , the conditi’ ’
described by a sign iflcant wave height of less
or equal to 1 foot or a sea state of 1) The Ocei
operating environment normally describes the
conditions present in the Nearshore operating area
(i e, significant wave height of less than or equal
to 6 feet and a sea state between 3 and 41 While
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34087
These changes should eliminate
confusion on the 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 cotnplex 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 change the operating area, he or
ahe may change the operating environment fore
given location jilt is determined that the new
operating environment better describes the
conditions present at that location. Any
reclassification of a specific location must be done
In the appropriate AfY
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. Cominenters 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 rivers,
mland, and nearshore areas into Tiers 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 waters 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 are
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 I oil and
a Group 3 oil) must do separate
calculations using the worksheet in
Attachment E—1 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 worst 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 owners 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 commenters
suggested that EPA establish separate
response plan requirements and
selection critena for owners or operators
of facilities that handle, store, or
transport non-petroleum oils. These
commenters argued that fundamental
chemical and physical differences
between petroleum and non-petroleum
oils indicate the necessity for different
response techniques and equipment.
Two of the cominenters stated that
USCG regulations create separate
response plan development and
evaluation critena for non-petroleum
oils, and one commenter recommended
that EPA adopt the USCC cnteria. Some
commenters 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(j) planning, the
OPA includes non-petroleum oils. The
Agency notes that the definition of “oil”
in the Clean 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 commenters 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 operators 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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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 facihties, 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 I 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 denved 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 ac follows:
• Section 2.3.1 is added. This section
indicates that the PA may require
owners or operators to Identify in the
facility response plan boom that meets
the boom criteria in Table I of
Appendix E. If documentation that the
boom meets the Table 1 criteria is
unavailable, the PA 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 PA 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 PA
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’ and applicable
ACP. The USCG permits a limited c’
against required response resources
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.
Venfication 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 —
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 USCC’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 cominenters offered additional
criteria to be used in the evaluation ‘
response resources. In dissent, som
‘FacilIty owners or operators may call the N
Hothne at 202 260—2343 for InfOrmAtiOn on the
current NCP Product Schedule.
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34089
commeriters 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), R.As 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 AG’, 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 owners
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
Enviromnents
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 intenm guidance for
the identification of environmentally
sensitive areas until ACPs were
available. Several cominenters urged
EPA to allow facility owners or
operators to use the NCP or ACPs for th
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 nile. 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 b 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
flyers, 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 I)—
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, II, and III 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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Federal Register / VoL 59, No. 126 I Friday, July 1, 1994 / Rules and Regulations
scenario, in turn, directly influences the
quantity of apiii 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
eTba Technical Background Document to
Support the Implementation of the OPA Rasponse
Plan Requirements. US. EPA. February 1993
Available for Inapection In the Superfund Docket.
room M2615, at the US 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 contairunent
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 ) Th
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 removinr
matenal in excess of tank capacity k
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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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 ale
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
comnienters 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)(1)
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 fl—I I 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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volume for production facilities with
wells producing under pressure or
exploratory wells in Attachment D—1,
‘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 pm-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)(1)(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 far mobilizing
resources in sponse to a worst Ca
discharge. To avoid confusion in Li.
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(fl(1)(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)(1D) for
facilities subject to the rule. Howe
the final rule limits the requiremer
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/exercise
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.
1 equirements 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 rulemaldng.
To provide additional direction to the
regulated community on what
constitutes an acceptable training
program, EPA expands the discus.
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 trainmg elements are
available from Petty Officer Daniel Caras
at (202) 267—6570 or fax 267—4085/4065.
As set forth in the OPA, dnlls/
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 dnlll
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
I 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 drillJ
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 USCC, 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 H.B of this
preamble, some cominenters 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 the 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 I C or [ l.B of this
preamble. In 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 USCC’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
and Notification), paragraph (d) of
§1124 (Amendment of Spill
Prevention, Control, and
Countermeasure Plan by Regional
Administrator); and paragraphs (a)(2),
(d), (0. (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)(1) is revised to clarify
that if the RA makes a determination of
substantial harm then be 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 penodically
on a schedule established by the RA
provided that the period between plan
reviews does not exceed five years
Paragraph (d)(i) 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)(1) has been moved to new
§ 112.20(d)(4).
Paragraphs (d)(1)(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
“pnor 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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Federal RegIster / Vol. 59, No. 126 / FrIday, July 1, 1994 / Rules and Regulations
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)(1)(i) is revised to clarify
that total oil storage capacity and not
total storage capacity is the criteria to be
evaluated.
Paragraph (f)(1)(li)(A) is revised to
clarify that adequate secondary
containment must account for
precipitation as required by
§ 112.7(e)(2)(Li).
Paragraph (f)(i)(ii)(D) Is revised to
clarify it addresses reportable oil spilis.
Paragraphs (fl(1)(ii)(B) and (1)(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 (al(3) and
(0).
Paragraph (fl(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 en 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 (fl(2) to consider
proximity to other areas determined to
possess ecological value. The remainder
of paragraph (fl(3) is renumbered
accordingly.
Paragraph (g) is reorganized by
removing the requirement for periodic
review and update of the plan from
paragraph (g)(1) and moving it to new
paragraph (g)(3).
Paragraph (h) Is revised to clarify the
mandatory nature of Appendix F.
Paragraphs (h)(1)(vi) and (h)(3)(vii)
ore revised to clarify that facility owners
or operators need only reference but not
include community evacuation plans in
the response plan.
Paragraph (h)(lXvii) 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., SEC 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 (h115) 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)(5llhi) 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)(11) 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.
Now § 112.20(1) 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 S 112.21 is added to describe
requirements for facility response
training and drills/exercises. The
requirements for annual drills/exercises
In proposed § 112.7(fl(1)(1Ii) 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( 1) will be finalized in
a future rulemaking.
Appendix B—Memorandum of
Understanding Among DO!, 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,
1q94 is added at Appendix B 1o40 IFR
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 drinkinr
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)(1) 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 CPR part 110. Footnotes clarifying
that public drinking water intakes are
analogous to public water systems as
described at 40 CFR 14 3,2(c) are added
to this section and Attachment C— IL 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
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
C—Ill is revised to include “or a
comparable formula as described in
§ 112.20(a)13)’ and “for oil transport on
moving navigable water.” The section
describing oil transport on moving
navigable waters in Attachment C—Ill Is
clarified to indicated that adverse
weather conditions shall be considered.
In Attachment C—UI, 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—Ill’
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 plnnnlng distance is
added. A conversion constant is added
to the formula far 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 plnnning distance.
Section 4.0 “References” is added to
Appendix C.
Environmentally Sensitive Areas
(Appendix Din 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 Ill 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 Bi 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—l is added to
describe these changes.
Appendix E—Deterrrdnation 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 1.1 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 arid
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 senes 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 C in the
Proposed Rule)
The title of Appendix C, “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 9hanged 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 well,head protection
programs is replaced with an
information number for the SDWA
Hotline and a definition of “welihead
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
13.2 is revised to improve clarity and
to indicate that the facility owner or
operator must follow appropriate
procedures contained in the NCP and
AGP 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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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 I Rules and Regulations
and adding “pager number” to the
facility response team list. Section 1.3 4
(now 1 3 5) is revised to clanfy that
facilities must, as appropriate, reference
existing commumty 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 with 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 descnbe the facility’s
dnll/exercise and traimrig 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 0 12866, (58 FR 51735,
October 4, 1993) the Agency must
determine whether the regulatory action
is “significant” and therefore subject to
0MB review and the requirements of
the E.0 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 issue
arising out of legal mandates, the
President’s priorities, or the principles
set forth in E.0. 12866.
Pursuant to the terms of EQ. 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 0MB for review
as required by E 0. 12866. Changes
made in response to 0MB suggestions o
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 Tat
1
TABLE 1.—TOTAL COST TO AFFECTED FACILITIES OF THE FINAL RULE
[ In millions of dollarsj
Requirement
Fi ar
S n t-
Rule Familiarization
Facility Response Plan
Total
122
95 0
107.2
0
41 6
416
1 7
48.7
504
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 oocur. 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. Regulatory 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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34097
C. Paperwork Reduction Act
The information collection
requirements in this rule have been
approved by the Office of Management
and Budget (0MB) 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
recordleeping 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 record.keeping 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. Disp)ay of 0MB Control Numbers
EPA is also amending the table of
currently approved information
collection request (ICR) control numbers
issued by 0MB for various regulations.
This amendment updates the table to
accurately display those information
requirements contained in this final
rule. This display of the 0MB 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
0MB 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
4OCFRPart9
Environmental protection, Reporting
and recordkeeping requirements.
40 CFR Fart 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 15, 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—0MB APPROVAL NUMBERS
UNDER THE PAPERWORK
REDUCTiON ACT
1. The authority citation for part 9
continues to read as follows:
Authorlty:7U.SC. 135 etseq, i36—136y;
15 U S C 2001, 2003, 2005, 2006, 2601—2671:
21 U.S.C. 331j, 346a, 348,31 U.s C 9701.33
US C. 1251 et seq. 1311, 1313d. 1314. 1321.
1326, 1330, 1344. 1345 (dl and Ce), 1361, E 0.
11735, 38 FR 21243, 3 cFR. 1971—1975
Comp p 973.42 U S C 241. 242b, 243. 246,
300f, 300 5. 300g-.1, 300g—2, 300g—3, 300g—4,
300g—5, 300g—6. 300J—1. 300J—2. 300j—3, 300)—
4. 300j—9, 1857 et seq. 69o1—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:
§ Li 0MB approvals under the Paperwork
Reduction Act
a * * * *
40 CFR Cit on
0MB con-
trol No.
Oil Polluton Prevention,
Non-
Transportation-Related
On-
shore Facilities 112.20
2050—0135
PART 112—OIL POLLUTION
PREVENTION
3. The authority citation for part 112
is revised to read as follows:
Authority: 33 USC 1321 and 1361;E0
12777 (October 18, 1991), 3 FR, 1991
Comp., p 351.
4. Section 112.2 is amended by
removing the paragraph designations (a)
through (I), placing definitions in
alphabetical order, and adding the
following new definitions in
alphabetical order, to read as follows:
§112.2 DefinItions.
a S a
* *
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 Iransportalion-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 Adniin.isu’ator
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 I 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.
* * S * *
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.
• S S S S
Worst case discharge for an onshore
non-tiansportation ’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.
(1) 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
(fl(i) 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 (fl(1)
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 (0(1) 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 (fl(1)
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 reqwred 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 critena in paragraph (fl(1)
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.
13) 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 comparabl
one contained in Appendix C to this
part to evaluate the criterion in
paragraph (fl(1)(ii)(B) or (f)(1)(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
fb)(1) 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 shal 1
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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Federal Register / Vol. 59. No. 126 I Friday, July 1, 1994 / Rules and Regulations
34099
environment by discharging oil into or
n the navigable waters or adjoining
J iorelines.
(C) The Regional Adinirnstrator 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 (fl(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 penod
between plan reviews does not exceed
five years.
(d)(1) The owner or operator of a
facility for which a response plan is
required tinder 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)(i) 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)(i) 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)(1) of this section for a
facility determined pursuant to
paragraph (fl(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 critenon in paragraph
(f)(1)(ii)(B) or (f)(1)(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)(1) 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 I
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 wildhfe and sensitive
environments, see Appendices 1. II, and
HI 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 3I1(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 Ib) 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,
(El Proximity to drinking water
intakes,
(F) Spill history; and
(C) 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.
{n) 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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34100 Federal Register I Vol. 59,No. 126 / Friday, July 1, 1994 / Rules and Regulations
reasonably be e,cpected 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
(fl(2) of this section as well as the
following:
Ci) 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)(1) 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 apphcable Area
Contingency Plans prepared pursuant to
section 311(jX4) 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 Superfurid
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 mode] 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 (hXi) of this
section and be supplemented with a
cross-reference section to identify the
location of the elements listed in
paragraphs (h)(2) through (hWlO) 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) Emerg ency response action plan.
The response plan shall include an
emergency response action plan in the
format specified in paragraphs (h)Vi)(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 (hM 1)
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)(1) 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 qualifib.
individual identified in paragraph (h)(1)
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 end 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)(i) of this section, that
include.
(A) Activate internal alarms and
hazard communication systems to notify
all facility personnel;
(B) Notify all response personne)
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.
(El 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 res
actions as previously arranged wit 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
U) 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 the 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 the range of areas potentially
affected, owners or operators shall,
where appropriate, consider the
distance calculated in paragraph
(f)(1)(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 the facility,
whichever is 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.
(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:
(i) 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.
(6) 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 drillIexercise
program to be carried out under the
response plan as described in § 112.21;
(iii) A description of the training
program to be camed 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 2.0 of Appendix F to this part.
(i)(1) In the event the owner or
operator of a facility does not agree with
the 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 planrnng 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 Admimstrator’s
original decision The Regional
Administrator shall consider the 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 the 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)(1) or (i)(2) of this
section has been denied by the Regional
Administrator, an owner or operator
may appeal a determination made by
the Regional Administrator. The appeal
shall be made to the EPA Administrator
and shall be made in writing within 60
days of receipt of the decision from the
Regional Administrator that the request
for reconsideration was denied A
complete copy of the 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 the issues and points of fact
in the case It also may contain
additional information from the 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 the owner or operator of the
decision.
§ 112.21 FacilIty response training and
dulls/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 descnbe 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 those personnel
involved in oil spill response activities.
It is recommended that the training
program be based on the USCC’s
Trairung Elements for Oil Spill
Response, as applicable to facility
operations. An alternative program can
also be acceptable subject to approval by
the Regional Administrator
(1) The owner or operator shall be
responsible for the proper instruction of
facility personnel in the procedures to
respond to discharges of oil and in
applicable oil spill response laws, rules,
and regulations.
(2) Training shall be functional in
nature accordmg to job tasks for both
supervisory and non-supervisory
operational personnel
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34102
Federal Register / Vol. 59, No. 126 / Friday, july 1, 19941 Rules arid Regulations
[ 3) Trainers shall develop specific
lesson plans on subject areas relevant to
facility personnel involved in oil spi t1
response and cleanup
to) 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
availa&ihty) will be deemed satisfactory
for purposes of this section. An
alternative program can also be
ecceptable 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 Throug h F Part 112 [ Addedl
7 Part 112 is amended by adding
Appendices B through P to read as
follows:
Appendix B to Part liz—Memorandum of
Uaderstanding Among the Secretary of the
interior, Secretary of Transportation, and
Administrator of the Environmanta)
Protection Agency
Purpose
This Memorandum of Understanding
(MOO) establishes the jurisdictional
responsibilities for offshore facilities,
including pipelines, pursuant to section 312
(j)11l(c). (j)(5), and ( 11 (6 1(A) of the Clean Water
Act (CWA), as amended by the Oil Pollution
Act of 1990 (Public Law iOl—380} The
Secretary of the Department of the Interior
(DOl l, Secretary of the Department of
Transportation (DOT). and Adxninistretorof
the Environmental Protection Agency (EPA)
agree to the division of responsibilities set
forth below for spill prevention end control,
response planning , and equipment
inspection activities pursuant to those
provisions
Backgro und
Executive Order lEO) 12777 (56 FR
54757) delegates to DO l. DOT. and EPA
various responsibilities identified in section
31 1(j) of the CWA Sections 2(b) 3), 2(dR3l,
and 21e)13) of ED 12777 assigned to DOl
api 11 prevention and control. contingency
planning, and equipment inspection
activities associated with offshore facilities
Section 311laX31) defines the term “offshore
facility” to include facilities of any land
located in, on, or under navigable waters of
the United States By using this definition.
the iraditional DOt role of regulating facilities
on the Outer Continental Shelf is expanded
by E 0 12777 to include inland lakes, rivers.
streams, and any other inland waters
Responsib i lIties
Pursuant to sect ion 2 (i) of E 0 12777, DC I
redategatas. and EPA and DOT agree to
assume, the functions vested in DOJ by
sections 2(b)(3), 2(d)(3), and 2(e)(3)ofEO
12777 as set forth below. For purposes of this
MOO, the term “coast line” shall be defined
as in the Submerged Lands Act (43 U.S C
laol(c)l 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”
I To EPA, 1)01 redelegates responsibility
for non-transportation-retated offshore
facilities located landward of the coast line
2 To DOT. DCI redelegates responsibility
for transportation-related facilities, including
pipelines, located landward of the coast line
The DOT retains jurisdiction for deepwater
ports end their essociated seaward pipelines,
as delegated byE 0. 12777.
3 The 1301 retains jurisdiction over
facilities, including pipelines, located
seaward of the coast line, except for
deepwater ports and associated seaward
pipelines delegated by EO 12777 to DOT
Effective Date
This MOU is effective on the date of the
final execution by the indicated sLgnatories
LImIt attoris
I The DOt, DOT, and EPA may agree in
wnting to exceptions to this MOO en 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 DOf, DOT, or
EPA.
Modlficatien 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 parties 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 o-
modifications to this agreement This MOO
may be terminated only with the mutual
consent of all parties
Dated November 8, 1993
Bruce Babbitt,
Secretoiy of the interior
Dated December 24. 1993
Federico Pefta,
Secretory of Transportation.
Dated February 3, 1994
Carol M Browner
Administrator, Envjrorta,entol Protection
Agency
Appendix C to Part iiz—Subsiantial Harm
Criteria
2.0 introduction
The flowchart provided in Attachment C—
Ito 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 Administratorhas the discretion to
identify facilities that must prepare and
subniit facility-specific response plans to
EPA.
2.2 Definihoits
1 1 1 Great &ikes means Lakes Superior.
Michigan. Huron, Erie, end Ontario, their
connecting and tributary waters, the Saint
Lawrence River as far as Saint Regis. and
adjacent port areas
7 7 2 Higher Vo/ume Port Areas include
(1) Boston, MA.
(2) New York, NY.
(3) Delaware Bay and River to
Philadelphia, PA,
(4) St. Croix. Vt.
f 5) Pascagoula, MS.
(6) Mississippi River &om 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,
(31) Corpus Christi,TX,
(22) Los AngelesJLoit Beach Harbor. CA.
(13) San Francisco Bay, San Pablo Bay,
Carquinez Strait, and Sutsun Bay to Antinch,
CA,
(14) Straits of Juan da Fuca front Port
Angeles. WA to and including Puget Sound,
WA,
(151 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 i,.
46 CFR part?, 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 bodyn’
water cnnfined within the inland area,
including the Intracoastal Waterways and
other waterways arnficiatly created for
navigating that have project depths of 22 fr
or less
2 0 Description of Screening Criteria for ti
Substonliol Harm Flowchart
A facility that has the potential to cause
substantial harm to the environment in the
event ef a discharge must prepare and subi It
a facility-specific response plan to EPA in
accordance with Appendix Ftc this part A
description of the screening criteria for the
substantial harm flowchart is provided
below.
2.1 Non-Tronsportotion-Re lated Focililws
W ith a Total Oil Storage Copo city Creoter
Than or Equal to 42.000 Go/ions Where
Qpereffions Include Over-Water Tmnsfers of
01 1. A non-tranaportation-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 typi” nf
facilities occur between barges and yes
and onshore bulk storage tanks over o .
water These facilities are located ad acei to
navigable waler
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
34103
2.2 Lack of Adequate Secondary
“ontainment at Facilities With a Total Oil
torage Capacity Greater Than or Equal to I
Million Gallons Any facility with a total oil
storage capacity greater than or equal to I
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 I Million Gallons A facility with a
total oil storage capacity greater than or equal
to I 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 1. 11.
and Ill 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—Ill 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 I Million
Gallons A facility with a total storage
capacity greater than or equal to I 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—Ill 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 I
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 critena 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-il 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 cnteria, 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, VT 1959 Open Channel
Hydraulics McGraw Hill.
IJSCG 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
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34104
Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
Artachment C I
Flowchart of Criteria for Substantial Harm
No
Does the facility have a total oil
storage capacity greater than or
equal to I million gallons?
No
Yes
Yes
Submit Response Plan
Within any aboveround storage tank
area. does the facility lack secondary
containment that is suf ciendy large to
contain the capacity of the largest
aboveground oil storage tank plus su cicnr
freeboard to allow for precipitation?
No
____-J
Is the facility located at a distance’
such that a discharge from the facility
could cause injury to fish and wildlife
and sensiuve environments 2?
No
Is the facility located at a distance
such that a discharge from the facility
would shut down a public drinking
water intake 1?
No
Has the facility eapenenced a reportable
oil spill in an amount greater than or equal Yes
to 10,000 gallons within the last 5 years?
No
I Calculated wing the appmpnatc
formula in Attachment C-UI to this
&ppcndsx or a compatable fosmula.
2 For 5.u her de,uipton €1 fish and
wildlife and sensiove envunnmcnn,
ace Appendices 1, II. and U I to
DOCINOAAs 3wdancc for Facility
and Veasel Response Plans Fish and
Wildlife and Sens,avc Envuwirncn&
(59 FR 14713. Maxvh 29, 1994 i and
the applic*bk At Contingency Plan.
3 Public drinking watc inrakcs are
analogous to public water syatens
as desu,bed at 4(1 CFR 1412(4
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 gaUons
Ye,
No Submittal of Response Plan
Except at RA Discretion
eIwNO CODE SMO-60-C
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FSaaI a ’ F VoL 59, No, 126 / Friday, July 1, 1994 I Rules and Regulations
34105
AItsrL—e c-zz-- ,m dts
J ă ata1 Ř ca
FacilIty Sans
FadIfty Adtheeaes
1. Dow th. facility Innate oil over water
to or from vessels s ad doss the facilIty have
S total oil storage capedty pester than or
equal to 42.000 gallons?
Yes____ No____
2 Does the facility have • total oil storage
capacity greater than or equal to I million
gallons and does the facilIty l.ck secondary
contaInment that Is sufficIently large to
contain the capacity of the Largest
aboveground oil stor,.ge tank plus sufficient
freeboard to show 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 i million
gallons and Is the facility located at a
distance (as calculated using the appropnate
formula in Attachment C—In to this appendix
or a comparable formula 1) such that a
discharge from the facility could cause in;ury
to fish and wildlife and sensitive
environments? For further descript ion of fish
and wildlife and sensitive environments, see
Appendices 1,11, and Ut to DOC/NOAA’a
“Guidance for Facility and Vessel Response
Plane. 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
ga llons and is the facility Incated ala
distance (as calculated using the appropriate
formula in Attachment C-ill to this appanthx
or a comparable formula i) such that a
discharge from the facility would shut down
a public drinking water intake 2 ?
Yes ____ No____
5 Does the facility have a total oil storage
capacity greater than or equal to I million
gallons and has the facility experienced a
reportable oil spill in an amount greater than
or equal to tt),C00 gallons within the lasts
years’
Yes ____ No ____
Certification
I certify under penalty of law that I have
personally examined end 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. a u.rate. and compleie
Signature
Name (please type or print)
TItle
‘Us co pseble Ssea.a S aS
S the n2t Uhy ad ael$ka — ir- — 5 _ ‘
zn -.t4 MaaM . e.t-a,..d W thi. Sins
‘ wS S aO’Z pWt l it- p c
S4e&arg — aSs - -
S .. ,,_ a —.fl s *Ot
te
Attachment C-HI--Calculation of the
pl.nntng Distance
i ’ D Iaizvducton
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 envircnments 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 transpou on
tidal Influence areas is based on the type of
oil spilled end 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
enguseering 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 so 40 CFR 112 20(f)(l)(ii)(B) or
(f)llXii)lC), the owner or operator shell attach
documentation to the response plan cover
sheet contained in Appendix F to this part
that demnnstrates the reliability and
analytical soundness of the alternative
formula and shall notify the Regional
Administrator in writing that an alternative
formula was used
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
‘For persIstent oits or non-persistani oits,s wont
case tra,ectory modat (I a • an atiamatuve fonnulal
may be substituted for the diitanca fomiutas
desatbad in situ, moving, and tidal waters, aubjaci
to Regional Admlntetrator’s review of the mode!
An example ot an aliamnatlee formula that is
comparable to the one contained In this appendix
would be. wa e tn)edaey calculatIon based
an credible advese winds, currants, and/a steam
fla5w. new a ra S weatba conAb4
and thw nen Based en bsk.l ta ta’ a
a spill “ ‘ f l tv , SC’y y I’fl a&
S n - ad woda end e w
, ae% __ 1 . pr k * 5Z* ‘
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 altarts 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 anvu’onmenti and
public drinking water Intakes Is required,
unless it is clear without performing the
calculation (a g . the laciltty 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 Ii a
moving water, still water, or tidal’ influenced
waler) 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 Cv), 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-lv’lanning equation contains three
variables which must be determined by
facility owners or operators Manning’s
Roughness Coefficient f for flood flow rates).
a. can be determined from Table i of this
ettachment 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.
respnnse resources should be able to arnve
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 alt 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 inuat be developed for
the feaiity. the owner or operator shall
reference Appendix E to this part to
determine apjavpriate rsuce levels and
inp n t The epecaSed time I vale
of this ,pci 4 a incised . a 3 -hour tUne prrta, j
te depSys t a! beco and ether r po
hWy a
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34106 Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
2.0 01) Transport on Moving Navigable
Wate,s
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 lutake would
be shut down in the event of an oil
discharge (in miles):
v: the velocity of the river/navigable water of
concern (in ftisec) as determined by
Chezy-Monning’s equation (see below
and Tables I 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 068 sec.mile/
hr.ft (3600 sec/hr + 5280 ft/mile).
2 2 Chezy-Manning’s e iation is used to
determine velocity:
v=I.Sfn x rľ x s˝; where
v=the velocity of the river of concern (in (V
eec);
n Manning’s Roughness Coefficient from
Table I 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 0867 (sources for obtain log the mid-
channel depth axe listed In Table 2 of
this attachment); and
e=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 descnption
Rough-
(n)
Minor Streams (Top Width <100 ft.)
Clean.
Straight
Winding
Sluggish (Weedy, deep pools)
Notrees or brush
Trees and/or brush
Ma)or Streams (Top WIdth >100 ft.)
Regular section.
(No boulders/brush)
Irregular section:
(Brush)
0.03
.04
.06
.10
.035
.05
TABLE 2.—SOuRCES OF R AND S FOR
THE CHEZY-MANN1NG EQUATION
All of the charts arid related publications for
navigational waters may be ordered from
Distribution Branch
(NICG33)
National Ocean Service
Rlverdale, 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 arid Great
Lakes Waters:
Canadian Hydrographic Service
Department of Fisheries and Oceans Insti-
tute
P.O. Box 8060
1675 Russell Road
Ottawa, Ontario KIG 3H6
Canada
Phone. (613) 998—4931
Charts and Maps of Lower Misslsslpp
River
(Gulf of Mexico to Ohio River and St.
Francis, White, Big Sunflower.
Atchafelaya, and other rivers):
U.S. Army Corps of EngIneers
Vlclcsburg District
P.O. Box 60
Vlcksburg, MissIssIpp I 39180
Phone; (601) 634—5000
Charts of Upper MissIssIppi River and lIt-
nols Waterway to Lake MichIgan:
U.S. Army Corps of EngIneers
Rock Island District
P.O. Box 2004
Rock Island, IllInois 61204
Phone- (305) 794-5552
Charts of Missouri River:
U.S. Army Corps 01 EngIneers
Omaha District
6014 U.S. Post Office and Courthouse
Ornatia, Nebraska 68102
Phone: (402) 221—3900
Charts of Ohio River
U S. Army Corps of EngIneers
Ohio River DMalon
P.O. Box 1159
CIncinnati, OhIo 45201
Phone: (513) 684—3002
Charts of Tennessee Valley Authority Res-
ervoirs, Tennessee River and Trlbu-
Tennessee Valley Authority
Maps and Engineering Section
416 UnIon Avenue
Knoxville, Tennessee 37902
Phone: (615) 632—2921
Charts of Black Warrior River, Alabama
River, Ton,blgbee River, Apalachlcola
River and Pearl Riven
U.S. Army Corps of Engineers
Mobile District
P.O. Box 2268
Mobile, Alabama 36826-0001
Phone: (205) 690—2511
The average stop. of the rIver (a) may be
obtained from topographic maps:
U.S. GeologIcal Survey
Map DIstribution
Federal Center
Bldg. 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:
(I) 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 end sensitive environment located
downstream (83 (Note The owter or operator
should use a minimum of 20 miles
downstream as a cutoff to obtain the overage
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 end the public drinking
water Intake or fIsh and wildlife and
sensitive environments (C).
(a) Use the following formula to find the
slope, which will be a unitless value:
Average Siopeal(A—B) (ft)/C (miles)] xl i
mlle/5280 feet)
2 4 lIlt 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 peciflc length,
such as 100 feet, can be marked off along the
shorelIne. A float can be dropped Into the
so-earn 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 adverse weather
condItions.
2.5 The planning distance calculatIons
for moving and still navigable waters are
based on worst case discharges of persistent
oils. Persistent oils are of concern becau’
they can remain In the water for signIfit
periods of time and can potentially exist
large quantities downstream Owners or
operators of facilities that store persistent as
wall 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
lischazged 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 I
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 critena, they should
use a planning distance calculation in the
development of facility.specific response
plans
TABLE 3.—SPEc IF IED TIME INTERVALS
Operating
areas
Substantial harm planning
(his)
time
Higher vol.
12 hour amval+3
hour
ume pod
deployment. .15 hours.
area
Great
24 hour amvai+3
hour
Lakes.
depioyment . 27 hours.
All other
24 hour arrivai+3
hour
nvers
deployment-27 hours.
and Ca-
nals. in-
land,
and
near-
shore
areas.
26 Example of the Planning Dislonce
Calculation for Oil Trunsport 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 a, r, and a for
the Chezy-Manning equation
Find the rougbness coefficient, a, on Table
I 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
8=1(727 ft—71o fi)125 miles] x Ii rnile/5280
feetj=1.3x 104
The average and-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 end u from the sources shown in Table
2 for the Monongahela Rav .
Solving
r 0.667x20 feet=13.33 fret
Solve far v using:
v_L51n,asJ)xstti.
i -=(L5/O.035k41 3.33)”4 1.3x10 -
v-L73 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 ftlsec)x(27 hours)x(O 68 sec.rnile/
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 ifa
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 Trvns port 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.
(liThe surface area in square feet covered
by an oil spill on still water. Al, can be
determined by the following formula.’ where
V is the volume of the spill in gallons and
C is a constant conversion factor
A 1 = lO 5 xVľxC
C=0 1643
A 1 =10 5 x(2,000,000 gallons)ľx(0 1643)
A,=8 74x10 8 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=in 2
(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 A 2
Solving for the radius. r, using the
relationship A 1 =A 2 8 74x10 3 ft m =(io 2 )/2
Therefore. r=23.586 ft
r=23,586 ft+5,280 ftlmile=4 5 miles
Assuimng 8 20 knot wind under storm
conditions.
I knot=I 15 miles/hour
20 knots’cl 15 miJee/bour/knot=23 miles/hr
‘Hueng. j.C. and Momsutro. F.C.. 1962. Rev
tM Stote .of-Lhe-Ait cf CXI Po1luZ on Moddg. Final
repomi .u Itt.d the A lcen Puisvl
ln,gitut. by P.aythe a Sy a . C Lee
R b
Assuming that the oil slick moves at 3
percent of the wind’s speed:’
23 milesfhourx(J.030,59 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=10 4-i-4 5 miles
or approximately 15 miles
Great Lakes and all other areas d=18 6-s-4 5
miles or approximately 23 miles
4 0 Oil Tmnsporf 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 15
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 Deteim:ning 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 ftlsec) 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
50 Oil Transport Over Land
51 Facility own , or operators must
evaluate the poeential for oil to be
b lSpLilPiv i s8’CardxcI Ns1io J Spill
C noI S c m C r j I 5 University
Th zs f ) , isea
-------
3410B Federal Register I Vol. 59, No. 126 1 Friday , July 1, 1994 I 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 overland, it
may enter a storm drain or open concrete
channel intended (or drainage. It is easumed
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 ithn mum and mexunum velocities
are provided as examples of open concrete
channel end pipe flow, The ranges listed
below reflect minimum and maximum
velocities used as design criteria The
calculation below demonstrates that the tune
required for oil to travel through a storm
drain or open concrete channel to navigable
water u s negligible end can he considered
instantaneous The velocities are
For open concrete channels
maxunurn velocity=25 fees per second
minin’ium velociiy=3 feet per second
For storm drains
maximum valocity=25 feet per second
niinunum velocity=2 feet per second
53 Assuming a length of o smile from
the point of discharge through an open
concrete channel or concrete storm drain to
7he deiign velocities were obtained from
Howard County. Maryland Department at Pubbc
Wor& Stone Drainage Design Manual
a navigable water, the travel times (distance!
velocity) are,
t.S minutes ate velocity of 25 feet per second
14 7 minutes at a velocity of 3 (eat per second
22.0 minutes for at a velocity of 2 feet per
second
54 The distances that shail be considered
to determine the planning distance are
illustrated in Figure C-I of this attachment.
The relevant distances can be described as
follows
D1=Distence from the nearest opportunity for
discharge, X . toe storm drain oran
open concrete cbennel leading to
navigable water
D2=Distance through the storm drain or open
concrete channel to navigable water
D3=Distance downstream born the outfall
within which fish and wildlife and
sensitive environments could be iniurad
or a public drinking water intake would
be shut down as determined by the
planning distance formula
D4=Distancs from the nearest opportunity for
discharge. X 2 . to Fish and wildlife and
sensitive environments not bordenng
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) br the type of navigable water near the
facility or use a comparable formula.
5 & A facility that is located at a distance
greater than 0 5 mile from a navigabla water
must also calculate a planning distance (03)
ii it is in close proximity (ie ,D1 is lass than
05 mile and other factors era 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 1101 is less
than or equal to 0 5 mile, a discharge from
the facility could pose substantial harm
because the tune to travel the distance from
the storm drain to the navigable water (02)
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 aurrounding area, drainage patterns,
men•made harriers (excluding secondary
containment asructuiss), and soil distribution
and porosity
5.8 if a facility is not found to pose
aubatantial harm to fish and wildlife and
senaitive 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.
8ILUNO coos ease- so -P
-------
Fig otc C- i
Distances that Shall Be Considered to Determine the Planning Distance
Dl
• — — —
• — _•
‘ - ‘I
m
m
m
0
z
0
0 )
.z1
-I
0-
C D
CO
I
0-
0
C ’,
0
C c
Top View
D4
Flow
Nearest opportunity
for discharge
Fish and Wildilte and
Sensitive ErMronment5
Storm Drain
iL
Planning Distance
D3
Fish and V ‘ildi
and Sensitive
Environments
Not to . ie
-------
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 I 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
Os 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 workshee? 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. andior
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 rnanifolded tanks that are
separated by internal divisions for each tank
are considered to be single tanks and
individual manufolded 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
ore jointly regulated by EPA and the U S
Coast Guard (USCG), and are termed
“complexes.” Because the US 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
IJSGG-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 arid the
IJSCG must compare both calculations for
worst case discharge planning volume
derived by using the EPA end USGG
methodologies and plan for whichever
volume is greater.
PART A: WORST CASE DISCHARGE
PLANNING VOLUME CALCULATION FOR
ONSHORE STORAGE FACILITIES’
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 08
(1) FINAL WORST CASE VOLUME
_____ GAL
(2) Do not pmceed’further
A 2 SECONDARY CONTAINMEWT—
MULTIPLE-TANK FACILITIES
Are all aboveground oil storage tanks or
groups of aboveground oil storage tanks at
the facility without adequate secondary
containment?
______ (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
I ‘Storage facilities” represent all facilities
subject to thu part, excluding oil production
facilities
2 Secondary containment ii defined in 40 CFR
112.1(eU21 Acceptable methods and structures for
containment are also given in 40 FR 112 7lcl(1J
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 _____
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 1.1 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 allo
for precipitation) exists for the storage tank,
multiply the capacity of the tank by 0 8
B a 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
Ba 3 lfthepumpingreteofthewellwith
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 1.4 Attachment D—1 to this appendix
provides methods for calculating the
production volume for exploratory wells and
production wells producing under pressure
(1) FINAL WORST CASE VOLUME
_____CAL
(2) Do not proceed further
B 2 SECONDARY CO! AINMENT—
MULTIPLE-TANK FACILITIES
Are a!! aboveground oil storage tanks or
groups of aboveground oil storage tanks at
the facility without adequate secondary
containment?
‘All complexes that are jointly regulated by E’.
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
-------
Federal Register/ Vol. 59, No. 126 / Friday, July 1, 1994 I Rules and Regulations
34111
___(YIN)
B 2 1 If the answer is yes. the final worst
a. volume equals the total aboveground oil
storage capacity without adequate secondary
containment 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) lIthe 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-1 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.
B 2.2 II 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
______ CAL
(2) Do not proceed further
Attachments to Appendix D
Attachment 1)-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
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
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 0 e , rate of well/rate of
recovery 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 <1), then the production
volume would equal the sum of two terms
Production volume=discharge volume 1 +
discharge volume 2
2 2.2 The rirat term represents the volume
of the oil discharged from the well between
the time of the blowout and the time the
response resources are on scene and
recovering oil (discharge volume 1 )
Discharge volume 1 =(days unattended+days
to respond) x (rate of well)
2 2 3 The second term represents the
volume of oil discharged from the well after
the response resources begin operating until
the spill is stopped, adjusted for the recovery
rate of the response resources (discharge
volume 2 ).
(1) For wells 10,000 feet deep or less
Discharge voluine 2 = 130 days—{days
unattended + days to respond)l x (rate of
well) x (rate of well/rate of recovery)
(2) For wells deeper than 10,000 fee:
Discharge volume 2 =l45 days—(days
unattended + days to respond)J x (rate of
well) x (rate of well/rate of recovery)
3 0 Example
3 1 A facility consists of two production
wells producing under pressure, which are
both less than 10.000 feet deep The well rate
of well A is 5 barrels per day, and the well
rate of well B is 10 barrels per day The
facility is unattended for a maximum of 7
days The facility operator estimates that it
will take 2 days to have response equipment
and personnel on scene and responding to a
blowout, and that the projected rate of
recovery will be 20 barrels per day
(I) First, the facility operator determines
that the highest output well is well B The
facility operator calculates the ratio of the
rate of well to the rate of recovery’
10 barrels per dayl2O barrels per day=0 5
Because the ratio is less than one, the
facility operator will use Method B to
calculate the production volume
(2) The first term of the equation is
Discharge volurne 1 =(7 days + 2 days) x (10
barrels per day)=90 barrels
(3) The second term of the equation is
Discharge volurne 2 =l30 days—47 days + 2
days)1 x (10 barrels per day) x (0 5)=105
barrels
(4) Therefore, the production volume is
Production volurne=g barrels + 105
barrels= 195 barrels
3 2 If the recovery rate was 5 barrels per
day. the ratio of rate of well to rate of
recovery would be 2, so the facility operator
would use Method A The production
volume would have been
30 days x 10 barrels per day= 300 barrels
Appendix E to Part 112—Determination
and Evaluation of Required Response
Resources for Facility Response Plans
1.0 Purpose and Definitions
I I The purpose of this appendix is to
describe the procedures to identify response
resources to meet the requirements of
§ 112 20 To identify response resources to
meet the facility response plan requirements
of 40 CF’R 112 20(h). owners or operators
shall follow this appendrx ..or. where not
appropriate, shall clearly demonstrate in the
response plan why use of this appendix is
not appropriate at the facility and make
comparable arrangements for response
resources
1 2 Definitions
1 2 1 JVearshore is an operating area
defined as extending seaward 12 miles from
the boundary lines defined in 46 CFR part 7.
except in the Gulf of Mexico In the Gulf of
Mexico. it means the area extending 12 miles
from the line of demarcation (COLREG lines)
defined in 49 CFR 80.740 and 80850
1 2 2 Non.persistent oils or Group 1 oils
include
(1) A petroleum-based oil that, at the time
of shipment, consists of hydrocarbon
fractions
(A) At least 50 percent of which by
volume, distill at a temperature of 340
degrees C (645 degrees F), and
(B) At least 95 percent of which by volume,
distill at a temperature of 370 degrees C (700
degrees F). and
(2) A non-petroleum oil with a specific
gravity less than 0 8
1.2.3 Non-petroleum oil is oil of any kind
that is not petroleum.based It includes, but
is not limited to, animal and vegetable oils.
1.2 4 Ocean means the isearshore area
1.2 5 Opera tin,g area means Rivers and
Canals. Inland, Nearshore. and Great Lakes
geographic location(s) in which a facility is
handling, storing, or transporting oil
1 2 6 Opervtin environment means
Rivers and Canals, Inland, Great Lakes, or
Ocean These terms are used to define the
conditions in which response equipment is
designed to function
1.2.7 Persistent oils include
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(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 1) 85 and less then 0 95,
(C) Group 4—specific gravity equal to or
greater than 0 95 and less than 1 0 or
CD) Group 5—specific gravity equal to or
greater than aM.
(2) A non-petroleum oil with a specific
gravity oft) 8 or greater. These oils are further
classified bused on specific gravity as
follows;
(A) Group 2—specific gravity equal to or
greater than 0 6 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 30 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 a., 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 I 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 i 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 I of this appendLx
Testing must be in accordance with ASTM P
715, ASTM F 989, or other tests approved by
EPA as deemed appropriate (see Appendi.x E
to this part, section 10, for general
availability of documents)
2 4 Table I 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 am
significant factors to evaluate the operability
of equipment The AGP 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 tune, A facility owner or operator shall
include the time for notification,
mobilization, and travel of resources
identified to meet the medium arid Tier I
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 ihi 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, end 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 ensurmg 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 et the point of
expected use
3 2 Complexes that are regulated by EPA
and the USCC 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 USCX
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:
33 1 One thousand feet of containment
boom (or. for comp’exes 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 smell discharge
or greater which is available at the facility
within 2 hours of the detection of en 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 I of this appendix.
4.2 Complexes that are regulated by EPA
and the USCC must also consider planning
quantities for the transportation-related
transfer portion of the facility The IJSCG
planning level that corresponds to EPA’s
‘medium discharge” is termed “the
maximum most probable discharge “The
IJSCG revisions to33 CFR pail 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 api 1 1 volumes for a
medium discharge end a maximum most
probable discharge and plan for whichever
quantity 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
bow’s in all other areas Higher volume port
areas and Great Lakes areas ore 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 quantity of containment boom
available, by contract or other approved
means as described In § 112.2, to arrive
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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
end wildlife and sensitive environments, see
Appendices 1.11. and III to DOC/NOAA’s
“Guidance for Facility and Vessel Response
Plans: Fish and Wildlife and Sensitive
Environments” (see Appendix Ł to this part.
section 10, for evallability) 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 avail ability of the quantity of
boom identified in the plan for this purpose.
4.6 The plan must indicate the
availability of temporary store.ge capacity to
meet section 5.2 of this appendIx If available
storage capacity Is Insufficient to inset this
level, then the effective daily recovery
capacity must be dersted (downgraded) to the
limits of the evailable 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
eboveground storage tank volume is 640.000
gallons Ten percent of this capacity is 84,000
gallons. Because 10 percent of the facility’s
largest tank, or 84,000 gallons, ta 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 meat
this capacity must be calculated using the
procedures in section S 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 rqqui.red 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
Moxunum 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 maxi mum extent
practicable Section 7 of this appendix
describes the method to determine the
necessary response resources. A worksheet is
provided as Attachment E—i 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 USCC must also consider planning
for the worst case discharge at the
transportation-related portion of the facility.
The 1. 1 5CC 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 ci]ltles that
are regulated by EPA and the USCG must
compare both calculations of worst case
discharge derived by EPA and the 1.15CC 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 et the scene of a discharge within the
times specified for the applicable response
tier listed below.
Tiers
Tler2
Tiar3
Higher
Ghre
Sohrs...
54hrs
vol-
un’e
port
areas.
Great
l2hrs
3ôhrs
S ohrs
Lakes.
Allother
l2hrs...
3Shra...
60hrs
river
and
canaL
in-
land,
and
near-
shore
areas.
The three levels of response tiers epply 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
wont 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 fsciiity 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 wbose calculated planning volume
exceeds the epplicable 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-ciassified 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 S 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 dereted (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 operetor
shall, as appropriate, ensure that a portion of
those resources is capable of being used in
close-to-shore response sctivities 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 § iiz a, 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, II, and Ill 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 AGP Refer to
this guidance document for the number of
days and geographic areas Ii e .operating
environments) specified In Table 2 of this
appendix.
58 AfacilityowneroroperatorshaIl 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 toe
shoreline cleanup operation involving the
calculated volume of oil and emulsified oil
that might unpact the affected shoreline. The
volume of oil that shall, es appropriate, be
planned for is calculated thmugh 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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60 Determining Effective Daily Recovery
Capacity for Oil Recovery Devices
6 1 Oil recovery devices identified by a
facility owner or operalor 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 apphcable
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
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 shalt 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 1 /i inch
6 2 4 Facility owners or operators that
include oil recovery devices whose
throughput is not measurable using a pump
capacity or beltimop 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 806—
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= Dx Ii
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
11—I-fours 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 gprn=381 barrels per hour (bph)
R ’ 381 bphx24 hr/dayxo 2=1,829 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 bphxl2 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 en 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 end natural dissipation, potential
increases in volume due to emulsification,
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 Ipersistent (Groups 2, 3, 4, 5) or non-
persistent (Group 1)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 volumt
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 adpusted 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 amving 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 so 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 tir .
period specified in Table 2 of this appendix
The facility owner or operator shalt 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. lithe required
capacity exceeds the applicable cap specified
in TableS 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 sect
7.3 1—7.3 3 of this appendix must be usei.
calculate the planning volume for identifying
shoreline cleanup capacity (for Groups I
through Group 4 oils).
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Federal Register I Vol. 59, No. 1.26 / Friday, July ‘1, 1994 / RuLes and Regulations
34115
7.3.1 The following must be determined
the wont case discharge volume of oil for the
facility; the appropnate group(s) for the types
of oil handled, stored, or transported at the
facility Ipersistent (Groups 2, 3. or 4) or non-
penis tent (Group 1) ; and the geographic
ares(s) in which the facility operates (i a.
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
shorelme cleanup resource planning
7 3 2 The shoreline cleanup planning
volume must be adlusted 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 spilt removal organization
with the appropriate shoreline cleanup
capability
74 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 2 through Group 4 oils that
does not have adequate fire fight ing resources
located at the facility or that cannot rely on
sufficient local fire fighting resources must
identify adequate fire fightrng resources ft Is
recommended that the FacilIty owner or
operator ensure, by contract or other
approved means as described In S 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 I through Group 4 oil
fires This individual shall also verify that
sufficient wall-trained fire fighting resources
are available within a reasonable response
tuna tos 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 *6 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.
7.52 Because the requirements for Tiers
1, 2, and 3 for Inland and tiearshore 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
appropnate, 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 1.11, and I II to
DOCINOAA’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 A . Attachment C—Ill to
Appendix C provides a method for
calculating a planning distance to fish and
wildlife and sensitive environments end
public drinking water intakes that may be
impacted In the event of a worst case
discharge.
76 The procedures discussed in sections
7 6 1—76 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, stcres, or trenspo lis Group S
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, pu mps, 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 7.61 of this appendix shalibe
capable of being deployed (on site) within 24
hours of discovery of a discharge to the area
where the Facility is operating
76 3 A response plan must identify
response resources with fire fightIng
capability The owner or operator of a facility
that handles, atores, 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 Ident ify 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 Groups oil fires This
individual shall also verify that sufficient
well-trained fire fighting resources are
available within a reasoneble response time
to respond to a wont case discharge The
individual may be the qualified individual
identified in the response plan or another
appropnate individual located st 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 6 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 toe worst case discharge of non-
petroleum oils to the maximum extent
practicable, and
12) Sources of the equipment and supplies
necessary to locate, recover, and mitigate
such a discharge
7 7.2 An owner or operetor of a fecility
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 I 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,
f2) 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
reiources that are available by contract or
other approved means, as described in
5 112.2. The equipment described in the
response plan shall, as appropriate, include
(1) Containment boom, sorbent boom, or
other 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 los 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. lt 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 tobe 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 ifs 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 AvuIlabIllty
10.1 All materials listed In this section
are part of EPA’s rulemaking docket, and are
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
9:00 ain. and 4:00 p.m., Monday through
Friday. excluding Federal holidays.
Appointments to review the docket can be
made by calling 202—260—3048. The public
may copy a maximum of 266 pages from any
regulatory docket at no cost. If the number of
pages copied exceeds 286, however. a charge
of 15 cents will be incurred for each
additional page, plus a $25.00 adniinistrativ
fee. Charges for copies and docket hours are
sublect 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 RCRAI
Superfund Hotline at 800—424—9346 may also
provide additional information on where to
obtain documents To contact the RCRAI
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 DOCINOAA 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—80, ASTM F 808—83
(1988). The AS1’M 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
Slgn icaç rave
Sea state
Rivers and Canals
Inland
Great Lakes
Ocean
S 1 foot
3faet
54 feet
I
2
2—3
Boom
Boom
Use
Rivera
end
canals
Inland
‘
reat
es
Ocean
Significant Wave Height’
SeaState
Boom height—Inches (draft plus freeboard)
Reserve Buoyancy to Weight Ratio
Total Tensile Strength—pounds
Skirt Fabdc Tensile strength—pounds
Skirt Fabnc Tear Strength—pounds
S 1
1
6-18
2:1
4,500
200
100
s 3
2
18-42 .....
2:1
15.000—
20,000.
300
100
5 4
2—3
18-42
2.1
15,000—
20,000.
300
100
56
8-
42
3:1 to 4:1
20,000
500
125
1 Oil 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 et
operating environment
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
TABLE 2 TO APPENDIX E—REMOVAL CAPACITY PLANNING TABLE
34117
Spill location
R
ivers and canals
Nearsho
r&inland Great
Lakes
Suslalnabilrty of on-water oil recovery
3 days
4 days
Oil group’
Percent nat-
ural dissipa-
lion
Percent re-
covered
floating oil
Percent oil
onshore
Percent nat-
urai dissipa-
lion
Percent re-
covered
flOating oil
Percent oil
Onshore
1. Non-persistent oils 80 10 10 80 20
2L ightcrudes - 40 15 45 50 50
3 Medium crudes and fuels .. .. 20 15 65 30 50
4 Heavy crudes and fuels .. 5 20 75 10 50
Group 5 oils are defined In section 1.2.7 of this appendix; the response resource considerations are outlined in section 7.6 of this appendix.
I 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.
Non-Persistent Oil:
Group 1
Persistent Oil:
Group 2 ..
Group 3 ..
Group 4 -.
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
See sections 122 and 127 of this Wnd’s br gr
deiqiaboni non pers1io i arid pel’sisjem om . iespeo
t y
Operating area
Tier 1
Tier 2
Tier 3
Rivers and Ca-
nals
0.30
040
060
InLand Nearshore
Great Lakes ...
0 15
025
040
TABLE 5 TO APPENDIX E—RESPONSE CAPABILITY CAPS BY OPERATING AREA
hen
Tier2
Tier3
February 18. 1993:
All except Rivers & Canals, Great Lakes
Great Lakes
10K bbls/day
5K bblslday
1 5K bbls/day
20K bbts/day
10K bbls/day
3.0K bbls/day
40K bbls/day.
20K bbts/day
6.0K bbls/day.
..
Rivers & Canals
February 18, 1998.
All except Rivers & Canals, Great Lakes
Great Lakes
Rivers & Canals
February 18, 2003:
12.5K bbls/day
6.35K bbls/day
1.875K bbls/day
25K blils/day
12.3K bUls/day
3.75K bbls/day
50K bbls/day
25K bbls/day.
7.5K bblslday
All except Rivers & Canals, Great Lakes
Great Lakes
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD.
Rivers & Canals
Note The coos show cwnutat ive overall effectrve daily recovery capacity, not incremental increases
TBD-To Be Oeterrnined.
TABLE 3 TO APPENDIX E—EMULSI-
FICATION FACTORS FOR PETROLEUM
OIL GROUPS’
10
30
50
70
TABLE 3 TO APPENDIX E—EMULSI-
FICATION FACTORS FOR PETROLEUM
OIL GROUPS ‘ • Cofltlflu
TABLE 4 TO APPENDIX E—ON-WATER
OIL RECOVERY RESOURCE MOBILI-
ZATION FACTORS
1.0
1.8
2.0
1.4
Note: These mobilization factors are for total
resources mobilized, not incremental response
resources.
Attachments to Appendix E
BiLLING 000C 56e0-60-P
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34118
Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
ATTACItMENT E-I. --
WORKSHEET TO PlAN VOLUME OF RESPONSE R.ESOURCES
FOR WORST CASE DISCRARGE
Part t Background Information
Step (A) Calculate Worst Case Discharge in barrels (Appendix D)
(A)
Step (B) Oil Group 1 (Table 3 and section 1.2 of this appendix)
1 1
Step (C) Operating Area (choose one) I I
Nearshore/ Inland
Great Lakes
or Rivers
Step (D) Percentages of Oil (Table 2 of this appendix)
I I
I I
Step (El) On-Water Oil Recovery Step (D2 ) x Step (A )
Step (E2) Shoreline Recovery Step (D3) x Step (A )
Step (F) Emulsification Factor
(Table 3 of this appendix)
Step (C) On-Water Oil Recovery Resource Mobilization Factor
(Table 4 of this appendix)
Tier 1
Tier 2
C 62) (63)
A facility that handles, stores, or transports u.iltipte gro s of ott Jst do separate
calculations for each ott gro.. on site except for those oiL groi. s that constItute 10 percent or
less by voti.ane of the total oil storage capacity at the fAcility. For p.Irposes of this
calculation, the votuses of all p o Jcts in an oil grow st be eLsd to d.t.r.ine the
percentage of the facility’s total oil storage capacity.
Percent Lost to
Natural Dissipation
Percent Recovered
Floating Oil
( D l) CD?)
Percent
Oil Onshore
100
I
I
CD3)
I
I
(El)
I
I
CE?)
I
I
100
(F)
(Cl)
Tier 3
[
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Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 I Rules and Regulations 34119
ŁT A ’(1NT 1-2. ( CO2lTLNU ) - -
WOPT R11T TO PLAN VOL OP RZSPOWB I RZBOURCZB
POR WORST CAU DXS k G1
Part ii On-Water Oil Recovery Capacity (barr.l ./day)
Tier 1 Tier 2 ______________________
I I I ________
Step (El) x Step (F) x Step (El) x Step (F) x
Step (Cl) Step (C2)
Part III Shoreline Cleanup Volume (barrel.) . . . . • . I I
Step (E2) x Step (F)
Part IV On-Water Reeponee Capacity By Operating r.a
(Table 5 of thia appendix)
(Amount needed to be contracted for in barr.l./day)
Tier 1 Tier 2 Tier 3
I I I I I I
CJ I) (J2) (J3)
Part V On-Water Amount Need.d to be Id.ntifi•d, but not Contracted for in
Advance (barrele/day)
Tier 1 Tier 2 Tier 3
I __ ____
Pert I! TIer 1 - step (JI) Part II Tisr 2 - Step CJZ) Part U Tier 3 - Step (J3)
Tier 3
Step (El) x Step (F) *
Step (G3)
NOTEs To convert from ba.rrel./day to gallona/day, multiply the quantitiee in
Parts II through V by 42 gallons/barrel.
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34120 Federal Register I Vol. 59. No. 126 / Friday , July 1, 1994 I Rules and Regulations
____ ATIACm(ENT E- 1 U J1PLZ -.
WORF M cIcT TO P J VOL OF RZSPONSI RESOURCES
FOR WORST czs DISCHARGE
Part I Background Information
Step (A) Calculate WorBt Case Discharge in barrels (Appendix D)
170,000
(A)
Step (B) Oil Group 1 (TabLe 3 and section 1.2 of this appendix)
Step (C) Operating Area (choose one) x Nearshore/Inland
Great Lake e
Step (D) Percentages of Oil (Table 2 of this appendix)
or Rivers
__ Ti aLo
Percent Lost to
Natural Dissipation
Percent Recovered
Floating Oil
Percent Oil.
Onshore
10
Tier 1
I 0.15
1 50
Tier 2
[ 0.25
70
(03)
I
85,000
(El)
I
I
119,000
(E2)
I
1.4
Tier 3
0.40
A faciLity that hSI (ea , stores, or transports ruttiple of cit jst do seperate caLcuLations for
each oiL grow on site except for those oIL gro . s that constitute 10 percent or Less by vot of the totaL
cit storage capacity at the faciLity. For purposes of this aLcutation, the vot .aes of aLt proô.icIs in en
cit gro ç imjst be s .reed to detereine the percentage of the faciLity’s total sit storage capacity.
( Dl) (02)
Step (El) On—Water Oil. Recovery Step (D2) x Step (A
100
Step (E2) Shoreline Recovery Step (D3) x Step (A )
100
Step (F) Emulsification Factor
(Table 3 of this appendix)
Step (C) On—Water Oil Recovery Resource Mobilization Pactor
(Table 4 of thiB appendix)
( C I)
(F)
(02) (G3)
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Federal Register / VoL 59, No. 126 / Friday, July 1, 1994 1 Rules and Regulations
34121
A?fJi T - 1 Th1PL (CONTXNt )ID) - -
WORKS T TO PLAN VOL OP R SP0”t R2SOT3RC S
P C I WCIST CASE DZSCBA 1GZ
Part I X On—Water Oil ecovery Capacity (barrels/day)
Tier 1 _____________________
17,850 ________ _____________
Step ((1) x Step (F)
Step (Cl)
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 3
47,600
Step (El) x Step (F) x
Step (C3)
I I
166,600
Step (U) x step (F)
Tier
I
10,000
Tier
2
20,000
(.11) ( . 12 )
Part V On-Water Amount Needed to be Identified, but
Advance (barrels/day)
Tier 1
I 7,850
Pert Ii Tier I - Step (Ji)
Tier 2
9,750
Pert U Tier 2 Step (42)
Tier 3
7,600
Pert U tier 3 - Step (43)
NOTE: To convert from barrels/day to gallons/day, multiply the quantities in
Parts II through V by 42 g UonsJbarrel.
. 1
I
Tier 2
29, 750
Step (ES) x Step (F) x
Step CG2)
Tier
3
40,000
(43)
not Contracted for in
BILLING CODE e5eo-6o -c
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34122
Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
Appendix F To Pail 112—Facility-Spedfic
Response Plan
Table of Contents
1 0 Model Facility-Specific Response
Plan
I I 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
14 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 Disch ge
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. DrillslExercises. 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 6 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
1 0 Model Focilsty.Specific Response Plan
(A) Owners or operators of facilities
regulated under this part which pose a threat
of iubstantial 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—i
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
end 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 by4O 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 § 112.2OCh) 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 properly) shall, as appropriate, develop
separate sections of the response plan for
each storage area
aiLUNO CODE eaeo40-P
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Figure F 1
.
(AK)
Region X
(AK, ID, OR, WA)
SKIS (11W 1 14)
200 SIath Avenue, 11th Floor
Seattle, WA 98I0 1
EPA REGIONAL OFFICES FOR
RESPONSE PLAN SUBMITTAL
Region VIII
(CD, MI, ND, SD, irr, WY)
Prevention Seetion (HWM-ER)
999 18th Street, Suite 500
Denver, CO 80202-2405
Region VII
(IA. KS, MO, NE)
EPPR (ENSV)
25 Funston Road, 2nd Floor
Kansas City, KS 66115
Ration II
(NT, NY, PR, USVI)
RBP Removal and Emergency
Preparedness Programs
2890 Woodbridgc Avenue (MS-21 1)
Edison, NI 08837
Region V
(IL, IN, MI, MN, OH, WI)
EERB (HSE-5J)
77 W. Jackson Blvd., 5th Floor
Chicago, IL 60604
Region I
(Ci, MA, ME, NH, RI, VT)
ATTN: Response Plan Coordinator
Emcrgcncy Response Section
60 Wesiview Street
Lexington, MA 02173
Region III
(DE, DC, MD, PA, VA, WV)
Oil and Title Ill Section (3HW34)
841 Chestnut Building, 9th Floor
Philadelphia, PA 19107
Kegion IX
(AZ, CA, HI, NV, Amcrican Samoa,
Guam, Trust Territories of the Pacific)
ERS (H83)
75 Hawthorne Street
San Francisco, CA 94105
I
Hock 1
c ’
(I I I)
(AR, LA, NM, OK, TX)
Contingency Planning Section (62-EP)
1445 Ross Avcnuc
Dallas, TX 75202-2733
Region IV
(AL FL, GA, KY, MS. NC. SC. TN)
Emergency Response and Removal Rranch
345 Courtland Strect, N.E. 1st Floor
Atlanta, GA 30365
I
p al
a.
C,
P S
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34124
Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
1.1 Emergency Response Action Plan
Several sections of the response plan shall
be co-located for easy acuess by response
personnel during an actual emergency or oil
api11 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
fonns 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 seine 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 api11 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
2 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 SP 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, end phone number
1 2.2 Latitude and Lang.itude. Enter the
latitude and longitude of the facility Include
degrees. minutes, and seconds of the main
entrance of the facility.
1.2.3 WellheadPmtection 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)’
The response plan requirements in the
Wellhead Protection Program are outlined by
‘A welihead protection area La defined as the
surface and eubiurface area surrounding a water
well or weilfield, supplying a public watar system.
through which contaminants are reasonably likely
to move toward arid reach such water well or
weilfield For further informat ion regarding State
and territory protection programs, facility owner, or
operators may contact the SDWA Hotline at i—800—
426—4791
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 Qualifiedlndividual’ 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 Data 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:
Location (Street Address)
City: ______ State’ ______ Zip.
County _____ Phone Number. ( )
Latitude _____ Degrees _____ Minutes
______ Seconds
LongItude’ Degrees _____ Minutes
_____ Seconds
Wellhead Protection Area’
Owner:
Owner Location (Street Address):
(ii different from Facility Address)
City. ______ State:______ Zip:
County _____ Phone Number (
Operator (if not Owner):
Qualified Individual(s) (attach additional
sheets if more then 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 end 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
in formation on the list.
(3) Section 1.3.2 provIdes a description of
the facility’s list of emergency response
equipment end 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 in. 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 U’aining. 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 I Vol. 59, No. 126 1 Friday, July 1, 1994 / Rules and Regu atlonj
responding to emergencies. including oil
spills, even when they are not physically
present at the site An example of this type
of person would be the Building Engineer-rn-
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 spilt or other emergency
(ie , the first people to respond) These are
to be persons an nally 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
went 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 2 Notification
Date of Lest 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 Nationai Response
Center (NRC) 1-800-424-8802
2 Qualified Individual
Evening Phone
3. Compan ’ i Response
Team’
Evening Phone
4. Federal On-Scene Co-
ordinator (OSC) and/or
Regional Response
Center (ARC):
Evening Phone(s)
Pager Number(s).
5. Local Response Team
(Fire DeptJCoopera-
lives)
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 pp
13. Hospitals,
Spill Response NotI&stlan Fcir
Reporter’s Lest Name. —
First
MI.
..
Position
.
Phone Numbers
Day( ) —
Evening( ) —
Company.
-
Organization Type.
Address
..
City
State
zip
Were Materials Discharged’ _____ (YIN)
Confidential’ _____ (YIN)
Meeting Federal Obligations to Report?
______ (Y/N) Date Called ______
Calling for Responsible Party’ _____ ( ‘ i/NJ
Time Called _____
Incident Description
Source and/or Cause of incident :
Date of Incident
Time of incident _____ AM/PM
Incident AddressuL.ocation
Nearest City _______________ State _____
County. Zip
Distance from City _____ Units of Measure
______ Direction from City
Section _______ Township Range
Borough
Container Type ______ Tank Oil Storage
Capacity _______ Units of Measure
Facility Oil Storage Capacity _______ Units
of Measure _____
Facility Latitude — Degrees
Minutes _____ Seconds
Facility Longitude Degrees
Minutes ______ Seconds
Material
CHRIS Code Discharged quantity Unit of measure Matenal Discharged Quantity Unit of measure
in water
Response Action
Impaci
Number of ln)uries
Deaths __
_____ Number of
34115
Actions Taken to Correct. Control or Mitigate
Incident
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34126
Federal_Register I Vol. 59, No. 126 / Friday, July 1, 1994 I Rules and Regulations
Were there Evacuations? _____ (YIN]
Number Evacuated _____
Was there any Damage 7 (YIN)
Damage in Dollars (approximate)
Medium Affected
Description.
More Information about Medium.
Cofler Notifications
EPA 7 _____ (Y/N) US X _____ (Y/N)
State 7 ______ (Y/N)
Other 7 ____ (Y/N) Descnbe _________
1.3 2 Response Equipment List
Date of Last Update
Facility Response Equipment List
I Skimmers/Pumps—Operational Status —
Type, Model, and Year
Type Model Year
Number:
Capacity: gaL/mm.
Daily Effective Recovery Rate
Storage Location(s).
Date Fuel Last Changed
2. Boom—Operational Status
Type. Model, and Year.
Type Model Year
Number
Size (length) ft
Containment Area ________ sq ft
Storage Location
3 Chemicals Stored (Dispersants listed on
EPA ’s NCP Product Schedule)
5 Sorbents—Operational Status
Type and Year Purchased
Amount
Absorption Capacity (gal.)
Storage Location(s)
6 Hand Tools—Operational Status
Type and
year
Quantit ’
Storage
l ton
Type and
year
Quantity
Storage bce-
lion/number
8 Fire Fighting and Personnel Protective
Equipment—Operational Status. _____
Type and
year
Quantity
Storage
location
9 Other (e g., Heavy Equipment. Boats and
Motors)—Operational Status ______
Type and
year
Quantity
Storage
location
2.3.3 Response Equipment Testingi
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)
2 3.4 Personnel
Date of Last Update
Additional Information
Any information about the incident not
recorded elsewhere in the report
Type
Amouni
Date
purchaseci
Treatment
capacity
Storage
Location
Were appropriate procedures used to and the Area Contingency Plan (ACP). where Date Authonzed
receive approval for use of dispersants in applicable? (Y/N) 4 Dispersant Dispensing Equipment—
accordance with the NCP (40 CFR 300 910) Name and State of On-Scene Coordinator Operational Status
(OSC) authorizing use
Type and year
Capacity
storage
location
Response
lime
(minutes)
7. Communication Equipment (include
operating frequency and channel andlor
cellular phone numbers)—Operational
Status. ______
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Federal Register / Vol . 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations 34127
EMERGENCY RESPONSE PERSONNEL
Company Personnel
Name
Phone’
Response lime
Responslb4ltty during response action
Response Dalnlng 1 p&date
2.
3.
4.
5
6.
7.
8.
9.
10.
11
12.
1 Phone number to be used when person Is not on-sIte.
EMERGENCY RESPONSE CONTRACTORS
Date of Last Update —
Contraclor
Phone
Response time
Contract responslbflhly’
•1.
2.
3.
4.
‘Include e’Iidence 01 COflt’acWagreements wtth response contractors to ensure the availability of personnel and response equipment
FACILITY RESPONSE TEAM
Date c i Last Updale:
Tean r t, ç
— Response time
Phone or pager number (dayl’evenlng)
Qu d Irdvktat
I
I
I
I
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34128
Federal Register / Vol. 59, No. 126 / Friday, July 1, 1994 / Rules and Regulations
FAciLirt’ RESPONSE TEAM—Continued
Date of Last Update:
Team member
Response time
(minutes)
Phone or pager number (day/evening)
I
I
I
I
I
I
I
I
I
I
I
I
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 equipmenL
1 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
appropnate
(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)(1)(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 § 112.20(h)(3)(ix)
The qualified individual’s duties must be
described and be consistent with the
minimum requirements in § 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
1 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 end 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 en 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
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
then one material, list all of the stored
materials
(c) Quantity Stored—For each matenal
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
(I) Failure/Cause—Record the cause and
date of any tank orS! 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 amid 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
olmaterial involved in transfer operations, if
the exact volume cannot be determined.
fbi 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
involved in these operations, if the exact
volume cannot be determined
(c) The secondary containment volume
associated with each tank andlor transfer
point at the facility. The nwnbenng 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
(dl Normal daily throughput for the facility
and any effect on potential discharge
volumes that a negative or positive change in
that throughput may cause
HAZARD $DENT1FICATION TANKS 1
Date of Last Update’
Tank No
Substance Stored
(Oil and Hannious
S g co)
Quantity Stored (g -
Ions)
Tank Typ&Year
Maximum CapaCity
(gallons)
Failure/Cause
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)
Surlace AreaPf ear
Maximum Capacity
(gallons)
— —___
Failure/Cause
? *
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34130 Federal Register / Vol. 59, No. 126 I Friday. July 1, 1994 / Rules and Regulations
1 4.2 VuTherabthtyAnaiysis
The vulnerability analysis shall
address the potential effects (i.e., to
human health, property, or the
environment) of an oil spill. Attachment
C—Ill 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 (drjpking. 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;
(ii) Transportation routes (air, land,
arid water),
(12) Utilities; and
(13) Other areas of economic
importance (e.g , beaches, marinas)
including terrestrially sensitive
environments, aquatic environments,
and unique habitats.
2 4 3 Analysis of the Potentialfor 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
shalt, 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 arid the oil spill history at the
facility.
‘Refer to the DOC/NOAA “Guidance for Facrhty
end Vessel Response Plans’ Fish and Wildlife and
Sensitive Environments” (See appendix E to thu
part. section 10. for availability)
1.4.4 Facilfly Reportable Oil Spill
History
Briefly describe the facility’s
reportable oil spills 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;
(IC)) Enforcement actions;
(ii) 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 spill, 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;
‘M described in 40 CFR pail 210, reportable oil
epills are those that (a) violate applicable water
quality standards, or (b) cause a film or sheen upon
or diacoloration of (he eurface of the wale: or
adjoining ehorelines or cauao a aludge or emulsion
to be deposited beneath the surfece 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
fi 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 roust
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 manufolded 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 I Rules and Regulations
34131
containment area, whichever is greater.
For purposes of the worst case discharge
calculation, permanently inanifolded oil
storage tanks that are separated by
internal divisions for each tank are
considered to be single tanks and
individual manilolded 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 tius 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.
1.62 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 venfy 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 the plan
to ensure the safety of the facility and
to mitigate or prevent discharges
described in section 1.5 of the response
plan. This section shall include the
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 the plan must be
described.
1 7.1 Response Resourires 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 the 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
equipmentiexperts, 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.—4mmediate
Actions
Act qubdy to sect ’s
purTçs. dose
vases, etc.
Enforce safety and
Security measures.
Motors, e ecb’ic 1 cér.
cuits. open ftarnes,
etc
Around the tar* andy
or In th€ water wtth
oil boom
1—800—424—8802
So ave IOSS, Cd Spit Rep €motgenc ’ Proc.
dure#, R .ised Dece ber 3, 1992
1 72 DisposalPlans
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 Me erials 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 IRCRAI),
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
‘
Matenal
Disposal ta-
cility
Location
RCRA per-
mitfmanitest
1
2.
3.
4.
1 7.3 Containment and Dro:nage 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 spi 1 i through drainage,
includlni
(1) The available volume of containment
(use the information presented in section
1 4 1 of the response plan),
(21 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.
(5) Surop pump capacities;
(6) The containment capacity of welts and
booms that might be used and their location
(see section 1 3 2 or this appendix), and
(7) Other cleanup materials.
1. Stop the product
flow.
2 Warn personnel
3 Shut ott ignition
sources
4. Initiate containment
5. Notify NRC
6 Notify OSC
7 Notify, as appro-
priate
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34132 Federal Register I Vol. 59, No. 126 I Fridays 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 storrawater
drainage may contain additional
requirements
2 8 Self-Inspection, Drills/Exercises, and
Response Trvining
The owner or operator must develop
programs for facility response training and
for drills/exercises accosding to the
requirements o140 CFR 112.21. Logs must be
kept for facility drills/exercises, personnel
response training, and spill prevention
meetings Much of the recordkeeplng
information required by this section is also
contained in the SP(X Plan required by 40
R 112.3. These logs may be included in the
facility response plan or kept as an annex to
the facility response plan.
1.8.1 Facility Seif.Inspectlon
Pu.rsuant 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. Recorde 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 new requirement in this plan Facility
self.inspection requires two steps. (1) a
checklist of th1ng 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.
2.8.2.1 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. corro.ion;
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 Sis
Date
Comments
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34133
1.8.1.2 Response Equipment inspection Response Equipment Checklist 5. Actual use/testing (last test date sad
Using the Emergency Response Equipment 1. Inventory (Item and quantity); freit ocY of testing). and
List provided In section 1.32 oF the response 2. Storage location; 8 Shelf life (present age. expected
plan, describe each type of response 3. A SSIbilit)’ (time to access and replacement date).
equipment. checking for the following’ respond). Please note any discrepancies betwsen thi
4 OperatIonal status/condition; 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 81.3 Secondor ,y 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.
0. Debris,
E Erosion.
F. Permeability of the earthen floor of
thked area; and
C I.ocationJstatus 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 82 Facility Drills/Exercises
(A) CWA section 311())(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
facil lty s requirements for dnllslexercises
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 labletop exercises,
equipment deployment exercises, and
unannounced exercises. External exercises
include Area Exercises Credit for an Area or
Facility.speciflc 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 112 20(h)(6)(n) 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
1 82.1 Qualified Individual Notification
Drill Logs Qualified Individual Notification
Drill Log
Date
Company
Qualified Individual(s)
Emergency Scenario —
Evaluation
Changes to be lmplemented
Time Table for lmplementation
1 822 Spill Management Team Tabletop
Exercise Logs Spill Management Team
Tabletop Exercise Log
Date
Company
Qualified Jnd,vidual(s)
Emergency Scenario. —
Evaluetion
Changes to be Implemented:
Time Table for Imp lementetion
1.8.3 Response Troining
Section 112 21(8) 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 US ’s Training Elements for
Oil 5 piii 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 Cares at (202) 267—6570 or fax
267—4085/4065 Personnel response training
logs and discharge prevention meeting logs
Ghall be included in sections 1 8 3 1 and
1.83 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
1.8.3 1 Personnel Response Training
Logs
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
SubjecUissue identified
Required action
Irr 1ernentatIon date
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34135
1.9 Diagrnms
The facIlity-specifIc response plan shall
include the foUow lug dLegrarns. Addittonal
diagrams that would aid irs the development
of response plan sections may also be
Included.
(1) The Site Plan Diagram shall. as
eppropriste. include and identifr
(A) the entire facility to scale;
(B) above end below ground bulk oi l
storage tanks;
(C) the contents end capacities of bulk nit
storage tanks;
(0) the contents and capacity of drum oil
storage areas,
(E) the contents and capacities of surface
impoundments;
(F) process buildings;
(C transfer areas;
(H) secondary containment systems
(location and capacity);
(I) sthzctures where hazardous materials
are stored or handled, Including
materials stored and capacity of storage;
(3) location of communication end
emergency response equipment;
(K] location of electrical equipment which
contains oil; and
(L I for complexes only, the interface(s) (i.e.
valve orcornponentl between the pcrtion
of the facility regulated by EPA and the
portion(s) regulated by other Agencies
In moat cases, this interface is defined as
the last valve inside secondary
containment before piping leaves the
secondary containment area to connect
to the traneportati on-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 ad)acent to the tank
nearest the transfer stricture as
described above. The interface stray be
defined differently eta 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 sewera,
manholes, end drains;
(B) web’s end shut-off valves;
(C ) aurface water receiving steams;
(D} fire fighting water sources;
(E) other utilities,
(F) response personnel ingress and egress;
(C ) reaponsa equipment transportation
routes; and
(H) direction of spiii flow from discharge
points.
(a) The Site Evacuation Plan lD agram shell,
es appropriate, include,
(A) siteplendiagruni with evacuation
route(s); and
(B) location of evacuation regrouping areas.
1.10 Security
According to 40 CFR 112 7(eXGJ, facilities
are required to maintain a certain level of
security, es appropriate, in thIs section. a
description of the facility security shall be
provided and tmtclude, as appropriate.
(1) emergency cut-off locations (automatic or
manual valves);
(2) enclosures (e.g. lancing. etc.);
(31 guards and their duties, day and night;
14) lIghting;
(5) valve and pump locks; end
(0) pipeline conneclion 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 hes been developed to
he completed and submitted to the BA by
owners or operators who are required to
prepare and submit a facility-specific
response plan The covet sheet (Attachment
F—i) 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 ccmpielion.
2.2 Poge One—Generol infornoticn
Ctwner/Opertstor of FocQity: 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 corporstion. enter the name
of the facility’s principal corporate executive.
Enter as much of the name as will fit in esch
section.
(II Facility Name: Enter the proper name
of the facility.
(2) Fociiily Address. Enter the atreet
address, city, State, and zip code.
(3) Facility Phone Number. Enter the phone
number of the facIlity.
(4) Latitude ond Longftude: Enter the
facility latitude and longitude In degrees,
minutes, and seconds.
(5) Dun and Brudstreet Number’ Enter the
facility’s Dun and Bradstreet number if
evellable (this inforrnetIon may be obtained
from public library resources) ,
(8) Standard lndustrzni Classification (SJCJ
Code Enter the facility’s SIC code as
determined by the Office of Management end
Budget (this informetion may be obtained
from public iibrery resources).
(7) Largest Oil Stazoge Tank Capacity:
Enter the capacity in GALLONS of the largest
abovegi-ound nil storage tank at the faci lity.
Ce) Mcxirnum Ott Stomp Capacity: Enter
the total maximum capacity in GALLONS of
sit sboveground oil storage tanks at the
fac i lity.
(9) Number of Oil Storoge Tanks. Enter the
number of all abovaground oil storage tanks
et the facility.
(in) Worst Case Discharge Amount, Using
information from the worksheets in
Appe dlx D, enter the amount of the worst
case discharge in GALLONS.
(ii) Facility Distance to Navigable Waters:
Mark the appropriate line for the nearest
tllsisncehetweenenoppnrt’unlty far
discharge (i.e., all storage tank, piping. or
fiow ltne) and a navigable water
2.2 Page Two.—Appi stability of Substantial
Mann Criteria
Using the flowchart provided in
Attachment C—I 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 conipsrable formula to the ones described
In Attachment C—ill to Appendix C to this
part is used to calculate the planning
distance, documentation of th, reliability sad
aneiytiai soundness of the formula must be
attached to the response plan over sheet
2.3 Page Three—CertIfication
Complete this block after all other
questions have been answered.
3.0 Acronyms
AC ?: Area Contingency Plan
ASTM: American Society of Testing
Materie ls
bbts: Barrels
bpd: Barrels per Day
bph: Barrels per Hour
CHRIS’ Chemical Hazards Response
Information System
CWA: Clean Water Act
DO ?. Department of Interior
DOC. Department of Commerce
DOT. Department of Transportation
EPA: Environmental ProtectIon Agency
FEMA: Federal Emergency Management
Agency
FR Federal Register
gel. Gallons
gpm Gallons per Minute
HAZMAT: Flazardous Materials
LEPC: Local Emergency Plenning Com mittee
MMS. MInerals Management Service tpsrt of
001)
NC?: National Oil and Hazardous Substances
Pollution Contingency Plan
NOAA: National Oceanic and Atmospheric
Administration (part of DOC)
NRC: Netlonal Response Center
NRT: Notional Response Team
OPA: Oil Pollution Act of 1990
050 On’Scene Coordinator
PREP: National Preparedness for Response
Exercise Program
B A: Regional Admlntstrator
RCRA: Resource Conservation and Recovery
Act
RRC: Regional Response Centers
RRT: Regional Response Team
RSPA: Resesrch and Special Programs
Administration
SARA: Superfund Amendments and
Reauthorization Act
SERC: State Emergency Response
Commission
SDWA Safe Drinking Water Act of 1988
SI ’ Surface Impoundment
SIC: Standard Industrial Classification
SPCC: Spill Prevention, Control, and
Countermeasures
USCfl’ United States Coast Guard
4.0 References
CONCAWE. 1902 MethodologIes for
Hazard Analysis end Risk Assessment In the
Petroleum Rafir.irg and Storage]ndis.stry.
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 Facil ities.
Acceptable Separation Distances from
Explosive snd Flam mable Hazards Prepsred
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 .
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-i—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
Facility Phone No.. —
Latitude (Degrees’ North).
degrees, minutes, seconds
Dun & Bradstreet ber’
Largest Aboveground Oil Storage Tank
Capacity (Gallons)
Number of Aboveground Oil Storage Tanks.
Longitude (Degrees. West)
degrees, minutes, seconds
Standard Industrial Classification (SIC)
Code.’
Maximum Oil Storage Capacity (Gallons) —
Worst Case Oil Discharge Amount (Gallons)’
Facility Distance to Navigable Water Mark
the appropriate line
0— ’fe mile — ‘/e—˝ mile — ‘/z—l mile
— >1 mile —
Applicability of Substantial Harm Criteria
Does the facility transfer oil over.weter 2 to
or from vessels end 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 I million
gallons and, within any storage area, does the
facility lack secondary containment 2 that is
sufficiently large to contain the capacity of
the largest abovaground 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 I million
gallons and is the facility located at a
‘These numbers may be obtained from public
library resources
‘Explanations of the above.referenced terms can
be found in Appendix C to this part II a comparable
- Formula to the ones contained in Attachment c—rn
is uted to establish the appropriate distance to fish
arid wildlife and sensitive environments or public
drinking water intakes, documentaiion of the
reliability and analytical soundness of the formula
must be attached to this form
distance 2 (as calculated using the
appropnate formula in Appendix C or a
comparable formula) such that a discharge
from the facility could cause iniury 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 I 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 thinking water intake? 2
Yes
No
Does the facility have a total oil storage
capacity greater than or equal to I million
gallons and has the facility experienced a
reportable oil spill 2 in an amount greater
than or equal to 10.000 gallons within the
lost 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.
ŕiid 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 pnnt)
Title
Date
(FR Doc 94—15404 Filed 6—30—94, 8 45 am)
BILUNG 000E eaSO-5O-P
‘For further description of fish and wildlife and
sensitive environments. see Appendices I. I]. arid ITI
to DOC/NOAA’s “Guidance for Facility end Vessel
Response Plans Fish and Wildlife and Sensitive
Environments” (see Appendix E to this pail. section
10. for availability) and the applicable ACt’
59, No. 126 I Friday, July 1, 1994 / Rules and Regulations
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a a
Thursday
September 15, 1994
Part II
Environmental
Protection Agency
40 CFR Parts 9 and 300
National Oil and Hazardous Substances
Pollution Contingency Plan; Final Rule
— — a
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a a
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47384 Federal Register / VoL 59,
No. 178 / Thursday . September 15, 1994 / Rules and Regulations
ENVIRONMENTAL PROTEC11ON
AGENCY
40 CF ’R Parts 9 and 300
National Ott and Hazardous
Subs nces Pollution Contingency
AOE1 CY: U.S. Environmental Protection
Agency (EPA).
ACI1ON Final rule.
SUMMARY: hi this rulemaking, the U.S.
Environmental Protection Agency (EPA
or “the Agency”) is promulgating
revisions to the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP). The Oil
Pollution Act of 1990 (OPA) amends
existing provisions of the Clean Water
Act (CWA) and creates major new
authorities addressing oil and, to a
lesser extent, hazardoi.is substance spill
response. The amended CWA required
the President to revise the NCP to reflect
these changes. The OPA specifies a
number of revisions to the NCP that
enhance and expand upon the current
framework, standards, and procedures
for response. The last revisions to the
NCP were promulgated on March 8.
1990 (55 FR 8666) The proposed
revisions upon which this rulemaking is
based were published on October 22,
1993 (58 FR 54702). Today’s revisions
affect all NCP subparts except F (State
Involvement in Hazardous Substance
Response) and I (Adm.imstrative Record
for Selection of Response Action)
EFFECTIVE DATE: October 17, 1994.
ADDRESSES: Copies of materials relevant
to the rulemaking are contained in the
Superfu.nd Docket, Room M2615, U S
Environment ai Protection Agency. 401
M Street, SW.. Washington, DC 20460.
(Docket Number NCP—R2/A) This
docket is available for inspection
between the hours of 9 00 am and 4 00
pm. Monday through Fnday. excluding
federal holidays Appointments to
review the docket may be made by
calling 202—260 --3 046. The public may
copy a maximum 266 pages from any
regulatozy docket at no cost, if the
number of pages copied exceeds 266.
however, a charge of $0.15 will be
incurred for each additional page, plus
a $25 (10 admin.istrative fee. The docket
will mail copies of materials to
requestors who are outside the
Washington, DC metropolitan area
FOR FURTHER INFORMATiON CONTACT:
Richard Norris. Emergency Response
Division (5202G), U.S. Environmental
Protection Agency, 401 M Street, SW.,
Washington. DC 20460, or call 703-603—
9053.
SUPPLEMENTARY INFORMATiON: The
contents of today’s preamble are listed
in the following outline.
I Introduction
II Discussion of Selected Comments arid
Other Changes by Subpart.
Ill Summary of Supporting Analyses
I. Introduction
A. Stat utoiy Authority
Under section 311(d) of the Clean
Water Act (CWA), as amended by
section 4201 of the Oil Pollution Act of
1990 (CPA), Pub. L. 101—380. and
pursuant to authority delegated by the
President in Executive Order (E 0 ) No.
12777, the U S. Environmental
Protection Agency (EPA), in
consultation with the member agencies
of the National Response Team (NRT),
is today promulgating revisions to the
National Oil and Hazardous Substances
Pollution Contingency Plan (NCP), 40
CFR part 300. Some of the major goals
of the OPA that affect the NC? include
expanding prevention and preparedness
activities and enhancing response -
capability of the federal govern.menL
One of the primary purposes of the
NCP is to provide for efficient,
coordinated, and effective action to
minimize adverse impact from oil
discharges and hazardous substance
releases.I Today’s revisions incorporate
changes made by the OPA that have
expanded federal removal authority.
added responsibilities for federal On-
Scene Coordinators (OSCs), and
broadened coordination and
pre_paredness planning requirements
The CPA was enacted to strengthen
the national response system The OPA
provides for better coordination of spill
contingency planning among federal.
state, and local authorities. The addition
of the National Strike Force
Coordination Center (NSFCC), for
example. is expected to relieve
equipment and personnel shortages that
have interfered with response to oil
spills posing particularly significant
environmental or human health threats
Today’s rule revises the NCP to
implement a strongly coordinated,
multi-level national response strategy.
The national response strategy,
contained primarily in Subparts B and
D of the NCP, provides the framework
for notification, communication,
logistics, and responsibility for response
to discharges of oil, including worst
case discharges and discharges that pose
a substantial threat to the public health
‘Throughout the NCP. “distharge” also lncIude3
“substantial threat of discharge.” and ‘release” also
means “threat o( release”
or welfare of the United States The
amended NC? further strengthens the
OSC’s abihty to coordinate the respot
on-scene and also incorporates a new
OPA -mandated level of contingency
planning—Area Committees and Area
Contingency Plans (ACPs). These
committees and plans are designed to
improve coordination among the
national, regional, arid local planning
levels and to enhance the availability of
trained personnel, necessary equipment,
and scientific support that may be
needed to adequately address all
discharges.
The major revisions to the NC? being
promulgated today reflect OPA
revisions to CWA section 311. These
changes increase Presidential authority
to direct cleanup of oil spills and
hazardous substance releases and
augment preparedness and planning
activities on the part of the federal
government, as well as vessel and
facility owners and operators For
example, revised CWA section 311(c)
requires the President to direct removal
actions for discharges and substantial
threats of discharges posing a
substantial threat to the public health or
welfare of the United States. Revised
section 311(d) requires a number of
specific changes to the NCP. including
the estabhshrnent of “criteria and
procedures to ensure imrned.iate am.
effective Federal identification of, ant.
response to. a discharge. or the threat of
a discharge, that results in a substantial
threat to the public health or welfare of
the United States.”
Section 311(d) also mandates the
establishment of procedures and
standards for removing a worst case
discharge of oil and for mitigating or
preventing a substantial threat of such a
discharge Furthermore, this 5eCtiOn
requires the NCP to establish a fish and
wildlife response plan “for the
immediate and effective protection,
rescue, and rehabilitation of, and the
minimization of risk of damage to, fish
and wildlife resources and their habitat
that are harmed or that may be
jeopardized by a discharge “Section
311(d}(2)(G) authorizes consideration of
“other spill mitigating devices and
substances” for inclusion on the NC?
Product Schedule, and section
311(d)(2)(L) requires the establishment
of procedures for the coordination of
activities of OSCs, Area Committees,
U.S Coast Guard (IJSCG) strike teams,
and District Response Groups (DRGs)
Section 31U)j(2) of the CWA requires
that a national response unit, included
in today’s revisions as the NSFCC.
established in Elizabeth City, Nort.
Carolina. The NSFCC “shall compile
and maintain a comprehensive
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Federal Register / Vol. 59, No. 175 / Thursday. September 15. 1994 / Rules and Regulations 47365
computer list of spill removal resources,
personnel, and equipment” and “shall
provide technical assistance” to OSCs.
Section 31l(j) 12) provides that the
NSFCC will also coordinate efforts to
remove worst case discharges. Pursuant
to section 311(;)(3), the USCG must
establish DRGs i n each of the 10 USCG
districts to provide “technical
assistance, equipment, and other
resources” to OSCs to assist their
response activities Pursuant to CWA
sect ion 311(d112)(K), (JSCs must be
designated for each area for which an
AC? is required to be prepared.
Section 311{j)(4) addresses the
development of an expanded national
oil spili response planning system
Under this section, Area Committees,
which are composed of qualified
federal, state, and local agency
personnel, are directed to develop ACPs
that will address planning and
response-related issues and concerns,
including removal of worst case
discharges, responsibilities of owners
and operators and government agencies
in removing discharges, and procedures
for obtaining an expedited decision
regarding the use of dispersants.
CWA section 311( ills) requires that
the President issue regulations within
two years of enactment of the OPA for
owners or operators of certain vessels
and facilities to prepare response plans
to address, among other matters,
response to a worst case discharge to the
maximum extent practicable. These
facility response plans are required to be
consistent with the MCI’ and with ACPs
For cnshore facihties that can cause
“significant and substantial harm” in
the event of a worst case spill, these
plans must be approved by the federal
government Pursuant to E 0 12777,
EPA developed regulations that include
the criteria for determining which
onshore, non-transportation-related
facilities are to submit response plans
and which of these plans are to be
renewed and approved by EPA,
requirements for the preparation cE
those plans, and criteria for EPA’s
review and approval of the subirutted
plans. The Agency promulgated these
regulations on July 1, 1994 (59 FR
34070) EPA has developed a data base
to track facility response plans The
Department of Transportation (DOT)
and the Department of the interior (1)01)
developed similar regulations, for
offshore and transportation-related
facilities, pipelines, and vessels
B. Background of This Rulemaking
The President signed the OPA on
August m, i 9o, after both houses of
Congress passed the Act unanimously.
After several similar proposals had been
unsuccessful over the past 15 years,
Congress enacted this legislation partly
in response to the Exxon Voidet spill
and several other incidents, including
the Mego Borg and the A merican Trcder
spills.
In a Notice of Pro posed Rulemaking
(NPRM) published on October 22. 1993
(58 FR 54702), EPA proposed the OPA-
required revisions to the NC? A public
meeting on the proposal was held in
Seattle, Washington on January 14,
1994 EPA received 41 comment letters
during the public comment period. A
detailed Response to Comments
document, providing the Agency’s
response to alt comments received, is
included in the Docket.
U. Discussion of Selected Comments
and Other Changes by Subpart
This section of the preamble provides
a subpart-by-subpart and section-by-
section summary of all changes that
have been made to the proposed rule
published on October 22. 1993. Some of
these changes have resulted from
comments received, others have
resulted from inter-agency federal
workgroup deliberations, during which
it was determined that additional
clarification was needed.
This section also contains responses
to selected comments received on the
proposed revisions In addition to
responses to those comments that
resulted in rule language changes, EPA
has included responses to other
comments that addressed “major”
issues and those on which the Agency
thought it was particularly important to
clarify its position for the entire
regulated community Every comment
received was reviewed and a response
to all comments can be found in a
comprehensive Response to Comments
document which is included in the
Docket. Fora complete discussion of the
proposed revisions, the majority of
which are being promulgated as final
regulations by this action, the reader is
referred to the detailed preamble
discussion in the October 22, 1993
NPRM (58 FR 54702)
Subport A— Intr oduct ion
Sect ion 300.3—Scope
One commenter suggested that, rather
than stating in § 300 3(b116) that the MCI’
provides for “designation” of federal
trustees, it would be more appropriate
to indicate that such designation o urs
through E 0 12580. EPA agrees with the
commanter’s point, but will substitute
“listing of” for “designation” rather
than modify the text to discuss
designation occurring through the
Executive Order, as the coramenter
suggests
One commenter asked EPA to define
consistency with the NCP as those
actions that are not prohibited by the
NCP itself or by the express
instructionsfdirecuons of the federal
OSC
Consistency with the NCP is a phrase
that is used in and key to liability under
section 107 of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(IERCLA),Puh L 96—510,42 USC
9601 et seq EPA is concerned that
defining consistency in the NCP itself
could artificially and unnecessarily
constrain Agency response and
enforcement actions No def’imtion
could ever be sufficiently precise to
cover all situations, each response
under the NCP is unique in some way
and every response scenario is unlikely
to be captured by a single definition
Therefore, the recommendation has not
been adopted.
Section 300 4—Abbreviations
In response to the addition of the U S
Navy Supervisor of Salvage (SUPSALVI
elsewhere in today’s final rule.
“SUPSALV” is being added to the list
of abbreviations
Section 300 5—Definitions
Many of the cornmeriters raised
definitional issues related to concerns is
other subparts of the proposed rule
These issues are addressed in the
context of those subparts However,
several commenters raised concerns
independent of other issues, including
the following
• One commenter noted that the
Federal Response Plan is identified as
being signed by 27 federal departments
in the preamble, and as having been
signed by 25 departments in the
definition of Federal Response Plan
This discrepancy was due to the fact
that the Federal Response Plan was
recently signed by two add itior.at
federal departments Thus, the correct
number of signatories is 27 and 5 300 3
has been modified accordingly
• Three commenters asked if each
village!community affiliated with an
Indian or Eskimo tribe would qualify as
an “Indian tribe,” and therefore have
Regional Response Team (RRT)
representation, although different
villages may be of the same tribal
ancestry “indian tribe,” as defined b)
the OPA and the NCP, excludes “any
Alaska Native regional or village
corporation.”
• One cominenter asked that the
definition of”Lead administrative
trustee” be made consistent with the
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47386 Federal Register / Vol. 59,
No. 178 / Thursday, September 15, 1994 / Rules and Regulations
definition in the National Oceanic and
Atmospheric Administration (NOAA)
damage assessment regulation to clarify
between two concepts that will be used
In related NOAA and USCC
regulations—the lead adimnistrative
trustee and a federal lead administrative
trustee. EPA agrees with the commenter;
the NOA.A damage assessment
regulation definition for lead
administrative trustee will be used in
the NCP.
• One commenter recommended that
the “National response system” be
defined as being composed of two
distinct entities: a planning body and a
response body. Furthermore, the
commenter suggested that the incident
command system be the basic response
structure/organization and members of
the planning body would function as an
integral part of the incident command
system as opposed to a separate
advisory group. EPA disagrees that the
definition of the national response
system should be revised as
recommended to reflect “a planning
body and a response body.” Some of the
organizations referred to by the
coinnienter—such as the NRT and the
RRTs—have responsibilities related to
both planning and response The NRT,
for example. has responsibilities for
planning and preparedness, but also
may be activated for response to oil
discharges or hazardous substance
releases (see §300 110). EPA has.
however, clarified Figure 1 by dividing
it into two figures (Figures Ia and ib}
to better illustrate the response and
planrnng processes In addition. EPA
would like to clarify that, although the
national response system meets the
requirements of 29 CFR 1910 120
concerning the use of an incident
command system, it is not the same as
many of the typical incident command
systems used by states, industry, and
local responders. EPA has eliminated
references to an incident command
system in the defInition of national
response system to avoid any confusion
on this point The Agency also has
eliminated an erroneous reference to
“1RPM” resulting from a typographical
error.
• One commenter noted that the
definition of “navigable waters” does
not conform to the recently revised
definition in 40 CFR 110.1 EPA agrees
that the language should be revised to
be consistent with the current definition
of the same term at 40 CFR 110.1.
Specifically, subparagraph (1) of the 40
CFR part 110 regulations concerning
wetlands provides that “ [ nlavigable
waters do not include prior converted
cropland” (58 FR 45035. August 25,
1993). In this final rule, EPA has added
the appropriate language to § 300.5
• One commenter outlined a
decision-tree process (using a series of
yes/no questions) to clarify what is and
is not “oil.” The process was suggested
to be used instead of the proposed NCP
definition. This decision-tree analysis
would distinguish oil from CERCLA
hazardous substances and other man-
made chemicals. EPA believes that
reliance on the OPA definition of oil
provides the most reliable
determination of what is and is not oil
The cominenter’s approach, therefore,
has not been adopted.
• Related to the definition of oil, one
commenter asked EPA to provide
additional guidance regarding the
classification of a spill as “oil” or
“hazardous substances” and the
appropriate use of the Oil Spill Liability
Trust Fund (OSLTF) or CERCLA for
response. Specifically, the commenter
suggested addressing two issues: (1)
appropriate response and funding for
spills of statutorily defined “oil” which
may exhibit, if tested, characteristics of
a CERCLA “hazardous substance” in
either its Initial or weathered state; and
(2) response and funding where both
“oil” and CERCLA “hazardous
substances” may be involved in a
discharge or substantial threat of a
discharge The comrnenter’s concerns
touch on interagency policy issues that
will be decided on a case-by-case basis
between EPA and the USCG. The
Agency does not wish to limit its
flexibility in such matters by
implementing the commenter’s
suggestions for revising the NCP.
• Also related to the definition of oil,
one commenter argued that the
treatment of animal fats and vegetable
oils in the NCP is inconsistent with
established regulatory principles and
with available scientific data The
cornrnenter stated that animal fats and
vegetable oils are substantially less
harmful to the environment than
petroleum-based oils and suggested that
the rulemaking be amended to
differentiate between types of oils and
provide for a different approach to
response and removal methodologies for
animal fats and vegetable oils than that
required for petroleum oil. EPA
disagrees that the treatment of animal
fats and vegetable oils is inconsistent
with established regulatory principles.
The Agency notes that the definition of
“oil” in the CWA includes oil of any
kind, and that EPA uses this broad
definition in 40 CFR part 110, the
Discharge of Oil rule The applicability
of CWA section 311 regulations to non-
petroleum oils, including potentially
harmful effects of animal and vegetable
oil spills, has already been discussed
the 1987 rulemaking to revise 40 CFR
part 110 EPA considers certain harmful
effects of non-petroleum oil discharges
to be similar to those of petroleum oils,
including the drowning of waterfowl,
fishkills due to increased biological
oxygen demand, asphyxiation of benthic
life, and adverse aesthetic effects (52 FR
10718)
• Three commenters asked that the
definition of “On-Scene Coordinator
(OSC)” be changed to “Federal On-
Scene Coordinator (FOSC)” to
distinguish it from state and local OSCs
As defined, OSC means a federal
official; therefore, there is no need to
modify the terms as suggested or to refer
to the OSC as the FOSC. Also, EPA has
revised the definition of OSC to delete
the second mention of the term
“federal.” for clarification Finally, the
word “government” has been added to
modify the phrase “official designated
by the lead agency” to clarify that the
functions of the OSC cannot be
delegated to non-government personnel.
• Two commenters stated that the
definition of”Removal costs” needs to
be expanded to include cost recovery for
hazardous substance response incidents
The definition, taken from the statute,
clearly indicates that it is limited to
“removal costs” as defined in the OPA
Thus, it correctly relates only to oil spill
response efforts.
• Noting that the OPA imposes a
number of requirements on “Tank
vessels” and “Facilities.” one
commeriter asked that these definitions
be modified to exclude dedicated oil
spill response vessels and temporary
storage tanks The commenter also
requested that the definition of “tank
vessel” not include temporary storage
bladders (TSBs). indicating that the
Customs Service recently clarified that
TSBs used for oil cleanups are not
“vessels” for purposes of the “Jones
Act.” EPA does not believe there is a
compelling reason to use a definition of
“tank vessel” or “facility” in the NCP
that differs from the definition an the
statute. Furthermore, the Agency
believes the comnmenter is raising %‘hat
are fundamentally vessel and facility
response plan issues more appropriately
addressed in the various response plan
rules.
• One commenter asked that the
definition of the term “Trustee” be
expanded to include not only foreign
government officials who may pursue
claims for damages, but anyone who
may have a claim for damages. Section
1006 of the OPA designates trustees and
describes the functions to be carried out
by these trustees. That section does not
envision “anyone who may have a claim
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Federal Register I Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations 47387
for damages” within the range of
individuals who would be designated as
trustees for purposes of pursuing claims
for damages to natural resources. This
does not, however, preclude any
individual from pursuing a claim for
damages other than natural resource
damages.
• One commenter recommended that
EPA clanfy the definition of “Worst
case discharge” to indicate more clearly
that the terms and requirements for
worst case discharges apply only to
discharges of oil and not to releases of
hazardous substances The CWA
definition of worst case discharge
(section 311(a)(24)) does not specify
whether it applies to only oil or to both
oil and hazardous substances regulated
under the CWA. CWA section 311(d)
requires the NO’ to include “procedures
and standards for removing a worst case
discharge of oil * s.” CWA section
311(j)(5) requires tank vessel and facility
response plans addressing worst cases
discharges “of oil or a hazardous
substance “EPA does not want to
further confuse matters by deviating
from the statutory definition The
Agency believes it is sufficiently clear
that NCP § 300 324, “Response to Worst
Case Discharges,” is limited to oil as it
is contained within subpart D,
“Operational Response Phases for Oil
Removal
• One cominenter argued that the
definition of “Worst case discharge” or
largest foreseeable discharge” should
be based on site-specific conditions or
an optional default amount based on the
type of non-transportation-related
facility The conimenter believes that
using options will encourage
installation of additional containment
structures and ultimately reduce the
frequency and size of facility spills EPA
has chosen to rely on the definition
from the OPA, which is amenable to
site-specific applications. Regarding the
role of an optional default amount, the
Agency believes that this is more
appropriately addressed in vessel and
facility response plan regulations
Subpart B—Responsibiiity and
Organization for Response
Section 300 105—General Organization
Concepts
One commenter recommended that a
paragraph be added descnbing the basic
“incident command system” used by
the federal government The commenter
suggested that this would add
credibility to the NO’. because such a
system has been implemented by “the
majority of progressive states and
responsible parties” and “the more
advanced districts and regions of the
Coast Guard and EPA” as the national
standard for organizing spill response.
Another commenter agreed and stated
that this discussion should include a
description of the five response
functions and the federal agencies that
are likely to take the lead in filling each
function. Still another commenter stated
that the “unified command system”
structure: (1) Clarifies that one
individual, the OSC, retains ultimate
decisionmaking authonty; and (2)
reflects appropriate response roles for
other participants such as state OSCs,
responsible parties. and private
contractors 2
The commenters’ recommendations
emphasize the importance of clarifying
the basic framework for the response
management structure in the NO’. EPA
agrees that the NCP should be revised to
address this topic more explicitly New
subparagraphs (d) and (c) have been
added to § 300 105 and 300.305,
respectively, and a new sentence has
been added to the end of subparagraph
(d) of § 300.135 describing the response
management structure as a system (e.g.
a unified command system) that bnngs
together the functions of the federal
government, the state government, and
the responsible party to achieve an
effective and efficient response, where
the OSC maintains authority. (The state
government, at its discretion. may
solicit local government involvement in
this structure ) EPA would like to restate
that although the goal of this structure
is to reach consensus whenever
possible, the OSC always retains the
authority to take all actions that he or
she deems appropnate. Area
Committees will be responsible for
developing detailed response
management structures for their areas
based on the broad guidelines provided
in the NCP
EPA would also like to clarify that
although the national response system
meets the requirements of 29 CFR
1910 120 as an incident command
system, it is not one of the several
systems currently in use by local fire
fighters around the country and
separately referred to as “the”
traditional incident command system
Most of these other response
management systems are patterned after
systems developed by such
organizations as the National Fire
2 Several comments on sections of Subpart B
other than § 300 105 also addressed the incident
command system and the unified command
Because the response presented here encompaases
the concerns raised by those comments, such
comments arc not presented separately in the
preamble MI individual comments and responses
on all sections of Subpart B, as well as other
aubparts. appear in their entirety in the Response
to Comments document
Academy and the National Interagency
Fire Center. These systems were
developed for operations where control
of resources and personnel is placed on
a single incident commander.
The emphasis dunng oil spill
response is on coordination and
cooperation, rather than on a more rigid
system of command and control. The
OSC, the state/local government
representatives, and the responsible
party all are involved with varying
degrees of responsibility. regardless of
the size or seventy of the incident. The
OSC in every case retains the authority
to direct the spill response, and must
direct responses to spills that pose a
substantial threat to the public health or
welfare of the United States In many
situations, however, the OSC will
choose to monitor the actions of the
responsible party and/or state/local
governments and provide support and
advice where appropnate The response
management structure does not attempt
to prescnbe a specific item-by-item
functional description of where
particular organizations or individuals
fit within a single response structure for
a given response. Developing, adopting,
and implementing a response
management system. such as a unified
command system, is the responsibility
of the OSC and the Area Committee,
through the ACP.
The response organization in an ACP
must be designed to recognize two basic
facts (1) All key players in the response
management structure may have job
responsibilities in addition to response
and preparedness, and (2) some of these
responsibilities fall outside the scope of
the NCP and thus would not be subject
to the response structure described in
the ACP
Based on these facts, an area’s
response management system should
recognize that key players will maintain
a separate internal response
management infrastructure during a
response The goal of the areas response
management system is to identify how
those participating in the response
management structure can best
communicate and coordinate with each
other for planning. logistics, finance.
operations, and communications to
ensure effective response coordination
Because the key players differ from area
to area, Area Committees must have the
flexibility to tailor systems to their basic
organization for the specific area It is
beyond the scope of the NCP to
prescribe or endorse a particular version
of incident command, to do so would be
counterproductive to the very purpose
of Area Committees and ACPs.
Four commenters recommended
various changes to Figure 1, “National
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47388 Federal Register I Vol. 59,
No. 178 I Thursday, September 15, 1994 / Rules and Regulations
Response System Concepts.” Each of
these commenters stated that the
responsible party shouid be included in
Figure 1 because the responsible party,
along with the federal OSC and state
OSC, will operate in a triad structure in
the unified command. One of the
(x)mmenters stated that Figure 1 should
reflect the participation of local
governments and tribes on the RRT.
This commenter stated that the current
Figure 1 ultimately will hamper the
efficiency of incident response. because
It does not accurately reflect the roles of
these entities. Three cominenters
recommended that the unified
command be incorporated to more
accurately illustrate the command
structure. Two commenters stated
specifically that the figure should be
revised to show that state and local
responders are accountable to the
federal OSC. One commenter suggested
that two new figures be added, one
showing the organization for planning
and preparedness, and the other
showing the organization for response.
The same commenter also
recommended that, to minimize the
complexity of the national response
system, separate figures should be
created for hazardous substance
(CERCLA) and oil (CWA) responses In
addition, the commenter suggested
consideration of separate figures for
EPA ’s inland zone and USCG’s coastal
zone.
In response to concerns raised by the
commenters, EPA has clarified Figure 1
depicting the national response system
by dividing it into two separate
figures—one for response (Figure Ia)
and the other for planning (Figure Ib).
These new figures illustrate a response
management system (e g . a unified
command system) that brings together
the functions of the Federal
Government, the state government, and
the responsible party to aclueve an
effective and efficient response, where
the OSC maintains authority EPA
believes that Figure Ia illustrates clearly
that the OSC always retains the
authority to take all actions that he or
she deems appropriate.
Footnote 2 to Figure lb references
coordination with other existing
response plans prepared under the OPA
and other statutes information from
such industry plans should be
considered by Area Committees in
developing and improving ACPs This
includes information that becomes
available from nsk management plans
prepared under section 112(r) of the
Clean Air Act, as well 8 S from other
federally mandated plans EPA believes
that this information not only will be
useful in developing contingency plans.
but that consideration of such
information also will help avoid
unnecessary overlap and duplication of
plAnning requirements.
Local governments are not shown on
the RRT in Figure lb because they
participate only at the discretion of the
state. Indian tribes are not shown
separately because they are included in
the definition of the term “State” as
used in the NCP ( 300 5).
With regard to the recommendations
to develop separate figures for
hazardous substances and oil responses
as well as for coastal zone and inland
zone responses, EPA believes that the
new response and preparedness figures
present a useful summary of the
national response system that accurately
reflects all of these categories of
responses The four additional figures,
therefore, are unnecessary and have not
been included
One commenter suggested including a
statement regarding the Federal
Government’s oversight role in
situations where the responsible party is
responding adequately. The commenter
explained that the government’s
response role includes oversight as well
as cleanup, but that oversight appears to
have been overlooked throughout the
preamble and proposed nile.
Section 300.305(d) (formerly (c)) of
the NCP provides that, except in a case
when the OSC is required to direct the
response to a discharge that may pose a
substantial threat to the public health or
welfare of the United States, the OSC
may allow the responsible party to
voluntarily and promptly perform
removal actions, provided the USC
determines such actions will ensure an
effective and immediate removal of the
discharge or mitigation or prevention of
a substantial threat of a discharge. If the
responsible party does conduct the
removal, the OSC shall ensure adequate
surveillance over whatever actions are
initiated The Agency believes that this
provision provides adequate guidance
regarding the OSC’s oversight role
during responsible party removal
actions. Additional detail on this topic
in the NCP would unnecessarily limit
the flexibility of the OSC in choosing
and implementing appropriate oversight
activities
Section 300.110—National Response
Team
Seven commenters expressed concern
regarding the membership and
responsibilities of the NRT These
commenters suggested that states,
responsible parties, and cleanup
contractors either be represented on the
NRT or have input into response
decisions
One commenter reasoned that state
representation on the NRT would
increase recognition of the state role in
federal response action. Other
commenters noted that the decisions of
the NRT affect the planning,
preparedness, and, ultimately, response
actions of responsible parties and that
such parties have technical expertise
that could be valuable in NRT meetings
One commenter believed that the
proposed rule did not encourage the
NRT to solicit input from stakeholders
The commenter also suggested that all
workgroup meetings conducted in
conjunction with NRT meetings be open
to the public to encourage improved
communication on planning and
response issues. Another commenter
recommended that cleanup contractors
be included in the decisionmaking
committees and scientific support
described in the NO’. This cominenter
reasoned that federal and state
government personnel do not physically
clean up spills: instead, it is the private
contractors who are hired by the
responsible party or government agency
and who consequently have hands-on
knowledge of and experience with state-
of-the-art cleanup techniques. Two
comrnenters suggested that, in contrast
to the Area Committees, many of the
RRT subcommittees are completely
closed to private parties.
EPA agrees that input from states and
private parties helps the NRT to
function more effectively and that
private party involvement with the
RRTs can have the same result States
and private parties are encouraged to
attend NRT meetings and in the case of
private parties, RRT meetings Those
who wish to attend should contact the
NRT Secretary or RRT co-chairs so that
appropnate logistical arrangements can
be made. In some instances, however,
attendance by states or pnvate parties
may not be feasible or appropriate. For
example, although the meetings of the
standing RRT are open, the meetings of
the RRT in executive session or as an
incident-specific team are not open to
private parties because this would
interfere with inherently governmental
functions. Specifically, attendance and
participation by private parties could
slow certain time-critical decisions,
such as which particular federal, state or
local government, or private party
resources the RRT should request to
respond to a discharge or release
Section 300 115—Regional Response
Teams
Three commenters believed that local
governments should not be represented
on the RRT because the RRT should not
become overwhelmed by local
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Federal R.egi er / Vol.59 . No. 178 / Thursday. September 15, 1994 1 Rules and Regulations 47389
representatives if it is to be effective in
addressing regional issues during
emergency responses. One of these
commenters explained that state
representatives could coordinate with
local goveriunents and communicate
their issues to the RRT Under
§300 115. local governments are
represented directly on the RRT by the
state, and local input is coordinated
through the state’s representative. EPA
believes this is an efficient means of
local government representation on the
RRT that does not impair the
effectiveness of the RRT to address
regional issues.
Three commenters argued that RRTs
should not duplicate the planning role
of the Area Committees because RRTs
are not mentioned and have no statutory
basis in the OPA One of these
commenters recommended that RRT
members participate in Area
Committees directly, rather than
through the RRT One conimenter
suggested that the NCP “find a real
place for the RRT within the Iincident
command system) structure or consider
eliminating this body.” This
commenter’s major concern appears to
be that the RRT structure assumes one
state agency can represent all state and
local entities, but the federal
government must be represented by 16
agencies According to the cominenter,
this seriously undermines RRT
credibility at the state and local level
EPA believes there are several
significant distinctions between the
geographic responsibilities of RRTs and
Area Committees that impart unique
and essential functions to the two
entities Regions are envisioned to have
mult]ple areas, in its planmng and
coordination role, the RRT provides
oversight and cobsistency review for
areas within a given region. This
includes facilitating the process of
ensuring that Area Conimnittees within a
region are mutually supportive and that
links to extra-regional response
concerns, considerations, and
capabilities are maintained This
regionaliarea approach allows local area
personnel to focus on specific issues
such as risks, sensitive area
priontization, and response strategies
that need to be tailored to a smaller,
more manageable geographic scale
With regard to state representation on
the RRT. the purpose of having a single
representative is to make it possible for
the state, rather than the RRT itself, to
resolve intra-state disagreements States
may designate at least one alternate
member to attend RRT meetings as a
way to better ensure intra-state
coordination, for example, between the
state agency handling emergency
response end the environmental agency,
health agency. and the State Emergency
Response Cjicnmitfion (SERC).
‘l wo cornuienters stated that the role
of the RRT during response should be
limited to providing support to the OSC,
upon request. as part of the unified
command structure. The commenters
argued that at no lime should a specific
RRT be given an operational role in
response without placing that role in the
unifying context of the incident
command system.
EPA believes that the coinmenters’
recommendation for the RRT members
to provide response support to the OSC
is already consistent with the current
national response system, wben
implemented during spiU cleanup
operations. Although the RRT is a
separate and distinct entity with clearly
defined roles, this does not bar
individual RRT members from being
part of the USC’s support staff during a
response In fact, the very structure of
the RRT indicates that it may be
activated to supply individual members
in support of response actions. The two
pnncipal components of the RRT are a
standing Learn and an incident-specific
team. The latter is formed from the
standing team to support the OSC/
Remedial Project Manager (RPM) when
the RRT is activated for response to a
specific discharge or release (see
§ 300.115(b)).
One comnmenter noted that
§g300.115(i)(6), 300.205(c)(3), and
300.210(c)(3)(iv) reference advance
planning and expedited decisionreaking
for use of dispersants, surface washing
agents, surface collecting agents,
burning agents, bioremediation agents,
or other chemical agents The
commenter suggested adding the
following language, consistent with
§ 300.310(c). “a a and in accordance
with any applicable laws, regulations, or
requirements * “The
recommended clarification has been
made in §300 115(i)(6) of the final rule
The language in § 300.205(c)(3) and
300.210(c)(3)(iv) is taken directly from
the OPA and has, therefore, not been
changed.
Section 300 120—On-Scene
Coordinators and Remedial Project
Managers: General Resporisibthties
Two commenters stated that the NCP
should specify minimum qualifications
(education and experience) and training
requirements for Federal OSCs and
other response personnel The
commenters reasoned that the OSC has
ultimate responsibility for the spill
response effort and therefore must have
sufficient knowledge, training, and skill
to perform effectively and gain the
confidence of the public and the
response community.
EPA agrees that appropriate training
enables OSCs to effectively carry out
their responsibilities In addition, the
relevant Federal agencies (EPA and
USCG for oil discharges) are aware of
their responsibilities under the NC? and
will put the best qualiried OSC on the
job EPA does not agree, however, that
the NO’ should require lead agencies to
identify minimum qualifications and
training requirements for OSCs and
other response personnel The lead
agency instead should have adequate
flexibility to decide on appropriate
operating procedures that, for the
particular agency, will best ensure
adequately trained OSCs arid other
response personnel
One coinmenter recommended that
§ 300 120(8) explicitly state that the
Federal OSC’s authonty is sufficient to
ovemde any otherwise applicable
Federal. State. and local requirements
The commenter reasoned that
compliance with all requirements may
not be practicable, particularly if the
requirement was established without
considering the special circumstances of
emergency response
EPA does not believe that the
provision suggested by the commenter—
essentially preempting all Federal and
State law when the OSC directs
response to a discharge—is authorized
by the OPA Furthermore, adding such
a provision to the NCP appears to be
unnecessary Section 311(c)(1) of the
CWA, as amended by the OPA, gives the
OSC authority to “direct or monitor all
Federal. State, and private actions to
remove a discharge “The same
provision also authorizes the USC to
remove or arrange for the removal of a
discharge and to remove and, if
necessary, destroy a vessel that is
discharging In addition, if a discharge
poses a substantial threat to the public
health or welfare of the United States,
CWA section 311(c)(2), as amended,
requires the OSC to direct all Federal,
State, and private actions to remove the
discharge and gives the OSC authority
to carry out the other actions mentioned
in section 311(c)U) “without regard to
any other provision of law governing
contracting procedures or employment
of personnel by the Federal
Government”
Congress explicitly provided for
limited preemption only for contracting
and employment laws and this limited
preemption applies only when a
discharge poses a substantial threat to
the public health or welfare of the
United States There is no express
indication that Congress intended to
preempt all Federal and State
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47390 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 I Rules and R9gulations
requirements with respect to other
discharges.
Several commenters stated that
although the Federal OSC may have
authority over the responsible party, the
OSC does not have authority to direct
State or local agency actions. As
mentioned above, CWA section 311(c),
as amended by the OPA, provides that
the OSC “may direct or monitor all
Federal, State, and pnvate actions to
remove a discharge,” and, in the case of
a substantial threat to the public health
or welfare of the United States, must
direct such actions Thus, it is clear that
the USC has the authority to direct State
or private actions
With regard to local actions, the
legislative history of the OPA indicates
that there was no intent to exclude these
from the President’s authority to direct.
The Conference Report states that
section 201(b) of the Senate bill
amended CWA section 311(d) “to
require the President to coordinate and
direct all public and private cleanup
efforts whenever there is a substantial
threat of a pollution hazard to the public
health or welfare * * “ (emphasis
added) Section 4201 of the House bill
amends CWA section 311(c)(1) to
authonze the President to “direct the
actions of oil on-scene personnel, and
monitor all removal actions” (emphasis
added). Furthermore, in discussing the
new requirements to direct responses to
spills that pose a substantial threat to
the public health or welfare of the
United States, the Conference Report
states “Itjhis subsection is designed to
eliminate the confusion evident in
recent spills where the lack of clear
delineation of command and
management responsibility impeded
prompt and effective response “(H R
Report No 101—653, 10 1st Congress, 2d
Sess , at pp 144—46 ) In Light of these
statements from the Conference Report,
Congress could not have intended that
local response actions be treated any
differently from Federal, State, and
private response actions with regard to
the President’s authority to direct.
One cominenter stated that
§ 300 120(e) should indicate that the
OSC coordinates, directs, and reviews
the work of other agencies in
contingency planning and removal The
commenter asserted that proposed
§ 300 120 could be read to give the USC
broader responsibilities in coordination,
direction, and reviewing the work of
other agencies EPA agrees that the OSC
should not review the work of other
agencies in activities other than
contingency planning and removal.
Section 300 120(e) has been revised to
clarify this point.
Section 300.135—Response Operations
One commenter recommended that
the federal OSC’s responsibilities in a
response coordinated by a state or local
USC be clarified. The commenter stated
that this should help ensure that spill
response actions are consistent with the
NCP, regardless of whether there is a
federal, state, or local OSC The
commenter indicated that it has had
experience with several spills for which
the federal USC did not go on-scene and
did not access the OSLTF for removal
actions. The commenter suggested that
this has interfered with removal
activities that it deemed necessary to
ensure appropriate treatment of
resources for which it had trust
responsibilities.
For any issues concerning a spill
response, the OSC should be contacted
first, whether or not the OSC is on-
scene. However, it is important to note
that the OSC is required to coordinate
with the natural resource trustees on
any removal action to be taken. If
problems arise in the way these
relationships are being implemented,
such problems should be resolved at the
area level during the Area Comrnittee/
area contingency planning process.
Another commenter objected to the
requirement that the federal USC
consult with the affected trustees on the
appropriate removal action to be taken
if this could result in cleanup
contractors missing the “window of
opportunity” for using dispersants,
burning, and containment arid removal
techniques to effectively address a spill.
Section 1011 of the OPA states that
“The President shall consult with the
affected trustees designated under
section 1006 on the appropriate removal
action to be taken in connection with
any discharge of oil.” Although this
responsibility has been delegated from
the President to the USC, the language
to which the commenter objects is
statutorily required by the OPA in
addition, the potential for delay with
which the commenter is concerned will
be alleviated through the preplanning
that is required for the use of
dispersants. burning agents. surface
washing agents, surface collecting
agents, bioremediation agents, and
miscellaneous oil spill control agents
(see § 300 910). Finally, it is important
to note that consultation with the
trustees does not mean that the OSC
must obtain the concurrence of the
trustees, although such concurrence is
highly desirable. Ultimately the USC,
consistent with § 300 120 and 300.125,
has the authonty to direct response
efforts and coordinate all other efforts at
the scene of a discharge.
Section 300.145—Special Teams and
Other Assistance Avwlable to OSCs
RPMs
One cominenter recommended that
the NOAA Scientific Support
Coordinator (SSC) be the primary
technical advisor to the federal OSC
during a spill response and be the focal
point for decisions regarding “how
clean is clean “The commenter
explained that NOAA is the federal
agency with the greatest expertise on the
fate, behavior, and effects of oil and the
effectiveness of countermeasures,
including ecological considerations The
commenter concluded that with so
many competing interests coming into
play in a spill response, this type of
decision should be based on science,
and NOAA is the appropnate player to
present recommendations to the federal
OSC
The NOAA SSCs and EPA’s
Environmental Response Team support
the OSC on technical/scientific matters,
as described in § 300 145. The OSC,
however, remains the ultimate
decisioninaking authority for spill
response. While the SSCs have
considerable scientific specialization
and, therefore, may be the appropnate
resource to provide recommendatioir’ ‘
the USC on issues regarding “how
is clean” during a response action, t..
USC must be the focal point for making
such decisions
One cominenter stated that proposed
§5300.5, 300 305, and 300 615.
Appendix E Sections 1.5 and 5 5 2. and
the preamble language accompanying
§ 300 145 convey the inaccurate
impression that trustees obtain funding
to initiate a natural resource damage
assessment (NRDA) and reimbursement
for injuries to natural resources from the
OSC The cornmenter clarified that
funding for initiation of NRDAs may be
obtained from the OPA Emergency Fund
upon application by the Federal lead
administrative trustee directly to the
National Pollution Funds Center (NPFC)
of the Coast Guard. The OSLTF may
also be used to pay for injury to natural
resources The commenter
recommended that the following
language be added throughout the
preamble, rule, and Appendix E “The
Federal lead administrative trustee
facilitates effective and efficient
communication between the USC and
the other Federal trustees during
response operations and is responsible
for applying to the OSC for non-
monetary Federal response resourc’
behalf of all trustees The Federal h
administrative trustee is also
responsible for applying to the NPFC for
funding for initiation of damage
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Federal_Register I Vol. 59, No. 178 I Thursday, September 15, 1994 / Rules and Regulations 47391
assessment and claims for injuries to
natural resources.”
EPA agrees with the recommended
revision, except for the phrase “and
claims.” which is an inaccurate
statement of lead administrative trustee
responsibilities. Thus, the requested
revision, as modified, has been
incorporated into the preamble,
§ 300.305 and 300 615 of the final rule.
and Section 5.5.2 of Appendix E.
Language with the same intent that
vanes slightly from this wording has
been used in § 300.5 and Appendi.x E
Section 1 5 so that the definition of lead
administrative trustee conforms to the
proposed NOAA damage assessment
regulation (59 FR 1062, January 7, 1994)
(see preamble discussion of § 300 5)
One cornrnenter recommended that
specific language describing SUPSALV
as a Special Team be added to
§ 300.145. The language proposed by the
commenter to be added to § 300 145 as
new subparagraph (d)(i) is already
included in the description of the U S.
Navy in § 300.175. The remaining
subparagraphs, however, provide a
useful description of SUPSALV as a
Special Team and therefore have been
added to § 300.145.
Section 300.1 50—Worker Health and
Safety
One commenter recommended that
the NCP clarify the applicable Federal.
State, and local roles in deterrnining and
enforcing worker training and safety
requirements, particularly in the
maritime environment where there is
the greatest potential for overlapping
jurisdiction The commenter asserted
that two agencies, USCG and the
Occupational Safety and Health
Administration (OSHA), potentially are
charged with enforcing worker safety
requirements during spill response The
commenter explained that it is essential
that safety training requirements be
established and clearly understood so
that appropriate trauung can be
conducted prior to an actual spill. The
commenter further stated that it is
critical at the U.rne of the spill for one
individual to assume responsibility for
making decisions if there is confusion or
disagreement regarding worker safety.
health, or training
The OSC already is the senior official
in charge of worker safety, health, and
training requirements during a spill
response under the NCP The OSC is
encouraged to undertake early
coordination on all worker health and
safety issues Furthermore, the OSC in
this capacity is required to comply with
all applicable OSHA regulations The
details involved in implementing these
requirements will be addressed dunng
the Area Committee/area contingency
plAnning process. Thus, EPA does not
believe that the recommended
additional language is necessary.
Section 300.155—Public Information
and Community Relations
One commenter suggested that
prompt, accurate Information
dissemination to the public should be
coordinated through a Joint Information
Center. an entity with functions similar
to the current on-scene news office
authorized by § 300.155(b) The
commenter explained that the current
proposal addresses only federal
government public relations and should
be expanded to include public relations
efforts of state, local, and private
entities
EPA has revised § 300 155(a) to state
that the OSCJRPM should coordinate
with available public affairs/community
relations resources to ensure that all
appropriate interests are considered by
establishing, as appropriate, an on-scene
Joint information Center bringing
together resources from federal and state
agencies and the responsible party.
Experience shows that there are some
situations when a Joint Information
Center is essential to provide adequate
coordination of information to the
public from federal and state authorities
during an event. In other response
actions, a less formal mechanism may
be adequate. In the final analysis, it is
within the OSC’s discretion to
determine whether to establish a Joint
information Center during an event.
This issue should be addressed during
the area contingency planning process
Section 300 1 65—OSC Reports
Two commenters questioned the
appropriateness of eliminating the
requirement to prepare OSC reports
One of these commenters suggested that
if the requirement is eliminated, the
pollution reports and log books from a
major spill must be transmitted to a
central repository The commenter
reasoned that records of how effectively
mechanical equipment and other spill
mitigating measures performed dunng
an actual spill is precisely the type of
information that should be transmitted
to RRTs and Area Committees for their
consideration The other commenter
stated that the final rule should clarify
the purpose of this change and how EPA
intends to address after action reporting
and cost recovery
The original purpose of the OSC
report was to summarize activities at the
site and to communicate lessons
learned, discuss any problems
encountered in the response, and
recommend improvements that need to
be shared throughout the response
community Under the NCP, even
without a requirement to prepare an
OSC report in every instance, the NRT
or an RRT can request that an OSC/RPM
submit a complete report on the removal
actions taken, including the resources
committed and the problems
encountered EPA has reassessed the
desirability of requiring an OSC report
for all responses to major discharges or
releases and determined that such a
report will not be required
automatically. The already considerable
tune demands placed on the OSC have
increased dramatically with the
enactment of the OPA. Preparing OSC
reports is an additional paperwork
burden that is not statutorily mandated
Furthermore, most important
information contained in the OSC
report—including lessons learned in
specific responses and documentation
needed for after action reporting and
cost recovery—will be available from
other materials prepared by the OSC.
including the pollution report and the
OSC log book. The pollution reports are
kept in a central repository and are
available to the public. Additional
incentive to make this information
available comes from the need to keep
ACPs current and an increased need to
share lessons learned. For example, the
National Preparedness for Response
Exercise Program (PREP) provides
exercise guidelines applicable to OSCs
as well as industry Many of these
guidel.ines can be met by aggressive
evaluation of the response and lessons
learned (the essence of the OSC report)
Also, PREP currently is developing a
proposal to establish a national data
base for documenting lessons learned
Both government and industry will have
access to this data base for entering data
and the public will have access for
retrieving data.
Section 300 170—Federal Agency
Participation
Three commenters asked that
§ 300 170(d) be changed to require
federal agencies to report releases,
rather than simply encouraging them to
do so Section 300 170(c) states that all
federal agencies are responsible for
reporting releases of hazardous
substances from facilities or vessels
under their unsdiction or control in
accordance with section 103 of
GERCLA. Section 300.170(d) refers to
pollutants or contaminants, it is not a
requirement of federal agencies or any
other organization or person to report
releases of pollutants or contaminants
that are not defined by CERCLA as
hazardous substances EPA agrees,
however, that if a federal agency
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47392 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
discharges oil in an amount above the
threshold quantity as defined by 40 CFR
part 110. the agency is required to report
that discharge. Therefore, the language
of 300.17O(d) has been revised in the
fiuial rule to indicate that federal
agencies must report discharges of oil,
as required in 40 CFR part 110.
Section 300 175—Federal Agencies:
AdditionoJ ResponsibiLities and
Assistance
One cominenter recommended that
the NCP specify the oil discharge
contingency planning responsibilities of
the Department of Transportation’s
(DOT’s) Office of Pipeline Safety, DOT’s
Research and Special Programs
Administration, and the DOl’s Minerals
Management Service (MMS) The
commenter explained that each of these
entities has issued proposed or final
regulations on response planning
requirements for vessels, pipelines, and
other means of transport The
commenter further recommended that
the NC !’ incorporate a provision that the
requirements of these federal agencies
must be consistent.
The commenter’s recommendations
provide a more complete description of
the contingency planning
responsibilities of federal agencies
under the OPA by specifying the
responsibilities of DOT and MMS.
Therefore, EPA has revised § 300.175, as
appropnate. Regarding a “consistency
requirement.” CWA section 311(j). as
amended, requires facility response
plans to be consistent with AD’s EPA
does not believe, however, that this type
of consistency requirement needs to be
included in the NO’, because the NO’
is not the appropriate forum for
harmonizing the response planning
requirements of va.rious federal
agencies
One commenter suggested that
proposed § 300.1 75( ’b)( 11 )(ii) could
result in resource problems, as well as
potential legal and enforcement
difficulties, for OSHA The com.menter
believed that the proposed provision
could be interpreted as requinng OSHA
to develop and maintain site safety
plans The comrnenter was especially
concerned that development and
maintenance of these plans could be
interpreted as approval of the plans and
that such an interpretation would make
it more difficult for OSHA to exercise its
enforcement responsibilities EPA has
revised § 300 175(b)(1I)(ii) to indicate
that OSHA has flexibility to provide
advice and consultation on occupational
safety and health issues, as appropriate
for a particular response For purposes
of clarification, EPA would like to note
that assistance provided by OSHA may
inciude, to the extent practicable,
reviewing and proposing improvements
to site safety plans, exposure monitoring
protocols, work practices, and helping
with other compliance questions. These
activities should be accomplished as a
cooperative effort between the OSC and
the OSHA representative
One commenter suggested that the
description of the National Response
Center in § 300 175 (b)(16) be deleted
because much of this information is
covered in § 300 125. The commeriter
also noted that the requirement in
§300.175(b)(16) for notices of
discharges to be made telephonically
should apply to discharges and releases
EPA agrees and has deleted
subparagraph (b)(16) of § 300 175 and
has revised the relevant portion of
§ 300.125 to read “Notice of discharges
and releases roust be made
telephonically * *
Several commenters recommended
various editorial changes to the
responsibilities of federal agencies in
§ 300 175. For example, one commenter
requested that the term “Radiological
Assistance Coordinating Office” be
replaced with the term “Radiological
Assistance Program Regional Office” in
§ 300 175(b)(5). Another commenter
recommended that § 300 175(b)(9)(i) be
revised to add the phrase “and other
bureaus” at the end of the description
of the Fish and Wildlife Service’s
responsibilities The reason for this
change is that several bureaus of DO!
have expertise in determining the effects
of oil and hazardous substances on
natural resources EPA has incorporated
these and several other editorial
changes In addition to the changes
recommended by the commenters, EPA
has clarified the description of its own
scientific expertise by adding references
to human health and ecological risk
assessment and by providing
information on how to access this
expertise
Section 300 180—State and Local
Participation in Response
One cornmer iter suggested that the
response role of Indian tribes be
included in its own section The
commenter reasoned that although
many sections of the NO’ treat Indian
tribes as states, in reality, they are
trustees far natural resources belonging
to or controlled by the tribes
Section 300 180(b) explains that
Indian tribes have the opportunity to
participate as part of the response
structure, as provided in the ACP State
and Indian tribe representatives also
may participate fully in all activities of
the appropriate RRT.
Furthermore, § 300.305 specificaP
defines “states” to include Indian Li
for purposes of the NO’, unless
otherwise noted. Thus, the provisions
referred to by the commenter, by
definition, reflect the appropriate role of
Indian tribes.
One commenter stated that the NCP
should not alter the state’s role an dJ or
title for federal or state-lead response
operations. The comnienter
recommended that § 300.180(a) be
revised to read “This agency is
responsible for designating the (State
On-Scene Coordinator) SOSC/RPM for
federal and/or state-lead response
actions, and coordinating/
communicating with any other state
agencies, as appropriate.” The
commenter reasoned that the NC!’
should provide more flexibility to honor
the many ACPs that are being developed
and to recognize the importance of the
state in response to spills of oil or
hazardous materials
EPA generally agrees with the
sentiment expressed by the commenter.
The Agency has modified the language
suggested by the conimenter for
inclusion in § 300 180 to read as
follows “This agency is responsible for
designating the lead state response
official for federal and/or state-lead
response actions * * “ The reasot.
these modifications to the commenter’s
language is to provide the state with
maximum flexibility in establishing a
title for its lead response official, while
still recognizing the important role
states play in incident response
Another comrnenter recommended
that the NCP encourage states to enter
into Memoranda of Understanding with
the federal government to coordinate
response-related procedures and
resources Although EPA recognizes thifi
Memoranda of Understanding between
states and the federal government to
coordinate response procedures and
resources may be beneficial, these
arrangements can occur without being
stipulated in the NCP and therefore the
recommended language is unnecessary
Section 300.185—Nongovernmental
Participation
One comm enter staled that the NC!’
should require the appropriate response
role for volunteers to be mandated in
ACPs In particular, the commeriter
suggested that ACPs mandate that
volunteers, if used. be directed by the
federal OSC and that ACPs specify
training requirements for each Tespor
function that volunteers are permitt€
perform (a g , clerical support, beach
surveillance, logistical support, wildlife
treatment) The commenter also
recommended language in the NCP
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Federal Register I Vol. 59,
No. 178 / Thursday. September 15. 1994 / Rules and Regulations 47393
prohibiting the use of volunteers in
circumstances that expose them to
contaminants above “permissible
exposure limits.”
EPA agrees with the sentiment
expressed by the comrnenter, in
particular, the concept of using
volunteers for clerical support
However, these are implementation
issues that are most appropriately
addressed at the area level, rather than
in the NCP
A different commenter requested that
the NC? language place fewer
restrictions on the use of volunteers.
The comrnenter explained that use of
volunteers should be determined by
Federal and State OSCs and responsible
parties through the unified command.
EPA believes that the use of
volunteers should be determined by the
OSC/RPM within the response
management system that includes state
government, local government, and the
responsible party. The relevant language
in § 300 185 will be retained in the final
rule because this aUows the OSCJRPM
to consider potential legal and logistical
issues that may restrict the use of
volun Leers under certain circumstances
Two commenters objected to the
statement in proposed § 300.185(a) that
entities required to develop tank vessel
and facility response plans should
commit sufficient resources to
implement the non’Worst Case
Discharge aspects of those plans One of
the commenters suggested that this
statement be deleted and the other
commenter recommended that the term
“should’ be replaced with “shall”.
OPA section 4202(a)(6) descnbes the
requirement for owners and operators of
tank vessels and facilities to prepare
response plans The OPA states that
these response plans must be sufficient
to respond to a Worst Case Discharge. to
the maximum extent practicable
However, facility and vessel response
plans are also required to contain
certain other provisions and
information For example, under the
OPA, response plans must (1) be
consistent with the NCP and ACPs. (2)
identify a qualified individual having
full authority to implement removal
actions, and (3) describe the training.
equipment testing, periodic
unannounced drills, and response
actions on the vessel or at the facthtv
A regulation recently promulgated by
EPA at 40 CFR part 112 implement.s the
broad OPA requirements for onshore:
non transportabon-related facilities trial,
because of their location, “could
reasonably be expected to cause
substantial harm to the environment as
a result of discharges (59 FR 34070. July
1, 1994) Under that final rule, own
and operators of ‘substantial harm
facilities” must prepare plans to
respond to a Worst Case Discharge. and
to small and medium discharges, as
appropriate. In the preamble to the
facility response plan final rule, EPA
explained that the requirement to plan
for several different spill sizes (not just
for Worst Case Discharges) is consistent
with the implementation of OPA
response planning requirements by
other agencies, including the (JSCG (see
58 FR 2358, Februar ’ 5, 1993).
EPA believes that it adopted a
reasonable approach in the proposed
NC? revisions by indicating that
commitment of resources needed to
implement the non-worst case discharge
provisions is discretionary, rather than
mandatory, because the facility response
plan rulemaking had not yet been
finalized EPA has revised the language
in § 300 185 olthe NCP In loday’s rule
to reflect the fact that the new
requirements for facility response plans
have now been finalized In 40 CFR pert
112 The most significant change is that
the term “should” has been changed to
“shall”, as recommended by one of the
comm enters
Subpart C—Planning and
Preparedness—Overall Comments
Three commenters recommended
taking greater measures to Involve the
pnvate sector. Including Industry. In the
planning and preparedness process and
the national response system. especially
in the development of the Regional
Contingency Plans (RC?sl and ACPs
One of these commenters noted that
existing law and regulations requls
facility and tank essel owners to ‘ry
out preparedness and response
activities, vet current proposed l.anriag,
discourages pn Io ,ector ID put arid
efforts into the nation,al re porse
system _______
EPA belie es the NO’ i t ’ j JZ l the
important coatnbutic private pur’ ?es
can and do make in the plannin4 ar
response processes Fw ez .are pIe. wrth
regard to planning. pnv p ’ti plae
an essential role in the e
local emerg 7 respe ’aP p a.ns th *i
their pasticipstsorl Lrie-al E e-
Planning Ccanmitte’si (UYCa
Nongovertimtn PJ paF sci si* .
response is encaurs ed m $3
the NO’. Fu.thern rw. EPA
private .n it)es to partiC P
the p” ‘ ‘ ____
and app l” m a- ____
%%‘itb ,eprd to area in , ” - i
planning. the C ’A th
Con’ .tmn e to w - i p
oet’SOUD frt : ,E% er4
genoeL H vi . A .
advice, guidance, and expertise from all
appropriate sources, including facility
owners and operators, cleanup
contractors, and other qualified private
entities. This position is consistent with
the views expressed in both the EPA
and USCC Federal Register notices on
area and Area Committee designations
Two commenters believed there are
instances in the proposed rule where
implied responsibilities of Area
Committees are not consistent with
those stated in § 300.205 and 300 210
The comrnenters stated that while
Subpart C clearly establishes a planning
role for Area Committees, other parts of
the proposal give them a more
expansive role, including training and
evaluation of preparedness The
commenters argued that these roles are
outside the scope of the law and not
appropriate for Area Committees EPA
notes that response preparedness is an
ongoing process. which requires that
existing systems be tested and improved
upon. The Agency, therefore, believes
that the duties granted to the Area
Committees in the NC?, such as training
and evaluation of preparedness, are
consistent with the OPA mandate
concerning the Area Committees’
responsibilities for response planning
and preparedness.
In response to a number of comments
that, in some w .v seek clarification
regarding the various plans described in
this subpart and their relationship to
one another, EPA has prepared an
additional figure (Figure 4) for inclusion
in this subpart of the NCP following
4 300 205
Section 300 200—Genera)
One commnenier suggested that an
obvious omission from this section is
any reference to the tank vessel or
facility plan prepare: and responsible
party. and recommended that it be
to this section and throughout the
NO’ EPA agrees that discussion of
Lhs plan. in Subpart C sould be
helpful and has added new § 300 205(f)
and 300211 in response to ti u
ce it .
-t.r ’,, )OO.. ’O 5 —PIorwing and
C jstion Structure
U c .me t sti’ongh’ urged the
____ i the Area Cornniittee as
• l, r aJ planning bad v because
a 5riialZ tic i 3 bite been
in an open and cooperative
th, paia.age of the OPA
criezi :,r aiso argued that
at th . keel (ti °PPosed to th
h’uef is much mt ’eeffi ent e
‘! te’spe 5z 1ivlties,
of
Us’ ar 5 , In
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47394 Federal Register I Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
addition, the comrnenter stated,
planning at this level would make it
easier for states to participate. since they
would not have to use limited travel
funds to attend meetings at the regrnnal
level
While the Agency agrees that area-
level planning is critical to the
effectiveness of the national response
system. EPA does not believe that the
area contingeriC ) planning structure
precludes or supplants regional
planning activities While some local
issues, such as development of certain
portions of Fish and Wildhfe and
Sensitive Environments Plan (FWSEP)
Annexes, are best handled at the area
level, other planning issues, such as
cross-area planning and preparedness
coordination, are more appropriate for
the regional level in addition, RRTs
have important response coordination
responsibilities at the regional level
One coinmeriter believed that state
participation should be expressly
encouraged in the planning and
coordination structure (i.e , Area
Committees) of the national response
system and that states should be
described as full partners in the
planning process That coznmenter also
added that the federal government’s
ability to enter into Memoranda of
Understanding with states should be
noted in the NCP. Memoranda of
Understanding are a useful mechanism
for clarifying response resources and
minimizing potential
misunderstandings or conflicts during
an incident
EPA recognizes that states and local
governments are integral parts of the
area-level planning process and are
strongly encouraged to participate in
their respective A.rea Committees The
Agency believes that this concept,
grounded in the strong commitment to
state and local involvement found in the
OPA, is clearly reflected in the NCP
preamble and rule language
promulgated today, In addition, because
the ACP is a product of federal, state,
and local response planning
coordination, the Agency believes that
Memoranda of Understanding between
the federal government and states to
accomplish this coordination are
unnecessary
One commenter asked for a better
explanation for determining who is
qualified to sit on an Area Comnuttee
and the process for selecting and, as
necessary, funding the participation of
committee members. Several
commenters believed that Area
Committees should include the private
sector or seek input and advice from
private sector entities during the
planning process One cornmenter
strongly recommended that Regional
Citizens’ Advisory Councils (RCACs), as
well as representatives of municipal
government, LEPCs, villages, and other
locally elected bodies should be
specifically listed as participants on
Area Committees.
The OPA directs the President to
appoint qualified personnel of federal,
state, and local agencies to the Area
Committees Thus, the OPA does not
permit private membership on Area
Committees This does not mean,
however, that EPA seeks to exclude
others from participating in the area
contingency planning process It is left
to the discretion of the Area Committees
to deQde how they will integrate into
this process response experts and other
persons and groups with interest in artdl
or responsibilities for the environmental
integnty of the area Area Committees
may establish subcommittees or
workgroups as the forum for obtaining
advice and guidance from such parties.
The OPA does not specify the criteria
for determining who is ‘qualified” to be
on Area committees This determination
is, therefore, left to the discretion of the
Secretary of Transportation and the EPA
Administrator. Interested parties may
contact the OSC for their area, or refer
to the April 24, 1992, EPA/USCG
Federal Register notice (57 FR 15198)
for further information concerning Area
Committees and membership selection
One commenter urged that the
requirement for preauthorization
planning contained in
§ 300 210(c)(4)(ii)(D) be added to the
Area Committees’ responsibilities under
§ 300 205(a)(3) and that the
requirements applicable to such plans
should appear in the Area Committee
discussion The commenter believed it
is critical that the Area Committees
conduct preauthorization planning pnor
to an emergency event to resolve issues
of limited field data and maccurate or
uninformed opinions by interested
participants
Another commenter stated that the
proposed revisions (i e ,requinng both
Area Committees and RRTs to approve
dispersant use) would likely discourage
and impede decisions on the use of
dispersants and other spill mitigating
chemical agents and devices The
commenter recommended that the Area
Committees take the lead on making the
decision, while the RRTs serve in an
advisory role
EPA proposed revisions to § 300.910
and 300 210 to require that Area
Committees be actively involved in the
preauthonzation process and that, as
part of their planning activities, they
develop preauthonzation plans that
address the desirability of using
appropriate products on the Product
Schedule. The Agency believes that
language in § 300.21 0(c)(4)(ii)(D
sufficiently addresses the Area
Committees’ responsibilities to provide
for preapproval plans as part of the
FWSEP Annex to the ACP. The
commenter’s suggested rule language is,
therefore, unnecessary
With regard to the requirement that
both the Area Committee and RRT
approve dispersant use, the Agency
agrees that preauthorization of
dispersarits and other spill mitigating
chemical agents and devices is critical
to effective spill response planning
However, the OPA does not grant the
Area Committee the responsibility to
approve a dispersant use plan Under
the approval scheme presented in the
NCP, the Area Committee serves as an
advocate for the dispersant use plan,
while the RRT decides if the plan is
adequate and may address region-wide
or cross-regional issues, thereby
providing a necessary forum for
dispersant use review The Agency
believes the two-step preapproval plan
process set forth in the NCP best ensures
consistent dispersant use planning
while fulfilling the mandate of the OPA
It should also be noted that, for spill
situations that are not addressed by t’
preauthorization plans, the OSC (s il.
the concurrence of the EPA
representative to the RRT and, as
appropnate, the concurrence of the RRT
representatives from the states with
jurisdiction over the navigable waters
threatened by the release or discharge,
and in consultation with the DOC and
DOt natural resource trustees, when
practicable) may authorize the use of
dispersants, surface washing agents.
surface collecting agents.
bioremediation agents, or miscellaneous
oil spill control agents on the oil
discharge, provided that the products
are listed on the NCP Product Schedule
New § 300 205(I) relates to the
addition of § 300 211 and, along with
§ 300.211, is discussed in response to a
comment on § 300 200
New § 300 205(g) was added to
reference the new figure that is
discussed under the earlier section
“Subpart C Overall Comments”
Section 300.21 0—Federal Contingency
Pians
One commenter suggested that the
NGP should recognize developments
that have occurred since the passage of
the OPA and phase in or eliminate nev
requirements at variance with those
developments For example. the
commenter stated, both format and
substantive requirements included in
the proposed rule for ACPs may not be
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Federal Register I VoL 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations 47395
consistent with what has been done to
date, and compliance with these new
requirements cannot occur overnight.
hnplementation of the OPA is an
ongoing process involving multiple
regulations being prepared over an
extended period of time. It is vutually
impossible to create a current and
complete “snapshot” of i.mplementation
efforts for these NCP revisions because
implementation efforts are a dynamic
process. Generally, there will be a
period of tune following publication in
the Federal Register before new
requirements take effect. Such an
approach gives the regulated
community time to come into
compliance and should ameliorate
much of the commenter’s concern.
Two cornrnenters urged that the NCP
require ACPs to follow the format of the
NC? and be coordinated with RCPs,
indicating that close coordination and
consistency would lead to more
effective emergency response. While
EPA agrees that cross-plan consistency
is critical for effective emergency
response, the Agency has chosen not to
discuss in the NC? formatting issues
that go beyond the substantive
requirements mandated by the OPA, in
order to retain for the Area Committees
the maximum flexibility to tailor ACPs
to reflect their priorities and local
conditions. It should be noted, however,
that § 300 210(c)(2) of the NC? does
refer to the importance of integrating
plans, stating, “(t]he AC? shall provide
for a welt coordinated response that is
integrated and compatible, to the
greatest extent possible, with all
appropriate response plans of state,
local, and non-federal entities, and
especially with Title Ill local emergency
response plans “Plan consistency is an
implementation responsibility of the
OSC for the particular area The RRT
should be used as a vehicle to achieve
consistency in implementation, as
provided in § 300 115(a)(2)
EPA and the USCC have chosen to
build upon different features of the pm-
OPA oil spill planning and response
structure in preparing ACPs for the
inland arid the coastal zone,
respectively EPA has generally relied
upon the RCPs to be used for response
operations, while the IJSCG has relied
upon local contingency plans which
had been prepared for each Captain of
the Port zone Because the RCPs already
include some operational elements, the
initial ACPs for the inland zone have
relied to some extent on augmentation
of the RCP with OPA provisions, or on
adaptation of RCP language into a
separate ACP document Nevertheless,
some elements of the RCP, such as
guidance for the development of
preauthorization plans. a description of
RRT activation procedures. or other
regional/district-specific policies
(including guidance for Area
Committees within their RRT zone), are
better suited for inclusion in the RCP.
Other elements of the RCP, most
notably, the response operations
portions, are better suited to be included
in ACPs
The relationship of the various plans
prepared for emergency response is
illustrated in Figure 4, “Relationship of
Plans,” following § 300 205 of today’s
rule. In this figure, the operations
portions of the RCP are best represented
by the “Federal Agencies Internal
Plans” box.
One comrnenter stated that ACPs
should mirror the national standards
developed out of the USCG regulatory
negotiation process (i e., the process
whereby the federal government and the
regulated commuruty formed a
committee, discussed issues, and
developed a report for use in drafting a
proposed rule), because the facility
response plans and vessel response
plans. which are mandated under the
OPA and must be consistent with the
ACPs. are already being developed
under the national standards EPA notes
that the national standards were
developed in coordination with the
vessel and facility response plan
regulations and these standards are
appropriate for the regulation of vessels
and facilities However, it would be
inappropriate to include the national
standards, which address the limited
universe of regulated vessels arid
facilities, in the NC?, which details the
broader federal response structure The
NCP must be flexible enough to
encompass the implementation
approaches not only of USCG. but also
of EPA. MMS, and the Research and
Special Programs Administration of the
U.S Department of Transportation
(DOT).
Two commenters strongly urged
consistency across the ACPs, noting that
such consistency is particularly
important for pipelines or vessels that
cross states and regions and thus are
subject to the reqiurements of numerous
ACPs along the route The commenters
also believed that the existing language
merely restates the law and does not
provide enough information to assure
such consistency, nor does the language
reflect efforts underway since the
passage of the OPA. One of the
commenters provided three
recommendations (1) the NC? should
explicitly require uniformity and
consistency and provide a mechanism
for resolving any inconsistencieS: (2) the
NRT should be responsible for ensuring
consistency among the regions; and (3)
procedures should be developed by
which owners and operators of vessels
and facilities subject to a number of
ACPs may petition for resolution of any
conflicts.
EPA believes that § 300 115(a)(2),
which gives the RRTs responsibility for
providing “guidance to Area
Committees, as appropriate, to ensure
interarea consistency and consistency of
individual ACPs with (the) Regional
Contingency Plan and (the) NCP,” is an
adequate framework for providing
coordination and consistency RRTs
have been designated as the bodies
responsible for interagency and
intergovernmental planning and
coordination of preparedness and
response actions at the regional level
The RRTs should review ACPs in
carrying out this responsibility and.
through their comments, encourage
consistency among individual plans In
addition, the NRT should encourage
consistency among regions through the
issuance of guidance
EPA disagrees that the NC? should
require uniformity among ACPs Each
AC? throughout the country will have
key common elements, such as the
FWSEP Annexes, that will provide a
consistent basis nationwide for
identifying resources needing to be
protected during a response However,
because the purpose of ACPs is to
prepare for spill response at the area
level, Area Committees must retain
maximum flexibility to tailor ACPs to
reflect their priorities and local
conditions, concerns, and capabilities
EPA and USCG have promulgated
facility and vessel response plan
ruteniakirigs which detail the
requirements placed on owners arid
operators for preparing those plans
These plans are required to be
consistent with relevant ACPs Finally,
it should be noted that the statutory -
requirement for plan integration is met
when the Regional Administrator (EPA)
or District Commander (USCG) signs the
AC?
One commenter recommended that
the USCG develop guidance to provide
better standardization of requirements
for ACPs Some specific areas the
commenter recommends as needing to
be addressed in ACPs are detailed
training requirements to cover all facets
of the response (including training of
volunteers) and a requirement to
address the issue of site visitors and
passengers on vessels used in a
response.
EPA believes that the commenter’s
concern is better addressed as an
implementation issue OSI-LA already
provides training requirements for spill
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47396 Federal Register / Vol. 59, No. 178 1 Thursday. September 15, 1994 / Rules and Regulations
response. Area Committees can, if they
choose, determine training requirements
associated with spill response activities
and address any such requirements in
i’tCPs. The NCP is not an appropriate
vehicle for implementing these
requirements.
‘To assure a timely decision on
dispersant use, one commenter wanted
to require it “as soon as practically
possible, but in no case more than 8
hours” (5300.210(c)(3)(iv)). The Agency
believes that incorporating into the NCP
the suggested 8-hour timeframe for
decisions on dispersant use may
unnecessarily constrain flexibility for
dispersant use at the area level. EPA has
instead chosen to meet the CPA section
4202(a) requirement for the ACPs to
“describe the procedures to be followed
for obtaining an expedited decision
regarding the use of dispersants”
through preplannirig Individual Area
Committees may describe additional
procedures for expedited dispersant use.
The commenter’s concern, therefore, is
best addressed at the area level.
One commenter argued that response
could be expedited if ACPs expressly
identified in advance those resources
that will be needed in responding to
large-scale spills. Specifically, the
commenter stated, elements of the
“detailed description” referenced in
§ 300 21 0(c)(3)(v) should be listed in the
regulatory text and include unified
command requirements, healthlsafety/
training requirements, forward
command post sites, public information
resources, and interim and final waste
disposal procedures.
Although EPA agrees that ACPs
should provide for effective emergency
response structures, the Area
Committees will determine the specific
details of that structure. The
commeriter’s suggested changes are too
prescriptive and therefore have not been
incorporated into the final NC?. The
Agency expects that all ACPs will be
updated over tame to reflect changing
emergency response structures It
should also be noted that nothing in the
NC? precludes the development of any
response management system. includ ing
a unified command structure, at the area
level
One commenter argued that the NC?
should, at a minimum, contain a
detailed description of the boundaries of
the ACPs, as well as their effective dates
and procedures for obtaining a copy of
each ACP. The commenter suggested
that ACPs be incorporated by reference
in the NCP and filed with the Federal
Register.
Both area boundaries and ACPs are
expected to change as the national
response system evolves over time The
April 24, 1992 Federal Register notice
that designates the initial areas does
include area boundaries and states that
any changes to these boundaries will be
published in the Federal Register. ACPs
are available for public inspection
through the EPA regions and USCG
districts. These regions and districts
may be contacted by telephone for more
information on area boundaries and
ACPs. Most ACPs are also available
through the National Technical
Information Service (NTIS) for the cost
of reproduction For further
information, NTIS may be contacted at
5265 Port Royal Road, Springfield, VA
22161 or b ’ telephone at 703—487—4655.
Finally, in § 300.210(c)(3), the word
“may” has been added to qualify the
statement that equipment lists are
included in “other relevant emergency
plans “This change has been made to
more accurately reflect the content of
those plans
Fish and Wildlife and Sensitive
Environments Plan (FWSEP) Comments
Two cominenters recommended that
NOAA develop a comprehensive set of
national standards for Area Committees
to use in developing the F’WSEP
Annexes. The Agency believes that
national standards are inappropriate for
meeting the intent of the OPA The OPA
specifically requires involvement of
state and local officials in the
development of area plans, in part to
incorporate local conditions, concerns,
and capabilities. National standards
could restrain Area Committees from
tailoring the FWSEPs to reflect their
priorities and local conditions As a
consequence, general guidance, rather
than standards, is more appropriate and
useful to the Area Committees in
carrying out their responsibilities
One comnienter was concerned about
the potential for duplicative monitonng
activities carried out under multiple
plans such as the NC?, the NRDA plan,
and the FWSEP, and wanted assurances
that any monitoring under the FWSEP is
closely coordinated with the other
plans The commenter also requested
guidance covering the extent, frequency,
and duration of monitoring
EPA notes that any response
monitoring, including that detailed in
FWSEP Annexes to ACPs, will be
developed as part of the ACP process
under the supervision of the OSC.
NRDA activities are primarily focused
on data collection and injury
assessment, not monitoring However,
any monitoring conducted as part of the
NRDA process should be coordinated
with the response activities to prevent
duplication of effort and effective use of
resources, as stated more generally in
§ 300.305(e) (formerly (d)). It should
also be noted that the NC? does not
address NRDA monitoring or
assessment concerns Further gui dance
is being prepared by trustee agencies on
an ongoing basis to assist the Area
Committees in identifying effective
measures and procedures for monitoring
the efficacy of removal activities and
related environmental benefits This
guidance is focused on operational
questions, not research and NRDA
requirements
One comnmenter was concerned about
data for the FWSEPs and suggested that
Area Committees should be required to
analyze and review all existing data and
not be permitted to generate requests for
duplicative information and
requirements for new fate and effects
research. The commenter also called for
guidance on collecting, interpreting, and
applying data to ensure consistency in
use of data and to avoid the kind of
problems that occur when data collected
for one purpose may be inappropriately
used for other purposes.
The Agency expects that FWSEP
development will initially consist of
collecting existing information about
natural and human-use resources in the
area from local specialists Based upon
existing information, FWSEP
development would proceed from
identifying to prioritizing protection for
sensitive environments, and then
selecting appropriate cleanup strategies
There is no expectation that any
research necessarily will be performed,
this process is based upon analyzing
existing information
One commenter was concerned that
the proposed language could be
interpreted as allowing Area
Committees to require companies to
acquire equipment for protection,
rescue, and rehabihtation of fish,
wildlife, and habitat
The intent of § 300 210(c)(4)(ii)(F) is
to ensure that the AC? will identify
what response capabilities will be
needed to protect, rescue, and
rehabilitate fish and wildlife resources
and habitat and include a process for
obtaining and using such resources in
the event of a spill To clarify that this
is a planning function, the term
“provide” in this section has been
changed to “plan “Area Committees do
not have the authority to require pnvate
companies to acquire specific response
resources. The OSC, however, needs to
know what resources will be needed to
protect, rescue, and rehabilitate fish
wildlife resources and habitat in spil
response and how such resources are
be obtained and used. He or she may
require use of such resources by the
responsible party during spill response
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This may include contracting with a
federally permitted wildlife rescue and
rehabilitation organization, for example.
Such “additional resources” are called
for in 40 CFR part 112, Oil Pollution
Prevention, in Appendix F to part 112,
for example, Section 1.7.1 requires non.
transportation-related facility response
plans to address, as part of the
identification and description of
response resources for small, medium,
and worst case spills, additional
contracted help and access to additional
response equipment and experts.
Another commenter recommended
that ACPs cover only discharges of oil
and not releases of hazardous
substances and that existing language
should be revised to clarify this
distinction EPA does not, at this time,
require ACPs to address hazardous
substance releases. Therefore, the
revisions recommended by the
commenter are not necessary
Nevertheless, planning for hazardous
substance releases is already addressed
in the area contingency planning
process, because indwidual Area
Committees will consider planning for
such releases, as appropnate.
Additionally, EPA has provided for
LEPCs and SERCs to have Input into the
area contingency planning process
The LEPC’s pnmary responsibility is
to develop an emergency response plan
for potential chemical accidents This
plan must describe. (1) Emergency
response procedures. (2) methods for
determuung the occurrence of a release
and the probable affected area and
population: and (3) community and
industry emergency response equipment
and facilities SERCs are responsible for
supervising and coordinating the
activities of the LEPCs and for reviewing
local emergency response plans for
chemical accidents Thus, the LEPCs’
and SERCs’ expertise in planning for
response to chemical releases (including
releases of hazardous substances) allows
the Area Committees to effectively
address hazardous substance planning
issues, as necessary
One commenter expressed concern
about the burden on federal agency
participants in developing ACPs,
specifically the collection of fish arid
wildlife and sensitive environments
information The commenter requested
clarification and specification of
timefrarnes and expected level of effort
EPA notes that Area Committees, not
facility owners, are responsible for
identifying fish and wildlife resources
and sensitive environments for
inclusion in the AC? However, until
the geographic-specific annexes of the
ACPs have been completed. the facility
owners and operators remain
responsible for ensuring protection of
sensitive environments in their
proximity for inclusion in their facility
response plans. The guidance for
determining and planning for these
responsibthties on an interim basis is
provided in a Federal Register notice
published on March 29. 1994 (59 FR
14713) by the Department of Commerce
(DOC)/NOAA Ultimately, the Area
Committee deliberations arid their ACPs
will provide the specific information on
fish and wildlife and sensitive
environments with which the facility
plans must be consistent Because the
planning process should be kept as
flexible as possible to allow for
differences between areas, and because
the area contingency planning process is
iterative, it would not be appropriate for
the NC? to dictate how the Area
Committees should identify fish and
wildlife resources and sensitive
environments.
There were a number of comments
regarding sensitive areas or
environments Two commenters
suggested that such areas should be
determined on the basis of ecological
nsk, noting that some areas identified as
“sensitive” may not be ecologically
sensitive, yet other areas which do not
have a “Sensitive” designation may be at
nsk ecologically The corrimenters
wanted Area Committees to consider
ecological value, sensitivity to oil
impact, and risk of exposure when
designating sensitive areas
The FWSEP section in the NC? was
intended to provide broad, general
guidance on fish and wildlife and
sensitive areas Area Committees will
incorporate local conditions, concerns,
and priorities into their designation and
pnoritization of sensitive areas.
Additional guidance in the form of
technical documents, such as NOAA’s
Shoreline Countermeasures Manual for
Temperate and Tropical Coastal
Environments and Guidelines for
Developing Digital Environmental
Sensitivity indexes, have been
distributed to many Area Committees
Further guidance is being prepared by
trustee agencies on an ongoing basis
Another commenter recommended
including areas designated as sensitive
under the Coastal Zone Management
Act (CZMA) or state coastal
management programs EPA notes that
CZMA-destgriated and! or state coastal
management program areas are expected
to be identified by the state
representatives as part of de eIopment
of the FWSEP Annex to the AC?
One commenter believed that the
current definition of sensitive areas was
too vague and recommended that Area
Committees be required to identify and
delineate these areas on a map. This
commenter also called for more specific
guidance on defining “sensitive areas,”
giving as examples the need for a clear
explanation of such terms as “wetland,”
“various state lands,” arid “biological
resource area.”
The definition of sensitive areas, as
described in the NCP and in NOAA’s
Federal Register notice (59 FR 14713,
March 29, 1994), are only broad in the
sense that they are not prohibitive The
documents that are referenced for
further information in that notice are
cited only to the extent that they are
considered for identification of sensitive
areas and are not cited to limit response
action selection, but rather to focus the
deliberations on sensitive areas
National guidance has identified key
components that should be considered
when determining environments
sensit ive to oil impacts which should
facilitate consistency in Area Committee
approach.
However, it is important that the Area
Committees determine what is
important for their area, incorporating
local factors and priorities It is the Area
Committees’ responsibility to determine
and rank sensitive environments within
their jurisdiction for the purposes of
protection priorities and cleanup
measure selection as related to spills
This may or may not include areas
specifically identified by other statutes
as “sensitive” for other purposes
Although some Area Committees are
making use of maps to delineate fish
and wildlife and sensitive
environments, it is not specified by
statute This implementation issue is
left up to the Area Committees
Yet another commenter urged that
determinations of sensitive areas be
extremely specific and have a clear
scientific basis, and that each Area
Committee develop a single
pnoritization list. The Agency restates
that the guidance offered to the Area
Committees is intentionally broad to
allow the committees to incorporate
local values and priorities (as per
§300 21O(c)(4) (ii)(A)). “Wetlands” are
referenced in the EPA final rule at 40
CFR part 112 as areas that ma ’ be “fish
and wildlife and sensitive
environments “Thus, Area Committees
may identify in the ACP particular
wetlands in their area as and wildlife
and sensitive environments
Identification of sensitive areas,
however, is only the first step, ranking
areas to be protected is the second step.
which will force discussion of those
areas which can be reasonably expected
to be protected in comparison to other
areas of “special economic or
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47398 Federal Register / Vol. 59,No . 178 / Thursday, September 15, 1994 / Rules arid Regulations
anvironmental importance that might be
damaged by a discharge.”
One com.rnenter provided language
and recommendations regarding
preapproval for specific
countermeasures or removal actions as
provided in proposed
§ 300.210(c)(4)(u)fD), stating that plans
should (1) require concurrence by EPA,
state(s), and natural resource trustees;
(2) address specific contexts in which
the countermeasures should and should
not be used; and (3) discuss certain
factors such as potential sources and
types of oil, sensitive areas, available
product and storage locations, available
equipment and trained operators, and
means for monitoring application and
effectiveness. The comnienter also
recommended expanding the
characterization of “sensitive areas” to
Include areas of special economic or
environmental importance—not lust fish
and wildlife resources or habitat
The requirements for obtaining
preapproval for use of specific
dispersants and other chemical
countermeasures is covered in Subpart
J of the NCP Repeating the state and
EPA role in preapproval plans in the
FWSEP is unnecessary Language
regarding trustee concurrence in
preapproval plans for chemical
countermeasures is included in
§ 300 210(c)(4)(ii)(D) to meet the intent
of section 1011 of the OPA. that there
shall be consultation with ‘the affected
trustees * * * on the appropriate
removal action to be taken in
connection with any discharge of oil.”
Trustee concurrence is more appropriate
than consultation during the
contingency planning phase, when there
is sufficient time to identify and resolve
natural resource concerns The
requirement for concurrence during the
advance planning phase will ensure
trustee involvement in decisionmaking
This, in turn, should ensure that
operations dunng a removal action can
be carried out quickly and effectively
because concerns that might otherwise
slow the action wi]l have been
addressed in ad.ance Conditioning the
consultation requirement by adding the
term “appropriate,” as requested by the
commenter, would not meet this legal
requirement.
Regarding the specific factors relating
to the use of countermeasures that the
commenter requested be addressed in
the F’WSEP, nearly all of the
recommended language already appears
in Subpart J, § 300 910(a), the rest is
already in other parts of Subpart C and
agency guidance. Again, it is not the
intent of the FWSEP to repeat other
sections of the NCP. in this case,
Subpart J, although § 300.210(c)(4)(ii)(D)
specifically references these Subpart J
requirements. The FWSEP is a tool to
focus the Area Committee on specific
issues and offers flexible guidelines that
will help protect fish and wildlife, their
habitat, and sensitive environments
during discharges and releases
The clarification this conimenter also
requested regarding the characterization
of “sensitive areas” is not necessary
because § 300.210(c)(3)(i) already states
that the ACP shall include these areas
Language in the preamble to the
proposed ruie offered several examples
of economic and environmental areas
that might be included in the annex to
the AC?. The Area Committee has the
information required to evaluate
properly any areas considered for
designation in the ACP The NC?
provides broad guidelines, so the Area
Committee has the flexibility to evaluate
and identify these potential areas of
importance in the development of the
ACP. This flexibility permits the Area
Committee to create an area-specific
plan that provides for “immediate and
effective protection, rescue, and
rehabilitation of. and the minimization
of nsk of damage to, fish and wildlife
resources arid their habitat,” in addition
to any other areas of special economic
orenvu-onmental importance which
they have identified for inclusion in the
annex to the AC?
Two other commeriters argued that
state t.i-ustees, not Just federal natural
resource trustees, should be asked for
concurrence on countermeasure
approval EPA notes that the state
representative to the RRT, the body
which has the responsibility for pre-
approval for specific countermeasures,
represents all the interests of the state
and is the conduit for state concurrence
One commenter suggested that
proposed § 300 210(c)(4)(ii)(G) be
amended to include the provision of
“other related fish and wildlife permits
or emergency permits to facilitate
response related activities” as well as
procedures regarding “all response and
response training-related activities that
could be construed to be a taking, or
involving” the capture, transport.
rehabilitation, or release of wildlife
EPA notes that, as written, the
referenced section covers the fish and
wildlife permits necessary for response.
related activities, as identified b) the
agencies responsible for overseeing
possession and handling of fish and
wildlife This section calls for the AC?
to “provide guidance on the
implementation of law enforcement
requirements included under current
federal and state laws and
corresponding regulations.” Permits
other than those covered in
subparagraph (C) must be addressed
a case-by-case basis Permits are nssu
for the purpose of handling and
rehabilitating wildlife threatened or
injured during a response, not to give
preauthorizauon for the potential
“taking” of wildlife during response
activities or response-related training
Usually, natural resource law
enforcement agents are on-scene or
readily accessible for requests for other
permits in the event of unusual
response activities that might require
authorization
Finally, in § 300.210(c)(4)(ii)(F), EPA
has indicated that planning for
protection, rescue, and rehabilitation of
fish and wildlife resources and habitat
does not interfere with other OSC
removal operations. The reason for
adding the word “other’ is to clarify
that fish and wildlife planning activities
are part of the OSC’s removal
operations.
Section 300.211—OPA FaciJity and
Vessel Response Plans
See discussion under § 300.200.
Section 300.212—Area Response Drills
Seven commenters believed that the
NC? should acknowledge and reference
the proposed “National Preparedness
for Response Exercise Program (NPRI
or PREP)” and make sure that NCP
language is consistent with these
proposed guidelines Two commenters
stated it was imperative that the NC?
not create any additional requirements
with regard to exercises beyond those
contained in PREP
The Agency notes that the
development of the PREP proposal
creates a method for facility owners and
operators and Area Committees to
satisfy all OPA drill/exercise
requirements At the same time, the
language in the NC? is merely
attempting to reflect a new CWA
requirement for periodic area response
drills EPA recognizes that PREP
represents a comprehensive approach to
response exercises and that compliance
with the PREP guidelines to conduct
drills will be considered adequate to
meet the NC? requirements However,
although PREP represents one method
for meeting the drill/exercise
requirements in the OPA, it cannot
replace the relevant NCP provisions
because PREP is voluntary rather than
mandatory
One commenter believed that the cost
of area exercises should be borne by th#-
OSLTF Currently, OSLTF funds are n
available to pay for area exercises Wht.
Congress established the OPA, it
authorized the various agencies with
responsibility for pollution
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Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations 47399
preparedness and response to spend
funds to support participation in the
national response system. Congress did
not, however, appropnate the funds to
do so. For the OSLTF to be used for
exercises, Congress would have had to
appropriate money for this specific use.
In the absence of this appropriation, the
various agencies are responsible for
providing the funds from within their
organizations
Section 300.215—Title UI Local
Emergency Response Plans
Two commenters believed that this
section should require consistency of
Title ill plans with the NCP. RCPs.
ACPs. and state plans, indicating that it
is critical for functions to be consistent
at all levels of planning EPA recognizes
the importance of coordinating local
emergency response plans developed by
LEPCs and other contingency planning
efforts. The current NO’ requires that
OSCs preparing plans coordinate with
LEPCs En addition. RRTs are
responsible for providing regional
consistency ( 300.115(a)(2)).
OPA has added specified
requirements for facilities to prepare
contingency plans as well as for Area
Committees, under the direction of an
OSC. to prepare ACPs The coordination
requirements pursuant to the Superfund
Amendments and Reauthonzation Act
Title Ill and those already in the NCP
are now augmented by the need to
include coordination with the many
new plans being developed under OPA
RRTs are now responsible—through
RCPs—to coordinate area planning (for
example, to ensure that pipelines
crossing through several areas are not
subject to disparate requirements)
Finally. the NRT—through the NCP—
coordinates the entire national response
system.
ACPs should be coordinated with
and, to the extent possible, be consistent
with LEPC plans and facility response
plans under OPA. Of course, LEPC
plans and ACPs should recognize the
role of the federal government during
emergency response, as described in the
NCP
Subpart D—Operationoi Response
Phases for Oil Removal
Section 300 305—Phase IJ—Prehrninaiy
Assessment and Initiation of Action
Several Commenters sought
clan ii cation of the rol&respoasibthty of
the responsible pert-if to undertake a
response action the fl
Some commenters tbeuglit the language
§ 300.305(c) was misleading when it
says the OSC may alloi,- the responsible
party to perform r ovaJ actions.
Rather, these commenters suggest the
responsible party must be requi.redl
given the opportunity to immediately
undertake containment, control, and
cleanup. One comrnenter noted that
most responsible parties already have
contingency plans in place and have the
training and expertise necessary to
respond immediately and effectively.
The commenter also suggested that the
final rule should be clear that if the USC
delegates to the responsible party the
duty to respond to the discharge in
accordance with the NCP, then the
responsible party, as the agent of the
OSC, should have the seine authority as
the OSC to access the spill site to
conduct the removal without
interference from other authorities.
As stated in the preamble to the
proposed rule, the NCP had provided
that the OSC must make reasonable
efforts to have the responsible party take
proper response actions The proposed
revision retained as an option the
possibility of allowing the responsible
party to take the lead where the OSC
determines this approach will result in
immediate and effective response
action The reason for this change is that
under the amended CWA, it is clear that
the OSC, rather than the responsible
party, determines the appropriate course
of action for response Even with this
change, however, the responsible party
is not absolved from responsibility for
taking whatever actions are necessary
immediately upon discovery of a spill
until such time as the OSC is notified
and able to determine the appropriate
course of action
As to the commenter’s concerns
regarding the scope of authority of the
responsible party when undertaking a
response. the OSC does not “delegate”
response authority to the responsible
party Rather, the OSC determines
whether the responsible party is capable
of carrying out fully effective response
measures If the OSC determines that
such capability exists, he or she can
permit responsible party cleanup to
occur and simply provide surveillance
over whatever actions are initiated The
responsible party is not the “agent” of
the OSC. and EPA does not provide to
the responsible party the authority
granted to the OSC to access the site for
response purposes.
One comnienter suggested that the
NCP needs to recognize that direction of
responsible party contractors will occur
through the responsible party. The
commeriter stated that those contractors
are at financial nsk if they take direction
directly from the OSC, and filing a claim
against the OSLTF is not an adequate
remedy because of delays and
uncertainty in recovering those costs.
EPA notes that OPA section 4201
clearly states that the President
(delegated to the OSC) is given the
authority to “direct or monitor all
Federal, State, and private action to
remove a discharge.” It is the obligation
of the responsible parties and their
cleanup contractors to establish a
contractual relationship that provides
for appropnate ngbts and protection for
both parties, including a cleanup
scenario where the OSC directs all
private party action Also, ACPs and
facility response plans may address
aspects of this relationship and how it
will work when the OSC directs the
response, the NC? is not the appropriate
place to address such relations.
Two commenters suggested that,
contrary to proposed language in
§ 300.305(c), the OSC lacks authority to
direct state and local agency actions, but
rather should/must coordinate with
these parties through the unified
command system However, the
language to which the comrnenters
objected, that the OSC “may direct or
monitor all Federal, State, and private
actions to remove a discharge” is taken
directly from CWA section 3 11(c), as
amended by the OPA. Thus, EPA
disagrees that the OSC does not have the
authority to direct state, local, or private
actions
Two comrnenters stated that when
there is an immediate threat to the
public health arid safety, the local on-
scene coordinator (fire chief, emergency
manager) should serve as the incident
commander This is consistent with
EPA’s view of how the response
management system should work As
noted in the preamble to the proposed
rule, “the individual in charge of an
incident command system is the senior
official responding to the incident, for
the national response system, this
individual is the OSC” At some
incidents there may be a period of time
before which the OSC is in place to take
charge of the response. in such cases, it
is appropriate for the senior Individual
who is on site, such as the fire chief, to
take charge (temporarily) as the incident
commander Of course, the OSC al i ays
retains the authority to choose to direct
any portion of the spiii response
Another commenter suggested that
inclusion of the unified command
concept would clarify that a state is not
at liberty to impose more stringent
measures when a federal OSC is
directing the response EPA disagrees
with the commenter’s view that a state
could initiate more stringent measures
than the OSC when the latter is
directing the response When directing
a response, the OSC is more than
managing the response. He or she has
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çeclfic legal authority to guide the
tjvlties of all parties responding to a
jicharge. and all actions would have to
a. authorized or approved by the OSC.
In addition, under OPA section 1011,
1J cases it is the President (delegated
to the OSC) in consultation with
governors of affected states who
aetermines when removal shall be
considered complete. At the same time,
however. section 1011 states that a
deterinujation that federal removal
action is complete shall not preclude
.dditional removal actions under
applicable State law.”
Numerous commenters thought the
term “direct” needed greater
explanation or definition. It was
iuggested that doing so would clarify
the flexibility (range of authonty) of the
OSC in directing a response and the
differences between “directing” actions
In the case of substantial threats and
other cleanup scenarios. One
commenter suggested that discussion of
the OSC’s choice to monitor a response
needed expansion. specifically to
Indicate that states or persons other than
the responsible party could be permitted
to undertake a removal action (provided
It would be immediate and effective)
The emphasis during oil spill
response is on coordination and
cooperation, rather than on a more rigid
system of command and cont.rol. The
OSC, the state/local government
representatives, and the responsible
party all are involved with varying
degrees of responsibility, regardless of
the size or severity of the incident The
OSC m every case retains the authority
to direct the spill response, and must
direct responses to spills that pose a
substantial threat to the public health or
welfare of the United States. in many
situations, however, the OSC will
choose to monitor the actions of the
responsible party and/or state(local
governments and provide support and
advice where appropriate The response
management structure does not and
cannot attempt to prescribe a specific
item-by-item functional descnption of
where particular organizations or
individuals fit within a single response
structure for a given response
Developing, adopting, and
implementing a response management
system such as a unified command
System, is the responsibility of the OSC
and the Area Committee, through the
AC?.
One commenter suggested that the
OSC should expeditiously declare the
government’s elective decision to direct
a response, not only declare it in those
Cases where the OSC is required to
direct (as provided in proposed
§ 300 305(c)(2)) The cornrnenter argued
that participants in a response need to
clearly understand the nature of the
federal role and that this change would
help minimize confusion over who is
the ultimate decisioninaker, avoid
ambiguity in planning and
implementation of response strategies,
and foster consistency in
decisionmaking
EPA does not agree with this
commenter’s proposal because it could
unnecessarily constrain the flexibility of
the OSC. In those cases where OSC
direction is discretionary, there may be
expectations that by not declaring
expeditiously that he or she will direct
the response, the OSC has foregone any
opportunity to ever do so. EPA believes
that it would be counterproductive to
put pressures on OSCs to make
decisions prematurely or to create
expectations among other parties that a
situation is not subject to change,
regardless of future events
One commenter suggested that
trustees and others are increasingly
involved in the response process.
including decision.rnaking, and
suggested that this involvement
decreases the timeliness arid
effectiveness of response efforts. Related
to this, the commenter cites legal
concerns that often polarize government
and responsible party responders during
major spills, and suggests that
separating the damage assessment phase
in both time and agency would promote
cooperation and free exchange of
information
With regard to the commenter’s
concern over an increase in the number
of entities with actual or perceived roles
in decisionmaking, the Agency notes
that section 1011 of the CPA requires
consultation with affected trustees on
the appropriate removal action to be
taken in connection with any discharge
of oil. EPA ’s intention is that this
consultation will take place in large part
during the area contingency planning
process In terms of information
exchange among parties involved in a
response, EPA wholeheartedly supports
the notion that there should be nothing
to impede cooperation and free
exchange of information to expedite the
response activities Information should.
to the maximum extent possible, flow
freely between those agencies involved
in the response and those involved in
the damage assessment. In addition, it is
important that the activities of the two
groups be closely coordinated, as
intended by § 300 305(e) (formerly (d))
and 300 615(c)(3)(ii). In today’s final
rule, language is added to these two
sections to reinforce the point that
information collected for damage
assessment which is supportive of the
response phase should be made
immediately available to the OSC to
support his or her decisions. This
information flow will most likely occur
through the SSC who serves on the
OSC’s staff as the interface with the
trustees.
Two commenters suggested that
although proposed § 300.305(d) (now
(e)) indicates the lead administrative
trustee will act on behalf of all trustees,
this is not necessarily the case nor is it
acceptable to the states under all
conditions. Related to this, one
commenter stated that the preamble
language concerning the USCG’s future
regulations that will detail the lead
administrative trustee’s authority to
access federal response resources on
behalf of all trustees is confusing The
commenter suggested that, as written, it
is unclear whether this statement refers
to funding for initiation of damage
assessments or trustee access to OSC
airplanes, vessels, etc The commenter
believed the intent was to cover the
former and recommends that language
be added to the NO’ to that effect EPA
believes the commenter is correct The
regulations in question will address
trustee access to the OSLTF It shoul
be noted, however, that there may b .
situations where the OSC provides non-
financial resources to trustees to carry
out their NRDA and related
responsibilities. The language of
§ 300 305(e) (formerly (d)) is being
revised to clanfy that the “response
resources” referred to are non-monetary
resources, i e. personnel and equipment
This is the only action taken by the lead
administrative trustee on behalf of all
trustees that is called for in this section
of the rule Providing a single point of
contact between the trustees involved in
initiation and the OSC should facilitate
trustee access to response equipment
and personnel by ensuring that all
trustee needs are communicated to the
OSC in a coordinated manner
One commenter stated that the
proposed NCP is structured in a way
that does not ensure integration with
facility response plans EPA believes
that the commenter’s concern about
integrating facility planning efforts are
misdirected towards the NCP It is the
area contingency planning process
where preparedness planning on the
part of specific facilities within the area
should be accounted for The ACPs c
then be implemented in such a
to take advantage of all available
resources
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Section 300.310—Phase ifi—
Containment, Countermeasures,
Cleanup, and Disposal
One commenter urged that the NC?
expressly recognize OSC authority to
permit the return of oil or oily water
incidental to mechanical recovery
operations back into the response area
EPA believes this practice is currently
recognized as a routine and necessary
part of response operations under
certain circumstances. The appropriate
role of such action should be addressed
as part of the area contingency planning
process. It would be inappropriate for
the NC? to address this in any sort of
across-the-board manner.
The same commenter believed that
the NC? should clearly identify the
requirements that apply to waste
management in an oil spill response.
EPA believes this issue should be left to
RRT and AC? guidelines and other
statutes and regulations These
requirements may change over time and
are not appropriate for inclusion in the
NC? Section 300.3 10(c) has been
expanded from the 1990 NCP to provide
guidance on how RRT and AC?
guidelines might address disposal plans
for oil spill response and certain rule
language changes are being made in
today’s final rule to clarify some of the
specific issues RRTs and Area
Committees may wish to address
Section 300 317—Nationai Response
Priorities
Two commenters strongly supported
the adoption of the following as national
response priorities (1) protect human
life and safety; (2) minimize
environmental impacts, and (3)
minimize social and economic impacts
Three advantages are cited for these
proposed priorit1es first, area planners
would necessarily consider the
ecological, social, and economic
consequences of their recommendations
in their plans, second, these prionties
would provide a framework for the OSC
to prioritize lurnted resources during an
emergency, and finally, spill response
decisionmakmg would be streamLined
because many decisions could be made
dunng the contingency planning
process These commenters argued that
existing priorities do not give involved
parties adequate guidance regarthng the
protection of environmental resources
The commenters did not find fault with
the first two priorities proposed in the
NC?, but argued that the third one
(coordinated use of containment and
removal efforts) does not help
responders allocate resources when
there are conflicts between aesthetic and
ecological goals They emphasized that
setting prionties that put ecologically
sensitive and important areas first is
essential. One commenter suggested
supplementing the priorities proposed
in the NC? with those normally
followed by response contractors: (1)
provide for health and safety of your
workers and the public; (2) stay in
compliance with state and federal
regulations, including minimizing
exposure to liability, and (3) protect the
environment and clean up or remechate
spills and releases
As noted in § 300.317(e), “ [ t]he
priorities set forth in this section are
broad in nature, and should not be
interpreted to preclude the
consideration of other priorities that
may arise on a site-specific basis “The
preamble to the proposed revisions
notes that the response priorities “are
not intended to restrict the discretion of
the OSC in directing or monitoring
responses to oil discharges “The
response prionties noted by the first two
commenters reflect important concerns
that should be considered under the
appropriate circumstances EPA
believes it is in the area contingency
planning process that additional
pnonties should be established for
subsequent application on a site-specific
basis Also, EPA believes the specific
pnorities cited by the last cominenter
are actually more appropriate for facility
and vessel response plans than for the
NC? or even ACPs
Two commenters argued for inclusion
in the NCP of language comparable to
language in the International
Convention for the Prevention of
Pollution from Ships (MARPOL) and
USCG MARPOL regulations
Specifically, the suggested language
indicates that Jettisoning oil or
hazardous substances is a viable option
for ship masters and salvagers, if doing
so may decrease the risk of loss of life
or serious injuries, prevent the
discharge of greater amounts of oil or
hazardous substances, or prevent more
serious environmental consequences
than the jettison itself Related to this,
one commneriter suggested that the NC?
needs to be clarified to indicate that
salvagers are “persons” under the QVA
and not liable for removal costs or
damages that result from certain actions
taken
EPA does not believe there is any
reason that the term “person” would be
interpreted to exclude salvagers. It
would be superfluous to include such
language and would encourage requests
from others engaged in spill response
that the regulation afford them
protection as well
The OSC currently has authority to
permit Jetusoning to save the vessel or
its crew or to prevent more serious
environmental damage Moreover, the
discharge of oil or oily mixture into the
navigable waters for purposes of
secunng the safety of a ship or saving
life at sea is already authorized under
Regulation 11 of the MARPOL protocol,
current U.S. law, and USCG regulations
(33 CFR part 151)
Section 300 320—General Pattern of
Response
One commenter suggested that
§ 300.320(a)(2)(i) appears to reqture
notification of trustees only in the event
of an actual or potential major
discharge, which is contrary to the
requirements of § 300 305(d) EPA notes
that, although § 300 320(a)(2)(i) does not
say that the OSC needs to notify the
trustees only of major discharges. the
language may be misleading It has been
revised to reflect the corrimenter’s
concern
Several comrnenters expressed
concern with § 300 320(a)(3)(i), which
provides the standard that the OSC will
use to determine whether the
responsible party is conducting removal
actions “properly.” First, they argue that
it descnbes a standard that is unrealistic
and overly broad, responsible parties
should only be responsible for applying
available resources in a manner
designed to effectively and immediatel
remove or mitigate the spill to the
maximum extent practicable Second,
the commenters believe that a decision
to use Federal resources should not
cause a responsible party’s efforts to be
necessarily deemed “improper “The
argue that the OPA intended private and
government resources to work together
and the government may have some
resources simply not available to pr1’ ate
parties The commenters therefore
concluded that the provision in
question creates a disincentive to the
use of these (government) resources
Section 311(c)(1) of the revised CWA
requires the President to “ensure
effective and immediate removal of a
discharge” in accordance with the NCP
This authority has since been delegated
to the OSC Because the OSC is required
to ensure effective and immediate
removal of a discharge, he or she must
use this test as the standard for
determining whether the responsible
party removal action is being done
properly
In addition, the authonty given by the
OPA to the OSC for setting the course
of response action has repercussions for
the determmation of whether a pnvate
party spill response is “proper “ Under
§ 300 320(a)(3)(i) of the 1990 NCP,
private party removal efforts were
deemed improper “to the extent that
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7402 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
pudsrsl efforts were necessary to
. nhnir.8 further or mitigate threats to
pgbilc health and welfare and the
tj menL” However, the Agency
dsretands that this section of the NCP
y unnecessarilY restrict the OSC’s
Iity to determine whether a private
pirty response is “proper,” given the
flexible response approach
iJLed In the OPA. In certain
in anres. the Federal Government may
bave response resources that are not
available or promptly available from
bar sources—the USCG’s special
equipment for removal and salvage
operetions. for example—that could aid
L spill response. The Agency agrees
that the use of these resources should
D c l necessarily determine that a
responsible party response is
“Improper.” EPA has therefore modified
the language of § 300 320(a)(3)(i)
SectIon 300 320(a)(3)(ii) also has been
odlfied to indicate that, if the OSC
upplements responsible party
resources with government or other
prIvate resources, the responsible party
response will not be deemed improper
unless specifically declared so by the
OSC. The OSC may declare that a
private party response is “improper” if
be or she determines that the cleanup is
not fully sufficient to effectively and
Immediately remove threats to the
public health and welfare and the
environment.
One commenter suggested that the
NC (in conjunction with other
regulations, see, for example 58 FR
7425, 33 CFR 155 1020 that discusses
Worst case, maximum most probable.
and average most probable discharges)
contains a multitude of discharge
classifications with attendant
Consequences for each category that is
overly complex, confusing, and
Unnecessary. With regard to the NCP,
the commenter cites discharges
classified by size (major, medium, and
minor), by category (worst case
discharge and spills of national
Significance (SONS)). and by nature of
the threat (those discharges posing a
“substantial” threat) The corrirnenter
goes on to suggest that it is more
important at the time of a spill to
Characterize the spill by the level of
desired response rather than the actual
amount of oil that is in the water, and
that rapidly deternurung the amount of
oil spilled may not be possible in many
Cases The cornrnenter recommends
deletion of most discharge
classifications that do not have a
statutory basis In particular, the
commenter suggests that the major-
medium-minor distinction for
classifying spills has outlived its
usefulness, and that operational
demands of the response should dictate
what level of coordination occurs and
what resources are requested by the
OSC
The Agency notes that the proposed
revisions to the NCP built upon the spill
classification system in place prior to
passage of the OPA. New statutory
requirements. as well as SONS were
added. EPA believes each of the
different elements of this revised system
are important to different parties and for
different purposes. Taken as a whole,
the revised system provides a
combmation of approaches to
developing the appropriate spill
response It retains approaches that are
known and understood in the response
community, permits existing tracking
and recordkeeping mechanisms to
remain in effect, and effectively
implements new OPA mandates. In
large part. this system supports
planning and other non-response
activities The classification system
itself does not pre-deterrnine the full
range of actions that could be taken in
response to a spill. No further revisions
are being made at this time
One commenter stated that the OSC
should be required to designate the
response area as soon as possible after
art oil spill event to clearly define the
limits of the response area because the
vessel response plan requirements state
that the OSC will designate as the
response area that area in which spill
response activities are occurring EPA
believes that implementation of this
commenter’s recommendation would
unnecessarily constrain decisionmaking
by the OSC during the full course of an
incident As conditions change. the
response area may change In addition,
the commenler’s concerns presumably
revolve around implementation of
vessel and facility response plans and
carrying out activities in “the response
area” versus outside the area This issue
should be discussed with the OSC on a
case-by-case basis and is not appropriate
for inclusion in the N P
One commenter stated that § 300 320,
which suggests that notification of states
is a function of the size of a spill, is
inconsistent with § 300.300(d) which
requires that the OSC ensure that the
appropnate agency of a state affected by
a spill be notified. EPA has revised this
section to make it clearly consistent
with § 300 300(d)
Section 300.322—Response to
Substantial Threats to Public Health or
Welfare of the United States
En order to clarify the latitude given
to OSCs to determine which spills pose
“substantial threats,” several
commenters recommended that the
sentence found in the preamble, “mosi
discharges are not expected to be
identified by the OSCs as substantial
threats to public health or welfare of the
United States,” be added to the rule
language of this section EPA believes
that the language provided on
substantial threat discharges in the
preamble to the proposed rule
represents adequate guidance
concerning the likely frequency of such
discharges. The Agency does not believe
that it would be appropnate to limit,
through a change in the rule language,
the discretionary authority of the OSC to
determine whether a discharge would
result in a substantial threat to the
public health or welfare of the United
States.
Section 300 323—Spills of National
Significance
One commenter suggested that the
intent of the preamble (that SONS will
be extremely infrequent), should be
added to the rule language EPA
believes that the language provided on
SONS in the preamble to the proposed
rule represents adequate guidance
concerning the frequency of such spills
The Agency does not believe that it
would be appropriate to limit, through
a change in the rule language, the
discretionary authority of the
Administrator of EPA and the
Commandant of the USCG to determine
whether a discharge would result in a
SONS
One commenter stated that the SONS
classification is not needed at all.
arguing that a properly implemented
incident command system is able to
provide response to any size spill The
commenter was concerned that the
designation of spills as SONS may be
influenced by the media or politics
EPA believes that, during certain
response situations involving spills of
extreme severity or size that have the
potential to greatly affect the public
health or welfare of the United States.
extraordinary coordination of federal,
state, local, and responsible party
resources may be required for
containment and cleanup. In situations
such as these, coordinating resources at
the national level arid managing
relations among various government
officials and the public requires
significant time and effort This may
divert attention away from the actions
necessary to respond to the spill itself,
which, in the case of a SONS, s ould
likely be complicated. Furthermore,
while OSCs are thoroughly familiar wi
their regions or districts, they may be
less knowledgeable about areas outside
their regions or districts The OSC in
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charge of respondi.ng to a spill that
affects several regions, districts, or
countries may benefit from
communication assistance to identify
and coordinate resources, evaluate site-
specific conditions, and assess threats to
the environment.
For these reasons, EPA developed a
“strategic management” framework
designed to assist the OSC in dealing
with resource administration,
government coordination, public
relations, and communication for SONS,
codified in § 300.323. As an important
part of the national response system, the
SONS response strategies ensure that
the government will be able to respond
to spills of any size or seventy The
designation of a SONS will, therefore,
depend on the presence of exigent
circumstances.
With regard to § 300.323(b), two
commenters requested clarification to
indicate that the person named to assist
the OSC is not limited to the few roles
specified and that this individual’s
duties will be directed by (and not
supersede the authority of) the OSC.
One com.menter also suggested that the
coordination at the national level
discussed in this section would best be
accomplished through the incident
command system, which will serve to
maintain the integrity of the local
command structure as the incident
escalates
EPA reiterates that the “assistance”
provided by a designated senior EPA
official in support of the OSC within the
SONS response framework is intended
to relieve the OSC of certain
communication and coordination
burdens associated with directing
response efforts If a spill is designated
as a SONS, issues of communication
and coordination quickly take on
importance at the national level
However, this designated senior agency
official is not subordinate to the OSC.
This official will simply fill the role of
the OSC for specific, limited activities
related to communications and
coordination, as detailed in
§ 300.323(b) EPA believes this approach
reflects historical practices.
Section 300 324—Response to Worst
Case Discharges
Several commenters strongly
suggested that this section needs to
recogmze there can be many “worst
case” discharges from small facilities or
vessels where implementation of the
requirements of this provision would
not be justified or otherwise
appropriate Two commenters suggested
that paragraph (a) also include a
requirement that the discharge pose a
substantial threat to public health or
welfare of the United States before the
measures for responding to a worst case
discharge would be triggered. They
believe this would provide the OSC
with additional latitude to activate only
those measures most appropriate to the
circumstances. Alternatively, one
cominenter suggested that full
implementation of the AD’ worst case
provisions would not be necessary for
all worst case spills; another suggest
deleting the requirement to notify and
use the NSFCC.
EPA notes that CWA section 311(d),
as amended by the OPA, requires the
ND’ to include “procedures and
standards for removing a worst case
discharge of oil and for mitigating or
preventing a substantial threat of such a
discharge.” CWA section 311(j), as
amended by the OPA, requires Area
Committees to prepare an AC? for their
area that, when implemented in
conjunction with the ND’, will be
adequate to remove a worst case
discharge and to mitigate or prevent a
substantial threat of such a discharge.
CWA section 3 11(j) also requires that
the National Response Unit (i e ,the
NSFCC) shall coordinate use of private
and public personnel and equipment to
remove a worst case discharge, and to
mitigate or prevent a substantial threat
of such a discharge. Once the OSC has
determined that an oil spill is a “worst
case discharge” the OPA mandate
concerning such discharges must be
followed Because § 300 324(a)(1) and
(3) and 300 324(b) reflect the
requirement of the OPA worst case
discharge-related provisions, they must
be included in the ND’.
However, EPA recogmzes that
proposed § 300 324 has created some
confusion regarding the implementation
of the worst case discharge provisions of
the AC?. These provisions are activated
only when the OSC has determined that
adischarge is a worst case discharge, as
specified in the ACP Oil spills that
meet the definition of worst case
discharge specified in vessel arid facility
response plans, but not the AD’, would
not require activation of the worst case
discharge provisions of the AC?. In
addition, the OSC is required to notify
the NSFCC only of ACP-deflned worst
case discharges The rule language in
§ 300 324 of the NCP has been revised
to reflect these clarifications
Two commenters suggested deletion
of paragraph (a)(2); they asserted that
the OSC should not have to require the
responsible party to implement their
response plan, because it would be
automatically initiated by the
responsible party without direction
from the OSC EPA agrees that the
responsible party is required to
automatically initiate its response plan
without direction from the OSC
However, EPA is restating this
requirement in § 300.324(a)(2) for
clarification purposes.
Section 300.335—Funding
One commenter noted that the
preamble to the proposed rule states
that the provisions of § 300 320(b)(3)(ni)
are addressed in § 300 335. However,
the commenter noted that former
§ 300.320(b)(3)(iii) addresses the actions
an OSC is to take if there is a minor
discharge and that provision is not
addressed in the proposed § 300 335,
which deals with OSLTF funding The
Agency recognizes that the commenter
is correct; the reference to § 300 335 in
the preamble to the proposed rule was
erroneous The correct reference is
§ 300 305.
One cornmenter noted that section
1004 of the OPA provides limitations to
liability for discharges of oil and stated
that although § 300 335 of the proposed
NC? addresses funding of removal
actions, it does not reference the
liability limitations described in the
OPA. The commenter recommended
that a reference to these liability
limitations be included in the revised
NC? EPA does not consider the details
of OPA liability limitations to be
relevant to the funding discussion in
§ 300.335 The purpose of § 300 335 is to
discuss various scenarios for federal
funding of oil spill response activities
Therefore, the recommended change is
inappropriate
One commenter stated that the
preamble notes that the NCP provides
that “funding of a response to a
discharge from a federally owned,
operated, or supervised vessel is the
responsibility of the owning. operating.
or supervising agency “The commenter
believed it would be helpful to define oi
explain “supervised,” or add a referencc
to where such explanation may be
found The comrnenter also noted that
the NC? incorporates the OPA
definition of “responsible party.’ which
excludes federal agencies. states,
municipalities, commissions, or
political subdivisions of a state “that as
the owner transfers possession and right
to use the property to another person by
lease, assignment, or permit “The
commenter suggested that if
“supervised” refers to facilities
excluded in the OPA definition, it
should be deleted from the NCP
The comrnenter points out an
apparent contradiction between § 300 5
and 300.335(e), wherein an owner
appears to be liable for funding, but may
not be a “responsible party” under some
circumstances To harmonize these two
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47404 Federal Register / Vol. 59, No. 178 1 Thursday, September 15, 1994 I Rules and Regulations
visions. EPA is revising § 300.335(e)
y adding to the end thereof flit is a
r porisible party.” Thus, an owner will
be iab1e if that owner also falls within
the definition of “responsible party.”
7’h s revision clarifies that if a vessel or
flity is “supervised” by an agency
that is excluded from the definition of
responsible party, the vessel or facility
would not be liable for funding.
lii addition, EPA has deleted
ubparugraph (0 (1) which contained an
Insccu rate statement that EPA may
provide funds to begin timely discharge
removal actions. In fact. EPA has no
funding to initiate oil removal,
Subpart E—Ho .zordous Substance
Response
Section 300 410—Removai Site
Evaluation
One com.menter noted that proposed
S 300.410(e)(1) states that “as part of the
evaluation under this section, the OSC
shall detenmne whether a release
governed by CWA section 311(c)(2) has
occurred.” The commenter suggested
that this provision be revised to read
“CWA section 311(c)(1), as amended by
OPA section 4201(a).” EPA agrees and
has made this change in the final rule.
Section 300.415—Removal Action
One Comm enter stated that the
citation to GVA section 311(c)(1)(A) in
§3CC) 415(c)(1) is incorrect and should
be changed to CWA section 311(c)(1) , as
amended by OPA section 4 201(a). EPA
agrees and has made this change in the
final rule.
Subpart G—Trustees for Natural
Resources -
Section 300 600—Designation of
Federal Trustees
Two corarnenters asked that the
reference in the proposed rule preamble
to the trustees’ responsibilities for
“n’iitiganon and assessment of damage”
be changed to read “mitigation of
injuries and assessment of damage”
One of these comrnenters argued that
the suggested text i ould be more
accurate because “damages” is a term of
art that refers to the monetary value of
injury or lost use Two comnienters also
argued that the word “preplanning”
should be removed from that same
discussion that reads “preplanning and
coordination for both response and
damage assessment activities are
specifically required “ because
there is no statutory requirement for
prep lariiung for damage assessment
activities.
EPA agrees that the cited language is
not complete lv accurate and suggests
the following as a better statement of
trustee responsibilities: Each trustee has
responsibilities for protection of
resources; assessment of damage, and
restoration, rehabilitation, replacement,
or acquisition of resources equivalent to
those affected. In these roles, trustees
provide advice to the OSC on
environmental issues, including
appropriate removal countermeasures,
that should be considered in the AC?,
provide timely recommendations to the
OSC during an incident for the
application of various removal
countermeasures, may initiate a
preliminary survey of the area affected
by a discharge to determine if trust
resources are, or potentially may be,
affected, and carry out a damage
assessment of the area in order to
recover monies to restore, rehabilitate,
replace, or acquire equivalent natural
resources. Preplanning and coordination
for damage assessment activities are
strongly encouraged at the regional and
area levels, both during the area and
regional plan preparation and during
specific incidents when coordination
must be with the predesignated OSC.
One coiumenter, noting the phrase
•‘managed or controlled” in
§ 300.600(a), suggested that the word
“protection” in the second sentence of
§ 300 600(b)(1) should be changed to
“control EPA agrees and has made the
change in today’s final rule
The same commenter claimed the use
of “most” to modify “anadromous fish”
in § 300 600(b)(1) is misleading and
inaccurate. EPA agrees and has made
this change as well as a conforming
change in § 300 600(b)(2) to delete
“certain” before “ariadromous fish” in
the second sentence to more accurately
reflect the trusteeship of anadromous
fish.
In addition to these changes made in
response to public comments, § 300 600
has been further revised to clarify that
trusteeship extends to the ecosystems
supporting specific natural resources,
and that habitat is included as part of
the ecosystem. This was recognized to a
degree by the current language of
§300.600(b)f1), referring to particular
“examples” of ecosystems and habitats
The revised language clarifies that the
supporting ecosystem concept applies
generally, and was not intended to refer
solely to the specific example of marine
fishery resources. In addition, the
revised language reflects that
trusteeship over natural resources also
extends over migratory species and their
supporting ecosystems throughout their
range within the sovereign jurisdiction
of the United States, states, or tribes.
Section 300.605—State Trustees
One commenter requested that the
word “may” in the provision reading
“The EPA Administrator or USCG
Commandant or their designee may
appoint the state lead trustee as a
member of the Area Committee,” be
replaced by the word “shall.” The
coinmenter stated that this change
would clarify that the lead trustee
designated by the governors shall
automatically be appointed to the Area
Committee.
Membership on the Area Committee
is an issue within the discretion of EPA
and the .JSCG. EPA and USCG wish to
retain this discretion and not commit to
a membership decision, in advance, in
all cases. The Agency expects, however,
that the decision regarding membership
of the state lead trustee will be made by
EPA or the USCG in consultation with
state representatives on the Area
Committee.
For consistency with revised
§300.600. the phrase “including their
supporting ecosystems” has been added
to modify the term “natural resources
Section 300.610—lnd,an Tribes
One commenter asked for an
explanation of the conditional language
regarding “trust restrictions on
alienation” of natural resources The
cornmenter also asked EPA to clarify
whether Indian tribes are voting
members of the RRT. In addition, the
commenter asked whether Indian tribes
are considered “participating agencies”
under § 300 155 to determine if Indian
tribes must clear their public statements
through the federal OSC’s news office
With regard to the language regarding
“trust restrictions,” this term refers to
land owned by an individual Indian,
which has a restricted title. That is, the
land cannot be sold without the
permission of the government, generally
the DOt
Regarding the conimenter’s other
questions about Indian tribes, § 300 305
specifically defines “states” to include
Indian tribes for purposes of the NC ?,
unless otherwise noted Section
300 180(b) explains that Indian tribes
have the opportunity to participate as
part of the response structure, as
provided in the AC?. Indian tribe
representatives also may participate
fully in all activities of the appropriate
RRT.
For consistency with revised
§ 300 600, the phrase “including their
supporting ecosystems” has been added
to modify the term “natural resources”
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Section 300.62 5—Responsibthties of
Trustees
Several comments concerned the
procedures governing NRDAs. One
commenter argued that response
managementld irection and damage
assessment should be considered
separate functions, performed by
separate agencies. because of potential
conflicts of interest within agencies and
among individuals in those agencies.
The commenter suggested reinforcuig
this division by separating, in time, spill
response from NRDA activities, just as
remediation and restoration activities
are separated from removal action under
CERCLA The cornmenter also stated
that agencies or individuals responsible
for damage assessments should not be
able to benefit from damage awards.
either through a monetary or job
security incentive The commenter
argued that such benefits were incurred
by certain agencies during the Exxon
Valdez spill The commenter suggested
that the incentive for such benefits
should be removed by clearly defining
the mission of government agencies
responding to spills (i.e , to minimize
the ecological impact of the spill) and
by ensuring that agencies with
responsibilities for spill response share
information and cooperate fully with all
parties responding to a spii 1 Finally, the
commenter argued that morues
designated for implementing the
restoration plan should not be used for
purposes unrelated to restoration, such
as funding a research institute or
purchasing land
Spill response and damage
assessments are separate functions,
performed by separate agencies At the
federal level, only the USCG and EPA
are tasked with response management
and direction, while only the natural
resource agencies (DOl, DOCINOAA.
U S Department of Agnculture,
Department of Energy, and Department
of Defense) are responsible for NRDAs
Natural resource trustees also assist the
OSC in determining response priorities
and strategies This role was reinforced
in OPA section 1011, which requires the
President to consult with the trustees on
removal actions The trustees advise the
OSC, who retains final decisionmaking
authority on response actio’is Both the
trusteeS and the OSC agencies have the
same basic mission—protection of the
environment By advising the OSC on
response. trustees may be able to avoid
or reduce the level of injury to natural
resources from a spill.
Entirely separating these activities in
time is not possible. The preamble to
the DOC proposed rule on RDAs (59
FR 1062, January 7, 1994) explains that
the first phase of NRDA activities, called
preassessment activities, is likely to be
conducted simultaneously with the
OSC-coordinated response activities
Some information needed for NRDA is
ephemeral andior perishable and must
be gathered quickly, before it
disappears Also, conducting these
activities simultaneously is generally
more cost-effective than conducting
them separately. Both activities may
involve gathering the same or similar
information if, for example, an OSC or
responsible party is collecting samples,
those samples may be shared with the
trustee(s), if all parties agree Trustees
may need to collect some data
themselves to accomplish their NRJJA
responsibilities.
Information should, to the maximum
extent possible, flow freely between
those agencies involved in the response
and those involved in the damage
assessment in addition, it is important
that the activities of the two groups be
closely coordinated, as is the intent of
§ 300,615(c)(3)(ii) However, EPA has
added language to this section to
reinforce that information supportive of
the response phase, although collected
for damage assessment, should be made
available immediately to the OSC to
support his or her decisions This
information flow will most likely be
through the SSC who, as part of the
OSCs staff, serves as the interface with
the lead administrative trustee for the
OSc
With regard to the use of damage
awards, for spills occurring after August
1990, the use of sums recovered as a
result of a damage assessment
conducted under the NOAA NRDA rule
is governed by section 1006( 1) of OPA
and includes NRDA and development
and implementation of a restoration
plan Such monies cannot be used for
ongoing funding of base program costs
or for activities other than assessment
and “the restoration, rehabilitation,
replacement. or acquisition of the
equivalent, of natural resources “The
budgets of natural resource trustee
agencies do not include funding from
natural resource damage settlements or
awards as part of their program
operations
The same commenter said that trustee
agencies should define their NRDA data
needs in advance of a spill so that data
required by the trustees could be
collected during the spill response
without directly involving the trustees
The coinmenter also argued that
information gathered about a spill
should be shared among the government
agencies. responsible party, and
contractors, so that response efforts may
be launched, coordinated, and made
more effective based on that
information
This point is addressed in the
proposed NRDA rule (59 FR 1052,
January 7, 1994) The NC? is not the
appropriate rule to address this issue
The proposed NRDA rule strongly
encourages federal, state, tribal, and
foreign trustees to develop prespill
plans at the local area or regional level
Suggested prespill activities include
identifying sources of information for
background data, designing a general
approach and protocols for data
collection and analysis. and establishing
a centralized data management system
for NRDA data The proposed rule also
encourages information gathering in the
most effective and efficient way
possible General information needs can
be worked out in advance, but each spill
is different and thus has specific
information needs
Another cornmenter noted that the
proposed NCP does not make clear the
role of the responsible party in assessing
natural resource damages and does not
describe the duties of the trustees with
respect to the responsible party The
commenter suggested that the final rule
explicitly authorize trustees, under
certain circumstances, to delegate the
authority to conduct the NRDA to the
responsible party Under such
circumstances the natural resource
trustee would retain final
decisionmaking and approval authority
The commenter noted that while the
proposed revisions to the NCP provide
that natural resource trustees may
follow the procedures outlined in the
DOt regulations governing NRDAs.
which support this approach, the NCP
should explicitly authorize the trustees
to delegate the authority to carry out the
assessment to the responsible party
The role of the responsible party in
NRDA for oil spills is addressed in the
proposed NRDA rule The NCP covers
spill preparedness and response, not
damage assessment and these comments
are, therefore, beyond the scope of this
rulemaking However, it should be
noted that the NCP does not impose an ’
of its own restrictions on the
relationship between the trustees end
the responsible parties
One commenter stated that the NCP
does not include requirements
concerning the coordination of damage
assessment or restoration activities,
presentation of claims, or settlement
negotiations between the state
representative and the OSC or RRT The
cominenter argued that the lack of such
requirements does not support the OPA
section 1006 provision which states that
liability for natural resource damages
“shall be (1) to the United States
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* * * (2) to any State
• • •.‘ The commenter further argued
put without a single lead trustee for the
top and pursue its natural
damage claim, settlement
would be cumbersome and
,,sral agencies within the state may
duplicate the damage assessment
ptv ss. To avoid these difficulties, the
ommenter suggested that § 300.615 be
amended by adding a new subparagraph
(dlv) which would read, “Liability for
itatural resource damage shall be to the
United States government, any State,
.uy Ind ian tribe, and to the government
of. foreign country and claims asserting
such liability shall be presented and
filed by the United States government,
any State. and Indian tribe, or the
government of a foreign country.”
The commenter has primarily raised
NRDA issues, which are being
addressed by the proposed NRDA rule
The NCP covers spill preparedness and
response, not damage assessment, and
these issues are, therefore, beyond the
scope of this rulemaking.
However, EPA would like to clarify
the roles of the state during the response
phase The state may serve in three
roles (1) as a natural resource trustee
performing damage assessment dunng
response operations; (2) as a natural
resource manager for spill response
activities (such as wildlife
rehabilitation) undertaken under the
OSC’s response structure; and (3) as a
responder as part of the response
management structure. The designation
of a single lead state trustee for damage
assessment is outside the scope of these
NCP revisions since this rule does not
address NRDA issues A lead
administrative trustee is designated on
an iricident.by-incident basis to serve as
the interface with the OSC on damage
assessment activities and to coordinate
natural resource trustee activities, state,
federal, and tribal. This may be a state
trustee. For spill response. the state
participates as part of the response
management structure, along with a
representative of the responsible party
and the(JSC
Concerns expressed by the commenter
regarding the potential for multiple
entities within a state asserting control
over the same resources, double
recovery, and other potential conflicts
within the state in implementing its
damage assessment responsibilities are
most appropriately addressed in the
ongoing NRDA rulemaking
One commeriter suggested the
reference to the OPA in
§300 615(c)(2)(i) should be to section
1006(c) rather than 1006(e) EPA agrees
and has made this change
Finally, one commenter suggested
corrections in the language to
§300 615(c)(3)(i) and (iii) to eliminate
the reference to a lead administrative
trustee role in the former and to
conform to a USCG proposed rule
relating to access to the OSLTF in the
latter EPA agrees and has made these
changes
Subpart H—Participation by Other
Persons
Section 300.700—Activities by Other
Persons
Two comments were received on this
subpart One commenter suggested the
NCP should address procedures for
response resources to switch from
private to government funding, and how
government funding may supplement
private resources.
Federal procurement laws address the
requirements for contracting for goods
and services, even under the conditions
described by the commenter The USC
has contracting services available as part
of the federal response orgamzation and
no further discussion of this issue is
necessary in the NCP The OSC has full
access to funding to supplement private
response resources, however, the federal
procurement laws must still be followed
if federal funding is to be used. These
requirements are adequately addressed
in the federal procurement regulations
and directives and no further discussion
of funding details in the NCP is
considered necessary.
The other commenter recommended
that any contractor responding to a spill
at the request of an OSC be guaranteed
payment out of the OSLTF, and further,
if a spiller defaults on payment to a
cleanup contractor it hired, the
contractor should be guaranteed
payment out of the OSLTF.
Contractors responding to a spill at
the request of the OSC do so under the
provisions of federal laws that address
the procurement of goods and services.
Anyone can submit a claim for
uncompensated removal costs, however,
no one can guarantee full payment from
the OSLTF. While a contractor could
expect reasonable reimbursement for
uncompensated costs, no assurances can
be provided that the full benefits of a
contract negotiated between two private
entities would be fully reimbursable. No
change to the NCP is necessary or
appropriate
Subpart/—Use of Dispersants and
Other Chemicals
Section 300.900—General
One commenter recommended that
EPA defer promulgating revisions to
Subpart J until the results of a number
of studies that are being conducted on
alternative response techniques to
mechanical recovery, including
dispersants and in-situ burning, can be
evaluated.
In enacting the OPA, Congress
required the President (delegated to
EPA) to revise the NCP to reflect the
new provisions and authorities of the
statute. In promulgating the proposed
and final revisions to Subpart J of the
NC ?, EPA has attempted to take into
account all readily available information
and studies concerning oil spill
response measures, including
alternative response measures EPA
believes that it must promulgate the
final N P at this time in order to avoid
any further delays in codifying the
provisions and authorities established
by the OPA. If new information or
studies become available that impact the
Agency’s regulation of oil spill response
measures under Subpart J. EPA will
review this information and make
regulatory changes if and as appropriate
Three commenters stated that
proposed Subpart J fails to present a
balanced approach to oil spill response
techniques, placing an undue emphasis
on chemical countermeasures and
failing to adequately address
mechanical recovery strategies One
commenter noted that Subpart J’s
emphasis on chemical countermeasures
is inconsistent with the OPA and
contrary to current USCG regulations,
which provide that mechamcal
containment and recovery is the
response of first choice.
EPA does not agree with the
commenters that Subpart J fails to
present a balanced approach to oil spill
l’esponse techniques Subpart J does not
state or imply that chemical
countermeasures are preferred over
mechanical recovery devices EPA
believes that the circumstances
surrounding oil spills and the factors
influencing the choice of a response
method or methods are many, and the
NCP does not and should not indicate
a preference for one response method
over another OSCs, RRTs, and Area
Committees must be afforded flexibility
in authorizing or preauthorizing the use
of a specific response method to protect
the public health and welfare and the
environment
EPA does recognize, however, that
Subpart J focuses on the regulation of
chemical and bioremediation spill
mitigating devices and substances As
stated in the preamble to the proposed
NCP, EPA believes that Congress’
primary intent in regulating products
under the NCP Product Schedule is to
protect the environment from possible
deleterious effects caused by the
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Federal Register /Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations 47407
application or use of these products. In
looking at the long- and short-term
effects on the environment of all spill
mitigating devices and substances. EPA
has concluded that chemical and
biorernediation countermeasures pose
the greatest threat for causing
deleterious effects on the environment.
As a result, the Agency is focusing its
regulatory efforts on these substances
and is listing them on the Product
Schedule, and is not listing mechanical
recovery devices
EPA is also not regulating the use of
mechanical recovery devices under
Subpart 3 because USCG has
traditionally overseen the regulation of
these devices. IJSCG and the American
Society for Testing and Materials
(ASTM) are currently working together
to develop equipment standards for
mechanical recovery devices The MJVIS
also has been attempting to develop
equipment standards and facilitate
research and development on
mechanical devices EPA believes it
would be unnecessarily duplicative for
it to focus its efforts in these areas at the
same time other federal agencies are
addressing these issues
EPA would like to emphasize that it
is not discouraging the use of
mechanical recovery devices to respond
to oil spills by not regulating these
devices under Subpart j or listing them
on the Product Schedule The listing of
a product on the Product Schedule does
not mean that EPA approves, authorizes,
or encourages the use of that product on
an oil spill: rather, the listing of a
product means only that data have been
submitted to EPA as reqw red by
Subpart 3 of the NOP The fact that
mechanical devices will not be listed on
the Product Schedule does not mean
that these devices cannot be used by
OSCs in response to discharges of oil or
included in preauthorization plans by
Area Committees and RRTs On the
contrary, the fact that these devices are
not listed on the Product Schedule
means that OSCs can use mechanical
recovery devices without being subject
to the provisions in § 300 910 governing
the authorization of use of products
listed on the Product Schedule
Three commenters disagreed with
EPA’s interpretation of the phri.se
“other spill mitigating devices and
substances.” stating that this phrase
should be interpreted to include
mechanical recovery devices such as
pumps, booms, or skimmers One
commenter stated that the legislative
history of the OPA. as detailed in the
Conference Report for the OPA,
Jemonstrates that Congress intended
this phrase to be interpreted broadly
and to include mechanical, surveillance,
and chemical and biological response
techniques.
As discussed above and in the
preamble to the proposed NC?, EPA
believes that Congress’ primary intent in
regulating products under the Product
Schedule is to protect the environment
from possible deleterious effects caused
by the application or use of these
products. EPA is not interpreting the
phrase “other spill mitigating devices
and substances” to include mechanical
recovery devices, and is not regulating
these devices under Subpart), because
the Agency does not believe that the use
of these devices to respond to oil spills
presents a significant environmental
danger. EPA has reviewed the
Conference Report for the OPA lconf.
Rep 101—653, 101st Cong 2nd Seas
(1990)) and believes that it does not
clearly indicate whether the term “other
spill mitigating devices and substances”
was intended to include mechanical
recovery devices for the purposes of the
NCP Product Schedule There is
certainly no indication in the
Conference Report that the inclusion of
mechanical recovery devices on the
Product Schedule be mandatory. EPA
believes that its interpretation is
reasonable
Section 300 910—A uthonzotion of Use
One commenter expressed opposition
to the mandatory requirement in new
§ 300 910(a) that RRTs and Area
Committees address the
preauthorizauon of chemical and
bioremediation product use. The
corumenter argued that EPA has not
demonstrated that the current system is
ineflective or untimely and that this
mandatory requirement will take time
away from the evaluation of mechanical
and other response techniques
As discussed in the preamble to the
proposed NCP, the preauthorization
option under existing § 300 910(e) has
been used infrequently in the past.
Although some RRTs have developed
preauthorization plans for the use of
products in response to oil spills, the
overall election to make use of this
option has been less comprehensive
than EPA envisioned when the
provision was developed Consequently,
EPA proposed to make, and is today
making, the existing preauthonzati on
option mandatory EPA believes that a
more comprehensive use of
preauthonzation by the RRTs and Area
Committees will create a more effective
and timely oil spill response system
because many decisions on product use
will be made prior to the occurrence of
oil spills. The Agency does not agree
with the comrnenter that the mandatory
preauthcnzation provision will de-
emphasize or take time away from the
consideration of the use of mechanical
and other response techniques. RRTs
and Area Committees should address
the use of mechanical and other
response techniques, as well as spill
mitigating devices and substances
regulated under Subpart J, in their
preauthorization plans. Also, EPA
would like to stress that
preauthonzation decisions may result in
not preauthonzing the use of a specific
chemical countermeasure for example,
areas may be designated in which the
use of certain dispersants or other spill
mitigating devices and substances is
prohibited.
Another commenter suggested that
preauthorization plans be required to
address the use of sorbents The
commenter argued that such planning
would promote the use of the most
effective and appropriate sorbent for any
given spill The commenter also noted
that the misuse of a sorbent product or
the use of the wrong sorbent product
can result in a totally ineffectual
cleanup, increased and unnecessary
environmental damages from oil
pollution, and additional cleanup
expenses
As discussed in the preamble to the
proposed NC?, EPA does not interpret
the phrase “other spill mitigating
devices and substances” to include
sorbents and does not regulate sorbents
under Subpart) or list them on the
Product Schedule EPA believes that the
use of sorbents, by themselves, will not
create deleterious effects on the
environment because sorbent materials
are essentially inert and insoluble in
water and because the basic components
of sorbents are non-toxic Consequently,
RRTs and Area Committees are not
being required to address the use of
sorbents as part of their planning
activities or when they are developing
preauthorization plans under Subpart I
This does not mean, however, that RRTs
and Area Committees cannot or should
not address the use of sorbents in their
preauthorization plans EPA encourages
RRTs and Area Committees to address
the use of all types of spill mitigating
devices and substances, including those
not listed on the Product Schedule,
when developing preauthorization
plans Also, as suggested by the
commenter, the Agency encourages
RRTs and Area Committees to consult
the IJSCC comprehensive sorbent data
base and the research being conducted
by Environn?ent Canada and ASTM
when making preauthorization
decisions on the use of sorhents
Two commenters expressed concern
that, although new § 300 9 10(a)
encourages preauthorization, it allows
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47408 Federal Register I Vol. 59, No. 178 I Thursday, September 15, 1994 / Rules and Regu]aticns
sgrrs and Area Committees too
•ucb latitude for the disapproval of
t icS without adequately defining
jndition5 under winch such
iapprovals would be appropriate.
7bise coinnienters recommended that
eb. P 0 should dearly specify, as
rsidance for the RRTs and Area
tavieiittees, the conditions under
which the use of a product is
•ppropnate and require pre-sp ill
approval for those conditions. The
conlmenters suggested that new
4 300.9101e) establish a preauthorisation
process that reqi.uns the approval of
products. except in those limited
circumstances where there are adequate
scientific data clearly indicating that
such use would be harmful. An
additional ccmxnenter recommended
that guidance be provided to the RRTs
and Area Coinnuttees on the
app bcability of data from the required
effectiveness and toxicity tests.
EPA believes that the RJtTs and Area
Committees must be afforded flexibility
in considenng relevant factors for
making preauthorization decisions and
developing preauthorization plans. EPA
does not believe that it is appropriate or
feasible to include all of the information
necessary to provide adequate guidance
for the RRTs and Area Committees on
the appropnateness of preauthorizabon
approvals or disapprovals or the
applicability of test data in the NC?.
This information should be pronded
through separately developed guidance
materials
Four corninenters stated that the RRTs
do not have the legal authonty to
approve or disapprove of
preauthqnzation plans developed by
Area Committees These commenters
argued that the approval process
proposed in new § 3 00.910(a) is
inconsistent with the CPA. winch
provides that Area Committees alone are
responsible for expediting authorization
,of the use of dispersants and other spill
mitigating substances These
conroenters also argued that the RRT
review and approval authority is
counterproductive and will result in
unnecessary delays Cne commenter
suggested that this section should
provide procedures for the coordination
of Area Committee activities and that
the RRTs should assist the Area
Committees in this regard
The CPA amends section 3 11(j) of the
CWA to require Area Committees to
‘work with state and local officials to
expedite decisions for the use of
dispersarits and other mitigating
substances and devices’ and to
“describe the procedures to be followed
for obtaining an expedited decision
regarding the use of dispersants.” To
meet these requirements, EPA proposed
to revise new § 300.910(a) (in addition
to changes to Subpart C) to require that
Area Committees be actively involved in
the preauthonzation process and that, as
part of their planning activities, they
develop preauthorization plans that
address the desirability of using
appropriate products on the Product
Schedule
EPA does not agree with the
commenters that requiring RRT review
and approval of preauthonzation plans
developed by Area Committees is
inconsistent with the CPA The CPA
does not stipulate that Area Committees
alone have responsibility for oil spill
contingency planning. The standing
RRTs also have responsibilities for oil
spill contingency planning, specifically
on a regional basis In order to create the
best possible response system, it is
i.mportant that the regional-level and
area-level contingency planning efforts
of the RRTs and Area Committees,
respectively, are closely coordinated
with each other and are consistent EPA
believes that the RRTs should serve in
an advisory and approval role regarding
preauthorization plans developed by
Area Committees to ensure this
consistency and because the RRTs’
expertise in oil spi 1 i response will be a
valuable asset in the development of
these preauthorization plans R ICa and
Area Committees should work together
to develop mutually-acceptable
preauthonzation decisions and plans
The Agency would like to clarify that
the RRT renew and approval authority
applies only to preauthonzation
decisions or plans. and not to the entu-e
content of ACPs Also, the EPA
Administrator and the Commandant of
the IJSCG possess the ultimate authority
for approving or disapproving an entire
AC ?, including the preauthon ration
plan This authority is not delegated in
any way to the RRTs
EPA does not believe that the RRT
review and approval authonty is
counterproductive or will result in
significant delays to the
preautherization process As discussed
in the preamble to the proposed NCP. in
a number of instances (e g, in the
inland watersl RETs may fulfill the role
of the Area Comnuttees. In these
instances, coordination between the two
separate entities will be facilitated to the
extent the RRT addresses both regional-
and area-level contingency planning- In
instances where the RRT and Area
Committees may exist as separate
entities, a number of RRT
representatives will most likely also
serve on the Area Committees for that
region This should facilitate the
coordination between these two bodies
and expedite the review and approval of
preauthorization plans by the RRT
EPA would like to clarify the RRT
review and approval authority. All
members of the RRT will be afforded an
opportunity to review and provide input
to the Area Committee on a draft
preauthorization plan However, only
the RRT representatives from EPA and
the state(s) with jurisdiction over the
waters of the area to which the plan
applies and the DCC and DC I natural
resource trustees will have the authority
to approve, disapprove or approve with
modification the draft preauthonzation
plan. This approval process is
consistent with the authonzation
procedures contained in existing
§ 300 910 and should minimize the time
necessary for RET approval of
preauthorization plans developed by the
Area Committees New § 300S10(a) is
being revised to state that “The RRT
representatives from EPA and the states
with jurisdiction over the waters of the
area to which a preauthorization plan
applies and the DCC and DO! natural
resource trustees shall review and either
approve, disapprove, or approve with
modification the preauthonzation plans
developed by Area Committees, as
appropriate’
One commenter suggested that the
!4CP establish time limits for the revie
and approval of preauthorization
applications Specifically, the
commenter recommended that EPA
establish a 60-day review period during
which Area Committees must determine
whether a preauthorization application
is complete end approve os deny the
application The commenter also
suggested that if an Area Committee
fails to act within the specified period
of time, the application should be
considered approved
EPA does not believe that it is
appropriate for the NC? to establish
specific deadlines for the review and
approval of preauthorization
applications at this tine because both
the Area Committee and the
prea uthorizati on process are still in the
initial stages ofunplemenlatioc Area
Committees should develop
preautborization plans and review
applications as expeditiously as
possible, but they also must be afforded
flexibility in accomplishing this
One coinmenter recommended that
new § 300 910(a) and Section 4 3(a) of
Appendix Ł mention the need for
preauthorization plans to cover
compliance with section 7 of the
Endangered Species Act This
conimenter also recommended that,
under new § 300.910 çb) and (c i,
consultation with the DOl and DCC
natural resource trustees should be
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required for obtnirnng product
approvals in all cases, not just “when
pracucable.’ The comrnenter noted that
the natural resou.xte trustees have a
strong interest, in all instances, in
erisunng that trust resources are not
inadvertently damaged by the
application of chemical
countermeasures.
EPA agrees that the RRTs and Area
Committees should be aware of the need
for preauthorization plans to comply
with the Endangered Species Act .
Development of these plans must
include compliance with section 7 of
the Endangered Species Act The
Agency believes that the natural
resource trustee representatives to both
the ERTs and Area Committees can
assist in this matter by facilitating
consultation to ensure this compliance
during the planning process Also, EPA
and the USCG plan to work with the
Fish and Wildlife Service and NOAA to
develop guidance on this issue EPA
believes that these steps will be more
effective in addressing tius issue than
adding new language to this section of
the NC?.
EPA does not agree with the
commenter that, under new § 300 910
(b) and (c), consultation with the DOC
and DOJ RET representatives should be
mandatory in all instances EPA
believes that the case-by-case
decisionroaking process for OSCs must
be flexible and must allow them to
minimize the burden of any
consultations due to the time-critical
nature of this process In most instances,
OSCs will consult with the DOC and
DOl representatives, but there maybe
instances where this consultation would
create critical delays in the
decisionmaking process
Another commenter slated that new
§ 300 Qioffi should be revised to compel
the RRTs to require the performance of
supplementary toxicity and
effectiveness testing when developing
preauthorization plans This commenter
argued that in order for an RET to do a
responsible job of preauthorizing the
use of a product for a specific region, it
must posses regionally specific
effectiveness and toxicity testing data
EPA does not agree with the change
suggested by this commenter EPA
believes that the RRTs should have the
authority to require additional testing if
they decide it is necassary, but should
not be compelled to require this
additional testing in all instances
Situations may exist where requiring
this additional testing would place an
unnecessary regulatory burden on both
the RRTs and the product
manufacturers/vendors.
Two commenters stated that the RET
supplementary testing authority
contained in new § 300.9 1 0 ( 1 ) should be
deleted from the final rule. These
commenters expressed opposition to
this authority because, in the
cornmenter’s view, it is intended to
make the preauthonz.ation of
dispersants and other chemicals more
difficult, erodes the statutory authority
of the Area Committees, and could add
significant delays to the
preauthorization process. One of these
commenters also argued that if EPA
anticipates using tests other than those
specified in Appendix C for this
supplementary testing, these tests
should be included in the NC? and be
subject to review as part of the
rulemaking process
EPA would like to clarify the
provisions of the supplementary testing
authority contained in new § 300 910 (1)
Under this authority. RRTs are
authcnzed to require product
manufacturers to conduct
supplementary effectiveness or toxicity
testing due to site- or area-specific
concerns when developing
p reauthorization plans. Any
supplementary testing that may be
conducted will follow the effectiveness
and toxicity testing protocols specified
in Appendix C of the NC? The RRTs
are authorized to require these tests to
be conducted, due to site- or area-
specific concerns, using parameters
other than those specified in Appendix
C For example, an RET might require
the performance of the dispersant
effectiveness test (the Swirling Flask
Dispersant Effectiveness Test) using a
type of oil other than that specified in
Appendix C, or an RET might require
the performance of the dispersant
toxicity test using an invertebrate
species other than that specified in
Appendix C
EPA’s purpose in adding new
§ 300 9 10(0 is to clarify the authority of
the RRTs concerning product testing
requirements and to provide more
relevant information to the RRTs and
Area Committees for their contingency
planning efforts This authonty is not
intended to make the preauthorization
of certain products more difficult and
does not authorize the RRTs to establish
more stringent effectiveness and toxicity
criteria EPA does not believe that the
addition of this new paragraph in any
way erodes the authority of the Area
Committees, but will enable them to
make more informed preauthorization
decisions by providing them with
additional site- or area-specific data, if
appropriate In addition, EPA believes
that the authority contained in this new
paragraph will not create substantial
delays in the preauthorization process.
and that any minor delays that may
occur are necessary to provide the RRTs
and Area Committees the information
they need to make informed
preauthonzation decisions.
Section 300 915—Data Reqwrernents
Dispersant Effectiveness Testing
Protocol
Four commenters expressed
opposition to EPA’s adoption of the
Swirling Flask Dispersant Effectiveness
Test as the standard test for measuring
dispersant effectiveness These
commenters stated that this change wa’.
based on a limited study and that there
are more appropriate dispersant
effectiveness tests available
internationally One commenter
suggested that EPA should have
considered the Warren Springs
Laboratory (WSL) Test, which has been
in use in the United Kingdom for
several years, and the Exxon Dispersant
Effectiveness Test (EXDET) Another
commenter recommended that EPA
defer implementing the Swirling Flask
test until an international
intercalibration work group that is
conducting research on dispersant
effectiveness testing can complete its
work and make recommendations
EPA believes that sufficient testing
was performed to qualify the Swirling
Flask test as an appropriate replacement
for the Revised Standard Dispersant
Effectiveness Test (RSDET). In April
1991, EPA convened a conference of
world experts to advise it on the state-
cf-the-art methods available for
dispersant effectiveness testing As a
result of that meeting, EPA decided to
pursue the three laboratory effectiveness
tests it studied RSDET, Swirling Flask
test, and IFP Test The determination
was made at that time that these three
tests offer the best combination of
features for study and, although each
may have some drawbacks, that they
were the best three of the nearly 25 tests
then available. No new information has
been discovered during the last three
years to modify the initial decision to
select these three tests for further study
In its laboratory study, 3 EPA
examined six different oils and three
separate dispersants. ran over 150
screening tests to determine the best
combinations of oil and dispersarit. and
evaluated those combinations using the
3 See Clayioo, John R Jr. Siu-Fai Tsaitg. Victo-is
Frank, Paul Me.rsden,a,nd ohn Harnngton.
cberrucai Oil Spill Disperienu Evaluation of Three
Laboratory Procedures for Eiiirnaiing Periorroence.
Final Report prepared by Science Applications
iniernaunnal Corporai iori for us En’.ironji,ental
Proiection Agency. 1992. eva ilabie iii the Docket for
this rulemaking,
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47410 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
three test methods selected by the panel
of experts. EPA believes that this
provides a sufficient collection of data
upon which to base the change to the
Swirling Flask test.
The change to the Swirling Flask test
is based primarily on the fact that this
test is easier to perform, is less
expensive, and requires less laboratory
skill, and not on the basis of improved
precision of the test itself The statistical
review of the data shows that both the
Swirling Flask test and the RSDET have
essentially the same precision EPA
believes that of the six or seven tests
used throughout the world today, there
is no test available that has greater
precision than the Swirling Flask test.
The WSL Test is certainly one of the
prominent laboratory d.ispersant
effectiveness tests used in the world
today. The decision not to evaluate this
test in the EPA study should not be
viewed as a cnticism of this procedure
EPA considered this test, but the
Swirling Flask test was judged to avoid
some of the problems associated with
the WSL Test.
The EXDET was not available for
evaluation until EPA had already
completed its evaluation, and has only
recently (March 1993) been published in
the literature There are certainly no
historical data associated with this test.
in contrast to the Swirling Flask test.
Farther, in a brief internal review, EPA
determined that the EXDET procedure
offers no significant advantages over the
Swirling Flask test
The international intercalibration
work group. of which EPA is a member,
has renewed the four or five laboratory
effectiveness tests currently in use
throughout the world today with an eye
towards determining if the results of one
test can be correlated to the results of
another That initial review resulted in
the conclusion that there was no good
way for the test results to be compared
EPA does not expect that this work
group will develop a new test in the
near future that will offer sigruficant
advantages over the Swirling Flask test.
If such a test is developed in the future,
EPA would be willing to review the
method as a possible replacement for
the Swirling Flask test
Three commenters stated that the
Swirling Flask lest method described in
Appendix C does not simulate real
world conditions Two of these
commenters expressed concern that this
may give some agencies and public
interest groups the unrealistic
expectation that dispersants may be as
effective in field applications as they are
in the laboratory tests These
cornmenters suggested that EPA
explicitly state that d.ispersant
effectiveness tests are designed and
conducted only to screen products, and
that the test results should he used only
for that purpose.
As staled in the preamble to the
proposed NCP, the test methods
described in Appendix C are intended
to provide a basic set of test procedures
that will provide baseline data for
comparison of products on a national
basis The testing protocols were not
developed with the intent of replicating
possible real-world situetions In using
the data currently available on the
Product Schedule, OSCs and RRTs are
well aware that these data are intended
for use for relative comparisons and
rankings of products Future EPA
guidance on the development of
preauthori ration plans and decisions
W i ll also address this issue
One commenter objected to the
dispersant-to-oil treat ratio (DOR) used
in the Swirling Flask test method,
arguing that a 1:10 ratio is at least twice
as high as would normally be used in
actual spill situations The cornmenter
noted that DORa of 1:20 or 1:25 are
typical, and that the higher dispersant
treat rate used in this test method would
allow weaker dispersants to perform
better than would be expected relative
to other dispersants. This same
commenter stated that the Swirling
Flask test was inconsistent with the
RSDET, historical standards, and
currently accepted standards because
the Swirling Flask test did not produce
results ranking dispersants in the same
order as the RSDET or other field’
corroborated laboratory tests The
commenter also noted that no other
government in the world—including
Canada—has officially accepted the
Swirling Flask test
Under ideal conditions, a laboratory
test would be representative of real-
world conditions However, thus far this
is not achievable, and EPA believes it is
misleading to represent laboratory data
as such The use of any test to measure
a product will only give a relative
ranking of that product against other
products tested with the same
procedure. There is no attempt on the
part of EPA to represent the laboratory
effectiveness test results as levels that
can be achieved in the field In fact,
field performance ‘will most likely be
‘ess effective than that achieved under
ideal laboratory conditions
The DON of 110 is specified for the
Swirling Flask test method and was
used in the EPA study to ensure that
sufficient dispersant was available for
complete dispersion of the test oil and
because this is a practical estimate of
the maximum level DOR that would be
expected in the field in a real situation
This would favor better performance of
the product than a lesser DON.
Furthermore, the 1:10 ratio was used i’
the RSDET procedure as well as the IF
method: the same ratio was needed for
all three tests to allow for proper
comparison
EPA does not believe that there
should be concern about the fact that
different laboratory tests will rank
dispersant products differently, nor
with the supposition that the Swirling
Flask test ranks products differently
than the existing RSDET. There has
never been a strong correlation in
ranking order from test to test, i e ‘ 10
dispersant products will be ranked
differently when tested by the various
laboratory effectiveness tests available.
EPA has never claimed that the detailed
ranking order produced by the RSDET is
meaningful or necessarily proper As
noted in the proposed NCP, the existing
RSDET has problems associated cc ith it
(e g.. complex and expensive to perform,
results in a large volume of wastewater)
that will be resolved by changing to the
Swirling Flask test
EPA knows of no laboratory
effectiveness test that correlates well
with field expenence. There are
numerous factors that come into play
and strongly affect whether a dispersant
works well under field conditions Or
of the most critical factors affecting I
effectiveness is probably whether the
dispersarit is properly applied
It is correct that the Swirling Flask
test has not been adopted by any other
govern.rnent, including Canada
However, it was developed and is used
extensively by Environment Canada and
adoption by the Canadian government is
expected The decision to adopt the test
in the United States, however, is based
on the method’s attributes and not on
whether it has been officially adopted
by any other government
One comrnenter stated that
calculating the percent effectiveness
value for a dispersant by averaging the
percent effectiveness values for Prudhoe
Bay crude and South Louisiana crude
oils may not be very useful to OSCs in
making decisions about the
effectiveness of a particular dispersant
on a single type of oil. The commenter
suggested that if EPA maintains this
averaging in the final rule, the Agency
should at least identify the dispersant
effectiveness velues for each I ) pe of test
oil separately on the Product Schedule,
in addition to the average percent
effectiveness value The commenter also
suggested that the Product Schedule
include the results of spills-of’
opportunity testing
EPA believes that calculating the
percent effectiveness value for a
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Federal Register / Vol. 59, No. 178 / Thursday. September 15, 1994 I Rules and Regulations 47411
dispersant by averaging the values for
these two test oils is the best approach
because this allows the effectiveness
data to reflect two types of oil that will
most likely be encountered in real-
world spill situations in U.S coastal
waters, yet maintains the simplicity of
the testing method The Agency also
selected this approach because it allows
a dispersant to meet the 50 percent
effectiveness acceptability critenon and
be listed on the Product Schedule,
despite poor performance of the
dispersant on one of the two test oils.
EPA does agree, however, that
presenting the dispersant effectiveness
data separately for each type of oil, as
well as For the final effectiveness value
(average of the two), will enable OSCs
to make a more informed evaluation of
the effectiveness of specific dispersants
Consequently, EPA will provide
dispersant effectiveness values for
Prudhoe Bay crude. South Louisiana
crude, and an average of the two for
each dispersant listed on the Product
Schedule. EPA notes that the dispersant
effectiveness acceptability criterion will
still be based upon the average percent
effectiveness value of these two types of
oil. Also. EPA does not believe it is
appropriate to include spills-of-
opportunity data on the Product
Schedule because the Schedule is
intended to provide baseline data for
comparison of products on a national
basis Both USCG and NOAA maintain
data bases that contain information on
chemical countermeasures used on
some significant U.S and international
oil spills.
Dispersant Toxicity Testing Protocol
One commenter objected to the
proposal of the Revised Standard
Dispersant Toxicity Test (RSDTTJ
protocol because a toxicity threshold or
acceptability criterion is not established
The commenter expressed concern that
t.he establishment of an effectiveness
threshold without the establishment of
a toxicity threshold encourages the use
of the most effective dispersants. rather
than the use of the least harmful (i e.,
least toxic) dispersa.nts. which is
inconsistent with the intent of the OPA
EPA does not agree that the approach
established in the NCP does not
encourage the use of the least harmful
dispersants EPA believes that the best
approach to regulating dispersants is to
not set a threshold or acceptability
criterion for toxicity, but to provide
OSCs, RRTs, and Area Committees the
toxicity data and allow them to make
decisions on dispersant use by weighing
the toxicity data against other variables
and the effectiveness data for those
dispersants that meet or exceed the
effectiveness threshold, In its
experience in oil spill response and
contingency planning, the Agency has
found that the factors impacting
dispersant use decisions based on
toxicity are more variable than those for
effectiveness (e.g , what are the
toxicological effects of the dispersant on
the wide variety of species indigenous
to the area?). The toxicity of any
substance is relative to the test agent,
target organisms, and the environment
in which the exposure occurs EPA
believes that OSCs, RRTs, and Area
Committees must be afforded a greater
degree of flexibility when making
dispersant use decisions based on these
toxicity factors Consequently. EPA is
not establishing a toxicity threshold for
dispersants EPA does agree, however.
that when making decisions on the use
of dispersants, OSCs, RRTs, and Area
Committees should use the least
harmful dispersants that have been
proven to be effective under the
standardized laboratory conditions
When making these decisions, OSCs,
RRTs, arid Area Committees will
possess toxicity data that will allow
them to rank the various dispersants
available based on acute toxicity.
One cornmenter stated that the test
species specified in the dispersant
toxicity testing protocol are not suitable
for determining freshwater toxicity The
commenter suggested that additional or
alternate toxicity tests be performed on
all products intended for freshwater use
EPA agrees with the comm enter that
the development and use of an alternate
dispersant toxicity test for freshwater
environments is a valid consideration
However, most RRTs in concert with
state regulatory agencies have put in
place procedures and/or guidance that
restrict the use of dispersants in
freshwater ecosystems due to the
potential impact of the dispersants on
potable water Consequently. EPA has
placed a higher priority on the
development of dispersarit effectiveness
and toxicity testing protocols for marine
environments The Agency is currently
considenng the development of a
complementary dispersarit toxicity test
for freshwater environments
Another commenter objected to the
use of only an acute toxicity testing
protocol This commenter argued that
acute toxicity tests provide little insight
into the effects of lower concentrations
of pollutants and do not contnbute to
the understanding of the accumulative
impacts of pollutants over long periods
of time The commenter suggested that
there should be testing for chronic or
sublethal concentrations as well as an
evaluation of the effects of products on
the reproduction, larval development,
and growth and maturation of juvenile
organisms.
EPA believes that providing the acute
toxicity data specified by Appendix C to
OSCs, RRTs, and Area Committees is
sufficient to allow for environmentally
protective authorization and
preauthonzation decisions on product
use. The Agency has conducted toxicity
tests of a longer duration (i e., 7-day
chronic estimator tests) that provide
additional information on sublethal
effects on survival, growth, and
fecundity These data, presented at the
annual meeting of the Society of
Environmental Toxicology and
Chemistry (October 1992), demonstrated
agreement (generally within one order
of magnitude) between LC 50 s derived
from the 7-day test and the acute (48- to
96-hour) test. In cases where growth and
reproductive effects were noted,
contaminant levels tended to fall just
below the concentration range at which
survival was affected. Also, EPA
believes that the acute toxicity data will
be useful to OSCs, RRTs, and Area
Committees with respect to risk
estimation A recently developed
model 5 allows for the risk estimation of
chronic effects from acute toxicity data
and allows for the integration of
application data into the framework for
risk estimation. In addition, OSCs,
RRTs, arid Area Committees are not
precluded from considenng any
available chronic toxicity data when
making authorization or
preauthorization decisions on product
use.
One commeriter recommended that
when conducting the RSDTT. EPA
should test dispersants only, rather than
testing dispersants amid dispersed oil
The commenter argued that testing
dispersed oil not only assesses the
effects of the chemical uptake of the
dispersant by the organisms, but also
physical effects due to contact t ’ith
dispersed oil droplets
EPA does not agree with the
recommendation suggested by the
commenter Chemical dispersants are
intended to increase the rate at hich
an oil slick is dispersed into the ater
column This dispersed oil is, by
definition, a mixiure of the dispersant
and the spilled oil As a result of this
‘See Wb iting.D .J Clark.) Briceno and C
Daniels, A Cornpanson of Seven.Day Cnronic
Toxicity Test Endpoints Using Nlysrds t”.lysidopsis
boh,ol. Silversides (Merudio berylirno). o 2 Fuel
Oil, and Oil Dispersarit Products, availante for
inspection in the public docket for ibis ‘ulemating
5 See Mayer. Foster, C Krause. D Buctier. lvi
Ellersieck, and G Lee. Predicting Chronic Lethality
of ChemicaLs to Fishes from Acute Toxic ‘. Test
Data Concepts and Linear Regression Analisis,
February 1993, available for inspection in the
public docket for this nilernaking
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47412 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
dispersion of oil, the possibility exists
for organisms dwelling in the water
column to come in physical contact
with the dispersed oiL The Agency
believes that it should not make any
difference whether an organism is kiUed
by the effects of a chemical dispersant
in the water or due to physical contact
with the dispersed oil (e.g , dispersed
oil covering the gills of a fish, thereby
inhibiting respiration). EPA believes
that the fact that dispersants cause oil to
enter the water column is sufficient
reason to test for the toxicological
effects of dispersed oil.
The Agency also believes that testing
the oil alone, as well as the oil and
dispersarit mixture, will provide useful
data on the relative toxicity of the oil
and the potential hazards associated
with dispersant use (i e., data derived
from the oil and dispersant mixture test)
relative to the hazards associated with
non treatment of the oil (i.e., data
derived from the oil only test). EPA
believes that the comparative nature of
the data will benefit the OSCs, RRTs,
and Area Committees in their
decisionmaking and planning activities
The same commenter expressed
concern that the dispersant toxicity
testing protocol uses a series of test
concentrations and durations that are
significantly greater than what a marine
organism would be exposed to in the
real world The cominenter stated that
this would result in test data that show
dispersants and other products to be
much more toxic than what would be
expected in the field. The ccmmenter
argued that these biased data may create
a negative impression among regulators.
leading to decisions to prohthit the use
of a product that actually could be used
safely.
As discussed above, the test methods
described in Appendix C are intended
to provide a basic set of test procedures
that will provide baseline data for
comparison of products on a national
basis The testing protocols were not
developed with the intent of replicating
possible real-world situations. The
dispersant toxicity testing protocol was
developed using conservative estimates
in using the data currently available on
the Product Schedule, OSCs and RRTs
are well aware that these data are
intended for use for relative
comparisons and rankings of products.
Three commenters questioned the use
of No. 2 fuel oil by the RSDTF when the
dispersant effectiveness testing protocol
specifies the use of Prudhoe Bay and
South Louisiana crude oils These
commenters suggested that the RSDTT
be revised to use the same oils as used
by the Swirling Flask test protocol One
commenter noted that the proceedings
of the workshop upon which the RSD1T
is partially based recommend the use of
both crude oils over No. 2 fuel oil
EPA believes that No. 2 fuel oil is the
most appropriate type of oil for use in
the RSDTT. The proceedings of the
workshop’ referred to by the
commenter based its test oil
recommendations on the potential use
of dispersants in the Gulf of Mexico In
developing the RSDTT, the Agency had
to consider the evaluation of dispersant
toxicity on a national basis. Also, one of
the objectives of this workshop was to
identify data needs. South Louisiana
and Prudhoe Bay crude oils were ranked
as the first two preferences in the
workshop proceedings because there is
relatively httle toxicity data for these
oils as compared to No 2 fuel oil.
EPA selected No 2 fuel oil as the
dispersant toxicity test oil for several
reasons The workshop recommended
the use of a test oil that is available in
large quantities arid is well
charactenzed in the scientific literature,
No 2 fuel oil satisfies both of these
recommendations. There is also a larger
historical record of toxicity data on
marine organisms for No 2 fuel oil than
for other types of oils, including South
Louisiana and Prudhoe Bay crudes
EPA agrees with the commenters,
however, that eventually the
effectiveness and toxicity tests for
dispersants should specify the same test
oils As a result. EPA will conduct
research and collect data on the RSD1 ’T
using Prudhoe ay and South Louisiana
crudes, these data will be made
available to the public if this research
indicates that regulatory revisions are
appropriate, the Agency will make these
changes to the RSDTF In addition, new
§ 300 9 10(1 ) provides that RRTs may
require supplementary toxicity testing
to obtain data that will be more specific
and relevant due to area- and site-
specific concerns For example, the RRT
responsible for Hawaii might require
toxicity testing for specific dispersants
using a crude oil in addition to No 2
fuel oil
One commenter obiected to EPA
conducting the effectiveness and
toxicity testing required for dispersants
under Subpart J The commenter stated
that not accepting industry-generated
data implies that industry is not a
credible source of information The
commenter also stated that industry will
be concerned that a government
laboratory would interpret toxicity data
t See Duke. Thomas and Gary Petraizo o, edt
Oil and Dispersani Toxicity Testing. Proceedings of
a Workshop on Technical Specifications, US
Department of the Interior. New Orleam. January
1989, available (or inspection in the public docket
For this rulemaking
too conservatively. Another coinmenter
recommended that both EPA and
commercial laboratories should be
allowed to conduct dispersant toxicity
testing.
EPA wishes to emphasize that it
believes industry is a trustworthy source
of testing data. As discussed in the
preamble to the proposed NCP, EPA
believes that, given the establishment of
an effectiveness acceptability criterion
for dispersants. it is necessary to
maintain as much consistency and
reproducibility in the dispersarit
effectiveness testing results as possible
Upon further review of this issue, EPA
believes that the necessary consistency
and reproducibility in effectiveness
testing results will be maintained if
dispersant manufacturers are
responsible for conducting the required
dispersant effectiveness test and
submitting the data to EPA The Agency
also believes that requiring dispersant
manufacturers to conduct the specified
effectiveness and toxicity tests is the
most efficient way to ensure that OSCs,
RRTs. arid Area Committees have the
information necessary to make informed
decisions on dispersant use.
As a result. EFA is revising Subpart J
arid Appendix C to the NCP to require
that dispersant manufacturers (or the
commercial laboratories they select)
conduct the effectiveness and toxicity
tests specified for dispersants Also, to
guarantee Agency control over the
consistency and reproducibility in
effectiveness test results. EPA explicitly
reserves in the rule the right to request
additional documentation regarding
both tests and conduct verification
testing of the dispersant effectiveness
test results submitted by manufacturers
Although the Agency has decided not
to finalize the proposed requirement
that only EPA conduct the dispersant
tests, this aspect of the final rule is
consistent with the system that has been
used by the regulated community to this
point Prior versions of the NCP
required dispersant manufacturers to
conduct the specified effectiveness and
toxicity tests and submit the test results
to EPA However, dispersant
manufacturers will now be responsible
for conducting the new Swirling Flask
Dispersant Effectiveness Test specified
in Appendix C
Only those dispersants that meet or
exceed the dispersant effectiveness
acceptability cnterion of 45 percent
must be tested for toxicity, using the
RSDTT included in Appendix C
Because of this, and because the new
effectiveness test is simpler, easily
replicable. and less expensive than the
previous test, the new requirements for
dispersant testing will offer significant
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Federal Register I Vol. 59, No. 178 1 Thursday, September 15, 1994 / Rules and Regulations 4741.
cost savings to those wishing to list new
products on the Schedu .le.
EPA is revising paragraphs (7) and (8)
of § 300.915(a) and Section 1.1 of
Appendix C to state that dispersant
manufacturers are responsible for
conducting the specified dispersant
effectiveness and toxicity tests.
Manufacturers must submit test results
arid supporting data, along with a
certification signed by responsible
corporate officials of the manufacturer
and laboratory stating that (1) the test
was conducted on a representative
product sample. (2) the testing was
conducted using generally accepted
laboratory practices, and (3) they believe
the results to be accurate EPA is also
revising paragraph (‘12) of § 300 915(a)
to add that laboratories performing
toxicity tests for dispersants must
demonstrate previous toxicity test
experience in order for their test results
to be accepted Section 2.3.2 of
Appendix C is being revised to state that
the standard test oils for the Swirling
Flask test can be obtained &om the
Resource Technology Corporation (2931
Soldier Springs Rd.. P.O. Box 1346.
Lararnie. WY. 62070, (307) 742—5452).
Section 300 920(a) is also being
revised to reflect that dispersant
manufacturers are responsible for
conducting the required effectiveness
and toxicity tests Paragraph (2) of this
section explains that EPA reserves the
right to request further documentation
of the test results submitted by
dispersant manufacturers This
paragraph also stales that EPA reserves
the right to verify test results arid
consider the results of its verification
testing in determining whether a
dispersant meets the listing criteria,
Within 60 days of receiving a complete
application for listing a dispersant on
the Product Schedule, EPA will notify
the manufacturer of its decision to list
the product on the Schedule or request
additional information and/or a sample
of the product Within 60 days of
receiving the additional product data
and/or sample. EPA will notify the
manufacturer in writing of its decision
to list or not list the product As was
specified in the proposed NCP, a
dispersarit manufacturer whose product
was determined not to be eligible for
listing on the Product Schedule may
request the EPA Administrator to review
the determination.
Surface Washing Agents
Two commenters stated that EPA’s
intended methodology for determining
the effectiveness of surface washing
agents was unclear in the proposed
NcP.
EPA would like to clarify that it is not
specifying an effectiveness testing
protocol for surface washing agents at
this time EPA is currently conducting
research on developing a test method
and may specify a protocol at a later
date. The Agency is creating a separate
category for surface washing agents on
the Product Schedule because a number
of products currently listed under the
dispersant” category on the Schedule
are actually surface washing agents
Separating these very different kinds of
products will provide a more accurate
and comprehensive list of products
available to OSCs, RRTs, and Area
Committees during a spill and for
preauthorization
Bioremedjation Agent Testing Protocols
Two commenters stated that the
Bioremediation Agent Effectiveness Test
proposed by EPA in Appendix C may be
appropnate as a research protocol, but
it is too complex and expensive for use
as a standard product screening test
These commenters recommended that
EPA develop a reliable, more routine,
and less expensive test method for
quantifying hydrocarbon degradation.
EPA agrees that the establishment of
a less expensive, less complex, and
better analytical procedure to determine
bioremediation agent effectiveness is
desirable. However, due to the
complexity of crude oil arid the general
lack of understanding of how
bioremediation agents perform. no such
analytical procedure exists at this time
hi developing the effectiveness testing
procedure specified in Appendix C,
EPA and the National Environmental
Technology Applications Center
(N’E’TAC) did consider cost and
complexity. (NETAC is a non-profit
corporation created in 1988 under a
cooperative agreement between EPA’s
Office of Research and Development
and the University of Pittsburgh Trust to
assist in the commercialization of
innovative environmental technologies)
The resulting procedure is the least
expensive and least complex. but still
reliable, procedure that could be
developed at this time If a less
expensive and(or less complex test is
developed in the future, EPA would be
willing to review the method as a
possible replacement for the
Bioreniediatian Agent Effectiveness Test
contained in Appendix C
One cornmeriter suggested that EPA
eliminate the use of a standard test oil
(i.e , Alaska North Slope (ANS) 521) in
the bioremediatiori agent effectiveness
testing protocol because the use of
internal markers in this test makes the
use of a standard oil unnecessary. This
commenter also inquired about the
availability of the specified test oil
EPA does not agree that the
requirement for the use of a standard oil
should be eliminated EPA believes that
because microorganisms respond
differently to different types of oil, the
use of a standard oil is necessary until
a data base has been developed that can
demonstrate that any type of oil will be
adequate for testing purposes For
example, the light-end oils can have a
potential adverse effect on the
microorganisms tested and,
consequently. should not be used for
this test. The standard test oil can be
obtained from NETAC ’s Bioremediation
Products Evaluation Center (BPEC)
(telephone number and address
provided in Section 4 3 of Appendix C)
The same commenter stated that
hopane may not be the best internal
marker and suggested that EPA revise
the Bioremediation Agent Effectivenes
Test to allow for the use of different
markers.
EPA agrees with the cornmenter that
allowing for the use of more than one
internal marker in the test procedure
would be helpful As a result, EPA is
revising the bioremediation agent
effectiveness testing protocol contained
in Section 4.0 of Appendix C to allow
for the use of C 2 - or C,-phenanthrene ci
Ci-chrysene, as well as hopane. as the
internal marker EPA recommends.
however, that hopane be used because
the test method was developed using
this marker
Three comrnenters objected to the
required use of unfiltered Gulf Breeze
coast seawater in the proposed
bioreniediation agent effectiveness
testing protocol These commenters
argued that the required use of this
seawater is too restrictive for a test
meant to provide data on a national
basis Two of these commenters
suggested that EPA develop
biorernediation effectiveness test
methods for freshwater applications
EPA agrees that requiring the use of
unfiltered Gulf Breeze coast seawater in
a test that is meant to be used on a
national basis may be inappropriate As
a result, EPA is revising Section 4 3 of
Appendix C to specify the use of “clean
natural seawater ’ in the Biorernediation
Agent Effectiveness Test “Clean natural
seawater” means that the source of this
seawater roust not be heavily
contaminated with industrial or other
types of effluent For example, seawater
should not be obtained from a source
near shipping channels or discharges of
industrial or municipal wastewater, or
with high turbidity EPA is currently
conducting research on the issue of a
biorernediation agent effectiveness
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47414 Federal Register I Vol. 59,
No. 178 / Thursday, September 15, 1994 / Rules and Regulations
est1ng protocol for freshwater
epplications and may propose such a
protocol at a later date.
EPA is also making several other
revisions to the bioremediation agent
effectiveness testing protocol contained
In Section 4.0 and the summary
technical product test data format
ntamed in Section 6 0 of Appendix C.
Since the development of the proposed
NCP, NETAC has finalized and
published 7 its laboratory-scale testing
protocol for bioremediation agent
effectiveness. EPA is making these
revisions to Sections 4 0 and 6 0 of
Appendix C so that the Bioremediation
Agent Effectiveness Test is consistent
with the final protocol published by
NETAC. Revisions include the addition
of a section on statistical analysis, the
addition of an alternative gas
chromatograph/mass spectrometer (GC/
MS) sample cleanup procedure, and a
reduction in the number of sampling
events to save costs in conducting the
test. These revisions will make the
performance of the test more
straightforward and do not affect the
basic procedures for conducting this
test.
EPA received several comments
objecting to specific provisions of the
Bioremediation Agent Toxicity Test that
was proposed in Appendix C EPA
acknowledges that there are a number of
technical problems with this testing
protocol. Due to these problems and the
short period of time available to address
them, EPA is not including the
Bioremecliation Agent Toxicity Test in
the final NCP in this rulemaking.
Section 300.915(d)(8) and Appendix C
are being revised to reflect this change.
The Agency will continue its research in
this area and may propose a revised
bioremediation agent toxicity testing
protocol at a later date
Section 300 920—Addition of Products
to Schedule
Several commenters expressed
support for the establishment of the
effectiveness acceptability criterion or
threshold (50 percent, plus or minus 5
percent) for listing dispersants on the
Product Schedule A different
commeriter objected to this threshold.
suggesting that EPA adopt a threshold of
55 percent plus or minus 5 percent.
which would be more in agreement with
the Canadian standard Three other
Cornmenters stated that the 50 percent
threshold is too high. which could
exclude some potentially useful
See Eveluation Method3 Manual Oil Spill
Response Biorernediation Agents. National
Enviroiuneniel Technology Applications Center.
Pittsburgh. PA. jui 1993. available for inspec iioo
in the public docket for this rulemaking.
dispersants. One of these commenters
argued that the 50 percent criterion is
unrealistically high for the low energy,
long settling time (10 minutes) Swirling
Flask test protocol, noting that the 50 to
60 percent criteria used by other
countries are based on more energetic
testing conditions This commenter
suggested that EPA adopt a 20 percent
dispersant effectiveness threshold given
its use of the Swirling Flask test.
EPA believes that establishing the 50
percent (plus or minus 5 percent)
effectiveness acceptability critenon is
the best approach for listing dispersants
on the Product Schedule EPA exazmned
a number of issues when developing
this criterion for dispersants The 1988
U.S -Canada Free Trade Agreement
supports EPA in adopting a dispersant
effectiveness standard that is similar to
the Canadian standard (50 percent). The
Agency believes that the 50 percent
threshold strikes an effective balance
between restrictiveness and leniency in
listing dispersants on the Product
Schedule, is generally consistent with
the effectiveness thresholds established
by other countries, and allows for the
use of a broad range of dispersants at
various levels of technical development
The 50 percent criterion was selected
by EPA as a median level with the
expectation that it would eliminate from
the Product Schedule those d.ispersant
products that perform poorly On the
current Product Schedule, more than
half of the dispersants do not even
attain a 10 percent effectiveness level.
EPA believes that part of the reluctance
of OSCs to use dispersants is their major
concern that these chemical agents will
not work, even if properly applied EPA
believes that to select an effectiveness
critenon below 50 percent, even with
the low energy regime associated with
the Swirling Flask test, would
undermine the intent to eliminate those
products that cannot be expected to
perform in the sea.
Two c mmenters asked whether
products currently listed on the Product
Schedule would be required to be
retested given the revisions to Subpart
J and, if so, when these tests would be
conducted and a new Product Schedule
published
EPA would like to clarify that
products currently listed on the Product
Schedule will be required to be retested
according to the new testing protocols
specified in Appendix C. These
products will be retested as
expeditiously as possible, but EPA has
not yet established a schedule for this
retesting
Appendix E to Part 300—Oil Spill
Response
Four commenters expressed concern
regarding the effectiveness of Appendix
E, as proposed, to separate oil spill
response requirements of the NCP from
hazardous substance release
requirements
One of these comxnenters stated that
Appendix E, although well written and
helpful, is a guidance document that
should not be converted into a
regulation by this rulemaking The
commenter suggested that if the NCP
were better organized, a separate
appendix would be unnecessary EPA
disagrees that the information contained
in Appendix E should be issued as
guidance rather than promulgated as a
regulation. As stated in the introduction
to Appendix E, the purpose of creating
a separate oil spill response appendix
was to compile general oil discharge
response requirements into one
document to aid participants and
responders under the national response
system. In EPA ’s view this goal would
not be achieved if the oil discharge
response requirements were available
only in a guidance document format.
Three conunenters believed that there
are inconsistencies between the
provisions in Appendix E arid those in
the body of the NCP. One of these
commenters stated that the proposed
approach for separating CERCLA and oil
response-related requirements merely
exacerbates the confusion created by the
format of the existing NC? The
commenter explained that EPA’s
proposal effectively makes responses to
oil discharges subject to two sets of
pc tentially conflicting requirements. All
three commenters recommended that
EPA carefully review all relevant
sections of the NC? and Appendix E to
ensure absolute consistency in policy.
instructions, guidance, and
requirements between these two parts of
the final rule.
As noted in the introduction to
Appendix E in the proposed rule, the oil
spill response appendix was created to
compile general oil discharge response
requuements into a single docwnent to
aid participants and responders under
the national response system As a
result, the appendix does not alter in
any way the meaning or policy stated in
other sections or subparts of the NC?
As noted in the preamble to the
proposed rule, some minor variations
between Appendix E provisions and
analogous provisions of the NC? rule
language were necessary to ensure that
the appendix address oil discharges
only (and not hazardous substance
releases as well, which continue to be
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Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations 47415
addressed in the NCP rule) As
suggested by the commenters. EPA has
conducted a careful review of Appendix
E and the relevant sections of the NCP
to ensure consistency in policy,
instructions, guidance, and
requirements between the two
documents, allowing, of course, for the
intentional minor variations mentioned
above As part of this review, the
Agency has revised Appendix E. where
appropriate, to be consistent with the
changes made m various subparts of the
NCP in response to public comments
These NCP changes are identified
elsewhere in this preamble and are
discussed in greater detail in the
Response to Comments document EPA
has not enumerated the corresponding
revisions to Appendix E here because
this would be redundant in light of the
substantive consistency between
Appendix E provisions and those
provisions of the NCP that relate to oil
discharges, EPA believes that the
comment that the proposal effectively
made oil spill response subject to two
sets of potentially conflicting
requirements has been addressed
adequately in today’s final rulemaking.
in addition to the revisions required
by comments on other subparts of the
NCP, several commenters recommended
editorial changes to various sections of
Appendix E. EPA has incorporated
these changes, as appropriate
HI. Summary of Supporting Analyses
A Executive Order 12866
Under E 0 12866 (58 FR 51735,
October 4, 1993), the Agency must
determine whether the regulatory action
is “significant” and therefore subject to
review by the Office of Management and
Budget (0MB) and the requirements of
the E 0 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 matenal 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 senous 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 0. 12866.
Pursuant to the terms of E.O 12866,
0MB has notified EPA that it considers
this rule a “significant regulatory
action” within the meaning of the
Executive Order. EPA has submitted
this action to 0MB for review. Changes
made in response to 0MB suggestions or
recommendations will be documented
in the public record
An economic analysis performed by
the Agency, available for inspection in
Room M2427 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 $33 million during
the first year that the rule is in effect and
approximately $11 3 million in each
subsequent year At a 7 percent interest
rate over 10 years, the annualized costs
are approximately $14 I million
Virtually all costs are incurred by the
federal government and, in particular,
by the USCG and EPA
The economic analysis prepared in
support of this final rule also includes
a qualitative assessment of the
environmental benefits associated with
the revisions The NC? revisions are
expected to lead to quicker, more
efficient, and more appropriate
responses to discharges of oil and
releases of hazardous substances The
benefits that would result from such
improvements (i e , preventing oil spills
from occurring or mitigating the seventy
of the spills that do occur) are assumed
to be substantial. Benefits include
avoided clean-up costs and natural
resource damages as well as reductions
in other damages caused by oil spills,
such as damage to private property, lost
profit by business, public health risks,
and foregone existence/option values
B Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
requires that a Regulatory Flexibility
Analysis be performed for all rules that
are likely to have a “significant impact
on a substantial number of small
entities “To determine whether a
Regulatory Flexibility Analysis was
necessary for this rule, a preliminary
analysis was conducted (see the
“Economic Impact Analysis of the
Revisions to the National Oil and
Hazardous Substances Pollution
Contingency Plan,” Chapter 5, available
for inspection in Room M2615 at the
U.S. Environmental Protection Agency,
401 M Street, SW , Washington, DC
20460) The results of the preliminary
analysis indicate that this rule will not
have significant adverse impacts on
small businesses because such entities
are unlikely to be affected by revisions
to the federal planning and response
mechanism for pollution incidents
Revisions to Subpart J would impose
certain additional requirements on
small manufacturers of dispersants and
bioremediation agents seeking to list
products on the NCP Product Schedule
However, the analysis revealed that the
revisions would not significantly impact
the economic viability of such concerns
as the market is currently structured
Under the final rule, certain local
government agencies (e g , LEPCs)
would be required to play a supporting
role in developing ACPs The analysis
revealed that fulfilling this role would
not place a significant burden on a
substantial number of such entities
Therefore, EPA certifies that this rule is
not expected to have a significant
impact on small entities, and therefore
no Regulatory Flexibility Analysis is
necessary.
C Paperwork Reduction Act
The information collection
requirements in this rule have been
approved by 0MB under the Paperwork
Reduction Act, 44 U S C 3501 et seq
and have been assigned control number
2050—0141.
The collection of information required
to prepare and submit materials for
listing a product on the NCP Product
Schedule is estimated to have a public
reporting burden varying from 14 to 40
hours per response in the first year and
subsequent years, with an average of 26
hours per response. This includes time
to review instructions and guidance,
search existing data sources, gather and
maintain the data needed, and complete
and review the collection of
information
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 Street, 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 0MB Control Numbers
EPA is also amending the table of
currently approved information
collection request (ICR) control numbers
issued by 0MB for various regulations
This amendment updates the table to
accurately display those information
requirements contained in this final
rule This display of the 0MB 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 I and OMB’s implementing
regulations at S CFR part 1320
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47416 Federal Register / Vol. 59. No. 178 / Thursday, September 15, 1994 / Rules and Regulations
The ICR was previously subject to
public notice and comment prior to
0MB approval. As a result, EPA ds
that there is “good cause” under sect.ion
553(b)(3)(B) of the Administrative
Procedure Act (5 U.S.C. 553(b113)(B)) to
emend this table without prior notice
end comment Due to the teclinjcaj
nature of the table, further notice and
areiment would be unnecessary.
List of Subjects
40 CFR Part 9
Environmental protection, Reporting
end recordkeeping requirements
40 CFR Part 300
Air pollution control, Chemicals,
Hazardous materials, Hazardous
substances, incorporation by reference.
Intergovernmental relations. Natural
resources, Occupational safety and
health. Oil pollution, Reporting and
recordkeeping requirements, Superfund,
Waste treatment and disposal, Water
pollution control. Water supply.
Dated. August 15. 1994.
Carol M. Browner.
Ad ministrator
For the reasons set out in the
preamble, 40 CFR parts 9 and 300 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 11 SC 135 at seq. 136—136y.
15 U SC 2001. 2003. 2005. 2006.2601—267].
21 USC 331j. 346a, 348. 31 USC 9701.33
US C 1251 et seq .1311, 13l3d, 1314, 1321,
1326, 1330, 1344. 1345 Id) and (a), 1361. E 0
11735, 38 FR 21243, 3 cFR, 1971—1975
Comp. p. 973. 42 U.S C. 241, 242b, 243. 246,
300f, 300g. 300g—1, 300g—2. 300g—3, 300g—4.
300 5—5. 3005—6 . 300J—1. 300j—2. 3001—3. 3O0 —
4. 300}—9, 1857 et seq .6901—6992k. 7401—
7 671q, 7542. 9601—9657, 11023, 11048
2 Section 9 1 is amended by adding
a new entry to the table in numencal
order to read as follows.
§9.1 0MB approvals under the Paperwork
Reduction Act.
• * * * •
40 CFR citation
National Oil and Nazardous Substances Pol-
lution Contingency Plan
PART 300—NATIONAL OIL AND
HAZARDOUS SUBSTANCES
POLLUTION CONTINGENCY PLAN
3. The authority citation for part 300
is revised to read as follows:
Authority: 42 U S.C 9601—9657; 33 U S C.
1321(d), E 0 11735, 38 FR 21243. E.O.
12580, 52 FR 2923, E 0. 12777, 56 FR 54757
4 Subparts A, B, C. and D are revised
to read as follows:
PART 300— [ AMENDED)
Subpart A—lntrodu c l i on
Purpose and objectives
Authority and applicability.
Scope
Abbreviations
Definitions
Use of number and gender
Computation of time
Subpart B —ResponsibilIty and
OrganIzation for Response
300 300 Duties of President delegated to
federal agencies
300 105 General organization concepts
300.110 National Response Team.
300 115 Regional Response Teams.
300.120 On-scene coordinators and
remedial Prolect managers general
responsibilities.
300 125 Notification and comznunications
300 130 Determinations to initiate response
and special conditions
300 135 Response operations
300 140 Multi.regional responses
300 145 Special learns and other assistance
available to OSCs/RPMs
300 150 Worker health and safety
300 155 Public information and community
relations
300 160 Documentation and cost recovery
300165 OSCreports
300,3 70 Federal agency participation
300 375 Federal agencies additional
responsibilities and assistance
300 180 State and local participation in
response
300 185 Nongovernmental participation
Subpart C—Planning and Preparedness
300 200 General
300.205 Planning and coordination
structure
300 210 Federal contingency plans
300 211 OPA facility and vessel response
plans
300 212 Area response drills
300 215 Title Ill local emergency response
plans
300 220 Related Title III issues
Subpart D—Operatlonai Response Phases
for Oil Removal
300 300 Phase I—Discovery or notification
300 305 Phase l1—Prel irr iinary assessment
and initiation of action
300 310 Phase Ill—Containment,
countermeasures, cleanup, and disposal
300 315 Phase tV—Documentation and cost
recovery
300.317 National response priorities
300 320 General pattern of’ response
300 322 Response to substantial threats to
public health or welfare of the United
States.
300 323 Spills of national significance
300.324 Response to worst case discharges
300,335 Funding
Subpart A—introduction
§ 3001 Purpose and objectives.
The purpose of the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP) is to provide
the organizational structure and
procedures for preparing for and
responding to discharges of oil and
releases of hazardous substances,
pollutants, and contaminants.
§ 300.2 Authorfty and applicabilIty.
The NC? is required by section 105 of
the Comprehensive Envtronrnerttal
Response. Compensation, and Liability
Act of 1980. 42 U S.C. 9605, as amended
by the Superfund Amendments and
Reauthorization A t of 1986 (SARA).
Pub. L. 99—499, (hereinafter CERCLA).
and by section 311(d) of the Clean Water
Act (CWA), 33 U.S.C. 1321(d), as
amended by the Oil Pollution Act of
1990 (OPA). Pub. L. 101—380 In
Executive Order (EO.) 12777 (56 FR
54757, October 22, 1991), the President
delegated to the Environmental
Protection Agency (EPA) the
responsibility for the amendment of the
NC?. Amendments to the NCP are
coordinated with members of the
National Response Team (NRT) prior to
publication for notice and comment
This includes coordination with the
Federal Emergency Management Agency
(F’EMA) and the Nuclear Regulatory
Commission in order to avoid
inconsistent or duplicative requirements
in the emergency planning
resporisibthues of those agencies The
NCP is applicable to response actions
taken pursuant to the authorities under
CERCLA and section 311 of the CWA,
as amended
§ 3003 Scope.
(a) The NCP applies to and is in effect
for:
(1) Discharges of oil into or on the
navigable waters of the United States.
on the adjoining shorelines, the waters
of the contiguous zone, into waters of
the exclusive economic zone, or that
may affect natural resources belonging
to. appertalning to, or under the
exclusive management authority of the
United States (See sections 311(c)(1)
and 502(7) of the CWA).
(2) Releases into the environment c
hazardous substances, and pollutants
contaminants which may present an
imminent and substantial danger to
Sec.
300.1
300 2
300 3
300 4
300 5
300 6
300 7
300920 2050—0)41
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Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations 47417
public health or welfare of the United
States.
(b) The NCP provides for efficient.
coordinated, and effective response to
discharges of oil and releases of
hazardous substances, pollutants, and
contaminants in accordance with the
authorities of CERCLA and the CWA. It
provides for.
(1) The national response organization
that may be activated in response
actions. It specifies responsibilities
among the federal, state, and local
governments and describes resources
that are available for response.
(2) The establishment of requirements
for federal, regional, and area
contingency plans. It also summarizes
state and local emergency planning
requirements under SARA Title Ill.
(3) Procedures for undertaking
removal actions pursuant to section 311
of the CWA.
(4) Procedures for undertaking
response actions pursuant to CERCLA.
(5) Procedures for involving state
governments in the irtitiation.
development, selection, and
implementation of response actions,
pursuant to CERCLA
(6) Listing of federal trustees for
natural resources for purposes of
CERCLA and the CWA.
(7) Procedures for the participation of
other persons in response actions.
(8) Procedures for compiling and
making available an administrative
record for response actions
(9) National procedures for the use of
dispersants and other chemicals in
removals under the CWA arid response
actions under CERCLA
(c) In implementing the N P,
consideration shall be given to
international assistance plans and
agreements, secufity regulations and
responsibilities based on international
agreements, federal statutes, and
executive orders Actions taken
pursuant to the provisions of any
applicable international joint
contingency plans shall be consistent
with the NC?, to the greatest extent
possible The Department of State shall
be consulted, as appropriate, prior to
taking any action which may affect its
activities
(d) Additionally the NC? applies to
and is in effect when the Federal
Response Plan and some or all its
Emergency Support Functions (ESFs)
are activated
§ 3004 AbbrevIations.
(a) Deportment and Agency T,tie
Abbreviations
ATSDR—Agency for Toxic Substances and
Disease Registry
CDC—Centers for Disease Control
DOC—Department of Commerce
DOD—Department of Defense
DOE—Department of Energy
DOl—Departrnent of the Interior
DOj—Department of Justice
DOL—Departreent of Labor
DOS—Department of State
DOT—Department of Transportation
EPA—Environmental Protection Agency
FEMA—Federal Emer ency Management
Agency
GSA—General Services Administration
HHS—Departrnent of Health and Human
Services
NIOSH—National Institute for Occupational
Safety and Health
NOAA—Netionat Oceanic and Atmospheric
Administration
OSI-IA—Occupational Health and Safety
Administration
RSPA—Research and Special Programs
Administration
USCG—United States Coast Guard
USDA—United States Department of
Agnculture
Note Reference is made in the NCP to both
the Nuclear Regulator)’ Comrmssion and the
National Response Center In order to avoid
confusion, the NCP will spell Out Nuclear
Regulatory Commission and use the
abbreviation NRC only with respect to the
National Response Center
(b) Operational Abbreviations
ASP—Area Contingency Plan
ARARs—Applicable or Relevant and
Appropriate Requirements
aRCLIS—GERCLA information System
CRC—Community Relations Coordinator
CRP—Comnmunity Relations Plan
DRAT—District Response Advisory Team
DRG—District Response Group
ERT—Environrnental Response Team
ESF—Emergency Support Function
FCO—Federal Coordinating Officer
FRERP—Federal Radiological Emergency
Response Plan
FRP—Federal Response Plan
FS—Feasibility Study
HRS—Hazard Ranking System
LEPC—Local Emergency Planning Committee
NCP—National Contingency Plan
NPFC—Nationaj Pollution Funds Center
NPL—National Priorities List
NRC—National Response Center
NRS—Nattonal Response System
NRT—National Response Team
NSF—National Strike Force
NSFCC—National Strike Force Coordination
Center
O&M—Operstion and Maintenance
OSC—On-Scene Coordinator
OSLTF—.Oil Spill Liability Trust Fund
PA—Preliminary Assessment
PEAT—Public tnformaticn Assist Team
RA—Rernedial Action
RCP—Regmonal Contingency Plan
RD—Remedial Design
RERT—Radiological Emergency Response
Team
RI—Remedial Investigation
ROD—Record of Decision
RPM—Remedial Project Manager
RRG—Regional Response Center
RRT—Regionat Response Team
SAC—Support Agency Coordinator
SERG—State Emergency Response
Commission
SI—Site Inspection
SMOA—Superfund Memorandum of
Agreement
SONS—Spill of National Significance
SSC—Scientific Support Coordinator
SUPSALV—United States Navy Supervisor of
Salvage
USFWS—United States Fish and Wildlife
Service
§ 300.5 DefinItions.
Terms not defined in this section have
the meaning given by CERCLA, the
OPA, or the CWA.
Activation means notification by
telephone or other expeditious manner
or, when required, the assembly of some
or all appropriate members of the RRT
orNRT
Alternative water supplies as defined
by section 101(34) of CERCLA, includes,
but is not limited to, drinking water and
household water supplies.
Applicable requirements means those
cleanup standards, standards of control,
and other subsantive requirements.
criteria, or limitations promulgated
under federal environmental or state
environmental or facility siting laws
that specifically address a hazardous
substance, pollutant, contaminant.
remedial action, location, or other
circumstance found at a CERCLA site
Only those state standards that are
identified by a state in a timely manner
and that are more stringent than federal
requirements may be applicable
Area Committee (AC) as provided for
by CWA sections 311(a)(18) and (i)(4).
means the entity appointed by the
President consisting of members from
qualified personnel of federal, state, and
local agencies with responsibilities that
include preparing an area contingency
plan for an area designated by the
President
Area contingency plan (ACP) as
provided for by CWA sections
311(a)(19) and (j)(4), means the plan
prepared by an Area Committee that is
developed to be implemented in
conjunction with the NCP and RCP. in
part to address removal of a worst case
discharge amid to mitigate or prevent a
substantial threat of such a discharge
from a vessel, offshore facility, or
onshore facility operating in or near an
area designated by the President.
Bioremediabon agents means
microbiological cultures, enzyme
additives, or nutrient additives that are
deliberately introduced into an oil
discharge and that will significantly
increase the rate of biodegradation to
mitigate the effects of the discharge
Burning agents means those additives
that, through physical or chemical
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47418 Federal Register / Vol. 59, No. 178 / Thursday, September ij, 1994 / Rules and Regulations
means, improve the combustibility of
the materials to which they are applied.
CERCLA is the Comprehensive
Environmental Response,
Compensation, and Liability Act of
1980, as amended by the Superfund
Amendments and Reauthorization Act
of 1986.
CERCUS is the abbreviation of the
CERCLA Information System, EPA’s
comprehensive data base and
management system that inventories
and tracks releases addressed or needing
to be addressed by the Superfund
program. CERCLIS contains the official
inventory of CERCLA sites and supports
EPA’s site planning and t.racking
functions. Sites that EPA decides do not
warrant moving further in the site
evaluation process are given a “No
Further Response Action Planned”
(NFRAP) designation in CERCLIS. This
means that no additional federal steps
under CERCLA will be taken at the site
unless future information so warrants.
Sites are not removed from the data base
after completion of evaluations in order
to document that these evaluations took
place and to preclude the possibility
that they be needlessly repeated.
Inclusion of a specific site or area in the
CERCLIS data base does not represent a
determination of any party’s liability,
nor does it represent a finding that any
response action is necessary. Sites that
are deleted from the NPL are not
designated NFRAP sites Deleted sites
are listed in a separate category in the
CERCLIS data base
Chemical agents means those
elements, compounds, or mixtures that
coagulate. disperse. dissolve, emulsify,
foam, neutralize, precipitate, reduce,
solubilize, oxidize, concentrate, congeal,
entrap, fix, make the pollutant mass
more rigid or viscous, or otherwise
facilitate the mitigation of deleterious
effects or the removal of the pollutant
from the water. Chemical agents include
biological additives, dispersants,
sinking agents. miscellaneous oil spill
control agents. and burning agents, but
do not include sorbents
Claim for purposes of a release under
CERCLA, means a demand in writing for
a sw-n certain, for purposes of a
discharge under QVA, it means a
request, made in writing for a sum
certain, for compensation for damages
or removal costs resulting from an
incident
Claimant as defined by section 1001
of the OPA means any person or
government who presents a claim for
compensation under Title I of the OPA.
Coastal waters for the purposes of
classifying the size of discharges, means
the waters of the coastal zone except for
the Great Lakes and specified ports and
harbors on inland rivers.
Coastal zone as defined for the
purpose of the NCP, means all United
States waters subject to the tide, United
States waters of the Great Lakes,
specified ports and harbors on inland
flyers, waters of the contiguous zone,
other waters of the high seas subject to
the NC ?, and the land surface or land
substrata, ground waters, and ambient
air proximal to those waters The term
coastal zone delineates an area of
federal responsibility for response
action. Precise boundaries are
determined by EPA/USCG agreements
and identified in federal regional
contingency plans.
Coast Guard District Response Group
(DRG) as provided for by CWA sections
311(a)(20) and (j)(3), means the entity
established by the Secretary of the
department in which the USCG is
operating, within each USCG district,
and shall consist of: the combined
USCG personnel and equipment.
including marine fireflghtmg
equipment, of each port in the district;
additional prepositioned response
equipment; and a district response
advisory team.
Community relations means EPA’s
program to inform and encourage public
participation in the Superfund process
and to respond to community concerns
The term “public” includes citizens
directly affected by the site, other
interested citizens or parties, organized
groups, elected officials, and potentially
responsible parties (PRPs)
Community relations coordinator
means lead agency staff who work with
the USC/RPM to involve and inform the
public about the Superfund process and
response actions in accordance with the
interactive community relations
requirements set forth in the NC?
Contiguous zone means the zone of
thb high seas, established by the United
States under Article 24 of the
Convention on the Territorial Sea and
Contiguous Zone, which is contiguous
to the terntorial sea and which extends
nine miles seaward from the outer limit
of the territorial sea
Cooperative agreement is a legal
instrument EPA uses to transfer money.
property, services, or anything of value
to a recipient to accomplish a public
purpose in which substantial EPA
involvement is anticipated during the
performance of the project
Damages as defined by section 1001
of the OPA means damages specified in
ection 1002(b) of the Act, and includes
the cost of assessing these damages
Discharge as defined by section
311(a)(2) of the CWA, includes, but is
not limited to, any spilling, leaking,
pumping, pouring, emitting, emptying,
or dumping of oil, but excludes
discharges in compliance with a permit
under section 402 of the CWA,
discharges resulting from circumstances
identified and reviewed and made a part
of the public record with respect to a
permit issued or modified under section
402 of the CWA, and subject to a
condition in such permit, or continuous
or anticipated intermittent discharges
from a point source, identified in a
permit or permit application under
section 402 of the CWA, that are caused
by events occumng within the scope of
relevant operating or treatment systems
For purposes of the NC?, discharge also
means substantial threat of discharge
Dispersants means those chemical
agents that emulsify, disperse, or
solubilize oil into the water column or
promote the surface spreading of oil
slicks to facilitate dispersal of the oil
into the water column.
Drinking water supply as defined by
section 101(7) of CERCLA, means any
raw or finished water source that is or
may be used by a public water system
(as defined in the Safe Drinking Water
Act (42 U.S.C. 300 et seq) or as drinking
water by one or more individuals.
Environment as defined by section
101(8) of CERCLA, means the navigable
waters, the waters of the contiguous
zone, and the ocean waters of which the
natural resources are under the
exclusive management authority of the
United States under the Magnuson
Fishery Conservation and Management
Act (16 U.S C. 1801 et seq ), and any
other surface water, ground water,
drinking water supply, land surface or
subsurface strata, or ambient air within
the United States or under the
jurisdiction of the United States
Exclusive economic zone, as defined
by OPA section 1001, means the zone
established by Presidential
Proclamation Numbered 5030, dated
March 10, 1983, including the ocean
waters of the areas referred to as
“eastern special areas” in Article 3(1) of
the Agreement between the United
States of America and the Union of
Soviet Socialist Republics on the
Maritime Boundary, signed June 1,
1990
Facility as defined by section 101(9)
of CERCLA, means any building,
structure, installation, equipment. pipe
or pipeline (including any pipe into a
sewer or publicly owned treatment
works), well, pit, pond, lagoon,
impoundment, ditch, landfill, storage
container, motor vehicle, rolling stock,
or aircraft, or any site or area, where a
hazardous substance has been
deposited, stored, disposed of, or
placed, or otherwise come to be located,
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Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 I Rules and Regulations 47419
but does not include any consumer
product in consumer use or any vessel.
As defined by section 1001 of the OPA,
it means any structure, group of
structures. equipment. or device (other
than a vessel) which is used for one or
more of the following purposes:
Exploring for, drilling for, producing,
storing, handling, transfemng.
processing. or transporting oil This
term includes any motor vehicle, rolling
stock, or pipeline used for one or more
of these purposes
Feasibility study(FS) means a study
undertaken by the lead agency to
develop and evaluate options for
remedial action The FS emphasizes
data analysis and is generally performed
concurrently and in an interactive
fashion with the remedial mvestigation
(Rfl. using data gathered during the RI
The RI data are used to define the
objectives of the response action, to
develop remedial action alternatives,
and to undertake an initial screening
and detailed analysis of the alternatives.
The term also refers to a report that
describes the results of the study.
Federal Radiological Emergency
Response Plan (FRERP) means the inter-
agency agreement for coordinating the
response of various agencies. under a
variety of statutes, to a large radiological
accident The Lead Federal Agency
(LFA), defined by the FRERP. activates
the FRERP for any peacetime
radiological emergency which, based
upon its professional judgment. is
expected to have a significant
radiological effect within the United
States, its territories, possessions, or
terntorial waters and that could require
a response by several federal agencies
Federal Response Plan (FRP) means
the agreement signed by 27 federal
departments and agencies in April 1987
and developed under the authorities of
the Earthquake Hazards Reduction Act
of1977(42USC 7701 etseq)andthe
Disaster Relief Act of 1974 (42 U.S.C.
3231 et seq.). as amended by the
Stafford Disaster Relief Act of 1988
First federal official means the first
federal representative of a participating
agency of the National Response Team
to amve at the scene of a discharge or
a release. This official coordinates
activities under the NCP and may
initiate, in consultation with the OSC,
any necessary actions until the arrival of
the predesignated OSC A state with
primary junsdiction over a site covered
by a cooperative agreement will act in
the stead of the first federal official for
any incident at the site.
Fund or Trust Fund means the
Hazardous Substance Superfund
established by section 9507 of the
Internal Revenue Code of 1986
Ground water as defined by section
101(12) of CERCLA. means water in a
saturated zone or stratum beneath the
surface of land or water.
Hazard Ranking System (HRS) means
the method used by EPA to evaluate the
relative potential of hazardous
substance releases to cause health or
safety problems, or ecological or
environmental damage.
Hazardous substance as defined by
section 101(14) of CERCLA. means Any
substance designated pursuant to
section 311(b)(2)(A) of the CWA; any
element, compound. mixture, solution,
or substance designated pursuant to
section 102 of CERCLA; any hazardous
waste having the characteristics
identified under or listed pursuant to
section 3001 of the Solid Waste Disposal
Act (but not including any waste the
regulation of which under the Solid
Waste Disposal Act (42 U.S.C. 6901 et
seq.) has been suspended by Act of
Congress), any toxic pollutant listed
under section 307(a) of the CWA; any
hazardous air pollutant listed under
section 112 of the Clean Air Act (42
U.S C. 7521 et seq.); and any
imminently hazardous chemical
substance or mixture with respect to
which the EPA Administrator has taken
action pursuant to section 7 of the Toxic
Substances Control Act (15 U.S C. 2601
et seq) The term does not include
petroleum, including crude oil or any
fraction thereof which is not otherwise
specifically listed or designated as a
hazardous substance in the first
sentence of this paragraph, and the term
does not include natural gas, natural gas
liquids, liqaified natural gas. or
synthetic gas usable for fuel (or mixtures
of natural gas and such synthetic gas).
Indian tribe as defined by section
101(36) of CERCLA, means any Indian
tribe, band, nation, or other organized
group or community, including any
Alaska Native village but not including
any Alaska Native regional or village
corporation, which is recognized as
eligible for the special programs and
services provided by the United States
to Indians because of their status as
Indians “Indian tribe,” as defined by
OPA section 1001, means any Indian
tribe, band, nation, or other organized
group or community, but not including
any Alaska Native regional or village
corporation, which is recognized as
eligible for the special programs and
services provided by the United States
to Indians because of their status as
Indians and has governmental authority
over lands belonging to or controlled by
the tribe
Inland waters, for the purposes of
classifying the size of discharges, means
those waters of the United States in the
inland zone, waters of the Great Lakes,
and specified ports and harbors on
inland rivers.
inland zone means the environment
inland of the coastal zone excluding the
Great Lakes and specified ports and
harbors on inland rivers The term
inland zone delineates an area of federal
responsibility for response action.
Precise boundaries are determined by
EPA/USCG agreements and identified in
federal regional contingency plans
Lead administrative trustee means a
natural resource trustee who is
designated on an incident-by-incident
basis for the purpose of preassessment
and damage assessment and chosen by
the other trustees whose natural
resources are affected by the incident
The lead administrative trustee
facilitates effective and efficient
communication during response
operations between the OSC and the
other natural resource trustees
conducting activities associated with
damage assessment, and is responsible
for applying to the OSC for access to
response operations resources on behalf
of all trustees for initiation of a damage
assessment
Lead agency means the agency that
provides the OSC/RPM to plan and
implement response actions under the
NCP. EPA, the USCG, another federal
agency. or a state (or political
subdivision of a state) operating
pursuant to a contract or cooperative
agreement executed pursuant to section
104(d)(1) of CERCLA, or designated
pursuant to a Superfund Memorandum
of Agreement (SMOA) entered into
pursuant to subpart F of the NCP or
other agreements may be the lead
agency for a response action In the case
of a release of a hazardous substance,
pollutant, or contaminant, where the
release is on, or the sole source of the
release is from, any facility or vessel
under the jurisdiction, custody. or
control of Department of Defense (DOD)
or Department of Energy (DOE), then
DOD or DOE will be the lead agency
Where the release is on, or the sole
source of the release is from, any facility
or vessel under the jurisdiction,
custody. or control of a federal agency
other than EPA, the USCC, DOD, or
DOE, then that agency will be the lead
agency for remedial actions and removal
actions other than emergencies The
federal agency maintains its lead agency
responsibilities whether the remedy is
selected by the federal agency for non-
NPL sites or by EPA and the federal
agency or by EPA alone under CERCLA
section 120 The lead agency will
consult with the support agency, if one
exists, throughout the response process
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47420 Federal Register / Vol. 59, No. 178 / Thursday. September 15, 1994 / Rules and Regulations
Man agern ent of migration means
actions that are taken to minimize and
mitigate the migration of hazardous
substances or pollutants or
contaimnarits arid the effects of such
migration. Measures may include, but
are not limited to. management of a
plume of contamination, restoration of a
drinking water aquifer, or surface water
restoration
Miscellaneous oil spill control agent is
any product. other than a dispersant,
sinking agent, surface washing agent.
surface collecting agent. bioremediation
agent, burning agent, or sorbent that can
be used to enhance oil spill cleanup.
removaL treatment, or mitigation.
National Pollution Funds Center
(NPFC) means the entity established by
the Secretary of Transportation whose
function is the administration of the Oil
Spill Liability Trust Fund (OSLTF).
Among the NPF’C’s duties are providing
appropnate access to the OSLTF for
federal agencies and states for removal
actions and for federal trustees to
initiate the assessment of natural
resource damages; providing
appropriate access to the OSLTF for
claims, and coordinating cost recovery
efforts
National Priorities List (NPL) means
the list, compiled by EPA pursuant to
CERCLA section 105, of uncontrolled
hazardous substance releases in the
United States that are priorities for long.
term remedial evaluation and response.
National response system (NRS) is the
mechanism for coordinating response
actions by all levels of government in
support of the USC/RPM The NRS is
composed of the NRT. RRTs. OSC/RPM,
Area Committees, and Special Teams
and related support entities The NRS is
capable of expanding or contracting to
accommodate the response effort
required by the size or complexity of the
discharge or release
National Strike Force (NSF) is a
special team established by the USCG,
including the three USCG Strike Teams,
the Public Information Assist Team
(PIAT), and the National Strike Force
Coordination Center The NSF is
available to assist OSCs/RPMs in their
preparedness and response duties
National Strike Force Coordination
Center (NSFCC). authorized as the
National Response Unit by CWA
sections 311(a)(23) and (t)(2), means the
entity established by the Secretary of the
department in which the USCG is
operating at Elizabeth City, North
Carolina %‘ith responsibilities that
include administration of the USCG
Strike Teams, maintenance of response
equipment inventories and logistic
networks, and conducting a national
exercise program
Natural resources means land, fish,
wildlife, biota, air, water, ground water,
drinking water supplies, and other such
resources belonging to, managed by,
held in trust by, appertaming to, or
otherwise conholled by the United
States (including the resources of the
exclusive economic zone defined by the
Magnuson Fishery Conservation and
Management Act of 1976), any state or
local government, any foreign
government, any Indian tribe, or. if such
resources are subject to a trust
restriction on alienation, any member of
an Indian tribe.
Navigable waters as defined by 40
CFR no.1, means the waters of the
United States, including the territorial
seas. The term includes
(1) AU waters that are currently used,
were used in the past, or may be
susceptible to use in interstate or foreign
commerce, including all waters that are
subject to the ebb and flow of the tide;
(2) Interstate waters, including
interstate wetlands;
(3) All other waters such as intrastate
lakes, rivers, streams (including
intermittent streams), mudf ’lats,
sandfiats, and wetlands, the use.
degradation, or destruction of which
would affect or could affect interstate or
foreign commerce including any such
waters;
(i) That are or could be used by
interstate or foreign travelers for
recreational or other purposes.
(ii) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce;
(iii) That are used or could be used for
industrial purposes by industries an
interstate commerce,
(4) AU impoundments of waters
otherwise defined as na ’ igable waters
under this section,
(5) Tributaries of waters identified in
paragraphs (a) through (d) of this
definition, including adjacent wetlands,
and
(6) Wetlands adjacent to waters
identified in paragraphs (a) through (e)
of this definition Provided, that waste
treatment systems (other than cooling
ponds meeting the criteria of this
paragraph) are not waters of the United
States
(7) Waters of the United States do not
include pnor converted cropland
Notwithstanding the determination of
an area’s status as pnor converted
cropland by any other federal agency.
for the purposes of the Clean Water Act.
the final authority regarding Clean
Water Act jurisdiction remains with
EPA.
Offshore facility as defined by section
101(17) of CERCLA end section
311(a)(11) of the CWA, means any
facility of any kind located in, on, or
under any of the navigable waters of the
United States, and arty facility of any
kind which 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
Oil as defined by section 311(a)(1) of
the CWA, means oil of any kind or in
any form, including, but not limited to,
petroleum, fuel oil, sludge, oil refuse,
and oil mixed with wastes other than
dredged spoil Oil, as defined by section
1001 of the OPA means oil of any kind
or in any form, including, but not
limited to, petr-o]eum, fuel oil, sludge,
oil refuse, and oil mixed with wastes
other than dredged spoil, but does not
include petroleum, including crude oil
or any fraction thereof, which is
specifically listed or designated as a
hazardous substance under
subparagraphs (A) through (F) of section
101(14) of the Comprehensive
Environmental Response.
Compensation, and Liability Act (42
U.S.C. 9601) and which is subject to the
provisions of that Act.
Oil Spill Liability Tryst Fund (OSLTF)
means the fund established under
section 9509 of the Internal Revenue
Code of 1986 (26 U S C 9509)
On-scene coordinator (USC) means
the federal official predesignated by
EPA or the IJSCG to coordinate and
direct responses under subpart D, or the
government official designated by the
lead agency to coordinate and direct
removal actions under subpart E of the
NCP.
Onshore facility as defined by section
101(18) of CERCLA, means any faulity
(including, but not limited to, motor
vehicles and rolling stock) of any kind
located in. on. or under any land or non-
navigable waters within the United
States, and, as defined by section
311(a)(1O) of the CWA, means an ’,’
facility (including, but not limited to,
motor vehicles arid rolling stock) of any
kind located in, on, or under any land
within the United States other than
submerged land
On-site means the areal extent of
contamination and all suitable areas in
very close proximity to the
contamination necessary for
implementation of the response action
Operable unit means a discrete action
that comprises an incremental step
toward comprehensively addressing site
problems This discrete portion of a
remedial response manages migration,
or eliminates or mitigates a release,
threat of a release, or pathway of
exposure. The cleanup of a site can be
divided into a number of operable units,
depending on the complexity of the
problems associated with the site
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Operable units may address
geographical portions of a site, specific
site problems. or initial phases of an
action, or may consist of any set of
actions performed over time or any
actions that are concurrent but located
in different parts of a site
Operation and maintenance (O&M)
means measures required to maintain
the effectiveness of response actions.
Person as defined by section 101(21)
OICERCLA, means an individual, firm,
corporation, association, partnership,
consortium, joint venture, commercial
entity. United States government, state.
municipality, cornimssiori, political
subdivision of a state, or any interstate
body. As defined by section 1001 oF the
OPA, “person” means an individual,
corporation, partnership, association,
state, mumcipahty, commission, or
political subdivision of a state, or any
interstate body.
Pollutant or cant arninant as defined
by section 101(33) of CERCLA, shall
include, but not be limited to, any
element, substance, compound, or
mixture, including disease-causing
agents. which after release into the
environment and upon exposure,
ingestion, inhalation, or assimilation
into any organism, either directly from
the environment or indirectly by
ingestion through food chains, will or
may reasonably be anticipated to cause
death, disease, behavioral abnormalities,
cancer, genetic mutation, physiological
malfunctions (including malfunctions in
reproduction) or physical deformations,
in such organisms or their offspring
The term does not include petroleum,
including crude oil or any fraction
thereof which is not otherwise
specifically listed or designated as a
hazardous substance under section
101(14) (A) through (F) of CERCLA, nor
does it include natural gas, liquified
natural gas. or synthetic gas of pipeline
quality (or mixtures of natural gas and
such synthetic gas) For purposes of the
NCP, the term pollutant or contaminant
means any pollutant or contaminant
that may present an imminent and
substantial danger to public health or
welfare of the United States.
Post-removal site control means those
activities that are necessary to sustain
the integrity of a Fund-financed removal
action following its conclusion Post-
removal site control may be a removal
or remedial action under CERCLA The
term includes, without being limited to,
activities such as relighting gas flares,
replacing filters, and collecting leachate.
Preliminary assessment (PA) under
CERCLA means res’iew of existing
information and an off-site
reconnaissance, if appropriate, to
determine if a release may require
additional investigation or action. A PA
may include an on-site reconnaissance,
if appropn ate.
Public participation, see the
definition for community relations.
Public vessel as defined by section
311(a)(4) of the CWA, means a vessel
owned or baj-eboat-chartered and
operated by the United States, or by a
state or political subdivision thereof, or
by a foreign nation, except when such
vessel is engaged in commerce
Quality assurance project plan
(QAPP) is a written document,
associated with all remedial site
sampling activities, which presents in
specific terms the organization (where
applicable), objectives, functional
activities, and specific quality assurance
(QA) and quality control (QCI activities
designed to achieve the data quality
objectives of a specific project(s) or
continuing operation(s). The QAPP is
prepared for each specific project or
continuing operation (or group of
similar projects or continuing
operations) The QAPP will be prepared
by the responsible program office,
regional office, laboratory. contractor,
recipient of an assistance agreement, or
other organization. For an enforcement
action, potentially responsible parties
may prepare a QAPP subject to lead
agency approval.
Release as defined by section 101(22)
of CERCLA, means any spilling, leaking.
pumping, pouring, emitting. emptying,
discharging, injecting, escaping.
leaching. dumping. or disposing into the
environment (including the
abandonment or discarding of barrels,
containers, and other closed receptacles
containing any hazardous substance or
pollutant or contaminant), but excludes’
Any release which results in exposure
to persons solely within a workplace,
with respect to a claim which such
persons may assert against the employer
of such persons, emissions from the
engine exhaust of a motor vehicle.
rolling stock, aircraft, vessel, or pipeline
pumping station engine, release of
source, byproduct, or special nuclear
material from a nuclear incident, as
those terms are defined in the Atomic
Energy Act of 1954, if such release is
subject to requirements with respect to
financial protection established by the
Nuclear Regulatory Commission under
section 170 of such Act, or, for the
purposes of section 104 of CERCLA or
any other response action, any release of
source, byproduct, or special nuclear
material from any processing site
designated under section 102(a)(1) or
302(a) of the Uranium Mill Tailings
Radiation Control Act of 1978 (42 U.SC
7901 et seq ); and the normal
application of fertilizer For purposes of
the NCP, release also means threat of
release.
Relevant and appropriate
requirements means those cleanup
standards, standards of control, and
other substantive requirements, criteria,
or limitations promulgated under
federal environmental or state
environmental or facility siting laws
that, while not “applicable” to a
hazardous substance, pollutant,
contaminant, remedial action, location,
or other circumstaiice at a CERCLA site,
address problems or situations
sufficiently similar to those encountered
at the CERCLA site that their use is well
suited to the particular site, Only those
state standards that are identified in a
timely manner arid are more stringent
than federal requirements may be
relevant and appropnate.
Remedial design (RD) means the
technical analysis and procedures
which follow the selection of remedy for
a site and result in a detailed set of
plans and specifications for
unplemeritation of the remedial action
Remedial investigation (RI) is a
process undertaken by the lead agency
to determine the nature and extent of
the problem presented by the release
The RI emphasizes data collection and
site characterization, and is generally
performed concurrently and in an
interactive fashion with the feasibility
study The RI includes sampling and
monitoring, as necessary, and includes
the gathering of sufficient information ii
determine the necessity for remedial
action and to support the evaluation of
remedial alternatives
Remedial project manager (RPM)
means the official designated by the
lead agency to coordinate, monitor, oi
direct remedial or other response
actions under subpart E of the NCP.
Remedy or remedial action (RA)
means those actions consistent with
permanent remedy taken instead of, or
in addition to, removal action in the
event of a release or threatened release
of a hazardous substance into the
environment, to prevent or minimize
the release of hazardous substances so
that they do not migrate to cause
substantial danger to present or future
public health or welfare or the
environment The term includes, but is
not limited to, such actions at the
location of the release as storage,
confinement, perimeter protection using
dikes, trenches, or ditches, clay cover,
neutralization, cleanup of released
hazardous substances and associated
contaminated materials, recycling or
reuse, diversion, destruction,
segregation of reactive wastes, dredging
or excavations, repair or replacement of
leaking containers, collection of
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47422 Federal Register I Vol. 59, No. 178 / Thursday, September15, 1994 / Rules and Regulations
leachate and runoff, on-site treatment or
incineration, provision of alternative
water supplies, any monitoring
reasonably required to assure that such
actions protect the public health and
welfare and the environment and, where
appropriate, post-removal site control
activities. The term includes the costs of
permanent relocation of residents and
businesses and community facilities
(including the cost of providing
“alternative land of equivalent value” to
an Indian tribe pursuant to CERCLA
section 126(b)) where EPA determines
that, alone or in combination with other
measures, such relocation is more cost-
effective than, and environmentally
preferable to, the transportation, storage,
treatment, destruction, or secure
disposition off-site of such hazardous
substances, or may otherwise be
necessary to protect the public health or
welfare; the term includes off-site
transport and off-site storage, treatment,
destruction, or secure disposition of
hazardous substances and associated
contarrunated materials. For the purpose
of the NCP. the term also includes
enforcement activities related thereto.
Remove or removal as defined by
section 311(a)(8) of the CWA, refers to
containment and removal of oil or
hazardous substances from the water
and shorelines or the taking of such
other actions as may be necessary to
minimize or mitigate damage to the
public health or welfare of the United
States (including, but not limited to,
fish, shellfish, wildlife, public and
private property. and shorelines and
beaches) or to the environment For the
purpose of the NCP, the term also
includes monitoring of action to remove
a discharge As defined by section
101(23) of CERCLA, remove or removal
means the ceanup or removal of
released hazardous substances from the
environment; such actions as may be
necessary taken in the event of the
threat of release of hazardous substances
into the environment, such actions as
may be necessary to monitor, assess.
and evaluate the release or threat of
release of hazardous substances, the
disposal of removed material, or the
taking of such other actions as may be
necessary to prevent, minimize, or
mitigate damage to the public health or
welfare of the United States or to the
environment, which may otherwise
result from a release or threat of release.
The term includes, in addition, without
being limited to. security fencing or
other measures to limit access.
provision of alternative water supplies,
temporary evacuation and housing of
threatened individuals not otherwise
provided for, action taken under section
104(b) of CERCLA. post-removal site
control, where appropriate, and any
emergency assistance which may be
provided under the Disaster Relief Act
of 1974. For the purpose of the NCP, the
term also includes enforcement
activities related thereto
Removal costs as defined by section
1001 of the OPA means the costs of
removal that are incurred after a
discharge of oil has occurred, or in any
case in which there is a substantial
threat of a discharge of oil, the costs to
prevent, minimize, or mitigate oil
pollution from such an incident.
Respond or response as defined by
section 101(25) of CERCLA, means
remove, removal, remedy, or remedial
action, including enforcement activities
related thereto.
Responsible party as defined by
section 1001 of the OPA, means the
following:
(1) Vessels—In the case of a vessel,
any person owning, operating, or
demise chartering the vessel
(2) Onshore Facilities—In the case of
an onshore facility (other than a
pipeline), any person owning or
operating the facility, except a federal
agency, state, municipality.
commission, or political subdivision of
a state, or any interstate body. that as
the owner transfers possession and right
to use the property to another person by
lease, assignment, or permit.
(3) Offshore Facilities—In the case of
an offshore facility (other than a
pipeline or a deepwater port licensed
under the Deepwater Port Act of 1974
(33 U S.C. 1501 et seq )), the lessee or
permittee of the area in which the
facility is located or the holder of a right
of use and easement granted under
applicable state law or the Outer
Continental Shelf Lands Act (43 U.S C.
1301—1356) for the area in which the
facility is located (if the holder is a
different person than the lessee or
permittee). except a federal agency,
state, municipality, commission, or
political subdivision of a state, or any
interstate body, that as owner transfers
possession and nght to use the property
to another person by lease, assignment.
or permit.
(4) Deepwater Ports—In the case of a
deepwater port licensed under the
Deepwater Port Act of 1974 (33 U S C
1501—1524), the licensee
(5) Pipelines—In the case of a
pipeline, any person o sming or
operating the pipeline
(6) Abandonment—In the case of an
abandoned vessel, onshore facility,
deepwater port, pipeline, or offshore
facility, the person who would have
been responsible parties immediately
prior to the abandonment of the ves
or facility
SARA is the Superfund Amendin
and Reauthorization Act of 1986. In
addition to certain free-standing
provisions of law, it includes
amendments to CERCLA, the Solid
Waste Disposal Act, and the internal
Revenue Code Among the free-standing
provisions of law is Title Ill of SARA,
also known as the “Emergency Planning
and Community Right-to-Know Act of
1986” and Title IV of SARA, also knowr
as the “Radon Gas and Indoor Air
Quality Research Act of 1986.” Title V
of SARA amending the Internal Revenrn
Code is also known as the “Superfund
Revenue Act of 1986”
Sinking agents means those additives
applied to oil discharges to sink floating
pollutants below the water surface
Site inspection (SI) means an on-site
investigation to determine whether
there is a release or potential release anc
the nature of the associated threats The
purpose is to augment the data collected
in the preliminary assessment and to
generate, if necessary, sampling and
other field data to determine if further
action or investigation is appropriate
Size classes of discharges refers to the
following size classes of oil dischar ’ -
which are provided as guidance to
OSC and serve as the criteria for thi.
actions delineated in subpart D They
are not meant to imply associated
degrees of hazard to public health or
welfare of the United States, nor are
they a measure of environmental injury
Any oil discharge that poses a
substantial threat to public health or
welfare of the United States or the
environment or results in significant
public concern shall be classified as a
major discharge regardless of the
following quantitative measures
(1) Minor discharge means a discharge
to the inland waters of less than 1,000
gallons of oil or a discharge to the
coastal waters of less than 10,000
gallons of oil
(2) Medium discharge means a
discharge of 1,000 to 10,000 gallons of
oil to the inland waters or a discharge
of 10.000 to 100,000 gallons of oil to the
coastal waters
(3) Major discharge means a discharge
of more than 10,000 gallons of oil to the
inland waters or more than 100,000
gallons of oil to the coastal waters
Size classes of releases refers to the
following size classifications which are
provided as guidance to the OSC for
meeting pollution reporting
requirements in subpart B The fini.
determination of the appropnate
classification of a release will be made
by the OSC based on consideration of
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Federal Register / Vol. 59, No. 178 / Thursday. September 15,1994 / Rules and Regulations 47423
the particular release (e.g. size.
lOcatiOn. impact, etc.)-
( 1) Minor release means a release of
a quantity of hazardous substance(s).
pollutant(s), or contaminant(s) that
poses minimal threat to public health or
welfare of the United States or the
environment.
(2) Medium release means a release
not meeting the criteria for classification
as a minor or major release.
(3) Major release means a re)ease of
any quantity of hazardous substance(s).
pollutant(s), or contaminant(s) that
poses a substantial threat to public
health or welfare of the United States or
the environment or results in significant
public concern.
Sorbents means essentially inert and
insoluble matenals that are used to
remove oil and hazardous substances
from water through adsorption, in
which the oil or hazardous substance is
attracted to the sorbent surface and then
adheres to it; absorption. in which the
oil or hazardous substance penetrates
the pores of t.he sorbent rnatenal; or a
combination of the two. Sorbents are
generally manufactured in particulate
form for spreading over an oil slick or
as sheets, rolls, pillows, or booms The
sorbent material may consist of, but is
not limited to. the following materials:
(1) Organic products—
(i) Peat moss or straw;
(ii) Cellulose fibers or cork;
(iii) Corn cobs,
( iv) Chicken, duck, or other bird
leathers
(2) Mineral compounds—
(i) Volcanic ash or penile;
(ii) Vermiculite or zeolite
(31 Synthetic products—
(i) Polypropylene;
(ii) Polyethylene.
(iii) Polyurethane,
(iv) Polyester
Source control action is the
construction or installation and start’up
of those actions necessary to prevent the
continued release of hazardous
substances or pollutants or
contaminants (primarily from a source
on top of or within the ground. or in
buildings or other structures) into the
environment.
Source control maintenance meosures
are those measures intended to maintain
the effectiveness of source control
actions once such actions are operating
and functioning properly. such as the
maintenance of landfill caps and
leachate collection systems
Specified ports and harbors means
those ports and harbor areas on inland
rivers, and land areas unmediately
adjacent to those waters, where the
USCG acts as predesignated on-scene
coordinator Precise locations are
determined by EPAJUSCG regional
agreements and identified in federal
Regional Contingency Plans and Area
Contingency Plans.
Spill of nrthonai significance (SONS)
means a spill that due to its seventy,
size, location, actual or potential impact
on the public health and welfare or the
environment, or the necessary response
effort, is so complex that it requires
ext.raorthnary coordination of federal,
state, local, and responsible party
resources to contain and clean up the
discharge.
State means the several states of the
United States, the District of Columbia,
the Commonwealth of Puerto Rico,
Cuam, American Samoa, the U.S Virgin
lslands, the Commonwealth of the
Northern. Marianas, and any other
territory or possession over which the
United States has jurisdiction. For
purposes of the NC?, the term includes
Indian tribes as defined in the NO’
except where specifically noted Section
126 of CERCLA provides that the
governing body of an Indian tribe shall
be afforded substantially the same
treatment as a state with respect to
certain provisions of CERCLA. Section
300.515(b) of the NCP describes the
requirements pertaining to Indian tribes
that wish to be treated as states under
cERCLA.
Superfund Memomndurn of
Agreement (SMOA) means a
nonbinding, written document executed
by an EPA Regional Administrator arid
the head of a state agency that may
establish the nature and extent of EPA
and state interaction dunng the
removal, pre-remedial. remedial, and/or
enforcement response process The
SMOA is not a site-specific document
although attachments may address
specific sites The SMOA generally
defines the role and responsibilities of
both the lead and the support agencies
Superfund state contract is a joint,
legally binding agreement between EPA
and a state to obtain the necessary
assurances before a federal-lead
remedial action can begin at a site In
the case of a political subdivision-lead
remedial response. a three-party
Superfund state contract among EPA,
the stale, and political subdivision
thereof, is required before a political
subdwision takes the lead for any phase
of remedial response to ensure state
involvement pursuant to section
121(f)(1) of CERCLA. The Superfund
state contract may be amended to
provide the stale’s CERCLA section 104
assurances before a political subdivision
can take the lead lOT remedial action
Support agency means the agency or
agencies that provide the support
agency coordinator to furnish necessary
data to the lead agency, review response
data and documents, and provide other
assistance as requested by the OSC or
RPM. EPA, the USCG, another federal
agency, or a state may be support
agencies for a response action if
operating pursuant to a contract
executed under section 1o4(d)(1) of
CERCLA or designated pursuant to a
Superfund Memorandum of Agreement
entered into pursuant to subpart F of the
NC? or other agreement. The support
agency may also concur on decision
documents
Support agency coordinator (SAC)
means the official designated by the
support agency, as appropriate, to
interact and coordinate with the lead
agency in response actions under
subpart E of this part.
Surface collecting agents means those
chemical agents that form a surface film
to control the layer thickness of oil.
Surface washing agent is any product
that removes oil from solid surfaces,
such as beaches and rocks, through a
detergency mechanism and does not
involve dispersing or solubilizing the oil
into the water column.
Tank vessel as defined by section
1001 of the OPA means a vessel that is
constructed or adapted to carry, or that
carries oil or hazardous material in bulk
as cargo or cargo residue, and that.
(i) is a vessel of the United States;
(2) operates on the navigable waters,
or
(3) transfers oil or hazardous material
in a place subject to the jurisdiction of
the United States.
Threat of discharge or release, see
definitions for discharge and release.
Threat of release. see definition for
release
Treatment technology means any unit
operation or series of unit operations
that all ers the composition of a
hazardous substance or pollutant or
contaminant through chemical.
biological, or physical means so as to
reduce toxicity, mobility, or volume of
the contaminated materials being
treated Treatment technologies are an
alternative to land disposal of hazardous
wastes without treatment
Trustee means an official of a federal
natural resources management agency
designated in subpart C of the NCP or
a designated state official or Indian tribe
or, in the case of discharges covered by
the OPA. a foreign government official,
who may pursue claims for damages
under section 107(fl of CERCLA or
section 1C06 of the OPA
United States when used in relation to
section 311{aM5) of the CWA, means the
states, the District of Columbia, the
Commonwealth of Puerto Rico, the
Northern Manana Islands, Cuam,
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47424 Federal Register / Vol. 59, No . 178 / Thursday, September 15, 1994 / Rules and Regulations
American Samoa, the United States
Virgin Islands, and the Pacific Island
Governments. United States, when used
in relation to section 101(27) of CIRCLA
and section 1001(36) of the OPA,
includes the several states of the United
States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam,
American Samoa, the United States
Virgin Islands, the Commonwealth of
the Northern Mananas, and any other
territory or possession over which the
United States has junsdiction.
Vessel as defined by section 101(28)
of CERCLA, means every description of
watercraft or other artificial contrivance
used, or capable of.being used, as a
means of transportation on water, and,
as defined by section 311(a)(3) of the
CWA, means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a
means of transportation on water other
than a public vessel.
Volunteer means any individual
accepted to perform services by the lead
agency which has authority to accept
volunteer services (examples: See 16
U.S.C. 742f(c)). A volunteer is subject to
the provisions of the authorizing statute
and the NCP.
Worst case discharge as defined by
section 311(a)(24) of the CWA, means,
in the case of a vessel, a discharge in
adverse weather conditions of its entire
cargo, and, in the case of an offshore
facility or onshore facility. the largest
foreseeable discharge in adverse
weather conditions
§ 300.6 Use of number and gender.
As used in this regulation, words in
the singular also include the plural and
words in the masculine gender also
include the feminine and vice versa, as
the case may require.
§ 300.7 Computation of time.
In computing any period of time
prescribed or allowed in these rules of
practice, except as otherwise provided,
the day of the event from which the
designated period begins to run shall
not be included. Saturdays, Sundays,
and federal legal holidays shall be
included. When a stated time expires on
a Saturday, Sunday, or legal holiday, the
stated time period shall be extended to
include the next business day.
Subpart B—Responsibility and
Organization for Response
§300.100 DutIes ef President delegated to
federal agencies.
In Executive Orders 12580 and 12777,
the President delegated certain
functions and responsibilities vested in
him by the CWA, CERCLA, and the
OPA.
§300.105 General organization concepts.
(a) Federal agencies should:
(1) Plan for emergencies and develop
procedures for addressing oil discharges
and releases of hazardous substances,
pollutants, or contaminants,
(2) Coordinate their planning.
preparedness, and response activities
with one another;
(3) Coordinate their planning.
preparedness, and response activities
with affected states, local governments.
and private entities; and
(4) Make available those facilities or
resources that may be useful in a
response situation, consistent with
agency authonties and capabilities
(b) Three fundamental kinds of
activities are performed pursuant to the
NCP:
(1) Preparedness planning and
coordination for response to a discharge
of oil or release of a hazardous
substance, pollutant. or contaminant;
(2) Notification and communications,
and
(3) Response operations at the scene
of a discharge or release.
(c) The organizational elements
created to perform these activities are.
(1) The NRT, responsible for national
response and preparedness planning, for
coordinating regional planning, and for
providing policy guidance and support
to the Regional Response Teams (RRTs)
NRT membership consists of
representatives from the agencies
specified in § 300 175(b)
(2) RRTs, responsible for regional
planning and preparedness activities
before response actions, and for
providing advice and support to the
OSC or RPM when activated during a
response RRT membership consists of
designated representatives from each
federal agency participating in the NRT
together with state and (as agreed upon
by the states) local government
representatives
(3) The OSC and the RPM, primarily
responsible for directing response
efforts and coordinating all other efforts
at the scene of a discharge or release
The other responsibilities of OSCs and
RPMs are described in § 300.135.
(4) Area Committees, responsible for
developing, under direction of the OSC,
AGPs for each area designated by the
President. Responsibilities of Area
Committees are descnbed in
§ 300 205(c).
(d) The basic framework for the
response management structure is a
system (e g.. a unified command system)
that bnngs together the functions of the
Federal Government, the state
government, and the responsible party
to achieve an effective and efficient
response, where the OSC maintains
authonty
(e)(l) The organizational concepts of
the national response system are
depicted in the following Figures la and
lb
BILUNO COPE 6560-aO-P
-------
Figure la
National Response System Concepts: Response
-S
0
(71
National Z
0
Response
Cenler
-4
Notification
initial Assessment/First Response
FederaVSlaleiLocatfRP
OSC/RPM F— — —
Notification/Response Measures
Tnistees
as per section 300.180
0
0
Federal No — Slate/locatiRP
Assistance
Required? Response
I -I
(0
________________ _________________ Yes 2
2 \ Special Fo -ces
2 \
INatlonal Response Team Regional Response Team SeCtlOfl 300.145
se ion 300 110 j C sod ion 300 115 j NSF
1 OSC/RPM ERT
0 -
State’ RP RERT
SSc
(Unified Command Structure, as developed by NPFC
the Area CommIttee)
This Includes local representation as wet ORG
2
Resources available to support the OSC/RPM upon request SUPSALV
_____________ -4
l.a.
I r
-------
Figure lb
National Response System Concepts: Planning
NRT
‘13 RRTs for Standard Federal Regions l X
(mainland). Caribbean. Oceania (Pacific
Basin). & Alaska
1 RRT serves as the Area
Committee for Inland areas
not covered by a separate
Area Committee, unless a
separale Area Committee is
decignated by the Regional
Administrator (57 FF1 15198)
Government
(sec 300 145)
Non-Government
(57 FR 15198)
Sirike Teams
NPFC
ERT
RERT
DRG
DRAT
SsC
PIAT
SUPSALV
Facility and vessel owners/operators 2
Shipping corrpany representatives
Cleanup contractors
Emergency planning and response oflklais
Manne pilot associations
Merr*ers 01 academia
Environmental advocacy groups
Response organizations/otficers
‘itizens
/
0
II
II
J 2
72
-p
/
2 Federal laws (e g . CWA Sec.
311(l)(5), Clean Air Act Sec 112(r),
OSHA (Process safety regulations)
require facility owner/operators to
prepare a response plan
Additional descriptIon Is found in
Section 300 211
r
8
II
I’
LL
2 i
I I
2
4 . .
“1
a
Sources of Input end GuIdance to Area Committees /
/
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Federal Register I Vol. 59, No. 178 / Thursday, September 15, 1994 1 Rules and RegulatIons 47427
(2) The standard federal regional
boundaries (which are also the
geographic areas of responsibility for the
RRTs) are shown in the following Figure
2:
BILUNO coc€ S5 O-4O-P
-------
P
C
z
C)
o -.
0
o 0
c
• 1’
CD
I
C D
0
C”
z
0
—S
C l )
C)-
CD
Cl)
CD
CD
C-
CD
•1
(7’
(0
C D
-S
CD
C l )
CD
00
CD
0
C l ,
I-
C
z
C)
C)
0
1-igure
Figure 2 - Standard Regional Boundaries for Ten Regions
Reg. X
L L
GUAM
NORTHERN MARIANA
ISIA N OS
PACICIC IS&AP
COVE flAME P418
AMERICAN SAMOA
Reg. II
V )RG I IDLAMDS
)ERTO RW
-------
District
z aII
Figure 3
U.S. Coast Guard Districts
Atlantic and Pacific Area Commands
14th District
Honolulu
op
HI
Ousm
No,th.m Martana iisnc
Paclflc IsI.nd Oov.rrvn .nta
M*r$c.n Samo.
7th DistrIct 1
Miami
Pueflo Rico
Virgin lsIan J
r
z
“1
CD
CD
1
4
CD
0
C,’
Co
z
0
1
(I ’
0
0
CD
I i
CD
S
0
CD
s - I
U i
CO
CO
CD
C ,)
0
CD
c c
CD
0
A
A
-------
47430 Federal Register I Vol. 59, No. 178 / Thursday, September 15, 1994 I Rules and Regulations
§300.110 NatIonal Response Teem.
National plarming and coordination is
accomplished through the NRT.
(a) The NRT consists of
representatives from the agencies named
in § 300.175(b). Each agency shall
designate a member to the team and
sufficient alternates to ensure
representation. as agency resources
permit. The NRT will consider requests
for membership on the NRT from other
agencies Other agencies may request
membership by forwarding such
requests to the chair of the NRT.
(b)The chair of the NRT shall be the
representative of EPA and the vice chair
shall be the representative of the USCG,
with the exception of periods of
activation because of response action.
During activation, the chair shall be the
member agency providing the OSCJ
RPM The vice chair shall maintain
records of NRT activities along with
national, regional, and area plans for
response actions.
(c) While the NW!’ desires to achieve
a consensus on all matters brought
before it, certain matters may prove
unresolvable by this means. In such
cases, each agency serving as a
participating agency on the NRT may be
accorded one vote in NRT proceedings.
(d) The NRT may establish such
bylaws and committees as it deems
appropriate to further the purposes for
which it is established.
(e) The NRT shall evaluate methods of
responding to discharges or releases;
shall recommend any changes needed in
the response organization; and shall
recommend to the Administrator of EPA
changes to the NCP designed to improve
the effectiveness of the national
response system. including drafting of
regulatory language.
(1) The NRT shall provide policy and
program direction to the RRTs
(g) The NRT may consider and make
recommendations to appropriate
agencies on the training, equipping, and
protection of response teams and
necessary research, development,
demonstration, and evaluation to
improve response capabilities.
(h) Direct planning and preparedness
responsibilities of the NRT include.
(1) Maintaining national preparedness
to respond to a major discharge of oil or
release of a hazardous substance,
pollutant, or contaminant that is beyond
regional capabilities;
(2) Publishing guidance documents
for preparation and mplementation of
SARA Title 11! local emergency response
plans,
(3) Monitoring incoming reports from
all RRTs and activating for a response
action, when necessary;
(4) Coordinating a national program to
assist member agencies in preparedness
planning and response, and enhancing
coordination of member agency
preparedness programs;
(5) Developing procedures, in
coordination with the NSFCC, as
appropriate, to ensure the coordination
of federal, state, and local governments,
and private response to oil discharges
and releases of hazardous substances,
pollutants, or contaminants,
(6) Monitoring response-related
research and development, testing, and
evaluation activities of NRT agencies to
enhance coordination, avoid
duplication of effort, and facilitate
research in support of response
activities;
(7) Developing recommendations for
response training and for enhancing the
oordination of available resources
among agencies with training
responsibilities under the NCP,
(8) Reviewing regional responses to
oil discharges and hazardous substance,
pollutant, or coritaminazft releases,
Including an evaluation of equipment
readiness and coordination among
responsible public agencies and private
organizations; and
(9) Assisting in developing a national
exercise program, in coordination with
the NSFCC, to ensure preparedness and
coordination nationwide
(1) The NRT will consider matters
referred to it for advice or resolution by
an RRT.
(j) The NRT should be activated as an
emergency response team
(1) When an oil discharge or
hazardous substance release:
(i) Exceeds the response capability of
the region in which it occurs,
(ii) Transects regional boundaries; or
(iii) Involves a substantial threat to
the public health or welfare of the
United States or the environment,
substantial amounts of property, or
substantial threats to natural resources;
(2)11 requested by any NRT member.
(k) When activated for a response
action, the NRT shall meet at the call of
the chair and may:
(1) Monitor and evaluate reports from
the OSC/RPM and recommend to the
OSCIRPM, through the RRT. actions to
combat the discharge or release;
(2) Request other federal, state, and
local governments, or pnvate agencies,
to provide resources under their existing
authorities to combat a discharge or
release, or to monitor response
operations; and
(3) Coordinate the supply of
equipment, personnel, or technical
advice to the affected region from other
regions or districts.
§300.115 RegIonal Response Teams.
(a) Regional planning and
coordination of preparedness and
response actions is accomplished
through the RRT. In the case of a
discharge of oil, preparedness activities
will be carried out in conjunction with
Area Committees, as appropnate The
RRT agency membership parallels that
of the NRT, as described in § 300 110,
but also includes state and local
representation. The RRT provides:
Ii) The appropriate regional
mechanism for development and
coordination of preparedness activities
before a response action is taken and for
coordination of assistance and advice to
the USC/RPM during such response
actions; and
(2) Guidance to Area Committees, as
appropriate, to ensure inter-area
consistency and consistency of
individual ACPs with the RCP and NCP
(b)The two principal components of
the RRT mechanism are a standing
team, which consists of designated
representatives from each participating
fe ral agency, state governments, and
local governments (as agreed upon by
the states), and incident-specific teams
formed from the standing team when
the RRT is activated for a response. On
incident-specific teams, participation
the RRT member agencies will relate.
the technical nature of the incident ammo
its geographic location.
(1) The standing team’s jurisdiction
corresponds to the standard federal
regions, except for Alaska. Oceania in
the Pacific, and the Caribbean area, each
of which has a separate standing RRT.
The role of the standing RRT includes
communications systems and
procedures, planning, coordination
training, evaluation, preparedness, and
related matters on a regionwide basis It
also includes coordination of Area
Committees for these functions in areas
within their respective regions. as
appropriate.
(2) The role of the incident-specific
team is determined by the operational
requirements of the response to a
specific discharge or release.
Appropriate levels of activation and/or
notification of the incident-specific
RRT, including participation by state
and local governments, shall be
determined by the designated RRT chair
for the incident, based on the RCP, The
incident-specific RRT supports the
designated USC/RPM. The designated
OSC/RPM directs response efforts and
coordinates all other efforts at the scar ,’
of a discharge or release.
(c) The representatives of EPA and L.
USCG shall act as co-chairs of RRTs
except when the RRT is activated. When
the RRT is activated for response
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Federal Register I Vol. 59, No. 178 / Thursday. September 15, 1994 I Rules and Regulations 47431
actions, the chair shall be the member
agency providing the OSCIRPM.
(d) Each parucipat.ing agency should
designate one member and at least one
alternate member to the RRT. Agencies
whose regional subdivisions do not
correspond to the standard federal
regions may designate additional
representatives to the standing RRT to
ensure appropriate coverage of the
standard federal region. Participating
states may also designate one member
and at least one alternate member to the
RRT Indian tribal governments may
arrange for representation with the RRT
appropriate to their geographical
location All agencies and states may
also provide additional representatives
as observers to meetings of the R.RT.
(e) RRT members should designate
representatives and alternates from their
agencies as resource personnel for RRT
activities, including RRT work
planning, and membership on incident-
specific teams in support of the OSCsI
RPMs.
(fl Federal RRT members or their
representatives should provide OSCs/
RPMs with assistance from their
respective federal agencies
commensurate with agency
responsibilities, resources, and
capabilities within the region During a
response action, the members of the
RRT should seek to make available the
resources of their agencies to the OSC/
RPM as specified in the RCP and ACP.
(g) RRT members should nominate
appropriately qualified representatives
from their agenci.es to work with OSCs
in developing and maintaining ACPs
(h) Affected states are encouraged to
participate actively in all RRT activities.
Each state governor is requested to
assign an office or agency to represent
the state on the appropriate RRT; to
designate representatives to work with
the RRT in developing RCPs, to plan for,
make available, and coordinate state
resources, and to serve as the contact
point for coordination of response with
local government agencies, whether or
not represented on the RRT The state’s
RRT representative should keep the
State Emergency Response Commission
(SERC), described in §300 205(d),
apprised of RRT activities and
coordinate RRT activities with the
SERC Local governments are invited to
participate in activities on the
appropriate RRT as provided by state
law or as arranged by the state’s
representative. Indian tribes are also
invited to participate in such activities
(i) The standing RRT shall
recommend changes in the regional
response organization as needed, revise
the RCP as needed, evaluate the
preparedness of the participating
agencies and the effectiveness of ACPs
for the federal response to discharges
and releases, and provide technical
assistance for preparedness to the
response community. The RRT should:
(1) Review and comment, to the
extent practicable, on local emergency
response plans or other issues related to
the preparation, implementation, or
exercise of such plans upon request of
a local emergency planning committee;
(2) Evaluate regional and local
responses to discharges or releases on a
continuing basis, considering available
legal remedies, equipment readiness,
and coordination among responsible
public agencies and private
organizations, and recommend
improvements;
(3) Recommend revisions of the NCP
to the NRT, based on observations of
response operations;
(4) Review OSC actions to ensure that
RCPs and ACPs are effective;
(5) Encourage the state and local
response community to improve its
preparedness for response,
(6) In coordination with Area
Committees and in accordance with any
applicable laws, regulations, or -
requirements, conduct advance
planning for use of dispersants, surface
washing agents, surface collecting
agents, burning agents, bioremediation
agents, or other chemical agents in
accordance with subpart J of this part;
(7) Be prepared to provide response
resources to major discharges or releases
outside the region,
(8) Conduct or participate in training
and exercises as necessary to encourage
preparedness activities of the response
community within the region;
(9) Meet at least semiannually to
review response actions camed out
during the preceding period, consider
changes in RCPs, and recommend
changes in ACPs,
(10) Provide letter reports on RRT
activities to the NRT twice a year, no
later than January 31 and July 31. At a
minimum, reports should summarize
recent activities, organizational changes
operational concerns, and efforts to
improve state and local coordination;
and
(11) Ensure maximum participation in
the national exercise program for
axuiounced and unannounced exercises.
(j)(1) The RRT may be activated by the
chair as an incident-specific response
team when a discharge or release.
(i) Exceeds the response capability
available to the OSC/RPM in the place
where it occurs,
(ii) Transects state boundaries,
(iii) May pose a substantial threat to
the public health or welfare of the
United States or the environment, or to
regionally significant amounts of
property; or
(iv) Is a worst case discharge, as
described in § 3OO 324. RCPs shall
specify detailed criteria for activation of
RRTs.
(2) The RRT will be activated during
any discharge or release upon a request
from the OSC/RPM. or from any RRT
representative, to the chair of the RRT
Requests for RRT activation shall later
be confirmed lii wnting. Each
representative, or an appropriate
alternate, should be notified
immediately when the RRT is activated
(3) During prolonged removal or
remedial action, the RRT may not need
to be activated or may need to be
activated only in a limited sense, or may
need to have available only those
member agencies of the RRT who are
directly affected or who can provide
direct response assistance
(4) When the RRT is activated for a
discharge or release, agency
representatives shall meet at the call of
the chair and may
(i) Monitor and evaluate reports from
the OSC/RPM, advise the OSC/RPM on
the duration and extent of response, and
recommend to the OSCJRPM specific
actions to respond to the discharge or
release;
(ii) Request other federal, state, or
local governments, or private agencies,
to provide resources under their existing
authorities to respond to a discharge or
release or to monitor response
operations;
(iii) Help the OSC/RPM prepare
information releases for the public and
for communication with the NRT.
(iv) 11 the circumstances warrant,
make recommendations to the regional
or district head of the agency providing
the OSC/RPM that a different OSCIRPM
should be designated, and
(vi Submit pollution reports to the
NRC as significant developments occur
(5) At the regional level, a Regional
Response Center (RRC) may provide
facilities and personnel for
communications, information storage,
and other requirements for coordinatinç
response. The location of each RRC
should be provided in the RCP
(6) When the RRT is activated,
affected states may participate in all
RRT deliberations State government
representatives participating in the RRI
have the same status as any federal
member of the RRT
(7) The RRT can be deactivated when
the inciderit.specific RRT chair
determines that the OSCIRPM no longei
requires RRT assistance.
(8) Notification of the RRT may be
appropnate when full activation is not
necessary with systematic
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47432 Federal Register / Vol. 59,
No. 178 / Thursday, September 15, 1994 / Rules and Regulations
communication of pollution reports or
other means to keep RRT members
informed as to actions of potential
concern to a particular agency, or to
assist in later RRT evaluation of
regionwide response effectiveness.
(k) Whenever there is insufficient
national policy guidance on a matter
before the RRT. a technical matter
requiring solution, a question
concerning interpretation of the NCP, or
a disagreement on discretionary actions
among RRT members that cannot be
resolved at the regional level, it may be
referred to the NRT, described in
§ 300.110, for advice.
§300.120 On-scene coordinators and
remedial project managers: general
responsIbilitIes.
(a) The OSCIRPM directs response
efforts and coordinates all other efforts
at the scene of a discharge or release As
part of the planning and preparedness
for response. OSCs shall be
predesignated by the regional or district
head of the lead agency. EPA and the
USCG shall predesignate OSCs for all
areas in each region. except as provided
in paragraphs (c) and (d) of this section.
RPMs shall be assigned by the lead
agency to manage remedial or other
response actions at NPL sites, except as
provided in paragraphs (c) and (d) of
this section.
(1) The USCG shall provide OSCs for
oil discharges, including discharges
from facilities and vessels under the
;unsdiction of another federal agency,
within or threatening the coastal zone
The USCG shall also provide OSCs for
the removal of releases of hazardous
substances, pollutants, or contaminants
into or threatening the coastal zone.
except as provided in paragraph (‘b) of
this section. The USCG shall not
provide predesignated OSCs for
discharges or releases from hazardous
waste management facilities or in
similarly chronic incidents The USCG
shall provide an initial response to
discharges or releases from hazardous
waste management facilities within the
coastal zone in accordance with
Department of Transportation (DOT)!
EPA Instrument of Redelegation (May
27, 1988) except as provided by
paragraph (b) of this section The USCG
OSC shall contact the cognizant PPM as
soon as it is evident that a removal may
require a follow-up remedial action, to
ensure that the required planning can be
initiated and an orderly transition to an
EPA or state lead can occur
(2) EPA shall provide OSCs for
discharges or releases into or
threatening the inland zone and shall
provide RPMs for federally funded
remedial actions, except in the case of
state-lead federally funded response and
as provided in paragraph (b) of this
section EPA will also assume all
remedial actions at NPL sites in the
coastal zone, even where removals are
initiated by the USCG. except as
provided in paragraph (b) of this
section.
(b) in general, USCG Captains of the
Port (COT ?) shall serve as the
designated OSCs for areas in the coastal
zone for which an AC? is required
under CWA section 3 11(j) and EPA
Regional Administrators shall designate
OSCs for areas in the inland zone for
which an AC? is required under CWA
section 311(j).
(c) For releases of hazardous
substances, pollutants, or contaminants,
when the release is on, or the sole
source of the release is from, any facility
or vessel, including vessels bareboat-
chartered and operated, under the
jurisdiction, custody, or control of DOD,
DOE, or other federal agency:
(1) In the case of DOD or DOE. DOD
or DOE shall provide OSCs/RPMs
responsible for taking all response
actions, and
(2) In the case of a federal agency
other than EPA, DOD, or DOE, such
agency shall provide OSCs for all
removal actions that are not
emergencies arid shall provide RPMs for
all remedial actions
(d) DOD will be the removal response
authority with respect to incidents
involving DOD military weapons arid
munitions or weapons and munitions
under the jurisdiction, custody, or
control of DOD.
(e) The OSC is responsible for
overseeing development of the AC? in
the area of the OSC’s responsibility.
ACPs shall, as appropriate, be
accomplished in cooperation with the
RRT, and designated state and local
representatives. In contingency
planning and removal, the OSC
coordinates, directs, and reviews the
work of other agencies. Area
Committees, responsible parties. and
contractors to assure compliance with
the NC?, decision document, consent
decree, administrative order, and lead
agency-approved plans applicable to the
response.
(0 The RPM is the pnme contact for
remedial or other response actions being
taken (or needed) at sites on the
proposed or promulgated NPL, and for
sites not on the NPL but under the
junsdiction. custody. or control of a
federal agency. The RPM’s
responsibilities include:
(1) Fund-financed response The RPM
coordinates, directs, and reviews the
work of EPA, states and local
governments, the U.S Army Corps of
Engineers, and all other agencies and
contractors to assure compliance with
the NC?. Based upon the reports of
these parties, the RPM recommends
action for decisions by lead agency
officials. The RPM’s penod of
responsibility begins prior to initiation
of the remedial investigation/feasibility
study (Rl/FS), described in § 300 430,
and continues through design, remedial
action, deletion of the site from the NPL,
and the CERCLA cost recovery activity.
When a removal and remedial action
occur at the same site, the OSC and
RPM should coordinate to ensure an
orderly transition of responsibility.
(2) Federal-lead non-Fund-financed
response’ The RPM coordinates, directs,
and reviews the work of other agencies.
responsible parties, and contractors to
assure compliance with the NC?,
Record of Decision (ROD), consent
decree, administrative order, and lead
agency-approved plans applicable to the
response. Based upon the reports of
these parties, the RPM shall recommend
action for decisions by lead agency
officials. The RPM’s penod of
responsibility begins prior to initiation
of the RI/FS, described in § 300 430, and
continues through design and remedial
action and the CERCLA cost recovery
activity. The OSC and RPM shall ensu
orderly transition of responsibilities
from one to the other.
(3) The RPM shall participate in all
decision-making processes necessary to
ensure compliance with the NC?.
including, as appropriate, agreements
between EPA or other federal agencies
and the state The RPM may also review
responses where EPA has preaulhonzed
a person to file a claim for
reimbursement to determine that the
response was consistent with the terms
of such preauthorization in cases where
claims are filed for reimbursement
(g)(1) Where a support agency has
been identified through a cooperative
agreement. Superfund Memorandum of
Agreement (SMOA), or other agreement,
that agency may designate a support
agency coordinator (SAC) to provide
assistance, as requested. by the OSCI
RPM The SAC is the prime
representative of the support agency for
response actions
(2) The SAC’s responsibilities may
include
(i) Providing and reviewing data and
documents as requested by the OSC/
RPM dunng the planning, design, and
cleanup activities of the response
action, and
(ii) Providing other assistance as
requested
(h)(i) The lead agency should provide
appropriate training for its OSCs, RPMs,
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Federal Register / Vol. 59, No. 178 1 Thursday, September 15, 1994 I Rules and Regulations 47433
and other response personnel to carry
out their responsibilities under the NCP.
(2) OSCsIRPMs should ensure that
persons designated to act as their on-
scene representatives are adequately
trained and prepared to carry out
actions under the NC ’, to the extent
practicable
§300.125 P4ottflcatlon and
communIcaI ona.
(a) The National Response Center
(NRC), located at USCG Headquarters. is
the national com.munications center,
continuously manned for handling
activities related to response actions.
The NRC acts as the single point of
contact for all pollution incident
reporting, and as the NRT
communications center Notice of
discharges and releases must be made
telephonically through a toll free
number or a special local number
(Telecommunication Device for the Deaf
(TDD) and collect calls accepted)
(Notification details appear in
§ 300.300 and 300.405.) The NRC
receives and immediately relays
telephone notices of discharges or
releases to the appropriate
predesignated federal OSC. The
telephone report is distributed to any
interested NRT member agency or
federal entity that has established a
written agreement or understanding
with the NRC The NRC evaluates
incoming information and immediately
advises FEMA of a potential major
disaster situation
(b) The Commandant, USCG, in
conjunction with other NRT agencies.
shall provide the necessary personnel.
communications, plotting facilities, and
equipment for the NRC
(c) Notice of an oil discharge or
release of a hazardous substance in an
amount equal to or greater than the
reportable quantity must be made
immediately in accordance with 33 CFR
part 153. subpart B, and 40 CFR part
302, respectively Notification shall be
made to the NRC Duty Officer, HQ
USCC. Washington. DC. telephone (800)
424—6602 or (202) 267—2675 All notices
of discharges or releases received at the
NRC will be relayed immediately by
telephone to the OSC.
§300.130 DeterminatIons to initiate
response and special condWons.
(a) In accordance with CWA and
CERCLA. the Administrator of EPA or
the Secretary of the department in
which the USCG is operating, as
appropriate, is authorized to act for the
United States to take response measures
deemed necessary to protect the public
health or welfare or environment from
discharges of oil or releases of
hazardous substances, pollutants. or
contaminants except with respect to
such releases on or from vessels or
facilities under the jurisdiction.
custody, or control of other federal
agencies.
(b) The Administrator of EPA or the
Secretary of the department in which
the USCG is operating, as appropriate, is
authorized to initiate and, in the case of
a discharge posing a substantial threat to
public health or welfare of the United
States is required to initiate and direct,
appropriate response activities when the
Administrator or Secretary determines
that any oil or CWA hazardous
substance is discharged or there is a
substantial threat of such discharge from
any vessel or offshore or onshore facility
into or on the navigable waters of the
United States, on the adjoining
shorelines to the navigable waters, into
or on the waters of the exclusive
economic zone, or that may affect
natural resources belonging to.
appertalning to, or under exclusive
management authority of the United
States; or
(c) The Administrator of EPA or the
Secretary of the department in which
the USCG is operating, as appropriate, is
authorized to initiate appropriate
response activities when the
Administrator or Secretary determines
that any hazardous substance is released
or there is a threat of such a release into
the environment, or there is a release or
threat of release into the environment of
any pollutant or contaminant which
may present an imminent and
substantial danger to the public health
or welfare of the United States.
(d) In addition to any actions taken by
a state or local government, the
Administrator of EPA or the Secretary of
the department in which the USCG is
operating may request the U S Attorney
General to secure the relief from any
person, including the owner or operator
of the vessel or facility necessary to
abate a threat or, afier notice to the
affected state, take any other action
authorized by section 311 of the CWA
or section 106 of CERCL& as
appropriate, including issuing
administrative orders, that may be
necessary to protect the public health or
welfare, if the Administrator or
Secretary determines
(1) That there may be an imminent
end substantial threat to the public
health or welfare of the United States or
the environment of the United States,
including fish, shellfish, and wildlife,
public and pnvate property, shorelines,
beaches, habitats, and other living and
nonhving natural resources under the
jurisdiction or control of the United
States, because of an actual or
threatened discharge of oil or a CWA
hazardous substance from any vessel or
offshore or onshore facility into or upon
the navigable waters of the United
States; or
(2) That there may be an imminent
and substantial endangerment to the
public health or welfare of the United
States or the environment because of a
release of a CERCLA hazardous
substance from a facility
(e) Response actions to remove
discharges originating from operations
conducted subject to the Outer
Continental Shelf Lands Act shall be in
accordance with the NCP
(I) Where appropriate, when a
discharge or release involves radioactiv’
materials, the lead or support federal
agency shall act consistent with the
notification and assistance procedures
described in the appropriate Federal
Radiological Plan For the purpose of
the NCP. the FRERP (24 CFR part 2401)
is the appropriate plan Most
radiological discharges and releases do
not result in FRERP activation arid
should be handled in accordance with
the NCP. However, releases from
nuclear incidents subject to
requirements for financial protection
established by the Nuclear Regulatory
Commission under the Price-Anderson
amendments (section 170) of the Atomic
Energy Act are specifically excluded
from CERCLA and NCP requirements
(g) Removal actions involving nuclear
weapons should be conducted in
accordance with the joint Department of
Defense, Department of Energy, and
FEMA Agreement for Response to
Nuclear Incidents and Nuclear Weapon’
Significant Incidents (January 8. 1981)
(h) If the situation isbevond the
capability of state and local
governments and the statutory authority
of federal agencies, the President may.
under the Disaster Relief Act of 1974,
act upon a request by the governor and
declare a major disaster or emergency
and appoint a Federal Coordinating
Officer (FCO) to coordinate all federal
disaster assistance activities In such
cases, the OSC/RPM would continue to
carry out OSC/RPM responsibilities
under the NCP, but would coordinate
those activities with the FCO to ensure
consistency with other federal disaster
assistance activities
(i) In the event of a declaration of a
major disaster by the President, the
FEMA may activate the Federal
Response Plan (FRP) A FCO, designated
by the President, may implement the
FRP and coordinate and direct
emergency assistance and disaster relief
of impacted individuals, business, and
public services under the Robert T
Stafford Disaster Relief Act. DeLivery of
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47434 Federal Register I Vol. 59, No. 178 / Thursday, September 5, 1994 / Rules arid Regulations
federal assistance is facilitated through
twelve functional annexes to the FR?
known as Emergency Support Functions
(ESFs). EPA coordinates activities under
ESF #10—Hazardous Materials, which
addresses preparedness and response to
hazardous materials and oil incidents
caused by a natural disaster or other
catastroph.ic event. In such cases, the
OSCIRPM should coordinate response
acth’i ties with the FCO, through the
incident-specific ESF #10 Chair, to
ensure consistency with federal disaster
assistance activities.
§300.135 Response operations.
(a) The OSC/RPM, consistent with
§ 300.120 and 300.125, shall direct
response efforts and coordinate all other
efforts at the scene of a discharge or
release As part of the planning and
preparation for response, the OSCs/
RPMs shall be predesignated by the
regional or distnct head of the lead
agency
(b) The first federal official affiliated
with an NRT member agency to arrive
at the scene of a discharge or release
should coordinate activities under the
NCP and is authorized to initiate, in
consultation with the OSC, any
necessary actions normally carried out
by the OSC until the arrival of the
predesignated OSC This official may
initiate federal fund-financed actions
only as authorized by the OSC or, if the
OSC is unavailable, the authorized
representative of the lead agency
Ic) The OSCIRPM shall, to the extent
practicable, collect pertinent facts about
the discharge or release, such as its
source and cause, the identification of
potentially responsible parties the
nature, amount, and location of
discharged or released materials, the
probable direction and time of travel of
discharged or released materials,
whether the discharge is a worst case
discharge as discussed in § 300 324, the
pathways to human and environmental
exposure, the potential impact on
human health, welfare, and safety and
the enviromnent, whether the discharge
or release poses a substantial threat to
the public health or welfare of the
United States as discussed in § 300 322,
the potential impact on natural
resources and property which may be
affected, priorities for protecting human
health and welfare and the
environment; and appropriate cost
documentation
(d) The 0 SC’s/RPM’s efforts shall be
coordinated with other appropriate
federal, state, local, and private
response agencies OSCs/RPMs may
designate capable persons from federal,
state, or local agencies to act as their on-
scene representatives. State and local
governments, however, are not
authorized to take actions under
subparts D and E of the NC? that
involve expenditures of the Oil Spill
Liability Trust Fund oCERCLA funds
unless an appropriate contract or
cooperative agreement has been
established. The basic framework for the
response management structure is a
system (e.g , a unified command
system), that brings together the
functions of the federal government, the
state government, and the responsible
party to achieve an effective and
efficient response, where the OSC
maintains authority.
(e) The OSCIRPM should consult
regularly with the RRT and NSFCC, as
appropriate, in carrying out the NC?
and keep the RRT and NSFCC, as
appropriate, informed of activities
under the NC?.
(I) The OSCIRPM shall advise the
support agency as promptly as possible
of reported releases.
(g) The OSC/RPM should evaluate
incoming information and immediately
advise FEMA of potential major disaster
situations.
(h) In those instances where a
possible public health emergency exists,
the OSC/RPM should notify the
Department of Health and Human
Services (HHS) representative to the
RRT Throughout response actions, the
OSCJRPM may call upon the HHS
representative for assistance in
determining public health threats and
call upon the Occupational Safety and
Health Administration (OSHA) and
HHS for assistance on worker health
and safety issues.
(i) All federal agencies should plan for
emergencies and develop procedures for
dealing with oil discharges and releases
of hazardous substances, pollutants, or
contaminants from vessels and facilities
under their junsdiction All federal
agencies, therefore, are responsible for
designating the office that coordinates
response to such incidents ui
accordance with the NC? and applicable
federal regulations and guidelines.
(j) i) The OSC/RPM shall ensure that
the trustees for natural resources are
promptly notified of discharges or
releases.
(2) The OSC or RPM shall coordinate
all response activities with the affected
natural resource trustees and, for
discharges of oil, the OSC shall consult
with the affected trustees on the
apprcpnate removal action to be taken.
1k) Where the OSC/RPM becomes
aware that a discharge or release may
affect any endangered or threatened
species or their habitat, the OSC/RPM
shall consult with the Department of
Interior (DOl). or the Department of
Commerce (DOC) (NOAA) and, if
appropriate, the cognizant federal land
managing agency
(1) The 0 SC/RPM is responsible for
addressing worker health and safety
concerns at a response scene, ui
accordance with § 300.150.
(m) The OSC shall submit pollution
reports to the RRT and other appropriate
agencies as significant developments
occur during response actions, through
communications networks or
procedures agreed to by the RRT and
covered in the RCP.
(n) OSCs/RPMs should ensure that all
appropriate public and private interests
are kept informed and that their
concerns are considered throughout a
response, to the extent practicable,
consistent with the requirements of
§ 300.155 of this part.
§300.140 MultI-regional responses.
(a) If a discharge or release moves
from the area covered by one AC? or
RCJ’ into another area, the authonty for
response actions should likewise shift
If a discharge or release affects areas
covered by two or more AGPs or RcPs,
the response mechanisms of each
applicable plan may be activated. In this
case, response actions of all regions
concerned shall be fully coordinated as
detailed in the RCPs and ACPs.
(b) There shall be only one OSC and/
or RPM at any time during the course of
a response operation. Should a
discharge or release affect two or more
areas, EPA, the USCC. DOD, DOE, or
other lead agency, as appropriate, shall
give prime consideration to the area
vulnerable to the greatest threat, in
determining which agency should
provide the OSC andior RPM The RRT
shalL designate the OSC and/or RPM if
the RRT member agencies who have
response authonty within the affected
areas are unable to agree on the
designation. The NRT shall designate
the OSC andior RPM if members of one
RRT or two ad)acent RRTs are unatile to
agree on the designation.
(c) Where the USCG has initially
provided the OSC for response to a
release from hazardous waste
management facilities located in the
coastal zone, responsibility for response
action shall shift to EPA or another
federal agency, as appropriate
§300.145 SpecIal teams and other
assistance available to OSCsIRPMs.
(a) The NSF is a special team
established by the USCG. including the
three USCG Strike Teams, the Public
Information Assist Team (NAT), and the
NSFCC. The NSF is available to assist
OSCs/RPMs in their preparedness and
response duties
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Federal Register / Vol. 59, No. 178 I Thursday, September 15, 1994 / Rules and Regulations 47435
(1) The three Strike Teams (Atlantic,
Gull, and Pacific) provide trained
personnel and specialized equipment to
assist the OSC in t.raming for spill
response, stabilizing and containing the
spill, and in monitonng or directing the
response actions of the responsible
parties andJor contractors The OSC has
a specific team designated for initial
contact and may contact that team
directly for any assistance.
(2) The NSFCC can provide the
following support to the OSC
(i) Technical assistance, equipment
and other resources to augment the OSC
staff during spill response
(ii) Assistance in coordinating the use
of pnvate and public resources in
support of the OSC during a response to
or a threat of a worst case discharge of
oil
(iii) Review of the area contingency
plan, including an evaluation of
equipment readiness and coordination
among responsible public agencies and
private organizations.
(iv) Assistance in locating spill
response resources for both response
and planning, using the NSFCC’s
national and international computerized
inventory of spill response resources.
(v) Coordination and evaluation of
pollution response exercises.
(vi) inspection of district
prepositioned pollution response
equipment
(3) PIAT is an element of the NSFCC
staff which is available to assist OSCs to
meet the demands for public
information during a response or
exercise Its use is encouraged any time
the OSC requires outside public affairs
support. Requests for PIAT assistance
may be made through the NSFCC or
NRC
(b)(i) The Environmental Response
Team (ERT) is established by EPA in
accordance with its disaster arid
emergency responsibilities. The ERT has
expertise in treatment technology,
biology, chemistry, hydrology, geology.
and engineering
(2) The ERT can provide access to
special decontamination equipment for
chemical releases and advice to the
OSC/RPM in hazard evaluation; risk
assessment, multimedia sampling and
analysis program. on-site safety,
including development and
implementation plans; cleanup
techniques and pnorities; water supply
decontamination and protection,
application of dispersants.
environmental assessment; degree of
cleanup required; and disposal of
contaminated material
(3) The ERT also provides both
introductory and intermediate level
training courses to prepare response
personnel.
(4) OSC/RPM or RRT requests for ERT
support should be made to the EPA
representative on the RRT, EPA
Headquarters. Director, Emergency
Response Division; or the appropriate
EPA regional emergency coordinator.
(c) Scientific Support Coordinators
(SSCs) may be designated by the OSC
(and RPM in the case of EPA SSCs) as
the principal advisors for scientific
issues, communication with the
scientific community, and coordination
of requests for assistance from state and
federal agencies regarding scientific
studies. The SSC strives for a consensus
on scientific issues affecting the
response, but ensures that differing
opinions within the community are
communicated to the OSC/RPM.
(1) Generally. SSCs are provided by
NOAA in the coastal zones, and by EPA
in the inland zone OSC/RPM requests
for SSC support can be made directly to
the SSC assigned to the area or to the
agency member of the RRT NOAA SSCs
can also be requested through NOAA’s
SSC program office in Seattle, WA.
NOAA SSCs are assigned to USCG
Districts and are supported by a
scientific support team that includes
expertise in environmental chemistry,
oil slick tracking. pollutant transport
modeling, natural resources at risk,
environmental tradeoffs of
countermeasures and cleanup, and
information management
(2) During a response. the SSC serves
on the federal 0 SC’s/RPM’s staff and
may, at the request of the OSCIRPM.
lead the scientific team and be
responsible for providing scientific
support for operational decisions and
for coordinating on-scene scientific
activity Depending on the nature and
location of the incident, the SSC
integrates expertise from governmental
agencies, universities, community
representatives, and industry to assist
the OSC/RPM in evaluating the hazards
and potential effects of releases and in
developing response strategies
(3) At the request of the OSC, the SSC
may facilitate the OSC’s work with the
lead administrative trustee for natural
resources to ensure coordination
between damage assessment data
collection efforts and data collected in
support of response operations
(4) SSCs support the Regional
Response Teams and the Area
Committees in preparing regional and
area contingency plans and in
conducting spill training and exercises.
For area plans, the SSC provides
leadership for the synthesis and
integration of environmental
information required for spill response
decisions in support of the OSC
(d)(i) SIJPSALV has an extensive
salvage/search and recovery equipment
inventory with the requisite knowledge
and expertise to support these
operations, including specialized
salvage, firefighting, and petroleum, oil
and lubricants offloading capability
(2) When possible, SUPSALV will
provide equipment for training exercises
in support of national and regional
contingency planning objectives
(3) The OSCIRPM may request
assistance directly from SUPSALV
Formal requests are routed through the
Chief of Naval Operations (N312).
(e) For marine salvage operations,
OSCs/RPMs with responsibility for
monitoring. evaluating, or supervising
these activities should request technical
assistance from DOD. the Strike Teams,
or commercial salvors as necessary to
ensure that proper actions are taken
Marine salvage operations generally fall
into five categories afloat salvage,
offshore salvage; river and harbor
clearance, cargo salvage, and rescue
towing. Each category requires different
knowledge and specialized types of
equipment The complexity of such
operations may be further compounded
by local environmental and geographic
conditions The nature of marine
salvage and the conditions under which
it occurs combine to make such
operations imprecise, difficult,
hazardous, and expensive Thus,
responsible parties or other persons
attempting to perform such operations
without adequate knowledge,
equipment, and experience could
aggravate, rather than relieve, the
situation
(0 Radiological Emergency Response
Teams (RERTs) have been established
by EPA’s Office of Radiation Programs
(ORP) to provide response and support
for incidents or sites containing
radiological hazards Expertise is
available in radiation monitoring.
radionuclide analysis, radiation health
physics, and risk assessment RERTs can
provide on-site support including
mobile monitonng laboratories for field
analyses of samples and fixed
laboratories for radiochemical sampling
and analyses Requests for support may
be made 24 hours a day via the NRC or
directly to the EPA Radiological
Response Coordinator in the Office of
Radiation Programs Assistance is also
available from DOE and other federal
agencies.
(gWl) DRGs assist the OSC by
providing technical assistance,
personnel, and equipment, including
pre.positioned equipment Each DRG
consists of all Coast Guard personnel
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47436 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
and equipment, including marine
firefighting equipment, in its district,
additional pre.positioned equipment.
and a District Response Advisory Team
(DRAT) that is available to provide
support to the OSC in the event that a
spill exceeds local response capabilities.
EaChDRG.
(i) Shall provide technical assistance.
equipment, and other resources, as
available, when requested by an OSC
through the USCG representative to the
RRT;
(ii) Shall ensure maintenance of all
USCG response equipment within its
district;
(iii) May provide technical assistance
in the preparation of the ACP, and
(iv) Shall review each of those plans
that affect its area of geographic
responsibility.
(2) In deciding where to locate
personnel and pro-positioned
equipment, the USCG shall give priority
emphasis to:
(i) The availability of facilities for
loading and unloading heavy or bulky
equipment by barge;
(ii) The proximity to an airport
capable of supporting large military
transport aircraft;
(iii) The flight time to provide
response to oil spills in all areas of the
Coast Guard district with the potential
for marine casualties;
(iv) The availability of trained local
personnel capable of responding in an
oil spill emergency; and
(v) Areas where large quantities of
petroleum products are transported.
(h) The NPFC is responsible for
implementing those portions of Title I of
the OPA that have been delegated to the
Secretary of the department in which
the Coast Guard is operating. The NPFC
is responsible for addressing funding
issues arising from discharges and
threats of discharges of oil. The NPFC:
(1) Issues Certificates of Financial
Responsibility to owners and operators
of vessels to pay for costs and damages
that are incurred by their vessels as a
result of oil discharges.
(2) Provides funding for various
response organizations for timely
abatement and removal actions related
to oil discharges.
(3) Provides equitable compensation
to claimants who sustain costs and
damages from oil discharges when the
responsible party fails to do so.
(4) Recovers monies from persons
liable for costs and damages resulting
from oil discharges to the full extent of
liability under the law; and
(5) Provides funds to initiate natural
resource damage assessments.
* 300,150 Worker health and safety.
(a) Response actions under the NCP
will comply with the provisions for
response action worker safety and
health in 29 CFR 1910.120 The NRS
meets the requirements of 29 CFR
1910.120 concerning use of an incident
command system.
(b) In a response action taken by a
responsible party, the responsible party
must assure that an occupational safety
and health program consistent with 29
FR 1910.120 is made available for the
protection of workers at the response
site.
(c) In a response taken under the NCP
by a lead agency, an occupational safety
and health program should be made
available for the protection of workers at
the response site, consistent with, and
to the extent required by, 29 CFR
1910.120. Contracts relating to a
response action under the NCP should
contain assurances that the contractor at
the response site will comply with this
program and with any applicable
provisions of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651
et seq.) (OSH Act) and state laws with
plans approved under section 18 of the
OSH Act.
(d) When a state, or political
subdivision of a state, without an
OSHA-approved state plan is the lead
agency for response. the state or
political subdivision must comply with
standards in 40 CFR part 311,
promulgated by EPA pursuant to section
126(1) of SARA
(e) Requirements, standards, and
regulations of the OSH Act and of state
OSH laws not directly referenced in
paragraphs (a) through (d) of this
section. must be complied with where
applicable Federal OSH Act
requirements include, among other
things. Construction Standards (29 CFR
part 1gm), General Industry Standards
(29 CFR part 1910), and the general duty
requirement of section 5(a)(1) of the
OSH Act (29 U.S.C 654(a)(1)). No action
by the lead agency with respect to
response activities under the NCP
constitutes an exercise of statutory
authority within the meaning of section
4(b)(1) of the OSH Act All
governmental agencies and private
employers are directly responsible for
the health and safety of theff own
employees.
§300.155 Public Information and
community relations.
(a) When an incident occurs, it is
imperative to give the public prompt,
accurate information on the nature of
the incident and the actions underway
to mitigate the damage OSCsIRPMs and
community relations personnel should
ensure that all appropriate public and
private interests are kept informed and
that their concerns are considered
throughout a response. They should
coordinate with available public affairs!
community relations resources to carry
out this responsibility by establishing,
as appropriate, a Joint Information
Center bnnging together resources from
federal and state agencies and the
responsible party.
(b) An on-scene news office may be
estabhshed to coordinate media
relations and to issue official federal
information on an incident Whenever
possible, it will be headed by a
representative of the lead agency. The
OSC/RPM determines the location of the
on-scene news office, but every effort
should be made to locate it near the
scene of the incident. If a participating
agency believes public interest warrants
the issuance of statements and an on-
scene news office has not been
established, the affected agency should
recommend its establishment All
federal news releases or statements by
participating agencies should be cleared
through the OSCIRPM. Information
dissemination relating to natural
resource damage assessment activities
shall be coordinated through the lead
admimstrative trustee. The designated
lead administrative t.rustee may assist
the OSCJRPM by disseminating
information on issues relating to damage
assessment activities. Following
termination of removal activity,
information dissemination on damage
assessment activities shall be through
the lead administrative trustee
(c) The community relations
requirements specified in § 300 415,
300 430, and 300.435 apply to removal,
remedial, and enforcement actions and
are intended to promote active
communication between communities
affected by discharges or releases and
the lead agency responsible for response
actions. Community Relations Plans
(CRPs) are required by EPA for certain
response actions The OSC/RPM should
ensure coordination with such plans
which may be in effect at the scene of
a discharge or release or which may
need to be developed during follow-up
activities
§300.160 Documentation and cost
recovery.
(a) For releases of a hazardous
substance, pollutant, or contaminant,
the following provisions apply
(1) During all phases of response, the
lead agency shall complete and
maintain documentation to support all
actions taken under the NCP and to
form the basis for cost recovery, In
general, documentation shall be
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Federal Register I Vol. 59,No.178/ Thursday, September 15, 1994 / Rules and Regulations 47437
sufficient to provide the source and
circumstances of the release, the
identity of responsible parties, the
response action taken, accurate
accounting of federal, state, or private
party costs incurred for response
actions, and impacts and potential
unpacts to the public health and welfare
and the environment. Where applicable.
dc’cumentation shall state when the
NRC received notification of a release of
a reportable quantity.
(2) The information and reports
obtained by the lead agency for Fund-
financed response actions shall, as
appropriate, be transmitted to the chair
of the RRT. Copies can then be
forwarded to the NRT, members of the
RRT. and others as appropriate.
(3) The lead agency shall make
available to the trustees of affected
natural resources information and
documentation that can assist the
trustees in the determination of actual
or potential natural resource injuries
(b) For discharges of oil,
documentation and cost recovery
provisions are described in § 300 315.
(c) Response actions undertaken by
the participating agencies shall be
carried out under existing programs and
authorities when avmkable. Federal
agencies are to make resources
available, aicpend funds, or participate
in response to discharges and releases
under their existing authority
Interagency agreements may be signed
when necessary to ensure that the
federal resources will be available for a
timely response to a discharge or
release The ultimate decision as to the
appropnateness of expending funds
rests with the agency that is held
accountable for such expenditures
Further funding provisions for
discharges of oil are described in
§ 300 335
(dl The Administrator of EPA and the
Administrator of the Agency for Toxic
Substances and Disease Registry
(ATSDR) shall assure that the costs of
health assessment or health effect
studies conducted under the authonty
of CERCLA section 104(1) are
documented in accordance with
standard EPA procedures for cost
recovery Documentation shall include
information on the nature of the
hazardous substances addressed by the
research, information concerning the
locations where these substances have
been found, and any available
iriforniation on response actions taken
concerning these substances at the
location
§300.165 OSCreporta.
(a) As requested by the NRT or RRT,
the OSC/RPM shall submit to the NRT
or RRT a complete report on the
removal operation and the actions
taken. The RRT shall review the OSC
report and send to the NRT a copy of the
OSC report with its comments or
recommendations within 30 days after
the RRT has received the OSC report
(b) The OSC report shall record the
situation as it developed, the actions
taken, the resources committed, and the
problems encountered
§ 300.170 Federal agency participation.
Federal agencies listed in § 300.175
have duties established by statute,
executive order, or Presidential
directive which may apply to federal
response actions following, or in
prevention of, the discharge of oil or
release of a hazardous substance,
pollutant, or contaminant. Some of
these agencies also have duties relating
to the restoration, rehabilitation,
replacement, or acquisition of
equivalent natural resources injured or
lost as a result of such discharge or
release as described in subpart C of this
part. The NRT, RRT, and Area
Committee organizational structure, arid
the N P. REPs and ACPs, descnbed in
§ 300.210, provide for agencies to
coordinate with each other in carrying
out these duties
(a) Federal agencies may be called
upon by an OSCIRPNI dunng response
planning and implementation to
provide assistance in their respective
areas of expertise, as described in
§ 300.175, consistent with the agencies’
capabilities and authorities
(b) In addition to their general
responsibilities, federal agencies should
(1) Make necessary information
available to the Secretary of the NRT.
RRTs, Area Committees, and CSCs/
RPMs.
(2) Provide representatives to the NRT
and RRTs and otherwise assist RRTs
and OSCs, as necessary. in formulating
RCPs and ACPs.
(3) Inform the NRT, RRTs, and Area
Committees, consistent with national
security considerations, of changes in
the availability of resources that would
affect the operations implemented
under the NCP
(c) All federal agencies are
responsible for reporting releases of
hazardous substances from facilities or
vessels under their jurisdiction or
control in accordance with section 103
of CERCLA.
(dl All federal agencies are
encouraged to report releases of
pollutants or contaminants and must
report discharges of oil, as required in
40 CFR part 110, from facilities or
vessels under their jurisdiction or
control to the NRC.
§300.175 Federal agencies: additional
responsibilities and assistance.
(a) During preparedness planning or
in an actual response, various federal
agencies may be called upon to provide
assistance in their respective areas of
expertise, as indicated in paragraph (b)
of this section. consistent with agency
legal authorities and capabilities
(b) The federal agencies include
(1) USCG. as provided in 14 U.S C 1—
3, is an agency in DOT, except when
operating as an agency in the United
States Navy (USN) in time of war The
USCG provides the NRT vice chair, co-
chairs for the standing RRTs, and
predesignated OSCs for the coastal zone,
as described in § 300 120(al(l), The
USCG maintains continuously manned
facilities which can be used for
command, control, and surveillance of
oil discharges and hazardous substance
releases occurring in the coastal zone
The USCG also offers expertise in
domestic and international fields of port
safety and security, maritime law
enforcement, ship navigation and
construction, and the manning,
operation, arid safety of vessels and
marine facilities The USCG may enter
into a contract or cooperative agreement
with the appropriate state in order to
implement a response action
(2) EPA chairs the NRT and co-chairs,
with the USCC. the standing RRTs,
provides predesignated OSCs for all
inland areas for which an ACP is
required under CWA section 311(j) and
for discharges and releases occurring in
the inland zone and RPMs for remedial
actions except as otherwise provided.
and generally provides the SSC for
responses in the inland zone EPA
provides expertise on human health and
ecological effects of oil discharges or
releases of hazardous substances,
pollutants, or contaminants, ecological
arid human health risk assessment
methods, and environmental pollution
control techniques Access to EPA ’s
scientific expertise can be facilitated
through the EPA representative to the
Research and Development Committee
of the National Response Team, the EPA
Office of Research arid Development’s
Superfund Technical Liaisons or
Regional Scientists located in EPA
Regional offices, or through EPA’s
Office of Science Planning arid
Regulatory Evaluation EPA also
provides legal expertise on the
interpretation of CERCLA and other
environmental statutes EPA may enter
into a contract or cooperative agreement
with the appropriate state in order to
implement a response action
13) FEMA provides guidance, policy
and program advice, and technical
assistance in hazardous materials,
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47438 Federal_Register / Vol. 59. No. 178 / Thursday, September 15, 1994 / Rules and Regulations
chemical, and radiological emergency
preparedness activities (including
planning. training, and exercising).
FEMA’s primary point of contact for
administering financial and technical
assistance to state and local
governments to support their efforts to
develop and maintain an effective
emergency management and response
capability is the Preparedness, Training,
and Exercises Directorate
(4) DOD has responsibility to take all
action necessary with respect to releases
where either the release is on, or the
sole source of the release is from, any
facility or vessel under the jurisdiction,
custody, or control of DOD In addition
to those capabilities provided by
SUPSALV. DOD may also, consistent
with its operational requirements and
upon request of the OSC. provide
locally deployed USN oil spill
equipment and provide assistance to
other federal agencies on request. The
following two branches of DOD have
particularly relevant expertise
Ci) The United States Army Corps of
Engineers has specialized equipment
and personnel for maintaining
navigation channels, for removing
navigation obstructions, for
accomplishing structural repairs, and
for performing maintenance to
hydropower electric generating
equipment The Corps can also provide
design services, perform construction,
and provide contract writing and
contract administrative services for
other federal agencies.
(ii) The U.S Navy Supervisor of
Salvage (SUPSALV) is the branch of
service within DOD most
knowledgeable and experienced in ship
salvage, shipboard damage control, and
diving The USN has an extensive array
of specialized equipment and personnel
available for use in these areas as well
as specialized containment, collection.
and removal equipment specifically
designed for salvage-related and open.
sea pollution incidents
(5) DOE generally provides designated
OSCs/RPMs that are responsible for
taking all response actions with respect
to releases where either the release is
on, or the sole source of the release is
from, any facility or vessel under its
jurisdiction, custody, or control,
including vessels bareboat-chartered
and operated. En addition, under the
FRERP, DOE provides advice and
assistance to other OSCsIRPMs for
emergency actions essential for the
control of unmediate radiological
hazards. Incidents that qualify for DOE
radiological advice and assistance are
those believed to involve source, by-
product, or special nuclear material or
other ionizing radiation sources,
including radium, and other naturally
occurring radionuclides, as well as
particle accelerators. Assistance is
available through direct contact with the
appropriate DOE Radiological
Assistance Program Regional Office
(6) The Department of Agriculture
(USDA) has scientific and technical
capability to measure, evaluate, and
monitor, either on the ground or by use
of aircraft, situations where natural
resources including soil, water, wildlife,
and vegetation have been impacted by
fire, insects and diseases, floods,
hazardous substances, and other natural
or man-caused emergencies The USDA
may be contacted through Forest Service
emergency staff officers who are the
designated members of the RRT
Agencies within USDA have relevant
capabilities and expertise as follows
fi) The Forest Service has
responsibility for protection and
management of national forests and
national grasslands The Forest Service
has personnel, laboratory, and field
capability to measure, evaluate,
monitor, and control as needed, releases
of pesticides and other hazardous
substances on lands under its
jurisdiction
(ii ) The Agriculture Research Service
CARS) administers an applied and
developmental research program in
animal and plant protection and
production; the use and improvement of
soil, water, and air, the processing,
storage, and distribution of farm
products, and human nutrition The
ARS has the capabilities to provide
regulation of, and evaluation and
training for, employees exposed to
biological, chemical, radiological, and
industrial hazards In emergency
situations, the ARS can identify,
control, and abate pollution in the areas
of air, soil, wastes, pesticides, radiation,
ançl toxic substances for ARS facilities
(iii) The Soil Conservation Service
(SCSI has personnel in nearly every
county in the nation who are
knowledgeable in soil, agronomy.
engineenng, and biology. These
personnel can help to predict the effects
of pollutants on soil and their
movements over and through soils,
Technical specialists can assist in
identifying potential hazardous waste
sites and provide review and advice on
plans for remedial measures
(iv) The Animal and Plant Health
Inspection Service (APHIS) can respond
in an emergency to regulate movement
of diseased or infected organisms to
prevent the spread and contamination of
nonaffected areas
(v) The Food Safety and Inspection
Service (FSIS) has responsibility to
prevent meat and poultry products
contaminated with harmful substances
from entering human food channels In
emergencies, the FSIS works with other
federal and state agencies to establish
acceptability for slaughter of exposed or
potentially exposed animals and their
products. in addition they are charged
with managing the Federal Radiological
Emergency Response Program for the
USDA.
(7) DOC, through NOA.A, provides
scientific support for response and
contingency planning in coastal and
marine areas, including assessments of
the hazards that may be involved,
predictions of movement’cnd dispersion
of oil and hazardous substances through
trajectory modeling, and information on
the sensitivity of coastal environments
to oil and hazardous substances and
associated clean-up and mitigation
methods, provides expertise on living
manne resources and their habitats,
including endangered species, marine
mammals and National Marine
Sanctuary ecosystems, provides
information on actual and predicted
meteorological, hydrological, ice, and
oceanographic conditions for marine,
coastal, and inland waters, and tide and
circulation data for coastal and
territorial waters and for the Great
Lakes.
(B) HHS assists with the assessment.
preservation, and protection of human
health and helps ensure the availability
of essential human services HHS
provides technical and noritechrucal
assistance in the form of advice.
guidance, and resources to other federal
agencies as well as state and local
governments
(i) The principal HHS response comes
from the U S Public Health Service and
iS coordinated from the Office of the
Assistant Secretary for Health, and
various Public Health Service regional
offices, Within the Public Health
Service, the primary response to a
hazardous niatenals emergency comes
from Agency for Toxic Substances and
Disease Registry (ATSDR) and the
Centers for Disease Control (CDC) Both
ATSDR and CDC have a 24-hour
emergency response capability wherein
scientific and technical personnel are
available to provide technical assistance
to the lead federal agency and state and
local response agencies on human
health threat assessment and analysis,
arid exposure prevention and
mitigation Such assistance is used for
situations requiring evacuation of
affected areas, human exposure to
hazardous niatenals, and technical
advice on mitigation arid prevention.
CDC takes the lead during petroleum
releases regulated under the CWA and
OPA while ATSDR takes the lead during
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Federal Register / VoL 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations 47439
chemical releases under CERCLA. Both
agencies are mutually supportive.
(u) Other Public Health Service
agencies involved in support during
hazardous matenals incidents either
directly or through ATSDRJCI)C include
the Food and Drug Administration, the
Health Resources and Services
Administration, the Indian Health
Service, and the National Institutes of
Health
(in) Statutory authority for Hl-IS/
National Institutes for Environmental
Health Sciences (NIEHS) involvement in
hazardous materials accident prevention
is non-regulatory-in nature and focused
on two primary areas for preventing
community and worker exposure to
hazardous matenals releases: Worker
safety training and basic research
activities. Under section 26 of SARA,
NIEHS is given statutory authority for
supporting development of curricula
and model training programs for waste
workers and chemical emergency
responders.
Under section 118(b) of the Hazardous
Materials Transportation and Uniform
Safety Act (HMTUSA) (49 U S.C. 1802
et seq) NIEHS also administers the
Hazmat Employee Training Program to
prepare curricula and training for
hazardous materials transportation
workers. In the basic research arena,
NIEHS is authonzed under section 311
of SARA to conduct a hazardous
substance basic research and training
program to evaluate toxic effects and
assess human health risks from
accidental releases of hazardous
materials Under Title LX. section 901(h)
of the Clean Air Act Amendments,
NIEHS also is authorized to conduct
basic research on air pollutants, as well
as train physicians in environmental
health. Federal research and training in
hazardous materials release prevention
represents an Important non-regulatory
activity and supplements ongoing
private sector programs
(9) DO l may be contacted through
Regional Environmental Officers
(REOs), who are the designated
members of RRTs Department land
managers have jurisdiction over the
national park system, national wildlife
refuges and fish hatcheries, the public
lands, and certain water projects in
western states in addition, bureaus and
offices have relevant expertise as
follows
(i) United States Fish and Wildlife
Service (USFWS) and other Bureaus
Anadromous and certain other fishes
and wildlife, including endangered and
threatened species. migratory birds, and
certain marine rnanimals, waters and
wetlands, and effects on natural
resources
(ii) The National Biological Survey
performs research in support of
biological resource management;
inventories, monitors, and reports on
the status and trends in the Nation’s
biotic resources; and transfers the
information gained in research and
monitoring to resource managers and
others concerned with the care, use, and
conservation of the Nation’s natural
resources. The National Biological
Survey has laboratory/research
facilities
(iii) Geological Survey Geology,
hydrology (ground water and surface
water), and natural hazards
(iv) Bureau of Land Manage ment
Minerals, soils, vegetation, wildlife,
habitat, archaeology, and wilderness,
arid hazardous materials
(v) Minerals Management Service.
Oversight of offshore oil and gas
exploration and production facilities
and associated pipelines and pipeline
facilities under the Outer Continental
Shelf Lands Act and the CWA, oil spill
response technology research, and
establishing oil discharge contingency
planning requirements for offshore
facilities.
(vi) Bureau of Mines Analysis and
identification of inorganic hazardous
substances and technical expertise in
metals and metallurgy relevant to site
cleanup
(vii) Office of Surface Mining Coal
mine wastes arid land reclamation.
(viii) National Park Service General
biological, natural, and cultural resource
managers to evaluate, measure, monitor,
and contain threats to park system lands
and resources, archaeological and
historical expertise in protection,
preservation, evaluation, impact
mitigation, arid restoration of cultural
resources, emergency personnel
(ix) Bureau of Reclamation Operation
and maintenance of water projects in
the West, engineering and hydrology,
and reservoirs.
(x) Bureau of Indian Affairs
Coordination of activities affecting
Indian lands, assistance in identifying
Indian tribal government officials
(xi) Office of Territorial Affairs
Assistance in implementing the NC? in
American Samoa, Guam. the Pacific
Island Governments, the Northern
Mariana Islands, and the Virgin Islands.
(10) The Department of Justice (DO))
can provide expert advice on
complicated legal questions arising from
discharges or releases, and federal
agency responses In addition, the DO)
represents the federal government,
including its agencies, in litigation
relating to such discharges or releases
Other legal issues or questions shall be
directed to the federal agency counsel
for the agency providing the OSC/RPM
for the response
(11) The Department of Labor (DOL).
through OSHA and the states operating
plans approved under section 18 of the
OSH Act, has authority to conduct
safety and health inspections of
hazardous waste sites to assure that
employees are being protected and to
determine if the site is in compliance
with
(i) Safety and health standards and
regulations promulgated by OSI-IA (or
the states) in accordance with section
126 of SARA and all other applicable
standards, and
(ii) Regulations promulgated under
the OSH Act and its general duty clause
OSHA inspections may be self-
generated, consistent with its program
operations and objectives, or may be
conducted in response to requests from
EPA or another lead agency, or in
response to accidents or employee
complaints. OSHA may also conduct
inspections at hazardous waste sites in
those states with approved plans that
choose not to exercise their junsdiction
to inspect such sites, On request, OSHA
will provide advice and consultation to
EPA and other NRT/RRT agencies as
well as to the OSC/RPM regarding
hazards to persons engaged in response
activities OSHA may also take any
other action necessary to assure that
employees are properly protected at
such response activities. Any questions
about occupational safety and health at
these sites maybe referred to the OSHA
Regional Office.
(12) DOT provides response expertise
pertaining to transportation of oil or
hazardous substances by all modes of
transportation Through the Research
and Special Programs Administration
(RSPA). DOT offers expertise in the
requirements for packaging, handling,
and transporting regulated hazardous
materials DOT, through RSPA.
establishes oil discharge contingency
planning requirements for pipelines.
transport by rail and containers or bulk
transport of oil
(13) The Department of State (DOS)
will lead in the development of
international joint contingency plans It
will also help to coordinate an
international response when discharges
or releases cross international
boundaries or involve foreign flag
vessels. Additionally. DOS will
coordinate requests for assistance from
foreign governments and U S. proposals
for conducting research at incidents that
occur in waters of other countries
(14) The Nuclear Regulatory
Commission will respond, as
appropnate, to releases of radioactive
matenals by its licensees, in accordance
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47440 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
with the NRC Incident Response Plan
(NUREC—O 728) to monitor the actions of
those licensees and assure that the
public health and environment are
protected and adequate recovery
operations are instituted. The Nuclear
Regulatory Commission will keep EPA
informed of any significant actual or
potential releases in accordance with
procedural agreements In addition, the
Nuclear Regulatory Commission will
provide advice to the OSCIRPM when
assistance is required in identifying the
source and character of other hazardous
substance releases where the Nuclear
Regulatory Commission has licensing
authority for activities utilizing
radioactive materials.
(15) The General Services
Administration (GSA) provides logistic
arid telecommunications support to
federal agencies Dunng an emergency
situation, GSA quickly responds to aid
state and local governments as directed
by other federal agencies The type of
support provided might include leasing
and furnishing office space. setting up
telecommunications and transportation
services, and advisory assistance.
§300.180 State and local participation In
response.
(a) Each state governor is requested to
designate one state office/representative
to represent the state on the appropriate
RRT. The state’s office/representative
may participate fully in all activities of
the appropriate RRT. Each state
governor is also requested to designate
a lead state agency that will direct state-
lead response operations This agency is
responsible for designating the lead
state response official for federal andior
state-lead response actions, and
coordinating/communicating with any
other state agencies. as appropriate
Local governments are invited to
participate in activities on the
appropriate RRT as may be provided by
state law or arranged by the state’s
representative Indian tribes wishing to
participate should assign one person or
office to represent the tribal government
on the appropriate RRT
(b) Appropnate local and state
officials (including Indian tribes) will
participate as part of the response
structure as provided in the ACP.
(c) In addition to meeting the
requirements for local emergency plans
under SARA section 303, state and local
government agencies are encouraged to
include contingency planning for
responses, consistent with the NCP,
RCP, and ACP mall emergency and
disaster planning
(d) For facilities not addressed under
CERCLA or the CWA, states are
encouraged to undertake response
actions themselves or to use their
authorities to compel potentially
responsible parties to undertake
response actions.
(e) States are encouraged to enter into
cooperative agreements pursuant to
sections 104 (c)(3) and (d) of CERCLA to
enable them to undertake actions
authorized under subpart E of the NC?.
Requirements for entering into these
agreements are included in subpart F of
the NCP. A state agency that acts
pursuant to such agreements is referred
to as the lead agency. In the event there
is no cooperative agreement. the lead
agency can be designated in a SMOA or
other agreement
(f) Because state and local public
safety organizations would normally be
the first government representatives at
the scene of a discharge or release, they
are expected to initiate public safety
measures that are necessary to protect
public health and welfare and that are
consistent with containment and
cleanup requirements in the NCP, and
are responsible for directing evacuations
pursuant to existing state or local
procedures.
§300.185 Nongovernmental participation.
(a) Industry groups, academic
organizations, and others are
encouraged to commit resources for
response operations. Specific
commitments should be listed in the
R P and ACP Those entities required to
develop tank vessel and facility
response plans under CWA section
311(j) must be able to respond to a worst
case discharge to the maximum extent
practicable. and shall commit sufficient
resources to implement other aspects of
those plans in accordance with the
requirements of 30 CFR part 254, 33
CFR parts 150, 154, and 155; 40 CFR
part 112, and 49 CFR parts 171 and 194
(b) The technical and scientific
information generated by the local
community. along with information
from federal, state, and local
governments, should be used to assist
the OSC/RPM in devising response
strategies where effective standard
techniques are unavailable Such
information and strategies will be
incorporated into the ACP, as
appropriate The SSC may act as liaison
between the OSC/RPM and such
interested organizations
(c) AGPs shall establish procedures to
allow for well organized. worthwhile.
and safe use of volunteers, including
compliance with §300 150 regarding
worker health and safety ACPs should
provide for the direction of volunteers
by the OSCIRPM or by other federal.
state, or local officials knowledgeable in
contingency operations and capable of
providing leadership. ACPs also should
identify specific areas in which
volunteers can be used, such as beach
surveillance, logistical support. and bird
and wildlife treatment Unless
specifically requested by the OSCJRPM,
volunteers generally should not be used
for physical removal or remedial
activities. If, in the judgment of the
OSC/RPM, dangerous conditions exist,
volunteers shall be restricted from on-
scene operations.
(d) Nongovernmental participation
must be in compliance with the
requirements of subpart H of this part if
any recovery of costs will be sought
Subpart C—Planning and
Preparedness
§ 300.200 General.
This subpart summarizes emergency
preparedness activities relating to
discharges of oil and releases of
hazardous substances, pollutants, or
contaminants, describes the three levels
of contingency planning under the
national response system; and cross-
references state and local emergency
preparedness activities under SARA
Title III, also known as the “Emergency
Planning and Community Right-to-
Know Act of 1986” but referred to
herein as “Title III.” Regulations
implementing Title III are codified at 4i.
CFR Subchapter J.
§ 300.205 Planning and coordination
structure.
(a) National As descnbed in
§300 110, the NRT is responsible for
national planning and coordination
(b) Regional As described in
§ 300 115, the RRTs are responsible for
regional planning and coordination
(c) Area As required by section 311(j)
of the CWA. under the direction of the
federal OSC for its area, Area
Committees comprising qualified
personnel of federal, state, and local
agencies shall be responsible for.
(1) Preparing an ACP for their areas
(as described in § 300 210(c)),
(2) Working with appropriate federal,
state, and local officials to enhance the
contingency planning of those officials
and to assure pre-planning of joint
response efforts, including appropriate
procedures for mechanical recovery,
dispersal, shoreline cleanup, protection
of sensitive environmental areas, and
protection, rescue, and rehabilitation of
fisheries and wildlife; and
(3) Working with appropriate federal,
state, and local officials to expedite
decisions for the use of dispersants an
other mitigating substances and devices
(d) State As provided by sections 301
and 303 of Title Ill, the SERC of each
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Federal Register I Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations 4744 l
state, appointed by the Governor, is to
designate emergency planning districts,
appoint Local Emergency Planning
Committees (LEPCs), supervise and
coordinate thei.r activities, and review
local emergency response plans. which
are described i n § 300.215. The SERC
also is to establish procedures for
receiving and processing requests from
the public for information generated by
Title Ill reporting requirements and to
designate an official to serve as
coordinator for information.
(e) LocaL As provided by sections 301
and 303 of Title 111, emergency planning
districts are designated by the SERC in
order to facilitate the preparation and
Implementation of emergency plans.
Each LEPC is top a local
emergency response plan for the
emergency planning district and
establish procedures for receiving and
processing requests from the public for
information generated by Title Ill
reporting requirements. The LEPC is to
appoint a chair and establish rutes for
the LEPC. The LEPC is to designate an
official to serve as coordinator for
information and designate in its p lan a
community emergency coordinator.
(1) As required by section 311(9(5) of
the CWA, a tank vessel, as defined
under section 2101 of title 46, U.s.
Code, an offshore facility, and an
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 exclusive economic zone
must prepare end submit a p 1st. 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
subsiance
(g) The relationship of these plans is
described in Figure 4.
B1LUNO COot M e G -ac -P
-------
Figure 4
Relationship of Plans
- I
Federal Agency
Plans
I
Area Contingency
Plans (ACPs)
— Facility Response
Plans (FRPs)
Vessel Response
Plans (VRPs)
Plans of the National Response System (NRS)
— — — — Points of coordination with the WAS
Plans integrated with the ACP
r
C
z
0
8
International
Joint Plans
National Oil and Hazardous
Substances Pollution
Contingency Plan
(NCP)
‘S.
Regional
Contingency
Plans (RCPs)
I
p,1
CD
CD
CD
0
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0)
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CD
CD
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0 -
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0
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(I
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Federal Register / Vol. 59, No. 178 1 Thursday, September 15, 1994 / Rules and Regulations 47443
§ 300.210 Federal condn9ency plans.
There are three levels of contingency
plans under the national response
system: The National Contingency Plan,
RCPs, and ACPs. These plans are
available for inspection at EPA regional
offices or USCG thstnct offices
Addresses and telephone numbers for
these offices may be found in the United
States Government Manual, issued
annually, or in local telephone
directories
(a) The National Contingency Plan.
The purpose and ob ecuves, authority,
and scope of the NCP are descnbed in
§5300.1 through 300.3
(b) Regional Contingency Plans The
RRTs, working with the states, shall
develop federal RCPs for each standard
federal region, Alaska, Oceania in the
Pacific, arid the Caribbean to coordinate
timely, effective response by various
federal agencies and other organizations
to discharges of oil or releases of
hazardous substances, pollutants, or
contaminants. RCPs shall, as
appropriate, include information on all
useftij facilities and resources in the
region, from government, commercial,
academic, and other sources. To the
greatest extent possible, RC?s shall
follow the format of the NC? and be
coordinated with state emergency
response plans, ACPs. which are
described in § 300 210(c), and Title I II
local emergency response plans, which
are described in § 300 215 Such
coordination should be accomplished
by working with the SERCs in the region
covered by the RCP. RcPs shall contain
lines of demarcation between the inland
and coastal zones, as mutually agreed
upon by USCG and EPA
(c) Area Contingency Plans (1) Under
the direction of an OSC and subject to
approval by the lead agency, each Area
Committee, in consultation with the
appropriate RRTs, Coast Guard DRGs,
the NSFCC. SSCs. LEPCs. and SERCs,
shall develop an AC? for its designated
area This plan, when implemented in
conjunction with other provisions of the
NC?, shall be adequate to remove a
worst case discharge under 5300 324,
and to mitigate or prevent a substantial
threat of such a discharge, from a vessel,
offshore facility, or onshore facility
operating in or near the area
(2) The areas of responsibility may
include several Title U I local planning
districts, or parts of such districts In
developing the AC?. the OSC shall
coordinate with affecied SERCS and
LEPCs. The AC? shall provide for a well
coordinated response that is integrated
and compatible, to the greatest extent
possible, with all appropriate response
plans of state, local, and non-federal
entities, and especially with Title Ill
local emergency response plans.
(3) The AC? shall include the
foI l owing:
(i) A description of the area covered
by the plan, including the areas of
special economic or environmental
importance that might be damaged by a
discharge;
(ii) A description in detail of the
responsibilities of an owner or operator
and of federal, state, and local agencies
in removing a discharge, and in
mitigating or preventing a substantial
threat of a discharge;
(iii) A list of equipment (including
firefighting equipment), dispersants, or
other mitigating substances and devices,
and personnel available to an owner or
operator and federal, state, and local
agencies, to ensure an effective and
immediate removal of a discharge. and
to ensure mitigation or prevention of a
substantial threat of a discharge (this
may be provided in an appendix or by
reference to other relevant emergency
plans (e.g., state or LEPC plans), which
may include such equipment lists),
(iv) A description of procedures to be
followed for obtaining an expedited -
decision regarding the use of
dispersants; and
(v) A detailed description of how the
plan is integrated into other ACPs and
tank vessel, offshore facility, and
onshore facility response plans
approved by the President. arid into
operating procedures of the NSFCC.
{4)(i) In order to provide for
coordinated, immediate and effective
protection, rescue, and rehabilitation of,
and minimization of risk of irljw’y to,
fish and wildlife resources and habitat.
Area Committees shall incorporate into
each AC? a detailed annex containing a
Fish and Wildlife and Sensitive
Environments Plan that is consistent
with the RCP and NCP. The annex shall
be prepared in consultation with the
USFWS and NOAA and other interested
natural resource management agencies
and parties It shall address fish and
wildlife resources and their habitat, and
shall include other areas considered
sensitive environments in a separate
section of the annex, based upon Area
Committee recommendations The
annex will provide the necessary
information and procedures to
immediately and effectively respond to
discharges that may adversely affect fish
and wildlife and their habitat and
sensitive environments, including
provisions for a response to a worst case
discharge Such information shall
include the identification of appropriate
agencies and their responsibilities,
procedures to notify these agencies
following a discharge or threat of a
discharge. protocols for obtaining
required fish and wildlife permits and
other necessary permits, arid provisions
to ensure compatibility of annex-related
activities with removal operations
(ii) The annex shall:
(A) Identify and establish priorities
for fish end wildlife resources and their
habitats and other important sensitive
areas requiring protection from any
direct or indirect effects from discharges
that may occur. These effects include,
but are not limited to, any seasonal or
historical use, as well as all critical,
special, significant, or otherwise
designated protected areas
(B) Provide a mechanism to be used
during a spill response for timely
identification of protection priorities of
those fish and wildlife resources and
habitats and sensitive environmental
areas that may be threatened or injured
by a discharge These include as
appropriate, not only marine and
fresbwater species, habitats, and their
food sources, but also terrestrial wildlife
and their habitats that may be affected
directly by onshore oil or indirectly by
oil-related factors, such as loss or
contamination of forage The
mechanism shall also provide for
expeditious evaluation and appropriate
consultations on the effects to fish and
wildlife, their habitat, and other
sensitive environments from the
application of chemical
countermeasures or other
countermeasures not addressed under
paragraph (e)(4)(ni).
(C) Identify potential environmental
effects on fish and wildlife, their
habitat, and other sensitive
environments resulting from removal
actions or countermeasures, including
the option of no removal Based on this
evaluation of potential environmental
effects, the annex should establish
priorities for application of
countermeasure and removal actions to
habitats within the geographic region of
the ACP The annex should establish
methods to minimize the identified
effects on fish and wildlife because of
response activities, including, but not
limited to. Disturbance of sensitive areas
arid habitats, illegal or inadvertent
taking or disturbance of fish and
wildlife or specimens by response
personnel; and fish and wildlife, their
habitat, and environmentally sensitive
areas coming in contact with various
cleaning or bioremediation agents
Furthermore, the annex should identify
the areas where the movement of oiled
debris may pose a risk to resident,
transient, or migratory fish and wildlife,
and other sensitive environments arid
should discuss measures to be
considered for removing such oiled
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47444 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
debris in a timely fashion to reduce
such risk
(1)) Provide for pre-approval of
application of specific countermeasures
or removal actions that, if expeditiously
applied, will minimize adverse spill-
induced impacts to fish and wildlife
resources, their habitat, and other
sensitive environments. Such pre-
approval plans must be consistent with
paragraphs tc)(4llii) (B) and (C) of this
section and subpart J requirements. and
must have the concurrence of the
natural resource trustees.
(E) Provide monitoring plan(s) to
evaluate the effectiveness of different
countermeasures or removal actions in
protecting the environment. Monitoring
should include “set-aside” or “control’
areas, where no mitigative actions are
taken
(F) Identify and plan for the
acquisition and utilization of necessary
response capabilities for protection,
rescue, and rehabilitation of fish and
wildlife resources and habitat. This may
include appropriately permitted pnvate
organizations and individuals with
appropriate expertise and experience.
The suitable organizations should be
identified in cooperation with natural
resource law enforcement agencies.
Such capabilities shall include, but not
be limited to, identification of facilities
and equipment necessary for deterring
sensitive fish and wildlife from entering
oiled areas, and for capturing, holding,
cleaning, and releasing iniured wildhfe
Plans for the provision of such
capabilities shall ensure that there is no
interference with other OSC removal
operations
(C) Identify appropriate federal and
state agency contacts and alternates
responsible for coordination of fish and
tld1ife rescue and rehabilitation arid
protection of sensitive environments,
identify and provide for requu’ed fish
and wildlife handling and rehabilitation
permits necessary under federal and
state laws, and provide guidance on the
implementation of law enforcement
requirements included under current
federal and state laws and
corresponding regulations
Requirements include, but are not
limited to procedures regarding the
capture. transport, rehabilitation, and
release of wildlife exposed to or
threatened by oil, and disposal of
contaminated carcasses of wildlife.
(H) Identify and secure the means for
provithng, if needed, the mininiuni
required OSHA and EPA training for
volunteers, including those who assist
with injured wildlife.
(I) Define the requirements for
evaluating the compatibility between
this annex and non-federal response
plans (including those of vessels,
facilities, and pipelines) on issues
affecting fish and wildlife, their habitat,
and sensitive environments.
§ 300.211 OPA facility and vessel
reeponse plans.
This section describes and cross-
references the regulations that
implement section 311(j) (5) of the C’ VA
A tank vessel, as defined under section
2101 of title 46, U S. Code, an offshore
facility, and an onshore facility that,
because of its location, could reasonably
expect to cause substantial harm to the
environment by discharging into or on
the navigable waters, adjoining
shorelines, or exclusive economic zone
must prepare and submit a plan for
responding, to the maximuni extent
practicable. to a worst case discharge,
and to a substantial threat of such a
discharge, of oil or a hazardous
substance These response plans are
required to be consistent with
applicable Area Contingency Plans.
These regulations are codified as
follows:
(a) For tank vessels, these regulations
are codified in 33 CFR part 155;
(b) For offshore facilities, these
regulations are codified in 30 CFR part
254
(c) For non-transportation related
onshore facilities, these regulations are
codified in 40 CFR 112.20,
(d) For transportation-related onshore
facilities, these regulations are codified
in 33 CFR part 154,
(e) For pipeline facilities, these
regulations are codified in 49 CFR part
194; and
(I) For rolling stock, these regulations
are codified in 49 CFR part 106 et al
§300.212 Area response drills.
The OSC periodically shall conduct
drills of removal capability (including
fish and wildlife response capability),
without prior notice, in areas for which
ACPs are required by § 300 210(c) and
under relevant tank vessel arid facility
response plans
§300.215 TItle Ill local emergency
response plans.
This section describes arid cross-
references the regulations that
implement Title III These regulations
are codified at 40 CFR part 355
(a) Each LEPC is to prepare an
emergency response plan in accordance
with section 303 of Title III and review
the plan once a year, or more frequently
as changed circumstances in the
community or at any facility may
require. Such Title III local emergency
response plans should be closely
coordinated with applicable federal
ACPs and state emergency response
plans.
Ib) [ Reservedj
§300.220 Related Title Ill issues.
Other related Title Ill requirements
are found in 40 CFR part 355.
Subpart D—Operatlonal Response
Phases for Oil Removal
§ 300.300 Phase I—Discovery or
notification.
(a) A discharge of oil may be
discovered through’
(1) A report submitted by the person
in charge of a vessel or facility, in
accordance with statutory requirements
(2) Deliberate search by patrols,
(3) Random or incidental observation
by government agencies or the public, or
(4) Other sources.
(b) Any person in charge of a vessel
or a facility shall, as soon as he or she
has knowledge of any discharge from
such vessel or facility in violation of
section 31 1(b)(3) of the CWA,
immediately notify the NRC If direct
reporting to the NRC is not practicable.
reports may be made to the IJSCG or
EPA predesignated OSC for the
geographic area where the discharge
occurs The EPA predesignated OSC
may also be contacted through the
regional 24-hour emergency response
telephone number All such reports
shall be promptly relayed to the NRC If
it is not possible to notify the NRC or
predesignated OSC immediately, reports
may be made immediately to the nearest
Coast Guard unit In any event such
person in charge of the vessel or facility
shall notify the NRC as soon as possible
(c) Any other person shall, as
appropriate, notify the NRC of a
discharge of oil
(d) Upon receipt of a notification of
discharge, the NRC shall promptly
notify the OSC. The OSC shall ensure
notification of the appropriate state
agency of any state which is. or may
reasonably be expected to be. affected
by the discharge. The OSC shall then
proceed with the following phases as
outlined in the RCP and ACP
§300.305 Phase il—PrelimInary
assessment and Initiation of action
(a) The USC is responsible for
promptly initiating a preliminary
assessment.
(b) The preliminary assessment shall
be conducted using available
information, supplemented where
necessary arid possible by an on-scene
inspection The OSC shall undertake
actions to
(1) Evaluate the magnitude and
severity of the discharge or threat to
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public health or welfare of the United
States or the environment;
(2) Assess the feasibility of removal;
and
(3) To the extent practicable, identify
potentially responsible parties
(c) Where practicable, the framework
for the response management structure
is a system (e.g . a umfled command
system), that brings together the
functions of the federal government, the
state government, and the responsible
party to achieve art effective and
efficient response, where the OSC
maintains authority.
(d) Except in a case when the OSC is
required to direct the response to a
discharge that may pose a substantial
threat to the public health or welfare of
the United States (including but not
limited to fish, shellfish, wildlife, other
natural resources, and the public and
private beaches and shorelines of the
United States), the OSC may allow the
responsible party to voluntanly and
promptly perform removal actions.
provided the OSC determines SUCh
actions will ensure an effective and
immediate removal of the discharge or
mitigation or prevention of a substantial
threat of a discharge lithe responsible
party does conduct the removal, the
OSC shall ensure adequate surveillance
over whatever actions are initiated. If
effective actions are not being taken to
eliminate the threat, or if removal is not
being properly done, the OSC should, to
the extent practicable under the
circumstances, so advise the responsible
party If the responsible party does not
respond properly the OSC shall take
appropriate response actions and should
notify the responsible party of the
potential liability for federal response
costs incurred by the OSC pursuant to
the OPA and CWA Where practicable,
continuing efforts should be made to
encourage response by responsible
parties
(1) in carrying out a response under
this section, the OSC may
(i) Remove or arrange for the removal
of a discharge, and mitigate or prevent
a substantial threat of a discharge, at any
time,
(ii) Direct or monitor all federal, state,
and private actions to remove a
discharge, and
(iii) Remove and, if necessary, destroy
a vessel discharging, or threatening to
discharge, by whatever means are
available
(2) If the discharge results in a
substantial threat to the public health or
welfare of the United States (including,
but not limited to fish, shellfish,
wildlife, other natural resources, and
the public and pri’. ate beaches arid
shorelines of the United States), the
OSC must direct all response efforts, as
provided in § 300 322(b) of this part.
The OSC should declare as
expeditiously as practicable to spill
response participants that the federal
government will direct the response.
The OSC may act without regard to any
other provision of the law governing
contracting procedures or employment
of personnel by the federal government
in removing or arranging for the removal
of such a discharge.
(e) The OSC shall ensure that the
natural resource trustees are promptly
notified in the event of any discharge of
oil, to the maxunum extent practicable
as provided in the Fish and Wildlife and
Sensitive Environments Plan annex to
the ACP for the area in which the
discharge occurs The OSC and the
trustees shall coordinate assessments,
evaluations, investigations, and
planning with respect to appropriate
removal actions The OSC shall consult
with the affected trustees on the
appropnate removal action to be taken.
The trustees will provide timely advice
concerning recommended actions with
regard to trustee resources potentially
affected. The trustees also will assure
that the OSC is informed of their
activities in natural resource damage
assessment that may affect response
operations The trustees shall assure,
through the lead administrative trustee,
that all data from the natural resource
damage assessrrient activities that may
support more effective operational
decisions are provided in a timely
manner to the OSC When
circumstances permit. the USC shall
share the use of non-monetary response
resources (i.e . personnel and
equipment) with the trustees, provided
trustee activities do not interfere with
response actions The lead
administrative trustee facilitates
effective and efficient communication
between the OSC and the other trustees
during response operations and is
responsible for applying to the OSC for
non-monetary federal response
resources on behalf of all trustees The
lead administrative trustee is also
responsible for applying to the NPFC for
funding for initiation of damage
assessment for injunes to natural
resources
§300.310 Phase ill—Containment,
countermeasures, cleanup, and dlsposa .
(a) Defensive actions shall begin as
soon as possible to prevent, minimize,
or mitigate threat(s) to the public health
or welfare of the United States or the
environment Actions may include but
are not limited to Analyzing water
samples to determine the source arid
spread of the oil, controlling the source
of discharge: measunng and sampling:
source and spread control or salvage
operations, placement of physical
barriers to deter the spread of the oil
and to protect natural resources and
sensitive ecosystems: control of the
water discharged from upstream
impoundment: and the use of chemicals
and other materials in accordance with
subpart I of this part to restrain the
spread of the oil and mitigate its effects
The ACP prepared under § 300 2 10(c)
sbould be consulted for procedures to
be followed for obtaining an expedited
decision regarding the use of
dispersants and other products listed on
the NCP Product Schedule
(b)As appropriate, actions shall be
taken to recover the oil or mitigate its
effects Of the numerous chemical or
physical methods that may be used, the
chosen methods shall be the most
consistent with protecting public health
and welfare and the environment
Sinking agents shall not be used
(c) Oil and contaminated materials
recovered in cleanup operations shall be
disposed of in accordance with the RCP,
ACP, and any applicable laws,
regulations, or requirements. RRT and
Area Committee guidelines may identify
the disposal options available during an
oil spill response and may describe
what disposal requirements are
mandatory or may not be waived by the
OSC ACP guidelines should address
the sampling, testing, and classifying of
recovered oil and oiled debris, the
segregation, temporary storage, and
stockpiling of recovered oil and oiled
debris, prior state disposal approvals
and permits, and the routes, methods
(e.g recyclelreuse. on-site burning.
incineration, landfilling, etc ), and sites
for the disposal of collected oil. oiled
debns, and animal carcasses, and
procedures for obtaining waivers,
exemptions, or authorizations
associated with handling or transporting
waste materials The ACPs may identify
a hierarchy of preferences for disposal
alternatives, with recycling
(reprocessing) being the most preferred,
and other alternatives preferred based
on priorities for health or the
environment
§ 300.315 Phase tV—DocumentatIon and
cost recovery.
(a) All OSLTF users need to collect
and maintain documentation to support
all actions taken under the CWA In
general, documentation shall be
sufficient to support full cost recovery
for resources utilized and shall identify
the source and circumstances of the
incident, the responsible party or
parties. and impacts and potential
impacts to public health and welfare
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47446 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
and the environment. Documentation
procedures are contained in 33 CFR part
136.
(b) When appropriate, documentation
shall also be collected for scientific
understanding of the environment and
for research and development of
improved response methods and
technology Funding for these actions is
restricted by section 6002 of the OPA.
(c) OSCs shall submit OSC reports to
the NRT or RRT, only if requested, as
provided by § 300.165.
(d) OSCs shall ensure the necessary
collection and safeguarding of
information. samples. and reports.
Samples and information shall be
gathered expeditiously during the
response to ensure an accurate record of
the impacts incurred Documentation
matenals shall be made available to the
trustees of affected natural resources.
The OSC shall make available to
trustees of the affected natural resources
information and documentation in the
OSC’s possession that can assist the
trustees in the determination of actual
or potential natural resource injuries.
(e) Information and reports obtained
by the EPA or USCG OSC shall be
transmitted to the appropriate offices
responsible for follow-up actions.
§300.317 NatIonal response priorities.
(a) Safety of human life must be given
the top priority during every response
action This includes any search and
rescue efforts in the general proximity of
the discharge and the insurance of
safety of response personnel
(b) Stabilizing the situation to
preclude the event from worsening is
the next pnority. All efforts must be
focused on saving a vessel that has been
involved in a grounding, collision, fire,
or explosion, so that it does not
compound the problem Comparable
measures should be taken to stabilize a
situation involving a facility, pipeline,
or other source of pollution Stabilizing
the situation includes securing the
source of the spill andior removing the
remaining oil from the container (vessel,
tank, or pipeline) to prevent additional
oil spillage, to reduce the need for
follow-up response action, and to
minimize adverse impact to the
environment
(c) The response must use all
necessary containment and removal
tactics in a coordinated manner to
ensure a timely, effective response that
minimizes adverse impact to the
environment
(d) All parts of this national response
strategy should be addressed
concurrently. but safety and
stabilization are the highest priorities.
The OSC should not delay containment
and removal decisions unnecessarily
and should take actions to minimize
adverse Impact to the environment that
begins as soon as a discharge occurs, as
well as actions to minirruze further
adverse environmental impact from
additional discharges
(e) The priorities set forth in this
section are broad in nature, and should
not be interpreted to preclude the
consideration of other priorities that
may arise on a site-specific basis.
§ 300.320 General pattern of response.
(a) When the OSC receives a report of
a discharge, actions normally should be
taken in the following sequence.
(1) Investigate the report to determine
pertinent information such as the threat
posed to public health or welfare of the
United States or the environment, the
type and quantity of polluting material,
and the source of the discharge
(2) Officially classify the size (i.e.,
minor, medium, major) and type (i e.,
substantial threat to the public health or
welfare of the United States, worst case
discharge) of the discharge and
determine the course of action to be
followed to ensure effective and
immediate removal, mitigation. or
prevention of the discharge. Some
discharges that are classified as a
substantial threat to the public health or
welfare of the United States may be
further classified as a spill of national
significance by the Administrator of
EPA or the Commandant of the USCG
The appropriate course of action may be
prescribed in §5300 322. 300.323. and
300.324.
(i) When the reported discharge is an
actual or potential major discharge, the
OSC shall immediately notify the RRT
and the NRC.
(ii) When the investigation shows that
an actual or potential medium discharge
exists, the OSC shall recommend
activation of the RRT, if appropriate
(iii) When the investigation shows
that an actual or potential minor
discharge exists, the OSC shall monitor
the situation to ensure that proper
removal action is being taken.
(3) If the OSC determines that
effective and immediate removal,
mitigation, or prevention of a discharge
can be achieved by private party efforts,
and where the discharge does not pose
a substantial threat to the public health
or welfare of the United States,
determine whether the responsible party
or other person is properly carrying out
removal. Removal is being done
properly when:
(i) The responsible party is applying
the resources called for in its response
plan to effectively and inunediately
remove, minimize, or mitigate threat(s)
to public health and welfare and the
environment; and
(ii) The removal efforts are in
accordance with applicable regulations.
including the NCP. Even if the OSC
supplements responsible party
resources with government resources,
the spill response will not be considered
improper, unless specifically
determined by the OSC
(4) Where appropriate, determine
whether a state or political subdivision
thereof has the capability to carry out
any or all removal actions. If so, the
OSC may arrange funding to support
these actions
(5) Ensure prompt notification of the
trustees of affected natural resources in
accordance with the applicable RCP and
AcP.
(b) Removal shall be considered
complete when so determined by the
OSC in consultation with the Governor
or Governors of the affected states
When the OSC considers removal
complete, OSLTF removal funding shall
end. This determination shall not
preclude additional removal actions
under applicable state law
§ 300.322 Response to substantial threats
to public health or welfare of the United
States.
(a) As part of the investigation
described in § 300 320, the OSC shall
determine whether a discharge results
in a substantial threat to public health
or welfare of the United States
(including, but not limited to, fish.
shellfish, wildlife other natural
resources, and the public and private
beaches and shorelines of the United
States) Factors to be considered by the
OSC in making this determination
include, but are not limited to, the size
of the discharge, the character of the
discharge, and the nature of the threat
to public health or welfare of the United
States Upon obtaining such
information, the OSC shall conduct an
evaluation of the threat posed, based on
the OSC’s experience in assessing other
discharges, and consultation ith senior
lead agency officials and readily
available authorities on issues outside
the OSC’s technical expertise
(b) If the investigation by the OSC
shows that the discharge poses or may
present a substantial threat to public
health or welfare of the United States,
the OSC shall direct all federal, state, or
private actions to remove the discharge
or to mitigate or prevent the threat of
such a discharge, as appropnate In
directing the response in such cases, the
OSC may act without regard to any
other provision of law governing
contracting procedures or employment
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of personnel by the federal government
to’
(I) Remove or arrange for the removal
of the discharge;
(2) Mitigate or prevent the substantial
threat of the discharge; and
(3) Remove and, if necessary, destroy
a vessel discharging, or threatening to
discharge, by whatever means are
available
Cc) In the case of a substantial threat
to public health or welfare of the United
States, the OSC shall:
(1) Assess opportunities for the use of
various special teams arid other
assistance described in § 300 145,
including the use of the services of the
NSFCCI as appropriate.
(2) Request immediate activation of
the RRT; arid
(3) Take whatever additional response
actions are deemed appropriate,
including, but not limited to,
implementation of the AC? as required
by section 311(j)(4) of the CWA or
relevant tank vessel or facility response
plan required by section 311(j)(5) of the
CWA. When requested by the OSC, the
lead agency or RRT shall dispatch
appropriate personnel to the scene of
the discharge to assist the OSC. This
assistance may include technical
support in the agency’s areas of
expertise and disseminating information
tc the public The lead agency shall
ensure that a contracting officer is
available on scene, at the request of the
OSC
§ 300.323 Spills of national significance
(a) A discharge may be classified as a
spill of national sigruficance (SONS) by
the Administrator of EPA for discharges
occurring in the inland zone and the
Commandant of the USCG for
discharges occurring in the coastal zone
(b) For a SONS in the inland zone, the
EPA Administrator may name a senior
Agency official to assist the OSC in
communicating with affected parties
and the public and coordinating federal,
state, local, and international resources
at the national level This strategic
coordination will involve, as
appropriate. the NRT. RRT(s), the
Governor(s) of affected state(s), and the
mayor(s) or other thief executive(s) of
local government(s)
Cc) For a SONS in the coastal zone, the
USCG Commandant may name a
National Incident Commander ( MC )
who will assume the role of the OSC in
communicating with affected parties
and the public, and coordinating
federal, state, local, and international
resources at the national level. This
strategic coordination will involve, as
appropriate, the NRT, RRT(s), the
Governor(s) of affected state(s), and the
mayor(s) or other chief executive(s) of
local government(s).
§ 300.324 Response to worst case
dIscharges.
(a) lf the investigation by the OSC
shows that a discharge is a worst case
discharge as defined in the ACP, or
there is a substantial threat of such a
discharge, the OSC shelF
( 1) Notify the NSFCC.
(2) Require, where applicable,
implementation of the worst case
portion of an approved tank vessel or
facility response plan required by
section 311U)(5) of the CWA;
(3) Implement the worst case portion
of the ACP required by section 3lUj)(4)
of the CWA, and
(4) Take wha lever additional response
actions are deemed appropriate
(b) Under the direction of the OSC,
the NSFCC shall coordinate use of
private and public personnel and
equipment, including strike teams, to
remove a worst case discharge and
mitigate or prevent a substantial threat
of such a discharge.
§ 300.335 Funding.
(a) The OSLTF is available under
certain circumstances to fund removal
of oil performed under section 311 of
the CWA Those circumstances and the
procedures for accessing the OSLTF are
described in 33 CFR part 136 The
responsible party is liable for costs of
federal removal and damages in
accordance with section 311(f) of the
CWA, section 1002 of the OPA. and
other federal laws
(b) Where the OSC requests assistance
from a federal agency, that agency may
be reimbursed in accordance with the
provisions of 33 CFR part 136. Specific
interagency reimbursement agreements
may be used when necessary to ensure
that the federal resources will be
available for a timely response to a
discharge of oil,
(c) Procedures for funding the
initiation of natural resource damage
assessment are covered in 33 CFR part
136
(d) Response actions other than
removal, such as scientific
investigations not in support of removal
actions or law enforcement, shall be
provided by the agency with legaL
responsibility for those specific actions
(e) The funding of a response to a
discharge from a federally owned,
operated. or supervised facility or vessel
is the responsibility of the owning.
operating, or supervising agency if it is
a responsihle party
(I’) The following agencies have funds
available for certain discharge removal
actions.
( 1) DOD has two specific sources of
funds that may be applicable to an oil
discharge under appropriate
circumstances. This does not consider
military resources that might be made
available under specific conditions
(i) Funds required for removal of a
sunken vessel or similar obstruction of
navigation are available to the Corps of
Engineers through civil Works
Appropriations, Operations and
Maintenance, General.
(ii) USN may conduct salvage
operations contingent on defense
operational commitments, when funded
by the requesting agency. Such funding
may be requested on a direct cite basis.
(2) Pursuant to Title I of the OPA, the
state or states affected by a discharge of
oil may act where necessary to remove
such discharge Pursuant to 33 CFR part
136 states may be reimbursed from the
OSLTF for the reasonable costs incurred
in such a removal.
Subpart E—Hazardous Substance
Response
5. Section 300 400 is amended by
revising paragraph (a) to read as follows:
§300.400 General.
(a) This subpart establishes methods
and criteria for determining the
appropriate extent of response
authorized by CERCLA and CWA
section 3 1 1 (c)
( 1) When there is a release of a
hazardous substance into the
environment; or
(21 When there is a release into the
environment of any pollutant or
contaminant that may present an
imminent and substantial danger to the
public health or welfare of the United
States
* * * * *
& Section 300 405 is amended by
revising paragraphs (a) and (I](3) to read
as follows
§ 300.405 O sccvery or notification.
(a) A release may be discovered
through’
Cl) A report submitted in accordance
with section 103(a) of CERCLA. i a,
reportable quantities codified at 40 CFR
part 302.
(2) A report submitted to EPA in
accordance with section 103(c) of
cERCLA;
(3) Investigation by government
authorities conducted in accordance
with section 104(e) of CERCLA or other
statutory authority.
(4) Notification of a release by a
federa] or state permit holder when
required by its permit;
(5) Inventory or survey efforts or
random or incidental observation
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47448 Federal Register / Vol. 59, No. 178 / Thursday, September 15.
1994 I Rules and Regulations
reported by government agencies or the
public;
(6) Submission of a citizen petition to
EPA or the appropriate federal facibty
requesting a preliminary assessment, in
accordance with section 105(d) of
CERCLA;
(7) A report submitted in accordance
with section 311( ’b)(5) of the CWA, and
(8) Other sources.
* * * * .
(f) * * *
(3) If radioactive substances are
present in a release, the EPA
Radiological Response Coordinator
should be notified for evaluation and
assistance either directly or via the NRC,
consistent with § 300 130(e) and
300.145(f).
* * * * .
7. Section 300.4 10 is revised to read
as lollows:
§300.410 Removal site evaluation.
(a) A removal site evaluation includes
a removal preliminary assessment and,
if warranted, a removal site inspection.
(b) A removal site evaluation of a
release identified for possible CERCLA
response pursuant to § 300.415 shall, as
appropriate, be undertaken by the lead
agency as promptly as possible. The
lead agency may perform a removal
preliminary assessment in response to
petitions submitted by a person who is,
or may be. affected by a release of a
hazardous substance. pollutant. or
contaminant pursuant to § 300 420(b)(5).
(c)(1) The lead agency shall, as
appropnate. base the removal
preliminary assessment on readily
available information A removal
preliminary assessment may include.
but is not limited to:
(i) Identification of the source and
nature of the release or threat of release;
(11) Evaluation by ATSDR or by other
sources, for example, state public health
agencies, of the threat to public health;
(iii) Evaluation of the magnitude of
the threat,
(iv) Evaluation of [ actors necessary to
make the determinauon of whether a
removal is necessary, and
(v) Determination of whether a
nonfederal party is undertaking proper
response
(2) A removal preliminary assessment
of releases from hazardous waste
management facilities may include
collection or review of data such as site
management practices. information from
generators. photographs, analysis of
historical photographs, literature
searches, and personal interviews
conducted, as appropriate.
(d) A removal site inspection may be
performed if more information is
needed. Such inspection may include a
perimeter (i.e., off-site) or on-site
inspection, taking into consideration
whether such inspection can be
performed safely.
(e)(1) As part of the evaluation under
this section, the OSC shall determine
whether a release governed by CWA
section 311(c)(1). as amended by OPA
section 4201 (a), has occurred
(2) If such a release of a CWA
hazardous substance has occurred, the
OSC shall determine whether the
release results in a substantial threat to
the public health or welfare of the
United States. Factors to be considered
by the OSC in making this
determination include, but are not
limited to. the size of the release, the
character of the release, and the nature
of the threat to public health or welfare
of the United States Upon obtaining
relevant elements of such information.
the OSC shall conduct an evaluation of
the threat posed, based on the USC’s
experience in assessing other releases,
and consultation with senior lead
agency officials and readily available
authorities on issues outside the USC’s
technical expertise.
(fl A removal site evaluation shall be
terminated when the OSC or lead
agency determines’
(1) There is no release.
(2) The source is neither a vessel nor
a facility as defined in § 300 5 of the
NCP.
(3) The release involves neither a
hazardous substance, nor a pollutant or
contaminant that may present an
imminent and substantial danger to
public health or welfare of the United
States,
(4) The release consists of a situation
specified in §300 4001b) (1) through (3)
sub)ect to limitations on response,
(5) The amount, quantity, or
concentration released does not warrant
federal response,
(6) A party responsible for the release,
or any other person, is providing
appropriate response. and on-scene
monitoring by the government is not
required, or
(7) The removal site evaluation is
completed
(g) The results of the removal site
evaluation shall be documented
(h) The OSC or lead agency shall
ensure that natural resource trustees are
promptly notified in order that they may
untiate appropriate actions, including
those identified in Subpart C of this
part. The USC or lead agency shall
coordinate all response activities with
such affected trustees.
(i) If the removal site evaluation
indicates that removal action under
§ 300,415 is not required, but that
remedial action under § 300.430 may
necessary, the lead agency shall, as
appropriate, initiate a remedial site
evaluation pursuant to § 300.420.
8. Section 300.415 is revised to read
as follows
§300.415 Removalactlon.
(a)(1) in determining the appropriate
extent of action to be taken in response
to a given release, the lead agency shall
first review the removal site evaluation.
any information produced through a
remedial site evaluation, if any has been
done previously, and the current site
conditions, to determine if removal
action is appropnate.
(2) Where the responsible parties are
known, an effort initially shall be made,
to the extent practicable, to determine
whether they can and will perform the
necessary removal action promptly and
properly.
(3) This section does not apply to
removal actions taken pursuant to
section 104(b) of CERCLA. The criteria
for such actions are set forth in section
104(b) of CERCLA
(b)(i) At any release, regardless of
whether the site is included on the
National Prionties List (NPL). where the
lead agency makes the determination.
based on the factors in paragraph (b)(2
of this section, that there is a threat to
public health or welfare of the United
States or the environment, the lead
agency may take any appropriate
removal action to abate, prevent,
minimize, stabilize, mitigate. or
eliminate the release or the threat of
release
(2) The following factors shall be
considered in determining the
appropriateness of a removal action
pursuant to this section:
(i) Actual or potential exposure to
nearby human populations. animals, or
the food chain from hazardous
substances or pollutants or
contaminants,
(ii) Actual or potential contamination
of drinking water supplies or sensitive
ecosystems,
(iii) Hazardous substances or
po]lutants or contaminants in drums,
barrels, tanks, or other bulk storage
containers, that may pose a threat of
release.
(iv) High levels of hazardous
substances or pollutants or
contaminants in soils largely at or near
the surface, that may migrate.
(v) Weather conditions that may cause
hazardous substances or pollutants or
contaminants to migrate or be released
(vi) Threat of fire or explosion.
(vii) The availability of other
appropnate federal or state response
mechanisms to respond to the release,
and
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Federal Register I Vol. 59, No. 178 I Thursday, September 15, 1994 / Rules and Regulations 47449
(viii) Other situations or factors that
may pose threats to public health or
welfare of the United States or the
environment.
(3) If the lead agency determines that
a removal action is appropnate. actions
shall, as appropriate, begin as soon as
possible to abate, prevent, minimize,
stabilize, mitigate, or eliminate the
threat to public health or welfare of the
United States or the environment. The
lead agency shall, at the earliest possible
time, also make any necessary
determinations pursuant to paragraph
(bX4) of this section.
(4) Whenever a planning period of at
least six months ensts before on-site
activities must be initiated, and the lead
agency determines, based on a site
evaluation, that a removal action is
appropriate
Ci) The lead agency shall conduct an
engineering evaluation/cost analysis
(EE/CA) or its equivalent. The EE/CA is
an analysis of removal alternatives for a
site.
(ii) If environroenta] samples are to be
collected, the lead agency shaU develop
sampling and analysis plans that shall
provide a process for obtaining data of
sufficient quality and quantity to satisfy
data needs. Sampling and analysis plans
shall be reviewed and approved by EPA.
The sampling and analysis plans shall
consist of two parts:
(A) The field sampling plan, which
describes the number, type, and location
of samples and the type of analyses; amid
(B) The quality assurance project
plan, which describes policy.
organization, and functional activities
and the data quality objectives and
measures necessary to achieve adequate
data for use u- i planning and
documenting the removal action
(5) CERCLA fund-financed removal
actions, other than those authorized
under section 104 (b) of CERCLA, shall
be terminated after $2 million has been
obligated for the action or 12 months
have elapsed from the date that removal
activities begin on-site, unless the lead
agency determines that
Ii) There is an immediate risk to
public health or welfare of the United
Slates or the environment; continued
response actions are immediately
required to prevent, limit, or mitigate an
emergency: and such assistance will not
otherwise be provided on a timely basis,
or
(ii) Continued response action is
otherwise appropriate and consistent
with the remedial action to be taken.
(cICi) In carrying out a response to a
release of a CWA hazardous substance,
as described in CWA section 311(c)(l),
as amended by OPA section 4201(a), the
USC may.
(1) Remove or arrange for the removal
of a release, and mitigate or prevent a
substantial threat of a release, at any
time;
(ii) Direct or monitor all federal, state,
and private actions to remove a release,
and
(iii) Remove and, if necessary, destroy
a vessel releasing or threatening to
release CWA hazardous substances, by
whatever means are available
(2) If the invesugauon by the OSC
under § 300.4 10 shows that the release
of a CWA hazardous substance results
in a substantial threat to public health
or welfare of the United States, the OSC
shall direct all federal, state, or private
actions to remove the release or to
mitigate or prevent the threat of such a
release, as appropriate. In directing the
response, the USC may act without
regard to any other provision of Jaw
governing contracting procedures or
employment of personnel by the federal
government to:
Ii) Remove or arrange for the removal
of the release;
( ii) Mitigate or prevent the substantial
threat of the release; and
(iii) Remove and, if necessary, destroy
a vessel releasing, or threatening to
release, by whatever means are
available
(3) In the case of a release of a CWA
hazardous substance posing a
substantial threat to public health or
welfare of the United States, the USC
shall.
Ci) Assess opportunities for the use of
various special teams and other
assistance described in § 300 145, as
appropriate;
(ii) Request immediate activation of
the RRT; and
(iii) Take whatever additional
response actions are deemed
appropriate When requested by the
OSC, the lead agency or RRT shall
dispatch appropriate personnel to the
scene of the release to assist the USC
This assistance may include technical
support in the agency’s areas of
expertise and disseminating information
to the public in accordance with
§ 300 155 The lead agency shall ensure
that a contracting officer is available on-
scene, at the request of the USC.
(d) Removal actions shall, to the
extent practicable, contribute to the
efficient performance of any anticipated
long-term remedial action with respect
to the release concerned
Ce) The foUowing removal actions are,
as a general rule, appropriate in the
types of situations shown, however, this
list is not exhaustive and is not
intended to prevent the lead agency
from taki.ng any other actions deemed
necessary under CERCLA, CWA section
311, or other appropriate federal or state
enforcement or response authorities,
and the list does not create a duty on the
lead agency to take action at any
particular time-
(1) Fences, waning signs, or other
security or site control precautions—
where humans or animals have access to
the release;
(2) Drainage controls, for example,
nj -off or run -on diversion—where
needed to reduce migration of
hazardous substances or pollutants or
contaminants off-site or to prevent
precipitation or run-off from other
sources, for example, flooding, from
entering the release area from other
areas:
(3) Stabilization of berins, dikes, or
impoundments or drainage or closing of
lagoons—where needed to maintain the
integrity of the structtu’es
(4) Capping of contaminated soils or
sludges—where needed to reduce
migration of hazardous substances or
pollutants or contaminants into soil,
ground or surface water, or air,
(5) Using chemicals and other
materials to retard the spread of the
release or to mitigate its effects—where
the use of such chemicals will reduce
the spread of the release,
(6) Excavation, consolidation, or
removal of highly contaminated soils
from drainage or other areas—where
such actions will reduce the spread of.
or direct contact with, the
contamination,
(7) Removal of drums, barrels, tanks,
or other bulk containers that contain or
may contain hazardous substances or
pollutants or contaminants—where it
will reduce the likelihood of spillage.
leakage: exposure to humans, animals,
or food chain, or fire or explosion,
(81 Containment, treatment, disposal,
or incineration of hazardous materials—
where needed to reduce the likelihood
of human, animal, or food chain
exposure, or
(9) Provision of alternative water
supply—where necessary immediately
to reduce exposure to contaminated
household water and continuing until
such time as local authorities can satisfy
the need for a permanent remedy
( I) Where necessary to protect public
health or welfare, the lead agency sha l l
request that FEMA conduct a temporary
relocation or that state/local officials
conduct an evacuation.
(g) If the lead agency determines that
the removal action will not fully address
the threat posed by the release and the
release may require remedial action, the
lead agency shall ensure an orderly
transition from removal to remedial
response activities.
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47450 Federal Register / Vol. 59, No. 178 I Thursday, September 15, 1994 / Rules and Regulations
(Ii) CERCLA removal actions
nducted by states under cooperative
agreements. described in subpart F of
this part. shall comply with all
requirements of this section.
(i) Facilities operated by a state or
political subdivision at the time of
disposal require a state cost share of at
least 50 percent of Fund-financed
response costs if a Fund-financed
remedial action is conducted
) Fund-financed removal actions
under CERCLA section 104 and removal
actions pursuant to CERCLA section 106
shall, to the extent practicable
considering the exigencies of the
situation, attain applicable or relevant
and appropriate requirements (ARARs)
under federal environmental or state
environmental or facility siting laws.
Waivers described in
§ 300.430(f)(1)(ii)(C) may be used for
removal actions. Other federal and state
advisories, cntena, or guidance may. as
appropriate, be considered in
formulating the removal action (see
§ 300.400(g)(3)). In determining whether
compliance with ARARs is practicable.
the lead agency may consider
appropnate factors, including
(1) The urgency of the situation, and
(2) The scope of the removal action to
be conducted
(k) Removal actions pursuant to
section 106 or 122 of CERCLA are not
subject to the following requirements of
this sectiOn’
(1) Section 300 415(a)(2) requirement
to locate responsible parties and have
them undertake the response;
(2) Section 300 415(b)(2)(vii)
requirement to consider the availability
of other appropnate federal or state
response and enforcement mechanisms
to respond to the release,
(3) Section 300 415(b)(5) requirement
to terminate response after $2 million
has been obligated or 12 months have
elapsed from the date of the initial
response, and
(4) Section 300,415(g) requirement to
assure an orderly transition from
removal to remedial action
(1) To the extent practicable, provision
for post-removal site control following a
CERCLA Fund-financed removal action
at both NFL and non-t’ ,PL sites is
encouraged to be made prior to the
initiation of the removal action Such
post-removal site control includes
actions necessary to ensure the
effectiveness and integrity of the
removal action after the completion of
the on-site removal action or after the 32
million or 12-month statutory limits are
reached for sites that do not meet the
exemption criteria in paragraph (b)(5) of
this section Post-removal site control
may be conducted by:
(1) The affected state or political
subdivision thereof or local units of
government for any removal,
(2) Potentially responsible parties; or
(3) EPA’s remedial program for some
federal-lead Fund-financed responses at
NFL sites.
(m) OSCs/RPMs conducting removal
actions shall submit OSC reports to the
RRTas required by § 300.165.
(n) Community relations in removal
actions. (1) In the case of all CERCLA
removal actions taken pursuant to
§300 415 or CERCLA enforcement
actions to compel removal response, a
spokesperson shall be designated by the
lead agency. The spokesperson shall
inform the community of actions taken,
respond to inquiries, and provide
information concerning the release All
news releases or statements made by
participating agencies shall be
coordinated with the OSC/RPM The
spokesperson shall notify, at a
minimum, immediately affected
citizens, state and local officials, and.
when appropriate, civil defense or
emergency management agencies.
(2) For CERCLA actions where, based
on the site evaluation, the lead agency
determines that a removal is
appropriate, arid that less than six
months exists before on-site removal
activity must begin, the lead agency
shall.
(i) Pubhsh a notice of availability of
the administrative record file
established pursuant to § 300.820 in a
major local newspaper of general
circulation within 60 days of initiation
of on-site removal activity;
(11) Provide a public comment period.
as appropriate, of not less than 30 days
from the time the administrative record
file is made available for public
inspection, pursuant to § 300 820(b)(2),
and
(iii) Prepare a written response to
significant comments pursuant to
§ 300 820(b)(3).
(3) For CERCLA removal actions
where on-site action is expected to
extend beyond 120 days from the
irnuation of on-site removal activities,
the lead agency shall by the end of the
120-day penod
(1) Conduct interviews with local
officials, community residents, public
interest groups, or other interested or
affected parties. as appropnate. to solicit
their concerns, information needs, and
how or when citizens would like to be
involved in the Superfund process;
(ii) Prepare a formal community
relations plan (CR1 ’) based on the
community interviews and other
relevant information, specifying the
community relations activities that the
lead agency expects to undertake during
the response, and
(iii) Establish at least one local
information repository at or near the
location of the response action. The
information repository should contain
items made available for public
information Further, an administrative
record file established pursuant to
subpart I for all removal actions shall be
available for public inspection in at
least one of the repositories The lead
agency shall inform the public of the
establishment of the information
repository arid provide notice of
availability of the administrative record
file for public review. All items in the
repository shall be available for public
inspection and copying
(4) Where, based on the site
evaluation, the lead agency determines
that a CERCLA removal action is
appropriate and that a planning period
of at least six months exists prior to
initiation of the on-site removal
activities, the lead agency shall at a
minimum:
(i) Comply with the requirements set
forth in paragraphs (n)(3) (i), (ii), and
(iii) of this section. prior to the
completion of the EE/CA, or its
equivalent, except that the information
repository and the administrative record
file will be established no later than
when the EEICA approval memorandum
is signed.
(ii) Publish a notice of availability and
brief description of the EE/CA in a
major local newspaper of general
circulation pursuant to § 300 820,
(iii) Provide a reasonable opportunity,
not less than 30 calendar days, for
submission of written and oral
comments after completion of the EEl
CA pursuant to § 300 820(a) Upon
timely request. the lead agency will
extend the public comment period by a
minimum of 15 days. arid
(iv) Prepare a written response to
significant comments pursuant to
§ 300 820(a)
9. Subpart C is revised to read as
follows’
Subpart G—Trustees for Natural Resources
300 600 Designation of federal trustees
300 605 State trustees
300 610 Indian tribes
300 612 Foreign trustees
300 615 Responsibilities of trustees
Subpart G—Trustees for Natural
Resources
§300.600 DesignatIon of federal trustees
(a) The President is required to
designate in the NCP those federal
officials who are to act on behalf of the
public as trustees for natural resources
Federal officials so designated will act
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Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 I Rules and Regulations 4745
pursuant to section 107(f) of CERCLA,
section 311(fl(5) of the CWA. and
section 1006 of the OPA. Naturai
resources means land, fish, wildlife,
biota, air, water, ground water, dnnking
water supplies, and other such
resources belonging to, managed by,
held in trust by. appertaining to, or
otherwise controlled (hereinafter
referred to as “managed or controlled’)
by the United States (uicluthng the
resources of the exclusive economic
zone).
(b) The following individuals shall be
the designated trustee(s) for general
categones of natural resources,
including their supporting ecosystems.
They are authorized to act pursuant to
section 107(fl of CERCLA. section
311(f)(5)oft .heCWA, or section 1006 of
the OPA when there is injury to.
destruction of, loss of, or threat to
natural resources, including their
supporting ecosystems. as a result of a
release of a hazardous substance or a
discharge of oil. Notwithstanding the
other designations in this section, the
Secretaries of Commerce and the
Intenor shall act as trustees of those
resources subject to their respective
management or control.
(1) Secret ary of Commerce. The
Secretary of Commerce shall act as
trustee for natural resources managed or
controlled by DOC and for natural
resources managed or controlled by
other federal agencies and that are
found in. under, or using waters
navigable by deep draft vessels, tidally
influenced waters, or waters of the
contiguous zone, the exclusive
economic zone, and the outer
continental shelf However, before the
Secretary takes an action with respect to
an affected resource under the
management or control of another
federal agency, he shall, whenever
practicable. seek to obtain the
concurrence of that other federal
agency. Examples of the Secretary’s
trusteeship include the following
natural resources and their supporting
ecosystems. marine fishery resources;
anadromous fish, endangered species
arid manne mammals; and the resources
of National Marine Sanctuaries and
National Estuanne Research Reserves
(z) Secretary of the Interior The
Secretary of the interior shall act as
trustee for natural resources managed or
controlled by the DOl. Examples of the
Secretary’s trusteeship include the
following natural resources and their
supporting ecosystems migratory birds.
anadromous fish, endangered species
and marine mammals, federally owned
minerals, and certain federally managed
water resources The Secretary of the
Intenor shall also be trustee for those
natural resources for which an Indian
tribe would otherwise act as trustee in
those cases where the United States acts
on behalf of the Indian tribe.
(3) Secretary for the land managing
agency. For natural resources located
on, over, or under land administered by
the United States, the trustee shall be
the head of the department in which the
land managing agency is found. The
trustees for the principal federal land
managing agencies are the Secretaries of
DOl, USDA. DOD, and DOE.
(4) Head of authorized agencies. For
natural resources located in the United
States but not otherwise described in
this section, the trustee shall be the
head of the federal agency or agencies
authorized to manage or control those
resources.
4300.605 State trustees.
State trustees shall act on behalf of the
public as trustees for natural resources.
including their supporting ecosystems,
within the boundary of a state or
belonging to, managed by, controlled by,
or appertaining to such state. For the
purposes of subpart C of this part, the
definition of the term “state” does not
include lndian tribes The governor of a
state is encouraged to designate a state
lead trustee to coordinate all state
trustee responsibilities with other
trustee agencies and with response
activities of the RRT and OSC. The
state’s lead trustee would designate a
representative to serve as contact with
the OSC This individual should have
ready access to appropriate state
officials with environmental protection,
emergency response, and natural
resource responsibilities. The EPA
Administrator or USCG Commandant or
their designees may appoint the state
lead trustee as a member of the Area
Committee. Response strategies should
be coordinated between the state and
other trustees and the OSC for specific
natural resource locations in an inland
or coastal zone and should be included
in the Fish and Wildlife and Sensitive
Environments Plan annex of the ACP.
§300.610 IndIan tribes.
The tribal chairmen (or heads of the
governing bodies) of Indian tribes, as
defined in §300.5, ore person
designated by the tribal officials, shall
act on behalf of the Indian tribes as
trustees for the natural resources,
including their supporting ecosystems,
belonging to, managed by, controlled by,
or appertmning to such Indian tribe, or
held in trust for the benefit of such
Indian tribe, or belonging to a member
of such Indian tribe, if such resources
are subject to a trust restriction on
alienation. When the tribal chairman or
head of the tribal governing body
designates another person as trustee, th
tribal chairman or head of the tribal
governing body shall notify the
President of such designation. Such
officials are authorized to act when
there is injury to, destruction of, loss of,
or threat to natural resources, including
their supporting ecosystems as a result
of a release of a hazardous substance
4300.612 ForeIgn trustees.
Pursuant to section 1006 of the OPA,
foreign trustees shall act on behalf of th
head of a foreign government as trustee’
for natural resources belonging to.
managed by. controlled by, or
appertaining to such foreign
government
§ 300.615 ResponsibilIties of trustees,
(a) Where there are multiple trustees,
because of coexisting or contiguous
natural resources or concurrent
jurisdictions, they should coordinate
and cooperate in carrying out these
responsibilities.
(b) Trustees are responsible for
designating to the RRTs and the Area
Committees, for inclusion in the RCP
and the ACP, appropriate contacts to
receive notifications from the OSCs/
RPMs of discharges or releases
(c)(1) Upon notification or discover)
of in jury to, destruction of, loss of, or
threat to natural resources, trustees ma’.
pursuant to section 107( 1) of CERCLA.
or section 311(fl(5) of the CWA, take the
following or other actions as
appropriate.
(i) Conduct a preliminary survey of
the area affected by the discharge or
release to determine if trust resources
under their jurisdiction are, or
potentially may be, affected,
(ii) Cooperate with the USC/RPM in
coordinating assessments.
investigations, and planning,
(iii) Carry out damage assessments, or
(iv) Devise and carry out a plan for
restoration, rehabilitation, replacement.
or acquisition of equivalent natural
resources In assessing damages to
natural resources, the federal, state, and
Indian tribe trustees have the option of
following the procedures for natural
resource damage assessments located at
43 CFR part 11
(21 Upon notification or discovery of
injury to, destruction of, loss of, or loss
of use of, natural resources, or the
potential for such, resulting from a
discharge of oil occurring after August
16, 1990, the trustees, pursuant to
section 1006 of the OPA, are to take the
following actions.
(i) In accordance with OPA section
1006(c), determine the need for
assessment of natural resource damages.
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47452 Federal Register / Vol. 59,
No. 178 / Thursday, September 15, 1994 / Rules and Regulations
collect data necessary for a potential
damage assessment, and, where
appropriate, assess damages to natural
resources under their trusteeship; and
(ii) As appropnate, and subject to the
public participation requirements of
OPA section 1006(c). develop and
implement a plan for the restoration,
rehabilitation, replacement, or
acquisition of the equivalent, of the
natural resources under their
trusteeship;
(3)(i) The trustees, consistent with
procedures specified in the Fish and
Wildlife and Sensitive Environments
Plan Annex to the Area Contingency
Plan, shall provide timely advice on
recommended actions concerning
trustee resources that are potentially
affected by a discharge of oil This may
include providing assistance to the OSC
in identifying/recommending pre-
approved response techniques and in
predesignating shoreline types and areas
in ACPs.
(ii) The trustees shall assure, through
the lead administrative trustee, that the
OSC is informed of their activities
regarding natural resource damage
assessment that may affect response
operations in order to assure
coordination and minimize any
interference with such operations The
trustees shall assure, through the lead
administrative trustee, that all data from
the natural resource damage assessment
activities that may support more
effective operational decisions are
provided in a timely manner to the OSC.
(iii) When circumstances permit, the
OSC shall share the use of federal
response resources (including but not
Limited to aircraft, vessels, and booms to
contain and remove discharged oil) with
the trustees, providing trustee activities
do not interfere with response actions
The lead administrative trustee
facilitates effective and efficient
communication between the OSC and
the other trustees during response
operations and is responsible for
applying to the OSC for non-monetary
federal response resources on behalf of
all trustees The lead administrative
trustee is also responsible for applying
to the NPFC for funding for initiation of
damage assessment for inluries to
natural resources
(d) The authority of federal trustees
includes, but is not limited to the
following actions
(1) Requesting that the Attorney
General seek compensation from the
responsible parties for the damages
assessed and for the costs of an
assessment and of restoration planning,
and
(2) Participating in negotiations
between the United States and
potentially responsible parties to obtain
PRP-financed or PRP..conducted
assessments and restorations for injured
resources or protection for threatened
resources and to agree to covenants not
to sue, where appropriate
(3) Requiring, in consultation with the
lead agency, any person to comply with
the requirements of CERCLA section
104(e) regarding information gathering
and access.
(4) Initiating damage assessments, as
provided in OPA section 6002
(e) Actions which may be taken by
any trustee pursuant to section 107(f) of
CERCLA, section 311(fl(5) of the CWA.
or section 1006 of the OPA include, but
are not limited to, any of the following
(1) Requesting that an authorized
agency issue an administrative order or
pursue injunctive relief against the
parties responsible for the discharge or
release; or
(2) Requesting that the lead agency
remove, or arrange for the removal of, or
provide for remedial action with respect
to, any oil or hazardous substances from
a contaminated medium pursuant to
section 104 of CERCLA or section 311
of CWA
10, Subpart H is revised to read as
follows:
Subpart 4—Participation by Other Persons
300 700 Activities by other persons
Subpart H—Participation by Other
Persons
§ 300.700 Activities by other persons.
(a) General. Except as provided (e g,
in CWA section 3 11(c)), any person may
undertake a response action to reduce or
eliminate a release of a hazardous
substance, pollutant, or contaminant.
(b) Summary of CERCL.A authorities
The mechanisms available to recover
the costs of response actions under
CERCLA are, in summary
(1) Section 107(a), wherein any
person may receive a court award of his
or her response costs, plus interest, from
the party or parties found to be liable,
(2) Section 111(a)(2), wherein a
private party, a PRP pursuant to a
settlement agreement, or certain foreign
entities may file a claim against the
Fund for reimbursement of response
costs,
(3) Section 106(b), wherein any
person who has complied with a section
106(a) order may petition the Fund for
reimbursement of reasonable costs, plus
interest, and
(4) Section 123, wherein a general
purpose unit of local government may
apply to the Fund under 40 CFR part
310 for reimbursement of the costs of
temporary emergency measures that are
necessary to prevent or mitigate injury
to human health or the environment
associated with a release
(c) Section 107(a) cost recovery
actions. (1) Responsible parties shall be
liable for all response costs incurred by
the United States government or a state
or an Indian tribe not inconsistent with
the NCP
(2) Responsible parties shall be liable
for necessary costs of response actions
to releases of hazardous substances
incurred by any other person consistent
with the NCP.
(3) For the purpose of cost recovery
under section 107(a)(4)(B) of CERCLA
(i) A private party response action
will be considered “consistent with the
NC?’ if the action, when evaluated as
a whole, is in substantial compliance
with the applicable requirements in
paragraphs (5) and (6) of this section,
and results in a CERCLA-quality
cleanup; and
(ii) Any response action carried out in
compliance with the terms of an order
issued by EPA pursuant to section 106
of CERCLA, or a consent decree entered
into pursuant to section 122 of CERCLA,
will be considered “consistent with the
NCP.”
(4) Actions under § 300.700(c)(1) will
not be considered “inconsistent with
the NCP,” and actions under
§ 300 700(c)(2) will not be considered
not “consistent with the NCP,” based on
immaterial or insubstantial deviations
from the provisions of 40 CFR part 300
(5) The following provisions of this
Part are potentially applicable to private
party response actions
(i) Section 300 150 (on worker health
and safety);
(ii) Section 300 160 (on
documentation and cost recoven’),
(iii) Section 300 400(c)(1), (4). (5), and
(7) (on determining the need for a Fund-
financed action), (e) (on permit
requirements) except that the permit
waiver does not apply to private party
response actions, and (gi (on
identification of ARARs) except that
applicable requirements of federal or
state law may not be waived by a private
party,
(iv) Section 300 405(b), (c), and (d)
(on reports of releases to the NRC),
(v) Section 300 410 (on removal site
evaluation) except paragraphs (fl(5) and
(6),
(vi) Section 300.415 (on removal
actions) except paragraphs (a)(2),
(b)(2)(vii), (b)(5), and (g), and including
§ 300.4 15(j) with regard to meeting
ARARs where practicable except that
private party removal actions must
always comply with the requirements of
applicable law;
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Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations 47453
(vii) Section 330.420 (on remedial site
evaluation);
(viii) Section 300.430 (on Rl/FS and
selection of remedy) except paragraph
(1l(1)(ii)(CI(6) and that applicable
requirements of federal or state law may
not be waived by a private party; and
(ix) Section 300.435 (on RDIRA and
operation and maintenance).
(6) Private parties undertaking
response actions should provide an
opportunity for public comment
concerning the selection of the response
action based on the provisions set out
below, or based on substantially
equivalent state and local requirements.
The following provisions of this part
regarding public participation are
potentially applicable to private party
response actions, with the exception of
administrative record and infonnation
repository requirements slated therein:
(i) Section 300 155 (on public
information and community relations);
(ii) Section 300.4 15(n) (on community
relations during removal actions);
(iii) Section 3 00.430(c) (on
community relations during RIFE’S)
except paragraph (c)(5);
(iv) Section 300.430(fl(2), (3), and (5)
(on community relations dunng
selection of remedy); and
(v) Section 300 435(c) (on community
relations during RD/RA and operation
and maintenance)
(7) When selecting the appropriate
remedial action, the methods of
remedying releases listed in Appendix
D of this part may also be appropnate
to a private party response action
(8) Except for actions taken pursuant
to CERCLA sections 104 or 108 or
response actions for which
reimbursement from the Fund will be
sought, any action to be taken by the
lead agency listed in paragraphs (cR5)
through (cH7) may be taken by the
person carrying out the response action.
(dl Section 12 1(a)(2) claims (1)
Persons, other than those listed in
paragraphs (d)(1) (t) through (iii) of this
section. may be able to receive
reimbursement of response costs by
meuns of a claim against the Fund The
categories of persons excluded from
pursuing this claims authority are
(i) Federal government,
(ii) State governments, and their
political subdivisions, unless they are
potentially responsible parties covered
by an order or consent decree pursuant
to section 122 of CERCLA, and
(iii) Persons operating under a
procurement contract or an assistance
agreement with the United States with
respect to matters covered by that
contract or assistance agreement, unless
specifically provided therein.
(2) In order to be reimbursed by the
Fund, an eligible person must notify the
Administrator of EPA or designee prior
to taking a response action and receive
prior approval, i.e., “preauthorization,”
for such action.
(31 Preauthonzation is EPA’s prior
approval to submit a claim against the
Fund for necessary response costs
incurred as a result of carrying out the
NC?. All applications for
preauthorization will be reviewed to
determine whether the request should
receive priority for funding EPA, in its
discretion, may grant preauthorization
of a claim. Preauthonzatson will be
considered only for:
(i) Removal actions pursuant to
§300.415;
(ii) CERCLA section 104(b) activities,
and
(iii) Remedial actions at National
Priorities List sites pursuant to
§ 300.435.
(4) To receive EPA’s prior approval,
the eligible person must:
(i) Demonstrate technical and other
capabilities to respond safely and
effectively to releases of hazardous
substances, pollutants, or contaminants;
and
(ii) Establish that the action will be
consistent with the NCP in accordance
with the elements set forth in
paragraphs (c) (5) through (8) of this
section.
(5) EPA will grant preauthorization to
a claim by a party it determines to he
potentially liable under section 107 of
CERCLA only in accordance with an
order issued pursuant to section 106 of
CERCLA, or a settlement with the
federal government in accordance with
section 122 of CERCLA
(6) Preauthorizat ion does not establish
an enforceable contractual relationship
between EPA and the claimant
(7) Preauthorization represents EPA ’s
coThmitment that if funds are
appropriated for response actions, the
response action is conducted in
accordance with the preauthonzatron
decision document, and costs are
reasonable and necessary,
reimbursement will be made from the
Superfu.nd, up to the triaximurn amount
provided in the preauthorization
decision document.
(8) For a claim to be awarded under
section 111 of CERCLA, EPA must
certify that the costs were necessary and
consistent with the preauthontation
decision document
(el Section 106(b ) petition Sublect to
conditions specified in CERCLA section
106(b), any person who has complied
with an order issued alter October 16.
1986 pursuant to section 106(a) of
CERCLA, may seek reimbursement for
response costs incurred in complying
with that order unless the person has
waived that right.
(1) Section 123 reimbursement to local
governments Any general purpose unit
of local government for a political
subdivision that is affected by a release
may receive reimbursement for the costs
of temporary emergency measures
necessary to prevent or mitigate injury
to human health or the envi.ronment
subtect to the oonditions set forth in 40
CFR part 310. Such reimbursement may
not exceed $25,000 for a single
response.
(g) PeJeose From Liability
Implementation of response measures
by potentially responsible parties or by
any other person does not release those
parties from liability under section
107(a) of cERCLA, except as provided
ma settlement under section 122 of
CERCLA or a federal court judgment
(h) Oil Pollution Act Claims. Claims
are authorized to he presented to the
OSLTF under section 1013 of the OPA,
for certain uncompensated removal
costs or uncompensated damages
resulting from the discharge, or
substantial threat of discharge, of oil
from a vessel or facility into or upon the
navigable waters, adjoining sborelines,
or exclusive economic zone of the
United States. Anyone desiring to file a
claim against the OSLTF may obtain
general information on the procedure
for filing a claim from the Director.
National Pollution Funds Center, Suite
2000, 4200 Wilson Boulevard,
Arlington. Virginia 22203—1 804, (703)
235—4756
11 Subpart) is revised to read as
follows
Subpart J—Use or Dispersants and Other
Chemtcats
300 900 General
300 905 NCP Product Schedule
300 910 Authorization oluse
300 915 Data requtrements
300 920 Addition of producti to schedule
Subpart J—Use of Dispersants and
Other Chemicals
§300.900 General
(a) Section 31 1(d)(2) C) of the CWA
requires that EPA prepare a schedule of
dispersants , other chemicals, and other
spill mitigating devices and substances,
if any, that may be used in carrying out
the NCP. This subpart makes provisions
for such a schedule
(b) This subpart applies to the
navigable waters of the United States
and adjoining shorelines, the saters of
the contiguous zone, and the high seas
beyond the contiguous zone in
connection with activities under the
Outer Continental Shelf Lands Act,
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47454 Federal Register I Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
activities under the Deepwatar Port Act
of 1974, or activities that may affect
natural resources belonging to,
appertaining to, or under the exclusive
management authority of the United
States, including resources under the
Magnuson Fishery Conservation and
Management Act of 1976.
(c) This subpart applies to the use of
any chemical agents or other additives
as defined in subpart A of this part that
may be used to remove or control oil
discharges.
j300.9C5 NCP Product Schedule.
(a) Oil Discharges. (1) EPA shall
maintain a schedule of dispersants and
other chemical or bioremethation
products that may be authorized for use
on oil discharges in ecrordance with the
procedures set forth in § 300 910 This
schedule, called the NCP Product
Schedule, may be obtained from the
Emergency Response Division 15202-C),
U S Environmental Protection Agency,
401 M Street, SW., Washington. DC
20460. The telephone number is 1—202—
260—2342.
(2) Products may be added to the NC?
Product Schedule by the process
specified in § 300.920.
(b) Hazardous Substance ,Releases
(Reserved)
§300.910 AuthorizatIon o f use.
(a) RRTs and Area Committees shall
address, as part of thei.r planning
activities, the desutbility of using
appropriate dispersants, surface
washing agents, surface collecting
agents, bioremediation agents, or
miscellaneous oil spill control agents
listed on the NCP Product Schedule.
and the desirability of using appropriate
burning agents RCPs and ACP5 shall, as
appropriate, include applicable
preauthorization plans and address the
specific contexts in which such
products should and should not be
used. In meeting the provisions of this
paragraph. preauthorization plans may
address factors such as the potential
sources and types of oil that might be
spilled, the existence and location of
coy ironrnentally sensitive resources that
might be impacted by spilled oil,
available product and storage locations,
available equipment and adequately
trained operators, and the available
means to monitor product application
and effectiveness. The RRT
representatives from EPA and the states
with jurisdiction over the waters of the
area to which a preauthonzation plan
applies and the DOC and DOl natural
resource trustees shall review and either
approve, disapprove, or approve with
modification the preauthoritation plans
developed by Area Comnhittees, as
appropriate. Approved preauthorization
plans shall be included in the
appropriate RCPs and ACPs. If the RRT
representatives from EPA and the states
with jurisdiction over the waters of the
area to which a preauthorization plan
applies and the DOC and DOl natural
resource trustees approve in advance
the use of certain products under
spec fled circumstances as described in
the preauthorization plan, the OSC may
authorize the use of the products
without obtaining the specific
concurrences described in paragraphs
(b) and (c) of this section.
(b) For spill situations that are not
addressed by the preauthorization plans
developed pursuant to paragraph (a) of
this section, the USC, with the
concurrence of the EPA representative
to the RRT and, as appropriate, the
concurrence of the RRT representatives
from the states with jurisdiction over
the navigable waters threatened by the
release or discharge, and in consultation
with the DOC and DO! natural resource
trustees, when practicable. may
authorize the use of dispersants, surface
washing agents, surface collecting -
agents. bioremediation agents, or
miscellaneous oil spill control agents on
the oil discharge, provided that the
products are listed on the NGP Product
Schedule.
(cI The OSC, with the concurrence of
the EPA representative to the RRT and,
as appropriate. the concurrence of the
RRT representatives from the states with
jurisdiction over the navigable waters
threatened by the release or discharge.
and in consultation with the DOG and
DOl natural resource trustees, when
practicable, may authorize the use of
burning agents on a case-by-case basis
Cd) The OSC may authorize the use of
any dispersant, surface washing agent,
surface collecting agent, other chemical
agent, burning agent. bioremediation
agent, or miscellaneous oil spill control
agent, including products not listed on
the NC? Product Schedule, without
obtaining the concurrence of the EPA
representative to the RR’T arid, as
appropriate, the RRT representatives
from the states with jurisdiction over
the navigable waters threatened by the
release or discharge, when, in the
judgment of the OSC, the use of the
product is necessary to prevent or
substantially reduce a hazard to human
life , Whenever the USC authorizes the
use of a product pursuant to this
paragraph, the USC is to inform the EPA
RRT representative and, as appropriate.
the RRT representatives from the
affected states and, when practicable.
the DOC/DOt natural resour trustees
of the use of a product. including
products not on the Schedule, as w
as possible. Once the threat to hum
life has subsided, the continued us
a product shall be in accordance with
paragraphs (a), (b), and (c) of this
section.
(e) Sinking agents shall not be
authorized for application to oil
discharges.
( I) When developing preauthorization
plans, RRTs may require the
performance of supplementary toxicity
and effectiveness testing of products, in
addition to the test methods specified in
§ 300.9 15 and described in Appendix C
to part 300, due to existing site-specific
or area speciflc concerns.
§300.915 Data requirements.
(a) Dispersants. (i) Name, brand, or
trademark, if any, under which the
dispersant is sold.
(2) Name, address, and telephone
number of the manufacturer, importer.
or vendor
(3) Name, address, and telephone
number of primary distributors or sales
outlets
(4) Special handling and worker
precautions for storage and field
application. Maximum and minimum
storage temperatures to include
optimum ranges as well as temperaturr
that will cause phase separations.
chemical changes, or other alteration.
the effectiveness of the product
(5) Shelf life
(6) Recommended application
procedures, concentrations, and
conditions for use depending upon
water salinity, water temperature, types
and ages of the pollutants, and any other
application restrictions
(7) Effectiveness Use the Swirhng
Flask effectiveness test methods
described in Appendix C to part 300
Manufacturers shall submit test results
and supporting data, along with a
certification signed by responsible
corporate officials of the manufacturer
and laboratory’ stating that the test s s
conducted on a representatite product
sample, the testing i as conducted usuig
generally accepted laboratory practices
and they believe the results to be
accurate A d.ispersant must a tair. an
effectiveness value of 45 percent r
greater to be added to the N(Y Product
Schedule. Manufactur n art
encouraged to provide data o product
performance under crmdiuxn attic
than those captured by ther S ’s
(8) ThsperWifl Toncr7 Fat tnas.
dssperse tU that meet the e5ect tafl
hresbol cecthed In r w’’ -‘
.bove. ta the c,andas”d
methodi devrihed is Ap t L , C
part 3Z$) Manz1 urfl .ca c.tt ’
t nt r its cad stippCr. 4 tsr.& s..t4
with ,crtZcta cçr N
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Federal Register/Vol. 59, No. 178 / Thursday. September 15, 1994 I Rules and Regulations 47455
responsible corporate officials of the
manufacturer and laboratory stating that
the test was conducted on a
representative product sampte. the
testing was conducted using generally
accepted laboratory practices, and they
believe the results to be accurate
(9) The following data requirements
incorporate by reference standards from
the 1991 or 1992 Annual Books of
ASTM Standards American Society for
Testing and Materials, 1916 Race Street,
Philadelphia. Pennsylvania i9103 This
incorporation by reference was
approved by the Director of the Federal
Register in accordance with 5 U S C.
552(a) and I CFR part 51
(i) Flash Point—Select appropriate
method from the following
(Al ASTM—D 56—87, “Standard Test
Method for Flash Point by Tag Closed
Tester;”
(B) ASTM—D 92—90, “Standard Test
Method for Flash and Fire Points by
Cleveland Open Cup.”
(C) ASTM—D 93—90, “Standard Test
Methods for Flash Point by Peusky-
Martens Closed Tester,”
(D) ASTM—D 1310—86, “Standard
Test Method for Flash Point and Fire
Point of Liquids by Tag Open-Cup
Apparatus,” or
(F) ASTM—D 3278—89, “Standard
Test Methods for Flash Point of Liquids
by Setaflash Closed-Cup Apparatus”
(ii) Pour Point—Use ASTM—D 97—87,
“Standard Test Method for Pour Point of
Petroleum Oils”
(iii) Viscosity—Use ASTM—D 44 5—
86, “Standard Test Method for
Kinematic Viscosity of Transparent and
Opaque Liquids (and the Calculation of
Dynamic Viscosity)”
(iv) Specific Gravity—Use ASTM—D
1298—85(90), “Standard Test Method for
Density, Relative Density (Specific
Gravity), or API Gravity of Crude
Petroleum and Liquid Petroleum
Products by Hydrometer Method”
(v) pH—Use ASTM—D 1293—84(90),
‘Standard Test Methods for pH of
Water,”
(10) Dispersing Agent Components
Itemize by chemical name and
percentage by weight each component
of the total formulation The percentages
will include maximum, minimum, and
average weights in order to reflect
quality control variations in
manufacture or formulation In addition
to the chemical information provided in
response to the first two sentences,
identify the major components in at
‘Copies of these standard., may be obtained from
the publisher Copies may be in.speciad ei the 115
Environments! Protection Agency. 401 M Si, SW.
Ftoom LG. Washington. DC or at the Office of the
Federal Revsier, 1 iGo I . Street. NW , Room 640i,
Washington, DC 20408
least the following categories’ surface
active agents. solvents, and additives.
(111 Heavy Metals, Cyanide, and
Chlorinated Hydrocarbons. Using
standard test procedures, state the
concentrations or upper limits of the
following materials.
(i) Arsenic, cadiniwn, chromium,
copper. lead, mercury, nickel, zinc, plus
any other metals that may be reasonably
expected to be in the sample Atomic
absorption methods should be used and
the detailed analytical methods and
sample preparation shall be fully
described
(ii) Cyanide. Standard calorimetric
procedures should he used
(iii) Chlorinated hydrocarbons Gas
chromatography should be used and the
detailed analytical methods and sample
preparation shall be fully described At
a minimum, the following tesi methods
shall he used for chlorinated
hydrocarbon analyses. EPA Method
601—Purgeable halocarbons (Standard
Method 6230 B) and EPA Method 608—
Organochlorine pesticides and PCBs
(Standard Method 6630 C). 2
(12) The technical product data
submission shall include the identity of
the laboratory that performed the
required tests, the qualifications of the
lahoratory staff, including professional
biographical tnforrnation for individuals
responsible for any tests, and laboratory
experience with similar tests
Laboratories performing toxicity tests
for dispersant toxicity must demonstrate
previous toxicity test experience in
order for their results to be accepted ft
is the responsibility of the submitter to
select competent analytical laboratories
hased on the guidelines contained
herein EPA reserves the right to refuse
to accept a submission of technical
product data because of lack of
qualification of the analytical
laboratory, significant variance between
submitted data and any laboratory
confirmation performed by EPA, or
other circumstances that would result in
inadequate or inaccurate information on
the dispersing agent
(b) Surface washing agents (1) Name,
brand, or trademark, if any, under
which the surface washing agent is sold.
(2) Name, address, and telephone
number of the manufacturer, importer,
or vendor.
2 These test methods may be obisined from
Standard Methods for the Examination of Water and
Weatewater, 17th Edition. American Public Health
Association, 1989, or Method soi—Putgeabla
halocarbons. 4OCFR part 136 and Method ao&—
Organochiorine pesticide and Pcns. 40 CFR part
136 Copies may be inspected at the 1 1 $
Environ ments! Protection Agency. 401 M St SW,
Room iLL Washington. DC. or at the office of the
Fadaral R is1et. 11001, Street, NW ,Room 640%.
Waahsngton, DC 20406
(3) Name, address, and telephone
number of primary distributors or sales
outlets,
(4) Special handling and worker
precautions for storage and field
application. Maximum and minimum
storage temperatures. to include
optimum ranges as well as temperatures
that will cause phase separations,
chemical changes, or other alterations to
the effectiveness of the product.
(5) Shelf life.
(6) Recommended application
procedures. concentrations, and
conditions for use depending upon
water salinity, water temperature, types
and ages of the pollutants, and any other
application restrictions
(7) Toxicity. Use standard toxicity test
methods described in Appendix C to
F 300
(8) Follow the data requirement
specifications in paragraph (a)(9) of this
section
(9) Surface Washing Agent
Components Itemize by chemical name
and percentage by weight each
component of the total formulation The
percentages will include maximum,
minimum. and average weights in order
to reflect quality control variations in
manufacture or formulation. In addition
to the chemical information provided in
response to the first two sentences,
identify the major components in at
least the following categories, surface
active agents. solvents, and additives
(10) Heovy Metals, Cyanide, and
Chlorinated Hydrocarbons Follow
specifications in paragraph (a) [ 11) of
this section
(11) Analytical Laboratory
Requirements for Technical Product
Data Follow specifications in paragraph
(a)(12) of this section.
(c i Surface collecting agents (i)
Name, brand, or trademark, if any,
under which the product is sold
(2) Name, address, and telephone
number of the manufacturer, importer,
or vendor
(3) Name, address, and telephone
number of primary distributors or sales
outlets
(4) Special handling and worker
precautions for storage and field
application. Maximum and minimum
storage temperatures. to Include
optimum ranges as we ll as temperatures
that will cause phase separations,
chemical changes. or other alterations to
the effectiveness of the product
(5) Shelf life
(6) Recommended application
procedures, concentrations, and
conditions for use depending upon
water salinity, water temperature, types
and ages of the pollutants, and any other
application restrictions
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47456 Federal Register I Vol. 59,
No. 178 / Thursday, September 15, 1994 / Rules and Regulations
(7) Toxicity Use standard toxicity test
methods described in Appendix C to
part 300.
(8) Follow the data requirement
specifications in paragraph (a)(9) of this
section.
(9) Test to Distinguish Between
Surface Collecting Agents and Other
Chemical Agents.
(1) Method Summary—Five milliliters
of the chemical under test are mixed
with 95 milliliters of distilled water and
allowed to stand undisturbed for one
hour. Then the volume of the upper
phase is determined to the nearest one
milliliter.
(ii) Apparatus.
(A) Mixing Cylinder: 100 milliliter
subdivisions and fitted with a glass
stopper.
(B) Pipettes. Volumetric pipette, 5.0
milliliter.
(C) Timers.
(iii) Procedure—Add 95 milliliters of
distilled water at 22° C, plus or minus
3° C. to a 100 milliliter mixing cylinder.
To the surface of the water in the mixing
cylinder, add 5.0 milliliters of the
chemical under test. Insert the stopper
and invert the cylinder five times in ten
seconds. Set upright for one hour at 22°
C, plus or minus 3° C, and then measure
the chemical layer at the surface of the
water If the major portion of the
chemical added (75 percent) is at the
water surface as a separate and easily
distinguished layer, the product is a
surface collecting agent.
(10) Surface Collecting Agent
Components. Itemize by chemical name
and percentage by weight each
component of the total formulation. The
percentages should include maximum.
minimum, and average weights in order
to reflect quality control variations in
manufacture or formulation. In addition
to the chemical information provided in
response to the first two sentences,
identify the major components in at
least the following categories surface
action agents, solvents, and additives
(11) Heavy Metals, Cyanide, and
Chionnated Hydrocarbons Follow
specifications in paragraph (a)(11) of
this section
(12) Analytical Laboratory
Requirements for Technical Product
Data Follow specifications in paragraph
(a)(12) of this section.
(d) Bioremediation Agents. (1) Name,
brand, or trademark, if any, under
which the agent is sold.
(2) Name, address, and telephone
number of the manufacturer, importer.
or vendor.
(3) Name, address, and telephone
number of primary distributors or sales
outlets
(4) Special handling and worker
precautions for storage and field
application. Maximum and minimum
storage temperatures.
(5) Shelf life.
(6) Recommended application
procedures, concentrations, and
conditions for use depending upon
water salinity, water temperature, types
and ages of the pollutants, and any other
application restrictions
(7) Bioremediation Agent
Effectiveness. Use bioremediation agent
effectiveness test methods described in
Appendix C to part 300.
(8) Bioremediation Agent Toxicity
[ Reserved].
(9) Biolo ical additives.
(i) For microbiological cultures,
furnish the following information
(A) Listing of each component of the
total formulation, other than
microorganisms, by chemical name and
percentage by weight.
(B) Listing of all microorganisms by
species.
(C) Percentage of each species in the
composition of the additive.
(D) Optimum pH. temperature. and
salinity ranges for use of the additive,
and maximum and minimum pH,
temperature, and salinity levels above or
below which the effectiveness of the
additive is reduced to half its opt.unum
capacity.
(E) Special nutrient requirements. if
any.
(F) Separate listing of the following,
and test methods for such
determinations Salmonella, fecal
coliform, Shigella, Staphylococcus
Coagulase positive, and Beta Hemolytic
Streptococci.
(ii) For enzyme additives, furnish the
following informauon
(A) Listing of each component of the
total formulation, other than enzymes,
by chemical name and percentage by
weight
(B) Enzyme name(s)
(C) International Union of
Biochemistry (I U B ) number(s)
(U) Source of the enzyme
(E) Units
(F) Specific Activity.
(C) Optimum pH. temperature. and
salinity ranges for use of the additive,
and maximum and minimum pH.
temperature, and salinity levels above or
below which the effectiveness of the
additive is reduced to half its optimum
capacity
(H) Enzyme shelf life.
(I) Enzyme optimum storage
conditions.
(10) For nutnent additives, furnish
the following information
(i) Listing of each component of the
total formulation by chemical name and
percentage by weight.
(ii) Nutrient additive optimum storage’
conditions.
(11) Analytical Laboratory
Requirements for Technical Product
Data. Follow specifications in paragraph
(a)(12) of this section.
(e) Burning Agents. EPA does not
require technical product data
submissions for burning agents and does
not include burning agents on the NCP
Product Schedule
(f) Miscellaneous Oil spill Control
Agents (1) Name, brand, or trademark,
if any, under which the miscellaneous
oil spill control agent is sold
(2) Name, address, and telephone
number of the manufacturer, importer,
or vendor.
(3) Name, address, and telephone
number of pnmary distributors or sales
outlets
(4) Brief description of recommended
uses of the product and how the product
works
(5) Special handling and worker
precautions for storage and field
application. Maximum and minimum
storage temperatures. to include
optimum ranges as well as temperatures
that will cause phase separations.
chemical changes, or other alternatives
to the effectiveness of the product
(6) Shelf life
(7) Recommended application
procedures, concentrations, and
conditions for use depending upon
water salinity, water temperature. types
and ages of the pollutants, and any other
application restrictions.
(8) Toxicity Use standard toxicity test
methods described in Appendix C to
part 300
(9) Follow the data requirement
specifications in paragraph (a)(9) of this
section.
(10) Miscellaneous Oil Spill Control
Agent Components Itemize by chemical
name and percentage by weight each
component of the total formulation The
percentages should include maximum,
minimum, and average weights in order
to reflect quality control variations in
manufacture or formulation. In addition
to the chemical information provided in
response to the first two sentences,
identify the major components in at
least the following categories surface
active agents, solvents, and additives
(ii) Heavy Metals, Cyanide, and
Chlorinated Hydrocarbons Follow
specifications in paragraph (a)(11) of
this section.
(12) For any miscellaneous oil spill
control agent that contains
microbiological cultures, enzyme
additives, or nutrient additives, furni
the information specified in paragraphs
(d)(9) and (d)(iO) of this section, as
appropriate.
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Federal Register I Vol. 59. No. 178 / Thursday, September 15, 1994 I Rules and Regulations 47457
(13) Analytical Laboratory
Requirements for Technical Product
Data. Follow specifications in paragraph
(a)(12) of this section.
(g) Sorbents (1) Sorbent material m y
consist of, but is not limited to, the
following materials
(ii Organic products—
(A) Peat moss or straw;
(B) Cellulose fibers or cork,
(C) Corn cobs,
(D) Chicken, duck, or other bird
feathers.
(ii) Mineral compounds.—
(A) Volcanic ash or perlite;
(B) Vermiculite or zeohte
(ni) Synthetic products —
(A) Polypropylene.
(B) Polyethylene;
(C) Polyurethane;
(D) Polyester.
(2) EPA does not require technical
product data submissions for sorbents
and does not include sorbents on the
NCP Product Schedule.
(3) Manufacturers that produce
sorbent materials that consist of
materials other than those listed in
paragraph (g)(l) of this section shall
submit to EPA the technical product
data specified for miscellaneous oil spill
control agents in paragraph (0 of this
section and EPA will consider listing
those products on the NCP Product
Schedule under the miscellaneous oil
spill control agent category. EPA will
inform the submitter in writing, within
60 days of the receipt of technical
product data, of its decision on adding
the product to the Schedule
(4) Certification OSCs may request a
written certification from manufacturers
that produce sorbent materials that
consist solely of the materials listed in
paragraph (g)(1) of this section prior to
making a decjsion on the use of a
particular sorbent material. The
certification at a mimrriurn shall state
that the sorbent consists solely of the
materials listed in § 300.915(g)(1) of the
NCP. The following statement, when
completed. dated, and signed by a
sorbent manufacturer, is sufficient to
meet the written certification
requirement
ISORBENT NAME) is a sorbent material
and consists solely of the materials listed
in 3OO 9i5 [ g)(1) of the NCP
(h) Mixed products Manufacturers of
products that consist of materials that
meet the definitions of two or more of
the product categories contained on the
NCP Product Schedule shall submit to
EPA the technical product data
specified in this section for each of
those product categones. After review of
the submitted technical product data.
and the performance of required
dispersant effectiveness and toxicity
tests, if appropriate, EPA will make a
determination on whether and under
which category the mixed product
should be listed on the Schedule.
§ 300.920 Addition of products to
Schedule.
(a) Dispersants. (1) To add a
dispersant to the NCP Product
Schedule, submit the technical product
data specified in § 300.915(a) to the
Emergency Response Division (5202—C),
U.S. Environmental Protection Agency.
401 M Street, SW. Washington, DC
20460. A dispersant must attain an
effectiveness value of 45 percent or
greater in order to be added to the
Schedule.
(2) EPA reserves the nght to request
further documentation of the
manufacturers’ test results EPA also
reserves the right to venfy test results
and consider the results of EPA ’s
verification testing in determining
whether the dispersant meets listing
cntena EPA will, within 60 days of
receiving a complete application as
specified in §300.915(a) of this part.
notify the manufacturer of its decision
to list the product on the Schedule, or
request additional information andior a
sample of the product in order to review
and/or conduct validation sampling If
EPA requests additional information
and/or a product sample, within 60 days
of receiving such additional information
or sample, EPA will then notify the
manufacturer in writing of its decision
to list or not list the product
(3) Request for review of decision (zJ
A manufacturer whose product was
determined to be ineligible for listing on
the NCP Product Schedule may request
EPA’s Administrator to review the
determination The request must be
made in writing within 30 days of
receiving notification of EPA’s decision
to not list the dispersant on the
Schedule The request shall contain a
clear and concise statement with
supporting facts and technical analysis
demonstrating that EPA’s decision was
incorrect
(ii) The Administrator or his designee
may request additional information
from the manufacturer, or from any
other person, and may provide for a
conference between EPA and the
manufacturer, if appropriate The
Administrator or his designee shall
render a decision within 60 days of
receiving the request, or within 50 days
of receiving requested additional
information, if appropriate, and shall
notify the manufacturer of his decision
in writing.
(b) Surface washing agents, surface
collecting agents, bioremediation
agents, and miscellaneous oil spill
control agents. (1) To add a surface
washing agent, surface collecting agent,
bioremediation agent, or miscellaneous
oil spill control agent to the NCP
Product Schedule, the technical product
data specified in § 300 915 must be
submitted to the Emergency Response
Division (5202—C), U S Environmental
Protection Agency. 401 M Street, SW.
Washington. DC 20460 If EPA
determines that the required data were
submitted. EPA will add the product to
the Schedule.
(2) EPA will inform the submitter in
writing, within 60 days of the receipt of
technical product data, of its decision
on adding the product to the Schedule
(c) The submitter may assert that
certain information in the technical
product data submissions, including
technical product data submissions for
sorbents pursuant to §300.915(g)(3), is
confidential business information EPA
will handle such claims pursuant to the
provisions in 40 CFR part 2, subpart B
Such information must be submitted
separately from non-confidential
information, clearly identified, and
clearly marked “Confidential Business
information.” If the submitter fails to
make such a claim at the time of
submittal, EPA may make the
information available to the public
without further notice
(d) The submitter must notify EPA of
any changes in the composition,
formulation, or application of the
dispersant. surface washing agent.
surface collecting agent, bioreniediation
agent, or miscellaneous oil spill control
agent On the basis of this data, EPA
may require retesting of the product if
the change is likely to affect the
effectiveness or toxicity of the product
(el The listing of a product on the
NCP Product Schedule does not
constitute approval of the product To
avoid possible misinterpretation or
misrepresentation, any label.
advertisement, or technical literature
that refers to the placement of the
product on the NCP Product Schedule
must either reproduce in its entirety
EPA’s written statement that it will add
the product to the NCP Product
Schedule under § 300 920(a)(2) or (b)(2).
or include the disclaimer shown below
If the disclaimer is used, it must be
conspicuous and must be fully
reproduced. Failure to comply with
these restrictions or any other improper
attempt to demonstrate the approval of
the product by any NRT or other U.S
Government agency shall constitute
grounds for removing the product from
the NCP Product Schedule
-------
47458 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 I Rules and Regulations
DISCLAIMER
IPRODUCT NAMEI is on the U S
Environmental Protection Agency’s NO
Product Schedule This listing does NOT
mean that EPA approves, recommends,
licenses, certifies, or authorizes the use of
(PRODUCT NAMEJ on an oil discharge.
This listing means only that data have been
submitted to EPA as required by subpart
of the National Contingency Plan,
§300915
12 Appendix C to part 300 is revised
to read as follows:
Appendix C to Part 300—Swirling
Flask Dispersant Effectiveness Test,
Revised Standard Dispersant Toxicity
Test, and Bioremediation Agent
Effectiveness Test
Table of Contents
1 0 Introduction
2 0 Swirling Flask Dispersant Effectiveness
Test
3.0 Revised Standard Dispersant Toxicity
Test
4 0 Bioremediation Agent Effectiveness Test
5 0 Bioremediation Agent Toxicity Test
6.0 Summary Technical Product Test Data
Format
References
List of fliustratsons
Figure Nuni her
1 Swirling Flask Test Apparatus
List of Tables
Table Number
I Major Ion Composition of “Instant
Ocean” Synthetic Sea Salt
2 Test Oil Characteristics
3 Oil Standard Solutions Concentrations in
Final DCM Extractions
4 Synthetic Seawater IToxicity Testi
5 Test Oil Characteristics No 2 Fuel Oil
6 Analytes Listed Under the Corresponding
Internal Standard Used in Calculating
RRFs
7 Primary Ions Monitored for Each Target
Analyte During CC/MS Analysis
8 Analytes and Reference Compounds
9 Operating Conditions and Temperature
Program of GC/MS
10 Two-Way ANOVA Table
11 Product Test Data, Total Aromatics
12 Summary Statistics for Product Test
Data, Total Arornatics
13 Example Two-Way ANOVA Table
14 Pau’wise Protected LSD Mean Separation
0 Introduction
1 1 Scope and Application The methods
described below apply to “dispersants,
surface washing agents. surface collecting
agents, bioremediation agents, and
miscellaneous oil spill control agents”
involving subpart J (Use of Dispersants and
Other Chemicals) in 40 CFR Part 300
(National Oil and Hazardous Substances
Pollution Contingency Plan) They are
revisions and additions to the EPA’s
Standard Dispersant Effectiveness and
Toxicity Tests (1) The new Swirling Flask
Dispersant Effectiveness Test is used only for
testing dispersants The Revised Standard
Dispersarit Toxicity Test is used for testing
dispersants, as well as surface washing
agents, surface collecting agents, and
miscellaneous oil spill control agents The
bioremediation agent effectiveness test is
used for testing biorernediation agents only
1 2 Definitions The definitions of
dispersants, surface washing agents. surface
collecting agents, biorernediation agents, and
miscellaneous oil spill control agents are
provided in 40 CFR 300 5
2 0 Swirling Flask Dispersant Effectiveness
Test
2 1 Summary of Method This protocol
was developed by Environment Canada to
provide a relatively rapid and simple testing
procedure for evaluating dispersant
effectiveness (2) It uses a modified
Erlenmeyer flask to which a side spout has
been added for removing subsurface sampl
of water near the bottom of the flask without
disturbing a surface oil layer Seawater and
a surface layer of oil are added to the flask
Turbulent mixing is provided by placing the
flask on a standard shaker table at 150 rpm
for 20 minutes to induce a swirling motion
to the liquid contents Following shaking, the
flask is immediately removed from the shaker
table and maintained in a stationary position
for 10 minutes to allow the oil that will
reform a slick to return to the water’s surface
A sample of water for chemical analysis is
then removed from the bottom of the flask
through the side spout, extracted with
methylene chloride (dichloromethane-DCM),
and analyzed for oil content by UV-visible
absorption spectrophotometry at wavelengths
of 340, 370, and 400 nm (2)
2 2 Apparatus
2.2,1 Modified Erlenmeyer Flask
Use 125-mI glass Erlenmeyer flasks that
have been modified to include an
attachment of a glass side spout that
extends from the bottom of the flask
upward to the neck region, as shown in
Figure 1.
2 2 2 Shaker Table Use a shaker table
with speed control unit with variable speed
(40—400 rpm) and an orbital diameter of
approximately 0 75 inches (2 cm) to provide
turbulence to solutions in test flasks
2 2 3 Spectrophotometer Use a UV-
visible spectrophotometer capable of
measuring absorbance at 340. 370. and 400
nm A Hitachi Model U—2000 or equivalent
is acceptable for this purpose
2 2 4 Glassware Glassware should
consist of 5-, 10-. 25-. 100-, and 500-mI
graduated cylinders. 125-mi separatory
funnels with Teflon stopcocks, and 10-, 100-
,and 1.000-mI volumetric flasks and
microp i pettes
BILUNC CODE 6560-60—P
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Federal Register I Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations 47459
Figure!
Swirling Flask Test Apparatus
oil slick
seawater plus
dispersed oil —
suspension
spo
BILUNG CODE 6560-60-C
-------
47460 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
2.3 Reagents 2 3 1 Synthetic seawater The
synthetic sea salt ‘Instant Ocean.”
manufactured by Aquarium Systems of
Mentor, OH, can be used for this purpose
The synthetic seawater solution is prepared
by dissolving 34 g of the salt mixture Lit I
liter of distilled water (i e , e salinity of 34
ppl) Table 1 provides a list of the ion
composition of the seasait mixture
TABLE 1 .—MAJOR ION COMPOSITION
OF “INSTANT OCEAN” SYNTHETIC
SEA SALT
Major Ion
OL •
h 1
eig
Ionic Con-
ceritration
at 34 ppt
salinity
(mg /i)
Chloride (Cl ) . ..
Sodium (NA”) ..
Sulfate (S0 4 1
Magnesium (Mg* )
Calcium (Ca””') ..
Potassium (K”) . .
Bicarbonate
(I-1C0 3 -)
Boron (B)
Strontium (Sr) ...
SOLIDS TOTAL ...
Water
TOTAL
47470
26.280
6 602
3.230
1 013
1 015
0491
0015
0001
8611%
13,88
99 99%
18,740
10,454
2,631
1,256
400
401
194
60
75
34,08950
Following the preparation, the saltwater
solution is allowed to equilibrate to the
ambient temperature of the laboratory and
should be in the range of 22±3 “C
2 3 2 Test od Two EPAiAmerican
Petroleum Institute (API) standard reference
oils, Prudhoe Boy and South Louisiana
crude, should be used for this test These oils
can be obtained from the Resource
Technology Corporation. 2931 Soldier
Springs Road, P0 Box 1346, Laramie, WY
82070, (307) 742—5452 These oils have been
thoroughly homogenized. as well as
characterized physically and chemically for
previous EPA and API studies Various
selected parameters are presented in Table 2
TABLE 2.—TEST OIL
CHARACTERISTICS
Prudhoe Bay
crude oil
South Louisi-
aria crude oil
Specific gray-
0.894 kg/i ..
0 840 kg/I
ity’.
API gravity I
Sulfur
26 8 degrees
I OSwt% ....
37.0 degrees
0.23wt%
Sulfur corn-
pounds.
profile
Nitrogen
0.20 wt% ....
0.031 wt%
Vanadium
21 mg/i .. .
095 mg/i
Nickel
Simulated dis-
11mg/i
11mg/i
tillation p’o-
file
Infrared spec.
trum
UV fluores-
, .
cence spec-
trum
Pour Point .
+25 “F
0 “F
Viscosity
at4 O°C -
l4 O9cST ...
3.582cST
at 100 “C ..
4 059 cST .
1 558 cST
Index
210 . ..
( )
‘At 15CC
2 ANot calculable when viscosity al 100 °C
is less than 2.0
2 3 3 Met hylene Chloride
(Dich.loromethone-DCM). pesticide quality
For extraction of all sample water and oil-
standard water samples
2 4 Pretest preparation 2 4 1 Preparation
and analysis of oil standards 2 4 1 1
Standard solutions of oil for calibrating the
UV.visible spectrophotorneter are prepared
with the specific reference oils and
dispersant used for a particular set of
experimental test runs For experiments with
no dispersant. only oil is used to make the
standard solution For experiments with the
oil plus dispersant, the standard is made
with a i to (v v) mixture of the dispersant to
the test oil (i e a dispersant-to-oil ratio of
1 101 This ratio is used in the test tank with
dispersant added The presence of water and
certain dispersants in DCM extracts can affect
absorbance readings in a specti-ophotometer
All standard solutions of oil (and dispersa
if present) should be prepared in a stepwi.
manner that reflects the analytical protocol
used for the experimental water samples
2 4 1.2 To prepare the standards, prepare
a parent oil-DCM standard by mixing 1 part
oil (plus 1/10 part premixed dispersant, if
applicable) to9 parts DCM (‘ e , 110 dilution
of the oil v v) Add a specific volume of the
parent oil-DCM standard to 30 ml of
synthetic seawater in a separatory funnel
Extract the oil-water mixture with 5-mi
volumes of 0CM after 15 seconds of vigorous
shaking followed by 8 2 minute stationary
period to allow for phase separation for each
extraction Repeat the extraction using a total
of three 5-mI portions of 0CM Adjust the
final DCM volume for the combined extracts
to 20 ml with DCM in a 25-mI graduated
cylinder
24 1 3 The quantities of oil used to
achieve the desired concentrations in the
final 20-mi DCM extracts for the standard oil-
solutions are summarized in Table 3 Specific
masses for oil amounts in standards are
determined as volumes of oil multiplied by
the density of the oil
2 4 2 Linear stability calibration of UV-
Visible spectrophotometer
2 4 2.1 Before DCM-extracts of dispersed
oil-water samples can be analyzed for their
oil content, the UV-visible spectrophotometer
must meet an instrument stability calibrati
criterion This criterion is determined wit)
the six oil standards identified in Table 3
Determine the absorbance of standards at
each of the three analytical wavelengths (i e
340, 370, and 400 nra) Determine the
response factors (RFs) for the test oil at each
of the three analytical wavelengths using the
following equation
RF,=C/A (1)
where
RF =Response factor at wavelength x (x=340,
370. or 400 nra)
C=Oil concentration, in rag of oil/mi of DCM
in standard solution
A,=Spectrophotometric absorbance of
wavelength x
TABLE 3—OIL STANDARD SOLUTIONS: CONCENTRATIONS IN FINAL DCM EXTRACTIONS 1
Final oil concentration
(mg/mI of DCM)
Final extract volume
(ml 01 0CM)
Total amount of oil
in standard (rag)
Volume of parent oil-OCM std
(pI) added to saltwater
4.0
20
10
050
010
005
200
200
200
200
200
200
800
400
200
100
20
10
890
440
220
110
22
11
‘Assuming an oil density of 0 9 g/mI and an extraction efficiency of 100% far oil from the 30-mi of seawater
2 4 2 2 Instrument stability for the initial
calibration is acceptable ‘ ‘.ben the RFs for the
five highest standard extracts of oil are <20%
different from the overall mean value for the
five standards if this criterion is satisfied,
analysis of sample extracts can begin RFs for
the lowest concentration (005 rag oil/mI
0CM) are not included in the consideration
because the absorbance is close to the
detection limit of the spectrophotometer
(with associated high variability in the value)
for the 1-cm path-length cell used for
measurements Absorbances ?3 5 are not
included because absorbance saturation
occurs at and above this value
2 4 2 3 If one or more of the standard o
extracts do not meet this linear-stability
Criterion, then the “offending’ standard(s)
can be prepared a second time Ci e.
extraction of the specified amount of oil from
-------
Federal Register I Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and RegWatiorts 47461
30-mi or seawater for the “offending”
standard according to the pretest preparation
procedure) If replacement of the reanalyzed
standard solution(s) in the standard curve
meets the linear-stability aiterioo (i.e no RF
>20% different from the overall mean). then
analysis of sample extracts can begin
2 4 2.4 If the initial-stability criterion is
still not satisfied, analysis of sample extract
cannot begm and the source of the problem
leg . preparation protocol for the oil
standards, spectrophotonieter stability, ate)
must be corrected
2 4 2 5 The initial six-point calibration of
the IJV-visihle spoctrophotosneter at the oil
concentrations ideotified is required at least
once per test day
2 5 Test procedure. 2 5.1 Preparation of
premixed dispersant oil Prepare a premixed
dispersant oil by mixing I part dispersant to
10 parts oil Store this mixture in a glass
container The dispersant effectiveness test
procedures are listed in steps 1—20
I Prepare 4 replicates (same test oil and
dispersant). one control (i a , no dispersant),
and one method blank and run at the same
time on the shaker table
2 Add 120±2 ml of synthetic seawater to
each of the modified 125-mi glass Erlenrneyer
flasks Measure and record the water
temperature
3 Place the flasks securely into the
attached slot on the shaker table
4 Carefully add 100 isl of an osl-dispersant
solution onto the center of the water’s surface
using a positive displacement pipette
5 Agitate the flasks for 20±1 minutes at
150±10rpm on the shaker table
6 After the 20±1 minutes shaking. remove
the flasks from the shaker table and allow
them to remain stationary for 10±1 minutes
for cii droplet “settling”
7 At the conclusion of the 10-minute
settling period, carefully decant a 30-mi
sample through the side spout of the test
flasks into a 50-mI graduated cylinder
Note Discard the first 1—2 ml of sample
water to remove nonhomogeneous water-oil
initially contained in the spout
8 Transfer the samples from the graduated
cylinder into a 125- or 250-mI glass
separstory funnel fitted with a Teflon
stopcock
9 Add 5 ml of pesticide-quality DCM to
the separatory funnel and shake vigorously
for 15 seconds Release the pressure carefully
from the separatnry funnel through the
stopcock into a fume hood
10 Allow the funnel to remain in a
stationary positicn for 2 minutes to allow
phase-separation of the water and DCM
11 Drain the 13CM layer from the
separatory funnel into a glass-stoppered. 25-
ml graduated glass cylinder
12 , Repeat the DCM-extraction process two
additional times
13 Combine the three extracts in the
graduated cylinder and adlust the final
volume to ‘20-mI with additional DCM.
14 Analyze the samples using a UT-
,sectrophotometer at 240, 370, and 400 rim-
wavelengths and determine the quantity of
oil as follows.
Cz=(Ajx(RF,)x(Vocs4x(V,JV,r.,) (2)
where.
C.=Totat mass of dispersed oil in swirling
flask at wavelength x (x=340, 370, or 400
nut)
&=Spectropbotometric absorbance at
wavelength x
RF%=Mean response factor at wavelength x
(determined from equation 1)
Vncsi aFinal volume of 11cM-extract of water
sample (20 ml)
V,_=Total waler volume in swirling flask
vessel (120 ml)
V _’aVolume of water extracted for dispersed
oil content (30 ml)
15 Obtain three concentration values for
oil in each experimental water sample (340,
370. and 400 nut)
16 Determine the mean of three values as
follows
C, (C,i-C , ,e*Cars )f 3 13)
Note Means wilt be used for all
dispersion-performance calculations
Samples where one of the values for C,.o,
C,, ,, or C. 5 is more than 30% different from
C,_,,, will be flagged Whenever oil
measurements are flagged as having a
concentration based on one wavelength as
>30% different from C,,..,,,, raw data will be
evaluated to establish that the measurements
are valid In addition, attempts will be made
to correlate the difference to oil type,
dispersant test, or dispersant used If no
errors or correlations are apparent and >10%
of all oil measurements are flagged. the mean
concentration data will be used in the
calculation for disparsani performance and
the subrect data will be flagged
17 Determine the dispersant performance
(i a, percent of oil that is dispersed. or EFF)
based on the ratio of oil dispersed in the test
system to the total oil added to the system
as follows
EFF (in %)(C,,,a,,ICi’crr)x IOO 14)
where
C,,,.,,=Mean value for total mass of dispersed
oil in the swirling flask determined by
spectrophotometnc analysis
CTorrlotal mass of oil initially added to the
experimental swirling flask
18 Calculate EFF using equation 4 for
coupled experiments with and without
dispersarst (EFFC and EFF 4 , respectivelyl
EFFC is the effectiveness of the control and
represents natural dispersion of the oil in the
test apparatus EFF 5 is the measured
uncorrected value
19 Calculate the final dispersant
performance of a chemical dispersant agent
after correcting for natural dispersion using
equation 5
EFF 0 EPFe —EFFc CS )
where
EFF 0 =% dispersed oil due to dispersant only
EFFd=% dispersed oil with dispersant added
EFF = % dispersed oil with oo dispersant
added
20 Calculate the average dispersani
effectiveness value by summing the corrected
values IEFF 0 ) for each of the four replicates
for each of the two test oils and dividing this
sum by eight
2 6 Performance criterion The dispersant
product tested will remain in consideratioo
for addition to the CP Product Schedule if
the average diapersant effectiveness, as
calculated in section 2.5 above, is at least
45% (ie., 50%t5% )
2 7 Quality Control (QC) procedures for
measurements of o i l concentrations 2 7 1
(JV-visth)e spectrophotometnc
measurements At least 5% of all ISV-visible
pectrophotometric measurements will be
performed in duplicate as a QC check on the
analytical measurement method The
absorbance values for the duplicates should
agree within ±5% of their mean value
2 7 2 Method blanks. Analytical method
blanks involve en analysis of seawater blanks
(i.e., seawater but no oil or dispersant in a
swirliqg flask vessel) through testing end
analytical procedures (3. pp 79—80) Method
blanks are analyzed with a frequency of at
least 1 for every 12 experimental swirling
flask samples Oil concentrations in method
blanks must be c5% of that occurring for
100% dispersion of oil in iestingapparaius
3 0 Revised standard dispersnnt toxicity
test
3 1 Summary of method The standard
toxicity test for dispersants and other
products involves exposing two species
(Menidia beryllina (silversides) and
Mysidopsis bahia (mysid shrimp)) to five
concentrations of the test product and No 2
fuel oil alone and in a 1 10 mixture of
product to oil To aid in comparing results
from essays performed by different workers,
reference toxicity tests are conducted using
dodecyl sodium sulfate (1355) as a reference
loxicant The test length is 96 hours for
Menidia arid 46 hours for Mysidopsis LC , .,s
are calculated based on mortality data at the
end of the exposure period (for method of
calculation, see section 3 6 below)
32 Selection and preparation of test
materia is
3.2 1 Test organisms.
3 2 31 Men jtho beryihno Obtain fish
(silversides) from a single source for each
series of toxicity tests In-house cultures are
recom mended wherever it is cost-effective,
however, organisms are available from
commercial suppliers tnforrnation on the
source of test organisms and any known
unusual condition to which fish were
exposed before use should he included in the
data report Use of animals previously treated
with pesticides or chemotherapeutic agents
should be avoided Organisms should not be
used if they appear to be unhealthy,
discolored, or show signs of stress Use 7-day
old larval fish Fish should be cultured in
accordance with the methods outlined in
Middaugh, et at (5) There should be no need
to acclimate organisms to the 25±1°C
temperature recommended for lbs toxicity
tests if laboratory stock cultures of Menidia
are maintained at the recom mended culture
temperature of 25±1°C If test organisms must
be obtained from a commercial source, it may
become necessary in acclimate test fish to the
test temperature of 25±1°C, a p]-l of 8 0±02.
and 20±2 ppt salinity since changes in
temperature may occur during shipping
Eliminate groups of fish having a mortality of
more than 10% during the first 48 hours, and
more than 5% thereafter During acclimation,
organisms should be maintained on a diet of
fresbly hatched Anemia (bnne shrimp)
-------
47462 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 I Rules and Regulations
nauplii Feed the fish daily to satiation
during the acchmation period, and once
daily dunng the 96-hour test Care should be
taken daily to remove excess food and fecal
material from beakers during the test Use
only those organisms that feed actively and
that appear to be healthy Organisms should
be free of disease, external parasites, and any
signs of physical damage or stress Discard
any fish injured or dropped while handling
3 2 1 2 Mysidopsis bohia Several
methods for culturing Mysidopsis bahia
(mysid shrimp) may be used and are noted
in Appendix A of Methods for Measuring the
Acute Toxicity of Effluents and Receiving
Waters to Freshwater and Marine Organisms
(6) To ensure uniformity of mysids, recently
hatched mysids should be collected daily
from stock cultures and identified by the date
of hatch Mysids used in 48-hour tests should
be from a single days collection, but may
have an age range of 5—7 days old Iii cases
where in-house cultures of mysids are
unavailable, organisms may be purchased
from a commercial source. information on
the source of test organisms should be
submitted in the data report
3 2 2 Preparation of experimental waler
Filtered natural seawater is recommended for
use since it represents a natural source of
saltwater containing an inherent population
of microorganisms Synthetic seawater
Formulated according to the following
method can serve as an acceptable alternative
to filtered, natural seawater for toxicity tests
performed in laboratories in which natural
seawater is unavailable
3 2 3 Synthetic seawater formation To
prepare standard seawater, mix technical-
grade salts with 900 liters of distilled or
demirieralized water in the order and
quantities listed in Table 4 These ingredients
must be added in the order listed and each
ingredient must be dissolved before another
is added Stir constantly after each addition
during preparation until dissolution is
complete Add distilled or demineralized
water to make up to L000 liters The p 1-t
should now be 8 0±0 2 To attain the desired
salinity of 20±1 ppt, dilute again with
distilled or demineralized water at time of
use
3 3 Sampling and storage of test
materials Toxicity tests are performed ith
No 2 fuel oil having the characteristics
defined in Table 5 Store oil used for toxicity
tests in sealed containers to prevent the loss
of volatiles and other changes For ease in
handling and use, it is recommended that
1.000-mi glass containers be used To ensure
comparable results in the bioassay tests, use
oils packaged and sealed at the source
Dispose of unused oil in each open container
on completion of dosing to prevent its use at
a later date when it ma> have lost some of
its volatile components Run all tests in a
bioassay series with oil from the same
container and with organisms from the same
group collected or secured from the same
source
Salt
(g)1
NaF
19
SrCI 2 • 6H 2 0
13.0
H 3 B0 2 .
20.0
KBr .
670
KCI
4660
CaC I 2 .2K 2 O
7330
Na 2 SO 4
2,660.0
MgCI 2 • 6HO .
3,330.0
NaCI
15,6500
Na 2 SiO 3 • 9H 2 0
13 0
EOTA 2
04
NaHCO 3
1330
Amount added to 900 liters of waler, as
descnbed in the text
2 Ethyienediaminetetraacetate tetrasodium
salt.
3 4 General test conditions and
procedures for toxicity tests
3 4 1 Temperature For these toxicity tests,
use test solutions with temperatures of
25±1°C.
3 4 2 Dissolved oxygen and aeration
3 4 2 1 Menidia Because oils contain toxic,
volatile materials, and because the toxicity of
some water ’soluble fractions of oil and
degradation products are changed by
oxidation special care must be used in the
oxygenation of test solutions Aeration
during the test is generally not recommended
but should be used to maintain the required
dissolved oxygen (DO) in cases where low
DO is observed The DO content of test
solutions must not drop below 60%
saturation during the first 48 hours of a static
acute (96’hour) test and must remain
between 40—100% after the first 48 hours of
the test Aeration at a rate of 100±15 bubbles
per minute is supplied by a serological
pipette as needed for muitrtenance of DO if
aeration is necessary, all test chambers
should be aerated At this rate, and with the
proper weight of fish, DO concentration
should remain slightly above 4 ppm over a
96-hour period Take DO measurements
daily
TABLE 5.—TEST OIL
CHARACTERISTICS: NO. 2 FuEL OIL
Characteristc
Mini-
mum
Maxi-
mum
Gravity (°API)
Viscosity kinematic at
100°F (Cs)
Flash point (‘F)
Pour point (°F)
Cloud point (‘F)
Sultur ( W I 0/,) , -
Aniline point (‘F)
Carbon residue (WI %)
Water (vol %)
Sediment (WI %)
Aromatics (vol %)
Distillation
IBP (‘F)
10% (‘F).
50% (‘F)
90% (‘F)..
Characteristic
I
Mini- I Maxi-
mum I mum
596 655
0 05
End Point (‘F)
Neulralization No
3 4 2 2 Mysidopsis Achieve sufficient DO
by ensuring that the surface area to volume
ratio of the test solution exposed is large
enough Oxygen content should remain high
throughout the test because of the lo
oxygen demand of the organisms Aeration is
not recommended during 48 .hour acute
toxicity tests unless the DO falls below 60%
saturation.
3 4 3 Controls With each fish or mysid test
or each series of sinsultaneous tests of
different solutions, perform a concurrent
control test in exactly the same manner as the
other tests and under the conditions
prescribed or selected for those tests Use the
diluent water alone as the medium in ss hich
the controls are held There must be no more
than 10% mortality among the controls
during the course of any valid test
3 4 4 Reference Wxicant To aid in
comparing results from tests performed by
different workers and to detect changes in the
condition of the test organisms that might
lead to different results, perform reference
toxicity tests with reagent grade DSS in
addition to the usual control tests Prepare s
stock solution of DSS immediately before
by adding I gram of DSS per 500 ml of te
water solution Use exploratory tests before
the full scale tests are begun to determine the
amount of reference standard to be used in
each of the five different concentrations
34 5 Number of organisms At a minimum.
20 organisms of a given species are exposed
for each test concentration For the toxicity
test procedures using Menidia, place 10 fish
in each of two tars For the loxicit> tests
using Mysidopsis, place 10 larvae in each of
two containers
346 Transfer of organisms Organisms
should be handled as little as possible in
order to minimize stress Transfer Meriidia
and Mysidopsis from the acclimatization
aquaria to the test chambers with a pipette
or a wide-bore, smooth glass tube (4 to 8 mm
internal diameter) fitted with a rubber bulb
Dip nets should be avoided when handling
larval fish and rnysids Do not hold fish out
of the water longer than necessary and
discard any specimen accidentally dropped
42 8 or otherwise mishandled during transfer
3 4 6 1 Mysidopsis To have the mysids
3 00 ready for study, n-iysids may be sorted 24
hours prior to initiation of the 48 ’hour test
0 Transfer the mysids to a beaker containing a
10 small volume of water, this vessel series as
0 35 a holding chamber during randomized
180 transfer of the organisms to test solutions
0.16 Mysidsarerandomlyselected from the batch
0 of mysids in the holding chamber, and
0 transferred to 50-mI beakers containing a
15 small volume of seawater One m>sid is
added per beaker using a small piece of
407 flexible 500pm screening until all of the
456 beakers contain one rnysid The process of
530 random selection and sorting is continued
606 until the appropriate number of mysids has
TABLE 4.—SYNTHETIC SEAWATER
[ Toxicity Test)
TABLE 5.—TEST OIL CHARACTEr
TICS: No. 2 FuEL OIL—Continue
321
2 35
150
125
10
347
402
475
542
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Federal Register / Vol. 59, No. 178 / Thursday. September 15. 1994 / Rules and Regulations 47463
been delivered to each of the 50-mi beakers
The mysids are gently released from the 50-
ml beakers into larger beakers filled with an
appropriate volume of 20-ppt seawater (25
C) to bring the total volume to 200 ml The
beakers are randomly placed into a
temperature-controlled water bath to
acclimate overnight at 25 °C. The mysids are
transferred to larger beakers (i.liter) for the
48-hour test after the addition of 800 ml of
the test solution A total of 10 mysids per
beaker are used for 48-hour acute toxicity
tests A minimum of two replicate chambers
are used for each test concentration and
control
3 4 6 2 Menidia and Mysidopsis are led
50 brine shrimp nauplii/organasm daily
during the 96-hour and 48-hour tests Excess
food should be removed daily by aspirating
with a pipette
3 4 7 Test duration and obser.’at,ons
3 4 7.1 Menidia Observe the number of deed
fish in each test container and record at the
end of each 24-hour period Fish are
considered dead upon cessation of
respiratory and all other overt movements,
whether spontaneous or in response to mild
mechanical prodding Remove dead fish as
soon as observed Also note and report when
the behavior of test fish deviates from that of
control fish, Such behavioral changes would
include variations in opercular movement,
coloration, body orientation, movement,
depth in container, schooling tendencies, and
others Abnormal behavior of the test
organisms (especially during the fIrst 24
houral is a desirable parameter to monitor in
a toxicity test because changes in behavior
and appearance may precede mortality
Toxicants can reduce an organisms ability to
survive natural stresses In these cases, the
mortality is not directly attributed to the
toxicant, but most certainly is an indirect
effect Reports on behavioral changes during
a toxicity test can give insight into the non-
acute effects of the tested material At the end
of the 96-hour period, terminate the fish tests
and determine the LC values The acute
toxicity test is terminated after four days of
exposure The number of surviving fish are
counted and recorded for each chamber in
accordance with standard EPA methods (6)
The LC, is calculated using survival data
from the test in accordance with the methods
described in the guidelines (6)
3 4 7 2 Mysidopsis Terminate the mysid
test after 48 hours of incubation To count the
dead animals accurately, place the exposure
vessels on a light table such that light passes
through the bottom of the vessel Most of the
dead mysids will be on the bottom of the
beaker and can readily be seen against the
background of the light table Also search the
top of the liquid for mysids trapped there by
surface tension Exercise caution when
determining death of the animals
Occasionally. an animal appears dead, but
closer observation shows slight movement of
an appendage or a periodic spasm of its
entire body For these tests, animals
exhibiting any movement when touched with
a pipette tip are considered alive Account
for all test animals to ensure accuracy since
Mysidopsis bahia may disintegrate or be
cannibalized by other mysids Consider
individuals not accounted for as dead At the
end of 48 hours of exposure, terminate the
mysid assay and determine the LC 50 values
in accordance with the methods described in
the guidelines (6)
3 4.8 Physical and chemical
determinations 3 4 8 1 Menidia Determine
the temperature. DO. and pH of the test
solutions before the fish are added and at
24-, 48.. 72-, and 96-hour exposure intervals
It is necessary to take measurements from
only one of the replicates of each of the
toxicant series
3 4 8 2 Mysidopsis Determine the
temperature, DO, and pH of the test solutions
before the nauplii are added and at the 24-
and 48-hour exposure interval Measure DO
and pH in only one of the replicates of each
of the toxicant series
3.4.9 Testing laboratory An ordinary
heated or air-conditioned laboratory room
with thermostatic controls suitable for
maintaining the prescribed test temperatures
generally will suffice to conduct the toxicity
tests Where ambient temperatures cannot be
controlled to 25±1 °C. use water baths with
the necessary temperature controls
3 4.10 Test containers For tests with fish
or rnysids, use 1-liter glass beakers measuring
approximately 10cm in diameter. In
conducting the test, add to each beaker I liter
of the test solution or seawater formulation
aerated to saturation with DO To add the
liter volume easily and accurately, use a large
volume (1-liter) graduated cylinder. Process
all required glassware before each test
Immerse in normal hexane for 10 minutes
Follow this with a thorough nose with hot
tap water, three hot detergent scrubs, an
additional hot tap-water rinse, and three
rinses with distilled water Oven or air dry
the glassware in a reasonably dust-free
atmosphere
3.5 Preparation of test concentrations
3 5 1 Menidia Place test jars
(approximately 22 5 cm in height. 15 cm in
diameter, ii cm in diameter at the mouth)
containing 2 liters of synthetic seawater on
a reciprocal shaker The shaker platform
should be adapted to hold firmly six of the
toxicity test jars Add the desired amount of
the petroleum product (if applicable) under
test directly to each test ar Dispense the
appropriate amount of toxicant (if applicable)
into’ t.he jars with a pipette Tightly cap the
test jars and shake for 5 minutes at
approximately 315 to 333 2-an (0 75-inch)
strokes per minute in a reciprocal shaker or
at approximately 150 to 160 i-pm on orbital
shakers At the completion of shaking.
remove the jars from the shaker and dispense
I liter of the mixture to each of the 1-liter
glass beakers Randomly place beakers sri a
constant-temperature water bath or room,
take water quality measurements, add fish
and initiate aeration
3 5 2 Mysidopsis 3 5 2 1 To prepare test
solutions for products and oil/product
mixtures, blend or mix the test solutions with
an electric blender having speeds of 10,000
rpm or less, a stainless-steel cutting
assembly. and a 1-liter borosilicate jar To
minimize foaming, blend at speeds below
10,000 rpm
3 5 2.2 For the product test solution, add
550 ml of the synthetic seawater to the jar,
then with the use of a gas-tight calibrated
glass syringe with a Teflon-tipped plunger,
add 0 55 ml of the product and mix for 5
seconds
3 5 2 3 For the oil test solution, add 550
ml of the synthetic seawater to the jar Then
with the use of a gas-tight calibrated glass
syringe equipped with a Teflon-tipped
plunger, add 0 55 ml of the oil and mix for
5 seconds.
3 5 2 4 For the oil/product mixture, add
550 ml of the synthetic seawater to the
mixing jar While the blender is in operation.
add 0 5 ml of the oil under study with the
use of a calibrated syringe with a Teflon-
tipper plunger and then 0 05 ml of the
product as indicated above Blend for 5
seconds 8fter addition of product These
additions provide test solutions of the
product, oil, and the oil/product mixture at
concentrations of 1,000 ppm
3 5 2 5 Immediately after the test
solutions are prepared. draw up the
necessary amount of test solution with a gas-
tight Teflon-tipped glass syringe of
appropriate size and dispense into each of
the five containers in each series if the series
of five concentrations tobe tested are 10, 18,
32, 56. and 100 ppm, the amount of the test
solution in the order of the concentrations
listed above would be as follows 10, 18, 32,
56, and 100 ml
3.526 Each time a syringe is tobe filled
for dispensing to the series of test containers,
start the mixer and withdraw the desired
amount in the appropriate syringe while the
mixer is in operation Turn off immediately
after the sample is taken to limit the loss of
volatiles
3 5 2 7 Use exploratory tests before the
full-scale test is set up to determine the
concentration of toxicant to be used in each
of the five different concentrations After
adding the required amounts of liquid, bring
the volume in each of the lest containers up
to 800 ml with the artificial seawater To
ensure keeping each of the series separate,
desigxsate on the lid of each container the
date, the material under test, and its
concentration
3 5 2 8 When the desired concentrations
are prepared, gently reLease into each beaker
the ‘10 test Mysidopsas (previously transferred
into 200 ml of medium) This provides a
volume of I liter iii each test chamber A pair
of standard cover glass forceps with flat, bent
ends is an ideal tool for handling and tipping
the small beaker without risk of
contaminating the medium
3 5 2 9 After adding the test animals.
incubate the test beakers at 25±1°C for 48
hours Recommended lighting is 2,000
lumens! m 2 (200 ft-c) of diffused, constant.
fluorescent illumination
3 5 2 10 Wash the blender thoroughly
after use and repeat the above procedures for
each series of tests Wash the blender as
follows rinse with normal hexane. pour a
strong solution of laboratory detergent into
the blender to cover the blades, fill the
container to about half of its volume with hot
tap water, operate the blender for about 30
seconds at high speed. remove and rinse
twice with hot tap water, mixing each rinse
for 5 seconds at high speed, and then rinse
twice with distilled waler, mixing each rinse
for 5 seconds at high speed
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47464 Federal Register / Vol. 59,
No. 178 / Thursday, September 15, 1994 ,‘ Rules and Regulations
3.6 Colculawi,g and reporting At the end
of the test period, the toxicity tests are
terminated and the LC, 0 values are
determined.
3.6 1 Calculations The LC 30 is the
concentration lethal to 50% of the test
population. It can be calculated as an
interpolated value based on percentages of
organisms surviving at two or more
concentrations, at which less than half and
more than half survived The LC 50 can be
estimated with the aid of computer programs
or graphic techniques (log paper) The 95%
confidence intervals for the LC 50 estimate
should also be determined
3 6,2 Reporting The test product and oil
and their source and storage are described in
the toxicity test report. Note any observed
changes in the expertmental water or the test
solutions Also include the species of fish
used: the sources, size, and condition of the
fish, data of any known treatment of the fish
for disease or infestation with parasites
before their use, and any observations on the
fish behavior at regular intervals during the
tests In addition to the calculated LCso
values, other data necessary for interpretation
(e g, DO, pH, other physical parameters. and
the percent survival at the end of each day
of exposure at each concentration of toxicant)
should be reported.
3.7 Summaryof procedures. 3 7.1
Men idm
1. Prepare adequate stocks of the
apprcpnate standard dilution water.
2 Add 2 liters of the standard dilution
water to the test jars Each test consists of 5
replicates of each of 5 concentrations of the
test material, a control series of 5 beakers.
and a standard reference series of 5 different
concentrations for a total of 35 beakers
Siniultaneous performance of toxicity tests
on the oil, product. and oil/product mixture
requires a total of 105 beakers
3. Add the determined amount (quarter
points on the log scale) of test material to the
appropriate jars Preliminary tests will be
necessary to define the range of definitive
test concentrations
4 Cap the jars tightly with the Teflon-lined
screw caps and shake for 5 minutes at 315
to 333 2-cm (0 75-inch) strokes per minute on
a reciprocal shaker
5 Remove the jars from the shaker, take
water quality data, dispense I liter of
solution to the i-liter glass beaker, and add
10 acclimated fish per beaker
6 Aerate with 100±15 bubbles per minute
through a i-mI serological pipette. as needed,
to maintain DO above 4 0mg/I
7 Observe and record mortalities, water
quality, and behavioral changes every 24
hours
8 After 96 hours, terminate the test, and
calculate LC 0 values and corresponding
confidence limits
3 7 2 Mysidopsis
1 Initiate the procedure for batching the
Mysidopsis in sufficient time before the
toxicity test is tobe conducted so that 5—7
day old larvae ama available
2 With the use ole small pipette. transfer
10 Mysadopsis into small beakers, each
containing 200 ml of the proper synthetic
seawater
3 To prepare the test stock product and oil
solutions, add 550 ml of the artificial
seawater to the prescribed blender jar. By
means of a gas-tight glass syringe with a
Teflon-tipped plunger. add 0.55 ml of the
product (or oil) and mix at 10,000 rpm for 5
seconds. To prepare the test stock oil/product
mixture, add 550 ml of the standard seawater
to the blender jar. While the blender is in
operation (10,000 rpm), add 0 5 ml of the oil,
then 0 05 ml of the product with the use of
a calibrated syringe with a Teflon.tipped
plunger. Blend for 5 seconds after adding the
product One ml of these stock solutions
added to the 100 ml of standard seawater in
the test containers yields a concentration of
‘10 ppm product, oil, or oil/product
combination (the test will be in a ratio oft
part product to 10 parts of oil)
4 Each test consists of 5 replications of
each of 5 concentrations of the material
under study. a control series of 5 beakers and
a standard reference series of 5 different
concentrations, for a total of 35 beakers
Simultaneous performance of toxicity tests
on the oil, product, end oil/product mixture
requires a total of 105 beakers Immediately
after preparing the test solution of the
product or oil/product solution, and using an
appropriately sized syringe, draw up the
necessary amount of test solution and
dispense into each of the five containers in
each series Each time a syringe is to be filled
for dispensing to the series of test containers,
start the mixer and withdraw the desired
amount in the appropriate syringe while the
mixer is in operation Turn mixer off
immediately after the sample is taken to limit
the loss of volatiles After adding the
required amount of the test oil/product or
product mixture, bring the volume of liquid
in each of the test containers up to 800 ml
with the artificial seawater When the desired
concentrations have been prepared. gently
release into each beaker the 10 mysids
previously transferred into 200 ml of
medium This provides a volume of 1 liter in
each test chamber
5 Wash the blender as prescribed for each
series of tests
6 Incubate the test beakers at 25± ’lC for
48 hours with the prescribed lighting
7 Terminate the experiment after 48 hours,
observe and record the mortalities, and
determine the LCsos and corresponding
confidence limits
4 0 Bioreniethation agent effectiveness test
4 1 Sumrnaryof method The
bioremediation agent effectiveness testing
protocol is designed to determine a product’s
ability to biodegrade oil by quantifying
changes in the oil composition resulting from
biodegradation The protocol tests for
microbial activity and quantifies the
disappearance of saturated hydrocarbons and
polynuclear aromatic hydrocarbons (PAHs)
The sample preparation procedure extracts
the oil phase into dichloromet,hane (DCM)
with a subsequent solvent exchange into
hexane To effectively accomplish the goals
of the testing protocol, it is necessary to
normnah ,za the concentration of the various
analytes in oil to a non-biodegradable
marker, either C 2 -or C 3 -phenanthrene, C 2 .
chrysene. or hopane I (7) The test method
targets the relatively easy to degrade normal
alkanes and the more resistant and toxic
PAl-Is It normalizes their concentrations to
Cror C 3 -phenanthrene, C 2 -chrysene, or
C 30 17a(H) , 21 (H)-hopane on an oil weight
basis (mg marker/kg oil, mg target analyte/kg
oil) The analytical technique uses a high
resolution gas chromoatograph/mass
spectrometer (CC/MS) because of Its high
degree of chemical separation and spectral
resolution CC/MS has long been used to
study the weathering end fate of oil spilled
into the environment For quantitative
analyses, the instrument is operated in the
selective ion detection (SIM) mode at a scan
rate of greater than 1 5 scans per second to
maximize the linear quantitative range and
precision of the instrument. The sample
preparation method does not exclude
analysis of selected samples by GC/MS in the
full scanning mode of operatIon to
qualitatively assess changes in the oil not
accounted for by the SIM approach
Performed concurrently with the chemical
analysis described above is a microbiological
analysis The microbiological analysis is
performed to determine and monitor the
viability of the microbial cultures being
studied Under this procedure. microbial
enumerations of hydrocarbon degraders are
performed at each sampling event using a
microtiter Most Probable Number (MPN)
determination
4 2 Apparatus The following materials
and equipment are required for the protocol
Appropriate flasks and other glassware.
sterile tubes, graduated cylinders (i0O.ml).
deionized water. p.rodoriitrotetrazolium
violet dye; weighing pans or paper. 250-mi
borosilicate glass Erlenrneyer flasks with
screw tops, Pasteur pipettes, laboratory
notebook: microtiter MPN plates (24-well]
multi-channel pipettirig device. dilution tube
and caps. autoclave, environmental room or
incubator, balance accurate toO I mg (XD—
400), CC/MS instrument equipped with a
DB—5 capillary column (3Gm, 0 25-mm I D.
and 0.25jim film thickness) and a split/
splitless injection port operating in the
splitless mode, such as hewlett-Packard
5690/5971 CC/MS (recommended for use].
and an autosarnpler for testing multiple
samples
4 3 Reagents and culture medium 4 3 1
Preparation of seawater Al) products are
tested in clean natural seawater Clean
natural seawater means that the source of this
seawater must nct be heavily contaminated
with industrial or other types of effluent For
example. seawater should not be obtained
from a source near shipping channels or
discharges of industrial or municipal
wastewater, or with high turbidity The
seawater is used within seven days of
collection No microbial inoculum is added
4 3 2 Pi-eporation of oil A medium
weight crude oil, Alaska North Slope (ANS).
is artificially weathered by heating to 521°F
to remove the light end hydrocarbons prior
to experimental start-up fANS 521) The
method is described in the Draft lnteroation
Although any of these biomarkers cart be used
to conduct this teit, it is recommended that hopane
be used
-------
Federal Register / Vol. 59, No. 178 1 Thursday. September 15. 1994 / Rules and Regulations 47465
Standard ISO/DIS 8708 “Crude Petroleum
Oil— .Deterrnination of Distillation
Characteristics Using 15 Theoretical Plates
Columns” by the international Organization
for Standardization (8}. The ANS52I crude
oil can be obtained fr n the National
Environmental Technology Applications
Center’s (NETAC) Bioremediation Products
Evaluation Center (BPEC). University of
Pittsburgh Applied Research Center. 615
William Pitt Way, Pittsburgh, PA. 15238.
(412) 826—5511 The crude oil is heated to
190°C (374°F) under atmospheric pressure
The system is then cooled and placed under
vacuum (or under an atmospheric pressure of
20 nun Hg) for the fInal distillation to an
atmospheric equivalent boiling point of
272°C (52 1°F)
4 3 3 Preparation of mineral nut i ’ient
solution If a comineras) product is strictly
a microbial agent and does not contain It s
own nutrients, a mineral nutrient solution
will be provided if requested by the product
manufacturer or vendor lie commercial
product contains its own nutrients, no
further nutrientS will be added The nutrient
solution is a modified salt solution and is
described below.
4.3 3 1 Nutrient preparation
I N&P Salts The following salts are added
to distilled water and made up to a i,000-ml
volume Adjust final pH to 7.8 The solution
is sterilized by autoclaving at 121°C at 15
psig for 20 minutes or by filtering through a
sterile 0 22 un membrane filter
Na 2 HPO 4 .2Hr-’18 40 g
KNOr ’-76 30 g
2 M 8 SO 4 .7H 5 0 solution Dissolve 22 508
in 1.000 ml distilled water ‘The solution is
sterilized by autoclavi.ng at 121°C at 15 psig
for 20 minutes.
3 CaCl 2 solution Dissolve 27 508 in 1,000
ml of distilled water The solution is
sterilized by autocleving at 12 l°C at 15 psig
for 20 minutes
4. FeCl 3 ’6H 2 0 solution Dissolve 0.25 g in
1.000 ml of distilled water The solution is
sterilized by eutoclaving at 121°C at 15 psig
for 20 minutes
S Trace Element Solution The following
salts are added to distilled water and made
up to a 1,000-mI volume The solution is
sterilized by eutoclevi.ng at 121°C at 15 psig
for 20 mInutes
MnSO 4 H 2 O— .30 2 mg
J-l 3 B0 3 -—-57.2 mg
ZnSO 7H 2 0—42.8 trig
H46Mov (Oi)4—34.7 trig
The pH of the nutrient solution is adjusted
with a pH meter calibrated at room
temperature (approximately 25 °CJ using
commercial buffers of pH 40, 7 0, and 10 0
(Fisher Scientific), as appropriate, prior to
use The pH is adjusted with concentrated
MC I or 10 M NaOH. as appropriate
4 3.3.2 Finalconcentrat,ons Ten (101 ml
of solution I acid 2 ml of solutions 2 ’-S are
added to non-sterile seawater and made up
to a 1.000-mi volume immediately prior to
test start .up This seawater/mineral nutrient
solution is used for all flasks containing
products requiring nutrient supplements and
for the flasks containing no commercial
additive Seawater without the above
nutrient solutions Is used for products
containing their own source of nutrients
4.4 Pretest preparation
4 4 1 Experimental setup
44 Ii The procedure consists of an
experimental shaker flask setup and the
specific set of microbiological and chemical
analyses that are performed on individual
product samples The following test flasks
(labeled with unique identifiers) are prepared
and set up on a gyratory shaker at day 0 to
reflect the following treatment design
4 4 1 2 For each test, a sheet listing the
number of flasks, types of controls, number
of replicates, product to be tested. and other
information is prepared The following steps
should be adhered to for the experunental
setup
I Borosilicate glass Erlenmeyer flasks
(250—mi) are thoroughly cleaned and
eutoclaved for 20 minutes at 120 °C at 25 psi.
then dried in the drying oven
2 Flasks are labeled with the appropriate
code product or control, sample day. and
letter indicating replicate
3 100 ml of seawater is added to each
flask
4 For nutrient and product treatments that
require the addition of nutrients, seawater
containing the nutrient solution is prepared
S Pasteur pipettes should be sterilized in
advance Break off the tip to provide a larger
opening prior to sterilization
6 Pour the approximate amount of oil to
be used from the large stock bottle into a
sterile beaker Keep the beaker covered wheu
oil is not being removed.
7 The labeled flasks containing seawater
and other additions. as necessary. are placed
on the balance The flask is tared The
appropriate amount of oil (0 5 g) is added
drop by drop using a sterile Pasteur pipette
with the tip broken off to provide a wider
opening Care is taken to avoid splashing the
oil or getting it on the sides of flasks
Precautions are taken when handling and
charging the flasks to minimize the
likelihood of contamination by exogenous
microbes This includes using a new sterile
pipette for each series of flasks
8 The weight of the oil is recorded in the
laboratory notebook.
9 The product is prepared and added to
the appropriate flasks according to the
manufacturer’s or vendor’s instructions
10 Flasks are carried upright and carefully
placed in the holders on the shaker table to
minimize the amount of oil that might adhere
to the side of the flasks Flasks in which a
significant amount of oil is splashed on the
sides are redone
ii The prepared flasks are shaken at 200
rpm at 20°C until such tune thai they will be
removed for sampling
4 4 2 Sampling The control and
treatments (nutrient and product flasks) are
sampled three times over a 25-day period
day 0. day 7, and day 28 The entire flask is
sacrificed for analysis. a 0 5.—mI aliquot is
removed from each flask for the
microbiological analysis and the remainder
of each flask is used for the chemical
analysis Specific procedures for both the
microbiological and chemical analysis are
described below At the time of each
sampling event, physical observations of
each flask should be recorded
4 5 Microbsolqgical analysis To monitor
the viability of the microbial cultures being
studied, microbial enumerations of
hydrocarbon degraders are performed at each
sampling event using a microtiter MPt
determination This is used as an indicator of
the relative change in bioniass This test
design relies on using growth response as an
indication of enhanced activity as compared
to a “no addition’ control
4 5 1 Media preparation Media for
microbial enumerations are carefully
prepared according to manufacturers or
other insu-uctions and sterilized using
eppropna%e methods
4 5 1 1 Genera! media treatment Buy
Bushnell-Hess (B—H) brothin quantities to
lost no longer than one year Use media on
a first-in first-out basis When practical. bu)
media in quarter-pound multiples. rather
than one-pound multiples to keep supply
sealed as long as possible Keep an inventory
of media, including kind. amount, lot
number, expiration date, date received, and
date opened Check inventory before
reordering media Discard media that are
caked, discolored, or show other
deterioration
4 5 1 2 Sterile saline (p1-1 adjusted)
1. Weigh 30g of NeCI.
Treatment
No. ot samples at sarr lng tImes
Total No ot anaMical deterrnina-
boris
Day 0
Day 7
Day 28
MicrobialJ Gra
9 9
9 9
9 g
GCFMS
Control ‘- .-
Nutrient ..........,,....,,._,_ ,-
Product —
3
3
3
3
3
3
3
3
3
9
g
g
Control - Oil + Seawater
Nutrient - Oil + Seawater + Nutrient
Product - Oil + Seawater + Product (. Nutrient, If required).
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47466 Federal Register I Vol. 59, No. 178 / Thursday, September 15, 1994 I Rules and Regulations
2. Dissolve in enough water to make 1,000
3 Adjust pH to 8 0 with NaOH (1OM and
o. SM).
4 Sterilize by eutoclaving For 15 minutes
at 15 psig
4 5.1.3 Standard nutrient concentrtste
(odd I ml to each 100 ml of Bushnell.Haas.
medium for MPNs)
I Weigh compounds listed below, dissolve
in DIH 2 O. dilute to 1 liter
Potassium Phosphate, monobasic KIi 2 PO 4 —
0633g
Potassium Phosphate, dibasic K 2 HPOr—
1 6198
Sodium Phosphate, dibasic Na 1 HPO 4 —2 486
8
Ammonium Chloride NH..C1—3 850 g
Magnesium Sulfate, beptahydrate
MgSO 4 .7H 2 0—4.500 8
Calcium Chloride, dihydrate CaCl 2 .2H 2 0—
7.290g
Femc Chloride, hexahydrate FeCI 3 .6H 2 0—
O 250g
Tmce Eiements
Manganese Sulfate. monohydrnte
MnSO 2 .H 2 0—6 04 mg
Boric Acid H 3 B0,—11 44 mg
Zinc Sulfate. heptahydrate ZnSO 4 .7H 2 0—
856mg
Ainmonium Moybdate, tetrahydrate
(NH 4 )6Mo,0 24 .4H,O—6 94 mg
2 Adjust pH 1060
3 Stir solution for approximately 3 hours.
then filter through a Buchner funnel using #1
paper, which will retain approximately 3 8g
of insolubles
4 Then filter through a 045 micron filter
into sterile bottles.
5 Cap bottles, label, and store in
refrigerator until used
4 5 1.4 Qualityassumnce/Quality control
(QA/QC)
1 Periodically check the effectiveness of
sterilization using commercially available
tapes or Bacillus stearothermophilus spore
suspensions, following the Instructions with
these products
2 Maintain a media log book that includes
the dates, kinds and amounts of media made.
pH. and any problems or observations
3 Before use, check plates and tubes for
signs of contamination, drying, or other
problems
4 5 1 5 Safety/Special precautions
I Note any safety or other precautions for
particular media
2 Note precautions to be followed when
using the autoclave
3 Use gloves and other protective clothes
when handling media
4 Use care in handling hot media
4 5 2 Microbial enumerotion
Standardized techniques for performing Most
Probable Number microbial enumerations are
described below.
4 5 2 1 Dilutions-
1 Prior to sacrificing each flask, remove
0 5 ml of water from each flask and add it
to a tube of 4 5 ml sterile phosphate buffer
(1 10 dilution) as prepared in the Standard
Methods for the Examination of Water and
Wastewoter (9) Using sterile technique. mtx
and perform serial dilutions (0 5 nil of
previous dilution 104 5 ml of sterile
phosphate buffer) to 10 dilution
4 5 2 2 inoculating MPN plates (oil
degrader):
1 Prepare sufficient sterile 04 M NaCl
(23 4 g NaCI1I,000 ml B—H) and B—H at pH
7.0 to fill the number of wells required for
the test (1.75 mI/well)
2. Using sterile technique. add 1.75 m l of
B—H broth to each well
3 Label the top of the plate with the proper
dilution for each row
4 Add 0 1 ml of fluid from each dilution
tube to each well in the appropriate row,
starting with the most dilute
5 After adding the fluid to all the wells,
add 20 il of sterilized No 2 fuel oil to the
top of each well
6. Incubate each plate at 20°C.
7 After 14 days of incubation, add 100 jil
of p-iodotetrazolium violet dye (50 mng/10 ml
of D I water) to each well to determine
growth.
8 View plates against a white background
to determine if color is present Development
of a purple or pink color upon standing for
45 minutes constitutes a positive test.
9 Record the number of positive wells and
the dilutions at which they occur
10 Enter data into a computerized
enumeration method using “MPN
Calculator” software program (version 2.3 or
higher) by Albert) Klee, U S EPA Office of
Research and Development. Risk Reduction
Engineering Laboratory, Cincinnati, OH
4.5.2.3 Quality assurance/Quality control.
I Check pH of medium before preparing
wells (pH should be approximately 8.0)
Adjust pH, if necessary, with dilute NaOH
2 Keep prepared tetrazolium violet dye
solution in the refrigerator in an amber bottle
when not in use
3 Have all laboratory personnel
periodically run MPNs on the same sample
to test precision
4 5 2 4 Safety/Speczalprecautions’
I Use sterile technique in preparing
solutions, dilutions, plates, and MPN wells.
2 Do not pipette potentially hazardous
solutions by mouth
3 Autoclave all plates and wells before
discarding
4 6 Chemical analysis of oil composition
4 & 1 Sample procedure After 0. 7. and
28 days of incubation on a rotary shaker, the
appropriate flasks are sacrificed and
extracted with dichloromethane and spiked
with a surrogate recovery standard A i0.ml
aliquot of the DCM layer is used for the
gravimetric analysis If significant
biodegradation is evident in the results of the
gravimetric analysis, then a solvent exchange
into hexane takes place prior to the CC/MS
analysis Follow steps 1—19 below when
preparing for the chemical analysis
I After 0, 7, and 28 days of rotary shaking
and incubating at 20°C, the reaction vessels
are sacrificed Prior to the chemical analysis,
a 0 5.ml sample of the aqueous phase is
removed for the microbiological analysis (see
Microbial Enumeration above)
2 A surrogate recovery standard is
prepared in the following manner 1.000 mg
of dicrphenanthrene and 1,000mg of 5u-
androstane are measured into a 500-mI
volumetric flask and DCM is added to the
mark to produce a 2.00O-ng/ il stock solution
3 A 100-jil aliquot of the surrogate solution
is added to each test flask. The final
concentration of surrogates in each flask is
approximately 4 ng4il of solvent in the final
extract The eliphatics and marker data
should be corrected for percent recovery of
the 5o-androstane surrogate and the
aromatics for the dio-phenenthrene surrogate
4 The contents of the flask are placed into
a 250-mI separatory funnel
5 Measure a total volume of 50 ml DCM
for use in the extraction Use 3 10-mI
fractions to rinse the flask into the Funnel and
transfer the remaining aliquot of DCM to the
funnel
6. Stopper and mtx vigorously by shaking
(approximately 50 times) while ventilating
properly
7. Each funnel is set aside to allow the
DCM and water layers to partition This may
take 5—10 minutes for some products. or up
to 3 hours if the product has caused the
formation of an emulsion
8 Drain the first 10 ml of the DCM
(bottom) layer, collect, cap, uniquely label,
and use for gravimetric analysis (see below)
Drain the remaining 40 ml and dry it by
passing it through a funnel packed with
anhydrous sodium sulfate
9 Assemble a Kuderna.Danish (KD)
concentrator by attaching a Snyder column to
an evaporation flask with a graduated
concentrator tube Align vertically and
partially immerse concentrator tube in a
water bath (10) Set the water bath to the
appropriate temperature to maintain proper
distillation
10 Collect the de-watered extract into the
KD concentrator
11 Evaporate DGM to epproximately 10
ml. then add approximately 50 ml of the
exchange solvent (hexane) and concentrate
the volume to 10 ml
12 Rinse the flask into the concentrator
tube with 50 ml hexane and concentrate to
10 ml Repeat one more time with 50 ml of
hexane
13. Remove concentrator tube with the
recovered 10 ml of sample volume The
heavier residual material should be present
as a precipitate (bottom layer)
14 Centrifuge to aid the separation of the
hexane from the precipitant fraction
15 Place hexane-soluble fraction (top
layer)—opproximately I 0 mI—into a CC/MS
vial for analysis (see CC/MS Analysis
Procedure below) If column fouling and
deterioration of separation characteristics
occur, an alumina column sample cleanup
method can be considered (see Alternative
CC/MS Sample Cleanup Procedure below)
16 Analyze by CC/MS using the
conditions determined by the U S EPA Risk
Reduction Engineering Laboratory, Water and
Hazardous Waste Treatment Research
Division, in Cincinnati, OH, which follows
U S EPA Method 8270 (see CC/MS Analysis
Procedure below)
17 Calculate surrogate recovery If
surrogate recovery is less than 85 percent for
the marker relative to the surrogate recovery
standard (dio.phenanthrene), then the water
layer should be extracted again using three
separate extractions with DCM Pool the
three extractions with original extract and
concentrate to 10 ml, and reanalyze by GC/
MS
18 Drain the seawater into a storage
sample vial/container
-------
Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations 4746?
19 Seal the vial with a Teflon-lined cap
and store frozen This water layer is kept in
case additional extractions are necessary.
4 6 2 Gravimetric analysis. The initial
means to evaluate the effectiveness of a
bioremediation agent f oil spill response is
through gravimetric analysis. A stetisticafly
significant difference (p < 0 05) in analytical
weight of the oil from the control system as
compared to the analytical weight of the oil
treated with a bioremethation agent indicates
biodegradation has successfully occurred.
Hence, the disappearance of cii should be
accompanied by significant decreases in total
oil residue weight of extractable materials
versus a control. If no significant decrease in
oil residue weight is observed, the need to
perform further chemical analysts should be
evaluated Follow steps 1—3 to conduct the
grevirnetric analysis.
I The 10 ml of DQd extrect (from Sample
Procedure step 8 above) is placed in a small
vial and concentrated to dryness by nitrogen
blowdown techniques using a steady stream
of nitrogen (pre-purified gas). If the oil is
severely biodegraded, a larger volume of
DCM (>10 ml) may be necessary for the
gravimetric analysi.s
2 The residue is weighed 3 times for the
gravimetric weight of oil. Record the weight
of the oil.
3 Compare statistically (p <0 05) the
weight of the product treatment versus the
weight of the control front each respective
time period If a significant decrease is
observed in the sampling (flask containing
bioremediation agent) weight, then proceed
with the remainder of the sample procedure
4 6 3 CC/MS anclysi.s Often, analysis of
saturated and aromatic hydrocarbons by
capillary gu chromatography of DCM
extracts leads to column fouling and
deterioration of separation characteristics An
alternative, simple ‘one-step” alumina
sample cleanup procedure can be performed
on oil before injection, this cleanup removes
both asphaltenes and polar compounds and
can be applied to DOYt extracts as well This
procedure is descnbed in steps 1—11 below
46.3 Alternative GCJMS sample
cleanup procedure
1 Weigh 4.0 g alumina (neutral, 80—200
mesh) into scintillation vials covered loosely
with aluminum foil caps Prepare one
scintillation vial per sample Heat for 18
hours at 300 ’C or longer Place in a
desiccator of silica until needed.
2 Add 5 0 ml of DCM to a glass iuerlok
multi-fit syringe (e g, BD #2471) with
stopcock (e g . Perfectuxn #6021) in closed
position, stainless steel syringe needle (18
gauge). and PTFE fits Clamp in a vertical
position
3 Transfer 4.0 8 of prepared alumina to a
plastic weighing boat and fill syringe slowly
while applying continuous vibration (e g.
Conair #HM IIFF1)
4 Add a second 1 7 1’FE fit and push into
place on top of the alumina bed
5 Drain 5 0 ml DCM to the top level of the
column frxt to await sample addition and
discard DCM
6 Weigh 50mg ± 0 1 mg ANSS2I oil into
a taxed vial
7 Premeasure ioml of DCM intoe
graduated cylinder Add 0 2 toO 3 ml of the
DCM to the tared oil vial Mix and transfer
solvent to the column bed with a Pasteur
pipette Open stopcock and collect in a 10-
ml volumetric flask Repeat until
approximately 1 0 ml (do not exceed 1 0 ml)
of DGM has rinsed the vial and inner walls
of the syringe body into the 10-nil flask.
8 Transfer balance of DCM from the
graduated cylinder to the column and
regulate the solvent flow rate to
approximately I to 2 mI/minute Collect all
eluent in the 10-mi flask.
9 Transfer a known volume of cluerut to
another scintillation vial and blow down to
dryness (nitrogen)
10 Determine and record weight.
11 Dissolve in 1 0 ml hexane for the CC/
MS analysis procedure (see below).
4 6 3 2 CC/MS analysis procedure
Immediately prior to inlection. an internal
standard solution of four deuterated
compounds is spiked into the sample extracts
end injected Samples are quantified using
the internal standard technique (10] for both
the aliphatic and aromatic fractions of the oil
extracts in order to provide sufficient
information that the oil is being degraded. To
help ensure that the observed decline in
target analytes is caused by biodegradation
rather than by physical loss from
mishandling or inefficient extraction, it is
necessary to normalize the concentrations of
the target analytes via a ‘conserved internal
marker.” Conserved internal markers that
have been found useful for quantification are
Cr or C 3 -phenanthrene. C 2 -chrysene, and
C 3 o17a(H),21 (H)hopaiie Deuterated
internal standards are used to calculate the
relative response factor (RRF) for the target
analyte(s) To compute the “normalized
concentrations.” the target analyte
concentration at a given sampling time is
simply divided by the selected conserved
arialyte concentration at the same sampling
time (11) Conduct the CC/MS analysis using
the following procedure
I One (1) ml of the hexane extract (from
Sample Procedure step 15 above) is placed
into a I 5-nil vial for use on the autosarnpler
of the GC/MS instrument
2 To this solution, 20 il of a 500- ngF ul
solution of the internal standards is added
and the vial is capped for injection The final
concentration of the internal standards in
each sample is 10 ngij&l This soluiion
contains 4 deuterated compounds d-
nephihalene, d o.anthracene, d i-chrysene.
and dirperytene
3 At the start of any analysis period, the
mass spectrometer (MS) is tuned to PFTBA
by an autotune program, such as the Hewlett-
Packard quicktune routine, to reduce
operator variability Set the CC/MS in the
SIM mode at a scan rate of 1 5 scans/second
to maximize the linear quantitative range and
precision of the instrument Set all other
conditions to those specified in Instrument
Configuration arid Calibration section below
4. An instrument blank and a daily
standard are analyzed prior to analysis of
unknowns Internal standards are combined
with the sample extracts and cainjected with
each analysis to monitor the instrument’s
performance during each run
S Information that should be included on
the acquisition form include operator’s name
and signature, date of extraction, date and
time of autotune, date of injection(s),
instrument blank, daily standard mix
injection. CC column number, and standards
for the 5-point calibration curve
6 If the instrument is operated for a period
of time g eater than 12 hours, the tune will
be checked and another daily standard
analyzed prior to continuing with analyses
TABLE 6,—ANALYTES LISTED UNDER THE CORRESPONDING INTERNAL STANDARD USED FOR CALCULATING RRFs
Internal Standard
-naplithaIene
d 1 ,-anthracene
dii-chrysene
d 2 -pery lene
Alkanes
riCi 0-nC 15
nCl 6-ruC23
nC24-nC29 .. .
.
nC3 O-nC35
Pristane
C 17 (H), 2lci(H)-hopane
Prtytane
5u-androstane
Aromatics
Napr taIene ..
..
Dibenzothophene ..
Fluorene
Anthracene
Phenanthrene
Fluoranthene
Pyrene
Chrys.erte
.
Benzo(b)I tuoranthene
Ber izo(k)f luorartthene
Benzo(e)pyrene
Benzo(a)pyrene
Perylene
Indeno(g,h,i)py’erie
Dibenio(a,h) arithracene
Benzo(1 ,2,3-cd)perylene
7. The MS is calibrated using a modified
version of EPA Method 8270 (10)
Specifically, the concentrations of internal
standards are 10 ng/pl instead of 40 nglpi A
five-point calibration curve is obtained for
each compound listed in Table 6 prior to
-------
47468 Federal Register / Vol. 59, No. 178 I Thursday, September 15. 1994 / Rules and Regulations
sample analysis at 1. 5. 10. 25. and 50 ng/
fil. A 5-point calibration must be conducted
on a standard mtx of compounds to
determine RRFs for the analytes The
standard mix (excluding the marker) for this
calibration curve may be obtained from
Absolute Standards, Inc.. 498 Russell St..
New Haven, CT. 06513, (800) 368—1131 If
C, 0 17 (HL21a(H)hopane is used, it may be
obtained from Dr Charles Kennicutt II,
Geochemical and Environmental Research
Group, Texas A&M University. 833 Graham
Rd .College Station, TX, 77845, (409) 690—
0095.
8 Calculate each compound’s relative
response factor to its corresponding
deuterated internal standard indicated above,
using the following equation’
RRF=(A.C ,.)/(A, ,C.)(6)
where
RRF=relative response factor
A.=peak area of the characteristic ion for the
compound being measured (analyte)
A,,=peak area of the characteristic ion for the
specific internal standard
C,,=concentration of the compound being
measured (ng/ d)
C ,,=concentration of the specific internal
standard (10 ng/jil). (This concentration
is a constant in this equation for the
calibration curve.)
9. Identify each analyte based on the
integrated abundance from the primary
characteristic ion indicated in Table 7.
10. Quantitate each analyte using the
Internal standard technique The internal
standard used shall be the one nearest the
retention time of that of a given analyte
(Table 8).
TABLE 7.—PRIMARY IONS MONITORED
FOR EACH TARGET ANALYTE DUR-
ING GC/MS ANALYSIS
Compound
n-atkanes (Cm—Cu)
Pristane
Pt ,ytane
Napfltt ia lene
CI-naptithalenes
C2-napI thalenes
C3nnp tha Ienes
C4-naphth enes
Fluorene
CI-fluorenes
C2-fluorenes
C3-fluoreries
Dibenzothiophenes
C1- benzo ophenes
C2-dibenzoth i opheneS
C3-d iber tzothiophenes
Anthracene
Phenanthrene
Compound
CI-phenanthrenes
C2-phenanthrenes
C3-phenanthrenes
Fbjoranthena/pyrene
CI-pyrenes
C2-pyrenes
Chrysene
CI-civysenes
C2-chrysenes
Hopar*s (177 family)
Hopanes (191 farr’sly)
Steranes (217 family)
Berizo(b)fluoranthene
Senzo(k)fluoranlhene
Benzo(e)pyrene
Benzo(a)pyrene
Pe ylene
Ideno(g,hJ)pyrene
Dibenzo(a,h)anthracene
Benzo(12,3-cd)pery lene
d 1 -naphthalene
d 10 anthracene
d 10 -phenanthrene
d 12 -ctvysene
d 2 -perylene
cs-8n&OSt afle
TABLE 8.—ANALYTES AND REFERENCE COMPOUNDS
Compound
Reference compound
Compound
Reference compound
n-C10
n-Cit
n -C12 -.
n-C 13
n-CiO
n-cl 1
n-C12
n-C 13 ....
C2-naphthaiene
C3-naphthaiene
C4-naphthaierie
Fluorene
Naphthaiene
Naphtha lene.
Naphthatena
Fluorene.
n-Cl 4
n-Cl 4
Cl -Iluorene
Fluorene.
n-C15
n-C 15 ....
C2-fluorene
Fluorene
n-C16
n-C16
C3-fluorene
n-C17
Pnstane . . ..
n-Cl7
Dibenzothiophene
C1-dibenzothiophene
Dibenzothiophene.
Dibenrothiophene
n -C18
Phytane
n-C18
Phytana
C2-dibenzothiophene
C3-dibenzoth .ophene
Diber izothiophene
Dibenrothi ene
Phenanthrene
n -C19
n-C19
Phenanthrene
Anthracene
n-C20
n -C21
n-C22
n-C20
n-C21
n-C22
Anthracene
Cl-phenanthrene
C2-phenanthrene
Phenanthrene.
Phenanthrene
Pherianthrene
n -C23
n-C24
n-C23
n-C24
C3-pl er ianthrer’e
Fluoranthene
Fluoranthene.
n -C25
n-C26
n -C27
n-C25
n-C26
n-C27
P’yrene
Ci-pyrene
C2-pyrene
Pyrene.
Pyrene.
Pyrene
n-C28
n -C28
Chrysene
Chrysene.
n-C29
n-C29
Ci-chrysene
n-C30. .
n-C30
C2-chrysene
Chrysene.
Benzo(b)ftuoranthefle
n-C31
n-C31
Benzo(b)ftuoranthene
n-C32
n-C32
Benzo(k)fluoranthene
Benzo(e)Pyrene.
n-C33
Berizo(e)pyrene
n-C34
n-C35 C, l7a,2l -hopane
n- 34
n-G35 C l7a,21 -hopane
Ber izo(a)pyrene
Perylene ,deno(g,h,i)pyrene
Perylene mdeno(g,h,i)pyrene
Dibenzo(a.h)anthracefle.
5a-ar idrostane
C1-naphtha lene
5a -an&os*ane
Naphtha lene
Dibenzo(a,h)anthraCene
Bezo(1.2.3-cd)perylene
Benzo(1.2,3 -Cd)PerY lefle
TABLE 7.—PRIMARY IONS MONITORED
FOR EACH TARGET ANALYTE DUR-
ING CC/MS ANALYSIS—Continued
85
85
85
128
142
156
170
184
166
180
194
208
184
198
212
226
178
178
192
206
220
202
216
230
228
242
256
177
191
217
252
252
252
252
252
276
278
276
136
188
188
240
264
260
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Federal Register / Vol. 59, No 178 / Thursday, September 15, 1994 / Rules and Regulations 4746 (
11. Use equation 7 to calculate the
concentration of analytes in zig/mg (ppm) oil.
Concentration (ng/mg)=(A 1 ].V,x 1,000)1
(A . .(RRF}VM,)(7)
where
A =peak area of characteristic ion for
compound being measured
L=amount of internal standard in)ecied, in zig
(ie .2Ong)
V 1 =volume of the total DCM extract (50 ml)
A, 1 =peak area of the characteristic ion of the
internal standard
RRF=relative response factor
V =voluine of the extract injected (2 till
M,,=total mass of the oil added to the flask,
mg
12 Compute the “normalized
concentrations” for each target analyte
concentration at a given sampling time
(equation 7) by simply dividing by the
conserved internal marker concentration at
the same sampling time
4 6 4 Generoi1y accepted laborctor,’
procedures Samples are immediately logged
into the laboratory, where they will he given
a unique sample identification based on
Julian data and the number logged in Prior
to the analysis of any experimental samples.
a five-point standard curve is prepared One
of the mid-range standard curve
concentration levels is analyzed daily before
sample analysis as a continuing standard.
RRFs for all target analytes should be within
25% of the standard curve response values at
day 0, and at any sampling event the check
standard percent difference from the initial
five-point calibration must not exceed 20%
between the before and after daily standard
mix (see below) The collected CC/MS data
are initially processed by a macro routine,
which performs extracted chrornatographic
plots of the target compounds. integrates the
target compounds, and shows integration
results to include tabular numbers The
integration values are then transferred to a
spreadsheet format to be quantified Because
of the complexity of the analyte matrix (oil).
a very high degree of manual verification and
reintegration of the spectral data is required.
4.6 5 QA/QC procedures The reliability
of this method is dependent on the QAJQ
procedures followed Before and after each
analytical batch (approximately 10 samples).
analyze one procedural blank, one duplicate,
and one calibration verification standard (10
ng/iil) Analyze one reference crude oil
standard The instrument’s performance and
reproducibility are validated routinely in this
manner. Surrogate recoveries should be
within 70 to 120%, arid duplicate relative
percent difference values should be ±20% A
control chart of the standard oil should be
prepared and monitored Variations of
analytes in the control chart should be no
more than 25% from the historical averages
Injection port discrimination for n-C25 and
greater alkanes must be carefully monitored.
the ratio of RRF n-C32(RRF n-C21 alkanes
should not be allowed to fall below 80% The
mass discrimination can be reduced by
replacing the quartz liner in the injection
port after every analytical batch The
Instrument’s performance and
reproducibility are validated routinely by
analyzing the reference crude oil standard
All analyses are recorded in instrument logs
detailing operating conditions, date and time,
file name, etc After analysis, the sample
extracts are archived at refrigeration
temperatures To document QAJQC, the
following information is contained in the
detailed quantitative reports average RRF
derived from the standard curve, RRF from
the daily standard. percent relative standard
deviation, area of target analyte,
concentration determined both on a weight
and volume basis, and values for any
surrogates and internal standards
4 66 Instrument con figumtion and
cahbrotion A 2-mi aliquot of the hexerie
extract prepared by the above procedure is
injected into a CC/MS instrument, such as
the Hewlett-Packard 5890/5971 CC/MS
(recommended for use). This instrument
should be equipped with a DB—5 capillary
column (30 m, 025-mm ID and 0 25-rim
film thickness) arid a splitisplitless injection
port operating in the splitless mode Table 9
summarizes the temperature program used
for the analysis This temperature program
has been optimized to give the best
separation and sensitivity for analysis of the
desired compounds on the instrument Prior
to the sample analysis, a five-point
calibration must be conducted on a standard
mix of the compounds listed in Table 7 to
determine RRFs for the analyses
TABLE 9.—OPERATING CONDITIONS
AND TEMPERATURE PROGRAM OF
GC/MS
Operating conditions
Injector pcrt—290 C
Transfer line—320 C
Total run time—73 minutes
Column ft w rate (He)—1 0 mI/rriinute
Temperature Program
4 7 Stahsticalanolysis The
determination of a bioremadiation agent’s
effectiveness will be partially based upon the
results of a statistical analysis of the shaker
flask experiment The experimental design
for this test is a two factorial design This
two-way analysis of variance (ANOVA) will
he used to determine data trends The
statistical method is designed to test various
types of biorernediation treatments including
microbial, nutnent, enzyme, and
combination products The following is a
summary of the statistical methods to be used
to evaluate the analytical data obtained from
all product tests The experimental design,
data analysis methodoio ’, interpretation of
results, required documentation, and a
numeric example are outlined below
4 7 1 Experimental design The
experimental design for this test is known as
a factorial experiment with two factors The
first factor is product/control group. the
second factor is time (measured in days) For
example, if two groups (product A and a non-
nutrient control) are tested at each of three
points in time (day 0. 7, and 28), the
experiment is called a 2x3 factorial
experiment There will be three replications
(replicated shaker flasks) of each group-time
combination
4 7 2 Data analysis methods For each
analyte and each product used, a product is
considered a success by the demonstration of
a statistically significant difference between
the mean analyte degradation by the product
and the mean analyte degradation by the
non-nutrient control Such a determination
will be made by performing an AN OVA on
the sample data The technical aspects of this
procedure are outlined in Snedecor arid
Cochran (12) Most statistical software
packages support the use of two-way
ANOVA However, the format required for
the input data differs among the various
commercial packages Whichever package is
used, the following ANOVA table will be
provided as part of the output In the Degree
of Freedom column of Table 10, p the
number of product/control groups. t the
number of days at which each group is
analyzed. and a = the number of replications
For the example of the 2x3 factorial
experiment discussed above. p 2 , t=3. and
n=3 The significance of the F-statistics (as
indicated by their corresponding p.values)
are used to interpret the analysis
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47470 Federal Register ! Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
TABLE 10.—Two-WAY ANOVA TABLE
Source
I 9
SSG
Mean square
F-Statistic
MSG/MSE
p-Value
Group . . .. -
p-i
MSG-.MSGI
MSE
Time .. .. .
t-1
SST
MST—MST(
MSE
MST/MSE
Interaction ..
(p-1)(I-.1)
SSI
MSI—MSI/
MSE
MSI/MSE
Error .. -
pt(n—1)
SSE
MSE—SSE
Total -
npt-1
SSTOT
To be detemaned from the value of the F-statistic.
4 73 Interpretation 4 7.3 1 If the F-
statistic for the interaction is significant at
the 005 level (i.e . p-value i.e less than (1 051.
the data indicate that the mean response of
at least two groups being tested differ for at
least one point in tame In order to find out
which groups and at which points in tune the
difference occurs. pairwis. comparisons
between the group means should be
conducted for all time points These
comparisons can be made using protected
least squared difference (LSDI or Dunnett
mean separation techniques. The protected
LSD procedure is detailed i .n Snedecor and
Cochran (12), the Dunnett procedure Is
outlined in Montgomery (13) For both
methods, the mean square error (MSE) from
the two-way ANOVA table should be used to
compute the separation values
4 7.3 2 If the F-statistic for the interaction
is not significant at the 005 level (i e - p-
value not less than 005), but the F-statistic
for the group is significant (ie . p-value is
less than 005), the data indicate that any
differences that exist among the group means
are consistent across time To find out which
group means differ, a pairwise comparison of
the group means should be carried out by
pooling data across all points in time Again.
the MSE from the two-way ANOVA table
should be used to compute the separation
values
4.7 3 3 lIthe F-statistic corresponding to
both interaction and group are not significant
at the 0 05 level, the data mdicate no
difference between the group means at any
point in time In this case, no further analysis
is necessary.
4.7 3 4 Finally. Snedecor and Cochran
(12) use caution concerning the use of
multiple comparisons If many such
comparisons are being conducted, then about
5% of the tested differences will erroneously
be concluded as signilicant The researcher
must guard against such differences causing
undue attention
4.7 4 Required documentation 4 7 4 1
The following documents should be included
to summarize the findings from a product
test
I Data listings for each analyte that was
analyzed. These should show all raw data
2 A table of summary statistics for each
analyte. The table should include the mean.
standard deviation, and sample size for each
group at each day
3 An ANOVA table for each anulyte. The
table should be of the same format as Table
10.
4 A clear summary of the mean
separations (if mean separations were
necessary). The mean separation methods
(LSD or Dunnett), the significance level, the
minimum significant difference value, and
the significant differences should be clearly
marked on each output page
S All computer outputs should be
Included No programming alterations are
necessary The specific computer package
used to analyze the data should be included
in the report
Example An analysis of the total aromatic
data (in ppm) was conducted For the
following three groups
Group I. Non-nutrient Control
Group 2 Nutrient Control
Group 3 Test Product
4 7 4 2 The raw data are shown in Table
11, Note the three replications for each
group-time combination
TABLE 11.—PRODUCT TEST DATA,
TOTAL AROMAT 1CS (PPM)
Group
1
Group
2
Group
3
DayO 8153
7912
7711
TABLE 11.—PRODUCT TEsT DATA,
TOTAL AROMATICS (PPM)—Contlnued
Group
1
Group
2
Group
3
8299
8309
8311
8088
8111
8200
Day7
6100
8078
7999
7950
8200
8019
6900
6702
5987
Day28
8259
8111
834.4
8102
7754
7659
4000
3875
3100
4 7.4 3 Table 12 gives the summary
statistics (number of observations, means.
and standard deviations) For each group-time
combination,
TABLE 12.—SUMMARY STATISTICS FOR
PRODuCT TEST DATA TOTAL ARO-
MATICS (PPM)
Time
Proctuct
n
Mean
Stanci-
e
ation
DayO
Day 7 - ...
Day 28 ..
Group 1
Group2
Group 3
Group 1
Group2
Group 3
Group 1
Group 2
Group 3
3
3
3
3
3
3
3
3
3
8.1800
8.1107
6.074 0
8.059 0
8,0563
6,529 7
82380
7,838 3
3.658 3
1081
1985
3192
53 1
1291
480 3
117.9
233 2
4876
4 7 4 4 Table 13 shows the results of the
two-way ANOVA
TABLE 13.—EXAMPLE Two-WAY ANOVA TABLE
Source
cit
Sum of squares
Mean square
p-value
Group
Time .. . . .
Interaction ——.- -.
Error .._..
Total .. . . - -
2
2
4
18
23.944.856.41
10.954.731 19
19,347,589 04
1,418.30333
11,972.42870
5,477,36559
4,836,897 26
78.794 63
15194
6951
61 39
.
00001
00001
0 0001
26
55.665.480 96
.. -
.
-------
Federal Register / Vol. 59,
No. 178 / Thursday, September 15. 1994 / Rules and Regulations 47471
4745 FrornTablel3. it can be seen that
the F-statistic for interaction is significant
(F=61.39, p=O 0001). This indicates that
group differences exist for one or more days
Protected LSD mean separations were then
conducted for each day to determine which
group differences exist The results are
summarized in Table 14 Note that means
with the same letter fT grouping) are not
significantly different
TABLE 1 4.—PAIRwISE PROTECTED
LSD MEAN SEPARATION
T
p.
Mean
n
Interaction
A
8,3380
3
Group 1, Day 28
A
6,160.0
3
Group 1, Day 0
A
8,110.7
3
Group 2. Day 0
A
. .
8,074 0
3
Group 3, Day 0
A
8,0590
3
Group 1, Day 7
A
. . ..
8,056.3
3
Group 2. Day 7
A
7,838.3
3
Group 2. Day 28
B
6,529 7
3
Group 3, Day 7
C
3,658.3
3
Group 3, Day 28
Significant Level — 0.05
Degrees of Freedom — 18
Mean Square Error • 78794,63.
Critical Value — 2 10
Least Significant Difference • 481.52.
4 7.4 6 The grouping letters indicate that
the product mean values (group 3) at day 7
and day 28 are significantly different from
those of both the nutrient control (group 2)
and the non-nutrient control (group 1) for
those days No other significant differences
are shown Therefore, in terms of total
aromatic degradation. the test indicates the
desired statistically significant difference
between the mean of the product and the
mean of the non-nutrient control
5 0 Biorarnethahon agent toxicity test
IReserved]
60 Summary fechzizca! product test data
format
The purpose of this format is to summarize
in a standard and convenient presentation
the technical product test data required by
the U.S Environmental Protection Agency
before a product may be added to EPA’s NCP
Product Schedule, which may be used in
carrying out the National Oil and Hazardous
Substances Pollution Contingency Plan This
format, however, is not to preclude the
submission of all the laboratory data used to
develop the data summarized in this format.
Sufficient data should be presented on both
the effectiveness and toxicity tests to enable
EPA to evaluate the adequacy of the
summarized data A summary of the
technical product test data should be
submitted in the following format The
numbered headings should be used in all
submissions The subheadings indicate the
kinds of information to be supplied The
listed subheadings, however, are not
exhaustive, additional relevant information
should be reported where necessary As
noted, some subheadings may apply only to
particular types of agents
I Name, Brand, or Trademark
11 Name. Address, and Telephone Number
of Manufacturer
Ill Name, Address, and Telephone
Numbers of Primary Distributors
IV Special Handling and Worker
Precautions for Storage and Field
Application
I Flammability
2 Ventilation
3 Skin and eye contact, protective
clothing, treatment in case of contact
4 Maximum and minimum storage
temperatures, optimum storage temperature
range, temperatures of phase separations and
chemical changes
V Shelf Life
VI Recommended Application Procedure
1. Application method
2 Concentration, application rate (e g,
gallons of dispersant per ton of oil)
3. Conditions for use water salinity, water
temperature. types and ages of pollutants
Vii Toxicity (Dispersonts, Surface Washing
Agents, Surface Collecting Agents. and
Miscellaneous Oil Spill Control Agents)
Materials Tested
Species
LC (ppm)
Product
Menida berylfina
Mysidopsis bahia 2
96-hr
48-hr.
No 2 fuel Oit
Mertidia beryllina
Mysidopsis bal ’ua
96-hr.
48-hr
Product and No 2 fuel oil (1.10)
Menidia berylliria
Mysidopsis bahia
96-hr.
48-hr
VII ! (a) Effectiveness (bioremediation agents) Raw data must be reported according to the format shown below The first column
lists the names of the analytes measured by GCIMS (SIM), the surrogate standards, and various ratios and sums In the next three
columns, the concentration of the analytes (ng/mg oil), the concentration of the analytes corrected for the recovery of the surrogate
standard (a-androstane for alkanes. d.o-phenanthrene for aromatics], and the concentration of corrected arialyies normalized against
the conserved internal marker, respectively, are reported for the first replicate from the first sampling event These three columns
are each repeated for the next two replicates, giving 9 total columns for the product of interest The next 9 columns are the same
as the product columns except they are for the non-nutrient control The last nine columns are for the nutrient control Thus, a
total of 28 columns are needed in the spreadsheet This spreadsheet is for the first sampling event (day 0) Two more identical
spreadsheets will be needed for each of the next two sampling events (days 7 and 28) For the statistical analysis, a report showing
the two.way analysis of variance (A.NOVA) table created by the software used by the investigator must be shown in Its entirety
along with the name of the software package used Another printout showing the mean separation table (protected LSD test results)
generated by the software must be reported The statistical analyses are conducted using the sum of the alkane concentrations and
the sum of the arometscs concentrations from the raw data table Thus, two ANOVAs are run for each sampling event, one for
total alkanes and one for total aromatics. giving a total of 6 ANOVAs for a product test (2 ANOVAs x 3 sampling events) Only
if significant differences are detected by a given ANOVA will it be necessary to run a protected LSD test
Product Replicate 1
Product Replicate
2
Concentration
ng/mg
Surrogate car-
rected ng/rng
Normalized to
marker ng/mg
Alkane Analyte
n-C10
n-Cu
n-C12
n-C13
r i-C14 -.
B1OREMEDIATION AGENT EFFECTIVENESS TEST RAW DATA
(Date . Testing Date 0, 7. 28 (Circle One) Initial Oil Weight
. 1
-------
47472 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
BIOREMEDIATJON AGENT EFFECTIVENESS TEST RAw DATA—Continued
(Date . Testing Date- 0, 7, 28 (Circle One). Initial Oil Weight: .J
Product Replicate I
Product Replicate
2
Concentration
ng/rng
Surrogate cor-
rected r ig /mg
Normalized to
marker rig/mg
n-C15
n-C16 .
n-C17
p r istane ..
n-C18
phytane
n-C19
n-C20
n-C21
n -C22
n-C23 ..
n-C24
n-C25
n-C26
n-C27
n-C28 ..
n -C29
n-C30
n -C32
n-C33
n-C34
n -C35
n -C36 -
a-androstane
Total alkanes
n-Cl 7.pnstane
n-C l8phytane
Aromatic Anatyte
naphthalene
Cl-riaphthalenes
C2-naphtha lenes
C3-naphthalenes
C4-naptithalenes
dibenzothiophene
fluorene
Ci-Iluorenes
C2-fluorenes
C3-fluorenes
Cl -dubenzothiophenes
C2-dibenzothiophenes
C3-dibenzothiophenes
phenanthrene
anthracene
CI-phenanthrenes
C2-phenanthrenes
C3-phenanthrenes
naphthobenzothio
Cl-naphthobenzothio
C2-naphthobenzothso
C3-naphthobenzothio
fluoranthene
pyrene
Ci-pyrenes
Ci-pyrenes
chrysene
benzo(a)anthracene
Ci-chrysenes
c2-chrysenes
benzo(b)l luoranth
benzo(k)fluoranth
benzo(e)pyrene
benzo(a)pyrene
perylene
indeno(1,2.3 -cd)per
benzo(g.h,i)pyrene
dibenz(ah)anthrac
a.frhopane
-------
Federal Register I Vol. 59, No. 17B I Thursday. September 15. 1994 / Rules and Regulations 47473
BIOREMEDIATION AGENT EFFECTiVENESS TEST RAW DATA—Continued
[ Data: . Testing Date. 0. 7.28 (Circle One). lrvtiai Oil Weight .1
Product Replicate I
Product Replicate
2
Concentration
rig/mg
Surrogate cor-
rected rig/mg
Norrnalited to
marker rig/mg
d8-rtaphthalene
dlO-phenanlhrene
d12 -chrysene
d12-perylene
Total aromabca
Gray weight oil
No oil degraders/n
VIII (b) Toxicity (Bioremediation Agents)
(Reserved I
IX Microbiological Analysis
(Biorcmedsotion Agents)
X Physical Properties of Dispersanti
Surface Washing Agent/Surface Collecting
Agent/Miscellaneous 0 ,1 Spill Control Agent
I Flesh Point (F)
2 Pour Point (°F)
3 Viscosity ______ at ______ °F (furol
seconds)
4 Specific Grsvity _____ at _____ CF
5 pH (10% solution if hydrocarbon based)
6 Surface Active Agents (Dispersants and
Surface Washing Agents) 2
7 Solvents (Dispersants end Surface
Washing Agents) 2
8 Additives (DispersanLi and Surface
Washing Agents)
9 Solubility (Surface Collecting Agents)
XI Analysis for Heavy Metals. Chlorinated
Hydrocothons. and Cyanide (Dispersants.
Surface Washing Agents, Surface Collecting
Agents, and Miscelianeous Oil Spill Control
Agents)
Compounds
Concentration (ppm)
Arsenic
Cadmium
Chromium
Copper
Lead
Mercury
Nickel
Zinc
Cyanide
Chlorinated Hydro-
carbons
References
(1) L T McCarthy. Jr .1 Wilder, and J S
Dorner Standard Dispersant Effectiveness
and Toxicity Tests EPA Report EPA—R2--73—
201 (May 1973)
(2) M F FLngaS. K.A Hughes, and M A
Schwertzer “Dispersant Testing at the
Environmental Emergencies Technology
Division “Proc Tenth Arctic Marine OiJspill
Program Technical Seminar 9—11 June.
‘lithe submitter claims that the iniorrnation
presented under this subheading is confidential.
this information should be submitted on a separate
aheet of paper clearly labeled according to the
subheading and entitled ‘Corslidenttal
Information
1987. Edmonton, Alberta, Canada
Conservation arid Protection, Environment
Canada pp 343—356
(3)) R Clayton, Jr , S.F.Tsang, V Frank, P
Marsden. and J Hamngtors Chemical Oil
Spill Dispersonts Evaluation of Three
Laboratory Procedures for Estimating
Performance Final report prepared by
Science Applications International
Corporation for U.S Environmental
Protection Agency, 1992.
(4)1 R. Clayton, Jr and I R Payne
Chemical Oil Spill Disperraiits Update State.
of.the.Art on Mechanisms of Actions and
Factors Influencing Performance With
Emphasis on Laboratory Studies Final report
prepared by Science Applications
International Corporation for U S
Environmental Protection Agency. 1992
(5) D P Middaugh. M J Hemmer, and L
Goodman Methods/or Spawning. Cultureing
and Conducting Toxicity-tests with Early Life
Stages of Four Anthenn,d Fishes the Inland
Silverside. Menidia beryllina. Atiari tic
Silverside, M menitha, Tidewater Silvers,de,
M penisulae. and California Grun ion,
Lesthes tenuis Office of Research and
Development. U S Environmental Protection
Agency, Washington. D C. EPA 600/8—87/
004. 1987
(6) U S EPA Methods for Measuring the
Acute Toxicity of Effluents and Receiving
Waters to Freshwater and Marine Organisms
Fourth edition U S Environmental
Protection Agency. Washington. DC EPA
600/4—90/027, 1991
(7) CS Douglas. el el “The Use of
Hydrocarbon Analyses for Environmental
Assessment and Remediation ‘ In P.1
Kostecki end E J Calabrese (ads),
Contaminated Soils. Diesel Fuel
Contamination Lewis Publishers. Ann
Arbor, MI. 1992
(8) Draft international Standard LSOIDIS
8708 “Crude Petroleum Oil—Determination
of Distillation Characteristics Using 15
Theoretical Plates Columns “International
Organization for Standardiz.ation
(9) Standard Methods for the Examination
of Water and Wastewazer, 17th Edition.
American Public Health Association. 1999
(10) U S EPA Test Met hod for Evaluating
Solid Waste SW—846 Third edition U S
Environmental Protection Agency. Office of
Solid Waste and Emergency Response.
Washington. DC, 1986
(ii) MC. Kennicutt I I “The Effect of
Biorernediation on Crude Oil Bulk and
Molecular Composition “In Oil Chemical
Pollution. 4 89—112, 1988
(12) C W Snedecor arid W C Cochran
Statistical Methods. 7th edition, The Iowa
State University Press. Ames. iowa, 1980
(13) DC Montgomery Design and
Analysis of Experiments Third edition John
WiLey & Sons. New York, NY, 1991
‘13 Appendix E to part 300 is added to read
as follows
Appendix ETa Part 300
Oil Spill Response
Table of Contents
1.0 Introduction
I I Background
1 2 Purpose/objective
1 3 Scope
1 4 Abbreviations
1 5 Definitions
2 0 National response system
2 1 Overview
2 2 Priorities
2 3 Responsibility
3.0 Components of national response
system and responsibilities
3 1 National
3 1 1 National Response Team
3 1 2 National Response Center
3.1 3 National Strike Force Coordination
Center
3 2 Regional
3.3 Area
3 3 1 On.scene coordinator
3 3 2 Area Committees
3 3 3 Special teams
4 0 Preparedness activities
4 1 Federal contingency plans
4 1 1 National contingency plan
4 1 2 Regional contingency plans
4 1 3 Area contingency plans
4 1 4 Fish and Wildlife and Sensitive
Environments Plan annex
4 2 OPA facility and vessel response
plans
4 3 Relation to others plans
4 3 1 Federal response plans
4 3 2 Tank vessel and facility response
plans
4 4 Pre-approval authority
4 5 Area response drills
5 0 Response operations
5 1 Phase 1—Discovery or notification
5 2 Phase Il—Preliminary assessment arid
initiation of action
5.3 Patterns of response
5 3 1 Determinations to initiate response
and special conditions
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47474 Federal_Register/Vol. 59,No. 178 / Thursday, September 15, 1994 / Rules and Regulations
53.2 General pattern of response
5 3 3 Containment, countermeasures, and
cleanup
5.3 4 Response to a substantial threat to
the public health or welfare
5 3 5 Enhanced activities during a spill of
national significance
5 3 6 Response to a worst case discharge
5 3 7 Multi-regional responses
5 3 8 Worker health and safety
54 Disposal
5 5 Natural resource trustees
5 5 1 Damage assessment
5 5.2 Lead administrative trustee
5 5 3 On-scene coordinator coordination
5 5 4 Dissemination of information
5 5 5 Responsibilities of trustees
5 6 Oil Spill Liability Trust Fund
5 6 1 Funding
5 6 2 Claims.
5 7 Documentation and cost recovery
5 8 National response priorities
6 0 Response coordination
6 1 Nongovernmental participation
6.2 Natural resource trustees
6 2 1 Federal agencies
622 State
6 2 3 Indian tribes
6 2 4 Foreign trustees
6 3 Federal agencies.
6 4 Other federal agencies
64 1 Department of Commerce
6,4 2 Department of Justice
6 4 3 Department of Defense
64 4 Department of Health and Human
Services
6 4 5 Department of the Interior
6 4 6 Department of Justice
6 4 7 Department of Labor
6 4 B Federal Emergency Management
Agency
64 9 Department of Energy
64 10 Department of State
6 4 11 General Services Administration
64 12 Department of Transportation
6 5 States and local participation in
response
I C Introduction
I I Background The Oil Pollution Act of
1990 (OPA) amends the Federal Water
Pollution Control Act (FWPCA), commonly
referred to as the Clean Vi ater Act (CWA), In
require the revision of the National Oil and
Hazardous Substances Pollution Contingency
Plan (NCP) In revising the NCP, the need to
separate the response requirements for oil
discharges and release of hazardous
substances, pollutants, and contaminants
became evident
1 2 Purposelobjectave This document
compiles general oil discharge response
requirements into one appendix to aid
participants and responders under the
notional response system (l ’.’RS) This
appendix provides the organizational
structure and procedures to prepare for and
respond to oil discharges Nothing in this
appendix alters the meaning or policy stated
in other sections or subparts of the NC?
1 3 Scope
(a) This appendix applies to discharges of
oil into or upon the navigable waters of the
United States and adjoining shorelines, the
waters of the contiguous zone, or waters of
the exclusive economic zone, or which may
affect the natural resources belonging to.
appertasning to. or under the exclusive
management authority of the United States
(b) This appendix is designed to facilitate
efficient, coordinated, and effective response
to discharges of oil in accordance with the
authorities of the CWA It addresses.
(1) The national response organization that
may be activated in response actions, the
responsibilities among the federal, state, and
local governments, and the resources that are
available for response
(2) The establishment of regional and area
contingency plans
(3) Procedures for undertaking removal
actions pursuant to section 311 of the CWA
(4) Listing of federal trustees for natural
resources for purposes of the CWA
(5) Procedures for the participation of other
persons in response actions.
(6) Procedures for compiling arid making
available cost documentation for response
actions
(7) National procedures for the use of
dispersants and other chemicals in removals
under the CWA
Ic) In implementing the NC? provisions
compiled in this appendix, consideration
shall be given to international assistance
plans and agreements, security regulations
and responsibilities based on international
agreements. federal statutes, and executive
orders Actions taken pursuant to the
provisions of any applicable international
joint contingency plans shall be consistent
with the NC? to the greatest extent possible
The Department of State shall be consulted,
as appropriate, prior to taking action that
may affect its activities
1 4 Abbreviations This section of the
appendix provides abbreviations relating to
oil
(e) Department and Agency Title
Abbreviations
ATSDR—Agency for Toxic Substances and
Disease Registry
CDC—Centers for Disease Control
DOG—Department of Commerce
DOD—Department of Defense
DOE—Department of Energy
DOI—Department of Intenor
DOj—Departnient of Justice
DOL—Departrnent of Labor
DOS—Department of State
DOT—Department of Transportation
EPA—Environmental Protection Agency
FEMA—Federal Emergency Management
Agency
GSA—General Services Administration
HHS—Departinent of Health and Human
Services
NIOSH—National Institute for Occupational
Safety and Health
NOAA—National Oceanic and Atmospheric
Administration
OSHA—Occupational Safety and Health
Administration
RSPA—Research and Special Programs
Administration
USCC—United States Coast Guard
USDA—United States Department of
Agriculture
Note: Reference is made in the NC? to both
the Nuclear Regulatory Commission and the
National Response Center In order to avoid
con fusion, the NC? will spell out Nuclear
Regulatory Commission and use the
abbreviation “NRC’ only with respect to the
National Response Center
(bI Operational Abbreviations
AG—Area Committee
ACP—Area Contingency Plan
DR.AT—District Response Advisory Team
DRG—District Response Group
ERT—Environmental Response learn
ESF—Emergency Support Functions
FCO—Federal Coordinating Officer
FRERP—Federal Radiological Emergency
Response Plan
FRP—Federal Response Plan
LEPC—L.ocal Emergency Planning Committee
NGP—National Contingency Plan
NPFC—National Pollution Funds Center
NRC—National Response Center
NRS—National Response System
NRT—National Response Team
NSF—National Strike Force
NSFCC—National Strike Force Coordination
Center
OSC—On-Scene Coordinator
OSLIF—Oil Spill Liability Trust Fund
POLREP—Pollution Report
PLkT—Public Information Assist Team
RCP—Regional Contingency Plan
RERT—Radiological Emergency Response
Team
RRT—Regtonal Response Team
SERC—State Emergency Response
Commission
SONS-Spill of National Significance
SSC—ScienttfIc Support Coordinator
SUPSALV—United States Navy Supervisor of
Salvage
USFWS—United States Fish and Wildlife
Service
1 5 Definitions Terms not defined in this
section have the meaning given by CERCLA.
the OPA, or the CWA This appendix restates
the NCP definitions relating to oil
Activation means notification by telephone
or other expeditious manner or. when
required, the assembly of some or all
appropriate members of the RRT or NRT
Area Committee (AC) as provided for b
CWA sections 311(a)(18) and (p)(4). means the
entity appointed by the President consisting
of members froni qualified personnel of
federal, state, and local agencies with
responsibilities that include preparing an
area contingency plan for an area designated
by the President
Area contingency plan (AC?) as defined b ’
CWA sections 311(a)(19) and ( )(4) means the
plan prepared by an Area Committee that is
developed to be implemented in conjunction
with the NC? and RGP, in part to address
removal of a worst case discharge and to
mitigate or prevent a substantial threat of
such a discharge from a vessel, offshore
facility, or onshore facility operating in or
near an area designated by the President
Biommediation agents means
microbiological cultures, enzyme additives.
or nutrient additives that are deliberately
introduced into an oil discharge arid that will
significantly increase the rate of
biodegradation to mitigate the effects of the
discharge
Burning agents means those additives thai,
through physical or chemical means,
improve the combustibility of the materials
to which they are applied
CERCLA is the Comprehensive
Environmental Response, Compensation and
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Federal Register / Vol. 59 . No. 178 / Thursday. September 15, 1994/ Rules arid Regulations 47475
Liability Act of 1980. as amended by the
Superfund Amendments and Reauthorization
Act of 1986
Chemical ogen Is means those elements.
compounds. or mixtures that coagulate.
disperse, dissolve, emulsify, foam, neutralize,
precipitate. reduce. solubiltze. oxidize.
concentrate, congeal. entrap, fix. make the
pollutant mass more ngid or viscous, or
otherwise facilitate the mitigation of
deleterious effects or the removal of the oil
pollutant from the water Chemical agents
include biological additives. dispersants.
sinking agents, miscellaneous oil spill
control agents. end burntng agents. but do
not include solvents
Claim in the case of a discharge under
CWA means a request. made in writing for
a sum certain, for compensation for damages
or removal costs resulting from an incident
Claimant as defined by section 1001 of the
OPA means any person or government who
presents a claim for compensation under
Title I of the OPA
Clean natural seawater means that the
source of this seawater must not be heavily
contaminated with industnal or ether types
of effluent
Coastal waters for the purpose of
classifying the size of discharges. means the
waters of the coastal zone except for the
Great Lakes and specified ports and harbors
on inland rivers.
Coastal zone as defined for the purpose of
the NC?, means all United States waters
sublect to the tide, United Stale! waters of
the Great Lakes, specified ports and harbors
nn inland rivers, waters of the contiguous
one, other waters of the high seas subject to
J e NC?, and the land surface or land
substrata, ground waters, and ambient air
proximal to those waters The tent coastal
zone delineates an area of federal
responsibility for response action Precise
boundaries are determined by EPA/USCG
agreements and identified in federal regional
contingency plans
Coast Guard District Response Group
(DRC) as provided for by C\\A sections
3t1(al(20l and ljll3l, means the entity
established by the Secretary of the
department in which the USCC is operating
within each USCG district and shall consist
of the combined USGG personnel end
equipment, including firefighting equipment.
of each port within the district, additional
prepositioned response equipment, end a
district response advisory team
Contiguous zone means the zone of the
high seas, established by the United States
under Article 24 of the Convention on the
Territorial Sea and Contiguous Zone, which
is contiguous to the territorial sea and which
extends nine miles seaward from the outer
limit of the territorial sea.
Damages as defined by section 1001 of the
OPA means damages specified in section
1002(b) of the Act, and includes the cost of
assessing these damages
Discharge as defined b) section 3111e)l2) of
the CWA, includes, but is not limited to. any
spilling, leaking, pumping. pouring, emitting,
“tying, or dumping of oil, but excludes
harges in compliance with a permit
..der sectton 402 of the OVA, discharges
resulting from circumstances identified and
reviewed and made a part of the public
record with respect to a permit issued or
modified under section 402 of the OVA, and
subject to a condition in such permit, or
continuous or anticipated intermittent
discharges from a point source, identified in
a permit or permit application under section
402 of the CWA, that are caused by events
occurrtng within the scope of relevant
operating or treatment systems For purposes
of the NCP, discharge also means substantial
threat of discharge
Dispersants means those chemical agents
that emulsify, disperse. or solubilize oil into
the water column or promote the surface
spreading of oil slicks to facilitate dispersal
of the oil into the water column
Exclusive econom ic zone as defined in
OPA section 1001, means the zone
established by Presidential Proclamation
Numbered 5030, dated March 10, 1983.
including the ocean waters of the areas
referred to as “eastern special areas” in
Article 3 (1 1 of the Agreement between the
United States of America and the Union of
Soviet Socialist Republics on the Maritime
Boundary, signed June 1, 1990
Facthtyas defined by section 1001 of the
OPA means any structure, group of
structures, equipment, or device (other than
a vessel) which is used for one or more of
the follnwing purposes exploring for,
drilling for, producing. storing, handling.
transferring, processing, or transporting oil
This term includes any motor vehicle. rolling
stock, or pipeline used (or one or more of
these purposes
Federal Response Plan (FR ?) means the
agreement signed by 25 federal departments
and agencies in April 1987 and developed
under the authorities of the Earthquake
Hazards Reduction Act of 1977 and the
Disaster Relief Aci of 1974, as amended by
the Stafford Disaster Relief Act of 1988
First federal offici al means the first federal
representative of a participating agency of the
National Response Team to arrive at the
scene of a discharge or a release This official
coordinates activities under the NCP and
may initiate, in consultation with the 050,
any necessary actions until the arrival of the
predesignated USC
indian tribe as defined in OPA section
1001. means any Indian tribe, band, nation,
or other organized group or community, but
not including any Alaska Native regional or
village corporation, which is recognized as
eligible for the special programs and services
provided by the United States to Indiana
because of their status as Indians and has
governmental authority over lands belonging
to or controlled by the Tribe
Inland wafers for the purposes of
classifying the size of discharges. means
those waters of the United States in the
inland zone, waters of the Great Lakes. and
specified ports and harbors on inland riven
Inland zone means the environment inland
of the coastal zone excluding the Great Lakes,
and specified ports and harbors nn inland
rivers The term inland zone delineates an
area of federal responsibility for response
action Precise boundaries are determined by
EPA1USCC agreements and identified in
federal regional contingency plans
Lead administrative trustee means a
natural resource trustee who is designated on
an incident’hy’incident basis for the purpose
of preassessment end damage assessment and
chosen by the other trustees whose natural
resources are affected by the incident The
lead administrative trustee facilitates
effective end efficient communication during
response operations between the OSC and
the other natural resource trustees
conducting activities associated with damage
assessment and is responsible for applying to
the OSC for access to response operations
resources on behalf of all trustees for
initiation of damage assessment
Lead agency means the agency that
provides the OSC to plan and implement
response actions under the NC ?
Miscellaneous oil spil l control agent is any
product. other than a dispersant, sinking
agent. surface washing agent, surface
collecting agent, bioremediation agent,
burning agent. or snrbent that can be used to
enhance oil spill cleanup, removal,
treatment, or mitigation
National Pollution Funds Center (NPFCI
means the entity established by the Secretary
of Transportation whose function is the
administration of the Oil Spill Liability Trust
Fund (OSLTFJ Among the NPFC’s duties are
providing appropriate access to the OSLTF
for federal agencies and siates for removal
actions end for federal trustees to initiate the
assessment of natural resource damages.
providing appropriate access to the OSLTF
for claims, and coordinating cost recovery
efforts.
National Response System (NRS) is the
mechanism for coordinating response act inns
by all levels of government in suppori of the
OSC The NRS is composed of the NRT,
RRTs, USC, Area Committees, and Special
Teams and related support entities
National Strike Fame (NSF) is a special
team established by the USCC. including the
three 115CC Strike Teams, the Public
Information Assist learn (PIAT). and the
National Strike Force Coordination Center
The NSF is available to assist USGs in their
preparedness and response duties
National Strike Force Ccorthnairnn Center
(NSFGC3. authorized as the National
Response Unit byCWA section 3llfa)(23)
and f ll2), means the entity established by the
Secretary of the department in which the
11 5CC is operating at Elizabeth Guy, North
Carolina. with respnnsibilities that include
administration of the IJSCG Strike Teams,
maintenance of response equipment
inveniories and logistic networks, and
conducting a natinnal exercise program
Natunil resources means land, fish.
wildlife, biota, air, water, groundwater.
drinking water supplies, and other such
resources belonging to, managed by. held in
trust by. appertatnung to. or otherwise
controlled by the United States (including
the resources of the exclusive economic zone
defined by the Magnuson Fishery
Conservation and Management Act of 1976).
any state or local government, any foreign
government, any fndian tribe, or, if such
resources are subject to a trust restriction an
alienation, any member of an Indian tribe
Navigable waters ss defined by 40 CFR
1102 means the wsters of the United States,
including the territorial seas The term
includes
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47476 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
(a) All waters that are currently used, were
used in the past. or may be susceptible to use
in interstate or foreign commerte. including
all waters that are subtect to the ebb and flow
of the tide,
(hi Interstate waters. including interstate
wetlands,
(c) All other waters such as intrastate lakes,
rivers, streams (including intermittent
streams), mudflats, sandfiats, and wetlands,
the use, degradation, or destruction of which
would affect or could affect interstate or
foreign commerce including any such waters
(1) That are or could be used by interstate
or foreign travelers for rv aational or other
purposes.
(2) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce, and
(3) That are used or could be used for
industrial purposes by industries in interstate
commerce
(d) All impoundments of waters otherwise
defined as navigable waters under this
Section.
)e) Tributaries of waters identified in
paragraphs (a) through (d) of this definition
including adjacent wetlands, and
(f) Wetlands adjacent to waters identified
in paragraphs (a) through (e) of this
definition Provided, that waste treatment
systems (other than cooling ponds meeting
the criteria of this paragraph) are not waters
of the United States
(g) Waters of the United States do not
include prior converted cropland.
Notwithstanding the determination of an
area’s status as pnor converted cropland by
any other federal agency. for the purposes of
the Clean Water Act, the final authority
regarding Clean Water Act jurisdiction
remains with EPA
Offshore facility as defined by section
311(a)(11) of the CWA 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 lund which 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
Oil as defined by section 321(a)(l) of the
CWA means oil of any kind or in any form.
including, but not lumited to. petroleum. fuel
oil, sludge, oil refuse, and oil mixed with
wastes other than dredged spoil Oil, as
defined by section 1001 of the OPA means
oil of any kind or in any form, including, but
not limited to. petroleum. fuel oil, sludge. oil
refuse, and oil mixed with wastes other than
dredged spoil, but does not include
petroleum, including crude oil or any
fraction thereof, which is specifically listed
or designated as a hazarslous substance under
subparagraphs (A) through (F) of section
101(14) of the Comprehensive Environmental
Response. Compensation. and Liability Act
(42 U S C 9601) and which is subject to the
provisions of that Act.
Oil Spill Liability Trust Fund means the
fund established under section 9509 of the
Internal Revenue Code of 1966 (26 U S C.
9509)
On-scene coordinator (USC) means the
federal official predesignated by the EPA or
the USCG to coordinate and direct response
under subpart D
Onshore facility as defined by section
311(a)(10) of the CWA. means any facility
(including. but not limited to. motor vehicles
and rolling stock) of any kind located in, on,
or under any land within the United States
other than submerged land
On-sate means the arsal extent of
contamination and all suitable areas in very
close proximity to the contamination
necessary for implementation of a response
action
Person as defined by section 1001 of the
OPA, means an individual, corporation
partnership, association, state, municipality.
commission, or political subdivision of a
state, or any interstate body
Public vessel as defined by section
311(a)(4)of the CWA, means a vessel owned
or bareboat-chartered and operated by the
United States, or by a state or political
subdivision thereof, or by a foreign nation,
except when such vessel is engaged in
commerce
Remove or removal as defined by section
311(u)(8) of the CWA, refers to containment
and removal of oil or hazardous substances
from the water and shorelines or the taking
of such other actions as may be necessary to
minimize or mitigate damage to the public
health or welfare (including, but not limited
to, fish, shellfish, wildlife, public and private
property, and shorelines and beaches) or to
the environment. For the purpose of the NC?,
the term also includes monitoring of action
to remove a discharge
Removal costs as defined by section 1001
of the OPA means the costs of removal that
are incurred after a discharge of oil has
occurred, or in any case in which there is a
substantial threat ole discharge of oil the
costs to prevent, minimize, or mitigate oil
pollution from such an incident
Responsible party as defined by section
1001 of the OPA means the following
(a) Vessels—In the case of a vessel, any
person owning. operating. or demise
chartering the vessel
(b) Onshore Facilities—In the case of an
onshore facility (other than a pipeline), any
person owning or operating the facility.
except a federal agency, state, municipality.
commission, or political subdivision of a
state, or any interstate body, that as the
owner transfers possession and right to use
the property to another person by lease,
assignment, or permit
(c) Offshore Facilities—In the case of an
offshore facility (other then a pipeline or a
deepwater port licensed under the Deepwater
Port Act of 1974 (33 U.S C 1501 el seq )), the
lessee or permittee of the area in which the
facility is located or the holder of a right of
use and easement granted under applicable
state law or the Outer Continental Shelf
I,ands Act (43 U SC 1303—1356) for the area
in which the facility is located (if the holder
is a different person than the lessee or
permitteel, except a federal agency. state.
municipality, commission, or political
subdivision of a state, or any interstate body,
that as owner transfers possession and right
to use the property to another person by
lease. assignment. or permit
(d) Deepwater Ports—In the case of a
deepwater port licensed under the Deepwater
Port Act of 1974 (33 U S.C. 1501—1524), the
licensee
(e) Pipelines—In the case ole pipeline, any
person owning or operating the pipeline
(1) Abandonment—In the case of an
abandoned vessel, onshore facility,
deepwater port, pipeline, or offshore facility,
the person who would have been responsible
parties immediately prior to the
abandonment of the vessel or facility
Sinking agents means those additives
applied to oil discharges to sink floatLng
pollutants below the water surface
Size classes of discharges refers to the
following size classes of oil discharges which
are provided as guidance to the OSC and
serve as the criteria for the actions delineated
in subpart D They are not meant to imply
associated degrees of hazard to public health
or welfare, nor are they a measure of
environmental injury Any oil discharge that
poses a substantial threat to public health or
welfare or the environment or results in
significant public concern shall be classified
as a major discharge regardless of the
following quantitative measures
(a) Minor discharge means a discharge in
inland waters of less than 1000 gallons of oil
or a discharge to the coastal waters of less
then 10,000 gallons of oil
(bi Medium discharge means a discharge of
1,000 to 10,000 gallons of oil to the inland
waters or a discharge of 10.000 to 100.000
gallons of oil to the coastal waters
(c) Major discharge means a discharge of
more than 10.000 gallons of oil to the inland
waters or more than 100.000 gallons of oil to
the coastal waters
Sorbents means essentially Inert and
insoluble materials that are used to remove
oil and hazardous substances from water
through adsorption, in which the oil or
hazardous substance is attracted to the
sorbent surface and then adheres to it,
absorption. in which the oil or hazardous
substance penetrates the pores of the sorbent
material, or a combination of the two
Sorbents are generally manufactured in
particulate form for spreading over an oil
slick or as sheets, rolls, pillows, or booms
The sorbent material may Consist of, but is
not limited to, the following materials
(a) Organic products—
(1) Peat moss or straw,
(2) Cellulose fibers or cork.
(3) Corn cobs,
(4) Chicken or duck feathers
(hI Mineral compounds—
(1) Volcanic ash or perlite.
(2) Vermiculite or zeolite
(c) Synthetic products—
(1) Polypropylene.
(2) Polyethylene.
(3) Polyurethane.
(4) Polyester
Specified ports and hathors means those
ports and harbor areas on inland rivers, and
land areas immediately adjacent to those
waters, where the USCG acts as
predesigriated on-scene coordinator Precise
locations are determined by EPAIUSCC
regional agreements and identified in federal
regional contingency plans and area
contingency plans
Spill ojnatwnal significance (SONS)
means a spill which due to its severity, size.
location, actual or potential impact on the
public health and welfare or the
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Federal Register /VoL 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations 47477
environment, or the necessary response
effort, is so complex that it requires
extraordinary coordination of federal, state,
local, and responsible party resources to
contain and cleanup the discharge
State means the several states of the United
States, the District of Columbia. the
Commonwealth of Puerto Rico. Guam,
American Samoa, the U S. Virgin Islands, the
Commonwealth of the Northern Marianas.
and any other territory or possession over
which the United Stales has )urisdiction For
purposes of the NCP, the term includes
indian tribes as defined in the NCP except
where specifically noted
Surface coflectrng o8ents means those
chemical agents that form a surface film to
control the layer thickness of oil
Surface washing agent is any product that
removes oil from solid surfaces, such as
beaches and rocks, through a detergency
mechanism and does not involve dispersing
or solubilizing the oil into the water column
Tank vessel as defined by section l0O of
CPA means a vessel that is constructed or
adapted to carry. or ibet carries, oil or
hazardous material in bulk as cargo or cargo
residue, and that (1) isa vessel of the United
States. (2) operates on the navigable waters,
or (3) transfers oil or hazardous material in
a place subject to the jurisdiction of the
United States
Threat of discharge, see definition for
discharge.
Trustee means en official of a federal
natural resources management agency
designated in subpart G of the NCP or a
designated state official or Indian tribe or, in
the case of discharges covered by the CPA.
a foreign government official, who may
pursue claims for damages under section
1006 of the OPA
Untied States when used in relation to
section 311 (a)(5) of the CWA. mean the
stateS, the District of Columbia. the
Commonwealth of Puerto Rico, the Northern
Mariana Islands, Guam, American Samoa, the
U S Virgin Islands. and the Pacific island
Governments
Vessel as defined by section 311(a)(3) of
the CWA means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a means
of transportation on water other than a public
vessel
Volunteer means any individual accepted
to perform services by the lead agency i hich
has authority to accept volunteer services (for
examples, see 16 U SC 742f1c)) A volunteer
is sub ect to the provisions of the authorizing
statute and the NCP
Worst case discharge as defined by section
311(a)(24) of the CWA means, in the case of
a vessel, a discharge in ad%erse weather
conditions of its entire cargo. and in the case
of an offshore facility or onshore facility, the
largest foreseeable discharge in adverse
weather conditions
2 0 Notional response system
2 1 Over, ,ew The national response
system (NRSI is the mechanism for
coordinating response actions by all levels of
government in support of the OSC The NRS
is composed of the National Response Team
(NRT). Regional Response Teams lRRTs). On-
scene coordinator (OSC), Area Committees,
and Special Teams and related support
entities The NRS functions as an incident
command system (ICS) under the direction of
the OSC Typicalof an ICS. the NRS is
capable of expanding or contracting to
accornniodate the response effort required by
the size or complexity of the discharge
22 Priorities. (a) Safety of human life
must be given the highest priority during
every response action This includes any
search and rescue efforts in the general
proximity of the discharge and the insurance
of safety of response personnel
(b) Stabilizing the situation to preclude the
event from worsening is the next priority All
efforts must be focused on saving a ‘vessel
that has been Involved in a grounding.
collision, fire or explosion, so that it does not
compound the problem Comparable
measures should be taken to stabilize a
situation involving a facility, pipeline, or
other source of pollution Stabilizing the
situation includes securing the source of the
spill end/or removing the remaining oil from
the container (vessel, tank, or pipeline) to
prevent additional oil spillage, to reduce the
need for follow.up response action, and to
minimize adverse impact to the envircinment
(c) The response must use all necessary
containment and removal tactics in a
coordinated manner to ensure a timely,
effective response that minimizes adverse
impact to the environment
(d) All parts of this national response
strategy should be addressed concurrently,
but safety and stabilization are the highest
priorities The OSC should not delay
containment end removal decisions
unnecessarily and should take actions to
minimize adverse impact to the environment
that begins as soon as a dtscharge occurs, as
well as actions to minimize further adverse
environmental impact from additional
discharges
(e) The priorities set forth in this section
are broad in nature, and should not be
interpreted to preclude the consideration of
other priorities that may arise on a site-
specific basis
2.3 Responsibility (a) The predesignated
OSC has the responsibility to direct response
actionS and coordinate all other response
efforts at the scene of en oil discharge or
threatened discharge The OSC monitors or
directs all federal, state, local, and private
removal actions. or arranges for the removal
of an actual or threatened oil discharge.
removing nd if necessary. requesting
authority to destroy a vessel Additionally.
the CWA requires the OSC to direct all
federal, state, local, and private removal
actions to any incident that poses a
substantial threat to the public health or
welfare
(b) Cleanup responsibility for an oil
discharge immediately falls on the
responsible party, unless the discharge poses
a substantial threat to public health or
welfare In a large percentage of oil
discharges, the responsible party shall
conduct the cleanup if the responsible party
does conduct the removal, the OSC shall
ensure adequate surveillance over hatever
actions are initiated
(1)11 effective actions are not being iaken
to eliminate the threat, or if removal is not
being properly done, the OSC should, to the
extent practicable under the circumstances.
so advise the responsible party If the
responsible party does not respond properly,
the OSC shall take appropriate response
actions end should notify the responsible
party of the potential liability for Federal
response costs incurred by the OSC pursuant
to the OPA and CWA Where practicable.
continuing efforts should be made to
encourage response by responsible parties
12)1! the Administrator of EPA or the
Secretary of the department in hich the
USCG is operating determines that there may
be an imminent and substantial threat to the
public health or welfare or the environment
of the United States (including fish, shellfish,
and wildlife, public and private property.
shorelines, beaches, habitats, and other living
and nonliving natural resources under the
jurisdiction or control of the United States,
because of an actual or threatened discharge
of oil from any vessel or offshore or onshore
facility into or upon the navigable waters of
the United States), the Administrator or
Secretary may request the U S Attorney
General to secure the relief from any person.
including the owner or operator of the vessel
or facility necessary to abate a threat or. after
notice to the affected state, take any other
action authorized by section 311 of the CWA
including administrative orders, that may be
necessary to protect the public health or
welfare
(3) The responsible party is liable for costs
of federal removal and damages in
accordance with section 3111f) of the CWA,
section 1002 of the CPA, and other federal
laws
(c) In those incidents where a discharge or
threat of discharge poses a substantial threat
to the public health or welfare of the United
States, the OSC shall direct all federal, state.
or private actions to remove the discharge or
to mitigate or prevent the threat of such a
discharge. as appropriate The OSC shall also
request immediate activation of the RRT
(d) During responses to any discharge the
OSC may request advice or support from the
Special Teams and any local support units
identified by ihe Area Committee Examples
include scientific advice from the Scientific
Support Coordinator (SSC). technical
guidance or prepositioned equipment from
the District Response Group (DRCJ. or public
information assistance from the National
Strike Force (NSF)
(e) When an oil discharge exceeds the
response capability of the region in which it
occurs, transects regional boundaries, or
involves a substantial threat to the public
health or welfare, substantial amounts of
property. or substantial threats to the natural
resources, the NRT should be activated as an
emergency response team IF appropriate the
RRT Chairman may contact the NRT
Chairman and request the NRT activation
3 0 Components of national response
system and responsibilities
The NRS is the mechanism for
coordinating response actions by all levels of
government in support of the OSC The t’.RS
organization is divided into national,
regional. and area levels The national level
comprises the NRT. the National Strike Force
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47478 Federal Register / Vol. 59.
No. 178 / Thursday, September 15, 1994 / Rules and Regulations
Coordination Center (NSF ), and the
National Response Center (NRC) The
regional level is cximprised of the RRT. The
area level is made up of the OSC, Special
Teams, and Area Committees. The basic
framework for the response management
structure isa system (e.g.. a unified
command system), that brings together the
functions of the federal government, the state
government. end the responsible party to
achieve an effective and efficient response,
where the OSC retains authonty
3 2 National.
3 2.2 National response team (a) National
planning end coordination is accomplished
through the NRT. The NRT consists of
representatives from the USCG, EPA. Federal
Emergency Management Agency (FEMA),
Department of Defense (DOD). Department of
Energy (DOE), Department of Agriculture
(DOA), Department of Commerce (DOC),
Department of Health and Human Services
(HI-IS). Department of the Interior (DCI).
Department of Justice fDOJ). Department of
Labor (DOL), Department of Transportation
(DOT). Department of State (DOS). Nuclear
Regulatory Commission, and General
Services Administration (GSA) Each agency
shall designate a member to the team end
sufficient alternates to ensure representatinn.
as agency resources permit. The NRT will
consider requests for membership on the
NRT from other agencies Other agencies may
request membership by forwarding such
requests to the chair of the NRT (see
Figure 1).
(b) The chair of the NRT shall be the
representative of the EPA and the vice chaff
shall be the representative of the USCG, with
the exception of periods of activation because
of response action During activation, the
chair shall be the member agency providing
the OSC. The vice chair shall maintain
records of NRT activities along with national,
regional. and area plans for response actions
(c) While the NRT desires to achieve a
consensus on all matters brought before it,
certain matters may prove unresolvable by
this means. In such cases, each a ency
servtng as a participating agency on the NRT
may be accorded one vote in NRT
proceedings
(d) The NRT may establish such bylaws.
procedures. and committees as it deems
appr’opnate to further the purposes for which
it is established.
(el The NRT shall evaluate methods of
responding to discharges, shall recommend
any changes needed in the response
organization. and shall recommend to the
Administrator o( EPA changes to the NC?
designed to improve the effectiveness of the
national response sysiem. including drafting
of regulatory language
(0 The NRT shell provide policy and
program direction to the RRTs
(g) The NRT may consider and make
recommendations to appropriate agencies on
the training. equipping. and protection of
response teams and necessary research.
development, demonstration, and evaluation
to improve response capabilities
B1WNO CODE O56G- C-P
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Frgure I
8ILLINO GODE 6560-60-C
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47480 Federal Register / Vol. 59,
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(h) Direct planning and preparedness
responsibilities of the NRT include.
(1) Maintaining national preparedness to
respond to a major discharge of oil that is
beyond regional capabilities.
(2) Monitoring incoming reports from all
RRTs and activating for a response action.
when necessary,
(3) Coordinating a national program to
assist member agencies in preparedness
planning and response, and enhancing
coordination of member agency preparedness
programs,
(4) Developing procedures, in coordination
with the NSFCX, as appropriate, to ensure
the coordination of federal, state, and local
governments, and private response to oil
discharges.
(5) Monitoring response-related research
and development, testing, and evaluation
activities of NRT agencies to enhance
coordination, avoid duplication of effort, and
facilitate research in support of response
activities,
(6) Developing recommendations for
response training and for enhancing the
coordination of available resources among
agencies with training responsibilities under
the NCP.
(7) Reviewing regional responses to oil
discharges, including an evaluation of
equipment readiness and coordination
among responsible public agencies and
private organizations. and
(8) Assisting in developing a national
exercise program. in coordination with the
NSFCC to ensure preparedness and
coordination nationwide
Ci) The NRT shall consider matters referred
to it for advice or resolution by an RRT
(j) The NRT should be activated as an
emergency response team
(1) When an oil discharge
(A) Exceeds the response capability of the
region in which it occurs.
(B) Transects regional boundaries, or
(C) Involves a substantial threat to the
public health or welfare, substantial amounts
of property, or substantial threats to natural
resources,
(2) If requested by any NRT member
(k) When activated for a response action.
the NRT will meet at the call of the chair and
may
(1) Monitor and evaluate reports from the
OSC and recommend to the OSC. through the
RET, actions to combat the discharge.
(2) Request other federal, state and local
governments, or private agencies, to provide
resources under their existing authorities to
combat a discharge. or to monitor response
operations . and
(3) Coordinate the supply of equipment.
personnel. or technical advice to the affected
region from other regions or districts
3 1 2 National response center (a) The
NRC, located at US Headquarters. is the
national communications center,
continuously manned for handling activities
related to response actions, including those
involving discharges of oil The NRC acts as
the single point of contact for all pollution
incident reporting. and as the NET
communications center ‘.otice of discharges
must be made by telephone through a toll
free number or a special number
(Telecommunication Device for the Deaf
(TDD) and collect calls accepted) Upon
receipt of a notification of discharge, the NRC
shall promptly notify the USC The telephone
report is distributed to any interested NRT
member agency or federal entity that has
established a written agreement or
understanding with the NRC
(b) The Commandant, USCG, in
conjunction with other NRT agencies.
provides the necessary personnel.
communications, plotting facilities, and
equipment for the NRC
Cc) Notice of an oil discharge in an amount
equal to or greater than the reportable
quantity must be made immediately in
accordance with 33 CFR part 153, subpart B
Notification will be made to the NRC Duty
Officer, HQ USCG, Washington. DC.
telephone (800) 424—8802 or (202) 267—2675
All notices of discharges received at the NRC
will be relayed immediately by telephone to
the OSC
3 2.3 Notionalstrike force coordination
center NSFCC, located in Elizabeth City,
North Carolina. may assist the USC by
providing information on available spill
removal resources, personnel, and
equipment The NSFCC can provide the
following support to the OSC
(a) Technical assistance, equipment. and
other resources to augment the OSC staff
during spill response,
(b) Assistance in coordinating the use of
private and public resources in support of the
OSC during a response to or a threat of a
worst case discharge of oil,
Cc) Review of the area contingency plan,
including an evaluation of equipment
readiness and coordination among
responsible public agencies and private
organizations,
Cd) Assistance in locating spill response
resources for both response and planning.
using the NSFCC’s national and international
computerized Inventory of spill response
resources.
Ce) Coordination and evaluation of
pollution response exercises, and
If) Inspection of district prepositioned
pollution response equipment
3 2 Regional (a) Regional planning and
coordination of preparedness and response
actions is accomplished through the RET In
the case of a discharge of oil, preparedness
activities shall be carried out in conjunction
with Area Committees as appropriate The
RRT agency membership parallels that of the
NRT. but also includes state and local
representation The RRT provides (I) the
appropriate regional mechanism for
development and coordination of
preparedness activities before a response
action is taken and for coordination of
assistance and advice to the OSC during such
response actions, and (2) guidance to Area
Committees, as appropriate, to ensure inter-
area consistency and consistency of
individual ACPs with the RGP and NCP
fb I The two principal components of the
RRT mechanism are a standing team, which
consists of designated representatives from
each participating federal agency. state
governments, and local governments (as
agreed upon by the states). and incident-
specific teams formed from the standing team
when the RET is activated for a response On
incident-specific teams, participation by the
RET member agencies will relate to the
technical nature of the incident and its
geographic location
(1) The standing team’s jurisdiction
corresponds to the standard federal regions.
except for Alaska, Oceania in the Pacific. and
the Caribbean area, each of which has a
separate standing RET The role of the
standing RRT includes communications
systems and procedures. planning.
coordination, training, evaluation.
preparedness. and related matters on a
regionwide basis It also includes
coordination of Area Committees for these
functions in areas within their respective
regions, as appropriate
(2) The role of the incident-specific team
is determined by the operational
requirements of the response to a specific
discharge Appropriate levels of acti’. ation
and/or notification of the incident-specific
RET, including participation by state and
local governments, shall be determined by
the designated RET chair for the incident.
based on the RCP The incident-specific RET
supports the designated OSC The designated
USC manages response efforts and
coordinates all other efforts at the scene of a
discharge
(c) The representatives of EPA and the
US shall act as co-chairs of the RRTs
except when the RET is activated ‘hen the
RET is activated for response actions, the
chair is the member agency providing the
OSC
Cd) Each participating agency should
designate one member and at least one
alternate member to the RET Agencies
whose regional subdivisions do not
correspond to the standard federal regions
may designate additional representatives to
the standing RET to ensure appropriate
coverage of the standard federal region
Participating states may also designate one
member and at least one alternate member to
the RET Indian tribal governments may
arrange with the RET for representation
appropriate to their geographical location
All agencies and states may also pro’. ide
additional representatives as obser’.ers to
meetings of the RET
(e) RET members should designate
representatives and alternates from their
agencies as resource personnel for RET
activities, including RET work planning, and
membership on incident-specific teams in
support of the OSCs
(f) Federal RET members or their
representatives should pro’. ide OSCa with
assistance from their respecti’.e federal
agencies commensurate with agency
responsibilities, resources, and capabilities
within the region During a response action
the members of the RET should seek to make
available the resources of their agencies to
the OSC as specified in the RCP and ACP
(g) RET members should nominate
appropriately qualified representati’.es from
their agencies to work with OSCs in
developing and maintaining ACPs
(h) Affected states are encouraged to
participate actively in all RET acti’. ities Each
state Governor is requested to assign an office
or agency to represent the state on the
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Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations 47481
appropriate RRT. to designate representatives
to work with the RRT in developing RCPs. to
plan for, make available, and coorthnate state
resources for use in response actions. and to
serve as the contact point for coordination of
response with local government agencies.
whether or not represented on the RRT. The
state’s RRT representative should keep the
State Emergency Response Commission
(SERC) apprised of RRT activities and
coordinate RRT activities with the SERC.
Local governments are invited to participate
in activities on the appropriate RRT as
provided by state law or as arranged by the
state’s representative Indian tribes are also
invited to participate in such activities
(a) The standing RRT shall recommend
changes in the regiona ,1 response organization
as needed, revise the RCP as needed, evaluate
the preparedness of the participating
agencies and the effectiveness of ACPs for the
federal response to discharges, and provide
technical assistance for preparedness to the
response community. The RRT should.
(1) Review and comment, to the extent
practicable, on local emergency response
plans or other issues related to the
preparation, implementation, or exercise of
such plans upon request of a local emergency
planning committee,
(2) Evaluate regional and local responses to
discharges on a continuing basis, considenng
available legal remedies, equipment
readiness, and coordination among
responsible public agencies and private
organizations, and recommend
improvements;
(3) Recommend revisions of the NCP to the
NRT, based on observations of response
operations.
(4) Review OSC actions to ensure that RCPs
and ACPs are effective,
(51 Encourage the state and local response
community to improve its preparedness for
response,
(6) In coordination with the Area
Committee and in accordance with any
applicable laws, regulations, or requirements,
conduct advance planning for use of
dispersants, surface washing agents, surface
collecting agents. burning agents,
bioremediatiori agents, or other chemical
agents in accordance with subpart J of this
part.
(7) Be prepared to provide response
resources to major discharges or releases
outside the region,
(8) Conduct or participate in training and
exercises as necessary to encourage
preparedness activities of the response
community within the region.
(9 Meet at least semiannually to review
response actions carried out during the
preceding period, consider changes in RCPs.
and recommend changes in ACPs:
(10) Provide letter reports on RRT activities
to the NRT twice a year. no later than January
31 and July 31, and
( I i) Ensure maximum participation in the
national exercise program for announced and
unannounced exercises.
(j)(’l) The RRT may be activated by the
chair as an incident.specific response team
when a discharge
(A) Exceeds the response capability
available to the OSC in the place where it
occurs,
(B) Transects state boundaries,
(C) May pose a substantial threat to the
public health or welfare, or to regionally
significant amounts of property, or
(Dl Is a worst case discharge, as defined in
section 1 5 of this appendix
(2) The RRT shall be activated during any
discharge upon a request from the OSC, or
from any RRT representative. to the chair of
the RRT Requests for RRT activation shall
later be confirmed In writing Each
representative, or an appropriate alternate,
should be notified immediately when the
RRT is activated
(3) During prolonged removal or remedial
action, the RRT may not need to be activated
or may need to be activated only in a limited
sense, or may need to have available only
those member agencies of the RRT who are
directly affected or who can provide direct
response assistance
(4) When the RRT is activated for a
discharge or release, agency representatives
will meet at the call of the chair and may:
(A) Monitor and evaluate reports from the
OSC, advise the OSC on the duration and
extent of response, and recommend to the
OSC specific actions to respond to the
discharge,
(B) Request other federal, state, or local
governments, or private agencies, to provide
resources under their existing authorities to
respond to a discharge or to monitor response
operations.
(C) Help the OSC prepare information
releases for the public and for
communication with the NRT,
(I)) If the circumstances warrant, make
recommendations to the regional or district
head of the agency providing the OSC that a
different OSC should be designated, and
CE) Submit pollution reports to the NRC as
significant developments occur
(5) RCPs shall specify detailed criteria for
activation of RRTs
(6) At the regional level, a Regional
Response Center (RRC) may provide facilities
and personnel for communications.
information storage, and other requirements
for coordinating response The location of
each RRC should be provided in the RCP
(7) When the RRT is activated, affected
states may participate in all RRT
deliberations State government
representatives participating in the RRT have
the same Status 85 any federal member of the
RRT
(8) The RRT can be deactivated when the
incident-specific RRT chair determines that
the OSC no longer requires RRT assistance
(9) Notification of the RRT may be
appropnate when full activation is not
necessary, with systematic communIcation of
pollution reports or other means to keep RRT
members informed as to actions of potential
concern to a particular agency, or to assist in
later RRT evaluation of regionwide response
effectiveness.
(k) Whenever there is insufficient nat.onal
policy guidance on a matter before the RRT,
a technical matter requiring solution, a
question concerning interpretation of the
NCP. or a disagreement on discretionary
actions among RRT members that cannot be
resolved at the regional level, it may be
referred to the NRT for advice
33 Area
3 3 2 On-scene coordinator The OSC is
the federal official predesigriated by EPA or
the USCG to coordinate and direct federal
responses under subpart D of the NCP The
tJScX shall provide OSCs for oil discharges.
including discharges from facilities and
vessels under the jurisdiction of another
federal agency. within or threatening the
coastal zone EPA shall provide OSCs for
discharges Into or threatening the inland
zone In carrying out a response. the OSC
may direct or monitor all federal, state, and
private actions to remove a discharge In
contingency planning and removal, the OSC
coordinates, directs, and reviews the work of
other agencies. Area Committees, responsible
parties, and contractors to assure compliance
with the NCP, decision document, consent
decree, administrative order, and lead
agency-approved plans applicable to the
response
332 Areacornm,ttees (a) Area
Committees shall be responsible for (1)
preparing an ACP for their areas. (2) working
with appropriate federal, state, and local
officials to enhance the contingency planning
of those officials and to assure pre-planning
of joint response efforts, including
appropriate procedures for mechanical
recovery, dispersal, shoreline cleanup.
protection of sensitive environmental areas.
and protection, rescue, and rehabilitation of
fisheries and wildlife, and (33 working with
eppropnate federal, state. and local officials
to expedite decisions for the use of
dispersants and other mitigating substances
and devices
(b) The OSC is responsible for overseeing
development of the ACP in the area of the
OSC’s responsibility The ACP, when
implemented in con junction with other
provisions of the N P. shall be adequate to
remove a worst case discharge, and to
mitigate arid prevent a substantial threat of
such a discharge, from a vessel. offshore
facility, or onshore facility operating in or
near the area
3 3 3 Specrnl teams (a) Special teams
include NOAAJEPA’s SSCs, EPA’s
Environmental Response Team (ERT), and
USCG’s NSF. DRGs, and NPFC (see Figure 2)
(b) SSCs may be designated by the OSC as
the principal advisors for scientific issues.
communication with the scientific
community, and coordination of requests for
assistance from state and federa) agencies
regarding scientific studies The SSC strives
for a consensus on scientific issues affecting
the response. but ensures that differing
opinions within the community are
communicated to the OSC,
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47482 Federal Register / Vol. 59. No. 178 / Thursday, September 15, 1994 / Rules and Regulations
(1) Generally, SSCs are provided by NOAA
in the coastal zones, and by EPA in the
inland zone OSC requests for SSC support
may be made directly to the SSC assigned to
the area or to the agency member of the RRT.
NOAA SSCs may also be requested through
NOAA’s SSC program office in Seattle. WA.
NOAA SSCs are assigned to tJSCG Districts
and are supported by a scientific support
team that includes expertise in
environmental chemistry, oil slick tracking.
pollutant trar sport modeling, natural
resources at risk, environmental tradeoffs of
countermeasures end cleanup, and
information management.
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Figure 2
National Response System Special Teams
BILLiNG COOE e660—80—C
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47484 Federal Register / Vol. 59, No. 178 / Thursday, September 15. 1994/Rules and Regulations
(2) During a response. the SSC serves on
the federal OSC’s staff and may, at the
request of the OSC, lead the scientific team
and be responsible for providing scientific
support for operational decisions and for
coordinating on-scene scientific activity.
Depending on the nature and location of the
incident, the SSC integrates expertise from
governmental agencies. universities,
community representatives, and industry to
assist the OSC in evaluating the hazards and
potential effects of releases and in developing
response strategies
(3) At the request of the OSC. the SSC may
facilitate the OSC’s work with the lead
administrative trustee for natural resources to
ensure coordination between damage
assessment data collection efforts and data
collected in support of response operations.
(4) SSCs support the RRTs and the Area
Committees in preparing regional and area
contingency plans and in conducting spill
training and exercises For area plans. the
SSC provides leadership for the synthesis
and integration of environmental information
required for spill response decisions in
support of the OSC.
(c)(1) SUPSALV has an extensive salvage/
search and recovery equipment inventory
with the requisite knowledge and expertise to
support these operations. including
specialized salvage. firefigliting. and
petroleum. oil and lubricants offloading
capability.
(2) When possible, SUPSALV will provide
equipment for training exercises in support
of national and regional contingency
planning objectives
(3) The OSC/RPM may request assistance
directly from SUPSALV Formal requests are
routed through the Chief of Naval Operations
(N312)
(d) The ERT is established by the EPA in
accordance with its disaster and emergency
responsibilities The ERT has expertise in
treatment technology, biology, chemistry.
hydrology, geology and engineering
(1) The ERT can provide aci ess to special
decontamination equipment and advice to
the USC in hazard evaluation, risk
assessment, multimedia sampling and
analysis program. on-site safety, including
development and implementation plans,
cleanup techniques and priorities, water
supply decontamination and protection;
application of dispersants. environmental
assessment, degree of cleanup required, and
disposal of contaminated material The ER’l’
also provides both introductory and
intermediate level training courses to prepare
response personnel
(2) OSC or RRT requests for ERT sa.ipport
should be made to the EPA representative on
the RRT. EPA Headquarters. Director.
Emergency Response Division. or the
appropriate EPA regional emergency
coordinator
(e) The NSF is a special team established
by the USCG, Including the three USC
Strike Teams, the Public Information Assist
Team (FIAT), and the NSFCC. The NSF is
available to assist OSCs in their preparedness
and response duties.
(1) The three Strike Teams (Atlantic, Gulf,
and Pacific) provide trained personnel and
specialized equipment to assist the USC in
training for spill response. stabilizing and
containing the spill, and in monitoring or
directing the response actions of the
responsible parties and/or contractors The
OSC has a specific team designated for initial
contact and may contact that team directly
for any assistance
(2) The NSFCX can provide the following
support to the OSC
—Technical assistance, equipment and
other resources to augment the USC staff
during spill response,
—Assistance in coordinating the use of
private and public resources in support of the
OSC during a response to or a threat of a
worst case discharge of oil.
—Review of the A P. including an
evaluation of equipment readiness and
coordination among responsible public
agencies and private organizations.
—Assistance in locating spill response
resources for both response and planning.
using the NSFCC’s national and international
computerized inventory of spill response
resources.
—Coordination and evaluation of pollution
response exercises, and
—Inspection of district prepositioned
pollution response equipment
(3) PIAT is an element of the NSFCC staff
which is available to assist USGS to meet the
demands for public information during a
response or exercise Its use is encouraged
any time the USC requires outside public
affairs support. Requests for PIAT assistance
may be made through the NSFCC or NRC.
(0(1) The DRG assists the USC by
providing technical assistance, personnel.
and equipment. including pre-positioned
equipment Each DRG consists of all Coast
Guard personnel and equipment, including
marine firefighting equipment. in its district.
additional pre.positioned equipment. and a
District Response Advisory Team (DRAT)
that is available to provide support to the
OSC in the event that a spill exceeds local
response capabilities Each DRG
(A) Shall provide technical assistance,
equipment, and other resources as available
when requested by an OSC through the
USCX representative to the RRT,
(B) Shall ensure maintenance of all US
response equipment within its district,
(C) May provide technical assistance in the
preparation of the ACP. and
(D l Shall review each of those plans that
affect its area of geographic responsibility
(2) In deciding where to locate personnel
and pre.posltioned equipment, the USCG
shall give priority emphasis to’
(A) The availability of facilities for loading
and unloading heavy or bulky equipment by
barge.
(B) The proximity to an airport capable of
supporting large military transport aircraft;
(C) The flight time to provide response to
oil spills in all areas of the Coast Guard
district with the potential for marine
casualties,
(D) The availability of trained local
personnel capable of responding in an oil
spill emergency; and
(E) Areas where large quantities of
petroleum products are transported.
(g) The NPFC is responsible for
implementing those portions of Title I of the
OPA that have been delegated to the
Secretary of the department in which the
Coast Guard is operating. The NPFC is
responsible for addressing funding issues
arising from discharges and threats of
discharges of oil The NPFC
(1) Issues Certificates of Financial
Responsibility to owners and operators of
vessels to y for costs and damages that are
incurred by their vessels as a result of oil
discharges, (2) Provides funding for various
response organizations for timely abatement
and removal actions related to oil discharges;
(3) Provides equitable compensation to
claimants who sustain costs and damages
from oil discharges when the responsible
party fails to do so.
(4) Recovers monies from persons liable for
costs and damages resulting from oil
discharges to the full extent f liability under
the law, and
(5) Provides funds to initiate natural
resources damage assessment
(h) The organizational concepts of the
national response system discussed above are
depicted in Figure 3.
4.0 Preparedness activities
4 1 Federal contingency plans This
section summarizes emergency preparedness
activities relating to discharges of oil and
describes the three levels of contingency
planning under the national response system.
4 11 National contingency plan (a) The
NCP provides for efficient, coordinated, and
effective response to discharges of oil in
accordance with the authorities of the CWA
It provides for
(1) The national response organization that
may be activated in response actions and
specifies responsibilities among the federal,
state, and local governments and describes
resources that are available for response.
(2) The establishment of requirements for
federal. regional. and area contingency plans.
(3) Procedures for undertaking removal
actions pursuant to section 311 of the C’WA.
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Figure 3
National Response System Organization
BILLDING cOOS e660-60-C
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47486 Federal Register / Vol. 59. No. 178 / Thursday, September 15, 1994 / Rules and Regulations
(4) Procedures for Involving state
governments in the initiation, development,
selection, end implementation of response
actions,
(5) Listing of federal trustees for natural
resources for purposes of the CWA,
(6) Procedures for the participation of other
persons in response actions, and
(7) National procedures for the use of
dispersants and other chemicals in removals
under the CWA
(b) In implementing the NCP,
consideration shall be given to international
assistance plans and agreements, security
regulations and responsibilities based on
international agreements. federal statutes.
and executive orders Actions taken pursuant
to the provisions of any applicable
international joint contingency plans shall be
consistent with the NCP, to the greatest
extent possible. The Department of State
shell be consulted, as appropriate, prior to
taking action which may affect its activities
4 1 2 Regional contingency plans The
RRTs, working with the states, shell develop
federal RCPs for each standard federal region,
Alaska. Oceania in the Pacific. and the
Caribbean to coordinate timely. effective
response by various federal agencies and
other organizations to discharges of oil RC s
shall, us appropriate, include information on
all useful facilities and resources in the
region, from government. commercial,
academic, end other sources. To the greatest
extent possible, RCPs shall follow the format
of the NCP and be coordinated with state
emergency response plans, ACPs, and Title
Ill local emergency response plans Such
coordination should be accomplished by
working with the SERCs in the region
covered by the RCP RCPs shall contain lines
of demarcation between the inland and
coastal zones, as mutually agreed upon by
the USCG and the EPA
4 1 3 Area contingency plans (a) Under
the direction of an OSC and subject to
approval by the lead agenc). each Area
Committee, in consultation with the
appropnate RRTs, DRGs, the NSFCC, SSCs.
Local Emergency Planning Committees
(LEPCs), and SERCs. shall develop an ACP
for its designated area This plan, when
implemented in conjunction with other
provisions of the NCP, shall be adequate to
remove a worst case discharge, and to
mitigate or prevent a substantial threat of
such a discharge, from a vessel, offshore
facility, or onshore facility operating in or
near the area
(b) The areas of responsibility may include
several Title III local planning distncts. or
parts of such districts In developing the
ACP, the OSC shall coordinate with affected
SERCs and LEPCS The A P shall provide for
a well coordinated response that is integrated
and compatible to the greatest extent possible
with all appropriate response plans of state,
local, and non-federal entities, and especially
with Title Ill local emergency response plans.
(c) The A I’ shall include the following’
(1) A description of the area covered by the
plan. including the areas of special economic
or environmental importance that might be
impacted by a discharge.
(2) A description in detail of the
responsibilities of an owner or operator and
of federal, state, and local agencies in
removing a discharge, and In mitigating or
preventing a substantial threat of a discharge;
(3) A list of equipment (including
flrefighting equipment), dispersants. or oth’er
mitigating substances and devices, and
personnel available to an owner or operator
and federal, state, and local agencies, to
ensure an effective and immediate removal of
a discharge. and to ensure mitigation or
prevention of a substantial threat of a
discharge (this may be provided in an
appendix or by reference to other relevant
emergency plans (e g, state or LEPC plans).
which may include such equipment lists);
(4) A description of procedures to be
followed for obtaining an expedited decision
regarding the use of dispersants. and
(5) A detailed description of how the plan
is integrated into other ACPs and tank vessel.
offshore facility, and onshore facility
response plans approved by the President,
and into operating procedures of the NSFCC.
4] 4 Fish and Wildlife and sensitive
environments plan annex (a) In order to
provide for coordinated, immediate and
effective protection, rescue, and
rehabilitation of. and minimization of risk of
injury to, fish and wildlife resources and
habitat, Area Committees shall incorporate
into each ACP a detailed annex containing a
Fish and Wildlife and Sensitive
Environments Plan that is consistent with the
RCP and NCP. The annex shall be prepared
in consultation with the U.S. Fish and
Wildlife Service (F’WS) and NOAA and other
interested natural resource management
agencies and parties It shall address fish and
wildlile resources and their habitat, and shall
include other areas considered sensitive
environments in a separate section of the
annex, based upon Area Committee
recommendations The annex shall provide
the necessary information and procedures to
immediately and effectively respond to
discharges that may adversely affect fish and
wildlife and their habitat and sensitive
environments, including provisions for a
response to a worst case discharge Such
information shall include the identification
of appropriate agencies and their
responsibilities, procedures to notify these
agencies following a discharge or threat of a
discharge. protocols for obtaining required
fish and wildlife permits and other necessary
permits. and provisions to ensure
compatibility of annex-related activities with
removal operations
(b) The annex shall
(1) Identify and establish priorities for fish
and wildlife resources and their habitats and
other important sensitive areas requiring
protection from any direct or indirect effects
from discharges that may occur These effects
include, but are not limited to, any seasonal
or historical use, as well as all critical,
special, significant or otherwise designated
protected areas
(2) Provide a mechanism to be used during
a spill response for timely identification of
protection priorities of those fish and wildlife
resources and habitats and sensitive
environmental areas that may be threatened
or inlured by a discharge. These include as
appropriate, not only marine and freshwater
species . habitats, and their food sources, but
also terrestrial wildlife and their habitats that
may be affected directly by onshore oil or
indirectly by oil-related factors, such as loss
or contamination of forage. The mechanism
shall also provide for expeditious evaluation
and appropriate consultations on the effects
to fish and wildlife, their habitat. and other
sensitive environments from the application
of chemical countermeasures or other
countermeasures not addressed under
paragraph (3) of this section
(3) Identify potential environmental effects
on fish and wildlife, their habitat, and other
sensitive environments resulting from
removal actions or countermeasures,
including the option of no removal Based on
this evaluation of potential environmental
effects, the annex should establish priorities
for application of countermeasure and
removal actions to habitats within the
geographic region of the ACP The annex
should establish methods to minimize the
identified effects on fish and wildlife because
of response activities, including, but not
limited to, disturbance of sensitive areas and
habitats, illegal or inadvertent taking or
disturbance of fish and wildlife or specimens
by response personnel, and fish and wildlife.
their habitat, and environmentally sensitive
areas coming in contact with various
cleaning or bioremediation agents
Furthermore, the annex should identify the
areas where the movement of oiled debris
may pose a risk to resident, transient, or
migratory fish and wildlife, and other
sensitive environments and should discuss
measures to be considered for removing such
oiled debris in a timely fashion to reduce
such risk
(4) Provide for pre.approval of application
of specific countermeasures or removal
actions that, if expeditiously applied, will
minimize adverse spill-induced impacts to
fish and wildlife resources, their habitat, and
other sensitive environments Such pre-
approval plans must be consistent with
paragraphs (2) and (3) of this section and
subpart J requirements of the NCP, and must
have the concurrence of the natural resource
trustees
(5) Provide monitoring plan(s) to evaluate
the effectiveness of different
countermeasures or removal actions in
protecting the environment Monitoring
should include “set-aside” or “control”
areas, where no mitigative actions are taken
(6) Identify and plan for the acquisition
and utilization of necessary response
capabilities for protection. rescue, and
rehabilitation of fish and wildlife resources
and habitat This may include appropriately
permitted private organizations and
individuals with appropriate expertise and
experience The suitable organizations
should be identified in cooperation with
natural resource law enforcement agencies
Such capabilities shall include, but not be
limited to. identification of facilities and
equipment necessary for deterring sensitive
fish and wildlife from entering oiled areas,
and for capturing, holding, cleaning. and
releasing inlured wildlife Plans for the
provision of such capabilities shall ensure
that there is no interference with other OSC
removal operations.
(7) Identify appropriate federal and state
agency contacts and alternates responsible
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Federal Register I Vol. 59, No . 178 / Thursday, September 15, 1994 / Rules and Regulations 47487
for coordination of fish and wildlife rescue
and rehabilitation and protection of sensitive
environments, identify and provide for
required fish and wildlife handlrng and
rehabilitation permits necessary under
federal and state laws, and provide guidance
on the implementation of law enforcement
requirements included under current federal
end state laws and corresponding
regulations Requirements include, but are
not limited to procedures regarding the
capture. transport. rehabilitation, release of
wildlife exposed to or threatened by oil, and
disposal of contaminated carcasses of
wildlife
(B) Identify end secure the means for
providing, if needed, the minimum required
Occupational Safety and Health
Administration (OSI-L&) training for
volunteers, including those who assist with
injured wildlife
19) Evaluate the compatibi lity between this
annex end non’federal response plans
(including those of vessels, facilities and
pipelines) on issues affecting fish and
wildlife, their habitat, and sensitive
environments
4 2 DIM faci/ity and r e ese ! response plans
This section describes and cross-references
the regulations that implement section
311(j)(S) of the CWA A tank vessel, as
defined under section 2101 of title 46. U S
Code, an offshore facility, and an onshore
facility that, because of its location, could
reasonably expect to ceuse substantial harm
to the environment by discharging into or on
the navigable waters, adjoining shorelines, or
exclusive economic zone must prepare and
submit a plan for responding, to the
maximum extent practicable, to a worst case
discharge, and to a substantiel threat of such
a discharge, of oil or a hazardous substance
These response plans are required to be
consistent with applicable Area Contingency
Plans These regulations are codified as
follows
(a) For tank vessels, these regulations are
codified in 33 CFE part 155,
(b) For offshore facilities, these regulations
are codified in 30 CFR part 254,
(c) For non-transportation related onshore
facilities, these regulations are codified in 40
CFR part 112 20.
(d) For transportation-related onshore
fecilittes, these regulations are cofidied in 33
CFR part 154,
fe] For pipeline facilities, these regulations
are codified in 49 (YR part 194. and
(f) For rolling stock, these regulations are
codified in 49 CF’R part 106 et al
43 Relation to others plons
43 1 Fedemlresponsepkns In the event
of a declaration of a major disaster by the
President, the FEMA may activate the
Federal Response Plan (FRP) A Federal
Coordinating Officer (5 (D), destgnated by
the President, may implement the FRP and
coordinate and direct emergency assistance
and disaster relief of impacted individuals.
business, and public services under the
Robert T Stafford Disaster Relief Act
Delivery of federal assistance is facilitated
through twelve functional annexes to the FRP
known as Emergency Support Functions
(ESFs) EPA coordinates activities under ESF
#10—Hazardous Materials, which addresses
preparedness and response to hazardous
materials and oil incidents caused by a
natural disaster or other catastrophic evenL
in such cases, the USC should coordinate
response activities with the FCO, throug a the
incident-specific ESF #10 Chair, to ensure
consistency with federal disaster assistance
activities
4 3 2 Tank Vesse! and Facility Response
Plans (a) Under CWA section 313(t)(5), tank
vessels, offshore facilities, and certain
onshore facilities are required to prepare and
submit response plans for review and
approval by the President for the carriage,
storage. and transportation of oil and
hazardous substances Separate regulations
published by the appropriate federal agencies
provide for required response plan
development and/or approval
fb i These plans shall be developed to
coordinate responsible party actions with the
USC and the AC? response strategies, for
response to oil discharges within the inland
and coastal zones of the United States
4 4 Pta-approval authority.
(a) RRTs and Area Committees shall
address, as part of their planning activities,
the desirability of using appropriate
dispersants, surface washing agents. surface
collecting agents, bioremediation agents, or
miscellaneous oil spill control agents listed
on the NC? Product Schedule, and the
desirability of using appropriate burning
agents EQ ’s and ACPs shall, as appropriate,
include applicable preauthonzation plans
and address the specific contexts in which
such products should and should not be
used In meeting the provisions of this
paragraph, preeuthorizatioo plans may
address factors such as the potential sources
and types of oil that might be spilled, the
existence and location of environmentally
sensitive resources that might be impacted by
spilled oil, available product and storage
locations, available equipment and
adequately trained operators, and the
available means to monitor product
application and effectiveness The RRT
representatives from EPA and the states with
jurisdiction over the waters of the area to
which a preauthorization plan applies and
the DOC and DC I natural resource trustees
shall review and either approve, disapprove,
or approve with modification the
preauihorization plans developed by Area
Committees, as appropriate Approved
preauthorization plans shall be included in
the appropriate RD’s and ACPs If the RRT
representatives from EPA and the states with
lurisdiction over the waters of the ares to
which a preauthorizatinn plan applies and
the DOC and DCI natural resource trustees
approve in advance the use of certain
products under specified circumstances as
described in the preauthorization plan. the
USC may authonze the use of the products
without obtaining the specific concurrences
described in paragraphs (h) and (ci of this
section
(h I For spill situations that are not
addressed by the preauthorization plans
developed pursuant to paragraph (a) of this
section, the OSC, with the concurrence of the
EPA representative to the RRT and, as
appropriate, the concurrence of the RRT
representatives from the states with
jurisdiction over the navigable waters
threatened by the discharge. and in
consultation with the DOC and DOl natural
resource trustees, when practicable. may
authorize the use of dispersants, surface
washing agents. surface collecting agents.
biorernediatton agents, ot miscellaneous oil
spill control agents on the oil discharge,
provided that the products are listed on the
NC !’ Product Schedule
(c) The USC. with the concurrence of the
EPA representative to the RRT and, as
appropriate, the concurrence of the RET
representatives from the states with
jurisdiction over the navigable waters
threatened by the discharge, and in
consultation with the DOC and DOl natural
resource trustees, when practicable. may
authorize the use of burning agents on a case-
by-case basis
Id) The USC may authorize the use of any
dispersant. surface washing agent, surface
collecting agent, other chemical agent.
burning agent. bioremediatson agent. or
miscellaneous oil spill control agent.
including products not listed on the NC?
Product Schedule, without obtaining the
concurrence of the EPA representative to the
RRT and, as appropriate, the RET
representatives from the states with
purisdiction over the navigable waters
threatened by the discharge. when, in the
udgrnent of the OSC. the use of the product
is necessary to prevent or substantially
reduce a hazard to human life Whenever the
OSC authorizes the use of a product pursuant
to this paragraph. the OSC is to inform the
EPA RRT representative end, as appropriate,
the RRT representatives from the affected
states and, when practicable, the DOC/DU I
natural resource trustees of the use of a
product, including products not on the
Schedule, as soon as posstble Once the
threat to human life has subsided, the
continued use of a product shall be in
accordance with paragraphs (al. (hi and (c)
of this section
(a) Sinking agents shall not be authorized
for application to oil discharges
( I) When developing preauthorization
plans, RRTs may require the performance of
supplementary toxicity and effectiveness
testing of products, in addition to the test
methods specified in § 300 915 and described
in Appendix C in part 300. due to existing
site-specific or area-specific concerns
4 5 Area response drills The USC
periodically shall conduct drills of removal
capability (including fish and wildlife
response). without prior notice, in areas for
which ACPs are required and under relevant
tank vessel and facility response plans
5 0 Response operotions
(a) The USC shall direct response efforts
and coordinate all other efforts at the scene
ofa discharge As partoftheplanningand
preparation for response, OSCs shall be
predesignatad by the regional or district heed
of the lead agency
fb) The first federal official affiliated with
en NRT member agency to arrive at the scene
of a discharge should coordinate activities
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47488 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
under the NC!’ and is authorized to initiate,
in consultation with the OSC, any necessary
actions normally carnecl out by the OSC until
the arnval of the predesignated OSC. This
official may initiate federal OSLTF-financed
actions only as authorized by the OSC or, if
the OSC is unavailable, the authorized
representative of the lead agency
(c) The OSC shall, to the extent practicable.
collect pertinent facts about the discharge,
such as its source and cause, the
identification of responsible parties. the
nature, amount, end location of discharged
matenals, the probable direction and time of
travel of discharged materials, whether the
discharge is a worst case discharge, the
pathways to human and environmental
exposure, the potential impact on human
health, welfare, and safety and the
environment: whether the discharge poses a
substantial threat to the public health or
welfare, the potential impact on natural
resources and property which may be
affected, pnonties for protecting human
health and welfare and the environment, and
eppropn ate cost documentation
(d) The OSC’s efforts shall be coordinated
with other appropriate federal, state, local,
and pnvate response agencies OSCs may
designate capable persons from federal, state,
or local agencies to act as their on-scene
representatives State and local governments.
however, are not authorized to take actions
under subpart D of the NC ! ’ that involve
expenditures of the OSLTF unless an
appropriate contract or cooperative
agreement has been established
(a) The OSC should consult regularly with
the RRT and NSFCC. as appropriate, in
carrying out the NCP and keep the RRT and
NSF4X. as appropriate. informed of activities
under the NC!’.
(Q The OSC should evaluate incoming
information and immediately advise FEMA
of potential major disaster situations.
(g) The OSC is responsible for addressing
worker health and safety concerns at a
response scene
(h) In those instances where a possible
public health emergency exists, the OSC
should notify the HI-IS representatite to the
RRT. Throughout response actions, the OSC
may call upon the 051-IA and I-EMS
representative for assistance on worker
health and safety issues
(il All federal agencies should plan for
emergencies and develop procedures for
dealing with oil discharges and releases of
hazardous substances. pollutants, or
contaminants from vessels and facilities
under their 1 urisdiction All federal agencies,
therefore, are responsible for designating the
office that coordinates response to such
incidents in accordance with the NC? and
applicable federal regulations and guidelines
(jIlt) The OSC shall ensu-e that the natural
resource trustees are promptly notified of
discharges
12) The OSC shall coordinate all response
activities with the affected natural resource
trustees and shall consult with the affected
trustees on the appropriate removal action to
be taken
(3) Where the OSC becomes aware that a
discharge may affect any endangered or
threatened species. or their habitat, the OSC
shall consult with DO!, DOC/NDAA, and. if
appropriate, the cognizant federal land
managing agency.
(k) The OSC shall submit pollution reports
(POLREPs) to the RRT and other appropriate
agencies as significant developments occur
during response actions. through
communications networks or procedures
agreed to by the RRT and covered in the RCP
(I) The OSC should ensure that all
appropnate public and private interests are
kept informed and that their concerns are
considered throughout a response. to the
extent practicable.
5 1 Phase I —Discovery or notification (a)
A discharge of oil may be discovered
through
(1) A report submitted by the person in
charge of a vessel or facility, in accordance
with statutory requirements.
(21 Deliberate search by patrols,
(3) Random or incidental observation by
government agencies or the public, or
(4) Other sources
(b) Any person in charge of a vessel or a
facility shall, as soon as he or she has
knowledge of any discharge from such vessel
or facility in violation of section 311(b)l3) of
the CWA, immediately notify the NRC
Notification shall be made to the NRC Duty
Officer, 1-EQ USCE, Washington. DC.
telephone (800) 424—8802 or (202) 267—2675
If direct reporting to the NRC is not
practicable, reports may be made to the
USCE or EPA predesignated OSC for the
geographic area where the discharge occurs
The EPA predesignated OSC may also be
contacted through the regional 24-hour
emergency response telephone number All
such reports shall be promptly relayed to the
NRC I I it is not possible to notify the NRC
or predesignated OSC immediately. reports
may be made immediately to the nearest
Coast Guard unit In any event, such person
in charge of the vessel or facility shall notify
the NRC as soon as possible
Ic) Any other person shall, as appropriate.
notify the NRC of e discharge of oil
(dl Upon receipt of a notificaticn of
discharge. the NRC shall promptly notify the
OSC The OSC shall ensure notification of
the appropriate state agency of any state
which is. or may reasonably be expected to
be, affected by the discharge The OSC shall
then proceed with the following phases as
outlined in the RCP and AC?
52 Phase II—Prehminoryossessment ond
initiation of action
(a) The OSC is responsible for promptly
initiating a preliminary assessment
fb I The preliminary assessment shall be
conducted using available information.
supplemented where necessary and possible
by an on-scene inspection The OSC shall
undertake actions to
(1) Evaluate the magnitude and seseriry of
the discharge or threat to public health or
welfare or the environment.
(2) Assess the feasibility of removal and
(3) To the extent practicable identify
potentially responsible parties.
(c) Where practicable, the framework for
the response management struaure is a
system (e g. a umfied command system) that
brings together the functions of tne federal
government, the state government, and the
responsible party to achieve an effective an
efficient response. when the OSC maintai
authority
Id) Except in a case when the OSC is
required to direct the response to a discharge
that may pose a substantial threat to the
public health or welfare (including, but not
limited to fish, shellfish, wildlife, other
natural resources, and the public and private
beaches and shorelines of the United States).
the OSC may allcw the responsible party to
voluntarily and promptly perform removal
actions, provided the OSC determines such
actions will ensure an effective and
immediate removal of the discharge or
mitigation or prevention of a substantial
threat of a discharge If the responsible party
does conduct the removal, the OSC shall
ensure adequate surveillance over whatever
actions are initiated If effective actions are
not being taken to eliminate the threat, or if
removal is not being properly done, the OSC
should, to the extent practicable under the
circumstances, so advise the responsible
party If the responsible party does not
respond properly, the OSC shall take
appropriate response actions and should
notify the responsible party of the potential
liability for federal response costs incurred
by the OSC pursuant to the OPA and CWA
Where practicable. continuing efforts should
be made to encourage response by
responsible parties
(1) In carrying out a response under this
section, the OSC may
(A) Remove or arrange for the removal of
a discharge. and mitigate or prevent a
substantial threat of a discharge, at any time
(B) Direct or monitor all federal, state, and
private actions to remove a discharge and
(Cl Remove and, if necessary, destroy a
vessel discharging. or threatening to
discharge. by whatever means are available
(2) If the discharge results in a substantial
threat to the public health or welfare of the
United States (including. but not limited to
fish, shellfish, wildlife, other natural
resources, and the public and private beaches
and shorelines of the United States), the OSC
must direct all response efforts, as provided
in section 5 3 4 of this appendix The OSC
should declare as expeditiously as
practicable to spill response participants that
the federal government will direct the
response The OSC may act without regard to
any other provision of the law governing
contracting procedures or employment of
personnel by the federal got ernment in
removing or arranging for the remos a) ol
such a discharge
(e) The OSC shall ensure that the natural
resource trustees are pronipt nntifie’d in the
event of ant discharge of oil to
maximum extent practicable as pros ded in
the Fish and Wildlife and Sensitise
Environments Plan annex to the ACP for the
area in v hich the discharge occun The OSC
and the trustees shall coordinate
assessments nalua’ions ins ectigatsons and
planning with respect tc appropna’e rrnn 1
actions The OSC tail cnnst.1 .& toe
affected trustees on the appop.a’e rv ta’ta!
action to be taken The wureea i i pc .c
tnely adnce concerning recc trnen ±r .
actions with regard to trus’ee resowce-s
potentially affected - Toe trustees also ill
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Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 1 Rules and Regulations 47489
assure that the OSC is informed of their
activities in natural resource damage
assessment that may affect response
operations The trustees shall assure, through
the lead administrative trustee, that all data
from the natural resource damage assessment
activities that may support more effective
operational decisions are provided in a
timely manner to the OSC . When
circumstances permit, the OSC shall share
the use of non-monetary response resources
(i e , personnel and equipment) with the
trustees, provided trustee activities do not
interfere with response actions The lead
administrative trustee facilitates effective and
efficient communication between the OSC
and the other trustees during response
operations and is responsible for applying to
the OSC for non-monetary federal response
resources on behalf of all trustees. The lead
administrative trustee is also responsible for
applying to the National Pollution Funds
Center for funding for initiation of damage
assessment for injuries to natural resources
5 3 Patterns of response
5.3.2 Determinations So initiate response
and speciol conditions
(a) In accordance wiLls the CWA. the
Administrator of EPA or the Secretary of the
department in which the USCG is operating,
as appropriate, is authorized to act for the
United States to take response measures
deemed necessary to protect the public
health or welfare or envu’ofllflent from
discharges of oil
(b) The Administrator of EPA or the
Secretary of the department in which the
USCC is operating. as appropnate, is
authorized to initiate and, in the case of a
discharge posing a substantial threat to
public health or welfare is required to initiate
and direct, appropriate response activities
when the Administrator or Secretary
determines that any oil is discharged or there
iso substantial threat of such discharge from
any vessel or offshore or onshore facility into
or on the navigable Waters of the United
States, on the adtoining shorelines to the
navigable waters, into or on the waters of the
exclusive economic zone, or that may affect
natural resources belonging to. apperlausing
to, or under exclusive management authority
of the United States
(c i In addition to any actions taken by a
state or local government, the Administrator
of EPA or the Secretary of the department in
which the USCG is operating may request the
US Attorney General to secure the relief
from any person, including the owner or
operator of the vessel or facility necessary to
abate a threat or. after notice to the affected
stale, take any other action authorized by
section 311 of the CWA, including issuing
administrative orders, that may be necessary
to protect the public health or welfare, if the
Administrator or Secretary determines that
there ma be an imminent and substantial
threat to the public health or welfare or the
environment of the United States, including
fish, shellfish, and wildlife, public and
private property. shorelines, beaches,
habitats, and other living and nonliving
natural resources under the jurisdiction or
control of the United States, because of an
actual or threatened discharge of oil from any
vessel or offshore or onshore facility into or
upon the navigable waters of the United
States
(di Response actions to remove discharges
originating from operations conducted
subject to the Outer Continental Shelf Lands
Act shall be in accordance with the NC?
(a) Where appropriate, when a discharge
involves radioactive materials, the lead or
support federal agency shall act consistent
with the notification and assistance
procedures described in the appropriate
Federal Radiological Plan For the purpose of
the NC?, the Federal Radiological Emergency
Response Plan (FRER?) (50 FR 46542.
November 8. 1965) is the appropn ate plan
Most radiological discharges and releases do
not result in FRERP activation and should be
handled in accordance with the NC?
However, releases from nuclear incidents
subject to requirements for financial
protection established by the Nuclear
Regulatory Commission under the Price-
Anderson amendments (section 170) of the
Atomic Energy Act are specifically excluded
from C RCL L and NC? requirements
(fl Removal actions involving nuclear
weapons should be conducted in accordance
with the )oint Department of Defense.
Department of Energy, and FEMA Agreement
for Response to Nuclear Incidents and
Nuclear Weapons Significant Incidents
Qanuary 8. 1981)
(gI If the situation is beyond the capability
of slate and local governments and the
statutory authority of federal agencies. the
President may, under the Disaster Relief Act
of 1974. act upon a request by the Governor
end declare a major disaster or emergency
and appoint a FCO to coordinate all federal
disaster assistance activities In such cases.
the OSC would continue to carry out OSC
responsibilities under the NC?. but would
coordinate those activities with the FCO to
ensure consistency with other federal
disaster assistance activities
(h) In the event of a declaration of a major
disaster by the President. FEMA may activate
the FR? An FCO, designated by the
President, may implement the FRP and
coordinate and direct emergency assistance
and disaster relief of impacted individuals,
business, and public seri’ices under the
Robert T Stafford Disaster Relief Act
Delivery of federal assistance is facilitated
through twelve functional annexes to the FR?
known as ESFs EPA coordinates activities
under ESF #10—Hazardous Materials, which
addresses preparedness and response to
hazardous materials and oil incidents caused
hy a natural disaster or other catastrophic
event In such cases, the OSCIRPM should
coordinate response activities with the FCO,
through the incident-specific ESF #10 Chair,
to ensure consistency with federal disaster
assistance activities
532 General pattern of response (a)
When the OSC receives a report of a
discharge, actions normally should be taken
in the following sequence
(1) Investigate the report to determine
pertinent information such as the threat
posed to public health or welfare or the
environment, the type and quantity of
polluting rriaterial. and the source of the
discharge
(2) Officially classify the size (i e , minor,
medtum, major) and type (i a ,substantial
threat to the public health or welfare, worst
case discharge) of the discharge and
determine the course of action to be followed
to ensure effective and immediate removal,
mitigation, or prevention of the discharge
Some discharges that are classified as a
substantial threat to the public health or
welfare may be further classified as a spill of
national signifIcance by the Administrator of
EPA or the Commandant of the USCG The
appropriate course of action may be
prescribed in 534.5 35, and 5 36 of this
appendix
(A) When the reported discharge is an
actual or potential major discharge, the OSC
shall immediately notify the RRT and the
NRC
(B) When the investigation shows that an
actual or potential medium discharge exists,
the OSC shall recommend activation of the
RRT, if appropriate
(C) When the investigation shows that an
actual or potential minor discharge exists, the
OSC shell monitor the situation to ensure
that proper removal action is being taken
(31 If the OSC determines that effective and
immediate removal, mitigation, or prevention
of a discharge cars be achieved by private
party efforts, and where the discharge does
not pose a substantial threat to the public
health or welfare, determine whether the
- responsible party or other person is properly
carrying out removal Removal is being done
properly when’
(A) The responsible party is applying the
resources called for in its response plan to
effectively and immediately remove,
minimize, or mitigate threat(s) to public
health and welfare and the environment, and
(B) The removal efforts are in accordance
with applicable regulations, including the
NGP. Even if the OSC supplements
responsible party resources with government
resources, the spill response will not be
considered improper, unless specifically
determined by the OSC.
(4) Where appropriate, determine whether
a state or political subdivision thereof has the
capability to carry out any or all removal
actions If so, the OSC may arrange funding
to support these actions
(5) Ensure prompt notification of the
trustees of affected natural resources in
accordance with the applicable RCP and
AC?
(1,) Removal shall be considered complete
when so determined by the OSC in
consultation with the Governor or Governors
of the affected states When the OSC
considers removal complete. OSLTF removal
funding shall end This determination shall
not preclude additional removal actions
under applicable state law
5 3 3 Containment, counlenneosures, and
cleanup (a) Defensive actions shall begin as
soon as possible to prevent, minimize, or
mitigate threat(s) to the public health or
welfare or the environment Actions may
include but are not limited to analyzing
water samples to determine the source and
spread of the oil, controlling the source of
discharge, source and spread control or
salvage operations, placement of physical
barriers to deter the spread of the oil and to
protect natural resources and sensitive
ecosystems, measuring and sampling, control
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47490 Federal Register I Vol. 59, No. 178 / Thursday. September15, 1994 / Rules and Regulations
of the water discharged from upstream
impoundment, and the use of chemicals and
other materials in accordance with subpart
of Part 300 of the NCP to restrain the spread
of the oil and mitigate its effects The AGP
should be consulted for procedures to be
followed for obtaining an expedited decision
regarding the use of diapersants and other
products listed on the NCP Product
Schedule
(b) As appropriate, actions shall be taken
to recover the oil or mitigate its effects Of
the numerous chemical or physical methods
that may be used, the cl:iosen methods shall
be the most consistent with protecting public
health and welfare and the environment
Sinking agents shall not be used
(c) Oil and contaminated materials
recovered in cleanup operations shall be
disposed of in accordance with the RGP,
ACP. and any applicable laws. regulations, or
requirements RRT and Area Committee
guidelines may identify the disposal options
available during an oil spill response and
may describe what disposal requirements are
mandatory or may not be waived by the OSC
ACP guidelines should address the
sampling. testing, and classifying of
recovered oil and oiled debris, the
segregation and stockpiling of recovered oil
and oiled debris, prior state disposal
approvals and permits. and the routes.
methods (e g recycle/reuse, on-site burning.
incineration. landfilling. etc ). and sites for
the disposal of collected oil, oiled debris, and
animal carcasses, procedures for obtaining
waivers. exemptions. or authorizations
associated with handling or transporting
waste matenals The ACPs may identify a
hierachy of preferences for disposal
alternatives, with recycling (reprocessing)
being the most preferred. and other
alternatives preferred based on prionhies for
health or the environment
5 3 4 Response to a substantial threat to
the public health or welfare (a) The OSC
shall determine whether a discharge results
in a substantial threat to public health or
welfare (including, but not limited to. fish,
shellfish. wildlife other natural resources.
the public and private beaches, and
shorelines of the United States) Factors to be
considered by the OSC in making this
determination include, but are not limited to,
the size of the discharge. the character of the
discharge. and the natu.re of the threat to
public health or welfare Upon obtaining
such information, the OSC shall conduct an
evaluation of the threat posed. based on the
OSC’s experience in assessing other
discharges and consultation with senior lead
agency officials and readily available
authorities on issues outside the OSC’s
technical expertise
(b) If the investigation by the OSC shows
that the discharge poses or may present a
substantial threat to public health or welfare,
the OSC shall direct all federal, state, or
private actions to remove the discharge or to
mitigate or prevent the threat of such a
discharge. as appropriate In directing the
response in such cases. the OSC may act
without regard to any other provision of law
governing contracting procedures or
employment of personnel by the federal
government to
(1) Remove or arrange for the removal of
the discharge;
(2) Mitigate or prevent the substantial
threat of the discharge, and
(3) Remove and, if necessary. destroy a
vessel discharging. or threatening to
discharge, by whatever means are available.
(c) In the case of a substantial threat to the
public health or welfare, the OSC shall
(1) Assess opportunities for the use of
various special teams and other assistance.
including the use of the services of the
NSFCC, as appropriate,
(2) Request immediate activation of the
RRT, end
(3) Take whatever additional response
actions are deemed appropriate, including
but not limited to implementation of the AC?
or relevant tank vessel or facility response
plan.
(d) When requested by the OSC. the lead
agency or RRT shall dispatch appropriate
personnel to the scene of the discharge to
assist the OSC This assistance may include
iechntcal support in the agency’s areas of
expertise and disseminating information to
the public The lead agency shall ensure that
a contracting officer is available on scene, at
the request of the OSC
5 3 5 Enhanced activities during a spill of
national significance (a) A discharge may be
classified as an SONS by the Administrator
of EPA for discharges occurring in the inland
zone and the Commandant of the USQ for
discharges occurring in the coastal zone
(b) For an SONS in the inland zone, the
EPA Administrator may name a senior
Agency official to assist the OS in (1)
Communicating with affected parties and the
public, and (2) coordinating federal, state,
local, and international resources at the
national level This strategic coordination
will involve, as appropriate, the NRT, RRT(s).
the Governor(s) of effected state(s), and the
mayor(s) or other chief executive(s) of local
government(s)
(c) For an SONS in the coastal zone, the
USCG Commandant may name a National
Incident Commander (NIIC) who will assume
the role of the OSC in (1) Communicating
with affected parties and the public, and (2)
coordinating federal, state, local, and
international resources at the national level,
This strategic coordination shall involve, as
appropriate, the NRT, RRT(s], the
Governor(s) of affected state(s), and the
mayor(s) or other chief executive(s) of local
government(s)
5.3 6 Response to worst case discharges
(a) if the investigation by the OSC shows that
a discharge is a worst case discharge as
defined in the ACP, or there is a substantial
threat of such a discharge. the OSC shall
(1) Notify the NSFCC.
(2) Require, where applicable.
implementation of the worst case portion of
an approved tank vessel or facility response
plan.
(3) Implement the worst case portion of the
AD’, if appropnate, and
(4) Take whatever additional response
actions are deemed appropriate
(b) Under the direction of the OSC. the
NSFCC shall coordinate use of private and
public personnel and equipment. including
strike teams, to remove a worst case
discharge and mitigate or prevent a
substantial threat of such a discharge
5 3 7 Multi.regional responses (a) If a
discharge moves from the area covered by
one ACP or RD’ into another area, the
authority for response actions should
likewise shift If a discharge affects areas
covered by two or more ACPs or RCPs. the
response mechanisms of each applicable plan
may be activated In this case, response
actions of all regions concerned shall be fully
coordinated as detailed in the RCPs and
ACPs
(b) There shall be only one OSC at any time
during the course of a response operation
Should a discharge affect two or more areas.
EPA. the USCG, DOD. DOE, or other lead
agency, as appropriate, shall give prime
consideration to the area vulnerable to the
greatest threat, irs determining which agency
should provide the OSC The RRT shall
designate the OSC if the RRT member
agencies who have response authority within
the affected areas are unable to agree on the
designation The NRT shall designate the
OSC if members of one RRT or two ad)acent
RRTs are unable to agree on the designation
538 Workerheo!thandsafety (a)
Response actions under the NC? shall
comply with the provisions for response
action worker safety and health in 29 CFR
1910 120 The national response system
meets the requirements of 29 CFR 1910 120
concerning use of an incident command
system
(b) In a response action taken by a
responsible party, the responsible party
assure that an occupational safety and healti
program consistent with 29 CFR 1910 ‘120 is
made available for the protection of workers
at the response site
(c) In a response taken under the NCP by
a lead agency. an occupational safety and
health program should be made available for
the protection of workers at the response site.
consistent with, and to the extent required
by. 29 CFR 1910 120 Contracts relating to a
response action under the NCP should
contain assurances that the contractor at the
response site will comply with this program
and with any applicable provisions of the
Occupational Safety and Health Act of 1970
(OS}l Act) and state laws with plans
approved under section 18 of the OSH Act
(d) When a state, or political subdivision
of a state, without an OSHA-approved state
plan is the lead agency for response, the state
or political subdivision must comply with
standards in 40 CFR part 311, promulgated
by the EPA pursuant to section 126(f) of the
Superfund Amendments and Reauthorization
Act of 1966 (SARA)
(a) Requirements. standards, and
regulations of the OSH Act and of state OSH
laws not directly referenced in paragraphs (a)
through (d l of this section, must be corriplied
with where applicable Federal OSH Act
requirements include, among other things.
Construction Standards (29 CFR part 1926).
General Industry Standards (29 CFR part
1910), and the general duty requirement of
section 5(a)(1) of the OSH Act (29 U SC
654(a)(l)) No action by the lead agency’ wit).
respect to response activities under the NCP
constitutes an exercise of statutory authority
within the meaning of section 4(b)(l) of the
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Federal Register / Vol. 59. No. 178 1 Thursday. September 15, 1994 / Rules and Regulations 47491
OSH Act AU governmental agencies and
private employers are directly responsible for
the health and safety of their own employees
5 4 Disposal
Oil recovered in cleanup operations shall
be disposed of in accordance with the RCP,
ACP. arid any applicable laws, regulations, or
requirements RRT and ACP guidelines may
identify the disposal plans to be followed
during an oil spill response and may address.
the sampling, testing. and classifying of
recovered oil and oiled debris, the
segregation and stockpiling of recovered oLl
and oiled debris, prior state disposal
approvals and permits. and the routes.
methods (a g recycle/reuse, on-site burning,
incineration, landfilling. etc ). and Sites for
the disposal of collected oil, oiled debris, and
animal carcasses
S S Natural Resource Trustees
5 5 1 Damage assessment (a) Upon
notification or discovery of injury to.
destruction of. loss of, or threat to natural
resources, trustees may. pursuant to section
1006 of the OPA. take the following actions
as appropriate
(2) Conduct a preliminary survey of the
area effected by the discharge to determine if
trust resources under their iurisdiction axe, or
potentially may be, affected.
(2) Cooperate with the OSC in coordinating
assessments, investigations, and planning.
(3) Carry Out damage assessments, or
(4) Devise and carry out a plan for
restoration, rehabilitation, replacement, or
acquisition of equivalent natural resources
In assessing damages to natural resources, the
federal, state, and Indian tribe trustees have
the option of following the procedures for
natural resource damage assessments located
at 43 CFR part ii
(b) Upon notification or discovery of injury
to, destruction of, loss of, or loss of use of,
natural resources, or the potential forsuch,
resulting from a discharge of oil occumng
after August 18, 1900, the trustees, pursuant
to section 1006 of the OPA. are to take the
following actions
(1) In accordance with OPA section
1006(c), determine the need for assessment of
natural resource damages, collect data
necessary for a potential damage assessment,
arid, where appropriate, assess damages to
natural resources under their trusteeship. and
(2) As appropriate, and subject to the
public participation requirements of OPA
section 1006(c), develop and implement a
plan for the restoration, rehabilitation.
replacement, or acquisition of the equivalent,
of the natural resources under their
trusteeship
(CIII) The trustees, consistent with
procedures specified in the Fish and Wildlife
and Sensitive Environments Annex to the
Area Contingency Plan, shall provide timely
advice on recommended actions concerning
trustee resources that are potentially affected
bye discharge of oil This may include
pi-ovidirig assistance to the OSC in
identifying/recommending pre-approved
response techniques and in predesignating
shoreline types and areas in ACPs
(2) The trustees shall assure. through the
lead administrative trustee, that the OSC is
informed of their activities regarding natural
resource damage assessment that may affect
response operations in order to assure
coordination and minimize any interference
with such operations The trustees shall
assure, through the lead administrative
trustee, that all data from the natural resource
damage assessment activities that may
support more effective operational decisions
are provided in a timely manner to the OSC
(3] The OSC deploys federal response
resources, including but not limited to
aircraft, vessels, and booms to contain and
remove discharged oil When circumstances
permit. the OSC shall share the use of federal
response resources wLth the trustees.
providing trustee activities do not interfere
with response actions The lead
administrative trustee facilitates effective and
efficient communication between the OSC
and the other trustees during response
operations and is responsible for applying to
the OSC for non-monetary federal response
resources on behalf of all trustees The lead
administrative trustee is a]so responsible for
applying to the National Pollution Funds
Center for funding for Initiation of damage
assessment for inpuries to natural resources
(d) The authority of federal trustees
includes, but is not limited to the following
actions
(I) Requesting that the Attorney Genera)
seek compensation from the responsible
parties for the damages assessed and for the
costs of an assessment and of restoration
planning;
(2) Participating in negotiations between
the United States aqd potentially responsible
parties (PRPs) to obtain PRP-flnanced or PRP-
conducted assessments and restorations for
injured resources or protection for threatened
resources arid to agree to covenants not to
sue, where appropriate, and
(3) Initiating damage assessments, as
provided in OPA section 6002
(el Actions which may be taken by any
trustee pursuant to section 3 11(0(5) of the
CWA or section 1006 of the OPA include, but
are not limited to, any of the following
(1) Requesting that an authorized agency
issue an administrative order or pursue
injunctive relief against the parties
responsible for the discharge, or
(2) Requesting that the lead agency remove.
or arrange for the removal of any oil from a
contaminated medium pursuant to section
311 of the CWA
5 5 2 Lead administrative trustee The
lead administrative trustee is a natural
resource trustee who is designated on an
incident-by-incident basis and chosen by the
other trustees whose natural resources are
affected by the incident The lead
administrative trustee facilitates effective and
efficient communication between the OSC
and the other trustees during response
operations and is responsible for applying to
the OSC for non-monetary federal response
resources on behalf of all trustees The lead
administrative trustee is also responsible for
applying to the National Pollution Funds
Center for funding for initiation of damage
assessment for injuries to natural resources
5.53 OSC coordination (a) The OSC
shall ensure that the natural resource trustees
are promptiy notified in the event of any
discharge of oil, to the maximum extent
practicable. as provided irs the Fish and
Wildlife and Sensitive Environments Plan
annex to the A P for the area in which the
discharge occurs The OSC and the trustees
shall coordinate assessments, evaluations,
investigations, and planning with respect to
appropriate removal actions The OSC shall
consult with the affected trustees on the
appropriate removal action to be taken
(b) The trustees will provide timely ad’, ice
concerning recommended actions with
regard to trustee resources that are
potentially affected This may include
providing assistance to the OSC in
identifyinglrecomxnending pre-approved
response techniques. and in predesignatirig
shoreline types and areas in ACPs
(c) The trustees also will assure that the
OSC is informed of their activities regarding
natural resource damage assessment that may
effect response operations
5.5 4 Disseminotiori of information (a)
When an incident occurs, it is imperative to
give the public prompt. accurate information
on the nature of the incident and the actions
underway to mitigate the damage OSCs and
community relations personnel should
ensure that all appropriate public and private
interests are kept informed arid that their
concerns are considered throughout a
response They should coordinate with
available public affairsfcoinmuriity relations
resources to carry Out this responsibility by
establishing, as appropriate, a Joint
Information Center bringing together
resources from federal and state agencies and
the responsible party
(b) An on-scene news office may be
established to coordinate media relations arid
to issue official federal information on an
incident Whenever possible. it will be
headed by a representative of the lead
agency The OSC determines the location of
the on-scene news office, but every effort
should be made to locate it near the scene of
the incident Ifa participating agency
believes public interest warrants the issuance
of statements and an on-scene news office
nas not been established, the affected agency
should recommend its establishment All
federal news releases or statements by
participating agencies should be cleared
through the OSC information dissemination
relating to natural resource damage
assessment activities shall be coordinated
through the lead administrative trustee The
designated lead admimstrative trustee may
assist the OSC by disseminating information
on issues relating to damage assessment
activities Following termination of the
removal activity, information dissemination
on damage assessment activities shall be
through the lead administrative trustee
55 5 Responsthiiities of trustees (a)
Where there era multiple trustees, because of
coexisting or contiguous natural resources or
concurrent jurisdictions, they should
coordinate arid cooperate in can-ying out
these responsibilities
(b)Trustees are responsible for designating
to the RRTs and the Area Committees, for
inclusion in the RCP and the ACP,
appropriate contacts to receive notifications
from the OSCs of discharges
(c)(1) Upon notification or discovery of
in;ury to, destruction of, loss of, or threat to
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47492 !ederal Register I Vol. 59, No. 178 I Thursday, September 15, 1994 I Rules arid Regulations
natural resources, trustees may. pursuant to
section 3 1 (f)(5) of the CWA, take the
following or other actions as appropnate.
(A) Conduct a prelinunaiy survey of the
area affected by the discharge or release to
determine if trust resources under their
turisdiction are, or potentially may be,
affected,
(B) Cooperate with the OSC in coordinating
assessments, investigations, and planning,
(C) Carry out damage assessments, or
(D) Devise and carry out a plan for
restoration, rehabilitation, replacement, or
acquisition of equivalent natural resources.
In assessing damages to natural resources, the
federal, state, and Indian tribe trustees have
the option of following the procedures for
natural resource damage assessments located
at 43 CFR part 11
(2) Upon notification or discovery of injury
to. destruction of, loss of, or loss of use of.
natural resources, or the potential for such,
resulting from a discharge of oil oocurring
after August 18, 1990, the trustees, pursuant
to section 1006 of the OPA, are to take the
following actions
(A) In accordance with OFA section
1006(c), determine the need for essesament of
natural resource damages, collect data
necessary for a potential damage assessment,
and, where appropriate, assess damages to
natural resources under their trusteeship. and
(B) As appropriate, and subject to the
public participation requirements of OPA
section 1006(c), develop and implement a
plan for the restoration, rehabilitation.
replacement. or acquisition of the equivalent.
of the natural resources under their
trusteeship,
13)(A) The trustees, consistent with
procedures specified in the Fish and Wildlife
end Sensitive Enviroiutients Annex to the
Area Contingency Plan, shall provide timely
advice on recommended actions concerning
trustee resources that are potentially affected
by a discharge of oil This may include
providing assistance to the USC in
identifyinglrecommendsng pre.approved
response techniques and in predesignating
shoreline types and areas in ACPs
(B) The trustees shall assure, through the
lead administrative trustee, that the USC is
informed of their activities regarding natural
resource damage assessment that may affect
response operations in order to assure
coordination and minimize any interference
with such operations The trustees shall
assure, through the lead administrative
trustee, that all data from the natural resource
damage assessment activities that may
support more effective operational decisions
are provided in a timely manner to the USC
(C) When circumstances permit. the OSC
shall share the use of federal response
resources (including but not limited to
aircraft, vessels, and booms to contain and
remove dtscharged oil) with the trustees,
providing trustee activities do not interfere
with response actions The lead
administrative trustee facilitates effective and
efficient communication between the OSC
and the other trustees during response
operations and is responsible for applying to
the USC for nonmonetary federal response
resources on behalf of all trustees The lead
administrative trustee also is responsible for
applying to the National Pollution Funds
Center for funding for initiation of damage
assessment for iniunes to natural resources
(d) The authority of federal trustees
includes, but is not limited to the following
actions’
(1) Requesting that the Attorney General
seek compensation from the responsible
parties for the damages assessed and for the
costs of an assessment and of restoration
planning. and
(2) Initiating damage assessments, as
provided in OPA section 6002
(e) Actions which may be taken by any
trustee pursuant to section 1006 of the OPA
include, but are not limited to, any of the
following:
(11 Requesting that an authorized agency
issue an administrative order or pursue
injunctive relief against the parties
responsible for the discharge or release, or
(2) Requesting that the lead agency remove,
or arrange for the removal of. or provide for
remedial action with respect to, any oil from
a contaminated medium pursuant to section
311 ofCWA
56 0 ,) spill liability trust fund
5 6 Funding (a) The OSL.TF is available
under certain circumstances to fund removal
of oil performed under section 311 of the
CWA. Those circumstances and the -
procedures for accessing the OSLTF are
described in 33 CFR Subchapter M The
responsible party is liable for costs of federal
removal and damages in accordance with
section 311( 1) of the CWA, section 1002 of
the OPA. and other federal laws
(b) Response actions other tha’n removal,
such as scientific investigations not in
support of removal actions or law
enforcement, shall be provided by the agency
with legal responsibility for those specific
actions
(C) The funding of a response to a discharge
from a federally owned, operated. or
supervised facility or vessel is the
responsibility of the owning, operating, or
supervising agency if it is a responsible party
(d) The following agencies have funds
available for certain discharge removal
actions
(1) DUD has two specific sources of funds
that may be applicable to an oil discharge
under appropriate circumstances This does
not consider military resources that might be
made available under specific conditions
(i) Funds required for removal of a sunken
vessel or similar obstrui tion of navigation are
available to the Corps of Engineers through
Civil Works Appropriations. Operations and
Maintenance, General
‘(ii) The U S Navy (USN) may conduct
salvage operations contingent on defense
operational commitments, when funded by
the requesting agency Such funding may be
requested on a direct cite basis
(2) Pursuant to Title I of the OPA. the state
or states affected by a discharge of oil may
act here necessary to remove such
discharge Pursuant to 33 CFR subchapter M.
stales may be reimbursed from the OSLTF for
the reasonable costs incurred in such a
removal
5 6 2 Claims (a) Claims are authorized to
be presented to the OSLTF under section
1013 of the OPA of 1990, for certain
uncompensated removal costs or
uncompensated damages resulting from tht
discharge. or substantial threat of discharge.
of oil from a vessel or facility into or upon
the navigable waters, adjoining shorelines, or
exclusive economic zone of the United
States
(b) Anyone desiring to file a claim against
the OSLTF may obtain general information
on the procedure for hung a claim from the
Director, National Pollution Funds Center,
Suite 1000, 4200 Wilson Boulevard.
Arlington, Virginia. 22203—1804, (703) 235—
4756
5 7 Documentation and Cost Recovery
(a) All OSLTF users need to collect and
maintain documentation to support all
actions taken under the CWA In general,
documentation shall be sufficient to support
full cost recovery for resources utilized and
shall identify the source and circumstances
of the incident. the responsible party or
parties, and impacts and potential impacts to
public health and welfare and the
environment Documentation procedures are
contained in 33 CFR subchapter M
(b) When appropriate, documentation shall
also be collected for scientific understanding
of the environment and for research and
development of improved response methods
and technology Funding for these actions is
restricted by section 6002 of the OPA
Ic) As requested by the NRT or RRT, the
OSC shall submit to the NRT or RRT a
complete report on the removal operation
and the actions taken The OSC report shall
record the Situation as it developed, the
actions taken, the resources committed, and
the probtems encountered The RRT shall
revtew the OSC report with its comments or
recommendations within 30 days after the
RRT has received the OSC report
(d) OSCs shall ensure the necessary
collection and safeguarding of information.
samples. and reports Samples and
information shall be gathered expeditiously
during the response to ensure an accurate
record of the impacts incurred
Documentation materials shall be made
available to the trustees of affected natural
resources The OSC shall make asailable to
the trustees of affected natural resources
information and documentation in the OSC’s
possession that can assist the trustees in the
determination of actual or potential natural
resource injuries
(e) Information and reports obtained b the
EPA or USCG OSC shall be transmitted to the
appropriate offices responsible for follo%s.up
actions
5 8 Notional response priorities
(a) Safety of human life must be gi en the
top priority during every response action
This includes any search and rescue efforts
in the general proximity of the discharge and
the insurance of safety of response personnel
(b) Stabilizing the situation to preclude the
event from worsening is the next priorit A
efforts must be focused on saving a vessel
that has been involved in a grounding
collision, fire, or explosion, so that it does
not compound the problem Comparable
measures should be taken to stabilize a
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Federal Register /V0L 59. No. 178 / Thursday. September 15, 1994 / Rules and Regulations 47493
situation involving a facility, pipeline, or
other source of pollution. Stabilizing the
situation includes securing the source of the
spill and/or removing the remaining oil from
the container (vessel, tank, or pipeline) to
prevent additional oil spillage, to reduce the
need for follow-up response action, and to
minimize adverse impact to the environment
(ci The response must use all necessary
containment and removal tactics in a
coordinated manner to ensure a timely,
effective response that minimizes adverse
impact to the environment
(dl All parts of this national response
strategy should be addressed concurrently,
but safety arid stabilization are the highest
priorities The OSC should not delay
containment and removal decisions
unnecessarily and should take actions to
minimize adverse impact to the environment
that begin as soon as a discharge occurs, as
well as actions to minimize further adverse
environmental impact from additional
discharges
(e) The priorities set forth in this section
are broad in nature, and should not be
interpreted to preclude the consideration of
other priorities that may arise on a site-
specific basis.
6 0 Response coordination
6 i Non governmentoi participation (a)
Industry groups, academic organizations, and
others are encouraged to commit resources
for response operations Specific
commitments should be listed in the RCP
and ACP Those entities required to develop
tank vessel and facility response plans under
CWA section llflj) must be able to respond
to a worst case discharge to the maximum
extent practicable. and should commit
sufficient resources to implement other
aspects of those plans
(b) The technical and scientific information
generated by the local comniumty. along
with information from federal, state, and
local governments, should be used to assist
the OSC in devising response strategies
where effective standard techniques are
unavailable Such information and strategies
will be incorporated into the ACP, as
appropriate The SEC may act as liaison
between the OSC and such interested
Organizations
(ci ACPs shall establish procedures to
allow for well organized. worthwhile, and
safe use of volunteers, including compliance
with requirements regarding worker health
and safety AC?s should provide for the
direction of volunteers by the OSC or by
other federal, state, or local officials
knowledgeable in contingency operations
and capable of providing leadership AcPs
also should identify specific areas in which
volunteers can be used, such as beach
surveillance, logistical support. and bird and
wildlife treatment Unless specifically
requested by the OSC. volunteers generally
should not be used for physical removal or
remedial activities If. in the judgment of the
OSC, dangerous conditions exist, volunteers
shall be restricted from on-scene operations
(d) Nongovernmental participation must be
in compliance with the requrmement.s of
subpart H of the NC? if any recovery of cost.,
will besought
62 Natural resource trustees
62 2 Federal agencies (a) The President is
required to designate in the NC? those
federal officials who are to act on behalf of
the public as trustees for natural resources
These designated federal officials shall act
pursuant to section 1006 of the OPA
“Natural resources” means land, fish.
wildlife, biota, air, water, ground water,
drinking water supplies, and other such
resources belonging to. managed by. held in
trust by, appertaining to. or otherwise
controlled (hereinafter referred to as
“managed or controlled”) by the United
States, including the resources of the
exclusive economic zone
(b) The following individuals shall be the
designated trustee(s) for general categories of
natural resources, including their supporting
ecosystems They are authorized to act
pursuant to section 1006 of the O?A when
there is injury to, destruction of. loss of, or
threat to natural resources, including their
supporting ecosystems as a result of a
discharge of oil Notwithstanding the other
designations in this section, the Secretaries of
Commerce and the Interior shall act as
trustees of those resources subject to their
respective management or control
(1) The Secretary of Commerce shall act as
trusiee for natural resources managed or
controlled by DCC and for natural resources
managed or controlled by other federal
agencies and that are found in, under, or
using waters navigable by deep draft vessels,
tidally influenced waters or waters of the
contiguous zone, the exclusive economic
zone, and the outer continental shelf
However, before the Secretary takes an action
with respect to an affected resource under the
management or control of another federal
agency. be shall, whenever practicable, seek
to obtain concurrence of that other federal
agency Examples of the Secretary’s
trusteeship include the following natural
resources and their supporting ecosystems
marine fishery resources, enadromuous fish.
endangered species and marine mammals,
and the resources of National Marine
Sanctuaries and National Estuarine Research
Reserves
(2) The Secretary of the Interior shall act
as trustee for natural resources managed or
controlled by DCI Examples of the
Secretary’s trusteeship include the following
natural resources and their supporting
ecosystems migratory birds, anadromous
fIsh, endangered species and marine
mammals, federally owned minerals, and
certain federally managed water resources
The Secretary of the Interior shall also be
trustee for those natural resources for which
an Indian tribe would otherwise act as trustee
in those cases where the United States acts
on behalf of the Indian tribe
(3) Secretary for the land managing agency
For natural resources located on. over, or
under land administered by the United
States, the trustee shall be the head of the
department in which the land managing
agency is found The trustees for the
principal federal land managing agencies are
the Secretaries of DCI, USDA, DOD. and
DOE
(4) Head of Authorized Agencies For
natural resources located within the United
States but not otherwise described in this
section. the trustee is the head of the federal
agency or agencies authorized to manage or
control those resources
6 2 2 State (a) State trustees shall act on
behalf of the public as trustees For natural
resources, including their supporting
ecosystems. within the boundary of a state or
belonging to. managed by, controlled by. or
appertain ing to such state For the purposes
of section 6 1, the definition of the term
“state” does not include Indian tribes
Ib) The Governor of a state is encouraged
to designate a lead state trustee to coordinate
all stete trustee responsibilities with other
trustee agencies and with response acti’. Ities
of the RJ T and OSC The state’s lead trustee
would designate a representative to serve as
a contact with the OSC. This individual
should have ready access to appropriate state
officials with environmental protection,
emergency response, end natural resource
responsibilities The EPA Administrator or
US Commandant or their designees mes’
appoint the lead state trustee as a member of
the Area Committee Response strategies
should be coordinated between the state and
other trustees arid the OSC for specific
natural resource locations in an inland or
coastal zone, and should be included in the
Fish and Wildlife and Sensitive
Environments Plan annex of the AC?
6 2 3 Indian tribes The tribal chairmen
(or heads of the governing bodies) of Indian
tribes, as defined in section 1 5, ore person
designated by the tribal officials, shall act on
behalf of the indian tribes as trustees for the
natural resources, including their supporting
ecosystems, belonging to, managed by.
controlled by, or eppertaining to such Indian
tribe, or held in trust for the benefit of such
Indian tribe, or belonging to a member of
such Indian tribe, if such resources are
subject to a trust restriction on alienation
When the tribal chairman or head of the
tribal governing body designates another
person as trustee, the tribal chairman or head
‘ii the tribal governing body shall notify the
President of such designation
62 4 Foreign trustees Pursuant to section
1006 of the OPA. foreign trustees shall act on
behalf of the head of a foreign government as
trustees for natural resources belonging to.
managed by. controlled by, or appertaining to
such foreign government
63 Federal agencies
(a) Federal agencies listed in this appendix
have duties established by statute, executive
order, or Presidential directive which may
apply to federal response actions folloi ing.
or in prevention of. the discharge of oil
Some of these agencies also have duties
relating to the restoration, rehabilitation.
replacement, or acquisition of equivalent
natural resources injured or lost as a result
of such discharge The NRT, RRT, and Area
Committee organizational structure, and the
NC?, RCPs. and ACPs provide for agencies to
coordinate with each other in can-ving out
these duties
(b) Federal agencies may be called upon by
an OSC during response planning and
implementation to provide assistance in their
respective areas of expertise, consistent with
the agencies’ capabilities and authorities
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47494 Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations
(c) In addition to thei.r general
responsibihties, federal agencies should:
(1) Make necessary information available to
the Secretary of the NRT, RRTs, Area
Committees, and OSCs,
(2) Provide representatives to the NRT and
RRTs and otherwise assist P.RTs and OSCs,
as necessary. in formulating RCPs and ACPs,
and
(3) Inform the NRT. RRTs. and Area
Committees consistent with national security
considerations, of changes in the availability
of resources that would aff’ect the operations
implemented under the NCP
(d) All federal agencies must report
discharges of oil. as required in 40 CFR part
110. from vessels or facilities under their
jurisdiction or control to the NRC
6 4 Other Federal agencies
64.1 Department of Commerce (a] The
DOC, through NOAA. provides scientific
support for response and contingency
planning in coastal and marine areas.
including assessments of the hazards that
may be invoked, predictions of movement
and dispersion of oil through trajectory
modeling, and information on the sensitivity
of coastal environments to oil and associated
cleanup and mitigation methods, provides
expertise on living marine resources and
their habitats, including endangered species.
marine mammals and National Marine
Sanctuary ecosystems. and provides
information on actual and predicted
meteorological. hydrological, ice, and
oceanographic conditions for marine, coastal,
and inland waters. and tide and circulation
dati for coasts) and territorial waters and for
the Great Lakes In addition to this expertise.
NOAA provides SSCs in the coastal zone, as
described under section 3.3 3 of this
appendix. Special teams
64 2 Department of Justice The DOJ can
provide expert advice on complicated legal
questions arising from discharges, and
federal egenc responses in addition, the
001 represents the federal government.
including its agencies, in litigation relating to
such discharges Other legal issues or
questions shall be directed to the federal
agency counsel for the agency providing the
OSC for the response
64 3 Department of Defense. The DOD
has responsibility to take all action necessary
with respect to discharges where either the
discharge is on. or the sole source of a
discharge is from, any facility or vessel under
the 1 urisdiction, custody. or control of DOD
In addition to those capabilities provided by
SUPSALV, DOD may also, consistent with its
operational requirements and upon request of
the USC. provide locally deployed USN oil
spill response equipment and provide
assistance to other federal agencies upon
request The following two branches of DOD
have particularly relevant expertise
(a] The United States Army Corps of
Engineers has specialized equipment and
personnel for maintaining navigation
channels, for removing navigation
obstructions, for accomplishing structural
repairs. and for performing maintenance to
hydropower electric generating equipineriL
The Corps can also provide design services,
perform construction, and provide contract
writing and contract administrative services
for other federal agencies
(b) The US Navy Supervisor of Salvage
(SUPSLAV) is the branch of the service
within DOD most knowledgeable and
experienced in ship salvage, shipboard
damage control, and diving The USN has an
extensive array of specialized equipment and
personnel available for use in these areas as
well as specialized containment, collection,
and removal equipment specifically designed
for salvage-related and open-sea pollution
incidents.
64 4 Department of Health and Human
Services (a) The HHS assists with the
assessment, preservation, and protection of
human health and helps ensure the
availability of essential human services HHS
provides technical and nontechnical
assistance in the form of advice, guidance.
and resources to other federal agencies as
well as state and local governments
(b) The principal UHS response comes
from the U S Public Health Service and is
coordinated from the Office of the Assistant
Secretary for Health, and various Public
Health Service regional offices Within the
Public Health Service, the primary response
to a hazardous materials emergency comes
from the Agency for Toxic Substances and
Disease Registry (ATSDR) and the Centers for
Disease Control (CDC) Both ATSDR and CDC
have a 24-hour emergency response
capability wherein scientific and technical
personnel are available to provide technical
assistance to the lead federal agency and state
and local response agencies on human health
threat assessment and analysts. and exposure
prevention and mitigation Such assistance is
used for situations requiring evacuation of
affected areas, human exposure to hazardous
materials. and technical advice on mitigation
and prevention CDC takes the lead during
petroleum releases regulated under the CWA
and OPA while ATSDR takes the lead during
chemical releases under CERCLA Both
agencies are mutually supportive
(c) Other Public Health Service agencies
involved in support during hazardous
materials incidents either directly or through
ATSDRICDC include the Food and Drug
Administration, the Health Resources and
Services Administration, the Indian Health
Service, and the National Institutes of Health
(di Statutory authority for HHSfNational
institutes for Environmental Health Sciences
(NIEHS) involvement in hazardous materials
accident prevention is non-regulatory in
nature and focused on two primary areas for
preventing community and worker exposure
to hazardous materials releases (1) worker
safety training and (2) basic research
activities Under section 126 of the SARA.
NIEHS is given statutory authority for
supporting development of cumcu]a and
model training programs for waste workers
and chemical emergency responders Under
section 118(b) of the Hazardous Materials
Transportation and Uniform Safety Act,
NIEHS also administers the Hazmat
Employee Training Program to prepare
cumcula and training for hazardous
materials transportation workers In the basic
research arena, NIEHS is authorized under
section 311 of SARA to conduct a hazardous
substance basic research and training
program to evaluate toxic effects and assess
human health risks from accidental releases
of hazardous materials Under Title LX,
section 901(h) of the Clean Air Act
Amendments, NEEHS also is authorized to
conduct basic research on air pollutants, as
well as train physicians in environmental
health Federal research and training in
hazardous materials release prevention
represents an important non.regulatory
activity and supplements ongoing private
sector programs
64 .5 Departi-nent of the Interior The DOt
may be contacted through Regional
Environmental Officers, who are the
designated members of RRTs Department
land managers have jurisdiction over the
national park system. national wildlife
reftiges and fish hatcheries, the public lands.
and certain water projects in western states
In addition, bureaus and offices have relevant
expertise as follows
(a) United States Fish and Wildlife Service
end other Bureaus Anadromous and certain
other fishes and wildlife. including
endangered and threatened species.
migratory birds, and certain marine
mammals, waters and wetlands, and effects
on natural resources
(ii) The National Biological Survey
performs research in support of biological
resource management, inventories, monitors,
and reports on the status and trends in the
Nation’s biotic resources, and transfers the
information gained in research and
monitoring to resource managers and others
concerned with the care, use. and
conservation of the Nation’s natural
resources The National Biological Survey
has taboratorylresearch facilities
(c) Geological Survey Geology, hydrology
(ground water and surface water). and natural
hazards
(d) Bureau of Land Management Minerals.
soils, vegetation, wildlife, habitat,
archaeology, and wilderness
(e) Minerals Management Service
Oversight of offshore oil and gas exploration
and production facilities and associated
pipeline facilities under the Outer
Continental Shelf Lands Act and the CWA,
oil sptii response technology research and
establishing oil discharge contingenc\
planning requirements [ or offshore facilities
(1) Bureau of Mines Analysis and
identification of inorganic hazardous
substances and technical expertise in metals
and metallurgy relei ant to site cleanun
(.g) Office of Surface Mining Coal mine
wastes and land reclamation
(hi National Park Service General
biological. natural. and cultural resc rce
managers to evaluate, measure mo ito and
contain threats to park system lands anc
resources, archaeological and historica
expertise in protection. preseriation
evaluation, impact mitigation and
restoration of cultural resources e erzenc”S
personnel
(i)Bureau of Reclamation Opera’i’ a-c
maintenance of water protects in ins
engineering and h dmlog); and re - ’I
(j) Bureau of lnd an .‘i ,ffairs Coo ’c.s’.son
of activities affecting Indian lands a:i’i.nce
in identifying Indian tribal go ne ’
officials
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Federal Register / Vol. 59, No. 178 / Thursday, September 15, 1994 / Rules and Regulations_47495
(k) Office of Territorial Affairs Assistance
in implementing the NC to American
Somoa, Guam, the Pacific island
Governments, the Northern Mariana Islands,
and the Virgin islands
6 4 6 Depo.rtrnent of Justice The DOJ can
provide expert advice on complicated legal
questions arising from discharges, and
federal agency responses in addition, the
DOJ represents the federal government,
including its agencies, in litigation relating to
such discharges Other legal issues or
questions shall be directed to the federal
agency counsel for the agency providing the
OSC for the response
6 4 7 Department of Labor The DOL,
through OSHA and the states operating plans
approved under section 18 of the OSH Act,
has authority to conduct safety and health
inspections of hazardous waste sites to assure
that employees are being protected and to
determine iIthe site tarn compliance with
(a) Safety and health standards and
regulations promulgated by OSHA (or the
states) in accordance with section 126 of
SARA and all other applicable standards, and
(b) Regulations promulgated under the
OSH Act and its general duty clause OSKA
inspections may be self-generated. consistent
with its program operations and objectives,
or may be conducted in response to requests
from EPA or another lead agency, or in
response to accidents or employee
complaints On request. OSI-IA shall provide
advice and consultation to EPA and other
NRT/RRT agencies as well as to the OSC
regarding hazards to persons engaged in
response activities. OSHA may also take any
other action necessary to assure that
employees are properl) protected at such
response activities Any questions about
occupational safety and health at these sites
may be referred to the OSFIA Regional Office
6 4 8 Federal Emergency Management
Agency FEMA provides guidance. policy
and program advice, and technical assistance
in hazardous materials, chemical. and
radiological emergenc) preparedness
activities (including planning. training, and
exercising) FEN A’s primary point of contact
for administering financial and technical
assistance to state and local governments to
support their efforts to develop and maintain
an effective emergency management arid
response capability is the Preparedness,
Training. and Exercises Directorate.
64 9 Department of Energy The DOE
generally provides designated OSCs that are
responsible for taking all response actions
with respect to releases where either the
release is on. or the sole source of the release
is from, any facility or vessel under its
jurisdiction, custody, or control, including
vessels bareboat.chartered and operated In
addition, under the FRERP, DOE provides
advice and assistance to other OSCsIRPMs
for emergency actions essential for the
control of immediate radiological hazards
Incidents that qualify for DOE radiological
advice and assistance are those believed to
involve source, by-product, or special
nuclear material or other ionizing radiation
sources, including radium, and other
naturally occurring radionuclides, as well as
particle accelerators Assistance is available
through direct contact with the appropriate
DOE Radiological Assistance Program
Regional Office
6 4 10 Deportment of Stale The DOS will
lead in the development of international joint
contingency plans It will also help to
coordinate an international response when
discharges or releases cross international
boundaries or involve foreign flag vessels
Additionally, DOS will coordinate requests
for assistance from foreign governments and
U S proposals for conducting research at
incidents that occur in waters of other
countries
6 4 General Services Adm:nsstrrztion.
The GSA provides logistic and
telecommunications support to federal
agencies During an emergency situation,
GSA quickly responds to aid state and local
governments as directed by other Federal
Agencies The type of support provided
might include leasing and furnishing office
space, setting up telecommunications and
transportation services, and advisory
assistance
64 12 Department of Transportation
DOT provides response expertise pertaining
to transportation of oil by all modes of
transportation DOT, through RSPA.
establishes oil discharge contingency
planning requirements for pipelines.
transport by rail and containers or bulk
transport of oil
6 5 States and local participation in
response
(a) Each state Governor is requested to
designate one state office/representative to
represent the state on the appropriate RRT
The state’s officelrepresentative may
participate fully in all activities of the
appropriate RRT Each state Governor is also
requested to designate a lead state agency
that shall direct state.lead response
operations This agency is responsible for
designating the OSC for state-lead response
actions, and coordinating/communicating
with any other state agencies, as appropriate
Local governments are invited to participate
itt activities on the appropriate RRT as may
be provided by state law or arranged by the
state’s representative indian tribes wishing
to participate should assign one person or
office to represent the tribal government on
the appropriate RRT
(b) Appropriate state and local officials
(including indian tribes) shall participate as
part of the response structure as provided in
the ACP
(C) In addition to meeting the requirements
for local emergency plans under SARA
section 303, state and local government
agencies are encouraged to include
contingency planning for responses.
consistent with the NCP. RCP, and ACP in all
emergency and disaster planning
(dl For facilities not addressed under the
CWA for oil discharges. states are encouraged
to undertake response actions themselves or
to use their authorities to compel potentially
responsible parties to undertake response
actions
(e) Because state and local public safety
organizations would normally be the first
government representatives at the scene of a
discharge or release, they are expected to
initiate public safety measures that are
necessary to protect the public health and
welfare end that are consistent with
containment and cleanup requirements in the
NCP, and are responsible for directing
evacuations pursuant to existing state or local
procedures
IFR Doc 94—22347 Filed 9—14—94, 8 45 am)
BILUNG CODE 6560-60-P
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NCP
INDEX OF KEY TERMS
FOR OIL SPILL RESPONSE
October 1994
* * * DRA.FT * * *
-------
A NOTE TO THE READER
The selection of terms included was based on our experience and knowledge gained over the last
several years on the National Oil and Hazardous Substances Pollution Contingency Plan (NC?) revision
projec!, and we ha ’e sought to be as comprehensive as possible The pr lniarv references included are to
the NC? final rule and preamble (59 f 47384. September 15. 994). Ii also contains selected references
to the preamble of the proposed NC? (58 EE 54702, October 22, 1993). These latter references are more
general and highlight only certain sections of the preamble where a term is discussed, these references arc
not intended to be as comprehensive as those for the final rule and preamble. and not every proposed rule
preamble reference to a particular term is included The preambles to both the proposed and final rules
should be consulted when issues arise on the meaning or intent of the final rule. Unless directly
contradicted or superseded by the final rule and preamble, the preamble to the proposed rule reflects
EPA’s intent in promulgating the final rule
The references contained in this index appear in three diFerent ways in the following order,
depending on the source referenced:
• References to the preamble of the final NC? appear in regular, non-bold type For
example, pages 47389-90 always appear in regular type
• References to the rule language of the ftnal NC? appear in bold type. For example, pages
47486-87 always appear in bold.
• References to the preamble of the proposed NC? appear with full Federal Register
references. For example, 58 54719 refers to the preamble to the proposed NCP
To provide the most precise and detailed references possible, this index uses subheadings wherever
appropriate It also makes free use of cross references that permit the user to search for a term several
different ways. In all cases, subheadings appear in ita1 cs, which should assist the reader when searching
for a cross-referenced term; if the cross reference includes italics, it refers to a subheading under another
main entry.
* S * DPAFT s 5 *
-------
KEY TERMS INDEX
Administrative Orders 47432, 47452, 47481, 47491-92, 58 FR 54707
Alaska Native 47385, 47419, 47475
Animal Fats (see Edible Oils - Animal Fats)
Annex to the ACF’ (see Fish and Wildlife Sensiu e Environments Plan (FWSEP)/FWSEP Anne ’)
Area Boundaries 47396
Area Committees 47384-85, 47387-91, 47393-99, 47400-01, 47403-04, 47406-9, 4741 1-13, 47417, 47420,
47424, 47430.2, 47435, 47437, 47440, 47443, 47446, 47451, 47454, 47473-75, 47477.78, 47480-81, 47484,
47486-87, 47490-91, 47493-94
Coordination 47384, 47388, 47391, 47394, 47408, 47430.32, 47437, 47454, 47477, 47480-81, 47493
Designauon of Federal Members 47393-94, 47474, 58 FR 54712
Private Party Menthership/Parucipazion 47388, 47394, 58 FR 54711
Responsibilities 47385, 47387, 47389, 47393-94, 47396-97, 47403, 47408, 47411, 47440, 47443,
47446, 47454, 47477, 47480-81, 47484, 47486-87, 47490
State and Local Membership 47393-94, 47404, 47451, 47474, 47493
Area Contingency Plan(s) (see also Planning and Coordination Structure) 47384-85, 47387-88, 47391-401,
47403-04, 47408, 47415, 47417, 47423-24, 47430-32, 47434-37, 47440, 47443-47, 47451.52, 47454, 47473-74,
47476, 47480-8!, 47484, 47486-93, 47495
Contents 47395, 47397, 47404, 47408, 47443, 47446, 47474, 47480, 47486-87, 47490-9 1, 47493, 58
FR 54711
Development of 47385, 47388, 47392-93, 47396-98, 47415, 47432, 47443, 47480.81, 47484, 47486
Inland and Coastal Zone (Distznczzon) 47395, 47432, 47487, 47493, 58 FR 54711-2
Purpose 47384, 47387, 47395, 47443, 47447, 47486, 47490
Relationship to RCP 47393, 47395, 47399, 47434, 47443, 47480, 47486, 47490
Area Contingency Planning 47390-91, 47393-94, 47397, 47400-01
Areas of Economic or Environmental Importance (see also Fish and Wildlife and Sensitive Environments
Plan and Sensitive Areas/Environments) 47443-45, 47451.52, 47473, 47486-88, 47491-93
Bioremediation Agent(s) 47389-90, 47394, 47413-15, 47417, 47420, 47431, 47443, 47454, 47456-58, 47464,
47467, 47469, 47471, 47473-75, 47481, 47486.87, 58 FR 54731
Effectiveness Test 47413-14, 47454, 47456-58, 47464, 47471, 47487, 58 FR 54731.32
Toxicity Test 47414, 47454, 47456-58, 47471, 47487, 58 FR 54732
Burning Agents 47389-90, 47417-18, 47420, 47431, 47454, 47456, 47474-75, 47481, 47487
Captain of the Port (COTP) 47395, 47432
In general, entries strictly for term delinitions have not been included Definitions can be found in
Subpart A of the NC?, at 59 FR 47417, and the proposed rule at 58 54703.
DRAFT *S* Pagel
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CFR Citations (see Code of Federal Regulations)
Claims Against the Fund (see also Oil Pollution Act - Section 1013) 47399, 47420, 47432, 47452-53,
47492, 58 FR 54725
Coastal Zone 47388, 47395, 47397, 4741819, 47432. 47434-35, 47437, 47443, 47447, 47451, 47475,
47481-82, 47486-87, 47490, 47493-94
Code of Federal Regulations (CFR)
/ CFR parr 5/ 47455
3 CFR part 1971 474(6
5 C ’FR part 1320 47415
24 CFR parr 2401 47433
29 CFR parr 1910 47436, 47490
29 CFR 1910 120 47386-87, 47436, 47490
29 CFR part 1926 47436, 47490
30 CFR part 254 47440, 47444, 47487
33 CFR part 136 47446-47
33 CFR part 150 47440
33 CFR part /51 47401
33 CFR part 153 47433, 47480
33 CFR parr 154 47440, 47444, 47487
33 CFR part 155 47440, 47444, 47487
33 CFR 155 1020 47402
40 CFR part 2 47457
40 CFR part 110 47386, 47392, 47437, 47494
40 CFR 1101 47386, 47392, 47420, 47475
40 CFR part 112 47393, 47397, 47440
40 CFR part 11220 47444, 47487
40 CFR part 302 47433, 47447
40 CFR part 310 47452-53
40 CFR part 311 47436, 47490
40 CFR part 355 47444
43 CFR part ii 47451, 47491-92
49 CFR part 106 47444, 47487
49 CFR part 171 47440
49 CFR part 194 47440, 47444, 47487
Communication(s) (see also Community Relations and Joint information Center) 47384, 47387, 47388,
47390, 47403, 47416, 47419, 47424, 47430-36, 47445, 47452, 47475, 47480-81, 47488-89, 47491-92
Between OSCs and Trustees 47390, 47419, 47445, 47452, 47489, 4749 1-92
To Ensure Effective Response Coordination 47387, 47403, 47431, 47475, 47481, 47489, 47491-92
With the RRT 47430, 47432, 47434, 47480-81, 47488
With the NRT 47431, 47433, 47480-81
With the Scientific Community 47435, 47481
Community Relations (see also Communication(s) and Joint [ nformauon Center) 47391, 47416-18, 47421,
47436, 47450, 47453, 47491
Consistency with the NC? 47385, 47390, 47393, 47417, 47440, 47452-53, 47474, 47486, 47495
DRAFT *** Page2
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Consultation 47384, 47390, 47392, 47394, 47398, 47400, 47404-05, 47408-09, 47419, 47434, 47439, 47443,
47445-46, 47448, 47452, 47454, 47475, 47486-91, 47495
On Removal
With Governor 47400, 47446, 47489
With Senior Lead Agency Officials 47448
With Trustees 47405, 47434, 47445, 47488, 47491
On Response Resources
1+7th Lead Agency 47452, 47490
Wit/i Natural Resource Trustees 47390, 47394, 47398, 47409, 47452, 47454, 47487-88
Containment, Countermeasures, Cleanup, and Disposal 47401, 47445
Contiguous Zone 47416, 47418, 47451, 47453 47474-75, 47493
Contractors, Private or Cleanup (see also Nongovernmental Participation/Personnel and Private
Parties/Private Sector) 47387-88, 47390, 47393, 47399, 47401, 47405-06, 47421, 47432, 47435-36, 47481,
47484, 47490
Coordination 47384-85, 47387-91, 47393-95, 47399-400, 47402-06, 47408, 47416-17, 47420-21, 47423-24,
47430-36, 47439-41, 47443-4 5, 47447-48, 47451-52, 47473-78, 47480-81, 47484, 47486-95
At National Level 47384, 47402-03, 47416, 47423, 47430, 47440, 47447, 47477-78, 47480-81, 47488,
47490
Of Assistance and Advice to OSC 47384, 47403-05, 47420, 47424, 47430, 41432, 47435-36, 47443,
47445, 47448, 47450-52, 47477, 47480-81, 47484, 47487-88, 47491-93
Of Oil Spill Contingency Planning 47384, 47430, 47435, 47440, 47486-87, 47491
Of Preparedness Acrzvines 47394-95, 47424, 47430-31, 47435, 47478, 47480-81, 47484, 47487, 47489
Requirements 47405, 47430-31, 47434, 47443-44, 47477, 47481, 47488, 47493
Cost Recovery 47386, 47391, 47416, 47420, 47432, 47436, 47437, 47446, 47452, 47474-75, 47492
Countermeasures 47390, 47397-92, 47401, 47404, 47406-07, 47409, 47411, 47426, 47435, 47443-45, 47474,
47482, 47486, 47489
Damage Assessment (see Natural Resource Damage Assessment)
Decanted Water (see Return of Oil or Oily Water)
Definitions (see footnote page one)
Destroy Vessel 47389, 47445, 47447, 47449, 47477, 47488, 47490
Determination to Initiate Response and Special Conditions 47416, 47433, 47446, 4744849
Direct, Authority to (see also Monitor and Substantial Threat to Public Health or Welfare (Discharge
Posing) 47384, 47387-90, 47392, 47394, 47399-401, 47403, 47405, 47420-21, 47424, 47430-35, 47440, 47443,
47445.47, 47449, 47476-77, 47480-81, 47426-90, 47495, 58 FR 54705, 58 FR 54706-07, 58 FR 54717
State and Local Action 47387, 47389-90, 47399, 47477, 47421, 47488, 47490, 47495
Elective Decision 47400
DRAFI’ Page3
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Discharge 47384-94, 47397-404, 47407, 47413-20, 47422-24, 47430-37, 47439-41, 47443-47, 47451-54,
47458, 47464, 47474-78, 47480-81, 47484, 47486-95
Classification and Type of 47384, 47386-87, 47392, 47402, 47418-19, 47422-23, 47446-47. 47475-76.
47489
Largest Foreseeable 47387, 47424, 47477
Major 47391, 47400-402, 47422-23, 47430-31, 47446, 47476, 47480-81, 47489
Ma.tin,um Most Probable 47402
Medium 47393, 47397, 47402, 47422-23, 47446, 47452, 47476, 47489
Minor 47402-03, 47422-23, 47446, 47476, 47489
Discharge of Oil 47384, 47386-87, 47390, 47392, 47397-98, 47400-401, 47403, 47407. 474 15-17, 47422,
47424, 47430, 47433, 47434-37, 47440, 47443-45, 47447, 47451-52, 47474, 47476-77, 47480, 47484, 47486,
47488-89, 47491-94
Discharge of Oil Rule 47386, 47420, 47475
Discovery or Notification 47384, 47399, 47401-02, 47416-17, 47424, 47430.31, 47433, 47437, 47444,
47446-47, 47451, 47457, 47473-74, 47480-81, 47488-89, 47491-92
Dispersant Effectiveness Acceptability Criterion 47411-12, 58 FR 54727-29
Dispersants (see also Preauthorization, Preplanning, and Swirling Flask Dispersant Effectiveness Test)
47385, 47389-90, 47394, 47396, 47398, 47406-13. 47420, 47431, 47435, 47440, 47443, 47445, 47453-55,
47457-58, 47460-61, 47471, 47473-75, 47481, 47484, 47486-87, 47490
Disposal (see also Waste) 47396, 47401, 47416, 47419, 47422, 47424, 47435, 47444-46, 47449-50, 47474,
47484, 47487, 47490-9 1
A CP Guidelines for 47396, 47401, 47444, 47446, 47487, 47490
Options/A iternanves to 47424, 47446, 47449, 47490.91
District Commander 47395
District Response Advisory Team (DRAT) 47417.18, 47436, 47474-75, 47484
District Response Group (DRG) 47384-85, 47417-18, 47435-36, 47443, 47474-75, 47477, 47481, 47484,
47486, 58 FR 54708
Documentation and Cost Recovery 47416, 47436-37, 47446, 47452, 47474, 47492
Drills (see also Exercises and Preparedness for Response Exercise Program) 47393, 47398, 47416, 47444,
47473, 47487
Economic Impact Analysis (see also Supporting Analyses) 47415
Ecosystem (see also Fish and Wildlife and Sensitive Environments Plan) 47404, 47411, 47438, 47445,
47448, 47451, 47489, 47493-94
Edible Oils
Animal Fats 47386
Vegetable Oil 47386
*** DRAFT *** Page4
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Effectiveness Test (see Bioremediation Agent(s) - Effectiveness Test and Dispersants)
Emergency Planning and Community Right-to-Know Act (EPCRA) (see Title III)
Endangered Species (see also Fish and Wildlife and Sensitive Environments Plan) 47408-09, 37438, 47451,
47493-94
Enforcement 47385, 47392, 47398, 4742 1-22, 47424, 47436-37, 47444, 47447, 47449-50, 47486-87, 47492
Environmental Response Team (ERT) 47390, 47417, 47435, 47474, 47481, 47484
Executive Order 47384-85, 47415-17, 47424, 47437, 47474, 47486, 47493
E.O. 12777 47384-85, 47416, 47424
EQ. 12580 47384,47416,47424
EQ 12866 47415
E,O. 11735 47416
Exercises (see also Drills and Preparedness for Response Exercise Program) 47391, 47398-99. 47420,
47430-31, 47435, 47438, 47463, 47475, 47480-81, 47484, 47495
National Exercise Program 47420, 47430-31, 47475, 47480-81
Facility Response Plan(s) (see also Oil Polluiion Prevention) 47385-87, 47392-93, 47395, 47397,
47399-400, 47402-03, 47440, 47443-44, 47447, 47473, 47486-87, 47490, 47493
Federal Agency Participation 47391, 47416, 47437
Federal Contingency Plans 47394, 47416, 47443, 47473, 47484
Federal Emergency Management Agency (FEMA) 47416-17, 47433-34, 47437-38, 47449, 47474, 47478,
47487-89, 47495, 58 5 54706
Federal Facilities 47448
Federal Response Plan (FRP) 47385, 47417, 47419, 47433-34, 47474-75, 47487, 47489, 58 FR 54703, 58
FR 54707
Fish and Wildlife 47384, 47392, 47394, 47396-98, 47409, 47417, 47439, 47443-45, 4745 1-52, 47473-74,
47486-88, 4749 1-94
Fish and Wildlife and Sensitive Environments Plan (FWSEP)/FWSEP Annex (see also Areas of Economic
or Environmental Importance, Ecosystem, Wetlands, and Wildlife) 47384, 47394-98, 47443-45, 47473,
47488, 47491, 58 ES 54713
Fish and Wildlife Response Plan (see Fish and Wildlife and Sensitive Environments Plan)
Funding (see also National Pollution Funds Center and Oil Spill Liability Trust Fund) 47386, 47390,
47394, 47400, 47403-06, 47416, 47436-37, 47445-47, 47452-53, 47484, 47489, 47491-92, 58 FR 54722
Ground Waier 47418-20, 47439, 47451, 47475, 47493-94
Health and Safety (see also Occupational Safety and Health and Worker Health and Safety) 47391, 47399,
47401, 47416, 47434, 47436, 47440, 47452, 47474, 47488, 47490-91, 47493
‘‘ DRAFT ‘‘ Page S
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tmmincni and Substantial Danger (see also Imminent and Substantial Threat) 47416-17, 47421, 47433,
47431, 47447.48
Imminent and Substantial Threat (see also imminent and Substantial Danger) 47433, 47477, 47489
incident Command System (ICS) 47386-87, 47389, 47399, 47402-03, 47436, 47477, 47490, 58 FR 54709
incident Commander (see also Spills of National Significance) 47387. 47399, 47447, 47490
Indian Tribes 47385, 47388, 47392, 47404, 47406, 47416, 47419.20, 47422, 47424, 47431, 47440, 47451-52,
47474-75, 47477, 47481, 47491-93, 47495
Siate,” Inclusion in Definition of 47388, 47392, 47404, 47424, 47431, 47440, 47477, 47493, 5 FR
54710
Inland Zone 47388, 47395, 47419, 47432, 47435, 47437, 47447, 47475, 47481-82, 47490
Jettisoning Oil (see also Recovered Oil and Return of Oil or Oily Water) 47401
Joint Information Center (see also Communications and Community Relations) 47391, 47436, 47491
Lead Administrative Trustee (see also Natural Resource Trustees) 47385-86, 47390-91. 47400, 47405-06.
47419, 47435-36, 47445, 47452, 47474-75, 47484, 47489, 47491-92
Lead Agency 47386, 47389, 47418.21, 47424, 47432, 47434, 47436.37, 47439-40, 47443, 47446-50, 47452-53,
47475, 47477, 47481, 47486.88, 47490-92, 47495
Lead State Response Official (see State Lead Response)
Liability 47385-86, 47401, 47403-06, 47416-18, 47420, 47434, 47436, 47445, 47447, 47452-53, 47474-77,
47484, 47488, 47492
For Federal Response Costs 47445, 47447, 47452, 47477, 47488
Limitations on 47403, 47436, 47452
Release from 47453
Local Emergency Planning Committees (LEPCs) 47393-94, 47397, 47399, 47415, 47417, 47431, 47441,
47443.44, 47474, 47481, 47486
Local Emergency Response Plans 47393, 47395, 47397, 47399, 47416, 47430-31, 47441, 47443-44, 47481,
47486
Consistency/Coordination with Other Plans 47395, 47399, 47443.44, 47486
MARPOL 47401
Mechanical Recovery Devices 47391, 47401, 47406-07, 47440, 47481, 58 FR 54726
Memoranda of Understanding 47392, 47394
Miscellaneous Oil Spill Control Agents 47390, 47394, 47418, 47420, 47454, 47456-58, 47471, 47473, 47475,
47487
DRAF1’ Page6
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Mitigation (see also Other Spill Mitigating Devices arid Substances) 47384, 47388, 47391, 47394, 47403-04.
47406-08, 47415, 47418, 47420, 47438.40, 47443, 47445.48, 47453, 47474-77, 47481, 47486, 47488.91, 47494
Of a Discharge or Substantial Threat of a Discharge 47384, 47388, 47401, 47403, 47417, 47420,
47422, 47443, 47445-49, 47474, 47476-77, 47481, 47486, 47488-91
Of Threats to Pub/ic Health or We/fare 47402, 47422, 47449, 47453, 47471, 47489
Of the Migration of Hazardous Substances 47420
Methods/Measures 47391, 47438, 47475, 47494
Technical advice on 47438-39, 47494
Mixed Products 47457, 58 FR 54734
Monitor (see also Direct, Authority to) 47387, 47389-90. 47399-400, 47421-22, 47430-31, 47438-40, 47445-
46, 47449, 47454, 47463-65, 47467, 47477, 47480-81, 47487-89, 47494, 58 FR 54705
National Exercise Program (see Exercises)
National Incident Commander (NIC) 47447, 47490
National Pollution Funds Center (NPFC) (see also Funding and Oil Spill Liability Trust Fund) 47390.
47417, 47420, 47436, 47445, 47452-53, 47474-75, 47481, 47484, 47489, 47491.92
National Response Center (NRC) 47392, 47417, 47431, 47433, 47435, 47437, 47440, 47444, 47446, 47448,
47452, 47473.74, 47478, 47480-81, 47484, 47488-89, 47494
National Response Priorities 47401, 47416, 47446, 47474, 47492, 58 FR 34717
National Response System (see also Response Management Structure/System) 47384, 47386-89, 47393-94,
47396, 47399, 47403, 47414, 47417, 47420, 47424, 47430, 47436, 47440, 47443, 47473-75, 47477-78, 47484,
47490, 58 FR 54704
Planning Diagram 47386, 47388, 47424, 47426
Response Diagram 47386, 47388, 47424-25
National Response Team (NRT) 47384, 47386, 47388, 47391, 47395, 47399, 47416.17, 47420, 47424,
47430-34, 47437, 47439.40, 47446-47, 47457, 47474.75, 47477-78, 47480-81, 47487, 47490, 47492.95
Membership 47388, 47424, 47430, 47478
Activation for Response 47386, 47388, 47417, 47430, 47474, 47477-78, 47480
Planning and Preparedness Responsibilities 47386, 47388, 47424, 47430, 47440, 47478, 47480
Participation
State Government 47388, 47430, 47447
Local Government 47388, 47430, 47447
National Response Unit (see National Strike Force Coordination Center)
National Strike Force (NSF) 47417, 47420, 47434, 47474-75, 47477, 47481, 47484
National Strike Force Coordinanon Center (NSFCC) 47384.85, 47403, 47417, 47420, 47430, 47434-35,
47443, 47447, 47473-75, 47478, 47480, 47484, 47486, 47488, 47490, 58 FR 54708
Natural Resource Damage Assessment (NRDA) (see also Fish and Wildlife and Sensitive Environments
Plan) 47386, 47390-91, 47396, 47400, 47404-06, 47419-20, 47435-36, 47445, 47447, 47451-52, 47474-75,
47484, 47489, 47491-92
DRAFT *1* Page7
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NR.D 1 4 Guidance 47396, 47447, 47451-52
Proposed NRDA rule 47390. 47405
Natural Resources 47387, 47390-92, 47394, 47398, 47404-06, 47408-09, 47415-20, 47424, 47430, 47433-39,
47443-48, 47450-52, 47454, 47474-75, 47477, 47480, 47482, 47484, 47486-94
Claim for Damage or Injuries 47387, 47391, 47404, 47424, 47477
Managed or Controlled by 47404, 47416, 47418, 47420, 47424, 47433, 47450-52, 47454, 47475,
47477, 47493
Reimbursement for InJu )’ 10 47390, 47436, 47452
Restoration, Rehabilitation, Replacement, or Acquisition 47404-05, 47437, 47445, 4745 1-52, 47491-93
Natural Resource Trustees (see also Lead Administrative Trustee and Lead State Trustee) 47385-87,
47390-92, 47394, 47396-98, 47400, 47404-06, 47408-09, 47416-17, 47419-20, 47424, 47434-37, 47444-46,
47448, 47450-52, 47454, 47474-75, 47486-88, 47491, 47493
Consultation with/Notification of 47394, 47398, 47405, 47408-09, 47454, 47487-89, 47491, 58 FR
54707
Federal 47398, 47406, 47491, 47493
Foreign 47424, 47451, 47493
Indian Trthes 47406, 47451, 47491-93
Multiple 47451, 47491
Responsibilities of 47405, 47451-52, 47475, 47487, 47491-93
State 47406, 47451, 47491
Navigaule Waters 47386, 47394, 47401, 47416, 47418, 47420, 47424, 47433, 47441, 47444, 4745354,
47474-77, 47487, 47489, 47492
Nongovernmental Participation/Personnel (see also Contractors (Private or Cleanup), Private
Parties/Private Sector, and Responsible Party/Private Party) 47392-93, 47416, 47440, 47474, 47493
Non-monetary Response Resources 47390, 47400, 47445, 47452, 47489, 47491-92
Not tflcation of Discharge 47444, 47480, 47488
Occupational Safety and Health (see also Health and Safety and Worker Health and Safety) 4739 1-92,
47416-17, 47434, 47436, 47439, 47474, 47487, 47490, 47495
Oil Pollution Act (OPA) 47384-96, 47398-408, 47411, 47416-22, 47424, 47436, 47438, 47444-49, 47451-53,
47473.77, 47484, 47487-88, 47491-94
Section 1001 474 18-22, 47424, 47475-17
Section 1006 (see also Natural Resource Damage Assessment, Natural Resources, and Natural
Resource Trustees) 47386, 47390, 47405-06, 47424, 47451-52, 47477, 47491-93
Section 1011 (see also Consultation Requirement and Removal Action) 47390, 47398, 47400,
47405
Section 1013 (see also Claims Against the Fund) 47453, 474 2
Section 4201 (see also Direct (Authority to), Substantial Threat to Public Health or Welfare
(Discharge Posing), and Worst Case Discharge) 47384, 47390, 47399, 47404, 47448-49
Oil Pollution Prevention (see also Facility Response Plans) 47397
Oil Spill Liability Trust Fund (OSLTF) (see also Funding) 47386, 47390, 47398-400, 47403, 47406, 47417,
47420, 47434, 47446-47, 47452-53, 47474-76, 47488-89, 47492
DRAFT *** Page8
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On-Scene Coordinator (OSC) 47384-96, 47398-407. 47409-14, 474 [ 6-20, 47422, 47424, 47430-40, 47443-52,
47454, 47457, 47474-78, 47480.82, 47484, 47486-95
EPA OSC’s (see also Inland Zone) 47386, 47389, 47432, 47435, 47437, 47447, 47481, 47492
Predesignation 47385, 47404, 47419, 47420, 47423, 47432-34, 47437, 47444, 47475, 47477, 47481,
47487-88
Qualifications of (see also Training) 47389, 47455
Responsibthty for ACPs 47384, 47387, 47390-91, 47396, 47400, 47480-81, 47484, 47486, 47489,
47490, 47493
USCG OSCs (see also Coastal Zone) 47389, 47432, 47434, 47437, 47447, 47481, 47492
OSC Contingency Plan 44732, 58 FR 54711
OSC Report 47391, 47416, 47437, 47446, 47450, 58 FR 54709
Other Spill Mitigating Devices and Substances (see also Mitigation) 47384, 47407, 47453, 58 FR 54726
Owner(s) and Operator(s) 47384-85, 47393, 47395, 47397-98, 47436, 47454, 47484, 47487
Pattern of Response 47401, 47416, 47446, 47473-74, 47489
Pipelines 471i, 47392, 47395, 47399, 47418-19, 47421.22, 47439, 47444, 47446, 47475-77, 47487, 47493-95.
58 FR 54715
Planning and Coordination Structure (see also Area Contingency Plans) 47393-94, 47416, 47440
Relationship of plans (see also National Response System - Planning Diagram) 47394-95, 47441-42
(diagram p. 47422)
Pollution Reports 47391, 47431-32, 47434, 47474, 47481, 47488
Preauthorization (see also Dispersarus) 47394-95, 47398, 47407-11, 47413, 47432, 47453-54, 47487, 58
54726-27
Preliminary Assessment and Initiation of Action 47399, 47416-17, 47444, 47473, 47488, 58 FR 54716
Preparedness 47384, 47386-88, 47391, 47393-95, 47398-400, 47405-06, 47416, 47420, 47424, 47430-32,
47434, 47437-38, 47440, 47473, 47475, 47480-81, 47484, 47487, 47489, 47495
Preparedness for Response Exercise Program (PREP) (see also Drills and Exercises) 47391, 47398
Preplanning (see also Dispersants) 47390, 47396, 47404
Private Parties/Private Sector (see also Responsible PartyfPrivate Party and Nongovernmental
Participation/Personnel) 47388, 47393-94. 47399, 47401-02, 47437, 47439, 47446, 47452-53, 47489, 47494
Product Schedule (see also Dispersanis) 47384, 47394, 47406-08, 47410-15, 47416, 47445, 47454-58, 47461,
47471, 47487, 47490
Public Information (see also Communications and Community Relations) 47391, 47396, 47416-17, 47420,
47434-36, 47450, 47453, 47474-75, 47477, 47484, 58 FR 54709
Public Participation (see also Community Relations) 47418, 47421, 47452-53, 47491-92
DR.AFI ’ Page9
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Purpose of the NCP 47384. 47418, 47422, 47433, 47443, 47475-76, 47489
Recovered Oil (see also Jettisoning Oil and Return of Oil or Oily Water) 47446, 47490.91
Regional Administrator 47395, 47424, 47432
Regional Contingency Plan (RCP) 47393, 47395, 47399, 47417.19, 47423, 47430-31, 47434, 47437, 47440,
47443.44, 47446, 47451, 47454, 47473-76, 47480-81, 47486-91, 47493-95
Regional Response Team (RRT) 47385, 47388-89, 47391-92. 47394-95, 47398, 47401, 47404.05, 47408-09.
47412, 47417, 47424, 47430-32, 47434-40, 47446.47, 47449-51, 47454, 47474, 47477-78, 47480-82, 47484,
47487-93, 47495
Activation for Response/incident-Specific Team 47389, 47430-31, 47446.47, 47449, 47477, 47480-8 1,
47490
Membership 47389, 47424, 47430-32, 47434, 47437-40, 47480
Participation
Indian Tnbes 47385, 47392, 47404, 47431, 47440, 47481
Local Government 47388.89, 47430-31, 47440, 47451, 47480-81, 47495
State Government 47389, 47398, 47430-31, 47440, 47443, 47451, 47480-81, 47495
Responsibilities 47389, 47394-95, 47399, 47408, 47424, 47427, 47430-31, 47434-35, 47437, 47440,
47443, 47446.47, 47449, 47480-81, 47487, 47490-91
Standing Team 47388-89, 47408, 47430-31, 47437, 47480-81
Regulatory Impact Analysis (see Supporting Analyses)
Removal Action (see also Consultation) 47384, 47388, 47390-91, 47393, 47398-401, 47403-05, 47416-17,
47419-21, 47432-34, 47436, 47443-50, 47452-53, 47474-75, 47477, 47484, 47486, 47488-89, 47491-92
Response 47384-408, 47411, 474 14-24, 47430-41, 47443-57, 47460-61, 47463, 47465, 47467-70, 47473-78,
47480-81, 47484, 47486-95
Area 47398, 47401-02, 47416, 47444, 47473, 47487
Authoniy 47387-88, 47390, 47399-401, 47405, 47424, 47432, 47434, 47437, 47445, 47490
Determination to Initiate 47399, 47403, 47421-22, 47433, 47445-46, 47448-50
Improper 47401-02, 47446, 47489
Multi-regional 47416, 47434, 47474, 47490
Nongovernmental Participation in 47392-93, 47416, 47440, 47493
Operations 47387, 47389-90, 47392, 47395, 47398.99, 47401.02, 47406, 47416.17, 47419, 47421,
47424, 47430-31, 47434-35, 47437, 47440, 47443.46, 47452-53, 47473.75, 47480.81, 47484, 47486-87,
47489-95
State and Local Participation in 47392, 47394-95, 47416, 47440, 47495
Response Management Structure/System (see also Unified Command and National Response System)
47387-88, 47393, 47396, 47399-400, 47406, 47424, 47434, 47445, 47478, 47488
Response Priorities (see National Response Priorities)
Response Resources (see also Non-monetary Response Resources) 47390, 47394, 47396-97, 47400, 47402,
47406, 47431, 47435, 47445, 47452, 47480-81, 47484, 47489, 47491-92
Responsible Party/Private Party (see also Nongovernmental Participation/Personnel and Private
Parties/Private Sector) 47387-88, 47390-91, 47393, 47396, 47399-406, 47418, 47421-24, 47432, 47434-37,
47440, 47445-48, 47450, 47452-53, 47476-78, 47481, 47484, 47487-92, 47495
* * $ DRAFT * * * Page 10
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Restoratior ‘7404-05, 47420, 47437, 47439, 47451-52, 47491-94
Return of Oil or Oily Water (see also Jettisoning Oil and Recovered Oil) 47401
Revised Standard Dispersant Toxicity Test (RSDTT) 47411-12, 47416, 47458, 47461, 58 , 54730
Risk Management Plan 47388
Salvage/Salvagers 47385, 47401-02, 47417, 47435, 47438, 47445, 47447, 47474, 47484, 47489, 47492, 47494
Scientific Support Coordinators (SSCs) 47390, 47400, 47405, 47417, 47435, 47437, 47440, 47443, 47474,
47477, 47481.82, 47484, 47486, 47493-94
Scope (of the NCP) 47387, 47443
Sensitive Areas/Environments (see Areas of Economic or Environmental Importance)
Settlement Negotiations 47405-06
Significant and Substantial harm (see also Oil Pollution Prevention) 47385, 47441, 47444
Sinking Agents 47418, 47420 47422, 47446, 47454, 47475.76, 47487, 47490
Sorbents 47407, 47418, 47420, 47423, 47457, 47475.76, 58 FR 54732-4
Special Teams 47390-91, 47416, 47420, 47434, 47447, 47449, 47473, 47475, 47477.78, 47481, 47484, 47490,
47494
Spill Classification System (see Discharge - Classification and Type of)
Spill(s) of National Significance (SONS) (see also Incident Commander) 47402-03, 47416.17, 47423,
47447, 47446, 47473-74, 47476, 47489, 47490, 58 FR 54718, 58 FR 54721
Authority of OSC 47403, 47447, 47490
Coordination of Resources 47402-03, 47423, 47447, 47490
Frequency 47402
State and Local Participation (see also Unified Command) 47392, 47416, 47440
State Emergency Response Commissions (SERCs) 47389, 47397, 47417, 47431, 47440-41, 47443, 47474,
47481, 47486
State Lead Response (see also State On-Scene Coordinator) 47392, 47432, 47440, 47451
State Lead Trustee 47404, 47451
State On-Scene Coordinator (see also State Lead Response) 47387-88, 47392-93
Stnke Teams 47384, 47420, 47434-35, 47447, 47475, 47484, 47490
Substantial Threat to Public Health or Welfare, Discharge Posing (see also Direct, Authority to) 47384,
47388-90, 47400, 47402-03, 47422.23, 47430-31, 47433-34, 47445-49, 47476-77, 47488-90, 58 FR 54718-21
Ident ification of 47384, 47402, 47422.23, 47434, 47446, 47448-49, 47476, 47488, 58 54719
DR.AF1’ Pagell
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Response to 47384, 47388-90, 47400, 47403, 47430-31, 47433, 47445.47, 47449, 47477, 47489,
47490, 58 FR 54720
Supporting Analyses 47384, 47415
SUPSALV 47385, 47391, 47417, 47435, 47438, 47474, 47484, 47494
Surface Collecting Agents 47389-90, 47394, 47420, 47424, 47431, 47454, 47456-58, 47471, 47473, 47475,
47477, 47481, 47487
Surface Washing Agents 47389-90, 47394, 47413, 47420, 47424, 47431, 47454-58, 47471, 47473, 47475,
47477, 47481, 47487, 58 FR 54730-I
Swirling Flask Dispersani Effectiveness Test (see also Dispersants) 47409, 47412, 47416, 47458, 58 FR
54729-30
Tank Vessel 47386-87, 47393, 47424, 47440-41, 47443-44, 47447, 47473, 47477, 47486-87, 47490, 47493
Title I II 47395, 47399, 47416-17, 47422, 47430, 47440-41, 47443-44, 47486
Toxicity Test (see Bioremediation Agents - Toxicity Test, Dispersants, and Revised Standard Dispersani
Toxicry Test (RSD1T))
Training 47389, 47391-93, 47395-96, 47398-99, 47430-32, 47435, 47438-39, 47444, 47478, 47480-81, 47484,
47487, 47494-95
Employee/Worker 47391, 47438-39, 47494
Exercises (see Drills and Exercises)
Reqwrernenss for OSCs and Other Response Personnel 47389, 47395-96, 47398, 47430-31, 47433,
47435, 47438, 47478, 47480, 47484,
Safety 47391
Volunteers 47392, 47395, 47444, 47487
Trust Resources (see Natural Resources)
Trustees (see Natural Resource Trustees)
Unified Command (see also Response Management Structure/System and Stale and Local Participation)
47387-89, 47393, 47396, 47399, 47400, 47424, 47434, 47445, 47478, 47488
Vegetable Ott (See Edible Oils - Vegetable Oil)
Vessel Response Plan(s) 47393, 47395, 47398, 47401-02, 47416, 47444, 47473, 47487
Volunteers 47392-93, 47395, 47424, 47440, 47444, 47477, 47487, 47493
Waste (see also Disposal) 47396, 47401, 47416, 47419-20, 47422, 47432, 47434, 47438-39, 47446, 47448,
47466, 47473, 47476, 47490, 47494-95
Hazardous 47419, 47424, 47432, 47434, 47438-39, 47448, 47466, 47495
Oil Mixed with 47420, 47476
Transportation of 47446, 47490
Treatment Systems 47420, 47476
*** DRAFT PagelZ
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Wetlands (see also Sensitive Areas/Environments and Fish and Wildlife and Sensitive Environments Plan)
47386, 47397, 47420, 47439, 47476, 47494
Wildlife (See also Fish and Wildlife and Sensitive Environments Plan) 47384, 47392. 47394, 47396-98.
47406, 47409, 47417, 47420, 47422, 47433, 47438-40, 47443.46, 47451-52, 47473-77, 47481, 47486.94
Conservation 47439, 58 FR 54722
Rehabilitation 47384, 47396-98, 47406, 47440, 47443-44, 47481, 47486-87
Worker Health and Safety (see also Health and Safely and Occupational Safety and Health) 47391, 47416,
47434, 47436, 47440, 47452, 47474, 47488, 47490, 47493
Worst Case Discharge 47384-85, 47387, 47393, 47402-03, 47417, 47424, 47431, 47434-35, 47440-41,
47443.44, 47446-47, 47474, 47477, 47480-81, 47484, 47486-90, 47493, 58 FR 54718, 58 FR 54721-22
Determination of 47385, 47387, 47402-03, 47446-47
From Small Facilities or Vessels 47403
Implementation of ACP 47385, 47397, 47403, 47443, 47447, 47474, 47481, 47490
Initiation of Facility Response Plan 47393, 47403, 47444, 47447, 47487, 47490
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[ Federal Register: September 26, 1994)
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[ SW H—FRL—5078—71
RIN 2050—AD 30
Oil Pollution Prevention; Non—Transportation-Related Onshore
Facilities; Correction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; corrections.
SUMMARY: EPA is making technical corrections to errors in the technical
appendices to the final rule for facility response plans required by
the Oil. Pollution Act (CPA) of 1990, which appeared in the Federal
Register on July 1, 1994 (59 FR 34070)
EFFECTIVE DATE: August 30, 1994.
FOR FURTHER INFORI’4ATION 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/SFCC 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:
Background
EPA published a final rule in the Federal Register on July 1, 1994
(59 FR 34070) revising the Oil Pollution Prevention regulation, 40 CFR
part 112, originally promulgated under the Clean Water Act. The
revision in.corporates ne requirements added by the Oil Pollution Act
of 1990, 33 U.S.C. 2701 et seq., that direct 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.
Need for Correction
As published, the final rule contained a number of minor technical
errors that may prove to be misleading and are in need of
clarification. The reasons for these technical changes (including
clarifying section references and correcting nanor grammatical errors)
are, for the most part, self-evident. None of these changes is intended
to effect substantive requirements; they only correct inadvertent
errors in the July 1, 1994 final rule and ensure consistency within the
Appendices to the final rule, and between them and the regulatory text.
Corrections 7 and 8, while also technical and non-substantive in
nature, warrant a brief discussion. To avoid confusion, corrections 7
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and 8 are made to clarify that the Emergency Notification Phone List
and Spill Response Notification Form are each separate parts of Section
1.3.1 of the overall response plan. Thus, items 2 and 3 of Section 1.1
each call for a partial inclusion of Section 1.3.1 (item 2 calls for
the Emergency Notification Phone List and item 3 calls for the Spill
Response Notification Form) . Together, items 2 and 3 call for the
complete Section 1.3.1. As published, the final rule incorrectly stated
that items 2 and 3 each called for the complete Section 1.3.1. This is
being corrected to state that each calls for only part of Section
1.3.1.
In addition, an inaccuracy in the summary section of the preamble
to the final rule needs to be noted. The U.S. Environn ental Protection
Agency regulates non—transportation-related facilities under sections
311(j) (1) (C) and 311(j) (5) of the CWA as delegated by Executive Order
12777. The preamble language in one instance incorrectly and
inadvertently indicated that the Oil Pollution Prevention regulation
applied to transportation—related facilities.
Correction of Publication
PART 112-- [ CORRECTED]
Accordingly, the final rule is corrected as follows:
1. On page 34110, in the third column, in the first paragraph under
section A.2.3, in line 7, ‘‘A2(b) ‘‘ is corrected to read ‘‘A.2.2’ ‘.
2. On page 34111, in the first column, in the first paragraph under
section B.2.3, in line 9, ‘‘B2(b) ‘ ‘ is corrected to read ‘‘B.2.2’
3. On page 34112, in the first column, in section 1.2.8, the text
which reads ‘ ‘Other definitions are included in Sec. 112.2, section 1.2
of Appendices C and 5, and section 3.0 of Appendix F’’ is corrected to
read ‘‘Other definitions are included in Sec. 112.2 and section 1.1 of
Appendix C’’.
4. On page 34112, in the third column, in section 4.3, in line 9,
the text which reads ‘‘section 1.2’ ‘ is corrected to read ‘‘section
1.1’’.
5. On page 34114, in the third column, in section 7.3, in line 4,
the text which reads ‘‘for Groups 1’’ is corrected to read ‘‘for Group
1’’.
6. On page 34115, in the first column, in section 7.4, in line 4,
the text which reads ‘‘for a facility’ ‘ is deleted.
7. On page 34124, in the first column, in section 1.1, in item 2,
the word ‘‘complete’’ is corrected to read ‘‘partial’
8. On page 34124, in the first column, in section 1.1, in item 3,
the word ‘‘complete’’ is corrected to read ‘‘partial’’.
9. On page 34135, in the second column, in the heading for section
2.1, the text which reads ‘‘Page One--General Information’’ is
corrected to read ‘ ‘General Information’ ‘.
10. On page 34135, in the second column, in the heading for section
2.2, the text which reads ‘‘Page Two--Applicability of Substantial Harm
Criteria’’ is corrected to read ‘‘Applicability of Substantial Harm
Criteria’’.
11. On page 34135, in the third column, in the heading for section
2.3, the text which reads ‘‘Page Three——Certification’’ is corrected to
read ‘‘Certification’ I
Authority: 33 U.S.C. 1321 and 1361; E O. 12777 (October 18,
1991), 3 CFR, 1991 comp., p. 351.
Dated: September 19, 1994.
Elliott P. Laws,
Assistant Administrator.
[ FR Doc. 94—23764 Filed 9—23—94; 8:45 am]
BILLING CODE 6560-50-P
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[ Federal Register: February 28, 1996 (Volume 61, Number 40)]
[ Rules and Regulations]
[ Page 7419—7421]
From the Federal Register Online via GPO Access [ wais.access.gpo.gov]
[ DOCID: fr28fe96—ll]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Fart 110
[ FRL—5430—61
Oil Discharge Program; Editorial Revision of Rules
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
removing text from the Code of Federal Regulations (CFR), specifically
40 CFR part 110, which is unnecessary because it simply repeats
language already set out in section 311 of the Federal Water Pollution
Control Act (the Clean Water Act or the Act) . EPA is also making other
editorial revisions in 40 CFR part 110. Neither the removal of text nor
the editorial revisions effect any substantive changes to the revised
rules.
EFFECTIVE DATE: February 28, 1996.
FOR FURTHER INFORMATION CONTACT: Hugo Paul Fleischman, Office of
Emergency and Remedial Response, U.S. Environmental Protection Agency,
401 H St., SW, Washington, DC 20460, nail code 5203G, phone (703) 603—
8769; or the RCRA/Superfund Hotline, phone (800) 424—9346 or (703) 603—
9232 in the Washington, DC, metropolitan area.
SUPPLEMENTARY INFORMATION:
I. Introduction
On March 4, 1995, The President directed all Federal agencies and
departments to conduct a comprehensive review of the regulations they
administer, and by June 1, 1995, to identify those rules that are
obsolete or unduly burdensome. EPA has
[ [ Page 7420]]
conducted that review and, on June 29, 1995, published a final rule
eliminating legally obsolete rules. See 60 FR 33912. Now EPA is taking
another step in the ongoing review of its rules. EPA has reviewed 40
CFR part 110, and is removing text which unnecessarily repeats section
311 of the Act. EPA is also revising regulatory text: to make it more
concise, to conform more closely to statutory language, or to eliminate
text which is legally obsolete. All of these changes are editorial.
None effect any changes to the substance of the revised rules. EPA is
also redesignating affected sections as necessary.
II. Provisions Which Largely Track the Clean Water Act
EPA is removing the following provisions, or parts thereof, which
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EPA is removing the following provisions, or parts thereof, which
either track the language of the Act precisely, or closely paraphrase
it. These changes either make the regulatory text more concise or
remove legally obsolete language.
40 CFR 110.1 Definitions
EPA is revising the introductory text to Sec. 110.1 to provide that
words not defined therein have the same meaning as in section 311(a) of
the Act. Therefore, EPA is removing the following definitions in
Sec. 110.1 which track language in section 311 of the Act. The
definitions are: ‘‘contiguous zone;’’ ‘‘Deepwater port;’’
‘discharge; ‘ ‘ ‘oil; ‘ ‘ ‘ ‘offshore facility;’ ‘ ‘‘onshore facility;’
‘‘person;T ‘‘public vessel;’’ and, ‘‘vessel.’’ ‘‘Deepwater port’’ is a
term no longer appearing in part 110, therefore the definition is no
longer necessary. See 60 FR 33912.’’Oil,’’ as defined in relation to
section 18 of the Deepwater Port Act of 1974, is also being removed.
Section 18 was repealed by section 2003(a) of the Oil Pollution Act of
1990, Public Law 202—380, August 18, 1990. Therefore, that part of the
definition is legally obsolete.
40 CFR 110.2 Applicability
EPA is removing the second and third sentences of the paragraph
comprising this section. The second sentence of the paragraph describes
the scope of discharge prohibited by section 311(b) (3) of the Act, and
closely tracks the language of that section. Removal of this sentence
will have no effect on the scope of prohibited discharges. The rule and
section 311(b) (3) of the Act will continue to prohibit illegal
discharges. EPA is also removing the third sentence of the paragraph
because it merely references a removed section, i.e., Sec. 110.11. That
section was removed from the CFR on June 29, 1995 (60 FR 33912) because
it was legally obsolete.
40 CFR 110.9 [ sic] Discharge Prohibited
EPA is removing this section because it merely paraphrases the
statutory language of section 311(b) (3) of the Act. This section should
have been designated Sec. 110.6, but due to error was designated as
Sec. 110.9.
II I. Editorial Changes
EPA is revising the text in the sections described below in order
to make them more concise, and to consolidate similar text now in
multiple sections into one section where possible. In one case, EPA is
revising regulatory text to conform more closely to statutory language.
The revisions to or redesignation of affected sections is explained
below.
40 CFR 110.3 Discharge Into Navigable Waters of Such Quantities as May
Be Harmful
Revised Sec. 110.3 consolidates regulations from old Secs. 110.3,
110.4, and 110.5. The section heading is being revised to read
‘‘Discharge of oil in such quantities as ‘may be harmful’ pursuant to
section 311(b) (4) of the Act,’’ in order to reflect the consolidation
of the regulations under that section. The new name of the section
describes its enlarged scope. Revised Sec. 110.3 now includes
discharges of oil: into navigable waters formerly included within the
scope of old Sec. 110.3, into the contiguous zone formerly included
within the scope of old Sec. 110.4, and beyond the contiguous zone
formerly included within the scope of old Sec. 110.5. EPA is removing
old Secs. 110.4 and 110.5 because the text of revised Sec. 110.3 now
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old Secs. 110.4 and 110.5 because the text of revised Sec. 110.3 now
includes all discharges of oil, whether in navigable waters, the
contiguous zone, or beyond the contiguous zone. EPA is also revising
the text of Sec. 110.3 to make clear that discharges affecting the
environment, as provided in section 311(b) (4) of the Act, are included
within the scope of prohibited discharges.
40 CFR 110.4 Discharge Into Contiguous Zone of Such Quantities as May
be Harmful
EPA is removing this section because its provisions have been
incorporated into revised Sec. 110.3.
40 CFR 110.5 Discharge Beyond Contiguous Zone of Such Quantities as
May be Harmful
EPA is removing this section because its provisions have been
incorporated into revised Sec. 110.3. In its place, EPA is revising and
renaming Sec. 110.5. The renamed section describes those discharges
which have been determined not to be harmful, combining the text from
old Secs. 110.7 and 110.9.
40 CFR 110.7 Exception for Vessel Engines
EPA is removing this section because the exception is now included
within revised Sec. 110.5.
40 CFR 110.8 Dispersants
This section is being redesignated as Sec. 110.4.
40 CFR 110.9 Demonstration Projects
EPA is removing this section because discharges permitted in
connection with research, demonstration proDects, or studies relating
to the prevention, control, or abatement of oil pollution are now
included in revised Sec. 110.5.
40 CFR 110.10 Notice
EPA is redesignating this section as Sec. 110.6. EPA is also
removing the reference to Sec. 110.6 in the first sentence of the
section, and substituting Sec. 311 (b) (3) of the Act in its place.
This change is necessary because former Sec. 110.6, ‘‘Discharges
prohibited, ‘ ‘ is being removed. The revision is strictly editorial and
does not change the scope of prohibited discharges.
IV. Differentiation Between Classes of Oils
Pursuant to Public Law 104—55 (109 Stat. 546), enacted November 20,
1995, most Federal agencies (including EPA) must, in the issuance or
enforcement of any regulation or the establishment of any
interpretation or guideline relating to the transportation, storage,
discharge, release, emission, or disposal of a fat, oil, or grease,
differentiate between and establish separate classes for animal fats
and oils and greases, fish and marine mammal oils, and oils of
vegetable origin (as opposed to petroleum and other oils and greases).
EPA has considered whether differentiation between and establishment of
separate classes of oils is appropriate for this rule, and concluded
that it is not. This conclusion is based on the fact that the instant
revisions are merely editorial and do not change any substantive
aspects of the oil discharge program, thereby vitiating any need for
differentiation.
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V. Good Cause Exemption From Notice and Comment Rulemaking
Procedures
The Adrtu.nistrative Procedure Act generally requires agencies to
provide prior notice and opportunity for public comment before issuing
a final rule. 5 U.S.C. 553(b). Rules are exempt from this requirement
if the issuing agency finds for good cause that notice and
( [ Page 7421]]
comment are unnecessary. 5 U.S.C. 553(b) (3) (B).
EPA has determined that providing prior notice and opportunity for
comment on the removal and revision of these Regulatory provisions from
the CE’S is unnecessary. The removals and revisions contained in this
final rule are merely editorial and do not affect any substantive
aspects of the oil discharge program.
For the same reasons, EPA believes there is good cause for making
the removal and revision of these regulatory provisions from the CFR
effective immediately. See 5 U.S.C. 553(d).
VI. Analyses Under E.O. 12866, the Unfunded Mandates Reform Act of
1995, the Regulatory Flexibility Act and the Paperwork Reduction
Act
Because the revision or removal of these rules from the CFR is
merely editorial and thus has no regulatory impact, this action is not
a ‘‘significant’’ regulatory action within the meaning of E.O. 12866,
and does not impose any Federal mandate on State, local, or tribal
governments or the private sector within the meaning of the Unfunded
Mandates Reform Act of 1995. For the same reasons, pursuant to the
Regulatory Flexibility Act, I certify that this action would not have a
significant economic impact on a substantial number of small entities.
Finally, because these revisions and removals are merely editorial,
they do not affect requirements under the Paperwork Reduction Act.
List of Subjects in 40 CFR Part 110
Environmental protection, Deepwater ports, Oil pollution.
Dated: February 15, 1996.
Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 110-- AME 1DED]
1. The authority citation for part 110 continues to read as
follows:
Authority: 33 U.S.C. 1321(b) (3) and (b) (4) and 1361(a); E.O.
11735, 38 FR 21243, 3 CFR Parts 1971—1975 Comp., p. ‘793.
2. In section 110.1 the introductory text is revised and the
definitions of ‘ ‘contiguous zone, ‘ ‘ ‘ ‘Deepwater port, ‘ ‘‘discharge, ‘
‘offshore facility, ‘ ‘ ‘oil, ‘‘onshore facility, ‘ ‘ ‘ ‘person,
‘‘public vessel,’’ and ‘‘vessel’’ are removed; to read as follows:
Sec. 110.1 Definitions.
Terms not defined in this section have the same meaning given by
the Section 311 of the Act. As used in this part, the following terms
shall have the meaning indicated below:
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shall have the meaning indicated below:
* * * * *
3. Section 110.2 is revised to read as follows:
Sec. 110.2 Applicability.
The regulations of this part apply to the discharge of oil
prohibited by section 311(b) (3) of the Act.
4. Section 110.3 is revised to read as follows:
Sec. 110.3 Discharge of oil in such quantities as ‘‘may be harmful’’
pursuant to section 311 (b ) (4) of the Act.
For purposes of section 311(b) (4) of the Act, discharges of oil in
such quantities that the Administrator has determined may be harmful to
the public health or welfare or the environment of the United States
include discharges of oil, 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.
Sec. 110.4 [ Removed and Reserved]
5. Section 110.4 is removed and reserved.
6. Sect ion 110.5 is revised to read as follows:
Sec. 110.5 Discharges of oil not determined ‘‘as may be harmful’’
pursuant to Section 311(b) (3) of the Act.
Notwithstanding any other provisions of this part, the
Administrator has not determined the following discharges of oil ‘‘as
may be harmful’’ for purposes of section 311(b) of the Act;
(a) Discharges of oil from a properly functioning vessel engine
(including an engine on a public vessel) and any discharges of such oil
accumulated in the bilges of a vessel discharged in compliance with
MARPOL 73/78, Annex I, as provided in 33 CFR part 151, subpart A;
(b) Other discharges of oil permitted under MARPOL 73/78, P,rtnex I,
as provided in 33 CFR part 151, subpart A; and
(c) Any discharge of oil explicitly permitted by the Administrator
in connection with research, demonstration projects, or studies
relating to the prevention, control, or abatement of oil pollution.
Sec. 110.9 [ Removed)
7. Section 110.9 ‘‘Discharge prohibited’’, appearing between
Sec. 110.5 and 110.7, is removed.
Sec. 110.7 [ Removed]
8. Section 110.7 is removed.
Sec. 110.8 (Redesignated as Sec. 110.41
9. Section 110.8 is redesignated as Sec. 110.4.
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Sec. 110.9 [ Removed]
10. Section 110.9 is removed.
Sec. 110.10 [ Redesignated as Sec. 110.6)
11. Section 110.10 is redesignated as Sec. 110.6, and the newly
designated Sec. 110.6 is further amended by revising the first sentence
to read as follows:
Sec. 110.6 Notice.
Any person in charge of a vessel or of an onshore or offshore
facility shall, as soon as he or she has knowledge of any discharge of
oil from such vessel or facility in violation of section 311(b) (3) of
the Act, immediately notify the National Response Center (NRC) (800—
424—8802; in the Washington, DC metropolitan area, 202—462—2675) . * * *
[ FR Dcc. 96—4386 Filed 2—27—96; 8:45 am)
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[ Federal Register: December 31, 1996 (Volume 61, Number 252)]
(Rules and Regulations]
[ Page 69359—69366]
From the Federal Register Online via GPO Access [ wais.access.gpo.gov]
[ DOCID: fr3lde96—28]
[ [ Page 693591]
Part V
Environmental Protection Agency
40 CFR Parts 19 and 27
Civil Monetary Penalty Inflation Adjustment Rule; Final Rule
[ [ Page 69360]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 19 and 27
[ FRL—5671—l]
Civil Monetary Penalty Inflation Adjustment Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: The Environmental Protection Agency (‘ ‘EPA’’) is issuing this
final Civil Monetary Penalty Inflation Adjustment Rule as mandated by
the Debt Collection Improvement Act of 1996 to adjust EPA’s civil
monetary penalties (‘‘CNP5’’) for inflation on a periodic basis. Prior
to this new law, EPA’s penalties had never been adjusted for inflation.
This rule will allow EPA’s penalties to keep pace with inflation and
thereby maintain the deterrent effect Congress intended when it
originally specified penalties.
This first mandatory ad:ustment increases almost all of EPA’s
penalty provisions by ten percent (except for new penalty provisions
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enacted into law in 1996, which are not being increased) . The Agency is
required to review its penalties again at least once every four years
thereafter and to adjust them as necessary for inflation according to a
specified formula.
EFFECTIVE DATE: January 30, 1997.
FOR FURTHER INFORMATION CONTACT: Steven M. Spiegel, Of f ice of
Regulatory Enforcement, Multimedia Enforcement Division, Mail Code
2248W, 401 M Street, SW, Washington, D.C. 20460, or at (703) 308—8507.
Further information may also be requested by electronic mail (e—mail)
to: spiegel. steven@epamail.epa.gov.
SUPPLEMENTARY INFORMATION: Pursuant to the Federal Civil Penalties
Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note; Pub. L. 101-410,
enacted October 5, 1990; 104 Stat. 890), as amended by the Debt
Collection Improvement Act of 1996 (31 U.S.C. 3701 note; Public Law
104—134, enacted April 26, 1996; 110 Stat. 1321), (‘‘DCIA’ ‘), each
Federal agency is required to issue regulations adjusting for inflation
the maximum civil monetary penalties that can be imposed pursuant to
such agency’s statutes. With the adoption of this rule implementing
these statutes, all violations which take place after January 30, 1997
will be subject to the new statutory maximum civil penalty amounts.
With the exception of the new penalty provisions added by the 1996
amendments to the Safe Drinking Water Act, all of the statutory penalty
provisions administered by EPA are being increased. All of these
increases are for the maximum allowed, ten percent. The affected
penalty provisions and their statutory maximum amounts are set out in
Table 1 of the new 40 CFR 19.4.
Section 5 of the DCIA sets forth the formula for adjusting the
penalties for inflation:
The inflation adjustment described under section 4 shall be
determined by increasing the maximum CMP or the range of minimum and
maximum CMPs, as applicable, for each CMP by the cost-of-living
adjustment. * * * The term ‘cost—of—living’’ adjustment is the
percentage for each CMP by which the Consumer Price Index (CPI) for
the month of June of the calendar year preceding the adjustment,
exceeds the Consumer Price Index for the month of June of the
calendar year in which the amount of such CMP was last set or
adjusted pursuant to law. Any increase determined under this
amendment shall be rounded *
However, the DCIA also sets a ten percent cap on the first
adjustment for inflation. Since EPA’s penalties have never previously
been adjusted for inflation, this first statutorily required adjustment
will be limited to ten percent. Table A below sets forth each CMP
provision which is being increased pursuant to the DCIA and the
intermediate calculations performed to arrive at the adjusted final
maximum penalty contained in the last column and in today’s rule.
Table A.——Summary of Civil Monetary Penalty In
Year
penalty
Civil monetary amount Maximum penalty Inflat
U.S. Code citation penalty description was last amount set by law calcu
set by as of 10/23/96
law
7 U.S.C. 1361 C l) FEDERAL INSECTICIDE, 1978 $5,000
FUNGICIDE, &
RODENTICIDE ACT
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CIVIL PENALTY--
GENERAL--COMMERCIAL
APPLICATORS, ETC.
7 U.S.C. 1361 (2) FEDERAL INSECTICIDE, 1978 500/1,000
FUNGICIDE, &
RODENTICIDE ACT
CIVIL PENALTY--
PRIVATE APPLICATORS--
1ST & SUBSEQUENT
OFFENSES OR
VIOLATIONS.
15 U.S.C. 2615 TOXIC SUBSTANCES 1976 25,000
CONTROL ACT CIVIL
PENALTY.
15 U.S.C. 2647(a) ASBESTOS HAZARD 1986 5,000
EMERGENCY RESPONSE
ACT CIVIL PENALTY.
31 U.S.C. 3802(a) (1).. PROGRAM FRAUD CIVIL 1986 5,000
REMEDIES ACT!
VIOLATION INVOLVING
FALSE CLAIM.
31 U.S.C. 3802(a) (2).. PROGRAM FRAUD CIVIL 1986 5,000
REMEDIES ACT!
VIOLATION INVOLVING
FALSE STATEMENT.
33 U.S.C. 1319(d) CLEAN WATER ACT 1987 25,000
VIOLATION/CIVIL
JUDICIAL PENALTY.
33 U.S.C. CLEAN WATER ACT 1987 10,000/25,000.
1319(g) (2) (A). VIOLATION!
ADMINISTRATIVE
PENALTY PER
VIOLATION AND
MAXIMUM.
[ [ Page 69361]]
33 U.S.C. CLEAN WATER ACT 1987 10,000/125,000...
1 3 19(g) (2) (B). VIOLATION !
ADMINISTRATIVE
PENALTY PER
VIOLATION AND
MAX I MUM.
33 U.S.C. CLEAN WATER ACT 1990 10,000/25,000....
1321(b) (6) (B) (I ). VIOLATION/ADMIN
PENALTY OF SEC
311(b) (3) & (j) PER
VIOLATION AND
MAXIMUM.
33 U.S.C. CLEAN WATER ACT 1990 10,000/125,000...
1321(b) (6) (B) (i i). VIOLATION!ADMIN
PENALTY OF SEC
311(b) (3( & (j) PER
VIOLATION AND
MAXIMUM.
33 U.S.C. CLEAN WATER ACT 1990 10,000 or
1321(b) (7) (A( . VIOLATION/CIVIL 1,000 per b/u....
JUDICIAL PENALTY OF
SEC 311(b) (3)——PER
VIOLATION PER DAY OR
PER BARREL OR UNIT.
33 U.S.C. CLEAN WATER ACT 1990 25,000
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1321(b) (7) (B) . VIOLATION/CIVIL
JUDICIAL PENALTY OF
SEC 311 (c) &
(e) (1) (B).
33 U.S.C. 1321(b) (7) CLEAN WATER ACT 1990 25,000
C). VIOLATION/CIVIL
JUDICIAL PENALTY OF
SEC 311(j).
33 U.S.C. CLEAN WATER ACT 1990 100,000 or 3,000
1321 (b) (7) (D). VIOLATION/MINIMUM per b/u.
CIVIL JUDICIAL
PENALTY OF SEC
311(b) (3)——PER
VIOLATION OR PER
BARREL/UNIT.
33 U.S.C. 1414b(d).... MARINE PROTECTION, 1988 600
RESEARCH AND
SANCTUARIES ACT VIOL
SEC 104b (d)
33 U.S.C. 1415(a) MARINE PROTECTION, 1988 50,000/125,000...
RESEARCH AND
SANCTUARIES ACT
VIOLATIONS-—FIRST &
SUBSEQUENT
VIOLATIONS.
42 U.S.C. 300g—3)b)... SAFE DRINKING WATER 1986 25,000
ACT/CIVIL JUDICIAL
PENALTY OF SEC
1414 (b)
42 U.S.C. 300g-3(c) ... SAFE DRINKING WATER 1986 25,000
ACT/CIVIL JUDICIAL
PENALTY OF SEC
1414 (c)
42 U.S.C. 300g- SAFE DRINKING WATER 1986 25,000
3(g)(3)(A). ACT/CIVIL JUDICIAL
PENALTY OF SEC.
1414 (g) (3) (A).
42 U.S.C. 300g— SAFE DRINKING WATER 1986 5,000
3(g) (3) (B). ACT/MAXIMUM
ADMINISTRATIVE
PENALTY PER SEC.
1414 (g) (3) (B).
42 U.S.C. 300h—2(b) (1) CIVIL JUDICIAL 1986 25,000
PENALTY/VIOLATIONS
OF REQS--UNDERGROUND
INJECTION CONTROL.
42 U.S.C. 300h—2(c) (1) CIVIL ADMINISTRATIVE 1986 10,000/125,000...
PENALTY--VIOLATIONS
OF REQS—-UNDERGROUND
INJECTION CONTROL--
PER VIOLATION AND
MAXIMUM.
42 U.S.C. 300h—2(c) (2) CIVIL ADMINISTRATIVE 1986 5,000/125,000....
PENALTY--VIOLATIONS
OF REQS--UNDERGROUND
INJECTION CONTROL
PER VIOLATION &
MAXIMUM.
42 U.S.C. 300h—3(c) (1) VIOLATION/OPERATION 1974 5,000
OF NEW UNDERGROUND
INJECTION WELL.
42 U.S.C. 300h—3(c) (2) WILLFUL VIOLATION/ 1974 10,000
OPERATION OF NEW
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UNDERGROUND
INJECTION WELL.
42 U.S.C. 300i-1(b)... ATTEMPTING TO OR 1986 20,000/50,000....
TAMPERING WITH
PUBLIC WATER SYSTEM!
CIVIL JUDICIAL
PENALTY.
42 U.S.C. 300j(eH2).. FAILURE TO COMPLY W/ 1974 2,500
ORDER ISSUED UNDER
SEC. 1’441(c) (1).
42 U.S.C. 300j—4(c)... REFUSAL TO COMPLY 1986 25,000
WITH REQS OF SEC.
1445(a) OR (b).
[ [ Page 69362)]
42 U.S.C. 300j—23(d) .. VIOLATIONS/SECTION 1988 5,000/50,000
1463(b) ——FIRST
OFFENSE/REPEAT
OFFENSE.
42 U.S.C. 6928(a) (3).. RESOURCE CONSERVATION 1984 25,000
& RECOVERY ACT!
VIOLATION SUBTITLE C
ASSESSED PER ORDER.
42 U.S.C. 6928(c) EkES. CONS. & REC. ACT! 1984 25,000
CONTINUED
NONCOMPLIANCE OF
COMPLIANCE ORDER.
42 U.S.C. 6928 (g) RESOURCE CONSERVATION 1976 25,000
& RECOVERY ACT!
VIOLATION SUBTITLE C.
42 U.S.C. 6928(h)(2).. RES. CONS. & REC. ACT! 1984 25,000
NONCOMPLIANCE OF
CORRECTIVE ACTION
ORDER.
42 U.S.C. 6934(e) RES. CONS. & REC. ACT! 1976 25,000
NONCOMPLIANCE WITH
SECTION 3013 ORDER.
42 U.S.C. 6973(b) RES. CONS. & REC. ACT! 1976 5,000
VIOLATIONS OF
ADMINISTRATIVE ORDER.
42 U.S.C. 6991e(a) (3). RES. CONS. & REC. ACT! 1984 25,000
NONCOMPLIANCE WITH
UST ADMIN. ORDER.
42 U.S.C. 6991e(d) (1). RES. CONS. & REC. ACT! 1984 10,000
FAILURE TO NOTIFY OR
SUBMIT FALSE INFO.
42 U.S.C. 6991e(d) (2) VIOLATIONS OF 1984 10,000
SPECIFIED UST
REGULATORY
REQUIREMENTS.
42 U.S.C. 6992(d) (2). NONCOMPLIANCE W! 1988 25,000
MEDICAL WASTE
TRACKING ACT
ASSESSED THRU ADMIN
ORDER.
42 U.S.C. 6992d(a) (4) NONCOMPLIANCE W! 1988 25,000
MEDICAL WASTE
TRACKING ACT ADMIN
ORDER.
42 U.S.C. 6992d(d) . ... MEDICAL WASTE 1988 25,000
TRACKING ACT
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VIOLATIONS--JUDICIAL
PENALTY.
42 U.S.C. 7413(b) CLEAN AIR ACT! 1977 25,000
VIOLATIONS!OWNERS &
OPS OF STATIONARY
AIR POLLUTION
SOURCES--JUDICIAL
PENALTIES.
42 U.S.C. 7413(d) (1).. CLEAN AIR ACT! 1977 25,000/200,000...
STATIONARY AIR
POLLUTION SOURCES--
ADMINISTRATIVE
PENALTIES PER
VIOLATION AND
MAXIMUM.
42 U.S.C. 7413(d) (3).. CLEAN AIR ACT!MINOR 1990 5,000
VIOLATIONS!
STATIONARY AIR
POLLUTION SOURCES--
FIELD CITATIONS.
42 U.S.C. 7524(a) TANPERING OR 1977 2,500
MANUFACTURE/SALE OF
DEFEAT DEVICES IN
VIOLATION OF
7522(a) (3) (A) OR
(a) (3) (B)——BY
PERSONS.
42 U.S.C. 7524(a) VIOLATION OF 7522 1990 25,000
(a) (3) (A) OR
(a) (3) (B)——BY
MANUFACTURERS OR
DEALERS; ALL
VIOLATIONS OF
7522(a ) (1), (2),
(4), & (5) BY ANYONE.
42 U.S.C. 7524(c) ADMINISTRATIVE 1990 200,000
PENALTIES AS SET IN
7524(a) & 7545(d)
WITH A MAXIMUM
ADMINISTRATIVE
PENALTY.
42 U.S.C. 7545(d) VIOLATIONS OF FUELS 1990 25,000
REGULATIONS.
42 U.S.C. SUPERFUND AMEND. & 1986 25,000
9604 (e) (5) (B). REAUTHORIZATION ACT!
NONCOMPLIANCE W /
REQUEST FOR INFO OR
ACCESS.
42 U.S.C. 9606(b) SUPERFUND!WORK NOT 1986 25,000
PERFORMED N!
I1 Th4INENT,
SUBSTANTIAL
ENDANGERMENT.
((Page 69363]]
42 U.S.C. 9609(a) & SUPERFUND/ADMIN. 1986 25,000
(b). PENALTY VIOLATIONS
UNDER 42 U.S.C.
SECT. 9603, 9608, OR
9622+.
42 U.S.C. 9609(b) SUPERFUNDJADMIN. 1986 75,000
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PENALTY VIOLATIONS--
SUBSEQUENT.
42 U.S.C. 9609(c) SUPERE ’UND/CIVIL 1986 25,000
JUDICIAL PENALTY/
VIOLATIONS OF SECT.
9603, 9608, 9622.
42 U.S.C. 9609(c) SUPERFUND/CIVIL 1986 75,000
JUDICIAL PENALTY!
SUBSEQUENT
VIOLATIONS OF SECT.
9603, 9608, 9622.
42 U.S.C. 11045(a) & EMERGENCY PLANNING 1986 25,000
(b) (1), (2) & (3). AND COMMUNITY RIGHT-
TO-KNOW ACT CLASS I
& II ADMINISTRATIVE
AND CIVIL PENALTIES.
42 U.S.C. 11045(b) (2) EPCPA CLASS I & II 1986 75,000
& (3). ADMINISTRATIVE AND
CIVIL PENALTIES--
SUBSEQUENT
VIOLATIONS.
42 U.S.C. 11045(c) (1). EPCRaL CIVIL AND 1986 25,000
ADMINISTRATIVE
REPORTING PENALTIES
FOR VIOLATIONS OF
SECTIONS 11022 OR
11023.
42 U.S.C. 11045(cH2). EPCP.A CIVIL AND 1986 10,000
ADMINISTRATIVE
REPORTING PENALTIES
FOR VIOLATIONS OF
SECTIONS 11021 OR
11043(b)
42 U.S.C. 11045(d) .(2) EPCR.A.——FRIVOLOUS 1986 25,000
& (3). TRADE SECRET CLAIMS--
CIVIL AND
ADMINISTRATIVE
PENALTIES.
\1\ The ‘inflation factor’ ‘ is the result of dividing the June 1995 CPI by the CPI
\2\ The penalties must be rounded after the inflation adjustment pursuant to Public
Future adjustments also be made in accordance with the statutory
formula. Since today’s inflation adjustments are being made in December
1996, the next scheduled adjustment will cover inflation from June 1996
to June of the year in which the next adjustment is made. The DCIA
requires that penalties be adjusted for inflation at least once every
four years.
Procedural Requirements
I. Administrative Procedure Act
In accordance with 5 U.S.C. 553(b), the Administrative Procedure
Act V ‘APA’’), EPA generally publishes a rule in a proposed form and
solicits public comment on it before issuing the rule in final.
However, 5 U.S.C. 553(b) (3) (3), of the APA provides an exception to the
public comment requirement if the agency finds good cause to omit
advance notice and public participation. Good cause is shown when
public comment is ‘ impracticable, unnecessary, or contrary to the
public interest’’.
Accordingly, EPA finds that providing an opportunity for public
comment prior to publication of this rule is not necessary because EPA
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is carrying out a ministerial, non-discretionary duty specified in an
Act of Congress. This rule incorporates requirements specifically set
forth in the DCIA requiring EPA to issue a regulation implementing
inflation adjustments for all its civil penalty provisions by October
23, 1996. The formula for the amount of the penalty adjustment is
prescribed by Congress in the DCIA as well. Prior notice arid
opportunity to comment are therefore unnecessary in this case because
these changes are not subject to the exercise of discretion by EPA.
These technical changes, required by law, do not substantively alter
the existing regulatory framework nor in any way affect the terms under
which civil penalties are assessed by EPA.
II. Small Business Regulatory Enforcement Fairness Act
Under 5 U.S.C. 801(a) (1) (A), as added by the Small Business
Regulatory Enforcement Fairness Act of 1996 I,’ ‘SBREFA’’), EPA submitted
a report containing this rule and other required information to the
U.S. Senate, the U.S. House of Representatives and the Comptroller
General of the United States prior to publication of the rule in
today’s Federal Register. This rule is a not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(a).
III. Executive Order 12866—Regulatory Review
Under Executive Order 12666, (58 FR 51735 (October 4, 1993)), the
Agency must determine whether the regulatory action is ‘‘significant’
and therefore subject to Office of Management and Budget (‘‘0MB’’)
review and the requirements of the Executive Order. The Executive 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
the Executive Order.
((Page 69364])
EPA has determined that this rule is not a ‘‘significant regulatory
action’ ‘ under the terms of Executive Order 12866 and is therefore not
subject to 0MB review.
IV. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (‘‘UMPA’’),
Public Law 104-4, establishes requirements for Federal agencies to
assess the effects of certain regulatory actions on State, local, and
tribal governments and the private sector. Under sections 201, 202 and
205 of the UMRA, EPA generally must assess effects and prepare a
written statement of economic and regulatory alternatives analyses for
proposed and final rules with Federal mandates, as defined by the UMRA,
that may result in expenditures to State, local, and tribal
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governments, in the aggregate, or to the private sector, of $100
million or more in any one year.
UNRA Section 201 excepts agencies from assessing effects on State,
local or tribal governments or the private sector of rules that
incorporate requirements specifically set forth in law. Since this rule
incorporates requirements specifically set forth in the DCIA, EPA is
not required to assess its regulatory effects under Section 201.
Further, the section 202 and 205 requirements do not apply to today’s
action because they apply only to rules for which a general notice of
proposed rulemaking is published, and such notice was not published for
this rule since it was not required based on the finding of good cause
contained in Section I above. Additionally, today’s action contains no
Federal mandates for State, local or tribal governments or for the
private sector because it does not impose any enforceable duties on
these entities.
In addition, even if the assessment requirements of UNRA Title II
otherwise applied to this rule, the requirements of section 203 of UMRA
(requiring EPA to develop a small government agency plan before EPA
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments) would
not apply here. This rule contains no regulatory requirements that
might significantly or uniquely affect small governments because the
prescribed inflation adjustments do not change a small government’s
regulatory obligations. Additionally, this rule will have a similar
effect on all individuals and entities subject to civil monetary
penalties.
V. Regulatory Flexibility Act
In accordance with 5 U.S.C. 603, the Agency has determined that the
regulation being issued today is not subject to the Regulatory
Flexibility Act (‘‘RFA’ ‘}, which generally requires an agency to
conduct a regulatory flexibility analysis of any significant impact the
rule will have on a substantial number of small entities. By its terms,
the RFA applies only to rules subject to notice-and—comment rulemaking
requirements under the APA or any other statute. Today’s rule is not
subject to notice and comment requirements under the APA or any other
statute because it is exempted. As discussed in Section I, while the
rule is subject to the APA, the Agency has invoked the ‘ ‘good cause’
exemption from the APA notice and comment requirements.
The Agency nonetheless has assessed the potential of this rule to
adversely impact small entities. This rule contains no regulatory
requirements that might significantly or uniquely affect small entities
because the prescribed inflation adjustments have similar effect on all
entities subject to civil monetary penalties and does not substantively
alter the existing regulatory framework.
VI. Paperwork Reduction Act
This action contains no reporting or record keeping requirements
for any non-federal perspns or entities and consequently is not subject
to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
List of Subjects
40 CFR Part 19
Environmental protection, Administrative practice and procedure,
Penalties.
40 CFR Part 27
Administrative practice and procedure, Assessments, False claims,
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False statements, Penalties.
Dated: December 20, 1996.
Carol NI. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of
the Code of Federal Regulations is amended by adding a new part 19
as follows:
1. By adding a new part 19 to read as follows:
PART 19--ADJUSTMENT OF CIVIL MONETARY PENALTIES FOR INFLATION
Sec.
19.1 Applicability.
19.2 Effective Date.
19.3 [ Reserved)
19.4 Penalty Adjustment and Table.
Authority: Pub. L. 101-410, 104 Stat. 890, 28 U.S.C. 2461 note;
Pub. L. 104—134, 110 Stat. 1321, 31 U.S.C. 3701 note.
PART 19--ADJUSTMENT OF CIVIL MONETARY PENALTIES FOR INFLATION
Sec. 19.1 Applicability.
This part applies to each statutory provision under the laws
administered by the Environ mental Protection Agency concerning the
maximum civil monetary penalty which may be assessed in either civil
judicial or administrative proceedings.
Sec. 19.2 Effective Date.
The increased penalty amounts set forth in this rule apply to all
violations under the applicable statutes and regulations which occur
after January 30, 1997.
Sec. 19.3 [ Reserved].
Sec. 19.4 Penalty Adjustment and Table.
The adjusted statutory penalty provisions and their maximum
applicable amounts are set out in Table 1. The last column in the table
provides the newly effective maximum penalty amounts.
Table 1 of Section l9.4.--Civil Monetary Penalty Inflation Adju
U.S. Code citation Civil monetary penalty description
7 U.S.C. 136(1) FEDERAL INSECTICIDE, FUNGICIDE, & RODENTICIDE $5
ACT CIVIL PENALTY--GENERAL- COIt1ERCIAL
APPLICATORS, ETC.
7 U.S.C. 136(2) FEDERAL INSECTICIDE, FUNGICIDE, & RODENTICIDE 55
ACT CIVIL PENALTY--PRIVATE APPLICATORS--
FIRST AND SUBSEQUENT OFFENSES OR VIOLATIONS.
15 U.S.C. 2615 TOXIC SUBSTANCES CONTROL ACT CIVIL PENALTY... 27
15 U.S.C. 2647(a) ASBESTOS HAZARD EMERGENCY RESPONSE ACT CIVIL 5,
PENALTY.
31 U.S.C. 3802(a) (1) PROGRAM FRAUD CIVIL REMEDIES ACT/VIOLATION 5,
Tflnf14 n i /O dOR 11 Odd
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INVOLVING FALSE CLAIM.
[ [ Page 69365]]
31 U.S.C. 3802(a) (2) PROGRAM FRAUD CIVIL REMEDIES ACT/VIOLATION 5,
INVOLVING FALSE STATEMENT.
33 U.S.C. 1319(d) CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL 27
PENALTY.
33 U.S.C. 1319(g) (2) (A) CLEAN WATER ACT VIOLATION/ADMINISTRATIVE 11
PENALTY PER VIOLATION AND MAXIMUM.
33 U.S.C. 1319(g) (2) (B) CLEAN WATER ACT VIOLATION/ADMINISTRATIVE 11
PENALTY PER VIOLATION AND MAXIMUM.
33 U.S.C. 1321(b) 16) (B) (I) CLEAN WATER ACT VIOLATION/ADMIN PENALTY OF 11
SEC 311(B) (3)&(J) PER VIOLATION AND MAXIMUM.
33 U.S.C. 1321(b) (6) (B) (x i) CLEAN WATER ACT VIOLATION/ADMIN PENALTY OF 11
SEC 311(B) (3)&(J) PER VIOLATION AND MAXIMUM.
33 U.S.C. 1321(b) (7) (A) CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL 11
PENALTY OF SEC 311(b) (3)---PER VIOLATION PER U
DAY OR PER BARREL OR UNIT.
33 U.S.C. 1321(b) (7) (B) CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL 27
PENALTY OF SEC 311(c)&(e( (1) (B).
33 U.S.C. 1321 (b) (7) (C) CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL 27
PENALTY OF SEC 311 (J).
33 U.S.C. 1321(b) (7) (D) CLEAN WATER ACT VIOLATION/MINIMUM CIVIL 11
JUDICIAL PENALTY OF SEC 311(b) (3)--PER pe
VIOLATION OR PER BARREL/UNIT.
33 U.S.C. 1414b(d) MARINE PROTECTION, RESEARCH & SANCTUARIES ACT 66
VIOL SEC 104b(d).
33 U.S.C. 1415(a) MARINE PROTECTION RESEARCH AND SANCTUARIES 55
ACT VIOLATIONS--FIRST AND SUBSEQUENT
VIOLATIONS.
42 U.S.C. 300g-3(b) SAFE DRINKING WATER ACT/CIVIL JUDICIAL 27
PENALTY OF SEC 1414 (b)
42 U.S.C. 300g-3(c) SAFE DRINKING WATER ACT/CIVIL JUDICIAL 27
PENALTY OF SEC 1414 Cc)
42 U.S.C. 300g-3(g) (3) (A) SAFE DRINKING WATER ACT/CIVIL JUDICIAL 27
PENALTY OF SEC. 1414 (g( (3) (a)
42 U.S.C. 300g-3(g) (3) (8) SAFE DRINKING WATER ACT/MAXIMUM 5 ,
ADMINISTRATIVE PENALTY PER SEC.
1414 (g) (3) (3)
42 U.S.C. 300h-2(b) (1) CIVIL JUDICIAL PENALTY/VIOLATIONS OF REQS-- 27
UNDERGROUND INJECTION CONTROL (UIC).
42 U.S.C. 300h-2(c)(1) CIVIL ADMIN PENALTY/VIOLATIONS OF UIC REQS-- 11
PER VIOLATION AND MAXIMUM.
42 U.S.C. 300h-2(c) (2) CIVIL ADMIN PENALTY/VIOLATIONS OF UIC REQS-- 11
PER VIOLATION AND MAXIMUM.
42 U.S.C. 300h-3(c) (1) VIOLATION/OPERATION OF NEW UNDERGROUND 5,
INJECTION WELL.
42 U.S.C. 300h-3(c) (2) WILLFUL VIOLATION/OPERATION OF NEW 11
UNDERGROUND INJECTION WELL.
42 U.S.C. 300i-1(b) ATTEMPTING TO OR TAMPERING WITH PUBLIC WATER 22
SYSTEM/CIVIL JUDICIAL PENALTY.
42 U.S.C. 3 00 j (e) (2) FAILURE TO COMPLY W/ORDER ISSUED UNDER SEC. 2,
1441(c) (1).
42 U.S.C. 300j—4(c) REFUSAL TO COMPLY WITH REQS. OF SEC. 1445(a) 27
OR (b).
42 U.S.C. 300J—23(d) VIOLATIONS/SECTION 1463(b)--FIRST OFFENSE/ 5,
REPEAT OFFENSE.
42 U.S.C. 6928(a) (3) RESOURCE CONSERVATION & RECOVERY ACT/ 27
VIOLATION SUBTITLE C ASSESSED PER ORDER.
42 U.S.C. 6928(c) RES. CONS. & REC. ACT/CONTINUED NONCOMPLIANCE 27
OF COMPLIANCE ORDER.
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42 u.s.c. 6928(g) . RESOURCE CONSERVATION & RECOVERY ACT! 27
VIOLATION SUBTITLE C.
42 U.S.C. 6928(h) (2) RES. CONS. & REC. ACT/NONCOMPLIANCE OF’ 27
CORRECTIVE ACTION ORDER.
42 U.S.C. 6934(e( RES. CONS. & REC. ACT/NONCOMPLIANCE WITH 5,
SECTION 3013 ORDER.
42 U.S.C. 6973(b) RES. CONS. & REC. ACT/VIOLATIONS OF 5,
ADMINISTRATIVE ORDER.
42 U.S.C. 6991e)a) (3) RES. CONS. & REC. ACT/NONCOMPLIANCE WITH UST 27
ADMINISTRATIVE ORDER.
42 U.S.C. 6991e(d) (1) RES. CONS. & REC. ACT/FAILURE TO NOTIFY OR 11
SUBMIT FALSE INFO.
42 U.S.C. 6991e(d) (2) VIOLATIONS OF SPECIFIED UST REGULATORY 11
REQUIREMENTS.
42 U.S.C. 6992d(a) (2). NONCOMPLIANCE W/MEDICAL WASTE TRACKING ACT 27
ASSESSED THRU ADMIN ORDER.
42 U.S.C. 6992d(a) (4) NONCOMPLIANCE W/MEDICAL WASTE TRACKING ACT 27
ADMINISTRATIVE ORDER.
42 U.S.C. 6992d(d) VIOLATIONS OF MEDICAL WASTE TRACKING ACT-- 27
JUDICIAL PENALTIES.
42 U.S.C. 7413 (b) CLEAN AIR ACT/VIOLATION/OWNERS & OPS OF 27
STATIONARY AIR POLLUTION SOUSCES--JUt ICIAL
PENALTIES.
42 U.S.C. 7413(d) (1).... CLEAN AIR ACT/VIOLATION/OWNERS & OPS OF 27
STATIONARY AIR POLLUTION SOURCES--
ADMINISTRATIVE PENALTIES PER VIOLATION & MAX.
42 U.S.C. 7413(d) (3) CLEAN AIR ACT/MINOR VIOLATIONS/STATIONARY AIR 5,
POLLUTION SOURCES--FIELD CITATIONS.
42 U.S.C. 7524(a) TAMPERING OR MANUFACTURE/SALE OF DEFEAT 2,
DEVICES IN VIOLATION OF 7522 (a) (3) (A) OR
(a) (3) (B)——BY PERSONS.
42 U.S.C. 7524(a) VIOLATION OF 7522(a) (3) (A) OR )a)(3) (B)——BY 27
MANUFACTURERS OR DEALERS; ALL VIOLATIONS OF
7522 (a) (1), (2), (4),, & (5) BY ANYONE.
42 U.S.C. 7524(c )... ADMINISTRATIVE PENALTIES AS SET IN 7524a) & 22
(7545(d) WITH A MAXIMUM ADMINISTRATIVE
PENALTY.
42 U.S.C. 7545(d) VIOLATIONS OF FUELS PEGULATIO1 S 27
42 U.S.C. 9604 (e) (5) (B) SUPERFUND AMEND. & REAUTHORIZATION ACT/ 27
NONCOMPLIANCE W I /REQUEST FOR INFO OR ACCESS.
( [ Page 693661]
42 U.S.C. 9606(b) SUPERFUND/WORE< NOT PERFORMED W/IP€IINENT, 27
SUBSTANTIAL ENDANGERMENT.
42 U.S.C. 9609(a) & (b) SUPERFUND/ADMIN. PENALTY VIOLATIONS UNDER 42 27
U.S.C. SECT. 9603, 9608, OR 9622.
42 U.S.C. 9609(b). SUPERFUND/ADMIN. PENALTY VIOLATIONS-- 82
SUBSEQUENT.
42 U.S.C. 9609(c) SUPERFUND/CIVIL JUDICIAL PENALTY/VIOLATIONS 27
OF SECT. 9603, 9608, 9622.
42 U.S.C. 9609(c) SUPERFUND/CIVIL JUDICIAL PENALTY/SUBSEQUENT 82
VIOLATIONS OF SECT. 9603, 9608, 9622.
42 U.S.C. 11045(a) & (b) (1), (2) EMERGENCY PLANNING AND COMMUNITY RIGHT—TO- 27
& (3) . KNOW ACT CLASS I & II ADMINISTRATIVE AND
CIVIL PENALTIES.
42 U.S.C. 11045(b) & (2) (3) EPCRA CLASS I & II ADMINISTRATIVE AND CIVIL 82
PENALTIES--SUBSEQUENT VIOLATIONS.
42 U.S.C. 11045(c) (1) EPCRA CIVIL AND ADMINISTRATIVE REPORTING 27
PENALTIES FOR VIOLATIONS OF SECTIONS 11022
OR 11023.
42 U.S.C. 11045(c) )2) EPCRA CIVIL AND ADMINISTRATIVE REPORTING 11
in r i i nnnc/flQ ‘- no in
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PENALTIES FOR VIOLATIONS OF SECTIONS 11021
OR 11043(b)
42 u.s.c. 11045(d) & (2) (3) EPCRA--FRIVOLOUS TRADE SECRET CLAIMS--CIVIL 27
AND ADMINISTRATIVE PENALTIES.
PART 27-- [ PMENDED]
2. The authority citation for part 27 is revised to read as
follows:
Authority: 31 U.S.C. 3801—3812; Pub. L. 101—410 , 104 Stat. 890,
28 u.s.c. 2461 note; Pub. L. 104—134, 110 stat. 1321, 31 U.S.C. 3701
note.
4. Section 27.3 is amended by revising paragraphs (a) (1) and (b) 12)
to read as follows:
Sec. 27.3 Basis for civil penalties and assessments.
(a) Claims. (1) Except as provided in paragraph Ic) of this
section , any person who makes a claim that the person knows or has
reason to know--
(i) Is false, fictitious, or fraudulent;
(ii) Includes or is supported by any written statement which
asserts a material fact which is false, fictitious, or fraudulent;
(iii) Includes, or is supported by, any written statement that——
(A) Omits a material fact;
(B) Is false, fictitious, or fraudulent as a result of such
omission; and
(C) Is a statement in which the person making such statement has a
duty to include such material fact; or
(iv) Is for payment for the provision of property or services which
the person has not provided as claimed, shall be subject, in addition
to any other remedy that may be prescribed by law, to a civil penalty
of not more than $5,500 l for each such claim.
\1\ As adjusted in accordance with the Federal Civil Penalties
Inflation Adjustment Act of 1990 (Pub. L. 101—410, 104 Stat. 890),
as amended by the Debt collection Improvement Act of 1996 (Pub. L.
104—134, 110 Stat. 1321)
* * * * *
(b) Statements. (1) Except as provided in paragraph Ic) of this
section, any person who makes a written statement that--
Ii) The person knows or has reason to know--
(A) Asserts a material fact which is false, factitious, or
fraudulent; or
(B) Is false, factitious, or fraudulent because it omits a material
fact that the person making the statement has a duty to include in such
statement; and
(ii) Contains, or is accompanied by, an express certification or
affirmation of the truthfulness and accuracy of the contents of the
statement, shall be subject, in addition to any other remedy that may
be prescribed by law, to a civil penalty of not more than $5,500 2
for each such statement.
\2\ As adjusted in accordance with the Federal civil Penalties
Inflation Adjustment Act of 1990 (Pub. L. 101—410, 104 Stat. 890),
flnfId fl7’flA’OR l fl ,l9
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as amended by the Debt Collection Improvement Act of 1996 (Pub. L.
104—134, 110 Stat. 1321)
* ÷ * * .*
[ FR Doc. 96—32972 Filed 12—30—96; 8:45 am]
BILLING CODE 6560-50-P
14 nf 14 n7Th6 /QR fl 704q
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[ Federal Register: March 20, 1997 (Volume 62, Number 54))
(Rules and Regulations]
[ Page 13513—13517)
From the Federal Register Online via GPO Access [ wa.is access.gpo.gov]
[ DOCID: fr2Omr97—27]
[ [ Page 13513])
Part VIII
Environmental Protection Agency
40 CFR Parts 19 and 27
Civil Monetary Penalty Inflation Adjustment Rule; Final Rule
[ [ Page 13514]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 19 and 27
[ FRL—5711—7)
Civil Monetary Penalty Inflation Adjustment Rule
AGENCY: Environmental Protection Agency (EPA)
ACTION’ Corrections To final rule.
SUMMARY’ This document contains corrections to the Civil Monetary
Penalty Inflation Adjustment Rule, final regulations ( FRL-5671-1),
which were published Tuesday, December 31, 1996, (61 FR 69359) . The
regulations adjusted the Environmental Protection Agency’s (‘‘EPA’’)
civil monetary penalties (‘‘CMPs’’) for inflation as mandated by the
Debt Collection Improvement Act of 1996 (‘‘DCIA’’). A corrected version
of Table 1, from 40 CFR 19.4, which now lists all but one of the EPA’s
civil monetary penalty authorities, appears near the end of this
notice.
EFFECTIVE DATE: January 30, 1997.
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FOR FURTHER INFORMATION CONTACT: For further information, contact
Steven N. Spiegel, Office of Regulatory Enforcement, Multimedia
Enforcement Division, Mail Code 2248W, 401 M Street, SW, Washington,
D.C. 20460, or at (703) 308—8507. Further information may also be
requested by electronic mail (e-mail) to:
spiegel.steven@epamail.epa.gov. The December 31, 1996 Final Rule and
this Correction are also available on the Office of Enforcement and
Compliance Assurance’s Web page at http//www epa.gov/oeca.
SUPPLEMENTARY INFORMATION:
Need For Correction
As published, the preamble and final regulations contain errors
which may prove misleading and are in need of clarification. The
changes made through these corrections are all technical in nature and
can be broken down into three categories. First, there were five
instances in which the exact section of a statute was not cited
correctly in the preamble (which errors were repeated in the rule)
Second, there were two errors in the new maximum penalty figures.
Third, there are other minor non-substantive changes, as well as the
addition of explanatory information which does not affect the original
rule, but provides a more complete and understandable ‘document and rule
to the public. The additions concern the August 1996 amendments to the
Safe Drinking Water Act, which went into effect on August 6, 1996. For
purposes of clarity and providing the public with one table that lists
all of EPA’s civil penalty authorities, the four new civil penalty
provisions from the August 1996 amendments to the Safe Drinking Water
Act have been added to Table 1 in Section 19.4 (even though these
penalty provisions are not subject to adjustment for inflation pursuant
to the DCIA at this time) . These additions are identified below. Thus
the revised Table 1 of Section 19.4 now provides a list of all but one
of the applicable statutory provisions and maximum civil penalties.
There is one statutory provision which has not yet been adjusted. EPA
anticipates performing a rule-making to adjust 15 U.S.C. 2615, as
amended by the Residential Lead-Based Paint Act of 1992, 42 U.S.C.
4852d, and the corresponding regulations in 40 CFR Part 745, which were
omitted from the December 31, 1996 rule-making.
Effect of Correction
Since all of the corrections are technical in nature and do not
affect the substance of the rule, the original effective date of
January 30, 1997, applies to those corrected provisions, as well as to
the other original provisions of the final rule which did not require
correction. The identified corrections to Table A in the preamble
correspond to the corrections and additions to Table 1 in Section 19.4.
A corrected version of Table 1, 40 CFR 19.4, which now lists all but
one of EPA’s civil monetary penalty authorities, appears near the end
of this notice.
Correction of Publication
Accordingly, the publication on December 31, 1996 of the preamble
and final regulations (FRL—567l-1) which were the subject of F.R. Doc.
96—32972, are corrected and added to as follows:
Preamble [ Corrected]
On page 69360, Table A.--Surnmary of Civil Monetary Penalty
Inflation Adjustment Calculations, the first column, is corrected as
follows:
7 USC 1361(1) is corrected to read 7 USC 136l . (a)(l)--(the number
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136, is followed by the letter ‘‘1’’, not the number one).
7 USC 1361(2) is corrected to read 7 USC 1361. (a) (2)’-—(the number
1 ’ 6, is followed by the letter ‘‘1’’, not the number one).
15 USC 2615 is corrected to 15 USC 2615(a).
On page 69361, Table A, is corrected as follows:
33 U.S.C. 1321(b) (7) (A) in the first column is correct, but the
fourth column figure of ‘‘10,000’’, is corrected to ‘‘25,000’’. The
seventh column figure of 15,000, is corrected to 30,000. The eighth
column figure of ‘‘11,000’’ is corrected to ‘‘27,500’’.
33 U.S.C. 1321(b) (7) (D) in the first column is correct, but the
eighth column figure of ‘‘11,000’’ is corrected to ‘‘110,000’
42 U.S.C. 300i—1(b) is corrected to 42 U.S.C. 3001—1(c)
On page 69362, for 42 U.S.C. 6934(e), the fourth column, the figure
‘‘25,000’’ is corrected to read ‘‘5,000’’.
On page 69363, 42 U.S.C. 11045(d) (2) (3) is corrected to 42 U.S.C.
11045(d) (1)
In the first column, first sentence, insert ‘‘will’’ so the
sentence reads ‘‘Future adjustments also will be made in accordance
with the statutory formula.
Preamble [ Additions]
Supplementary Information. On page 69360, in the third column, in
the first full sentence, add the phrase ‘‘, along with the new penalty
amounts set by the 1996 amendments to the Safe Drinking Water Act, ‘
between the words ‘‘statutory maximum amounts’ ‘ and ‘‘are set out in
Table 1* * *1’
On page 69361, 42 U.S.C. 300g-3(g) (3) (B), in the first column is
correct; for the second column, change the word ‘‘penalty’ ‘ to
‘‘penalties’’; third column, replace ‘‘1986’’ with ‘‘1996’’; fourth
column, replace ‘‘5,000’’ with ‘‘5,000/25, 000’’; replace the figures in
“e fifth, sixth and seventh columns with ‘‘N/A’’; and in the eighth
umn, replace ‘‘5,500’’ with ‘‘5,000/25,000’’.
Following 42 U.S.C. 300g—3(g) (3)(B) , add a new row starting with 42
U.S.C. 3009—3(g) (3) (C) in the first column; for the second column,
insert SAFE DRINKING WATER ACT! THRESHOLD REQUIRING CIVIL JUDICIAL
ACTION PER SEC. 1414(g) (3) (3) & (C); third column, insert ‘‘1996’’;
fourth column, insert ‘‘25,000’’; insert ‘‘N/A’’ for the figures in the
fifth, sixth and seventh columns; and in the eighth column, ‘‘25,000’’.
Following 42 U.S.C. 300h-3(c)2, add a new row for 42 U.S.C.
300i(b); for the second column, insert SAFE DRINKING WATER ACT! FAILURE
TO COMPLY WITH IMMINENT AND SUBSTANTIAL ENDANGERNENT ADMIN. ORDER
third column, insert ‘‘1996’’; fourth column, insert ‘‘15,000’’; insert
‘‘N/A’ ‘ for the figures in the fifth, sixth and seventh columns; and in
the eighth column, insert ‘‘15,000’’.
Following 42 U.S.C. 300j—4(c), add a new row for 42 U.S.C. 300j—
6(b)(2); for the second column, insert SAFE DRINKING WATER ACT/ FAILURE
TO COMPLY WITH ADMIN. ORDER
[ [ Page 13515)]
ISSUED TO FED. FACILITY ; third column, insert ‘‘1996’’; fourth column,
insert ‘‘25,000’’; insert ‘‘N/A’’ for the figures in the fifth, sixth
and seventh columns; and in the eighth column, insert ‘‘25,000’’.
Procedural Requirements
I. Small Business Regulatory Enforcement Fairness Act
In the December 31, 1996 notice, EPA found good cause, pursuant to
U.S.C. 553(b) (3) (B) of the Administrative Procedure Act (‘‘APA’’),
it soliciting public comment prior to publication of the rule was not
ecessary because EPA is carrying out a ministerial, non-discretionary
duty per direction of an Act of Congress. EPA finds that good cause
continues to apply to this rule, and therefore the effective date
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provisions of the Small Business Regulatory Enforcement Fairness Act of
1996 (‘‘SBREFA’’), do not govern the effective date of today’s action
as well. Additionally, the fact that these changes are technical and do
not affect the substance of the previously issued rule also meets the
‘‘good cause’ exception to the effective date requirements of section
553(d) of the Administrative Procedure Act as well.
Under Executive Order 12866 (58 P.R. 51735, October 4, 1993), this
action is not a ‘‘significant regulatory action’ ‘ and, is therefore not
subject to review by the Office of Management and Budget. In addition,
this action does not impose any enforceable duty or contain any
unfunded mandate as described in the Unfunded Mandates Reform Act of
1995 (PL. 104—4 ) . Because this action is not subject to notice-and—
comment requirements under the APA or any other statute, it is not
subject to the provisions of the Regulatory Flexibility Act (5 U.S.C.
601 et seq.)
Under S U.S.C. 801(a) (1) (A), as added by SBREFA, EPA submitted a
report containing this rule and other required information to the U.S.
Senate, the U.S. House of Representatives and the Comptroller General
of the United States prior to publication of the rule in today’s
Federal Register. This rule is a not a ‘major rule’ ‘ as defined by 5
U.S.C. 804(a).
PART 19 (CORRECTED WITH ADDITIONS]
Beginning on page 69364, Table 1 of Section 19.4——Civil Monetary
Penalty Inflation Adjustments, is corrected to read as follows:
Table 1 of Section 19.4.--Civil Monetary Penalty Inflation Adju
U.S. Code citation Civil monetary penalty description New
7 U.S.C. 1361. (a) (1) FEDERAL INSECTICIDE, FUNGICIDE, & $5,500.
RODENTICIDE ACT CIVIL PENALTY--
GENERAL--COMMERCIAL APPLICATORS,
ETC.
7 U.S.C. 1361. (a) (2) FEDERAL INSECTICIDE, FUNGICIDE, & $550/$1,00
RODENTICIDE ACT CIVIL PENALTY--
PRIVATE APPLICATORS--FIRST AND
SUBSEQUENT OFFENSES OR VIOLATIONS.
15 U.S.C. 2615(a) TOXIC SUBSTANCES CONTROL ACT CIVIL $27,500.
PENALTY.
15 U.S.C. 2647(a) ASBESTOS HAZARD EMERGENCY RESPONSE $5,500.
ACT CIVIL PENALTY.
31 U.S.C. 3802(a) (1) PROGRAM FRAUD CIVIL REMEDIES ACT! $5,500.
VIOLATION INVOLVING FALSE CLAIM.
31 U.S.C. 3802(a) (2) PROGRAM FRAUD CIVIL REMEDIES ACT! $5,500.
VIOLATION INVOLVING FALSE STATEMENT.
33 U.S.C. 1319(d) CLEAN WATER ACT VIOLATION!CIVIL $27,500.
JUDICIAL PENALTY.
33 U.S.C. 1319(g) (2) (A) CLEAN WATER ACT VIOLATION! $11,000!$2
ADMINISTRATIVE PENALTY PER
VIOLATION AND MAXIMUM.
33 U.S.C. 1319(g) (2) (5) CLEAN WATER ACT VIOLATION! $l l,000!$1
ADMINISTRATIVE PENALTY PER
VIOLATION AND MAXIMUM.
33 U.S.C. 1321(b) (6) (B) (I) CLEAN WATER ACT VIOLATION!ADMIN $11,000!$2
PENALTY OF SEC 311(b) (3)&(j) PER
VIOLATION AND MAXIMUM.
33 U.S.C. 1321(b) (6) (B) (ii) CLEAN WATER ACT VIOLATION/ADMIN $11,000!$l
PENALTY OF SEC 311(b) (3)&(j) PER
VIOLATION AND MAXIMUM.
33 U.S.C. 1321(b) (7) (A) CLEAN WATER ACT VIOLATION!CIVIL $27,500 or
JUDICIAL PENALTY OF SEC 311(b) (3)--
PER VIOLATION PER DAY OR PER BARREL
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OR UNIT.
33 U.S.C. 1321(b) (7) (B) CLEAN WATER ACT VIOLATION/CIVIL $22,500.
JUDICIAL PENALTY OF SEC
311 (c)&(e) (1) (B).
33 U.S.C. 1321(b) (7) (C) CLEAN WATER ACT VIOLATION/CIVIL $27,500.
JUDICIAL PENALTY OF SEC 311(j).
33 U.S.C. 1321(b) (7) (0) CLEAN WATER ACT VIOLATION/MINIMUM $110,000 0
CIVIL JUDICIAL PENALTY OF SEC
311(b) (3)-S—PER VIOLATION OR PER
BARREL/UNIT.
33 U.S.C. 1414b(ci) MARINE PROTECTION, RESEARCH & $660
SANCTUARIES ACT VIOL SEC 104b(d).
33 U.S.C. 1415(a)... MARINE PROTECTION RESEARCH AND $55,000/$1
SANCTUARIES ACT VIOLATIONS- - FIRST &
SUBSEQUENT VIOLATIONS.
42 U.S.C. 300g-3(b) SAFE DRINKING WATER ACT/CIVIL $27,500.
JUDICIAL PENALTY OF SEC 1414(b).
42 U.S.C. 300g-3(c) SAFE DRINKING WATER ACT/CIVIL $27,500.
JUDICIAL PENALTY OF SEC 1414(c).
42 U.S.C. 300g-3(g) (3) (A) SAFE DRINKING WATER ACT/CIVIL $27,500.
JUDICIAL PENALTY OF SEC
1414 (g) (3) (a).
42 U.S.C. 300g-3 (g) (3) (B) SAFE DRINKING WATER ACT/MAXIMUM $5, 000/$25
ADMINISTRATIVE PENALTIES PER SEC
1414 (g) (3) (B)
42 U.S.C. 300g-3(g) (3) (C) SAFE DRINKING WATER ACT/THRESHOLD $25,000.
REQUIRING CIVIL JUDICIAL ACTION PER
SEC 1414 (g) (3) (C)
42 U.S.C. 300h-2(b) (1) SDWA/CIVIL JUDICIAL PENALTY/ $27,500.
VIOLATIONS OF REQS--UNDERGROUND
INJECTION CONTROL (UIC).
42 U.S.C. 300h-2(c) (1) SDWAJCIVIL ADMIN PENALTY/VIOLATIONS $11,000/$1
OF UIC REQS--PER VIOLATION AND
MAXIMUM.
42 U.S.C. 300h-2 (c) (2) SDWA/CIVIL ADMIN PENALTY/VIOLATIONS $5, 500/$13
OF UIC REQS--PER VIOLATION AND
MAXIMUM.
42 U.S.C. 300h-3(c)(1) SDWA/VIOLATION/OPERATION OF NEW $5,500.
UNDERGROUND INJECTION WELL
42 U.S.C. 300h-3(c) (2) SDWA/WILLFUL VIOLATION/OPERATION OF $11,000.
NEW UNDERGROUND INJECTICN WELL.
[ [ Page 13516])
42 U.S.C. 300i(b) SDWA/FAILURE TO COMPLY WITH IMMINENT $15,000.
AND SUBSTANTIAL ENDANGERMENT ORDER.
42 U.S.C. 300i—1(c) SDWA/ATTEMPTING TO OR TAMPERING WITH $22,000/$5
PUBLIC WATER SYSTEM/CIVIL JUDICIAL
PENALTY.
42 U.S.C. 300j(e)(2) SDWA/FAILURE TO COMPLY W/CRDER $2,750.
ISSUED UNDER SEC. 1441(c) (1).
42 U.S.C. 300j-4(c) SDWA/REFUSAL TO COMPLY WITH REQS. OF $27,500.
SEC. 1445(a) OR (b).
42 U.S.C. 300j-6(b)(2) SDWA/FAILURE TO COMPLY WITH ADMIN. $25,000.
ORDER ISSUED TO FEDERAL FACILITY.
42 U.S.C. 300j—23(d) SDWA/VIOLATIONS/SECTION 1463(b)—— $5,500/$SS
FIRST OFFENSE/REPEAT OFFENSE.
42 U.S.C. 6928(a) (3) RESOURCE CONSERVATION & RECOVERY ACT! $27,500.
VIOLATION SUBTITLE C ASSESSED PER
ORDER.
42 U.S.C. 6928(c) RES. CONS. & REC. ACT/CONTINUED $27,500.
NONCOMPLIANCE OF COMPLIANCE ORDER.
42 U S.C. 6928(g) RESOURCE CONSERVATIQN & RECOVERY ACT! $27,500.
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VIOLATION SUBTITLE C.
42 U.S.C. 6928(h) (2) RES. CONS. & REC. ACT/NONCOMPLIANCE $27,500.
OF CORRECTIVE ACTION ORDER.
42 U.S.C. 6934(e) RES. CONS. & REC. ACT/NONCOMPLIANCE $5,500.
WITH SECTION 3013 ORDER.
42 U.S.C. 6973(b) RES. CONS. & REC. ACT/VIOLATIONS OF $5,500.
ADMINISTRATIVE ORDER.
42 U.S.C. 6991e(a)(3) RES. CONS. & REC. ACT/NONCOMPLIANCE $27,500.
WITH UST ADMINISTRATIVE ORDER.
42 U.S.C. 6991e(d)(1) RES. CONS. & REC. ACT/FAILURE TO $11,000.
NOTIFY OR FOR SUBMITTING FALSE
INFORMATION.
42 U.S.C. 6991e(d) (2) RCRA/VIOLATIONS OF SPECIFIED UST $11,000.
REGULATORY REQUIREMENTS.
42 U.S.C. 6992d(a) (2) RCRA/NONCOMPLIANCE N/MEDICAL WASTE $27,500.
TRACKING ACT ASSESSED THRU ADMIN
ORDER.
42 U.S.C. 6992d(a) (4) RCRA/NONCOMPLIANCE N/MEDICAL WASTE $27,500.
TRACKING ACT ADMINISTRATIVE ORDER.
42 U.S.C. 6992d(d) RCRA/VIOLATIONS OF MEDICAL WASTE $27,500.
TRACKING ACT--JUDICIAL PENALTIES.
42 U.S.C. 7413(b) CLEAN AIR ACT/VIOLATION/OWNERS & $27,500.
OPERATORS OF STATIONARY AIR
POLLUTION SOURCES--JUDICIAL
PENALTIES.
42 U.S.C. 7413(d) (1) CLEAN AIR ACT/VIOLATION/OWNERS & $27,500/$2
OPERATORS OF STATIONARY AIR
POLLUTION SOURCES-ADMINISTRATIVE
PENALTIES PER VIOLATION & MAX.
42 U.S.C. 7413(d) (3) CLEAN AIR ACT/MINOR VIOLATIONS/ $5,500.
STATIONARY AIR POLLUTION SOURCES--
FIELD CITATIONS.
42 U.S.C. 7524(a) TAMPERING OR MANUFACTURE/SALE OF $2,750.
DEFEAT DEVICES IN VIOLATION OF
7522(a) (3) (A) OR (a) (3) (B)——BY
PERSONS.
42 U.S.C. 7524 (a) VIOLATION OF 7522(a) (3) (A) OR $27,500.
(a) (3) (B)--BY MANUFACTURERS OR
DEALERS; ALL VIOLATIONS OF
7522(a)(1),(2), (4),&(5) BY ANYONE.
42 U.S.C 7524(c) ADMINISTRATIVE PENALTIES AS SET IN $220,000.
7524(a) & 7545(d) WITH A MAXIMUM
ADMINISTRATIVE PENALTY.
42 U.S.C. 7545(d) VIOLATIONS OF FUELS REGULATIONS $27,500.
42 U.S.C. 9604(e) (5) (B) SUPERFUND AMEND. 6 REAUTHORIZATION $27,500.
ACT/NONCOMPLIANCE N/REQUEST FOR
INFO OR ACCESS.
42 U.S.C. 9606(b) (1) SUPERFUND/WORK NOT PERFORMED WI $27,500.
IMMINENT, SUBSTANTIAL ENDANGERMENT.
42 U.S.C. 9609 (a) & (b) SUPERFUND/ADMIN. PENALTY VIOLATIONS $27,500.
UNDER 42 U.S.C. SECT. 9603, 9608,
OR 9622.
42 U.S.C. 9609(b) SUPERFUND/ADMIN. PENALTY VIOLATIONS-- $82,500
SUBSEQUENT.
42 U.S.C. 9609(c) SUPERFUND/CIVIL JUDICIAL PENALTY/ $27,500.
VIOLATIONS OF SECT. 9603, 9608,
9622.
42 U.S.C. 9609(c) SUPERFUND/CIVIL JUDICIAL PENALTY/ $82,500.
SUBSEQUENT VIOLATIONS OF SECT.
9603, 9608, 9622.
42 U.S.C. 11045 (a) & (b) (1), (2) EMERGENCY PLANNING AND COMMUNITY $27,500.
& (3) . RIGHT-TO-KNOW ACT CLASS I & II
ADMINISTRATIVE AND CIVIL PENALTIES.
42 U.S.C. 11045(b) (2) & (3) EPCRA CLASS I & II ADMINISTRATIVE $82,500.
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AND CIVIL PENALTIES--SUBSEQUENT
VIOLATIONS.
U.S.C. 11045(c) (1) EPCRA CIVIL AND ADMINISTRATIVE $27,500.
REPORTING PENALTIES FOR VIOLATIONS
OF SECTIONS 11022 OR 11023.
42 U.S.C. 11045(c) (2) EPCRA CIVIL AND ADMINISTRATIVE $11,000.
REPORTING PENALTIES FOR VIOLATIONS
OF SECTIONS 11021 OR 11043 (b).
42 U.S.C. 11045(d) (1) EPCRA--FRIVOLOUS TRADE SECRET $27,500.
CLAIMS--CIVIL AND ADMINISTRATIVE
PENALTIES.
[ [ Page 13517]]
PART 27-- [ CORRECTED]
On page 69366, in the first column, the amendatory instruction
identified as number ‘‘4’’ is corrected to ‘‘3’’.
Michael N. Stahl,
Deputy Assistant Administrator, Office of Enforcement and Compliance
Assurance.
[ FR Doc. 97—7069 Filed 3—19—97; 8:45 am ]
BILLING CODE 6560-50-P
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u EPA United States Environment& Protection Agency
[ EPA Home Federal Register Home Comments I Search ]
Related Material
Other Related Documents
Federal Register Document
[ Federal Register: December 2, 1997 (Volume 62, Number 231))
[ Proposed Rules)
[ Page 63811—63820]
From the Federal Register Online via GPO Access [ wais.access.gpo.gov]
(DO dD; frO2de97—31]
[ (Page 63811]]
Part VII
Environmental Protection Agency
40 CFR Part 112
Oil Pollution Prevention and Response; Non—Transportation Related
Onshore and Offshore Facilities; Proposed Rule
( age 63812]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[ FRL —5930 —l]
RIN 2050—AC62
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Oil Pollution PreventLon and Response; Non-Transportation Related
Onshore and Offshore Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
SUMMARY: The Environmental Protection Agency (EPA or the Agency)
proposes to revise the Spill Prevention, Control, and Countermeasure
(SPCC) Plan requirements, found at 40 CFR part 112, to reduce its
information collection burden. Proposed revisions would: give facility
owners or operators flexibility to use alternative formats for SPCC
Plans; allow the use of certain records maintained pursuant to usual
and customary business practices, or pursuant to the National Pollutant
Discharge Elimination System (NPDES) program, to be used in lieu of
records mandated by the SPCC requirements; reduce the information
required to be submitted after certain spill events; and extend the
period in which SPCC Plans must be reviewed and evaluated. EPA also
proposes to amend the Facility Response Plan (FRP) requirements, found
at 40 CFR 112.20, for two purposes. First, EPA proposes to provide a
method to calculate storage capacity when certain facilities have tanks
which contain mixtures of process water/waste water with 10% or less of
oil. This calculation is for the sole purpose of determining whether a
facility has sufficient capacity to subject it to the requirement in
Sec. 112.20 to prepare an FRP. Second, EPA proposes to amend the FRP
requirements to clarify that the Integrated Contingency Plan format may
be acceptable for an FRP. EPA believes that none of the proposed
changes will have an adverse impact on public health or the
environment. This is so because the proposal would maintain the same
standards of environmental protection that the rule now affords while
reducing its information collection burden.
DATES: Comments must be submitted on or before February 2, 1998.
ADDRESSES: Written comments on the proposed rule should be submitted in
triplicate, by U.S. mail, to the Superfund Docket, at 401 N St., S.W.,
Washington, D.C. 20460 (mail code 5203G) . The docket is physically
located at 1235 Jefferson Davis Highway, Crystal Gateway 1, Arlington,
virginia 22202, Suite 105. Comments physically delivered to EPA by any
means other than U.S. mail should go to the Arlington address. The
docket number for the proposed rule is #SPCC—7. Comments may also be
sent electronically to EPA at ‘superfund.docket@epamail.ePa.gOV.’’
Files should be sent in ascii format. The record supporting this
rulemaking is contained in the Superfund Docket and is available for
inspection, by appointment only, between the hours of 9 a.m. and 4
p.m., Monday through Friday, excluding legal holidays. Appointments to
review the docket can be made by calling 703—603-9232. As provided in
40 CFR part 2, a reasonable fee may be charged for copying services.
FOR FURTHER INFORMATION CONTACT: Hugo Paul Fleischman, Oil Program
Center, U.S. Environmental Protection Agency, at 703-603-8769; or the
RCRA/Superfund Hotline at 600-424-9346 (in the Washington, D.C.
metropolitan area, 703—412—9810) . The Telecommunications Device for the
Deaf (TDD) Hotline number is 800—553—7672 (in the Washington, D.C.
metropolitan area, 703—412—3323)
SUPPLEMENTARY INFORMATION: The contents of this preamble are as
follows:
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I. Introduction
II. Request for Comment and Discussion of Proposed Revisions
III. Summary of Supporting Analyses
I. Introduction
A. Regulated Entities
Entities Potentially Regulated by this Proposal Include:
Category NAICS codes
Petroleum and Coal Products NAICS 324.
Manufacturing.
Petroleum Bulk Stations and Terminals.. NAICS 42271.
Crude Petroleum and Natural Gas NAICS 2111111.
Extraction.
Transportation (including Pipelines), NAICS 482—486/488112—48819/4883/
Warehousing, and Marinas. 48849/492—493/71393.
Electric Power Generation, NAICS 2211.
Transmission, and Distribution.
Other Manufacturing NAICS 31-33.
Gasoline Stations/Automotive Rental and NAICS 4471/5321.
Leasing.
Heating Oil Dealers NAICS 454311.
Coal Mining, Non—Metallic Mineral NAICS 2121/2123/213114/213116.
Mining and Quarrying.
Heavy Construction NAICS 234.
Elementary and Secondary Schools, NAICS 6111-6113.
Colleges.
Hospitals/Nursing and Residential Care NAICS 622—623.
Facilities.
Crop and Animal Production NAICS 111-112.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. It lists the types of entities of which EPA is now aware that
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility could be regulated by this action, you should carefully
examine the criteria in Secs. 112.1 and 112.20 of title 40 of the Code
of Federal Regulations. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the FOR FURTHER INFORMATION CONTACT section.
B. Statutory Authority
Section 3 l1(j) (1) (C) of the Clean Water Act )CWA or the Act)
requires the President to issue regulations establishing procedures,
methods, equipment, and other requirements to prevent discharges of oil
from vessels and facilities and to contain such discharges. 33 U.S.C.
1321(j) (1) (C) . The President has delegated the authority to regulate
non—transportation—related onshore facilities under section
311(j) (1) (C) of the Act to the U.S. Environmental Protection Agency
(EPA or the Agency). Executive Order (E.O.) 12777, section 2(b))1), 56
FR 54757 (October 22, 1991), superseding Executive Order 11735, 38 FR
21243. By this same E.O., the President has delegated similar authority
over transportation—related onshore facilities, deepwater ports, and
vessels to the U.S. Department of Transportation (DOT),
[ [ Page 63813]]
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and authority over other offshore facilities, including associated
pipelines, to the U.S. Department of the Interior (DOT). A Memorandum
of Understanding (MOU) among EPA, DOl, 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 001 to EPA. (E.O.
12777 Sec. 2(I} regarding authority to redelegate.) The MOU is included
as Appendix B to 40 CFR part 112. An MOU between the Secretary of
Transportation and the EPA Administrator, dated November 24, 1971 (36
FR 24080), established the definitions of non-transportation-related
facilities and transportation-related facilities. The definitions from
the 1971 MOU are included as Appendix A to 40 CFR part 112.
C. Background of this Rulemaking
Part 112 of 40 CFR outlines requirements for both prevention of and
response to oil spills. The prevention aspect of the rule requires
preparation and implementation of the Spill Prevention, Control, and
Countermeasure (SPCC) Plans. It was originally promulgated on December
11, 1973 (38 FR 34164), under the authority of section 311(j) (1) (C) of
the Act. The regulation established spill prevention procedures,
methods, and equipment requirements for non-transportation-related
onshore and offshore facilities with aboveground oil storage capacity
greater than 1,320 gallons (or greater than 660 gallons in a single
container), or buried underground oil storage capacity greater than
42,000 gallons. Regulated facilities are also limited to those that,
because of their location, could reasonably be expected to discharge
oil in harmful quantities into the navigable waters of the United
States or adjoining shorelines.
The SPCC requirements have been amended a number of times. On
August 29, 1974, the regulation was amended to set cut the Agency’s
policies on civil penalties for violation of section 311 requirements.
39 FR 31602. On March 26, 1976, the rule was again amended, primarily
to clarify the criteria for determining whether or not a facility is
subject to regulation. 41 FR 12567. Other revisions made in the March
26, 1976, rule clarified that the SPCC Plan must be in written form and
specified the procedures for development of SPCC Plans for mobile
facilities.
Implementation of the regulation since the 1976 revision indicated
the need for other changes, primarily to clarify and simplify the rule.
Therefore, on May 20, 1980, the Agency proposed further revisions to
the SPCC rule. 45 FR 33814. The 1980 proposal was never finalized
because the Agency believed these proposed changes needed additional
justification. Hcwever, continuing experience with administering the
program provided that justification and demonstrated a need for
clarifications to 40 CFR 112.7. Accordingly, on October 22, 1991, the
Agency proposed certain changes to 40 CFR 112.7 similar to those
proposed in 1980. 56 FR 54612.
The October 1991 proposed revisions involved changes in the
applicability of the regulation and the required procedures for the
completion of SPCC Plans, as well as the addition of a facility
notification provision. The proposed rule also reflected changes in the
jurisdiction of section 311 of the Act made by amendments to the Act in
1977 and 1978. To date, the proposal has not been finalized.
On November 4, 1992 (57 FR 52705), the Agency promulgated a
revision to the civil penalty provisions for violations occurring prior
to the enactment of the Oil Pollution Act of 1990 (OPA) . On March 11,
1996, EPA rescinded that penalty provision because it no longer
accurately reflected the penalties provided for under section 311(b) of
the Act, as amended by OPA. 61 FR 9646.
On February 17, 1993, the Agency again proposed further
clarifications of and technical changes to the SPCC rule, and facility
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response plan requirements to implement OPA. 58 FR 8824. The proposed
changes to the SPCC prevention requirements included clarifications of
certain requirements, contingency plans for facilities without
secondary containment, prevention training, and methods of deterrtu.ning
whether a tank would be subject to brittle fracture. The facility
response plan requirements of the 1993 proposal were promulgated on
July 1, 1994, (59 FR 47384) and codified at 40 CFR 112.20—21. To date,
the prevention requirements in the 1993 proposal have not been
finalized.
In 1996, EPA concluded a survey of SPCC facilities. EPA used the
results of that survey to help develop this proposed rule. The survey
results are part of the administrative record for this rulemaking.
The purpose of this proposal is to reduce the information
collection burden now imposed by the prevention requirements in the
SPCC rule and the response requirements in the FR? rule without
creating an adverse impact on public health or the environment. It
supplements the 1991 and 1993 proposals. The earlier proposals remain
pending, except for the withdrawal in this notice of the proposed 1991
definition of ‘‘SPCC Plan.’ ‘ A revised definition of that term is being
reproposed today. EPA will, after considering public comments,
promulgate a rule finalizing this proposal. In that rule, EPA will also
finalize the 1991 and 1993 proposals. EPA is not seeking additional
comments on either the 1991 or 1993 proposals.
II. Request for Comment and Discussion of Proposed Revisions
A. Request for Comment
EPA proposes to reduce the information collection burden of the
SPCC rule through program changes. In connection with these proposed
changes, EPA requests public comment on new standards, technologies, or
approaches that have been developed since the enactment of CPA which
would reduce the burden of other SFCC rule requirements, without
compromising environmental protection. EPA requests comments on these
possible measures in order to discover additional ways to reduce the
information collection burden of the rule. Conversely, EPA also seeks
comments on measures not now required that would enhance the
environmental protection the SPCC rule provides. Both of these requests
for public comments are for the purpose of securing information to
develop possible future rules or policies, and are not for the purpose
of developing a final rule implementing this proposed rule. Lastly, for
purposes of developing a final rule, EPA is considering whether any
change is justified in the level of storage capacity which subjects a
facility to the requirement to prepare an SPCC Plan. Currently, a
facility with a total aboveground storage capacity of 1,320 gallons or
less of oil, but that has a single container with a capacity in excess
of 660 gallons of oil is subject to SPCC requirements. EPA is
considering eliminating the provision in the current rule that requires
a facility having a container with a storage capacity in excess of 660
gallons to prepare an SPCC Plan, as long as the total capacity of the
facility remained at 1,320 gallons or less. The effect of such a change
would be to raise the threshold for regulation to an aggregate
aboveground storage capacity greater than 1,320 gallons, thereby
eliminating .the need for facilities with less than that capacity to
prepare an SPCC Plan. EPA invites public comment on this issue and
supporting data where available.
[ [ Page 63814]]
B. Eroposed Program Revisions
Specific proposed revisions are discussed below.
40 CFR 112.2
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On October 22, 1991, EPA proposed a definition for ‘SPCC Plan or
Plan.’’ 56 FR 54612, 54632. Today, EPA is withdrawing that proposal in
favor of a revised definition. The proposed rule would describe an SPCC
Plan, and would allow an Integrated Contingency Plan or a State plan
that meets all the requirements of part 112 to be counted as an SPCC
Plan, if it is sequentially cross—referenced from the requirement in
Sec. 112.7 to the page(s) of the equivalent requirement in the other
plan. The Regional Administrator may accept any other format if it: (1)
meets all regulatory requirements in the SPCC rule; and, (2) is
sequentially cross—referenced by SPCC rule provision to the page(s) of
the equivalent requirement in the other plan. The proposed change would
allow facilities new flexibility in formatting an SPCC Plan. A new
facility developing an SPCC Plan would have the opportunity to use the
most convenient acceptable format. Existing facilities could also elect
to use one of the proposed alternative formats. EPA contemplates that
at least two types of formats could be used in addition to the format
prescribed in Sec. 112.7, and would amend the rule to include those
formats as acceptable examples. The formats are discussed below.
Integrated Contingency Plans or ICPs. One format that would be
allowed is an Integrated Contingency Plan (ICP) prepared in accordance
with the notice published at 61 FR 28642, June 5, 1996. The intent of
the ICP is to provide a mechanism for consolidating multiple plans that
facilities may have prepared to comply with various regulations into
one functional emergency response plan.
The ICP was developed for facilities to integrate emergency
response plan requirements. EPA does not contemplate that the use of an
ICP or other format would reduce the information collection burden, but
it would simplify compliance with multiple applicable statutes and
rules.
State Plans and Requirements. Approximately 20 States have oil
spill prevention requirements pursuant to State law. Included in those
requirements is often the responsibility to prepare an SPCC-like plan.
The proposed rule would allow an owner or operator of a facility
flexibility to prepare a State SPCC-like plan in lieu of a Federal SPCC
Plan if the State plan meets all the regulatory requirements contained
in part 112. Like ICPs, State plans would also have to be cross-
referenced sequentially from the Federal SPCC requirement in part 112
to the plan page(s) containing the equivalent requirement. In cases
where an owner or operator of a facility chooses to prepare a State
plan containing only some of the elements required in the Federal plan,
the State plan would have to: (1) contain elements that are equal to or
more stringent than Federal SPCC requirements; (2) be sequentially
cross—referenced by SPCC rule provision to the page(s) of the
equivalent Plan provision; and, (3) be supplemented by elements that
meet the remainder of the EPA requirements contained in part 112.
40 CFR 112.4(a)
Section 112.4(a) requires that an owner or operator of a facility
subject to the SPCC rule provide certain information to EPA after a
discharge of 1,000 gallons of oil into or upon the navigable waters of
the United States or adjoining shorelines in a single event, or when
two reportable spills of any size occur within any twelve month period.
Reportable spills are defined at 40 CFR 110.3. 61 FR 7419, February 28,
1996. EPA proposes to reduce the information that an owner or operator
must report pursuant to Sec. 112.4(a). The Agency proposes to require
that the owner or operator would report: (1) the name of the facility;
(2) the name(s) of the owner or operator of the facility; (3) the
location of the facility; (4) a description of the facility, including
maps, flow diagrams, and topographical charts; (5) the cause of the
spill(s), including a failure analysis of system or subsystem in which
the failure occurred; (6) corrective actions and/or countermeasures
taken, including an adequate description of equipment repairs and/or
replacements; (7) additional preventive measures taken or contemplated
to mininuze the possibility of recurrence; and, (8) such other
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information as the Regional Administrator may reasonably require
pertinent to the Plan or spill event. EPA would eliminate from the rule
the need to always subirLit: (1) the date and year of initial facility
operation; (2) maximum storage or handling capacity of the facility and
normal daily throughput; arid, (3) a complete copy of the SPCC Plan with
any amendments. EPA believes that the information that would be
eliminated from a post—spill report is not always necessary in order to
accurately assess the spill or to require appropriate corrective
action. The Regional Administrator would still retain discretion to
require information that is specified by the current rule in a post—
spill report, or any other information as he/she finds necessary. The
reporting requirements under 40 CFR part 110 would still apply to any
discharge of oil to navigable waters or adjoining shorelines that is
‘‘harmful’’ as specified in Sec. 110.3.
40 CFR 112.5(b)
An owner or operator of a facility subject to the SPCC regulations
must review and evaluate a facility’s SPCC plan at least once every
three years from the date the facility becomes sub:ect to 40 CFR part
112. EPA is proposing to extend the period in which an owner or
operator must conduct this review and evaluation from at least once
every three years to at least once every five years. EPA is proposing
this change because it believes that it would have the effect of
reducing the record keeping burden, thus saving time and money for
facilities, while causing no harm to the environment. A facility owner
or operator would still have to amend an SPCC Plan whenever there is a
change in facility design, construction, operation, or maintenance
which materially affects the facility’s potential for discharge of oil
into or upon the navigable waters of the United States or adjoining
shorelines. 40 CFR 112.5(a). Therefore, absent such changes, an SPCC
plan should continue to provide adequate protection against discharges
for a five year period.
In its 1991 proposal to amend the SPCC rule, EPA solicited comments
on whether owners or operators of facilities should have to affix a
signed and dated statement to the SPCC Plan indicating that the
triennial review has taken place and whether or not amendment of the
Plan is required. EPA did not at that time propose a rule change. 56 FR
54612, 54616, 54629, October 22, 1991. Today, EPA is implementing that
request for comments with a proposed rule change that would provide
that an owner or operator must certify completion of the review and
evaluation. An owner or operator, for purposes of this certification,
includes any person with authority to fully implement the Plan, e.g., a
facility manager. The certification would entail little additional
information collection burden as it would merely note completion of the
review and evaluation process at least once every five years. See 5 CFR
1320.7 (j) (1) . It would be maintained with the Plan at the facility, and
would provide EPA with written proof that the owner or operator has
complied with the rule.
[ [ Page 63815]]
40 CFR. 112.7 Introduction
EPA is proposing to amend the introduction to Sec. 112.7 50 that
its language conforms to the newly proposed definition of an SPCC Plan
in Sec. 112.2. See the above discussion. The change to the introduction
would merely track language in proposed Sec. 112.2 to allow facilities
flexibility to use certain alternative formats in lieu of the format
prescribed in the SPCC rule, such as the ICP format, certain State
formats, or other formats acceptable to the Regional Administrator.
40 CFR 112.7(e) (2) (iii) ID)
EPA is proposing to amend Sec. 112.7(e) (2) (iii) ID ), which applies
to bulk storage tanks (onshore), excluding production facilities.
Section 112.7(e) (2) (iii) authorizes the drainage of rainwater from the
diked area into a storm drain or an effluent discharge that empties
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into an open water course, lake, or pond, and bypasses the in—plant
treatment system if four conditions are met. 40 CFR
112.7(e) (2) (iii) (A)-(D) . The change would allow the use of records
recording stormwater bypass events which are required to be kept under
a National Pollutant Discharge Elirranation System (NPDES) permit. In
the NPDES regulations, ‘‘bypass’’ is defined to mean the ‘‘intentional
diversion of waste streams from any portion of a treatment facility.’’
40 CFR 122.41(m) (1) (I).
The NPDES regulations set forth conditions that all NPDES permits
must contain. 40 CFR 122.21. One of these NPDES ‘‘standard conditions’’
allows for excusable bypasses under certain conditions. 40 CFR
122.41(m) (2), (3), and (4). One of the conditions is that the permittee
must provide notice of the bypass event. 40 CFR 122.41(m) (3). Under 40
CFR 122.41(3) (2), the permittee must maintain records of all such
bypass events for at least three years from the date of the report.
These permit conditions for notification and record keeping serve the
same objective as the SPCC rule requirement in
Sec. 112.7(e) (2) (iii) (D), and the documentation is therefore acceptable
to satisfy the SPCC requirement. Furthermore, the proposed change would
reduce the information collection burden imposed by the SPCC rule.
Owners or operators would no longer be required to maintain duplicate
records of the same event pursuant to different regulatory programs.
This proposed change would also affect the information collection
burden imposed by Sec. 112.7(e) (5) (ii) (A). This section requires
inspection of diked areas in onshore oil production facilities prior to
drainage as provided in Sec. 112.7(e) (2) (iii) (B), (C), and (D) . By the
cross reference to the record keeping requirements in
Sec. 112.7(e) (2) (iii) (D), the requirement to maintain adequate records
of such events is included. Therefore, when those records of bypass
event notification are maintained at onshore oil production facilities
pursuant to NPDES permitting conditions as discussed above, duplicative
record keeping under part 112 would be unnecessary.
40 CFR 112.7(e) (2) (vi)
Section 112.7(e) (2) (vi) requires periodic integrity testing of
aboveground tanks, taking into account tank design (floating roof,
etc.), and using such techniques as hydrostatic testing, visual
inspection, or a system of non—destructive shell thickness testing. It
further requires maintenance of comparison records when appropriate.
Tank supports and foundations should be included in these inspections.
In addition, the rule requires that the outside of the tank should be
frequently observed by operating personnel for signs of deterioration,
leaks which might cause a spill, or accumulation of oil inside diked
areas.
EPA proposes to amend Sec. 112.7(e) (2) (vi) to provide that usual
and customary business records would suffice to meet the record keeping
requirements of the section. Among such usual and customary business
records are those maintained pursuant to API Standards 653 and 2610.
API Standard 653 concerns tank inspection, repair, alteraticn, and
reconstruction. It is considered the predominant standard for
aboveground tank inspection and its provisions are based on tank design
principles found in API Standards 620 and 650. API Standard 653 calls
for owners or operators of tanks and associated systems to maintain a
complete record file consisting of construction, repair/alteration
history, and inspection history records. Construction reccrds include
nameplate information, drawings, specifications, construction complete
reports, and any results of material tests and analyses. Repair!
alteration history includes all data accumulated on a tank from the
time of its construction with regard to repairs, alterations,
replacements, and service changes. Inspection history includes all
measurements taken, the condition of all parts inspected, and a record
of all examinations and tests.
API Standard 2610 concerns design, construction, operation,
maintenance, and inspection of terminal and tank facilities. It
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incorporates the requirements of many different standards for tanks
into one document. The Standard recommends that records should be kept
of the activities conducted pursuant to the Standard. It recommends
that periodic inspection and preventive maintenance should be conducted
on all transfer systems to control leaks. Accurate inventory records
may be maintained and periodically reconciled for indication of
possible leakage from tanks and piping systems. It further calls on the
operator to keep complete maintenance records for all equipment within
a terminal.
40 CER 112.7(e) (8)
EPA proposes to amend Sec. ll2. )(e) (8) to provide that usual and
customary business records, such as records maintained pursuant to API
Standards 653 and 2610, would suffice to meet the requirements of the
section. The revision would have the effect of reducing the information
collection burden of the SPCC rule. See the discussion concerning usual
and customary business practices above.
The section requires that inspections required by part 112 be in
accordance with written procedures developed for the facility by the
owner or operator. These written procedures and a record of
inspections, signed by the appropriate supervisor or inspector, must be
made a part of the SPCC Plan and maintained for a period of three
years.
40 CFR 112.20(f) (4)
The owner or operator of any non—transportation-related onshore
facility that, because of its location could be expected to cause
substantial harm to the environment by discharging oil in harmful
quantities into or on the navigable waters of the United States or
adjoining shorelines, is required to prepare and submit a facility
response plan to EPA. To determine whether a facility could cause
substantial harm, an owner or operator of a facility must review the
criteria listed in Appendix C of the rule and base his/her
determination on those criteria. A facility that transfers oil over
water to or from vessels and that has a total oil capacity greater than
or equal to 42,000 gallons would meet the substantial harm criteria and
be required to prepare and submit a response plan as required by
Sec. 112.20 to the appropriate Regional Administrator. Any other
facility with a capacity of one million gallons or more would evaluate
the criteria in 40 CFR 112.20(f) (1) (ii) (A)-(D) and work through the
flowchart in Appendix C to determine whether it is a substantial harm
facility.
[ [ Page 63816)]
EPA proposes to add a new paragraph to Sec. 112.20(f) to provide a
method to calculate the oil storage capacity of aboveground tanks
containing a mixture of process water/waste water with 10% or less of
oil. EPA is. proposing this change because it believes that the harm due
to spills from tanks that contain 90% or more of process water/waste
water is roughly proportional to their oil content. Discharges from
tanks containing process water/waste water and 10% or less oil will
cause less harm to the environment than tanks containing a greater
proportion of oil. Facilities that are required to prepare and submit
facility response plans must do so because of the substantial harm that
discharges of oil from those facilities might cause. That substantial
harm is predicated, at least in part, on a storage capacity
determination. If there is a smaller percentage of oil in a tank, there
will be less likelihood of great harm. Therefore, EPA believes that the
entire capacity of process water/waste water tanks with 10% or less of
oil should not be counted in the capacity necessary to subject a
facility to the requirement to prepare a facility response plan. Only
the oil portion of the storage capacity in process water/waste water of
10% or less oil would be counted. EPA believes that an oil threshold
capacity to determine substantial harm calculations of 10% or less in
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tanks containing process water/waste water is a reasonable one. It is
reasonable because it exempts lower risk facilities, from which
discharges would not reach substantial harm levels, from having to
prepare facility response plans.
The proposed rule change, however, would have no effect on the
calculations necessary to determine whether to prepare an SPCC Plan.
Calculation of capacity under the SPCC rule of tanks containing
mixtures of process water/waste water and oil would continue to be done
as it is now. o change is necessary in SFCC capacity calculations
because SPCC Plans are designed for prevention purposes, not response.
While harm might result from discharges from these SPCC facilities, it
would not reach the substantial harm level. Finally, this proposed
change would not apply to the oil capacity determination for
substantial harm saline process water/waste water from oil drilling,
production, or workover facilities because discharges from such
facilities have a greater likelihood of causing environmental damage
than facilities that do not handle saline water.
Pursuant to the proposed rule, a facility owner or operator would
determine the percentage of oil in the process or waste water in a
tank. If the percentage of oil varies over a period of time, the owner
or operator would use the highest percentage of oil for purposes of the
capacity calculation. If the capacity of oil is 10% or less, the owner
or operator would multiply the percentage of oil by the capacity of the
tank or container. If appropriate, the owner or operator would then add
the volume of oil calculated to the total capacity of any other oil
storage tank or container with 100% oil or mixtures of oil and process
or waste water above the 10% amount to determine its total capacity for
the substantial harm determination of Sec. 112.20(f).
40 CFR 112.20(h)
EPA proposes to amend Sec. 112.20(h) to clarify that an Integrated
Contingency Plan (ICP) prepared in accordance with the notice published
at 61 FR 28642, June 5, 1996 is an acceptable format for a facility
response plan. The ICP was developed for facilities to integrate
emergency response plan requirements. The intent of the ICP is to
provide a mechanism for consolidating multiple plans that facilities
may have prepared to comply with various regulation5 into one
functional emergency response plan. Like the proposed requirements for
SPCC Plans, the FRP rule already provides for cross-referencing.
Similarly, an owner or operator who uses the ICP format must meet all
of the regulatory requirements of the FRP rule for that format to be an
acceptable substitute for the present FRP format.
EPA does not contemplate that the use of an ICP or other format
would reduce the information collection burden of the FR? rule, but it
would simplify compliance with multiple applicable statutes and rules.
Appendix C
EPA also proposes to amend Appendix C to this part to reflect
changes proposed in Sec. 112.20(f) (4). EPA also proposes to amend
section 2.1 of Appendix C to state the correct capacity that subjects a
facility to FRP requirements if it transfers oil over water to or from
a vessel. That capacity in section 2.1 of Appendix C should read
‘‘greater than or equal to 42,000 gallons * * ‘t as specified irk
Sec. 112.20(f) (1) (I).
III. Summary of Supporting Analyses
A. Executive Order 12866
Under E.O. 12866 (58 FR 51735, October 4, 1993), the Agency must
determine whether the regulatory action is ‘‘significant’ and
therefore subject to Office of Management and Budget (0MB) review and
the requirements of the E.O. The E.O. defines “significant regulatory
action’ ‘ as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
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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
5.0. 12866.
Pursuant to the terms of E.O. 12866, it has been determined that
this proposed rule is a significant regulatory action’ ‘ because it
raises novel legal or policy issues. Such issues include proposed
measures which would relieve some facilities of regulatory mandates and
could change the manner in which facilities comply with remaining
mandates. Therefore, this action was submitted to 0MB for review.
Changes made in responses to the 0MB suggestions or recommendations
will be documented in the public record.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996, requires that a
Regulatory Flexibility Analysis be performed for all rules that are
likely to have a significant adverse impact on a substantial number of
small entities. EPA has determined that this proposed rule would not
have a significant adverse impact on a substantial number of small
entities because it would impose few if any new burdens, and overall
would substantially reduce existing burdens on small businesses.
Therefore, I certify that this proposed rule is not expected to have a
significant adverse impact on a substantial number of small entities.
Thus, no Regulatory Flexibility Analysis is necessary.
C. Paperwork Reduction Act
The information collection requirements in this proposed rule will
be submitted for approval to 0MB as required by the Paperwork Reduction
Act, 44 U.S.C. 350]. et seq. Information Collection Request (ICR)
documents
[ (Page 63817]]
have been prepared by EPA (EPA ICR no. EPA 0328.06 and 1630.04) and
copies may be obtained from Sandy Farmer, OPPE Regulatory Information
Division; U.S. Environmental Protection Agency (2137); 401 M St., S.W.;
Washington, D.C. 20460 or by calling 202-260-2740. These ICRs are also
available for viewing or downloading at EPA ’s ICR Internet site at
http: //www.epa . gov/icr.
EPA does not collect the information required by the Oil Pollution
Prevention regulation (i.e., the SPCC Plan) on a routine basis. SPCC
Plans ordinarily need not be submitted to EPA, but must be maintained
at the facility. Preparation, implementation, and maintenance of an
SPCC Plan by the facility helps prevent oil discharges, and mitigates
the environmental damage caused by such discharges. Therefore, the
primary user of the data is the facility.
Although the facility is the primary data user, EPA also uses the
data in certain situations. EPA primarily uses SPCC Plan data to ensure
that facilities comply with the regulation. This includes design and
operation specifications, and inspection requirements. EPA reviews SPCC
Plans: (1) When facilities submit the Plans because of certain oil
discharges, and (2) as part of EPA’s inspection program. Note however,
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that the proposed rule would elinu.nate the necessity to submit the
entire Plan after certain discharges, and merely retain the requirement
that it be maintained at the facility. State and local governments also
use the data, which are not necessarily available elsewhere and can
greatly assist local emergency preparedness planning efforts.
Preparation of the information for affected facilities is required
pursuant to section 311(j) (1) of the Act as implemented by 40 CFR part
112.
Through this rulemaking, EPA proposes to reduce the reporting and
record keeping burden for facilities regulated under the 52CC
regulation by: (1) expanding the format of an acceptable SPCC plan to
include plans prepared to meet State or other Federal standards (i.e.,
State plans, Integrated Contingency Plans, etc.) ; (2) extending the
period of time that a facility must review its Plan from at least once
every three years to at least once every five years; and (3) reducing
the reporting requirements in the event of certain reportable oil
spills and the record keeping requirements relating to certain
discharges of rainwater from a diked area. In addition to the program
changes outlined above, EPA is also proposing to decrease the
information collection burden calculated for the SPCC rule so that the
information collection burden incurred by persons in the normal course
of their business activities would no longer be attributed to the part
112 burden.
To quantify the effect of these proposed changes on reducing burden
to the regulated community, EPA relied, in part, on data gathered
through the 1995 SPCC survey. EPA developed a series of analyses using
the survey data including the paper EPA produced in 1996 entitled
‘Effectiveness of EPA’s SPCC Program on Spill Risk.’’ The results of
the analysis show that compliance with several specific SPCC provisions
appears to reduce both the number and the amount of oil that migrates
outside of a facility’s boundaries. Facility practices such as tank
leak detection, spill overfill protection, pipe external protection,
and secondary containment, also appear to reduce the number and
magnitude of oil spills. The results also indicate that a facility’s
compliance with even one SPCC measure may serve as a general indicator
of a facility owner’s/operator’s awareness of the importance of other
spill prevention and control measures.
The net annual public reporting and record keeping burden for this
collection of information, as proposed, for newly regulated facilities
is estimated to range from 37.1 to 53.5 hours, with an average burden
of 39.2 hours, including time for reviewing instructions and gathering
the data needed. The net annual public reporting and record keeping
burden for facilities already regulated by the Oil Pollution Prevention
regulation is estimated to range from 3.7 to 9.5 hours, with an average
burden of 4.0 hours. These average annual burden estimates take into
account the varied frequencies of response for individual facilities
according t’o characteristics specific to those facilities, including
frequency of oil discharges and facility modification. Under the
proposed rule, an estimated 446,498 existing and newly regulated
facilities are subject to the information collection requirements of
this proposed rule during the first year of the information collection
period. The net annualized capital and start-up costs average $0.3
million, and net annualized labor and operation and maintenance costs
are $49.8 million.
The present information collection burden of the SPCC rule averages
2,557,194 hours per year for the information collection period. Through
this rulemaking EPA proposes to reduce that burden by approximately
664,471 hours. This proposed reduction would result in an average
annual burden of 1,692,723 hours.
In addition to the modifications the Agency is proposing to make to
the SPCC rule, the Agency is also proposing to modify the information
collection requirements of the Facility Response Plan (FRP) regulation
as part of this rulemaking effort. The FRP rule (40 CFR 112.20-112.21)
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requires that owners and operators of facilities that could cause
‘‘substantial harm’ ‘ to the environment by discharging oil into
navigable waters or adjoining shorelines prepare plans for responding,
to the maximum extent practicable, to a worst case discharge of oil, to
substantial threat of such a discharge, and, as appropriate, to
discharges smaller than worst case discharges. Each FRP is submitted to
the Agency, which in turn, reviews and approves plans from facilities
identified as having the potential to cause ‘‘significant and
substantial harm’’ to the environment from oil discharges. Other low-
risk, regulated facilities are not required to prepare FRPs but are
required to document their determination that they do not meet the
‘‘substantial harm’ ‘ criteria.
Through this rulemaking, EPA proposes to reduce the reporting and
record keeping burden for facilities regulated under the FRP rule by
adding a paragraph to Sec. 112.20(f) to provide a method to calculate
the oil storage capacity of aboveground tanks containing a mixture of
process water/waste water with 10 percent or less of oil. EPA also
proposes to amend Sec. 112.20(h) to clarify that an Integrated
Contingency Plan prepared in accordance with the notice published at 61
FR 28642, June 5, 1996, is an acceptable format for an FR?; and to
amend section 2.1 of Appendix C to state the correct capacity that
subjects a facility to FR? requirements if it transfers oil over water
or to or from a vessel.
The Agency anticipates that only the first proposed change will
have an appreciable impact on the burden to the regulated community.
The Agency expects that the number of facilities subject to the
requirements to develop an FRP and maintain the plan on a year-to—year
basis will slightly decrease as a result of the proposed process water!
waste water calculation. In the current ICR, EPA estimated that 5,400
facilities would be required to develop and submit FRPs and 4,482 of
these facilities were large facilities (i.e., facilities with storage
capacity greater than one million gallons). Of these 4,482 facilities,
EPA estimated that approximately 250 facilities in the industrial
manufacturing category would be excluded from the FR? requirements as a
result of the proposal. Although these facilities have
[ [ Page 63818)]
already incurred costs to develop an FR?, the facilities would rio
longer incur costs associated with maintaining the Plan or retaining
outside response contractors in the event of an oil spill. The Agency
has previously estimated that it requires approximately 118 hours for
facility personnel in a large, consumption facility to comply with the
annual, subsequent-year reporting and record keeping requirements of
the FR? rule after adjusting for compliance with other Federal and
State regulations. The present information collection burden of the FR?
rule averages 376,599 hours a year. Through this rulemaking EPA
proposes to reduce that burden by approximately 24,190 hours. This
proposed reduction would result in an annual average burden of 352,409
hours.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
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currently valid 0MB control number. The 0MB control numbers for EPA ’s
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Comments are requested on the Agency’s need for this information,
the accuracy of the provided burden estimates and the supporting
analyses used to develop burden estimates, and any suggested methods
for further minimizing respondent burden, including the use of
automated collection techniques. Send comments on the Information
Collection Request to the Director, OPPE Regulatory Information
Division; U.S. Environmental Protection Agency (2136); 401 N St., S.W.;
Washington, D.C. 20460 or E-mail farmer.sandy@epamail.epa.gov; and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., N.W., Washington, D.C. 20503, marked
‘ Attention: Desk Officer for EPA.’’ Include the ICR number in any
correspondence. Since 0MB is required to make a decision concerning the
ICR between 30 and 60 days after December 2, 1997, a comment to 0MB is
best assured of having its full effect if 0MB receives it by January 2,
1998. The final rule will respond to any 0MB or public comments on the
information collection requirements contained in this proposal.
D. Differentiation Between Classes of OiLs
Pursuant to Public Law 104—55, 33 U.S.C. 2720, enacted November 20,
1995, most Federal agencies (including EPA) must, in the issuance or
enforcement of any regulation or the establishment of any
interpretation or guideline relating to the transportation, storage,
discharge, release, emission, or disposal of a fat, oil, or grease,
consider differentiating between and establishing separate classes for
animal fats and oils and greases, fish and marine mammal oils, and oils
of vegetable origin (as opposed to petroleum and other oils and
greases) . EPA has considered whether differentiation between and
establishment of separate classes of oils is appropriate for this
proposed rule and concluded that it is not. This conclusion is based on
the fact that the EPA proposal would reduce the information collection
burden for all classes of facilities. Achievement of that goal does not
require differentiation among classes of oils.
E. Unfunded Mandates
Pursuant to section 202 of the Unfunded Mandates Reform Act (the
Act) of 1995, enacted March 22,1995, Federal agencies must prepare a
statement to accompany any rule in which the estimated costs of State,
local, or tribal governments in the aggregate, or to the private
sector, will be $100 million or more in any one year. Section 205 of
the Act requires agencies to select the most cost-effective and least—
burdensome alternative that achieves the objective of the rule and that
is consistent with statutory requirements. Section 203 of the Act
requires an agency to establish a plan for informing and advising any
small government that may be significantly impacted by the rule. Small
governments would not be significantly impacted by this proposed rule,
therefore, it is not necessary to establish a plan pursuant to section
203. In fact, the proposed rule would reduce the information collection
burden on small governments that have facilities which are subject to
the SPCC rule.
EPA has determined that this proposed rule does not include a
Federal mandate that would result in estimated costs of $100 million or
more either to State, local, or tribal governments in the aggregate, or
to the private sector in any one year. This determination is based on
the fact that the proposed rule would impose no new mandates, and would
reduce costs to the private sector, while imposing no new costs on
State, local, or tribal governments. Thus today’s proposal is not
subject to the requirements of sections 202 and 205 of the Act.
F. National Technology Transfer and Advancement Act
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Under Sec. 12(d) of the National Technology Transfer and
Advancement Act, the Agency is required to use voluntary consensus
standards in its regulatory and procurement activities unless to do so
would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practices,
etc.) which are developed or adopted by voluntary consensus standard
bodies. In those cases where the Act applies and where available and
potentially applicable voluntary consensus standards are not used by
EPA, the Act requires the Agency to provide Congress, through the
Office of Management and Budget, an explanation of the reasons for not
using such standards.
1ithout necessarily deciding whether the Act applies here, EPA
invites comment on the potential use of voluntary consensus standards
in this rulemaking. In particular, as noted above, EPA proposes to
amend 40 CFR 112.7 (e) (2) (vi) and Ce) (8) to provide that the records
maintained pursuant to usual and customary business practices would
suffice to meet the recordkeeping requirements of the sections. While
not specifically referenced in the proposed regulation, usual and
customary business records would include those maintained pursuant to
American Petroleum Institute (API) Standards 653 and 2610. The Agency
proposes this flexible approach to be consistent with the goal of
reducing the recordkeeping requirements of this regulation. EPA invites
public comment on the Agency’s proposal as well as identification and
information about other standards, and in particular, voluntary
consensus standards, which the Agency should consider.
List of Subjects in 40 CFR Part 112
Environmental protection, Fire prevention, Flammable materials,
Materials handling and storage, Oil pollution, Oil spill prevention,
Oil spill response, Petroleum, Reporting and
[ [ Page 63819])
record keeping requirements, Tanks, Water pollution control, Water
resources.
Dated: November 24, 1997.
Carol Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR part 112 is
proposed to be amended as follows:
PART 112--OIL POLLUTION PREVENTION
1. The authority citation for part 112 continues to read as
follows:
Authority: 33 U.S.C 1321 and 1361; E.O. 12777 (October 18,
1991), 3 CFR, 1991 Comp., p. 351.
2. Section 112.2 is amended by adding the definition Spill
Prevention, Control, and Ccuntermeasure Plan; SPCC Plan; or Plan’ ‘ in
alphabetical order to read as follows:
Sec. 112.2 Definitions.
* * * * *
Spill Prevention, Control, and Countermeasure Plan; SPCC Elan; or
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Plan means the document required by Sec. 112.3 that details the
equipment, manpower, procedures, and steps to prevent, control, and
provide adequate countermeasures to an oil spill. The Plan is a written
description of the facility’s compliance with the procedures in this
part. It is prepared in writing and in accordance with the format
specified in Sec. 112.7, or in the format of a plan prepared pursuant
to State law, or in another format acceptable to the Regional
Administrator. If an owner or operator of a facility chooses to prepare
a plan using either the Integrated Contingency Plan format or a State
format or any other format acceptable to the Regional Administrator,
such plan must meet all of the requirements in Sec. 112.7, and be
sequentially cross-referenced from the requirement in Sec. 112.7 to the
page(s) of the equivalent requirement in the other plan.
* * * * 4
3. Section 112.4 is amended by revising paragraphs (a) (1) through
(a) (8) to read as follows:
Sec. 112.4 Amendment of SPCC Plans by Regional Administrator.
(a) * * *
(1) Name of the facility;
(2) Name(s) of the owner or operator of the facility;
(3) Location of the facility;
(4) Corrective action and/or countermeasures taken, including an
adequate description of equipment repairs and/or replacements;
(5) Description of the facility, including maps, flow diagrams, and
topographical maps;
(6) The cause(s) of such spill(s), including a failure analysis of
system or subsystem in which the failure occurred;
(7) Additional preventive measures taken or contemplated to
minimize the possibility of recurrence; and
(8) Such other information as the Regional Adm inistrator may
reasonably require pertinent to the Plan or spill event.
* ÷ * * 4
4. Section 112.5 is amended by revising the first sentence of
paragraph (b) to read as follows:
Sec. 112.5 Amendment of Spill Prevention Control and Countermeasure
Plans by owners or operators.
* * 4 * 4
(b) Notwithstanding compliance with paragraph (a) of this section,
owners and operators of facilities subject to Sec. 112.3(a), (b), or
(c) shall certify completion of a review and evaluation of the SPCC
Plan at least once every five years from the date such facility becomes
subject to this part. * *
* * * * *
5. Section 112.7 is amended by revising the last sentence of the
introductory text; and by revising paragraph (e) (2) (iii) (D), and the
last sentence of paragraphs (e) (2) (vi), and (e) (B) to read as follows:
Sec. 112.7 Guidelines for the preparation and implementation of a
Spill Prevention Control and Countermeasure Plan.
* * * The complete SPCC Plan shall follow the sequence outlined below,
unless it is in another format acceptable to the Regional
Administrator, such as one described in Sec. 112.2, and include a
discussion of the facility’s conformance with the appropriate
guidelines listed:
* * * * *
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(e) * *
(2) * * *
(iii) * *
(D) Adequate records are kept of such events, such as records
required pursuant to permits issued in accordance with
Secs. 122.41(j) (2) and 122.41(m) (3) of this chapter.
* * * * *
(vi) * * * Records of inspections maintained pursuant to usual and
customary business practices will suffice for purposes of this
paragraph.
* * * * *
(8) * * Records of inspections maintained pursuant to usual and
customary business practices will suffice for purposes of this
paragraph.
* * * * *
6. Section 112.20 is amended by adding paragraph (f) (4) and by
revising the first sentence of paragraph (h) to read as follows:
Sec. 112.20 Facility response plans.
* * * * *
(f) * * *
(4) To determine the capacity of a facility storing process water!
waste water with oil concentrations of 10% or less, for purposes of
paragraphs (f) (1) (i) and (ii) of this section (except for saline
process water/waste water from an oil drilling, production, or workover
facility), the following calculations shall be used:
(i) Determine the percentage of oil in the process water/waste
water of a tank or container. If the percentage of oil varies over a
period of time, the highest percentage shall be used;
(ii) If the percentage of oil is 10% or less, multiply the
percentage of oil by the capacity of the tank or container;
(iii) If appropriate, add the amount calculated in paragraphs
(f) (4) Ci) and (4) (ii) of this section to the total capacity of any
other oil tank or storage container containing 100% oil or mixtures of
oil and process water/waste water above 10%;
(iv) (A) A facility that transfers oil over water to or from vessels
and has a storage capacity of oil greater than or equal to 42,000
gallons will be considered a facility that could cause substantial harm
to the environment by discharging oil to the navigable waters or
adjoining shorelines.
(B) A facility with a capacity of 1 million gallons or greater
shall continue through the criteria in appendix C of this part to
determine whether the facility could cause substantial harm to the
environment by discharging oil to the navigable waters or adjoining
shorelines.; and
(v) A facility that has completed the calculations required by this
paragraph and does not meet the substantial harm threshold will not
have to prepare and subm t a response plan unless directed to do so by
the Regional Administrator.
* * * * *
(h) A response plan shall follow the format of the model facility—
specific response plan included in Appendix F to this part, unless an
equivalent response plan has been prepared to meet State or other
Federal requirements. * * *
* * * * *
7. Appendix C to part 112 is amended by revising section 2.0 and
the first sentence of section 2.1 to read as follows:
[ [ Page 63820]]
Appendix C to Part 112——Substantial Harm Criteria
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* * * * *
2.0 Description of Screening Criteria for the Substantial Harm
Flowchart
A facility that has the potential to cause substantial harm to
the environment in the event of a discharge must prepare and submit
a facility-specific response plan to EPA in accordance with appendix
F to this part. To determine the capacity of a facility storing
process water/waste water with oil concentrations of 10% or less
(except for saline process water/waste water from an oil drilling,
production, or workover facility), the respondent shall use the
method prescribed in Sec. 112.20 (f) (4). A description of the
screening criteria for the substantial harm flowchart is provided
below:
2.1 Non-Ttansportation-Related Facilities With a Total Oil Storage
Capacity Greater Than or Equal to 42,000 Gallons Where Operations
Include Over—Water Transfers of Oil.
A non-transportation-related facility with a total oil storage
capacity greater than or equal to 42,000 gallons that transfers oil
over water to or from vessels must submit a response plan to EPA. *
* * * * *
[ FR Doc. 97—31574 Filed 12—1—97; 8:45 am]
BILLING CODE 6560-50—P
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Federal Register/Vol. 63, No. 37/Wednesday, February 25, 1998/Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 22 and 59
(FRL-6966—TJ
RIN 2020—AAI3
Consolidated Rules of Practice
Governing the Administrative
Assessment of Civil Penalties,
issuance of Compliance or Corrective
Action Orders, and the Revocation,
Termination or Suspension of Permits
AGENCY: Environmental Protection
Agency (EPA)
ACTiON: Proposed rule.
SUMMARY: EPA is today proposing
technical amendments and other
refinements to the Consolidated Rules of
Practice Governing the Administrative
Assessment of Civil Penalties, 40 CFR
part 22. including the addition of new
rules for administrative proceedings not
governed by section 554 of the
Administrative Procedure Act
DATES: Comments must be submitted on
or before Apnl 27, 1998
ADDRESSES: Comments should be
submitted in writing to Enforcement
and Compliance Docket and Information
Center (2201A), Office of Enforcement
and Compliance Assurance, Office of
Regulatory Enforcement. U.S.
Environmental Protection Agency, 401
M Street, SW, Washington, D.C. 20460
or via electronic mail to crop-
comments@epamail.epa.gov. Comments
submitted on paper must be submitted
in tnplicate.
EPA will make available, both in
paper form and on the Internet, a record
of comments received in response to
this document. The official docket will
be a paper record of all comments
received in writing or by electronic
mail. This record may be reviewed at
room 4033 of the Ariel Rios Federal
Building, 1200 Pennsylvania Avenue,
N.W., Washington, DC 20044. Persons
interested in reviewing the comments
must make advance arrangements to do
so by calling 202—564—2614. A
reasonable fee may be charged by EPA
for copying docket materials. The
Agency also will publish a copy of the
official docket on the Office of
Enforcement and Compliance
Assurance’s internet home page at
http.\\www epa gov’oeca\regstat2 html
The Agency intends that this internet
docket should duplicate the official
paper record, however, if technological
or resource limitations make it
infeasible to include one or more
comments on the internet docket, the
internet docket will identify those
comments available only in the official
paper docket
FOR FURTHER INFORMATION CONTACT:
Scott Garrison (202—564—4047), Office
Enforcement and Compliance
Assurance, Office of Regulatory
Enforcement (2248A), U S
Environmental Protection Agency,
Washington, D.C. 20460
SUPPLEMENTARY INFORMATION:
1. Background
The Consolidated Rules of Practice
(“CROP”) at 40 CFR part 22 were
promulgated in 1980 to establish
uniform procedural rules for
administrative enforcement proceedings
required under various environmental
statutes to be held on the record after
opportunity for a hearing in accordance
with section 554 of the Administrative
Procedure Act. 5 U S C. 551 et seq
(“APA”). Aside from the addition of
statute-specific amendments to subpart
H (see e.g., Rules of Practice Governing
the Administrative Assessment of Class
II Civil Penalties Under the Clean Water
Act, 55 FR 23838 (1990). codified at 40
CFR 2.38), the CROP have not been
substantially revised since their initial
promulgation. Today’s proposal would
correct a number of inconsistencies and
ambiguities in the procedures which
have become apparent through
experience with the CROP In addition.
the Agency proposes to update and
modernize the procedures to make them
more “user-friendly” and to aid in
streamlining administrative practice.
On July 1, 1991, EPA proposed a
separate set of procedures for the
administrative assessment of penalties
where a hearing on the record under
APA section 554 is not required,
commonly referred to as “non-APA”
enforcement actions. See 56 FR 29996
These procedures, to be codified at 40
CFR part 28, were authorized by
Congress in various statutes. Id The
proposed “part 28” procedures were
designed to provide a quick and
understandable process by which to
resolve non-APA enforcement actions,
while protecting the basic due process
rights of a respondent. Id. at 29997
(discussion of constitutional due
process requirements as established in
Matthews v. Eldridge, 424 U S. 319
(1976)) EPA subsequently issued
guidance in September, 1991, to the
EPA Regional Offices calling for use of
the proposed part 28 procedures for
Class I penalty actions under section
309(g) of the Clean Water Act (“CWA”)
and, several months later, for Class I
penalty actions under section 311(b)(6)
of the CWA. Although use of these
procedures did result in quicker
resolution of administrative penalty
cases than had occurred before, Agency
experience revealed that the majority of
EPA Regions were following, with some
modification, the CROP procedures for
non-APA enforcement actions, in large
measure out of familiarity with the
CROP. A side-by-side comparison of the
proposed part 28 with the CROP reveals
many similar sections and procedures.
The proposed part 28 introduced a
number of useful concepts to EPA’s
administrative practice, such as
limitations on written legal arguments
or statements ( 28 8), a more clearly
described commenter role for certain
CWA and Safe Drinking Water Act
(“SDWA”) cases, expansion of
information exchange and restrictions
on formal discovery ( 28.24). a more
structured default procedure (528.21),
and simplified and expedited settlement
procedures (5 28.22) Many of these
concepts are the basis for today’s
proposed revisions to the APA
procedures of the CROP. See, e.g,
proposed § 22.18(a) “Quick resolution”
provisions. Given the many similarities
between the CROP and proposed part
28, as well as the Agency’s long-
standing goal of enhancing
administrative efficiency, the Agency
believes that maintaining two stand-
alone sets of procedures for its
administrative enforcement practice
which contain more similarities than
differences would be inefficient and
confusing. The specific requirements
appropriate to non-APA enforcement
actions can be presented effectively and
efficiently as a short subpart to the
CROP Accordingly, today’s proposal
includes in subpart I modifications to
the basic CROP suitable for non-APA
proceedings. EPA expects to withdraw
the part 28 proposal upon issuance of
these CROP amendments as a final rule.
Similarly, the proposed revisions to
the CROP would supersede and replace
the anticipated rules governing non-
APA hearings on field citations under
section 113(d)(3) of the Clean Air Act
(“CAA”). On May 3, 1994, EPA
published the proposed Field Citation
Program to be codified at 40 CFR 59. 59
FR 22776 EPA expects that the part 59
Field Citation Program will be
promulgated as a final rule before the
completion of this CROP rulemaking
Subpart B of part 59, “Rules Governing
Hearings on Field Citations,” will
govern CA.A section 113(d)(3)
proceedings until these CROP revisions
become final EPA expects that upon
promulgation of the CROP revisions as
a final rule, subpart B of part 59 would
be repealed and the revised CROP
would be used for CAA section
113(d)(3) proceedings.
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In addition, in order to implement the
SDWA Amendments of 1996, EPA
anticipates that it will soon repeal
subpartJof4o CFR part 142,
“procedures for PWS Administrative
Compliance Orders.” Section 142.208 of
that subpart stated that the CROP
procedures are to apply to
administrative actions enforcing
compliance orders issued under section
1414(g) of the SDWA, 42 U.S.C. 300g—
3. That instruction is now part of this
proposed rulemaking, and EPA intends
to use the relevant CROP procedures
proposed below as procedural guidance
for SDWA section 1414(g)(3)(B)
administrative enforcement actions
during the interim period before final
promulgation of revisions to the CROP.
On December 11. 1996, EPA proposed
to modify the procedures for
termination of National Pollutant
Discharge Elimination System
(“ JPDES”) permits issued wider the
CWA and for permits issued under
Subtitle C of the Resource Conservation
and Recovery Act (“RCRA”). 61 FR
65268 EPA proposed to substitute the
procedures contained in the CROP
governing revocation, termination and
suspension of other EPA permits for the
existing procedures in part 124, subpart
E (which cover only termination of
NPDES and RCRA Subtitle C permits).
EPA proposed two changes to the CROP
to implement this proposal: (1) EPA
proposed to insert the word
“termination” or “terminate” as
appropriate wherever the existing CROP
refers to “revocation or suspension” or
“revoke or suspend” permits; (2) EPA
proposed to add a set of supplemental
rules at § 22.44 to cover NPDES or
RCRA permit terminations. See 60 FR
65280 for a discussion of this proposal.
The comment period on this proposal
closed on February 10, 1997. For the
convenience of the public, today’s
proposal reflects all the changes to the
CROP EPA has previously proposed.
with some minor editorial changes EPA
is not, however, soliciting new
comments on changes previously
proposed, nor will EPA respond to any
such comments in the final rule to this
proposal. Any comments on the
proposal to terminate NPDES or RCRA
permits using the CROP procedures
should be directed to the docket for that
proposal, referenced in the December
11, 1996 document It should be noted,
however, that such comments will be
considered late-filed.
II. Proposed Revisions
A Revisions to Part 22
1. Statement of authonty
The “Authonty” section is
reorganized in numenc order, and
updated to include additional
authorities To the extent that these
additional authorities change the scope
of the CROP, they are discussed below
in regard to § 22.01(a).
2. Scope of the Rules
Section 22.Ol(a)’The phrase
“Consolidated Rules of Practice” would
be substituted for other phrases such as
“these rules of practice,” “these rules,”
and “this part,” for consistency here in
paragraph (a) and throughout the CROP.
The first sentence would also be revised
to clarify that these procedures apply
only to administrative adjudications.
Substantive changes to the scope of the
CROP are discussed in detail below.
The scope section will mandate that
the Agency shall use the CROP
procedures for all administrative
adjudicatory proceedings listed therein.
Although the Agency does not commit
itself to apply these procedures to
administrative actions other than those
listed in the scope, where it has
discretion to do so, the Agency may
elect to informally apply these
procedures for other adjudications not
listed The Agency has, however,
attempted to make the proposed scope
a complete list of all the proceedings
likely to be commenced subject to the
CROP. Note, too, that the CROP only
creates a set of procedures for use in the
exercise of some of EPA’s statutory
enforcement authorities, and neither
extends nor limits the substantive
jurisdiction of the Agency Many
provisions of the CROP reflect policy
choices by the Agency to exercise less
than the full scope of its statutory and
constitutional authority (e.g . extending
to 30 days the deadime for all answers
( 22.15), procedures for issuance of
default orders ( 22.17)). As such, these
limitations on the Agency’s authority
apply only in proceedings under the
CROP, and the Agency may modify
these requirements in future
ruIemaki gs.
Section 22.Ol(a)(2): The CROP would
be expanded to include field citation
proceedings under 42 U.S.C. 7413(d)(3),
as discussed above. Part 22 currently
applies to penalty proceedings under
section 7413(d)(1), and the proposed
revision would expand the scope to
include all of section 7413(d).
Section 22.O1(o)(3): A reference to 33
U S C 1415(f) inadvertently omitted
from the 1980 CROP is added for clarity
and consistency.
Section 22.O1(a)(4) This paragraph is
revised to clarify which sections of the
Solid Waste Disposal Act (SWDA)
authorize the various proceedings. The
scope is expanded by inclusion of
proceedings to suspend or revoke a
permit under sections 3005(d) and
3008(h) (42 U.S.C. 6925(d) and 6928(h))
as proposed in the Agency’s December
11, 1996. proposal noted above (60 FR
65 280). The scope is also expanded to
include assessment of administrative
civil penalties under 42 U.S.C. 6961
within the CROP. Reference to 42 U.S.C.
6992d is deleted, because the
demonstration program for medical
wastes and its accompanying
regulations (40 CFR part 259) expired on
July 22, 1991. The scope is revised to
clarify that the CROP applies to the
issuance of compliance orders under
section 3 008(a) or section 9006(a) of the
SWDA (42 U.S.C. 6928(8) or 6991e(a))
Additionally, the paragraph would be
revised to specify that the CROP is
applicable to both the assessment of
civil penalties and the issuance of
compliance orders pursuant to section
4005(c)(2) of the SWDA (42 U.S.C
6945(c)(2)). That section, enacted as part
of the 1984 Hazardous and Solid Waste
Amendments, authorizes EPA to enforce
the SubtitleD prohibition against open
dumping in certain circumstances.
Although section 4005(c)(2) refers to the
enforcement authorities available under
section 3008, the proposed revision
would clarify that the CROP would
apply to these actions.
The procedures governing most
SWDA corrective action orders appear
at 40 CFR part 24, but under certain
circumstances the CROP may apply. A
new subparagraph (B) would clarify that
the CROP generally does not apply to
SDWA section 3008(h) corrective action
orders, but only to those that are part of
a proceeding commenced under the
CROP for claims wider section 3008(a),
to suspend or revoke authorization to
operate under section 3005(e), or for
penalties for non-compliance with a
section 3008(h) order. A new
subparagraph (C) would clarify that the
CROP procedures generally do not
apply to corrective action orders
authorized under SWDA section
9003(h)(4) (42 U.S.C 6991b(h)(4)),
except where the Agency includes such
orders in a complaint seeking civil
penalties pursuant to section 9006. All
other corrective action orders are subject
to the part 24 procedures
Section 22 O1(a)(5) A reference
would be added to include proceedings
to assess civil administrative penalties
pursuant to section 207 of the Asbestos
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Federal Register/Vol. 63, No. 37/Wednesday, February 25, 1998/Proposed_Rules
Hazard Emergency Response Act
( AHERA”). codified as Title II of the
Toxic Substance Control Act, 15 U.S C
2647. The CROP was amended June 5,
1959, to add § 22.47, a supplemental
rule governing administrative penalty
proceedings under AHERA section 207,
however, there was no corresponding
aniendmentto 2201(a). 54 FR 24112.
The proposed revision would make
clear that such proceedings are
governed by the CROP.
Section 22.01fr ,I(6). Section 4301(b) of
the Oil Pollution Act of 1990 amended
section 311(14(6) of the CWA to allow
administrative penalty proceedings
This proposed rule would expand the
scope of the CROP to include
proceedings to assess administrative
civil penalties under section 311(b)(6).
The limitation to Class I I proceedings
would be dropped from the scope.
requiring use of the CROP for non-APA
Class I proceedings as well as Class H
penalty proceedings, under both
sections 309(g) and 311(b)(6) of the
CWA. Special provisions regarding the
non-APA Class I proceedings would
appear in subpart I of the CROP. The
proposed revision of 22 O1(a)(6) also
reflects the addition of proceedings to
terminate a permit issued under section
402(a) of the CWA, as proposed in the
December 11, 1996 FR notice discussed
above. 60 FR 65.268 Pursuant to that
proposed rule, the existing part 124
procedures for terminating permits
would be supplanted by the CROP
Section 22.O1(aJ(9) A reference
would be added to include proceedings
for the assessment of civi]
administrative penalties under 42 U S.C
1423(c) arid 1447(b) within the scope of
the CROP. A further reference would be
added regarding the issuance of any
order requiring both compliance and the
assessment of a civil penalty under 42
U.S.C. 1423(c ). These references reflect
the amendments to the Safe Drinking
Water Act. Public Law 104—182, 110
Stat. 1613 (1996), which affect
administrative penalty assessment
against public water systems and federal
facilities.
Section 22 Oi(o)(iO). A reference
would be added to include proceedings
for the assessment of civil penalties or
the issuance of compliance orders under
section 5 of the Mercury-Contamrng and
Rechar eab1e Battery Management Act
(42 U.s C. 14304). The Mercury-
Containing arid Rechargeable Battery
Management Act would phase out the
use of mercury in batteries and provide
for the efficient and cost-effective
collection and recycling or proper
disposal of batteries regulated under the
Act, Section 5 of the Act authorizes
administrative enforcement for
violations of the Act, except for section
104 of the Act, which is enforceable
under the Solid Waste Disposal Act
Sect jon 22 02 /b) A reference would
be added to include the new subpart I,
and to provide that subpart H or 1
provisions will supersede any
conflicting provisions in subparts A—C.
Section 22 01(c ) This provision
would be amended to empower the
Environmental Appeals Board the
authority to resolve procedural matters
not covered in the CROP because ii has
been designated by the Administrator to
perlorm this function.
3. Definitions
Section 2203(a)’ Surplus language
would be deleted from the definition of
“Act”. No substantive change is
intended
A definition of “Business
confidentiality claim” would be added
in order to specifically link the
treatment of confidential business
information (“CR1”) in CROP
proceedings to the general provisions
for CR1 in 40 CFR part 2, subpart B. This
amendment will clarify that the same
protections that apply to use of C D I in
other Agency actions will apply in
proceedings under the CROP.
A definition of “Clerk of the Board”
would be added to identify the Clerk of
the Environmental Appeals Board, who
should receive service of pleadings and
documents in matters pending before
the Board.
A definition of “Commenter” would
be being added for purposes of
administrative civil penalty actions
under Section 3 09(g) of the Clean Water
Act, Class fl administrative civil penalty
actions under Section 311(b)(6) of the
Clean Water Act, and for actions under
Section 1423(c) of the Safe Drinking
Water Act, in order to provide
commanter procedures required by
those Acts.
The definition of 11ComplainantP
would be revised to add references to
the provisions covering commencement
of a proceeding and the content and
amendment of a complaint
The definition of “Complaint” would
be deleted, as it is fully covered by the
operative provisions of the rule at
§ 22.14
The definition of “Consent -
Agreement” would be deleted, as it is
fully covered by the operative
provisions of the rule at § 22.18(b)(2).
The address of the Environmental
Appeals Board would be deleted from
its definition, as redundant with
§ 22 30(a)
The definition of “Final Order”
would be clarified by specifically
including Consent Orders issued
pursuant to §22 18
The definition of “Hearing Clerk”
would be amended to update the
mailing address
The definition of “Initial Decision”
would be expanded to include
references to the operative sections of
the CROP at § 22 17(c), 22 20(b) and
22.27, thereby distinguishing initial
decisions from other decisions rendered
by a Presiding Officer,
The definition of “permit” would be
expanded to include permits issued
under Section 402(a) of the Clean Water
Act and Section 3005(dl of the Resource
Conservation and Recovery Act,
consistent with the December 11, 1996,
proposed rule (60 FR 65,269). As used
in the CROP, the term “permit” would
also apply to authority to operate under
interim status pursuant to section
3 005(e) of the Resource Conservation
and Recovery Act.
The definition of “Presiding Officer”
would be clarified and amended to
provide that, until an answer is filed,
the Regional Judicial Officer serves as
Presiding Officer, This change is one of
form only, as § 22 16(c) of the existing
Rule allows the Regional Administrator
ora delegate to rule on motions until an
answer is filed, and in practice this
authority is delegated to Regional
Judicial Officers. The definition also
would be amended to allow Regional
Judicial Officers to preside in
proceedings under subpart.
The definition of”Regional
Administrator” would be revised for
clarity and to eliminate unnecessary
language. EPA would delete from the
existing nile the provision defining the
term “Regional Administrator” to refer
to the Environmental Appeals Board in
cases commenced at EPA Headquarters.
In the interests of clarity, the proposed
revisions would specifically refer to the
Regional Administrator where the CROP
assigns responsibilities to the Regional
Administrator, and to the EAR wherever
the CROP assigns responsibilities to the
EAt Only one responsibility assigned
to the Regional Administrators under
the CROP would not also be assigned to
the EAR for cases commenced at EPA
Headquarters, which is the
responsibility of designating Regional
Judicial Officers. EPA does not
anticipate any need to provide for a
Regional Judicial Officer to preside in
non-APA proceedings commenced at
EPA Headquarters. EPA anticipates that
it will use non-APA procedures
pnmanly for cases expected to be
routine and raising few, if any, new
issues of law EPA expects to rely on
Administrative Law Judges to act as
Presiding Officers in all cases imtiated
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at EPA Headquarters. because current
Agency plans do not call for EPA
Headquarters to initiate significant
numbers of routine cases or cases which
raise no significant new issues of law
For the few instances where
Headquarters-based Complainants seek
to file non-APA cases, such cases could
be filed with a Regional Hearing Clerk
and adjudicated by the appropriate
Regional Judicial Officer
The definition of “Regional Hearing
Clerk” would be clarified as it pertains
to cases initiated at EPA Headquarters.
The Regional Office addresses now
appear in Appendix A
Redundant language would be
removed from the definition of
“Regional Judicial Officer”.
4. Roles of the Environmental Appeals
Board, Regional Judicial Officer and
Presiding Officer; disqualification,
withdrawal, and reassignment
Section 22 04(o) The heading would
be amended, and the entire section
would be revised to clarify the roles of
the Environmental Appeals Board,
Regional Judicial Officers, and Presiding
Officers in administrative enforcement
proceedings under the CROP The
proposed changes better describe
current practice. Paragraph (a) would be
amended to clarify that the
Administrator has delegated to the
Environmental Appeals Board the
authority to rule on appeals, and that in
all cases except those in which the
Environmental Appeals Board has
referred a matter to the Administrator,
appeals and motions must be directed to
the Environmental Appeals Board to be
considered The word “direction,” an
uncorrected typographical error in the
existing CROP, would be amended to
“discretion.’
Section 22 04(b) The section would
be amended to clarify the role and
authority of the Regional Judicial
Officer, to whom the authority to act in
a given proceeding is delegated by the
Regional Administrator. This authority
includes acting as Presiding Officer in
non-APA administrative enforcement
cases, acting as Presiding Officer in APA
cases prior to the filing of respondent’s
answer and request for a hearing, and
approving settlements of proceedings
under the CROP
EPA proposes to delete the
prohibition that Regional Judicial
Officers “shall not be employed by the
Region’s Enforcement Division or by the
Regional Division directly associated
with the type of violation at issue in the
proceeding”, because Regional
reorganizations have made this language
obsolete EPA’s Regional Offices
currently have a variety of different
organizational structures, and these
organizational structures may continue
to evolve Accordingly, EPA proposes to
substitute a more generally applicable
requirement which makes no mention of
organizational structures The Regional
Judicial Officer shall not “have any
interest in the outcome of’ any case in
which he or she serves as Regional
Judicial Officer EPA interprets this
clause broadly, as prohibiting anyone
who has any financial interest, personal
interest, or career interest in the
outcome of the action from serving as
Regional Judicial Officer. EPA believes
this should provide the Regional
Judicial Officers sufficient
independence to conduct a fair hearing,
because in EPA’s experience no
Regional Judicial Officer has been
subject to improper influence by Agency
officials The limitation placed on the
Regional Judicial Officer regarding any
“factually related hearing” also would
be deleted, because the Agency believes
it improper to disqualify a Regional
Judicial Officer merely because that
person has participated in a hearing
where similar facts were at issue.
EPA intends that the Regional Judicial
Officers should be, and are in fact, fully
independent of improper influence.
Nevertheless, EPA requests suggestions
as how this independence should be
described in § 22 04(b) Commenters
should be cognizant of the fact that the
EPA employees who serve as Regional
Judicial Officers will have duties other
than acting as Regional Judicial Officer,
because workloads do not generally
warrant exclusive assignments to that
position One possible alternative to the
language proposed would be a mandate
that a Regional Judicial Officer “shall
not be directly supervised by any person
who directly supervises the prosecution
of the case “Such a requirement would
provide a more definite standard than
the standard that is proposed, however
it would be at odds with Agency’s
reinvention efforts to remove layers of
management, minimize institutional
barners, promote cross-media training
and promote multimedia enforcement
Section 22 04(c) Surplus language
would be deleted No substantive
change is intended by this revision
Section 22 04(d) Several
clarifications are made by deleting
surplus and confusing language The
proposed rule would require parties to
first request that a Regional
Administrator, a member of the
Environmental Appeals Board, or the
Presiding Officer disqualify himself or
herself before requesting that a higher
Agency official disqualify that person
Although requests for disqualification
are very rare, the proposed rule would
reduce unnecessary delay and burdens
by requiring that requests for
disqualification first be made directly to
the person whose disqualification is
sought. If the request is denied, then the
reviewing official would have more
information upon which to base a ruling
than if the initial request were made
directly to the reviewing official. The
proposed rule would also authorize the
Environmental Appeals Board, rather
than the Administrator, to review
requests for disqualification of Regional
Administrators and Presiding Officers If
a motion to disqualify a member of the
Environmental Appeals Board is denied,
a party may appeal that ruling to the
Administrator.
EPA also requests comment on
another possible change in the
disqualification procedures which is not
included in the text of the proposed rule
published today. Under the proposed
rule, both the interlocutory appeal
procedures of § 22 29 and the
procedures for appeal of an initial
decision at § 22.30 would apply where
a Presiding Officer denies a motion for
disqualification. EPA is considering a
prohibition on interlocutory appeals of
motions for disqualification, in order to
avoid unnecessary delay After issuance
of an initial decision, the parties would
still have the right of appealing any
adverse ruling or order of the Presiding
Officer, including a refusal to disqualify
himself or herself, pursuant to § 22 30
This change would make the CROP
consistent with Federal court practice
See 28 U S C. 1292 (decisions regarding
disqualification not included in the
interlocutory review authority of the
Courts of Appeals), US v. Gregory, 656
F 2d 1132, 1136 (5th Cir 1981)
(interlocutory review of disqualification
decision not available), Dubnoffv.
Goldstein, 385 F 2d 717, 721 (2d Cir.
1967)(”A determination of a District
Judge not to disqualify himself is
ordinarily reviewable only on appeal
from a final decision on the [ underlying
cause of actioni “) The Agency requests
comment on this potential revision of
the CROP
5 Filing, Service, and Form of Pleadings
and Documents, Business
Confidentiality Claims
ect,on 22 05 The heading would be
revised to include business
confidentiality claims
Section 22 05(0) The paragraph
would be revised to clarify that the
original and a copy of each pleading or
other document intended to be part of
the record of the proceeding shall be
filed with the Regional Hearing Clerk or
Clerk of the Environmental Appeals
Board. Providing both an original and a
copy makes it easier for the hearing
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clerks to maintain both a record file and
a public viewing file, in order to assure
public access without risk of altering the
official record. The paragraph also
would be revised to clarify when a
pleading or document is “filed.”
Requirements regarding service, as
distinct from filing, are deleted from
§ 22.05(a)(2) and moved to § 22.05(b);
the remaining sentence concerning
certificates of service would be
renumbered as § 22 05(a)(3). The
existing § 22.05(a)(3) would be
renumbered § 22.05(a)(2), and surplus
language deleted. The Agency solicits
comments on whether electronic filing
and service should be allowed, and if
so, under what conditions.
Section 22.05(b). The paragraph
would be amended to consolidate and
clarify service requirements, and to
require a copy of each pleading or
document to be served on the Presiding
Officer In paragraph (b)(1), the
provisions regarding service of the
complaint are changed to clarify who
must be served when serving a natural
person, a domestic or foreign
corporation, a partnership or
unincorporated association, an officer or
agency of the United States, a state or
local unit of government or a state or
local officer, agency, department.
corporation or other instrumentality.
The proposed rule allows service of the
complaint by any reliable commeroal
delivery service that provides written
venflcation of delivery
Paragraph (b)(2) would be amended to
allow service of all pleadings and
documents other than the complaint by
any reliable commercial delivery
service. The provision regarding mail
would be revised to reflect the fact that
both certified mail and return receipt
requested are varieties of first class mail.
The phrase “pleadings and documents”
is used here and throughout the
proposed rule to include all filings by
the parties. The heading would be
amended to reflect the change.
Section 22.05(c). Paragraph (c)(2)
would be changed to require more
information on the first page of every
pleading and to require tables of
contents and tables of authonties for all
legal briefs and memoranda greater than
twenty pages in length (excluding
attachments) to simplify processing and
review. Grammatical changes and
clarificatioi s are made in paragraphs
(c)(3) and (4) In paragraph (c)(5), the
provision which allowed Hearing Clerks
to determine the adequacy of documents
would be deleted, leaving that authority
solely with Presiding Officers or the
Environmental Appeals Board.
Section 22.05(d). A new paragraph
would be added to specify the treatment
of information claimed as Confidential
Business Information (“CBI”) in
documents filed in CROP proceedings,
and to link that treatment with the CBI
rules of 40 CFR part 2, subpart B. The
purpose is to facilitate the use of CBI as
evidence while appropriately preserving
the confidentiality of the information.
Paragraph (d)(i) provides that any
business confidentiality claim shall be
made in the manner prescribed by 40
CFR 2.203(b). A person who files a
document with a Regional Hearing Clerk
without making such a claim places that
document in the public record, where it
is available to the public for inspection
and copying pursuant to § 22 09 After
a document has been placed in the
public record, a subsequent claim of
confidentiality will not be effective.
This clanfies the obligations of the
claimant and makes clear which
procedures to follow, as well as the
consequences for failure to follow these
procedures.
Paragraph (d)(2) describes in more
detail how pleadings or documents
containing information claimed
confidential are to be filed with the
Regional Hearing Clerk, and the
contents of such documents, in order to
assure that such documents are properly
filed and the information within such
documents protected. The requirement
that parties file two versions of
pleadings or documents, one containing
the information claimed confidential
and a second redacted version, does not
preclude a party from filing a single
document that merely references,
without disclosing, confidential
information filed in earlier documents.
Paragraph (d)(3) describes the
procedures for service of pleadings of
documents containing claimed-
confidential information on the
Presiding Officer, complainant, parties,
amici, or representatives thereof
authorized to receive confidential
information, and makes clear that only
a redacted version of any pleading or
document may be served on a party.
amid, or other representative thereof
not authorized to receive the
confidential information. Paragraph
(d)(4) provides that only the redacted
version of a pleading or document with
claimed-confidential information will
become part of the public record, and
further provides that an EPA officer or
employee may disclose information
claimed confidential only as provided
by4 OCFRpartZ
6. Filing and Service of Rulings, Orders
and Decisions
Section 2206: The requirements
regarding service of rulings, orders and
decisions have been changed to allow
the more flexible service of these
documents by first class mail or any
reliable commercial delivery service.
References to the Regional Judicial
Officer are deleted as surplusage.
7. Computation and Extension of Time
Section 22.07’ In paragraph (a),
“holidays” would be clarified to mean
federal holidays. Paragraph (b) would be
revised to require that any motion for an
extension of time be filed sufficiently in
advance of the due date so as to allow
other parties the opportunity to respond
and to allow the Presiding Officer or the
EA.B reasonable opportunity to issue an
order The reference to “the Regional
Administrator” would be deleted as
surplusage. In paragraph (c), the “mail
box” rule for service would be
expanded to encompass the other
reliable commercial delivery services
authorized in § 22.05(b). Under the
proposed revision, as under the existing
CROP, it is imphcit that personal
service is complete upon personal
service, without need for a signed
receipt.
8. Ex Parte Discussion of Proceeding
Section 22.08’ New language would
be included to explicitly allow a
decision maker who has formally
recused himself from all adjudicatory
functions to engage in ex parte
functions. For purposes of this
provision, the Agency would consider
the approval of consent agreements and
issuance of consent orders to be
adjudicatory functions.
9. Examination of Documents Filed
Section 22.09: Extraneous language
would be deleted and the reference to
waiver of costs for duplication of
documents would be clarified.
10. Intervention and Amicus Curiae
Section 22.11: The section heading
would be amended to include amicus
curiae motions. Paragraph (a)(1) would
be amended to more specifically
describe the process for intervening, and
would make the standard for
intervention equivalent to the standard
used in the Federal courts, Rule 24(a)(2)
of the Federal Rules of Civil Procedure.
The final sentence in paragraph (c) of
the existing CROP (“The intervenor
shall become a full party to the
proceeding upon the granting of leave to
intervene.”) is intentionally omitted.
This would grant the Presiding Officer
the discretion to allow an intervenor to
become a party as to part, but not all,
of a proceeding. An additional five days
is given to file a response to a motion
to intervene, for consistency with
proposed changes to § 22.16. The
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changes to paragraph (a) permit the
deletion of paragraphs (C) and (d)
paragraph (b) describes the procedures
for motion for leave to file an arnicus
brief, and fifteen days is given to file a
response to an amicus brief EPA
requests comment as to the
appropriateness of these intervention
prOVISiOnS
ii Consolidation and Severance
Section 22 12, The phrase “by motion
or sua sponte” would be deleted as
surplusage. and perhaps confusing to
persons not trained in the law No
substantive change is intended by this
revision. Paragraph (a) would be
amended to clarify that proceedings
brought pursuant to the non-APA
procedures of subpart! may be
consolidated with an action brought
under the APA procedures. This
paragraph prohibits the use of the non-
APA procedures for hearing any action
which is the result of a consolidation of
an A.PA proceeding and rion-APA
proceeding Under these circumstances.
only the APA procedures of the CROP
(subpart A—H) are appropriate
The Agency considered, but rejected
as unnecessary, expressly prohibiting
under § 22.12 the consolidation of
actions if such consolidation could
result in the total penalty exceeding any
applicable cap on penalty amounts, The
existing language is sufficient to prevent
consolidation in such circumstances
because such a result would “adversely
affect the rights of parties engaged m
otherwise separate proceechngs
12. Commencement of a Proceeding
Section 22 13 The heading would be
amended, and the section revised, to
clarify how an administrative
enforcement proceeding is commenced.
For cases where pre-commencement
negotiations result in settlement of a
cause of action, paragraph (b) would
provide for the simultaneous
commencement and conclusion of a
case upon the issuance of a consent
order (provided that, in accordance with
§ 22.18(b)(Z), the consent agreement
contains that information required in a
complaint set forth in § 22.14(a)(1)—(3))
Negotiations with alleged violators prior
to the formal filing of a complaint may
in some cases lead to more efficient and
expeditious resolution of cases. See,
e g., Executive Order No. 12778 on Civil
Justice Reform (56 FR 55195, October
25. 1991) Where such negotiations are
productive, the filing of a consent
agreement and consent order would be
sufficient to commence a case, and
requiring a separate filing of a complaint
would merely waste paper In cases
subject to the Clean Water Act or Safe
Drinking Water Act public comment
provisions, this streamlined approach
would not permitted The original
language of this section would be
deleted as duplicative of the statutory
authorizations to commence
proceedings.
13 Complaint
Section 22.14 EPA proposes to
consolidate paragraphs (a) and (b) of the
existing CROP into a single paragraph
governing the content of all complaints
for assessment of civil penalties, for
revocation, termination or suspension of
permits, and for compliance and
corrective action orders. As used here
and in § 22.17 and 2227, “compliance
or corrective action order” includes
orders requiring immediate compliance
or corrective action, and orders
establishing schedules for compliance
or corrective action within a specified
period of time
Paragraph (a)(4) would be amended to
present in a single paragraph the
content requirements for all complaints,
whether they seek penalties, compliance
or corrective action orders, or permit
actions New language would expressly
permit the filing of a complaint without
specifying in the complaint the precise
penalty sought, as an alternative to
pleading a specific penalty. Where
complainant elects not to demand a
specific penalty in the complaint,
complainant is nonetheless obligated to
provide a brief explanation of the
severity of each violation alleged and a
citation to the statutory penalty
authority applicable for each violation
alleged in the complaint This notice
pleading option would provide the
Agency with added flexibility in issuing
a complaint under circumstances where
only the violator possesses information
crucial to the proper determination of
the penalty, for example, the economic
benefit the violator derived from its
noncompliance or the effect of a penalty
on its ability to remain in business.
Complaints following the notice
pleading approach would give
respondents in administrative
enforcement proceedings at least as
much notice of their potential liability
as they would receive in most
enforcement proceedings filed in the
Federal courts Complementary changes
to § 22 17(b) and 22 19(a) assure that,
where the Agency employs thLS notice
pleading approach, the Agency will
specify a penalty demand in its
preheanng information exchange and in
any motion for default As is the case in
judicial enforcement proceedings, this
notice pleading option is fully
compatible with the Agency’s long-
standing practice of working with
respondents toward a fair resolution of
enforcement actions,
Paragraph 22 14(a)(5) would combine
the right-to-hearing provisions presently
in § 22 14 (a)(6) and (b)(6), as well as
new language to accommodate hearings
on the appropriateness of proposed
compliance or corrective action orders.
The sentence requiring a copy of the
CROP to accompany each complaint
served would be deleted and placed in
a separate § 22 14(b), The requirement of
§ 22 14(a)(5) in the existing CROP would
be moved to § 22 14(a)(4)(i) Paragraph
(a)(6) would require the complainant to
specify in the complaint whether the
non-APA procedures in subpart I shall
apply to the proceeding If a complaint
does not contain an explicit statement
that subpart I applies, the ensuing
proceeding shall be conducted in
conformance with section 554 of the
APA,
The original paragraph (b)would be
merged into the new paragraph (a) The
revised paragraph (hI would contain the
requirement, currently in § 22 14 (a)(6)
and (b)(6), that a copy of the CROP
accompany each complaint
The text originally in paragraph (c)
would be deleted, and subsequent
provisions renumbered so that the text
presently in § 22.14(d) would appear in
22 14(c), with minor changes The
existing provision would be deleted to
avoid the possibility of conflict with the
notice pleading option proposed under
§ 22 14(a)(4)(ii) The Agency’s proposed
deletion of this provision does not
signal any general intent to abandon
applicable penalty pleading policies
The Agency’s penalty authority remains
subject to any statutory penalty criteria,
regardless of changes to the CROP, so
deletion of the existing paragraph (c)
should have no substantive effect on the
penalties that would be assessed
Paragraph (d) would contain the
provision presently in paragraph (e),
with minor revisions The Agency
considered, but is not proposing,
language specifically allowing the
withdrawal of a complaint without
prejudice, because such language is not
necessary The existing language of this
section does not establish a specific
standard that the Presiding Officer must
apply when considering a motion to
withdraw a complaint without
‘For example, a citaiton to the statutory penalty
authority might slate the following “For the
violations alleged herein, in accordance with is
USC 2615(a), complainant seeks a penalty of up
to $25,000 for each day the violations continue,
taking into account the nature, circumstances,
extent. arid gravity of the violation, and, with
respect to the violator, ability to pay. effect on
ability to continue to do business, any history of
prior such violations, the degree of culpability, and
other matters as Justice may require
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prejudice, and so, the “good cause”
standard generally applicable to
motions applies. The good cause
standard would allow withdrawal of a
complaint without prejudice in
circumstances where, for example,
information obtained after the
commencement of the case indicates
that the proper penalty should exceed
an applicable penalty cap, thereby
allowing the Agency to refile the case in
a forum that would permit assessment
of the proper penalty.
14. Answer
Section 22.15 ’The requirements for
filing and serving copies of an answer
are clarified in paragraph (a). Also, the
time allowed for the filing of an answer
would be changed from 20 days to 30
days. RCRA. the SDWA. arid the CWA
authorize 30 days to file an answer. The
discrepancy between these statutory
authorities and § 22.15 has caused
confusion, particularly in cases
involving alleged violations of more
than one statute (multimedia cases), as
to which tune limitation applies to the
overall cause of action. To avoid any
potential conflict, for all causes of
action, the requirement would be
changed to allow answers to be filed
within 30 days of service of the
complaint. EPA proposes to add to
paragraph (b) a new clause requiring
that the answer state the basis for
opposing any proposed penalty,
compliance or corrective action order,
or permit revocation, termination or
suspension. This requirement would not
add significantly to respondents’
existing burdens, as it is both consistent
with good pleading practice and
implicit in the existing rule Paragraph
(c) would be rewritten for clarity. No
substantive change is intended.
15 Motions
Secbon 22.16:Paragraph (a) would be
revised to place explicit limits on
motion practice and to provide a
common understanding that the routine
practice shall be the filing of a motion,
a response and a reply. wniiout any
further briefing. Any further responsive
documents concerning the motion
would be allowed only by order of the
Presiding Officer or EAB. The present
CROP is silent as to whether additional
briefing or argument is permitted after
the filing of a response to a motion. To
the extent that such replies are presently
allowed, there is no limit on the time for
filing a reply. nor any limit to the total
number of replies With an endless
series of replies possible, neither the
Presiding Officer nor the parties can be
sure when a motion is ripe for decision
The proposed amendments are intended
to establish more control over motion
practice in an effort to simphl r the
proceeding, and to reduce delays and
litigation costs. EPA believes that a
motion’response-reply structure is both
necessary and sufficient to present the
issues fully for the Presiding Officer
The proposed rule specifically provides
the movant an opporturnty for a reply
because responses to motions often raise
issues not addressed in the motion
itself. The proposed rule then limits the
scope of the reply to those issues raised
in the response, in order to avoid giving
an unfair advantage to the movant. For
those instances where this motion-
response-reply format may not be
appropriate, the Presiding Officer may
order an alternative approach.
The proposed rule would amend
paragraph (b) to expand the time for
filing a response to a motion from 10
days to 15 days. EPA anticipates that
this change will improve the quality of
the responses, better clarifying the
issues and thereby promoting jud.icial
economy. The proposed rule also would
allow 10 days for the filing of a reply.
reflecting the fact that the movant has
already had an opportunity to anticipate
possible objections to its motion and
that somewhat less time should be
needed to address such new issues as
might be raised in the response. The
clause pertaining to extensions of time
would be deleted as redundant with
§ 22.07(b) and 22.04(c).
Paragraph (c) would be revised to
clarify who renders decisions at the
different stages of a proceeding The
provision concerning oral argument on
motions would be deleted from this
section and placed in a separate
§ 22.16(d), and expanded to
acknowledge that Presiding Officers, as
well as the EAB, have the discretion to
order oral argument on motions.
16 Default
Section 22.17: The heading would be
changed, and the entire section
reorganized, for purposes of clarity.
Paragraph (a) would descnbe how a
party may be found in default, and the
consequences of such a finding. The
provisions in the current paragraph (a)
describing when penalty monies come
due, or when a permit revocation,
termination or suspension becomes
effective, would be moved to paragraph
(dl.
2 See. e g in the Mailer oF McL.augblin Gormley
King. at al .Docket Nos F1FRA 94—i-I—lu through
94—H—IS, where a moUOri to dismiss was Followed
by a response, a reply, a sur-reply. a supplemental
reply, and a second sur-reply
New paragraph (b) addresses content
requirements for motions for default. It
includes a requirement that where the
motion requests the assessment of a
penalty or the Imposition of other relief
against a defaulting party, the movant
must specify the penalty or other relief
sought and must put into the record the
legal and factual grounds for the relief
requested. This amendment
accommodates the changes made in
§ 22.14, above, and provides for those
instances in which the complaint does
not contain a specific penalty proposal.
Paragraph (c) would be revised to
describe the default order itself. It
would provide that a default order shall
be an initial decision, and treated in all
respects under the CROP as an initial
decision. Paragraph (c) would result in
one substantive change rules regarding
default orders, in regard to the standards
for granting relief. Section 22.17(a) of
the existing rule appears to require that
a default order automatically assess the
penalty proposed in the complaint, or
automatically revoke or terminate the
permit according to the conditions
proposed in the complaint. The
proposed revision would remove this
apparent restriction on the Presiding
Officers’ discretion so that they may
assure that the relief ordered is
supported by the administrative record.
In order to make it clear that supporting
the relief proposed in a default case
should be less burdensome on the
Agency than it would be if the
respondent chose to contest the case,
the language of the revised paragraph (c)
would require that the Presiding Officer
grant the relief requested unless the
record clearly demonstrates that the
requested relief is inconsistent with the
Act. The Agency would still be required
to make a prima facie case in regard to
the appropriateness of the proposed
relief, as well as in regard to liability.
The proposed change would not affect
determinations of liability in default,
which would remain subject to the
“preponderance of the evidence”
standard of § 22.24.
Subsection (d) would describe the
respondent’s obligations once default
has been entered regarding payment of
any penalty, revocation, termination or
suspension of any permit, and
compliance or corrective action
requirements. The existing rule does not
describe or explain these sanctions, and
the Agency believes therefore that these
new provisions provide additional
clarity and information to a potentially
defaulting party, and make much more
clear the consequences of default. The
existing rule requires payment of the
penalty within 60 days after the default
order was issued. This conflicts with the
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9471
Federal Claims Collection Standards.
which require payment within 30 days
after the date the order was issued,
unless EPA decides an extension is
appropriate See 4 CFR 1O 2 .l3(g) The
proposed rule therefore requires
payment within 30 days after the date
the default order becomes final.
17. Quick Resolution; Settlement;
Alternative Dispute Resolution
Section 22.18: This section would be
substantially revised to provide
expedited resolution procedures, and to
clarify the process and effect of formal
settlements. Paragraph (a) would
provide a quick resolution process.
whereby a respondent can bring the case
to a close at any time simply by paying
the amount proposed in the complaint.
Any respondent wishing to resolve an
action without filing an answer need
only pay the proposed penalty within
30 days of receipt of the complaint In
cases where an answer has been filed,
the respondent may resolve the action
by paying the penalty proposed in the
complaint. This will provide
respondents the option of resolving
minor and uncontested violations
without engaging an attorney, much in
the manner of a parking ticket. EPA
anticipates that this quick resolution
procedure may be of particular interest
to small businesses, and recognizing
that small businesses may need
additional time to raise cash to pay a
penalty, the provision would allow
respondents 60 days from receipt of the
complaint to pay the penalty without
having to file an answer. In order to
exercise this option. a respondent
would need to file a written statement
within 30 days of receiving the
complaint wherein respondent promises
to pay the penalty in full within 60 days
from receipt of the complaint.
The commenter rights provisions of
section 309(g) and 311(bl(6) of the Clean
Water Act, and section 1423(c) of the
Safe Drinking Water Act do not permit
resolution of a case until the public has
had opportunity to comment on the
complaint. Commenters could provide
information indicating that the
violations are more serious than
indicated in the administrative
complaint In order to give meaning to
the public comment requirements. and
to allow EPA the opportunity to act
upon any such comments before
resolution of a case, a respondent would
not he permitted to take advantage of
the quick resolution provision in a
commenter-eligible action until ten days
after the period for public comment has
closed,
Paragraph (b) would clarify the
existing settlement process, and is
divided into three paragraphs The first
paragraph (b)(i), concerning discussions
of settlement, incorporates existing
provisions with minor editorial changes,
the most significant of which corrects a
citation to § 22.16 which should refer to
§ 22.15 Paragraph (b)(2) would specify
that consent agreements be in writing,
and that they include all terms and
conditions of settlement The content
requirements of a consent agreement are
also clanfied to include compliance
order or corrective action requirements,
and an express waiver of the
respondent’s nght to a hearing and
appeal of the consent order. This
clarification is important, so that
respondents enter into settlement
agreements with a full understanding
that an agreement to settle involves
waiving rights to a hearing and rights of
appeal Paragraph (b)(z) also establishes
additional content requirements for
consent agreements in cases where the
complainant propqses to simultaneously
commence and conclude a case through
filing of a consent agreement and
consent order pursuant to § 22.13(b), as
a result of successful settlement through
negotiations conducted before a
complaint is issued. These additional
content requirements should assure that
the public record clearly identifies the
causes of action upon which such cases
are based Paragraph (b)(3) would be
revised to expressly provide that an
administrative action is settled only
when the Regional Judicial Officer or
Regional Administrator, or, in cases
commenced at EPA Headquarters, the
Environmental Appeals Board, approves
a consent agreement and issues a
consent order This provision is added
to eliminate any uncertainty as to who
has authority to conclude a proceeding
Paragraph (c) would provide that the
effect of settlements and full payment of
proposed penalties is limited to those
facts and violations specifically alleged
in the complaint, and reserves the
Agency’s right to pursue injuncttve
relief or criminal sanctions These
provisions merely make explicit the
existing law of res udicata and claim
preclusion, and reflect the Agency’s
routine practice in settlement of cases.
The statutes authorizing administrative
proceedings simultaneously define the
limits of the Agency’s jurisdiction in
those proceedings to the assessment of
penalties, the issuance of corrective
action or compliance orders, or the
revocation, termination or suspension of
permits None of the statutes
administered by EPA grant to an
administrative tribunal the authority to
assess criminal sanctions or compel
injunctive relief Because the statutes
authorizing administrative proceedings
expressly limit the Agency’s authority
in those proceedings, the settlement of
a proceeding commenced under part 22
cannot limit the Agency’s right to
pursue relief that is beyond the scope of
part 22 See generally Restatement
(Second) of Judgments §83 comment g
(1982) Accordingly, adding this
provision to the CROP does not
significantly alter respondents’ rights
Paragraph (d) would recognize use of
alternative dispute resolution
proceedings. The Agency encourages
use of alternative dispute resolution in
appropriate circumstances, both as a fair
means of resolving enforcement actions
and as a method of reducing transaction
Costs for all parties. The designation of
a neutral (who would not be the
Presiding Officer) would not divest the
Presiding Officer of overall
responsibility for the case The
Presiding Officer would retain during
dispute resolution proceedings all of the
powers and duties assigned under
§ 22.04(c), including the authonly to
bring the case to hearing if
circumstances so warrant. The Agency
has considered including language
specifying the impact of dispute
resolution proceedings on deadlines,
but instead proposes to leave this to the
discretion of the Presiding Officer. As
needed, the parties may request
temporary stays of proceedings and
extensions of deadlines
Other requirements of the CROP (e.g.
the consent agreement and consent
order provisions of § 22.18(b), the ex
parte prohibitions of § 22 08, the public
comment provisions of § 22.38) also
would continue to apply,
notwithstanding any dispute resolution
process.
18. Prehearing Information Exchange,
Prehearing Conference: Other Discovery
Section 22 19 EPA proposes to
substantially restructure and revise this
section for ease of use and to make
information exchange more timely and
efficient Paragraphs a ) and (b) would
be reversed in order from the existing
CROP, reflecting the fact that
information exchange is more common
than, and usually precedes. a prehearing
con ference The Agency proposes to
expand the scope of the standard
prehearing information exchange in
order to expedite resolution of cases
The requirements for prehearing
exchange would now appear in
paragraph (a) In addition to the
information required to be exchanged
under § 22 19(b) of the existing CROP,
EPA proposes that each party should be
required to exchange all information it
considers relevant to the assessment of
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a penalty This provision would apply
whether or not the complainant
identifies a specific penalty in the
complaint, in addition, for penalty cases
where the complainant has not specified
a penalty in the complaint, the proposed
rule would require that the complainant
shall specify a proposed penalty and
state the basis for that proposed penalty.
EPA requests comment on whether it is
necessary for cortiplainant to specify a
proposed penalty in preheanng
exchange. As noted above, EPA has
proposed to allow notice pleading under
§ 22.14(a)(4)(ii) in order to allow EPA to
issue complaints even where it is unable
to obtain information from the violator
which is necessary to confidently
determine the appropriate penalty
Although EPA anticipates that
respondents will provide such
information during the course of
settlement discussions, it is possible
that in some cases the necessary
information will not be available until
respondent submits its prehearing
exchange, or even later. If the
complainant is in no better position to
propose a penalty at prehearing
exchange than it was at the time it filed
the complaint, there is little value to
such a requirement EPA requests
comment on the utility of this
requirement, and on the ments of
allowing complainant to postpone for an
additional 30 days, or indefinitely, the
makin of a specific penalty demand.
EPA s proposal would change the
rules regarding the exchange of witness
lists and documents in order to facilitate
supplementing and amending
prehearing exchange pnor to heanng in
so doing, the proposed rule would make
more clear the distinction between the
filing of preheanng exchange and the
admission of information into evidence.
In order 10 prevent undue burden and
delay caused by last minute
supplements or amendments of the
prehearing information exchange, the
Agency considered proposing
restrictions on amendments to
prehearing exchange within 30 days of
the heanng date The Agency instead
proposes that all bathers to amending
prehearing exchange should be dropped
in the interest of full and complete
exchange of information between the
parties (see § 22 1 9( 0), and proposes
under § 22.22(a) to tighten the standards
for admitting into evidence information
that was not timely exchanged.
The Agency requests comment on the
merits of requiring hy rule that .he
parties simultaneously perform their
prehearing information exchange 90 or
120 days after the filing of the answer
Making preheanng exchange automatic,
rather than dependent on assignment of
an AL) and on the A U’s issuance of an
prehearing exchange order, could
expedite administrative practice and
move cases to a more rapid resolution
Although an early deadline could
prompt the parties to focus intently on
settlertient at the earliest stages of a
proceeding, it could also lead to wasted
resources if parties were compelled to
submit voluminous prehearing
exchanges despite imminent
settlements
The Agency has considered, but is not
proposing, amendments concerning the
timing of prehearing exchange The
Agency has considered the merits of
requiring that complainant file its
prehearing exchange before respondent,
relative to the merits of requiring that
prehearing exchange be made
simultaneously by both parties.
Allowing respondent to submit its
prehearing exchange several weeks after
receiving complaint’s preheanng
exchange might allow respondent to
focus its prehearing exchange more
narrowly on what it perceives to be the
weakest points of the complainant’s
case, thereby conserving respondent’s
resources and clarifying the key issues
in dispute In contrast, the traditional,
simultaneous preheanng exchange gives
both parties equal incentive to settle
before incurring the expense and effort
of prepanng the exchange. Staggeruig
the prehearing exchange creates a
disparate incentive, such that the party
designated to make the later exchange
may adopt a “wait-and-see” attitude.
preferring te review the papers of the
party designated to submit first before
accepting a settlement offer it knows to
be in its best interest or before even
engaging in serious settlement
discussions. In this manner, sequential
prehearing exchange can delay or even
impede settlement, and causes the lead
party to incur unnecessary expenditures
of resources. EPA believes that the
disadvantages of sequential prebearing
exchange outweigh the anticipated
benefits in the great majority of cases,
The disadvantages of a sequential
prehearing exchange do not, however,
compel the conclusion that preheanng
exchange must necessarily be
simultaneous in every case. There may
be instances where the circumstances
suggest that a case might be more
expeditiously resolved if prehearing
exchange were structured in some other
manner Accordingly, the Agency does
not propose to make either
simultaneous or sequential prehearing
exchange the mandatory and exclusive
option, but instead would continue to
allow the Presiding Officer some
discretion regarding the timing of the
prehearing exchange required under this
rule
Paragraph (b) would describe the
purpose of any prehearing conference
which may be held, and is substantially
similar to paragraph (a) of the existing
CROP The revisions would no longer
compel the Presiding Officer to require
the parties to “appear at a conference
before him,” but instead would make
the nature of the conference more
flexible.
in paragraph (c), the phrase “upon
motion or sua sponte” would be deleted
as surplusage, and as potentially
confusing. In paragraph (d), additional
surplus language would be deleted. No
substantive changes are intended.
Paragraph (e) from the existing CROP
would be deleted as surplusage, as
§ 22 04(c) (5), (8) and (10) give the
Presiding Officer ample authority in
these matters.
Under the proposed revisions, as well
as the existing CROP, § 22.19 is
designed to streamline exchanges of
information by the parties and to
discourage dilatory tactics and
unnecessary and time-consuming
motion practice In contrast to the
Federal Rules of Civil Procedure, a
formal prehearing exchange of
information is the primary vehicle of
information exchange under the CROP.
This prehearing exchange may be
supplemented in certain cases by
additional discovery pursuant to
paragraph (e). hi order to expedite the
administrative hearings process. this
other discovery is limited in comparison
to the extensive and time-consuming
discovery typical in the Federal courts.
The proposed revisions to paragraph
(e) would revise the process for seeking
“other discovery”. The proposed rule
would require that the party seeking
discovery must file a motion which
“shall specify the method of discovery
sought. provide the proposed discovery
instruments and describe in detail the
nature of the information and/or
documents sought (and, where relevant,
the proposed time and place where
discovery would be conducted).” By
“proposed discovery instruments,” the
Agency refers to the specific documents
which would effectuate discovery if the
Presiding Officer were to order the
requested discovery (e.g., notices of
deposition, depositions upon written
questions. written interrogatones,
requests for production of documents
and things and entry upon land for
inspection and other purposes. requests
for admission).
The proposed revisions would also
refine the substantive standards for
issuance of a discovery order. First,
discovery motions would only be
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authorized after completion of the
prehearing information exchange
mandated under paragraph (a), so that
“other discovery” supplements, rather
than supplants, prehearing exchange.
Second, the prohibition against
discovery which would unreasonably
delay the proceeding would be
expanded to prohibit discovery which
would unreasonably burden the other
party. The Agency believes that
unnecessarily burdensome discovery is
inappropriate even if such discovery
would not delay a proceeding. Third,
the proposed rule would clarify the
existing requirement that discovery
seeks “information Ithati has significant
probative value”, by the addition of the
clause “on a disputed issue of material
fact relevant to liability or the relief
sought.” This revision is intended to
clarify, rather than change, the existing
requirement See, eg., Chautauqua
Hardware Corp.. II EPCRA-90—0223,
Order on Interlocutory Review slip op at
12 (June 24, 1991) (“The phrase
“probative value” denotes the tendency
of a piece of information to prove a fact
that is of consequence in the case.”)
The Agency proposes to clarify the
requirement in the existing rule that
prohibits discovery where “Itihe
information to be obtained is not
otherwise obtainable”. The phrase “not
otherwise obtainable” has been the
source of much litigation, and the
Agency proposes to substitute instead a
requirement that discovery is
permissible so long as it “IsJeeks
information that is most reasonably
obtained from the non-moving party,
and which the non-movmg party has
refused to provide voluntarily”. This
substitution should not substantively
change the discovery standard, but
instead make explicit the two most
reasonable interpretations of “not
otherwise obtainable”, One reasonable
interpretation of the “not otherwise
obtainable” requirement is that parties
should not resort to discovery until
more collegial methods of obtaining
information have been exhausted. The
proposed change would effectively
require a party to request voluntary
disclosure of the information sought
before seeking a discovery order.
Another reasonable interpretation of
“not otherwise obtainable” is that a
party should not be burdened by
discovery seeking information which is
readily obtained through other sources
(e g , texts available in libraries or from
the publishers, reports or materials
available from other government
agencies) If the rule did not encompass
this interpretation of “not otherwise
obtainable” it would unreasonably
burden litigants by permitting discovery
of all information that could be obtained
through a party, or by completely
prohibiting discovery of information
that could be obtained from third
parties. Instead, EPA proposes to limit
discovery to “information that is most
reasonably obtained from the non-
moving party” Although this
requirement would not eliminate
litigation, it provides a more meaningful
context than “not otherwise obtainable”
for determining whether other discovery
should be allowed.
Paragraph (e)(2) of the proposed
revision would expressly prohibit
discovery of a party’s settlement
positions and information regarding
their development, specifically
including penalty calculations for
purposes of settlement based on Agency
settlement policies. This would make
explicit a limitation that already exists
under the current rule, as
§22.19(f)(1)(iii) limits discovery to
information that has “significant
probative value”, and existing § 22.22
prevents the introduction of evidence
which would be inadmissible under
Federal Rule of Evidence 408 Penalty
proposals developed for settlement are
offers of compromise which normally
would be inadmissible under Federal
Rule of Evidence 408 because they
generally lack significant probative
value, and in addition, because their
admission would discourage settlement.
In its administrative enforcement
programs under the CWA and SDWA,
the Agency utilizes the same settlement
pohcies that it uses in judicial
enforcement proceedings to determine
the penalty amount the Agency would
accept in settlement of a case. This has
caused some confusion for respondents
who are more familiar with the
Agency’s other administrative
enforcement programs, which rely on
penalty pleading policies, rather than
settlement policies The proposed rule
would clarify that penalty calculations
derived from a settlement policy, as
opposed to calculations of proposed
penalties from a penalty pleading
policy, are not subject to discovery. This
change would eliminate the potential
for litigation on matters reserved for
settlement discussions.
The existing CROP provides that the
Presiding Officer may order depositions
upon oral questions only where
additional conditions, over and above
those applicable to discovery in general,
are met Paragraph (e)(3) of the revised
CROP would maintain this higher
standard, and clarify that these
requirements are in addition to those of
paragraph (e)(1)
Additional conditions also apply to
the issuance of a subpoena relative to
other discovery, specifically, “an
additional showing of the grounds and
necessity therefor “ The standards for
issuing subpoenas do not appear in
§ 22.19 of the existing CROP, but
instead, are repeated in six separate
Supplemental rules Paragraph (e)(4) of
the proposed CROP consolidates this
material, allowing elimination of several
supplemental rules This change does
not expand or limit the authority of the
Presiding Officer, nor does it authorize
issuance of subpoenas except where
authorized by the Act giving rise to the
cause of action.
Paragraph (e)(5) further clarifies that
Freedom of Information Act (“FOIA”)
requests, requests for admissions or
stipulations, inspections, statutorily
provided information collection
requests, and administrative subpoenas
issued by an authorized Agency official
other than the Presiding Officer do not
constitute discovery and are not
restricted by the CROP This revision
does not change the CROP, because
these activities have never been subject
to a Presiding Officer’s control This
provision should reduce uncertainty,
and consequent litigation, by clarifying
that these independent methods of
information collection are wholly
outside the Presiding Officer’s authority.
Paragraph ( ) would impose on each
party a duty to supplement or correct
pnor exchanges of information when
the party learns that a prior exchange is
deficient As with the subsections
already described above, this subsection
is intended to reinforce the practice of
full and complete voluntary information
exchange in order to expedite
proceedings and avoid unnecessary and
costly motion practice This subsection
addresses situations where a party
learns that a prior response is incorrect,
inaccurate or outdated. It is not
intended to impose a duty on any party
to continually check the accuracy of
prior responses, but does prohibit
knowing concealment by a party. This
provision would eliminate any
procedural barriers to amending
prehearing exchange, however, EPA also
proposes at § 22.22(a) that information
that is not exchanged in a timely
manner shall not be admitted into
evidence Moreover, failure to comply
with a preheanng exchange order would
still constitute grounds for issuance of a
default order, notwithstanding these
changes.
Paragraph (g] clarifies that a failure of
a party to provide information within its
control pursuant to an order of the
Presiding Officer may lead to an
inference that the information sought
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would be adverse to the non-exchanging
party, to exclusion of the information
from evidence, or to issuance of a
default order. In the existing CROP, a
version of this requirement applied to
information provided through other
discovery, but its applicability to
information provided through
prehearing exchange was unclear. The
proposed rule expressly applies this
requirement to all information
exchanges, and expressly authorizes the
additional sanction that information
might be excluded from evidence.
19. Accelerated Decision; Decision to
Dismiss
Section 22.20. Several editorial
changes are made to this section. No
substantive change is intended
20. Assignment of Presiding Officer;
Scheduling the Hearing
Section 22.21: Paragraph (a) would be
revised to make it clear that the Chief
Administrative Law Judge presides from
the time an answer is filed until he or
she assigns another AU. This would
assure that there is a Presiding Officer
at every stage of a proceeding.
21. Evidence
Section 22.22(a). EPA proposes
splitting this subsection mto two
paragraphs. Paragraph (a)(l) would
addresses the admission of evidence
into the record. It restates the existing
standard, with only a minor editorial
revision, and adds a new standard for
exclusion of evidence which is not
provided to opposing parties in a timely
manner. It pr(’”des that the Presiding
Officer shall not admit into evidence
any document, exhibit, witness name or
summary of expected testimony that has
not been provided to all parties at least
fifteen days before the hearing date,
unless the non-exchanging party had
good cause for failing to exchange the
required information and provided the
required information to all other parties
as soon as it had control of the
information, or had good cause for not
doing so.
Paragraph (e)(2) would address
treatment of confidential business
information (CBI), in conformance with
the Agency’s general confidentiality
requirements. The 40 CFR part 2.
subpart B provisions regarding
treatment of CE! are cross referenced
and other provisions are added to clarify
how and when CE! maybe used as
evidence in a CROP proceeding. A
significant substantive change would
authorize the Presiding Officer to
consider BI evidence outside the
presence of a party if necessary to
preserve the confidentiality of the
business information. While EPA
expects that the Presiding Officers will
seldom need to exercise this authority,
experience has demonstrated the need
for it In in the Matter of Baker
Performance, TSCA—91—H—03, a
respondent charged with manufacture of
chemical substances not listed in the
TSCA inventory of existing chemical
substances argued that the chemicals in
question were identical to chemicals
already listed on the confidential TSCA
inventory by competitors. This posed a
dilemma for EPA, forcing EPA to choose
between revealing to the respondent its
competitors’ trade secrets in order to
prove the violation, or else foregoing
full enforcement, EPA chose in that case
to accept settlement on relatively
unfavorable terms rather than reveal the
CBI. EPA believes that allowing the
independent Administrative Law Judges
the discretion to review confidential
evidence outside the presence of a party
in similar cases would strike an
appropriate balance between the right of
confrontation and the statutory
mandates to protect confidential
business information. Other changes
have been made for clarity.
Section 22.22(c). For clarity, EPA
proposes that the term “written
testimony” be substituted for “verified
statements”. As they are described in
the existing paragraph (c), verified
statements are in fact testimony, and
differ from live testimony only to the
extent that they are presented in written
form. No substantive change is
intended.
22. Objections and Offers of Proof
Section 22.23(b): Surplus language
would be omitted in the interest of
clarity. No substantive change is
intended.
23. Burden of Presentation; Burden of
Persuasion; Preponderance of The
Evidence Standard
Section 22,24: EPA proposes to split
this section into two subsections, one
addressing burden of presentation and
burden of persuasion, and another
addressing the preponderance of the
evidence standard. Paragraph (a) would
revise the existing language to adopt a
consistent terminology throughout its
discussion of burden of presentation
and burden of persuasion, and to
encompass compliance orders and
corrective action orders. The proposed
rule would clarify that respondent bears
the burden of persuasion in regard to
affirmative defenses only, although it
bears the burden of presentation
regarding all defenses. These revisions
are consistent with settled law and
would not change respondents’ burdens
relative to the existing CROP. Paragraph
(b) would consist of language from the
existing CROP, without any change. The
title of the section would be amended to
aid readers in locating the
preponderance of the evidence standard
established in paragraph (b).
24. Filing the Transcript
Section 22 25. EPA proposes to add a
provision disallowing motions to
conform the transcript of a proceeding
to the actual testimony unless filed
within 20 days after notice of the
availability of the transcript, in the
interests of finality.
25. Initial Decision
Section 22.27: Paragraph (a) would be
amended to encompass compliance
orders, corrective action orders, and
permit revocations, terminations and
suspensions. It would further require
that a copy of the initial decision be
served on the Assistant Administrator
for Enforcement and Compliance
Assurance. Other changes are editorial,
and are not intended to make
substantive changes in the CROP.
Paragraph (b) would be amended to
require that the Presiding Officer base
the recommended penalty upon
evidence in the record and in
accordance with any penalty criteria set
forth in the Act. A requirement that the
Presiding Officer explain how the
penalty corresponds to any penalty
criteria set forth in the Act would be
substituted for the existing requirement
that the Presiding Officer explain the
reasons for recommending a penalty
other than the penalty proposed in the
complaint. These changes will clarify
the essential neutrality of the Presiding
Officer, but will not result in any
substantive or other procedural changes
to CROP proceedings.
Paragraph (c) would be amended to
clarify the circumstances under which
an initial decision may become a final
order of the Agency. It further clarifies
that the respondent must appeal an
initial decision to the EAB as a
prerequisite to judicial review. This
addition makes clear the point at which
administrative remedies are exhausted
for the purpose of appeal to Federal
courts, The purpose of this latter
amendment is to prevent a party from
seeking judicial review prior to seeking
review from EPA’s administrative
appellate body, the Environmental
Appeals Board. This addition to the
CROP is proposed to conform to the
holding in Darby v. Cjsneros, 509 U.s.
137 (1993). In Darbythe Supreme Court
held that in cases where the
Administrative Procedure Act applies,
an appeal to “superior agency
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9475
authority” is a prerequisite to judicial
review oniy when expressly required by
statute or when an agency rule requires
appeal before review and the
administrative action is made
inoperative pending that review Courts
are not free otherwise to impose an
exhaustion requirement where the
agency action has already become
“final” under section 10(c) of the APA.
5USC 704.
The new language is an express
requirement that the administrative
appeals process be exhausted before a
party may seek judicial review of a final
agency action. Section 22 27(c) makes it
clear that the initial decision of the
Presiding Officer would not be operative
pending review by the Environmental
Appeals Board. While this holding in
Derby applies to cases governed by
section 704 of the APA, exhaustion of
administrative remedies is also required
in cases where APA section 10(c) is not
applicable EPA’s position with regard
to exhaustion of administrative
remedies iii CROP cases is consistent
with its position on exhaustion of
administrative remedies generally. See,
40 CFR 66,81 and Bethlehem Steel Corp
v EPA, 669 F.2d 903 (1982) interpreting
40 CFR 66.81. These changes do not
alter respondents’ rights and do not
create any right of appeal in § 22 27.
Appeal is only permitted pursuant to
the provisions of § 22 30
26 Motion to Reopen a Hearing
Section 22 28. Paragraph (a) would be
amended to clarify the purposes for
reopening a hearing. No substantive
change is intended. EPA would amend
paragraph (b) to expand from 10 to 15
days the time allotted for responding to
a motion to reopen a hearing, for
consistency with changes to § 22 16
Other changes are made for clarity
27. Appeal From or Review of
Interlocutory Orders or Rulings
Section 22 29 EPA proposes that
paragraphs (a), (b) and (c) be revised to
clarify the nature of interlocutory
appeals, and to allow ten days from
service, rather than six days from notice,
to request interlocutory review The
change in the filing deadline will give
parties additional time, and it will
measure that time from a date easily
ascertained by all No other substantive
change is intended Paragraph (d) would
be deleted as surplusage, as the
Presiding Officer’s authority to stay a
proceeding is ntherent in § 22 04(c) and
the limitations of § 22 29(d) are
Unnecessary
28 Appeal From or Review of Initial
Decision
Section 22 30 The procedure for
filing appeals would be clanfied,
including, but not limited to, provisions
addressing set-vice and filing, and
describing the contents of any appeal
brief Under the existing CROP, a party
which is not fully satisfied by an initial
decision, but who would be willing to
let the decision stand as is, may feel
obliged to file an appeal merely to
assure that its own issues are preserved
in the event that the other party appeals
the initial decision on other grounds
The proposal includes a new provision
whereby a party who initially declined
to appeal, but who receives a notice of
appeal from another party, is granted an
additional 20 days to raise other issues
on appeal. This change would eliminate
the need for protective filings by parties
who are largely content with an initial
decision. Other substantive changes
include extending the time to file an
appeal from 20 to 30 days, and a
provision expressly limiting the scope
of appeals to issues raised during the
course of the proceeding or by the initial
decision A new paragraph (e) specifies
that the general requirements for
motions at § 22 16 apply to motions
made in appeals to the EAB. A new
paragraph (1) would consist of language
presently in § 22 3 1(a) concerning
decisions on appeals. Moving this
language into § 22.30 makes the
structure of § 22.30 comparable to
§ 22.29 Paragraph (I) describes the
scope of review by the EAB and its
authority to increase or decrease a
penalty, or to modify any compliance
order, corrective action order, or any
permit revocation, termination and
suspension. The proposed revision
would allow the EAB to increase the
amount of a penalty assessed in a
default order, but would not allow the
EAB to increase the default penalty to
an amount greater than that proposed in
the complaint or in a motion for default,
whichever is less. This change would
avoid an unintended implication of the
present rule, which could be interpreted
as precluding the EAB from reviewing
the amount of a penalty in a default
order which assessed less than the
penalty complainant sought
29 Final Order
Section 22.31 Section 22 31 of the
existing CROP applies to final orders on
appeal only, provisions regarding other
types of final orders are scattered
throughout the CROP. For clarity and
consistency, requirements and
provisions applicable to all final orders
would be consolidated in revised
§ 22 31. Those provisions now in § 22.31
which apply only to final orders on
appeal would be moved to § 22 30, as
noted above Paragraph (a) would make
clear that a final order constitutes final
Agency action It would provide that the
final order resolves respondent’s
liability for a civil penalty, compliance
or corrective action order, or the status
of a permit or authority to operate, only
for the violations and facts alleged in
the complaint, and that it shall not
affect the government’s right to
injunctive relief or criminal sanctions. It
explicitly states that a final order will
not affect a respondent’s obligation to
comply with all applicable provisions of
the Act and regulations promulgated
thereunder. These provisions do not
alter respondents’ rights, but merely
make explicit the existing law of res
judicata and claim preclusion. The
Agency’s routine practice is to make
provisions such as these standard
elements of settlement agreements
Including these provisions in the CROP
would provide a clear limit to the scope
of final orders, regardless of whether the
final orders are consent orders, final
decisions on appeal, or unappealed
initial decisions
A new paragraph (b) would clarify
that final orders are effective upon
issuance, except that unappealed initial
decisions which become final orders
pursuant to § 22.27(c) become effective
at the same time they become final
orders. i.e , 45 days after service of the
initial decision This clause pertains to
the effective date of the order itself; the
final order may establish compliance
schedules, schedules for payment of
penalties, dates of termination of
permits, etc , notwithstanding this
clause. Paragraphs (c) and (d) establish
penalty payment schedules and
effective dates for other relief,
respectively, which shall apply unless
the final order specifies otherwise. The
existing rule requires payment of the
penalty within 60 days after the order
was received. This conflicts with the
Federal Claims Collection Standards,
which require payment within 30 days
after the date the order was issued,
unless EPA decides an extension is
appropriate. See 4 CFR 102 13(g). The
proposed rule therefore requires
payment within 30 days after the
effective date of the final order
Paragraph (c) also would require
payment of penalties directly to U S
Treasury lockboxes, rather than to the
Hearing Clerks, and would make
applicable to all proceedings a provision
currently in § 22 39(d) regarding
assessment of interest on overdue
penalties This Subsection would
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specify that the collection of interest on
overdue payments shall be in
accordance with the Debt Collection
Act, 31 U.s C. 3717, which is applicable
whether or not it is referenced in part
22. The Agency requests comment on
whether the CROP should address
payment of penalties by electronic
transfer of funds, and if so, what
procedures wop ld be appropriate.
A new paragraph (e) would make
explicit that although a respondent may
choose to conclude an administrative
proceeding hy settlement or by allowing
an initial decision to become final
without appeal to the Environmental
Appeals Board, each of these options
falls short of exhausting the
opportunities available within the CROP
for administrative review. This revision
would not substantively change the
requirements of exhaustion of remedies,
nor would it alter respondents’ rights.
This subsection would simply assure
that respondents have notice that appeal
of the final order to the Federal courts
is not available where a respondent
settles a case pursuant to § 22.18 or fails
to exercise its right to appeal an initial
decision to the Environmental Appeals
Board pursuant to § 22 30.
Paragraph (I) would provide that a
final order of the Environmental
Appeals Board issued to a department,
agency, or instrumentality of the United
States pursuant to § 22.30 shall become
effective (and “final” as that term is
used in 42 U.S.C. 6g61(b112)) thirty days
after its service upon the parties, in
order that the head of the affected
department, agency, or instrumentality
may request a conference with the
Administrator If the department,
agency, or instrumentality requests a
conference with the Administrator, then
the Administrator’s ensuing decision
would become the final order.
Essentially the same provision appeared
in § 22 37(g), the Solid Waste Disposal
Act supplemental rule, It is moved into
§ 22.31 in order that the same procedure
also would be applicable to penalty
actions brought against federal facihties
under other statutes such as the Safe
Drinking Water Act (42 U.S C. 300j-6)
and the Clean Air Act (42 U.S.C.
7413(d), 75241c) and 7545(d)(1)). in
making the language of § 22.37(g) apply
to proceedings commenced under other
statutes, reference to the Federal Facility
Compliance Act would be deleted. The
Agency still intends that a final order
issued in a case brought under the Solid
Waste Disposal Act shall constitute a
final order for purposes of the Federal
Facility Compliance Act This
opportunity to confer with the
Administrator is available only after the
Environmental Appeals Board has
issued a final order on appeal, and only
if requested in writing within 30 days.
A motion for reconsideration by the
Environmental Appeals Board is not
necessary, however, such a motion does
not toll the thirty-day limit unless
specifically so ordered by the
Environmental Appeals Board.
30. Supplemental Rules of Practice
Applicable to Proceedings Authorized
Under Specific Statutes
Section 22.33 The provisions
discussing subpoenas have been deleted
from this supplemental rule, as well as
from § 22.34, 22.37, 22.39, 22.40, and
22.43, allowrng the elimination of this
and several other supplemental rules.
The procedures for subpoenas are now
consolidated in § 22 19, as discussed
above The Presiding Officer’s authority
to issue a subpoena remains dependent
on the statute giving rise to the cause of
action. Owing to the fact that the
subpoena provisions were the only
substantive elements of this
supplemental rule, the entire
supplemental rule applying to TSCA
proceedings would be deleted.
Section 22.34:This section would be
amended to include, in addition to
proceedings for civil penalty assessment
under Title II of the CA.A, proceedings
governing the assessment of a civil
penalty under section 113(d) of the
CAA. The letter proceedings are
presently covered by § 22.43, which
mostly mirrors § 22 ,34. The one
substantive difference, the § 22.43(1 4(2)
provision allowing 30 days for filing an
answer, is no longer necessary as a
consequence of proposed changes to
§ 22.15. Paragraph (a) of this
supplemental rule and each of the other
supplemental rules also would be
amended to eliminate the implication
that the supplemental rules are not part
of the Consolidated Rules of Practice.
The term “final order” would be
substituted for the phrase
“administrative penalty order” in
paragraph (14, for consistency and to
encompass field citations as well as
administrative penalty orders issued
pursuant to section 113(d)(1) of the
CAA.
A new paragraph (c) would apply to
default orders for failure to answer a
field citation. Section 59 5(d) of the
Field Citation Rule provides that when
a respondent fails to file a timely answer
to a field citation (and fails to offer to
pay the penalty under the quick
resolution procedure at §22 18(a)(2)),
the Presiding Officer shall issue a
default order assessing the penalty
proposed in the complaint This
provision initially was proposed in the
May 3, 1994, Federal Register (59 FR
22776), and EPA does not seek
additional comment on it at this time.
Section 22 35 In the supplemental
rules governing proceedings under the
Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), EPA proposes
to amend the venue provision of
paragraph fb I to address the situation
where a respondent’s place of residence
is outside the U.S. FIFRA regulates the
domestic conduct of foreign-based
pesticide registrants, manufacturers,
producers, distributors, applicators, etc.
Accordingly, fora person who claims a
place of residence outside the U.S., EPA
interprets the phrase “place of
residence”, as used in 7 U.S.C.
136l(a)(3), to mean either the person’s
pnmary place of business within the
U.S., or the primary place of business of
the person’s U.S. agent. Paragraph (c)
would be deleted for consistency with
changes to § 22.27(b).
Section 22.36: The supplemental rule
regarding the Marine Protection,
Research and Sanctuaries Act would be
deleted as surplusage in light of changes
made elsewhere in the CROP to
accommodate permit revocation,
termination and suspension
proceedings, particularly in § 22.13.
Sect ion 22.37 The scope of this
supplemental rule would be expanded
to include section 3005(d) of the SWDA,
which authorizes termination of
permits, and section 9006, which
authorizes the issuance of
administrative compliance orders to
address violations of Underground
Storage Tank (“UST”) requirements.
The notice requirements presently in
paragraphs (b), (c) and (d) would be
deleted as surplusage. On December 2,
1980 (45 FR 79808), EPA suspended
these subsections until further notice, in
response to amendments to the SWDA
wbsch eliminated the pre-complaint
notice requirements from the Act.
Today, EPA proposes to delete the
requirements entirely. The proposed
revision of § 22.15, allowing 30 days for
filing an answer, would make paragraph
(e) surplusage as well. A new paragraph
( 10 would specify that a complaint may
contain a compliance order issued
under section 300Bja) or section 9006(a),
or a corrective action order issued under
section 3008(h) or section 9003(h)(4) of
the SWDA. This provision is included
to make clear that in these
circumstances, the complaint is an
“order” as that term is used in the
aforementioned sections of the SWDA.
Any such order would automatically
become a final order unless, no later
than thirty (30) days after the order is
served, the respondent requests a
hearing pursuant to § 22.15. The
provision concerning the Federal
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9477
Facilities Compliance Act contained in
paragraph (g) would be moved to
§22 31(0, in order that it may be
applicable to actions commenced
pursuant to other statutes as well as the
5WDA
Section 22 38. In paragraph (a), the
scope of this supplemental rule would
be expanded to include civil penalties
authorized by section 311(b)(6) of the
Clean Water Act Paragraph (b) would
be amended to provide a more explicit
process for implementing the statutory
requirement regarding state
consultation. The public notice and
comment provisions would be removed
from paragraphs (c), (d) and ( I) and
placed in a separate supplemental rule,
§ 22.45, which would also apply to
proceedings under section 300h—2(c) of
the Safe Drinking Water Act. The
proposed text of § 22.45 would provide
much more detailed and comprehensive
process than is currently provided
under § 22.38(c), (dl and (0. The
applicability of § 22.45 would be noted
in § 22.38(a) in order to provide
additional notice that both
supplemental rules apply The
provision presently in paragraph (e)
would be renumbered as (c), and
expanded to include proceedings under
section 311(b)(6) of the Clean Water Act,
consistent with changes to paragraph
(a) A new paragraph (d3 would require
that in proceedings pursuant to section
311(b)(6) of the Clean Water Act
penalties be paid into the Oil Spill
Liability Trust Fund.
Section 22 39 Most of the changes to
this supplemental rule are consistent
with changes to other supplemental
rules already discussed In addition,
language proposed to be added to the
main text of the CROP at § 22 31 would
be deleted from § 22 39(d) (which would
be renumbered as (c)).
Section 22 40 The supplemental rule
regarding the Emergency Planning and
Community Right .To-Know Act would
he deleted in its entirety The subpoena
provisions would be deleted from this
and other supplemental rules as
discussed above. In addition, the
provisions regarding judicial review in
paragraph (c) end collection of penalties
in paragraph (d) can also be deleted as
surplusage. No substantive change is
intended by the deletion of this
supplemental rule
Section 22 41 The only changes to
the supplemental rule regarding the
Asbestos Hazard Emergency Response
Act are consistent with changes to other
supplemental rules already discussed
No substantive change is intended by
these editorial revisions
Section 22 42 Paragraphs (b) through
(e) of the Safe Drinking Water Act
supplemental rule would be deleted as
surplusage No substantive change is
intended by these deletions A new
paragraph (b) would allow respondents
in certain non-APA proceedings the
right to choose that the hearing be
conducted in accordance with section
554 of the APA, as required under
section 1414(g)(3)(8) of the Safe
Drinking Water Act. This provision
would enable respondent to make
subpart I inapplicable, notwithstanding
the Agency’s havmg commenced the
proceeding under subpart I , by
requesting in its answer a hearing on the
record in accordance with 5 U S.C. 554
EPA proposes that a respondent’s failure
to exercise this right in its answer shall
constitute a waiver of that right. This
limitation is necessary in order to avoid
the delays, disruptions, and
duplications of effort which would
result if a case were reassigned from a
Regional Judicial Officer to an A U after
the proceeding was well underway.
Section 22 43 The provisions of the
existing § 22 43 would be incorporated
into § 22.34, as discussed above. A new
supplemental rule applicable to
proceedings against a federal fad lay
pursuant to the Safe Drinking Water Act
Amendments of 1996, Pub. L No. 104-.
182 would be codified as § 22 43.
Paragraph (b) describes the effective
date of any penalty order issued under
section 1447(b) of the Act Paragraph (c)
describes the public notice requirements
for issuance of a final penalty order.
Section 22 44 This section presents a
new supplemental rule for termination
of NPDES permits issued under the
Clean Water Act and for permits issued
under Subtitle C of the Resource
Conservation and Recovery Act. This
new supplemental rule has already been
proposed (60 FR 65,268), and EPA does
not seek additional comment at this
time
Sections 22 45 The Agency proposes
to add a new supplemental rule
governing public notice and comment in
proceedings under section 309(g) of the
Clean Water Act and section atJOh—2(c)
of the Safe Drinking Water Act The
detailed procedures proposed for public
notice and comment are sufficiently
extensive that the Agency proposes to
codify them once, in a single
supplemental rule applicable to these
two types of proceedings, rather than
repeating the same requirements in two
separate rules This supplemental rule
would complement § 22.38, such that
both would apply to proceedings under
section 309(g) of the Clean Water Act.
These public commenter rights are
separate from, and in addition to, the
intervention and amicus curie
provisions at § 22.11
The substance of the proposed § 22.45
replaces and expands on the procedures
presently in §22 38 (c), (d) and ( fl, in
order to clarify commenter provisions
and to fully satisfy the statutory
requirements Section 22.45(b) would
require the complainant to provide
public notice and an opportunity to
comment on a complaint or on a
proposed consent agreement where the
parties agree to settle without the filing
of a complaint pursuant to § 22 13(b)
This provision would require the
Agency to accommodate commenters in
situations where the agency proposes to
settle an action without the filing of a
complaint. Paragraph (b)(2) sets out the
type and content of the required public
notice, so that the notice will provide
any potential commenter with sufficient
information to make an initial
determination as to whether or not he
wishes to comment
Paragraph (c) expands procedures for
participation by a commenter. These
procedures provide a meaningful
opportunity for commenters to present
evidence, as required by statute, and at
the same time limit the opportunity
commenters might have to delay
issuance of a final order through
dilatory or frivolous submissions.
Paragraph (c)(1) sets out the
requirements for commenter
participation in a proceeding. It
describes both the obligations of the
commanter and those of the Presiding
Officer in this context It establishes
express limits on the scope of
commenter participation, and gives the
Presiding Officer broad discretion to
further control the extent of commenter
participation. Paragraph (c)(2) sets out
limitations on commenter cross-
examination of witnesses, and prohibits
the commenter from either participating
in, or being subject to, any discovery or
prebearing information exchange
Paragraph (c)(3) assures that cases are
not settled before the end of a required
comment period
Paragraph (c)(4) describes the
procedures governing a commenter’s
petition to set aside a consent order
where no hearing on the merits was
held The Agency believes that this
language establishes appropriate hmits
on such requests, while at the same time
meeting the requirements of the
respective statutes and avoiding
inappropriate tainting of the
administrative record Paragraph
(c)(4)ü) requires the complainant to
provide all commenters and the
Regional Administrator with a copy of
the proposed consent order The
Presiding Officer and Hearing Clerk do
not receive a copy of the proposed order
at this juncture, in order to protect the
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administrative record and assure that
the Presiding Officer, who may have to
adjudicate the case if settlement efforts
fail, is not privy to the parties’
settlement positions. Paragraph (c)(4)(ii)
requires that, within 30 days of receipt
of the proposed order, the commenter
must provide to the Regional
Administrator and the parties (but not to
the Presiding Officer or Hearing Clerk)
any petition to set aside the consent
order Paragraph (c)(4)(i ii) then permits
the complainant to withdraw the
proposed order within 15 days of
receipt of a petition, in order to consider
the matters raised. If the complainant
does not withdraw the proposed order
within 15 days, the Regional
Administrator shell appoint a Petition
Officer to review the petition and make
a determination as to the issues raised.
A copy of the Regional Administrator’s
order of appointment shall be sent to the
Presiding Officer and the parties These
procedures are designed, once again, to
avoid tainting the Presiding Officer or
administrative record with materials
relevant to settlement negotiations only.
Paragraph (c)(4)(iv) gives the
complainant 30 days in which to lila
with the Petition Officer (not the
Presiding Officer) the complainants
response to the petition. Copies of the
response are provided to the parties and
commenter(s), but not to the Presiding
Officer and Hearing Clerk Paragraph
(c)(4)(v) describes the Petition Officer’s
duties upon receipt of complainant’s
response. Note here that the Petition
Officer’s written findings will be filed
with the Heanng Clerk and Presiding
Officer. Paragraph (c)(4)(vi) describes
the Presiding Officer’s duties where the
Petition Officer rules that a hearing is
required and the petition for hearing is
granted. Paragraph (c)f4)(vii) describes
the Petition Officer’s duties where the
Officer determines that a hearing is not
required. Paragraph (c)(4)(viii3 and (ix)
describe the procedures for issuance of
the consent order, for appeal of such
order in the appropriate U S District
Court, and when the order becomes
final after denial of appellate review.
Sections 22 46 through 22.49W
Reserved.
31 Supplemental Rules for
Administrative Proceedings not
Governed by Section 554 of the
Administrative Procedure Act
Sections 22.50 through 22.53
comprise subpart 1. which presenLs
modifications to the main text of the
CROP to facilitate use of the CROP in
administrative adjudications where a
hearing on the record is not required.
Such adtuthcations are commonly
referred to as “non-APA” proceedings
in reference to the Administrative
Procedure Act, of which sections 554,
556 and 557 apply only to
‘adjudicationlsJ required by statute to
be determined on the record after
opportunity for an agency hearing” 5
U S C. 554(a)(1) A key feature of these
non-APA procedures is that the
Presiding Officer need not be an
Administrative Law Judge, as required
in proceedings subject to APA 554, 556
and 557. Other differences include
greater limitations on discovery and a
prohibition on interlocutory appeals,
however, it is only the absence of an
Administrative Law Judge which puts
the subpart I procedures outside the
requirements of APA 554, 555, and 556.
Owing to the retention of most of
subparts A through C, the subpart I
procedures provide nearly the same
level of procedural protection for
respondent’s interests as would be
available in a hearing fully conforming
to the requirements of subparts A
through G.
The subpart I procedures would retain
the extensive prehearing exchange
mandated in §22.19Ca) (requiring
exchange of witness lists, summaries of
expected testimony, copies of
documents or exhibits, and evidence
relevant to the amount of the penalty)
Although coiths have confirmed that
there is no constitutional due process
right to discovery in administrative
adjudications (see e.g., Silverman v.
CFTC. 549 F.2d 28 (7th Cir. 1977);
NLRB v Valley Mold Co.. 530 F.2d 693
(6th Cir. 1976) cert. den. 429 US 824),
the prehearing exchange under
§ 22.19(a) provides substantial discovery
well in advance of a hearing.
The procedures provided through
subpart I are adequate to assure a fair
hearing, notwithstanding the absence of
an AU, additional prehearing discovery
and interlocutory review. The
differences between the APA and non-
APA provisions of the CROP are
unlikely to affect the outcome of an
administrative enforcement proceeding,
and unlikely to impair the accuracy of
the Agency’s decisionniaking. Providing
an AU for every case, including those
lacking significant legal or factual
dispute, would draw limited resources
away from more complex and more
significant cases. Allowing interlocutory
appeals and additional discovery, such
as inerrogatories, depositions, requests
for documents, would add significant
delay to administrative enforcement and
could cause extraordinary resource
burdens. The absence of these
additional procedural protections in
non-APA proceedings poses only minor
risk of impairing the regulated
community s interest in fair and
accurate adjudications, yet making them
generally available would put
substantial fiscal and administrative
burdens on the government
Accordingly, EPA is not obliged to
provide these additional procedural
protections in non-APA proceedings in
order to satisfy the requirements of the
due process clause. Matthews v.
Eldndge, 424 U S 319, 344—45 (1976);
also see Chemical Waste Management,
Inc v. US EPA,873F.2d 1477 (D.C.
Cir 1989).
Although the Agency has not yet
through rulemaking established formal
procedures for the assessment of civil
penalties through non-APA
proceedings, the Agency has been
conducting such proceedings under the
proposed part 28 procedures and
program-specific guidance. Where it is
not inconsistent with other regulations.
EPA intends that the procedures for
non-APA proceedings proposed herein
should be used in non-APA penalty
proceedings pending promulgation of a
final rule. Accordingly, non-APA
penalty cases filed after the publication
of this proposed rule should follow the
procedures herein. Cases that have
already commenced pursuant to the
proposed part 28 procedures shall
continue to be governed by the
proposed part 28 procedures, however,
complaints withdrawn in accordance
with § 28.lB(a)(1) may be raffled under
the proposed CROP. In addition, a
proceeding commenced under the
proposed part 28 may be converted into
a proceeding under the proposed CROP
provided that no evidentiary hearing
has been held and that all parties and
the Presiding Officer agree to the
change.
Section 22.50: Section 22 50 defines
the scope of subpart 1. Paragraph (a)
indicates that the initial decision to
bring a proceeding pursuant to subpart
I is made by the Agency and requires
that the Agency mdicate such decision
in the complaint. The Agency may in
any case dechne to apply subpart I and
instead give the respondent the greater
process of law afforded by a proceeding
conforming to section 554 of the APA.
Paragraph (a) acknowledges that the
Agency may not apply subpart I where
a statute requires a hearing in
accordance with section 554 of the
Administrative Procedure Act.
Examples where Congress has
authorized EPA to administratively
assess penalties through proceedings
that are not subject to the requirements
of section 554 in certain circumstances
include- CWA sections 309(g)(2)(A) and
311(b)(6)(A) & (B)(i) (33 U S.C
1319(g)12)(A) and 1321(b)(6)(A) & (B)(i));
section 109(a) of the Comprehensive
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9479
Environmental Response, Compensation
and Liability Act ( ZRCLA) (42 U S.C
9609(a)), section 325(b)(1), (c), and (d) of
the Emergency Planning and
Community Right-To-Know Act
(EPCRA) (42 U.S C. 11o45(b)(1), (c), and
(d)). SDWA section 1414(g)(3)(B) (42
U.S C 300g—3(g)(3)(B)); and CAA
section 113(d)(3) (42 U.S.C. 7413(d)(3)),
and issuance of a penalty-only order or
a penalty/compliance order under
SDWA section 1423(c) (42 U.S.C 300h-
2(c)) At this time, EPA does not intend
to alter its present practice of providing
the full APA process in CERCLA and
EPCRA cases, although if circumstances
warrant, the Agency may in the future
exercise its authority to assess GERCLA
and EPCRA penalties through non-APA
proceedings EPA welcomes comment
concerning the types of CERCLA and
EPCRA penalty cases for which non-
APA procedures would be appropnate.
Paragraph (b) describes how the
subpart works in conjunction with the
preceding sections of the CROP, and
also identifies those sections of the
CROP which are inapplicable to a non-
APA proceeding brought under subpart
Section 22.51 The term “Presiding
Officer” would be defined for the
purposes of a proceeding under this
subpart to mean a Regional Judicial
Officer, and provides that the Regional
Judicial Officer shall rule on all
motions, notwithstanding the provisions
of § 22.16(c) which provide that post-
answer motions be ruled on by the
Administrative Law Judge.
Section 22.52: This section defines
the parameters of information exchange
for purposes of non-APA proceedings
The Agency’s goal is to encourage
complete and voluntary information
exchange by the parties and limit
unnecessary motion practice. Parties
would be subject to the prehearing
information exchange authorized in
§22 19(8), but most additional discovery
would be prohibited under this subpart
The proposed § 22.52 would also
require the respondent to provide in its
prehearing exchange information in
regard to any economic benefit it may
have enjoyed as a result of the alleged
non-compliance or a failure to act
Requiring this information up-front will
help to clarify penalty issues early on,
and avoid excessive and time-
Consuming motion practice.
The proposed § 22 52 would prohibit
most additional discovery that would
otherwise be allowed under § 22 19(e).
Although it would prohibit most
discovery, the complainant would be
entitled to discovery of information
Concerning respondent’s economic
benefit of noncompliance and of
financial records probative of
respondent’s ability to pay a penalty.
Under several statutes, this information
must be made part of the administrative
record supporting a penalty
determination, but it generally is not
available to the Agency except through
discovery of the respondent.
Accordingly, discovery of this
information must be permitted in order
to prevent respondents from avoiding
enforcement by simply withholding
information.
Section 22.53. This section prohibits
interlocutory appeals in proceedings
under this subpart The Agency sees
little value in allowing interlocutory
appeals in these relatively informal
enforcement actions, particularly since
parties to a proceeding under subpart I
retain full appeal rights once an initial
decision is issued. The Agency is
particularly concerned that permitting
interlocutory appeals would slow
resolution of non-APA enforcement
actions considerably.
32. Appendices
Appendix A: The Appendix would be
amended to reflect the current addresses
of EPA Regional Offices and EPA
Headquarters
Appendix B This new appendix
would be added to provide the
addresses of EPA Regional and
Headquarters lockboxes. These are the
addresses to which, generally, the
payments of civil penalties would be
sent. The Agency requests comment on
whether, and if so, how the CROP
should address the electronic transfer of
funds in addition to, or in lieu of,
payment by check.
B Revisions to Part 59
EPA anticipates that its May 3. 1994,
proposed part 59 rule on field citations
(59 FR 22776) will become final while
these proposed revisions to the CROP
are pending. Upon final promulgation of
these revisions to the CROP, subpart B
of part 59 would be superseded and
deleted from the CFR.
ifi. Invitation of Public Comment
EPA invites comments on all aspects
of the revisions proposed to part 22 and
part 59. For the convenience of the
reader only, EPA is publishing in its
entirety part 22 as it would be revised.
EPA is not proposing to readopt those
portions of part 22 which would remain
unchanged This Notice of Proposed
Rulemaking is limited to those changes
from the existing regulations described
in this Notice.
Information on the time period for
submission of comments and directions
for their submission may be found in
the DATES and ADDRESSES sections of
this document.
IV. Administrative Requirements
A. The Regulatory Flexibility Act
Under the Regulatory Flexibility Act,
5 U.S.C 601—612, whenever an agency
is required to publish a general notice
of rulemaking for any proposed or final
rule, it must prepare arid make available
for public comment a regulatory
flexibility analysis that describes the
impact of the rule on small entities, i e.,
small business, small organizations, and
small governmental junsdictions The
analysis is not required, however, where
the Adnumstrator certifies that the rule
will not have a significant economic
impact on a substantial number of small
entities.
This regulation will impose no
significant costs on any small entities,
because it creates no new regulatory
requirements, but instead simplifies
existing procedural rules. The overall
economic impact on small entities is
therefore beheved to be nominal, if any
at all Accordingly, I hereby certify that
this proposed regulation will n t have a
significant impact on a substantial
number of small entities.
B. Executive Order 12866
Under Executive Order 12866, (58 FR
51,735 (October 4, 1993)) the Agency
must determine whether the regulatory
action is “significant” and therefore
subject to 0MB review and the
requirements of the Executive Order.
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 the Executive Order
It has been determined that this rule
is not a “significant regulatory action”
under the terms of Executive Order
12866 and is therefore not subject to
0MB review,
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C. Paperwork Reduction Act
This proposed rule contains no
information collection activities and,
therefore, no information collection
request (ICR) will be submitted to the
Office of Management and Budget
(0MB) for review in compliance with
the Paperwork Reduction Act, 44 U.s.c
3501 etseq. -
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (“IJMRA”), Public
Law 104—4. establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefIt
analysis, for proposed and final rules
with “Federal mandates” that may
result in expenditures to State, local,
and tribal governments, in the aggregate.
or to the pnvate sector, of $100 million
or more in any one year. When a written
statement is needed for an EPA rule,
section 205 of the UMRA generally
requires EPA to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
most cost-effective or least burdensome
alternative that achieves the objectives
of the rule. The provisions of section
205 do not apply when they are
inconsistent with applicable law
Moreover. section 205 allows EPA to
adopt an alternative other than the least
costly, most cost-effective or least
burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, giving them
meaningful and timely input in the
development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising them
on compliance with the regulatory
requirements.
Today’s rule contains no Federal
mandates (under the regulatory
provisions of Title II of the U}dRA) for
State, local, or tribal governments or the
private sector. The rule imposes no
enforceable duties on any of these
governmental entities or the private
sector
List of Subjects
40 CFR Part 22
Environmental protection,
Administrative practice and procedure.
40 CFR Part 59
Environmental protection,
Administrative practice and procedure,
Air pollution control, Labeling,
Penalties, Reporting and recordkeeping
requirements
Dated February 6, 1998
Carol M. Browner,
Administrator
For the reasons set forth in the
preamble. EPA proposes to amend 40
CFR parts 22 and 59 as follows’
1. Part 22 is revised to read as Follows’
PART 22—CONSOLIDATED RULES OF
PRACTICE GOVERNING THE
ADMINISTRATIVE ASSESSMENT OF
CIVIL PENALTiES, ISSUANCE OF
COMPLIANCE OR CORRECTIVE
ACTION ORDERS AND ThE
REVOCATION, TERMINATION OR
SUSPENSION OF PERMITS
Subpart A—General
Sec
22 01 Scope of this part
22 02 Use of number and gender
22 03 Definitions.
22 04 Roles of the Environmental Appeals
Board, Regional Judicial Officer and
Presiding Officer, disqualifIcation.
withdrawal, and reassignment
22 05 Filing, service, and form of pleadings
and documents, business confidentiality
claims
22 06 Filing and service of rulings, orders
and decisions
22 07 Computation and extension of time.
22 08 Ex pane discussion of proceeding.
22 09 Examination of documents filed
Subpart B—Parties and Appearances
22 10 Appearances
22 11 Intervention and axnicus curiae.
22 12 Consolidation and severance
Subpart C—Prehearlng Procedures
22 13 Commencement of a proceeding
22 14 Content and amendment of the
complaint
22.15 Answer to the complaint
22 16 Motions
22.17 Default
22 18 Quick resolution, settlement;
alternative dispute resolution
22 19 Preheanng information exchange,
prehearing conference, other discovery
22 20 Accelerated decLslon, decision to
dismiss
Subpart D—Hoarlng Procedures
22 21 Assignment of Presiding Officer.
scheduling the hearing
22 22 Evidence
22 23 Objections and offers of proof
22 24 Burden of presentation. burden of
persuasion, preponderance of the
evidence standard
22 25 Filing the transcript
22 26 Proposed findings, conclusions, and
order
Subpart E—lnitlal Decision and Motion to
Reopen a Hearing
22 27 Initial Decision
22,28 Motion to reopen a hearing
Subpart F—Appeals and AdminIstrative
Review
22 29 Appeal from or review of
interlocutory orders or rulings
22 30 Appeal from or review of initial
decision
Subpart G—FIriaI Order
22 31 Final order
22 32 Motion to reconsider a final order
Subpart H—Supplemental Rules
22 33 IReservedi
22 34 Supplemental rules governing the
administrative assessment of civil
penalties under the Clean Air Act
22 35 Supplemental rules governing the
administrative assessment of civil
penalties under the Federal Insecticide,
Fungicide, and Rodenticido Act
22 36 lReservedi
22 37 Supplemental rules governing
administrative proceedings under the
Solid Waste Disposal Act.
22 38 Supplemental rules of practice
governing the administrative assessment
of civil penalties under the Clean Water
Act.
22 39 Supplemental rules governing the
administrative assessment of civil
penalties under section 109 of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980, as amended
22 40 (Reservedl
22 41 Supplemental rules governing the
administrative assessment of civil
penalties under Title II of the Toxic
Substance Control Act, enacted as
section 2 of the Asbestos Hazard
Emergency Response Act (AHERA).
22 42 Supplemental rules governing the
administrative assessment of civil
penalties for violations of compliance
orders issued under part B of the Safe
Drinking Water Act.
22 43 Supplemental rules governing the
administrative assessment of civil
penalties against a federal agency under
the Safe Drinking Water Act
22 44 Supplemental rules governing the
termination of permits under section
402(a) of the Clean Water Act or under
section 3005(d) of the Resource
Conservation and Recovery Act
22 45 Supplemental rules governing public
notice and comment in proceedings
under section 309(g) of the Clean Water
Act and section 300h—2(c) of the Safe
Drinking Water Act
22 46—22 49 IReservedi
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9481
Subpart I—Administrative Proceedings Not
Governed by Section 554 of the
Administrative Procedure Act
22 50 Scope of this subpart
22 51 Presiding Officer
22 52 information exchange and discovery
22 53 interlocutory orders or rulings
Appendix A to Part 22—Addresses of EPA
Regional Offices and Headquarters
Appendix B to Part 22—Addresses of
Regional and Headquarters Lockboxes
Authority: 7 U SC 1361; 15 U SC 2610(c).
2615(a) and 2647. 33 U.S C 1319(g),
1321(b)(6) and 1342(a), 33 U S.C 1415(a) and
(I) and 1418.42 U S C 300g—3(g)(3)(B). 300h—
2(c) and 300j—6(a). 42 U.S C. 6912, 6925,
6928, 6945(c)(2), 6961. 6991b and 6991e. 42
U SC 7413(d). 7524(c), 7545(d), 7547(d),
7601 and 7607(a), 42 U S C 9609,42 U SC
11045,42 U S C 14304
Subpart A—General
§ 22.01 Scope of this part.
(a) These Consolidated Rules of
Practice govern all administrative
adjudicatory proceedings for:
(1) The assessment of any
administrative civil penalty conducted
under ection 14(a) of the Federal
Insecticide, Fungicide and Rodenticide
Act as amended (7 U.s C. 1361(a)),
(2) The assessment of any
administrative civil penalty under
sections 113(d), 205(c), 211(d) and
213(d) of the Clean Air Act, as amended
(42 U S C 7413(d), 7524(c). 7545(d) and
7547(d)).
(3) The assessment of any
administrative civil penalty or for the
revocation or suspension of any permit
conducted under section 105(a) and (fl
of the Marine Protection, Research, and
Sanctuaries Act as amended (33 U.S.C.
1415(a) and (I));
(4)(i) The issuance of a compliance
order pursuant to section 3008(a),
section 4005(c)(2), section 6001(b), or
section 9006(a), suspension or
revocation of a permit pursuant to
section 3005(d) or section 3008(a), or
the suspension or revocation of
authority to operate as an interim status
facility pursuant to section 3008(h) of
the Solid Waste Disposal Act (“SWDA”)
(42 U S.C 6925(d) & (e), 6928(a) & (h),
6945(c)(2), 6961(b), and 6991e(a)), or the
assessment of any administrative civil
penalty under sections 3008, 4005(c)(2),
6001(b), and 9006 of the SWDA (42
U.S.C 6928, 6945(c)(2), 6961(b), and
6991e). except as provided in 40 CFR
parts 24 and 124.
(ii) The issuance of corrective action
orders under section 3008(h) of the
SWDA only when such orders are
contained within an administrative
order which
(A) Includes claims under section
3 008(a) of the SWDA, or
(B) Includes a suspension or
revocation of authorization to operate
under section 3005(e) of the SWDA, or
(C) Seeks penalties under section
3008(h)(2) of the SWDA for non-
compliance with a order issued
pursuant to section 3008(h)
(iii) The issuance of corrective action
orders under section 9003(h)(4) of the
SWDA only when such orders are
contained within administrative orders
which include claims under section
9006 of the SWDA.
(5) The assessment of any
administrative civil penalty conducted
under sections 16(a) and 207 of the
Toxic Substances Control Act (15 U.S.C.
2615(a) and 2647)
(6) The assessment of any
administrative civil penalty under
sections 309(g) and 311(b)(6), or the
termination of any permit issued
pursuant to section 402(a) of the Clean
Water Act (33 U.S C. 1319(g). 1321(b)(6)
and 1342(a)).
(7) The assessment of any
administrative civil penalty under
section 109 of the Comprehensive
Environmental Response,
Compensation, and Liability Act of
1980, as amended (42 U.S C. 9609);
(8) The assessment of any
administrative civil penalty under
section 325 of the Emergency Planning
and Community Right-To-Know Act of
1986 (EPCRA) (42 U.s C 11045);
(9) The assessment of any
administrative civil penalty under
sections 1414(g)(3)(B), 1423(c), and
144 7(b) of the Safe Drinking Water Act
as amended (42 U.S.C. 300g—3(g)(3)(B),
300h—2(c), and 300j .-6(b)), or the
issuance of any order requiring both
compliance and the assessment of an
administrative civil penalty under
section 1423(c).
(10) The assessment of any
administrative civil penalty or the
issuance of any order requiring
compliance under Section 5 of the
Mercury-Containing and Rechargeable
Battery Management Act (42 U S C
14304)
(b) The supplemental rules set forth in
subparts H and I of this part establish
special procedures for proceedings
identified in paragraph (a) of this
section where the Act allows or requires
procedures different from the
procedures in subparts A through G of
this part The procedures in any
applicable subpart H or I of this part
supplemental rule supersede any
conflicting provisions of subparts A
through G of this part
(c) Questions arising at any stage of
the proceeding which are not addressed
in these Consolidated Rules of Practice
shall be resolved at the discretion of the
Administrator, Environmental Appeals
Board, Regional Administrator, or
Presiding Officer, as provided for in
these Consolidated Rules of Practice.
§ 22.02 Use of number and gender.
As used in these Consolidated Rules
of Practice, words in the singular also
include the plural and words in the
masculine gender also include the
feminine, and vice versa, as the case
may require
§ 22.03 DefInitions.
(a) The following definitions apply to
these Consolidated Rules of PracticeS
Act means the particular statute
authorizing the proceeding at issue
Administrative Law Judge means an
Administrative Law Judge appointed
under 5 U.S C. 3105 (see also Pub L.
95—251, 92 Stat. 183).
Admrnist rotor means the
Administrator of the U.S.
Environmental Protection Agency or his
delegate.
Agency means the United States
Environmental Protection Agency.
Business confidentiality claim means
a confidentiality claim as defined in 40
CFR 2.201(h)
Clerk of the Board means the Clerk of
the Board, Mail Code 1103B, U.S
Environmental Protection Agency. 401
M St. SW., Washington, DC 20460.
Cornmenter means any person (other
than a party) or representative of such
person who timely:
(1) Submits in writing to the Regional
Hearing Clerk that he is providing or
intends to provide comments on the
proposed assessment of a penalty
pursuant to sections 309(g)(4) and
311(b)(6)(C) of the Clean Water Act or
section 1423(c) of the Safe Drinking
Water Act, whichever applies, and
intends to participate in the action; and
(2) Provides the Regional Hearing
Clerk with a return address.
Complainant means any person
authorized to issue a complaint in
accordance with § 22 13 and 22.14 on
behalf of the Agency to persons alleged
to be in violation of the Act. The
complainant shall not be a member of
the Environmental Appeals Board, the
Regional Judicial Officer or any other
person who will participate or advise in
the decision
Consolidated Rules of Practice means
the regulations in this part
Environmental Appeals Board means
the Board within the Agency descnbed
in § 1 25 of this chapter.
Final Order means
(1) An order issued by the
Environmental Appeals Board or the
Administrator after an appeal of an
initial decision, accelerated decision,
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decision to dismiss, or default order,
disposing of the matter in controversy
between the parties.
(2) An initial decision which becomes
a final order under § 22.27(c), or
(3) A final order or consent order
issued in accordance with § 22 18
Hearing means a hearing on the
record open to the public and
conducted under these Consolidated
Rules of Practice.
Hearing Clerk means the Hearing
Clerk, Mail Code 1900, U.s.
Environmental Protection Agency, 401
M St. SW., Washington, DC 20460
initial Decision means the decision
i ued by the Presiding Officer pursuant
to § 22.17(c), 22.20(b) or 22.27
resolving all outstanding issues in the
proceeding based upon the record of the
proceedings out of which it arises.
Potty means any person that
participates in a hearing as complainant,
respondent, or intervener.
Permit means a permit issued under
section 102 of the Marine Protection,
Research and Sanctuaries Act, section
402(a) of the Clean Water Act, or section
3005(d) of the Resource Conservation
and Recovery Act, or authority to
operate granted pursuant to section
3005(o) of the Resource Conservation
and Recovery Act.
Person includes any individual,
partnership. association, corporation,
and any trustee, assignee, receiver or
legal successor thereof; any organized
group of persons whether incorporated
or not; and any officer, employee, agent,
department, agency or instrumentality
of the Federal Government, of any State
or local unit of government, or of any
foreign government.
Presiding Officer means an individual
who presides in an administrative
adjudication until an initial decision
becomes final or is appealed. The
Presiding Officer shall be an
Administrative Law Judge, except where
§S 22.04(b), 22.16(c) or 22.51 allow a
Regional Judicial Officer to serve as
Presiding Officer
Regional Administrator means, for a
case initiated in an EPA Regional Office,
the Regional Administrator for that
Region or any officer or employee
thereof to whom his authority is duly
delegated.
Regional Hearing Clerk means an
individual duly authorized to serve as
hearing clerk for a given region.
Correspondence may be addressed to
the Regional Hearing Clerk, U S.
Environmental Protection Agency
(address of Regional Office—see
Appendix A) For a case initiated at EPA
Headquarters. the term Regional Hearing
Clerk means the Hearing Clerk
Regional Judicial Officer means a
person designated by the Regional
Administrator under § 22 04(b)
Respondent means any person
proceeded against in the complaint
(14 Terms defined in the Act and not
defined in these Consolidated Rules of
Practice are used consistent with the
meanings given in the Act.
§22.04 Roles of the EnvIronmental
Appeals Board, RegIonal JudIcIal OffIcer
and PresIdIng Officer; dlsqualltlcatlon,
wIthdrawal, and reassignment
(a) Environmental Appeals Board.
The Environmental Appeals Board:
rules on appeals from the decisions,
rulings and orders of a Presiding Officer
in proceedings under these
Consolidated Rules of Practice; acts as
Presiding Officer until the respondent
files an answer in proceedings under
these Consolidated Rules of Practice
commenced at EPA Headquarters, and
approves settlement of proceedings
under these Consolidated Rules of
Practice commenced at EPA
Headquarters. The Environmental
Appeals Board may refer any case or
motion to the Administrator when the
Environmental Appeals Board, in its
discretion, deems it appropriate to do
so. When an appeal or motion is
referred to the Administrator by the
Environmental Appeals Board, all
parties shall be so notified and
references to the Environmental
Appeals Board in these Consolidated
Rules of Practice shall be interpreted as
referring to the Administrator. If a case
or motion is referred to the
Administrator by the Environmental
Appeals Board, the Administrator may
consult with any EPA employee
concerning the matter, provided such
consultation does not violate § 22.08.
Motions directed to the Administrator
shall not be considered except for
motions for disqualification pursuant to
paragraph (d) of this section, or where
the Environmental Appeals Board has
referred a matter to the Administrator
(b)Regional Judicial Officer. Each
Regional Administrator shall designate
one or more Regional Judicial Officers to
act as Presiding Officer in proceedings
under subpart I of these Consolidated
Rules of Practice, and to act as Presiding
Officer until the respondent files an
answer in proceedings under these
Consolidated Rules of Practice to which
subpart I does not apply. The Regional
Administrator may also delegate to one
or more Regional Judicial Officers the
authority to approve settlement of
proceedings pursuant to §22.18 04(3)
These delegations will not prevent a
Regional Judicial Officer from referring
any motion or case to the Regional
Administrator A Regional Judicial
Officer shall be an attorney who is a
permanent or temporary employee of
the Agency or another Federal agency
and who may perform other duties
within the Agency A Regional Judicial
Officer shall not have performed
prosecutorial or investigative functions
in connection with, nor have any
interest in the outcome of, any case in
which he serves as a Regional Judicial
Officer.
(c) Presiding Officer. The Presiding
Officer shall conduct a fair and
impartial proceeding, assure that the
facts are fully elicited, adjudicate all
issues, and avoid delay.
The Presiding Officer may:
(1) Conduct administrativo hearings
under these Consolidated Rules of
Practice;
(2) Rule upon motions, requests, and
offers of proof, and issue all necessary
orders;
(3) Administer oaths and affirmations
and take affidavits,
(4) Examine witnesses and receive
documentary or other evidence;
(5) Order a party, or an officer or agent
thereof, to produce testimony,
documents, or other non-privileged
evidence, and failing the production
thereof without good cause being
shown, draw adverse inferences against
that party;
(6) Admit or exclude evidence;
(7) Hear and decide questions of facts.
law, or discretion;
(8) Require parties to attend
conferences for the settlement or
simplification of the issues, or the
expedition of the proceedings;
(9) Issue subpoenas authorized by the
Act; and
(10) Do all other acts and take all
measures necessary for the maintenance
of order and for the efficient, fair and
impartial adjudication of issues arising
in proceedings governed by these
Consolidated Rules of Practice.
(d) Disqualification, withdrawal and
reassignment. ( 1) The Administrator,
the Regional Administrator, the
members of the Environmental Appeals
Board, the Regional Judicial Officer, or
the Presiding Officer may not perform
functions provided for in these
Consolidated Rules of Practice regarding
any matter in which they have a
financial interest or have any
relationship with a party or with the
subject matter which would make it
inappropriate for them to act. Any party
may at any time by motion to the
Regional Administrator request that the
Regional Judicial Officer be disqualified
from the proceeding. Any party may at
any time by motion to the
Administrator, Regional Administrator,
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9483
a member of the Environmental Appeals
Board, or the Presiding Officer request
that he or she disqualify himself or
herself from the proceeding. If such a
motion to disqualify the Regional
Administrator or Presiding Officer is
denied, a party may appeal that ruling
to the Environmental Appeals Board. If
a motion to disqualify a member of the
Environmental Appeals Board is demed,
a party may appeal that ruling to the
Administrator. The Administrator, the
Regional Administrator, a member of
the Environmental Appeals Board, the
Regional Judicial Officer, or the
Presiding Officer may at any time
withdraw from any proceeding in which
they deem themselves disqualified or
unable to act for any reason.
(2) If the Administrator, the Regional
Administrator, the Regional Judicial
Officer, or the Presiding Officer is
disqualified or withdraws from the
proceeding, a qualified individual who
has none of the infirmities listed in
paragraph (d)(i) of this section shall be
assigned as a replacement. The
Administrator shall assign a
replacement for a Regional
Administrator who withdraws or is
disqualified Should the Administrator
withdraw or be disqualified, the
Regional Administrator from the Region
where the case originated shall replace
the Administrator. If that Regional
Administrator would be disqualified.
the Administrator shall assign a
Regional Administrator from another
Region to replace the Administrator.
The Regional Administrator shall assign
anew Regional Judicial Officer if the
original Regional Judicial Officer
withdraws or is disqualified. The Chief
Administrative Law Judge shall assign a
new Administrative Law Judge if the
original Administrative Law Judge
withdraws or is disqualified.
(3) The Chief Administrative Law
Judge, at any stage in the proceeding,
may reassign the case to an
Administrative Law Judge other than
the one originally assigned in the event
of the unavailability of the
Administrative Law Judge or where
reassignment will result in efficiency in
the scheduling of hearings and would
not prejudice the parties
§ 22.05 FilIng, service, and form of
pleadings and documents; business
confidentiality claims.
(a) Filing of pleadings and documents
(1) The original and one copy of each
pleading or document intended to be
part of the record shall be filed with the
Regional Hearing Clerk when the
proceeding is before the Presiding
Officer, or filed with the Clerk of the
Board when the proceeding is before the
Environmental Appeals Board. A
pleading or document is filed when it is
received by the appropriate Clerk
(2) When the Presiding Officer
corresponds directly with the parties.
the original of the correspondence shall
be filed with the Regional He rmg
Clerk. Parties who correspond directly
with the Presiding Officer shall file a
copy of the correspondence with the
Regional Hearing Clerk.
(3) A certificate of service shall
accompany each document filed or
served in the proceeding
(b) Seiv,ce of pleadings and
documents. A copy of each pleading or
document filed in the proceeding shall
be served on the Presiding Officer and
on each party.
(1) Service of complaint. (i)
Complainant shall serve on Respondent,
or a representative authonzed to receive
service on Respondent’s behalf, a copy
of the signed original of the complaint,
together with a copy of these
Consolidated Rules of Practice. Service
shall be made personally, by certified
mail, return receipt requested. or by any
reliable commercial delivery service
that provides written venfication of
delivery.
(ii)(A) Where respondent is a
domestic or foreign corporation. a
partnership, or an unincorporated
association which is subject to suit
under a common name, complainant
shall serve an officer, partner, a
managing or general agent, or any other
person authorized by appointment or by
Federal or State law to receive service
of process.
(B) Where respondent is an officer or
agency of the United States complainant
shall serve the officer or agency, or as
otherwise permitted by law. If the
agency is a corporation, the complaint
shall be served as prescribed in
paragraph (b)(1)(ii)(A) of this section.
(C) Where respondent is a State or
local unit of government, agency,
department, corporation or other
instrumentality, complainant shall serve
the chief executive officer thereof, or as
otherwise permitted by law Where
respondent is a State or local officer,
complainant shall serve such officer.
(iii) Proof of service of the complaint
shall be made by affidavit of the person
making personal service, or by properly
executed receipt Such proof of service
shall be filed with the Regional Hearing
Clerk immediately upon completion of
service
(2) Service of pleadings and
documents other than the complaint,
rulings, orders, and decisions All
pleadings and documents other than the
complaint, rulings, orders, and
decisions shall be served personally, by
first class mail (including certified mail
or return receipt requested), or by any
reliable commercial delivery service
(c) Form of pleadings and documents
(1) Except as provided herein, or by
order of the Presiding Officer or of the
Environmental Appeals Board there are
no specific requirements as to the form
of pleadings and documents
(2) The first page of every pleading or
other document (after the filing of the
complaint) shall contain a caption
identifying the respondent and the
docket number All legal briefs and legal
memoranda greater than twenty pages in
length (excluding attachments) shall
contain a table of contents and a table
of authorities with page references.
(3) The original of any pleading or
other document (other than exhibits)
shall be signed by the party filing or by
its attorney or other representative. The
signature constitutes a representation by
the signer that he has read the pleading.
letter or other document, that to the best
of his knowledge, information and
belief, the statements made therein are
true, and that it is not interposed for
delay.
(4) The first pleading or document
filed by any person shall contain the
person’s name, address, and telephone
number, and those of its attorney or
representative, if any. Any changes in
this information shall be communicated
promptly to the Regional Hearing Clerk,
Presiding Officer, and all parties to the
proceeding. A party who fails to furnish
such information and any changes
thereto shall be deemed to have waived
its nght to notice and service in a
proceeding under these Consolidated
Rules of Practice.
(5) The Environmental Appeals Board
or the Presiding Officer may exclude
from the record any pleading or
document which does not comply with
this paragraph (c) of this section
Written notice of such exclusion, stating
the reasons therefor, shall be promptly
given to the person submitting the
document. Such person may amend and
resubmit any excluded document upon
motion granted by the Environmental
Appeals Board or the Presiding Officer,
as appropnate.
(d) Confidentiality of Business
Information. (1) A person who wishes to
assert a business confidentiality claim
with regard to any information
contained in any pleading or document
to be filed in a proceeding under these
Consolidated Rules of Practice shall
assert such a claim in accordance with
40 CFR part 2 at the time that the
pleading or document is filed. A
pleading or document filed without a
claim of business confidentiality shall
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be available to the public for inspection
and copying.
(2) Two.versions of any pleading or
document which contains information
claimed confidential shall be filed with
the Regional Hearing Clerk.
Ci) One version of the pleading or
document shall contain the information
claimed confidential. The cover page
shall include the information required
under paragraph (c)(2) of this section
and the words “Business Confidentiality
Asserted’. The specific portion(s)
alleged to be confidential shall be
clearly identified within the document.
(ii) A second version of the pleading
or document shall contain all
information except the specific
information claimed confidential, which
shall be redacted and replaced with
notes indicating the nature of the
information redacted. The cover page
shall stale that information claimed
confidential has been deleted and that a
complete copy of the pleading or
document containing the information
claimed confidential has been filed with
the Regional Hearing Clerk
(3) Both versions of the pleading or
document shall be served on the
Presiding Officer and the complainant.
Both versions of the pleading or
document shall be served on any party.
amicus. or representative thereof.
authorized to receive the information
claimed confidential by the person
making the claim of confidentiality.
Only the redacted version shall be
served on persons not authorized to
receive the confidential information.
(4) Only the second, redacted version
shall be treated as public information.
An EPA officer or employee may
disclose information claimed
confideniial in accordance with
paragraph (d)(i) of this section only as
authorized under 40 CFR part 2.
§22.06 FilIng and service ot rulings,
orders and decisIons.
All rulings, orders, decisions, and
other documents issued by the Regional
Administrator or Presiding Officer shall
be filed with the Regional Hearing
Clerk. All such documents issued by the
Environmental Appeals Board shall be
filed with the Clerk of the
Environmental Appeals Board. Copies
ol such rulings, orders, decisions, or
other documents shall be served
personally, by first class mail (including
by certified mail or return receipt
requested) or any reliable commercial
delivery service, upon all parties by the
Clerk of the Environmental Appeals
Board or the Regional Hearing Clerk, as
appropnate
§ 22.07 Computation and extension of
time.
(a) Cornputotion. In computing any
period of time prescribed or allowed m
these Consolidated Rules of Practice,
except as otherwise provided, the day of
the event from which the designated
period begins to run shall not be
included. Saturdays. Sundays, and
Federal holidays shall be included.
When a stated time expires on a
Saturday, Sunday or Federal holiday.
the stated time period shall be extended
to include the next business day
(b) Extensions of time The
Environmental Appeals Board or the
Presiding Officer may grant an
extension of time for filing any pleading
or document: upon timely motion of a
party to the proceeding, for good cause
shown, and after consideration of
prejudice to other parties; or upon its
own initiative. Any motion for an
extension of time shall be filed
sufficiently in advance of the due date
so as to allow other parties reasonable
opportumty to respond and to allow the
Presiding Officer or Environmental
Appeals Board reasonable opportunity
to issue an order.
(c) Service by mail or corn rnercioi
delivery service Service of the
complaint is complete when the return
receipt is signed. Service of all other
pleadings and documents is complete
upon mailing or when placed in the
custody of a reliable commercial
delivery service Where a pleading or
document is served by first class mail or
commercial delivery service, fIve (5)
days shall be added to the time allowed
by these Consolidated Rules of Practice
for the filing of a responsive pleading or
document.
§ 22.08 Ex pale discussion of proceeding.
At no time after the issuance of the
complaint shall the Administrator, the
members of the Environmental Appeals
Board, the Regional Administrator, the
Regional Judicial Officer, the Presiding
Officer or any other person who is likely
to advise these officials in the decision
on the case, discuss ex parte the ments
of the proceeding with any interested
person outside the Agency, with any
Agency staff member who performs a
prosecutorial or investigative function
in such proceeding or a factually related
proceeding, or with any representative
of such person Any ex pane
memorandum or other communication
addressed to the Administrator, the
Regional Administrator, the
Environmental Appeals Board, the
Regional Judicial Officer, or the
Presiding Officer during the pendency
of the proceeding and relating to the
merits thereof, by or on behalf of any
party shall he regarded as argument
made in the proceeding and shall be
served upon all other parties The other
parties shall be given an opportunity to
reply to such memorandum or
communication The requirements of
this section shall not apply to any
Administrator Regional Administrator,
member of the Environmental Appeals
Board, Regional Judicial Officer, or
Presiding Officer who has formally
recused himself from an adjudicatory
functions in a proceeding.
§ 22.09 Examination of documents flied.
(a) Subject to the provisions of law
restricting the public disclosure of
confidential information, any person
may, during Agency business hours
inspect and copy any document filed in
any proceeding. Such documents shall
be made available by the Regional
Hearing Clerk, the Hearing Clerk, or the
Environmental Appeals Board, as
appropriate.
(b) The cost of duplicating documents
shall be borne by the person seeking
copies of such documents. The Agency
may waive this cost in its discretion.
Subpart B—Parties and Appearances
§22.10 Appearances.
Any party may appear in person or by
counsel or other representative. A
partner may appear on behalf of a
partnership and an officer may appear
on behalf of a corporation. Persons who
appear as counsel or other
representative must conform to the
standards of conduct and ethics
required of practitioners before the
courts of the United States.
§22.11 InterventIon and arnlcus curiae.
(a) Interven t ion. Any person desinng
to become a party to a proceeding may
move for leave to intervene. A motion
for leave to intervene that is filed after
the exchange of information pursuant to
§ 22.19(a) shall not be granted unless the
movant shows good cause for its failure
to file before such exchange of
information. Any party to the
proceeding may file a response to a
motion to intervene within fifteen (15)
days after service of the motion for leave
to intervene The Presiding Officer shall
grant leave to intervene in all or part of
the proceeding if. the movant claims an
interest relating to the cause of action;
a final order may as a practical matter
impair the movant’s ability to protect
that interest; and the movant’s interest
is not adequately represented by
existing parties The intervener shall be
bound by any agreements, arrangements
and other matters previously made in
the proceeding unless otherwise ordered
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by the Presiding Officer or the
Environmental Appeals Board for good
cause
(b) Amicus Curiae. Any person who is
not a party to a oceeding may move
for leave to file an amicus brief The
motion shall identify the interest of the
applicant and shall state the reasons
why the proposed amicus brief is
desirable lithe motion is granted, the
Presiding Officer or Environmental
Appeals Board shall issue an order
setting the time for filing such brief.
Any party to the proceeding may file a
response to an arnicus curiae bnef
within fifteen (15) days after service of
the axnicus curiae brief.
§22.12 ConsolidatIon and severance.
(a) Consolidation. The Presiding
Officer may consolidate any or all
matters at issue in two or more
proceedings subject to these
Consolidated Rules of Practice where:
there exist common parties or common
questions of fact or law; consolidation
would expedite and simplify
consideration of the issues; and
consolidation would not adversely
affect the rights of parties engaged in
otherwise separate proceedings. Where
a proceeding subject to the provisions of
subpart I of this part is consolidated
with a proceeding to which subpart I
does not apply, the procedures of
subpart I of this part shall not apply to
the consolidated proceeding
(b) Severance. The Presiding Officer
may, for good cause, order any
proceedings severed with rasped to any
or all parties or issues.
Subpart C—Prehearlng Procedures
§ 22.13 Commencement of a proceeding.
(a) Any proceeding subject to these
Consolidated Rules of Practice is
commenced by filing with the Regional
Hearing Clerk a complaint conforming
to 22.14.
(b) Notwithstanding paragraph (a) of
this section, where the parties agree to
settlement of one or more causes of
action before the filing of a complaint,
a proceeding not subject to the public
notice and comment provisions of
§ 22.45 may be simultaneously
commenced and concluded by the
issuance of a consent agreement and
consent order pursuant to § 22 18(b)(2)
arid (3)
§ 22.14 Content and amendment of the
Complaint
(a) Content of complaint. Each
complaint shall mclude
(1) A statement reciting the section(s)
of the Act authorizing the issuance of
the complaint.
(2) Specific reference to each
provision of the Act, implementing
regulations, permit or order which
respondent is alleged to have violated,
(3) A concise statement of the factual
basis for alleging the violation.
(4) A description of all relief sought,
including one or more of the following:
(i) The amount of the civil penalty
which is proposed to be assessed, and
a brief explanation of the proposed
penalty;
(ii) Where a specific penalty demand
is not made, a brief explanation of the
severity of each violation alleged and a
citation to the statutory penalty
authority applicable for each violation
alleged in the complaint;
(iii) A request for revocation,
termination or suspension of all or part
of a permit, and a statement of the terms
and conditions of such revocation,
termination or suspension; or
(iv) A request for a compliance or
corrective action order and a statement
of the terms and conditions thereof;
(5) Notice of respondent’s right to
request a hearing on any material fact
alleged in the complaint, or on the
appropriateness of any proposed
penalty, compliance or corrective action
order, or permit revocation, termination
or suspension; end
(6) Notice if subpart I of this part
applies to such hearing.
(b) Rules of practice. A copy of these
Consolidated Rules of Practice shall
accompany each complaint served.
(c) Amendment of the complaint. The
complainant may amend the complaint
once as a matter of right at any time
before the answer is filed. Otherwise the
complainant may amend the complaint
only upon motion granted by the
Presiding Officer. Respondent shall
have twenty (20) additional days from
the date of service of the amended
complaint to file its answer.
(d) Withdrawal of the complaint. The
complainant may withdraw the
complaint, or any part thereof, without
prejudice one time before the answer
has been filed. After one withdrawal
before the filing of an answer, or after
the filing of an answer, the complainant
may withdraw the complaint, or any
part thereof, without prejudice only
upon motion granted by the Presiding
Officer.
§ 22.15 Answer to the complaint.
(a) General Where respondent:
Contests any material fact upon which
the complaint is based; contends that
the proposed penalty, compliance or
corrective action order, or permit
revocation, termination or suspension,
as the case may be, is inappropriate; or
contends that it is entitled to judgment
as a matter of law, it shall file an
onginal and one copy of a written
answer to the complaint with the
Regional Hearing Clerk and shall serve
copies of the answer on all other parties
Any such answer to the complaint must
be filed with the Regional Hearing Clerk
within thirty (30) days after service of
the complaint.
(b) Contents of the answer The
answer shall clearly and directly admit,
deny or explain each of the factual
allegations contained in the complaint
with regard to which respondent has
any knowledge. Where respondent has
no knowledge of a particular factual
allegation and so states, the allegation is
deemed denied. The answer shall also
state: The circumstances or arguments
which are alleged to constitute the
grounds of any defense; the facts which
respondent disputes; the basis for
opposing the proposed relief; and
whether a hearing is requested.
(c) Request fora hearing. A hearing
upon the issues raised by the complaint
and answer shall be held if requested by
respondent in its answer. If the
respondent does not request a hearing,
the Presiding Officer may hold a hearing
if issues appropriate for adjudication are
raised in the answer.
(d) Failure to admit, deny, or explain.
Failure of respondent to admit, deny, or
explain any material factual allegation
contained in the complaint constitutes
an admission of the allegation.
(e) Amendment of the answer. The
respondent may amend the answer to
the complaint upon motion granted by
the Presiding Officer.
§22.16 Motlon&
(a) General All motions, except those
made orally on the record during a
hearing, shall: be in writing; state the
grounds therefor, with particularity; set
forth the relief sought; and be
accompanied by any affidavit,
certificate, other evidence or legal
memorandum relied upon. Motions
shall be served as provided by
§ 22 05(b)(2). Upon the filing of a
motion, other parties may file responses
to the motion and the movant may file
a reply to the response; any additional
responsive documents shall be
permitted only by order of the Presiding
Officer or Environmental Appeals
Board, as appropriate...
(b) Response to motions. A party’s
response to any written motion must be
filed within fifteen (15) days after
service of such motion. The movant’s
reply to any written response must be
filed within ten (10) days after service
of such response and shall be limited to
issues raised m the response The
Presiding Officer or the Environmental
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Appeals Board may set a shorter or
longer time for response or reply, or
riioke other orders concerning the
disposition of motions The response or
reply shall he accompanied hy any
affidavit, certificate, other evidence, or
legal memorandum relied upon Any
party who lails to respond within the
designated period waives any objection
to the granting of the motion
Ic) Decision The Regional Judicial
Officer (or in a proceeding commenced
at EPA Headquarters, the Environmental
Appeals Board) shall rule on all motions
filed or made before an answer to the
complaint is filed Except as provided in
§ 22.29(c), an Administrative Law Judge
shall rule on all motions filed or made
after art answer is filed and before an
initial decision has become final or has
been appealed The Environmental
Appeals Board shall rule as provided in
§ 22 29(c) and on all motions filed or
made after an appeal of the initial
decision is filed, except as provided
pursuant to § 22 28.
(d) Oral argument. The Presiding
Officer or the Environmental Appeals
Board may permit oral argument on
motions in its discretion.
§22.17 Default
(a) Default. A party may be found to
be in default, after motion, upon failure
to file a timely answer to the complaint;
upon failure to comply with the
information exchange requirements of
§ 22.19(a) or an order of the Presiding
Officer; or upon failure to appear at a
conference or heanng. Default by
respondent constitutes, for purposes of
the pending action only, an admission
of all facts alleged in the complaint and
a waiver of respondent’s nght to a
heanng on such factual allegations
Default by complainant constitutes a
waiver of complainant’s right to proceed
on the merits of the action, and shall
result in the dismissal of the complaint
with prejudice
(b) Motion for default. A motion for
default shall set forth the grounds for
finding a party in default, Where the
motion requests the assessment of a
penalty or the imposition of other relief
against a defaulting party, the movant
must specify the penalty or other relief
sought and state the legal and factual
grounds for the relief requested. The
motion shall include as attachments any
affidavit, certificate, other evidence or
legal memoranda relied upon in support
of the motion
(c) Default order. When the Presiding
Officer finds that default has,occurred,
he shall issue a default order against the
defaulting party unless the record shows
good cause why a default order should
not be issued This order shall
constitute the initial decision under
these Consolidated Rules of Practice,
except that the relief proposed in the
complaint or the motion for default
shall be ordered unless the record
clearly demonstrates that the requested
relief is inconsistent with the Act For
good cause shown, the Presiding Officer
may set aside a default order
(d) Payment of Penalty, Effective Dote
of Compliance or Corrective Action
Orders, Revocation or Suspension of
Permits Any penalty assessed in the
default order shall become due and
payable by respondent without further
proceedings thirty (30) days after the
default order becomes final under
§ 22 2 7(c). Any default order requiring
compliance or corrective action shall be
effective and enforceable without
further proceedings on the date the
default order becomes final under
§ 22.27(c) If the default order revokes or
suspends a permit, the conditions of the
revocation or suspension shall become
effective without further proceedings on
the date that the default order becomes
final under § 22.27(c).
§22.18 Quick resolution; settlement;
alternative dispute resolution.
(a) Quick resolution. (I) Any
respondent who receives a complaint
containing a specific proposed penalty
may resolve the action at any time by
paying the proposed penalty in full into
the appropriate lockbox (see Appendix
B of this part) and by filing with the
Regional Hearing Clerk a copy of the
check. If the respondent pays the
proposed penalty in full within 30 days
after receiving the complaint, then no
answer need be filed. Paragraph (a) of
this sectrion shall not apply to any
complaint which seeks a compliance or
corrective action order, or to revoke,
terminate or suspend a permit. In an
action subject to the public conunent
provisions of § 22.45, this quick
resolution is not available until ten (10)
days after the close of the comment
penod.
(2) Any respondent who wishes to
resolve an action by paying the
proposed penalty instead of filing an
answer, but who needs additional time
to pay the penalty, may file a written
statement with the Regional Heanng
Clerk within thirty (30) days after
receiving the complaint stating that the
respondent agrees to pay the proposed
penalty in accordance with paragraph
(a)(1) of this section. The wntten
statement need not contain any
response to, or admission of, the
allegations in the complaint Within
sixty days (60) days after receiving the
complaint, the respondent shall pay the
full amount of the proposed penalty.
Failure to make such payment within 60
days of receipt of the complaint may
subject the respondent to default
pursuant to § 22 17
(3) Upon receipt of piyment in full,
the Regional Judicial Officer or Regional
Administrator, or, in a proceeding
commenced at EPA Headquarters. the
Environmental Appea Is Board, shall
issue a final order Payment by
respondent shall constitute a waiver of
respondent’s rights to a hearing and to
appeal the final order
[ b)Settlement. (1) The Agency
encourages settlement of a proceeding at
any time if the settlement is consistent
with the provisions and objectives of the
Act and applicable regulations. The
parties may engage in settlement
discussions whether or not the
respondent requests a hearing.
Settlement discussions shall not affect
the respondent’s obligation to file a
timely answer under § 22.15.
(2) Consent agreement. Any and all
terms and conditions of a settlement
shalt be recorded in a written consent
agreement signed by all parties or their
representatives. The consent agreement
shall state that, for the purpose of the
proceeding, respondent. Admits the
lurisdictional allegations of the
complaint; admits the facts stipulated in
the consent agreement or neither admits
nor denies specific factual allegations
contained in the complaint; consents to
the assessment of any stated civil
penalty, to the issuance of any specified
compliance or corrective action order, to
any conditions specified in the consent
agreement, and to any stated permit
revocation, terrninat.ion or suspension,
and waives any right to a hearing and
its right to appeat the consent order
accompanying the consent agreement
Where Complainant elects to commence
a proceeding pursuant to § 22.13(b), the
consent agreement shall also contain the
elements descnbed at § 22.14(a)(1)—(3).
The parties shall forward the executed
consent agreement and a proposed
consent order to the Regional Judicial
Officer or Regional Administrator, or, in
a proceeding commenced at EPA
Headquarters, the Environmental
Appeals Board
(3) Consent order. No settlement or
consent agreement shall dispose of any
proceeding under the Consolidated
Rules of Practice without a consent
order from the Regional Judicial Officer
or Regional Administrator, or, in a
proceeding commenced at EPA
Headquarters, the Environmental
Appeals Board The consent order shall
ratify the parties’ consent agreement and
constitute a final order.
Ic) Scope of resolution or settlement
Full payment of the penalty proposed in
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a complaint pursuant to paragraph (a) of
this section or settlement pursuant to
paragraph (b) of this section shall not in
any case affect the right of the Agency
or the United States to pursue
appropriate injunctive or other equitable
relief or criminal sanctions for any
violations of law. Full payment of the
penalty proposed in a complaint
pursuant to paragraph (a) of this section
or settlement pursuant to paragraph (b)
of this section shall only resolve
respondent’s liability for Federal civil
penalties for the violations and facts
alleged in the complaint.
(d) Alternative Means of Dispute
Resolution. (1) The parties may engage
in any process within the scope of the
Alternative Dispute Resolution Act
(“ADRA1, 5 U.S.C. 581 et seq ,which
may facilitate voluntary settlement
efforts Such process shall be subject to
the confidentiality provisions of the
ADRA.
(2) Dispute resolution under
paragraph (d) of this section does not
divest the Presiding Officer of
jurisdiction and does not automatically
stay the proceeding. All provisions of
these Consolidated Rules of Practice
remain in effect notwithstanding any
dispute resolution proceeding.
(3) The parties may choose any person
to act as a neutral, or may move for the
appointment of a neutral. If the
Presiding Officer concurs with a motion
for the appointment of a neutral, the
Presiding Officer shall forward the
motion to the Chief Administrative Law
Judge who shall designate a qualified
neutral.
§22.19 Prehearlng information exchange;
prehearing conference; other discovery.
(a) Prehearing information exchange.
Unless otherwise ordered by the
Presiding Officer, eaZh party shall
provide to all parties the names of any
expert or other witnesses it intends to
call at the hearing, together with a brief
narrative summary of their expected
testimony, or a statement that no
witnesses will be called; and copies of
all documents and exhibits which it
intends to introduce into evidence at the
hearing. If the proceeding is for the
assessment of a penalty. complainant
shall specify a proposed penalty if it has
not done so in the complaint and state
the basis for that penalty, and
respondent shall provide all factual
information it considers relevant to the
assessment of a penalty (except
evidence relating to settlement which
would be excluded in the federal courts
under Rule 408 of the Federal Rules of
Evidence). Documents and exhibits
shall be marked for identification as
ordered by the Presiding Officer.
Documents or exhibits that have not
been included and testimony that has
not been summarized m prehearing
information exchange may not be
admitted into evidence except as
provided in § 22.22(a)
(b) Pre hearing conference. The
Presiding Officer, at any time before the
hearing begins, may direct the parties
and their counsel or other
representatives to participate in a
conference before him to consider:
(1) Settlement of the case,
(2) Simplification of issues and
stipulation of facts not in dispute.
(3) The necessity or desirability of
amendments to pleadings;
(4) The exchange of exhibits,
documents, prepared testimony, and
admissions or stipulations of fact which
will avoid unnecessary proof;
(5) The limitation of the number of
expert or other witnesses.
(6) The time and place for the hearing;
and
(7) Any other matters which may
expedite the disposition of the
proceeding.
(c) Record of the preheoring
conference No transcript of a
prehearing conference relating to
settlement shall be made. With respect
to other prehearing conferences, no
transcript of any prehearing conferences
shall be made unless ordered by the
Presiding Officer. The Presiding Officer
shall prepare and file for the record a
written summary of the action taken at
the conference. The summary shall
incorporate any written stipulations or
agreements of the parties and all rulings
and appropriate orders containing
directions to the parties.
(d) Location of prehearing conference.
The prehearing conference shall be held
in the county where the respondent
resides or conducts the business which
the hearing concerns, in the city in
which the relevant Environmental
Protection Agency Regional Office is
located, or in Washington, DC, unless
the Presiding Officer determines that
there is good cause to hold it at another
location or by telephone.
(e) Other discovery: (1) After the
information exchange provided for in
paragraph (a) of this section, a party
may move for additional discovery The
motion shall specify the method of
discovery sought, provide the proposed
discovery instruments, and describe in
detail the nature of the information andl
or documents sought (and, where
relevant, the proposed time and place
where discovery would be conducted).
The Presiding Officer may order such
other discovery only if it:
(i) Will neither unreasonably delay
the proceeding nor unreasonably burden
the non•moving party,
(ii) Seeks information that is most
reasonably obtained from the non-
moving party, and which the non-
moving party has refused to provide
voluntarily; and
(iii) Seeks information that has
significant probative value on a
disputed issue of material fact relevant
to liability or the relief sought.
(2) Settlement positions and
information regarding their
development (such as penalty
calculations based upon Agency
settlement policies) shall not be
discoverable.
(3) The Presiding Officer may order
depositions upon oral questions only in
accordance with paragraph (e)(1) of this
section and upon an additional finding
that.
(i) The information sought cannot be
obtained by alternative methods of
discovery; or
(ii) There is a substantial reason to
believe that relevant and probative
evidence may otherwise not be
preserved for presentation by a witness
at the hearing
(4) The Presiding Officer may require
the attendance of witnesses or the
production of documentary evidence by
subpoena, if authorized under the Act,
in accordance with paragraph (e)(1) of
this section and upon an additional
showing of the grounds and necessity
therefor. Subpoenas shall be served in
accordance with § 22.05(b)(1). Witnesses
summoned before the Presiding Officer
shall be paid the same fees and mileage
that are paid witnesses in the courts of
the United States. Any fees shall be paid
by the party at whose request the
witness appears. Where a witness
appears pursuant to a request initiated
by the Presiding Officer, fees shall be
paid by the Agency.
(5) Nothing in paragraph (e) of this
section shall limit a party’s right to
request admissions or stipulations, a
respondent’s right to request Agency
records under the Federal Freedom of
Information Act, 5 U.s C. 552, or EPA’s
authority under the Act to conduct
inspections, issue information request
letters or administrative subpoenas, or
otherwise obtain information.
(f) Supplementing prior exchanges. A
party who has made an information
exchange under paragraph (a) of this
section, or who has responded to a
request for information or a discovery
order pursuant to paragraph (e) of this
section, shall promptly supplement or
correct the exchange when the party
learns that the information exchanged or
response provided is incomplete.
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inaccurate or outdated, and the
additional or corrective information has
not otherwise been disclosed to the
other party pursuant to this section
(g) Where a party fails to provide
information within its control as
required pursuant to this section, the
Presiding Officer may
(1) Infer that the information would
be adverse to the party failing to provide
(2) Exclude the information from
evidence; or
(3) Issue a default order under
§ 22 17(a).
§ 22.20 Accelerated decision; decision to
dismiss.
(a) General. The Presiding Officer may
at any time render an accelerated
decision in favor of a party as to any or
all parts of the proceeding, without
further heanng or upon such limited
additional evidence, such as affidavits,
as he may require, if no genuine issue
of matenal fact exists and a party is
entitled to judgment as a matter of law.
The Presiding Officer, upon motion of
the respondent, may at any time dismiss
an action without further hearing or
upon such limited additional evidence
as he requires, on the basis of failure to
establish a prima fade case or other
pounds which show no right to relief
on the part of the complainant.
(b) Effect ( 1) If an accelerated
decision or a decision to dismiss is
issued as to all issues and claims in the
proceeding, the decision constitutes an
initial decision of the Presiding Officer,
and shall be filed with the Regional
Hearing Clerk.
(2)11 an accelerated decision or a
decision to dismiss is rendered on less
than all issues or claims in the
proceeding, the Presiding Officer shall
determine what matenal facts exist
without substantial controversy and
what material fads remain controverted.
He shall thereupon issue an
interlocutory order specifying the facts
which appear substantially
uncontroverted, and the issues and
claims upon which the hearing will
proceed.
Subpart fl—Hearing Procedures
§ 22.21 Assignment of Presiding Officer;
scheduling the hearing.
(a) When an answer is filed, the
Regional Hearing Clerk shall forward
the complaint, the answer, and any
other documents filed in the proceeding
to the Chief Administrative Law Judge
who shall serve as Presiding Officer or
assign another Administrative Law
Judge as Presiding Officer The
Presiding Officer shall then obtain the
case file from the Chief Administrative
Law Judge and notify the parties of his
assignment
(b) Notice of hearing If the
respondent requests a hearing in his
answer, or one is ordered by the
Presiding Officer under § 22.15(c), the
Presiding Officer shall serve upon the
parties a notice of hearing setting forth
a time and place for the hearing The
Presiding Officer may issue the notice of
heanng at any appropriate time, but not
later than twenty (20) days pnor to the
date set for the hearing.
Cc) Postponement of heanng No
request for postponement of a hearing
shall be granted except upon motion
and for good cause shown
Cd) Lccation of the hearing. The
location of the hearing shall be
determined in accordance with the
method for determining the location of
a preheanng conference under
§ 22.19(d).
§22.22 Evidence.
(a) General. (1) The Presiding Officer
shall admit all evidence which is not
irrelevant. iinmatenal. unduly
repetitious, unreliable, or of little
probative value, except that evidence
relating to settlement which would be
excluded in the federal courts under
Rule 408 of the Federal Rules of
Evidence is not admissible. If, however,
a party fails to provide any document,
exhibit, witness name or summary of
expected testimony required to be
exchanged under § 22.19(a) or (I) to all
parties at least fifteen (15) days before
the hearing date, the Presiding Officer
shall not admit the document, exhibit or
testimony into evidence, unless the non-
exchanging party had good cause for
failing to exchange the required
information and provided the required
information to all other parties as soon
as it had control of the information, or
had good cause for not doing so.
(2) In the presentation, admission,
disposition, and use of oral and written
evidence, EPA officers, employees and
authoriz d representatives shall
preserve the confidentiality of
information claimed confidential,
whether or not the claim is made by a
party to the proceeding, unless
disclosure is authorized pursuant to 40
CFR pan 2 A business confidentiality
claim shall not prevent information
from being introduced into evidence,
but shall instead require that the
information be treated in accordance
with 40 CFR part 2, subpart B The
Presiding Officer or the Environmental
Appeals Board may consider such
evidence in a proceeding closed to the
public, and which may be before some,
but not all, parties, as necessary Such
proceeding shall be closed only to the
extent necessary to comply with 40 CFR
part 2, subpart B, for information
claimed confidential Any affected
person may move for an order
protecting the information claimed
confidential
(bJ Examination of witnesses.
Witnesses shall be examined orally,
under oath or affirmation, except as
otherwise provided in these
Consolidated Rules of Practice or by the
Presiding Officer. Parties shall have the
nght to cross-examine a witness who
appears at the hearing provided that
such cross-examination is not unduly
repetitious.
Cc) Written testimony The Presiding
Officer may admit and insert into the
record as evidence, in lieu of oral
testimony, written testimony prepared
by a witness. The admissibility of any
part of the testimony shall be subject to
the same rules as if the testimony were
produced under oral examination.
Before any such testimony is read or
admitted into evidence, the witness
shall deliver a copy of the testimony to
the Presiding Officer, the reporter, and
opposing counsel. The witness
presenting the testimony shall swear to
or affirm the testimony and shall be
subject to appropriate oral cross-
examination.
(d) Admission of affidavits where the
witness is unavailable. The Presiding
Officer may admit into evidence
affidavits of witnesses who are
unavailable. The term “unavailable”
shall have the meaning accorded to it by
Rule 804(a) of the Federal Rules of
Evidence.
(e) Exhibits. Where practicable, an
original and one copy of each exhibit
shall be filed with the Presiding Officer
for the record and a copy shall be
furnished to each party. A true copy of
any exhibit may be substituted for the
original.
(f) Official notice. Official notice may
be taken of any matter which can be
judicially noticed in the Federal courts
and of other facts within the specialized
knowledge and experience of the
Agency. Opposing parties shall be given
adequate opportunity to show that such
facts are erroneously noticed.
§ 22.23 ObJections and offers of proof.
(a) Oblection Any oblection
concerning the conduct of the hearing
may be stated orally or in writing dunng
the hearing The party raising the
objection must supply a short statement
of its grounds The ruling by the
Presiding Officer on any objection and
the reasons given for it shall be part of
the record An exception to each
oh ection overruled shall be automatic
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and is not waived by further
participation in the hearing.
(b) Offers of proof Whenever
evidence is excluded from the record,
the party offering the evidence may
make an offer of proof, which shall be
included in the record. The offer of
proof for excluded oral testimony shall
consist of a brief statement describing
the nature of the evidence excluded.
The offer of proof for excluded
documents or exhibits shall consist of
the documents or exhibits excluded.
Where the Environmental Appeals
Board decides that the ruling of the
Presiding Officer in excluding the
evidence was both erroneous and
prejudicial, the hearing may be
reopened to permit the taking of such
evidence.
§ 22.24 Burden of presentation; burden of
persuasion; preponderance of the evidence
standard.
(a) The complainant has the burdens
of presentation and persuasion that the
violation occurred as set forth in the
complaint and that the relief sought is
appropriate. Following complainant’s
establishment of a prima facie case,
respondent shall have the burden of
presenting any defense to the allegations
set forth in the complaint and any
response or evidence with respect to the
appropriate relief. The respondent has
the burdens of presentation and
persuasion for any affirmative defenses.
(b) Each matter of controversy shall be
decided by the Presiding Officer upon a
preponderance of the evidence.
§22.25 Filing the transcript.
The hearing shall be transcribed
verbatim Promptly following the taking
of the last evidence, the reporter shall
transmit to the Regional Hearing Clerk
the original and as many copies of the
transcript of testimony as are called for
in the reporter’s contract with the
Agency, and also shall transmit to the
Presiding Officer a copy of the
transcript. A certificate of service shall
accompany each copy of the transcript.
The Regional Hearing Clerk shall notify
all parties of the availability of the
transcript and shall furnish the parties
with a copy of the transcript upon
payment of the cost of reproduction,
unless a party can show that the cost is
unduly burdensome. Any person not a
party to the proceeding may receive a
copy of the transcript upon payment of
the reproduction fee, except for those
parts of the transcript ordered to be kept
confidential by the Presiding Officer.
Any party may file a motion to conform
the transcript to the actual testimony
within twenty (20) days after the parties
are notified of the availability of the
transcript.
§ 22.26 Proposed findings, conclusions,
and order.
Within twenty (20) days after the
parties are notified of the availability of
the transcript, or within such longer
time as may be fixed by the Presiding
Officer, any party may submit for the
consideration of the Presiding Officer,
proposed findings of fact, conclusions of
law, and a proposed order, together with
briefs in support thereof. The Presiding
Officer shall set a time by which reply
briefs must be submitted. All
submissions shall be in writing, shall be
served upon all parties, and shall
contain adequate references to the
record and authorities relied on.
Subpart E—Inltlai Decision and Motion
to Reopen a Hearing
§ 22.27 Initial Decision.
(a) Filing and contents. After the
period for filing reply briefs under
§ 22.26 has expired, the Presiding
Officer shall issue an initial decision.
The initial decision shall contain
findings of fact, conclusions regarding
all material issues of law or discretion,
as well as reasons therefor, and a
recommended civil penalty assessment,
compliance order, corrective action
order, or permit revocation and
suspension, if appropriate. Upon receipt
of an initial decision, the Regional
Hearing Clerk shall forward the record
of the proceeding to the Hearing Clerk
and shall forward copies of the initial
decision to the Environmental Appeals
Board and the Assistant Adirnmstrator
for the Office of Enforcement and
Compliance Assurance.
(b) Amount of civil penalty If the
Presiding Officer determines that a
violation has occurred and the
complaint seeks a civil penalty, the
Presiding Officer shall determine the
amount of the recommended civil
penalty based on the evidence in the
record and in accordance with any
penalty criteria set forth in the Act. The
Presiding Officer shall consider any
civil penalty guidelines issued under
the Act. If the Presiding Officer decides
to assess a penalty different in amount
from the penalty recommended to be
assessed in the complaint, the Presiding
Officer shall set forth in the initial
decision the specific reasons for the
increase or decrease. The Presiding
Officer shall explain in detail in the
initial decision how the penalty to be
assessed corresponds to any penalty
criteria set forth in the Act. If the
respondent has defaulted, the Presiding
Officer shall not assess a penalty greater
than that recommended to be assessed
in the complaint or in the motion for
default, whichever is less.
(c) Effect of initial decision The
initial decision of the Presiding Officer
shall become a final order forty five (45)
days after its service upon the parties
and without further proceedings unless:
a party moves to reopen the hearing; a
party appeals the initial decision to the
Environmental Appeals Board; a party
moves to set aside a default order; or the
Environmental Appeals Board elects to
review the initial decision on its own
initiative An initial decision that is
appealed to the Environmental Appeals
Board shall not be final or operative
pending the Environmental Appeals
Board’s issuance of a final order.
§ 22.28 Motion to reopen a hearing.
(a) Filing and content. A motion to
reopen a hearing to take further
evidence must be made no later than
twenty (20) days after service of the
initial decision and shall state the
specific grounds upon which relief is
sought. Where the movant seeks to
introduce new evidence, the motion
shall: state briefly the nature and
purpose of the evidence to be adduced;
show that such evidence is not
cumulative; and show good cause why
such evidence was not adduced at the
hearing. The motion shall be made to
the Presiding Officer and filed with the
Regional Hearing Clerk
(b) Disposition of motion to reopen a
hearing Within 15 (fifteen) days
following the service of a motion to
reopen a hearing, any other party to the
proceeding may file with the Regional
Hearing Clerk and serve on all other
parties a response. A reopened hearing
shall be governed by the applicable
sections of these Consolidated Rules of
Practice. The filing of a motion to
reopen a hearing shall automatically
stay the running of the time penods for
an initial decision becoming final under
§ 22.27(c) and for appeal under § 22.30.
These time periods shall begin again in
full when the motion is denied or an
amended initial decision is served.
Subpart F—Appeals and
AdminIstrative Review
§ 22.29 Appeal from or review of
interlocutory orders or rulings.
(a) Request for interlocutory appeal.
Appeals from orders or rulings other
than an initial decision shall be allowed
only at the discretion of the
Environmental Appeals Board. A party
seeking interlocutory appeal of such
orders or rulings to the Environmental
Appeals Board shall file a motion
within ten (10) days of service of the
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order or ruling, requesting tha i the
Presiding Officer forward the order or
ruling to Environmental Appeals Board
for review, and stating briefly the
grounds for the appeat
(b) Availability of interlocutory
appeal The Presiding Officer may
recommend any order or ruling for
review by the Environmental Appeals
Board when (1) The order or ruling
involves an important question of law or
policy concerning which there is
substantial grounds for difference of
opinion; and (2) either an immediate
appeal from the order or ruling will
materially advance the ultimate
termination of the proceeding; or review
after the final order is issued will be
inadequate or ineffective
(c) Decision If the Presiding Officer
has recommended review and the
Environmental Appeals Board
determines that interlocutory review is
inappropriate, or takes no action within
thirty (30) days of the Presiding Officer’s
recommendation, the appeal is
dismissed, When the Presiding Officer
declines to recommend review of an
order or ruling, it may be reviewed by
the Environmental Appeals Board only
upon appeal from the initial decision,
except when the Environmental
Appeals Board determines, upon motion
of a party and in exceptional
circumstances, that to delay review
would be contrary to the public interest
Such motion shall be made within ten
(10) days of service of an order of the
Presiding Officer refusing to recommend
such order or ruling for interlocutory
review.
§ 22.30 Appeal from or review of initial
decision.
(a) Notice of appeal (1) Within 30
days after the initial decision is served,
any party may appeal any adverse order
or ruling of the Presiding Officer by
filing an original and one copy o F a
notice of appeal and an accompanying
appellate brief with the Environmental
Appeals Board (Clerk of the Board (Mail
Code 1103B), United States
Environmental Protection Agency, 401
M Street, SW, Washington, DC 20460
Hand deliveries may be made at Suite
500, 607 14th Street, NW.). Appellant
shall serve a copy of the nolice of appeal
upon the Regional Hearing Clerk.
Appellant shall simultaneously serve
one copy of the notice and brief upon
all other parties and amicus curiae The
notice of appeal shall summarize the
order or ruling, or part thereof, appealed
from The appellant’s brief shall contain
tables of contents and authorities (with
page references), a statement of the
issues presented for review, a statement
of the nature of the case and the facts
relevant to the issues presented for
review (with appropriate references to
the record), argument on the issues
presented, a short conclusion stating the
precise relief sought, alternative
findings of fact, and alternative
conclusions regarding issues of law or
discretion. if a timely notice of appeal
is filed by a party, any other party may
file a notice of appeal on any issue
within twenty (20) days after the date on
which the first notice of appeal was
served.
(2) Within twenty (20) days of service
of notices of appeal and briefs under
paragraph (a ll) of this section, any
other party or amicus curiae may file
and serve with the Environmental
Appeals Board an original and one copy
of a response brief responding to
argument raised by the appellant,
together with reference to the relevant
portions of the record, initial decision,
or opposing brief. Appellee shall
simultaneously serve one copy of the
response brief upon each party and
amicus curiae. Response briefs shall be
limited to the scope of the appeal brief.
Further briefs maybe filed only with the
permission of the Environmental
Appeals Board.
(bi Sua sponte review by the
Environmental Appeals Board.
Whenever the Environmental Appeals
Board determines to review an initial
decision on its own initiative, it shall
file notice of its intent to review that
decision with the Clerk of the
Environmental Appeals Board, and
serve it upon the Regional Hearing Clerk
and the parties within forty-five (45)
days after the initial decision was
served upon the parties. The notice
shall include a statement of issues to be
briefed by the parties and a time
schedule for the filing and service of
briefs
(ci Scope of appeal or review The
parties’ rights of appeal shall be limited
to those issues raised during the course
of the proceeding and by the initial
decision If the Environmental Appeals
Board determines that issues raised, but
not appealed by the parties, should be
argued, it shall give the parties
reasonable written notice of such
determination to permit preparation of
adequate argument. The Environmental
Appeals Board may remand the case to
the Presiding Officer for further
proceedings
(d l Argument before the
Environmental Appeals Board. The
Environmental Appeals Board may. at
its discretion, order oral argument on
any or all issues in a proceeding.
(e) Motions on appeal All motions
made during the course of an appeal
shall conform to § 22 16 unless
otherwise provided
( I ) Decision. The Environmental
Appeals Board shall adopt. modify, or
set aside the findings of fact and
conclusions of law or discretion
contained in the decision or order being
reviewed, and shall set Forth in the final
order the reasons for its actions. The
Environmental Appeals Board may
assess a penalty that is higher or lower
than the amount recommended to be
assessed in the decision or order being -
reviewed or from the amount sought in
the complaint, except that if the order
being reviewed is a default order, the
Environmental Appeals Board may not
increase the amount of the penalty
above that proposed in the complaint or
in the motion for default, whichever is
less. The Environmental Appeals Board
may adopt, modify or set aside any
recommended compliance or corrective
actien order or any permit revocation,
termination or suspension.
Subpart G—Flnal Order
§ 22.31 Flnai order.
(a) Effect of final order. A final order
constitutes the final Agency action in a
proceeding. The final order shall not in
any case affect the right of the Agency
or the United States to pursue
appropriate injunctive or ether equitable
relief or criminal sanctions for any
violations of law. The final order shall
resolve respondent’s liability for a civil
penalty, compliance or corrective action
order, or the status of a permit or
authority to operate, only for the
violations and facts alleged in the
complaint. The final order does not
waive, extinguish or otherwise affect
respondent’s obligation to comply with
all applicable provisions of the Act and
regulations promulgated thereunder.
(b) Effective date. A final order is
effective upon filing. Where an initial
decision becomes a final order pursuant
to § 22 27(c), the final order is effective
forty-five (45) days after the initial
decision is served on the parties
(c) Payment of a civil penalty. The
respondent shall pay the full amount of
any civil penalty assessed in the final
order within thirty (30) days after the
effective date of the final order unless
otherwise ordered Payment shall be
made by forwarding to the appropriate
lockbox (see Appendix B of this part) a
cashier’s check or certified check in the
amount of the penalty assessed in the
final order, payable to the order of the
“Treasurer, United States of America”,
or in a cate pursuant to § 22 1(a)(7),
“EPA, Hazardous Substances
Superf nd.” in the amount assessed,
and noting the case title and docket
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number. Respondent shall serve copies
of the check on the Regional Hearing
Clerk and on complainant Collection of
interest on overdue payments shall be in
accordance with the Debt Collection
Act. 31 U S C. 3717.
(d) Other relief Any final order
requinng compliance or corrective
action, or permit revocation,
termination, or suspension, shall
become effective and enforceable
without further proceedings on the
effective date of the final order unless
otherwise ordered.
(e) Exhaustion of remedies.
Respondent may appeal a final order as
provided under the Act, except that:
(1) Where a respondent fails to appeal
an initial decision to the Environmental
Appeals Board pursuant to § 22 30 and
that initial decision becomes a final
orderpursuant to § 22.27(c). respondent
waives its rights to judicial review; and
(2) A respondent which elects to
resolve a proceeding pursuant to § 22.18
waives its rights to judicial review.
(I) Final orders to Federal agencies on
appeal (1) A final order of the
Environmental Appeals Board issued to
a department, agency, or instrumentality
of the United States pursuant to § 22.30
shall become effective thirty days after
its service upon the parties unless the
head of the affected department, agency.
or instrumentality requests a conference
with the Administrator in writing and
serves a copy of the request on the
parties of record within thirty days of
service of the final order. In that event,
a decision by the Administrator shall
become the final order.
(2) A motion for reconsideration
pursuant to § 22.32 shall not toll the
thirty-day period described in paragraph
(fl(i) of this section unless specifically
so ordered by the Environmental
A peals Board
§ 22.32 Motion to reconsider a final order.
Motions to reconsider a final order
shall be filed within ten (10) days after
service of the final order. Motions must
set forth the matters claimed to have
been erroneously decided and the
nature of the alleged errors. Motions for
reconsideration under this provision
shall be directed to, and decided by, the
Environmental Appeals Board Motions
for reconsideration directed to the
Administrator, rather than to the
Environmental Appeals Board, will not
be considered, except in cases that the
Environmental Appeals Board has
referred to the Administrator pursuant
to § 22 04(a) and in which the
Administrator has issued the final order.
A motion for reconsideration shall not
stay the effective date of the final order
unless so ordered by the Environmental
Appeals Board.
Subpart is—Supplemental Rules
§ 22.33 (Reserved]
§ 22.34 Supplemental rules governing the
administrative assessment of civil penalties
under the Clean Air Act.
(a) Scope. This section shall apply, in
conjunction with § 22.01 through
22.32, in administrative proceedings to
assess a civil penalty conducted under
sections 113(d), 205(c), 211(d), and
2 13(d) of the Clean Air Act, as amended
(42 U.S C 7413(d). 7524(c). 7545(d), and
7547(d)). Where inconsistencies exfst
between this section and § 22.01
through 22.32. this section shall apply
(b) Issuance of notice Prior to the
issuance of a final order assessing a civil
penalty, the person to whom the order
is to be issued shall be given written
notice of the proposed issuance of the
order Such notice shall be provided by
the issuance of a complaint pursuant to
§ 22.13.
(C) Default on field citation. When a
respondent fails to file a timely answer
to a field citation issued pursuant to 40
CFR part 59 i and fails to submit a
timely statement under § 22.18(a)(2) of
these Consolidated Rules of Practice, the
Presiding Officer shall issue a default
order assessing the penalty proposed in
the complaint.
§ 22.35 Supplemental rules governing the
admlnisirative assessment of clvii penalties
under the Federal insecticide, Fungicide.
and Rodenticide Act.
(a) Scope. This section shall apply, in
conjunction with §522.01 through
22.32, in administrative proceedings to
assess a civil penalty conducted under
section 14(a) of the Federal Insecticide,
Fungicide, and Rodenticide Act as
amended (7 U.S.C. 1361(a)). Where
inconsistencies exist between this
section and §5 22.01 through 22 32. this
section shall apply
(b) Venue The prehearing conference
and the hearing shall be held in the
county, parish, or incorporated city of
the residence of the person charged,
unless otherwise agreed in writing by all
parties For a person whose residence is
outside the United States and outside
any territory or possession of the United
States, the prehearing conference and
the hearing shall be held at the location
listed in Appendix A of this part that is
closest to either the person’s primary
place of business within the United
States, or the primary place of business
I This proposed rule on field citation program
published in the Federal Register on May 3. 1994
8159 FR 22776
of the person’s U.S agent, unless
otherwise agreed by all parties.
§ 22.36 (Reserved].
§ 22.37 Supplemental rules governing
administrative proceedings under the Solid
Waste Disposal Act.
(a) Scope This section shall apply, in
conjunction with §5 22.01 through
22.32, in administrative proceedings
under sections 3005(d) and (e), 3008.
9003 and 9006 of the Solid Waste
Disposal Act (42 U.S C. 6925(d) and (e),
6928, 6991b and 6991e) ( “SWDA”).
Where inconsistencies exist between
this section and §522.01 through 22 32,
this section shall apply.
(b) Corrective action and compliance
orders. A complaint may contain a
compliance order issued under section
3008(a) or section 9006(a), or a
corrective action order issued under
section 3008(h) or section 9003(h)(4) of
the SWDA. Any such order shall
automatically become a final order
unless, no later than thirty (30) days
after the order is served, the respondent
requests a heanng pursuant to § 22.15.
§ 22.38 Supplemental rules of practice
governing the administrative assessment of
cIvil penalties under the Clean Water Act.
(a) Scope. This section shall apply, in
conjunction with §522.01 through 22.32
and § 22.45, in administrative
proceedings for the assessment of any
civil penalty under section 309(g) or
section 311(b)(6) of the Clean Water Act
(“CWA”)(33 U.S.C. 1319(g) and
1321(b)(6)). Where inconsistencies exist
between this section and §522.01
through 22.32, this section shall apply.
(b) Consultation with states For
proceedings pursuant to section 309(g),
the complainant shall, within thirty
days after issuing a complaint, provide
the State agency with the most direct
authonty over the matters at issue in the
case an opportunity to consult with the
complainant.
(c) Administrative procedure and
judicial review. Action of the
Administrator for which review could
have been obtained under section
509(b)(1) of the CWA shall not be
subject to review in an administrative
proceeding for the assessment of a civil
penalty under section 309(g) or section
311(b)(6).
(d) Notwithstanding § 22.31(b),
respondent shall make payment of a
civil penalty assessed pursuant to
section 311(b)(6) of the Clean Water Act,
33 U S C 1321(b)(6). by sending to the
address provided by the complainant a
cashier’s check or certified check in the
amount of the penalty assessed in the
final order payable to the “Oil Spill
Liability Trust Fund”.
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§ 22.39 Supplemental rules governing the
administrative assessment of civil penalties
under section 109 of the Comprehensive
Environmental Response, Compensation,
and Liability Act of 1980, as amended.
(a) Scope This section shall apply, in
conjunction with § 22.10 through
22.32, in administrative proceedings for
the assessment of any civil penalty
under section 109 of the Comprehensive
Environmental Response,
Compensation, and Liability Act of
1980, as amended (42 U.S.C. 9609).
Where inconsistencies exist between
this section and § 22.01 through 22.32.
this section shall apply.
(b) Judicial review. Any person who
requested a hearing with respect to a
Class II civil penalty under section 109
of CERCLA and who is the recipient of
a final order assessing a civil penalty
may file a petition for judicial review of
such order with the United States Court
of Appeals for the District of Columbia
or for any other circuit in which such
person resides or transacts business.
Any person who requested a hearing
with respect to a Class I civil penalty
under section 109 of CERCLA and who
is the recipient of a final order assessing
the civil penalty may file a petition for
judicial review of such order with the
appropriate district court of the United
States. All petitions must be filed within
30 days of the date the order making the
assessment was issued.
(c) Payment of civil penalty assessed
Payment of civil penalties assessed in
the final order shall be made by
forwarding a cashier’s check, payable to
the “EPA”, Hazardous Substances
Superfund,” in the amount assessed,
and noting the case title and docket
number, to the appropriate regional
Superfund Lockbox Depository.
§ 22.40 (Reserved]
§ 22.41 Supplemental rules governing the
administrative assessment of civil penalties
under Title II of the Toxic Substance Control
Act, enacted as section 2 of the Asbestos
Hazard Emergency Response Act (AHERA).
(a) Scope. This section shall apply, in
conjunction with § 22.01 through
22.32, in administrative proceedings to
assess a civil penalty conducted under
section 207 of the Toxic Substances
Control Act (“TSCA”) (15 U.s.c. 2647).
Where inconsistencies exist between
this section and § 22 01 through 22.32,
this section shall apply.
(b) Collection of civil penalty. Any
civil penalty collected under TSCA
section 207 shall be used by the local
educational agency for purposes of
complying with Title LI of TSCA. Any
portion of a civil penalty remaining
unspent after a local educational agency
achieves compliance shall be deposited
into the Asbestos Trust Fund
established under section 5 of AHERA.
§ 22.42 Supplemental rules governing the
adminIstrative assessment of civil penalties
for violations of compliance orders issued
under part B of the Safe Drinking Water Act.
(a) Scope This section shall apply, in
conjunction with § 22.01 through
22.32, in administrative proceedings to
assess a civil penalty under section
1414(g)(3)(B) of the Safe Druiking Water
Act. Where inconsistencies exist
between this section and § 22.01
through 22.32, this section shall apply.
(b) Choice of forum The respondent
in a proceeding subject to subpart I of
this part of these Consolidated Rules of
Practice has a right to elect a hearing on
the record in accordance with 5 U.s.c.
554. To exercise this right, the
respondent in its answer must request a
hearing on the record in accordance
with 5 U.S.C. 554. Upon such request,
the Regional Hearing Clerk shall
recaption the pleadings and documents
in the record as necessary.
§ 22.43 Supplemental rules governing the
administrative assessment of clvii penalties
against a federal agency under the Safe
Drinking Water Act.
(a) Scope. This section shall apply, in
conjunction with §S 22.01 through
22.32, in administrative proceedings to
assess a civil penalty against a federal
agency under section 1447(b) of the Safe
Drinking Water Act. Where
inconsistencies exist between this
section and § 22.01 through 22.32, this
section shall apply.
(b) Effective date of fino.) penalty
order. Any penalty order issued
pursuant to this section and section
144 7 (b) of the Safe Drinking Water Act
shall become effective thirty days after
issuance.
(c) Public notice of final penalty
order Upon the issuance of a final
penalty order under this section, the
Administrator shall provide public
notice of the order by publication, and
by providing notice to any person who
requests such notice. The notice shall
include
(1) The docket number of the order,
(2) The address and phone number of
the Regional Hearing Clerk from whom
a copy of the order may be obtained;
(3) The location of the facility where
violations were found;
(4) A description of the violations;
(5) The penalty that was assessed; and
(6) A notice that any interested person
may within thirty days of the date the
order becomes final, obtain judicial
review of the penalty order pursuant to
section 144 7(b) of the Safe Drinking
Water Act and the notice requirements
of 40 CFR part 135.
§ 22.44 Supplemental rules governing the
termination of permits under section 402(8)
of the Clean Water Act or under section
3005(d) 01 the Resource Conservation and
Recovery Act.
(a) Scope This section shall apply, in
conjunction with § 22 10 through
22.32, in administrative proceedings for
the termination of permits under section
402(8) of the Clean Water Act or under
section 3005(d) of the Resource
Conservation and Recovery Act Where
inconsistencies exist between this
section and § 22.01 through 22.32, this
section shall apply.
(b)ln any proceeding to terminate a
permit for cause undor 40 CFR 122.64
or 270.42 during the term of the permit:
(i) The complaint shall, in addition to
the requirements of § 22.14, contain any
additional information specified in 40
CFR 124.8;
(2) The Director (as defined in 40 CFR
124.2) shall provide public notice of the
complaint in accordance with 40 CFR
124.10, and allow for public comment
in accordance with 40 CFR 124.11; and
(3) The Presiding Officer shall admit
into evidence the contents of the
Administrative Record described in 40
CFR 124.9, and any public comments
received.
§ 22.45 Supplemental rules governing
public notice and comment In proceedings
under section 309(g) of the Clean Water Act
and section 300h—2(c) 01 the Safe Drinking
Water Act.
(a) Scope. This section shall apply, in
conjunction with § 22.01 through
22.32, in administrative proceedings for
the assessment of any civil penalty
under section 309(g) of the Clean Water
Act (33 U.S.C. 1319(g)), and under
section 1423(c) of the Safe Drinking
Water Act (42 U.S.C. 300h—2(c)). Where
inconsistencies exist between this
section and § 22.01 through 22.32. this
section shall apply.
(b)Public notice—General.
Complainant shall provide the public
with notice of any complaint filed
seeking the assessment of a civil
penalty. Such potice shall be provided
wIthin 30 days following proof of
service of the complaint on the
respondent. Where the parties agree to
settlement of an action without the
filing of a complaint pursuant to
§ 22.13(b). complainant shall provide
the public with notice of the proposed
consent agreement at least 30 days
before it will be finalized.
(2) Type and Content of Public Notice.
The Complainant shall provide public
notice of the complaint (or the proposed
consent agreement if § 22.13(b) is
applicable) by a method reasonably
calculated to provide notice, and shall
also provide notice to any person who
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requests such notice The notice shall
include.
(i) The docket number of the
complaint;
(ii) The name and address of the
complainant and respondent, and the
address of the Regional Hearing Clerk
from whom information on the action
may be obtained and to whom
appropriate comments may be directed;
(iii) The location of the site or facility
from which the violations are alleged,
and any applicable permit number:
(iv) A description of the violation
alleged and the relief sought;
(v) A notice that persons may submit
comments on the complaint to the
Regional Heanng Clerk, and the
deadline for such submissions.
(c) Comment by a person who is not
a party. The following provisions apply
in regard to comment by a person not
a party to a proceeding-
(1) Participation in Proceeding (I)
Any person wishing to participate in the
proceedings must notify the Regional
Hearing Clerk within 30 days of public
notice. The person must provide his
name, complete mailing address, and
state that he w.ishes to participate in the
action.
(ii) The Presiding Officer shall
provide notice of any hearing on the
merits to any person who has met the
requirements of paragraph (c)(1)(i) of
this section at least 20 days prior to the
scheduled hearing
(iii) Commenters may present written
comments for the record at any time
prior to the close of the record.
(iv) Commeriters wishing to present
evidence at a hearing on the merits shall
notify, in writing, the Presiding Officer
and the parties of their intent at least 10
days prior to the scheduled hearing.
This notice must include a copy of any
document to be introduced, a
description of the evidence to be
presented, and the identity of any
witness (and qualifications if an expert),
and the subject matter of the testimony.
(v) In any hearing on the ments, a
commenter may present evidence,
including direct testimony subject to
cross examination by the parties
(vi) The Presiding Officer shall have
the discretion to establish the extent of
commenter participation in any other
scheduled activity.
(2) Limitations A cornmenter may not
cross-examine any witness in any
hearing and shall not be subject to or
participate in any discovery or
prehearing exchange.
(3) Quick Resolution and Settlement
No proceeding subject to the public
notice and comment provisions of
paragraphs (b) and (c) of this section
may be resolved or settled until ten (10)
days after the close of the comment
period provided in paragraph (d)(i) of
this section.
(4) Petition to Set Aside a Consent
Order
(i) Complainant shall provide to each
commenter, by certified mail, return
receipt requested. but not to the
Regional Hearing Clerk or Presiding
Officer, a copy of the proposed consent
order
(ii) Within 30 days of receipt of the
proposed consent order a comnienter
may present to the Regional
Administrator (or, for cases commenced
at EPA Headquarters, the Environmental
Appeals Board), and to the parties, a
petition to set aside the consent order
and an objection to resolution of the
action without a hearing on the basis
that material evidence was not
considered. Copies of the petition shall
not be sent to the Regional Hearing
Clerk or the Presiding Officer. The
adequacy of the amount of the penalty
to be paid in resolution of the action is
not, by itself, grounds for a petition for
a hearing.
(iii) Within 15 days of receipt of a
petition, the complainant may, with
notice to the Regional Administrator or
Environmental Appeals Board and to
the commenter, withdraw the proposed
consent order to consider the matters
raised in the petition. If the complainant
does not give notice of withdrawal
within 15 days of receipt of the petition,
the Regional Administrator or EAB shall
assign a Petition Officer to consider and
rule on the petition. The Petition Officer
shall be another Presiding Officer, not
otherwise involved in the case Notice
of this assignment shall be sent to the
parties, and to the Presiding Officer.
(iv) Within 30 days of assignment of
the Petition Officer, the complainant
shall present to the Petition Officer a
copy of the complaint and a written
response to the petition. A copy of the
response shall be provided to the parties
and to the commenter, but not to the
Regional Hearing Clerk or Presiding
Officer
(v) The Petition Officer shall review
the petition, and complainant’s
response. and shall file with the
Regional Hearing Clerk, with copies to
the parties, the commenter, and the
Presiding Officer, written findings as to’
(A) The extent to which the petition
states an issue relevant and material to
the issuance of the consent order;
(B) Whether complainant adequately
considered and responded to the
petition, and
(C) Whether a resolution of the action
by the parties is appropriate without a
hearing.
(vi) Upon a finding by the Petition
Officer that a hearing is appropriate, the
Presiding Officer shall order that the
proposed consent order be set aside arid
shall establish a schedule for a hearing.
(vii) Upon a finding by the Petition
Officer that a resolution of the action
without a hearing is appropriate, the
Petition Officer shall deny the petition
and.
(A) File with the Regional Hearing
Clerk;
(B) Send copies to the parties and the
commenter; and
(C) Publish, as required by law, an
order denying the petition and stating
the reasons for such denial.
(viii) Upon a finding by the Petition
Officer that a resolution of the action
without a hearing is appropriate, the
Regional Administrator may issue the
consent order, which shall become final
30 days after both the order denying the
petition and a properly signed consent
order are flied with the Regional
Hearing Clerk, unless further petition
for review is filed by a notice of appeal
in the appropriate United States District
Court, with coincident notice by
certified mail to the Administrator and
the Attorney General. Written notice of
appeal also shall be filed with the
Regional Hearing Clerk, and sent to the
Presiding Officer and the parties.
(ix) If judicial review of the consent
order is denied, the consent order shall
become final 30 days after such denial
has been filed with the Regional Hearing
Clerk.
§5 22.46—22.49 (Reserved].
Subpart I—Administrative Proceedings
Not Governed by Section 554 of the
Administrative Procedure Act
§22.50 Scopeofthissubpart.
(a) Scope This subpart applies to any
adjudicatory proceedings where the
complainant designates in the
complaint that subpart I shall apply.
except that the procedures of this
subpart shall not apply in any case
where the Act makes the proceeding
subject to section 554 of the
Administrative Procedure Act, 5 U.S.C.
554
(b) Relationship to other provisions
Sections 22011 through 22 45 apply to
proceedings under this subpart, except
for the following provisions which do
not apply. § 22.11. 22.16(c), 22.21(a),
and 22.29 The provisions of this
subpart shall supersede any conflicting
provisions of subparts A through G of
this part The provisions of subpart H of
this part shall supersede any conflicting
provisions of this subpart or of subparts
A through G of this part
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Federal Register/Vol 63, No. 37/Wednesday, February 25, 1998/Proposed_Rules
§ 22.51 PresidIng Officer.
The Presiding Officer shall be a
Regional Judicial Officer. The Presiding
Officer shall rule on all motions until an
initial decision has become final or has
been appealed.
§ 22.52 informatIon exchange and
discovery.
Respondent’s information exchange
pursuant to § 22.19(a) shall include
information on any economic benefit
resulting from any activity or failure to
act which is alleged in the
administrative complaint to be a
violation of applicable law, including its
gross revenues, delayed or avoided
costs. Discovery under § 22.19(e) shall
not be authorized, except for discovery
of information concerning respondent’s
economic benefit from alleged
violations and mformation concerning
respondent’s ability to pay a penalty.
§ 22.53 Interlocutory orders or rulings.
Interlocutory review as set forth in
§ 22.29 is prohibited.
Appendix A to Part 22—Addresses of
EPA Regional Offices and Headquarters
Environmental Protection Agency, Region I—
John F. Kennedy Federal Building, One
Congress Street, Boston, MA 02203
Environmental Protection Agency, Region
I1—290 Broadway. New York, NY 10007—
1866
Environmental Protection Agency, Region
llJ .—841 Chestnut Building. Philadelphia.
PA, 19107
Environmental Protection Agency, Region
IV—Atlanta Federal Center, 100 Alabama
Street. S.W , Atlanta, GA 30365
Environmental Protection Agency, Region
V—77 West Jackson Boulevard, Chicago. IL
60604-3590
Environmental Protection Agency, Region
VI—First Interstate Bank Tower and
Fountain Place, 1445 Ross Avenue, 12th
Floor. Suite 1200. Dallas, TX 75202—2733
Environmental Protection Agency, Region
VIi—726 Minnesota Avenue, Kansas City.
KS, 66101.
Environmental Protection Agency, Region
VIll—999 18th Street, Suite 500, Denver,
CO 80202-2466
Environmental Protection Agency, Region
IX—75 Hawthorne Street, San Francisco,
CA 94105
Environmental Protection Agency, Region
X—1200 6th Avenue. Seattle, WA 98101
Environmental Protection Agency.
Headquarters, 401 M Street, S W..
Washington. DC. 20460.
Appendix B to Part 22—Addresses of
Regional and Headquarters Leckboxes
Superfund (all Regions)—(Mellon Bank)
EPA—Superfund. P0 Box 371003,
Pittsburgh. PA 15251—7003
Region I—(Mellcn Bank) EPA Region I
Hearing Clerk. P0 Box 360197, Pittsburgh,
PA 15251-6197
Region ll—(Mellon Bank) EPA Region II
Hearing Clerk, P0 Box 360188, Pittsburgh,
PA 15251—6188
Region lll—(Mellon Bank) EPA Region III
Hearing Clerk, P0 Box 360515, Pittsburgh,
PA 15251—6515
Region lV—(The Citizens and Southern
National Bank) EPA Region IV Hearing
Clerk, P0 Box 100142, Atlanta, GA 30384
Region V—(The First National Bank of
Chicago) EPA Region V Hearing Clerk, P0
Box 70753. Chicago, II 60673
Region Vl—(Me)lon Bank) EPA Region VI
Hearing Clerk. P0 Box 360582, Pittsburgh,
PA 15251—6582
Region VII—(Mellon Bank) EPA Region VII
Hearing Clerk, P0 Box 360748, Pittsburgh,
PA 15251—6748
Region V1l1—(Mellon Bank) EPA Region VIII
Hearing Clerk. P0 Box 360859, Pittsburgh,
PA 15251—6859
Region IX—(Mellon Bank) EPA Region IX
Hearing Clerk, P0 Box 360863, Pittsburgh,
PA 15251—6863
Region X—(Mellon Bank) EPA Region X
Hearing Clerk, P0 Box 360903. Pittsburgh,
PA 15251—6903
Headquarters—(Mellon Bank) EPA
Headquarters Hearing Clerk, P0 Box
360277, Pittsburgh, PA 15251—6277.
PART 59— [ AM ENDED)
1. The authority citation for Part 59
continues to read as follows’
Authority: 42 USC 7413(d)(3).
2. Part 59 proposed on May 3, 1994
at (59 FR 22776) is amended by
removing subpart B
IFR Doc 98—4520 Filed 2—24—98, 8.45 am)
BILLING CODE 65 O-5O-P
ENVIRONMENTAL PROTECTiON
AGENCY
40 CFR Part 180
(OPP-300619; FRL-5772-7 )
RUN 2070-AB78
Prometryn; PestIcIde Tolerances
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY; EPA proposes to establish
tolerances for residues of prometryn in
or on carrots under its own initiative to
harmonize tolerances with Canada
under the Federal Food, Drug and
Cosmetic Act (FFDCA), as amended by
the Food Quality Protection Act of 1966
(Pub. L. 104—170),
DATES: Comments, identified by the
document control number [ OPP—
3006191, must be received on or before
March 27, 1998
ADDRESSES: By mail, submit written
comments to Public Response and
Program Resources Branch, Field
Operations Division (7502C), Office of
Pesticide Programs, Environmental
Protection Agency, M St., SW,
Washington, DC 20460. In person, bring
comments to Rm. 119, Crystal Mall #2,
1921 Jefferson Davis Hwy , Arlington,
VA 22202.
Comments and data may also be
submitted electronically to. opp-
docket@epamail.epa gov. Follow the
instructions under Unit V. of this
document.
Information submitted as a comment
concerning this notice may be claimed
confidential by marking any part or all
of that information as “Confidential
Business Information” (CBI).
Information so marked will not be
disclosed except in accordance with
procedures set forth in 40 CFR part 2.
A copy of the comment that does not
contain CBI must be submitted for
inclusion in the public record.
Information not marked confidential
may be disclosed publicly by EPA
without prior notice. All written
comments will be available for public
inspection in Rin. 119 at the address
given above, from 8 a.m. to 4 p.m..
Monday through Friday, excluding legal
holidays
FOR FURThER INFORMATiON CONTACT: By
mail: James A. Tompkins, Registration
Division (7505C), Office of Pesticide
Programs, Environmental Protection
Agency. 401 M St.. SW.. Washington,
DC 20460 Office location, telephone
number, and e-mail address’ Crystal
Mall #2, 1921 Jefferson Davis Hwy..
Arlington. VA. (703) 308-5697, e-mail:
tompkins.james@epamail.epa.gov.
SUPPLEMENTARY INFORMATION: EPA is
proposing under its own initiative that
40 CFR 180.222 be amended by
establishing tolerances for residues of
the herbicide prometryn. 2.4-
bis(isopropylamino)-6-methylthio-s-
triazine in or on carrots at 0.1 parts per
million (ppm) without a U.S.
registration under the Federal
Insecticide Fungicide Act (FIFRA), as
amended for carrots imported from
Canada.
I. Risk Assessment and Statutory
Findings
New section 408(b)(2)(A)(i) of the
FFDCA allows EPA to establish a
tolerance (the legal limit for a pesticide
chemical residue in or on a food) only
if EPA determines that the tolerance is
“safe.” Section 408(b)(2)(A)(ii) defines
“safe” to mean that “there is a
reasonable certainty that no harm will
result from aggregate exposure to the
pesticide chemical residue, including
all anticipated dietary exposures and all
other exposures for which there is
reliable information.” This includes
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